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Senate passes FISA renewal bill, sends it back to the House

Senate privacy hawks successfully amended it to expand legal protections for certain groups of individuals who are targeted by federal surveillance.

The FISA renewal bill includes new privacy protections that Attorney General William Barr had helped negotiate and would impose new requirements on the FISA court system. | Jose Luis Magana/AP Photo


05/14/2020 02:47 PM EDT


The Senate approved legislation Thursday to renew a handful of key domestic surveillance powers, but only after civil libertarians attached language that the Justice Department warns would "unacceptably degrade" national security.  Now the bill goes back to the House for possibly more tinkering, leaving a cloud over its chances for swift final approval.  The USA Freedom Reauthorization Act of 2020 passed the Senate by an 80-16 vote more than two months after the House approved it by a wide, bipartisan margin. But Thursday's vote came a day after Senate privacy hawks successfully amended the bill to expand legal protections for certain groups of individuals targeted by federal surveillance — a change that DOJ labeled unacceptable.  "We appreciate the Senate’s reauthorization of three expired national security authorities," department national security spokesman Marc Raimondi said in a statement. But he said the amended bill "would unacceptably degrade our ability to conduct surveillance of terrorists, spies and other national security threats.”  President Donald Trump, who has accused a government "deep state" of misusing its spying powers, also has not indicated whether he would sign the bill.

The vote occurred mere hours after the announcement that Sen. Richard Burr (R-N.C.), who in March argued passionately against letting the authorities lapse, will temporarily step down as chairman of the Senate Intelligence Committee amid a probe into his stock trades.  House Speaker Nancy Pelosi didn't say during her weekly news conference Thursday when the chamber would take up the amended measure.  A Democratic leadership aide told POLITICO that it won't be considered on Friday when the House convenes to vote on the latest Covid-19 relief package. The aide said the leadership was "assessing next steps."  

The FISA renewal bill includes new privacy protections that Attorney General William Barr had helped negotiate and would impose new requirements on the FISA court system. Those were inspired in part by Trump’s allegations that the Obama administration improperly used the spying tools to wiretap his former campaign adviser Carter Page during the initial probe of Russian interference in the 2016 election.  The bill would also permanently end an already deactivated NSA program that had allowed the agency to obtain, with judicial approval, Americans’ phone records in terrorism probes.  Thursday's successful passage came months after the House voted to reauthorize the authorities with modest changes. The Senate, however, couldn't reach an agreement for quick passage of the House bill in March amid objections from the chamber’s privacy advocates. The chamber eventually adopted a 77-day extension as a short-term solution, but the House never took it up.  The intelligence tools the authorities enabled have remained offline ever since.

The measure now kicks back to the House, where progressives and libertarians could use the Senate's changes as leverage to reopen debate on the legislation and try to amend it even further. That's especially a possibility for those GOP members who have demanded that the chamber reopen for business as usual despite the pandemic.  Sen. Mike Lee (R-Utah), who along with Sen. Patrick Leahy (D-Vt.) secured the amendment expanding legal protections, called the legislation a "good bill.”  "We got some good reforms here. They are consistent with many of the aims that House members who negotiated the last House bill had in mind,” Lee told POLITICO before the final vote. He had previously lobbied Trump to veto the measure if it reached his desk unaltered.  "I’m certainly not going to tell them what to do with it,” Lee added, though he suggested he might support something similar to a proposed amendment from Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.) that would have protected Americans’ internet browsing and search histories from federal surveillance. It came up just one vote shy of the 60-vote threshold.

Rep. Zoe Lofgren (D-Calif.) said the Leahy-Lee amendment "took us a step closer to properly protecting Americans’ civil liberties, and it’s clear we need to go farther." She had successfully scuttled the House's first surveillance package in February just hours before the House Judiciary Committee was due to mark it up.  On Thursday, she specifically cited the Wyden-Daines amendment, saying that "it’s now the House’s responsibility to curb this violation of Americans’ rights. I know it's still within our grasp as lawmakers to push for the significant privacy reforms we need."  Other House members also seem itching for a fresh surveillance fight.  "Although I am pleased that the Lee-Leahy Amendment passed, I oppose the bill without further amendment. If permitted by House rules, I will offer amendments,” Rep. Warren Davidson (R-Ohio) said in a statement to POLITICO. He and Lofgren co-sponsored an alternative renewal bill to the one the House passed.


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The problem is that Democrats and Republicans are both convinced it is only when the other side grabs power, it is bad.

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  • 2 weeks later...


Effort to renew FISA crumbles

It was a rare legislative setback for Pelosi, and Trump rejoiced.


05/28/2020 09:42 AM EDT

Updated: 05/28/2020 03:49 PM EDT

House Democrats have pulled a bill to reauthorize parts of the federal surveillance program known as FISA, a setback for Speaker Nancy Pelosi’s legislative machine that followed a veto threat from President Donald Trump.  Pelosi announced Thursday that she would seek negotiations with Senate Republicans, a move that sends both parties back to the drafting table to resolve differences — which appeared to be minimal until Trump's threat sent Republicans dropping their support en masse.  House GOP Leader Kevin McCarthy and Senate Majority Leader Mitch McConnell both supported the decision to begin formal negotiations between the chambers, with a McConnell spokesperson calling it "regular order." Democrats had initially resisted because it could slow down the process of passing a bill. The reversal, a rarity for Pelosi, leaves behind a political mess for both parties, with limited options unless Trump, again, changes course.

