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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.

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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 BurrAs Trump downplayed the virus publicly, memo based on private briefings sparked stock sell-offs: NYT Hillicon Valley: Subpoenas for Facebook, Google and Twitter on the cards | Wray rebuffs mail-in voting conspiracies | Reps. raise mass surveillance concerns Bipartisan representatives demand answers on expired surveillance programs 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 CornynBiden pushes into Trump territory Cruz: Hunter Biden attacks don't move 'a single voter' Bloomberg spending millions on Biden push in Texas, Ohio 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 WydenPlaintiff and defendant from Obergefell v. Hodges unite to oppose Barrett's confirmation Senate Democrats call for ramped up Capitol coronavirus testing House Democrats slam FCC chairman over 'blatant attempt to help' 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 ReidThe Hill's Morning Report - Sponsored by Facebook - Justice Barrett joins court; one week until Election Day GOP Senate confirms Trump Supreme Court pick to succeed Ginsburg Democratic Senate emerges as possible hurdle for progressives  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 McCainObama book excerpt: 'Hard to deny my overconfidence' during early health care discussions Mark Kelly releases Spanish ad featuring Rep. Gallego More than 300 military family members endorse Biden MORE (R-Ariz.), a co-sponsor, said after the scuttled vote.

Sen. Dianne FeinsteinDianne Emiel FeinsteinMurkowski predicts Barrett won't overturn Roe v. Wade Democrats to boycott committee vote on Amy Coney Barrett's Supreme Court nomination The Senate should evoke RBG in its confirmation of Amy Coney Barrett 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 CrapoBarrett says she did not strike down ObamaCare in moot court case GOP Sen. Thom Tillis tests positive for coronavirus 22 GOP attorneys general urge Congress to confirm Barrett as Supreme Court justice MORE (R-Idaho) and Joe DonnellyJoseph (Joe) Simon DonnellyBiden and Schumer face battles with left if Democrats win big Harris walks fine line on Barrett as election nears The Hill's Morning Report - Sponsored by JobsOhio - Showdown: Trump-Biden debate likely to be nasty 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.