[Congressional Record: January 24, 2008 (Senate)]
[Page S225-S226]
FISA
Mr. REID. Madam President, as I indicated, we started this debate
again last evening. Both the Senate Intelligence and Judiciary
Committees have jurisdiction over this legislation. Senators
Rockefeller and Bond, Senators Leahy and Specter worked very hard on
their particular aspects of this legislation.
We, under the regular order, in a case of sequential referral--that
is what we have in this matter--the Intelligence Committee text is the
underlying bill, and the Judiciary Committee text is automatically
pending as a complete substitute.
Last night, Chairman Leahy, with the authorization of a majority of
the committee, sent a slightly modified version of the Judiciary
Committee amendment to the desk. We will have a vote on that amendment
sometime today. The Judiciary Committee made what I believe to be some
important improvements in this legislation, adding protections for the
privacy of law-abiding Americans.
This is a strong bill. I will support it. I encourage my colleagues
to do so as well.
In the event the full Judiciary Committee bill is not accepted by the
Senate, I hope we can adopt some of the individual improvements from
the Judiciary bill that is now in the form of an amendment.
[[Page S226]]
Several of my colleagues, many of whom serve on the committees of
jurisdiction; that is, both committees, plan to offer pieces of the
Judiciary Committee bill as separate amendments.
In addition to considering the procedures included in title I of the
bill, we will also debate the question of whether telephone companies
that allegedly facilitated President Bush's warrantless wiretapping
program should be granted retroactive immunity from civil lawsuits.
Senators Dodd and Feingold will seek to strike that immunity title.
They will seek to strike it in its entirety. I personally oppose
immunity and will support that amendment. But, of course, others
disagree. If this amendment is not adopted, there will be other
amendments to limit the immunity provisions in the Intelligence bill.
I hope there will not be extended time on these amendments. We can
work through this. Friday is tomorrow. We have to finish this
legislation, and we have to do it this week. It is an important piece
of legislation. I have requested a 30-day extension. That is not going
to be given. So everyone should understand, we have to go forward with
this legislation.
Senators Specter and Whitehouse have an amendment they plan to offer,
as do Senators Feinstein and Nelson of Florida.
As I have said before, if there are Senators who do not like these
amendments and think they should be subjected to 60-vote thresholds,
these Senators are going to have to engage in an old-fashioned
filibuster. We are not going to automatically have these 60-vote
margins. These amendments are by and large germane. They should be
adopted if a majority of the Senate supports them.
Finally, yesterday, as I have indicated, I sent a letter to the
President asking for a brief extension. I have heard from many sources
that is not going to be granted.
The Senate will work as quickly as we can, but I think it is going to
be very difficult for both Houses to negotiate and pass a final bill
prior to the February 1 expiration date. But that is what we have to
do, so we have no alternative.
Republicans have objected to my requests for a 30-day extension of
the act, as I have mentioned. This matter is too important for us to be
bogged down in procedural matters at this time.
I look forward to working with my colleagues on a bipartisan basis to
provide our intelligence professionals with the tools they need to
combat terrorism, while protecting the privacy of law-abiding American
citizens.
[...]
[Congressional Record: January 24, 2008 (Senate)]
[Page S227-S271]
FISA AMENDMENTS ACT OF 2007
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 2248, which the clerk will
report.
The legislative clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modify and streamline the
provisions of that Act, and for other purposes.
The ACTING PRESIDENT pro tempore. The Senator from West Virginia is
recognized.
Mr. ROCKEFELLER. Madam President, the Senate now returns to the
consideration of S. 2248, the FISA Amendments Act.
As I said in December when we debated the motion to proceed to this
bill, I believe this legislation is critical to our Nation's security.
That phrase is thrown around a lot--``our Nation's security.'' It does
have meaning. To protect America from the panoply of threats we face
around the world, we must know what our enemies are planning and what
they are doing. We get that information through our intelligence
agencies, and one of the most useful sources for them is communications
intelligence.
The Foreign Intelligence Surveillance Act, or FISA, gives the
Government the authority, with court approval, to collect
communications intelligence inside the United States. Unfortunately,
the law has not kept pace with the incredible advances in
telecommunications technology of the last 30 years.
As this debate proceeds over these coming days, it is important for
all Members to understand why FISA exists and why it is necessary for
us to update it. The Congress passed FISA to protect Americans inside
the United States from inappropriate eavesdropping by the Government.
The FISA statute created a system that allowed the Government to go to
a special court and show probable cause that someone inside the United
States was an agent of a foreign power. If it agreed, if the court
agreed, the court then issued an order allowing the Government
to collect the intelligence.
Over time, the flow of global communications changed. The nature of
these communications changed. The system of fiber optic cables carrying
international communications grew, and wireless technology began to
dominate our domestic system. This was a marked change from the
communications architecture that existed in 1978, when FISA was
started, when local
[[Page S228]]
calls were transmitted over a wire and international ones usually went
via satellite.
As technology changed and America became the hub for international
communication, our intelligence agencies were presented with collection
opportunities that were never envisioned--never even thought about in
1978. But because of the way that FISA was drafted, they were unable to
take advantage of the new opportunities to collect significant
intelligence inside the United States against targets located overseas.
After September 11, 2001, the President chose to deal with the
problem unilaterally and created a warrantless surveillance program
that relied on, to my mind, questionable legal justification. I think
that was a mistake. I believe the President should have sought, and
would have received from Congress, the necessary changes to FISA to
accommodate the international communications he wished and needed to
target.
The public disclosure of the warrantless program ultimately led the
President to seek approval from the FISA Court and then to seek
additional authority from the Congress, which is where we are.
Our first attempt to address this issue was the Protect America Act
passed last August. That legislation allowed our intelligence community
to undertake the collection needed to monitor terrorist communications,
but the PAA, as we shall call it, is flawed legislation that does not
achieve the balance between protecting security and preserving our
civil liberties, which is so essential. It provided an expanse of new
authority to collect intelligence inside the United States, with little
court involvement or oversight from the Congress.
But we had the foresight to include in the PAA--the Protect America
Act--a 6-month sunset. That 6-month period allowed us the time we
needed to craft a bill that does achieve this important balance:
security and civil liberties. It gives the intelligence community the
authority it needs to keep us safe, and it puts in place the safeguards
needed to protect America's liberties. That is the bill the Senate is
now considering; i.e., S. 2248.
This bill was reported to the Senate last October on a strong
bipartisan vote under Senator Bond and myself, Vice Chairman Bond and
myself, by a vote of 13 to 2. Vice Chairman Bond and I worked hard to
craft a bill that would garnish support from both sides of the aisle
and that would have the support of the administration, leaders of the
intelligence community and, most importantly, would achieve our twin
goals of protecting the security and privacy of Americans. I should say
at this point we went to great lengths to check all our bases in this
process. We didn't do this in a cocoon and we didn't do it in a
partisan way. We reached out to the experts, whether they were inside
the administration or outside the administration. We wanted to do it so
we could make this legislation as effective as possible.
But, as with any legislation, this bill is not perfect. I have
welcomed the input from others as we have moved forward. On this point,
I must particularly acknowledge the work of the Senate Judiciary
Committee. The Judiciary and Intelligence Committees shared
jurisdiction over FISA. The Judiciary Committee also happens to be led
by two individuals with considerable knowledge and experience with
these issues from the perspective of both committees. It may not be
known to all, but Senator Pat Leahy served as vice chairman of the
Intelligence Committee in the mid-1980s, and Senator Specter served as
chairman in the mid-1990s. I appreciate the time and thought they have
put into this legislation.
The Judiciary Committee considered the Intelligence Committee bill on
sequential referral and has reported a proposed amendment to our bill.
That amendment is now the pending amendment. The Intelligence Committee
bill and the Judiciary Committee amendment take a similar approach to
addressing the underlying problems with FISA--not a huge difference.
The Judiciary Committee included several provisions that I think
further improve the already robust protections for privacy contained in
S. 2248. We were enriched by working with them.
I intend to support amendments to incorporate many of these changes
into the underlying bill, which is the Intelligence Committee bill, and
even though I cannot support everything in the Judiciary Committee
substitute amendment, nevertheless, there is very good material there.
Before I discuss possible amendments, let me take a few minutes to
walk through the bill before us today. I apologize, but I think this is
necessary as we begin this debate on what is a highly complicated and
somewhat arcane subject.
In crafting this legislation, the Intelligence Committee set out to
accomplish four main goals.
First, we wanted to ensure that activities authorized by this bill
are only directed at persons outside the United States. The bill
requires the FISA Court to approve targeting procedures designed to
accurately make the determination of whether someone is outside the
United States. For individuals inside the United States, the existing
procedures under FISA continue to apply. Individual court orders, FISA
orders, are still required.
Secondly, our bill improves the protection of information from or
about a U.S. person. Unlike the Protect America Act, this bill provides
for court review of the so-called minimization procedures. These are
procedures used to shield information about Americans who may be
overheard or mentioned in the conversation of foreign targets.
Court review of these procedures is central to the protection
afforded under FISA. But the FISA Court's role was left out of the
Protect America Act.
Third, the bill includes a new protection for U.S. citizens outside
the United States. The Intelligence Committee rejects the proposition
that Americans lose their privacy rights because they travel or work
elsewhere in the world.
Under current law, the intelligence community can target U.S.
citizens outside the U.S. solely on the authority of the Attorney
General. Our bill requires an order of the FISA Court before an
American can be targeted, regardless of the American's location. This
is a concept that both committees endorsed, and it enjoys bipartisan
support. Director of National Intelligence Mike McConnell also endorsed
this in testimony before the Intelligence Committee. This is an area of
law, however, that requires careful attention to avoid, as the Director
described, ``unintended consequences.''
Both the Intelligence Committee and Judiciary Committee approaches
need further refinement. Therefore, I believe we have reached an
agreement on a bipartisan amendment that would reconcile the approaches
of the two committees and resolve the concerns of the administration.
Vice Chairman Bond and I will offer this modification as part of the
managers' amendment.
Finally, the Intelligence Committee bill adds significant new
oversight authority to collect inside the United States against foreign
targets. The new oversight will be conducted by all three branches of
Government.
The bill includes a series of annual reports to Congress on the
authorized collection, including instances of noncompliance; inspector
general reviews by the Justice Department and the Intelligence
Committee; and FISA Court review and approval of acquisition and
minimization procedures.
Beyond these steps to update FISA, the other major component of the
bill passed by the Intelligence Committee--and, unfortunately, not
included in the Judiciary Committee amendment--is liability relief for
companies that may have helped the Government collect critical
intelligence after the September 11 terrorist attacks.
I understand this is controversial. But everybody should know that
this is an issue the Intelligence Committee has considered very
carefully. We had a number of hearings on this subject. In reviewing
the record of correspondence from the administration to these
companies, I and most members of the committee became convinced that
companies acted in good faith. They relied on the legal conclusion of
the Nation's most senior law enforcement official, and they provided
assistance because they wanted to help stop terrorist attacks.
[[Page S229]]
The companies received letters, and I tried very hard to convince
Steve Hadley--Director McConnell very much approved of this--to make it
possible for every Member of the Senate to have those letters that the
companies received from the National Security Agency, so Members could
understand that this was not some kind of a game, that this wasn't
``wordsmithing.'' What these letters stated was that the companies'
assistance was ``required,'' that the requested assistance was based on
an order of the President, and that the Attorney General had certified
the legality of the order. And then the NSA Director, as I say,
required, compelled these companies--there were various uses of words,
but they were all very firm, leaving no wiggle room--to comply. And
they did. They did it because they were told to do so by the highest
authorities in the land. They did so because--I believe it is possible
to say this--there are a lot of big corporations that are very
patriotic.
Private companies should be allowed to rely on this assertion from
these high officials. They should be allowed to do that. Our
longstanding legal structure is specifically designed not to force a
private company to second guess the Government in these circumstances.
I know many colleagues on the other side believe that the President
acted with his constitutional authority when he established this
program. I believe the legal foundation for this program was
questionable at best and was part of an overarching legal framework
that sought to dramatically alter the balance of power between the
branches of power in favor of the executive. But that is a dispute that
needs to be settled between the President, the Congress, and the
courts. We should not allow private companies who simply wanted to come
to the aid of their country, or were required or compelled to do so, to
be caught in the crossfire of this disagreement.
A bipartisan consensus of the Intelligence Committee supported the
narrowly drawn liability relief included in the bill. We did not
include the open-ended immunity sought by the administration that would
have prevented suits against the Government, or Government officials
who knowingly broke the law.
The committee's liability relief provision applies only to companies
who may have participated in the warrantless surveillance program after
September 11, 2001, until January 2007, when the whole matter was
placed under FISA Court authority. That is why there can be no question
about prospective; it is retrospective.
The question of whether the President had the authority to launch the
warrantless surveillance program leads me to the issue of exclusivity.
This is whether FISA is the exclusive means by which the President may
authorize the surveillance of Americans for foreign intelligence
purposes.
The President's justification for creating the warrantless
surveillance program relied in part on a claim that the legislation
authorizing the use of military force after 9/11 somehow gave him the
authority to ignore the FISA statute. I don't buy this argument.
The President also claims he has the authority, as Commander in
Chief, to approve surveillance even when statutes of this coequal
branch of Government would prohibit him specifically from so doing. No
act of Congress by itself can finally resolve the debate between
Presidential and congressional authority.
We can make it clear, however, which statutes authorize the use of
electronic surveillance. This is not academic. It is important to
clarify this point for the future. When the Nation next faces a
military emergency, we don't want Congress to hesitate while it debates
whether its authorization to use force will have unintended
consequences, such as authorizing the President to spy on Americans.
To avoid this situation, both the Intelligence and Judiciary
Committees included provisions intended to clarify which statutes
constitute the exclusive means for conducting electronic surveillance.
I have worked with Senator Feinstein, who serves on both committees,
and Senator Leahy on an amendment that will bridge the differences
between the two bills and will settle this issue in a way that I think
clarifies the statute.
Another important provision is the sunset. This bill provides a
significant new authority, and it is essential--because it is a
significant new authority in what is still emerging in the collection
of intelligence--that we carefully monitor the implementation of this
authority and revisit it to ensure it is working as we now envision.
The Intelligence Committee bill includes a 6-year sunset. The
Judiciary Committee has a 4-year sunset. I will join with Senator
Cardin and others in support of an amendment to incorporate the
Judiciary Committee 4-year sunset into the underlying bill. Four years
will ensure that the decision on permanency is made during the next
Presidential term.
As we proceed with this debate, every Member should have the same two
goals we had in the Intelligence Committee: providing our intelligence
professionals with the tools they need to keep us safe, and
establishing a system with sufficient safeguards to ensure that
Americans' civil liberties are protected over the long term. I think
the Intelligence Committee bill does that, and with a few changes it
will be even stronger.
I yield the floor.
The PRESIDING OFFICER (Mr. Nelson from Nebraska). The Senator from
Missouri is recognized.
Mr. BOND. Mr. President, again, we rise with a renewed consideration
of the Foreign Intelligence Surveillance Amendments Act, or the FISA
Amendments Act, of 2008.
I thank the chairman for his very powerful and thoughtful statement
on behalf of the original bill presented by the Senate Intelligence
Committee, with the managers' amendments that we will incorporate.
Simply put, this legislation gives the Intelligence Community the
tools it needs right now, and over the next 6 years, to protect our
country. The Protect America Act, passed by Congress in August of this
past year, allowed the intelligence community to close critical
intelligence gaps. I disagree that the Protect America Act was flawed.
It was a temporary measure. It didn't deal with all of the subjects we
needed to deal with, including protections for carriers alleged to
participate. But it did not cut back on any of the basic protections in
FISA, and it served to provide us the means in this 6-month period to
collect vitally needed intelligence on foreign subjects who might be
planning attacks either on our troops abroad or in the United States.
