Insist on a warrant”: Key issue in FBI surveillance tool renewal push

Lawmakers are preparing to vote this week to reauthorize a powerful program that the intelligence community uses to gather information on foreigners, but the House remains deeply divided over whether to include warrant requirements in the bill.

The House Rules Committee will meet to vote on the legislation on Tuesday, 10 days before Section 702 of the Foreign Intelligence Surveillance Act is set to expire.

But privacy hawks across the political spectrum in Congress are dissatisfied with the current bill, unveiled by House Speaker Mike Johnson (R-LA) on Friday.

Rep. Warren Davidson (R-OH), who has been at the forefront of efforts to rein in the government’s surveillance powers, criticized the current legislation, which was largely crafted by the House Intelligence Committee.

“Not only are they spying on American citizens without a warrant, they are seeking to expand the spying and block bipartisan legislation requiring a warrant to search American citizens’ data,” Davidson wrote on X.

The House Judiciary Committee, of which Davidson is a member, has been, on a bipartisan basis, pushing since last year for a competing FISA Section 702 reauthorization bill that would include the controversial warrant requirements.

On Monday, the committee repeatedly posted on X, “Get a warrant,” signaling its opposition to the new bill.

Section 702 allows the intelligence community to surveil foreigners without a warrant for national security purposes, but U.S. citizens who have been communicating with overseas targets can have their private information swept up in the collected data.

Concerns about Section 702, and government spy powers in general, have been a source of controversy in recent years after the DOJ inspector general found in 2019 that the FBI submitted multiple misleading surveillance applications to the FISA court to establish probable cause so that it could spy on then-Trump campaign aide Carter Page. The high-profile violations generated worries about surveillance abuse, though they occurred through a different provision of FISA than Section 702.

But Section 702 has also been fraught with abuse. The FBI, specifically, was found in recent years by the FISA court to have improperly queried the vast database of Section 702-derived foreign intelligence for information about U.S. citizens hundreds of thousands of times. For instance, the bureau garnered private information about U.S. campaign donors and people involved in the George Floyd protests and the Jan. 6 Capitol breach.

Because of these abuses, privacy hawks say the FBI should be required to obtain a warrant before it accesses any data involving U.S. persons, regardless of who they may have been communicating with overseas. The FBI has maintained that it implemented reforms to address the matter and that warrant requirements would render Section 702 useless.

Johnson’s role in the matter has outraged those pushing for warrants. The speaker published a “Dear Colleague” letter on Friday announcing that the House would be voting on the new bill, but he did not take a position on warrants.

When asked for comment on where the speaker stood, a spokesman for Johnson’s office referred back to his Dear Colleague letter.

A GOP aide told the Washington Examiner that Johnson’s staff members met with a group of GOP staff members on Monday and informed them that Johnson planned to oppose the warrant requirements openly.

Sean Vitka of Demand Progress, which has been pushing for reforms to government surveillance, said he saw “very strong evidence that the speaker is putting his thumb on the scale in favor of the Intelligence Committee as hard as possible.”

Intelligence Committee member Rep. Darin LaHood (R-IL), a former federal terrorism prosecutor who was inappropriately spied on through FISA in 2019, said in a phone interview that his committee supports the new bill.

LaHood touted dozens of reforms in the new legislation that he said would not only prevent the Carter Page missteps but would also add numerous criminal penalties for FBI agents who misuse Section 702 tools, as well as drastically limit the number of agents who have access to them.

“These reforms put real teeth into holding the FBI accountable, which was the biggest problem that we looked at over the last five years,” LaHood said. Aside from a temporary reauthorization at the end of last year, the last Section 702 reauthorization bill passed under then-President Donald Trump in 2018.

LaHood and his committee have been actively urging colleagues to oppose any amendment that would add warrant requirements to the bill.

He said the committee planned to highlight a slate of prominent Republicans this week who have worked in the national security arena who are also against warrant requirements, including Mike Pompeo, John Ratcliffe, Devin Nunes, Robert O’Brien, and Kash Patel.

“If the warrant amendment passes, it really eviscerates 702 and is a way to sabotage the 702 process,” LaHood said.

The bill, if it were to pass in its current form without the warrant requirements, is poised to garner enough support in the Senate and be signed by President Joe Biden, though the administration’s position is that most legislative reforms would be a concession.

“Every legislative proposal that has been introduced has included significant reforms, some of which would come at a considerable cost to DOJ and other members of the IC. And this bill is no exception,” a senior administration official said in a statement to the Washington Examiner.

However, the official said the bill would still preserve the main purpose of Section 702.

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“I would note, though, at least as it relates to the base bill that the House has announced in front of the Rules Committee, that unlike other proposals introduced by Congress, this bill enacts these reforms without undermining the core value of 702. In short, this is a bipartisan compromise bill,” the official said.

The bill could come up for a full House vote as early as Thursday should it pass through the Rules Committee.