House Speaker Mike Johnson and Senate Republicans needs to keep one set of numbers in mind – 35-2 – when being pushed to reauthorize the Biden administration’s unconstitutional warrantless spying on American citizens under the Foreign Intelligence Surveillance Act (FISA), as some members of Congress talk about inserting the reauthorization in spending legislation Congress is debating this week.
That number represents the vote tally in the House Judiciary Committee (HJC) on Chairman Jim Jordan’s proposed reforms to FISA, most especially stopping the ability of Biden’s weaponized Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) to spy on American citizens without a federal judge first signing a warrant.
FISA goes back to 1978, but Congress added Section 702 after the 9/11 terrorist attacks. It allows intercepting emails and phone calls from foreigners overseas, but the past few years revealed shocking reports that those warrants also captured communications from Americans.
For example, one declassified report said that in June 2022, a government analyst conducted four searches of the name of a U.S. senator, which was later determined to be unauthorized.
For another example, reports are that federal agencies were buying information on Americans from companies that sell information to marketers that the Fourth Amendment would block the government from accessing directly.
FISA warrants don’t go through the standard process for getting a search warrant as required by the Fourth Amendment to the Constitution. Although the judges the Foreign Intelligence Surveillance Court (FISC) are real federal judges, not all of the legal protections apply in that secretive court. For one thing, oly government lawyers are involved.
Section 702 information is stored for years, and the FBI doesn’t need a warrant to search some of those records. Many Americans are concerned about that kind of spying power, and it’s no surprise that members of Congress share that concern.
Opposition is widespread. Not only was Jordan joined by all Republicans on HJC, but he was also joined by every Democrat on the committee except for two. Hardcore leftists like Jerry Nadler and Pramila Jayapal voted in support of the reform package.
Only two especially problematic Democrats – Eric Swalwell and Hank Johnson – opposed it. Most Americans don’t take their national security cues from a congressman who sleeps with Chinese Communist spies or who thinks that U.S. military assets could become so heavy that they could make the island of Guam flip over.
Conservatives in the Senate are also demanding reform. Senator Mike Lee, in particular, has been leading the charge demanding that these unconstitutional warrantless searches must end.
Supporters of the status quo know that a bill that reauthorizes FISA with no reforms would have a very hard time passing as a standalone bill. So they’ve been looking at options to insert them into federal spending bills. With both chambers of Congress possibly moving a massive spending package by this Friday, Republican leaders in the House and Senate need to make sure that FISA does not end up in “must-pass” legislation.
Speaker Johnson and Senate Republicans need to stand strong on the policy that any bill that can pass 35-2 in HJC has overwhelming bipartisan support. Such legislation deserves to be debated and voted upon as a standalone measure, not tied up with federal funding.
Ambassador Ken Blackwell is Chairman of the CNP Action and Senior Fellow for Human Rights and Constitutional Governance at the Family Research Council. Follow him on X @kenblackwell.