Intelligence community abuses of the Foreign Intelligence Surveillance Act (FISA) have gone from a niche issue for libertarian-minded politicos to a priority among the Republican Party base, thanks largely to former President Donald Trump.
Republicans have a chance to put an end to the law once and for all – or at least significantly reform it – but the party has spent months trying to reach a consensus on how to balance national security with the rights of Americans.
“It’s delicate right now. The place is about to combust,” a GOP source on Capitol Hill told the Daily Caller on Monday.
Under Section 702 of the FISA, the government has the authorization to gather foreigners’ communications who have been flagged in relation to national security matters. The communications can be gathered even if the subject was talking about, or with, Americans.
FISA was elevated from a relatively niche issue with the attention of privacy hawks in D.C. to a critical sticking point for Republicans after it was used to spy on the Trump campaign during the 2016 election season. Based on FISA-enabled surveillance, the national security state and corporate media were able to undercut Trump’s first term in office by perpetuating the “Russiagate” conspiracy theory, the former president’s allies have argued in the years since.
The surveillance bill is set to expire on April 19, and after punting negotiations in December, Republican lawmakers, including avowed Trump allies, are now forced to consider the contentious issue.
The GOP is divided into two broad camps over various proposed reforms, perhaps most notably a warrant requirement. National security hawks aligned with the House Permanent Select Committee on Intelligence have expressed more opposition to the requirement and other privacy-minded reforms — members aligned with the Judiciary Committee are stressing that FISA must no longer be a tool that can be used to spy on Americans, like what happened with the Trump campaign.
In February, negotiations restarted on the legislation, a GOP source explained to the Daily Caller. At the time, the GOP source said, the rough agreement was that the Intelligence bill would be the base while the Judiciary would be given the opportunity to add amendments. The arrangement led to some disagreements over what the base of the bill should be, the source continued.
The battle has since gotten more heated, after Speaker Mike Johnson put forward a compromise reform bill: the Reforming Intelligence and Securing America Act (RISAA).
“I don’t think [RISAA goes far enough] I think that these are a lot of papered over reforms that FBI was doing internally, or were claiming that they’re doing internally,” Republican Arizona Rep. Andy Biggs told the Caller.
“RISAA doesn’t go nearly far enough in protecting Americans from illegal spying by their own government. It is a sham reform, and House Republicans should not vote for any FISA reauthorization that lacks a warrant requirement. Speaker Johnson and the GOP majority have a real opportunity to end this madness, and they should take it,” Rep. Mike Lee told the Daily Caller in a statement.
Ahead of the renewal fight this week, Speaker Johnson put forward RISAA, a bill backed by Ohio Rep. Mike Turner and the intelligence committee. Privacy hawks across the political spectrum have said the legislation doesn’t go far enough.
“Speaker of the House Mike Johnson claims that RISAA reflects a compromise,” reads a joint statement from the Electronic Privacy Information Center, the Brennan Center for Justice and Freedomworks. “In reality, this bill is not a ‘compromise,’ and its 56 ‘reforms’ codify the unacceptable status quo.”
“Making 56 ineffective tweaks to a fundamentally broken law is not reforming it. Absent significant amendment, RISAA will do nothing to prevent the government’s repeated abuses of Section 702 to spy on Americans.”
“Any member of Congress who supports extending FISA without radical reforms should receive a ‘Deep State-approved’ logo to burnish for their reelection campaign,” longtime D.C. journalist Jim Bovard, who focused on privacy rights and civil liberties, told the Caller.
“If Congress cannot yank in the reins on the FBI and NSA after millions of confirmed violations of Americans’ rights, only a fool would expect Congress to ever give a damn about the Constitution.”
Much of the pressure that is mounting is being directed at Speaker Mike Johnson. Johnson has faced increasing criticism from the Trump wing of his conference, with Georgia Rep. Marjorie Taylor Greene threatening to oust him from the speakership for helping pass a government funding bill, among other complaints.
The move to put forward RISAA has invited more criticism for Johnson from within his own conference.
“FISA is tricky right now. It’s expected that Mike Johnson will just roll over on this — like everything else he’s done,” a GOP source told the Daily Caller before the Speaker indicated that he would try to bring RISAA to the floor.
“Mike Johnson is a constitutional conservative who was fighting for the judiciary committee six months ago, and now when you look at his actions, since he’s become speaker, it kind of seems that he switched teams. They’re going to deny it and say ‘well you know he’s the speaker now,’” a senior GOP aide told the Daily Caller.
Turner’s office offered an unequivocal defense of the bill, stating it is “not an expansion of warrantless surveillance on American citizens.” Turner has consistently denied that his version of FISA reform constitutes a warrantless surveillance program against Americans.
Some Republicans have gone on the record to question Johnson’s personal record on privacy issues.
“House leadership, including @SpeakerJohnson and @RepJeffries, voted for a FISA 702 warrant requirement in 2018. Now they’re both opposing a warrant requirement. Why do the Intel Bros™️ get to tell House leadership what to do?” Lee tweeted Tuesday.
A failure on the GOP’s part to properly rein in FISA could send a bad signal to Republican voters, journalist Matt Taibbi told the Caller.
“If Republicans don’t vote for extensive FISA reform, it will mean they were never serious about getting to the bottom of the abuses in the Trump/Russia investigation. It would send a devastating message to Republican voters in particular,” he said.
