Blue-ribbon panel on US surveillance powers languishes as distractions pile up for Congress

A high-powered commission meant to reform U.S. government surveillance authorities won't start work anytime soon, as Congress has been tangled up in 2024 election politics and is still shaking off the fatigue from a bitter fight over renewing a spying tool earlier this year.

The roster of the “FISA Reform Commission” was supposed to be finalized in July and formally begin work this month to examine the powers granted to U.S. intelligence agencies under the Foreign Intelligence Surveillance Act. Congress chartered the panel under legislation enacted in April to extend the controversial Section 702 of FISA for two years, just as those electronic surveillance powers were set to expire.

The idea of digging into the roots of FISA — passed in 1978 in the wake of Watergate and other intelligence abuses uncovered by congressional probes — had been floated around Washington for years, as lawmakers have shoveled layer after layer of policies onto the decades-old framework with each reauthorization fight.

The new commission is supposed to feature the No. 2 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 — an independent, bipartisan panel of executive branch advisers that monitors the government’s spying and counterterrorism apparatus.

The top four congressional leaders, in consultation with the heads of their respective Judiciary and Intelligence committees, also are supposed to pick three members each to serve on the panel — one lawmaker and two non-members.

That’s where the proposal has hit a roadblock: most lawmakers involved haven’t submitted names to serve on the commission. It appears to be a case of benign neglect. And with Congress gone until mid-November — and the potential that both chambers might flip after Election Day — there’s been little to no effort to assemble the panel.

“It might be a decision that they want to leave to the next leadership,” said Marco Rubio of Florida, the top Republican on the Senate Intelligence Committee. “It might also change the composition, given who’s in the majority when that decision is made.”

“It might just be that we haven’t been here very much and aren’t going to be around very much,” he told Recorded Future News, referring to the weeks-long recesses in August and October.

There has been some movement in the Senate, at least. Democratic Sens. Mark Warner of Virginia and Dick Durbin of Illinois, the chairs of the Intelligence and Judiciary panels, have forwarded names to Majority Leader Chuck Schumer. Rubio couldn’t recall if he had and it's unclear if his Judiciary counterpart, Lindsey Graham (R-SC), had done so.

Spokespersons for Graham did not respond to repeated requests for comment.

There’s been far less progress in the House. 

The lower chamber is home to some of the most ardent supporters of former President Donald Trump, who has railed against the FISA authority for years. At one point in the last renewal debate, he urged members to “KILL FISA” in a social media post, forcing leaders to rush to rework the proposal.

The two-year renewal window was explicitly put into the Section 702 bill to placate Trump’s right-wing base and allow him, if elected in November, to put his own stamp on the law. As a result, there has been no real urgency around the commission, with no members championing for or against it.

House Intelligence Committee Chairman Mike Turner (R-OH), who floated the idea of a blue-ribbon FISA panel early in the last reauthorization process before it was ultimately abandoned, declined to comment. It’s unclear if the panel’s ranking member, Jim Himes (D-CT), nominated members. Judiciary leaders Jim Jordan (R-OH) and Jerry Nadler (D-NY), have not made their suggestions.

“We are in the process of making the nominations,” a spokesperson for House Speaker Mike Johnson (R-LA) said.

Warner, who declined to disclose the nominations he submitted, described the commission as “really important” because of the complex issues around making sure the reforms put in place by the last Section 702 bill — particularly how the FBI accesses the NSA’s data trove — are “fulsome”

He noted the last renewal debate also showed how out-of-date FISA has become, as a redefinition of the kind telecommunications providers who must comply with the Section 702  nearly tanked the entire process at the last minute.

Kia Hamadanchy, senior policy counsel at the American Civil Liberties Union, was not surprised that the commission has been overshadowed by other priorities.

“I don't think this is the highest priority for anybody,” he said, adding Congress should instead prioritize narrowing the definition of so-called “electronic communication service providers” that can be compelled to furnish information to the government.  

He said civil liberty and privacy groups “have pretty long standing issues with a lot of the authorities under FISA. We don't need a commission to tell us what those issues are, and what the reforms we'd like to see.”

More obstacles

A lack of effort isn’t the only problem facing the reform commission.

To date, Congress hasn’t appropriated any money for it. The panel slipped through the cracks as Capitol Hill has careened from one short-term government funding bill to another.

However, congressional sources said they are confident they will be able to get money for it in whatever massive bill to fund the federal government is taken up in December. The current stopgap expires on December 20.

The commission would likely need somewhere around $5 million, if similar high-profile panels — like the Cyberspace Solarium and the National Security commissions on artificial intelligence and emerging biotechnologies — are used as benchmarks.

Another complication is time. 

While Section 702 has been extended for two years, the commission would have five years to complete its work — a reflection of when lawmakers initially hoped the renewal window would last longer.

Warner said the conflicting timelines “would necessitate some mid-commission report,” and with only a year and half left before the next 702 sunset deadline. 

“The clock’s’ ticking.”