The House Judiciary and Intelligence committees are getting into a public feud over how to reform the nation’s warrantless surveillance powers, a battle set to heat up as Speaker Mike Johnson (R-La.) has pledged a head-to-head competition of their bills on the House floor.
It’s a clash with few clear political fault lines as members of both parties are largely sticking by their committee’s bill and vying to have their approach win out.
“This is the one big disagreement in Congress that actually should frighten the hell out of us,” said Rep. Dan Crenshaw (R-Texas), an Intelligence Committee member, during his panel’s Thursday markup of their preferred legislation.
“The reforms coming out of the Judiciary Committee are downright terrifying,” he added.
House Intelligence leaders on Thursday went out of their way to offer a point-by-point critique of the proposal from their Judiciary colleagues— a rare flex from a panel known for being reserved.
Members of the Judiciary panel are equally as critical of the Intelligence bill.
Rep. Jerry Nadler (N.Y.), the top Judiciary Democrat, put it succinctly, saying Wednesday that Intelligence “came out with a lousy bill.”
The battle is over how to reform Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the government to spy on foreigners located abroad without a warrant but also sweeps up Americans’ communications in the process.
Johnson in a “Dear Colleague” letter Thursday said he would bring both bills to the floor next week in an unusual procedure that allows each measure to be considered, with the top vote-getter proceeding as legislation.
The disagreement between the two panels over how to proceed has butted up against the end-of-the-year deadline to reauthorize FISA 702, pushing Johnson to agree to a short-term extension keeping Section 702 in place through mid-April.
Politico reported Thursday that the Republican conference will meet Monday night to hammer out differences between the bills, a meeting that comes after working groups assigned that task failed to do so.
The major sticking point between the two panels is Judiciary’s inclusion of a requirement that the government secure a warrant before it reviews information collected on Americans communicating with those being surveilled.
To many Intelligence members, such a requirement guts the purpose of Section 702, leaving law enforcement blind to lawfully-collected information that they may need to act on in real time.
“It effectively would dismantle FISA 702 as we know it,” Crenshaw said.
“They’ll market it as simply saying, ‘Well, look, we’re just protecting people’s Fourth Amendment rights. We’re just saying that you have to have a warrant before search and seizure.’ That is how it will be represented to you. That is not true. That is not exactly what their reforms do,” he added.
Judiciary lawmakers say the Intelligence bill doesn’t do enough to protect Americans against unreasonable searches. That Republicans and Democrats on their famously divided and combative panel agree on the matter should be telling, they say.
“I’m not criticizing what’s in their legislation. It just doesn’t go far enough,” said House Judiciary Chair Jim Jordan (R-Ohio) of protections on searches in the Intelligence bill.
“We want to put some strong language in place to protect Americans’ privacy, and somehow that’s a bad thing to do? Thirty-five people on the Judiciary Committee didn’t think so.”
Both bills seek to address abuses of FISA 702, many of which were carried out by the FBI and led to numerous reforms, including more oversight and technical changes to the FBI’s search portal, which previously opted agents into a 702 search by default.
The result of the reforms was a more than 90 percent drop in the number of Americans queried, but the bureau still tapped into information on Americans 119,000 times.
Many of the Intelligence Committee’s concerns about the Judiciary bill mirror those from the Justice Department and intelligence community.
A Justice Department review of the bill obtained by The Hill said the legislation would expand the rights of noncitizens in the U.S. in a way that could block 702 surveillance of people entering and exiting the country.
Intelligence Committee Chair Mike Turner (R-Ohio) criticized the Judiciary bill as spending “more time expanding the constitutional rights of foreigners who travel in and out of the United States” than pushing for FBI reforms.
Rep. Ted Lieu (D-Calif.), a member of the Judiciary Committee, said he was not “wedded” to that provision but said the law must fall in accordance with the Fourth Amendment, which notes “the right of the people” to be protected. Such language, Lieu suggested, would include people who are in the United States who are not citizens.
“If you want to take the view that the word person in the Constitution means something else, then you go ahead and change the Constitution. But guess what? It turns out that people in the United States, in fact, do have rights because they’re on physical territory of the United States,” he said.
“There is a difference between someone who is physically in the U.S. and someone who is not, and that is a U.S. constitutional mandate.”
Turner also critiqued a provision that limits how information gathered through 702 can be used if the intelligence community discovers crimes unrelated to what they were searching for.
“Curiously it provides immunity for prosecution for horrific crimes if discovered in 702 foreign intelligence collection,” Turner said, listing cases on human trafficking and money laundering as examples.
The Intelligence bill also seeks to curb the use of 702 for unrelated searches, requiring a warrant for the small portion of queries designed to uncover “evidence of a crime.” But if agents discover a crime while reviewing 702 information, it would not bar its use as evidence.
“This is important for two reasons,” said Rep. Jim Himes (Conn.), the Intelligence Committee’s top Democrat, during the markup.
“First, it removes any doubt that Section 702 is a foreign intelligence authority, not a law enforcement tool. That is what Congress intended when it was first enacted, and this makes that distinction crystal clear. Second, it will help remove confusion on the part of FBI agents about what constitutes a permissible query.”
While most committee members are firmly backing their panel’s work, each bill had some detractors.
Rep. Joaquin Castro (D-Texas), an Intelligence panel member, said he would have liked to see his committee’s bill do more to restrict queries that could violate privacy rights, but his biggest concern was a provision that would expand its use for vetting anyone seeking to enter the country.
“I am increasingly concerned about the rhetoric from many parts of this Congress and from leading public figures and presidential candidates who want to ‘shut down the border’ and stop those seeking refuge in the United States from attempting to,” he said, going on to call out the immigration policies rolled out during the Trump administration.
“I fear codifying this provision without meaningful safeguards would give those who capitalize on fear and xenophobia an important tool to pursue their agenda. I do not believe this is the intention of the authors of the bill but we cannot trust those yielding the powers that we present to them in the future will not abuse those powers.”
During the Judiciary markup, Rep. Eric Swalwell (D-Calif.), who previously served on Intelligence, also expressed concern after the panel voted down an amendment that would have expanded the bill, including provisions dealing with election interference.
“The MAGA wing’s interest in reform is not our interest in reform. The MAGA wing wants to do anything to keep us blind on what foreign nationals would do to interfere in our elections to help Donald Trump. Our interest is around real privacy. So I don’t like that unholy alliance,” he told reporters later.
“I spent eight years seeing the benefits on the Intel Committee of what FISA yields and I want to be a guardian of privacy, but I also don’t want to just align myself with MAGA folks who have different priorities and put us in the blind when the FBI director said we’re at peak terrorism threats right now,” Swalwell added.
Rep. Tom Tiffany (R-Wis.) a member of the Judiciary Committee, said he did not think Intelligence was acknowledging all the exceptions its bill makes for national security information.
But he chalked the division up to the difference in perspective of the two committees.
“They’ve been in the SCIF and seen some of the stuff that goes on and how they’ve interdicted people,” he said.
“They come from Intel, and they view it, ‘We got to keep the world safe.’ And that is so important. I mean, I get their mindset is different in that way,” Tiffany said before paraphrasing Ben Franklin’s warning that those who sacrifice freedom for security will have neither.
“We have to protect people’s civil liberties or we will not have a free country.”