House Vote to Re-Up Surveillance Act at a Crossroads

Department of Justice Inspector General Michael Horowitz testifies at a 2019 Senate Judiciary Committee hearing on alleged abuses of the Foreign Intelligence Surveillance Act. (AP Photo/Andrew Harnik)

WASHINGTON (CN) — Amid bipartisan opposition, House leadership abandoned plans to vote Wednesday night on extending three provisions in a controversial surveillance law.

The fate of the bill was uncertain throughout the day, but House leadership had repeatedly insisted a vote on the measure was expected at some point in the evening, even as opposition mounted on both sides of the aisle.

But after debate of less controversial bills and a series of short recesses late Wednesday night, House Majority Leader Steny Hoyer told members shortly after 9:30 p.m. that votes were done for the day.

It is unclear whether the House will vote on the bill to reauthorize the provisions of the Foreign Intelligence Surveillance Act when it reconvenes on Thursday morning. An update from Hoyer’s office after 10:30 p.m. Wednesday says there will be “possible consideration” of the bill Thursday.

The move closes out a day of debate over the law, which empowers the federal government to conduct surveillance and access certain records when conducting intelligence investigations.

Though the House already voted to extend the programs in March, the chamber must do so again because of changes in a version that the Senate passed on May 14.

Wednesday’s reauthorization effort teetered under criticisms from both progressive Democrats and Republicans.

Progressives clamored for greater protections against abuse, particularly surrounding the collection of internet browsing data, while Republicans echoed President Donald Trump’s frequent criticisms of the law centered on scathing inspector general reports that fault law enforcement for their handling of FISA applications, including those related to former Trump campaign adviser Carter Page.

Trump threatened a veto on Twitter Wednesday evening and the Justice Department came out against the bill earlier in the day, taking aim at two amendments that garnered bipartisan support.

“Given the cumulative negative effect of the legislative changes on the department’s ability to identify and track terrorists and spies, the department must oppose the legislation now under consideration in the House,” Assistant Attorney General Stephen Boyd said in a Wednesday morning statement. “If passed, the attorney general would recommend that the president veto the legislation.” 

Speaker of the House Nancy Pelosi had promised earlier in the day that the vote would happen Wednesday “one way or another.”

The amendment was a key initiative from privacy-conscious lawmakers but will not come up for a vote under the rules for debate of the bill the House Rules Committee approved on Wednesday. 

House leadership scrapped a key amendment that would have prohibited the government from collecting internet browsing and search data from Americans without a warrant, with Pelosi saying the version of the bill that passed the Senate would be more likely to pass.

Representatives Zoe Lofgren and Warren Davidson, a California Democrat and an Ohio Republican, respectively, had sponsored the amendment, which had been a focus for reform-minded Democrats and was modeled off of a measure that narrowly failed in the Senate.

Another bipartisan amendment that has rankled the Justice Department came from Senators Mike Lee and Patrick Leahy, who are a Republican and Democrat, respectively, representing Utah and Vermont. The Lee-Leahy amendment was part of the Senate’s May 14 bill, generally requiring the court to appoint friends of the court in all cases that raise a “sensitive investigate matter.”

With Trump threatening a veto and the Lofgren-Davidson amendment dead, it is unclear whether the legislation will have enough votes to pass the Democrat-controlled chamber. 

“I think for a lot of progressive Democrats it’s not going to be enough reform, and then President Trump’s tweet has kind of scared off the Republican support and I think the Republicans will probably vote in lockstep against it,” Elizabeth Goitein, the director of Liberty and National Security at the Brennan Center for Justice, said in an interview. “So it’s getting harder to see how this gets through, but I still don’t know.” 

If the measure does eventually pass, only to be vetoed by Trump, Goitein said it is unclear where talks on reauthorization go next, with Republicans and progressives forming a rough coalition in favor of reform and leadership resisting changes to the law. 

Before the Rules Committee dropped it from consideration, the Lofgren-Davidson amendment had exposed a rift on the left. Lofgren and Davidson initially supported an amendment mirroring one pushed by Senator Ron Wyden to completely ban the FBI from collecting internet data without a warrant. That proposal would have raised the standard for the FBI to obtain internet data, but it narrowly failed in the Senate. 

The ban was ultimately limited to Americans under the final version of the Lofgren amendment, itself a compromise with Representative Adam Schiff.

In a statement to The New York Times on Tuesday, Schiff suggested the amendment was even more narrow and could allow the FBI to still gather data that might unintentionally include information about Americans.  

Though he initially supported the amendment, Wyden reversed course following Schiff’s comments and withdrew his support of the Lofgren-Davidson amendment and the reauthorization bill as a whole. Advocacy groups, including the progressive group Demand Progress and the ACLU, have also raised concerns about the amendment. 

Goitein said the limits raise concerns for noncitizens living in the United States and for U.S. citizens whose data could be swept up in “dragnet” searches.

Speaking to colleagues at the House Rules Committee meeting Wednesday morning, Lofgren said her preference would be to vote on Wyden’s Senate amendment, but that the language she has put forward is a necessary compromise. She downplayed concerns that the bill would allow incidental collection of certain data from Americans, saying the government would have to misread the law to claim that authority.

She said, while it is reasonable given past behavior to assume intelligence agencies might stretch the plain language of the law, the Lee-Leahy amendment specifically requires a friend of the court be appointed if the agencies advance a unique interpretation of the law. 

Davidson went further, accusing Schiff of detonating a bipartisan agreement with his statement.

“Mr. Schiff has attempted to fracture the coalition by stating things that he knows to be false, which, frankly in my opinion would not be the first time that he has used such tactics,” Davidson said at the meeting.

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