Warrantless Surveillance Is Headed for Renewal
Posted January 16, 2018 10:00 p.m. EST
Updated January 16, 2018 10:01 p.m. EST
WASHINGTON — The Senate cleared the path on Tuesday for Congress to extend the National Security Agency’s warrantless surveillance program for six years with minimal changes, rejecting bipartisan calls to first vote on amendments that would have imposed significant new privacy protections when the program sweeps up Americans’ emails.
The vote, 60-38, narrowly overcame a procedural obstacle to an up-or-down vote on the surveillance extension bill, showing that there is probably sufficient support in the Senate to give it final approval and send it to President Donald Trump’s desk this week.
The bill passed last week in the House, which first rejected an amendment that would have required government officials to get warrants in most instances to search for Americans’ messages in the program’s repository.
The vote centered on a law known as Section 702 of the FISA Amendments Act. It permits the government to, without a warrant, collect from U.S. companies, like AT&T and Google, the emails, phone calls, text messages and other communications of foreigners abroad who have been targeted for intelligence surveillance — even when they communicate with Americans.
While Senate approval of the bill has been widely expected, the outcome of Tuesday’s vote was not certain because several lawmakers — including Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky. — had vowed to filibuster the legislation, meaning the approval of 60 of the 100 senators was necessary to overcome that procedural delay tactic.
The vote was close, and was held open longer than expected at a 58-38 split while the holdouts fell under heavy lobbying by their colleagues. Ultimately, two more senators — John Kennedy, R-La., and Claire McCaskill, D-Mo. — voted for the legislation, getting to the 60-vote threshold.
The vote was also closely watched because civil liberties-minded liberals have been pressuring Democrats to oppose the surveillance extension without the sort of changes the House rejected last week. Such pressure suggests that the vote could have political reverberations if progressive-leaning voters treat it as a litmus test in future contests like the 2020 Democratic presidential primaries.
First enacted in 2008, the law codified a form of the NSA warrantless surveillance program that the Bush administration secretly created after the Sept. 11 attacks. In 2012, Congress extended it for five years without changes. It is now up for renewal for the first time since the 2013 leaks by the former intelligence contractor Edward J. Snowden set off a broad debate about surveillance and privacy. Before the vote, Wyden and Paul held a news conference with several other senators who argued that the bill as written was insufficient and who objected to a maneuver by Senate Majority Leader Mitch McConnell, R-Ky., to prevent lawmakers from getting a chance to vote on amendments to it.
But introducing the Senate session soon afterward, McConnell emphasized that the law did not permit warrantless collection targeting Americans or people known to be in the United States and urged his colleagues to permit a vote on the House bill without amendment.
“With respect to foreigners on foreign soil, 702 gives the men and women who keep us safe a vital tool they need to fulfill their missions,” McConnell said. “Five years ago, Congress reauthorized the title with overwhelming bipartisan support. It’s imperative that we do so once again.”
Republicans who broke party ranks to oppose McConnell’s effort to move forward on the bill without amendments included Ted Cruz of Texas, Steve Daines of Montana, Cory Gardner of Colorado, Dean Heller of Nevada, Mike Lee of Utah, Jerry Moran of Kansas, Lisa Murkowski of Alaska and Paul.
Democrats who supported McConnell’s move included Tom Carper of Delaware, Bob Casey of Pennsylvania, Catherine Cortez Masto of Nevada, Joe Donnelly of Indiana, Tammy Duckworth of Illinois, Dianne Feinstein of California, Maggie Hassan of New Hampshire, Heidi Heitkamp of North Dakota, Doug Jones of Alabama, Amy Klobuchar of Minnesota, Joe Manchin of West Virginia, McCaskill, Bill Nelson of Florida, Gary Peters of Michigan, Jack Reed of Rhode Island, Jeanne Shaheen of New Hampshire, Mark Warner of Virginia and Sheldon Whitehouse of Rhode Island. Angus King, independent of Maine, also voted to move forward on the bill.
Complicating matters, the bill contains a gesture toward creating a requirement that authorities get a warrant for such surveillance when FBI agents already have a criminal investigation open into an American with no national-security angle. Warner, who is the top Democrat on the Intelligence Committee, cited that provision as meaningful reform.
But critics noted that the provision is so narrowly written that it would not apply most of the time when government officials query Americans’ private information, such as security-related searches by any agency, or FBI searches when agents are pursuing ordinary criminal tips before opening a formal investigation. Sen. Patrick J. Leahy, D-Vt., told colleagues it was a “sham” requirement.