Senate Judiciary Committee Approves Outside the US Surveillance Bill

July 19, 2012. The Senate Judiciary Committee (SJC) held an executive business meeting at which it amended and approved S 3276 [LOC | WW], a bill to extend the sunset on government authority to conduct surveillance related to persons "outside" the US, without individualized court approval. A 2008 Act created this authority, with a sunset at the end of this year.

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.

The Senate Intelligence Committee (SIC), House Judiciary Committee (HJC) and House Intelligence Committee (HIC) have approved brief bills that merely provide for an approximate five year extension, although not the same new sunset date. The bill just approved by the SJC provides for a three year extension, and adds a provision for an Intelligence Community Inspector General (IC/IG) review.

The SJC first accepted an amendment in the nature of a substitute offered by Sen. Patrick Leahy (D-VT), the Chairman of the SJC, without a vote. It then either rejected or tabled a series of secondary amendments. All related to crime or terrorism. But, only one related to the 2008 Act. The SJC rejected on a vote of 3-15 an amendment offered by Sen. Mike Lee (R-UT) and Sen. Richard Durbin (D-IL) that would have imposed limitations upon warrantless surveillance of US persons under the authority created by the 2008 Act.

2008 Act. S 3276 creates no new surveillance authority. Rather, it merely extends the authority created during the 110th Congress by HR 6304 [LOC | WW], the "Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008". The House passed that bill 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 surveillance authority sunsets on December 31, 2012.

The two versions of S 3276 and the pending House bill, HR 5949, all extend the sunset, but for different time periods.

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

Some members of Congress oppose this provision, or seek greater oversight and checks, 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.

These concerns have been heightened by refusals by leaders of the intelligence agencies to publicly disclose how many US persons' communications are intercepted or seized, without an individualized warrant, under the authority created by the 2008 Act.

It should be noted that the provision in the 2008 Act that is up for extension does require a court order. However, it allows broad generalized orders. It allows orders that cover an entire surveillance program, without identification or description of any person, phone, or email account.

The 4th Amendment requires individualized orders. That is, it requires orders "particularly describing the place to be searched, and the persons or things to be seized".

The 2008 Act also contains some limitations on this broad surveillance authority. For example, the government "may not intentionally target any person known at the time of acquisition to be located in the United States" under this Title VII authority.

Pending Bills. There are bills pending in the House and Senate to extend the sunset.

The four committees with jurisdiction (HJC, HIC, SJC and SIC) have now all approved a bill. All but the just approved SJC bill are usually described as "clean" or "straight" bills, meaning that they would extend the sunset, but nothing else.

The bill just approved by the SJC not only extends the sunset, but also provides that the "Inspector General of the Intelligence Community is authorized to review the acquisition, use, and dissemination of information acquired under" the surveillance authority created by the 2008 Act, and specify the nature of such IG reviews.

The HJC approved HR 5949 [LOC | WW], the "FISA Amendments Act Reauthorization Act of 2012", by a vote of 23-11, on June 19, 2012. It is a straight bill that merely extends the sunset until December 31, 2017.

The HJC narrowly rejected an amendment, on a 12-12 vote, that would have reduced the extension to three years. The HJC also rejected an amendment, on a 11-20 vote, that would have required IG reports.

See, stories titled "House Judiciary Committee Approves FISA Bill" and "HJC Roll Call Votes on HR 5949" in TLJ Daily E-Mail Alert No. 2,399, June 19, 2012.

The HIC approved this bill on June 28. See, story titled "Update on FISA Outside the US Surveillance Bills" in TLJ Daily E-Mail Alert No. 2,406, July 10, 2012.

The Senate version, S 3276 [LOC | WW], deceptively titled the "FAA Sunsets Extension Act of 2012", as approved by the SIC, extends the sunset for about five years, to June 1, 2017.

The version of S 3276 just amended and approved by the SJC extends the sunset about three years, to June 1, 2015.

The SIC approved S 3276 on May 22 in secrecy, and then disclosed its action, and introduced the bill, in June. The secrecy likely was intended to suppress debate and opposition to the bill.

See, 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.

July 19 SJC Mark Up. The SJC met in two sessions on July 19, approved an amendment in the nature of a substitute to S 3276, rejected or tabled all other amendments, and approved the bill as amended.

SJC replaced the SIC bill, which is a straight bill with a new sunset date of June 1, 2017. The SJC approved bill that contains a June 1, 2015 sunset, and provisions regarding reviews by the IC/IG.

Sen. Dianne Feinstein (D-CA), who is both a senior member of the SJC, and Chairman of the SIC, stated that she supports Sen. Leahy's amendment in the nature of a substitute.

