By Ellen Nakashima The Washington Post
WASHINGTON — Congress approved a measure Friday that would renew expansive U.S. surveillance authority for five more years, rejecting objections from senators who are concerned the legislation does not adequately protect Americans’ privacy.
The bill passed the Senate, 73 to 23. The House approved it in September, and President Barack Obama is expected to sign it before the current authority expires Monday.
The lopsided Senate vote authorized a continuation of the government’s ability to eavesdrop on communications inside the United States involving foreign citizens without obtaining a specific warrant for each case. The surveillance under the Foreign Intelligence Surveillance Act (FISA) has been credited with exposing several plots against U.S. targets but also has drawn fire from civil liberties advocates.
“It produced and continues to produce significant information that is vital to defend the nation against international terrorism and other threats,” said Sen. Dianne Feinstein, D-Calif., the chairman of the Intelligence Committee, who urged her colleagues to approve the extension without amendment so it would not need to be sent back to the House for a vote.
Feinstein said that about 100 arrests have occurred in terrorism-related plots over the past four years — 16 in the past year — and that electronic surveillance played a role in some of them.
Members of the Senate devoted much of Thursday to debating proposed privacy amendments to the bill, which renews a key provision of the FISA Amendments Act of 2008.
The Bush-era provision expanded the government’s surveillance authority to intercept electronic communications in the United States without a warrant if the targets are foreigners overseas. The surveillance is conducted under a blanket approval issued once a year by a special court, if the court is satisfied that the government’s targeting procedures will work and privacy protections are adequate.
But the emails and phone calls of Americans who communicate with the foreigners are also being swept up. A number of senators voiced concerns that intelligence agencies could search through the data for particular communications of U.S. citizens without a warrant – what they called a “backdoor search loophole.”
The Senate’s leading critic of the measure, Sen. Ron Wyden, D-Ore., agreed to drop his insistence that the government obtain a warrant for such searches in exchange for Senate leadership’s assurance that it would hold a vote on a Wyden amendment aimed at assessing the law’s privacy impact on Americans.
“What we want to know … is whether the government has ever taken advantage of this backdoor search loophole and conducted a warrantless search for the phone calls or e-mails of specific Americans,” Wyden said in floor debate Thursday.
His amendment would have required the director of national intelligence to report whether the government has conducted any warrantless searches and to provide information about the number and types of intercepted communications that involved U.S. citizens.
Wyden’s amendment got 43 votes Friday. Three other attempts to add safeguards and make other changes were defeated Thursday.
Sen. Jeff Merkley, D-Ore., sought the declassification of significant legal opinions by the secret Foreign Intelligence Surveillance Court, which issues the yearly certifications. The court interprets the FISA law and its definitions of key terms shape the scope and nature of surveillance, he said.
The court has issued opinions that raise the question of whether the surveillance authority “is a gateway that is thrown wide open to any level of spying on Americans,” Merkley said.
“An open and democratic society like ours should not be governed by secret laws,” he said. “And judicial interpretations are as much a part of the law as the words that make up our statutes.”
Though Feinstein opposed the amendment for expediency’s sake, she said she supported Merkley’s goal and would seek declassification of significant court opinions, where doing so would not jeopardize national security.
A third amendment would have reauthorized the bill for only three years. A fourth would have required the government to get a warrant when seeking information held by third parties.