A high-profile commission designed to overhaul U.S. government surveillance powers has stalled due to Congress being consumed by election-year politics and the lingering fatigue from earlier battles over renewing critical spying tools. The commission, dubbed the “FISA Reform Commission,” was expected to start work in July, following legislation extending Section 702 of the Foreign Intelligence Surveillance Act (FISA) for two years. However, with members of Congress slow to submit nominations, progress has come to a standstill.
The commission’s purpose is to examine the legal frameworks governing U.S. intelligence agencies under FISA, a law initially passed in 1978 in the aftermath of the Watergate scandal and other intelligence abuses. Over the years, lawmakers have piled on numerous policies with each FISA reauthorization, prompting calls for a thorough review of the law.
The panel is intended to include high-ranking officials from the Office of the Director of National Intelligence, the Departments of Defense, State, and Justice, and the head of the Privacy and Civil Liberties Oversight Board. Congressional leaders were tasked with nominating additional members, but most have yet to submit names, delaying the process. With Congress on extended recess until mid-November, and uncertainty looming over the 2024 elections, there has been little urgency to move forward with the commission’s formation.
Senator Marco Rubio, the top Republican on the Senate Intelligence Committee, suggested that the delay may be due to leaders wanting to leave decisions to the next Congress after the elections, especially as the political landscape might shift. While Democratic Senators Mark Warner and Dick Durbin have forwarded their nominations to Senate Majority Leader Chuck Schumer, Rubio and other key Republicans remain noncommittal about their own nominations.
The House of Representatives has seen even less progress. With vocal opponents of FISA, particularly among allies of former President Donald Trump, there has been little interest in moving forward. During the last reauthorization debate, Trump called for the program’s termination, forcing Republicans to negotiate a shorter two-year renewal period to appease his base.
The commission was part of a compromise allowing the surveillance powers under Section 702 to continue, with the expectation that reforms would be explored. However, with many Republicans aligned with Trump and Democrats skeptical of the law’s expansive powers, no members in the House have championed the commission’s cause.
Senator Warner emphasized the importance of the commission, citing how out-of-date FISA has become, especially in the context of evolving telecommunications technology. For Warner, the review is critical to ensure that reforms around FBI access to NSA data and other surveillance powers are sufficiently thorough. However, even with a sense of urgency among some senators, a lack of congressional action has kept the commission in limbo.
Civil liberties groups, like the American Civil Liberties Union, have expressed skepticism about the commission’s potential impact, arguing that the problems with FISA are well-documented and require no further study. Instead, they urge Congress to act directly by narrowing the definition of electronic communication service providers that can be compelled to provide information to the government.
In addition to the lack of nominations, Congress has yet to appropriate any funding for the commission. As Capitol Hill focuses on keeping the government funded through short-term spending bills, the FISA Reform Commission has been overlooked. Some congressional sources are optimistic that funding will be secured in a larger omnibus spending bill expected in December. The commission will likely need around $5 million, based on comparable panels such as the Cyberspace Solarium Commission and other national security bodies.
Time is also becoming a critical issue. While Section 702 has been extended for two years, the commission was initially envisioned to work over a five-year period. Now, with less than two years left before the next FISA reauthorization deadline, there is pressure to produce an interim report on the reforms needed, as Senator Warner pointed out.
Despite these challenges, the clock is ticking, and any hope of meaningful reform will depend on Congress’s ability to put the commission back on track before the next major FISA reauthorization battle arrives.
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