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Inside the House GOP’s surveillance law nightmare

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House Republicans are plunging headlong into another divisive debate — this time over government spy powers, a battle that pits them against each other and reveals deep-seated uncertainty about their party’s ideological direction.

Reapproving the section of the Foreign Intelligence Surveillance Act known as Section 702, which allows the intelligence community to collect and search through the communications of foreign targets without a warrant, was always going to be difficult given the sour relationship between some Republicans and the FBI. But that skepticism, which dates back to the FBI’s initial investigation into Donald Trump’s 2016 campaign, is only the start of the party’s problems on surveillance policy, according to interviews with nearly 20 GOP aides and lawmakers.

There was a time when government surveillance powers united Republicans to an unparalleled degree, particularly in the years after the Sept. 11, 2001 terrorist attacks. Even after George W. Bush left office, former President Barack Obama relied on Republicans to provide political cover during debate over reauthorizing the wiretapping power.

Now the spy fight is emblematic of Trump-era House GOP chaos, threatening to further roil the tenure of Speaker Mike Johnson.

Johnson, while staring down an attempt to oust him, is dealing with two competing Republican factions that have battled privately for months over how much to rein in Section 702 — in particular, its ability to sift through the foreign data for information related to Americans.

Intelligence officials and committee members view the 702 program, which is aimed at foreigners outside of the United States, as a critical tool to protect national security. A growing number of Republican lawmakers, led by those on the Judiciary Committee, see the surveillance power as ripe for misuse and in need of sweeping new guardrails to prevent government overreach.

The speaker has tried twice to referee a solution between the sparring chairs of the Judiciary and Intelligence Committees. This week he’ll attempt a third time, amid a virtual guarantee that one corner of his conference will end up angry, and while seeking to use the program’s April 19 reauthorization deadline to corral unruly members.

“Time is our enemy on this,” said Rep. Kelly Armstrong (R-N.D.), adding that he’s been frustrated by “our ability to figure out how to actually negotiate a position on it.”

Johnson will hold a series of meetings across the conference this week on the spy power. And while he’s tried to avoid publicly taking a side, describing this week’s bill as a compromise between the two factions, he runs the risk of alienating more conservatives if he’s perceived as tipping too close to the Intelligence Committee’s side in the battle. And new alienation on the right is the last thing the Louisiana Republican needs as he prepares for a forced vote of no confidence from Rep. Marjorie Taylor Greene (R-Ga.).

The intelligence community and its allies are increasingly confident that a bill can get through the House this week and Johnson is warning his members that if they fall short the Senate is likely to jam them with an extension that they will like even less. And another failure could prove significant, since the politics of the issue will only get messier as Election Day draws near.

If the former president wins this fall before Congress can reauthorize the program, some intelligence community allies fear a call from conservatives to delay until 2025, when privacy hawks see a Trump White House as more supportive of sweeping changes to surveillance authority.

How it got this bad

Broadly speaking, Intelligence panel members view the Judiciary panel’s plan as a de facto gutting of the spy power that would undermine national security, and Judiciary panel members view the Intelligence panel’s plan as lacking in safeguards to protect Americans’ civil liberties after a series of FBI missteps.

But the House Republican dynamic over spy powers wasn’t always so rocky.

Signs of trouble started formalizing in November. It was then that a GOP working group formed by Intelligence Chair Mike Turner (R-Ohio) and Judiciary Chair Jim Jordan (R-Ohio) to achieve consensus on reauthorization instead splintered; POLITICO first reported that Turner and Jordan would release separate plans for Section 702.

Since that odd-couple strategy imploded, things have only gotten worse within the GOP as Turner’s allies and Jordan’s allies have repeatedly plotted to undercut their rivals’ approaches or turned their fire on GOP leadership. When Johnson first tried to bring up competing surveillance proposals in December, it sparked a round of public recriminations between the committees.

At that time, Judiciary panel Republicans and their allies faced accusations that they tanked Johnson’s strategy because they could lose. Meanwhile, some Judiciary members complained that Johnson wasn’t using their surveillance plan as the House’s starting point, even though he is a former member of the committee.

“The speaker has kind of given the other side this opportunity to try to put out misinformation,” said Rep. Andy Biggs (R-Ariz.), a conservative Judiciary Committee member who wants sweeping changes to wiretapping law. (The same charge the other side levels at Republicans like Biggs.)

Other Republicans on Judiciary privately worried Turner had outpaced Jordan in the internal battle as the latter man shifted focus to trying to become speaker last fall. Jordan made the spy power part of his sell in his unsuccessful bid for the gavel.

Tensions were just as high among Republicans who favored Turner’s Intelligence Committee plan. Late last year, they privately discussed ways to protest their own leaders’ handling of the surveillance debate, including tanking an unrelated GOP resolution formalizing a presidential impeachment inquiry, according to two people familiar with the conversations. They ultimately dropped the idea.

