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The tribe-busting politics of FISA and the surveillance debate

Minutes after House Republicans led the way in ...

Posted: Jan. 12, 2018 10:05 AM
Updated: Jan. 12, 2018 10:05 AM

Minutes after House Republicans led the way in voting to reauthorize a controversial government spying program, Kentucky Republican Rand Paul pledged to oppose the bill in the Senate. Fifteen minutes later, Democrat Ron Wyden, one of Paul's most liberal colleagues, promised to do the same.

"No American should have their right to privacy taken away!," Paul tweeted, with a preview of what comes next: "#FILIBUSTER."

At noon, the Oregon Democrat followed suit. "If this #Section702 bill comes to the Senate," he wrote, "I will filibuster it."

It wouldn't be the first time Paul and Wyden commandeered the Senate floor to rail against a program a majority of one or both of their parties favored. But Paul's opposition, bolstered now by Wyden and a motley crew of fellow senators ranging from Montana Republican Steve Daines to Massachusetts Democrat Elizabeth Warren, underscores the unusual politics of the surveillance-state debate.

Paul, Wyden and that bipartisan, though mostly Democratic, coalition of senators, are pushing for an amendment that would reform the current law, Section 702 of the Foreign Intelligence Surveillance Act, providing new privacy protections for Americans caught in its sweep. His libertarian friend, Michigan GOP Rep. Justin Amash, along with California Democratic Rep. Zoe Lofgren, led a similar effort in the House, but it fell short in another Thursday vote. Not long after their amendment failed, Paul said he was skeptical that leadership -- meaning fellow Republicans like Majority Leader Mitch McConnell, of Kentucky, and Majority Whip John Cornyn, of Texas -- would even allow his companion bill to reach the floor.

Check out below the partisan breakdown for both Thursday votes in the House.

"I'm assuming they will try to block (our amendment)," Paul said on Thursday, adding a jab at fellow Kentuckian McConnell: "It's funny they call the Senate the world's most deliberative body, but most of what happens around here is prevention of debate."

That a Republican, or group of them, would clash with other Republicans, especially the party's leaders on Capitol Hill, is hardly a novel development. The hardline conservative Freedom Caucus has created something approaching a third party in the House, where Republicans are constantly made to fight for their votes. On the other side of the aisle, House Democrats, for all the huffing and puffing over Minority Leader Nancy Pelosi's status, have typically voted in lock-step. In the Senate, too, Democrats are keeping up a remarkably united front.

On almost every major decision to be made in Washington, the partisan status quo rules. Even on an issue like the future of the Deferred Action for Childhood Arrivals program and immigration, what separates pockets of lawmakers within each party is more typically a question of degree than ideology. The forces that derailed Republican Obamacare repeal efforts last year were similarly nuanced, typically colored by a given lawmaker's narrow interests.

When it comes to FISA Section 702, though, mapping out the competing camps can be more difficult. In October of last year, the Senate Intelligence Committee voted 12-3 to advance the controversial legislation. Democratic Sens. Wyden, Martin Heinrich and Kamala Harris were the holdouts, citing a series of privacy concerns.

But the other four Democrats (technically three, plus Maine independent Sen. Angus King, who caucuses with them), joined their Republican colleagues. California Democratic Sen. Dianne Feinstein, who tried and failed to add stronger new protections in committee, ultimately voted in favor anyway. Fellow Democrat and Senate Intelligence Committee vice chairman, Virginia's Mark Warner, successfully included an amendment that adds a layer of judicial oversight, but nothing that gives privacy hawks or civil libertarians much peace. He too voted to move the process along.

Further complicating the matter -- for at least a few hours on Thursday -- was the unpredictable and, at times, politically ambiguous voice coming from the White House. President Donald Trump began this day like so many others, by parroting Fox News talking points on Twitter.

At 7:33 a.m. ET, he wrote: "'House votes on controversial FISA ACT today.' 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?"

The quote at the top grabbed directly from what appeared on screen during a segment Trump had presumably watched. CNN's David Wright kept up with the feedback loop in real time:

Nearly two hours later, at 9:14 a.m. ET, after what must have been at least a handful of anxious phone calls or emails, Trump revisited his FISA take with this addendum:

"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," he tweeted. "We need it! Get smart!"

Asked about the President's apparent reversal, White House press secretary Sarah Sanders later said, "We don't think that there was a conflict at all," adding that Trump "fully supports the 702 and was happy to see that it passed the House today."

But Trump's seesawing was, at least for a few hours, ultimately immaterial to the big question at hand -- an issue that's spawned strange bedfellows for a decade now, since Congress in 2008 codified a program initiated in secret after the 9/11 attacks. For Americans thirsting for bipartisanship in Washington, well, here you go.

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