President Donald Trump on Wednesday issued a rare veto threat, promising to reject a renewal of his surveillance authorities if approved by the House of Representatives.
If the FISA Bill is passed tonight on the House floor, I will quickly VETO it. Our Country has just suffered through the greatest political crime in its history. The massive abuse of FISA was a big part of it!— Donald J. Trump (@realDonaldTrump) May 27, 2020
The Senate had previously approved the renewal through 2023, and it had been expected to become law with little controversy. But earlier this month, the Republican-led Senate failed to pass a measure that would limit the FBI’s ability to access web-browsing history and other online activity without a warrant by a single vote — a vote that Sens. Bernie Sanders and Patty Murray missed.
Civil libertarians, led by Rep. Zoe Lofgren, D-Calif., pushed House Speaker Nancy Pelosi to allow an up-or-down vote on that amendment, then send it back to the Senate, where it could pass with all senators voting. Pelosi instead told Lofgren to negotiate with House Intelligence Committee Chair Adam Schiff, D-Calif., the New York Times reported, and Schiff watered down the legislation. The result drew criticism from the left and right — and Trump’s attention to the fight.
Had Pelosi agreed to a simple up-or-down vote on the Senate amendment, it likely would have passed easily, and reauthorization of the broad surveillance authorities, along with some real reforms, would be on their way to becoming law.
The House was initially scheduled to vote late Wednesday evening, but postponed the vote. Leaders from both the Republican minority and the Congressional Progressive Caucus said they were whipping members to vote no. Even if it passes, Trump has promised to veto it. Trump, of course, has been known to break promises, so Pelosi’s gamble may still pay off.
For the first time in the history of the House, the lower chamber allowed for remote proxy voting, as dozens of members of Congress stayed away from the floor amid the coronavirus pandemic. The vote is expected to be close, the result of furious last-minute lobbying by civil libertarians on both the left and right, as well as opposition from Trump and House Minority Leader Kevin McCarthy, R-Calif.
The politics of surveillance, even in normal times, scramble the typical partisan tendencies, with Senate Majority Leader Mitch McConnell, R-Ky., Pelosi, and Schiff often aligning on questions about the breadth and depth of state power to surveil and track Americans. Opposing those congressional leaders is the civil liberties community, which includes both progressives and conservatives with libertarian leanings, but which rarely can muster a majority in Congress for its defense of the Bill of Rights.
The civil liberties argument has gained new traction in recent months, with Trump’s outrage over the U.S. Foreign Intelligence Surveillance, or FISA, court’s handling of surveillance of his campaign, particularly the deeply flawed application for a warrant to surveil former adviser Carter Page. Although it was initially designed to review intelligence surveillance applications for suspected agents of a foreign power, after 9/11 the secretive FISA court signed off on expansive interpretations of surveillance law. Now, as Trump feels victimized by it, he and his allies have found religion on the question.
Rep. Louie Gohmert, R-Texas, a famously eccentric conservative in the House, remarked at a Rules Committee hearing Wednesday morning on the oddity of House Democrats fighting to give Trump surveillance powers he wasn’t asking for, despite his clear determination to use law enforcement for his own political ends.
“It sure seems strange to me. For Democrats to vote for this reauthorization, even with these amendments, would have to be sort of saying, we have so much trust in Donald Trump and the people he’s appointed that they would never lie to a FISA court. They would never just go after their enemies. We feel like he can be trusted and so can all the people he’s appointed,” he said. “We know he’s cleaned out some folks at the Justice Department, FBI, I mean, think about it.”
The unlikely coalition of Trump and the civil libertarians was enough to stall the legal reauthorization of the FBI’s “call detail records” program, an amended version of the Patriot Act that allowed federal law enforcement to collect phone records. The authority lapsed in March after McConnell was unable to force through an unamended reauthorization.
Earlier this month, the Senate reauthorized those programs with additional restrictions, but an amendment that would limit the government’s ability to collect internet browsing history without a warrant fell one vote short of the 60 votes it needed to pass.
