“KILL FISA, IT WAS ILLEGALLY USED AGAINST ME, AND MANY OTHERS. THEY SPIED ON MY CAMPAIGN!!!”
That was former President Donald Trump in an April 10 post on Truth Social, hours before the House of Representatives was set to vote on a rule to move Section 702 of the Foreign Intelligence Surveillance Act (FISA) reauthorization to the floor for votes on amendments and then final passage, urging members to hold the bill up.
It worked. When the House voted on the rule, it failed, with 19 House Republicans voting with House Democrats to defeat it.
The hang up is the fact that there is no new warrant requirement in the underlying legislation. Instead there will be a vote on a bipartisan amendment by U.S. Rep. Andy Biggs (R-Ariz.) that “prohibits warrantless searches of U.S. person communications in the FISA 702 database, with exceptions for imminent threats to life or bodily harm, consent searches, or known cybersecurity threat signatures.”
Commenting on the amendment after the procedural vote to get to the bill failed, U.S. Rep. Chip Roy (R-Texas), who voted against proceeding to the legislation, told reporters, “A clean extension is arguably preferable to an expansion with a pre-cooked determination that we’re not going to pass a warrant protection.”
In other words, per Roy, the House would be better off doing nothing than going to bill, killing the amendment and passing what he described as an “expansion” of the law’s authorities.
Now, there may or may not be the votes to pass the amendment but from the sounds of it, there are not, hence the demands that the amendment be programmed into the underlying bill.
It’s worth noting that the amendment under consideration, which would require warrants, would not have prevented Russiagate and the Carter Page FISA warrant issued in 2016 against the Trump campaign per se, which was issued because Page was suspected of being a foreign agent.
The Oct. 2016 application to the FISA Court stated, “The target of this application is Carter W. Page, a U.S. person, and an agent of a foreign power… The status of the target was determined in or about October 2016 from information provided by the U.S. State Department…”
To make the accusation, as the FBI and the Justice Department had to give the FISA Court a “statement of the facts and circumstances relied upon by the applicant to justify his belief that… the target of the electronic surveillance is a foreign power or an agent of a foreign power…” under 50 U.S. Code § 1805(a)(2)(A). That would remain the law.
Those allegations relied on the Clinton campaign and DNC-financed Christopher Steele dossier that there was a “well-developed conspiracy” by Russia and the Trump campaign to hack the DNC and give their emails to Wikileaks.
But they also stated as part of the justification for that interference in the Trump campaign that Russia was attempting to convince the Trump campaign to not send weapons to Ukraine and to instead recognize Russia’s annexation of Crimea in Ukraine, telling the FISA Court that the Trump campaign, per the FISA application, “worked behind the scenes to make sure [the Republican] platform would not call for giving weapons to Ukraine to fight Russian and rebel forces” stating Trump “might recognize Crimea as Russian territory and lift punitive U.S. sanctions against Russia,” citing news reports.
The Justice Department also included an Aug. 2016 Politico story highlighting Trump’s opposition to U.S. intervention in Ukraine, including his suggestion the people of Crimea preferred to live in Russia, and his doubts that the territories Russia had seized could be reclaimed suggested without risking World War III.
At a Harrisburg, Pennsylvania, the Politico report relied upon by the Justice Department quoted Trump saying a military conflict to take back Crimea would risk nuclear war: “You wanna go back? …You want to have World War III to get it back?” And it quoted Trump on ABC’s “This Week” suggesting the people of Crimea supported Russian annexation: “The people of Crimea, from what I’ve heard, would rather be with Russia than where they were.”
In practice, Trump had his campaign spied on because he had a different take on U.S. foreign policy, which was allowed by the preexisting warrant application process under the current FISA law. While having more warrants is preferable in other circumstances with the Section 702 database is being queried, it cannot change the fact that in order to be spied on, one merely needs to dissent against U.S. policy. Maybe that’s the real problem.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government.
