On December 5, Speaker Mike Johnson decided he would not attach to the must-pass defense budget bill a temporary extension of the critical counterterrorism surveillance program known as Section 702, which will expire at the end of the month without congressional action.
That decision lasted one day. On December 6, Johnson agreed to use the defense bill to extend Section 702 through April 19 while a deeply divided Congress continues debating potential reforms to the program.
Johnson’s amateurish zig-zagging betrays his tenuous position, caught between Republicans who care about national security and Republicans who pretend to care about border security.
In the latter camp are so-called “America First” Republicans such as Representatives Jim Jordan, Andy Biggs, and Marjorie Taylor Greene. They are stoking hysteria over immigration and accusing President Joe Biden and Homeland Security Secretary Alejandro Mayorkas of failing to secure the border. Yet these same right-wingers, motivated by conspiratorial hatred of the so-called “Deep State,” are trying to gut Section 702, which would make our borders far less secure and leave America far more vulnerable to terrorist attacks.
Jordan leads the House Judiciary Committee, which just advanced legislation that would nominally reauthorize Section 702, but with changes that would throttle its effectiveness. Soon, the House Intelligence Committee is expected to pass competing legislation with milder reforms that would preserve its core functions.
For now, Johnson may have sided with his party’s more responsible and less hypocritical faction. But whether he is prepared to sideline legislation that would weaken Section 702 is unclear.
Why is Section 702, part of the Foreign Intelligence Surveillance Act, so important? The program allows U.S. government intelligence agencies to conduct warrantless surveillance targeting foreign suspects. While Americans cannot be targeted, phone and email communications between foreigners abroad and Americans can be intercepted, albeit with strict rules minimizing the retention and dissemination of any information collected on Americans.
As I explained for the Monthly back in March, Section 702 works. The origin of the program may be unseemly—congressional legislation retroactively legitimizing what was legally dubious warrantless wiretapping by the George W. Bush administration in the immediate aftermath of the Sept. 11 attacks. But it’s legal now, and it saves lives.
A 2013 Obama-era assessment from the President’s Review Group on Intelligence and Communications Technologies found that “section 702 contributed in some degree to the success of” 53 of 54 counterterrorism investigations by the National Security Agency. In 2014, the federal government’s Privacy and Civil Liberties Oversight Board found that the program contributed to “well over one hundred arrests on terrorism-related offenses.”
More recently, a July report from the President’s Intelligence Advisory Board concluded that Section 702 helps with “locating prominent international terrorists; identifying threats to U.S. troops; and enabling the seizure of numerous fentanyl pills, powder, precursor chemicals, and production equipment.” The intelligence that informs the famous President’s Daily Brief heavily relies on Section 702. Last year, “59% of PDB articles contained Section 702 information reported by the NSA.” The report concluded that Section 702 data “is likely to inform every substantial national security decision our leaders make, now and in the future.”
Despite the essential nature of the program, reauthorization before the end-of-year deadline is being held up largely because of a divide with the House Republican Conference, fueled by conspiratorial acolytes of Donald Trump who view the FBI as a sinister “Deep State” operation.
Along with left-leaning civil libertarians, Republican critics of Section 702 have sensationalized examples of FBI compliance errors to paint a false picture of an out-of-control security apparatus. As I wrote in March, “We know about the FBI’s compliance problems because of the oversight reports from intelligence and law enforcement agencies. These reports did not charge the FBI with nefarious intent but with ‘misunderstanding the querying rules’” when American subjects are involved. And last month, Preston Marquis and Benjamin Wittes of Lawfare argued that “a warrant requirement is … non-responsive to the compliance issues that have arisen—responding mostly to imagined civil liberties issues that have not arisen.”
On the Senate side, a bipartisan reauthorization bill introduced by Intelligence Committee Chair Mark Warner and ranking member Marco Rubio and backed by Judiciary Committee ranking member Lindsey Graham would prevent FBI queries of Section 702 solely about criminal activity (which only comprise a small number of searches) but—in line with the Biden administration’s view—would not add any requirements to obtain warrants. A competing bill in the Senate, spearheaded by Oregon Democrat Ron Wyden, requires warrants before querying Section 702 data. It is also bipartisan but only has 10 sponsors and no relevant committee chairs.
As is often the case, division in the House is starker and more consequential. Intelligence Committee Chair Mike Turner has a bill similar to Warner-Rubio, which is expected to clear his committee this week. Like Wyden, House Judiciary Committee Chair Jim Jordan wants a broad warrant requirement, and his committee approved his bill on Wednesday.
Speaker Johnson, feebly, is refusing to decide between the two approaches. According to Politico, on Tuesday, Johnson proposed to conference members to have both bills, as amendments to another bill, compete on the House floor in what’s known as a “King of the Hill” procedure, in which a series of votes on amendments is taken and the last one to get a majority wins.
Johnson’s apparent Tuesday decision to keep Section 702 out of the defense bill was praised on X by Representative Andy Biggs, who is cosponsoring legislation with Jordan to impose warrant requirements. “FISA 702 must appear in standalone legislation subject to open debate and amendment. We can’t be rubberstamping controversial spying authorities,” cheered Biggs. (Of course, a temporary extension with amendments blessed by Biggs’s crew would likely run into problems in the Senate, leading to an expiration of the program.)
Why did Johnson reverse himself so quickly on passing stopgap legislation, risking the ire of hardliners like Biggs? Maybe it’s because of Tuesday’s Senate testimony by FBI director Christopher Wray, who said, “702 is key to our ability to detect a foreign terrorist organization overseas directing an operative here to carry out an attack in our own backyard, and U.S.-person queries, in particular, may provide the critical link that allows us to identify the intended target or build out the network of attackers so we can stop them before they strike and kill Americans.” During questioning, he shared that after the October 7 attack on Israel by Hamas, “you’ve seen a veritable rogues gallery of foreign terrorist organizations calling for attacks against us,” and “the threat level has gone to a whole other level since October 7.”
That can focus the mind.
But Greene was livid at Johnson for his flip-flop, ranting on X that the defense bill is “OUTRAGEOUS” and “a total sell-out of conservative principles” and “a huge win for Democrats.” This is the same person who has repeatedly called for Mayorkas’s impeachment and recently deemed an influx of Chinese migrant workers as an ”INVASION!”
Her ideological kin Biggs recently posted on X, “A nation that cannot control its borders is not a nation”—a common refrain from opponents of immigration.
But a nation that cannot act on intelligence to prevent terrorist attacks is not in control of its borders. And the possibility of a terrorist attack is far more terrifying than that of migrants offering their sweat and toil to America’s tight labor market.
If conservatives care about securing the border and not just about scapegoating immigrants, then they will pass a temporary extension of Section 702, followed by a long-term extension that rejects new warrant requirements.