Pelosi then instructed Schiff to come up with a compromise version with Lofgren, rather than allow an up-or-down vote on the Senate language. The result of those negotiations was an amendment, introduced by Lofgren and Rep. Warren Davidson, R-Ohio, that reintroduced the restriction on collecting browsing history, but applies it only to U.S. persons.
However, Lofgren’s and Davidson’s amendment leaves up to interpretation what federal agents should do when they don’t know ahead of time whether U.S. persons’ information would be swept up in information requests — giving the secretive FISA court room to allow bulk collection and task the FBI with purging U.S. person information afterward. The agreement broke down when Schiff and Lofgren offered different interpretations of their measure.
“If the government wants to use a dragnet and order a service provider to produce a list of everyone who has visited a particular website, watched a particular YouTube video, or made a particular search query, it cannot seek that order unless it can guarantee that the business records returned will contain no U.S. person IP addresses, or other U.S. person identifiers,” Lofgren said at a Rules Committee hearing Wednesday morning. That interpretation was enough to win the backing of Sen. Ron Wyden, D-Ore.
In a statement, Schiff said that the amendment prohibited orders that “to seek to obtain” U.S. persons’ browsing information, leaving open the possibility that the FBI could seek to collect visitor logs from a website that contained Americans, as long as that was not their primary purpose.
Statements like that, noted Charlie Savage in the Times, can be used by judges to determine legislative intent and confounded what had appeared to be a settled issue.
That led to pushback from both the left and right, and the renewed attention not only risked reforms that had been won in the Senate and failed to win support for the amendment Schiff advocated for, but it also drew a veto threat from Trump. Wyden, who co-sponsored the failed amendment in the Senate, withdrew his support, saying in a statement that it “flatly contradicted the intent” of his amendment in the Senate, and urged the House to consider his version.
The Rules Committee adjourned Wednesday morning without advancing the amendment, meaning that the House will vote on the version that passed the Senate.
Lofgren said that she would have preferred an amendment not be limited to U.S. persons, but that it was necessary in order to secure a vote from House leadership on the motion. “I know concerns have been raised about limiting this to U.S. persons,” Lofgren said Wednesday. “In my ideal amendment, I would not have included this limitation, but I was led to understand that a compromise might be necessary in order to get a vote.”
David Segal, executive director of Demand Progress, which lobbied against the legislation, said that Pelosi and Schiff’s apparent own goal came from too close of an alliance with the national security establishment, which, he argued, “has led them to line up against reforms that could have passed, and in support of a bill that harms Americans, might not pass, and would likely be vetoed.”
Trump, too, trashed the compromise, which led House Republican leadership to urge its members Wednesday morning to oppose the bill en masse. If roughly 1 in 5 go along, Pelosi has no path to passage without Republican support.
The opposition of a vast majority of Republicans gifted the CPC a fresh opportunity to flex its muscles in the House, after a disappointing effort to influence coronavirus relief packages. Trump’s turn against surveillance authorities has produced enough Republican opposition that a concerted effort by progressives could block passage.
Rep. Mark Pocan, D-Wisc., a CPC co-chair, told The Intercept that the caucus was urging its 92 members to vote no.
“We have grave concerns that this legislation does not protect people in the United States from warrantless surveillance, especially their online activity including web browsing and internet searches,” said Pocan and fellow co-chair Pramila Jayapal, D-Wash., in a statement later on Wednesday afternoon. “Despite some positive reforms, the legislation is far too narrow in scope and would still leave the public vulnerable to invasive online spying and data collection.”
On Wednesday, Pelosi was insistent the vote should go forward. “With an intelligence bill, with a FISA bill, no one is ever really that happy,” Pelosi said. “But in all humility, we have to have a bill.” By late Wednesday evening, the vote was postponed.
Update: May 27, 2020, 9:40 p.m. ET
This piece has been updated to reflect that the House’s vote, scheduled for Wednesday evening, has been postponed.