Criminal Justice & the Rule of Law Intelligence Surveillance & Privacy

A Belated FISA Amendment Act Reauthorization Act Update

Susan Hennessey
Monday, January 21, 2013, 2:14 PM
As readers probably already know, the Senate ended an otherwise largely legislation-light 2012 by approving a controversial five-year extension of the FISA Amendments Act of 2008 (FAA), which the House had previously passed in September. President Obama signed the reauthorization into law on January 4th.

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As readers probably already know, the Senate ended an otherwise largely legislation-light 2012 by approving a controversial five-year extension of the FISA Amendments Act of 2008 (FAA), which the House had previously passed in September. President Obama signed the reauthorization into law on January 4th. The legislative debate that led up to the bill had lots of talk of reform and amendment. But at the end of the day—or, rather, the end of the year—the new FAA looks almost exactly like the old. For those who missed the details amidst the holidays, here’s an update. Broadly speaking, the original FAA had created procedures for electronic surveillance of both U.S. and non-U.S. persons believed to be located outside the United States. Back in October, Zachary Eddington summarized the hot-button sections of the original law, with respect to lawful surveillance targets, §§ 702–704. And there was a lot of talk of possibly amending those sections. But in its entirety, the final one-page extension bill amends the FAA only “by striking ‘December 31, 2012’ and inserting ‘December 31, 2017’” in two paragraphs and with a conforming section heading. In other words, it’s an extension---and a very clean one at that. The decision to pass an extension without further substantive amendments to the FAA was neither a foregone conclusion nor was it without controversy. Indeed, the debate surrounding the extension offers a window into Intelligence Committee strife over the appropriate level of oversight and public disclosure surrounding the FAA. Last June, the Senate Intelligence Committee released its report on the FAA extension. The Committee voted 13-to-2 to extend the FAA without further amendment to the underlying law, over the dissent of Ron Wyden (D-Ore.) and Mark Udall (D-Col.) who advocated additional privacy and transparency amendments. After failing to persuade their fellow Intelligence Committee members, Udall and Wyden led the public charge against the extension. Wyden’s hold on the bill successfully forced a debate over the reauthorization. Before passing the ultimately unaltered extension, the Senate voted down four proposed amendments. Each amendment required 60 affirmative votes to pass, because of the procedural manner in which the Senate considered the bill. The first proposed amendment, sponsored by Sen. Jeff Merkley (D-Ore.), would have required the Attorney General to disclose each decision, order, or opinion of a FISA court that includes significant legal interpretation of FAA provisions unless such disclosure is not in the national security interest. Where a decision, order, or opinion remained classified, an unclassified summary would be made available (37 affirmative votes). In the second and only proposal from the other side of the aisle, Sen. Rand Paul (R-Ky.) proposed an amendment that would have applied Fourth Amendment protections to any communications held by a third-party, meaning the government could not obtain third-party records without a warrant or individual consent to search (12 affirmative votes). The third, from Sen. Patrick Leahy (D-Vt.), would have shortened the reauthorization period for the extension to two-and-a-half years and mandated that the Inspector General of the Intelligence Community review procedures and guidelines affecting privacy rights and then produce an unclassified report of those findings (38 affirmative votes). Finally, the fourth proposed amendment, sponsored by Wyden, would require the Director of National Intelligence to produce an impact report as to how many Americans are affected by FISA. The DNI would be required to provide any current government estimates as to the number of communications to and from the United States collected pursuant to FISA authority, as well as any instance of warrantless communication interception, and finally, a determination of whether the NSA has ever collected personally identifiable data pertaining to more than one million Americans (43 affirmative votes). The complete text of the Merkley, Paul, and Leahy amendments can be found here and the Wyden amendment here. The bill then passed on a 73-to-23 vote. After the bill’s passage, Intelligence Committee Chairman Diane Feinstein (D-Ca.) and Vice Chairman Saxby Chambliss (R-Ga.) went on the record endorsing the extension. The two jointly issued the following statement:
This necessary legislation will continue to keep America safe by enabling our intelligence community to identify and neutralize terror networks before they harm us either at home or abroad. In addition, this legislation includes strong privacy protections. The Senate Intelligence Committee will continue to conduct intensive oversight of this program in the 113th Congress.
Feinstein, however, walked a careful line on the bill, saying during floor debates that she supported the aim of both Wyden and Leahy’s amendments but voted against them because of timing concerns. She has taken serious lumps from critics over this dance. Wyden, for his part, gave an impassioned floor speech against the extension and remains undeterred, telling reporters last week that proponents of increased transparency “will win” and that “[i]t’s not a question of ‘are we,’ but when.” Wyden has particularly criticized the disconnect between the plain language interpretation of the FAA’s provisions and the secret interpretations of that law applied by FISA courts in reviewing surveillance targets. Speaking to the Huffington Post, Wyden predicted, “[W]hen the public finds out that these secret interpretations are so dramatically different than what the public law says, I think there's going to be extraordinary anger in the country.” Don’t hold your breath for that day. A week after the Senate vote and the day before Obama’s signature, the Department of Justice issued its response to a FOIA request filed in August by the Electronic Frontier Foundation to obtain some FISC opinions. The response? Twenty-seven blank pages of redacted court documents as summarized for reading by the congressional intelligence committees. Here’s EFF’s statement on the subject.

Susan Hennessey was the Executive Editor of Lawfare and General Counsel of the Lawfare Institute. She was a Brookings Fellow in National Security Law. Prior to joining Brookings, Ms. Hennessey was an attorney in the Office of General Counsel of the National Security Agency. She is a graduate of Harvard Law School and the University of California, Los Angeles.

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