The House voted to pass a bill Friday to reauthorize a powerful surveillance authority, apparently capping off a bruising monthslong debate over national security concerns and privacy protections for Americans.
The House voted 273-147 on the measure to continue for two years Section 702 of the Foreign Intelligence Surveillance Act, with some changes aimed at making sure the government could not misuse the power.
But the chamber was sharply divided on whether to require the government to get a warrant before searching for the information of Americans swept up in the program — an issue that repeatedly raised hurdles to House action on reauthorization.
To underscore that split, the chamber voted 212-212 on an amendment that would have added a warrant requirement. “Yes” votes included 128 Republicans and 84 Democrats, while “no” votes included 86 Republicans and 126 Democrats.
Progressive Democrats and staunch conservatives banded together in voting for the amendment, but the tie vote meant that the House did not agree to add the warrant requirement by the thinnest of margins.
The bill is now poised to head to the Senate, which will look to reauthorize the authority before it expires April 19. In that chamber, senators have previously floated differing proposals when it comes to privacy protections. A procedural motion to reconsider is pending in the House, which according to House rules means the passage is not considered final.
Rep. Thomas Massie, R-Ky., when asked if the close vote on the warrant amendment means the Senate could face a similar tough time on the reauthorization bill, replied: “They’re worse than us.”
The Section 702 authority allows the U.S. government to collect digital communications of foreigners located outside the country. But the program also sweeps up the communications of Americans and allows the FBI to search through data without a warrant, using information such as an email address.
The floor debate Friday in the House centered on that warrant issue. Lawmakers broadly agreed on the need to reauthorize the warrantless surveillance authority but were split over how far to go in providing privacy protections for Americans.
The vote on the amendment fractured the parties in a way rarely seen this Congress, and there was uncertainty going into the vote on which route the House would take.
Backers of the warrant requirement argued the current program violates Fourth Amendment rights and said a long list abuse by the FBI necessitated further protections.
Republican Rep. Andy Biggs of Arizona, a sponsor of the amendment, said on the floor that getting a warrant has been a long-held standard in the United States. “To hear the administration tell it, having to get a warrant is the end of the world,” Biggs said.
But members of the House Intelligence Committee railed against the warrant requirement as a dangerous provision that would blind the government to national security threats.
Intelligence Chairman Michael R. Turner, R-Ohio, argued the warrant requirement would provide constitutional rights to American adversaries, giving them protections to communicate with people in the U.S. and recruit them to become terrorists and spies.
“If this amendment passes, al-Qaida will have full constitutional protections to recruit in the United States,” he said in a floor speech. “The Communist party will have full constitutional protection to recruit in the United States.”
And the White House released a statement Thursday night saying the Biden administration “strongly opposes” the warrant amendment, saying that exemptions in the amendment would be unworkable in practice.
“Our intelligence, defense, and public safety communities are united: the extensive harms of this proposal simply cannot be mitigated,” the White House said.
After the vote, House Freedom Caucus Chairman Rep. Bob Good, R-Va., said there were reasonable exceptions for a warrant in the amendment. “It’s a sad day when we can’t get all Republicans to vote to protect Americans’ constitutional liberties,” Good said.
The final bill contains measures that supporters say would bring more oversight to the program.
The bill stipulates that FBI personnel who conduct Section 702 searches must receive annual training and includes an approval requirement for searches involving U.S. political candidates, presidential appointees and U.S. media organizations, among others.
The legislation falls well short of the changes privacy hawks hoped to see in the reauthorization legislation, and civil liberty groups said main provisions related to the searching of Americans’ information would do nothing to prevent ongoing abuses.
Any possible consideration in the Senate could also be complicated next week if the House delivers the impeachment articles for Homeland Security Secretary Alejandro Mayorkas.
“It’s tough to get it to the floor and consider any changes next week for this reason: Mayorkas may be dropped on our laps,” Senate Judiciary Chair Richard J. Durbin said.
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