House extends warrantless surveillance law
Overcomes GOP resistance with shorter authorization
WASHINGTON — In a major turnaround, the House on Friday passed a two-year reauthorization of an expiring warrantless surveillance law that had stalled this week amid GOP resistance — but only after narrowly rejecting a bipartisan effort to restrict searches of Americans’ messages swept up by the program.
The bill would extend a provision of law known as Section 702 of the Foreign Intelligence Surveillance Act, or FISA, that is set to lapse next Friday. House passage was a remarkable resuscitation of the measure from a collapse just days ago on the House floor after former president Donald Trump had urged Republicans to “kill” FISA.
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 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 Friday, 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 rightwing 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, Representative Jim Jordan, Republican of Ohio, and its ranking Democrat, Representative Jerry Nadler of New York. They and their allies argued Friday 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, Representatives 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.