Tag: fisa

Congress’s Failure Is Liberty’s Gain

Congress accidentally protected the American people’s liberty this week when it failed to extend Section 702 of the Foreign Intelligence Surveillance Act (FISA).

Section 702 authorizes warrantless surveillance of foreign citizens. However, it has been “interpreted” by the FISA court to allow US intelligence agencies to wiretap conversations between a US citizen and a foreign target of Section 702 surveillance. The intelligence agencies can then conduct warrantless surveillance of Americans who communicate with that American.

Section 702 has been promoted to the American people by promising that the warrantless wiretapping it authorizes would be used to protect Americans from terrorism. However, Section 702 warrantless surveillance is used for investigations of non-terrorist crimes like drug war crimes and is shared with the FBI.

An additional threat to privacy is contained in Section 622 of this year’s Intelligence Authorization Act. This new provision requires the president to share with Israel intelligence related to “cybersecurity threats, terrorism, sanctions evasion, plans and intentions of state and nonstate actors, adversarial technology proliferation, missile threats, unmanned aerial systems, cruise missiles, ballistic missiles, air and space domain awareness, and other aerial threats.” Requiring the president to share intelligence with a foreign government is unprecedented and arguably violates the president’s constitutional authority as commander-in-chief. Arkansas Senator Tom Cotton, who is the sponsor of this bill, is the type of military hawk who usually supports giving the president absolute power in foreign and military affairs, even when the president’s actions are blatantly unconstitutional.

There is nothing in Section 622 prohibiting US intelligence agencies from giving Israel intelligence information regarding American citizens collected via warrantless wiretapping. This provision may lead to increased surveillance of Americans who are working to end to US government’s uncritical support for Israel on the grounds that they may pose a security threat to the United States or Israel.

One reason Congress did not extend Section 702 last week was controversy over President Trump’s nomination of Federal Housing Finance Agency Director Bill Pulte as interim director of national intelligence. Some Democrats, and Republicans, objected to Pulte’s lack of experience in national security and intelligence. A reason Democrats opposed Pulte’s nomination is concern he will use the position to target the president’s political enemies similar to the way he Pulte used his current job to launch high-profile federal investigations into foes of President Trump like Senator Adam Schiff and New York Attorney General Letitia James.

President Trump and some of his aides and supporters claim they were targeted for unconstitutional surveillance as part of the “Russiagate” investigation. Also, several members of Congress have been targeted for warrantless surveillance. Yet President Trump and a bipartisan majority in Congress still support the surveillance state.

According to a declassified report, US intelligence agencies failed to implement reforms to minimize the collection and use of US citizens’ information. The agencies promised to make these reforms following Edward Snowden’s revelations of the extent of warrantless surveillance of US citizens.

The only way to protect the American people’s liberty is to dismantle the surveillance state and stop trading real liberty for phantom security. True security comes from replacing militarism and authoritarianism with liberty and peace.

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A Nation of Suspects

Some of the recent legal challenges to the use of surveillance by the Department of Homeland Security upon Americans have resulted in the revelation of truly terrifying behavior by the government, in direct defiance of the Fourth Amendment to the Constitution. We now know that the federal government spies on innocent Americans without suspicion and without warrants.

The spying seems to fall into several categories. The National Security Agency, which is in the Department of Defense, employs about 60,000 domestic spies. These are the folks who want us to believe that they go through the trouble of making applications to the Foreign Intelligence Surveillance Court for warrants to spy on foreigners.

Actually, from time to time they do go to this court, but their travels there — where judges are frisked upon entering and leaving the courthouse by the NSA agents who appear before them — serve as fig leaves for their massive warrantless spying on Americans. The FISA Court is unconstitutional because it issues warrants based on probable cause of communicating with a foreign person, rather than on probable cause of crime as the Fourth Amendment requires.

The courts have ruled consistently since the 1960s that spying — surveillance, as the feds call it — is a search, and the capture of data from a surveillance is a seizure.

