Justice Department Says It Will Recommend Trump to Veto FISA Reauthorization Bill

May 27, 2020 Updated: May 27, 2020

The Justice Department (DOJ) on Wednesday has continued to signal its opposition against changes made to a federal surveillance reform bill that is under consideration in the House, adding that it would recommend President Donald Trump to veto the law if it reaches his desk.

The Senate earlier this month approved the reauthorization of three expired surveillance tools under the USA Freedom Act, a 2015 intelligence law, in a bipartisan vote. The reauthorization bill also contains some changes including some amendments to address deficiencies in the Foreign Intelligence Surveillance Act (FISA) process. The surveillance tools, which need to be periodically renewed, are designed to help law enforcement officials track suspected terrorists and spies.

Assistant Attorney General Stephen Boyd said in a statement that the department opposes the Senate’s version of the bill as well as House-proposed amendments introduced by Rep. Zoe Lofgren (D-Calif.). The Lofgren amendment would prohibit intelligence officials from collecting Americans’ internet search history and web browsing data without a warrant.

“The Department opposes the Senate-passed bill in its current form and also opposes the Lofgren amendment in the House,” Boyd said. “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 added.

The DOJ’s statement is the latest hurdle for the legislation that is expected to be voted on in the House on Wednesday. It also represented a shift in position from March when Attorney General William Barr supported a House version of the bill, which he helped negotiate. That version of the bill was passed in the lower chamber in a 278-136 vote.

“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.

Senators resisted calls from Senate Majority Leader Mitch McConnell to make changes to the bill, and instead approved one amendment with support from three-fourths of the chamber. The successful amendment from Sens. Mike Lee (R-Utah) and Patrick Leahy (D-Vt.) would broaden third-party oversight of the FISA process, in particular, it would require FISA court judges to appoint a third-party observer in any case involving a “sensitive investigative matter,” as long as the court does not deem it inappropriate.

At the time, the DOJ expressed concern over the amendment, saying in a statement that it would “would unacceptably degrade our ability to conduct surveillance of terrorists, spies, and other national security threats.”

Meanwhile, on Tuesday night, Trump pushed back on the bill, urging Republican House lawmakers to vote against the FISA reform bill. The president has repeatedly raised concerns that the Obama administration had allegedly abused the FISA process to improperly surveil Trump’s presidential campaign in 2016 and 2017.

The bill is also facing new opposition in the House. House Minority Leader Kevin McCarthy (R-Calif.) said during an appearance Fox & Friends on Wednesday that he had asked Democratic leaders to hold off on putting a bill on the floor.

The three authorities that have expired after House did not act on a Senate extension on the bill in March, include allowing the FBI to obtain a court order for business records of individuals in national security investigations, the “roving wiretap” that permits officials to maintain surveillance on a target who may be using multiple phones to thwart detection, and the “lone wolf” provision that allows federal officials to obtain surveillance authority without establishing that the subject is acting on behalf of an international terrorist organization.

The reauthorization of the FISA provisions coincides with efforts by the FBI and the DOJ to overhaul their surveillance procedures after the department’s Inspector General Michael Horowitz’s review into the FBI’s surveillance on former Trump campaign associate Carter Page found that there were widespread fundamental and serious errors in the FISA applications used to spy on him. The findings of that report, issued in December 2019, found “at least 17 significant errors or omissions in the Carter Page FISA applications, and many additional errors in the Woods Procedures.”

The Associated Press contributed to this report.

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