With Senate poised to act as early as Thursday night to renew the foreign surveillance bill that authorized the Bush administration's secret warrantless wiretapping program, civil liberties advocates are getting deja vu.
With only the Senate's vote standing in the way of renewal, the debate over the Foreign Intelligence Surveillance Act Amendments Act in 2012 is looking strikingly similar over to the debate over the bill in 2008. The White House is pushing for a quick, "clean" reauthorization without any amendments before the bill's Dec. 31 expiration date. Congress seems to be showing little inclination to press for more. And civil liberties advocates, along with a few Senate allies, are criticizing the measure, arguing that basic details of the warrantless wiretapping program remain unknown.
Or, as Michelle Richardson, legislative counsel with the ACLU's Washington office, put it, "I bet [Bush] is laughing his ass off."
First passed in 2008, the FISA amendments package was Congress's attempt to put limits on the Bush administration's secret warrantless wiretapping program. It was an update to the original 1978 Foreign Intelligence Surveillance Act, a reaction to the Watergate scandal that governs when spies can listen in on Americans' calls abroad. Michael Birmingham, a spokesman for the Office of the Director of National Intelligence, told HuffPost in a written statement that "FISA allows us to collect vital information about international terrorists and their activities overseas, while at the same time establishing safeguards to protect the privacy interests and civil liberties of United States persons."
Birmingham said, "Reauthorization is our top legislative priority.” But civil liberties advocates say reauthorization should not happen until basic questions are answered about whether those safeguards are adequate.
Their list of concerns is long. At the outset, no one seems to know how often Americans are being spied on. But leaks from whistle-blowers may be telling: a secret room at an AT&T switching center in San Francisco apparently has the capacity to suck up torrents of Internet data sent abroad. William Binney, a former 32-year employee of the National Security Agency, believes the agency is creating the capacity to store "100 years worth of the world's electronic communications."
When Sen. Ron Wyden (D-Ore.) asked the intelligence community for a general estimate of how many Americans are having their communications scooped up, the the director of National Intelligence refused, not indicating even whether the number is closer to 100 or 100,000.
With little information to go on beyond the whistle-blowers' revelations, the ACLU's Richardson fears the worst. Targeting and minimization procedures are supposed to be in place to ensure that only Americans' communications relevant to investigations on entities like al Qaeda are being collected. But she assumes that essentially every call or email sent abroad is picked up. "We think it's exponentially worse than any other wiretapping program because they are allowed to do bulk collection and programmatic collection," she said.
What happens after that data is stored on the NSA's hard drives? Do spy agencies need to get a warrant when they think they've scooped up Americans' communications? No one, outside of the spies themselves and a small group of members on the House and Senate intelligence committees, has any idea.
Sen. Jeff Merkley (D-Ore.) is sponsoring an amendment to the FISA bill that would peel back the secrecy around how it is actually interpreted by the secret Foreign Intelligence Surveillance Court, which is supposed to make sure the spooks are not abusing their powers.
"Without knowledge of how these secret courts have ruled on interpretations of these phrases, we really have no idea how much spying on Americans is taking place," Merkley said on HuffPost Live on Thursday.
Wyden has put a hold on the FISA bill, which blocks progress on the act until 60 senators vote to move forward with debate. Some of their amendments would force substantive changes to the way FISA works, putting in place additional safeguards that would prevent, for example, warrantless "backdoor" searches for individual Americans' communications with targeted entities abroad. But they will most likely stand a better chance of passing amendments that simply seek information on foreign surveillance. As the clock ticks toward Dec. 31, however, whether they will even get to put their amendments up for a vote is uncertain.
Senate Majority Leader Harry Reid (D-Nev.) has said he would like to allow debate on a limited number of amendments, including those of Wyden and Merkley. But Sen. Saxby Chambliss (R-Ga.), the ranking member of the Senate Intelligence Committee, objected on the Senate floor on Tuesday to any consideration of amendments. He wants the Senate to approve the House's "clean" version of the FISA bill, which would extend it for another five years without any amendments. Sen. Dianne Feinstein (D-Calif.), who is the chair of the Senate Intelligence Committee, also supports reauthorization without amendments.
If that happens, it will be 2017 until Congress gets another chance to put basic facts about the foreign surveillance out in the open.
"Without public knowledge of what's collected, and exactly the process by which a warrant is obtained or if it's obtained," Merkley said, "we really have no way to carry on this debate."
CORRECTION: This article has been edited to say that only Sen. Wyden has put a hold on the bill. An earlier version said Wyden and Sen. Merkley had put a hold on the bill.