FISA Update: Legislative Implosion

Speaker Johnson pulls his "compromise" FISA bill in the face of intense opposition on and off the Hill

FISA Update: Legislative Implosion
Hearing on FISA legislation, February 14 (Source: House Rules Committee)

At today's meeting of the House Rules Committee, it became clear early on that Foreign Intelligence Surveillance Act (FISA) reformers were likely to prevail in their efforts to get several amendments made in order that House Permanent Select Committee on Intelligence (HPSCI) leadership vehemently opposed. As a result, House Speaker Mike Johnson (R-LA) ordered the existing FISA "compromise" bill to be pulled from the House calendar.

You can watch the hearing here, but to make a long story a little shorter, House Judiciary Chairman Jim Jordan (R-OH) and Ranking Minority Member Jerry Nadler (D-NY) were completely united in insisting on

  1. a warrant requirement for law enforcement agents to search the stored communications of American in the FISA Section 702 database;
  2. closure of the "data broker loophole" that lets the FBI simply buy information on Americans that they'd otherwise need a warrant to get, and;
  3. a permanent statutory ban on "abouts" collection under FISA Section 702.

As the Privacy and Civil Liberties Board noted in its 2023 report on FISA Section 702 (p. 61):

“Abouts” communications included communications in which the tasked selector was neither the sender nor the recipient of the communication, but the selector was contained in the body of the communication. An example would be if an individual sent an email to a friend saying “do not open an email from ‘JohnTarget@example.com’ as it contains malware.” In this situation, NSA was targeting the selector JohnTarget@example.com, but the communication was neither to nor from that selector.

Jordan and Nadler got a very friendly reception for their pitch from multiple members of the Rules Committee, Democrats and Republicans alike. Hence, the panic in HPSCI and the Speaker's office as they watched the hearing unfold.

So, what does it mean regarding FISA reauthorization legislation?

For now, this is a clear-cut win for FISA reformers. The week began with the threat of a secret House session to try to scare Members into supporting a bill that would've reformed nothing. It ended with that same bill being pulled at the last minute by a House Speaker whose political tone deafness within his own GOP conference is now a painfully obvious weakness and liability.

Moreover, the second, successful (and unwarranted) impeachment of DHS Secretary Mayorkas now means that key House impeachment managers and the entire Senate will burn scarce legislative time on an impeachment trial everyone already knows will not lead to a conviction.

Finally, government funding is scheduled to run out for some agencies and departments on March 1, and still others on March 8. Dealing with those deadlines will almost certainly be a higher immediate legislative priority than returning to FISA.

It seems very unlikely at the moment that the Speaker will force this issue during the balance of February. A new "compromise" bill might emerge by the week of March 4, but more likely is the week of March 11--and all of this assumes that actual bill text can be agreed upon, which, given recent history, is anything but a sure bet. So, between the Mayorkas impeachment trial and the looming government funding (or maybe shutdown) crisis, it may be mid- to late March before another FISA bill is on the House legislative calendar. I'll be following all of this and will keep you updated as events warrant.

Thanks for reading. I'll be back this coming Monday with a book review on Tina Nguyen's recently released "The MAGA Diaries."

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