Progressive activists have unleashed fury on Democrats after party leaders rallied to pass a bill expanding the government’s chief snooping authority without any major new safeguards for Americans’ privacy.
Democrats provided most of the votes as the House renewed Section 702 of the Foreign Intelligence Surveillance Act and, in a separate vote, shot down an attempt to add a requirement to the law that would have forced the FBI to get a warrant before it could snoop through the data for Americans’ communications.
The votes were a stunning reversal from just six years ago, when Democrats led opposition to FISA and Republicans were the snooping authority’s main backers, and it left civil liberties advocates pondering what changed.
“Dems tank tie vote on key privacy protections,” blared the headline of Demand Progress, a liberal pressure group.
“This is a sharp betrayal of every American,” said Sean Vitka, the group’s policy director. “Americans will not forget this stab in the back by the House, in particular those members who have pretended for years to be aligned with civil liberties.”
The bill renews Section 702 authority for two years, giving the government the power to scoop up massive amounts of communications of foreign targets overseas.
The legislation cleared the House on a 273-147 vote, but the real drama came with the amendment to add a warrant requirement. That amendment failed in a 212-212 tie vote, with 126 Democrats and 86 Republicans opposing the warrant.
FISA opponents plan to force a re-vote on Monday, hoping that public pressure — or the return of lawmakers who were absent from Friday’s vote — can change the outcome. If not, the measure will go to the Senate where its approval is likely.
Intelligence officials have begged for Section 702 to be renewed, saying they would be blinded to major terrorist threats and would lose eyes on other emerging dangers such as Chinese aggression or fentanyl smuggling.
FISA has always scrambled usual partisan lines, with the most conservative and liberal lawmakers finding common ground in suspicion of the intelligence community and worrying about core constitutional rights.
Traditionally, there have been more Democrats than Republicans fighting FISA. In 2018, the last time FISA was up for renewal, just 20% of Republicans voted against renewal, while 65% of Democrats did.
This year, the GOP opposition doubled to more than 40% but Democrats’ opposition fell to less than 30%, even though the legislation includes a significant expansion of FISA, stretching it to allow snooping on an even broader array of foreign intelligence activities.
On the issue of adding a warrant, Republicans used to be skeptical of the idea while Democrats were strongly in favor of it. Now that’s reversed.
Elizabeth Goitein, senior director of the Liberty and National Security Program at the Brennan Center for Justice, said she was “baffled” by last week’s votes. She said the chief explanation for Democrats’ reversal is President Biden, whose White House waged a massive pressure campaign “like nothing I’ve seen in my many years of doing this work.”
“White House officials were not only making calls today, they were standing outside the House floor, along with DOJ and CIA officials, telling Democrats that President Biden wanted them to vote against warrant protections for Americans and shamelessly misrepresenting the facts about backdoor searches and about this amendment,” Ms. Goitein said on Friday.
Patrick G. Eddington, a senior fellow at the Cato Institute who monitors FISA matters, said former House Speaker Nancy Pelosi was also instrumental in Democrats’ newfound support for the law.
In a forceful floor speech, the California Democrat called her party to deliver the FISA renewal to Mr. Biden and to reject the warrant requirement, saying it would “undermine” America’s security. Civil liberties advocates said it was tough to square her position now with past votes.
“I’m convinced that had Pelosi not taken to the House floor to advocate against a Fourth Amendment warrant requirement, the Biggs-Jayapal warrant requirement amendment would’ve passed easily,” Mr. Eddington, who served as a staffer to former Rep. Rush Holt, New Jersey Democrat, told The Washington Times.
“You’d have to ask Pelosi why she supported closing the 702 ‘back door loophole’ during Obama’s second term but has now opposed it with President Biden in office,” he said. “The facts about the 702 program now are far worse than they were back then.”
The Times reached out to the White House and Mrs. Pelosi’s office for this story.
Section 702 was first approved in 2008 and needs to be reauthorized regularly.
The current authorization runs through April 19, leaving just days for Congress to clear the bill.
House Speaker Mike Johnson had to labor heavily to cobble together a winning coalition to advance the renewal legislation in the House.
A key moment came when he agreed to cut the next renewal target for the law from five years to two years, meaning opponents will get another chance to force changes much earlier.
The legislation makes 56 changes to current law, including increased accountability at the Foreign Intelligence Surveillance Court and imposing criminal penalties for wrongdoing.
FBI Director Christopher Wray said those changes largely codify improvements he’s already made internally.
But he fought vehemently against the idea of a warrant, saying it would be too cumbersome in cases when the bureau can get one, and pointing to times when he said the bureau wouldn’t be able to get one at all.
He told of one plot the FBI uncovered last year where agents knew a terrorism suspect overseas had contact with someone the FBI thought was already in the U.S. Agents queried the person and uncovered a person who’d already amassed weapons and bomb-making materials and had circled targets.
“There is no judge on the planet that would have given us a warrant based on what we knew at the time,” Mr. Wray told Congress last week.