In a surprising turn of events, the House of Representatives has failed to pass a procedural vote on the reauthorization of the Foreign Intelligence Surveillance Act (FISA), dealing a significant blow to the GOP leadership under Speaker Mike Johnson and securing a major win for the American people.

The collapse of the vote marks the fourth time a rule vote has failed during Johnson’s speakership, further exacerbating internal divisions within the Republican Party.

The failed vote on Wednesday came after former President Donald Trump urged House Republicans to “KILL FISA” adding to the growing opposition within the party (and elsewhere). The bill, titled the “Reforming Intelligence and Securing America Act” aimed to reauthorize Section 702 of FISA for five years and implement a series of reforms.

The proposed legislation failed to garner the necessary support, with 19 Republicans joining Democrats in voting against the procedural measure. However, the fight is far from over as the US intelligence community is fighting to keep its unconstitutional power to spy on essentially whoever it wants with no warrants, let alone consequences.

Understanding FISA and Section 702

FISA is a federal law that establishes procedures for intelligence gathering, primarily targeting foreign nationals (supposedly). However, it has been a source of controversy due to its unconstitutionality and its frequent, illegal use to infringe on the 4th Amendment rights of American citizens.

how to reform FISA

The most contentious aspect of FISA is Section 702, which allows the government to collect the communications of non-Americans located outside the United States without a warrant.

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While the law is intended to target foreign individuals, it inevitably captures the communications of American citizens who are in contact with those targeted individuals. Essentially, the intelligence agencies collect entire swaths of data from around the world and collect it into a massive database, all without warrants.

This has led to concerns about the government’s ability to perform “backdoor searches” on Americans’ private communications, such as emails, text messages, and phone calls, without obtaining a warrant. These concerns are more than warranted as the intelligence agency has unabashedly broken these rules to spy on Americans without a warrant literally hundreds of thousands of times. We’ll deep dive into some of the misuse later on so keep reading.

The Ongoing Debate and Proposed Reforms

The reauthorization of Section 702 has been a source of fierce debate in Congress, with lawmakers on both sides of the aisle expressing concerns over the potential for abuse and the violation of civil liberties.

While some politicians are pushing for a complete end to the unconstitutional law, most are trying to play to the intelligence community and its massive lobbying efforts to simply tone it down. Some conservative Republicans, along with progressive Democrats, have pushed for significant reforms to the law, including a requirement for the government to obtain a warrant before accessing the communications of American citizens. It’s strange that this would even be necessary as this rule has been enshrined in the constitution under the 4th Amendment since 1791 but at least it’s something.

The Reforming Intelligence and Securing America Act, the bill that was set to be voted on, did not include this warrant requirement, leading to harsh opposition from lawmakers who believed it did not go far enough in protecting Americans’ right to privacy.

This divide within the Republican Party ultimately led to the failure of the procedural vote, as a group of 19 GOP members, including representatives such as Matt Gaetz (R-Florida) and Chip Roy (R-Texas), joined Democrats in voting against the measure.

“What we ended up with was a bill that didn’t have the warrant protections in the bill. It was going to be forced to be added as an amendment. And then the Speaker of the House put his finger on the scale against the amendment. And that pretty much is the story”, Roy told reporters shortly after the vote concluded.

The Consequences of the Failed Vote for the GOP and Mike Johnson

The failure to pass the procedural vote on the FISA reauthorization leaves the future of the program in limbo. Section 702 is set to expire on April 19. Without Congressional action, the intelligence community could lose what it calls a crucial tool in its efforts to gather foreign intelligence and counter threats to national security.

The collapse of the vote also represents a significant setback for Speaker Johnson, who has struggled to maintain unity within the Republican party on a range of issues. The repeated failures of rule votes under his leadership have weakened his position and raised questions about his ability to effectively govern the House.

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“I’ll just say that it’s never helpful for the majority party to take down its own rules. And what it does ultimately, of course, is it weakens our hand in negotiations with the Senate and the White House, and so it’s not a good development but look, we’re going to work by consensus. We have to get the job done.”, Johnson briefly commented after the failed FISA vote.