But this vital legislation expires in 1 week, and we must not let those
gaps reopen.
We initially began debate on the FISA Amendments Act in December of
last year. As was their right, several Members of this body decided a
filibuster was a better course for our national security. So we
listened for hours to unfounded allegations about the terrorist
surveillance program and to mischaracterizations about the Intelligence
Committee's FISA bill. Ultimately, this bill was pulled from the floor
and further debate was postponed until now.
Early this week, we returned to the Senate. Now, given that the
Protect America Act expires in a few short days, one would have thought
that FISA would be the first up on the agenda. I don't want to minimize
the importance of Indian health legislation, or any other important
legislation that the Senate should consider, but let's be clear: If the
intelligence community cannot protect this country from terrorist
attacks, then it doesn't matter much what else we debate or pass. We
have to protect the country first and protect our troops and other
personnel abroad in order to have a country, and we must improve upon
other legislation. But here we are, only a few days shy of the PAA's
expiration, and the drumbeat is there already by some stating we need
more time to consider the Intelligence Committee bill; we should just
do a short extension of the PAA. That is a bad idea. Some have called
it flawed.
I believe it is important, but I believe the Intelligence Committee
bill goes much further and does what we absolutely must do to make sure
not only that we have the ability to collect on foreign terrorists who
are planning attacks here or abroad but also to protect the
constitutional rights, the privacy rights of Americans.
The Intelligence Committee spent over 9 months looking at FISA
modernization. We have held hearings. We have gone out to NSA and
watched its
[[Page S230]]
implementation. We have reviewed the terrorist surveillance program. We
have looked at the implementation of the PAA. We have gone to review
all the documents upon which the TSP--the terrorist surveillance
program--was based, and we have come with a solid bipartisan bill. We
are ready to act, and the intelligence community is waiting for us to
act, and so are our allies abroad who have relied very heavily and
continue to rely upon our collection ability to help keep their
countries safe. Every day, we hear about attacks that have been
disrupted by allies across the world. Without being specific in any
areas, I think one can generally assume that our collections have
helped our allies protect themselves against attacks in their
countries.
There is no reason to extend the PAA, much as I liked it. We have a
bill that is responsible, and it is more effective. It addresses
concerns about the PAA. It gives our intelligence operators the tools
they need, and it ensures that our private parties will continue to
cooperate with the Government. I am pleased the majority leader and
minority leader have come to agreement on this fact.
As the majority leader stated appropriately 2 days ago when he
supported moving to this legislation immediately--and I thank the
majority leader for that--we need to act now, and I hope we will be
able to pass a solid FISA bill in short order. Some hope today. I join
with that hope. I am not an incurable optimist, but we can always hope.
We have before us the Senate Intelligence Committee bill, S. 2248,
which was passed out of the committee by a 13-to-2 vote. We need
bipartisan legislation. This is bipartisan. Nothing is ever going to be
unanimous in an area that is this technical and this important, but we
passed it 13 to 2. This bipartisan bill will give the intelligence
community the authority and flexibility it needs to track foreign
terrorists quickly and efficiently.
In November, the Judiciary Committee reported a substitute on a
straight party-line vote. The substitute added numerous provisions that
were not fully vetted with the intelligence community. Regrettably, it
ignores significant concerns expressed by working-level officials in
the Department of Justice and the intelligence community--the very
operators who know how this complex, technical, and overwhelmingly
supervised and reviewed system works. The Judiciary Committee also
ignored the concerns of its own minority members. As a result, this
totally partisan substitute changed the Intelligence Committee bill in
ways that will gut--gut--our intelligence surveillance capabilities.
This substitute amendment is what we will be considering first this
morning.
Last night, at the very last minute, the chairman of the Judiciary
Committee filed a new substitute that modified the original Judiciary
Committee substitute. Regrettably, the Judiciary Committee did not
share this with my staff, and we only received the strikeout version,
one that shows the changes between the substitute that has been at the
desk for 2 months now and this last-minute switch. We received it from
the ranking member's staff late last night.
After a quick review, my staff and I can tell my colleagues that the
core problems remain, and although the DNI and the Department of
Justice also have had little time to digest it, they have told us that
their primary concerns remain. They cannot support this new substitute.
It does not get the job done.
Conversely, the Intelligence Committee's bipartisan bill was drafted
after months and months of studying the collection program. Members of
our committee went out to the National Security Agency--we refer to it
as NSA--to see how the program worked and to inspect the layers of
protection built into their collection methodologies to make sure the
agency stayed within the bounds of law.
Over several months, Chairman Rockefeller and I put together an
agreement with our committee on both sides which adds more protections
to the constitutional rights and the privacy rights of American
citizens. I can be very proud and I think the Members of this body can
be very proud that we have extended and improved protections for
American citizens.
We worked with the intelligence community representatives and the
Department of Justice lawyers to make sure our legislation would work
and would not impede vital collection--more protection but keep the
system working. I think that is where we ought to be, and that is where
we are in the underlying Intelligence Committee bill.
Most importantly, we fashioned a legislative solution that both
Democrats and Republicans could accept. I thank our Intelligence
Committee members and staffs for their efforts, long and hard work, to
come up with this bipartisan bill. Our bill has been publicly available
for scrutiny for over 3 months now, and it remains the most solid
bipartisan way to move forward.
Two provisions of the bill, however, were added to the initial markup
without the input of the intelligence community. As a result, both
provisions in the bill could cause unintended operational consequences,
and they needed to be fixed. Chairman Rockefeller, Senator Whitehouse,
Senator Wyden, and I worked together with the community to come up with
solutions to these problems, and I hope we can have broad support for a
managers' amendment to remedy that situation. One of these provisions
provided important new protections, but it had to be reworked to
protect Americans abroad in a manner which was consistent with our
structure of laws and those of other countries.
The DNI has told us that with the managers' amendment fixing these
two problems, the community will support our bill. That is important
for Chairman Rockefeller and me because we want to pass a bill that
works and will become law. It would do no good to pass a bill that some
may feel good about or may pass for good politics but does not work for
those who protect us in all of our intelligence agencies. So the DNI's
support of this bill, in particular, is critical. Consequently, with
these fixes applied, we will also have a bill the President will sign
into law.
My intention as a floor manager--and I believe Chairman Rockefeller
stands shoulder to shoulder with me in this--is to pass a bill that the
DNI supports and that the President will sign. I believe we have that
right now with the fixes to be applied.
If we attempt to change key painstakingly constructive provisions or
to add bad provisions, however, we could hinder the intelligence
community's ability to do its job and jeopardize the DNI's support for
this bill and the chances of it becoming law. With the expiration of
the PAA in a few days, I believe this is not the path we should take in
the Senate. Anyone who has read FISA knows that it is very technical
and each word matters. So it is imperative we do not add provisions
without the input of the intelligence community, and we need to listen
to their concerns. They are experts. They operate an incredibly
technical and complicated system that is overlaid with legislation
carefully drafted to recognize their capabilities, their limitations,
and, most importantly, protections for U.S. persons and American
citizens. We saw firsthand how difficult it is to deal with amendments
that are not cleared with the intelligence community to make sure they
work.
Let me just say that the Department of Justice and the Office of the
Director of National Intelligence have been very helpful throughout the
process, but we should not mistake their willingness to provide
technical support to avoid operational problems with support for
certain provisions. So while the DNI may have provided some technical
support, there are several amendments that I believe, if added to our
bill, could cause problems for the intelligence community, lose the
support of the DNI and thus our ability to get this bill signed by the
President.
First, I expect there to be some efforts to undo or modify the civil
liberty provision in the Intelligence Committee's bill. Chairman
Rockefeller has already delivered a very strong and persuasive argument
for this liability protection. It has been said once very well by the
chairman, but this being the Senate, it needs to be said again, and I
will be happy to do so.
This provision is essential to foreign targeting authorities. Without
retroactive and prospective civil liability protection, it becomes much
less likely that our private sector partners will be
[[Page S231]]
able or willing to assist us in the future. That means the intelligence
community would have to spend great time compelling telecommunications
providers in each instance who are reluctant for fears of civil
lawsuits to assist, to work with us to track terrorists.
The committee studied this issue, and we reached a broad bipartisan
consensus that civil liability protection is for providers and not
immunity for Government officials. That was the appropriate action. I
repeat, the civil liability provision in this bill is for private
parties who may have assisted the Government. There is no immunity or
protection for the Government itself.
Additionally, the concept of ``substitution,'' where the Government
is substituted for the private party as a defendant in court, is not an
acceptable alternative. That would allow litigation to continue,
including discovery against the providers, thereby risking the
disclosure of our sensitive intelligence sources and methods.
At his confirmation hearing, I asked General Hayden, the nominee for
the head of the CIA, who had previously been the head of NSA, how badly
the disclosures of our intelligence collection methods had hurt us in
the battle to get the intelligence we need. General Hayden told us
ruefully that we are now applying the Darwinian theory to terrorists:
We are only capturing the dumb ones.
With substitution, we would not only be risking disclosure of sources
and methods, we would also, however, embitter private parties against
us whose cooperation becomes public, thus endangering their personnel,
their facilities, and their business reputation here and abroad, with
grave consequences to those who had participated, as Chairman
Rockefeller said, in compliance with a Government directive from the
highest officials in the land, and we would put taxpayers' dollars at
risk for trial lawyers' coffers. We would also incur great expense in
defending those lawsuits. The orders were issued--and I will discuss
more about this later--under the President's article II constitutional
power and responsibility to conduct foreign affairs.
Let me say a few words about an idea that came up shortly before the
debate in the summer. Some are suggesting that before civil liability
protection is granted, the FISA Court, the Foreign Intelligence
Surveillance Court--and I will refer to it as the FISC--the FISC or
other court must determine that those providers who allegedly assisted
the Government with the terrorist surveillance program acted in good
faith and pursuant to an objectively reasonable belief that the
directives were lawful.
As reflected in the Intelligence Committee report accompanying S.
2248, the committee has already made this determination. We have
studied this issue extensively, and we concluded that civil liability
protection was the best and only solution. Why would Congress want to
turn over its collective judgment to a single judge and pass a law
stating that judge's ruling would be the final word on this issue? We
don't even know what that ruling would be. This does not make much
sense to me. We already went through this problem with the judicial
variance on the FISC before, remember? The President's program was put
under FISA, and then changes within the court, different judges, led to
a problem with the intelligence gaps that spurred the need for short-
term legislation last August. Congress should not roll the dice on this
issue, close our eyes, cross our fingers and say: Whatever judge
happens to be on call the day this issue comes up, well, that will be
the final word on this question. Remember, the FISC's function is to
approve applications for electronic surveillance. It is not set up for
nor has established competence in this area. It makes no sense.
The providers need civil liability protection, and they deserve it
now, not the prospect of further proving their good faith before yet
another court. The longer this litigation drags on, the more likely it
is that our intelligence sources and methods will be disclosed and the
communications providers' businesses will suffer and they, their
facilities, and their personnel will be at risk. It also becomes more
likely and understandable that these companies, on which both the law
enforcement and the Intelligence Committee rely for critical and timely
information, could refuse to assist us in times of our need because of
valid business reasons about the potential for further lawsuits. And I
am not just talking about terrorist threats, I am talking about a
provider refusing to give information voluntarily to help find a
kidnapped child or help to find those who sexually entrap children on
the Internet or proliferation or what have you. Should we be willing to
take this risk? I don't think so.
Now, let me move to some of the issues the Judiciary Committee
modified in our bill to the detriment of the overall product. Let me be
clear, the new substitute that was filed last night is the same old
wolf in different clothing. It does not alleviate any of these
concerns. The Intelligence Committee bill included, as part of our
compromise, a reiteration of the exclusive means provision in the
current law, which states that FISA is the ``exclusive means'' in
statute for conducting electronic surveillance. No statute that
Congress ever passes can trump the President's article II powers.
Numerous courts, and even the FISC itself, have reviewed this and
stated the powers given to the President under the Constitution cannot
be extinguished by a law passed by Congress. Even though we have passed
a law on exclusive means, we have also passed a law called the
Authorization for the Use of Military Force, which has to be read in
conjunction with FISA.
Clearly, even those who believe a statute can somehow impinge on the
article II constitutional powers of the President must recognize the
powers of the President, if they were lessened by FISA, were
reinvigorated by AUMF. Congress is making a statement in ``exclusive
means'' that we want to see surveillance conducted under FISA. We have
seen many attempts to broaden this language, but this is an area that
calls for extreme caution. Exclusivity is more than a policy statement,
it has a real operational component.
As we now know from our own experience in drafting this provision,
the slightest word change can impede vital intelligence collection. I
believe the Intelligence Committee's version addresses Members' views
about exclusivity and further strengthens that statement, while at the
same time preserving the ability to gather intelligence. Conversely,
the majority's Judiciary Committee substitute now requires an act of
Congress after the next attack, potentially before our intelligence
professionals can do what they need to protect us. There is no
exception if the attack comes from al-Qaida or another terrorist
organization.
Now, it doesn't take a rocket scientist to figure out that as we
stand here today, we have no idea where or when the next attack may
come. Are we, each of us, willing to take the risk that Congress may
not be able to act; that for whatever reason Members cannot make it
back to Washington, DC, we cannot get a bill passed and signed by the
President, which would leave our intelligence community without the
authorities it needs to counter the threat or protect this country? I,
for one, don't want to be explaining that back home to my constituents
in Missouri. It is another nice sounding idea politically to some that
makes no sense operationally and shuts down some potential intelligence
collection.
Moreover, the Judiciary Committee's bill, and the latest substitute,
would allow the FISC to assess compliance with the minimization
procedures used for the acquisition of foreign intelligence information
from individuals outside the United States. Minimization procedures are
designed to protect U.S. identities if communications of U.S. persons
are accidentally swept up in a surveillance operation or if a U.S.
person is party to a conversation with a target--a lawful target--but
that U.S. person is not of intelligence interest him or herself. We
minimize, suppress, don't even record the name of that U.S. person. If
there is no intelligence value, then that person is not at risk. To be
at risk, that person would have to be receiving or instituting a call
to a lawful target. That means that if somebody is calling a family
member abroad, a business activity abroad, then there is no reason to
fear that even those conversations would be picked up. But if others
are picked up that are of no intelligence value, they would be
minimized or suppressed.
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Giving the court the ability, supposedly, or the responsibility to
assess compliance may sound like a good idea in the abstract, but when
we talk about foreign targeting, we are outside the FISC's expertise.
The FISC was created solely to issue orders for domestic surveillance
on a particular target. Congress, in 1978, recognized the court's
expertise over domestic matters but specifically left foreign
surveillance activities to the executive branch and the intelligence
community and the oversight of the intelligence committees. By now
requiring judicial review of minimization procedures for a foreign
target, we would take a huge step back from a system that worked well
for almost 30 years. So there is a red line, and I need to draw it.
But that line is already drawn. As a practical matter, when the FISC
assesses compliance with minimization procedures, it would be second-
guessing trained analysts' decisions about which foreign terrorist to
track and how to do that. The FISC knows what to look for when it
issues a warrant to tap someone's phone in Virginia, but when it comes
to analyzing intelligence leads and deciding which foreign terrorists
or spies should be surveilled, the court is simply not competent to
make these judgments. This is what assessing compliance would have them
do. The court knows this. Let me point to the court's own words from
its published opinion on December 11, over a month ago, in the case In
re: Motion for Release of Court Records. There the FISC judges say they
are:
Not expected or designed to become experts in foreign
intelligence activities, and do not make substantive
judgments on the propriety or need for a particular
surveillance. Even if a typical FISA judge had more expertise
in national security matters than a typical district court
judge, that expertise would still not equal that of the
Executive Branch, which is constitutionally entrusted with
protecting the national security.
