After Orlando Shooting, House Shifts On Surveillance

Lawmakers just rejected a surveillance amendment that was passed two years in a row.
Rep. Thomas Massie (R-Ky.) said the Orlando shooting likely influenced lawmakers' decision to reject an amendment he has spon
Rep. Thomas Massie (R-Ky.) said the Orlando shooting likely influenced lawmakers' decision to reject an amendment he has sponsored for the last three years.

WASHINGTON -- In what could signal a new shift in Congress, House lawmakers rejected a proposal on Thursday that would have required the government to get a warrant to search certain foreign surveillance databases for information on U.S. citizens.

The House rejected the amendment to the defense appropriations bills by a margin of 198-222. Lawmakers had adopted the proposal with a 255-174 vote in 2015 and an even more overwhelming vote of 293-123 in 2014, though the language was stripped both times in government spending deals.

Rep. Thomas Massie (R-Ky.), the sponsor of the amendment the last three years, said he thought there were two reasons the proposal failed on Thursday. "I think it was about Orlando and a stronger disinformation campaign from the committee," he said, referring to a letter from Intelligence Committee Chairman Devin Nunes (R-Calif.) that criticized the amendment.

"We had a stiff headwind," Massie continued. "But I think the winds will eventually change, and we'll prevail one day."

The Orlando shooting became a key point in the debate over the amendment on Wednesday, as lawmakers argued what effect Massie's legislation would have on the investigation into the attack on the LGBT nightclub Pulse.

Rep. Chris Stewart (R-Utah), who said he rose "to oppose the Massie amendment and the inaccurate accusations that underly it," argued that if the proposal were in effect today, the intelligence community would be unable to search the Foreign Intelligence Surveillance Act database for information on the deceased Orlando shooter, Omar Mateen. FISA is a law used to collect data on foreigners, but the National Security Agency dragnet also catches information on U.S. citizens who interact with those foreigners.

"We should be focused on thwarting terrorist attacks," Stewart said Wednesday, "not on thwarting the ability of intelligence professionals to investigate and stop them."

House Judiciary Chairman Robert Goodlatte (R-Va.) voiced similar concerns. "This amendment prohibits the government from searching data already in its possession, collected lawfully under section 702 of FISA, to determine whether Omar Mateen was in contact with foreign terrorists overseas," Goodlatte said, as Massie shook his head in disagreement. 

Massie said it was "a complete mischaracterization" to claim that the government wouldn't be able to search FISA databases for information on Mateen, and urged lawmakers not to fall for that argument. "You obviously can get a warrant on the perpetrator of this crime," he said.

The spirited debate continued even after the House had moved on. Stewart and Massie exchanged words in the back of the chamber, and at one point, Stewart aggressively grabbed Massie's arm to prevent him from walking away.

Asked about the exchange after, Massie told The Huffington Post that he had said to Stewart, "Get your hands off me!"

"I almost went Charlton Heston on him," Massie said.

While opponents of the amendment seemed to focus on the effect it would have on the Orlando probe, the real crux of the debate seems to be the appropriate threshold for accessing information on U.S. citizens. 

Critics objected to Massie's amendment years ago over concerns that it overly restricted searches of the FISA database. Massie responded by adding explicit language to the amendment to clarify that the government could access information collected under FISA if it has probable cause to search or if someone commits a crime.

Making intelligence agents get a warrant to search for information collected under FISA could slow them down and limit the searches they make. But Massie contends that his amendment, which was co-sponsored by Rep. Zoe Lofgren (D-Calif.), is just codifying the Fourth Amendment.

The House, this year at least, didn't seem to agree.

CORRECTION: A previous version of this story incorrectly listed Thursday's vote tally as 198-242. The correct tally was 198-222.



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