The FISA 702 Battle: Warrantless Searches Here To Stay?

There seems to be a lot of confusion concerning a procedural vote on Wednesday related to Section 702 of the Foreign Intelligence Surveillance Act (FISA), set to sunset on April 19. H.R. 7320/H.R.7888 (Reforming Intelligence and Securing America Act), which was sponsored by Rep. Laurel Lee (FLA-15) and Senators Mike Lee (R-UT) and Dick Durbin (D-IL). This bipartisan compromise bill would allegedly protect Americans from foreign threats and warrantless government surveillance.

Many believe there was a final vote on the bill in Wednesday's Rule Committee Hearing. However, the vote was more precisely a procedural vote on a resolution or rule. 19 Republicans, many of whom are in the Freedom Caucus, voted with all the Democrats not to hear amendments related to FISA and warrantless surveillance. The vote failed 193-228. 

There are some Republicans, however, like Thomas Massie (R-KY), who believe the 19 may have ultimately tanked the entire process to amend FISA for reasons that may not be entirely transparent to most Americans. Yesterday, the 19 Rs prevented the resolution and, therefore, a vote on whether to advance the warrant amendment provision. Politicians use these tactics and strategies to push legislation through in the context of many other external and internal pressures.

The way business gets done in Congress is often an opaque and confusing process. It may be why Massie took a moment on X to explain what he perceives to be the consequences of voting against the resolution at this juncture. He explained in his X (formerly known as Twitter) post that the vote on Wednesday was a procedural "vote on a resolution that would have allowed FISA, as well as 6 amendments to it, including a warrant requirement (the Biggs Amendment), and three other pieces of legislation to come to the floor." Massie, Marjorie Taylor Greene, Jim Jordan, Warren Davidson, and others voted "yes," meaning they wanted to see who would go on record against warrantless surveillance for all the world to see. Massie believes that the 19 Republicans may have "stopped our only chance to have a vote on whether the government needs a warrant to spy on you." We will soon find out.

To Massie's point, similar to two months ago, "members of the Intel Committee similarly canceled a vote on the warrant amendment and the underlying bill." They pressured Speaker Johnson, and according to Massie, Johnson "yanked the resolution." Ironically, Massie also explained on Wednesday that there is some carve out that "gives notifications to Congress" to prevent "inappropriate queries." So, members of Congress get notifications, but average Americans do not. Some provisions seek the consent of members of Congress for defensive briefings. It may be one of the reasons Massie wanted to hone in on the issue of warrantless searches with his amendment. Isn't it funny how those things work in D.C.? The notification and consent requirements start on Page 9 of the bill.

Massie lays it out in his post below, acknowledging that the vote result by the 19 Rs "is TBD." After all, the 19 Republicans and the representatives who sided with Massie on the resolution broadly agree FISA must be addressed and fixed because of past abuses.

Ironically, Chip Roy was one of the 19 who ultimately voted against putting the resolution up for a vote even though he was aligned with the amendment and charged with managing the rule. In his X post, he discusses the problem he and other Republicans faced yesterday. He admits his "100% agree[ment]" with the Massie contingent on the broader issue but chose to take a "different tactical vote on the rule." Roy wondered whether he and his Republican contingent "rolled the dice between eating the FISA reform rule." Roy and his cohorts believed the "warrants amendment was set up to fail." 

To clarify, Roy was concerned that the vote would not come to pass because if Speaker Johnson and others in leadership worked with Democrats to bring the bill to the floor under suspension, the amendment would effectively be killed. He also voted against the rule because the amendment required the extension of FISA by five years when he wanted only a two-year extension. 

Requirement for Warrant Under 702 Debated

Republican Rep. Mike Turner of Ohio, on the Permanent Select Committee on Intelligence, disagreed with Massie's resolution to amend warrantless surveillance. Contrary to the myths being circulated, Turner declared there "are no warrantless searches on Americans." Turner explained that it is unconstitutional and illegal. However, should American data or communications be exchanged with, say, terrorists, those data and communications can be surveilled without a warrant. 