However, it might be noted that in the past the SIC has passed surveillance bills that are more to the liking of the intelligence agencies and Department of Justice (DOJ), while the SJC has passed bills that are more protective of individuals' interests in privacy and liberty. Then, the full Senate has adopted the SIC versions of the bills.

Sen. Leahy argued at the July 19 mark up that the outside the US surveillance authority should be extended, but that there should also be "privacy protections" and "rigorous oversight".

He said that following classified briefings, "I do not think that there is any evidence that the law has been abused." But, he added that oversight is necessary because of the possibility of future abuse.

He also argued that five years "is too long". Hence, he offered an amendment to reduce the length of the extension to three years, and to provide for IC/IG review.

Sen. Charles Grassley (R-IA), the ranking Republican on the SJC, urged the SJC to approve a straight bill, without amendment, that merely extends the surveillance authority for five years.

Sen. Jon Kyl (R-AZ) also argued for a straight five year bill. He said that there already is "rigorous oversight", citing classified briefings to Congressional committees.

Sen. Jon Cornyn (R-TX) also expressed his support for a clean extension. He emphasized the minimization procedures followed by the government to protect the privacy of US citizens.

Sen. Richard Durbin (D-IL) discussed warrantless surveillance during the Bush administration. He boasted about his opposition to the 2008 Act. He said that it "does not include adequate safeguards to protect the Constitutional rights". In particularly, he said that the 2008 Act allows reverse targeting, or the targeting of someone outside of the US, who communicates with someone inside of the US, without a warrant. He called this "backdoor warrantless surveillance".

Sen. Lee (at right) offered an amendment [3 pages in PDF] to limit what he described as "back door searches targeting US citizens".

The amendment would have amended the 2008 Act to provide that "nothing in this section may be construed to permit -- (i) the intentional acquisition of the contents of communications of a particular United States person; or (ii) the searching of the contents of communications acquired under this section in an effort to find communications of a particular United States person". The amendment also provided an exception for certain emergencies.

"There should be meaningful protections", said Sen. Lee, to prevent searches that "circumvent Fourth Amendment values".

Sen. Feinstein spoke in opposition. She said that if it were enacted into law, "you could not search a database with a US name without a warrant". She added that the SIC rejected a similar amendment by a vote of 13-2.

Sen. Sheldon Whitehouse (D-RI) called the amendment "impracticable" and "a potentially fatal blow to this vital program".

Sen. Durbin cosponsored this amendment. It failed on a roll call vote of 3-15. The only three votes in favor were cast by Sen. Lee, Sen. Durbin, and Sen. Christopher Coons (D-DE). See, roll call number 1 in table below.

The SJC approved the bill, as amended by Sen. Leahy's amendment in the nature of a substitute. The vote was 10-8, with Republicans voting no, not because of the content of the bill, but because the Democratic majority uniformly blocked their non-germane amendments. See, roll call number 2 in table below.

Non Germane Amendments. Much of the mark up was devoted to debating non germane amendments, offered by Republicans. All but one pertained to terrorism, but not to the 2008 Act. All were rejected, or tabled, on straight party line votes.

Republicans explained their reasons. Sen. Harry Reid (D-NV) is running the Senate in a manner that prevents them from bringing to the Senate floor bills or amendments that would amend laws related to the war on terrorism. For example, several Republicans stated that Sen. Reid is employing the practice of "filling the tree" with his own amendments, and then "filing for cloture". The effect of this is that the Republicans are prevented from having their amendments considered.

For example, Sen. Kyl offered an amendment [6 pages in PDF] that would have amended existing criminal law regarding material support of terrorists. The amendment failed on a roll call vote of 8-10. It was a straight party line vote; the eight Republicans voted yes, and the ten Democrats voted no. Sen. Grassley offered an amendment [2 pages in PDF] to make certain terrorist crimes eligible for the death penalty. Sen. Feinstein made a motion to table the amendment, which motion passed on a roll call vote of 10-8. It was another straight party line vote.

Other non-germane amendments met the same fate. See, Sen. Cornyn amendment and amendment regarding legal authority for targeted killings. They were tabled by the same party line vote. (Sen. Kyl cast one vote of present.)

Sen. Grassley offered an amendment [2 pages in PDF] that would have required a DOJ/IG audits of criminal (Title III) wiretaps in 2009 and 2010. The 2008 Act pertains to FISA, or foreign intelligence surveillance. Title III refers to criminal surveillance. Also, this amendment was motivated by criticism of the Holder DOJ handling of the operation known as "Fast and Furious". It was tabled by the same 10-8 party line vote.

The roll call votes on the non-germane amendments are not shown in the table below.