Congress braces for head-to-head clash on warrantless surveillance reform bills

The House GOP’s Judiciary and Intelligence Committee chairs are preparing for a head-to-head debate over whose bill will reform the government’s warrantless surveillance powers as Speaker Mike Johnson (R-La.) committed to have both proposals weighed on the House floor.

The chairs of each panel are set to pitch the House GOP conference on their competing proposals, an unusual session that comes after leaders on both panels pulled no punches in critiquing one another’s legislation.

The battle has also ignited an intense lobbying effort from the White House and the intelligence community, which has worked behind the scenes to issue its own warnings about the Judiciary bill they see as unwinding their most powerful foreign spy tool.

The eleventh-hour push to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA) has prompted numerous proposed reforms to a law that allows the government to spy on foreigners located abroad. While it may only be used to target noncitizens, lawmakers are aiming to change aspects that sweep up information of Americans who communicate with those being surveilled.

The conference debate is pitting two Ohio Republicans against each other — House Judiciary Chair Jim Jordan and House Intelligence Chair Mike Turner — while also dividing Democrats, splitting both parties into camps of those more inclined to require a warrant to review information collected on Americans and those who see reforms to the FBI as a way to address past abuse. 

Jordan has characterized his committee’s bill as reigning in searches that could violate constitutional protections, requiring law enforcement to get a warrant before reviewing information they’ve already gathered on Americans. It’s an approach that’s won over numerous Democrats and secured the backing of privacy and civil rights organizations.

But that’s setting off alarm bells from the Intelligence Committee, where Turner on Monday briefed Republican legislative directors on the proposals, making the case to top policy aides ahead of his colleagues.

The fear is that the warrant requirement in the Judiciary bill effectively guts Section 702, delaying law enforcement from accessing information they’ve already collected and may need to access in real time.

Among the handouts distributed is one summarizing feedback from law enforcement that casts the Judiciary bill as “Pro-Criminal. Anti-American. Anti-Police. Unconstitutional.”

“It fundamentally handcuffs domestic law enforcement in their mission to protect the homeland and American lives,” the summary states, adding that it’s “no surprise” given its backing from many Democrats.

And a side-by-side of the two bills prepared by the Intel panel labels the Judiciary bill as “Blinding State and Local Law Enforcement” and “Cutting-off Foreign Intelligence.”

Turner’s pitch to GOP colleagues on his own bill is more focused on the ways it’s directed at the FBI, limiting the staff that can approve a “query” of the 702 database for information relating to Americans and requiring an audit of all searches within 180 days.

It also makes significant reforms to Section 701 of FISA, which requires a warrant for spying on Americans. Intel believes their tweaks would block another Carter Page incident of surveilling a campaign associate without sufficient evidence. 

House Democrats, meanwhile, will hear Monday night from Director of National Intelligence Avril Haines and a slew of other intelligence community officials who are cautioning that the Judiciary proposal would limit surveillance of terrorism suspects and bar the use of 702-gathered evidence for cases dealing with human trafficking and child pornography.

They’re pointing to a section of the House Judiciary proposal that would remove from the law the ability to use Section 702 information to initiate prosecutions for child pornography and human trafficking if discovered through the tool.

“The bill dials back the already limited set of serious crimes for which Section 702 can be used as evidence,” a source familiar with the briefing said.

They also pointed to another provision of the bill that limits the use of 702 for targets that enter the U.S., fearing it will block surveillance of targets who then leave the country.

“The bill affords foreign terrorists and spies the same rights as Americans. The bill would extend the same protections related to querying afforded to U.S. persons to foreign spies and terrorists who may have previously been in the United States, but who are not U.S. persons. This is contrary to fundamental principles of decades of surveillance law,” the source said ahead of the briefing.

The Judiciary Committee has been more circumspect in its critique of the Intel bill, instead highlighting the strange bedfellows that have united around its legislation. 

Materials circulated by the panel showcase both parties’ main sponsors, aligning lawmakers such as Rep. Andy Biggs (R-Ariz.) with Congressional Progressive Caucus Chair Pramila Jayapal (D-Wash.) as well as groups including the American Civil Liberties Union and Demand Progress with the Koch brothers-funded Americans For Prosperity.

But allies in the privacy space have taken direct shots at the Intel package, which they see as a “fake reforms bill” that dramatically expands Section 702 authority.

An email from Demand Progress deemed Intel’s legislation a “Trojan horse” that would do little to address wrongful uses of 702 searches just by limiting who can conduct them.

The group also knocks portions of the bill that gives lawmakers greater insight into searches relating to them as “special privacy protections exclusively for members of Congress.” 

But many also see it as an expansion of surveillance powers rather than a reform bill. 

“Through a seemingly innocuous change to the definition of ‘electronic service communications provider,’ the bill vastly expands the universe of U.S. businesses that can be conscripted to aid the government in conducting surveillance,” Elizabeth Goitein, senior director of the Brennan Center for Justice national security program, wrote on X, the platform formerly known as Twitter.

The intent behind the provision matters little, she said, as “the government will interpret and apply the law as broadly as it can get away with.”

The lobbying from progressive groups is at odds with the White House, which has urged lawmakers who are 702 skeptics from backing a bill they say unartfully reforms the law.

“What’s coming out of the Judiciary Committee is really problematic,” Joshua Geltzer, deputy homeland security adviser, said Sunday speaking with reporters. 

“A bill that purports to reauthorize something and can be read to end it is a challenge, is a problem, maybe a sign that not even folks with differing views on the spectrum should gravitate towards.”