In spite of a growing bipartisan coalition urging reform, the establishment of both parties in the House of Representatives helped push through a controversial extension of the notorious “Section 702,” reauthorizing warrantless mass-spying on Americans.
Under the Foreign Intelligence Surveillance Act (FISA), agencies like the National Security Agency are allowed to engage in mass collection of communications that take place with one party in the United States and another overseas. On a 233 to 188 vote, the House voted against an amendment that would have required a warrant to use such intercepts in criminal prosecutions against Americans.
Bi-partisan coalitions formed on both sides of the argument over Section 702
Defenders of the 4th Amendment assembled a fairly impressive bipartisan coalition in the face of opposition from party leaders in both chambers, including Democratic minority leader Nancy Pelosi. The effort in the House was led by Rep. Justin Amash (R-MI), paired with civil libertarians in the Senate like Sens. Rand Paul (R-KY), Ron Wyden (D-OR), and Mike Lee (R-UT).
In spite of Pelosi lobbying for votes against the amendment, a majority of Democrats in the House did vote for it, together with a significant number of Republicans.
According to Paul, the proposal passed by the House is actually worse than current law, by explicitly allowing the use of information obtained without a warrant in criminal prosecutions of Americans.
This is the exact opposite of the original intent of FISA, passed as part of the post-Watergate and post-Hoover reforms of federal intelligence and law enforcement agencies. Originally, the premise of FISA was to permit a lower standard for counterintelligence surveillance such as monitoring Russian spies, but information so obtained could not be used in criminal prosecutions.
This compromise was supposed to let the FBI do its job of monitoring foreign intelligence agents in the United States, without violating the right of Americans to not have warrantless searches used against them in court.
The establishment will get the spying bill through the Senate with ease
The bill will now have to proceed to the Senate, but the House vote was more closely watched. It is unlikely that opponents of Section 702 will be able to muster enough votes in the Senate, which tends to be less receptive to these concerns.
In a bit of characteristic confusion, Donald Trump got in on the act with a tweet apparently critical of 702, linking it to the notorious “Steele Dossier” and the FBI’s request for a FISA warrant on Trump campaign staffers in 2016. He then rapidly reversed course after a frantic phone call from Speaker Ryan and his own chief of staff John Kelly, who was on the Hill helping to whip votes for 702 renewal.
It’s telling, but perhaps not surprising at this point, that Donald Trump only wanted surveillance reform when he thought he himself was a victim of abuse. When it was pointed out to him that his own administration wanted these powers, he quickly and transparently changed his tune over the course of just ninety minutes.
With Congress capitulating and an executive branch that can’t even keep its own position straight, it will now fall to the courts to reign in Section 702, a prospect that has unfortunately met with little success so far.
(Speaker-elect of the House Paul Ryan (R-WI) (C) and Minority Leader Nancy Pelosi (D-CA) (L) applaud on the floor of the House chamber at the U.S. Capitol October 29, 2015 in Washington, DC. Ryan was elected the 62nd speaker of the House with 236 votes and will attempt to steer that chaotic legislative body following the resignation of former Speaker John Boehner (R-OH) by Chip Somodevilla/Getty Images)