Mike Johnson pulls FISA renewal bills from consideration on House floor

House Speaker Mike Johnson has pulled two pieces of legislation that would reauthorize and reform Section 702 of the Foreign Intelligence Surveillance Act (FISA) after strong backlash.

Rep. Thomas Massie told the Washington Examiner that bills sent to the House Judiciary Committee and Intelligence Committee would not be voted on this week.

The plan initially was to put both bills to a vote on the floor and allow members to vote for them. The one that received the most votes would be the one that passed the House, known as a "queen of the hill" vote.

In a conference meeting, Rep. Warren Davidson, who sits on the Judiciary Committee and helped draft that version of the bill, accused Intelligence Committee Chairman Mike Turner of "f*cking lying" about the judiciary bill.

Following the meeting, members expressed discontent with the "queen of the hill" tactic, and urged Speaker Mike Johnson to pick one of the bills.

“I think the former speaker said it very well when he said we should take the time it takes to get one bill and take the time it takes to get it right,” said Judiciary Committee member Rep. Darrell Issa.

The bills have now been pushed into next year, and the House is expected to vote on Thursday on the National Defense Authorization Act, which includes a short-term extension of FISA until April 19, 2024.

Some members have opposed this short-term extension, with Rep. Andy Biggs saying, "I’m really disappointed that we're talking about a four-month extension in the authorities of FISA. So we should be laboring through to get this thing done, in my opinion."

Section 702 of FISA allows the federal government to surveil foreigners without a warrant for national security purposes, which is collected into a database of foreign intelligence that also includes information on US citizens who may have been communicating with people overseas.

Abuses of FISA have been documented, with members of the House wanting reforms to prevent this, but disagreeing on how to go about it.

In the Judiciary Committee version of the bill, all FISA queries on US citizens would require a probable cause warrant. In the Intelligence Committee’s version of the bill, warrants would only be required for FBI officials, and would only apply in a limited number of situations.

FISA was enacted in 1978 and set forth "procedures for physical and electronic surveillance and collection of foreign intelligence information," according to the Department of Justice. FISA activities are subject to Congressional oversight.

FISA established the Foreign Intelligence Surveillance Court, to which the Department of Justice must apply to obtain a warrant. Agents must demonstrate probable cause to believe that the "target of the surveillance is a foreign power or agent of a foreign power," that "a significant purpose" of the surveillance is to obtain "foreign intelligence information," and that appropriate "minimization procedures" are in place. Agents, however, do not need to demonstrate that the commission of a crime is imminent.

The act was expanded under 2001’s Patriot Act, which according to the Department of Justice, "Helped tear down the so-called FISA 'wall’ that prevented effective information sharing between law enforcement and intelligence personnel."

The act was misused by the FBI over 278,000 times between 2020 and 2021 against crime victims, January 6 riot suspects, George Floyd rioters, and 19,000 donors to a congressional candidate, according to court documents that were unsealed in May.

Section 702 was created after Sept. 11, 2001, allowing intelligence agencies to gather communications and data such as emails, texts, and phone calls on foreigners living abroad, without a warrant.

While the provision states that intelligence agencies cannot use the section to target Americans, data on US citizens is still collected when citizens interact with foreign targets, known as "incidental" collection.

Groups such as the American Civil Liberties Union have opposed the section, arguing that it has been used as a "backdoor" tool for gathering information on Americans.