The Fourth Amendment protects all persons in America — not just Americans — from warrantless searches and seizures of their “persons, houses, papers, and effects.” There are some well-recognized exceptions to this constitutional baseline, such as evidence that will quickly vanish or be seriously degraded, but those exceptions do not apply here as the NSA captures in real time all keystrokes on all digital devices and all fiber optic data transmitted into, out of and within the United States.

The judges of the FISA Court surely know that the Department of Justice lawyers and NSA agents who appear before them are going through a charade, and the court has been made a part of it. The charade is the pretense that all spying is done pursuant to the warrants that FISA Court judges issue. Former NSA agents have revealed publicly that this is hardly the case.

Nevertheless, the lowered standard from probable cause of crime to probable cause of communicating to a foreign person was crafted by Congress — in another of its many moments heedless of the Constitution. After a few years of this, the FISA Court began to issue warrants for spying on the Americans who communicate with foreigners, out to the sixth degree. A sixth grader can do the math, as this leads to hundreds of millions of Americans whose communications are captured.

A second category of spying is employed by the DHS. The DHS — now a 250,000-person strong federal police department nowhere countenanced by the Constitution — has sophisticated software that can read fingerprints at 15 feet and irises at 15 inches. So, if you wave goodbye or good riddance to an ICE agent, and he holds up his mobile phone, and you are in the federal system for any benign reason, he has captured your bank, health, legal and commercial records on the spot. If he talks to you in your car and is within 15 inches of your face, he can capture the same data.

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A Requiem for Privacy

When President Donald Trump appointed an obviously unqualified friend, a home builder executive, to be acting director of national intelligence, he inadvertently triggered attention to Section 702 of the Foreign Intelligence Surveillance Act. The director of national intelligence is the head of the umbrella agency that gathers intelligence from the 17 federal spying agencies and from that data prepares and delivers the president’s daily briefing. Sec. 702, which permits warrantless spying, expires this month.

Trump prefers to receive his briefings directly from the CIA and its foreign colleagues, leaving the DNI as an appendage with little to do. Nevertheless, the DNI employs hundreds of spies and analysts, and most of them have national security clearances that permit them to view the nation’s most closely guarded secrets and to invade anyone’s privacy.

Section 702 of FISA theoretically permits federal agents to spy without warrants or suspicion on foreign persons. In reality, it is used as a fig leaf to spy on Americans.

A few years ago, Department of Justice lawyers persuaded the FISA court secretly to permit the National Security Agency — America’s domestic spies — to spy on Americans with whom foreign persons communicate; even suspicionless Americans whose communications with foreigners are benign; even Americans removed by six degrees from conversations with foreigners.

Before 9/11, no one in law enforcement was permitted access to data obtained outside the restraints imposed by the Fourth Amendment to the Constitution. Those restraints prohibit searches and seizures — in the modern parlance, surveillance and data acquisition — without a search warrant issued by a judge based on probable cause of crime, sworn to under oath. And the warrant itself must specifically describe the places to be searched and the persons or things to be seized.

Since 9/11, the wall between surveillance and law enforcement has collapsed even though the feds still maintain that the Fourth Amendment only regulates law enforcement and not surveillance. This wild proposition is defied by the plain language of the amendment, which protects all persons from all government, and by the history of the colonists dealing with British government agents executing general warrants issued by a secret court in London.

Those warrants permitted the bearers to arrest whomever they wished, to search wherever they chose and to seize whatever they found. Under the pretext of looking for evidence of crimes, like failing to comply with the Stamp Act, these agents were truly looking for what the king considered subversive, like a draft of the Declaration of Independence.

James Madison and his colleagues who drafted the Fourth Amendment surely knew that history and shared the near universal colonial revulsion at general warrants. Hence the requirements in the amendment for probable cause of crime sworn to before the warrant-issuing judge, and specificity in the warrant itself.

