Reporter's Notebook: House chaos sparks emergency FISA extension
"Never leave that till tomorrow which you can do today," said Ben Franklin.
If sloganeering was left to Congress, the motto might read, "Never do today what you can leave till tomorrow."
That is emblematic of the recent scramble on Capitol Hill to renew the key terrorism prevention program known as FISA Section 702. Congress faced a deadline to re-up the program before 11:59:59 p.m. ET on April 20. Lawmakers fretted that it was risky to let the program expire. They worried that the U.S. may be vulnerable to a terrorist attack because of the war with Iran.
President Donald Trump insisted that Republicans "UNIFY, and vote together" to pass an 18-month extension of FISA without any add-ons. The president argued that the FISA program was among "the reasons we have had such tremendous SUCCESS on the battlefield."
So the House GOP brass planned to pass the 18-month FISA reauthorization last Wednesday. But it’s about the math. An eclectic alliance of Democrats and Republicans both supported and opposed the bill. Either way, the measure lacked the votes to pass.
"The coalitions around FISA have traditionally been kind of scrambled," said Rep. Kevin Kiley, I-Calif.
So despite the promise of a late-night vote Wednesday, the House GOP brain trust punted until Thursday as they scrambled to find the votes and prevent FISA from going offline.
"FISA will not go dark. We have a little slight delay. We're working through and building consensus as we do on all difficult issues, and we'll get there. We'll get it done," promised House Speaker Mike Johnson, R-La.
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Some Republicans balked at the 18-month extension.
"I want warrants to surveil American citizens. And the Fourth Amendment is not for sale. I don't want our federal government buying data from private companies on American citizens," said Rep. Lauren Boebert, R-Colo.
FISA is designed to reap foreign intelligence data, but it sometimes vacuums up the telephone communications of Americans — and even documents their locations. Tapping so much metadata is what led to the government trying to tie Trump to Russian interference during the 2016 election cycle. But despite his past opposition, the president did an about-face and demanded passage of this FISA measure.
"The President of the United States has said, ‘This is what I want, this is what I need.’ And there are rank-and-file Republicans bucking him," I pointed out to House Intelligence Committee Chairman Rick Crawford, R-Ark.
"Well, it's a little bit surprising," replied Crawford, since most congressional Republicans routinely line up behind Trump. "I think I think maybe the president's a little bit surprised by that, too."
One Trump ally says if the bill is good enough for the president, it should be good enough for House Republicans.
"This program is critical. It helped us with the operation in Venezuela. It's certainly helping us with the operation going on in Iran as we speak," said House Judiciary Committee Chairman Jim Jordan, R-Ohio.
But to some Republicans, entreaties by the president don’t matter on this bill.
"Look, he's [President Trump], the executive [branch]. We're the legislative [branch], and we're going to see a little bit of conflict between those two today," said Rep. Andy Harris, R-Md., chairman of the House Freedom Caucus.
But as we said, support or opposition for FISA doesn’t break along party lines. Dozens of Democrats are leery about letting the program go dark.
"This is our single most important collection authority," said Rep. Jim Himes, D-Conn., the top Democrat on the Intelligence Committee. "If we just go dark on that stuff, a lot of people are going to get hurt. And that's why we just can't let it expire."
But even if the House passed the bill, it still needed to align with the Senate. Alarms were sounding around the Capitol as the Monday night deadline loomed.
So the daylight came and went last Thursday without action on the FISA bill as the deadline approached this week.
Yours truly chased down Johnson in Statuary Hall of the Capitol.
"You’re going to try to move this on the floor tonight?" I asked the speaker about FISA.
"I am. It will be late tonight, but we’ll get it done," replied Johnson.
Fox was told that House Republicans would have an attendance problem on Friday. Some members of the Arizona delegation wanted to head to the Grand Canyon State for Trump’s speech there. Plus, waiting until this week wouldn’t give the Senate much turning radius to align with the House.
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"And the concern is that you have to get it done today because you might lose some people tomorrow, and the Senate doesn’t come back until Monday and that’s right up against the deadline?" I continued.
"A bird in hand is worth several in the bush. I’ve got them all here and I need to get it done," answered Johnson.
A group of bipartisan lawmakers say an extension is essential to guard against terrorism. Especially as the U.S. fights with Iran.
"My concerns are significant because FISA is the single most important national security asset we have in the intelligence field," said Sen. Angus King, I-Maine, a member of the Intelligence Committee.
"If you want to blind the United States intelligence community and the military, this is a perfect way to do it," added Sen. John Cornyn, R-Texas.
But regardless of risks, FISA skeptics demand reforms like warrants and criminal prosecutions for alleged abuses.
"We’re always threatened that there's something very bad is going to happen and people will die if we don't reauthorize (FISA Section) 702," said Boebert.
CONSERVATIVE FISA REVOLT POSES FRESH TEST FOR SPEAKER JOHNSON
But there was concern that even if the House passed something, the Senate wouldn’t have the availability to sync up until Monday. Most senators left Washington for the week on Thursday afternoon. Such a scenario would potentially give the Senate a few hours to align with the House when senators returned to Washington Monday, just hours before the deadline.
"Is that responsible by the Senate to leave?" I asked Sen. John Kennedy, R-La.
"Well, there's no reason to stay if we're not going to have votes," replied Kennedy.
By nightfall, everyone watched to see if Johnson could make good on his promise of passing the 18-month extension. But not long before 11 p.m. ET, the House lurched from that plan to a five-year reauthorization.
The House blocked that plan. Then backpedaled and adopted an emergency bill to salvage FISA for a scant 13 days.
"What was Churchill's line? ‘Democracy is the worst form of government except for all the others?’ So sometimes it gets kind of messy when you're trying to craft together an agreement," said Jordan.
Democrats were appalled at the nocturnal whiplash.
"Are you kidding me? Who the hell is running this place?," asked an incensed Rep. Jim McGovern, D-Mass., the top Democrat on the Rules Committee, on the floor. "Republicans threw it together on the back of a napkin in a back room in the middle of the night."
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Staunch conservatives argued for muscular spy powers.
"Failing to reauthorize this statutory authority would be a massive setback, and one that our adversaries would exploit immediately," said Rep. Austin Scott, R-Ga.
And liberals worried about government overreach.
"There have been so many abuses lately. And this is only going to grow with artificial intelligence," said Sen. Ron Wyden, D-Ore., a member of the Intelligence panel.
So congressional leaders are trying to strike a balance.
"What we're trying to do is thread the needle of ensuring that we have this essential tool to keep Americans safe but also safeguard constitutional rights," said Johnson.
FISA skeptics insist on warrants.
"We just want to make sure that the guardrails are there," said Rep. Mark Harris, R-N.C., who voted to block the five-year extension early Friday.
So the House passed the Band-Aid bill by unanimous consent around early Friday morning. The Senate cleared the same package by unanimous consent later the same morning.
Wyden came to the floor Friday morning but didn’t object. The Oregon Democrat believes it would be harder to impose reforms had FISA lapsed. So he’s willing to keep it going, for now. However, Wyden made clear that he expected to see reforms between now and the new deadline. Otherwise, he might stand in the way next time.
Another punt. Another new deadline. More parliamentary procrastination.
And at the rate Congress is going these days, if they didn’t delay issues, they might not have anything to show for their efforts at all.