Prospects for House passage of a bipartisan surveillance overhaul were slipping Wednesday morning as the Justice Department said it would recommend that President Donald Trump veto the amended, Senate-passed bill — even as some of the president’s closest GOP allies worked for its passage.
Attorney General William Barr worked with House leadership on the original House-passed version, but the Senate amended it by an overwhelming vote to include enhanced privacy protections in the Foreign Intelligence Surveillance Act process, including appointing amicus curiae in sensitive cases.
In a statement, Assistant Attorney General Stephen E. Boyd said that as amended, Barr would recommend a presidential veto.
“Although that legislation was approved with a large, bipartisan House majority, the Senate thereafter made significant changes that the Department opposed because they would unacceptably impair our ability to pursue terrorists and spies,” Boyd said. “We have proposed specific fixes to the most significant problems created by the changes the Senate made. Instead of addressing those issues, the House is now poised to further amend the legislation in a manner that will weaken national security tools while doing nothing to address the abuses identified by the DOJ Inspector General.”
Trump himself had tweeted concerns about the FISA legislation Tuesday evening, though they seemed unrelated to the concerns being raised by the Justice Department.
“I hope all Republican House Members vote NO on FISA until such time as our Country is able to determine how and why the greatest political, criminal, and subversive scandal in USA history took place!” Trump tweeted.
Republican Rep. Jim Jordan of Ohio, who is the ranking member on the Judiciary Committee and a close ally of the president, sought to explain on Wednesday how the amended surveillance bill would help accomplish Trump’s objective of preventing future abuse of the FISA court system.
“Fortunately, this bill makes important structural reforms to the program to combat such abuses,” Jordan said in testifying before the Rules Committee. “For instance, Carter Page didn’t get an amicus assigned to his case. This bill makes it explicit that an amicus should be assigned to all U.S. person cases involving sensitive investigative matters,” Jordan said, bringing up the case of the former Trump campaign adviser who was among the earliest guilty pleas in the FBI’s investigation of Russian interference in the 2016 election.
“The Carter Page application was full of omissions and errors. Lawyers who fill out the FISA application now have to reveal any information that calls into question the accuracy of a U.S. person's application,” Jordan said, highlighting that the bill would establish a new office of compliance.
Jordan also expressed support for the additional House amendment that was being criticized by DOJ.
The amendment, sponsored by Democratic Rep. Zoe Lofgren of California and Republican Rep. Warren Davidson of Ohio, was released Tuesday. Lofgren and Davidson signaled that they had secured floor consideration of that proposal as the House takes up the Senate-passed FISA bill this week.
A broad coalition had been pressuring House leadership to allow such a floor vote, with advocacy groups such as the ACLU, DemandProgress and FreedomWorks, along with a host of technology companies, writing in support.
“Our internet activity opens a window into the most sensitive areas of our private life, and, this week, Representatives will be able to vote to prevent the government from using Section 215 to collect the websites we visit, the videos we watch and the searches we make," Lofgren said in a statement Tuesday. "Without this prohibition, intelligence officials can potentially have access to information such as our personal health, religious practices, and political views without a warrant.”
The amendment language was similar, but not identical, to a Senate amendment that came one vote short of the 60 needed for adoption there.
That amendment from GOP Sen. Steve Daines of Montana and Democratic Sen. Ron Wyden of Oregon sought to clarify that warrantless collection of the web browsing history of Americans was not allowed under Section 215 of the the 2001 law to bolster law enforcement powers to fight terrorism known as the Patriot Act.
Wyden initially issued a statement supporting the new Lofgren-Davidson amendment, but he rescinded his support late Tuesday after reviewing comments from House Intelligence Chairman Adam B. Schiff, D-Calif.
“It is now clear that there is no agreement with the House Intelligence Committee to enact true protections for Americans’ rights against dragnet collection of online activity, which is why I must oppose this amendment, along with the underlying bill, and urge the House to vote on the original Wyden-Daines amendment,” Wyden said.
Testifying Wednesday before the House Rules Committee, Lofgren said her revised language would achieve the desired outcome, but she added that the Rules Committee still could make in order the text of the Wyden-Daines amendment.
"Some comments have been made suggesting that there is ambiguity in this amendment. I think clearly there is not," Lofgren said.
Still, given the difference of opinion within both the Democratic caucus and the Republican conference in the House, the path to passage for the surveillance bill appeared narrow at best. Oklahoma Rep. Tom Cole, the ranking Republican on the Rules panel, said more clarity was needed from the White House.
“I’m waiting to hear a little bit more from the president, because at the end of the day if we don’t have an agreement between the two parties and the two chambers and the president, then I think this legislation’s very unlikely to pass,” Cole said. “I think without presidential support this is very unlikely to pass, because … there’s considerable division within both parties about this now.”
House GOP leaders said they were whipping against the bill, and said that even if it passed, the new proxy voting rules they are challenging in court would make it unconstitutional.
“You look at this FISA bill and we just formally announced a whip against it because, number one, it’s not going to become law. Number two, there are so many questions that need to be answered about real abuses that happen in the FISA system,” House Minority Whip Steve Scalise said Wednesday.
“I would urge the Democrats to pull that bill,” he continued, adding, “If this were to pass, it would only pass with proxy votes meaning the constitutionality of this program would be questioned for a program that’s already got it’s own taint on it.”
Minority Leader Kevin McCarthy reiterated that “Whatever the Democrats propose to bring up cannot become law because it is unconstitutional.” On Tuesday, McCarthy and other Republican leaders filed a federal lawsuit challenging the proxy rule.
Chris Marquette contributed to this story.