Turner’s sales pitch

One moment that encapsulated the intensity of the GOP’s infighting: The fallout from a series of briefings Turner held last year in a bid to drum up support for his approach to reauthorizing the surveillance program and do basic 702 education.

During those presentations, Turner outlined a scenario: A Hamas-affiliated group told its supporters to protest outside Senate Majority Leader Chuck Schumer’s New York home at a specific time. Then, some of the protesters who showed up were arrested.

Turner used two slides with real-world examples to back up his depiction. The first was a screenshot of a Nov. 7 tweet from conservative writer Matt Foldi, who previously ran for Congress as a Republican. Foldi used a screenshot from Samidoun — a pro-Palestinian group that’s registered in Canada as a nonprofit and has praised Hamas’ Oct. 7 attack on Israel.

In the screenshot, the group shared information about a march to Schumer’s house organized by an academic who is known for criticizing Israel.

The second slide included an undated photo labeled as “pro-Palestine protesters” outside Schumer’s home.

“We do not have access to any of their data,” Turner said of the protesters who showed up at Schumer’s home during remarks in November to a small group of reporters. “But if they are in Hamas data, we would have access to [that].”

Turner, asked about the example he used, said it was designed to reaffirm that the surveillance law “only collects against foreigners outside of the United States” and that because the protesters are Americans , “although they responded to the Hamas solicitation … they are still not subject to surveillance under 702.”

But his example raised eyebrows among some GOP aides who heard it at a December briefing, who questioned if it met the FBI’s own guidelines for searching foreign surveillance data collected without a warrant, according to interviews with three staffers in attendance. Word of Turner’s example also quickly spread beyond the orbit of those who attended the closed-door sessions, underscoring the tension in the conference.

Turner gave his presentation separately to members, staff and reporters. At the lawmakers’ briefing, Turner and Biden administration officials who were present “made clear … that individuals are not queried based on their participation in a protest alone,” according to a person familiar with that event who was granted anonymity to speak candidly.

The government would search data collected without a warrant for Americans’ communication only if it was “reasonably likely” to return foreign intelligence information, this person added, citing possible intelligence indicating that a hypothetical American was in contact with a foreign terrorist.

Foldi did not provide a comment before publication on his tweet being used in the briefing.

This week’s battle lines

Whether to start requiring a warrant when the government searches through foreign data for Americans is one of the House’s biggest sticking points in the surveillance debate.

GOP leaders are expected to tee up a vote on a bipartisan proposal that would add a warrant mandate once the bill is taken up on the floor. And Intelligence Committee members and their allies are increasingly confident they can block the change.

“The thought of us stripping ourselves unilaterally of our most important national security tool is unfathomable,” said Rep. Brian Fitzpatrick (R-Pa.), an Intelligence panel member and former FBI agent.

Supporters of requiring a warrant counter that they’ve picked up support thanks to the FBI’s past high-profile missteps in its use of the surveillance data, including attempts to check whether Black Lives Matter protesters had ties to foreign terrorists. Those fumbles led to internal reforms by the bureau, however, and some Judiciary Committee allies are now predicting they will lose the warrant fight.

Privacy advocates in the House GOP also pushed for a vote on banning data brokers from selling consumer information to law enforcement, but Republican leaders rolled out a version of the bill on Friday that effectively blocked their path.

Two party aides, both of whom were granted anonymity to speak candidly, linked the decision to forgo a vote on the data broker limits directly to Johnson’s office. Instead, the measure could come up this week as a stand-alone vote under suspension.

It’s a U-turn from Johnson’s position in February on the data broker vote. Yet as angry as conservatives are about the data provision getting stripped this time, few of them expect that they can block the surveillance bill from the floor — a victory for Johnson, who is struggling with two-vote majority. It’s also a win for Intelligence Committee Republicans, who appeared to have gained ground after they threatened to block the speaker from taking up a wiretapping bill on his second attempt.

Instead, Johnson’s biggest challenge on the right is likely to be how heavily he lobbies members to oppose the warrant requirement amendment. Supporters of the amendment want Johnson to stay on the sidelines, viewing the current debate as their best shot to rein in the spy power given their party’s leeriness of the FBI and Justice Department.

Jordan predicted ” much more support for the warrant requirement amendment that may have been there in the past.”

If the amendment is added, though, it is all but guaranteed to spark fierce pushback from the Biden administration — which would likely then try to kill the bill in the Senate. Armstrong, a Judiciary Committee member, noted that he supports the warrant requirement but that “I don’t think it ever gets 60 votes in the Senate.”

And a Johnson staffer told a group of Republican staff on Monday that he opposes the amendment, according to two people familiar with the meeting, who both expected Johnson to make the case this week in other closed-door gatherings.