Another FISA Legislative Implosion

Patrick G. Eddington

These kinds of things can be hard to quantify, but I imagine that former President Trump’s blistering TruthSocial post this morning telling Congress to “Kill FISA” probably had some impact on the 19 House GOP members who voted against the procedural motion to bring the FISA “reform” bill to the House floor. The question now is what happens next?

One thing we can count on is that Biden administration officials and their pro‐​surveillance allies in Congress will now step up the fear‐​mongering over the looming April 19 expiration of the existing FISA Section 702 program. The reality is that any currently FISA Court (FISC) authorized surveillance will be unaffected, and FISA’s original emergency authorization powers (as enacted in 1978) provide for warrantless surveillance of a target for 24 hours.

Moreover, as I’ve previously reported, the Central Intelligence Agency ran a program very similar to FISA Section 702 during the Clinton administration under Executive Order 12333. Any claims that American intelligence will fatally “go dark” if there’s a lapse in Section 702 authority are simply false.

In terms of where Speaker Mike Johnson (R‑LA) can go from here on FISA, it would seem he has two basic options: 1) bring up another temporary extension of the program in the hopes of finally getting a FISA bill through the House later this month or sometime in May, or 2) restart the process in the House Rules Committee with one of the existing FISA bills discussed to date and allowing a far more open legislative process on the House floor. While either of those could still happen this week, the odds are better that a renewed FISA push in the House will happen early next week.