Speaker Mike Johnson, R.-La., is forging ahead with his latest proposal to renew a key American spy power. His bill, revealed Thursday, is largely unchanged from a previous plan which failed in a series of overnight votes earlier this month.
The program at center of the debate, Section 702 of the Foreign Intelligence Surveillance Act (FISA), is set to expire on April 30.
FISA 702 allows U.S. intelligence agencies to intercept the electronic communications of foreign nationals located outside of the United States. Some of the nearly 350,000 foreign targets whose communications are collected under the provision are in touch with Americans, whose calls, texts and emails could end up in the trove of information available to the federal government for review.
For almost two decades, privacy-minded lawmakers from both parties have sought to require specific court approval before federal law enforcement can conduct a targeted review of an American's information gathered through the program. The lack of any such warrant requirement helped sink an effort last week to extend the program for 18 months, as well as a separate vote on a five-year renewal.
Trump officials, like those in past administrations, have argued that such a warrant requirement would overburden law enforcement and endanger national security. Johnson's latest proposal would reauthorize the program for three years, but does not include a warrant requirement. Instead, the bill calls for the FBI to submit monthly explanations for reviews of Americans' information to an oversight official as well as criminal penalties for willful abuse, among other tweaks.
"I am willing to risk the giving up of my Rights and Privileges as a Citizen for our Great Military and Country," the president wrote on Truth Social last week, advocating for the program to be extended without changes. "I have spoken with many in our Military who say FISA is necessary in order to protect our Troops overseas, as well as our people here at home, from the threat of Foreign Terror Attacks. It has already prevented MANY such Attacks, and it is very important that it remain in full force and effect."
Glenn Gerstell, who served as general counsel at the National Security Agency during the Obama and first Trump administration, says Johnson's reforms look like an attempt to find a middle ground.
"There's not a lot of really substantive changes to the statute, but some gestures are made to people who are worried about privacy and civil liberties," Gerstell said. "It seems like a pretty reasonable compromise that is going to be satisfactory to the national security agencies and yet at the same time represents some gesture to the privacy advocates."
"This is not a reform bill and it's not a compromise," Elizabeth Goitein, a privacy advocate and senior director of the Liberty and National Security Program at the Brennan Center for Justice at New York University, wrote on X. "It's a straight reauthorization with eight pages of words that serve no serious purpose other than to try to convince members that it's NOT a straight reauthorization."
A bipartisan reform deal is still out of reach
Connecticut Rep. Jim Himes, the top Democrat on the House Intelligence committee, told NPR on Wednesday, before the release of Johnson's new proposal, that lawmakers were working on a bipartisan solution. He said House Minority Leader Hakeem Jeffries, D-N.Y., was in touch with Johnson on the issue.
"There's a lot of work being done here," Himes said. "We're sort of working out a process that will be inclusive rather than exclusive." Himes said he was negotiating with Rep. Jamie Raskin, a Maryland Democrat and constitutional law scholar, on a reform proposal they hoped could preserve and reform the program — reauthorizing it with bipartisan support.
But Johnson's new bill appears to fall short of the inclusive approach Himes hoped for.
NPR obtained a memo written by Raskin to his colleagues urging them to oppose the bill, which he said "continues the disastrous policy of trusting the FBI to self-police and self-report its abuses of Section 702 and backdoor searches of Americans' data."
"FBI agents can still collect, search, and review Americans' communications without any review from a judge," Raskin wrote.
FBI agents must receive annual training on FISA and are generally barred from searching for information about people in the U.S. if the goal of the search is to investigate general criminal activity, rather than find foreign intelligence information, and those searches need approval from a supervisor or an attorney.
Republican hardliners — who sunk Johnson's last reauthorization attempt — also don't all appear to be on board for Johnson's latest revision. Rep. Scott Perry of Pennsylvania, a past chair of the Freedom Caucus, said "we're not there yet" in a video he shared to X on Thursday.
"I didn't take an oath to defend FISA, I didn't take an oath to defend the intelligence community," Perry said. "We can't have them spying on American citizens and, when they do, there has to be accountability and I haven't seen any that I'm satisfied with yet."
The House Rules committee meets Monday morning, the first step toward advancing the renewal bill toward a vote.
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