Already stripped out of NDAA (the annual defense spending bill) are provisions included in the version passed by the House in the summer that would force the Department of Defense to reverse its policy of using taxpayer funds to pay for time off and abortion-related travel expenses for military personnel and their dependents.
Rep. Chip Roy (R-Texas) said on American Family Radio Tuesday he has great concerns that Johnson is about to agree to watered down NDAA with virtually no Republican legislation of consequence. If so, Roy vows the House Freedom Caucus and others in the more conservative wing of the party will try to kill the bill.
"Mike is a friend. He's a good man, a person of faith. I know where he wants to take us," Roy told show host Jenna Ellis. "Unfortunately, this town is wired to rule by fear, to rule by crisis. It's designed such that you're going to get more in terms of the power of government if you go up right up to the 11th hour of Christmas or end of the year, right before expiration, and cry 'The world's going to collapse. The sky is falling' to get what you want. That's what I hope Speaker Johnson will not succumb to."
In May, the court for the Foreign Intelligence Surveillance Act (FISA) revealed documents showing that by 2022 there had been more than 278,000 abuses of FISA by the FBI.
The point of emphasis in the current NDAA debate is FISA Section 702, which allows for the collecting of foreign intelligence from non-Americans located outside the United States. Enacted in 2008, it authorizes target intelligence collection of specific types of foreign intelligence information, such as information concerning international terrorism or the acquisition of certain weapons.
But what happens when a call is intercepted that includes a foreign agent talking to an American citizen? The citizen has certain rights – and the foreign agent has rights if the intercepted call took place on American soil.
Search warrants were on the radar of the Founders
Search warrants and privacy rights were on the radar of the Founding Fathers when the Constitution was written, Ken Klukowski, a former attorney in both the White House and the Department of Justice, said on Washington Watch Monday.
He explained they were aware of what was called "general search warrants" in Great Britain where the government would authorize law enforcement to search any citizen's house until evidence to support a charge was "discovered."
"There were specific instances of abuses in the mid-1700s, so they put in the Fourth Amendment of the Constitution a requirement that search warrants must only be issued if people can swear out specific facts showing probable cause that, if executed, that warrant would unveil evidence of a crime," Klukowski told show host Tony Perkins.
"It had to be specific rather than general – and that if you couldn't get a warrant, if law enforcement could not swear those things out before a judge and get him to sign a warrant, then you could not invade that person's house."
What happens if NDAA fails?
Military bank accounts will not be drained if the NDAA is not passed by Jan. 1. Many of the military powers are constitutionally protected. If no agreement is reached before the Congress break, the current powers governed by Section 702 would remain in place through April, Roy said.
"The only way to get reforms here is to tell the Intel community, the Intel world 'No, the world's not going to implode. If you don't get what you want, you're going to sit down in the room; you're going to work this out. We're going to protect civil liberties or the [whole] thing is going to lapse,'" Roy said.
However, that's not where Roy sees this headed. He believes the House will vote this week on a weakened NDAA almost completely void of meaningful Republican input.
"That's what I would say, but I'm not sure if the speaker will do that right now. It looks like we're going to have a defense bill put on the floor. Republicans are going to advance the defense bill that doesn't end abortion tourism, that doesn't stop transgender surgeries, that continues wokeness, that still allows race to be considered in admissions at the academies, and we're going to add FISA authorization on the back of it," Roy predicted.
Roy said Speaker Johnson (right) appears to believe the status quo is the best that can be done in the current political environment of a slim House Republican majority with a Democrat Senate and White House. But Roy disagrees that's the best that can be had.
"I would force this to the table to pass good FISA reform and then move on to the spending fight in January. Stop governing by crisis," he said.
Advancing a bill is one thing, passing it is another. The House Freedom Caucus, of which Roy is a member, has made FISA a line in the sand for the passage of an NDAA bill.
What's the magic number of votes?
But at present there is no firm number of votes required to kill it. As Roy explained, it depends on House attendance when the bill is presented.
"They're going to try to pass it by what's called suspension, which means the rules get set aside and they just pull it up. In order to do that, you have to pass it with two-thirds of the votes of present voting.
"If they have 290 votes or something close to it, they can pass it. If 140 or so Republicans oppose it, it will go down. We think there are some Democrats who will oppose it because they don't like any NDAA, and some of them don't like the FISA extension as well from a sort of civil liberties perspective," Roy explained.
Whatever the means, whatever the numbers, Roy says NDAA in its current form needs to be blocked. "If we can kill it, that will force us to the table to deal with FISA the way we should deal with it," he said.
