Looming deadline to extend warrantless surveillance powers sparks congressional scramble

Lawmakers staring down an end-of-the-year deadline to reauthorize the nation’s warrantless spy powers are grappling with a dizzying number of options for how to tackle needed reforms as well as a chorus of complaints about how to proceed.

Congress is weighing everything from a Senate bill that would enact significant reforms to a short-term extension that would simply buy leaders more time as they weigh how to contend with Section 702 of the Foreign Intelligence Surveillance Act (FISA).

The powerful spy tool allows the government to conduct warrantless surveillance of foreigners located abroad, but Americans who communicate with those individuals are swept up in the process. It’s a dynamic all agree needs reform even as there’s little agreement about how to do so. 

Leadership is currently coalescing around a plan to do a short-term extension of Section 702 — something House Intelligence ranking member Jim Himes (D-Conn.) earlier this month called a “Plan B” to a full reauthorization.

And whether they do a short-term bill or a full reauthorization that several committees are vying to dictate, leaders are eyeing doing so through the must-pass defense policy bill, the National Defense Authorization Act (NDAA), a move that on its own is generating plenty of pushback as many would prefer to handle the reauthorization as a stand-alone bill.

“A temporary extension would be entirely unnecessary, and it would be an inexcusable violation of the public’s trust to quietly greenlight an authority that has been flagrantly abused,” more than 50 lawmakers wrote Wednesday in a bipartisan letter spearheaded by Reps. Warren Davidson (R-Ohio) and Zoe Lofgren (D-Calif.) that chided Congress for failing to address an issue they’ve studied all year.

“Since January, Congress has thoroughly examined the question of whether and how to reauthorize Section 702 through multiple hearings and briefings,” they added, saying the law has never been reviewed “over such a long period.”

The NDAA plan comes as several lawmakers have been scrambling to wrap up their own bills, with two proposals out in the Senate, and the House Intelligence Committee finalizing their own bill as FISA critic and House Judiciary Chair Jim Jordan (R-Ohio) said he would hold an early-December markup in his panel.

“It should be a stand-alone bill. This is important,” Jordan said in response to a question from The Hill.

“There are 278,000 reasons why we need to have a stand-alone bill with the right kind of reforms,” he said, referencing a FISA court opinion unsealed in May written in 2022 that found the FBI improperly searched the Section 702 database that many times.

The stand-alone bills percolating in Congress range from a proposal backed by privacy rights groups and led by Sen. Ron Wyden (D-Ore.) that would enact a warrant requirement before authorities could review information collected on Americans to a proposal from Senate Intelligence leaders that would extend the surveillance powers for another dozen years. 

The bill proposed by Wyden and co-sponsor Sen. Mike Lee (R-Utah) has the most substantial reforms, something the Oregon lawmaker says is a reflection of “a group that really understands the need to fight the terrorists ferociously and do it in a way that doesn’t throw our liberties in the garbage can.”

Meanwhile, the bill from Senate Intelligence Committee Chair Mark Warner (D-Va.) and top committee Republican Marco Rubio (Fla.) includes numerous reforms including the creation of compliance officers at agencies with access to FISA. But it stops short of a warrant requirement — something the White House and intelligence community have called a red line.

In the House, the Intelligence Committee is organizing their own soon-to-be-released proposal that would include reforms, like a provision in the Senate Intelligence bill that would limit FISA 702 searches performed to find evidence of a crime — a small subset of overall 702 searches.

But it’s not clear the bill will go as far as the House Judiciary Committee might like.

“You’ve got disagreement, even among Republicans. You have strong policy disagreement between the Intelligence Committee Republicans and Judiciary Republicans. And then there’s always been a split among Democrats. It’s a tough, tough nut to crack,” one Democratic lawmaker said of the battle to renew Section 702.

And a report by the Intelligence panel also mulls using Section 702 in an immigration context — something alarming to privacy activists who say those applying for immigration benefits should not be subject to a search of their communications under the guise of a law designed to combat terrorism.

“The intent for 702 is for [addressing] terrorism, and immigration isn’t terrorism,” Lofgren told The Hill. 

It also veers into another area outside the scope of Section 702, targeting the Section 701 searches that were used to secure a warrant to surveil Trump campaign aide Carter Page.

“I think our package is comprehensive and addresses the issues that people have had concerns with in terms of holding the FBI accountable, criminalizing behavior that’s gone on in the FBI. That’s never been done before. And I would also say adding a provision in there that appoints counsel for queries, I think is important. So I think our bill sufficiently addresses what people’s concerns are,” Rep. Darin LaHood (R-Ill.) said.

But with fault lines on Section 702 seldom falling along party lines, the Page-inspired provisions in the House Intelligence package may not be enough to secure skeptical Republicans.

“The important thing to really get out there is that a lot of the abuses that happened in the past, particularly that happened to President Trump would not or would be incredibly difficult to happen [again] if these reforms get into place,” Rep. Mike Waltz (R-Fla.) told The Hill. 

“Right now, we’ve just had a real education session going on,” he said of outreach with other members.

Jordan, who could unveil his own text as soon as this week, is also focused on broader FISA reforms along with that of Section 702, something that would include “some kind of warrant requirement” for reviewing information collected on Americans.

But with a policy clash in sight, the method for extending the powers could just as easily take center stage in the battle, with those like Sen. Rand Paul (R-Ky.) warning any effort to combine it with other legislation just means “we never have the debate.”

But Intelligence Committee lawmakers are largely unconcerned about the vehicle, so long as the law gets renewed before Dec. 31. 

“I want to see a move as fast as possible because I don’t want there to be any risk of it not passing before it lapses at the end of the year,” said Rep. Jason Crow (D-Colo.), a House Intelligence Committee member.

“So there’s multiple ways of getting that done. And it could be under the NDAA; it can be done separately, but we just need to get it done.”