With talks stalled on averting the "fiscal cliff" ahead of Tuesday's deadline, the Senate spent hours Thursday debating whether to renew an antiterrorism measure that has led to warrantless wiretaps of Americans.
The move to extend the nation's foreign surveillance law for another five years raises constitutional, ethical and procedural questions, including why Congress hasn't held a substantive debate on how much the federal government is eavesdropping on its citizens.
The Foreign Intelligence Surveillance Act (FISA) was established in 1978 and allows U.S. intelligence agencies to conduct physical and electronic surveillance of foreign terrorist suspects overseas. Americans can get swept up in an investigation if officials think they're in contact with a suspected terrorist.
The Senate has scheduled a Friday vote to renew the law, which was extended in 2008 after being updated and called the FISA Amendments Act.
The White House has pressed for a "clean" reauthorization without any amendments before the law expires on Tuesday.
The measure says intelligence officials can't intentionally target a specific American, nor intentionally acquire communications that are "known at the time of acquisition" to be wholly domestic.
But critics say the law leaves plenty of room for circumstances in which Americans' phone calls and emails — including those that are purely domestic in nature — can be caught up and reviewed without a warrant.
Critics say Americans may be unaware a friend or family member they have communicated with has been targeted by intelligence agents as a suspected terrorist. They add the law threatens constitutional privacy rights because intelligence officials can eavesdrop on them without a warrant.
"A right to private communications, free from the prying eyes and ears of the government, should be the rule, not the exception for American citizens on American soil, whom law enforcement has no reason to suspect of wrongdoing," said Sen. Chris Coons, Delaware Democrat.
Sen. Ron Wyden, Oregon Democrat, a leading opponent of extending FISA without significant changes, said intelligence agencies don't know how many American communications they have collected under FISA. And he said there is nothing in the law that prevents government officials from sifting through their piles of communications and deliberately searching for the phone calls or emails of a specific American, even if they don't have evidence the person is involved in nefarious activity.
"This loophole in the law allows government officials to make an end-run around traditional warrant requirements and conduct 'back-door searches' for Americans' communications," Mr. Wyden said.
But supporters of the measure say weakening of FISA would handcuff the intelligence community and compromise national security.
Sen. Saxby Chambliss of Georgia, the top Republican on the Senate Select Committee on Intelligence, says there already is "vigorous oversight" of intelligence-gathering techniques built into the law.
"I'm fully satisfied that the [FISA Amendments Act] is working exactly as intended and in a manner that protects our rights as Americans," Mr. Chambliss said.
The Senate on Thursday defeated three proposed substitutes to the law, including one by Sen. Rand Paul, Kentucky Republican, that called for extending Fourth Amendment guarantees of privacy to electronic communications.
"To discount or to dilute the Fourth Amendment would be to deny really what constitutes our very republic," he said.
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