That is a quote from the court which some want to give this
responsibility which they say they do not have. We need to heed the
words of the FISC and not require them to make judgments they
themselves believe are better left to the executive branch.
Let me repeat for my colleagues to hear clearly. The FISC, the FISA
Court itself, is virtually saying: Congress, don't do this. We are not
the right ones to make this determination. We should be wary to
disregard their own assessment of their own competency in this vital
intelligence collection area.
Additionally, throughout this debate, we must remember we are talking
about foreign terrorists operating in foreign countries intent on
harming us and our interests. Senator Leahy's new substitute slightly
modifies a requirement from the original substitute that the Department
of Justice inspector general conduct a comprehensive review of the
President's Terrorist Surveillance Program. That modification, however,
does not address the underlying concerns with his provision. This
review simply is not necessary and is beyond the expertise of the DOJ
inspector general.
The Intelligence Committee has had numerous briefings and hearings on
the TSP. We have spoken at length with lawyers from the Department of
Justice and with the operators, and we have read document after
document on which this program was based. We have spent more time on
FISA than I ever dreamed possible or that I ever wanted to do. Yet I
have not heard one convincing argument as to why this review must be
conducted. Again, it may look good politically, it may make good sound
bites, but we have reviewed this program to death over the past year.
Yet another review is redundant, unnecessary, and because of that is
wasteful.
Finally, as a part of my agreement with Chairman Rockefeller, we
included a 6-year sunset in the bill. Personally, I think sunsets are a
bad idea when we are talking about national security. The Attorney
General, General Mukasey, has stated repeatedly, ``There are no sunsets
in our enemies' fatwas.'' I understand what he is getting at. The
terrorists' desire to get after us is not limited. We should give our
intelligence operators something they can hang their hat on when they
retool their systems and move forward with intelligence collection.
If there is a debate about sunsets, I am considering saying we ought
to get rid of even the 6-year sunset. I agreed to 6 years to get this
bill moving, but shorter than that I don't believe is acceptable. If we
provide stricter, shorter term sunsets, that would tell the private
entities and our intelligence communities that Congress's view on civil
liability protection is only temporary and the power for our
intelligence collection is only temporary. This new statute gives our
operators confidence in the new statute. It gives our collaborating
allies abroad confidence we will be there.
Let me make one thing clear. Our job in the Senate Intelligence
Committee, and the same on the House side, is to review intelligence
collection methods. We review it on a semiannual or even monthly basis.
If we find there is a problem with this bill, we should not have to
wait until the sunset comes to change it. We see a problem, we need to
fix it. We don't need to wait for 6 years or 4 years to fix it. If
there is a problem, let's start fixing it as soon as we find it.
A sunset does not prevent us from passing new legislation when we see
fit. No sunset at all would put even greater pressure on us to make
sure it is working properly. If in 1 year the bill was shown to be
inadequate, we should act immediately to fix it, not wait until the
sunset. So I don't like sunsets, but the 6 years was a compromise with
the chairman and other members of the committee to produce this bill.
The Judiciary Committee, in this new substitute, seeks to further
shorten the time frame to 4 years. Our intelligence collectors, our
troops on the battlefield, the private parties who depend on this
authorization need certainty, not authorities that change depending on
what year it is. A 4-year sunset would not give them the certainty they
need.
In conclusion, our intelligence collectors, our troops who are in
harm's way, need this legislation, and our country needs this
legislation. But let me talk about the troops. In May, when I visited
Iraq, I talked directly with the commander of our Joint Special
Operations Command, who told me the limitations under the old law,
shutting down of the collection that occurred because of the new
technology, so adequately described by the chairman, prevented him from
collecting key information he needed to protect our troops in the
theater, on the battlefield. My son happened to be one who was there at
the time. That got my attention. It had the attention of the troops and
the commanders. The commander told us he could kill or capture top al-
Qaida leaders, but he was not able to collect signals intelligence on
them. Does that make sense? No.
The bottom line in this story of FISA is terrorists were able to use
technology and our own outdated laws to stay a step ahead of us. We
can't afford to give them that step. The Intelligence Committee's bill
gives our intelligence operators and law enforcement officials the
tools they need to conduct surveillance on foreign terrorists and
foreign countries planning to conduct attacks inside the United States
against our troops and against our allies. It is the balance we need to
protect our civil liberties without handcuffing our intelligence
professionals.
I hope we can do the right thing--pass this bill, with the perfecting
managers' amendment but without any additional changes that will
compromise its functionality and prevent it from becoming law. We need
a bill both Democrats and Republicans support, the DNI supports, that
is good for the intelligence community, and that the President will
sign into law.
That means we need to dispense with the Judiciary substitute that is
immediately before us and proceed with consideration of amendments to
the bipartisan Intelligence Committee bill. I look forward to making
this happen.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that following
my remarks, the Senator from Florida, Mr. Nelson, be recognized for his
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I strongly support Senator Leahy in his
effort to replace the Senate Intelligence Committee bill with the
version passed by the Judiciary Committee. I am a member of both of
these
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committees. As a member of both committees, I have been deeply involved
in the process of having looked at those two products.
Having been involved in helping shape them, I urge my colleagues to
support the Judiciary Committee version of this legislation. Indeed, I
had hoped very much that the Senate would take up that bill to begin
with rather than the flawed Intelligence Committee bill.
In December, I along with 13 other Senators, urged the majority
leader to make the Judiciary Committee bill the base bill on the Senate
floor. Unfortunately, our request was denied. So it is very
disappointing that we are now forced to fight an uphill battle of
offering the Judiciary bill as an amendment.
I would like to lay out the reasons the Senate should support the
Judiciary Committee bill rather than the Intelligence Committee bill.
One obvious reason is the Judiciary Committee bill, unlike the
Intelligence Committee bill, does not contain unjustified retroactive
immunity for companies alleged to have participated in an illegal
wiretapping program.
I do not want to spend a lot of time on this today because there will
be an opportunity to debate this issue as the Senate's consideration of
this legislation moves forward. But I will say that having spent the
last year and a half studying what happened at the NSA from 2001 to
2006, I strongly oppose immunity.
Under current law, telecom companies already get immunity as long as
they follow certain requirements that are clearly spelled out in the
law. I see no reason for Congress to change the rules this late in the
game.
Today, I would like to focus on the other significant parts of these
bills, the part contained in title I of each bill that contains
sweeping new changes to the FISA law for years to come. Let me start
off by pointing out that there are a number of similarities between
title I of the Intelligence Committee bill and title I of the Judiciary
Committee bill. Their basic structure is the same.
Title I of both bills authorize the Government to conduct
surveillance of individuals reasonably believed to be overseas without
court approval for individualized warrants. Both bills authorize the
Government to develop and implement procedures to govern that type of
surveillance and provide the procedures to the FISA Court for review
after they have gone into effect.
Now, let's be clear. These are extraordinary powers that both bills
give to the executive branch. And there is no difference between these
two bills in terms of the intelligence they permit the Government to
acquire. No difference between the bills as regards to the effort to go
after those who may be trying to do us harm in this respect. Rather,
the differences between these two bills comes in the form of critically
important checks and balances on those powers.
The Judiciary bill contains a number of important changes to improve
court oversight of these broad new executive branch authorities and to
protect the privacy of law-abiding Americans--the privacy of law-
abiding Americans. The Intelligence Committee bill, on the other hand,
leaves it up to the executive branch to police itself, an approach that
has all too often proven to be a bad idea throughout American history.
I would say particularly under this administration.
Let me state as clearly as I can the differences between these two
bills have nothing--nothing--to do with our ability to combat
terrorism. They have everything to do with ensuring that the executive
branch follows the rule of law and does not unnecessarily listen in on
the private communications of Americans who are doing absolutely
nothing wrong.
This debate is about whether the court should have an independent
oversight role and what protections should apply to the communications
of Americans that somehow get swept up in these broad new surveillance
powers. If you believe the courts should have a meaningful oversight
role with regard to Government surveillance, then you should support
the Judiciary bill.
If you believe that Congress should safeguard the communications of
Americans at home that could be swept up in a broad new surveillance
program that is supposed to be focused on foreigners overseas, then you
should support the Judiciary bill. It is as simple as that.
That said, the Judiciary Committee bill is not perfect. More still
needs to be done to protect the privacy of Americans. That is why it
should be an easy decision to support the Judiciary Committee bill as
our starting point on the floor of the Senate as we work on this
legislation.
Let me also remind my colleagues that the process by which the
Judiciary Committee considered, drafted, and amended and reported out
its bill was an open one, allowing outside experts and the public at
large the opportunity to review and comment. With regard to legislation
so directly connected to the constitutional rights of Americans, the
result of this open process should be accorded great weight, especially
in light of the Judiciary Committee's unique role and expertise in
protecting those rights.
I also point out that several of the administration's criticisms of
the Judiciary Committee bill have been based on technical drafting
concerns. But in the version that Chairman Leahy has brought to the
Senate floor, he has made the changes necessary to address those
technical concerns. So I hope we do not hear any arguments in this
floor debate about these issues that have already been addressed.
Exactly what are the differences between these two bills? First, the
Judiciary bill gives the secret FISA Court more authority to operate as
an independent check to the executive branch. For example, one
provision in the Judiciary bill fixes an enormous problem with the
Intelligence Committee bill; that is, the complete lack of incentives
for the Government to target people overseas rather than to target
people in the United States.
The Judiciary bill solves this problem by giving the FISA Court the
discretion to limit the use of information concerning Americans when
that information is obtained through procedures that the FISA Court
ultimately finds are not--are not--reasonably designed to target
persons overseas.
Another provision of the Judiciary bill ensures that the FISA Court
has the authority to oversee compliance with what are called
minimization procedures. Minimization procedures have been held up as
the primary protection in the Intelligence Committee bill for the
privacy of Americans whose communications get swept up in this new
surveillance authority.
Now, I do not think current minimization procedures are strong enough
to do the job. But to the extent that minimization can help protect
Americans' privacy, its implementation surely needs to be overseen by
the court. So that means giving the court the authority to review
whether the Government is complying with the minimization rules and to
ask for the information it needs to make that assessment.
Now, without this provision from the Judiciary bill, the Government's
dissemination and use of information on innocent law-abiding Americans
will occur without any checks and balances whatsoever, no checks and
balances at all.
Once again, ``trust us'' will have to do. Now, I believe in this
case, as in so many others, ``trust us'' is not enough. The Judiciary
bill offers other types of oversight, as well. For one thing, it
requires relevant inspectors general to conduct a complete review of
the President's illegal wiretapping program, which, frankly, is long
overdue.
It improves congressional access to FISA Court orders. The
Intelligence Committee bill required the Congress to be provided with
orders, decisions, and opinions of the FISA Court--that includes
significant interpretations of the law--within 45 days after they are
issued.
Now, that is good as far as it goes. But the Judiciary Committee bill
adds that Congress should be provided with the pleadings, the pleadings
filed with the court associated with the opinions that contain
significant interpretations of law.
At times, the court's opinions merely reference and approve arguments
made in the Government's pleadings. In that case, the pleadings may be
critical to understanding the reasoning behind any particular decision.
It is not enough just to have the cursory court opinion.
It also requires that significant interpretations of law not
previously provided to Congress over the past 5 years
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be provided. Congress needs to have the full story of how the law has
been interpreted in the past in order to make the right decisions on
what changes in the law should be made in the future.
The Judiciary bill also does a better job of protecting Americans
from widespread warrantless wiretapping. First, it provides real
protection against what is called reverse targeting. It ensures that if
the Government is wiretapping a foreigner overseas in order to collect
the communications of the American with whom that foreign target is
communicating, it gets a court order on the American. Specifically, the
Judiciary Committee bill says the Government needs an individualized
court order when a significant purpose of its surveillance is, in fact,
listening to an American at home.
The Director of National Intelligence himself said reverse targeting
violates the fourth amendment. All this provision that I am raising
does is simply codify that principle. The administration continues to
oppose this provision.
I have a simple question: Why? Why is it opposed to a provision that
prohibits a practice that its own Director of National Intelligence
says is unconstitutional?
The Judiciary Committee bill also prohibits something called bulk
collection. Now, that is this sweeping up of all communications between
the United States and overseas. The DNI said in public testimony that
this type of massive bulk collection would be--would be--permitted by
the Protect America Act that is currently in effect. But he has also
said that what the Government is seeking to do with these authorities
is something very different.
It is, he said:
Surgical. A telephone number is surgical. So, if you know
that number, you can select it out.
So if the DNI has said he does not need broader authorities, there
should be no objection to this modest provision which, again, simply
holds the DNI to his word.
The prohibition against bulk collection ensures that the Government
has some--some--foreign intelligence interest in the communications
that it is collecting and not just vacuuming up every last
communication between Americans and their friends and business
colleagues overseas.
Targets do not need to be known or named individuals; they can be
phone numbers, which is how the DNI has described how the Government
collects. And the Government does not have to identify or explain its
interest in the targets to the FISA Court. It merely has to make a
general certification that individual targets exist.
As was already alluded to on the Senate floor, the Judiciary
Committee bill also has a sunset of 4 years rather than 6 years,
ensuring that Congress will reevaluate this law at least once before
the end of the next Presidential term. And, critically, it contains a
strong statement that Congress intends for FISA to be the exclusive
means by which foreign intelligence surveillance is conducted. It also
closes purported statutory loopholes that the Justice Department relied
on to make its torture arguments that the congressional authorization
for the use of force in Afghanistan authorized the President's illegal
wiretapping program. The Judiciary bill makes clear, once and for all,
that the President must follow the law.
For all of these reasons, the Senate should support the Judiciary
Committee's product. Let me repeat what I said at the outset. The
differences between these two bills have nothing to do with our ability
to combat terrorism. Nothing. They have everything to do with ensuring
that the executive branch adheres to the rule of law and does not
necessarily listen in on the private communications of Americans. The
fact that the administration is so strongly resisting these commonsense
protections really says a lot. It ought to give pause to those who are
considering opposing it.
It is time for Congress to stop being an enabler when it comes to
this administration's indifference to the rule of law and, instead,
start being a protector of the rights and freedoms of our citizens.
I urge my colleagues to support the Judiciary Committee bill.
I yield the floor.
The PRESIDING OFFICER. The senior Senator from Florida.
Mr. NELSON of Florida. Mr. President, I, as the Senator from
Wisconsin, my colleague, have had difficulty as we sit side by side in
the Intelligence Committee with the issue of immunity.
First of all, I want to say that I think the intelligence community,
headed by Admiral McConnell, is doing an excellent job. They are
correcting colossal mistakes. We had a colossal mistake on intelligence
on September 11. We had another colossal mistake of intelligence
leading up to the Iraq war. And in order for us to protect ourselves,
we, in fact, have to have information in order to disrupt the plans to
attack us, to harm the Nation.
So I give credit to Admiral McConnell, the Director of National
Intelligence. I give credit to General Hayden, the head of the CIA, to
Steve Kappes, the Deputy Director of the CIA. I think they are doing a
terrific job.
I compliment the chairman and the vice chairman of our committee, and
they are within earshot, and I want them to hear how much this Senator
appreciates their cooperation between each other to work in a
bipartisan fashion. They are talking right now, so I am not sure they
are hearing me. I want them to know my personal appreciation for how
they have taken a bipartisan approach. It is important that we thank
people for the work they are doing.
