Post Orlando, hawks make a power play

Post Orlando, hawks make a power play
© Greg Nash

National security hawks are flexing their muscles in Congress following the deadliest mass shooting in modern American history. 

The Senate on Wednesday came just one vote shy of passing a measure from Republican leaders that would have allowed the FBI to obtain terrorism suspects’ internet browsing histories, email histories and other records without warrants.

The defeat may be just a hiccup.

GOP leaders immediately made moves to bring the proposal back, and the absence of several top lawmakers during Wednesday’s vote suggests it will likely pass next time.

The stutter step comes a week after the House voted down a proposal to demand the government obtain a warrant for certain searches of U.S. citizens’ data in massive surveillance programs revealed by Edward Snowden.

Both efforts have been taken up before. And in the past, the hawks have lost — sometimes by surprisingly large margins.

What appears to have changed is the mood in Washington and possibly around the country following the deadly attack at Pulse nightclub in Orlando.

Roughly six months earlier, 14 people were killed in a similarly brutal massacre in San Bernardino, Calif.

Fears of subsequent attacks appear to have given leverage to lawmakers looking to support the government’s ability to track and monitor “lone wolf” extremists.

“You’ve had multiple terrorist attacks since then in the homeland. More companies are not providing the information when asked,” Senate Intelligence Committee Chairman Richard BurrRichard Mauze BurrNSA spying program overcomes key Senate hurdle Senate Intel chairman: No need for committee to interview Bannon McConnell: Russia probe must stay bipartisan to be credible MORE (R-N.C.) told The Hill shortly before his proposal was blocked.

“And when you look at the number of times they’re going to the [Foreign Intelligence Surveillance] Court, it’s less, because it’s cumbersome.”

The measure from Burr, Sen. John CornynJohn CornynMcCarthy: ‘No deadline on DACA’ NSA spying program overcomes key Senate hurdle Hoyer suggests Dems won't support spending bill without DACA fix MORE (Texas) and other GOP leaders has been hotly contested by privacy and civil liberties advocates, who call it a gross expansion of federal powers that circumvents the Fourth Amendment protection from unlawful search and seizure.

“This amendment undermines Americans’ fundamental rights without making our country safer, and in my view, undermines the role of judicial oversight,” Sen. Ron WydenRonald (Ron) Lee WydenWeek ahead: Senate takes up surveillance bill This week: Time running out for Congress to avoid shutdown Senate Finance Dems want more transparency on trade from Trump MORE (D-Ore.) said shortly before the vote.

The proposal would have expanded the FBI’s ability to use a form of administrative subpoenas known as national security letters to gather electronic communication records as part of intelligence and terrorism cases. The data acquired as part of the case would not include content, supporters have been quick to point out.

FBI Director James Comey has called the proposal on national security letters the equivalent of fixing a “typo,” which has propelled the measure on Capitol Hill.  

But a similar provision, also introduced by Cornyn, has held up a relatively uncontroversial email privacy bill, which sailed through the House without opposition earlier this year. The Obama administration also pushed a similar proposal in 2010 but abandoned it following pushback from privacy advocates and tech companies.

The Senate GOP proposal would have indefinitely extended a portion of the Patriot Act that allows the government to monitor suspected lone wolves without any known connection to terrorist groups. The long-term extension of that Patriot Act provision, which has never been used, was one component of a broader intelligence reform bill pushed last year as an alternative to more sweeping changes at the National Security Agency (NSA).

Roughly a dozen Democrats joined with Republicans in support of the measure, including Senate Minority Leader Harry ReidHarry Mason ReidDems search for winning playbook Dems face hard choice for State of the Union response The Memo: Immigration battle tests activists’ muscle MORE (D-Nev.).

It remains unclear when Republican leaders will bring the measure back for a new floor vote. But whenever they do, it appears likely to pass.

“I’m not positive, but I’ve been told, because I don’t count votes, that there were a couple of people who were in favor who were not there,” Sen. John McCainJohn Sidney McCainMcCain rips Trump for attacks on press NSA spying program overcomes key Senate hurdle Meghan McCain says her father regrets opposition to MLK Day MORE (R-Ariz.), a co-sponsor, said after the scuttled vote.

Sen. Dianne FeinsteinDianne Emiel FeinsteinDHS chief takes heat over Trump furor NSA spying program overcomes key Senate hurdle Democrats will need to explain if they shut government down over illegal immigration MORE (D-Calif.), the vice chairwoman of the Intelligence Committee, is believed to be a supporter of the Burr provision, but she was in California on Wednesday for a family health issue, her office said. Sens. Mike CrapoMichael (Mike) Dean CrapoTrump calls for looser rules for bank loans in Dodd-Frank overhaul Week ahead: Lawmakers eye another short-term spending bill Overnight Finance: Trump promises farmers 'better deal' on NAFTA | Clock ticks to shutdown deadline | Dems worry Trump pressuring IRS on withholdings | SEC halts trading in digital currency firm MORE (R-Idaho) and Joe DonnellyJoseph (Joe) Simon DonnellyDems search for winning playbook GOP anxious with Trump on trade Blue wave of 2018 stops in Indiana and Missouri MORE (D-Ind.) also missed the vote but are considered possible supporters.

A yes vote from any one of those lawmakers would have given supporters the 60 they needed to pass it.

Clearer indications that the national security pendulum is swinging are being felt in the House, which last week blocked an amendment to bar the government from executing warrantless searches of citizens’ records using a law designed to target foreigners. The measure would have limited the use of the NSA’s Prism and Upstream collection methods, which intelligence officials say are crucial to their work.

It also would have banned the government from demanding companies build security flaws into their systems, an issue that has risen to the fore following Apple’s high-profile standoff with the FBI earlier this year.

In 2014 and 2015, the bipartisan measure passed by votes of 293-123 and 255-174.

But ahead of the vote this year, House Intelligence Committee Chairman Devin Nunes (R-Calif.) and subcommittee Chairman Lynn Westmoreland (R-Ga.) circulated a letter warning that it would have prevented the government from determining if “the Orlando nightclub attacker was in contact with any terrorist groups outside the United States.”

After the lobbying from the Intelligence Committee, the measure went down 198-222.

Jordain Carney and Mario Trujillo contributed.