The Justice Department this week ignited its lobbying effort with a hesitant Congress to secure renewal of a spy tool that has become one of its most controversial surveillance authorities.
The provision of Foreign Intelligence Surveillance Act (FISA) is set to expire in December, prompting authorities to eagerly promote the need for Section 702 of the law, which allows for the warrantless surveillance of foreigners outside of the United States, even as they communicate with U.S. citizens on domestic soil.
A heavy lift even in the best of times, the effort is colliding with a brewing skepticism of the FBI and other intelligence agencies in some corners of Congress — a major talking point for many on the right that resonates with some on the left.
“What keeps me up at night is thinking about what will happen if we fail to renew Section 702 of FISA,” Matthew Olsen, the assistant attorney general for national security, said this week at a discussion at the Brookings Institution.
“Without 702, we will lose indispensable intelligence for our decision makers and warfighters, as well as those of our allies. And we have no fallback authority that could come close to making up for that loss.”
Both Republicans and Democrats on the House Intelligence Committee — privy to some of the classified details about how 702 authorities are used — back the need for its reauthorization and say it may take lobbying efforts of their own to secure it.
But the reauthorization is also the purview of the House Judiciary Committee, which includes a number of right-wing members and now houses a subcommittee on “weaponization” designed to focus heavily on an FBI they’ve accused of abusing its power to target conservatives.
“I think the lift is harder on the other side, if only because they’ve sort of developed a cultural aversion to the FBI, and maybe to the [intelligence community] in general — certainly in the more MAGA precincts, that’s true. But we have concerns across the spectrum,” said Rep. Jim Himes (Conn.), the top Democrat on the intelligence panel.
On the left, lawmakers have expressed concern over how such tools can disproportionately impact people of color and otherwise infringe upon constitutional rights.
Rep. Pramila Jayapal (D-Wash.), the chairwoman of the House Progressive Caucus, has said the reauthorization process “must include meaningful reforms to protect Fourth Amendment rights” against unreasonable searches and seizures.
Critics see FISA Section 702 as ripe for abuse. Though the law doesn’t allow it to be used to target U.S. citizens, they argue the warrantless system doesn’t include enough oversight as it sweeps in the communications of Americans communicating with foreigners.
Authorities still must secure a warrant from a FISA court to spy on Americans, and the differing processes have led to dramatically different results.
In 2021, the most recent data available, authorities surveilled more than 232,000 foreign nationals under Section 702, while they secured warrants to conduct surveillance of about 370 people on U.S. soil.
But supporters note that some of the most highly criticized FISA cases, including the FBI’s surveillance of Trump campaign adviser Carter Page, were not conducted under Section 702. A judge signed off on the warrants required to spy on Page, a process that included affidavits that were later deemed to be riddled with errors while key information was omitted.
That incident has become a top example for critics, many of whom have concerns both about Section 702 and the FISA statute in general.
“There’s no way I’m voting to reauthorize FISA unless there is a momentous reform. It has proven ineffective to avoid the dangers that were known from the beginning. There’s not been robust oversight. There has been no accountability. There have been wholesale violations that the [Inspector General] has documented. And nothing ever happens in consequence of it,” said Rep. Dan Bishop (R-N.C.).
He blamed “the culture of lack of candor in the FBI.”
“There’s a problem with my trust in the FBI and the Department of Justice and other agencies. … They have an inappropriate outlook on the role and relationship between the people and the government and the fundamental rights of people, and it’s going to have to be addressed,” Bishop said.
House Judiciary Chairman Jim Jordan (R-Ohio) has also come out against a straight reauthorization.
That’s left many House Intelligence Committee members prepared to do their own lobbying for a renewal bill.
“So it hasn’t been a slam dunk for a while. It wasn’t a slam dunk in ‘18, right? It was hard. And I pushed hard for FISA reauthorization then. But it’s going to be harder this year. And I think there’s a number of reasons,” said Rep. Chris Stewart (R-Utah).
