As the House considers a bill to reauthorize the Foreign Intelligence Surveillance Act [FISA], a bipartisan group has an amendment to “prohibit warrantless searches of U.S. person communications” of the data collected by the FISA program.
Before concluding the policy sounds reasonable, consider that the Republican co-sponsors of the amendment are some of the most unreasonable members of the far-right House Freedom Caucus: Jim Jordan, Andy Biggs, and Warren Davidson.
These aren’t folks with a long-held interest in personal privacy rights. They are wedded to Donald Trump’s self-serving conspiracy theories that the “Deep State” undermined his presidency and President Joe Biden has “weaponized” the Justice Department and the FBI to violate the rights of his supporters.
Just after midnight yesterday, Trump posted on Truth Social: “KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!! DJT”
Several hours later, Jordan posted on X, “We want to make it harder for Joe Biden’s intel community to search for American citizens. The same intel officials who spied on President Trump … How do we do that? Get a warrant. #FISA.”
To convince Trump and his voters that they are battling the Deep State, Jordan and his ilk are prepared to punish the FBI, even if that means hampering the agency’s ability to disrupt terrorist attacks.
So why are three progressive House members—Pramila Jayapal, Jerrold Nadler, and Zoe Lofgren—partnering with Jordan, Biggs, and Davidson and validating their ludicrous narrative?
Jayapal didn’t sound much different than Jordan earlier this week, on X, when she criticized Speaker Mike Johnson for moving forward with FISA reauthorization legislation: “This is so disappointing—when Speaker Johnson was on the Judiciary Committee with me, he was in our coalition fighting for major FISA reforms to protect sensitive data. Now that he’s Speaker, he’s folding to spy agencies who want to violate your privacy.”
Nadler was more nuanced in a statement made to the House Judiciary Committee last year. He acknowledged that past FBI violations when searching the FISA database, according to the Foreign Intelligence Surveillance Court, were “not malicious or intentional, but rather the product of a lack of training and difficult-to-use technology.” He added, “We should be gratified that the rate of these incidents appears to have dropped dramatically in the past year.”
Implicitly criticizing the Freedom Caucus conspiracy theorists, Nadler said, “I would caution my colleagues against using the federal government as a bogeyman to prove some political point.”
Yet Nadler was unwilling to update his position on FISA’s warrantless surveillance and distance himself from those who continue to use the federal government as a bogeyman based on new evidence.
Of course, “warrantless surveillance” sounds bad. But, as I argued in a column last year, in the context of the FISA “Section 702” program, it’s not.
The program tracks phone and email communications by foreign terrorist suspects, though the communications are sometimes with Americans. Back in 2014, the federal government’s Privacy and Civil Liberties Oversight Board found that “the vast majority of … efforts undertaken with the support of Section 702 appear to have begun with narrowly focused surveillance of a specific individual whom the government had a reasonable basis to believe was involved with terrorist activities, leading to the discovery of a specific plot, after which a short, intensive period of further investigation ensued, leading to the identification of confederates and arrests of the plotters. A rough count of these cases identifies well over one hundred arrests on terrorism-related offenses.”
The board also addressed whether the results could have been replicated with warrants: “In some instances, that might be the case. But the process of obtaining court approval for the surveillance under the standards of traditional FISA may … limit the number of people the government can feasibly target and increase the delay before surveillance on a target begins, such that significant communications could be missed.”
Has the program gone rogue since, requiring Congress to impose stricter rules? No. According to a 2023 audit by the Office of the Director of National Intelligence, the number of queries of Americans dropped by 96 percent from 2021 to 2022 following reforms implemented by the FBI.
The FBI can make Section 702 database queries about domestic crimes unrelated to foreign intelligence or national security, but only with a FISA court order. The audit found that in 2021, a search was wrongfully conducted without obtaining the order five times. In 2022, that happened only once. This is not a rogue program trampling on the civil liberties of American citizens.
That’s why Speaker Johnson, to his credit, has flipped on FISA. The program works. He doesn’t want to undermine it and then be held responsible for a subsequent terrorist attack. Progressive Democrats shouldn’t either.
The FISA Section 702 program expires without reauthorization on April 19 (though the news site NOTUS reports that “U.S. officials may be able to continue to run the program for months after the deadline [because the] program is certified annually by a special court—and intelligence officials sought another annual certification before the expiration date.”)
On Wednesday, Johnson’s attempt to pass his preferred FISA legislation failed with 19 far-right Republicans joining Democrats to tank on “the rule,” a procedural vote that typically precedes floor consideration of legislation. The House version of the FISA bill contains some reforms but not the warrant requirement. According to Politico, “Johnson had warned as part of his pitch to his unruly conference that, if they fell short yet again, the Senate would likely try to jam them with an extension of the spy power that made no changes to prevent attempted overreach.”
Johnson could bring a Senate-passed FISA bill directly to the floor by suspending the rules, which then puts a two-thirds threshold on passage of the bill, effectively requiring broad bipartisan support. (Because of opposition by far-right Republicans on rule votes, suspending the rules is how every bill that has reached Biden’s desk has passed the House since May 2023.) In that scenario, Democrats should wholeheartedly support the bill and forcefully reject any suggestion that the privacy of regular Americans needs protection from out-of-control federal agencies. Leave the conspiracies to Trump and keep America safe.
