House set to weigh warrantless spy powers as part of defense policy bill

The House will consider a short-term extension of the nation’s warrantless surveillance powers as part of the defense policy bill, House intelligence leaders confirmed Wednesday.

The National Defense Authorization Act (NDAA) will include a provision to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA) into mid-April — dodging its end of the year expiration as Congress battles over four competing plans to reauthorize and reform the law.

“Obviously the House has been in chaos and our legislative business has been disrupted. So I think it’s an appropriate extension that gives us the ability to address 702. By extending it, we avoid the calamity,” caused by a lapse of an important national security tool, Chair Mike Turner (R-Ohio) told reporters Wednesday afternoon.

Speaker Mike Johnson (R-La.) was under pressure by some in the GOP to only consider Section 702 reauthorization as a standalone bill, arguing the risk to Americans who may see their communication swept up if they communicate with those being surveilled by the government requires careful vetting.

Section 702 only allows the government to spy on foreigners located abroad, but privacy rights activities have complained the dynamic still allows for backdoor searches of American’s information if they communicate with targets.

The NDAA’s text has not yet been released, so discussions could still be fluid. But the move suggests a reversal from Johnson, who as of Tuesday appeared to oppose a short-term extension through that vehicle.

“You can air drop the whole reform bill into the NDAA. And you know, he decided not to do that. OK, that’s fair. But what you can’t do is not have a temporary extension. Because the next likely vehicle for reauthorization is the Jan. 19 successor to the [continuing resolution]. So just that alone is a potential 19-day, no-702 period, which is the period in which Americans get killed,” Rep. Jim Himes (D-Conn.), the top Democrat on the committee, told The Hill on Tuesday.

Still, the decision punts a brewing House battle between the Intelligence and Judiciary Committees, whose bills have substantial overlap but remain worlds apart in key ways, including over whether to include a warrant requirement before querying the Section 702 database for information on Americans. 

While Judiciary Chair Jim Jordan (R-Ohio) suggested Wednesday morning a vote on 702 reauthorization could happen as early as next week, a short term authorization would scramble that. 

Turner said he’s now unsure how the House will proceed and what timeline they may be working under. 

“I don’t believe any final decision has been made as to how all these bills are moving forward,” he said.

And the extra time is not a winning idea with all, including those who were hoping Johnson would back the Intel bill, given the months spent coordinating with national security leaders to develop it. 

“I’m against that. We’ve spent months on good reforms. That deal isn’t changing. You’re just prolonging a fight,” said Rep. Dan Crenshaw (R-Texas), a House Intelligence Committee member.

“So I would encourage the Speaker, just get this done now with the reforms that we agreed on, not to do a clean, temporary reauth[orization]. That’s a bad idea.”

Lawmakers on the two panels have traded critiques of one anothers’ bills, with Intel members saying the Judiciary bill’s warrant requirement would end up blinding the U.S. to information it has lawfully collected while Judiciary members say Intel has not done enough to address Americans’ privacy concerns.

Politico reported this week Johnson was mulling bringing both bills to the floor as amendments, letting the one that gets the most votes proceed for a vote as legislation. But it’s unclear whether that is still being considered or if the speaker may endorse one of the two packages.

“The speaker’s in a tough position, because I told him he’s come in at the end of a movie and does not have the benefit of seeing the first part and that is the work that’s been done on putting this bill together,” Turner said.

“I think the extension to April certainly gives us the space as a legislative body to have the debate on what we want to do and what we don’t want to do.”

Meanwhile Judiciary members see their bill as compelling just by the fact that it passed out of mark up while only losing two votes, the hearing playing out in a spirit of camaraderie rather than the panel’s usual divisiveness. 

Rep. Jerold Nadler (D-N.Y.), the top Democrat on the House Judiciary Committee, earlier Wednesday praised their bill, saying the “overwhelming bipartisan vote in markup today says it all.”

But in response to a question from The Hill later Wednesday, he said he did not oppose the extension. 

“I mean, we have got a battle with [Intel] which came out with a lousy bill. That battle is going to be the same in April as it is tomorrow,” Nadler said.

When it was raised that Intel had leveled similar criticism of his committee’s bill, Nadler said, “Well, of course they did.”

Updated at 6:23 p.m.