Speaking to reporters Thursday, the California Democrat blasted Republicans — at the urging of Trump — for "abandoning their commitment" to national security.  "This has always been bipartisan," Pelosi said at a press conference. "All of the sudden, [Republican] commitment to national security disappeared by a tweet, the twinkle of a tweet."  By Thursday afternoon, the House overwhelmingly voted to go to conference with the Senate. Lawmakers also agreed on who should represent the chamber in the negotiations: Democratic Reps. Jerry Nadler (N.Y.), Adam Schiff (Calif.) and Zoe Lofgren (Calif.) and GOP Reps. Jim Jordan (Ohio) and Devin Nunes (Calif.).  Negotiations between the House and Senate on the FISA bill are expected to begin quickly, though it’s unclear how long before a final bill is ready.  House Majority Leader Steny Hoyer (D-Md.) announced Thursday afternoon that the chamber would not return to Washington next week. Lawmakers would receive 72-hours notice before they will need to vote, Hoyer said.

The House had been expected to easily approve the FISA bill this week, with an unusual alliance of Republicans and Democrats who carried a similar version across the floor in March. The Senate passed the measure with than 80 votes in favor, including 45 Republicans. But that fragile coalition collapsed this week as Trump suddenly intervened, issuing a veto threat that seemed to contradict his own administration’s efforts to renew the law.  GOP support for the measure quickly crumbled, forcing Democrats to summon the votes on their own. Republicans who had once endorsed the measure railed against it Wednesday and Thursday, even though the bill had undergone modest changes — all in the direction of increasing limitations on the FBI's data collection.  "We want to make sure it’s not abused like it’s obviously been abused," said Rep. Jim Jordan (R-Ohio), who supported the earlier version of the bill. "You don’t have the votes because we need more work done on this to correct it.”  But the Democratic caucus was facing its own revolt from the left, with about 100 progressives refusing to back legislation they saw as undermining the privacy rights of Americans. And last-minute language from senior Democrats close to Pelosi, like Schiff, further muddied the waters for an uneasy left wing.  

Trump celebrated the bill's demise in a Thursday morning tweet, calling it an "incredibly important blockage" and telling Republicans, "Fantastic job!" for uniformly opposing the measure they once backed.  The retreat by Democrats comes after hours of frenetic, but ultimately unsuccessful, maneuvering by Pelosi and her leadership team on Wednesday. But it had been clear for much of the day that Democrats would not be able to win over enough progressives to pass the bill and send it to Trump’s desk.   Trump has rooted his objections to FISA renewal in his disputed claims that the FBI abused its surveillance powers to monitor his campaign in 2016. Though an inspector general review found that a FISA warrant to monitor former Trump campaign aide Carter Page contained significant flaws and omissions, he didn’t conclude whether it would have been enough to invalidate the application altogether.  Trump has spent recent weeks accusing President Barack Obama of committing crimes against him without any evidence and which Trump linked to his sudden opposition to the FISA measure in the House.  Trump’s animus toward senior FBI leadership over the issue has motivated him and other Republican allies to call for dramatic reforms to the FISA law, even over the efforts by Attorney General William Barr to preserve it unchanged.

Justice Department officials have indicated that the failure of congressional efforts to reauthorize FISA don’t pose an immediate, urgent problem. John Demers, the head of the department’s National Security Division, said in an interview on Wednesday afternoon that the department, for the time being, can make do without Hill action.  "We’re going to have to look at where we can fill in the gaps using criminal tools,” he said. "They’re not perfect. Foreign partners are not crazy when we use their information as the basis of criminal tools, because we don’t have the same protections that we do to protect underlying information as we do on the national security side. We are going to do the best we can to fill those holes and keep those investigations going.”   The department can keep using FISA authorities for investigations that were underway when those authorities lapsed, as Julian Sanchez detailed at Just Security.

The most significant defections seemed to come from Democrats, whose objections mounted this week after key committee leaders negotiated an amendment to restrict the FBI’s ability to monitor Americans' web browsing history. A nearly identical amendment offered by Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.) failed in the Senate by a single vote, and seemed poised to secure bipartisan support in the House.  House leaders had agreed to consider a version in the House offered by Lofgren and Rep. Warren Davidson (R-Ohio), which closely mirrored the Wyden-Daines proposal. The language included a tweak negotiated between Lofgren and Schiff specifying that the effort was limited to protecting the browsing data of "U.S. persons," as opposed to foreign nationals. Sources involved in the negotiations indicated that Wyden supported the tweaked language — and he issued a public statement backing it early Wednesday.  But Wyden reversed himself after a comment from Schiff in The New York Times appeared to suggest that the amendment could be used by intelligence agencies to make broad web browsing data requests — sweeping up Americans' information — under the guise of pursuing foreign nationals' data. Wyden blasted Schiff's characterization in a subsequent statement and withdrew his support for the amendment.

A Democratic official involved in crafting the bill downplayed the significance of the Schiff-Wyden spat, noting that if Republicans had remained aboard, the measure would have passed easily.  "This was a bipartisan compromise bill that passed the Senate by a wide margin, but when the bipartisanship goes away so do chances for passage," the official said.

Betsy Woodruff Swan and Marianne LeVine contributed to this report.




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