First signed into law in 1978, FISA is a national security measure designed to allow U.S. intelligence agencies to collect information on foreigners without a warrant.
After being modified numerous times, the bill being discussed in the House this week seeks to reauthorize FISA and also includes a series of reforms intended to address civil liberties concerns raised by critics. The controversial Section 702 of FISA, where Internet and phone communications are addressed, is set to expire next week, April 19.
While aimed at foreigners, Americans are often involved in conversations with investigated parties and subsequently are subject to U.S. spying – without a warrant.
The reforms introduced don’t go far enough, Rep. Thomas Massie (R-Kentucky) is warning his GOP colleagues.
A 'difference of tactics' by GOP lawmakers
From a conservative standpoint, it seems like a no-brainer to require a warrant before gathering information on Americans. But Wednesday was one of those times of odd Congressional partnerships: 19 Republicans sided with Democrats in voting “no” on a measure that would have allowed a vote on whether to require a warrant for FISA inquiries involving Americans.
Massie, a libertarian-leaning lawmaker, voted "yes" on the measure despite being a vocal opponent of government spying and a leading defender of civil liberties.
“What we had was a difference of tactics with members like Jim Jordan, MTG (Marjorie Taylor Greene), Warren Davidson, myself and other defenders of the Constitution parting ways with those who saw an opportunity to temporarily throw a wrench in things by voting with Nancy Pelosi and Adam Schiff,” Massie wrote on X.
While warrantless surveillance of Americans appears on course to continue, current legislation affords a different level of courtesy for lawmakers themselves.
The vote failed 228-193. House Freedom Caucus members Chip Roy, Lauren Boebert and Andy Biggs were among the 19 who voted against bringing a vote to the floor.
FISA 'saved hundreds of American lives'
Sen. Rand Paul took to X to thank the 19 who voted against bringing a vote to the floor.
“Nineteen Republicans stood strong and defeated the FISA bill today, instead insisting on real reform to FISA. (No secret courts should be allowed to spy on Americans),” he wrote.
Had he been there, Mike Pompeo, who served as both CIA director and Secretary of State under Donald Trump, would have been a "no" vote.
There are too many other ways in the bill to achieve privacy protections for Americans, Pompeo said on Washington Watch Wednesday.
“I pray we won’t throw out the really important collection to solve that problem because I think you can solve that problem through the dozens of reforms that are here,” he told show host Tony Perkins.
Pompeo, in general terms, says he is a big fan of FISA.
“This particular provision, Section 702 of the Foreign Intelligence Surveillance Act, saved hundreds of American lives during my time as CIA director and Secretary of State. I saw it," he said. "Its purpose is to collect intelligence on foreigners, not Americans. That’s where it operates. It does, sometimes if you or I are speaking to someone abroad who was a bad guy, it could collect Americans’ data too. I get the concern that flows from that.
“And it was abused. It was abused against President Trump personally. It’s been abused other times by folks going and looking at what their girlfriends were up to. Those are governmental failures,” he said.
Massie was strong in his belief that a vote on a measure to prevent warrantless surveillance of Americans should have come before the full House.
“They may have stopped our only chance to have a vote on whether or not the government needs a warrant to spy on you,” he wrote. “That vote might not have passed, but everyone would had to have gone on record for the world to see.”
Massie points out congressional protections
In the making of the Capitol Hill sausage, it is an exception for Congress in the FISA bill that angered and frustrated Massie. In a House hearing this week, he articulated his concerns to fellow lawmakers.
“The authors of this bill put two exemptions for themselves in this bill," Massie told fellow members of the House Permanent Select Committee on Intelligence.
"They even have to get permission from the Congressman they’re spying on if they say it’s for the Congressman’s own good," Massie continued. "Why do we have a provision in there that exempts Congressman but not all of America?”
What Massie called “exceptions” to protect members of Congress from spying Rep. Mike Turner (R-Ohio), chairman of the intelligence committee, phrased as necessary protections “because of what came out of the Donald Trump campaign abuses.”
An FBI email chain during the Trump-Russia probe showed such abuses.
Turner explained that committee member Rep. Darin LaHood (R-Illinois) has been subject to an “inappropriate query” and that LaHood assisted in drafting the legislation.
Turner says if searches are made for a member of Congress that a notification is sent to Congress – not to the individual lawmaker – to allow Congress to “ferret out” political bias if necessary.
That’s a bridge too far for Massie.
Massie says he’s been in the “SCIF” where classified information is revealed to lawmakers. He asked for an example of how obtaining a warrant “would be a problem for national security” but has never been given a single example.
Through all the discussion, Pompeo hopes FISA remains a law enforcement tool.
“I completely get how Americans watched what Andy McCabe and Jim Comey did at the FBI, and they have lost trust and confidence in the FBI leadership," he said. "I can see it, I can feel it, and we all, as good conservatives, worry about our government, and its overreach. Those are very reasonable concerns. The question is how do you balance that, how do you get that right?"