“I just think it’s gonna take a lot of work and a lot of kind of one-on-one conversations with people. The key to getting us there is to show the success we’ve had with 702, to show examples of where it’s been important in the last two years.”
Rep. Abigail Spanberger (D-Va.), one of the new appointees to the panel, also said it’s a matter of offering those concrete details.
“There’s real times when it’s aided in investigations. It’s been used to thwart terrorist threats. It’s been used to find terrorists. Unless you have those kind of real life examples, I think it so frequently for so many members of Congress might just be kind of an abstract notion,” she said.
The Justice Department and the intelligence community have also sought to provide some of those examples.
A letter to leaders in both chambers from Attorney General Merrick Garland and Director of National Intelligence Avril Haines noted information acquired through Section 702 helped disrupt terrorist plots and attempts by adversaries to recruit U.S.-based spies.
In one case, information was used to stop components for weapons of mass destruction from reaching adversaries, and in another, information contributed to the U.S. killing of al-Qaeda leader Ayman al-Zawahiri last year.
But Himes said in some cases it’s a matter of addressing misinformation, as well as doing due diligence in weighing reforms that would provide further checks on how Section 702 can be used.
“There’s a lot of people who wouldn’t know what FISA 702 is. No. 2, there’s a lot of misinformation. People say, ‘Oh, my goodness Carter Page.’ Well, OK, Carter Page — not 702. So there’s a fair amount of education that needs to be done. And then, look, we got to take our responsibility seriously to consider ideas for reform. And I think if we do all those things, we’ll get it done, but it’s going to take time and energy,” he said.
Congress pushed for reforms during the last reauthorization in 2018. They include new restrictions on querying surveillance databases and continuing surveillance of indirect targets — as well as increased penalties for taking sensitive government documents, an issue now present in the Mar-a-Lago investigation.
Those efforts have been deemed insufficient by some and reassuring by others.
“They’ve made changes and revisions to the program to address historic concerns with the authorities, which have made me comfortable that authorization is the right thing to do,” said Rep. Jason Crow (D-Colo.).
The broader atmospherics of Congress, however, present their own challenges.
Bishop said the reauthorization just further highlights the need for the GOP’s many investigations into the FBI and the Justice Department.
“One reason I think we need the weaponization subcommittee is so when we can get to everything we need to look at,” said Bishop, who serves on the panel and noted that the 1975 Church Committee on which it is based found numerous missteps by the intelligence community.
Rep. Mike Gallagher (R-Wis.) a member of the Intelligence Committee and the chair of a newly formed panel on China, said many have “understandable distrust after FISA gate,” referring to the Page situation.
“There are critical authorities that need to be reauthorized. In my mind, I feel like we could pair that with sensible reform. And that’s the path forward. And from a China perspective, I think it’s absolutely essential,” he said.
Still, the attacks on the intelligence community baffled Spanberger, who is a former CIA officer.
“It continues to be a confusing reality that any of my colleagues would malign the work of the brave men and women of the FBI who investigate everything from kidnapping, to bank robbery, to terrorism, to counterintelligence [and] threats that exist here in the U.S.,” she said.
Spanberger said she hopes the reauthorization pushes “a moment to reflect on what it means to have an entire law enforcement agency devoted to not just law enforcement here domestically, but also working globally to thwart some of the biggest threats that exist to our homeland and our people.”
Crow warned that Congress cannot be deterred by politics.
“There is never an ideal time for pretty much anything to happen. There’s always an excuse for why it’s not a good time. But the bottom line is international terrorist organizations, our adversaries, our enemies, don’t really care whether it’s a good time on our political calendar or not,” he said.
“They’re going to try to harm Americans. They’re going to try to kill Americans. And they’re going to try to attack the United States, both here and abroad. And unless we have the tools and the capabilities to detect that and to stop it, it’ll happen.”