Published by The Lawfare Institute
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A ghost haunts the hallowed halls of Capitol Hill. Members catch glimpses of it occasionally—behind a majestic mahogany desk, or floating mystically near the Statue of Freedom. But just when House Speaker Nancy Pelosi, Majority Leader Mitch McConnell and Attorney General William Barr think they’ve got it trapped, the elusive jinn disappears in a puff of President Trump’s tweets.
The apparition I speak of is, of course, FISA reform.
On May 28, House Democratic leadership canceled a planned vote on the Senate-amended version of H.R. 6172, a bill reauthorizing certain intelligence collection authorities and addressing Foreign Intelligence Surveillance Act (FISA) reform and related issues. The move marked another ignominious step in the months-long effort to reauthorize three intelligence collection authorities—the lone-wolf FISA provision, the roving wiretap provision and the business records provision—and enact civil-liberties-oriented protections to the FISA process. Just a few days before Pelosi’s announcement, it had looked like the bill was on a glide path to passage. But by the morning of May 28, it was clear it did not have the votes in the House.
I write for the second time in as many months: How did we get here, and what happens next?
It’s worth reviewing the tapes. H.R. 6172 passed the House on March 11 on a bipartisan 278-136 vote: Specifically, 152 House Democrats voted in favor, and 75 opposed; 126 House Republicans voted in favor, and 60 opposed. The same day, Barr’s Department of Justice issued a Statement of Administration Policy in support of the House-passed bill. McConnell set a vote on the bill in the Senate.
But it was merely a ghostly apparition. Tweets in opposition to the bill from Sens. Mike Lee and Rand Paul led to a threat of a filibuster—which in mid-March would have eaten up time on the Senate floor needed to consider legislation passed by the House to address the coronavirus pandemic. A March 12 tweet from Trump threatening to veto the bill killed any hope of passage in the Senate before senators headed home on March 26 amid fears of the spreading coronavirus and after passing a $2 trillion coronavirus relief bill.
McConnell worked out a deal with Lee and Paul for the Senate to consider a package of amendments when the body returned to the capital. The bargain? The majority leader agreed to placate the dissenting senators with votes on their amendments in exchange for their agreeing to sign on to a bill in the Senate, passed by unanimous consent, temporarily extending the authorities in question. The House never acted on that bill.
On March 31, the inspector general of the Department of Justice released a disturbing interim report of systemic abuses in the FISA process, following up on his lengthy report last year on the FBI’s handling of the “Crossfire Hurricane” investigation.
Fast-forward to mid-May. The Senate did indeed vote on three of five proposed amendments to H.R. 6172. Two failed. Rand Paul’s amendment essentially gutting the FISA process as applied to U.S. persons failed by a wide margin. Another amendment, offered by Democratic Sen. Ron Wyden and Republican Sen. Steve Daines, would have prohibited Section 215 of the USA Patriot Act from being used for warrantless collection of Americans’ internet website browsing and internet search history information. It just barely failed on a 59-37 vote in the Senate (the threshold for passage was 60), and some insisted that but for the physical absence of Democratic Senator Patty Murray, the amendment would have passed.
One amendment did pass the Senate. Republican Sen. Mike Lee and Democratic Sen. Patrick Leahy offered some fairly modest text enhancing the role of the FISA Court’s amicus curiae and codifying the requirement to include exculpatory evidence in FISA applications. The amendment passed 77-19. The revised bill then passed the Senate on May 14 on a healthy 80-16 vote. And for a few days, the Senate-passed bill seemed like it might pass the House easily and land on President Trump’s desk.
But it was not to be. On May 20, Democratic Rep. Zoe Lofgren and Republican Rep. Warren Davidson urged House leaders to allow a vote on an amendment, styled as a companion to the Wyden-Daines amendment that had just barely failed in the Senate. On May 26, Lofgren announced that an agreed-upon text, supported by House Intelligence Committee Chair Adam Schiff, would prohibit the collection of Americans’ internet search history and web browsing data without a warrant. But the amendment, which might have shored up additional Democratic support for the bill, was scrapped after Sen. Ron Wyden withdrew his support for it on the grounds that it was too narrow in scope. At that point, it looked like the biggest hurdle would be Democratic backing of the bill.
The real death knell, however, came on May 26, when the president posted this tweet:
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!— Donald J. Trump (@realDonaldTrump) May 26, 2020