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House passes 2-year warrantless surveillance law extension

JASON ANDREW/THE NEW YORK TIMES
                                House Speaker Mike Johnson (R-La.), speaks to reporters as he walks back to his office at the Capitol in Washington, today. The House took a critical first step, today toward reauthorizing a law extending an expiring warrantless surveillance law that national security officials say is crucial to fighting terrorism, voting to take it up two days after a previous attempt to pass it collapsed.
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JASON ANDREW/THE NEW YORK TIMES

House Speaker Mike Johnson (R-La.), speaks to reporters as he walks back to his office at the Capitol in Washington, today. The House took a critical first step, today toward reauthorizing a law extending an expiring warrantless surveillance law that national security officials say is crucial to fighting terrorism, voting to take it up two days after a previous attempt to pass it collapsed.

WASHINGTON >> In a major turnaround, the House today passed a two-year reauthorization of an expiring warrantless surveillance law that had stalled this week amid GOP resistance stoked by former President Donald Trump.

The bill would extend a provision known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA, that is set to lapse on April 19. It was a remarkable resuscitation of the measure from a collapse just days ago on the House floor after Trump had urged lawmakers to “kill” FISA.

But House passage came after lawmakers only narrowly defeated a bipartisan effort to restrict searches of Americans’ messages swept up by the program — a major change that national security officials had warned would gut the law. The vote reflected widespread skepticism of the program.

Grasping to salvage the measure before the law expires, Speaker Mike Johnson put forward a shorter extension than its originally envisioned five years, persuading hard-right Republicans who had blocked the bill to allow it to move forward. The final vote was 273-147, with both parties split. One hundred and twenty-six Republicans joined 147 Democrats in favor, while 88 Republicans and 59 Democrats were opposed.

The legislation still must be cleared by the Senate and signed by President Joe Biden. But the main obstacle has been in the House, where Republicans are deeply divided and Johnson had tried and failed three times to push it through.

Until nearly the last minute today, it was unclear what shape the final bill would take as the House considered a series of proposed changes whose fate various members had said would determine their positions. Most prominently, in a nail-biter of a vote, lawmakers just barely rejected a proposal to ban FBI agents and intelligence analysts from using Americans’ identifiers — like email addresses — to query the repository of messages swept up by the program unless those officials first get warrants.

In an extraordinary moment on the House floor, the proposal to add a warrant requirement failed on a tie — 212-212, with 13 members not voting and Johnson breaking with custom to cast a decisive “no” vote. The amendment split the two parties, with 126 Democrats and 86 Republicans voting against it, while 128 Republicans and 84 Democrats voted in favor.

Civil liberties advocates have long sought such a restriction to protect Americans’ privacy rights. But national security officials have argued it would cripple the program because they typically use it early in investigations, such as when trying to learn more about a phone number or an email account found to be in contact with a suspected foreign spy or terrorist before there is enough evidence to meet a probable cause standard for a warrant.

National security hawks had handily thwarted the warrant proposal in previous years, but it gained momentum this time because progressive civil libertarians have been joined by right-wing Republicans who aligned themselves with Trump’s hostility to the FBI and the intelligence community.

Proponents of adding a warrant requirement were led by top members of the Judiciary Committee, including its chair, Rep. Jim Jordan, R-Ohio, and its ranking Democrat, Rep. Jerry Nadler of New York. They and their allies argued today that making that change was crucial to protecting Americans’ constitutional rights.

“Searching for Americans’ private communications in the 702 database — communications the government otherwise would not have access to without a warrant — is the constitutional equivalent of conducting a warrantless search,” Nadler said.

Opposition to the warrant amendment was driven by members of the Intelligence Committee, including its leaders, Reps. Michael Turner of Ohio, the Republican chair, and Jim Himes of Connecticut, its top Democrat. They argued that adding a warrant requirement would effectively “blind” security officials to potentially crucial information it already possessed.

The House did make several other significant modifications to the bill. They included allowing the Section 702 program to be used to gather intelligence on foreign narcotics trafficking organizations and to vet potential foreign visitors to the United States; empowering certain congressional leaders to observe classified hearings before a court that oversees national-security surveillance; and expanding the types of companies with access to foreign communications that can be required to participate in the program.

Privacy advocates expressed disappointment that the House expanded the program while rejecting their long-sought goal of imposing a warrant requirement.

“It’s painful to get this close and still end up without this basic protection for Americans’ rights,” said Elizabeth Goitein of the Brennan Center for Justice at New York University School of Law. “But the closeness of the vote gives civil liberties advocates hope. This is only a two-year reauthorization, and if it passes, we can build on this momentum in future votes.”

Such policy disputes over the measure have been overshadowed in recent days by a political furor prompted by Trump. This week he directed lawmakers in a social media post to “KILL FISA,” asserting that it had been used to illegally spy on his 2016 presidential campaign.

Trump’s contention was incoherent as a matter of law and policy because there are two types of FISA surveillance, and the type that is expiring — Section 702 — has nothing to do with the type the FBI used in its investigation into the links between his campaign and Russia amid Moscow’s covert efforts to help him win the 2016 election.

Wiretapping for national security investigations targeting Americans or people on domestic soil is governed by the traditional type of FISA, which requires warrants; an inspector general found that the FBI had botched its warrant applications to wiretap a former Trump campaign adviser during the Russia investigation. That type of FISA, which Congress created in 1978, is not expiring.

By contrast, Section 702 allows the government to collect, from U.S. companies such as AT&T and Google, the messages of foreigners abroad who have been targeted for foreign intelligence or counterterrorism purposes without a warrant — even when they are communicating with Americans. It legalized a form of the warrantless wiretapping program former President George W. Bush secretly created after the terrorist attacks of Sept. 11, 2001.

Still, Trump maintains substantial political sway over Republicans in Congress, and after his broadside, 19 House Republicans, most aligned with the ultraconservative House Freedom Caucus, voted Wednesday to block the bill’s consideration, sending leaders back to the drawing board.

Johnson’s decision to reduce the bill to two years from five meant that if Trump were to win the 2024 election, he would control the White House when it came up for renewal. It enabled the hard-right Republican defectors to claim victory while allowing the matter to move forward, and all 19 of them switched their positions today and voted to bring up the bill.

It remains to be seen whether the Senate will pass the bill before Section 702 expires on April 19. But that is a soft deadline: The program can continue operating until April 2025 because last week the FISA court granted a government request authorizing it for another year. Under the law, surveillance activity can continue so long as there are active court orders allowing it, even if the underlying statute expires.

Even so, the intelligence community has urged Congress to reauthorize the program before it enters that sort of legal limbo, raising the possibility that providers might balk at continuing to cooperate and leading to gaps in collection until any ensuing court fights over the question can be resolved.

While the bill does not have the warrant requirement long sought by privacy advocates, it does impose many new restrictions on how the FBI may search for Americans’ information in the repository of communications swept up under the program.

There are limits on how that material can be searched for and used, but the FBI has repeatedly violated those constraints in recent years — including improperly querying for information about Black Lives Matter protesters and people suspected of participating in the Jan. 6, 2021, Capitol riot.

The FBI has since tightened its system to reduce the risk of queries that violate the standards. The bill under consideration would codify those changes and add reporting requirements, as well as limit the number of officials with access to the repository of raw information.

This article originally appeared in The New York Times.

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