More than fifty years ago, after reports of government abuse that the CIA was illegally collecting information about political activities of American citizens, the Senate created a Select Senate Commission in1975 which became known as the Church Committee named after its Chair, Sen. Frank Church (D-Idaho).
An earlier 1972 Supreme Court Decision that warrantless electronic surveillance constituted a Fourth Amendment violation contributed to a decade of questioning whether the country’s intelligence activities were Constitutional – those concerns may still be relevant.
The Church committee investigated intelligence abuses and covert action of the CIA, the FBI, the NSA and the IRS which led to public knowledge about COINTELPRO, a massive surveillance program of Americans and an infiltration of political activities. In addition, the Church Committee revealed the CIA’s MK Ultra program drugging Americans to influence their behavior and Operation Mockingbird designed to recruit journalists to influence mainstream news which has been especially successful as it continues today among many mainstream journalists.
There is little reason to believe that political surveillance and infiltration of the American people no longer occurs since identified by the Church Commission which might continue to be a current topic for further consideration.
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One result of Church was adoption of Sen. Ted Kennedy’s Federal Intelligence and Surveillance Act (FISA) in 1977 creating a statutory framework to provide Congressional oversight on the government’s warrantless collection of foreign intelligence information via electronic surveillance on domestic soil. FISA was signed into law in October, 1978 by President Jimmy Carter.
Dubbed by US intel agencies as a “critical national security tool,” FISA set government surveillance rules on national security matters as well as established a specialized FISA Court (Foreign Intelligence Surveillance Court) to provide oversight procedures for surveillance on an annual basis which may, inadvertently, include American citizens.
With a pending 2026 reauthorization date, Congress needed to approve a stop gap measure by April 20 to reauthorize or deal with the potential expiration of FISA (HR 8035). Given a disagreement over Section 702 approval without the Fourth Amendment’s Constitutional language, the House had to scramble to approve FISA in time for Senate approval and to receive a Presidential signature by its April 20 due date.
Reauthorization of FISA was important because it extended authorities of Title VII through to October 20, 2027. Of special interest over the years has been renewal of Section 702 which specifically authorizes the government to collect and analyze vast amounts of overseas communication surveillance on intelligence foreign “targets.”
While no individual warrant is required for foreign intel targets, the process of surveillance may inadvertently scoop up a large volume of thousands of American names in the process – without a warrant. The government also uses Section 702 to inadvertently spy on Americans — a practice that has resulted in widespread abuses and made the law deeply controversial.
The distinction to include Fourth Amendment (unreasonable searches) protections within FISA is crucial for protection of American citizens as the legal framework allows intelligence agencies broad application for warrantless surveillance of foreign intelligence targets outside the United States as also including those individuals who are interacting with Americans.
The FISA Court was said to prevent constitutional violations as it required rules to limit the retention and dissemination of information about U.S. persons incidentally collected.
The 702 amendment also included changes to the repeal date of these authorities and updated transition procedures to ensure all relevant procedures align with extended timelines. If enacted, extended authorities would continue to require cooperation from US companies (Google, AT&T, and Verizon) in response to government surveillance requests to provide a target’s phone calls, emails, and text messages – which may include personal American information.
The government does not need court approval to target a particular foreigner.
“FISA is the single most important national security asset we have in the intelligence field. It constitutes a very high percentage of the president’s daily brief. It’s an invaluable tool to know what our foreign adversaries are planning and plotting, and it’s a responsibility of this Congress to get it passed” said Sen. Angus King (I-Me).
Such claims may be exaggerated since there is no way to corroborate that American Constitutional rights are being preserved since all such discussion about secret surveillance are not meant for public eyes.
With no report to the American public and with claims that allegedly threaten the integrity of national security data, the American people are left to ‘trust’ the Federal government to remain mindful of their Constitutional responsibility to protect American names.
However, just prior to House Floor consideration, the House Rules Committee adopted a ’closed’ rule which did not allow any amendments to be offered on the House Floor; thereby disallowing any attempt to resolve the long standing absence of a warrant requirement for Americans caught up in 702 communications.
