Crunch Time for Gyges (USIC)

 Luke Goldstein, "Crunch Time for Government Spying"

Congress has a few weeks left until a key spying provision sunsets. Both reformers and intelligence hawks are plotting their strategies.

Time is running out for a bipartisan legislative push to curtail warrantless surveillance of American citizens through Section 702 of the Foreign Intelligence Surveillance Act (FISA).

After a vote was tabled last week following a theatrical warning by House Intelligence Committee chair Rep. Mike Turner (R-OH) about a national-security threat from Russia, reformers are pressuring House leadership to hold another vote on a compromise bill, plus amendments. The chances of that are growing more grim by the day.

Once Congress returns to session next week, it will be pushing up against a government funding deadline that appears increasingly likely to turn into a full government shutdown. That will likely eclipse any momentum behind a compromise reform of Section 702, and could lead to a situation where a clean reauthorization gets tucked into future must-pass legislation, a common tactic employed by national-security hawks.

There’s another scenario where Congress fails to reauthorize Section 702 by the April deadline and allows it to sunset, which could invert the political dynamic and increase pressure to agree to a floor vote.

The intelligence community’s voice is always loudest on these matters, and fearmongering often works. Nobody in Congress wants to be blamed for endangering the country, whether or not the charge is true. However, some insiders on Capitol Hill believe that the widespread backlash to Turner’s stunt last week may actually have bolstered the chances for a vote on reform amendments. It discredited the Intelligence Committee, while angering leadership and the White House in the process.

“This is the closest we’ve ever been to closing the backdoor search loophole and the data broker loophole,” said Sean Vitka, policy director for Demand Progress, who’s been working on this issue for a decade. “Even though both have passed the House before, they’ve never been included as a condition of Section 702’s continuation. That’s why we’re all fighting so hard for this moment.”

LAST THURSDAY, THERE WAS SUPPOSED TO BE A FLOOR VOTE on legislation to amend FISA, an ongoing fight that over the years has been routinely stymied by national-security hawks.

FISA Section 702 allows intelligence agencies, mainly the NSA and FBI, to surveil foreigners without a warrant. This extrajudicial power inevitably sweeps in vast troves of information on American citizens in the dragnet that can then be tapped by federal authorities, despite a warrant never being served. The FBI alone engaged in over 200,000 of these “backdoor searches” in 2022, including on political activists. Additionally, government authorities also obtain information on citizens through data brokers, because of a legal loophole in how the Fourth Amendment is implemented.

In December, a temporary extension of Section 702 was inserted into the National Defense Authorization Act, but it is set to expire in April. Despite the fact that the Judiciary Committee passed its reforms overwhelmingly, House leadership at the start of this year agreed to a compromise bill on 702 slightly favoring Intelligence but allowing for floor votes for both sides’ amendments, which Judiciary accepted. Reform advocates were confident they could prevail with their amendments to end backdoor searches on citizens and close the data broker loophole.

The vote was supposed to take place last Thursday. On Tuesday night, the Intelligence Committee voted to make an “intelligence product” available to all members the next day of grave national-security importance—a clear scare tactic to influence the Thursday vote.

But the following day, Turner pushed the gambit too far, issuing a cryptic statement about an imminent unnamed threat that set off a media firestorm. This led to the release of the intelligence regarding Russia’s potential anti-satellite capabilities, which have not yet been deployed. Turner was resoundingly decried, even by his fellow Intelligence Committee members, for exposing intelligence-gathering on a matter not deemed to be a current danger. Amid the panic, Turner was successful in getting leadership to cancel the Thursday vote.

The intelligence community’s voice is always loudest on these matters, and fearmongering often works.

All evidence suggests that was exactly Turner’s plan, even though his ranking member Rep. Jim Himes (D-CT) called this interpretation of events a “conspiracy theory.” Despite this assertion, Rep. Himes would not comment to the Prospect on whether he’d call for another vote on the compromise bill, as agreed to.

Since last week’s scuttled vote, representatives have come forward saying that Turner likely already knew about this supposedly immediate threat as far back as two years ago, and didn’t sound the alarm then.

During a CNN interview last week. Rep. Seth Moulton (D-MA) expressed his dismay at Turner’s stunt, given that the two of them had been briefed on this very intelligence in 2022 while they served as members of the House Armed Services Committee. Moulton’s remarks add further evidence that Turner pulled a stunt last week in order to stop the Thursday vote.

