Speaker Mike Johnson should note that conservatives and liberals agree in demanding that he not use the current spending package to reauthorize the FBI’s unconstitutional warrantless spying on American citizens.
Congress first enacted the Foreign Intelligence Surveillance Act (FISA) in 1978 to set up a legal framework for spying in other countries. Lawmakers added Section 702 of FISA after 9/11. It allows intercepting emails, texts, and phone calls from of individual foreigners overseas.
The Fourth Amendment to the U.S. Constitution requires a search warrant before law enforcement can spy on a person. It requires a federal judge to sign off on a warrant sworn out by a law enforcement officer that specifies the crime in question and what they are looking for. The judge must conclude that the submission amounts to probable cause that the warrant will uncover evidence of that crime. Its protections limit the powers of law enforcement at the federal, state, and local levels.
President George W. Bush is applauded after signing the Foreign Intelligence Surveillance Act (FISA) at the White House on July 10, 2008. From left: Vice President Dick Cheney, Sen. Joseph Lieberman (I-CT), and House Minority Leader John Boehner (R-OH). (AP Photo/Ron Edmonds)
FISA warrants don’t need approval from a federal judge in the normal process required by the Fourth Amendment. There is a special court called the Foreign Intelligence Surveillance Court (FISC). Only government lawyers get to present arguments at FISC. No one is there for the people being targeted.
Section 702 thus as a practice facilitates surveillance of Americans without a warrant, which would horrify those who wrote and ratified our Bill of Rights. Even without abuses, FISA scoops up communications that Americans have with those targeted individuals. Those communications are stored for years, and the FBI is able to search some of those records without a warrant.
But stories are rampant that there are abuses – what amounts to illegal spying on U.S. citizens. Conservatives and liberals alike have been demanding that Congress address these abuses by reining in this government power.
The number of FISA searches has skyrocketed with literally hundreds of thousands of warrantless searches per year – many of which involve Americans. Even one abuse of a citizen’s constitutional rights must not be tolerated. When that number climbs into the thousands, Congress must step in.
The House Judiciary Committee agrees. Chairman Jim Jordan (R-OH) led a bipartisan effort to reform FISA to require search warrants issued by a federal judge, and the measure passed the committee 35-2 in December. Constitutional conservatives like Jordan were joined by strident liberals like Reps. Jerrold Nadler (D-NY) and Pramila Jayapal (D-WA) in voting for the legislation. Rep. Andy Biggs (R-AZ) of the House Freedom Caucus even thanked his liberal committee colleagues for their votes, marking a rare moment of bipartisanship indeed.
From left: Rep. Andy Biggs (R-AZ), Chairman Jim Jordan (R-OH), and Rep. Pramila Jayapal (D-WA) at a House Judiciary Committee meeting on January 10, 2024, in Washington, DC. (Tom Williams/CQ-Roll Call, Inc via Getty Images)
Rep. Andy Biggs (R-AZ) speaks during a news conference on FISA reauthorization at the U.S. Capitol in Washington, DC, on Feb. 13, 2024. (Al Drago/Bloomberg via Getty Images)
Liberal groups like the ACLU support reforming FISA, joining forces with conservative civil rights groups. This reflects a consensus almost unseen on so many other important issues of our day.
Speaker Johnson needs to take note of that as he faces pressure from some in the intelligence community and their overseers in Congress, who are calling for reauthorizing this controversial law without major reforms and putting that reauthorization in one of the spending bills that will work its way through Congress this month.
Even the supporters of straight-up reauthorization admit that FISA has serious implications for Fourth Amendment rights. Legislation that threatens the constitutional rights of Americans deserves to be debated in standalone legislation, not to be used to hold hostage legislation that many lawmakers consider must-pass, in which they will stomach measures that they would normally reject.
The fact that supporters of warrantless searches are trying to force the continuation of that power into government-wide spending legislation speaks to their desperation. Johnson needs to remember the margin on the vote to reform, 35-2, and insist FISA be kept out of the spending fight.
Ambassador Ken Blackwell is Chairman of the Conservative Action Project and Senior Fellow for Human Rights and Constitutional Governance at the Family Research Council. Follow him on X @kenblackwell.