Turner further argued surveillance under 702 is minimized, allowing surveillance only on American communications that are captured in the surveillance of a foreigner who poses a threat. The warrant amendment, said Turner, would be dangerous because it means we would "go into the head of ISIS, or go into the head of Hamas data and look in that data [to find] American's names and American citizens who are communicating with Hamas and ISIS. It's not going into American data. There is no warrantless spying on Americans under 702 or FISA. There is no ability to go into American data under this law except with a warrant they're already under (because of their communications with a surveilled foreigner). The law has a requirement that if you're going to go into American's data, you must get a warrant. The requirement that they're [Massie et al.] asking for is a warrant to go into Hamas data and look at Americans that are corresponding with Hamas, or if you go into ISIS data and look at ISIS data for Americans that are corresponding with ISIS."

"You have no constitutional right to privacy as an American to correspond with an ISIS head who's a foreigner located abroad," continued Turner. "That is not protected communication. Now, your communications remain protected. We can't go into your communication to your data without a warrant. But if you communicate with ISIS, the head of ISIS, the head of Hamas, you lose your constitutional protection under those communications. But to impose a warrant requirement on foreign data is dangerous for America."

Back to the Drawing Board and House Vote

After Wednesday's debate, Biggs, Massie, Jordan, and others returned to the drawing board to ensure a requirement for a warrant under 702 would be a core part of H.R. 7888. The Biggs Amendment and five amendments went to a vote on the House floor on Friday. On Friday morning, before the vote, Chip Roy again argued that a requirement for a warrant should be a core issue in any FISA bill now or in the future.

Roy believes his colleagues who are more aligned with the intel community, like Mike Turner (R-OH) have allowed too many provisions that expand FISA or are focusing on reforms that do not go far enough. On Friday, Roy stated that "we are proceeding with reforms that do not get to the engine of the reform. Reforms that might make some improvements. But those reforms are in the periphery. They ignore the core problem, that fundamental issue as to whether or not you must have a warrant to look at the information of American citizens." 

Roy and many others in Congress believe FISA is here to stay because too many in the intelligence community believe Americans will not be safe without it. However, the more considerable debate is about Constitutional issues, specifically the Fourth Amendment. A Constitutionalist would argue there must be a balance between national security interests and the right to privacy and civil liberties.

The FISA process has been abused for decades, with the most prominent and public examples being the egregious surveillance abuses seen with Carter Page and others on Trump's campaign team. Warrants to surveil the campaign were obtained with the use of laughably bogus opposition research that was being promulgated by the Hillary Clinton campaign under the FISA program (but not under 702).

Notably, Kevin Clinesmith got a slap on the wrist for breaking the law to use the FISA program to spy on the Trump campaign—his law license was suspended for a year. Clinesmith doctored an email presented in 2017 to the Foreign Intelligence Surveillance Court stating then-Trump campaign adviser Carter Page had been a "source" for the CIA. Clinesmith told the court he conveyed accurate information and had no intention of deceiving the court. H.R. 7888 would allegedly change issues related to that behavior, including specific criminal penalties for doctoring documents and committing perjury.

As such, H.R. 7888 seeks to reauthorize the FISA program but puts multiple guardrails in place to protect ordinary American citizens. According to Turner, the bill has 55 stipulations that reform both the FISA court process and FBI processes, addressing the collection and use of data. "The abuses," said House Intel Chair Mike Turner (R-Ohio), "were so egregious that the FBI was broken, and we could no longer trust the system. We elevated and limited the use of 702," making "certain the abuses that the FISA court itself could never again be subject to the political abuses that occurred in the Trump campaign." The bill also assigns "criminal penalties for anyone who violates these new higher standards," said Turner.

The facts of the matter are that everyone in the hearing, including the intel committee, agreed that 702 queries on Americans have been egregiously abused. Jordan cited the abuses added up to about 278,000 instances. Massie quipped that it seems that the only reason it might not be abused is "benevolence" on the part of the individual searching, which is not reassuring. "So we let them have some rights that I (meaning the individual doing the queries) believe that the Constitution requires."

