Lawmakers consider extension of overseas surveillance powers

A House panel on Thursday will consider renewing a law that gives officials broad leeway to conduct surveillance overseas when the target isn’t a U.S. citizen.

The provision under Title VII of the Foreign Intelligence Surveillance Act (FISA) has garnered concern from some Democrats, who worry the powers might be used to target American citizens and legal residents in the United States.

The FISA measure, which expires at the end of the year, grants U.S. intelligence officials the power to monitor phone calls, emails and other communications of suspected terrorists abroad once they obtain a court order.

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The provision allows U.S. officials to get a blanket approval from the FISA court for surveillance outside of the United States without having to file individual applications for each person being monitored. Intelligence officials would still have to get specific permission to monitor the communications of U.S. citizens.
Rep. Lamar Smith (R-Texas) has devoted Thursday’s House Judiciary Committee hearing to exploring the issue.

The last time FISA was overhauled, in 2008, Democrats clashed bitterly with Republicans and the George W. Bush White House over the spying powers.

But there are signs that passions on the issue have cooled. The Senate Intelligence Committee voted 13-2 last week to extend the overseas surveillance provision through June 1, 2017.

Some lawmakers, however, are worried that Americans will get caught up in the dragnet of the government’s surveillance while overseas and have their privacy rights violated. 

Democratic Sens. Mark Udall (Colo.) and Ron Wyden (Ore.) cast the only votes against the measure last week. The two lawmakers have opposed many of FISA’s surveillance provisions and demanded that the White House turn over records that detail how many Americans have been tracked overseas. 

But the Director of National Intelligence’s (DNI) office says providing that number isn’t feasible.

“It is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority,” Director James Clapper's office told Udall and Wyden in a letter last year. 

A clause in the FISA provision states that the inspector general of every U.S. intelligence branch operating under FISA is required to “review the number of disseminated intelligence reports containing a reference to a United States-person identity.”

In 2009, The New York Times reported that the National Security Agency had been intercepting private communications between American citizens, which the Justice Department said it had taken steps to remedy.

In 2011, the FISA court approved every one of the Department of Justice’s nearly 1,750 applications — almost all of which were for electronic surveillance — though it modified 30, according to figures released last month. DOJ did not specify how many of these applications involved U.S. citizens or legal residents. 

Lawmakers inserted several safeguards against the government violating the privacy rights of people in the U.S. when the provision was approved in 2008. 

One clause in the provision states that U.S. intelligence-gathering officials “may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular, known person reasonably believed to be in the United States.”

Another clause prevents “the intentional acquisition of any communication as to which the sender and all intended recipients are known at the time of the acquisition to be located in the United States."

The argument over FISA was one of the most contentious of 2008, sharply dividing top Democrats. At the time, then-House Speaker Nancy Pelosi (D-Calif.) and then-Sen. Barack Obama (Ill.), the Democrats’ presumptive presidential nominee, drew the ire of liberals by voting for the measure.  

Pelosi and Obama said the bill contained necessary security enhancements while providing a check on then-President Bush’s power by putting surveillance approval authority in the hands of a FISA court. 

They said the FISA provisions were a step forward from Bush’s illegal domestic wiretapping program, which was conducted in secret with little oversight. Among other things, the measure allows officials to execute wiretaps on suspected terrorists who change phones. It also contains a “lone wolf” provision, which allows officials to treat individual foreign terrorists as members of a foreign power.   

The sweeping FISA amendments were eventually passed in 2008 after a highly charged debate focused on whether to grant legal immunity to telecommunications firms who participated in Bush’s illegal domestic wiretap program. 

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Democrats on Capitol Hill sharply resisted Bush’s push to give the White House the primary power to expand FISA’s reach, with minimal congressional oversight, if it was in the country’s national security interest. Democrats eventually succeeded in implementing a more stringent system of checks on the president’s authority and installing safeguards to protect individual privacy rights.

But in exchange, Pelosi, then-House Majority Leader Steny Hoyer (D-Md.), and then-Majority Whip James Clyburn (D-S.C.) all reluctantly voted to grant the telecom companies the immunity Republicans sought.

Pelosi and Hoyer acknowledged they were not happy with the bill, but foreign surveillance laws needed to be significantly updated, and this was the best they could do at the time, they said.

Many Democrats were outraged, and 128 voted against the final bill, compared with 105 who voted in favor. Opponents argued Bush was continuing to use the Sept. 11 attacks to bolster his power without providing for congressional oversight.