This legislation is an attempt to be crafted so that these folks can
better perform their job but at the same time protecting the precious
civil liberties Americans have that make us unique from any other
society on planet Earth. We want to protect those rights of privacy. I
believe there are protections in this bill that will extend to
Americans, regardless of their physical location. One of the things we
amended in the Intelligence Committee was that it doesn't make any
difference, if an American is here in the United States or if they are
abroad, if you are going after an American as a target, they ought to
have to go to the FISA Court to get a court order called a warrant,
regardless of where that American is, if they are a target of
surveillance. That is important. It is important to support our
constitutional protections of privacy and that the Government can't
come and intrude in our lives. I think we have started off in the right
direction.
As the Senator from Wisconsin has said, I have a problem with the
blanket immunity as well. I agree with Admiral McConnell. At the end of
the day, we have to have the cooperation of the 10 communications
companies, and they should not have the threat of a spurious lawsuit
hanging over their heads, thinking they are going to be dragged out in
public court over time as a means of trying to extract a pound of flesh
from them. There should be every opportunity and encouragement for the
telecommunications companies to cooperate with the U.S. Government
intelligence community for the protection of the country. The bill
before us does, in fact, give that immunity for any of the surveillance
that did not have a warrant from the FISA Court from the period of
September 11, 2001, to January 17, 2007.
The problem I have with that is, I am not sure the telecommunications
companies were attending to their knitting, as to whether they were
getting legal orders from the United States Government, not in the
first year after September 11, not in the second year, perhaps not even
in the third year after the attack on New York City and the Pentagon
and the attempt on other facilities in Washington. I am talking about
this went on for a fourth year and a fifth year. I am not sure that, in
fact, they had the legal basis to say that the Government, in fact, was
complying with the law. Of course, I make that judgment, and my
judgment is based on something I can't say here on the Senate floor,
because it is not only highly classified; it is highly compartmented. I
have read the documents. I have a problem with that.
At the end of the day, if it means we have to pass the bill and it
has immunity in it, I am going to vote for the bill, because it is much
more important that we go ahead and have a procedure set out by which
we can try to protect ourselves from the bad guys and at the same time
protect the civil rights, the right of privacy of our citizens. That is
contained within the committee bill, and that is the way I voted in
committee. I voted against the immunity,
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but that amendment only got three votes. When it came to passage of the
final bill, I voted for it, because that is in the interest of the
country. If that is what I am confronted with here, that is the way I
am going to vote and support the chairman and vice chairman of our
committee.
Maybe it doesn't have to be as stark as Senator Feingold has said,
that it is either immunity or no immunity. Maybe what the issue
ultimately ought to be is somewhere in between. That is the Feinstein-
Nelson amendment that will be offered later in which it will put a
review of the telecommunications carriers' actions squarely under the
jurisdiction of the special Federal court set up to handle these top-
secret matters called the FISA Court. The court would review all
aspects of the telecommunications carriers' involvement and make a
decision on immunity based on three criteria. No. 1, if the court
decided that the telecommunications carrier did not provide the
assistance as alleged, then, of course, the court would dismiss the
lawsuit against the company. No. 2, if the assistance was provided, the
court then would determine whether the documentation sent by the U.S.
Government to the companies met the requirements of the law and was
adequate. This law that would have to be met states that a
telecommunications carrier needs a court order or a written
certification from the Attorney General that no court order is
required. It further has to state that all statutory requirements have
been met. So then this FISA Court, in other words, would, in fact,
judge that. If the conditions of the statute had been met, then the
companies would be shielded from the lawsuit and the lawsuit would be
dismissed.
Or the third criteria the court would look at: If the special Federal
court, the FISA Court, found there was no certification given to the
telecommunications company, then the court would examine whether the
company acted in good faith and with an objectively reasonable belief
that it was legal. If the court determined that, then the
immunity would be provided.
That seems to be a way in which the companies would be protected, and
at the same time we can get to this issue of this third year, fourth
year, and fifth year that the United States Government is saying this
is legal without a court order, when, in fact, it seems to me that the
CEOs of those companies and the general counsels of those companies
ought to have been jumping up and down saying: Wait a minute. We want
additional information. The amendment to be offered by the Senator from
California and me creates a series of three requirements that must be
met in order for the telecommunications companies to receive immunity.
It is going to preserve the rights of private citizens to make their
case in front of a judge without jeopardizing these highly sensitive
kinds of not only top-secret but compartmented material that need to be
classified for the protection of the country.
Practically speaking, what is going to happen? We can't pass anything
around here unless you get 60 votes. That is a huge threshold. As this
comes before the Senate, I doubt the Feingold amendment is going to get
60 votes to cut off debate. I doubt the Feinstein amendment is going to
get 60 votes. That brings us right back to the Intelligence Committee
bill which is before us right now, in which case, on final passage, I
am certainly going to vote for that. But there is another opportunity
to address this specific issue. It is unlikely that the House of
Representatives is going to pass this legislation with the immunity for
the companies. Therefore, there will be a huge difference between the
Senate bill and the House bill, as the clock continues to tick down
toward the deadline in which agreement is going to have to be reached.
It seems to me the Feinstein-Nelson approach is a reasonable compromise
at that point.
I hope in time we are going to be able to pass this, that we will
pass it before the deadline which, to my knowledge, is in a week or so,
maybe a week and a half. The majority leader says he is going to keep
us in all weekend in order to get this passed. If I were he, I would do
the same. It is so critically important to our country that we pass
this legislation.
So on we go. Let the legislative process work itself out. Hopefully
we will get this thing passed.
I yield the floor.
The PRESIDING OFFICER (Mr. Brown). The senior Senator from Texas is
recognized.
Mr. BOND. Mr. President, may I ask the distinguished Senator from
Texas to yield for a unanimous consent request and then she will be
recognized after that.
Mrs. HUTCHISON. Yes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. Would the distinguished vice chairman be willing to
yield for a parliamentary matter?
Mr. BOND. Please.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the time
until 2 p.m. today be for debate prior to the vote in relation to the
Judiciary Committee amendment, as modified, with no amendment in order
to the amendment prior to the vote, with all time equally divided and
controlled between Senators Leahy and Bond or their designees, with the
30 minutes prior to the vote divided as provided above, with Senator
Leahy controlling the final 15 minutes and the vote will be at 2.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Missouri.
Mr. BOND. Mr. President, since we have had two speakers on the
majority side, I ask unanimous consent that Senator Hutchison and then
Senator Brownback be recognized on our side.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. BOND. I thank the Chair.
The PRESIDING OFFICER. The senior Senator from Texas is recognized.
Mrs. HUTCHISON. Thank you, Mr. President.
First, Mr. President, let me say, while the distinguished chairman
and ranking member of the Intelligence Committee are both on the floor,
that I believe the Intelligence Committee has done a fine job on this
very important legislation, the Foreign Intelligence Surveillance
Amendments Act, that will modernize and allow our law enforcement
officials to have the tools they need to protect our country.
The Intelligence Committee voted the bill out on a bipartisan basis.
It was certainly debated and balanced within the committee. I think
this Senate should support the Intelligence Committee and all the work
they have done to prepare this very important legislation. So to
Senator Rockefeller and Senator Bond, I say thank you for doing a great
job.
I do rise today to support this bill. It is essential that we do so
to protect our country. I was proud to join my colleagues last August
in passing the Protect America Act. It will expire in 8 days--in 8
days. The majority leader has said we are going to pass this
legislation this week out of the Senate. That is a good thing. The
House needs a week to look at it and determine if they will pass it. I
hope they will pass the same legislation that is before us from the
Intelligence Committee and send it to the President without amendment.
Our enemies are not going to expire in 8 days. Al-Qaida, we know,
uses cell phones and wireless Internet networks and countless other
technologies that were not in place when the original FISA passed 30
years ago. Thirty years ago, we did not have cell phones. Thirty years
ago, you would go to a court and say: We want to tap the phone line of
this number. Today, a cell phone can be thrown away before you can go
to get a court order.
So in the act we passed last year, we determined that you could get a
court order to intercept the communications between suspected
terrorists and you can go to the person rather than to a phone number,
which would be unusable by the time you could get a court order. So
that is one way we have begun to upgrade the technology to match the
threat. Because our enemy is very technologically capable. We must be
able to meet that with law enforcement. Delays could mean the
difference between life and death.
Unless we take action, this protection of our ability to intercept
potential plots against our country will go out of existence. We
cannot, in good conscience, let that happen.
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Let's talk about the litigation aspects because that is going to be
the first amendment we vote on. The first amendment we vote on is going
to be out of the Judiciary Committee. There will be other amendments, I
know, that have already been discussed on the floor regarding
litigation against telecom companies.
After 9/11, the Federal Government requested that America's telecom
companies share proprietary information to help prevent future
terrorist attacks. After the existence of the national security program
was illegally leaked 2 years ago, America's telecom companies began to
get hit with dozens of class action lawsuits that could expose them to
catastrophic liabilities.
Originally, the telecom companies had nothing to fear from those
lawsuits because they had evidence that what they did was at the
request of our law enforcement officials. But due to the sensitive
nature of the Government's request of these companies, the law
enforcement officials barred the telecom companies from the release of
certain documents that they needed for their trials. So we have created
a situation in which companies have cooperated with law enforcement to
keep our country safe, and then, when the lawsuits arose, they were not
allowed to defend themselves. Now, some of my colleagues say: Well,
that is tough. They should have known better.
We are talking about the security of our country. The people who are
in the business of telecommunications were asked to be patriotic
Americans. And they said yes. So if we do not give them protection for
these actions, as well as those going forward, we are going to put our
businesses in an untenable situation. Either they can help law
enforcement, be sued and hampered in their legal defense because they
are not able to introduce certain types of evidence because of security
reasons, or they can say no to law enforcement and put our country in
jeopardy.
Now, I will tell you that I have talked to the CEO of one of our
major telecommunications companies. He has said: Senator, I am going to
do what is right for America. That is my first responsibility as a
citizen of this country. But, Senator, I don't think I should be put in
jeopardy for my shareholders and my consumers while being a patriotic
American.
The Senate must act responsibly. We must be able to go to a company
and say: help our country. Because in the past a terrorist could
communicate between two countries overseas, and we would have the right
to intercept those messages. I wish I could say we have no enemies
inside our country who would communicate with a terrorist outside our
country, but we all know that is not the case. We all know there are
people in our country today plotting to kill innocent Americans. We
know because plots have been uncovered. And we know because that is
what happened on 9/11. There were people inside our country who were
aiding and abetting, living in our country, and planning to kill
innocent Americans.
So we must have the capability to give protection to a
telecommunications company that would cooperate with our Federal law
enforcement officials to intercept messages between al-Qaida in
Pakistan or Afghanistan or anywhere in the world communicating with a
terrorist sympathizer in our own country. It is our responsibility to
do this for the safety and security of Americans.
We must pass this bill. We must pass it in the form that the
Intelligence Committee did on a bipartisan basis. We must respect the
work that has been done by those who have heard hours and hours and
hours of testimony and seen classified information about the threats to
our country. We must do our part, along with the President, with the
Members of the House of Representatives, and with our law enforcement
officials to ensure that no stone is left unturned to uncover a plot
against innocent Americans.
If that is not the duty of the U.S. Senate, Mr. President, I ask you,
what is? That is our responsibility. That is why we were elected: to
protect our country. I hope this body, of which I am so proud to be a
Member, will do the right thing and extend this act and give our law
enforcement the tools they need to do the job we are asking them to do
to protect America.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The senior Senator from Kansas is recognized.
Mr. BROWNBACK. Thank you very much, Mr. President.
I join my colleagues, particularly my colleague from Texas and my
colleague from Missouri, in supporting this bill and in opposition to
the Leahy amendment.
My colleague from Texas identified a number of the issues that are in
the amendment. I serve on the Judiciary Committee. It is a great
committee. Senator Leahy does an excellent job leading the committee.
But on this particular issue it is my belief, as a Judiciary Committee
member, that we should recede to what the Intelligence Committee has
put forward on a bipartisan basis and move forward with this bipartisan
bill we have rather than going with, essentially, the substitute that
the Judiciary Committee came up with, which was put forward on a
partisan basis.
My colleague from Texas noted we have 9 days until this legislation
expires. If we go with the Leahy substitute--as much as I respect
Senator Leahy--the President is going to veto this bill and we are
going to be in a nonfunctional position for a period of time while we
get things put back together. There is no reason to do that. We have a
bipartisan bill.
The Intelligence Committee bill passed with only two dissenting
votes. The Judiciary Committee substitute, in essence, that is being
put forward--it has been modified and changed, but, in essence, it is
what came forward from the Judiciary Committee--came out on a strictly
partisan party-line basis.
Why wouldn't we go with the bipartisan bill that passed, I believe,
13 to 2 rather than go with the partisan bill that will be vetoed and
then we will just be back here? We are not going to have the votes for
a veto override. We would then go without this needed law provision so
we can provide for the security of the country, as well as protect the
civil liberties and rights of individuals within America.
I want to note in particular on this issue of telecommunications
companies and the information they provide, I think we need to provide
some level of immunity for companies to participate and work with the
Federal Government on information that the Federal Government has
legitimately requested.
In case people think, ``Well, OK, you are just giving a pass to the
telecommunications companies,'' I want to read what the requirements
are within the Intelligence Committee bill toward the
telecommunications companies. The telecommunications carriers face a
series of threats and lawsuits presently over their complying with what
the Federal Government required. But the Senate Intelligence Committee
immunity provisions do not just simply dismiss the cases outright.
Instead, the bill sets forth a process for the Attorney General to
submit a certification to the court that the telecom carriers either,
one, did not provide the Government the alleged assistance in the first
place, or, two, provided assistance pursuant to a valid request,
directive, or order indicating that the activity was authorized by the
President and determined to be lawful. The court would then separately
review the Attorney General's certification for an abuse of discretion.
This multilevel certification and review process will ensure an
underlying assessment by the Government and the courts of the genesis
of the carriers' role, if any.
The immunity provisions would not apply to the Government or
Government officials. Cases against the Government regarding the
alleged programs would continue. And the provisions would apply only to
civil and not criminal cases.
All in all, I think the Intelligence Committee bill strikes the right
balance between intelligence gathering and protections for civil
liberties.
My point in bringing this out is that this is not some blanket waiver
toward telecommunications companies. It goes through a multilevel court
and administrative review procedure that has to pass through both in
order for the telecommunications company to be able to get this
immunity from liability exposure. It is not just the Attorney General;
it is also the court that is involved with this as well.
I would hope my colleagues who have concerns about civil liberties
would
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look at that and say: Well, this is going to be reviewed in both
places. This should be sufficient to require them--the
telecommunications companies--to participate in this program, and to
give them the immunity from liability, if they do this according to the
law as determined by both the Attorney General and as determined by the
court.
That seems to me to be a good level and a good balance of our
intelligence needs, which are significant, and our civil liberties
guarantees and requirements, which are required--that we guarantee
civil liberties for the individual and that I want to see protected.
But at the same time I want to see our citizens protected as well. And
we have to be able to have some access to information of these
communications--with intelligence, with terrorist organizations,
individuals--that may be taking place.
All in all, I think the Intelligence Committee has done an excellent
job of striking that balance between providing for our security needs
and guaranteeing civil liberties of the individual. It has provided a
multilayered process for this immunity to be able to be granted by
different entities within the Government. It has done so in a balanced
fashion. It has done so in a bipartisan fashion. I don't know why, for
the life of me, we would want to go with something on a partisan basis
that is not going to get through the process, when we need the bill now
and we have a good bill put forward by the Intelligence Committee.
So as a member of the Judiciary Committee, I would urge us to support
the Intelligence Committee and not support the Leahy substitute. As
much respect as I have for the chairman, I do not think that is the way
for us to go in bringing this bill forward to closure for the good of
the country.
