On behalf of our activist community, I urge you to contact your senators and ask them to vote NO on the conference report for the National Defense Authorization Act for FY 2024, H.R. 2670 because of the inclusion of language to reauthorize Title VII of the Foreign Intelligence Surveillance Act (FISA). Although this is framed as a short-term reauthorization of the authorities under Section 702, the reality is very different. In fact, the language surreptitiously allows these warrantless surveillance activities to continue for an additional year through April 2025.
In January 2018, nearly six years ago, Congress passed the FISA Amendments Reauthorization Act, which reauthorized the surveillance authorities under Title VII of FISA through December 31, 2023. With the deadline approaching, congressional leadership has included a reauthorization of Title VII in the NDAA (Section 7902) that would purportedly extend the surveillance authorities through April 19, 2024.
However, existing statutory “transition procedures,” found in 50 U.S.C. 1801 note, allow certification for surveillance under Title VII to continue for a year from the date the Foreign Intelligence Surveillance Court (FISC) issues a certification for surveillance. In December 2017, as the expiration of Title VII authorities was looming, The New York Times noted that intelligence officials “acknowledged that the government believes it can keep the program going for months” after the expiration of Title VII. The reason the intelligence community argued that could legally continue to operate under Title VII was because the certifications wouldn’t have expired until late April 2019.
The current certifications were granted on April 11, 2023. Even if Title VII authorities lapse, the intelligence community would still operate under the existing certification until April 11, 2024. The date through which Title VII is reauthorized in NDAA gives the intelligence communities time to obtain recertification from the FISC before April 19, 2024. Any certification would be good for a full year, potentially until April 19, 2025.
So while the language in NDAA is being framed as a short-term extension, it’s actually a 16-month extension. That means that this extension of FISA will perpetuate the FBI’s warrantless search of Americans’ communications for another 16 months. The use of FISA to warrantlessly search Americans’ communications isn’t a theoretical notion. The intelligence community conducts more than 200,000 searches of Americans’ communications annually. FISA has been used to wrongfully spy on donors to a congressional campaign, individuals engaged in lawful First Amendment activities, journalists, and members of Congress without a warrant.
Put simply, extending Title VII for 16 months means the worst abuses of FISA could, and likely will, continue. Again, Congress has known for nearly six years that Title VII would expire. Still, because of the proclivity of congressional leadership in both parties for governing crisis, reauthorization without any reform, even into April 2025, is legislative malpractice. Members of Congress in both parties have offered reforms through the Government Surveillance Reform Act and the Protect Liberty and End Warrantless Surveillance Act. These bills protect America while securing our constitutionally protected civil liberties. Unfortunately, congressional leadership appears to be actively giving the intelligence community what it wants, which is to maintain the status quo.
FreedomWorks would redraw its key vote if language was inserted in the conference report that states the following: “Notwithstanding Section 404 of the FISA Amendments Act of 2008 or any other provision of law, any order, authorization, or directive issued or made under Title VII of the Foreign Intelligence Surveillance Act that is in existence at the time of the enactment of the National Defense Authorization Act for Fiscal Year 2024, or that is issued or made between the enactment of the National Defense Authorization Act for Fiscal Year 2024 and April 19, 2024, shall expire no later than April 11, 2024.”
Without such language to limit certification, FreedomWorks will count the vote on the conference report for the National Defense Authorization Act for FY 2024, H.R. 2670, when calculating our Scorecard for 2023.
FreedomWorks will count this vote on our 2023 Congressional Scorecard and reserves the right to score any amendments, motions, or other related votes. The scorecard is used to determine eligibility for the FreedomFighter Award, which recognizes Members of the House and Senate who consistently vote to support economic freedom and individual liberty.