On Capitol Hill, a crucial bill to reauthorize a spy program that is deemed essential for U.S. national security is currently in a state of uncertainty.
House Republicans dealt Speaker Mike Johnson another blow on Wednesday by blocking an attempt to move forward with reforming and renewing parts of the Foreign Intelligence Surveillance Act.
Johnson and the GOP caucus held a private meeting following the unsuccessful procedural vote. However, disagreements persisted, leaving the future of FISA uncertain.
The House plans to vote on a revised plan on Friday morning.
Let’s delve into the details of the surveillance measure.
What is FISA?
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The federal law outlines regulations and protocols for collecting foreign intelligence using various methods such as electronic surveillance, physical searches, and pen registers. It also created two important entities, the U.S. Foreign Intelligence Surveillance Court (FISC) and the U.S. Foreign Intelligence Surveillance Court of Review.
The Intelligence Oversight Act of 1978 was enacted following the revelation of various intelligence controversies, such as the Watergate scandal and the surveillance of American dissidents, including anti-war protesters and Martin Luther King Jr.
The Constitution has undergone multiple amendments since then, with the most recent changes made in response to the terrorist attacks of September 11, 2001.
What is Section 702?
The focus of the FISA debate on Capitol Hill revolves mainly around Section 702. This provision grants the U.S. government the authority to gather electronic communications of individuals who are not American citizens and are situated outside the country, all without needing a warrant.
However, this approach can sometimes lead to the gathering of information on American citizens who have been in communication with the individuals under surveillance. As a result, this practice has become highly controversial.
Critics of the program, including civil liberties groups like the ACLU, argue that accessing the data of American citizens should require a warrant. In addition, certain lawmakers are against renewing the program unless it includes an amendment mandating a warrant or implementing other measures to safeguard the privacy of Americans.
Intelligence officials have issued a warning, stating that if a warrant amendment were to be implemented, it would severely impact a program that is crucial for counterterrorism efforts.
FBI Director Christopher Wray expressed concerns about the potential consequences of Congress implementing such a requirement, stating that it would effectively “limit our access to valuable intelligence.”
Time is running out for Congress to reach a resolution, as the expiration date for Section 702 looms on April 19.
Jake Sullivan, the national security adviser, emphasized the importance of retaining 702, stating that its loss would result in a significant loss of valuable information necessary to identify and counter threats that the American people rely on the government to address.
According to him, the range of threats includes terrorist threats to the homeland, the supply chains of fentanyl that bring dangerous drugs into American communities, the recruitment of spies by hostile governments within our borders, transnational repression by authoritarian regimes, infiltrations into our critical infrastructure, attempts by adversaries to acquire sensitive dual-use and military commodities and technology, ransomware attacks targeting major American companies and nonprofits, Russian war crimes, and other similar challenges.
When has FISA been used?
In August 2022, a U.S. drone strike successfully eliminated Ayman al-Zawahiri, the al-Qaeda leader who played a crucial role in coordinating the September 11 attacks as Osama bin Laden’s deputy. This significant operation was made possible through the utilization of Section 702.
According to the Office of the Director of National Intelligence, Section 702 played a crucial role in the successful operation that resulted in the location and elimination of ISIS commander Hajji Iman by U.S. Special Operations Forces in 2016.
According to the agency, it has also been utilized in assisting the government in gaining valuable information about the smuggling of fentanyl and other illicit drugs into the United States. Additionally, it has proven effective in countering ransomware attacks on critical U.S. infrastructure.
Former President Donald Trump, along with some of his conservative allies in Congress, has expressed strong criticism of FISA following the surveillance conducted against Carter Page, a former adviser to his 2016 presidential campaign. Trump’s recent call for lawmakers to “KILL FISA” has likely played a role in its subsequent demise earlier this week.
The Justice Department acknowledged that there were mistakes in the FISA applications used to conduct surveillance on Page. However, it is important to note that these errors were not related to Section 702, but rather to another provision of the law.