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The latest botched effort at salvaging a controversial US surveillance program collapsed this week thanks to a sabotage campaign by the United States House Intelligence Committee (HPSCI), crushing any hope of unraveling the program’s fate before Congress pivots to prevent a government shutdown in March.
An agreement struck between rival House committees fell apart on Wednesday after one side of the dispute—represented by HPSCI—ghosted fellow colleagues at a crucial hearing while working to poison a predetermined plan to usher a “compromise bill” to the floor.
A civil war between the House Judiciary and Intelligence Committees has crippled months of efforts to reauthorize Section 702 of the Foreign Intelligence Surveillance Act (FISA), an unpopular but crucial spy power, stunning the intelligence system and forcing security hawks to publicly argue in favor of surveillance tactics that even top spies acknowledge has been prone to abuse.
Witnesses to the events this week that forced House speaker Mike Johnson to shelve the latest Section 702 bill—the third of its kind to fail in as many months—say the leaders of HPSCI abandoned a deal that had been agreed to in private after weeks of negotiation. Sources familiar with the negotiations asked not to be identified, as none of them are authorized to speak publicly.
The impetus for killing the deal, WIRED has learned, was an amendment that would end the government’s ability to pay US companies for information rather than serving them with a warrant. This includes location data collected from cell phones that are capable in many cases of tracking people’s physical whereabouts almost constantly. The data is purportedly gathered for advertising purposes but is collected by data brokers and frequently sold to US spies and police agencies instead.
Senior aides say the HPSCI chair, Mike Turner, personally exploded the deal while refusing to appear for a hearing on Wednesday in which lawmakers were meant to decide the rules surrounding the vote. A congressional website shows that HPSCI staff had not filed one of the amendments meant to be discussed before the Rules Committee, suggesting that at no point in the day did Turner plan to attend.
Two senior sources on the Hill who are working for members with direct knowledge of the events but are not affiliated with either of the relevant committees say that while lawmakers waited on Turner to appear, he was meeting privately with Johnson and threatening to kill the bill he'd already signed off on.
At the same time, Turner and other HPSCI members were engaged in a floundering but possibly effective scheme to whip votes against any potential privacy enhancements, floating vague claims about an “urgent” threat against the US. Turner’s warning was later reported to concern Russia developing the capability to deploy nuclear weapons in space.
In a letter on Friday, four advocacy organizations signed a letter calling for Turner to step down from his role as Intel chair over what they called a “near-panic” started purely for “political gain.” The letter, first reported by Politico, was signed by members of groups FreedomWorks, Due Process Institute, Demand Progress, and Restore the Fourth.
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Neither Johnson nor Turner’s offices responded to a request for comment.
Internal emails obtained by WIRED show that HPSCI’s ranking Democrat, Jim Himes, was likewise a part of that effort, his signature attached to a letter urging Democrats to schedule time to review “certain intelligence” in a HPSCI-operated “SCIF”—a room designed to securely host classified information. The letter implies an “urgent” threat involving foreign military capabilities that requires wide dissemination, all but ensuring it leaked to the press.
In news reports about that intelligence the following day, anonymous officials ensured it was stressed to reporters that Section 702 was essential to identifying the threat. More recent statements made by the White House and Senate intelligence staff that relay the risks the disclosure poses to classified “sources and methods” have generated skepticism around 702’s role.
Four senior aides tell WIRED that, despite speculation in The New York Times that a foreign aid package related to Ukraine had been the impetus behind the effort to center the threat, Turner and Himes were motivated to instill paranoia in members that would inevitably raise doubts as to whether popular private reforms were simply too great a risk—namely those requiring the government to obtain warrants before accessing the private calls, texts, and emails of US persons, as well as “commercially available data” that can be used to monitor their whereabouts, both historically and in real-time.
This campaign—mirrored with less success by the FBI—appeared to backfire in a matter of hours, with Senate intelligence staff refusing to support Turner’s claims and instead issuing a statement that implied his disclosure had put classified sources at risk. The White House similarly dismissed the urgency communicated by Turner, warning that information related to the “threat” might expose intelligence sources.