Even though the White House joined the chorus criticizing Turner, intelligence officials confirmed to news outlets that the Russian space nuke reconnaissance was obtained through Section 702 powers, the purported impetus for calling to cleanly extend the program. What was omitted from those reports is that the reform amendments wouldn’t curtail that specific use of 702 on foreigners, only on American citizens.

GOING INTO THIS WEEK, SEVERAL REPUBLICAN REPRESENTATIVES of the Freedom Caucus were calling for Turner to be stripped of his chairmanship, but those calls have for the most part quieted down.

Behind the scenes, Republican leadership is discussing whether to reschedule another vote on the compromise bill. That would be the optimal scenario that reformers are pushing for, to fulfill the agreement made between the Intelligence and Judiciary Committees. Many believe that Turner has undercut his own influence in these decisions moving forward, which could give the Judiciary more sway.

In particular, Turner has likely hurt the Intelligence Committee’s standing with one of the key stakeholders critical to the future of FISA reforms: the Rules Committee. Several members on Rules support ending warrantless surveillance, and according to Hill sources they were irked by a separate Intelligence Committee stunt last week.

Amid the Russian space nuke mayhem, Intelligence members failed to show up to the Rules Committee hearing, where they were supposed to submit their amendments ahead of Thursday's vote. Their absence was seen as a snub and duplicitous, according to staffers on the Hill.

The Rules Committee’s role in the 702 floor vote is crucial, and could also come into play if leadership tries to insert a full 702 reauthorization into must-pass legislation. If Rules held up 702’s inclusion in that funding bill, then the package could only reach the floor under a procedural move known as suspension. Under suspension, however, the bill would need a two-thirds majority, which would be far more difficult to pull off given the bipartisan support for ending warrantless surveillance. In that scenario, the Freedom Caucus and the House Progressive Caucus, both of which support 702 reforms, could hold up the bill’s passage.

In addition, a government shutdown may be inevitable, based on recent leaks from inside the office of Speaker Mike Johnson (R-LA). A stopgap spending bill before an initial March 1 deadline is the best, and maybe the only, must-pass vehicle available into which the FISA 702 extension could be inserted. Without it, the program would be set to expire in April.

SO FAR, THE DEMOCRATIC LEADERSHIP HAS BEEN MOSTLY QUIET about the future of FISA reforms. Leadership offices wouldn’t comment on whether they’d push for a vote on the compromise bill, plus amendments.

This is despite the fact that Minority Leader Hakeem Jeffries (D-NY) and Minority Whip Katherine Clark (D-MA) have in the past voted in favor of amendments to close the backdoor search loopholes for Section 702 on three separate occasions, from 2014 through 2016.

There is equally some support for reform among individual members of Democratic leadership in the Senate, should the compromise bill and reforms get passed through the House. But the House is where the action is right now.

The support for 702 reform by both Democratic and Republican leadership in the past puts into focus the extent to which intelligence authorities and the White House are the ones pulling the strings to continue Section 702 unchanged at all costs.

One potential juggernaut in the FISA 702 fight over the next several weeks could be civil society groups core to the Democratic coalition, notably abortion groups.

Earlier this month, Sen. Ron Wyden sent a letter to the Federal Trade Commission, revealing that a data broker sold individual data to anti-abortion groups on patient visits to health clinics, which were used for targeted ads. This set off fears about the many ways that data could fall into the wrong hands, potentially even to state governments, through third-party brokers.

One reproductive rights group, the National Partnership for Women & Families, has explicitly endorsed legislation that would close the data broker loophole, one of the amendments that would be voted on in the 702 compromise bill. While other abortion rights groups have been quiet about the fight, they could put the White House in an awkward position over its stance on the data broker loophole.

Sunsetting 702 would halt backdoor searches of American citizens by way of stripping the government’s authority to submit new certifications to the Foreign Intelligence Service Court for surveillance on foreigners. However, the government would still hold onto citizens’ existing data in its possession, and even without 702 it would still be able to obtain data through the data broker loophole.

Should 702 expire—a once-unthinkable scenario—it would upend the political dynamic in Congress. It would potentially give reformers leverage, if they held out to force a floor vote on the compromise bill. However, it could also backfire. Intelligence authorities would dial up the threat of the country being vulnerable to terrorist attacks, which would put immense pressure on members of Congress to cave.