Top Intel Dem warns Congress of potential lapse in warrantless spy powers amid quibbling over 702

The top Democrat on the House Intelligence Committee said he fears a lapse in the nation’s warrantless surveillance powers as Congress struggles to settle on a proposal or a pathway to reauthorize them ahead of an end-of-the-year expiration. 

Rep. Jim Himes (D-Conn.) said Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows the government to spy on foreigners located abroad, is at risk of expiring amid the congressional confusion, unwinding a top tool for addressing terrorism.

“I actually think there’s a very meaningful risk of a three-week period with no statutory authority at the moment in time when, arguably in my career, there is as much plotting going on against Americans as ever before, and to allow that authority to expire for even a day would be a massive mistake,” Himes told The Hill.

Himes’s concern is also a top fear of the intelligence community, which has warned of the risks to national security if the powers are allowed to lapse even briefly.

Himes, the ranking member on the panel, said his alarm stems from a decision by Speaker Mike Johnson (R-La.) to not include a reauthorization of FISA 702 in the defense policy bill, the National Defense Authorization Act (NDAA).

The move caters to demands from some in the Republican Party, who said such an important matter should only be addressed through stand-alone legislation.

But while Congress is soon to have four different Section 702 reauthorization bills to consider, lawmakers are deeply divided over how to reform the powers, including whether the intelligence community should have to first secure a warrant to review information gathered on Americans whose information is swept up as they communicate with those being surveilled. 

As Congress hammers out what proposal to convene around, Himes said lawmakers risk running out of time and that they need to at least pass a short-term extension of Section 702, something he previously called a “Plan B.” 

“You can air drop the whole reform bill into the NDAA. And you know, he decided not to do that. OK, that’s fair. But what you can’t do is not have a temporary extension. Because the next likely vehicle for reauthorization is the Jan. 19 successor to the [continuing resolution]. So just that alone is a potential 19-day, no-702 period, which is the period in which Americans get killed.”

Some privacy experts have suggested that court certifications for Section 702 mean warrantless spy powers should remain in effect until April, but the Justice Department said in a late Monday letter to Congress it sees such a status as risky, writing that the government’s ability to collect information “may be challenged.”

“That is exactly what happened in 2008 when Congress allowed a lapse in Section 702’s predecessor authorities, resulting in a loss of intelligence information,” the Department of Justice wrote to Judiciary and Intelligence leaders in both chambers.

FBI Director Christopher Wray made an impassioned pitch for reauthorizing the law without any warrant requirement, arguing such a requirement would not only serve as a barrier to acting on information in real time, but that it could also limit the intelligence community from warning those who are the targets of foreign terror plots.

“Allowing 702 to lapse or amending it in a way that undermines its effectiveness would be akin to laying bricks to rebuild another pre-9/11 style wall,” he said, nodding to efforts done to increase information-sharing among intelligence agencies to help foil terrorist plots.

“What could anybody possibly say to victims’ families if there was another attack that we could have prevented if we hadn’t given away the ability to effectively use a tool that courts have consistently deemed constitutional? Because let’s not fool ourselves. That’s what’s at stake with the reauthorization of 702,” he added. 

Politico reported Tuesday that Johnson is considering bringing competing Section 702 bills from the House Judiciary Committee and a coming House Intelligence plan set to be released Wednesday to the floor as amendments, moving forward only with the proposal that gathers the most votes — a so-called king of the hill floor battle.

Johnson’s office did not respond to request for comment on whether he would proceed with the idea.

That surprised one lawmaker working on a reauthorization plan. 

“Like the survivor approach to legislation to see who gets more votes,” the lawmaker said while laughing.