In March, some of Trump’s closest allies in the House negotiated the agreement to renew the FISA authorities with House Democrats and Attorney General William Barr, making Trump’s tweet against it all the more remarkable. The bill the House is scheduled to vote on Wednesday is effectively the same text, with one added amendment from the Senate providing additional protections and review in the FISA court.
“I hope all Republican House Members vote NO on FISA until such time as our Country is able to determine how and why the greatest political, criminal, and subversive scandal in USA history took place!” Trump tweeted on Tuesday evening.
But if Republicans defect from the bill, it could lack the support to pass, as the bill is opposed by both liberal Democrats and civil libertarian-leaning Republicans.
The legislation had appeared to be on a glide path on Tuesday, as the House had teed up a vote on an additional amendment offered by Democratic Rep. Zoe Lofgren of California and GOP Rep. Warren Davidson of Ohio that would prevent the collection of internet search and browser history for US citizens and permanent residents under the Foreign Intelligence Surveillance Act. The amendment was agreed to following negotiations on the provision over the long weekend, according to congressional aides.
But even that amendment hit choppy waters on Tuesday. Sen. Ron Wyden, an Oregon Democrat who had co-sponsored the Senate version of the amendment that was defeated by a single vote, announced he was opposed to the House’s narrower amendment after initially saying he backed it.
In March, 126 Republicans voted for the FISA legislation, including the House’s biggest critics of the FBI’s Russia investigation who hashed out the deal, Reps. Jim Jordan of Ohio and Devin Nunes of California.
While the Senate didn’t adopt the amendment on internet searches, it did overwhelmingly approve an amendment from GOP Sen. Mike Lee of Utah and Democratic Sen. Pat Leahy of Vermont to provide additional legal protections and review in the FISA court process.
As a result of that amendment, the House has to vote on reauthorizing the three surveillance authorities again after initially approving them in March. And if the House adopts the amendment from Lofgren and Davidson, the Senate will have to vote on the reauthorization bill again, too, with the House’s changes.
Trump’s tweets raise the prospect that he could veto the bill if it heads to his desk. While Barr signed off on the House deal, the Justice Department criticized the Senate’s amendment, saying it “would unacceptably degrade our ability to conduct surveillance of terrorists, spies and other national security threats.”
Congress had initially hoped to quickly approve a renewal of the three FISA authorities in March, before they expired. They include reauthorization of FISA’s Section 215, which allows law enforcement to collect “tangible things” in national security investigations, a roving wiretaps provision and a “lone wolf” provision. The Democrats and Republicans who feuded over the Russia investigation and FISA warrants struck a deal with Barr to reauthorize the authorities, along with adding some additional civil liberties protections and changes to the FISA court process demanded by Trump’s allies who say the FBI was targeting Trump’s campaign.
The new amendment from Lofgren and Davidson on internet search history has some differences compared to the Senate version, offered by Wyden and Montana GOP Sen. Steve Daines, which failed to reach 60 votes, 59-37. The House’s amendment blocks the collection of internet search and browser history specifically for US citizens and permanent residents, a distinction the Senate’s version did not contain.
Congressional aides say the new provision is likely to attract even more support in both chambers — it’s backed by both Lofgren and House Intelligence Chairman Adam Schiff, also a California Democrat — although civil liberties advocates like the American Civil Liberties Union expressed concerns the amendment had been watered down.
Schiff said in a statement that he had worked with Lofgren to modify the amendment from Wyden and Daines and the House measure would “prevent use of FISA’s business records provision to seek to obtain a US person’s internet browsing and search history information.”
Wyden, who is typically aligned with Lofgren, initially expressed support for Lofgren’s amendment on Tuesday. But Tuesday evening he said he was opposed and accused Schiff of undermining the Senate proposal.
“It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill, and urge the House to vote on the original Wyden-Daines amendment,” Wyden said.