Senate vote begins on reauthorizing surveillance programs

Senate began voting Thursday on a bill reauthorizing the Foreign Intelligence Surveillance Act (FISA).

Senators debated the FISA Amendments Reauthorization Act for seven hours before starting to vote on amendments to the legislation. The bill would extend for five years the ability of U.S. intelligence authorities to surveil terrorists overseas without first getting permission from a court.

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Rep. Lamar Smith (R-Texas) introduced H.R. 5949, which the House passed in September on a 301-118 vote that split Democrats.

Supporters of the bill said it needed to be passed without changes so it goes directly to President Obama’s desk before programs expire at the end of the year, while those who wanted to make changes to the bill said they wanted to strike a better “balance between privacy and security.”

The Senate considered three amendments Thursday evening and will finish business on a fourth and final amendment Friday morning — final passage of the FISA bill is expected to follow.

Sen. Patrick Leahy’s (D-Vt.) amendment was a substitute amendment to the House version that would temporarily extend FISA, so that lawmakers have more time to deliberate on the bill being rushed through before the year ends. Leahy's amendment would add oversight protections to the bill and shorten its sunset provision to three years, rather than five.

Sen. Jeff Merkley (D-Ore.) introduced an amendment to declassify FISA court opinions so Congress and the public could see how the secret court interprets the surveillance law. Sen. Rand Paul (R-Ky.) introduced an amendment to clarify that the Fourth Amendment to the Constitution protects U.S. citizens from unreasonable searches and seizures, even those that result from searches being done by a U.S. intelligence agency monitoring a foreign national overseas. All three failed to meet the 60-vote threshold needed to pass.

Sen. Ron Wyden’s (D-Ore.) amendment will be considered Friday morning, before a vote on final passage. The Wyden amendment would require the Director of National Intelligence to report to Congress with an estimate on how often 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.

“I think, when you talk about oversight, and you can't even get a rough estimate of how many law-abiding Americans had their communications swept up by this law… the idea of robust oversight, really ought to be called toothless oversight if you don't have that kind of information," Wyden said on the floor Thursday morning.

Senate Intelligence Committee Chairwoman Dianne Feinstein (D-Calif.) said those incidences have been “few” and “inadvertent.” She urged her colleagues not to support any of the amendments because she said the bill would then have to be reconsidered by the House. She said unless the House version passed, surveillance would halt after Dec. 31, posing a threat to national security.

“Without Senate action these authorities expire in four days and that’s the reason the House bill is before us,” Feinstein said before the amendment votes Thursday. “That is why I urge my colleagues to vote no on all amendments.

“There is a view of some that this country no longer needs to fear attacks — I don’t share that view.“

Feinstein said that in the last four years 100 arrests have been made because of counter terrorism information, some of which was gathered through FISA programs. She also promised to look at the amendments in her committee and possibly include them in the intelligence authorization bill next year.

The American Civil Liberties Union said it was disappointed in the outcome of the vote, but noted that Thursday's debate opened the door for the amendments to be considered again next year.

“Although it’s disappointing that the Senate failed to force the government to disclose how it monitors Americans' domestic communications, the ACLU was heartened that a good portion of the senators present voted for increased transparency,” Michelle Richardson, a legislative counsel with the ACLU's Washington office, said in a statement. “We agree with Senator Merkley that there are two parts to the law—the plain language and how the law is interpreted by the judiciary—and welcome Senator Feinstein’s pledge to work with Merkley to release Foreign Intelligence Surveillance Court opinions or unclassified summaries explaining the scope of the law to the American public.”

The Obama administration has said it supports the House-passed version of the FISA reauthorization.

Updated at 7:43 p.m.