After years of tangling with Sen. Dianne Feinstein (D-Calif.), civil liberties activists seemed to have her onboard with their fight to curtail the vast warrantless surveillance program exposed by former NSA contractor Edward Snowden.
They were optimistic Tuesday when she headed into a major vote over whether to impose new restrictions on the government monitoring.
But after a spirited nail-biter of a floor fight, Feinstein broke with privacy advocates from the right and left to cast a crucial vote in favor of leaving the program largely unchanged for the next six years.
Feinstein’s retreat back to a hawkish posture on Section 702 of the Foreign Intelligence Surveillance Act (FISA) gave supporters of the status quo the vote they needed to quell a growing movement in the Senate for more privacy protections. She was one of 18 Democrats and one independent who caucuses with Democrats who voted to shut down consideration of major changes to the program.
Progressive activists are now accusing those lawmakers of betrayal. The friction among Democrats over the FISA program is sure to endure through the year as the party’s factions battle over the approach they need to take to win back power. Many of the Democrats who joined Feinstein in voting against consideration of substantial restrictions on the monitoring represent swing states, where voters are uneasy about warnings from law enforcement that new restrictions on the program will make Americans more vulnerable to terrorist attacks.
“With their votes today, these Democrats have ceded tremendous power to the executive branch to engage in mass and warrantless surveillance — a power that history has shown time and again is ripe for abuse,” read a statement from Demand Progress, a progressive advocacy group with 2 million members, posted on Twitter. “This expanded surveillance power is particularly troubling in the hands of the Trump administration.” The group posted a list of the senators’ names, and highlighted in yellow those who are up for reelection this year.
The dismay of Demand Progress was shared by some senators.
“A travesty that Senate tonite by 1 vote ended debate on deeply flawed #FISA Sec 702 surveillance bill,” Sen. Patrick Leahy (D-Vt.) posted on Twitter.
Opponents of the bill were seeking to curb “backdoor searches,” through which law enforcement scrapes databases for messages of Americans who may have had incidental contact with — or merely mentioned — foreigners who are on watch lists.
The surveillance authority granted under the program, according to some legal experts, can be invoked by investigators to access and read an American’s online communications, without a warrant, if they do something as benign as promote a climate change protest abroad or attend an academic conference on international affairs.
The backdoor searches can also be used to gather evidence without a warrant in pursuing criminal cases that are unrelated to terrorism.
The approach that passed the House last month and is now poised for final Senate approval this week includes a narrow new warrant requirement that applies only when records are being accessed well into a criminal investigation.
Senate Democrats were within reach of blocking the reauthorization after the many opponents of it in their caucus were joined by a handful of Republicans in the chamber in warning that the program is an example of government overreach.
Sen. Rand Paul (R-Ky.) said he opposes “government listening to your phone calls, reading your emails or reading your text messages without a warrant.” Sen. Mike Lee (R-Utah) warned that the warrant requirements in the measure poised for passage “are filled with loopholes that any biased government agent can exploit.”
Their arguments, though, ultimately lost out to those of the leadership on the Senate Intelligence Committee, which warned that strict new warrant requirements would dangerously hobble law enforcement. Those lawmakers heeded the guidance of the directors of the FBI, CIA, National Security Agency and the U.S. attorney general, who have steadfastly advised against restrictions they say would return law enforcement agencies to the pre-9/11 days when barriers to accessing information allowed terrorists to slip through the cracks.
“Section 702 stands among the most important of our intelligence programs,” said Committee Vice Chairman Mark Warner, a Democrat from Virginia who voted for the reauthorization. “Congress must not further delay consideration of a long term authorization.”
Feinstein is also a long-serving member of the committee, and she has said in the past that her support for the surveillance program is rooted in what she has learned in its confidential briefings about terrorist threats and how law enforcement uses such programs to confront them.
During debate on the measure Wednesday, Feinstein said, “I would like to see more reforms in this program, and perhaps that is something those of us on the Intelligence Committee can strive for. But I believe this is the best we are going to do at this time.”
Back in California, voters are skeptical of law enforcement arguments that it would be dangerous to add new warrant requirements to the program. Feinstein’s approval ratings have suffered during her time as one of the surveillance program’s biggest defenders.
A rival she faces in the upcoming primary, state Senate leader Kevin de León (D-Los Angeles), went on Twitter to highlight how her nascent support for more warrants faded Tuesday night. “Disturbing that several DC Dems voted to give Trump the unconstitutional power to spy on us,” he wrote.
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A previous version of this story said 19 Democrats voted against major reforms to the program. Eighteen were Democrats and one was an Independent who votes with Democrats.