The U.S. Senate passed a bill on Friday that reauthorizes and extends the FISA Amendments Act of 2008, a law that was originally meant to retroactively grant legal immunity to the Bush administration and telecoms, along with temporary authorization to wiretap non-Americans inside the United States without first having to acquire a warrant.
The law was set to expire at midnight on Friday, but the Senate’s vote means it will almost certainly be extended through December 2017.
Before passing the extension by a vote of 73-23, lawmakers blocked amendments by Sens. Patrick Leahy (D-VT), Ron Wyden (D-OR), Jeff Merkley (R-OR) and Rand Paul (R-KY) that would have narrowed the window of reauthorization, added more oversight to the program and required annual reports to Congress on the privacy impacts of the program.
The extension continues warrantless wiretapping powers that apply even in the event that one person participating in the communication is an American citizen, despite the Fourth Amendment’s requirement for court oversight. It was originally passed in 2008 as a means of granting top Bush administration officials and the telecommunications companies legal immunity against suits over wiretaps that even the former president once claimed to be illegal.
The bill amended the Foreign Intelligence Surveillance Act, which was passed in 1978 after President Richard Nixon’s (R) wiretapping of political opponents was exposed by journalists. It set up a secret court to retroactively approve wiretapping requests by law enforcement agencies up to several days after the spying begins.
In amending the FISA statute, Congress largely sidelined the court and granted law enforcement blanket authority to single out non-Americans for wiretaps, in addition to retroatively forgiving the telephone companies and Internet providers for assisting the Bush administration’s illegal wiretapping requests after the attacks of Sept. 11, 2001.
As a Senator, Barack Obama vowed he would end warrantless wiretaps and initially opposed the FISA law based on the addition of telecom immunity, but ultimately voted for it with immunity intact just six months before winning the 2008 presidential election. Incidentally, the plan was opposed then by six in 10 Americans, according to a poll by the American Civil Liberties Union (ACLU).
Some of Obama’s highest-profile supporters, like former Sen. Russ Feingold (D-WI), said they believed President Obama would push for amendments to better protect Americans’ constitutional rights under the Fourth Amendment, but the Obama White House has supported extending the act’s powers without an iota of change.
“This is a sad moment,” Feingold told MSNBC’s Rachel Maddow in 2008. “It really is a black mark, not only on the Democrats, but on the Congress and really the history of our country.”
Reacting to the Senate’s vote on Friday, American Civil Liberties Union attorney Michelle Richardson said in an advisory that the move is a “tragic irony.”
“The Bush administration’s program of warrantless wiretapping, once considered a radical threat to the Fourth Amendment, has become institutionalized for another five years,” she said.
The House version of the FISA Amendments Act Reauthorization Act was passed by the House in September. The vote was 301 to 118, with just five Republicans opposing the extension.
Although the 112th Congress is on track to be the least productive in U.S. history, Republicans and Democrats somehow also managed to agree upon the indefinite detention of American citizens — even though a majority of Senators voted to strip that provision from the bill.
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