FISA Exchanges Real Liberty for Phantom Security.

House Speaker Mike Johnson betrayed liberty and the Constitution by making a full-court press to get a “clean” reauthorization of Section 702 of the Foreign Intelligence Surveillance (FISA) Act through the House.

Section 702 authorizes warrantless surveillance of foreign citizens. When the FISA Act was passed, surveillance state boosters promised that 702 warrantless surveillances would never be used against American citizens. However, intelligence agencies have used a loophole in 702, allowing them to subject to warrantless surveillance any American who communicated with a non-US citizen who was a 702 target. Intelligence agencies could then also conduct warrantless surveillance on any Americans who communicated with the new American target. This Section 702 loophole has been used so often to subject Americans to warrantless wiretapping that it has been referred to as the surveillance state’s crown jewel.

A bipartisan coalition of Republican and Democratic House members worked to add a warrant requirement to the FISA bill. Speaker Johnson agreed to allow a vote on the House floor on an amendment requiring federal officials to get a warrant before subjecting any American to surveillance. However, he publicly opposed the amendment, as did President Biden. Prominent deep state operatives, such as former Secretary of State and CIA Director Mike Pompeo, also lobbied against the amendment.

The case against adding a warrant requirement to FISA consisted of hysterical claims that forcing the surveillance state to obey the Fourth Amendment would make Americans vulnerable to terrorist attacks. Particularity, the claim was made that forcing national security operatives to get a warrant before spying on US citizens would cripple the ability to respond to a “ticking time bomb” situation.

Those claims were debunked by the heroic Edward Snowden, who made the American people aware of the extent of warrantless surveillance. Snowden, who worked as a government contractor for the National Security Agency (NSA), posted in a message on X (formally known as Twitter) that the warrant amendment would not stop federal agencies from acting without a warrant in a “ticking time bomb” situation.

A vote was held Friday afternoon on the amendment requiring a warrant before Section 702 powers would be used to spy on American citizens. Despite the fearmongering by Mike Pompeo and others, as well as the opposition of both President Biden and Speaker Johnson, the amendment failed to pass by only one vote. The amendment would have passed had Speaker Johnson not cast a rare floor vote (speakers usually do not vote on legislation) against the amendment.

When the PATRIOT Act was rushed to the House floor in the fall of 2001 — weeks after 9-11 — and voted upon before members had a chance to read it, only three Republicans voted against it. One conservative representative told me he voted for it even though he agreed with my opposition to the bill. He told me, “I can’t go back home and tell my constituents I voted agent the PATRIOT Act!”

While the failure to pass the warrant amendment was dispiriting, the fact that it failed by only one vote shows how much progress we have made. It should thus inspire us to keep encouraging Congress to refuse to take away real liberty in the name of promises of phantom security.

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