Congress Bribes Itself To Renew Dystopian FISA ‘Sham Reforms’ That Actually ‘Codify Status Quo’

Late last year, Congress elected to punt the issue of FISA renewal – the Foreign Intelligence Surveillance Act that was designed to surveil terrorists in foreign countries, and has since been horrendously abused by the US intelligence community to target Americans – including former President Donald Trump.

Now, they have 10 days to go to come up with a permanent replacement. To that end, House Speaker Mike Johnson put forth “RISAA” – a bill backed by Ohio Rep. Mike Turner and the intelligence committee, and just passed through the House Rules Committee – where a final floor vote will likely take place on Thursday.

Privacy hawks, however, point out that it’s a steaming pile of shit with no meaningful language to protect privacy rights – except for members of Congress, who gave themselves a carve out which requires the FBI to notify and seek consent from Congress before spying on them.

🚨 Congress gives itself a carve out in the reauthorization of FISA 702 warrantless spying on Americans.

The bill requires the FBI to notify and seek consent from Congress before violating the privacy of Congressmen.

This will persuade many members of Congress to vote yes. pic.twitter.com/usKVeNnq3b

— Thomas Massie (@RepThomasMassie) April 9, 2024

What’s more, critics say the RISAA essentially codifies surveillance abuses into law.

Under Section 702 of the FISA, the government is authorized to gather foreigners’ communications if they have been flagged in connection with national security matters. The communications can be gathered even if the target was speaking about, or with, Americans.

“Speaker of the House Mike Johnson claims that RISAA reflects a compromise,” reads a joint statement from the Electronic Privacy Information Center, the Brennan Center for Justice and Freedomworks. “In reality, this bill is not a ‘compromise,’ and its 56 ‘reforms’ codify the unacceptable status quo.“

The bill has also caused a rift within the Republican party over privacy rights. As the Daily Caller‘s Reagan Reese notes:

The GOP is divided into two broad camps over various proposed reforms, perhaps most notably a warrant requirement. National security hawks aligned with the House Permanent Select Committee on Intelligence have expressed more opposition to the requirement and other privacy-minded reforms — members aligned with the Judiciary Committee are stressing that FISA must no longer be a tool that can be used to spy on Americans, like what happened with the Trump campaign. -Daily Caller

“It’s delicate right now. The place is about to combust,” one GOP source told the Caller on Monday.

According to FreedomWorks, “Of the 56 RISAA “reforms” Speaker Johnson highlights, at least 13 either codify existing practice and procedures, meaning they make NO CHANGES to the warrantless surveillance status quo, or they actively weaken existing protections.”

“I don’t think [RISAA goes far enough] I think that these are a lot of papered over reforms that FBI was doing internally, or were claiming that they’re doing internally,” Rep. Andy Biggs (R-AZ) told the Caller.

“RISAA doesn’t go nearly far enough in protecting Americans from illegal spying by their own government. It is a sham reform, and House Republicans should not vote for any FISA reauthorization that lacks a warrant requirement. Speaker Johnson and the GOP majority have a real opportunity to end this madness, and they should take it,” Rep. Mike Lee told the outlet as well.

House leadership, including @SpeakerJohnson and @RepJeffries, voted for a FISA 702 warrant requirement in 2018.

Now they’re both opposing a warrant requirement.

Why do the Intel Bros™️ get to tell House leadership what to do? https://t.co/hGsh7LeMs6

— Mike Lee (@BasedMikeLee) April 9, 2024

DC journalist Jim Bovard told the Caller: “Any member of Congress who supports extending FISA without radical reforms should receive a ‘Deep State-approved’ logo to burnish for their reelection campaign,” adding “If Congress cannot yank in the reins on the FBI and NSA after millions of confirmed violations of Americans’ rights, only a fool would expect Congress to ever give a damn about the Constitution.“

Digging deeper is Brennan Center for Justice co-director of the Liberty and National Security Program, Elizabeeth Goitein, who wrote on X:

Buried in the Section 702 reauthorization bill that the House will consider this week (RISAA) is a provision that could result in the *permanent* reauthorization of this deeply-flawed authority—without a single reform.

Here’s how. FISA currently includes a sunset date of April 19 for all of Title VII of FISA. Title VII includes Section 702, but it also includes other provisions (Sections 703, 704, and 705) that contain vital protections for Americans located outside the United States.

RISAA’s sunset provision includes two parts. The first changes FISA’s sunset date for Title VII to five years from the date of RISAA’s enactment. If RISAA were enacted and signed into law on April 19, the sunset date for Title VII would be April 19, 2029. So far, so good.

The second part of the sunset provision, however, states: “Effective five years after the date of enactment of [RISAA], [FISA] is amended so that Section 702 reads as it read on the day before the date of enactment of [RISAA].”

In other words, on the sunset date, Section 702 will revert back to the way it looked before RISAA. If RISAA is amended this week to include real reforms (it currently has none), those reforms will drop away, and Section 702 will continue in its current form.

Here’s the problem: Section 702 can’t simultaneously expire and revert back to its previous form. Those two instructions are mutually contradictory. How will the FISA Court make sense of this seeming contradiction?

(Note that Section 702 reverting back wouldn’t itself fix the problem by taking the sunset date back to April 19, 2024. The sunset provision isn’t contained in Section 702; it’s in Section 403(b).)

The most likely answer, I fear, is that the FISA Court will read the first part as creating a general rule: a sunset for Title VII. It will read the second part as creating an exception to the rule: for Section 702, only the changes made by RISAA will sunset, not 702 itself.

So all of the vital protections for Americans that are contained in Sections 703, 704, and 705 will expire, as will any reforms to Section 702 made by RISAA. We’ll be left with a permanent reauthorization of Section 702 in its current, incredibly dangerous form.

There might be other ways to harmonize these competing provisions. But I don’t trust the FISA Court to resolve what is, at best, an incredibly sloppy piece of legislative drafting in a way that favors the protection of Americans’ rights.

The House must NOT pass any legislation that could be read to permanently reauthorize Section 702, let alone permanently reauthorizing it without a single reform. This provision of RISAA must be fixed, or the bill should be DOA.

Read the rest of the report here…