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User’s manual to fight over renewing special foreign surveillance powers to prevent a terrorist attack

Congress aims to approve the renewal of a foreign surveillance program, FISA Section 702, before the end of the year, amid concerns and demands of reform from conservatives.

There is a power play going on as Congress rushes to approve the renewal of a controversial foreign surveillance program (Known as FISA Section 702) before it expires at the end of the year.

FBI Director Christopher Wray testified before a Senate panel earlier this week that he had "never seen a time where all the threats or so many of the threats are all elevated, all at exactly the same time." The intelligence community is very wary of FISA Section 702 going dark at the end of the year unless Congress renews it amid the current, volatile threat matrix.

However, conservatives have crowed for years that they will not reauthorize FISA without significant reforms. They are apoplectic about misuse of FISA during the 2016 campaign involving former President Trump. There is concern that the program currently sweeps up the communication of everyday Americans – thus violating their Fourth Amendment rights.

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Congressional leaders tucked into the annual defense policy bill a five-month renewal of FISA. The plan drew a rare, full-throated endorsement via a joint statement from Senate Majority Leader Chuck Schumer (D-NY) and Senate Minority Leader Mitch McConnell (R-KY). However, House Speaker Mike Johnson (R-LA) got an earful from conservatives about including the interim renewal in the defense bill. The Senate is currently considering the defense bill.

Fox is told that the defense bill probably can’t make it out of the House Rules Committee because of concerns about FISA from arch conservatives. That means the House would probably need to approve the defense bill as a "suspension." That’s where the House bypasses the Rules Committee and directly puts the measure on the floor. However, the tradeoff for bypassing the Rules Committee is that passage of the bill requires a two-thirds vote. It is believed that there is a wide, bipartisan swath of members who would vote to pass the defense bill.

So, that means FISA remains switched on after the new year – but without reforms conservatives demand.

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However, the House Rules Committee plans to consider two competing proposals to reform FISA on Monday.. One is from House Intelligence Committee Chairman Mike Turner (R-OH). The other is from House Judiciary Committee Chairman Jim Jordan (R-OH). The Jordan plan enjoys broad, bipartisan support. The intelligence community prefers the Turner option – as does the Senate.

House Republicans will huddle in a special meeting Monday night to discuss both plans. The House will then put both the Turner and Jordan bills on the floor, via a "king of the hill" system. Thus, the bill with the most votes wins and is sent to the Senate. However, there is not enough time for the Senate to get its own bill done before the end of the year. The House and Senate would have to go to a conference committee and sort out the differences. Again, something akin to what Turner drafted is believed to be the preference of the Senate.

So, there is time to hash this out between now and spring. And the FISA Section 702 program remains switched on into 2024 – so long as both bodies of Congress approve the annual defense bill.

However, the undercurrent is that conservatives keep demanding FISA reforms and may not be able to get them. And for now, they are taking this all out on the new Speaker of the House.

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