Senate leaders are planning to send to the president’s desk next week a bill to reauthorize the government’s authority to conduct foreign surveillance on U.S. soil, despite opposition from privacy advocates and mixed messages from President Trump himself, who questioned his own administration’s support for the program Thursday morning.
The Senate voted 69 to 26 Thursday afternoon to start debating the bill, which would extend for six years the government’s ability to collect from U.S. companies the emails and other communications of foreign targets located outside the United States. The vote came just hours after the House voted 256 to 164 to approve the legislation and is a sign that lawmakers intend to move swiftly to pass the measure before the program’s statutory authority expires on Jan. 19.
The intelligence community considers the program, called Section 702 after the part of the 2008 Foreign Intelligence Surveillance Amendments Act (FISA) that established it, to be its key national security surveillance tool. But privacy advocates oppose the law, arguing there are not enough limits on the government’s ability to scour the database of collected information for the communications of Americans in touch with those foreign targets.
Sen. Rand Paul (R-Ky.) said Thursday that he intended to do “everything in my power, including filibuster,” to impede the bill next week, but he is unlikely to block the bill’s eventual passage. A House effort to amend the bill to require the federal government to obtain warrants before searching the database for Americans’ information failed Thursday by a vote of 183 to 233.
Instead, the greater threat to the fate of Section 702 came from the president himself, in a series of contradictory and seemingly misinformed tweets he fired off after watching a segment about the bill on the Fox News Channel.
“‘House votes on controversial FISA ACT today,’” Trump wrote, citing a Fox News headline. “This is the act that may have been used, with the help of the discredited and phony Dossier, to so badly surveil and abuse the Trump Campaign by the previous administration and others?”
Trump attempted to walk back the tweet about 90 minutes later, urging lawmakers to reauthorize the program. But top Democrats seized on the confusion, calling on Republican leaders to withdraw the bill from consideration “in light of the irresponsible and inherently contradictory messages coming out of the White House today,” Rep. Adam B. Schiff (Calif.), the ranking Democrat on the House Intelligence Committee, said on the floor.
Republicans seemed undeterred by Democrats’ demands, plowing ahead with planned votes on the bill and a sole amendment to it Thursday morning. But behind the scenes, the president’s mixed messages sent shock waves through the House GOP, which was gathered for a regular conference meeting when Trump sent his initial tweet.
The president’s chief of staff, Gen. John Kelly, scrambled to the Hill, while panicked aides alerted the president to the firestorm his tweets had caused. Trump was seemingly misinformed about the nature of the vote and the substance of the bill, people said.
Eventually, Trump called House Speaker Paul D. Ryan (R-Wis.), and they spoke for half an hour. After the House vote, Ryan insisted to reporters that Trump “knows what 702 is” and simply “has concerns on FISA.”
When Trump later issued his second tweet, House Majority Leader Kevin McCarthy (R-Calif.) alerted the GOP conference to it, calming lawmakers’ nerves.
But top Democrats on the House and Senate intelligence committees had already seized on the president’s first tweet, excoriating it as “irresponsible” and “untrue.”
“FISA is something the President should have known about long before he turned on Fox this morning,” Sen. Mark R. Warner (Va.), the ranking Democrat on the Senate Intelligence Committee, tweeted after Trump’s post.
In his second tweet, Trump seemed to backtrack, pushing for the act to be re-upped.
“With that being said, I have personally directed the fix to the unmasking process since taking office and today’s vote is about foreign surveillance of foreign bad guys on foreign land. We need it! Get smart!” Trump wrote on Twitter.
It is unclear how Trump “personally directed the fix to the unmasking process since taking office,” especially because the bill’s sponsor, House Intelligence Committee Chairman Devin Nunes (R-Calif.), stripped the major changes to unmasking procedures from the measure before presenting it for a vote by the full House.
Senior government officials can ask spy agencies to unmask the names of Americans or U.S. organizations if they think it will help them better understand the underlying intelligence. Trump, and Nunes, accused the Obama administration of improperly revealing the identities of members of the president’s transition team. It is unclear what the dossier that alleges his campaign had ties to Russia has to do with unmasking or reauthorizing the spying program, but Trump has repeatedly denounced it in recent days.
Both Republicans and Democrats have pushed back against linking the controversy over unmasking to the FISA program. On Thursday, White House cyber coordinator Rob Joyce said there have “been no cases of 702 used improperly for political purposes.”
Before Trump’s tweet string, the chief obstacle to congressional leaders’ efforts to pass the Section 702 extension was the opposition of privacy advocates, who rallied around an alternative measure from Rep. Justin Amash (R-Mich.) that would have required law enforcement agencies to obtain warrants before being able to sift through the records database. The underlying bill requires only that the government seek a court order when it wants to use information about Americans in criminal cases.
“The government will use this bill to continue warrantless intrusions into Americans’ private emails, text messages, and other communications. No president should have this power,” American Civil Liberties Union policy counsel Neema Singh Guliani said in a statement after the House’s vote, calling on the Senate to “reject this bill.”
Trump’s tweets came shortly after a “Fox and Friends” segment that highlighted the FISA program, calling it “controversial.” His first seemed to side more with civil liberties groups such as the American Civil Liberties Union, House Democrats and others, such as Sen. Rand Paul (R-Ky.), who have pushed for less invasive measures.
Trump’s administration has been consistent in pushing for the FISA program to be reauthorized, with FBI Director Christopher A. Wray calling it a valuable tool to fight terrorism. The White House has issued statements this week and asked lawmakers to reauthorize it, even urging members to vote against the Amash amendment late Wednesday night.
Ellen Nakashima and Erica Werner contributed to this report.