In 2020, Democrats were closer than they ever had been to reforming U.S. intelligence agencies’ vast surveillance powers since the most damaging parts of the Foreign Surveillance Intelligence Act, or FISA, were signed into law almost two decades prior. By that point, Edward Snowden’s 2013 revelations, showing that both the Bush and Obama administrations were sweeping up American phone records in bulk, had been festering in the public consciousness for years. The leaks — combined with right-wing outrage at how the FISA court had treated the Trump campaign — created an opening for civil liberties champions and their allies in Congress to start reining in rogue collection methods.
But on the cusp of their most promising effort to date, reformers were stymied by the unlikely alliance of then-Freedom Caucus Chair Jim Jordan, R-Ohio, and then-House Intelligence Chair Adam Schiff, D-Calif. Schiff, desperate to prevent reforms which would alienate him from both House leadership and the intelligence community, worked to water down progressive demands, as was reported at the time. In exchange for Freedom Caucus votes, Jordan received concessions to increase the attorney general’s oversight of FISA and toothless language increasing penalties for deceiving the FISA court. Having successfully neutered progressives’ hopes, and secured Jordan’s vote to force the weakened bill through committee with an up-or-down vote, the bill was sent to the Senate, where a brief authorization extension was approved but ultimately killed when it came back to the House, dooming reform.
Now, as the deadline for another FISA reauthorization looms at the end of this year, both lawmakers are in influential positions to again crush reform. Despite being stripped of his seat on the Intelligence Committee by the new GOP majority in the House, Schiff has endeared himself with Democratic Party leadership chairing Donald Trump’s impeachment hearings. Jordan, christened with new powers wrung from House Speaker Kevin McCarthy during a bloody leadership election, now controls the House Judiciary Committee.
“One major battle coming up this year is warrantless wiretapping authorization,” David Segal, co-founder of the progressive advocacy organization Demand Progress, told The Intercept. “We expect the same factors from 2020 will be in play and will create a serious opportunity to reform these opaque government surveillance authorities.”
“We expect this fight to pit ideologues in both parties against the national security establishment which has been responsible for myriad surveillance abuses from warrantless wiretapping to the metadata collection Snowden revealed and surely practices that we are not even aware of right now.”
In 2018, Trump signed a reauthorization of one part of FISA — Section 702 — extending the provision authorizing bulk data collection of non-U.S. citizens residing outside of the country for six years. While proponents of FISA claimed this provision protects Americans’ civil liberties by only targeting noncitizens residing outside of the United States, U.S. citizens’ data is routinely swept up under 702 FISA collection. Because Section 702 allows for targeting based on the exceedingly broad category of “Foreign Intelligence Information,” the dragnet cast by U.S. surveillance agencies collects data from U.S. citizens communicating with so-called non-U.S. persons.
Trump turned against FISA two years later, after a report compiled by Justice Department Inspector General Michael Horowitz found the FBI had abused FISA to surveil Trump campaign adviser Carter Page, forcing FBI Director James Comey to admit that the FBI had made serious mistakes in their handling of the case.
“If the FISA Bill is passed tonight on the House floor, I will quickly VETO it, Our Country has just suffered through the greatest political crime in its history. The massive abuse of FISA was a big part of it!” Trump tweeted.
The Carter Page incident created a new enemy in the FBI for Trump loyalists in the Freedom Caucus, and Jordan seized on FISA as another weapon of the “deep state” targeting Trump. The demands of the Freedom Caucus to rein in government surveillance overreach began to align with those of progressives who had long called for a tightening of FISA’s reach in light of the Snowden revelations.
As the sunsetting of multiple FISA provisions external to 702 approached in 2020, House Democrats began to fight over the extent of reforms to include in the reauthorization. Reformers including Congressional Progressive Caucus leader Pramila Jayapal, D-Wash., and Rep. Zoe Lofgren, D-Calif., began to push for major changes including an end to widespread phone data collection and broadened oversight mechanisms for the court’s internal workings. Then-House Judiciary Committee Chair Jerry Nadler sponsored the FISA reauthorization bill, and the committee scheduled a bill markup. Despite pressure from House leadership to stand down, Lofgren refused, forcing Nadler to take the extraordinary step of killing the markup of his own bill, in his own committee.
Then-House Speaker Nancy Pelosi and Schiff began to formulate alternative plans to see FISA renewal through to the president’s desk. At the same time that Schiff negotiated around the reforms proposed by Lofgren and other civil liberties advocates, he also began negotiating with Jordan. The deal struck with Jordan is buried in the amendments to the final bill, which would have given the U.S. attorney general — then Bill Barr — greater surveillance oversight of federal political candidates. Barr publicly pressed for the reauthorization.
In the end, everyone involved in the negotiations lost out in part. The intelligence community and its allies in Congress failed to secure a critical renewal of powerful surveillance tools at their disposal. Meanwhile, champions of civil liberties found themselves once again blocked at even partial reforms to FISA.
“In 2020 we exploited partisan crosscurrents and concern about mass surveillance on the left and right to ultimately watch the sunsetting of Patriot Act Reauthorization,” Segal, of Demand Progress, said.
Where Jordan and Schiff will come down on reauthorizing Section 702 this year remains unclear. Jordan has vowed to reform FISA in the upcoming Congress, but he could easily try to strike another softball deal that fails to significantly curb surveillance powers while playing to his political base.
Jordan and the rest of the Freedom Caucus members who repeatedly withheld their vote for House speaker earlier this month have laid out a vision of challenging the surveillance agencies they have framed as antagonists to Trump and his political vision. As chair of the brand new Select Subcommittee on the Weaponization of the Federal Government, Jordan has voiced his intent to investigate the FBI and DHS in the same way that the Church Committee was used to pursue intelligence agencies including the NSA and CIA during the mid-1970s.
One crack in FISA’s broad mandate has already started to show. In a 2022 unclassified report from the Office of the Director of National Intelligence, the agency’s civil liberties division notes that the Foreign Intelligence Surveillance Court “did not issue any Section 702 orders in 2021.”
It’s unclear whether the FISA court blocked Section 702 surveillance requests and why, as the justification for the extension is currently sealed. Civil liberties advocates are currently working to request through the Freedom of Information Act the rationale behind the blocked 702 authorization, which, if successfully revealed, could influence the course of congressional reform negotiations.
“The FISC’s protracted review tells us something important is going on behind closed doors,” Sarah Taitz, a legal fellow at the ACLU’s National Security Project told The Intercept. “It signals that the court has been grappling with novel or serious issues regarding this warrantless mass surveillance — and the public needs to know why. As Congress considers whether to reauthorize Section 702, Americans should not be in the dark about a spying program with immense consequences for our rights.”