The US Senate managed to vote to extend the FAA Sunsets Extension Act of 2012. This will extend the Foreign Intelligence Surveillance (FISA) Amendments Act of 2008. The act granted retroactive immunity for illegal wiretaps under the Bush Administration.
The bill also created a new framework for future warrant-free surveillance as long as one party being spied on is outside the US and terrorism is suspected. Whistle-blowers, such as former NSA codebreaker William Binney, revealed some time ago that the surveillance programs involved hundreds of thousands of US citizens. However, the law is difficult to criticize since no one is allowed to know much about how it really works. The vote today represented a last chance to enact amendments to have a meaningful review of surveillance activities over the next five years.
The Senate vote was 73 in favor of the motion and 23 against. In the House the vote was 301 voting for and 118 against. The bill now goes to Obama for his signature. He strongly supports the bill and will no doubt sign it into law before December 31st. It remains to be seen whether any similar bi-partisan deal is possible on avoiding the drastic economic consequence of not avoiding the fiscal cliff. No doubt it is more important that the government be able to continue spying on Americans without a warrant.
The FISA Amendments Act would seem to violate the Fourth Amendment to the US constitution. The fourth amendment protects Americans against unreasonable searches, and requires a judicially supported warrant and probable cause for any searches or seizures.
A number of amendments were presented before the vote but not one managed to pass. Senator Ron Wyden, a Democrat from Oregon moved an amendment that would require NSA to estimate how many Americans it was watching. An Amendment by Jeff Merkley, also a Democrat from Oregon, asked that court opinions on the Act be released. Rand Paul, a Republican from Kentucky, wanted a clarification of fourth Amendment protections as applied to electronic communications. Patrick Leahy also proposed an amendment that would renew the FISA Amendments Act for only three years rather than five.
Senator Dianne Feinstein, a California Democrat and chair of the Senate Intelligence Committee supported the Leahy amendment in committee but then voted against it on the Senate floor. Feinstein also argued against even the minor disclosure of any NSA activities on the ground it would lead to more terrorism. Even Senator Wyden's modest proposal requesting an estimate of how many Americans had communications intercepted failed by a 42-53 vote.
The Obama administration resolved to start the new year right by ensuring that it has the right to spy on Americans without a warrant.