WASHINGTON – A controversial measure that reauthorizes a warrantless surveillance program narrowly cleared a procedural hurdle in the Senate on Tuesday, despite a bipartisan push to delay and allow amendments to the bill.
Sens. Patrick Leahy, D-Vt., and Bernie Sanders, I-Vt., both voted against proceeding with the legislation, which reauthorizes a foreign intelligence surveillance program, raising concerns that the package does not do enough to protect the privacy of American citizens.
The 60-38 vote Tuesday, which did not fall on party lines, means the bill is on track for a final vote within days, and will likely reach President Donald Trump’s desk by the end of the week – when the program is set to expire.
The House passed the measure last week, but with bipartisan opposition, including from Rep. Peter Welch, D-Vt. He raised concerns that the program violates citizens’ Fourth Amendment rights against warrantless searches.
“We’ve had to struggle throughout our history with getting the balance right between protecting our constitutional rights and protecting our safety,” Welch said in an interview Wednesday.
The controversy over the reauthorization centered on Section 702 of the law, which allows warrantless gathering of emails, texts and other communications on foreigners outside of the United States. Communications to American citizens can be collected through the program.
At a press conference Tuesday, Leahy and other senators, including Sen. Elizabeth Warren, D-Mass., and Sen. Rand Paul, R-Ky., argued that the Senate should have an opportunity to amend the FISA reauthorization bill to establish restrictions that protect Americans’ privacy.
“There is one thing that would unite every single Vermonter and that’s a sense of privacy, that we have rights as Americans to be secure from our own government, to stop our own government from being able to spy on us,” Leahy said. “Well, 702 as was written allows our government to spy on us.”
Leahy proposed alternative FISA legislation with Sen. Mike Lee, R-Utah, in November, which would have required the government to get a warrant before reviewing Americans’ data collected in the program. The bill did not advance, nor did a similar measure proposed by Paul and Sen. Ron Wyden, D-Ore.
The bill lawmakers voted on this week makes some changes to the program, requiring warrants to access some information. However, in Leahy’s view, the adjustments are not sufficient.
Leahy called the bill a “fig leaf of reform.”
“Right now this bill pretends to protect Americans. It is probably as much of a threat to our privacy as anything I have seen here,” he said.
Sen. Steve Daines, R-Mont., said at the press conference that the Section 702 program is an “important tool” for surveillance, but also one that is “ripe for potential abuse.”
“We need strong oversight and reforms to prevent it from being misused,” Daines said.
Sen. Bernie Sanders, I-Vt., also voted against proceeding with the bill. Sanders said in a statement before the vote that it is important to “do everything we can” to protect the country from potential terrorist attacks.
“We can do that without living in an Orwellian world where the government and private corporations know every telephone call we make, every website we visit and every place we go,” he said.
But proponents of the legislation say the criticism is unfounded. Sen. John Cornyn, R-Texas, called the program “a critical tool in our national security toolbox” and defended the surveillance practices Wednesday.
“It is illegal to target Americans and any suggestion to the contrary is just simply wrong,” he said.
Despite the bipartisan opposition to proceeding with the bill, Senate leadership managed to get enough support to reach the necessary 60-vote threshold. A vote on final passage of the bill in the Senate is expected Thursday.
When the bill was before the House last week, Vermont’s sole congressman also opposed renewing FISA without reforms to the program.
Welch was among 183 Republicans and Democrats who voted in favor of an amendment that would have made significant changes to Section 702. House Democratic leadership voted against the amendment.
“It’s a genuinely difficult balance between privacy protections under the Constitution and security protections that are the responsibility of the government,” he said. “It’s a tough debate and people have to make their decision.”