“When I started working on the Russiagate story, I started hearing horror stories from Hill staffers, who apparently were surprised to learn how pervasive the misuse of FISA has been since passage of the FISA Amendments Act in ’08,” he continued. “The unmasking procedure has proved to be a joke with no real safeguards, and parallel structure (i.e. using intelligence illegally obtained from programs like this in ordinary criminal investigations) is probably far more common than we think.”
Johnson did previously vote to extend FISA surveillance in 2018, despite Trump’s opposition, but has fought along Judiciary Chairman Jim Jordan to push back on FISA abuses more recently.
Trump has been a vocal critic of FISA abuses, due to the law being used to surveil his campaign during the 2016 election.
“‘House votes on controversial FISA ACT today.’ This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?” the then-president tweeted in Jan. 2018.
During the 2016 election, the FBI used a document complete with opposition research on the former president to earn the approval from a secret court that oversees FISA to secretly monitor Trump aide Carter Page, according to CNN. The document, the infamous Steele Dossier, included unverified claims that the Russian government had compromising personal and financial information on the eventual president.
The former president’s White House later put out a statement undercutting Trump, clarifying that the administration believed Section 702 “is vital to keeping the nation safe” while adding that renewing the bill “is a top priority of the administration.”
It was later revealed in 2023 through court documents that the FBI had been using data obtained through FISA improperly to search Americans, including some who attended the Jan. 6, 2021, riot and Black Lives Matter protests, Newsweek reported.
As a result of Trump’s vocal opposition, and the way FISA was used against his campaign, the issue has become pressing for many of his supporters.
The FISA debate last reared its head in December of 2023 when Congress was considering the annual National Defense Authorization Act (NDAA). An extension of Section 702 until April was added to the bill, and nearly 150 House Republicans voted for the package.
When the package passed in December with the inclusion of FISA extension, Trump’s supporters, who blame the legislation for spying on the former president, became enraged. Trump-aligned figures like Charlie Kirk and Kash Patel blasted House Republicans.
Some in Trump’s orbit are sounding the alarm this time around too: “We know that 702 was abused to spy on Americans and specifically to spy on Donald Trump,” former Trump administration official Ric Grenell told the Caller. “The current draft doesn’t fix the abuses and therefore the bad outweighs the good.”
Lawmakers who have aligned themselves with Trump, yet voted for the NDAA with FISA extension within it, include Kentucky Rep. James Comer, Speaker Johnson, Colorado Rep. Lauren Boebert, New York Rep. Elise Stefanik, Texas Rep. Ronny Jackson, South Carolina Rep. Nancy Mace and Ohio Rep. Brad Wenstrup.
Mace, Comer, Boebert and Johnson’s offices explained to the Daily Caller why they chose to vote for the NDAA in 2023. All noted separate issues and funding that were folded in the NDAA that persuaded them to vote for the package, despite the inclusion of the FISA extension.
The NDAA has long been considered a “must-pass” bill by Congress for national security reasons. The urgency to pass the NDAA has resulted in controversial provisions being included before, such as in 2011, when President Barack Obama signed the 2012 NDAA into law and codified the indefinite detention of American citizens allegedly linked to terrorism.
Boebert’s office noted that she promised her voters she would get the Pueblo Jobs Act signed into law, and Comer’s office said that his district’s military base needed funding.
“Congressman Comer fully supports Representative Jim Jordan’s ongoing FISA reform efforts,” Comer’s spokesperson told the Daily Caller. “In 2023, he supported the National Defense Authorization Act because the legislation secured badly needed funding for his district military base Fort Campbell and delivered support to our men and women in uniform by repealing the COVID-19 vaccine mandate and providing a boost in pay.”
Mace’s office told the Daily Caller in a statement that the congresswoman did not support the inclusion of the FISA extension in the NDAA, despite her vote for the package in December 2023. The congresswoman’s spokesperson Gabrielle Lipsky noted that the bill included a “variety of priorities important to the thousands of active-duty service members she represents.”
“Rep. Mace did not support the inclusion of a FISA extension in the NDAA and does not support a FISA extension without significant reforms to section 702 to ensure the protection of Americans’ 4th Amendment rights,” Lipsky told the Daily Caller in the statement.
Still, 73 House Republicans, about one-third of the conference, voted against the NDAA.
Stefanik, Jackson and Wenstrup did not respond to questions regarding their previous support for the NDAA and how they would handle the upcoming Congressional vote.
Meanwhile, prominent civil liberties organizations and advocates on both ends of the political spectrum have made an effort to persuade Congress to change its approach to FISA.
“Demand Progress plays a leading role advocating for and organizing civil society in support of Congressional action to rein in warrantless surveillance,” Demand Progress, a left-wing civil liberties organization with a focus on internet issues told the Daily Caller in statement. “We have further driven tens of thousands of contacts to Congress opposing FISA reauthorization absent major new privacy protections for Americans against warrantless surveillance and have conducted exhaustive research documenting FISA abuse.”
“We will go and identify and work with those members to go and reach out and branch into other members of Congress and their offices where we can so like, I’ve met with all different kinds of, you know, different committees that have interests on this topic. We’re always talking with them about what this trade off is, and why it’s so important. We’re certainly pushing very hard as often as we can,” a member of the conservative group Americans for Prosperity told the Daily Caller.
For the time being, Republicans seem likelier to take up the intel committee’s version of reforms, which Turner’s office insisted to the Caller is sufficient to protect Americans.
“It’s the largest reform to FISA and the FBI in a generation. This bill contains over 50 reforms to prevent another Carter Page/Russia Hoax abuse from happening and drastically reduces FBI querying,” Jeff Naft, the communications director for Turner, told the Daily Caller in a statement.
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