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Senate Votes to Extend Sweeping Bush Era Surveillance Powers

Even modest attempts to reign in domestic spying law fail as Senators defend sweeping powers for NSA

- Jon Queally, staff writer

Update:

Sen. Jeff Merkeley (D-OR) offered an amendment to the surveillance bill that would have forced the government to declassify the rulings or at least summaries of them. It was among four amendments defeated. (Image: Screen grab via C-SPAN) The US Senate on Friday voted to reauthorize the FISA Amendments Act of 2008, a spying bill that critics say violates the Fourth Amendment and gives vast, unchecked surveillance authority to the government.

The move extends powers of the National Security Agency to conduct surveillance of Americans’ international emails and phone calls.

The FISA Amendments Act Reauthorization Act (H.R. 5949), passed on a 73-23 vote.

“It’s a tragic irony that FISA, once passed to protect Americans from warrantless government surveillance, has mutated into its polar opposite due to the FISA Amendments Act,” said Michelle Richardson, legislative counsel at the ACLU. “The Bush administration’s program of warrantless wiretapping, once considered a radical threat to the Fourth Amendment, has become institutionalized for another five years.”

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Earlier: Oversight Amendments to FISA Crumble in US Senate: Obama, Democrats Push to Make Bush Spying Laws Permanent

Four separate amendments designed to install oversight mechanisms into the National Intelligence Agency's vast spying capabilities enshrined in the 2008 FISA Amendments Act all failed Thursday with the majority of US Senators insisting that secrecy continues to trump civil liberties in the post 9/11 era.

With a final vote for full passage of the bill expected Friday, the defeat of the amendments spells near complete legalization of domestic spying practices which would have previously been found criminal. First uncovered during the Bush years and slammed by Democrats, the FISA law passed in 2008 gave retroactive immunity to the Bush era abuse and strove to codify the program going forward.

Though he ran against such measures during his first run for president, the secret spying laws have now been embraced fully and championed by President Obama.

Rights groups and advocates of the amendments voiced outrage with the votes.

The Electronic Frontier Foundation's Trevor Timm, who summarized each amendment here, predicted that a complete re-authorization of the law would likely pass the Senate but argued the amendments "would go a long-way in curbing the law’s worst abuses."

Describing the FISA law in brief, Timm explained that

the law allows the government to get secret FISA court orders—orders that do not require probable cause like regular warrants—for any emails or phone calls going to and from overseas. The communications only have to deal with "foreign intelligence information," a broad term that can mean virtually anything. And one secret FISA order can be issued against groups or categories of people—potentially affecting hundreds of thousands of Americans at once.

EFF marked each successive amendment's defeat via Twitter:

 

The Guardian's Glenn Greenwald responded to Thursday's vote with a scathing indictment of the Senate, saving particular criticism for the role played by Democratic Chair of the Intelligence Oversight Committee Diane Feinstein (D-CA) who repeatedly used fear and visions of terrorist threats to defend an unaltered FISA re-authorization. He writes:

It's hard to put into words just how extreme was Feinstein's day-long fear-mongering tirade. "I've never seen a Congressional member argue so strongly against Executive Branch oversight as Sen. Feinstein did today re the FISA law," said Micah Zenko of the Council on Foreign Relations. Referring to Feinstein's alternating denials and justifications for warrantless eavesdropping on Americans, the ACLU's Jameel Jaffer observed: "This FISA debate reminds of the torture debate circa 2004: We don't torture! And anyway, we have to torture, we don't have any choice."

Worse than this, according to Greenwald, was the role played by the Obama White House.

Just four or five years ago, objections to warrantless eavesdropping were a prime grievance of Democrats against Bush. The controversies that arose from it were protracted, intense, and often ugly. Progressives loved to depict themselves as stalwartly opposing right-wing radicalism in defense of Our Values and the Constitution.

Fast forward to 2012 and all of that, literally, has changed. Now it's a Democratic President demanding reform-free renewal of his warrantless eavesdropping powers. He joins with the Republican Party to codify them. A beloved Democratic Senator from a solidly blue state leads the fear-mongering campaign and Terrorist-enabling slurs against anyone who opposes it. And it now all happens with virtually no media attention or controversy because the two parties collaborate so harmoniously to make it happen. And thus does a core guarantee of the founding - the search warrant requirement of the Fourth Amendment - blissfully disappear into nothingness.

Here we find yet again a defining attribute of the Obama legacy: the transformation of what was until recently a symbol of right-wing radicalism - warrantless eavesdropping - into meekly accepted bipartisan consensus. But it's not just the policies that are so transformed but the mentality and rhetoric that accompanies them: anyone who stands in the way of the US Government's demands for unaccountable, secret power is helping the Terrorists. "The administration has decided the program should be classified", decreed Feinstein, and that is that.

And the Huffington Post adds:

The program, which the Bush administration started without congressional authorization shortly after the Sept. 11 attacks, collects intelligence on Americans who are communicating abroad with foreign "targets" designated by spy agencies like the CIA and National Security Agency. Critics, including NSA whistle-blowers, have raised fears that law-abiding Americans' communications are getting caught up in a vast, electronic dragnet of phone calls and emails.

The lopsided, bipartisan votes against the amendments dealt a blow to civil liberties advocates, who have argued that Congress should curb the scope of the wiretapping program or at least disclose key information about how it is being used. President Barack Obama has said he will sign the bill when it reaches his desk.

Before the votes, a handful senators mounted a strenuous effort from the chamber's floor to demand more information about whether the foreign surveillance program is being used to spy on Americans. Sen. Ron Wyden, a Democrat from Oregon, went so far as to compare the NSA to the British officials who used broad royal writs to invade colonists' homes prior to the American Revolution, eventually prompting the passage of the Fourth Amendment with its prohibition on unreasonable government searches.

"It is never okay, never okay for government officials to use a general warrant to deliberately invade the privacy of a law-abiding American," Wyden said. "It wasn’t okay for constables and customs officials to do it in colonial days, and it’s not okay for the National Security Agency to do it today."

While conceding that the bill could use some oversight improvements, Sen. Dianne Feinsten (D-Calif.), the chair of the Senate Intelligence Committee, urged passage of the bill without alteration to avoid prompting both a fight with the House of Representatives, which has already passed a "clean," unamended version of the bill, and also the program's expiration.

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