House Takes Up FISA Reauthorization Thursday; Trump Says Law May Have Been Used Against Him

By Susan Jones | January 11, 2018 | 9:38 AM EST

The House takes up FISA reauthorization legislation on Thursday. (Photo: Screen grab/C-SPAN)

( - The U.S. House of Representatives on Thursday will consider legislation reauthorizing provisions of the FISA (Foreign Intelligence Surveillance) law, including Section 702, which allows the government to obtain the communications of foreigners outside the United States, including foreigners who may be planning attacks.

A congressional fact sheet notes that Section 702 cannot be used to target Americans or any person inside the United States. But sometimes Americans are caught up in FISA targeting of foreigners, as President Trump noted on Thursday.

“House votes on controversial FISA ACT today,” Trump tweeted shortly before 8 a.m. "This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?" he asked.

Trump later sent a second tweet on this topic: "With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!"

FISA collection is a main focus of the ongoing Trump-Russia investigation, given questions about whether an unverified, opposition-research-generated dossier was used as the basis for the FBI to launch its Trump-Russia investigation, including the apparent unmasking of Trump campaign members who were communicating with foreign FISA targets.

Although the law expressly forbids the government from using Section 702 to target Americans or people in the U.S., the government does incidentally collect information on Americans who are communicating with foreign targets.

The collection of the U.S. side of a phone call, for example, is considered “incidental.”

Under FISA, the government must get a "specific court order based on probable cause to intentionally collect U.S. person communications," the House intelligence committee noted. "The government must follow FISA Court-approved procedures to protect the identity of the U.S. person and limit how the communication may be used."

The law allows the U.S. to spy on foreigners in foreign lands, "and I'm okay with that," Sen. Rand Paul (R-Ky.) told Fox News on Wednesday. But Americans are being incidentally caught up in the foreign collection, and Paul wants reforms to limit that.

Paul endorses an amendment proposed by Rep. Justin Amash (D-Mich.) in the House, which is similar to legislation Paul has introduced in the Senate. The USA Rights Act would stop so-called "backdoor searches" by requiring court-ordered warrants when the government wants information about people inside the U.S. whose information was incidentally collected.

Among other privacy protections, the amendment would require the government to give notice when it uses information derived from Section 702 against Americans or people inside the U.S.

Sen. Paul told MSNBC's "Morning Joe" on Thursday that both he and President Trump want reauthorization of Section 702, but with reforms that prevent "rogue people" at the FBI or Justice Department from looking at the database without a judge's warrant.

"I think a judge should be looking at this before you try to look at an American's information," Paul said. Paul also wants information in the huge FISA database to be used only in suspected terrorism and national security cases, not for suspected domestic crimes.

"There are currently only internal controls over who can search the database. They say they're not doing it very often. But here's the point --you should ask a judge," Paul said.

Without congressional action, the current FISA law will expire on Jan. 19.

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