All of this was crafted to outlaw general warrants, and protect all persons in America from warrantless government assaults and invasions of their “persons, houses, papers, and effects.”

Now, back to FISA. FISA was crafted in reaction to President Richard Nixon’s use of the CIA and FBI for warrantless domestic surveillance purposes. This was spying on Americans — opponents of the Vietnam War and Nixon’s political opponents — which as we all now know came crashing down on Nixon in the Watergate scandal.

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Section 702 Surveillance Reaches Its Friday Deadline. Why “Going Dark” Is a Myth.

The government’s broadest warrantless surveillance power is set to expire Friday after the House refused to keep it running.

Lawmakers voted down a three-week extension of Section 702 of the Foreign Intelligence Surveillance Act on Thursday, 218 to 198, with 19 Republicans joining most Democrats against it and seven Democrats crossing over in support.

Speaker Mike Johnson had fast-tracked the bill under a process that needed a two-thirds majority, so the lopsided count sank it. The House then left town for a scheduled weeklong recess, which removes any path to a quick fix. Congress has already punted twice since the original April deadline.

The reaction from the program’s defenders followed a familiar script. They raised the same alarm at earlier deadlines and the catastrophe never showed up.

When Congress last renewed the authority in 2024, the law slipped past its midnight deadline and lapsed for under an hour before the Senate restored it and the surveillance kept running through the gap.

The warnings are back this week regardless. Sen. Tom Cotton, an Arkansas Republican, pressed for renewal ahead of the World Cup and backers keep noting that Section 702 feeds more than half of the president’s daily intelligence briefing.

“Democrats in the Senate are playing political games right now with the lives of Americans,” Johnson told reporters Wednesday. “It’s a very dangerous situation.”

What actually arrives at midnight Friday is legal limbo, not a blackout.

The FISA court signed off on the current collection in March and that order runs until 2027, so the machinery keeps operating on permission it already holds.

The court’s authorization runs for another year and the program continues whether Congress acts or not. The honest word for the risk is uncertainty, the kind that government lawyers and company lawyers argue over, and uncertainty does not sound like an emergency. So the defenders reach for “going dark” instead.

What sunsets at midnight is all of Title VII of the surveillance law, which carries separate powers the government uses to spy on Americans living abroad.

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7 Republicans vote no on FISA extension

Seven Republican senators sided with Democrats early Friday to vote against advancing an extension of warrantless spy powers set to expire next week, complicating efforts to keep those powers alive.

The procedural vote failed by a vote of 47-52 after Sens. Josh Hawley (Mo.), Sen. John Kennedy (La.), Mike Lee (Utah), Rand Paul (Ky.), Eric Schmitt (Mo.), Rick Scott (Fla.) and Tommy Tuberville (Ala.) broke with their GOP colleagues.

Some of the pushback was attributed to President Trump’s tapping of Federal Housing Finance Agency chief Bill Pulte to serve as acting director of national intelligence, which received backlash from both sides of the aisle.

Lee brushed off speculation that anger over Pulte’s appointment was the motivator behind the defectors who voted with Democrats, instead pointing to privacy concerns.

“FISA 702 reauthorization failed because it did not contain a warrant requirement for spying on Americans,” the Utah Republican wrote on the social platform X. “The people who spied on the Trump campaign, Members of Congress, and countless other Americans hate the idea.”

He added, “Come back with warrant requirement, and we’ll pass the bill.”

The motion to proceed would have paved the way for enhanced federal surveillance authorities under Section 702 of the Foreign Intelligence Surveillance Act (FISA) before it lapses June 12.

Trump’s decision to name Pulte to replace outgoing Director of National Intelligence Tulsi Gabbard triggered fights on Capitol Hill.

Sen. Mark Warner (D-Va.), vice chair of the Senate Intelligence Committee, said Democrats could not support extending surveillance authorities with Pulte in a position to access sensitive intelligence information that could be used against Trump’s political foes.

