Grassley yes, Harkin no on five more years of warrantless wiretapping

The U.S. Senate voted today to extend the Foreign Intelligence Surveillance Act (FISA) for five more years, allowing “electronic eavesdropping” without a warrant to continue in the U.S. and abroad. President Barack Obama (who at one time opposed the Bush administration’s warrantless wiretapping policy) will sign the bill sometime before the end of December 31. Follow me after the jump for details on the Senate voting, including how Democrat Tom Harkin and Republican Chuck Grassley voted on various amendments.

When the U.S. House approved this bill in September, four of the five Iowans voted yes: Democrats Dave Loebsack (IA-02) and Leonard Boswell (IA-03) and Republicans Tom Latham (IA-04) and Steve King (IA-05). Democrat Bruce Braley (IA-01) was among 118 House members to oppose the bill.

Supporters of the FISA extension, particularly Senate Intelligence Committee Chair Dianne Feinstein, urged senators to approve the bill quickly because supposedly dire consequences would ensue if the intelligence-gathering powers lapsed at the end of the year. Everyone has known about FISA’s expiration date for a long time. Julian Sanchez is absolutely right that Senate leaders “chedule this stuff at the last minute because they’re totally unprepared to make real arguments against amendments.” An amended Senate bill would have to go back to the U.S. House for consideration, which could not happen before the end of the calendar year.

David Kravets summarized the bill’s terms for Wired:

Amendments senators refused to enact included extending the measure for just three years, another one requiring the government to account for how many times Americans’ communications have been intercepted, and one by Wyden prohibiting U.S. spy agencies from reviewing the communications of Americans ensnared in the program.

“The amendment I fought to include would have helped bring the constitutional principles of security and liberty back into balance and intend to work with my colleagues to see that the liberties of individual Americans are maintained,” Wyden said immediately after the vote.

The legislation does not require the government to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application. The court’s rulings are not public.

The government has also interpreted the law to mean that as long as the real target is al-Qaeda, the government can wiretap purely domestic e-mails and phone calls without getting a warrant from a judge. That’s according to David Kris, a former top anti-terrorism attorney at the Justice Department.

In short, Kris said the FISA Amendments Act gives the government nearly carte blanche spying powers.

Ramsey Cox reported for The Hill,

Opponents argued the bill should have been amended to protect the rights of Americans who might be surveilled by intelligence agencies monitoring the calls of foreigners.

Before final passage, the Senate voted against an amendment from Sen. Ron Wyden (D-Ore.), which would have required the Director of National Intelligence to report to Congress on whether any U.S.-based email and phone communications have been picked up in the process of conducting overseas surveillance, and whether any wholly domestic U.S. communications have been swept up under the program.

Wyden said intelligence officials have so far failed to provide such an estimate.

“It is not real oversight when the United States Congress cannot get a yes or no answer as to whether a list exists of law abiding citizens who have had their communications swept up under this law,” Wyden said before the vote on his amendment Friday. “This amendment gives us the opportunity to do real oversight by getting yes or no answers to questions that have been asked repeatedly.” […]

The Senate considered three amendments Thursday from Sens. Patrick Leahy (D-Vt.), Jeff Merkley (D-Ore.) and Rand Paul (R-Ky.). All three failed to pass. They would have extended the Foreign Intelligence Surveillance Act for three years instead of five, declassified FISA court opinions, and clarified that the Fourth Amendment to the Constitution protects U.S. citizens from intelligence-related searches done overseas.

Wyden’s amendment received 43 yes votes and 52 nays. Both Grassley and Harkin voted for that amendment, and Grassley was one of only six Republicans to do so.

Only 10 Democrats and two Republicans voted for Rand Paul’s amendment, which was supposed to “ensure adequate protection of the rights under the Fourth Amendment to the Constitution of the United States.” Grassley was a no vote, and Harkin was absent for that vote.

The Merkley amendment to require disclosure of FISA court opinions received just 37 yes votes and 54 nays. Grassley voted against that amendment, while Harkin was absent for that vote.

Leahy’s attempt to extend FISA for three years instead of five received 38 yes votes and 52 nays. Again, Grassley voted no, while Harkin was absent for the vote.

On final passage, senators approved the FISA reauthorization by 73 votes to 23. Harkin was among the no votes, which included just two Senate Republicans: tea party favorites Rand Paul of Kentucky and Mike Lee of Utah.

I have not seen any public comment from Grassley or Harkin on this legislation but will update this post as needed.

Adam Serwer noted in this post about the Senate floor debate,

Senator Chuck Grassley (R-Iowa) was more direct, arguing that the Fourth Amendment only protects Americans if they’re being targeted, not if the government just happens to be listening in. “Some people think that a U.S. person has a constitutional right not to have his communications with a foreign target eavesdropped by the U.S. government without a warrant,” Grassley said. “But that’s not how the Fourth Amendment works.” Grassley is afraid Obamacare will pull the plug on your grandma, but he doesn’t have any worries that the government might abuse its power to spy on Americans without a warrant.

President Obama should be ashamed that his administration now opposes privacy protections that are weaker than FISA amendments he voted for as a candidate for president in 2008. Serwer commented on a few other ironies too:

As the Senate debated the renewal of the government’s warrantless wiretapping powers on Thursday, Republicans who have accused President Barack Obama of covering up his involvement in the death of an American ambassador urged that his administration be given sweeping spying powers. Democrats who accused George W. Bush of shredding the Constitution with warrantless wiretapping four years ago sung a different tune this week, with the administration itself quietly urging passage of the surveillance bill with no changes, and Senator Dianne Feinstein (D-Calif.) accusing her Democratic colleagues of not understanding the threat of terrorism. […]

“It’s incredibly disappointing that such modest amendments that would have done nothing more than increase transparency and accountability failed to pass in the Senate,” said Michelle Richardson of the ACLU.

The Foreign Intelligence Surveillance Act is meant to allow the government to spy on suspected foreign agents abroad, but it is written in such a manner that it allows the government to snoop on conversations involving American citizens, as long as at least one end of the conversation involves a suspected agent of a foreign group overseas. But very few lawmakers know how the law works, or even have the staff with the necessary expertise or security clearances to figure out how it works. So when respected legislators like Feinstein take to the Senate floor to say that any changes would lead to more flaming buildings and American corpses, senators take it seriously. What this means, however, is that Congress just voted to approve a largely secret law it doesn’t really understand. In the Senate, they actually voted not to know what the law does by rejecting an amendent that would have made the government state how many Americans have been spied on without a warrant.

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