One example of the abuses was alleged searches of the 702 database on 141 Americans who attended BLM riots. Another involved searches of the 702 database for personal information unrelated to national security interests, or as Rep. Jerry Nadler (NY-D) put it, "Tinder dates." There is "all kinds of information on there, and that's why it's being abused," Nadler continued. Massie added that it shouldn't be the case that you express yourself at a rally and "then land on a list somewhere."  

Massie's hypothetical argument went to the center of his argument against warrantless searches. He cited the example of an individual who has sent thousands of communications or made thousands of phone calls, but ".1% of those communications are caught up in the FISA 702 program. Why wouldn't you need a warrant to go after those emails that are in the FISA program that are ostensibly collected in pursuit of a foreign agent? Why does Mary Catherine have protection over only some of her communications? Why doesn't she get her constitutional rights for those 100? Why does she give up her constitutional rights just because she's communicating with somebody who has no constitutional rights? She hasn't surrendered them!? You are surrendering her constitutional rights under this program."

In the end, the issue boils down to Jordan and Massie's concern over the standards applied in the case of 702 searches on Americans. Can we trust the government not to use the 702 database for illegal searches? The standard for conducting a search said Jordan, before 702, there "was always probable cause, and you gotta get a warrant for a search, and now it's something different. And that's why we are saying, go with the tried and true standard that's been around since this great country was formed." 

Turner believes that some of the abuses can be addressed by narrowing who has access to the database, among other reforms. Many of the abuses have occurred, explained Turner, because too many individuals have had access to the database—around 10,000 currently. H.R. 7320 would reduce that number to 550. He also said that the bill would restrict not only the number of people who have access to the 702 database but the "level of who has access and the review of those who access it," implying the standards in all categories would be much more stringent than they are at present.

Both Marjorie Taylor Greene and Chip Roy came off the floor on Friday to speak on Bannon's War Room again about their disdain for FISA as a whole. Greene said she would vote for a warrant requirement but would vote against the bill that would renew FISA. Roy's position is that if FISA is yanked completely, "some protections on Americans [will] expire." Greene, however, no longer trusts the government to "police itself."

Greene also shared her thoughts on Speaker Johnson's leadership concerning the bill, explaining her belief that he is buying into the fear-mongering being messaged by Turner and the Biden administration. Speaker Johnson's position on FISA and warrantless searches can be found here. Greene continued:

"They're trying to instill fear in members, you know, especially like our own speaker Mike Johnson. They pull him in the room in a classified briefing and give him no proof but try to tell him that Americans are going to die unless you reauthorize FISA or people are going to die unless you do XYZ. I'm completely against it. We need to kill FISA altogether. We do not need FISA. FISA is the tool of the deep state, and just because people think taking it from a five-year to a two-year makes this bill any better. It does not.

There's a carve-out for members of Congress and their state. That means that Congress has to be notified. If a congressman is going to be spied on by FISA, but yet are the American people notified? No, absolutely not. This is what was used to spy on the Trump campaign. It's what's been used to spy on hundreds of thousands of Americans, and the Intel community wants it to continue. So my question for everyone at home is, do you trust the government? Do you actually trust the Department of Justice to police itself? Do you actually trust Biden's DOJ to hold Biden's FBI accountable? No, we don't trust any of it."

To Greene's point, the White House has been circulating a memo with members to discourage them from voting on a warrant requirement amendment. The memo is laced with fear-provoking language and wholeheartedly supports the unfettered use of the 702 database. The memo concludes that the amendment would be "a reckless policy choice that is contrary to the key lessons of 9/11 and not grounded in any constitutional requirement or statute." 

Unfortunately, the warrant requirement amendment failed on Friday on the House Floor 212-212. A final vote on the two-year extension of FISA (early versions had a five-year extension) passed, with 86 Republicans voting no. However, Rep. Anna Paulina Luna (R-FL) and others forced another vote on the warrant requirement amendment on Monday before the bill passes. 

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