Meanwhile, twenty House Members (otherwise dubbed the ‘hardliners’) were in favor of a late-stage amendment to include warrant requirements for American citizens in an attempt to address the Constitutional issue of 702 authority that currently functions without necessary legal oversight to protect American names from inadvertent disclosure.
The first FISA test on the House Floor occurred when the Twenty voted against passage of the FISA reauthorization on a 197 – 288 vote. Their point was that inclusion of Fourth Amendment language was required in 702 in order to protect American privacy issues and that FISA abuses of the past should no longer be possible.
The dilemma for American civil liberties and freedom of communication versus national security risks can only be addressed by creating a Constitutionally-valid FISA since these communications are the products of surveillance, no one can provide with any certainty that surveillance on Americans is not being abused.
In a related matter, Trump, a President who has not proven a commitment to the rule of law or to the Constitution, removed the majority members of the Privacy and Civil Liberties Oversight Board. Formed to investigate intelligence community infringement into civil liberties, Trump questioned the validity of the PCLO report; thereby dismantling the watchdogs and civil‑liberties safeguards on intelligence issues.
Days before the vote, President Trump stepped in to personally lobby the Twenty proponents of Fourth Amendment protections as the President had other ideas. As the looming reauthorization approached, Trump, an original alpha male, let it be known he was demanding a ‘clean’ reauthorization without any amendment especially excluding any reference to providing Fourth Amendment protections for American citizens.
It is no secret that Trump has not distinguished himself as a fan of the Constitution and is generally not supportive of congressional legislative oversight as he prefers to instead issue hundreds of executive orders.
In his usual understated way, Trump suggested that “Our Military Patriots desperately need FISA 702, and it is one of the reasons we have had such tremendous SUCCESS on the battlefield” adding that FISA “had already prevented MANY such attacks’ without explaining WTF battlefield success he was referring to.
In a Truth Social Post which hardly qualifies as an official Presidential proclamation, Trump asserted that FISA reauthorization was necessary to “protect our Troops overseas, as well as our people here at home, from the threat of Foreign Terror Attacks. It has already prevented MANY such Attacks…” without providing any examples of threats that may have been averted.
In what was termed a ‘short term extension’ in the adoption of HR 8035, FISA authority was set until October 20, 2027 which may seem “short term” while possible consideration could have included a three or a five year extension. Either way, without a 702 amendment, FISA remains a clear infringement on the Fourth Amendment privacy rights of American citizens.
CIA Director John Ratcliffe who is privately referred to as Mossad’s stenographer, explained to the Twenty how FISA is being “used in the real world to stop bad things from happening.” without suggesting what he considered a ‘bad thing;’
It is difficult to imagine that Republican Members of Congress are not yet aware that Trump’s best interests may not coincide with providing appropriate FISA and necessary Constitutional protections for all Americans.
In any case, the bottom line is that the Twenty, no doubt at the President’s behest, decided to vote the way the President instructed which unfortunately puts the President’s improper opinion as more essential than providing Fourth Amendment protections.
Final passage on the FISA Reauthorization (HR 8035) came in the middle of the night at 1:15 am on a razor thin 210- 211 vote with GOP votes (including the Twenty in opposition) although the roll call shows seven GOP Not Voting votes who refused to cave to the President’s whims while Democrats voted against final passage (excluding three Not Voting Dems).
In other words, if the Twenty had resisted voting for final passage on the FISA reauthorization which included the Twenty, FISA, without the Constitutional protection of the Fourth Amendment, would have failed – again; although pressure of the April 20 date was imminent.
That vote extended the FISA authority for an eighteen month period but failed to include the necessary Fourth Amendment protections as the Trump Administration refused to allow the necessary change to incorporate warrant requirements for American citizens.
The reauthorization of FISA was crucial for maintaining the legal framework that allows intelligence agencies to conduct warrantless surveillance of foreign intelligence targets outside the United States without individualized warrants as that surveillance will also continue to include warrantless and unconstitutional retrieval of American identity.