House Judiciary Committee Approves FISA Bill

June 19, 2012. The House Judiciary Committee (HJC) approved HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 23-11. See, Table in this issue titled "HJC Roll Call Votes on HR 5949, June 19, 2012".

The HJC rejected four amendments offered by Democrats, including one that would have shortened the extension period.

This bill would extend for five years government authority to conduct surveillance related to persons "outside" the US, without individualized court approval. Surveillance of persons "outside of the United States" is a term of art that also enables surveillance of persons inside of the US who fall within the protection of the 4th Amendment.

This warrantless "outside" of the US surveillance authority was enacted as part of HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". The House passed it on June 20, 2008. The Senate passed it on July 9, 2008. Former Sen. Barack Obama (D-IL) voted for it. Former President Bush signed it on July 10, 2008. It is now Public Law No. 110-261.

The 2008 Act provides that this "outside" of the US authority sunsets on December 31, 2012. HR 5949 and the Senate version, S 3276 [LOC | WW], deceptively titled the "FAA Sunsets Extension Act of 2012", would extend the sunset for five years, to December 31, 2017.

The Senate Intelligence Committee (SIC) approved S 3276 on May 22 in secrecy, and then disclosed its action on June 8. The secrecy likely was intended to suppress debate and opposition to the bill, rather than to protect national security.

The 2008 Act allows "the targeting of persons reasonably believed to be located outside the United States to acquire foreign intelligence information" without an warrant that identifies any persons, phones or accounts.

Some members of Congress oppose this provision because US citizens are located abroad, persons abroad communicate with persons inside the US, and those conducting surveillance often do not know the location of the persons they are attempting to surveil. Hence, this provision enables the government to conduct warrantless wiretaps and other surveillance of US citizens located in the US when communicating with persons whom the government believes are abroad.

See also, stories titled "Senate Considers Bill To Extend FISA Outside the US Warrantless Wiretap Authority", "House Judiciary Committee Takes Up Bill To Extend FISA Outside the US Warrantless Wiretap Authority", and "Commentary: Warrantless Wiretaps and Senate Secrecy" in TLJ Daily E-Mail Alert No. 2,396, June 14, 2012.

At the June 19 HJC mark up, Rep. John Conyers (D-MI), the ranking Democrat on the HJC, praised Rep. Lamar Smith (R-TX), the Chairman of the HJC, for conducting this mark up in public.

While Republicans voted in near unison against amendments, and unanimously for passage, almost all of the debate in support of the bill was carried by Rep. Smith and Rep. Dan Lungren (R-CA).

Numerous Democrats argued against the bill, sought a shorter extension, and/or sought more disclosure of information about the surveillance authority to be extended. These included Rep. Conyers, Rep. Jerrold Nadler (D-NY), Rep. Bobby Scott (D-VA), Rep. Sheila Lee (D-TX), Rep. Mel Watt (D-NC), and Rep. Zoe Lofgren (D-CA).

Rep. Smith argued that extending the "outside" the US surveillance authority is necessary to address multiple threats, including Al Qaeda attempts to launch terrorists attacks, and theft of intellectual property by the People's Republic of China (PRC).

Rep. Conyers argued that the extension should be shorter because "the public does not yet have an adequate understanding" of the underlying surveillance provision's impact upon privacy.

In particular, the federal government agencies involved have not disclosed any estimate of how many persons in the US have had the content of their communications intercepted or seized.

Rep. Conyers offered an amendment [1 page in PDF] that would have provided a three year extension, through June 1, 2015, rather than the extension through December 31, 2017, as provided in HR 5949.

This amendment would have made the sunset for this provision coincide with the sunset of three other controversial surveillance provisions: (1) treating lone wolf individuals like agents of foreign governments or terrorists organizations (see, 50 U.S.C. § 1801(b)'s definition of the term "agent of a foreign power"), (2) access to business records, including library records (see, 50 U.S.C. § 1861 as amended by Section 215 of the 2001 surveillance act), and (3) roving wiretaps (see, 50 U.S.C. § 1805).

The HJC rejected this amendment by a vote of 12-12. Many members had not yet arrived at the meeting. Most of the Republicans who voted opposed the amendment, and most Democrats who voted supported the amendment. However, Rep. Louie Gohmert (R-TX) and Rep. Ted Poe (R-TX) voted for the amendment, while R.C. Pedro Pierluisi (D-PR) voted against the amendment. These three did not speak at the mark up.

Rep. Nadler offered an amendment [1 pages in PDF] that would have required the Attorney General to "make publicly available an unclassified summary of each decision, order, or opinion of the Foreign Intelligence Surveillance Court or Foreign Intelligence Surveillance Court of Review", including those that contain "a significant construction or interpretation" of the surveillance authority that would be extended by HR 5949.

Rep. Lungren argued that this amendment would provide enemies of the US "with a roadmap to evasion". Rep. Smith argued that the members of the House and Senate Intelligence and Judiciary Committees receive classified briefings and reports.

Rep. Scott argued that the public must be able to "oversee Congress". He said, "Trust us. We've seen it .. is wholly inadequate".

The HJC rejected this amendment by a vote of 14-17. Rep. Poe and Rep. James Sensenbrenner (R-WI) voted for this amendment.

Rep. Scott offered an amendment [1 page in PDF] that would have expanded reporting requirements. The 2008 Act provides that the "Attorney General and Director of National Intelligence shall assess compliance with the targeting and minimization procedures" and provide an assessment to the Foreign Intelligence Surveillance Court and the Intelligence and Judiciary Committees. See, 50 U.S.C. § 1881a, at subsection l (letter l).

Rep. Scott's amendment would have required that these assessments be "in unclassified form, but may include a classified annex".

The HJC rejected it by a vote of 10-19.

Rep. Lee offered an amendment that would have provided for an Inspector General report. The HJC rejected it by a vote of 11-10.

The HJC then approved the bill by a vote of 23-11.