Reporter’s Notebook: Congress passes short-term FISA 702 fix, delays long-term renewal

If you give them an inch, they may take a mile.

And if you give Congress a deadline, they’ll probably take 13 days. Or perhaps 45.

Congress recently struggled to reauthorize the nation’s most effective, and arguably most controversial, spying program. After much division, lawmakers only renewed Section 702 of the Foreign Intelligence Surveillance Act (FISA) for 45 days. That was after a 13-day Band-Aid was applied last month.

This infighting produced a buzzer beater on Capitol Hill.

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Congress knew for months that Section 702 of FISA would expire in mid-April. But after yanking renewal for the program from the House schedule earlier this year — then stumbling through two failed proposals to reauthorize the program in the House, Congress re-upped FISA for a scant 13 days. That deadline bore down on lawmakers last week, with FISA programs expected to lose their congressional blessing in the wee hours of Friday, May 1.

"These are some of the most complicated public policy matters that Congress deals with. And they are all sandwiched together because of the deadlines that are upon us," observed House Speaker Mike Johnson, R-La. "There's still some negotiation, deliberation and consternation." 

With the 13-day program patch on the precipice of expiration, House Republicans planned to pass a three-year extension — but the bill included a provision to also bar the potential creation of a "digital currency" by the Federal Reserve. Such a crypto mechanism isn’t in the offing right now, and it has nothing to do with FISA directly. But libertarian lawmakers fear that the government could track the financial transactions of Americans if the Fed initiated a digital financial asset.

Senate Majority Leader John Thune, R-S.D., said the upper chamber would reject any bill that included the digital currency provision.

Even so, Johnson forged ahead with the FISA reauthorization featuring the digital currency ban. 

"The Senate knows exactly what we're doing," said Johnson when asked if it was responsible to load up the FISA bill with the digital asset language, despite the admonition from Thune with FISA Section 702 on the verge of collapsing within hours.

"I speak with Leader Thune all the time. They're watching this very closely. And hopefully they can process what we send them."

Rep. Chip Roy, R-Texas, was one of the biggest advocates of outlawing the establishment of a digital currency by the Fed. Yours truly pressed him on why that provision had to ride on the FISA bill.

"Government monitoring of the people," responded Roy. "(People) don't want to have surveillance in their cars. They don't want their currency tracked or blocked. And they don't want the government looking at their correspondence and their emails. They all think it's the same stupid crap. But the government is looking at all of our stuff."

Which brings us to the essence of FISA.

Libertarian lawmakers believe FISA Section 702 is too intrusive, sweeping up practically every electronic communication imaginable. It doesn’t tell the government what is said in those communiques, but it does document who is sending what to whom.

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In fact, President Trump formerly opposed reauthorizing FISA.

Some object to reauthorizing FISA because of the Russia investigation involving Trump and the 2016 election. However, the surveillance authorized in that inquiry was related to Title 1 of FISA and entailed customary court orders, not special information gathering as authorized by Section 702.

FISA Section 702 does not require a warrant. And lawmakers from both sides of the aisle argue that allowing the government to vacuum up prodigious amounts of information about people without a warrant violates the Constitution’s 4th Amendment protection against "unreasonable searches and seizures."

"There were some people that were holding out for a warrant. And I think they realized that probably was not a tenable position," said House Intelligence Committee Chairman Rick Crawford, R-Ark. "There were a whole lot of safeguards that have been woven into the text of the bill."

House Republicans finally adopted a procedural measure allowing members to debate the farm bill – and simultaneously consider a measure to eventually pay Border Patrol and ICE plus the FISA measure. But this was only successful after a nine-hour negotiation.

The House then passed the three-year extension of FISA Section 702 the day before the program was set to lose its congressional authorization. But most knew that plan was dead on arrival with the Senate.

Some senators opposed a lengthy extension — and the language on the digital currency was a non-starter for many senators, both Democrat and Republican.

So there was fear that FISA Section 702 could lapse.

"If we go to bed tonight, and we don't have that program in place, I fear there will be blood on our hands," said Rep. Mike Flood, R-Neb., fretting about the possibility of a terrorist attack.

"History may judge the lapse of Section 702 authorities as one of the worst intelligence failures of our time," warned Rep. Jim Himes, D-Conn., the top Democrat on the House Intelligence Committee.

But some FISA Section 702 advocates asserted proper reforms were in place, and they could now support an extension.

"If you abuse FISA now, you are going to prison," declared Rep. Derrick Van Orden, R-Wis.

The House-Senate tension didn’t deter Johnson from forging ahead with the three-year plan.

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"We're calling on them to do the job — pass the House's bill and get this done. Check the last box," said Johnson.

"They're not going to take the House bill," I told the Speaker about the Senate. 

"Well, they don't seem to have another alternative," Johnson replied.

But there was another alternative.

The Senate disregarded the House’s action and cleared a 45-day Band-Aid for FISA Section 702 with all 100 senators agreeing offstage. The Senate then approved it by unanimous consent.

Section 702 skeptics secured a promise that the intelligence community would fork over declassified information about how the feds misused FISA. 

"Every day that Section 702 is extended without meaningful reforms is a day that the program can continue to be abused," said Sen. Ron Wyden, D-Ore.

But some Democrats have reservations about granting FISA authority to the Trump Administration.

"Have you seen (FBI Director) Kash Patel?" asked Rep. Alexandria Ocasio-Cortez, D-N.Y. "He has demonstrated that he is willing to violate American civil liberties."

The House then aligned with the Senate, syncing up on the six-week extension. 

But this is what’s interesting: Let’s say Congress failed to act on FISA Section 702 before the deadline last week. The program would not go completely dark.

Sean Vitka of Demand Progress notes that the special court overseeing FISA reauthorizes the program "for a year-long basis. So it's actually been reauthorized just a month ago into March of 2027."

In theory, inquiries and investigations don’t stop cold turkey even if Congress hasn’t renewed the law.

But that grace period isn’t good enough for many lawmakers and those within the private sector. Intelligence agencies may have the right to still obtain information from telecommunications firms, but those companies might not comply and may fear legal exposure. Thus, it’s believed that companies would only provide data to the government if they have legal cover from Capitol Hill.

"The question is whether the carriers will feel that they have sufficient legal protection to continue to cooperate," said George Croner, the former principal litigation counsel for the National Security Agency.

So even though Johnson warned about there being no "alternative," the House voted to align with the Senate — and FISA Section 702 operates for another 45 days.

Of course, Congress was supposed to work this out a few weeks ago. And since then, as Johnson said, there has been nothing but "negotiation, deliberation and consternation" over the spy program.

At the rate things are going, that trifecta will return to Capitol Hill in mid-June as FISA Section 702 faces yet another deadline.