The Senate rejected three attempts Thursday to add oversight and privacy safeguards to the Foreign Intelligence Surveillance Act (FISA) amendments that authorize the warrantless wiretapping program begun under President George W. Bush, but delayed a final vote on the measure until Friday.
The program, which the Bush administration started without congressional authorization shortly after the Sept. 11 attacks, collects intelligence on Americans who are communicating abroad with foreign “targets” designated by spy agencies like the CIA and National Security Agency. Critics, including NSA whistle-blowers, have raised fears that law-abiding Americans’ communications are getting caught up in a vast, electronic dragnet of phone calls and emails.
The lopsided, bipartisan votes against the amendments dealt a blow to civil liberties advocates, who have argued that Congress should curb the scope of the wiretapping program or at least disclose key information about how it is being used. President Barack Obama has said he will sign the bill when it reaches his desk.
Before the votes, a handful senators mounted a strenuous effort from the chamber’s floor to demand more information about whether the foreign surveillance program is being used to spy on Americans. Sen. Ron Wyden, a Democrat from Oregon, went so far as to compare the NSA to the British officials who used broad royal writs to invade colonists’ homes prior to the American Revolution, eventually prompting the passage of the Fourth Amendment with its prohibition on unreasonable government searches.
“It is never okay, never okay for government officials to use a general warrant to deliberately invade the privacy of a law-abiding American,” Wyden said. “It wasn’t okay for constables and customs officials to do it in colonial days, and it’s not okay for the National Security Agency to do it today.”
While conceding that the bill could use some oversight improvements, Sen. Dianne Feinsten (D-Calif.), the chair of the Senate Intelligence Committee, urged passage of the bill without alteration to avoid prompting both a fight with the House of Representatives, which has already passed a “clean,” unamended version of the bill, and also the program’s expiration.
Without renewal, she said, “the program comes down. The program is interrupted.”
She and other senators who favor an unamended bill cited procedures meant to minimize when Americans’ intelligence is collected and used, as well as a secret court that oversees the program, as evidence that it is being used appropriately.
Feinstein did not elaborate on how the program, which authorizes year-long searches, would be interrupted by expiration. But pointing to a long list of interrupted terror plots since 9/11, she added that “There is a view of some that this country no longer needs to fear attack. I don’t share that view.”
The senators mounting an argument against reauthorizing the warrantless wiretapping program without reforms were hobbled — perhaps ironically — by the central fact that it is shrouded in secrecy.
Since 2008, when Congress passed the original version of the clunkily-named Foreign Intelligence Surveillance Act Amendments Act to retroactively legalize the Bush administration program, few details have emerged about how the NSA and other agencies are using its powers. But in at least one case, the secret court that oversees the warrantless wiretapping program has found the government was violating Fourth Amendment prohibitions against spying on Americans without a warrant.
The details of that and other rulings about how FISA laws are actually being interpreted remain secret. Sen. Jeff Merkley (D-Ore.) offered an amendment to the surveillance bill that would have forced the government to declassify the rulings or at least summaries of them.
“If you have a phrase in the law, and it’s been interpreted by a secret court and the interpretation is secret, then you really don’t know what the law means,” Merkley said. “We are certainly constrained form having the type of debate that our nation was founded upon — an open discussion of issues.”
But Sen. Saxby Chambliss (R-Ga.) responded that even a seemingly innocuous disclosure about how the court ruled on setting the parameters of the wiretapping program could provide ammunition for America’s enemies.
Even in redacted form, he said, the rulings “would give our enemies a roadmap into our collection priorities and capabilities.”
Disclosing limited information to the public would be “the beginning of opening up other things down the road. And I think that in this world that we operate, this cloak and dagger world of the intelligence community … then I think there is a real danger in beginning to open up any of those opinions.”
Merkley’s amendment failed, with 37 in favor and 54 against.
Another amendment from Sen. Patrick Leahy (D-Vt.), designed to shorten the period that the reauthorized version of the surveillance bill is in effect and to strengthen inspector general oversight, went down with only 38 yes votes.
A separate amendment offered by Sen. Rand Paul, a libertarian Republican from Kentucky, would have added a statement to the bill meant to protect Americans from Fourth Amendment violations caused by third party data collectors. Paul’s amendment went down 79 to 12.
Sen. Dick Durbin (D-Ill.), the Senate majority whip, compared some of the arguments against amending the spy bill to the rhetoric about terrorism used by Vice President Dick Cheney at the same time when the wiretapping program was first revealed in a New York Times article in 2005.
“The concept of secret law is anathema to a democracy,” Durbin said. By allowing the government to work backward from searches on foreign targets, he argued, “the reality is this legislation permits targeting an innocent American in the United States.”