The House on Wednesday voted to reauthorize three national security surveillance authorities following a rare bipartisan agreement struck ahead of a Sunday deadline when the provisions are set to expire.
The legislation includes new privacy protections to the Foreign Intelligence Surveillance Act, or FISA, as well as changes to the FISA court system to address misconduct over the surveillance warrants for former Trump campaign adviser Carter Page, which came under fire from Republicans and President Donald Trump. The House approved the measure with a broad, bipartisan majority, 278-136.
The legislation now heads to the Senate, where Majority Leader Mitch McConnell is hoping for quick passage of the House bill — something that will ultimately be up to opponents of the measure.
The legislation was the product of rare bipartisan agreement: The deal was reached on Tuesday following negotiations between Democrats and Republicans who have been at war over the Russia investigation and Trump’s impeachment: House Speaker Nancy Pelosi and Democratic chairmen Adam Schiff and Jerry Nadler on one side, and Minority Leader Kevin McCarthy and Reps. Devin Nunes, Jim Jordan and Doug Collins on the other.
But the agreement has also come under fire from lawmakers in both parties, criticized by both liberals and libertarian-leaning Republicans for not going far enough to address privacy concerns.
In a sign of the odd alliances over the vote, both the leader of the conservative House Freedom Caucus, Rep. Andy Biggs, and the co-chairs of the liberal Congressional Progressive Caucus, Reps. Pramila Jayapal and Mark Pocan, opposed the measure.
“It’s not real reform,” said Rep. Zoe Lofgren of California, a Democratic member of the House Judiciary Committee who took part in the negotiations with Democratic leaders.
Nadler, a New York Democrat and the Judiciary Committee chairman, dismissed the criticism from Lofgren, calling her assertion “ridiculous.”
“It is very substantial reform,” Nadler said. “It greatly increases civil liberties protections. Not as much as I would want or, apparently, as much as she would want, but it’s what we could get. … This bill substantially improves civil liberties, which is what Democrats should want and it does so without decreasing our intelligence capabilities to protect us.”
Democrats backed the measure 152-75, while Republicans voted for it 126-60. Independent Rep. Justin Amash of Michigan, a longtime FISA opponent, voted no.
Attorney General William Barr also played a key role in the talks, meeting several times with Republican lawmakers who demanded provisions to address the Page FISA warrant.
Barr announced his support for the bill ahead of Wednesday’s vote. Barr acknowledged that the bill includes proposals from him and FBI Director Christopher Wray following a Justice Department inspector general report that slammed the FBI’s work on surveillance warrants of Page in 2016.
“I am pleased that the bill contains a number of provisions Director Wray and I put forward to address past failures, including compliance failures that the Inspector General has identified for us in his recent audit work. The IG’s analysis and recommendations have helped shape our proposals,” Barr said.
While the FISA reauthorization easily passed the House, its fate in the Senate is still murky. The Senate is scheduled to leave Washington on Thursday for a week-long recess, and it’s unclear if there will be an agreement to fast-track the legislation to passage — a maneuver that any single senator can scuttle.
“We applaud the bipartisan House passage of this legislation and look forward to voting to pass it in the Senate as soon as possible,” McConnell said in a statement along with key Senate GOP leaders, including Majority Whip John Thune of South Dakota, Intelligence Chairman Richard Burr of North Carolina, Judiciary Chairman Lindsey Graham of South Carolina and Sen. John Cornyn of Texas.
Sen. Rand Paul, a Kentucky Republican, declined to say whether he would try to filibuster the legislation, delaying its passage, as he did in 2015. Paul told reporters Wednesday he wanted a vote on an amendment that said Americans should not be targeted by FISA.
Democratic Sen. Ron Wyden of Oregon, another FISA critic, said the House’s protections simply don’t go far enough by failing to stop the government from “digitally tracking Americans through their web browsing and internet search history without a warrant.”
But Wyden said Wednesday he was focused on the coronavirus outbreak and would not take steps to stall the legislation beyond voicing his staunch opposition.
Lofgren and other liberal opponents of the agreement were unsatisfied with the additional protections that were included in the reauthorization of the surveillance programs under Section 215 of the law dealing with business records, which allows the FBI to obtain tangible things in national security investigations.
The reauthorization includes a ban on the collection of GPS and cell phone site location data under Section 215, as well as a five-year limitation for the government to retain most of the materials it collects under the authorities. And the bill requires the government to notify individuals if it plans to use information collected under Section 215 against them.
The measure also formally ends the National Security Agency’s bulk phone collection data program that was stopped last year.
Lofgren and Nadler previously clashed over the FISA bill, as she proposed amendments when the Judiciary Committee was set to mark up the measure last month that prompted Nadler to scrap the markup.
On the Republican side, the agreement was reached by some of Trump’s top allies, who have hammered the Justice Department and the FBI for the Russia investigation and the FISA warrant on Page.
The Justice Department inspector general issued a scathing report criticizing the warrants on Page, and Trump and Republicans demanded changes to the FISA court as part of the reauthorization, even though the expiring provisions deal with other authorities.
The bill includes several changes to the FISA court process that Jordan touted on Tuesday, including requiring the attorney general to sign off on FISA applications dealing with elected officials and federal candidates and allowing independent monitors to review FISA applications.
The bill also makes it a crime to lie to the FISA court and allows the House and Senate Intelligence Committees to review FISA applications and materials.
But Republican opponents of FISA blasted the bill as not going far enough after it was released on Tuesday.
“The ‘Deal’ on FISA is weak sauce diluted & made impotent by A.G. Barr,” tweeted Paul. “None of the reforms prevent secret FISA court from abusing the rights of Americans. None of the reforms prevent a President of either party from a politically motivated investigation.”
Rep. Thomas Massie, a Kentucky Republican and vocal FISA critic, charged that the bill ” won’t fix the provisions that allowed the unconstitutional spying” on the President.
And GOP Sen. Mike Lee of Utah urged Trump to veto the legislation.
“The House FISA deal doesn’t fix what’s wrong with FISA,” Lee tweeted. “I will do everything I can to oppose it in the Senate. If it passes, @realDonaldTrump should veto it.”
This story has been updated with additional developments Wednesday.