House FISA bill suddenly on life support

A bill to reauthorize three expired surveillance programs is in jeopardy, with President Trump urging Republicans to oppose it and progressives raising concerns about a key amendment.

House Democratic leaders say they still intend to vote on the measure this week, but it’s suddenly unclear if it can muster the 218 votes needed to clear the chamber — despite an earlier version of the bill winning 278 votes in March.

Despite the limbo status, Democratic leadership is signaling they will move forward, setting up a showdown on the House floor over the fate of the bill.

An update from Democratic leadership sent shortly before noon said that “votes are expected” related to the legislation on Wednesday. Speaker Nancy Pelosi (D-Calif.) told reporters early Wednesday afternoon that “we will act upon it today one way or another.”

Trump, in a Tuesday night tweet, urged Republicans to vote against the measure, linking it to the surveillance he says was done against his campaign by the Obama administration in 2016 and 2017 that led to the resignation of his first national security adviser, Michael Flynn.

GOP leaders who had supported the legislation immediately reversed their positions, with House Minority Leader Kevin McCarthy (R-Calif.) calling on Democratic leaders to pull the bill. House Republican Whip Steve Scalise (La.) said he would whip against the measure.

“We just formally announced a whip against it, because No. 1, it’s not going to become law. No. 2, there are still so many questions that need to be answered about real abuses that happened in the FISA system,” Scalise said, referring to the court established by the Foreign Intelligence Surveillance Act (FISA).

Scalise and Trump spoke on Wednesday, according to a source familiar with their talks, “and agreed that this bill should not move forward in the House in its current form.”

Rep. Liz Cheney (Wyo.), the No. 3 Republican in the House, also expressed opposition to the measure on Wednesday, though she faulted amendments that she said would weaken its ability to keep the nation safe.

It’s unlikely Democrats could get the bill through the House without GOP support. The initial bill that passed the House in March garnered just 152 votes from Democrats.

Progressives and libertarian-minded Republicans have warned for years that they do not believe the FISA court provides enough legal protections for those targeted for surveillance. As a result, a number of House Democrats on the left were already likely to vote against the measure.

The initial bill was negotiated by Attorney General William Barr and House leaders and earned the support of some of Trump’s biggest allies on Capitol Hill, including Rep. Jim Jordan (R-Ohio) and Sen. Lindsey Graham (R-S.C.).

Asked if Trump would sign the bill if it reached his desk, Jordan sidestepped during a House Rules Committee markup on Wednesday but said that Trump was “frustrated by this process.”

Rep. Tom Cole (Okla.), the top Republican on the Rules Committee, was more blunt, predicting that the bill is unlikely to pass.

“My big concern is that while this is probably a better product, at this point it’s not likely to reach the president’s desk until he gives us a signal that his concerns have also been met,” Cole said.

“If we don’t have an agreement between the two parties and the two chambers and the president, then I think this legislation is very unlikely to pass,” he added.

The original bill would reauthorize three expired surveillance programs under the USA Freedom Act and a 2015 intelligence reform law, as well as make some changes to the FISA court.

The Senate, during its debate earlier this month, changed the legislation by adding language to provide additional legal protections for some FISA warrant applications, forcing the measure to go back to the House.

The House is expected to vote on the Senate version of the bill.

The Justice Department sent a warning shot on Wednesday saying it would urge Trump to veto the bill if it reaches his desk.

Assistant Attorney General Stephen Boyd said the Justice Department had offered “specific fixes to the most significant problems” stemming from the changes made by the Senate, but signaled that they had been ignored by House lawmakers.

Boyd added that the Justice Department believes the proposed change from the House would “weaken national security tools while doing nothing to address the abuses identified by the DOJ Inspector General.”

“Given the cumulative negative effect of these legislative changes on the Department’s ability to identify and track terrorists and spies, the Department must oppose the legislation now under consideration in the House. If passed, the Attorney General would recommend that the President veto the legislation,” he said.

Support for the legislation on the other side of the aisle is also shaky.

Backing for a key House amendment, which would tighten limits on law enforcement’s ability to access Americans’ web browsing history, has fractured in the past 24 hours. House Democratic leaders ultimately dropped plans for floor consideration of the amendment, which had threatened to scuttle a vote on reauthorizing the three surveillance programs.

Reps. Zoe Lofgren (D-Calif.) and Warren Davidson (R-Ohio) had initially pushed for an amendment mirroring one offered by Sens. Ron Wyden (D-Ore.) and Steve Daines (R-Mont.) in the Senate that would require a warrant any time law enforcement wanted to access web browsing data.

The amendment that was ultimately submitted to the Rules Committee on Tuesday, however, narrowed that protection to U.S. persons — something which would exclude individuals in the U.S. on green cards or other visas.

Wyden initially released a statement praising the Lofgren-Davidson measure but pulled his support following comments from Rep. Adam Schiff (D-Calif.), the chairman of the House Intelligence Committee who was involved in developing the House amendment text.

Schiff in a statement to reporters Tuesday seemed to suggest that the measure would allow room for law enforcement to continue the collection of Americans’ records as long as they are relevant to a foreign intelligence investigation, an issue which critics have said is left open to interpretation in the current amendment.

Demand Progress, a key progressive internet rights group, on Wednesday morning also urged lawmakers to oppose the bill, as did Fight for the Future, another online rights group that backed the Wyden-Daines amendment.

“House Democrats had an opportunity to enact meaningful protections that would have kept people safe,” Fight for the Future’s deputy director, Evan Greer, said in a statement. “Instead they let Rep Adam Schiff throw it all away at the last minute.”

It remains unclear if dropping the amendment will be enough to win over Republican support, especially since Trump’s ire is focused on alleged abuses of FISA authority.

Demand Progress slammed the decision to drop the amendment Wednesday.

“House leadership has chosen to advance a bill that fails to protect internet activity with a warrant, despite the express support of 61 Senators,” Sean Vitka, the group’s senior policy counsel, said in a statement.

“It would be unconscionable for the Democratic House to pass any PATRIOT Act reauthorization without critical privacy reforms that would pass the Senate.

Juliegrace Brufke contributed. Updated at 3:41 p.m.