Speaker Mike Johnson (R-LA) is considering putting a measure to reauthorize a controversial government surveillance law into a defense spending bill, which is viewed by some as “folding to Chuck Schumer’s agenda.”
Section 702 is a law that allows intelligence agencies to collect communications of targeted foreigners. It also may lead to targeted surveillance of Americans’ private communications, which privacy advocates consider a run around the Fourth Amendment’s requirement for a warrant to search Americans’ communications.
Section 702 will expire at the end of the year, setting up a high-stakes battle between privacy-oriented lawmakers and those sympathetic to the intelligence agencies.
However, despite strong conservative, progressive, and grassroots support for reining in Section 702, it appears that Johnson may end up putting a reauthorization of the controversial surveillance law in the National Defense Authorization Act (NDAA).
Surveillance reform is not germane to the defense bill and could shutter his promise to follow “regular order,” which he made after becoming Speaker of the House.
A source familiar told Breitbart News that Johnson is considering putting Section 702 in the NDDAA and that conservatives would be disappointed if the Speaker sided with Rep. Mike Turner (R-OH), the chairman of the House Intelligence Committee, over Rep. Jim Jordan (R-OH), the chairman of the Judiciary Committee.
Speaker Johnson’s office has not responded to a request for comment about these developments and if the proposed Section 702 reauthorization would include the reforms proposed by the Intelligence Committee.
This would not be the first time that this option was floated. Politico reported last week that inserting an extension of Section 702 could be included in the NDAA, according to staffers involved in the surveillance debate.
The Judiciary Committee typically favors government surveillance reform, while the Intelligence Committee, usually is more sympathetic to national security agencies’ interest in Section 702. The Judiciary Committee is also expected to soon unveil its proposal for reforming Section 702.
The House Intelligence Committee has not formally unveiled its legislation; however, its report calling for reforms has been panned by conservatives and privacy advocates. Sen. Mike Lee (R-UT) called the proposal mere “window dressing” and would even expand surveillance programs, such as the Patriot Act’s rolling wiretap program, which expired.
Many on Capitol Hill have raised the alarm about the prospect of having Section 702 in a must-pass bill.
“FISA reform is a bipartisan issue that must be considered on its own. Washington is addicted to combining legislative vehicles and turning them into take-it-or-leave-it proposals. Lumping FISA reform with the “must-pass” NDAA conference report will be a non-negotiable for Republicans across the conference,” a House GOP aide told Breitbart News.
The rumors spreading of having Section 702 included in the NDAA has incensed some conservative groups.
Adam Brandon, the president of the grassroots activist group FreedomWorks, said in a written statement:
Members of Congress have done incredible work this year building broad bipartisan consensus around protecting Americans’ privacy. This bipartisan consensus has brought together conservatives and progressives in a Congress that has struggled to find agreement on major policy issues that face our country, and it reflects the demands of millions of constituents to rein in government surveillance.
The Intelligence Committee majority report that outlines its legislation tells us that members of the Committee haven’t taken the support for significant reform seriously. The changes made by the Intelligence Committee wouldn’t prevent the worst abuses of Section 702, in particular the vast majority of abuses involving warrantless backdoor searches looking for information about Americans. These wrongful warrantless backdoor searches even include searches for communications of members of Congress and some 19,000 congressional campaign donors. The Committee also plans to revive two surveillance authorities that lapsed more than three years ago.
This is the time for robust debate over these issues, not maneuvers by congressional leadership to undermine Americans’ privacy. FISA reauthorization should not be in the NDAA—period. FreedomWorks will oppose NDAA should FISA be included. This is a critical moment, and Speaker Johnson should make clear he stands with the people’s right to privacy. [Emphasis added]
Johnathan Eberle, a spokesman for FreedomWorks, said the group will urge lawmakers to oppose the bill if it were to include Section 702 reform in the bill.
Jason Pye, the director of the Due Process Institute, said “it’s BS” to include Section 702 and that the best way to reform the law is to pass the Government Surveillance Reform Act, a bill supported by conservatives and progressives. The law would go beyond reforming Section 702 and close the “data broker” loophole that would allow law enforcement to sidestep the Fourth Amendment.
He explained in a statement to Breitbart News:
Including FISA in NDAA puts NDAA at risk. That much is clear. The HPSIC product, the text of which hasn’t been released and that we know about only because of the committee report, isn’t a reform bill, and it’s laughably absurd to say it is. The changes the HPSCI report suggest to FISA simply wouldn’t stop the worst abuses of Section 702. Remember, the backdoor search loophole was used to access the communications of members of Congress and 19,000 donors to a congressional campaign. The HPSCI report also suggests bringing back two provisions of the USA PATRIOT Act that expired more than three years ago. It also does nothing to address executive overreach that comes through Executive Order 12333.
You also have the dynamic of putting Section 702 into a ‘must-pass’ bill like NDAA. If that happens, it’s another indication that little is changing in the House. It’s the same BS that has become the norm, regardless of which party has the majority; it’s governing by crisis. In terms of the national dialogue, it’s clear that there’s a desire for reform. As someone who works across the aisle as much as possible, this sort of consensus is really difficult to find because of the hyperpartisan atmosphere in which we live today. So, when you have members of the Congressional Progressive Caucus and the House Freedom Caucus—two groups who otherwise agree on very little—come together to push for substantive reforms, you have to seriously consider that. Democrats and Republicans in both chambers of Congress and civil liberties and surveillance reform organizations have communicated what reforms we want to see. That’s the Government Surveillance Reform Act, which is the most significant surveillance reform legislative I’ve seen in my more than ten years in public policy.
Ramming through FISA reauthorization in NDAA with the HPSCI product, which would continue the worst abuses of FISA and does absolutely nothing but codify existing IC practices, would be an act of legislative malpractice and another example of the top-down process that has turned Congress into a clown show. [Emphasis added]
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The potential move to include Section 702 in the NDAA could also divide Republicans when unity is needed more than ever; the House passed a stop-gap spending bill and continued Democrat spending levels in mid-November by using more Democrats than Republicans, a move that led to the ouster of Speaker Kevin McCarthy (R-CA) earlier this year.
Rep. Andy Biggs (R-AZ) wrote on Monday, “FISA spying abuse is widespread. From the Obama Administration weaponizing it to sabotage Trump campaign officials to the FBI exploiting it to target millions of law-abiding Americans, our Fourth Amendment is under attack. It’s time to wake up.”
FISA spying abuse is widespread.
From the Obama Administration weaponizing it to sabotage Trump campaign officials to the FBI exploiting it to target millions of law-abiding Americans, our Fourth Amendment is under attack.
It's time to wake up.
— Rep Andy Biggs (@RepAndyBiggsAZ) November 27, 2023
Sean Moran is a policy reporter for Breitbart News. Follow him on Twitter @SeanMoran3.