Some aides critical of the tactics say nevertheless that they believe it may have been effective, shaking some members’ willingness to openly support reform.
“These tricks aren’t new,” said one aide. “They’re recycled, but increasingly transparent.” (“Every spymaster in history has exploited the mixed feeling of awe, gratitude, and fear that power-holders respond to in dealing with intelligence,” civil liberties attorney Frank Donner once said. It was 1971.)
By Wednesday afternoon, Himes, whose signature appeared on the initial “dear colleague” email announcing that the classified matter “should be known by all,” appeared to be seeking distance from the controversy, issuing a statement acknowledging the intel was “not a cause for panic” and saying the protection of sources is “a legal and sacred duty.”
After Johnson reluctantly killed the plans to move forward with a vote—and with it, any hope of resolving the battle over Section 702—intelligence officials began the task of redirecting the blame. The complexities of the issue, and general lack of knowledge among the public and press, aided significantly in that goal.
A Fox News report published Thursday morning, while accurately noting that it was Turner's threat that forced Johnson to cancel the vote, goes on to cite “sources close to the Intelligence Committee” who offered analysis of the events. The sources claimed that Turner was compelled to abandon the deal because the “compromise bill” had been sneakily altered in a manner that “totally screws FISA in terms of its ability to be a national security tool.”
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While redirecting blame away from Turner and his cohorts, the claim is both false and deceptive, relying on assertions that, while farcical perhaps to legal experts, would be impossible for the public at large (and most of the press) to parse alone.
The text that Fox News’ intelligence sources are referring to—which can be read on the final page of the bill online—does nothing, in reality. It does not require or prevent anyone in the government from taking any action whatsoever. It also has no impact on FISA, the statute from which Section 702 derives its power.
The controversial text states that the nation’s top intelligence official “may submit” information to Congress regarding how “law enforcement agencies and the intelligence community” purchase “commercially available data about United States persons.” Essentially, it grants the intelligence community permission to do something that it does not actually need permission to do.
The language was included not to “totally screw” FISA, but to ensure that the phrase “commercially available data” appears at least once in the text, for reasons that are as benign as they are elusive to casual followers of legislative procedures.
One of the most popular amendments suggested to the Section 702 bill, discussed openly by lawmakers for months, is one that would prevent the government from purchasing data that normally requires a warrant. To counter arguments that these purchases are unrelated (which is to say, not “germane”) to the 702 program, the language in the final section, accomplishing nothing else, was added. A placeholder, effectively.
A senior source close to the Judiciary Committee said that it would have been impossible for Turner not to know the amendment was coming, and that the surprise expressed by his staff in the Fox News piece and elsewhere appeared to those in the know as pure theater.
Four aides, recordings of several public hearings, and a slew of reporting confirm that Turner had been aware for weeks, if not months, that restrictions on commercially available data would be one of the key amendments offered up by Judiciary members. The aides added that he'd also privately agreed to allow Judiciary members to offer their amendments. Prior to the bill being pulled, Representatives Warren Davidson and Zoe Lofgren had issued a relevant joint statement publicly: “It makes little sense to rein in warrantless surveillance under one authority when the government can simply fall back on other available techniques to acquire similar information,” they said.
Only after forcing Johnson to cancel the vote did the germaneness of the measure become a justification for tanking the entire process.
“No one actually thinks the Intelligence Committee cares about this,” says an aide working for a Judiciary member. “It’s the amendment they’re freaking out about. They don’t want the intelligence community to have to ask judges before they do anything.”
“For all the downplaying the agencies have done, telling us repeatedly they aren’t purchasing our data that often, Turner just blew weeks of negotiation to defend this one thing,” says the same aide. “To me, that says something about how much the government actually cares about this.”
Update: 2/16/24, 3:35 pm ET: Added details about a letter calling for Turner to step down as Intel chair.
