Congress reauthorized controversial FISA Sec. 702 warrantless surveillance program in military spending bill

 December 22, 2023

The U.S. Constitution's Fourth Amendment states that "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That purportedly inviolable right apparently means little to Congress, as the House voted last week by a roughly three-to-one margin, 310-118, to reauthorize without reform a program that allows for warrantless surveillance of U.S. citizens, according to UncoverDC.

That program would be the controversial Section 702 of the Foreign Intelligence Surveillance Act, the reauthorization of which was even more controversially slipped into the must-pass $874 billion FY24 National Defense Authorization Act.

House and Senate pass bill; Biden will eventually sign it

On Dec. 14, the House voted on H.R. 2670, which was the FY24 NDAA, and passed it overwhelmingly by a vote of 310-118, which included 147 Republicans and 163 Democrats voting "Yay" while 73 Republicans and 45 Democrats voted "Nay."

Just one day earlier, the Senate voted in an even more lopsided manner, 87-13, to pass the military spending bill and all of its many amendments, with just six Republicans and six Democrats voting against it.

One of the NDAA's amendments was a temporary extension until April 2024 of the FISA Sec. 702 program, the authorization of which had been set to expire at the end of 2023.

It does not appear that President Joe Biden has signed the bill into law -- at least not yet -- but it seems highly unlikely that he would fail to do so as the NDAA contains much of the defense funding he has requested for the wars in Ukraine and Israel and, concerning FISA Sec. 702, he specifically called upon Congress to reauthorize the controversial surveillance program.

FISA Sec. 702 has been abused

The Foreign Intelligence Surveillance Act, first authorized in 1978, was arguably a good thing at first as it seemingly limited the federal government's surveillance activities to only go after "foreign" intelligence agents and terrorists, and established a secretive judicial entity known as the FISA Court to ostensibly provide a check on requests for warrants to surveil such individuals.

However, FISA has since been expanded several times by Congress, most crucially with the USA Patriot Act following the 9/11 terrorist attacks in 2001, and began to allow for unconstitutional warrantless searches and surveillance, including of U.S. citizens. It arguably violates aspects of the First, Fourth, Fifth, and Sixth Amendments of the U.S. Constitution.

That expanded power has since been grossly abused by the federal government, including to spy on former President Donald Trump's 2016 campaign and presidency and citizens who participated in the 2020 George Floyd riots or the Jan. 6 Capitol riot of 2021, to name just a few examples.

As for the FISA Court which was supposed to provide a check against unconstitutional abuses of surveillance powers, the court instead has acted as a "rubber stamp" and has reportedly approved more than 99% of surveillance requests that come before it.

FBI insists upon ability to conduct warrantless surveillance of U.S. citizens

There has been talk among some members of Congress of legislatively reforming FISA Sec. 702, hence the brief reauthorization until April, but the FBI under Director Christopher Wray has made it abundantly clear that it vehemently opposes any such congressional action that would limit the bureau's ability to conduct warrantless searches and surveillance of foreign and domestic targets.

In his testimony to Congress in October, Wray said specifically of FISA Sec. 702, "Loss of this vital provision, or its reauthorization in a narrowed form, would raise profound risks. For the FBI in particular, either outcome could mean substantially impairing, or in some cases entirely eliminating, our ability to find and disrupt many of the most serious security threats I described earlier in my statement."

"I am especially concerned about one frequently discussed proposal, which would require the government to obtain a warrant or court order from a judge before personnel could conduct a 'U.S. person query' of information previously obtained through use of Section 702," he added. "A warrant requirement would amount to a de facto ban, because query applications either would not meet the legal standard to win court approval" or would require too many resources and take too long to be approved.

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