“I thought I had gotten to the stage where I could no longer be shocked by Donald Trump’s choices, but this may be the most outrageous of all,” he told MS NOW, speaking of the recent appointment.

Every Senate Democrat except Sen. John Fetterman (Pa.) voted against the motion, as they argued Pulte could not be trusted to oversee the nation’s intelligence apparatus, among other reasons.

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DNI Gabbard presses to declassify secret but critical court opinion during FISA renewal debate

Director of National Intelligence Tulsi Gabbard is pushing to declassify a secret Foreign Intelligence Surveillance Court opinion expected to reveal major compliance failures in the government’s use of Section 702 surveillance powers, Just the News has learned.

The effort comes as Congress is debating whether to renew Section 702 of the Foreign Intelligence Surveillance Act, which permits the government to collect communications of foreign targets located abroad.

Civil liberties advocates and constitutional scholars have long argued the program also sweeps in large volumes of Americans’ communications without warrants, creating what critics describe as a loophole around Fourth Amendment protections.

At the center of the controversy is the government’s ability to conduct so-called backdoor searches, in which analysts query databases containing incidentally collected American communications. 

The pending court opinion is expected to detail concerns over how federal agencies have managed queries of Section 702 databases and whether internal guardrails designed to prevent abuse were circumvented, according to a senior intelligence official.

The Justice Department reportedly discovered in 2024 that the FBI had used a filtering mechanism that enabled personnel to query Section 702 data without fully complying with oversight requirements established under the Reforming Intelligence and Securing America Act. 

Investigators reportedly found the system lacked adequate counting, tracking, and approval procedures that are required under the law.

Although officials said the specific tool was later shut down, the still-classified court opinion reportedly indicates that similar tools may continue to exist elsewhere within the intelligence community, including at the National Security Agency and the Central Intelligence Agency.

Gabbard announced Friday she is stepping down June 30 to spend more time with her husband, Abraham, who was recently diagnosed with bone cancer.

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The Trump Surveillance State

The Fourth Amendment protects all persons from warrantless government searches and seizures of their persons, houses, papers and effects. It requires that warrants be supported by probable cause of crime and specifically describe the place to be searched and the persons or things to be seized.

Last week, for the first time in the modern era, the government argued to the Supreme Court of the United States that the Fourth Amendment to the Constitution did not outlaw general warrants. General warrants were issued in the colonial era by a secret court in London. They were not based on probable cause of crime or even on articulable suspicion about a potential defendant. They did not identify a target or state what crime was being investigated.

Rather, general warrants were based on governmental need; a meaningless standard as whatever the government wants it will tell a court it needs. The warrants authorized the bearer of the warrant to search wherever he wished and seize whatever he found.

The stated motivation for the general warrants was the British government’s enforcement of the Stamp Act. That legislation required all colonists to have stamps affixed to all papers, books and newspapers in their possession. The enforcement of the Stamp Act was the government’s fig leaf for spying.

We know that the true reason for the Stamp Act was to conduct surreptitious searches for revolutionary materials. We know this because during the one-year existence of the Stamp Act — 1765 — a group of enterprising students at the College of New Jersey, now known as Princeton University, calculated that more revenue was spent to enforce the act than was collected by the sale of the stamps.

Historians believe that the use of general warrants for the enforcement of the Stamp Act pushed many colonists into the independence camp 10 years later in 1775. The use of general warrants also motivated James Madison and his colleagues in 1791 to craft the Fourth Amendment whose specificity requirement “particularly describing the place to be searched and the persons or things to be seized” poignantly did away with search where you wish and seize whatever you find.

Until now.

Now, in one week on Capitol Hill, the right to privacy is facing its gravest challenges since pre-colonial days, in Congress and the Supreme Court. Congress will wrestle with Section 702 of the Foreign Intelligence Surveillance Act, which expires in just days, and the court will hear a claim that general warrants are still viable.

