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Posted by on Sep 11, 2012 in Law, Politics, Science & Technology | 7 comments

FISA vote illustrates Congressional sausage-making process

I saw the alert on Twitter:

Really? This close to November, the House of Representatives is going to vote to reauthorize the Foreign Intelligence Surveillance Act (FISA) Amendments Act (FAA) to 2017?

Fix FISA - ACLUFor those not following this issue intimately, the 2008 law, which sunsets on December 31, retroactively legalized Bush Administration warrantless wiretapping. The New York Times broke the story in December 2005, after sitting on it in fall 2004 because Bush et al asked them to do so. In August 2005, a Federal District Judge ruled that the wiretaps were unconstitutional.

A quick web search showed that the House Judiciary Committee moved the bill, H.R. 5949, out of committee back in June.

But what the House will vote on this week is not H.R. 5949, which would extend the FISA Amendments Act of 2008 for five years.


What they are voting on is H.RES.773, a resolution to “consider” two very different bills. This resolution conflates a bill authorizing a National Forest System land exchange in Minnesota (H.R. 5544) and the FISA reauthorization.

Here are the “rules” of debate on the FISA Act (emphasis added):

Upon the adoption of this resolution it shall be in order to consider in the House the bill (H.R. 5949) to extend the FISA Amendments Act of 2008 for five years. All points of order against consideration of the bill are waived. The amendment in the nature of a substitute recommended by the Committee on the Judiciary now printed in the bill shall be considered as adopted. The bill, as amended, shall be considered as read. All points of order against provisions in the bill, as amended, are waived. The previous question shall be considered as ordered on the bill, as amended, and on any amendment thereto to final passage without intervening motion except: (1) one hour of debate, with 40 minutes equally divided and controlled by the chair and ranking minority member of the Committee on the Judiciary and 20 minutes equally divided and controlled by the chair and ranking minority member of the Permanent Select Committee on Intelligence; and (2) one motion to recommit with or without instructions.

Yes, read that again. If the House passes this resolution — sweetened by a land deal touted as helping public schools — they are limiting debate on FISA to one hour. One. Hour.

And yes, this is a fairly standard work-around “[t]o avoid delays and to allow selectivity in the consideration of public measures.” The Rules Committee (eight Republicans, four Democrats) makes the rules.

In June, The Verge note:

[Bill] opponents cited privacy and transparency concerns. The National Security Agency has refused to disclose how many people it monitors under the act, arguing that revealing this information would itself violate privacy, and the Obama Administration has argued that opponents can’t sue to have it declared unconstitutional because agencies like the ACLU have no way of knowing who’s being surveilled.

And from Wired, also in June:

The FISA Amendments Act, which the Obama administration said was its top intelligence priority (.pdf), generally requires the Foreign Intelligence Surveillance Act Court to rubber-stamp terror-related electronic surveillance requests that ensnare Americans’ communications. The government does not have to identify the target or facility to be monitored. It can begin surveillance a week before making the request, and the surveillance can continue during the appeals process if, in a rare case, the secret FISA court rejects the surveillance application. The court’s rulings are not public.


An amendment by Rep. John Conyers (D-Michigan) to reauthorize until June 1, 2015, failed on a 12-12 vote for lack of a majority. An amendment proposed by Rep. Jerold Nadler (D-New York) to require the attorney general to provide a redacted version of FISA Court rulings related to the act failed 14-17.

“The public does not have an adequate understudying of any adverse impact this has had on the privacy of American citizens,” Conyers said. “Neither the act nor the bill provides adequate safeguards.” Rep. Dan Lungren (R-California) blasted back: “What evidence is there that it is being used to spy on Americans?”

Rep. Sheila Jackson-Lee (D-Texas) offered an amendment requiring the government to disclose how many times — or at least an “estimate” of times — that the act captured the communications of Americans without warrants. That amendment failed 11-20.


At the time, then-senator and presidential candidate Barack Obama voted for the measure, though he said the bill was flawed and that he would push to amend it if elected. Instead, Obama, as president, simply continued the Bush administration’s legal tactics aimed at crushing any judicial scrutiny of the wiretapping program, and his administration is now demanding that federal lawmakers extend the legislation for five years.

FISA as currently constructed for digital surveillance is a black hole, and both Republicans and Democrats are endorsing it. In 2008, it passed the Senate by a 69-28 vote (21 Ds voted yes; no Rs and one I voted no) and the House, 293-129 (128 Ds voted yes; 1 R voted no).

Nevertheless, I’m asking you to find and contact your Representative and ask them to just say NO to the Rules Committee on Wednesday. [Of course, some of us currently have no U.S. Representative. Thanks a lot Jay Inslee — although I know that one vote probably will not swing the result with 240 Republicans and 190 Democrats. And there are another four vacancies.]

Oregon Sen. Ron Wyden and Colorado Senator Mark Udall have been vocal opponents of the extension in the U.S. Senate.

“I am concerned, of course, that if no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act,” Wyden writes. “Then it is possible that this number could be quite large. Since all of the communications collected by the government under section 702 are collected without individual warrants, I believe that there should be clear rules prohibiting the government from searching through these communications in an effort to find the phone calls or emails of a particular American, unless the government has obtained a warrant or emergency authorization permitting surveillance of that American.”

In October, the U.S. Supreme Court will hear arguments from the ACLU that the current law is unconstitutional.

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