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House delays plans on surveillance program reauthorization vote

Sharp divisions over privacy protections in Section 702 of FISA remain

House Judiciary Chairman Jim Jordan, R-Ohio, backs his panel's version of a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act.
House Judiciary Chairman Jim Jordan, R-Ohio, backs his panel's version of a bill to reauthorize Section 702 of the Foreign Intelligence Surveillance Act. (Tom Williams/CQ Roll Call file photo)

The House on Wednesday shelved plans to hold floor votes this week on a bill to reauthorize a powerful surveillance authority, amid sharp divisions over how far Congress should go in providing privacy protections.

The move came shortly after a House Rules Committee meeting on the bill to renew Section 702 of the Foreign Intelligence Surveillance Act, which revealed there was no clear agreement on a rule to allow floor consideration of amendments.

“In order to allow Congress more time to reach consensus on how best to reform FISA and Section 702 while maintaining the integrity of our critical national security programs, the House will consider the reform and reauthorization bill at a later date,” Raj Shah, a spokesman for Speaker Mike Johnson, R-La., said in a social media post.

The office of Majority Whip Tom Emmer, R-Minn., also sent out a notice that the bill is no longer expected to be considered this week. Without congressional action, Section 702 is set to expire April 19.

Section 702 allows the U.S. government to collect digital communications of foreigners located outside the country. But the program has been the subject of lawmaker concern because it also brings in the communications of Americans and allows the FBI to search through the information without a warrant. The agency can search through the data based on a single field, such as an email address.

The House last year, with lawmakers at odds on two bills that differ in how far to go to address privacy concerns, was unable to pass a longer-term reauthorization in December and instead approved a short-term reauthorization.

The House Judiciary Committee has advanced one bill, and the House Intelligence Committee has advanced another. On Monday, Republicans posted a new bill, which more closely resembles the Intelligence Committee bill, for consideration on the floor.

Rules Committee Chairman Tom Cole, R-Okla., described a “negotiated product,” but it became clear that both sides sought to offer amendments on the floor and the outcome would be uncertain.

While members of the House Judiciary Committee expressed some support for portions of the base bill, they said the proposal didn’t go far enough and argued there should be floor votes on an amendment that would put in place a warrant requirement regarding information on Americans.

“I should note that the speaker’s new plan — advancing a vanilla base bill and asking us to vote on the controversial items individually, with no time to review the amendments in advance — is also highly suspect,” Rep. Jerrold Nadler of New York, the top Democrat on the Judiciary panel, said.

“The strategy is so unwieldy that if two or three of the expected amendments were adopted in combination, there may be nobody left to support the bill,” Nadler said.

Judiciary Committee Chairman Jim Jordan, R-Ohio, said the bill without amendments is not good enough “because it still relies on the FBI to oversee itself — the same FBI who we know has done all kinds of things that they shouldn’t have done.”

Nadler said the changes in the base bill were so modest “that they would prove ineffective.”

“I cannot support this legislation unless the probable cause warrant amendment is adopted. I encourage my colleagues to join me in supporting real reform,” Nadler said.

Rep. Jim McGovern, the top Democrat on the House Rules Committee, noted it’s the third time this Congress that the panel has considered Section 702 reauthorization legislation.

McGovern questioned whether Republican leadership knew there were the votes to pass a reauthorization bill, and pointed to a press conference Tuesday where a group of conservative lawmakers pushed for changes.

“So with their track record so far, unless Republican leadership knows for certain that they have the votes, I’m not sure what the point of bringing this to our committee is, or bringing it to the floor,” McGovern said.

Policy differences

The newest bill before the Rules Committee had several provisions included in a bill advanced by the House Intelligence Committee last year.

Under the base bill, an FBI supervisor or agency attorney would have to provide approval for every search for information on Americans, with an exception for if the search could help in stopping a threat to life or serious bodily harm. The requirement would lower the number of FBI employees authorized to approve of those searches by more than 90 percent, according to the Intelligence committee.

The bill would require the FBI director to notify specific members if the agency uses the program to search for the name of a member of Congress and would task the Justice Department’s inspector general with reporting on the FBI’s Section 702 search compliance.

The bill also includes a provision the Intelligence committee says would codify requirements on the agency, such as higher-level approval for sensitive searches like those involving certain public officials or members of the media.

Outside groups have criticized the bill. Elizabeth Goitein, senior director of the Brennan Center for Justice’s Liberty and National Security Program, argued the base bill’s purpose is to look like reform “without actually changing anything,” and framed the legislation as a “trick” meant for members not closely familiar with Section 702.

“You have to know a fair amount about how Section 702 works to realize how little this bill actually does,” she said. “And the Intelligence Committee leaders are counting on, or they are betting on, other members not knowing enough about Section 702 to see through this ruse.”

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