Sec. 702 permits warrantless surveillance on Americans by permitting federal agents to use software that allows them to conduct surveillance of all fiber optic means of communication — mobile phones, message texting, emails — based on the lawful communications of some Americans to foreign persons and then their subsequent lawful communications to other Americans. The “other Americans” can include all 340 million of us.

Theoretically, the data gathered from these warrantless searches cannot be used for criminal prosecutions, since even the feds who do this spying have told members of Congress that they recognize the need for search warrants to access the content of the data. There are at least two reasons that no one should believe what the feds have said. The first is the feds lie. In 2023, they accessed the content of the data thousands of times without warrants. The second reason is that Madison and the Fourth Amendment’s ratifiers did not believe the government would restrain itself, hence the specificity requirement.

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House Renews FISA Section 702, Rejects Warrant Requirement

The House voted 235 to 191 on Wednesday to keep Section 702 of the Foreign Intelligence Surveillance Act running for another three years, declining once more to require federal agents to get a warrant before searching Americans’ communications scooped up under the program.

Around twenty Republican privacy hawks broke with leadership and joined Democrats in opposition, but the bill cleared the chamber with hours to spare before the Thursday midnight expiration.

Section 702, first authorized in 2008, lets intelligence agencies intercept the electronic communications of foreign nationals outside the United States without a warrant.

The catch, and the part that has driven nearly two decades of reform fights, is that those intercepts routinely sweep up the texts, calls, and emails of Americans who happen to be in contact with the roughly 350,000 foreign targets surveilled each year. That data sits in a federal database, and the FBI can search it for Americans’ information without going to a judge first.

The reforms attached to the renewal do not change that. They tinker around the edges. Federal agents will need an attorney’s sign-off before targeted reviews of Americans’ data, each query will require written justification submitted to the Office of the Director of National Intelligence, and misuse can now carry up to five years in prison.

The FBI will also have to file monthly reports to oversight officials defending searches involving Americans.

None of this requires a judge or forces the government to articulate probable cause before reading what an American wrote or said.

A bipartisan bloc has pushed for almost twenty years to require specific court approval before agents can pull up an American’s communications from the 702 trove, arguing that anything less is a Fourth Amendment workaround.

The bill that passed Wednesday explicitly references the Fourth Amendment in its text. It just does not require a warrant to honor it.

We obtained a copy of the bill for you here.

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Mike Johnson’s Crusade to Renew Warrantless NSA Spying on Americans Culminates This Week

House Speaker Mike Johnson is on a crusade. He is determined to pass a three-year, reform-free renewal of the notorious FISA law that authorizes the NSA to spy on the communications of American citizens, on U.S. soil, without warrants of any kind.

Immediately prior to the last (unsuccessful) attempt by Johnson to pass a new reform-free renewal of this spying law — just two weeks ago — I wrote about the bizarre and deeply bipartisan history of FISA domestic spying and how the U.S. somehow became a country that authorizes its surveillance state to target American citizens, all without warrants.

I will not recount all of that here, except to note that — like the 2001 Patriot Act — the original law empowering the NSA to spy on Americans without warrants was such a self-evident departure from American tradition that passage was only possible by portraying it as a mere temporary emergency measure. Yet those spying powers have now become one of the many such “temporary” and “emergency” measures that have seamlessly become a quasi-permanent fixture of the U.S. government. This upcoming week in the House will determine whether it becomes genuinely permanent and, worse, forever immune to reforms.

The FISA bill that permits warrantless NSA spying on American citizens was first enacted by Nancy Pelosi’s House in 2008, then signed into law by President Bush. The law provided for those powers to expire four years later, unless Congress approved renewal.

The law was first renewed in 2012 with the support of the Obama White House, this time for five years, without any reforms. When that five-year renewal was set to expire in 2018, Congress, this time backed by the Trump White House, passed a six-year reform-free renewal, requiring a new vote in 2024.