I yield the floor.
The PRESIDING OFFICER. The assistant majority leader is recognized.
Mr. DURBIN. Mr. President, I will support the Judiciary Committee
substitute to the FISA Amendments Act.
As a member of the committee, I wish to commend Chairman Leahy for
his leadership. I think we have struck the right balance to give the
Government the power they need to keep us safe but to protect our
privacy, which we cherish so much as Americans.
I wish to commend the majority leader, Harry Reid, for bringing the
FISA Amendments Act to the floor as one of our first items of business
this year. I wish to thank my colleague and friend from the Senate
Intelligence Committee, Senator Rockefeller. Though we may disagree on
some aspects of this bill, he has been a real leader on an issue of
great complexity.
Last August, Congress responded to the administration's request to
approve foreign surveillance legislation on an expedited basis.
Remember, we didn't come to this issue because the administration felt
they needed to deal us into the picture. We came to this issue because
the New York Times finally published an article and told us about this
warrantless surveillance that was going on all across America for
years, surveillance that was not approved by Congress and was clearly
not allowed by law but continued by this administration with impunity
until they were caught with their hands in the cookie jar by the New
York Times. Then they came to Congress and said: Well, why don't you
write a law. Can we help you write a law?
After 9/11, I can remember Senator Rockefeller, Senator Leahy,
Senator Specter, and so many others who rose to the occasion and said:
We will come together on a bipartisan basis to keep our country safe.
We lost 3,000 innocent people. We don't want that to ever happen again.
We passed the PATRIOT Act. It wasn't perfect, but it was bipartisan. It
had a sunset built into it. We tried to give this Government the tools
to keep America safe. There wasn't a lot of grandstanding and
speechifying. We did our job.
Then what happened? The Bush administration decided, in so many
different aspects of this war on terrorism, to deal Congress and the
American people out of the picture from that point forward. We heard
rumors about secret programs, and a handful of Members were briefed, I
guess; I wasn't one of them. Then, it wasn't until the New York Times
told the whole story that we were kind of drawn into this situation,
where we are trying to write a law to approve a course of conduct which
the administration was undertaking, at least to some degree, without
even consulting or conferring with Congress in its constitutional
capacity.
The Senate Intelligence Committee and the Senate Judiciary Committee
have held a lot of hearings. They have debated how to write this law
and voted on a lot of amendments. We are now facing the reality that
the Protect America Act, which was passed a short time ago, will expire
next Friday, February 1.
Under any circumstances, it would be difficult for the Senate to pass
a bill of this complexity, reconcile our differences with the House,
and get it all wrapped up in a week. But the President has made it
clear he is not going to sign this bill unless it includes an amnesty
for telephone companies that cooperated with the administration's
warrantless surveillance program. This is a difficult, controversial
issue many Members feel very strongly about. I am one of them. The
President insists that an amnesty provision for telephone companies be
included, and I think that is going to make it impossible for us to
meet the February 1 deadline.
Senator Reid, the majority leader, has asked for a 30-day extension
of the Protect America Act. Let's continue the current law for 30 days.
Let's try to work out our differences. Let's do this in a responsible
way. Senator McConnell on the Republican side objected--objected to
carrying on the current law for 30 days while we tried to work out our
differences. That objection speaks volumes. Even though he opposed the
Protect America Act, the majority leader I think was acting in good
faith and taking the sensible course of action: Let's try to work these
things out and not punish anybody in the process. The current law would
stay in effect for another 30 days. The Republican Senate leadership,
Mitch McConnell, said no.
Well, that is unfortunate. The spokesperson for the White House said
on Tuesday:
The Protect America Act expires in just 10 days, yet after
nearly 6 months of delay, Congress still has not taken the
necessary action to keep our Nation safe. For the sake of our
national security, Congress must act now.
So said the White House 2 days ago.
I can't follow this logic. On the one hand, the White House claims we
face grave national security threats if this program expires, and on
the other hand, when Senator Reid tries to extend the program for 30
days, the Republican leadership objects. I am sorry, but that doesn't
follow.
It is worth recalling what brought us to this point. It is difficult
to believe it has been over 6 years since the terrorists struck our
country on 9/11. I will never forget that terrible day, and most
Americans will not either. And we will never forget what happened
afterwards when Congress came together and tried to respond and make
our country safe. Sadly, today Osama bin Laden is still on the loose,
and al-Qaida is still around and may be growing in size.
I wish the administration had continued the spirit of bipartisanship
of the PATRIOT Act. They would have had the full support of Congress
and the American people. We showed that with the passage of the PATRIOT
Act. But even as we were debating that important law, the
administration was secretly implementing torture and surveillance
policies totally inconsistent with the values of our Nation. They
didn't ask Congress to approve the warrantless wiretapping of innocent
Americans or torture techniques such as waterboarding. Instead, they
based their policies on the extreme view of some in the administration
that the President, as Commander in Chief, was not bound by the law.
They discarded the Geneva Conventions after decades of America saying
that was a significant underpinning of our relationship with the
civilized world. They rejected it. They called it obsolete, the Geneva
Conventions. They opened Guantanamo, which has become an international
embarrassment. Former Secretary of State Colin Powell has joined so
many others in saying: Close this embarrassment. Yet they continue.
The Justice Department's infamous torture memo narrowly redefined
torture as limited only to pain equivalent to organ failure or death.
Senator John
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McCain, a man who was a prisoner of war during Vietnam for years and
years, spoke out and led a bipartisan fight to establish standards when
it comes to the treatment of prisoners. I was happy to join him on a
bill that had more than 90 votes, a strong bipartisan sentiment, a bill
which sadly was watered down by a signing statement from this
President, and I am afraid--though we may never know--I am afraid it
has been ignored at many levels by this administration.
We still fight the Taliban and al-Qaida in Afghanistan, and while we
are doing it, the administration has launched a misleading propaganda
campaign leading perhaps to the greatest foreign policy blunder in
American history: the war in Iraq.
It is worth noting that in a new report issued this week, the Center
for Public Integrity concluded:
President George W. Bush and seven of his administration's
top officials, including Vice President Cheney, National
Security Adviser Condoleezza Rice, and Defense Secretary
Rumsfeld, made at least 935 false statements in the two years
following September 11, 2001, about the national security
threat posed by Saddam Hussein's Iraq. An exhaustive
examination of the record shows that the statements were part
of an orchestrated campaign that effectively galvanized
public opinion and in the process led the Nation to war under
decidedly false pretenses.
Is there any more grievous sin in a democracy than for leaders at the
highest level to mislead the people of a Democratic Nation into a war
with such tragic consequences? Almost 4,000 of our best and bravest--
innocent, hard-working, dedicated, and patriotic soldiers--have given
their lives. Countless thousands have been injured because we were
misled into a war by this administration.
The administration brooked no dissent from their misleading campaign
for war or their misguided counterterrorism policies. If anyone raised
an objection, they were branded as soft on terrorism. Who can forget
John Ashcroft, our former Attorney General, blaming critics of the
administration for spreading ``phantoms of lost liberty'' and warning
``your tactics only aid terrorists''?
Time and again, the administration and their allies pressured
Congress to consider controversial proposals immediately before
elections. Oh, that is when all the warning bells went off and the
threat level colors were changed. We were told there was a threat on
the way, and how were we to come to any other conclusion if we didn't
see the evidence? What a coincidence that most of those warnings came
right before an election. It was Karl Rove's playbook and the
administration ran that play over and over and over again.
In 2002, the administration insisted Congress must vote to authorize
the war in Iraq before the election or our security would be at risk.
Why? White House Chief of Staff Andrew Card explained that ``from a
marketing point of view'' that was the right time to ``introduce new
products.''
In 2004, the administration and its Republican allies in Congress
claimed it was imperative to reauthorize the PATRIOT Act before the
election or our security would be at risk. This despite the fact it
didn't expire until December 31, 2005. Congress chose this date for the
express purpose of depoliticizing this debate.
For years, the administration insisted the President had unilateral
authority to detain enemy combatants and try them in military
commissions. Again and again our Supreme Court rejected the
administration's arguments. Suddenly, shortly before the 2006 election,
the administration changed course, insisting that Congress must vote to
authorize military commissions or our security would be at risk. In
fact, the administration's bill included amnesty for administration
officials who had authorized illegal torture techniques. How will
history judge us, granting amnesty to those who engaged in torture?
It is more than a year since Congress passed the Military Commissions
Act. Despite their claims of urgency, the administration has failed to
bring a single terrorist to trial.
In the 2006 election, the American people took a stand and rejected
the politics and policies of fear and they rejected this
administration's scare tactics. One would hope the administration would
have learned a lesson. But in 2008, another election year has arrived
and, unfortunately, here we go again with an administration continuing
to stake out divisive positions on terrorism.
The administration claimed Attorney General Mukasey would turn a new
page at the Department of Justice, but he has refused to say even now
whether torture techniques known as waterboarding are illegal. During
his confirmation hearing, Judge Mukasey promised to review the
administration's classified interrogation techniques and assess their
legality. It has been 2 months since then and yesterday I wrote to the
Attorney General to remind him about that commitment. He has had ample
time to study this issue.
Yesterday, the administration announced they were going to renominate
Steven Bradbury to be head of the Office of Legal Counsel. This is the
office that issues binding legal opinions for the executive branch,
including having issued the infamous torture memo. I have repeatedly
urged President Bush to withdraw this nomination of Mr. Bradbury
because of his involvement in authorizing the administration's
controversial interrogation and surveillance policies.
Now, the administration claims our security is at risk in this
election year because Congress is allowing the Protect America Act to
expire, even though Senator Reid 2 days ago tried to extend it for a
month, and the Republican leadership objected. Well, no surprise.
Yesterday, Vice President Cheney weighed in. He gave a speech
praising the administration's counterterrorism efforts. He ignored the
lessons of the last 6 years. He praised Guantanamo Bay, even though his
President has called for closing it, and he praised what he called the
CIA's ``tougher interrogation program.'' Well, there is a phrase that
is loaded. He claimed the CIA's interrogation techniques comply with
our treaty obligations, although the military's top lawyers and others
say they violate the Geneva Convention. He said Khalid Sheikh Mohammed,
the alleged mastermind of 9/11, had been subjected to the CIA's
``tougher'' techniques. But the Vice President neglected to mention
that 6 years after 9/11, Khalid Sheikh Mohammed and the other 9/11
planners still have not been put to trial. Some experts say it will be
impossible to convict him because he was subjected to waterboarding and
other torture techniques.
The Vice President urged Congress to pass FISA legislation. Quoting
President Bush, he said:
The lessons of September 11 have become dimmer and dimmer
in some people's minds.
Mr. Vice President, the American people haven't forgotten 9/11, and
we never will.
We also have not forgotten that Osama bin Laden is still free and the
resources needed to track him down were diverted to a war in Iraq.
We have not forgotten that the war in Iraq has cost our Nation
billions and, tragically, the lives of almost 4,000.
We have not forgotten that instead of working with Congress to
prosecute the war on terrorism in a bipartisan fashion that respects
American values, this administration chose to go it alone.
We will never, ever forget the blood, sweat, and tears shed by
countless American heroes, who fight even as we speak to defend what
makes America unique in the world. They fight not to defend any race,
religion, or ethnic group; they fight to defend a value--the value upon
which our country was founded. We are a nation of laws, not men--not
this President, not any President.
In his speech yesterday, the Vice President noted:
The terrorists waging war against this country don't fight
according to the rules of warfare, or international law, or
moral standards, or basic humanity.
That is true, but America is a lot better than the terrorists.
Ironically, the Vice President also noted:
This cause is bigger than the quarrels of party and agendas
of politicians.
Well, that is true as well. I only wish the Vice President and the
administration would have heeded his own words and stopped politicizing
so many national security issues.
I urge my colleagues to reject the politics of fear and reject the
scare tactics of this administration. Support the
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Judiciary Committee substitute, support the majority leader's request
for a 1-month extension in the Protect America Act. We can give the
Government the power it needs to protect us, and we can still uphold
the rule of law and protect the precious liberties of the American
people.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I have sought recognition to comment
about the pending legislation on the Foreign Intelligence Surveillance
Act and the so-called Leahy substitute. We are engaged here in the
continuation of a historic debate. Confronted by terrorism on 9/11, the
response has been made to legislate on the PATRIOT Act and the Protect
America Act, in order to deal effectively with the terrorists. At the
same time, there is great concern that there be an appropriate balance.
While it is indisputable that our first duty is to protect America, it
is also equally fundamental that the constitutional protections have to
be kept in mind at all times, and it requires a balance.
The beauty of the Constitution is the doctrine of separation of
powers, so that no one branch has too much. This has been a classic
confrontation of the executive asserting its authority under article
II, and disregarding statutes, such as the Foreign Intelligence
Surveillance Act, disregarding the statutory requirement that the
Members of the House and Senate Intelligence Committees be informed of
activities like electronic surveillance, with the President asserting
that authority under article II, saying that it supercedes a statute.
Congress has been ineffective on congressional oversight. The courts
have filled the void, undertaking very significant action. A key part
of what we are considering here today is whether there will be
jurisdiction stricken on the pendency of many cases in the Federal
courts challenging what the telephone companies have allegedly done or
whether there will be continued access to the courts. It is my view,
for reasons which I will amplify in the course of this floor statement,
that there can be an accommodation to keep the courts open and to allow
the electronic surveillance to continue. That can be accomplished by an
amendment Senator Whitehouse and I intend to offer later today or
perhaps tomorrow--at the first opportunity we have--where the
litigation against the telephone companies would proceed, but the U.S.
Government would be substituted as the party defendant.
There is no doubt that the telephone companies have been good
citizens in whatever it is they have done. Yet there is nothing on the
record as to what really happened. Whatever it is they have done, the
indicators are that they have been good citizens, although, in the
course of having the Federal Government substituted for the telephone
companies, there will have to be evidence of compliance with the
governmental request, a compliance in good faith.
The likelihood of verdicts being rendered, I think, in my legal
judgment, is very remote. But that doesn't eliminate the requirement
and the practice of keeping the courts open to make that determination.
The Specter-Whitehouse substitution amendment will place the
Government in the shoes of the telephone companies to have the same
defenses--no more and no less. For example, the doctrine of
governmental immunity would not be available to the Government. There
have been those who have criticized the Specter-Whitehouse amendment,
who have ignored the very basic proposition that the suits cannot be
dismissed because of governmental immunity.
On the other hand, by the same token, the state secrets defense will
be available. In the lawsuits that are being prosecuted now against the
telephone companies, the government has intervened to assert the state
secrets doctrine. In fact, the Government has precluded the telephone
companies from saying very much under that doctrine. When the
Government is substituted for the telephone companies, the Government
will retain the defense of the state secrets doctrine.
Before going into the body of the argument in support of the Specter-
Whitehouse substitute approach, I wish to comment briefly on the
substitute offered by the Judiciary Committee and by our distinguished
chairman, Senator Leahy, as the pending business.
I begin by commending Senator Leahy for his work on the committee.
For many years, we have worked together. His work as chairman has been
exemplary, and there have been improvements that have been made by the
modified Leahy substitute. Improvements have been made in that it
clarifies that when surveillance occurs overseas, the FISA Court's role
is limited to assessing probable cause and not the means of collection.
It has further been improved by extending the length of emergency
surveillance to conform to the Intelligence Committee bill's 7 days
instead of 3 days. It has been improved by eliminating certain language
criticized by the administration--and I think justifiably--as being
overly broad. But it does retain the basic concept that the Foreign
Intelligence Surveillance Act is the exclusive statutory procedure. So
you preempt the Government argument that the Authorization for the Use
of Military Force preempts and supersedes FISA. That argument has been
made by the administration. I think it is a vacuous argument. In any
event, this legislation would restate the proposition that the AUMF, or
legislation like that, would not supersede FISA.