Moreover, the divisions within the Republican Party on the FISA issue could have broader implications for the party’s stance on national security and civil liberties. The rift between the more security-focused members and those concerned with protecting individual rights could become a defining issue as the party grapples with its identity and policy priorities.

Finally, the vote gives hope to privacy-focused Americans who have watched Congress constantly reauthorizing the obviously unconstitutional FISA Section 702. The rising opposition to it may not be able to stop its reauthorization entirely this time around but it may be getting close.

Few Options on the Table for Johnson to Keep FISA Going

With the failure of the procedural vote, House leadership is now scrambling to find a way forward. Johnson has stated that the House will “regroup and formulate another plan” to address the expiration of Section 702, though it remains unclear what that plan might entail.

“We cannot allow Section 702 of FISA to expire. It’s too important to national security. I think most of the members understand that.”, Speaker Johnson further commented. You would think that adding a warrant requirement for searches on US citizens would be an easy compromise as that’s the main sticking point for its opponents but apparently that’s too onerous for the intelligence community.

One possible scenario is that the House could try to pass a short-term extension of the FISA authority, effectively kicking the can down the road and delaying a more comprehensive debate on the issue.

Alternatively, the House could attempt to negotiate a compromise with the Senate, which may be inclined to pass a “clean” reauthorization of the program without the reforms sought by the House’s conservative faction.

However, any path forward will likely face significant opposition, both within the Republican Party and from civil liberties advocates who have long pushed for more stringent protections against government surveillance.

Failing to reach a resolution before the April 19 deadline could result in the lapse of Section 702, a prospect that has national security officials and lawmakers deeply concerned.

The FISA Debate – Unconstitutional or Necessary?

The debate over FISA and Section 702 goes beyond the immediate legislative battle. It touches on fundamental questions about the balance between national security and individual privacy, and the role of government surveillance in a democratic society.

Critics of the law argue that the government’s ability to conduct warrantless searches of Americans’ communications under Section 702 represents a clear violation of the Fourth Amendment’s protections against unreasonable search and seizure. This isn’t just a few rare cases of infringed rights either.

Critics point to a growing list of abuses including the FBI’s improper searches for the communications of members of Congress, journalists, and civil rights protesters as evidence of the need for significant reform.

“The FBI has performed “tens of thousands” of unlawful searches “related to civil unrest,” including searches targeting 141 people protesting the murder of George Floyd and more than 20,000 people affiliated with a group suspected of involvement in the January 6 attack on the U.S. Capitol.”, writes Noah Chauvin from the Brennan Center for Justice.

“Today, Congress knows that intelligence agencies have repeatedly abused their authority by spying on Americans without a warrant, exploiting legal loopholes that allow them to do so. The solution now is the same as it was then: If intelligence agencies want access to Americans’ private communications, they must first get a warrant.”, Chauvin added.

Defenders of the program, including intelligence community officials and some lawmakers, contend that Section 702 is a crucial tool in the fight against terrorism, cyber threats, and foreign espionage. They argue that a warrant requirement would hamper the government’s ability to quickly respond to evolving threats and potentially endanger national security. They have shown no proof of this as of yet.

“If you’re an American and you’re corresponding with ISIS, yes, if we’re spying on ISIS, your communications are going to be captured”, said Michael Turner (R-Ohio) and the Chairman of the Intelligence Committee.

“You would want us to do that. All Americans would want us to try to make certain that we keep ourselves safe.”, he added.

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The collapse of the FISA reauthorization vote may embolden critics of government surveillance, both within and outside of Congress, to push for even more sweeping reforms or the outright repeal of the law.

This could set the stage for a protracted and politically charged debate that could have significant implications for the country’s security and privacy landscape.

The fate of Section 702 and the future of government surveillance powers now hang in the balance as lawmakers scramble to find a path forward before the looming April 19 deadline.

As the legislative process unfolds, it will be crucial for all stakeholders to engage in a thoughtful and balanced dialogue to ensure that the final resolution strikes the appropriate balance between protecting national security and upholding the fundamental rights and freedoms enshrined in the Constitution.