FISA overhaul could be an early test of House voting by proxy

Senate changes draw flak from Justice Department

House Judiciary Chairman Jerrold Nadler said the FISA legislation could come up under proxy voting procedures. (Tom Williams/CQ Roll Call file photo)
House Judiciary Chairman Jerrold Nadler said the FISA legislation could come up under proxy voting procedures. (Tom Williams/CQ Roll Call file photo)
Posted May 15, 2020 at 3:23pm

The chairman of the House Judiciary Committee thinks House action on a Senate-passed surveillance overhaul bill could be the first test case for the remote voting protocols being considered by the House on Friday. The Senate passed the amended bill on Thursday.

House Judiciary Chairman Jerrold E. Nadler said Friday that he viewed the amended version of the bill that will be returning to the House as a step in the right direction.

“I regard the Senate amendment as an improvement to the bill, not huge but an improvement,” Nadler said at the Capitol. “I’m going to try to pass it again. If they had done it a couple of days earlier, we might have done it today.”

Members of the House were back in Washington on Friday for an unusual session to consider the latest coronavirus response legislation pushed by House Democrats, as well as a rules change that would allow lawmakers to record votes without being physically present in the House chamber.

Nadler said the House’s next action on legislation to revive three intelligence authorities and overhaul parts of the Foreign Intelligence Surveillance Act could come during such a remote session.

“It may very well be that, you know, we’re changing the rules today so we can pass legislation by proxy voting,” Nadler said. “That may be the first bill.”

“I’m just speculating, but it may be, because there’s no reason we shouldn't do it rapidly now. And we want to do it rapidly,” Nadler said.

The earlier House-passed version of the reauthorization was the product of negotiations involving congressional Democrats, Republicans and the Trump administration, led by Attorney General William Barr.

Still, President Donald Trump’s support of that earlier agreement was always in question. And now the new Senate version includes changes from Republican Sen. Mike Lee of Utah and Democratic Sen. Patrick J. Leahy of Vermont that has earned criticism from the Justice Department.

“As amended, however, H.R. 6172 would unacceptably degrade our ability to conduct surveillance of terrorists, spies and other national security threats,” Marc Raimondi, national security spokesman at the Justice Department, said in a Thursday statement.

House supporters of providing more stringent civil liberties protections will not be swayed by the Justice Department's position. In fact, some of them want the House to do more in the next exchange.

“The Leahy-Lee amendment took us a step closer to properly protecting Americans’ civil liberties, and it’s clear we need to go farther,” Rep. Zoe Lofgren, D-Calif., said. “Specifically, most Americans know their web browsing history and search queries contain private, personal information, and yet the Senate failed to prohibit the Intelligence Community from taking your search history and web browsing history without a warrant. The Wyden-Daines amendment would have addressed that, and it’s now the House’s responsibility to curb this violation of Americans’ rights.”

Lofgren, a senior member of the House Judiciary panel, was referring to an amendment the Senate rejected on Wednesday by the narrowest of margins. Sen. Steve Daines, R-Mont., joined with Oregon Democratic Sen. Ron Wyden received 59 of the 60 votes needed for adoption.

“I know it’s still within our grasp as lawmakers to push for the significant privacy reforms we need,” Lofgren said.

The office of Sen. Patty Murray of Washington, one of the lawmakers who has been largely away from the Capitol during the coronavirus pandemic, said that she would have supported the Wyden-Daines amendment if she had been at the Capitol.

The amended bill ultimately sailed through the Senate 80-16 on Thursday, after 77 senators voted Wednesday to add the amendment from Leahy and Lee.

Republicans have been increasingly critical of the FISA court process given the now-public surveillance efforts against former Trump campaign foreign policy adviser Carter Page, as well as the issue of the unmasking of the identity of Michael Flynn, who was Trump’s national security adviser.

“I support the FISA bill,” Missouri Republican Rep. Ann Wagner said Friday. “However, what we’re seeing now in terms of the unmasking of Americans is very concerning.”

“This was designed after 9/11 to make sure that those foreign actors and terrorists that were trying to hurt us or do nefarious things, that we could track them and trace them,” Wagner said. “It’s not to spy on Americans. And, now there’s a way to handle that … if you go to a court and you ask a judge through the proper U.S. court system for a wiretap or for surveillance or whatever, of Americans, but it’s not through the FISA court.”

There may be a bipartisan push to get the bill cleared through the House and on to the president’s desk without any additional changes, however, since the Lee-Leahy amendment did broaden the mandate for appointment of amicus curiae to represent the interests of potential targets of individuals like journalists, religious entities and political figures during the secretive FISA court proceedings.

Until Congress comes to an agreement with the president on final legislation, the intelligence community authorities for new authorizations to go after lone wolf terrorists, as well as to use “roving wiretaps” not tied to a specific phone number and for collection of business records remain expired.

Jessica Wehrman contributed to this report.