The substitute offered by the distinguished chairman also has a
change which allows the continuation of surveillance pending en banc
review by the Foreign Intelligence Surveillance Court. It also improves
a provision calling for an inspector general review of the terrorist
surveillance program.
I think, in essence, the substitute provision Senator Leahy has
offered is an improvement over the prior bill. I regret that I cannot
support it because it leaves out the provision with respect to
immunity. While I do not like the provision with respect to immunity
and think we can improve upon it, as I have said, by the approach of
substituting the Federal Government for the telephone companies, I
believe it is important to keep protecting the telephone companies in
the picture and to benefit from the activities which they are
undertaking. Therefore, I will not be able to support the substitute
offered by Senator Leahy.
It is my hope that the Specter-Whitehouse amendment will be adopted,
substituting the Government. If that fails, then with reluctance I will
support retroactive immunity. To repeat, I think that is not the
preferable course.
In dealing with the fundamental proposition of keeping the courts
open, we have had an extended history in the past 2 or 3 years of the
ineffectiveness of dealing with the expanded executive authority with
congressional oversight. The PATRIOT Act reauthorization came out of
the Judiciary Committee in 2005. I chaired it and was managing the bill
on the floor of the Senate back in mid-December of 2005. I was very
surprised that morning to read in the New York Times that the Federal
Government had been undertaking the terrorist surveillance program
without notifying the Intelligence Committees, as required by the
National Security Act of 1947, and without notifying the chairman or
ranking member of the Judiciary Committee. That was more than a
surprise; it was a shock.
We were nearing the end of the consideration of the PATRIOT Act
reauthorization, and all of the indicators were that we would get it
passed. Some appeared on the floor of the Senate that day to say that
they had intended to support the PATRIOT Act reauthorization, but no
longer, in light of the fact that there had been the terrorist
surveillance program, unknown to Congress, in violation of the Foreign
Intelligence Surveillance Act and in violation of the National Security
Act of 1947.
Now, it may be that the President was correct in asserting that he
had article II power under the Constitution. If the President did have
power under article II as Commander in Chief, then such power could not
be reduced by legislation. That is a basic constitutional principle.
But the determination of that really doesn't reside with the President
alone.
I then introduced legislation to bring the terrorist surveillance
program under the Foreign Intelligence Surveillance Court. I will not
take the time
[[Page S240]]
now to go through the lengthy efforts made in that regard. Suffice it
to say that congressional oversight was not satisfactory. Where there
has been a conflict between the Congress and the White House, the tools
available to the White House have rendered the congressional oversight
ineffective. When the Judiciary Committee has issued subpoenas, the
subpoenas have been ignored by the White House, and the enforcement
procedures are insufficient, really nugatory.
In the first place, if litigated, they take at least 2 years to have
a judicial decision. The law requires the U.S. attorney for the
District of Columbia to bring the action. The U.S. attorney for the
District of Columbia is part of the executive branch, and some in the
Department of Justice have said forget about having the action brought.
It is theoretically possible to have a contempt citation on the floor
of the Senate, but it is a practical impossibility. So the efforts at
enforcement of congressional oversight through the subpoena process has
been to no avail.
On the other hand, the courts have been effective. When the issue has
arisen as to the detention at Guantanamo, the Supreme Court of the
United States said in Hamdan that the Geneva Conventions applied, and
in Rasul that habeas corpus was in effect, notwithstanding the fact
Guantanamo was outside the territorial limit of the United States
because the U.S. Government controlled Guantanamo.
Where the Congress has responded with legislation, the issue is now
before the Supreme Court of the United States again in the Boumediene
case. The courts have been effective in asserting a balance, in
asserting constitutional governance. A whole series of court cases have
shown the effectiveness of the courts. For instance, in the Hepting
case that is pending on the terrorist surveillance program, the
district court rejected a blanket application of the state secrets
doctrine. In the Padilla case, the Supreme Court's decision to take up
the case led the government to file criminal charges. A New York case
involving the national security letters, Doe v. Gonzalez, found that
certain NSL gag orders were unconstitutional in light of the First
Amendment.
The Hamdan case involved a detainee by the U.S. Government. There the
Supreme Court held that the President does not have a blank check to
deal with detainees and that Congress had a role to play.
In the Al-Haramain case, the Terrorist Surveillance Program was
litigated by an Islamic charity that allegedly had a TSP derived
transcript. The case Ninth Circuit decision upheld the government's
assertion of the state secrets doctrine in that case.
I do not go into great length on these judicial decisions but to note
that when the court issues a order and insists on witnesses being
presented on pain of having the case dismissed or on pain of having
adverse action taken against the party who doesn't follow the court
order, the courts have been effective. That is why, on a constitutional
balance, I think it is very important not to foreclose action by the
courts, not to, in effect, strip the Federal courts of jurisdiction of
the many pending cases which have been brought against the telephone
companies, and it can be done in a practical way, preserving the
importance of law enforcement activities for whatever it is the
telephone companies are doing by substituting the Federal Government as
the party defendant.
I am especially concerned about this issue in the context of what
occurred back in June of 2006, when the Judiciary Committee, while I
was chairing it, was trying to exercise congressional oversight, assert
a constitutional balance with the executive branch, and we were
unsuccessful for a variety of reasons. Where the Federal Government had
the defense of executive privilege, it was impossible to move
effectively on congressional oversight. But when it became known about
the alleged activities of the telephone companies, I sought, as
chairman, to have subpoenas issued. The Vice President then contacted
Republican members of the Judiciary Committee, in effect, behind my
back--the protocol is to call the chairman first; if not to call the
chairman first, to call the chairman sometime--leading me to write a
letter, dated June 7, 2006.
I ask unanimous consent to have printed in the Record at the
conclusion of my remarks this letter, dated June 7, 2006.
The PRESIDING OFFICER (Mr. Tester). Without objection, it is so
ordered.
(See exhibit 1.)
Mr. SPECTER. Mr. President, I did not like sending the Vice President
a lawyer's letter, three pages, single spaced. It starts off--and I
will read a short paragraph:
Dear Mr. Vice President, I am taking this unusual step in
writing to you to establish a public record. It is neither
pleasant nor easy to raise these issues with the
administration of my own party, but I do so because of their
importance.
And then I go into the issues of the expansion of executive authority
in many directions, the refusal of the executive branch to accommodate
legitimate congressional oversight, and complain about the Vice
President's activities in contacting Republican members of the
Judiciary Committee.
To have the record complete, Mr. President, I ask unanimous consent
to have printed in the Record at the conclusion of my remarks the Vice
President's response to me, dated June 8, 2006.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. SPECTER. Mr. President, with that background, there is a
particular sensitivity on my part to having retroactive immunity which
I think would be an open invitation in the future for the executive
branch to continue to ignore the statutes as the executive branch
apparently ignored the Foreign Intelligence Surveillance Act that sets
the exclusive way of getting wiretapping, a statement of probable cause
to a judge, to ignore the National Security Act of 1947 in failing to
notify the Intelligence Committees of the House and Senate as mandated,
positively required, under that statute, to ignore that under the
assertion of article II power. But the judicial branch of Government is
the ultimate arbiter. To move to close the courts is a very serious and
unwise step, especially when the objective can be retained of the law
enforcement tools and having the litigation continue, of having the
U.S. Government as the party defendant. I don't believe there will be
verdicts against the Government, but if there are, it is part of the
cost of doing business, part of the cost of fighting terrorism, and it
ought to be borne by the U.S. Government, as opposed to being borne by
the telephone companies which presumably have been good citizens,
something they have to establish under the Specter-Whitehouse amendment
to have the Government step in as a substitute.
Where we stand at the present time is on the substitute offered by
the distinguished chairman. Again, I compliment him for the work he is
doing generally and specifically about our Judiciary Committee
activities on the Foreign Intelligence Surveillance Act. I have noted a
number of particulars where I think Senator Leahy's revised substitute
has made improvements. To repeat, I regret I cannot support it because
it leaves out the immunity provision. Again, I do not like the immunity
provision and think we can improve it with the Specter-Whitehouse
amendment. But if I am unsuccessful on that, then I will have to, at
least speaking for myself, swallow the retroactive immunity provision
on a balance of my own judgment as to the importance of having that
kind of electronic surveillance, whatever it is, go forward, even with
the retroactive immunity.
It is my hope, when we consider the ramifications, that we can
command the majority in this body, work through the legislation with
the House of Representatives, and find a way to allow the Government to
have the advantages of the electronic surveillance but not foreclose
the courts by the remedy of having the Government substituted as the
party defendant.
I yield the floor.
Exhibit 1
U.S. Senate,
Committee on the Judiciary,
Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.
Dear Mr. Vice President: I am taking this unusual step in
writing to you to establish a public record. It is neither
pleasant
[[Page S241]]
nor easy to raise these issues with the Administration of my
own party, but I do so because of their importance.
No one has been more supportive of a strong national
defense and tough action against terrorism than I. However,
the Administration's continuing position on the NSA
electronic surveillance program rejects the historical
constitutional practice of judicial approval of warrants
before wiretapping and denigrates the constitutional
authority and responsibility of the Congress and specifically
the Judiciary Committee to conduct oversight on
constitutional issues.
On March 16, 2006, I introduced legislation to authorize
the Foreign Intelligence Surveillance Court to rule on the
constitutionality of the Administration's electronic
surveillance program. Expert witnesses, including four former
judges of the FISA Court, supported the legislation as an
effective way to preserve the secrecy of the program and
protect civil rights. The FISA Court has an unblemished
record for keeping secrets and it has the obvious expertise
to rule on the issue. The FISA Court judges and other experts
concluded that the legislation satisfied the case-in-
controversy requirement and was not a prohibited advisory
opinion. Notwithstanding my repeated efforts to get the
Administration's position on this legislation, I have been
unable to get any response, including a ``no''.
The Administration's obligation to provide sufficient
information to the Judiciary Committee to allow the Committee
to perform its constitutional oversight is not satisfied by
the briefings to the Congressional Intelligence Committees.
On that subject, it should be noted that this Administration,
as well as previous Administrations, has failed to comply
with the requirements of the National Security Act of 1947 to
keep the House and Senate Intelligence Committees fully
informed. That statute has been ignored for decades when
Presidents have only informed the so-called ``Gang of
Eight,'' the Leaders of both Houses and the Chairmen and
Ranking Members on the Intelligence Committees. From my
experience as a member of the ``Gang of Eight'' when I
chaired the Intelligence Committee of the 104th Congress,
even that group gets very little information. It was only in
the face of pressure from the Senate Judiciary Committee that
the Administration reluctantly informed subcommittees of the
House and Senate Intelligence Committees and then agreed to
inform the full Intelligence Committee members in order to
get General Hayden confirmed.
When there were public disclosures about the telephone
companies turning over millions of customer records involving
allegedly billions of telephone calls, the Judiciary
Committee scheduled a hearing of the chief executive officers
of the four telephone companies involved. When some of the
companies requested subpoenas so they would not be
volunteers, we responded that we would honor that request.
Later, the companies indicated that if the hearing were
closed to the public, they would not need subpoenas.
I then sought Committee approval, which is necessary under
our rules, to have a closed session to protect the
confidentiality of any classified information and scheduled a
Judiciary Committee Executive Session for 2:30 P.M. yesterday
to get that approval.
I was advised yesterday that you had called Republican
members of the Judiciary Committee lobbying them to oppose
any Judiciary Committee hearing, even a closed one, with the
telephone companies. I was further advised that you told
those Republican members that the telephone companies had
been instructed not to provide any information to the
Committee as they were prohibited from disclosing classified
information.
I was surprised, to say the least, that you sought to
influence, really determine, the action of the Committee
without calling me first, or at least calling me at some
point. This was especially perplexing since we both attended
the Republican Senators caucus lunch yesterday and I walked
directly in front of you on at least two occasions enroute
from the buffet to my table.
At the request of Republican Committee members, I scheduled
a Republican members meeting at 2:00 P.M. yesterday in
advance of the 2:30 P.M. full Committee meeting. At that
time, I announced my plan to proceed with the hearing and to
invite the chief executive officers of the telephone
companies who would not be subject to the embarrassment of
being subpoenaed because that was no longer needed. I
emphasized my preference to have a closed hearing providing a
majority of the Committee agreed.
Senator Hatch then urged me to defer action on the
telephone companies hearing, saying that he would get
Administration support for my bill which he had long
supported. In the context of the doubt as to whether there
were the votes necessary for a closed hearing or to proceed
in any manner as to the telephone companies, I agreed to
Senator Hatch's proposal for a brief delay on the telephone
companies hearing to give him an opportunity to secure the
Administration's approval of the bill which he thought could
be done. When I announced this course of action at the full
Committee Executive Session, there was a very contentious
discussion which is available on the public record.
It has been my hope that there could be an accommodation
between Congress's Article I authority on oversight and the
President's constitutional authority under Article II. There
is no doubt that the NSA program violates the Foreign
Intelligence Surveillance Act which sets forth the exclusive
procedure for domestic wiretaps which requires the approval
of the FISA Court. It may be that the President has inherent
authority under Article II to trump that statute but the
President does not have a blank check and the determination
on whether the President has such Article II power calls for
a balancing test which requires knowing what the surveillance
program constitutes.
If an accommodation cannot be reached with the
Administration, the Judiciary Committee will consider
confronting the issue with subpoenas and enforcement of that
compulsory process if it appears that a majority vote will be
forthcoming. The Committee would obviously have a much easier
time making our case for enforcement of subpoenas against the
telephone companies which do not have the plea of executive
privilege. That may ultimately be the course of least
resistance.
We press this issue in the context of repeated stances by
the Administration on expansion of Article II power,
frequently at the expense of Congress's Article I authority.
There are the Presidential signing statements where the
President seeks to cherry-pick which parts of the statute he
will follow. There has been the refusal of the Department of
Justice to provide the necessary clearances to permit its
Office of Professional Responsibility to determine the
propriety of the legal advice given by the Department of
Justice on the electronic surveillance program. There is the
recent Executive Branch search and seizure of Congressman
Jefferson's office. There are recent and repeated assertions
by the Department of Justice that it has the authority to
criminally prosecute newspapers and reporters under highly
questionable criminal statutes.
All of this is occurring in the context where the
Administration is continuing warrantless wiretaps in
violation of the Foreign Intelligence Surveillance Act and is
preventing the Senate Judiciary Committee from carrying out
its constitutional responsibility for Congressional oversight
on constitutional issues. I am available to try to work this
out with the Administration without the necessity of a
constitutional confrontation between Congress and the
President.
Sincerely,
Arlen Specter.
____
Exhibit 2
The Vice President,
Washington, DC, June 8, 2006.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This is in response to your letter of
June 7, 2006 concerning the Terrorist Surveillance Program
(TSP) the Administration has described. The commitment in
your letter to work with the Administration in a non-
confrontational manner is most welcome and will, of course,
be reciprocated.
As recently as Tuesday of this week, I reiterated that, as
the Administration has said before, while there is no need
for any legislation to carry out the Terrorist Surveillance
Program, the Administration will listen to the ideas of
legislators about terrorist surveillance legislation and work
with them in good faith. Needless to say, that includes you,
Senator DeWine and others who have ideas for such
legislation. The President ultimately will have to make a
decision whether any particular legislation would strengthen
the ability of the Government to protect Americans against
terrorists, while protecting the rights of Americans, but we
believe the Congress and the Administration working together
can produce legislation to achieve that objective, if that is
the will of the Congress.
