The clock is ticking down for lawmakers to take action to renew a critical national security tool that helps the U.S. shut down terrorist attacks, but chaos in Congress could derail the process.
Section 702 under Foreign Intelligence Surveillance Act (FISA) allows U.S. federal intelligence agencies to conduct targeted warrantless searches of foreigners, but sometimes Americans are improperly searched in the process.
A string of recent reports have revealed the FBI has not followed its own standards and there have been hundreds of thousands of abuses of the program.
The Section 702 provision is set to expire by the end of the year, so Congress is taking action and especially working to ensure those abuses are not repeated by inserting reforms into the bill language. But lawmakers are divided over whether the update to the law should include a warrant requirement.
And they only have five weeks after they come back from Thanksgiving vacation to get a deal together, passed and sent to President Biden’s desk.
‘The reality is that the terrorism threat has been elevated throughout 2023, but the ongoing war in the Middle East has raised the threat of an attack against Americans in the United States to a whole other level,’ Wray told Congress at the end of October
Israeli rescue teams evacuate the wounded by helicopter near the southern city of Sderot on October 7, 2023, after the Palestinian militant group Hamas launched a large-scale surprise attack on Israel
That task may prove even more challenging with the House Republicans’ minor majority – Speaker Mike Johnson can only afford to lose four votes on any piece of legislation if it passes along party lines.
And with a Democrat-controlled Senate, any 702 renewal will need bipartisan backing.
Top Biden administration officials are bringing attention to the seriousness of the impending expiration – especially in light of the recent Hamas attack on Israel – and urging immediate action by Congress.
FBI Director Chris Wray said this week that Section 702’s renewal is critical in order to ‘disrupt’ terrorist threats to the U.S.
‘Just imagine if some foreign terrorist organization overseas shifts its intentions and directs an operative here who’d been contingency planning to carry out an attack in our own backyard — and imagine if we’re not able to disrupt the threat because the FBI’s 702 authorities have been so watered down,’ he said during a hearing.
Wray also told senators last month that ‘it is a time to be concerned. We are in a dangerous period.’
‘The reality is that the terrorism threat has been elevated throughout 2023, but the ongoing war in the Middle East has raised the threat of an attack against Americans in the United States to a whole other level,’ Wray testified in the Senate.
In addition, DOJ’s Assistant Attorney General for National Security Matthew Olsen warned that if the spy tool expires or is renewed with a warrant requirement, it will be ‘damaging’ to security.
‘In the current threat environment — following the Hamas attacks in Israel, Russia’s invasion of Ukraine, and the persistent threats we face from China and Iran — it is impossible to overstate how operationally damaging a warrant requirement for U.S. person queries would be to our efforts to protect the United States and Americans at risk overseas,’ said Olsen.
Republicans in Congress are also sounding the alarm, as the House Permanent Select Committee on Intelligence is taking the lead on drafting a reauthorization bill.
‘In the wake of the Hamas terrorist attacks, our nation faces the greatest threat of terror in nearly decade,’ Rep. Darin LaHood, R-Ill., told DailyMail.com in a statement.
‘Allowing this critical national security tool to expire would put our country at greater risk,’ he continued, adding that there have been ‘too many abuses of the program’ so reforms are critical.
In March, LaHood revealed that his name was improperly searched by the FBI conducting a Section 702 query.
LaHood, who sits on the Intelligence Committee, called it an ‘egregious violation’ that threatened the separation of powers enshrined in the Constitution.
As a result of the numerous abuses, LaHood joined Intelligence Chairman Mike Turner, R-Ohio, in releasing a report this week outlining a series of critical fixes to the program.
The report states that a warrant requirement would ‘jeopardize the [intelligence community] IC’s ability to respond swiftly to urgent threats or to collect valuable foreign intelligence information.’
The lawmakers went on to say that such a requirement would not address the ‘partisan abuses’ they’ve seen in recent years and also ‘defies decades of law and practice,’ and would ‘cripple national security’ in a similar manner as pre-9/11 ‘failures.’
‘The extensive HPSCI report outlines the important reforms needed in order to responsibly reauthorize FISA before the end of the year,’ said Rep. LaHood.
‘At a time when the FBI director is claiming that we have the largest threat to national security, it would be incredibly dangerous and detrimental for us to either allow 702 to expire or to saddle it in a way that it’s unusable,’ Turner told DailyMail.com.
A bipartisan group of senators unveiled new legislation last week including FISA fixes and better oversight. The Government Surveillance Reform Act is being led by Sen. Ron Wyden, D-Ore., and Sen. Mike Lee, R-Utah.
Wyden said the bill addresses ‘a number of issues’ that should have been resolved years ago.
It has the backing of several Democrats and Republicans in the House of Representatives as well. But notably, none of the leadership on the House or Senate Judiciary or Intelligence committees have backed the bill.
Rep. Turner slammed it for including a warrant requirement.
‘There are many misconceptions about how 702 works. And this bill represents, I think, the core of most of the myths about 702,’ Turner told DailyMail.com this week.
He is working on legislation with Senate Intelligence Committee Chairman Sen. Warner that he believes will be able to get a floor vote and passed before the deadline.
People try to extinguish fire on cars following a rocket attack from the Gaza Strip in Ashkelon, southern Israel, on October 7, 2023
‘At a time when the FBI director is claiming that we have the largest threat to national security, it would be incredibly dangerous and detrimental for us to either allow 702 to expire or to saddle it in a way that it’s unusable,’ Turner told DailyMail.com this week
Wray also told Congress that ‘it is a time to be concerned. We are in a dangerous period’
Rep. Andy Biggs, R-Ariz., said ‘we can no longer afford the status quo,’ during a press conference following the bill’s unveiling.
Sen. Mike Lee, who sits on the Senate Judiciary Committee, maintained that the legislation will stop ‘illegal government spying’ while restoring constitutional rights.
Tech policy expert James Czerniawsk said that the intelligence community has ‘frequently misused’ its surveillance powers.
As a result it has contributed to ‘eroding trust in institutions responsible for Americans’ safety,’ said the Americans for Prosperity expert, who is urging the advancement of the bill.
Another bill led by House Judiciary Chairman Jim Jordan is still expected to be unveiled.
It remains to be seen how the House and Senate will come to a compromise on the language before the new year.