A House committee on Tuesday reauthorized broad electronic eavesdropping powers that largely legalized the Bush administration’s warrantless wiretapping program.
The House Judiciary Committee, following the Senate Intelligence Committee’s lead last month, (.pdf) voted 23-11 to reauthorize the FISA Amendments Act. The legislation, expiring at year’s end, authorizes the government to electronically eavesdrop on Americans’ phone calls and emails without a probable-cause warrant so long as one of the parties to the communication is outside the United States. The communications may be intercepted “to acquire foreign intelligence information.”
Rep. Lamar Smith (R-Texas) and the committee’s chairman, said before the vote that “We have a duty to ensure the intelligence community can gather the intelligence they need to protect our country.” He said terrorists “are committed to the destruction of our country.”
The FISA Amendments Act, which the Obama administration said was its top intelligence priority, (.pdf) generally requires the Foreign Intelligence Surveillance Act Court to rubber-stamp terror-related electronic surveillance requests that ensnare Americans’ communications. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application. The court’s rulings are not public.
The House Subcommittee on Crime, Terrorism, and Homeland Security debated the measure last month and was clearly willing to side with the Obama administration’s demands that lawmakers re-authorize the bill, as the Senate Intelligence committee did. The Senate’s measure extends the powers until June 1, 2017.
The House Judiciary Committee’s action on Tuesday sends the measure, (.pdf) which extends the spy powers until Dec. 31, 2017, to the House floor for a full vote.
An amendment by Rep. John Conyers (D-Michigan) to reauthorize until June 1, 2015, failed on a 12-12 vote for lack of a majority. An amendment proposed by Rep. Jerold Nadler (D-New York) to require the attorney general to provide a redacted version of FISA Court rulings related to the act failed 14-17.
“The public does not have an adequate understudying of any adverse impact this has had on the privacy of American citizens,” Conyers said. “Neither the act nor the bill provides adequate safeguards.” Rep. Dan Lungren (R-California) blasted back: “What evidence is there that it is being used to spy on Americans?”
Rep. Sheila Jackson-Lee (D-Texas) offered an amendment requiring the government to disclose how many times — or at least an “estimate” of times — that the act captured the communications of Americans without warrants. That amendment failed 11-20.
On the Senate side, Sen. Ron Wyden (D-Oregon) took Jackson-Lee’s concerns to another level.
The House Judiciary’s vote came a day after Wired disclosed that the National Security Agency told lawmakers that it would be a violation of Americans’ privacy to disclose how the measure is being used in practice. Two lawmakers, Wyden and Sen. Mark Udall (D-Colorado) had asked the government how many persons inside the United States have been spied upon under the FISA Amendments Act.
The National Security Agency responded that the “NSA leadership agreed that an IG (Inspector General) review of the sort suggested would further violate the privacy of US persons.”
Because of the government has declined to say how the law is being used in practice, Wyden has barred the Senate from a routine vote using a little-used legislative power — called a hold — to block Senate lawmakers from taking a procedural consent vote. Instead, he demands a floor debate that can draw out the approval process indefinitely via the filibuster.
Wyden did the same thing a year ago with the Protect IP Act. That legislation, which would have dramatically increased the government’s legal power to disrupt and shutter websites “dedicated to infringing activities,” subsequently died a loud death in January amid a turbulent internet backlash.
No date has been set for a floor vote in either legislative chamber.
That original bill at issue was signed into law in July 2008 as a way to legalize the Bush administration’s warrantless wiretapping program that President George W. Bush adopted, without congressional consent, in the wake of the 2001 terror attacks. It expires Dec. 31.
At the time, then-senator and presidential candidate Barack Obama voted for the measure, though he said the bill was flawed and that he would push to amend it if elected. Instead, Obama, as president, simply continued the Bush administration’s legal tactics aimed at crushing any judicial scrutiny of the wiretapping program, and his administration is now demanding that federal lawmakers extend the legislation for five years.