Having served in the executive branch as chief of staff for
one President and as Secretary of Defense for another, having
served in the legislative branch as a Representative from
Wyoming for a decade, and serving now in a unique position
under the Constitution with both executive functions and
legislative functions, I fully understand and respect the
separate constitutional roles of the Congress and the
Presidency. Under our constitutional separation between the
legislative powers granted to Congress and the executive
power vested exclusively in the Presidency, differences of
view may occur from time to time between the branches, but
the Government generally functions best when the legislative
branch and the executive branch work together. And I believe
that both branches agree that they should work together as
Congress decides whether and how to pursue further terrorist
surveillance legislation.
Your letter addressed four basic subjects: (1) the legal
basis for the TSP; (2) the Administration position on
legislation prepared by you relating to the TSP; (3)
provision of information to Congress about the TSP; and (4)
communications with Senators on the Judiciary Committee about
the TSP.
The executive branch has conducted the TSP, from its
inception on October 4, 2001 to the present, with great care
to operate within the law, with approval as to legality of
Presidential authorizations every 45 days or so by senior
Government attorneys. The Department of Justice has set forth
in detail in writing the constitutional and statutory basis,
and related judicial precedents, for warrantless electronic
surveillance under the TSP to protect against terrorism, and
that information has been made available to your Committe and
to the public.
[[Page S242]]
Your letter indicated that you have repeatedly requested an
Administration position on legislation prepared by you
relating to the TSP program. If you would like a formal
Administration position on draft legislation, you may at any
time submit it to the Attorney General, the Director of
National Intelligence, or the Director of the Office of
Management and Budget (OMB) for processing, which will
produce a formal Administration position. Before you do so,
however, it might be more productive for executive branch
experts to meet with you, and perhaps Senator DeWine or other
Senators as appropriate, to review the various bills that
have been introduced and to share the Administration's
thoughts on terrorist surveillance legislation. Attorney
General Alberto R. Gonzales and Acting Assistant Attorney
General for the Office of Legal Counsel Steven G. Bradbury
are key experts upon whom the executive branch would rely for
this purpose. I will ask them to contact you promptly so that
the cooperative effort can proceed apace.
Since the earliest days of the TSP, the executive branch
has ensured that, consistent with the protection of the
sensitive intelligence sources, methods and activities
involved, appropriate members of Congress were briefed
periodically on the program. The executive branch kept
principally the chairman and ranking members of the
congressional intelligence committees informed and later
included the congressional leadership. Today, the full
membership of both the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence
(including four Senators on that Committee who also serve on
your Judiciary Committee) are fully briefed on the program.
As a matter of inter-branch comity and good executive-
legislative practice, and recognizing the vital importance of
protecting U.S. intelligence sources, methods and activities,
we believe that the country as a whole, and the Senate and
the House respectively, are best served by concentrating the
congressional handling of intelligence matters within the
intelligence committees of the Congress. The internal
organization of the two Houses is, of course, a matter for
the respective Houses. Recognizing the wisdom of the
concentration within the intelligence committees, the rules
of the Senate (S. Res. 400 of the 94th Congress) and the
House (Rule X, cl. 11) creating the intellgence committees
mandated that the intelligence committees have cross-over
members who also serve on the judiciary, foreign/
international relations, armed services, and appropriations
committees.
Both in performing the legislative functions of the Vice
Presidency as President of the Senate and in performing
executive functions in support of the President, I have
frequent contact with Senators, both at their initiative and
mine. We have found such contacts helpful in maintaining good
relations between the executive and legislative branches and
in advancing legislation that serves the interests of the
American people. The respectful and candid exchange of views
is something to be encouraged rather than avoided. Indeed,
recognizing the importance of such communication, the first
step the Administration took, when it learned that you might
pursue use of compulsory process in an attempt to force
testimony that may involve extremely sensitive classified
information, was to have one of the Administration's most
senior officials, the Chief of Staff to the President of the
United States, contact you to discuss the matter. Thereafter,
I spoke with a number of other Members of the Senate
Leadership and the Judiciary Committee. These communications
are not unusual--they are the Government at work.
While there may continue to be areas of disagreement from
time to time, we should proceed in a practical way to build
on the areas of agreement. I believe that other Senators and
you, working with the executive branch, can find the way
forward to enactment of legislation that would strengthen the
ability of the Government to protect Americans against
terrorists while continuing to protect the rights of
Americans, if it is the judgment of Congress that such
legislation should be enacted. We look forward to working
with you, knowing of the good faith on all sides.
Sincerely,
Dick Cheney.
Mr. LEAHY. Mr. President, I know the Senator from Connecticut has the
floor at this point, but I wonder if he will yield to me for about
another minute.
Mr. DODD. Absolutely.
Mr. LEAHY. Mr. President, I appreciate the comments of the
distinguished senior Senator from Pennsylvania. I have enjoyed my work
with him. Of course, we have been friends from the time we first met
when we were both young prosecutors.
Mr. SPECTER. Younger prosecutors.
Mr. LEAHY. I note that my amendment on the Judiciary Committee bill
does not preclude a debate on the question of immunity for the
telecommunications carriers. It speaks to what the FISA Court can or
should do with this new surveillance authority.
If my amendment is voted down, several parts of it will be debated
again. Many parts of this amendment will be germane after cloture, and
we will be debating those as separate amendments. On the immunity
issue, there will be an amendment by the distinguished Senator from
Pennsylvania and the distinguished Senator from Rhode Island on the
issue of substitution. We will vote either up or down on that
amendment. My amendment is about the oversight of the FISA Court and
Congress.
I understand the position of the Senator from Pennsylvania, but I
hope he will look carefully at a number of the provisions in this bill.
If he is unable to vote for the overall amendment, I hope he will
support many of its provisions in separate amendments.
I have taken the time of the Senator from Connecticut who has worked
with me and has been one of the leading voices on the important issue
of oversight for electronic surveillance. We all want to be able to
collect as much intelligence as we can against those who would act
against the United States of America, but we have also lived long
enough to see the danger when there are not enough checks on the
government. We remember COINTELPRO and other circumstances where the
government has used the great resources of this country not against
enemies but against Americans. No voice in this body has been stronger
on that issue than the distinguished senior Senator from Connecticut.
I yield the floor.
Mr. DODD. Mr. President, I thank both my colleague from Vermont, the
chairman of the committee, and the Senator from Pennsylvania as well. I
arrived in this body in January of 1981 with a very engaged Senator
from Pennsylvania as a new Member that day in January of 1981. The
Senator from Vermont had already been here for a term. They do a
tremendous job, and their voices are worth listening to on matters
affecting civil liberties and the rule of law.
I spoke at some length last evening and back in December on the issue
of the Foreign Intelligence Surveillance Act amendments and what I
consider to be the most egregious provision in the Intelligence
Committee bill: retroactive immunity for the telecommunications
companies that may have helped this administration break the law. I
have objected to that immunity on very specific grounds because it
would cover an immense alleged violation of trust, privacy, and civil
liberties.
But even more importantly, immunity is wrong because of what it
represents: a fatal weakening of the rule of law that shuts out our
independent judiciary and concentrates all the power in the hands of
one branch--the executive branch.
We know there has been a pattern of behavior over the past 6 or 7
years. As I said last evening on this floor, had this been the first
instance of an administration overreaching, candidly, I would have had
some difficulty in objecting to the Intelligence Committee's proposal.
If the alleged violation had been limited to a period of a few months,
6 months, a year even after
9/11, I might not have objected.
But all of us in this Chamber know there has been a 6 or 7 year
pattern of this administration's abuses against the rule of law and
civil liberties. And this alleged violation went on not for 6 months or
a year but for 5 years--and it would still be ongoing today had it not
been for a whistleblower in an article in a major publication, which
revealed this program's ongoing activities to literally vacuum--and I
am not exaggerating when I say ``vacuum''--every telephone
conversation, fax, and e-mail of millions of people in this country. I
would object to retroactive immunity not just in this administration
but in any administration, Democratic or Republican, that sought
immunity to this extent, that sought to concentrate such power in the
hands of the executive branch.
The Founders of this great Republic strenuously argued for a process
that concentrates power not in one branch but provides a balance of
that power, a tension, if you will, between the judicial, the
legislative, and the executive branches. To grant such power to one
branch, as this bill seeks to do, is a dangerous step. And it would be
no matter which administration requested it.
The Foreign Intelligence Surveillance Act, as we have seen, was
written precisely to resist that concentration.
[[Page S243]]
When we divide power responsibly, terrorist surveillance is not
weakened; it is strengthened, Mr. President, made more judicious, more
legitimate, and less subject to the abuse that saps public trust. I
firmly believe any changes to this FISA bill must be in keeping with
the original spirit of shared powers and the respect of the rule of
law.
If we act wisely, as every previous Congress has for 30 years when
amending the Foreign Intelligence Surveillance Act, then I think we can
ensure terrorist surveillance remains inside the law--not an exception
to it. The Senate should pass a bill doing just that.
But the FISA Amendments Act, as it comes to us from the Intelligence
Committee, is not that bill, Mr. President. Its safeguards against
abuse, against the needless targeting of ordinary American citizens,
are far too weak. The power it concentrates in the hands of the
executive branch is far too expansive. However, the Senate also has
before it a version of a bill that embodies a far greater respect for
the rule of law, and that is the proposal before us at this hour,
offered by the chairman of the Judiciary Committee, Senator Patrick
Leahy of Vermont. Both versions of the bill--both versions--authorize
the American President to conduct overseas surveillance without
individual warrants.
Both of these bills allow the President of the United States to
submit his procedures for this new kind of surveillance for the review
of the FISA Court after those procedures are already in place. But only
one version of the bill balances these significant new powers with real
oversight from the Congress and the courts, and that is the Leahy
amendment.
That is the balance we need to strike. That is what every Congress
has done for three decades--for three decades--with over 35 different
changes to this bill, since its adoption in the late 1970s, passing
every Congress almost unanimously, with the approval of Democrats and
Republicans alike, balancing the tension between our determination to
keep us safe from those who would do us harm with our need to protect
the rule of law and the rights of the American people. That is the
tension, that is the balance that we have struck over the last 30
years.
After three decades of maintaining that long-held balance, we are
about to deviate from it. The intelligence version of this legislation,
I am afraid, is a bill of token oversight and very weak protections for
innocent Americans. Specifically, the intelligence version of the bill
fails on five specific counts.
First, its safeguards against the targeting of Americans--its
minimization procedures--are insufficient. The Intelligence Committee
bill significantly expands the President's surveillance power while
leaving the checks on that power unchanged. The intelligence version
provides practically no deterrent against excessive domestic spying and
no consequences if the court finds that the President's--any
President's--minimization procedures are lacking. If his targeting
procedures are found lacking, the President hardly has to worry. They
administration can keep and share all the information it has obtained,
and it can continue its actions all the way through the judicial review
process, which can take months, if not years.
It should be clear to all of us that real oversight includes the
power of enforcement. The Intelligence Committee's bill offers us the
semblance of judicial oversight--but not the real thing. Imagine, if
you will, a judge convicting a bank robber and then letting him keep
the loot he stole, as long as he promises to never, ever, ever do it
again. That might as well be the Intelligence version of the bill.
In fact, the Intelligence version would allow the President to
immediately target anyone on a whim. Wiretapping could start even
before the court has approved it. In the Intelligence Committee bill,
oversight is exactly where the President likes it--after the fact.
Don't get me wrong, Mr. President, when a President--any President--
needs immediate emergency authority to begin wiretapping, that
President should have it. All of us, I think, agree with that. We find
that obvious.
The question is what to do in those cases that aren't emergencies--
because not every case is an emergency. In those cases, I believe there
is no reason that the court shouldn't give advice and approval
beforehand. President Bush disagrees. He believes in a permanent state
of emergency.
Second, the Intelligence Committee bill fails to protect American
citizens from reverse targeting--the practice of targeting a foreign
person on false pretenses without a warrant in order to collect the
information on an American on the other end of the conversation.
Reverse targeting, according to Admiral McConnell, the Director of
National Intelligence, says:
It is not legal. It would be a breach of the fourth
amendment.
That is according to the Director of National Intelligence. He is
absolutely correct, of course, which is why it is so vital the FISA
bill before us contain strong enforceable protections against reverse
targeting. Unfortunately, the Intelligence Committee version doesn't
have one.
Third, the intelligence version, by purporting to end warrantless
wiretapping of Americans, might actually allow it to continue unabated.
That is because the bill lacks strong exclusivity language--language
stating that FISA is the only controlling law for foreign intelligence
surveillance. With that provision in place, surveillance has a place
inside the rule of law. Without it, there is no such guarantee, Mr.
President.
Who knows what specious rationale this or any administration might
cook up for lawless spying? The last time, as we have seen, Alberto
Gonzalez--laughably, I might add, if it weren't so tragic--tried to
find grounds for warrantless wiretapping in the authorization of force
against Afghanistan. Those are the legal lengths to which this
administration has proved willing and able to go to in order to achieve
its goals.
As I mentioned last evening, Senator Daschle, the former majority
leader, who was deeply involved in the negotiations of the
authorization language to use force in Afghanistan, wrote an op-ed
piece absolutely debunking the argument that any part of that
negotiation included granting the administration the power to conduct
warrantless wiretaps. He was offended by the suggestion that somehow we
in this Congress, on a vote of 98 to nothing, gave the administration
the power to conduct warrantless wiretappings. He was directly involved
in those negotiations. It never, ever, ever came up. It is offensive
that Alberto Gonzalez argued that Afghanistan justified warrantless
wiretapping is offensive--but it is a good example, Mr. President, of
what can happen if you don't have exclusivity.
FISA is the vehicle, and has been for 30 years, by which we allow for
warrants to be granted to conduct surveillance when America is
threatened. What is next without strong exclusivity language? The
Intelligence Committee version of the bill would leave that question
hanging over our heads.
Fourth, Mr. President, unlike the Leahy amendment, the Intelligence
Committee version of the bill lacks strong protections against what is
called ``bulk collection''--the warrantless collection of all overseas
communications, a massive dragnet with the potential to sweep up
thousands or even millions of Americans, without cause. Today, bulk
collection is not feasible. But Admiral McConnell said:
It would be authorized, if it were physically possible to
do so.
Before any administration has that chance, I think it is important
that we should clearly and expressly prohibit such an unprecedented
violation of privacy. The intelligence version fails to do so.
In fact, I would suggest that the previous collection of data by the
telecom industry, in fact, nearly approached such bulk collection: as
we now know, millions and millions and millions of faxes, of e-mails,
and of phone conversations were swept up over 5 years, without any
warrants whatsoever.
Now, the legality of that is an unanswered question--but we are never
going to know the answer if we grant retroactive immunity. We would
shut the door forever on determining whether it was legal.
Even though global bulk collection is not yet feasible, we have
already seen a vacuum operation sweep up millions of conversations, e-
mails, and faxes. So
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we know the will for true bulk collection is there, and the Director of
National Intelligence has admitted as much. So failure of the
Intelligence version of the bill to prohibit bulk collection ought to
cause us all some concern.
Fifth, and finally, Mr. President, the intelligence committee version
of the bill stays in effect until 2013, through the next Presidential
term and into the next one after that. Compare that to the 4-year
sunset in the Leahy amendment. I believe that, when making such a
dramatic change in the Nation's terrorist surveillance regime, we ought
to err on the side of some caution. Once the new regime has been
tested, once its effectiveness against terrorism and its compromises of
privacy have been weighed, we deserve to have this debate again.
Hopefully we will all be more informed when that happens; I trust that
it will be a much less speculative debate.
