Senate Leader Mitch McConnell this Tuesday pulled out his bag of parliamentary tricks to avoid a meaningful alternative to extending, until 2023, Section 702 of the Foreign Intelligence Surveillance Act (FISA). On January 11, Paul Ryan and Nancy Pelosi cooperated in the House of Representatives to beat back rising bipartisan opposition to unconstitutional domestic snooping that has been ineffective in preventing terrorism in the US.
Cloture limits total debate on the bill to 30 hours (often actually far less), with no more than one hour per senator. It also requires that proposed amendments be filed by certain deadlines. This will severely weaken the threat of Senators Paul and Wyden to filibuster passage of S.139, also requiring participation in the filibuster by numerous colleagues. Additionally, cloture bans consideration of amendments that have not been filed by specified times.
Using Section 702 authority and operating without warrants, the National Security Agency (NSA) has since at least 2008 scanned fiber optic lines entering the United States, copying, storing and searching them using a list of targets and other key words. Stored "hits" from these electronic transmissions may contain mere passing mention of such items. No warrants are obtained to scan and collect these electronic communications to or from US persons. Nor do analysts from NSA, FBI and elsewhere get a warrant to pull US persons' messages from the databases and search them for any reason, even criminal investigations, not just counterterrorism. During House debate, supporters of Section 702 advocated excepting 702 operations from Fourth Amendment requirements.
Declassified opinions from the FISA Court (FISC) document longstanding and serious NSA violation of FISC's guidelines, plus the Court's inability to trust the Agency's word. The Court found no way to enforce even the very lenient conditions it imposed. In 2008, then-Speaker Pelosi had ridiculed any suggestion that Section 702 would enable warrantless surveillance. But if any law should be rejected because of widespread abuses, this is it. Surprisingly, supporters of S.139 claimed during House debate that there had been no or minimal compliance problems, and those supporting an amendment to S.139 did not challenge this claim. Nor did they note that FISA allows emergency collection for three days while getting a warrant.
In an apparently deliberate loophole, Section 702 does not define what is "foreign" collection. Many communications between persons located in the US routinely are routed abroad to less crowded or cheaper fiber optic lines. Such communications re-entering the US therefore often are purely domestic, but could be labeled as "foreign" because they are returning from abroad. All such communications are searched using key words, and retained if there is a "hit." So, for instance, if your email to a nearby buddy discusses a terrorist "bomb" explosion in New York, it may be copied and dumped into a 702 database.
In another sleight of hand, NSA secretly redefined its use of terms to avoid their common and prior technical meaning. Collection now occurs only when an analyst retrieves an item from the database; this abets NSA in misleading the public about the extent of collection. NSA has repeatedly refused to tell even its Congressional Intelligence Committee overseers how many US persons or communications are in such databases, a tally or range that mostly should be available using 2001 technology.
Despite this sorry record, the Judiciary Committee's S. 139 bill extending Section 702 actually "legalizes" what FISC declared to be violations of the Constitution's Fourth Amendment banning unreasonable, warrantless search and seizure. It allows databased communications, whether foreign or domestic, to be searched by NSA and other agencies, for any purpose and without a warrant.
Past claims that pending terrorist attacks were blocked due to domestic surveillance have not withstood scrutiny.
Failure traces to NSA's "collect it all" approach that buries useful information. Even were a few claims of 702 prevention of domestic terrorism reliably verified, the responsibility to protect our freedom and republic is far more important. Almost inexplicably, US terrorist attacks by untargeted persons who were radicalized and trained online to create bombs occur regularly.
These online sites, not ordinary persons' electronic activities, should have blanket NSA coverage, but the agency repeatedly fails at this most basic task.