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Friday, Dec 28, 2012 2:27 PM UTC

Senate FISA vote inspiring display of bipartisan commitment to ignoring Fourth Amendment

Fiscal calamity? Who cares! Congress shows that they can still band together and vote for horrible things

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Topics: FISA, U.S. Senate, NSA, Wiretapping, Editor's Picks,

Senate FISA vote inspiring display of bipartisan commitment to ignoring Fourth AmendmentSenate Intelligence Committee Chair Sen. Dianne Feinstein, D-Calif., center, flanked by Sen. Saxby Chambliss, R-Ga., vice-chair of the committee, at right, and House Intelligence Committee Chairman Rep. Mike Rogers, R-Mich. (Credit: AP/J. Scott Applewhite)

Congressional dysfunction and extremism may yet plunge the nation into an entirely avoidable recession, but at least Americans will likely be able to sleep at night secure in the knowledge that our lawmakers sprang into action at the last possible minute to preserve the government’s right to constantly spy on everyone without telling anyone about it.

In all likelihood, the Senate will vote today to reauthorize the FISA Amendments Act for a few years, just before the act was scheduled to expire. The House reauthorized it all the way back in September, but the world’s most deliberative body likes to take its time (plus Ron Wyden placed a hold on the bill until Senate leaders agreed to at least have a debate on proposed amendments to the Amendments).

Here’s the brief history of the FISA Amendments Act: When it turned out that the National Security Agency, under the Bush administration, had been secretly and illegally wiretapping domestic phone conversations and monitoring other forms of electronic communications for years with no oversight, Congress responded by passing a law retroactively making basically everything the NSA was doing legal. The bill passed in so beautifully bipartisan a fashion that I imagine it must’ve thrilled the Starbucks guy. Essentially, the NSA no longer needs a warrant to carry out domestic spying:

The act, subject to a constitutional challenge by the American Civil Liberties Union and others before the Supreme Court, authorizes the government to electronically eavesdrop on Americans’ phone calls and e-mails without a probable-cause warrant so long as one of the parties to the communication is believed to be outside the United States. Communications may be intercepted “to acquire foreign intelligence information.”

The FISA Amendments Act generally requires the Foreign Intelligence Surveillance Act Court, a secret tribunal set up in the wake of President Richard M. Nixon-era eavesdropping, to rubber-stamp terror-related electronic surveillance requests. The government does not have 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 FISA Amendments Act makes a joke of the entire Fourth Amendment “warrant” requirement, as the government now can seek “programmatic warrants” that allow them to indiscriminately collect massive amounts of data from broadly defined “targets” over the course of a year.

When the act was passed in 2008, it was set to expire after a couple years, during which time we were all supposed to be debating whether or not the NSA needed its expanded powers and whether or not the agency was abusing them. Well, Washington forgot to have the “debate” until this month, and also we can’t ever know how the NSA is using its powers because the FISA Court opinions explaining how the government is interpreting the law are all secret. But effectively, the NSA is vacuuming up as much private communication as possible and then promising to be really careful about when and how it looks at it.

The FISA Amendments reauthorization vote will happen today after a debate on an amendment proposed by Sen. Ron Wyden, D-Ore., that would ask the NSA to at least give us an estimate of how many Americans have had their communications intercepted. (The NSA doesn’t want to do this because, they claim, releasing this number would violate the privacy rights of the people they’ve been eavesdropping on.) The meat of the debate happened yesterday — though because it was not related to the “fiscal cliff,” the mainstream political press essentially ignored it, leaving coverage to privacy and civil liberties specialists like Julian Sanchez and the ACLU. As usual, the Senate’s few civil libertarian–leaning voices (a couple of Democrats and sometimes Rand Paul) were repeatedly told that their concerns didn’t matter Because of Terror, and amendments designed to provide some small measure of oversight and disclosure into the NSA’s eavesdropping of Americans failed miserably in late-evening votes yesterday.

The worst offender during the debate was Sen. Dianne Feinstein, D-Calif., chair of the Senate Intelligence Committee, who repeatedly argued that requiring even minor disclosure of NSA activities would definitely lead to More Terrorism Everywhere. Feinstein worries that more public oversight of the NSA’s massive spying authority could have a chilling effect on their spying. She claimed that many arrests of “terrorists” on U.S. soil have been linked to information obtained by the NSA’s domestic spying, which is a pretty handy indication that they’re engaged in a whole lot of domestic spying. (It’s also wholly unverifiable and likely bullshit.)

Feinstein then pulled the classic awful senator trick of claiming to support a measure currently up for debate, but explaining that she would still vote against it, because of timing:

In addition to Wyden, Sen. Jeff Merkley (D-Ore.) has offered an amendment that would require the government to declassify the FISA Court’s opinions on surveillance requests. Feinstein said she supported that aim and offered to add his amendment to the intelligence reauthorization bill next year, rather than have it considered in the FISA measure.

“The problem is we have four days and this particular part of the law expires,” she said. “I think this is a reasonable request … we will do another intelligence authorization bill next year, and that can be certainly added to that bill.”

There’s simply no time to vote for this thing I ostensibly support! The Merkley amendment failed. Feinstein pulled a similar obnoxious senator move with Patrick Leahy’s amendment to renew the FISA Amendments for only three years instead of five, initially supporting the measure in committee and then voting against the amendment on the floor — where it, too, failed. Rand Paul’s amendment, which would have required individual warrants for all government requests for electronic records and communications, never had a chance in hell.

I should point out that the right-wing media machine spent much of yesterday frothing at the mouth over Sen. Feinstein’s support for new gun regulations. Michelle Malkin, Drudge, Breitbart and the NRA all blew up with scorn, ridicule and bile over a proposal that does not yet exist in any form beyond an announcement of intention. None of them seemed particularly concerned about the same senator’s disregard for the Fourth Amendment. (She didn’t even get any praise for it from the more pro-security state corners.)

And Barack Obama — who was once on the good side of this debate — will happily sign the authorization Congress sends him, which doesn’t have any of the privacy measures he once voted to support. The program is now set to last beyond his presidency. I’m sure when it comes up again, the Senate “debate” will be just as edifying. But look on the bright side: Maybe by then forced austerity measures will leave us unable to pay for a massive unaccountable national surveillance state.

Alex Pareene

Alex Pareene writes about politics for Salon and is the author of "The Rude Guide to Mitt." Email him at apareene@salon.com and follow him on Twitter @pareene More Alex Pareene.

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