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House rejects Amash measure on surveillance

Melissa Nann Burke
The Detroit News

Washington — The U.S. House on Thursday rejected new limits proposed on the federal government’s surveillance powers on American soil, as proposed by Republican Rep. Justin Amash of West Michigan.

Lawmakers voted down an amendment by Amash that would have required the government in criminal cases to seek a warrant based on probable cause before searching surveillance data for information about Americans.

The vote was 233-183 to defeat the amendment. None of Michigan’s eight other Republicans voted for Amash’s amendment, but the state’s four Democrats backed it.

The House then proceeded to approve a six-year extension of the surveillance program that permits the government to collect without warrant the communications of foreigners, even when the communications of American citizens are caught in the net.

The program, authorized under Section 702 of the Foreign Intelligence Surveillance Act, was set to expire this month.

Amash noted after the vote that the leaders of both parties had “pulled out all the stops” and were “fairly aggressive” in their efforts to defeat his amendment, including House Speaker Paul Ryan, R-Wisconsin, and Minority Leader Nancy Pelosi, D-California, giving floor speeches in opposition to the measure.

“We certainly would have preferred to have had the Amash amendment pass and to defeat the underlying bill, but we’re going to keep fighting,” Amash told reporters at the U.S. Capitol. “It still has to go through the Senate.”

His amendment would have replaced the underlying bill with the USA Rights Act, which Amash said would still have allowed the government to use Section 702 to surveil foreigners overseas and to store and access that data to investigate threats to national security.

“The key difference in USA Rights has to do with the collection and use of innocent Americans’ data, not foreign intelligence. This means the amendment cannot harm Section 702 programs if, as the government says, they are designed solely for foreign intelligence rather than domestic surveillance on Americans,” Amash said on the House floor Thursday.

“We all want the intelligence community to be able to do its job. And I have offered the USA Rights amendment to give them the tools to collect foreign intelligence, while also protecting the Fourth Amendment.”

But Rep. Chris Stewart, R-Utah, said the amendment would go “above and beyond” what the Fourth Amendment requires on prohibiting unreasonable searches.

He argued during debate that, under the bill, a “U.S. persons inquiry” would require an order from the FISA court before those communications could be reviewed by federal agents.

“Unfortunately, they are selling a poison pill that is extraordinarily harmful to our national security,” Stewart said of the bipartisan coalition backing Amash’s measure.

Virginia Rep. Bob Goodlatte, chairman of the House Judiciary Committee, said the amendment would “disable” Section 702, which he called “our most important national security tool.”

“We cannot risk 702 collection ending. This chamber cannot be complicit in allowing terrorists to fly under the radar if this amendment kills 702,” Goodlatte said during debate.

The fact that the surveillance program collects “incidental information” about U.S. citizens should not prohibit the effort, he added.

“If you apply this amendment, you’re not going to be able to have our national intelligence officials looking at this information carefully,” Goodlatte said.

“They’re going to have to, in many instances, get a warrant to act due to a national security concern. A warrant will be either unattainable, or it will be in a circumstance when it’s too late. We cannot allow that.”

California Rep. Zoe Lofgren, the lead Democratic sponsor of Amash’s amendment, cautioned that the government is collecting “vast amounts” of data from the Internet, including the content of Americans’ phone calls, emails, text messages and video messages, that law enforcement may search for “crimes that have nothing to do with terrorism.”

“We should change that. ... You need a warrant to go after Americans for a non-terrorism crime. There is a reason why a left-right coalition — the NAACP and Freedom Works, Color of Change and Gun Owners of America — have come together on the same point of view,” Lofgren said during debate.

She stressed that under the bill, the “very weak predicate” trigger for a warrant would only happen at the end of a criminal investigation and would only apply to the FBI, not other federal law enforcement agencies such as the ATF or DEA.

Rep. Adam Schiff, D-California, urged GOP leadership to withdraw the legislation altogether and postpone consideration because of “contradictory messages” coming out of the White House.

Schiff was referring to a tweet from President Donald Trump on Thursday morning that suggested the statute might have been used to “so badly surveil and abuse the Trump Campaign by the previous administration and others?”

“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. We need it! Get Smart!” Trump later added in a separate tweet.

Schiff said on the floor that, “an issue of this magnitude deserves serious and sober consideration,” urging his colleagues not to bring the matter to a vote Thursday.

House leaders pushed forward with the vote.

Amash told reporters that Trump has some “nuanced” views on the legislation.

“There are people around him who are pushing him in one direction, so hopefully the president will have the chance to really review it and understand it and will push back against what’s going on,” Amash said.

Asked if he thought Trump’s tweets affected the vote, Amash said it was hard to gauge since his coalition was bipartisan.

“You need Republicans and Democrats, so you might gain one side and lose the other. My focus was on doing the best I could to round up as many votes I could from both sides,” he said.

Amash predicted that, generally, the Senate would be a more difficult fight because senators “tend to like the surveillance state more.”

“As more people learn about this, I think we have a chance to change the current bill, to stop the current bill,” he said.

“It’s really going to be on the American people to make the case to people in Washington that this does not protect their rights.”

Senate Majority Leader Mitch McConnell said Thursday afternoon the Senate will consider the legislation next week.

“There is a reason that the attorney general and the director of national intelligence called reauthorization of 702 their ‘top legislative priority.’ It is simple: This program saves American lives,” McConnell said on the Senate floor.

“I look forward to renewing the bipartisan consensus on this issue now that the time has come to approve a new extension.”

The Michigan House of Representatives is expected to vote Tuesday on a bill that would prohibit state and local governments from assisting, participating with or providing support to a federal agency in the collection of data without a warrant or the target’s consent.