The FISA Fight and What it Means for Johnson’s Speakership
If House Speaker Mike Johnson can’t thread the needle on FISA, could it be the beginning of the end for his speakership?
Under a rapidly approaching April 19 deadline, the Republican controlled-House is taking another crack at a Foreign Intelligence Surveillance Act (FISA) reauthorization bill.
Section 702 of FISA, which was originally intended to permit the foreign surveillance of foreign persons overseas, is the specific provision of FISA set to expire in just over a week’s time. House Speaker Mike Johnson, under immense pressure from the right of his conference given Georgia’s Rep. Marjorie Taylor Greene already has a motion to vacate waiting in the hopper, will need to thread the needle between yet another divide between the House GOP to get this piece of legislation across the finish line.
FISA has come under increasing scrutiny from the right wing of the GOP conference as it was an integral player in the Russiagate hoax and the Biden administration’s investigations into Americans at the Capitol on January 6, 2021. Nevertheless, Section 702 still has its defenders among the House GOP ranks.
The dynamic at play across the conference is well encapsulated by the two House committees warring over what a FISA reauthorization bill might entail. The House Intelligence Committee, led by Rep. Mike Turner of Ohio wants few reforms if any and has the backing of the intelligence and national security agencies. Meanwhile, the House Judiciary Committee, headed by a different Ohioan, Rep. Jim Jordan, wants to seize the rare opportunity to reform FISA in its renewal.
The House Rules Committee is scheduled to mark up a version of Rep. Laurel Lee’s FISA reauthorization bill on Tuesday, where Rules Committee members hope to bridge the gap between Intelligence and Judiciary.
The Lee legislation would reauthorize FISA for several years in exchange for several reforms. Currently, Lee’s FISA reauthorization bill would require the Attorney General to elevate accuracy standards in new FISA applications. And those who go beyond the authorities granted in FISA to gather more intelligence information will meet new heightened penalties. The bill would also increase reporting and transparency requirements of federal law enforcement and intelligence agencies to Congress as part of Congress’s oversight authority.
“FISA is an indispensable tool that protects us from national security threats within the United States and abroad,” Lee said in a press release touting her legislation. “[The bill] will bring meaningful change to surveillance operations that protects us against adversarial threats in addition to safeguarding our civil liberties. This bill also increases transparency in surveillance applications and will hold government employees accountable who violate the authorities in FISA.”
On Johnson’s part, moving forward to consider Lee’s bill is a smart play. Lee is a member of the Judiciary, which placates the committee somewhat—it’s their bill with the best chance of passing. To get Turner and the Intelligence Committee, a provision, sought mainly by Rep. Warren Davidson, that would prohibit federal agencies from purchasing American’s information from private data companies has been scrapped from the legislation. In February, though the Speaker hinted he supported the Davidson provision, Lee’s bill failed to go anywhere because the House Intelligence Committee drew a red line on the issue.
“FISA is about surveillance of foreigners abroad—the issues of Americans’ privacy and data are unrelated to our spying on foreigners,” Turner said of the Davidson provision. “The parliamentarian has ruled that it was not germane to this issue. And individuals who try to make it related to FISA are just being disingenuous and untruthful,” the Intelligence Committee chair told POLITICO.
Davidson is predictably unhappy with this development, especially the Speaker. “It’s disappointing to watch Speaker Johnson, who was a strong defender of essentially the same bills.… When he was a member of the Judiciary Committee, now as speaker essentially has crossed all the way over to the intel point of view,” Davidson told POLITICO.
The Rules Committee, however, is expected to make some tweaks to the legislation. At the beginning of the 118th Congress, conservatives negotiated substantial representation on the Rules Committee with former Rep. Kevin McCarthy in exchange for the speakership. The conservatives appointed to the Rules Committee include Reps. Chip Roy, Thomas Massie, and Ralph Norman, with Roy and Massie repeatedly vocalizing their support for strong FISA reforms.
Therefore, Rules is set to consider an amendment proposed by Judiciary to require national security agencies to obtain a warrant for obtaining information on U.S. persons involved in activities the government is surveilling. The push has mainly come from the Judiciary Committee with bipartisan support—Jordan and Ranking Member Jerry Nadler have worked together for the inclusion of warrant requirements. Both the Judiciary and Intelligence Committees are reportedly in favor of this amendment and will vote for its inclusion. Other curious bipartisan efforts have cropped up around the issue of FISA warrants—Davidson has been pushing for warrant requirements with progressive Rep. Zoe Lofgren on Capitol Hill.
“There is a strong bipartisan coalition advocating for privacy protections,” Davidson told The American Conservative in an email. “These privacy provisions for American citizens should be included if FISA is allowed to continue.”
Turner has used the aforementioned bipartisan efforts in an attempt to undermine the addition of warrants. “This is not a ‘conservative’ issue,” Turner told POLITICO. Referring to the Davidson-Lofgren partnership specifically, Turner called it a “left-wing bill.”
How this dynamic might impact the final vote tally remains to be seen. Obviously, if Turner has his way, he’d like to see the amendment, and if need be the bill, fail.
“They will lose because the only way that you would vote for a warrant to spy on foreigners abroad is if you are confused and believe false rhetoric,” Turner told POLITICO, though that’s not what the amendment would do. Turner also told Politico that any suggestion of FISA has been used to target Americans is “false,” which is demonstrably untrue as FISA has been abused to spy on thousands of Americans.
“Representative Turner is well aware of the fact that FISA section 702 is used to spy on American citizens,” Davidson told TAC. “According to their own reporting, the FBI searched for 119,383 unique query terms associated with U.S. persons. In fact, Darin LaHood, a member of HPSCI, was subject to an illegal search in 2020.”
Hardly anyone, even supporters of clean FISA reauthorization on Capitol Hill, believe this to be true beyond Turner. Nevertheless, he persisted: such proposals “significantly destroys our ability to keep America safe,” Turner claimed.
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Though Turner’s position is fringe on Capitol Hill, he has a number of allies on the right and left trying to sink some of Judiciary’s proposals. Intel-community friendly representatives on the right are appealing to former CIA Director and Secretary of State Mike Pompeo to apply pressure, along with former Director of National Intelligence John Ratcliffe. Meanwhile, security hawks in the Democratic ranks are working closely with the Biden administration to prevent the warrant provision. Administration officials from the CIA, FBI, and other agencies are scheduled to brief House members on FISA Wednesday.
Some conservatives are suggesting Turner’s effort has already been successful, though there hasn’t been a vote yet. “Turner fully sabotaged everything, so he must feel pretty happy,” Davidson claimed.
If Turner’s effort to kill the proposed FISA reforms succeeds, the options left on the table for Johnson might lead to the end of his tenure as Speaker of the House. Johnson could either let FISA expire, which is highly unlikely, or bring a clean FISA reauthorization to the floor under suspension of the rules. Bringing a clean FISA reauthorization would likely pass, but conservatives like Davidson who are upset with the Speaker’s handling of FISA renewal might tell Greene it’s time to take the motion to vacate out of the hopper.
