House intel mulls ‘Plan B’ of short-term 702 renewal amid looming FISA deadline

House Intelligence Committee lawmakers tasked with shepherding a bill to reauthorize the government’s warrantless spy powers are considering pushing a short-term extension of the law, saying they need a “Plan B” approach given the looming end-of-year deadline.

Section 702 of the Foreign Intelligence Surveillance Act (FISA) is set to expire at the end of the year, and with it the intelligence community’s power to spy on foreigners located abroad without securing a warrant.

“We are seriously contemplating a ‘Plan B,’” Rep. Jim Himes (D-Conn.), the top Democrat on the committee, told The Hill. 

While he said he’s “confident” Congress can craft a Section 702 package that secures enough votes to pass, he’s worried about broader House dynamics.

“We’ve just seen so much chaos on the floor. Even in the best of times, obviously 702 is a heavy lift. Pretty much all of the Plan Bs involve a temporary extension because we just – we cannot allow this authority to expire,” he added.

“My hope is, and my belief is, that we could get a comprehensive bill passed but again, I don’t trust the stability of this place.”

The committee has otherwise been in a race to get the bill reauthorized before the end of the year, with members meeting with a suite of different caucuses on the Hill as members of the intelligence community likewise make the rounds.

But the consideration of a Plan B — confirmed by two lawmakers — shows the challenge to do so with just two months left. 

A spokesperson for Intelligence Committee Chair Mike Turner (R-Ohio) stressed a timely reauthorization is the goal, rather than any kind of limited extension.

“That is not the position of the committee,” Jeff Naft, spokesperson for the House Intelligence Committee, said of pursuing a short-term option.

Turner and Himes later issued a joint statement stressing the need to get the bill passed this year.

“The Chairman and Ranking Member are in complete agreement that reauthorizing FISA 702 before the end of the year remains a top priority for the committee,” the two said through their spokespeople.

But lawmakers noted the Speaker’s race ate up time, compounding problems stemming from divisions over the law.

“It’s just that there doesn’t seem to be [a] reauthorization that people have coalesced around where the committee is convinced that on the floor, it could pass. And so as the deadline approaches, you need a backup plan to keep 702 going for a little bit to give a little more time for the full 702 reauthorization,” one Democratic lawmaker familiar with the discussions told The Hill.  

The Biden administration and intelligence community have been lobbying hard for reauthorization of the law, something they see as one of their foremost spy tools for keeping Americans safe.

But critics see the powers as a way to conduct backdoor searches of Americans, whose communications with those overseas are swept up by intelligence agencies monitoring foreign targets.

And FBI misuse of the ability to “query” results on Americans have prompted skepticism of the agency, even as they’ve rolled out reforms that have dramatically curbed the number of Americans whose information is collected.

In Congress, reauthorization doesn’t follow traditional fault lines, with Republicans warning of government overreach from agencies some have claimed are wrongly targeting conservatives. Meanwhile some Democrats warn Black and brown communities are the most likely to be swept up by the program, violating constitutional protections against unreasonable searches and seizures. 

“We definitely weren’t counting on a Speaker race and no Speaker for three weeks. So yeah, there’s definitely been a time element to it. But part of it is the dynamics of this have changed so much over the last five years,” the Democratic lawmaker said.

“Republicans are still very upset about the FBI and Donald Trump. There are a lot of Democrats that have been skeptical of surveillance generally for a long time. And when you combine all that, [it] makes it tough,” they said.

Himes said he’s hoping Congress would be able to pass some kind of short-term extension similar to the continuing resolutions (CR) used to extend government funding and avoid a government shutdown as Congress deliberates over the budget.

“If we can’t pass a comprehensive bill, I’d like to see a CR-like extension, that is to say some period of time with a few of the reforms that are just fairly obvious. And those could range from, some of the reforms that the FBI has already instituted, codifying those reforms to an array of others,” he said.

The FBI now requires agents to “opt in” to searching the 702 database and also requires attorney approval when running a batch of more than 100 queries.

While those reforms are broadly popular, many lawmakers have pushed for more aggressive restrictions in how the power can be used.

And some have suggested intelligence agencies should have to get some form of surveillance court authorization — perhaps even a warrant — to review any data collected on Americans.

The executive branch has vocally opposed such a reform, arguing it would waste time and stop the intelligence community from acting on information they need access to immediately.

The National Security Council called the idea “operationally unworkable and [one that] would blind us to information already in our holdings that, often, must be acted upon in a time-sensitive way.”

Himes said he’s confident the committee can work to secure the necessary 218 votes to get FISA Section 702 reauthorized.

“I actually am confident that we can get to a package of reforms that will get to 218. I’m confident about that,” he said.

“What I’m not confident about is process and stability. I mean, coming after these last four weeks, how could you be? … So we are thinking about a Plan B.”

This story was updated at 1:59 p.m.