For the 2018 renewal, there was a mountain of evidence demonstrating abuse, which in turn gave rise to steadfast opposition to such a renewal from dozens of members of both parties (who were demanding, among other reforms, the addition of a warrant requirement for spying on Americans). As a result, then-Speaker Paul Ryan (R-WI) was forced to rely on dozens of Democratic representatives to secure FISA renewal.

Ryan accomplished this by working in close tandem with three key California Democrats: then-Minority Leader Nancy Pelosi, ranking Intelligence Committee member Adam Schiff, and Eric Swalwell (D-CA). That liberal trio led 65 House Democrats alongside 191 Republicans to vote to endow a President they were calling a Hitler-type fascist with virtually unlimited power to spy on Americans without warrants.

The last time the FISA bill was renewed was four years after that 2018 vote: in April, 2024, with the support of the Biden White House and the key support of newly elected House Speaker Mike Johnson. That time, Congress was only willing to extend it only for two years, meaning the bill was scheduled to lapse on April 17, 2026, unless it was renewed again.

That is why Mike Johnson is now tasked with securing a new multi-year renewal of FISA with no reforms. On April 17 — last week — Johnson’s first attempt to renew the spying law for 18 more months failed to secure the necessary votes in the House for renewal He was thus forced to desperately plead with the chamber for a short 10-day extension to give more time to pressure the 20 House GOP holdouts to change their minds, and to try to induce more Democratic defections.

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House GOP passes short-term FISA deal amid Republican infighting

The House unanimously passed a short-term extension of the nation’s spy powers early Friday morning after GOP rebels dramatically rejected a late-night, last-minute deal to extend the measure for five years. 

Instead, the bill pushes the expiration of the powers to April 30 from April 20, while adding some additional reforms and language intended to woo the holdouts.

The move buys time for leaders to figure out how to address Section 702 of the Foreign Intelligence Surveillance Act after the deal crumbled, while avoiding a lapse in the authorization that expires on April 20. The Senate, which gavels back in at 10 a.m. EDT Friday morning, must still pass the stopgap and get it to President Trump’s desk by the Monday deadline.

In a 200-220 vote at about 1:15 a.m. Friday morning, 12 Republicans voted with almost all Democrats against accepting the deal, text of which was revealed just hours before the vote, after two days of meetings and delays.

Republican opposition to the amendment came not only from right-wing members who pushed for more substantial reforms and who had spent hours negotiating the package with leadership, but also from some House Intelligence Committee members who had pushed for a straight reauthorization of the program.

Soon after, a procedural vote to advance a clean, 18-month reauthorization of program racked up enough votes to fail moments later, but GOP leaders held the vote open as they hashed out a fallback option.

That procedural vote, which members of the House Freedom Caucus had long objected to, officially failed in a 197-228 vote, with 20 Republicans voting against it and four Democrats — Reps. Marie Gluesenkamp Perez (Wash.), Jared Golden (Maine), Josh Gottheimer (N.J.), and Tom Suozzi (N.Y.) — casting highly unusual votes to vote in favor of the rule, which is normally a test of party strength.

The House then brought up new legislation to extend the FISA authorization from April 20 to April 30, passing it by unanimous consent just after 2 a.m. and adjourning the House until Monday — canceling a day of previously-scheduled votes on Friday.

“We were very close tonight,” Speaker Mike Johnson (R-La.) said walking off the floor in the wee hours of Friday morning. “There’s some nuances with the language and some questions that need to be answered, and we’ll get it done. The extension allows us the time to do that.”

“FISA is a critical national security tool. It’s also a very complicated piece of legislation, and what we’re trying to do is thread the needle of ensuring that we have this essential tool to keep Americans safe but also safeguard our constitutional rights, and making sure that the abuses of FISA in the past are no longer possible,” Johnson said.

It was a remarkable sequence of events even by the standards of the super-slim House majority that has given Republican leaders consistent headaches in advancing must-pass legislation.

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