Reforms to spy law pass despite GOP fracture

The House of Representatives voted on Friday to pass the Reforming Intelligence and Securing America Act by a vote of 273-147, overhauling one of the country’s chief spy tools and extending its authorization through 2026.

To almost half of the Republican lawmakers in the House, the bill upholds the power of the intelligence community to do its job. The other half see it as a failure to protect Americans’ constitutional rights.

“Look, the intelligence community does not run Capitol Hill. It shouldn’t,” said Rep. Byron Donalds, R-Fla., moments after the vote. “All of us want to have a secure nation. That’s critical. But at the same time, what we can’t have is an agency and a practice that then gets expanded.”

Donalds, like many lawmakers, has raised concerns over misuse of Section 702 of the Foreign Intelligence Surveillance Act (FISA). The law grants intelligence agencies the power to collect the private communications of non-U.S. citizens outside the United States who might pose a threat to national security. But in recent years, internal reports have revealed that the tool had also been misused to spy on Americans.

Agents have misused FISA authority to search the communications of journalists, romantic interests, and even a congressional campaign, according to the Privacy and Civil Liberties Board, an independent executive agency.

The bill passed Friday targets reforms at the FBI—the main domestic-facing agency in the intelligence community. The changes would require prior approval from a superior or an attorney to search Americans’ information and increase the reporting and oversight requirements for the bureau’s use of FISA power. And the bill includes new criminal penalties with up to 10 years behind bars for unauthorized orders or disclosures of collected information.

Steven Bradbury, a distinguished fellow at the Heritage Foundation, believes that those changes, if implemented, could go a long way to combat the tool’s misuse. Bradbury helped shape the legal parameters of Section 702’s powers when they were first developed under President George W. Bush in 2008. At the time, Bradbury served as head of the office of legal counsel at the Department of Justice. He estimated that roughly 70 percent of the president’s daily intelligence briefings come from information collected from FISA.

“The base bill certainly included some important reforms that need to be made,” Bradbury said. “All in all, a good package of reforms.”

In particular, Bradbury highlighted the new requirement for a second approval before a search of FISA databases that could include the communications of Americans.

“It would involve more robust amicus participation,” Bradbury said, referencing the use of legal experts.

Privacy hawks in the House didn’t take issue with any of those safeguards but demanded Congress go one step further. They wanted to add a search warrant requirement any time an agency queries a database of already-collected FISA intelligence that could include Americans’ information. The House considered an amendment that would have tacked on the warrant requirement, but it failed in a tied vote. House Speaker Mike Johnson, R-La., voted against it.

Rep. Chip Roy, R-Texas, said that without the warrant requirement, there’s still room for misuse.

“Every single person who voted no on an amendment to ensure that we have warrant protections for Americans owns it. Every single one. The speaker owns it. They own the fact that this protection has not been afforded all the Americans,” Roy said.

Opponents of the warrant requirement, most of them members of the House Permanent Select Committee on Intelligence, argued the base text of the bill went far enough. To them, the process of going before a special courtroom equipped for classified hearings and securing an order every time a case involved American information would needlessly hinder the intelligence community and further enable the country’s enemies.

Rep. Mike Turner, R-Ohio., chairman of the House Intelligence Committee, blasted the provision.

“We will be unable to see what Hezbollah is doing in the United States, what Hamas is doing in the United States.” Turner said. “This amendment would for the first time in American history give constitutional rights to our adversaries.”

As the bill heads to the Senate, some Republicans are furious that Johnson voted against the warrant provision—something Rep. Thomas Massie, R-Ky., believes breaks with precedent on contentious votes.

“I think on issues like this—a contentious issue—he picked a side, and he picked the side of the minority on this. And I think that’s a bad precedent to set. It was the deciding vote,” Massie said.

The bill faces one more procedural hurdle before it heads to the Senate. Rep. Anna Paulina Luna, R-Fla., submitted a motion to reconsider, which means the House must vote on the reforms one final time before moving on. The House must consider her motion within the week.

The bill also faces an uncertain path in the Senate amid similar tensions over the strength of the reforms. President Joe Biden has expressed his support for the bill.