Latest Draft NDAA Would Extend FISA Surveillance Authorities

Bicameral draft language released Thursday for Congress’ $900 billion defense bill includes a four-month extension of the FBI’s controversial foreign intelligence surveillance authority (see 2312060048).

The House and Senate agreed on a draft National Defense Authorization Act that includes an extension through April 19 for the Foreign Intelligence Surveillance Act. There is wide bipartisan, bicameral support to update surveillance authorities under FISA Section 702, but the Senate and House intelligence committees and the House Judiciary Committee have each presented different proposals.

The House Judiciary Committee on Wednesday passed a bill containing a warrant requirement, an element missing from the Senate Intelligence and House Intelligence bills. House Intelligence unanimously passed its legislation during markup Thursday.

Provisions included in the House Judiciary Committee’s bill are “downright terrifying,” said Rep. Dan Crenshaw, R-Texas, during Thursday’s markup. The bill would “effectively dismantle FISA Section 702 as we know it,” he said: It’s the equivalent of forcing police to get a warrant every time they want to run a license plate number.

House Intelligence Chairman Mike Turner, R-Ohio, and ranking member Jim Himes, D-Conn., emphasized that the committee has spent the past year working on bipartisan legislation. Himes noted the bill would ban FBI queries to uncover “evidence of a crime” and would remove all doubt that FISA applies only to foreign targets. The legislation includes a 90% decrease on the number of FBI employees who can approve a U.S.-person query under the program, bringing the total to about 550 FBI attorneys and supervisors. The legislation also requires the FISA court to appoint an amicus each time the government seeks to renew its annual certification of Section 702. It’s not the “perfect” bill, but this is how “you legislate” with wide-ranging views, said Himes.

The House Judiciary version would expand constitutional rights of foreigners traveling in and out of the U.S. and create civil liability for telecommunications companies that hold this data, said Turner. The existing Section 702 doesn’t allow intelligence officials to target “any Americans without a warrant,” Turner said. Over the years, Section 702 was reauthorized with “very little fanfare,” but the current reauthorization is “in the spotlight because of the [FBI's] well-documented abuses,” Turner claimed.

The inclusion of “clean” reauthorization for FISA 702 is “unacceptable,” Sen. Mike Lee, R-Utah, said Thursday. “If it passes, warrantless ‘backdoor’ searches of Americans will continue -- at least for a few months & maybe longer. ... I have no choice but to oppose the NDAA. The Fourth Amendment matters.”

The House Intelligence Committee’s 30-minute markup, where no amendments were considered, included criticism from Rep. Joaquin Castro, D-Texas. He raised concerns about language in the bill that might let officials abuse Section 702 authority when vetting foreigners at the border. It opens the door for “xenophobic” officials to use the Section 702 database for unjust purposes, he said.

Del. Stacey Plaskett, D-V.I., said the House Intelligence Committee bill “strikes a delicate balance” between protecting civil liberties and national security. She credited the committee for including language that expands the definition of foreign intelligence to include counter-narcotics efforts, which are key to the region she represents.