Most of Congress is busy debating whether to raise the debt ceiling. But starting Thursday, Danger Room is hearing, a group of Senators meeting behind closed doors may consider renewing a controversial law permitting widespread government surveillance of Americans’ communications.
That law would be the FISA Amendments Act of 2008, which gave the cover of law to President George W. Bush’s warrantless surveillance program. Beloved by the Obama administration, the law is set to expire — not this year, but in 2012.
But the Senate Select Committee on Intelligence may not be so keen on waiting, Congressional sources say. When the committee meets to finalize the fiscal 2012 intelligence authorization bill to the full Senate floor — the bill that approves the activities of the 16 U.S. spy agencies – some senators will push to include a measure re-authorizing the surveillance act.
The so-called “mark-up” process begins on Thursday, though it’s not clear when the committee will complete the bill and send it on to the full Senate. Nor is it clear that the votes exist in the committee to approve a surveillance reauthorization, which goes double for the Senate and House more broadly.
The Obama administration has indicated that it wants the surveillance measure reauthorized — and soon. Robert Litt, the lawyer for Director of National Intelligence James Clapper, called the expiring act “critically important” in a letter to the Senate panel last month (.pdf) and added, “We look forward to working with Congress to extend these important statutory tools.”
The FISA Amendments Act permits surveillance of communications related to a “foreign power, an agent of a foreign power, or an officer or employee of a foreign power,” where one party to the communication is “reasonably believed” to be outside the United States. If the other party is inside the U.S., his or her phone or Internet records are, conceivably, fair game. And since the law doesn’t force the government to give any further specifics about who it wants watched, civil liberties groups consider the FISA Amendments Act a pathway to blanket surveillance.
What’s more, Kate Martin, a surveillance expert with the Center for National Security Studies, says the public has no visibility into how U.S. intelligence agencies apply the law. “What we haven’t gotten is an explanation from either Congress or the Justice Department about what the law authorizes in terms of massive surveillance of Americans’ communications,” Martin says.
Indeed, Clapper’s congressional liaison, Kathleen Turner, said it was “not reasonably possible to identify the number people located in the United States whose communications may have been reviewed under the authority” of the FISA Amendments Act in a letter (.pdf) to Senators Ron Wyden and Mark Udall. The Senators wrote to Clapper last month, concerned that the communications of “law-abiding Americans” were caught in the surveillance dragnet the act authorizes.
The FISA Amendments Act was passed in the election year of 2008 — creating intense political pressure for legislators to vote for it or be tarred as weak on defense. Earlier this year, Sen. Dianne Feinstein, backed an ultimately unsuccessful measure to extend the FISA Amendments Act until December 2013. Feinstein chairs the Senate intelligence panel, although her office would not comment on any potential extension of the surveillance act.
It’s far from clear if the measure will clear the committee, or what will happen on the Senate floor. But it’s happening while the legislature is utterly preoccupied with dealmaking to avert a government default on its debt, without public debate. And if the secret surveillance approved by the FISA Amendments Act is any indication, the public is going to be the last to know what’s going on.
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