The Senate has voted to reauthorize a controversial amendment that allows US intelligence agencies to wiretap communications without warrants.
The FISA Amendments Act of 2008 was passed to allow the wiretapping of many US phone conversations and electronic communications and to grant retroactive immunity to Bush administration officials and telecom corporations for illegal wiretapping of domestic communications. FISA, the Foreign Intelligence Surveillance Act, allows the NSA and other US intelligence agencies to wiretap conversations in which at least one of the parties is a foreign citizen without first obtaining a warrant.
The law, which would have expired at midnight on Friday, will be extended through the end of 2017.
The Senate vote was 73-23, with 4 abstentions. Nineteen Democrats and 3 Republicans-- Rand Paul (KY), Lisa Murkowski (AK) and Mike Lee (UT)-- voted against the measure, which critics claim is a grave violation of the Fourth Amendment prohibition of warrantless search and seizure.
The House had already passed the extension by a vote of 301-118, with 10 abstentions, on September 12.
The measure now heads to President Barack Obama's desk for final approval. The president, like the nation's intelligence agencies, is a strong supporter of the highly controversial law.
Prior to the vote, the senators blocked amendments sponsored by Patrick Leahy (D-VT), Jeff Merkley (R-OR), Rand Paul (R-KY) and Ron Wyden (D-OR) which would have required more oversight and annual reporting on the law's effects on privacy. Those four, and other, senators unsuccessfully argued that although the law only authorizes surveillance of foreigners, it inevitably end up monitoring Americans' communications as well.
The history of FISA dates back to 1978, when the measure was signed into law by President Jimmy Carter in the wake of former President Richard Nixon's illegal wiretapping of Americans, especially the lengthy list of those the disgraced president considered enemies. FISA established a special secret court that retroactively approved wiretapping of targets even after erstwhile unconstitutional surveillance was under way.
During the George W. Bush administration, Congress amended FISA to effectively bypass the secret court and grant expanded authority to spy on phone and electronic communications. The amended law also granted retroactive immunity to telecom and Internet corporations that participated in the eavesdropping. Bush, who once acknowledged that warrantless wiretapping was illegal, embraced FISA. During his tenure in the Senate, Barack Obama promised to oppose FISA but in an about-face that would become a familiar feature of his presidency he voted for the measure, replete with telecom immunity, prior to the 2008 election.
Civil liberties advocates lamented Friday's vote.
"It's a tragic irony that FISA, once passed to protect Americans from warrantless government surveillance, has mutated into its polar opposite due to the FISA Amendments Act," Michelle Richardson, legislative counsel at the ACLU, said in a statement. "The Bush administration's program of warrantless wiretapping, once considered a radical threat to the Fourth Amendment, has become institutionalized for another five years."
Tellingly, although the current Congress may go down as one of the least productive in US history, it has somehow managed to set aside partisan gridlock and authorize the indefinite military detention of Americans without charge or trial in the 2013 National Defense Authorization Act (NDAA) and the warrantless spying on communications involving American citizens.
Look for President Obama to quietly sign the FISA extension into law over the New Year's weekend while few are watching, just like he did with the NDAA last year.