Speaker Mike Johnson’s (R-LA) office has refused to confirm Rep. Matt Gaetz’s (R-FL) claim that there will be no reauthorization, temporary or otherwise, of a deep state surveillance tool in the National Defense Authorization Act.
Breitbart News, as well as Wired, reported that Speaker Johnson and Democrat leaders are considering slipping a reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA) in the National Defense Authorization Act (NDAA), a defense bill that has little to do with government surveillance.
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. The law will expire at the end of 2023.
The Speaker’s office did not answer multiple requests for comment about Rep. Matt Gaetz’s claim that Johnson said there would be no Section 702 in the NDAA.
The controversy continued as Gaetz asserted that Section 702 would not be included in the NDAA, saying, “I love the folks at FreedomWorks – but this isn’t true. I spoke to @SpeakerJohnson and while there is still work to be done to hammer out the legislation, the plan is to run it as a SINGLE SUBJECT stand-alone bill.”
I love the folks at FreedomWorks – but this isn’t true.
— Matt Gaetz (@mattgaetz) November 28, 2023
After Gaetz’s tweet, Breitbart News repeatedly asked multiple staffers of the Speaker’s for an on-record confirmation of what Gaetz claims Johnson told him. Multiple Johnson staffers would not provide such a statement.
Instead, a senior GOP leadership aide told Breitbart News, “The NDAA is not going to be a reauthorization of the FISA program. It is not going to include a full-year authorization of the FISA program.”
It is important to note that the leadership aide neglected to say if there would be a short-term extension of Section 702 in the NDAA. In other words, this senior GOP leadership aide in the House is openly saying it is certainly a possibility that the NDAA will include a short-term reauthorization of the FISA surveillance program–thereby effectively confirming the original reports from Breitbart News and Wired magazine.
National security officials argue that a temporary extension would ultimately help law enforcement agencies seeking another year of certification for the program.
During the last fight to reauthorize Section 702, American officials admitted that the end of the year deadline may not matter much due to a belief that the program could continue much longer than anticipated due to the way that it is annually certified. The New York Times reported in mid-November that the program could also continue until mid-April because of an obscure provision in the law.
“Specifically, Section 702 empowers a surveillance court to authorize the program and to direct companies to cooperate for 12 months at a time. If Section 702 lapses, the court could not issue a new round of such orders, but a provision says existing directives can continue until their own expiration dates,” the Times wrote. The outlet noted that the orders “were issued on April 11.”
In fact, current law as amended makes this distinction very clear:
(1) ORDERS IN EFFECT ON DECEMBER 31, 2023.—Notwithstanding any other provision of this Act, any amendment made by this Act, or the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), any order, authorization, or directive issued or made under title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 101(a) and by the FISA Amendments Reauthorization Act of 2017, shall continue in effect until the date of the expiration of such order, authorization, or directive. [Emphasis added]
Johnson has been vocal about the need to reform Section 702, saying Congress would not reauthorize the program without significant reforms.
“The FBI has not proven itself capable of wielding this tool with proper protection of Americans’ civil liberties. Agents have routinely and unconstitutionally surveilled American citizens, and Director Wray’s testimony on Capitol Hill last week did nothing to dissuade House Republicans from that position,” Johnson told the Washington Examiner. “We will not reauthorize FISA 702 unless the Bureau proves to Congress that it has implemented major reforms and establishes a transparent set of checks and balances to ensure that American citizens aren’t being unconstitutionally surveilled by the institutions designed to protect them.”
In January 2022, Johnson and then-House Judiciary Committee Ranking Member–now Chairman–Jim Jordan wrote to FBI Director Christopher Wray about how the FBI uses the program.
WATCH: Jim Jordan: There are 204k Reasons to Oppose FISA ReauthorizationHouse Committee on the Judiciary / YouTube
The prospect of including Section 702 in the NDAA has raised alarm bells for many on Capitol Hill.
“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.
FreedomWorks President Adam Brandon opposed the potential move in a statement, saying that they would urge lawmakers to vote against it if it were included in the NDAA.
Jason Pye, the director of the Due Process Institute, called it “legislative malpractice.”
It remains to be seen what the Speaker will do because as of now, he remains silent.
Sean Moran is a policy reporter for Breitbart News. Follow him on Twitter @SeanMoran3.