With House Passage of FISA Measure, Action Moves to Senate
GOP leaders in chamber move to restrict amendments to reauthorization
The House on Thursday approved 256-164 a bill to reauthorize provisions of the Foreign Intelligence Surveillance Act for another six years, putting the measure in the Senate’s hands.
The bill, backed by the Trump administration and all the U.S. intelligence agencies, would preserve the FBI and the intelligence agencies’ ability to search a surveillance database for information on Americans with minimal warrant requirements.
The approval of the legislation, backed by House Intelligence Chairman Devin Nunes and the panel’s top Democrat Adam B. Schiff, both Californians, marks a defeat for a large bipartisan group of lawmakers who proposed an amendment that would have imposed tough warrant requirements before the FBI could begin searching the surveillance database for information on Americans.
The amendment, sponsored by Reps. Justin Amash, a Michigan Republican, and Zoe Lofgren, a California Democrat, would also have ended incidental collection of information on Americans. It was rejected, 183-233, moments before final passage of the bill.
The votes on the Amash-Lofgren amendment and the bill itself followed an hour of debate that underscored that the surveillance legislation blurred the usual partisan boundaries. In an unusual alignment, House Speaker Paul D. Ryan and Minority Leader Nancy Pelosi opposed the Amash-Lofgren amendment, saying that it would weaken intelligence agencies’ ability to stop terror plots in a timely fashion.
President Donald Trump appeared to muddy the House debate when he tweeted early Thursday that the “House votes on the controversial FISA ACT,” and mused that the surveillance law could have been used by the Obama administration to spy on the Trump campaign in 2016. An hour later, he tweeted again, this time arguing that the bill “is about foreign surveillance on foreign bad guys on foreign land. We need it!”
The White House also issued a statement of policy backing the House bill and sent Chief of Staff John F. Kelly to the House to monitor the vote.
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In the Senate
The Nunes-Schiff bill faces an uncertain future in the Senate, where Kentucky Sen. Rand Paul has said he would filibuster legislation that does not require stronger warrant requirements for searches of the surveillance database. Paul is joined by Democratic Sen. Ron Wyden of Oregon and GOP Sens. Steve Daines of Montana and Mike Lee of Utah. But a contingent of senators led by North Carolina Republican Richard M. Burr, chairman of the Senate Intelligence Committee, and the panel’s top Democrat, Virginia Sen. Mark Warner, would likely back the House-passed measure.
“The House-passed bill does absolutely nothing to defend the vast majority of law-abiding Americans from warrantless searches, and in many ways, it expands the federal government’s ability to spy on Americans,” Wyden said in a statement, while calling on the Senate to “allow real debate and amendments, and not push this legislation through in the dark.”
Shortly after the House action, the Senate agreed, 69-26, to a motion to proceed to the expected legislative vehicle for FISA amendments reauthorization.
Following the vote, Senate Majority Leader Mitch McConnell made a motion to concur in the House amendment to the bill, and filed cloture on that motion. He then filled the amendment tree, which limits amendments from being offered to the legislation.
Current law allows U.S. spy agencies to conduct electronic surveillance on foreign persons located outside the United States. Section 702 of FISA empowers the National Security Agency under a special court order to collect and analyze emails and other digital communications of foreigners living overseas, but the agency also ends up collecting data on an unknown number of U.S. persons, which it can later search without a warrant.
The agency had also been conducting so-called upstream searches of electronic communications and phone calls but ended up collecting information about Americans who were neither senders nor receivers of information from foreign targets. In April 2017, the NSA said it was suspending such “about collection” because it could not separate the communications between foreign targets and communications purely between Americans.
Backers of the Nunes-Schiff bill said it was a compromise measure between the current law and the demands of privacy advocates who said the FBI should not begin any query of the surveillance database without obtaining a probable cause warrant.
The bill would allow the FBI and intelligence agencies to search the FISA Section 702 database for information on Americans, but would require the law enforcement agencies to obtain a judicial warrant only if any of the information they find is to be used in a criminal proceeding. The bill would also allow the NSA to resume about collection after giving Congress a 30-day notice for review.
Supporters of the Nunes-Schiff bill also argued that requiring the FBI to obtain a warrant may impede fast-moving terror plots.
Backers of the Amash-Lofgren amendment said they wanted to restore the Constitution’s Fourth Amendment protections against unlawful searches.
Rep. Jim Sensenbrenner said the Nunes-Schiff bill “puts the James Madison legacy into the trash bin of history,” referring to the author of the Fourth Amendment.
The Wisconsin Republican is also the author of the Patriot Act that was passed in 2001 in the aftermath of the 9/11 attacks and gave U.S. intelligence agencies vast powers in an attempt to stop further attacks. But in the years after the law was passed, U.S. intelligence agencies were found to be snooping on Americans’ phone calls and in 2015, Sensenbrenner authored the USA Freedom Act that sharply curtailed the NSA’s ability to collect phone meta-data on Americans.