WASHINGTON — An effort to pass a significant surveillance reform package collapsed Wednesday evening, falling victim to presidential tweets, opposition from the Justice Department and the fracturing of a fragile coalition among liberals, moderates and conservatives.
House Democratic leaders decided to abandon a scheduled vote a few hours after Donald Trump issued a veto threat on Twitter. They have no immediate plans to revisit the issue, a Democratic aide said.
The pulling of the bill to reauthorize a series of national security powers under the Foreign Intelligence Surveillance Act came a day after the president tweeted his disfavor, ostensibly on grounds that it fails to address what he calls “the greatest political, criminal, and subversive scandal in USA history.”
While he has never explicitly spelled out what he means, Trump has variously blasted the FBI for its flawed surveillance of a former campaign aide, Carter Page, and accused the government without evidence of spying on Trump Tower during the campaign.
None of the now-expired authorities the bill sought to revive were at issue in Page’s surveillance, which the Justice Department inspector general roundly criticized in a December report as having been conducted on the basis of applications riddled with errors and omissions.
But that did not stop the president from urging “all Republican House Members [to] vote NO on FISA.” On Wednesday evening before the vote, he tweeted a threat: “If the FISA Bill is passed tonight on the House floor, I will quickly VETO it.”
The underlying law, USA Freedom Act, expired on March 15, a few days after the House voted to reauthorize it. The Senate amended the House version earlier this month to bolster civil liberties protections, teeing the bill up for House action.
On Wednesday, GOP leadership directed all members to vote “no.” That included Minority Leader Kevin McCarthy, R-Calif., who earlier supported the bill.
The Justice Department issued a statement decrying the Senate-passed legislation as watered down. Assistant Attorney General Stephen Boyd said it “would unacceptably impair our ability to pursue terrorists and spies.”
Others, including progressive Democrats such as Rules Committee Chairman Jim McGovern, D-Mass., said the bill was not strong enough.
“We cannot in good conscience vote for legislation that violates Americans’ fundamental right to privacy,” said Rep. Pramila Jayapal, D- Wash., and Rep. Mark Pocan, D-Wis., co-chairs of the Congressional Progressive Caucus.
It is unclear whether or when Congress will try again to reauthorize USA Freedom, which in turn amends FISA — the law that governs how and when the FBI can conduct surveillance or obtain records in national security and counterterrorism cases. GOP leaders have suggested such an effort will have to wait for the completion of an investigation by U.S. Attorney John Durham into the origins of the Russia inquiry that began in 2016 into whether Trump campaign members or associates coordinated with Moscow.
Investigations that began before USA Freedom lapsed on March 15 can continue to make use of the “business records” or “Section 215” provision of FISA, which enables the FBI to collect any “tangible things” — books, documents, records — when relevant to a national security investigation. But agents opening new cases will have to use other tools to get such material, or go without.
The same holds true for a second provision that allows agents to obtain “roving” wiretaps to follow terrorism suspects who quickly switch phones and email accounts. A third permits agents to surveil individuals who may be planning a terrorist attack but are not affiliated with a foreign terrorist group. That one has never been used.
“These three authorities did not go down for civil liberties reasons,” said Bobby Chesney, a law professor at the University of Texas, Austin. “They were held hostage to other concerns and now the hostage has been shot.”
Civil liberties advocates contend that investigators can turn to other tools, such as national security letters and criminal warrants. “So this notion that the sky is falling if the authorities lapse is not a fair one,” said Neema Singh Guliani, senior legislative counsel for the ACLU.
But law enforcement officials have said the loss of these tools impairs investigators in new probes, such as the recent terrorist attack at a Pensacola, Florida, naval station.
Another casualty of the bill’s defeat is a measure that had found favor in both chambers: to end the National Security Agency’s authority to obtain the phone records of suspected terrorists and any American whose phone number appears in those records. The agency suspended the program in early 2019, but lawmakers wanted to write the ban into law.
The Senate bill strengthened third-party oversight of the process used to obtain court approval for wiretaps and searches in national security investigations. It required judges with the Foreign Intelligence Surveillance Court, which decides whether to authorize surveillance, to appoint an amicus, or third-party observer, in any case involving a “sensitive investigative matter.”
Had the provision been law in 2016, the court would have had to appoint an amicus to help it determine the appropriateness of surveilling Page, Trump’s former campaign aide.
Privacy advocates in the House wanted to go further and adopt other provisions. In particular, Reps. Zoe Lofgren, D-Calif., and Warren Davidson, R-Ohio, after negotiating with House Intelligence Committee Chairman Adam Schiff, D-Calif., had agreed on an amendment to bar the collection of Americans’ web browsing history without a warrant.
But disagreements over the interpretation of the measure’s wording led Sen. Ron Wyden, D-Ore., who had sponsored a similar amendment in the Senate, to withdraw his support, as did a liberal internet rights group, Demand Progress.
“The upshot is you have a quite broad coalition of diverse interests and perspectives who all agree on skepticism of these government institutions,” said Chesney, adding, “and they do not seem troubled by the expiration of these three FISA provisions as collateral damage in the process.”
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The Washington Post’s Devlin Barrett and Paul Kane contributed to this report.