SurveillanceMajor surveillance law heading toward its own end-of-year cliff

Published 21 December 2012

While coverage of the tense negotiations over a resolution to the fiscal cliff threat has dominated the media, the Foreign Intelligence Surveillance Amendments of 2008 is heading for a cliff of its own, as the provisions of the act are set to expire at the end of the year

President George W. Bush signing the FISA Act of 2008 into law // Source: xinhuanet.com

While coverage of the tense negotiations over a resolution to the fiscal cliff threat has dominated the media, the Foreign Intelligence Surveillance Amendments of 2008 is heading for a cliff of its own, as the provisions of the act are set to expire at the end of the year.

Politico reports that the bill, created in 2008, amended the FISA Act to allow federal law enforcement and intelligence agents the ability to track non-U.S. persons abroad, provided the agents receive permission from a special court.

Senator Ron Wyden (D-Oregon) is not in favor of the law and has placed a hold on the bill until it can be determined how many U.S. citizens have been affected by the act, in the past, the agencies involved told  Wyden they cannot provide the data he is requesting.

In September the House passed a 5-year extension of the surveillance powers bill, but in the Senate there is strong opposition. Wyden and others have said there is a lack of information on whether U.S. citizens are being targeted through the FISA act.

Wyden says he will maintain the hold unless the senate holds a vote on his amendments to create new legal checks and transparency rules to the law.

“We’re having talks now with leadership, and I’ve made it clear I would be open to lifting my hold as long as we have a debate,” Wyden told Politico. “If you had a long-term extension” without due consideration on the floor, the senator added, “It would mean the Congress would go nine years without a debate about FISA authorities.”

Some senators feel that the provision in the act has been an immense help and needs to continue.

“The authorities in FISA that expire at the end of the year have proven critical tools for collecting intelligence on terrorists, proliferators, cyber attackers among others,” Senator Dianne Feinstein (D-California), the leader of the Senate Intelligence Committee, said in a statement to Politico that “Congress must, and I believe will, pass this critical extension before Dec. 31.”

Other lawmakers agree with Wyden, but if the Senate does not pass the act, they will be forced to work with the House to find a middle ground, something that is almost impossible so late in the year.

Senator Patrick Leahy (D-Vermont) wants to shorten the extension of the bill to three years and add new legal and reporting standards to the bill.

“Chairman Leahy continues to advocate for Senate consideration of the substitute amendment that was reported out of the Judiciary Committee with the support of Sen. Feinstein,” a Judiciary Committee aide said.

Senators Jeff Merkley (D-Oregon) and Mark Udall (D-Colorado) have their own set of changes to the bill, and are fighting to get them heard. According to Wyden, there are only a  “handful of relevant amendments” that would take a “day and a half” for the chamber to process.

“Without sufficient time for debate, we won’t have the opportunity to discuss concerns we have with the law or ways we might address those concerns,” Udall, who opposed Feinstein’s bill in the Intelligence Committee earlier in the year, told Politico.

A short-term extension of the bill seems to be the best answer for now, as it will give lawmakers the time to debate the issues and get all their opinions out on the floor. Wyden said he could support that approach.

Privacy groups which support Wyden, including the American Civil Liberties Union, the Electronic Frontier Foundation, and the Center for Democracy and Technology, have written numerous letters to members in the Senate to request a full debate on the measure.

“These are serious Constitutional and security issues and Senators should have an opportunity to consider and debate the merits of this program and proposed change,” Merkley said in a statement. “The Senate has now had months to bring this program to the floor. It would be wrong if we get to the point where an extension of this vast surveillance program is jammed through without debate.”

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