Sen. Ron Wyden is one of the law's leading critics. End is near for surveillance law

The Senate is racing toward a last-minute showdown over a controversial counterterrorism surveillance law.

While the chamber is preoccupied with the fast-approaching fiscal cliff, the clock is also running out on the so-called FISA Amendments Act — provisions of which are scheduled to sunset at the end of the year.


The law has its skeptics, many of whom fear that Americans are getting swept up in what is supposed to be a surveillance statute aimed at foreign targets. Its leading critic, Sen. Ron Wyden (D-Ore.), has tried to block Senate consideration of the measure as he seeks more information on how many U.S. citizens have been affected.

But the chamber now faces a daunting task in addressing Wyden’s objections while processing a slew of proposed amendments to the extension, which the House approved without change earlier this year.

“The authorities in FISA that expire at the end of the year have proven critical tools for collecting intelligence on terrorists, proliferators, cyber attackers among others,” Sen. Dianne Feinstein (D-Calif.), the leader of the Intelligence Committee, said in a statement to POLITICO. “Congress must, and I believe will, pass this critical extension before Dec. 31.”

Neither Feinstein nor Senate Majority Leader Harry Reid (D-Nev.), however, would comment on whether senators would have the opportunity to offer amendments as the chamber moves toward considering the bill.

The law, passed in 2008, amended the Foreign Intelligence Surveillance Act to help federal law enforcement and intelligence officials better track non-U.S. persons abroad, provided they get the green light from a special court. Some of those powers, backed strongly by the Obama administration, are set to expire at the end of December.

In the House, lawmakers passed a clean, five-year extension of those surveillance powers in September, in a move that won applause from the White House. The administration at the time issued a statement touting the expiring provisions — known as Title VII — for their effectiveness at preventing domestic terrorism.

In the Senate, however, the issue has proved far thornier.

Leading privacy hawks, including Wyden, have long maintained there’s a lack of information on whether U.S. citizens are being targeted through FISA. The senator has placed a hold on the bill as he seeks information from the federal authorities, who have told Wyden in the past that they can’t deliver that data. And Wyden said this week that he’ll maintain that hold unless the Senate allows a vote on his amendments to introduce new legal checks and transparency rules to the law.

“We’re having talks now with leadership, and I’ve made it clear I would be open to lifting my hold as long as we have a debate,” Wyden said.

“If you had a long-term extension” without due consideration on the floor, the senator explained, “it would mean the Congress would go nine years without a debate about FISA authorities.”

The chamber still could try to forge ahead without Wyden’s green light, if Reid finds the 60 votes necessary to overcome a filibuster and wants to run out the procedural clock.

But Wyden isn’t the only one harboring concerns: A number of lawmakers with objections to the extension as written have angled to upgrade its privacy protections in a coming floor debate.

The trouble, however, is that any Senate action other than clearing the House-passed bill would mean the two chambers will have to hash out a compromise — a daunting task on any bill, and especially this one, with so little time left in the year.

Sen. Patrick Leahy (D-Vt.), chairman of the Judiciary Committee, is among the members pushing to shorten the reauthorization to three years while adding new legal and reporting checks to it. He’s likely guaranteed at least a vote on his proposal, but only if the Senate turns to its own bill through regular order — not if Reid proceeds to call up the House version directly on the floor.

“Chairman Leahy continues to advocate for Senate consideration of the substitute amendment that was reported out of the Judiciary Committee with the support of Sen. Feinstein,” a Judiciary aide told POLITICO.

Wyden, meanwhile, is pushing an amendment to limit the ways in which law enforcement can tap data collected on foreign subjects for investigations related to U.S. citizens. It’s meant to limit the practice of “backdoor searches,” in the eyes of privacy hawks.

And Sens. Jeff Merkley (D-Ore.) and Mark Udall (D-Colo.) also have their own set of tweaks — and they’re pushing hard for at least some time to debate them. In total, Wyden said there are only a “handful of relevant amendments” that would take a “day and a half” for the chamber to process.

“Without sufficient time for debate, we won’t have the opportunity to discuss concerns we have with the law or ways we might address those concerns,” said Udall, who opposed Feinstein’s bill in the Intelligence Committee earlier in this year. The measure cleared the panel in May on a 13-2 vote, with Wyden also voting against it.

There might be one alternative: a short-term extension, which buys lawmakers time next year to have the debate they’re seeking. Wyden said he could support that approach, stressing he’s “not savoring letting FISA authorization lapse” but believes it needs a public airing.

Udall separately voiced a similar sentiment — echoing that a short-term deal could work “to ensure that we have time for a proper debate on the floor in 2013 on a longer-term measure.”

“But without assurances of such floor time, I know there are a number of senators — including myself — who would oppose a straight five-year reauthorization,” Udall said.

However, there’s still some concern among privacy hawks that the Senate could be running out the clock intentionally this year in order to skirt the need for a lengthy debate. The amendments “don’t have a fighting chance if you’re voting on them on the last day of Congress,” said Michelle Richardson, legislative counsel of the American Civil Liberties Union.

In the meantime, privacy groups are mobilizing in Washington. A broad collection of stakeholders — including the ACLU, the Electronic Frontier Foundation and the Center for Democracy and Technology — wrote each member of the Senate to request a full debate on the measure, not to mention amendments that narrow its scope and shed more light on whom the government is tracking and why.

And some top lawmakers agree.

“These are serious Constitutional and security issues and Senators should have an opportunity to consider and debate the merits of this program and proposed change,” Merkley told POLITICO in a statement. “The Senate has now had months to bring this program to the floor. It would be wrong if we get to the point where an extension of this vast surveillance program is jammed through without debate.”