FISA Warrantless Wiretapping Renewed By Senate

Christmas may be over, but the Senate is still singing “Do You Hear What I Hear?” In a 73 to 23 vote on Friday, Senators renewed the Foreign Intelligence Surveillance Act (FISA) Amendments Act for another five years. The extension continues the authorization the government has to conduct warrantless wiretaps of communications that Americans conduct with foreign intelligence targets abroad.

With strong bipartisan support led by Senator Dianne Feinstein (D - Calif.) chair of the Senate Intelligence Committee, and President Obama promising to sign it, the extension has less media buzz than it did when it first went through Congress during the Bush years. Still, that hasn’t changed the controversial and potentially unconstitutional nature of the bill.

Ideologically, nothing has really changed. People support or oppose the law for mostly the same reasons as they did in 2008. Civil liberties advocates continue to assert that FISA constitutes an illegal invasion of privacy, especially because the wiretappings are all conducted under blanket approval issued yearly by a special FISA court whose documentation is classified. The lack of transparency has only made opponents of the law further question the validity of the rationale intelligence gatherers may be using.

This worry is exacerbated by the fact that under the law, the government can technically search through the private emails and messages of foreign nationals in an attempt to spy on Americans interacting with them “legally.” If employed, this special backdoor option would undermine civil liberties laws guaranteeing law-biding Americans’ right to privacy. 

FISA supporters argue that the law is necessary to help ensure Americans’ safety against terrorist threats. Feinstein argued on the floor of the Senate that electronic surveillance played a role in some of the 100 arrests in terrorism-related plots made in the last four years. That sounds cogent, but the real and unknown question is how much information has been gathered through these means that have led to those arrests — and more important our safety from terrorism?

This was one of the many questions that Senator Ron Wyden (D - Ore.) had about the program. Initially opposing reauthorization, Wyden voted to support the renewal in exchange for a straight up and down vote on an amendment that would have required the National Security Agency and the Central Intelligence Agency to study and reveal the extent to which the program has impacted Americans’ privacy. The Wyden amendment failed only receiving 43 votes.

For his part, the other senator from Oregon, Jeff Merkley, sought to declassify the FISA Court documentation, so that the public could at least assess the rationale for the yearly blanket approvals. While the Merkley amendment also failed 37 to 54, Feinstein promised to seek declassification of significant opinions made by the court that did not jeopardize national security. Of course, promises are made to be broken