Sen. Mike Lee slams ‘fig leaf’ proposals that would extend government surveillance tool

Sen. Mike Lee said his congressional colleagues should bring a controversial government surveillance program into alignment with the Constitution and abandon “fig leaf” proposals that would enable intelligence agencies to gather even more of Americans’ private information.

Section 702 of the Foreign Intelligence Surveillance Act (FISA), which allows for the collection of foreign communication without a warrant, is set to expire by the end of 2023 unless it is reauthorized. Dueling replacement packages for Section 702 are scheduled for floor votes in the House this week.

Intelligence insiders say the far-reaching statute should be preserved in its current state to adequately prevent terrorist threats. But Lee says as it stands, Section 702 violates U.S. citizens’ rights, and he fears the influence of national security agencies on Congress will result in a milquetoast makeover, or an amendment-free extension, of the law. A bipartisan group of lawmakers share the Utah senator’s concerns.

“This stuff is not popular with the American people — not with liberals, not with conservatives, not with Democrats, not with Republicans,” Lee, a Republican, told the Deseret News in an interview on Monday. “(Intelligence agencies) know it’s not popular so they want to come up with a fig leaf that appears to address the problem but that doesn’t actually address it.”

After vacillating between different proposals last week, House Speaker Mike Johnson, R-La., decided to embed a temporary FISA extension in the final version of the annual defense spending bill, which could pass the House and Senate as soon as this week.

Congressional leadership argued the move was necessary to avoid a national security threat if lawmakers are unable to agree on Section 702 reforms before going home this weekend for the Christmas recess. But Lee questioned whether the tactic is an effort to obscure the vote on the surveillance tool, which has been abused in recent years to spy on Americans.

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“Their objective seems to be to separate out the debate from the merits of 702 from the problems associated with 702, and to put it onto something else,” Lee said. “The fact that they’re punting it forward without any modification right now, even for a few months, is troubling because it suggests that they’ll try to do it again.”

What FISA reforms is Congress considering?

Johnson, however, has promised to put two different FISA reform proposals on the floor for a vote this week. One bill, coming from Rep. Jim Jordan, R-Ohio, of the House Judiciary Committee, has gained bipartisan support among members of Congress and civil rights organizations. It seeks to reduce FISA’s reach by requiring national security agencies to secure a warrant before they can access the private information of Americans who have been in communication with foreign nationals.

Lee “wholeheartedly” supports Jordan’s bill, which he says is “very similar” to the Government Surveillance Reform Act he introduced last month. Both pieces of legislation would prohibit so-called “backdoor searches” where the FBI, or other intelligence agencies, search through the content of American citizens’ conversations that were gathered incidentally through a Section 702 order for a foreign national.

The House Intelligence Committee, chaired by fellow Ohio Republican Rep. Mike Turner, has launched a coordinated attack against Jordan’s reforms, arguing the judiciary chair’s prohibition of warrantless searches will handicap a pillar of the country’s national security apparatus.

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However, Lee, and several D.C. observers, including the progressive Brennan Center for Justice, have noted that the intelligence committee’s proposal does little to curtail the intelligence community it’s meant to oversee. The bill would prohibit warrantless searches only in situations that rarely occur and would broaden the sources from which the government can collect private information to include wifi routers.

“Not only does this not do anything meaningful to curtail warrantless domestic surveillance of American citizens, it actually expands the government’s ability to do that,” Lee explained. “And I find that reprehensible, especially because I know that they know exactly what they’re doing.”

How has the government misused FISA?

In recent years, congressional oversight and FISA Court reviews have revealed hundreds of thousands of cases in which FISA was abused by government officials to spy on the communications of U.S. citizens. While there is an important, and constitutional, place for FISA surveillance of foreign enemies, Lee said, there is no excuse that justifies government agencies ignoring Americans’ fourth amendment right.

“There’s no legitimate reason I can think of why they need to be able to do a backdoor search of an American citizen’s communications held in the FISA 702 database maintained by the NSA and that they have to do so without a warrant,” Lee said.

Directors of agencies like the FBI have claimed in congressional hearings that they have implemented policies to minimize the invasion of Americans’ privacy and that a prohibition on warrantless searches in connection to Section 702 targets would slow or hinder their surveillance efforts. But that’s a feature, not a bug, of Jordan’s reforms, according to Lee.

“It does make their job more difficult. Substantially so. That’s the whole point,” Lee said. “Governments always resist reforms like this designed to protect the privacy of individual citizens. Why? Because It makes their job more difficult.”

Lee rejects the line coming from the intelligence community that Americans are safer if national security officials can conduct surveillance on a limited number of U.S. citizens without a judge’s approval.

“One could make the exact same argument about our domestic law enforcement capabilities — that we would all be safer if the government could spy on us without a warrant. And yet we do it, and our law enforcement system functions well,” Lee said.