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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.
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