Sen. Ron Wyden (D-Ore.) will seek to block passage of an intelligence bill that extends the government’s eavesdropping authorities because the intelligence community won’t say how many Americans are being monitored, he said Tuesday.
At issue is the Foreign Intelligence Surveillance Act, which was passed in 1978 in response to revelations of political wiretapping. The law was updated in 2008 in a way that essentially legalized President George W. Bush’s “warrantless wiretapping” program aimed at stopping terrorism plots. The intelligence bill, approved Monday by the Senate’s Select Committee on Intelligence, would extend the 2008 changes until 2015. Those changes greatly expanded the government’s surveillance authorities. The targets must be foreigners out of the country, but their conversations with Americans are fair game.
“Congress passed the FISA Amendments Act in 2008 in an effort to give the government new authorities to conduct surveillance of foreigners outside the United States,” Wyden said in a statement. “The bill contained an expiration date of December 2012, and the purpose of this expiration date was to force members of Congress to come back in a few years and examine whether these new authorities had been interpreted and implemented as intended,” Wyden wrote. “I believe that Congress has not yet adequately examined this issue, and that there are important questions that need to be answered before the FISA Amendments Act is given a long-term extension.”
After first opposing them, then-Sen. Obama voted for the 2008 FISA changes, which gave legal immunity to telecom companies that cooperated with Bush’s spying program. He said he became convinced the capabilities were needed to hunt for terrorists.
Wyden and Sen. Mark Udall (D-Col.), who serve on the intelligence committee, asked the director of national intelligence earlier this month how many Americans have had their communications monitored under the law. The DNI’s office responded in a letter that “it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority.”
Wyden also wants to know to what extent the government is tracking the location of Americans using data from their cellphones. Mobile devices are regularly telling their networks where they are, even when the use is not making a call, and that data is regularly used by law enforcement to track criminal suspects and fugitives. Whether intelligence agencies are doing that domestically is an open question.
At a Senate hearing July 26, Wyden, who serves on the intelligence committee, asked Matthew Olsen, NSA's general counsel and the nominee to direct the National Counterterrorism Center, whether government agencies “have the authority to use cell-site data to track the location of Americans inside the United States for intelligence purposes.”
Olsen replied, “There are certain circumstances where that authority may exist . . .” He did not elaborate.
In June, during a debate over reauthorization of related provisions in the Patriot Act, Wyden and Udall said they are concerned that the government is interpreting the law’s surveillance powers in a way that would shock most Americans if they knew about it.
“During a July 2011 committee hearing, the general counsel of the National Security Agency acknowledged that certain legal pleadings by the executive branch and court opinions from the Foreign Intelligence Surveillance Court regarding the Patriot Act are classified,” Wyden and Udall said in dissent included in the Senate committee report on the bill. “We have had the opportunity to review these pleadings and rulings, and we believe that most members of the American public would be very surprised to learn how federal surveillance law is being interpreted in secret.”
Wyden and Udall offered an amendment during last week’s committee mark-up of the intelligence bill that would have required the Justice Department’s Inspector General to review the implementation of the FISA Amendments Act in an attempt to estimate how many people inside the U.S. have had their private communication monitored by the government. The amendment failed by a voted of 7-8, Wyden said.
Wyden said he is placing a “hold” on the bill, a parliamentary maneuver that will make it much more difficult to pass.
“I regret that the amendment that Sen. Udall of Colorado and I offered was not adopted, but I obviously plan to keep trying to get more information about the effects of this law,” Wyden said. “I hope that I will find out that no law-abiding Americans, or at least very few, have had their communications reviewed by government agencies as a result of this law, but I believe that I have a responsibility to get concrete facts rather than just hope that this is not the case. And I believe that it would be not be responsible for the Senate to pass a multi-year extension of the FISA Amendments Act until I and others who have concerns have had our questions answered.”