Published December 28, 2012
Washington – The Senate gave final congressional approval Friday to a bill renewing the U.S. government's authority to monitor overseas phone calls and emails of suspected foreign spies and terrorists -- but not Americans --without obtaining a court order for each intercept.
The classified Foreign Intelligence Surveillance Act program was on the brink of expiring by year's end. The 73-23 vote sent the bill to a supportive President Obama, whose signature would keep the warrantless intercept program in operation for another five years.
The Senate majority rejected arguments from an unusual combination of Democratic liberals and ideological Republican conservatives, who sought to amend the bill to require the government to reveal statistics showing whether any Americans were swept up in the foreign intercepts. The attempt lost, with 52 votes against and 43 in favor.
The Obama administration's intelligence community and leaders of the Senate's intelligence committee said the information should be classified and opposed the disclosure, repeating that it is illegal to target Americans without an order from a special U.S. surveillance court.
The group seeking more disclosures also sought -- unsuccessfully -- a determination by the government of whether any intelligence agency attempted to use information gained from foreigners to search for information on Americans without a warrant, referred to as "back-door" searches. The prohibition against targeting Americans without a warrant protects Americans wherever they are, in the United States or somewhere else.
The debate focused on the need to balance national security with civil liberties. Sens. Dianne Feinstein, a Democrat, and Saxby Chambliss, a Republican, the chairwoman and top Republican on the Senate Intelligence Committee, warned that the classified intercept program would be jeopardized if even statistical information was disclosed. They sparred repeatedly with Sen. Ron Wyden, a Democrat, who held the bill up for months until he was allowed to argue on the Senate floor that Americans' civil liberties were in danger under the law.
During debate that began Thursday, Feinstein bluntly told Wyden, a fellow liberal, that she opposed his disclosure amendment because, "I know where this goes. Where it goes is to destroy the program."
Wyden insisted his group was interested only in making public estimates that already existed. In insisting on information about whether the foreign intercepts led to warrantless "back door" searches of Americans, the senator said there already had been one instance of such a violation.
He said the finding of a violation, details of which remain classified, "demonstrates the impact of the law on Americans' privacy has been real and is not hypothetical."
"How many phone calls to and from Americans have been swept up in this authority?" he asked.
A member of the intelligence committee, Wyden argued he was trying to "strike a balance between security and liberty" and that "the 300 million Americans who expect us to strike that balance ... are in the dark."
When Americans are targeted for surveillance, the government must get a warrant from a special 11-judge court of U.S. district judges appointed by the Supreme Court. In contrast, when foreigners abroad are targeted, the surveillance court approves annual certifications submitted by the attorney general and the director of national Intelligence that identify certain categories of foreign intelligence targets.
The Obama administration has called the secret intercepts "invaluable to the U.S. government's efforts to detect and prevent threats to America and its allies, while providing robust protections for the civil liberties and privacy of U.S. persons." It said if Congress had failed to extend the program, there would have been "a significant loss of intelligence" that would have impeded the ability to respond quickly to new threats.
The House in September approved the same five-year extension of the law by a vote of 301-118.