And there is another advantage to coming back to this bill with
greater frequency. We are learning painfully that the abilities those
who would do us harm are growing more sophisticated year by year. We
need to be flexible, as well. To not allow for a review of this
legislation until 2013, except under extraordinary circumstances, locks
us in place for far too long. We ought to come back and review whether
we are facing additional problems that didn't exist even a year ago,
given the warp speed with technology changes globally. We shouldn't
wait 6 years. Given the ever-changing terrorist threats we face, taking
another look at this bill sooner is in our security interest.
Mr. President, I said last evening that I admire the work of Senator
Rockefeller and Senator Bond, and the members of the Intelligence
Committee. And I know people say, ``Oh, you are just being collegial.''
But this is not easy work. I know they struggle with these issues, and
I don't want my criticism to be interpreted to suggest that I don't
respect the work they do. I clearly respect it.
But this is such a critical issue, and maybe I have more of a passion
about it, because it is so important. Once you begin to accept expanded
executive power, it is so easy to move to the next step and the next
step--and we have to be so careful about that.
We are mere custodians, those of us who serve here, over our rights
and the rule of law. We are relying on the work of those who have
preceded us. And I think all of us admire immensely what various
Congresses have done over three decades since the adoption of the
original FISA bill, which was done in a bipartisan, almost unanimous
fashion. But the issue we face today is historic. It is not something
that began just after 9/11. The tension between keeping us safe and
protecting our rights has been an ongoing debate for more than two
centuries, and it will be a continuous debate.
It will be a contentious debate. But striking that balance is what is
so important. And the temptation to err on one side of that balance is
so strong. James Madison warned more than two centuries ago that our
willingness to give up domestic rights is always contingent upon the
fear of what happens abroad. So while all of us here want to make sure
we are doing everything to keep our country secure, we do not want to
be willing to give up the basic rule of law here, and denigrate the
importance of those rights.
It is very dangerous to confront the people of this country with a
choice between rights and security. It is a false choice. In truth, we
become more secure when we protect our rights. We have learned that
over the years. And if we forget that lesson now, I believe we will
come to deeply, deeply regret it.
This bill, the Intelligence Committee bill, reduces court oversight
merely to the point of symbolism. It allows the targeting of Americans
on false pretenses. It opens us up to new, twisted rationales for
warrantless wiretapping, the very thing it ought to prevent. It would
allow bulk collection as soon as this administration--or any
administration--has the wherewithal to do it.
Mr. President, we are letting this debate become one of Republicans
versus Democrats, liberals versus conservatives. But the Constitution
is not a partisan document. It is a document which all of us embrace.
It deeply troubles me that we have allowed things to come to this point
instead of insisting that we can find the wisdom and the ability to
keep America safe without compromising the rule of law.
In sum, the Intelligence version is entirely too trusting a bill, and
not just for this administration. People say: If there were a Democrat
sitting in the White House, you would not be saying this. Yes, I would.
If any Democrat tried to do this, I would speak just as passionately,
maybe more so, offended that someone I thought I shared some values
with was suggesting a similar course of action.
My concern with what we are doing is not just about the next year; it
is for the years and years and years to come, for the precedent we are
setting, not only for this administration, but for all those that will
follow.
So my passion about this is not rooted in partisanship; it is rooted
in my deep conviction that abandoning or undermining the rule of law--
we don't have the right to do that. We are temporary custodians of the
Constitution of the United States.
So the Intelligence version is too trusting, as I said. With its
immunity provisions, with its wiretapping provisions, it simply
responds to the executive branch's offer of ``trust me'' with an all-
too-eager to say ``yes.''
I leave my colleagues with a simple question: Has that trust been
earned, not just by this President, by any President? What would our
Founders think? Why did they craft a system which insisted that there
be a judicial, a legislative, and an executive branch? If we walk away
from that balance, then we walk away from the very trust we were
endowed with by those who elected us to this office and the oath we
took here.
So I urge my colleagues to support the substitute being offered by
Senator Leahy.
Again, I commend Senator Rockefeller and Senator Bond and members of
that committee who worked hard at it. There are a lot of good ideas,
outside of immunity, in the Intelligence Committee version of the bill.
I think we can improve it; and the Leahy amendment does that.
I yield the floor.
The PRESIDING OFFICER. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, while I have great admiration and
respect for my friend from Connecticut, this is an issue upon which we
simply disagree.
I rise today in opposition to the Judiciary substitute amendment to
S. 2248, the FISA Amendments Act.
This legislation would strike, in its entirety, the bipartisan bill
voted out of the Intelligence Committee by a 13-to-2 vote and replace
it with a bill full of limitations on our foreign intelligence
collection.
There are serious differences between the Judiciary Committee's
substitute and the bill voted out of the Intelligence Committee. The
Intelligence Committee bill is the result of a long drafting process
where the committee reviewed the classified mechanisms under which FISA
operates. As a result, the bill reflects the minimum tools our
intelligence community needs to improve our foreign intelligence
collection. Some of the provisions of the Judiciary bill seem to ignore
the needs of our intelligence analysts and instead seek to hamper our
ability to protect the Nation from hostile foreign intelligence
collection and terrorists.
I believe the Judiciary Committee bill is seriously flawed, and I
would like to highlight just two examples of how seriously flawed this
amendment is.
First, it seeks to impose an unreasonable new restriction on the use
of foreign intelligence information.
If the FISA Court finds the minimization procedure is deficient in
some manner, information, including information not concerning U.S.
persons obtained or derived from those acts, may not be kept. Our
intelligence community analysts have used and complied with
minimization standards for over 25 years. They know how to do it. They
are familiar with when and how to minimize information in order to
protect the identity of U.S. persons.
It is important to point out that minimization is used when
disseminating important foreign intelligence. In other words, an
intelligence analyst
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has determined that the information contains relevant foreign
intelligence. Under the Judiciary Committee provision, if the FISA
Court determines that the general proscriptions on how to minimize need
improvement, the intelligence community may not use any previously
gathered intelligence. This allows the FISA Court to second-guess
trained analysts. The FISA Court's own opinion from December 11, 2007,
recognizes that the executive branch has the expertise in national
security matters, that the court should not make judgments as to which
particular surveillances should be conducted.
Second, the Judiciary Committee amendment contains no provision for
retroactive or prospective immunity for communications providers.
After careful review of the President's terrorist surveillance
program, a bipartisan majority of the Intelligence Committee believed
that providing our telecommunications service providers immunity for
their assistance to the Government is absolutely necessary.
I think without question this is such a critical part of the bill
that came out of the Intelligence Committee for all of the right
reasons. The Intelligence Committee heard testimony and reviewed the
President's specific intelligence program. The President granted the
committee members and staff access to the legal memoranda and other
documents related to this program. As stated in the committee report
accompanying this legislation, the committee determined:
That electronic communication service providers acted on a
good faith belief that the President's program, and their
assistance, was lawful.
The committee reviewed correspondence sent to the
electronic communication service providers stating that the
activities requested were authorized by the President and
determined by the Attorney General to be lawful, with the
exception of one letter covering a period of less than 60
days, in which the Counsel to the President certified the
program's lawfulness.
The statement continues:
The committee concluded that granting liability relief to
the telecommunications providers was not only warranted, but
required to maintain the regular assistance our intelligence
and law enforcement professionals seek from them. Although I
believe that the President's program was lawful and
necessary, this bill makes no such determination. This is not
a review or commentary on the President's program.
I urge my colleagues to support the determinations of the
Intelligence Committee, which is charged with regularly reviewing the
intelligence activities of the United States and all of the agencies
included within the intelligence community. Providing our
telecommunications carriers with liability relief is the necessary and
responsible action for Congress to take.
The Government often needs assistance from the private sector in
order to protect our national security, and in return, they should be
able to rely on the Government's assurances that the assistance they
provide is lawful and necessary for our national security. As a result
of this assistance, America's telecommunications carriers should not be
subject to costly legal battles.
This is not the last time that the private sector is going to be
asked to come to the aid of the American people in protecting us on a
matter of national security. There will be other days when the private
sector will be called upon by the Government to act in concert and in
partnership to protect the American public. If we do not grant immunity
in this particular instance, should we expect the private sector to be
cooperative with us in the future? I think the answer to that is pretty
clear.
That was the gist of the bipartisan discussion and agreement within
the Intelligence Committee about the main reason why, if no other
reason, we should seriously look and give the immunity to the
telecommunications providers that may have been involved in this
situation.
I urge my colleagues to reject the Judiciary Committee substitute
amendment, which contains numerous problematic provisions which will
hamper and try to micromanage our intelligence collection, and support
the carefully crafted bipartisan bill passed out of the Intelligence
Committee.
Mr. President, I suggest the absence of a quorum and ask unanimous
consent the time be equally divided on both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. BOND. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOND. Mr. President, I will be speaking more at about 1:30 on the
Judiciary Committee substitute, but I thought I would clarify a few
concerns that have been raised that I have heard. I know there are a
number of Members coming down, and I do not want to hold them up, but I
do want to point out that my good friend, the senior Senator from
Pennsylvania, was concerned that the President's terrorist surveillance
program was not briefed to Members of Congress. It is my understanding
it was briefed to the leadership of the Intelligence Committee and the
leadership on both sides. Personally, I would have preferred that more
Members be briefed, but it is my understanding that when these leaders
were briefed, it was their view that in light of the urgency and the
need and the difficulties of explaining what we were going to do prior
to--which could delay the implementation of the terrorist surveillance
program, that it was a consensus of these meetings that the President
should not bring a measure before Congress modifying FISA to take
account of the new means of electronic surveillance and electronic
communication.
Secondly, my good friend, the senior Senator from Connecticut, in his
comments urged that we ban reverse targeting. I would call his
attention to section 703(b), subparagraph 2 and subparagraph 3, which
do explicitly ban targeting of overseas terrorist activities in order
to gain information on U.S. persons. That is explicitly banned.
The Senator from Connecticut also spoke warmly of the exclusive test
that existed in FISA from the period from 1978 forward.
We have included in the bill the exclusive means test that worked for
some 30 years. That is in section 102. Without getting into classified
information, we can say that this bill does not allow our intelligence
community to listen in on conversations or read mail unless those
persons are afforded the protection of the Intelligence Committee bill.
To clarify that, the collection is carefully limited and overseen.
There have been comments that the collection efforts by the NSA are not
subject to oversight. I can only suggest to the people who have raised
those concerns to ask members of the Intelligence Committee how much
time we have spent looking into electronic surveillance. I can assure
them that we enjoy looking into all these issues. We do so on a
continuing basis. We have done so extensively over the last 9 months. I
am sure they can count on us continuing to exercise that oversight. The
Intelligence Committee has been set up specifically to review all of
the intelligence collection methods of our intelligence community. They
do a great job. We look over their shoulders and suggest ways they can
improve the collection and analysis and also take steps to ensure they
stay carefully within the boundaries of the Constitution and the laws
that apply to them. With respect to collection methods such as 12333,
we also oversee that as well.
So the people of America can be assured that the laws, the
Constitution, and the regulations are being complied with. That is our
job in the Intelligence Committee. We intend to continue to do so. I
didn't want to leave without clarification of the suggestion that some
of these matters were not attended to.
I see my colleague from Utah. I thank him for his great work. He is
not only a valuable member of the Intelligence Committee but his work
on the Judiciary Committee reflects his keen understanding and devotion
to ensuring that we do a proper job of oversight and legislation when
it comes to these very important collection methods.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Mr. President, I thank my dear colleague from Missouri for
the leadership he has provided, along with Senator Rockefeller, on the
Intelligence Committee and throughout this process. We ought to be
listening to him. This is a very important bill,
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one of the most important in the history of the country, and we have to
get it right. I congratulate him and thank him for the hard work he has
done, and also Senator Rockefeller who, as chairman of the committee,
led us in this matter.
As the only Republican on both the Intelligence and Judiciary
Committees, I have been very involved in the process of developing the
FISA modernization bill with a unique understanding of the journey this
bill has taken through the Senate. I continue to express my full
support for the bill as passed out of the Intelligence Committee and
encourage my colleagues to reject the risky and problematic Judiciary
substitute amendment.
The seeds of discontent with the Judiciary substitute were sown from
the very beginning of that committee's consideration. Late in the
afternoon the day before the markup, a Judiciary substitute amendment
was circulated that replaced the entire first title of the Intelligence
Committee-reported bill. This substitute included 10 Democratic
amendments and no Republican amendments. It was eventually adopted on a
party-line vote. Unfortunately, the careful bipartisan balance crafted
by the Intelligence Committee was irrevocably altered and effectively
nullified by partisan maneuvering. The Judiciary Committee was not able
to coalesce to advance a compromise bill, as evidenced by the
consistent 10-to-9 party-line votes on amendments and final passage.
These votes typified the approach the Judiciary Committee undertook.
We know that this bill, like all national security legislation, needs
bipartisan support to pass. The Judiciary substitute simply doesn't
have it. I remind my colleagues that on November 14, 2007, Attorney
General Mukasey and Director of National Intelligence McConnell sent a
letter to the chairman and ranking member of the Judiciary Committee
stating:
If the Judiciary substitute is part of a bill that is
presented to the President, we and the President's other
senior advisors will recommend that he veto the bill.
In addition, on December 17, 2007, a statement of administration
policy was distributed for S. 2248 which stated:
If the Judiciary Committee substitute amendment is part of
a bill that is presented to the President, the Director of
National Intelligence, the Attorney General, and the
President's other senior advisors will recommend that he veto
the bill.
Both of these letters illustrate extensive problems with provisions
included in the Judiciary substitute and in very specific terms. These
warnings from the very people in the Government who are asked to
protect us from terrorist threats should be heeded. We disregard these
warnings at our own peril.
I ask unanimous consent that both of these letters be printed in the
Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Statement of Administration Policy
s. 2248--to amend the foreign intelligence surveillance act of 1978, to
modernize and streamline the provisions of that act, and for other
purposes
(Sen. Rockefeller (D-WV), Dec. 17, 2007)
Protection of the American people and American interests at
home and abroad requires access to timely, accurate, and
insightful intelligence on the capabilities, intentions, and
activities of foreign powers, including terrorists. The
Protect America Act of 2007 (PAA), which amended the Foreign
Intelligence Surveillance Act of 1978 (FISA) this past
August, has greatly improved the Intelligence Community's
ability to protect the Nation from terrorist attacks and
other national security threats. The PAA has allowed us to
close intelligence gaps, and it has enabled our intelligence
professionals to collect foreign intelligence information
from targets overseas more efficiently and effectively. The
Intelligence Community has implemented the PAA under a robust
oversight regime that has protected the civil liberties and
privacy rights of Americans. Unfortunately, the benefits
conferred by the PAA are only temporary because the act
sunsets on February 1, 2008.
The Director of National Intelligence has frequently
discussed what the Intelligence Community needs in permanent
FISA legislation, including two key principles. First,
judicial authorization should not be required to gather
foreign intelligence from targets located in foreign
countries. Second, the law must provide liability protection
for the private sector.
The Senate is considering two bills to extend the core
authorities provided by the PAA and modernize FISA. In
October, the Senate Select Committee on Intelligence (SSCI)
passed a consensus, bipartisan bill (S. 2248) that would
establish a sound foundation for our Intelligence Community's
efforts to target terrorists and other foreign intelligence
targets located overseas. Although the bill is not perfect
and its flaws must be addressed, it nevertheless represents a
bipartisan compromise that will ensure that the Intelligence
Community retains the authorities it needs to protect the
Nation. Indeed, the SSCI bill is an improvement over the PAA
in one essential way--it would provide retroactive liability
protection to electronic communication service providers that
are alleged to have assisted the Government with intelligence
activities in the aftermath of September 11th.
In sharp contrast to the SSCI's bipartisan approach to
modernizing FISA, the Senate Judiciary Committee reported an
amendment to the SSCI bill that would have devastating
consequences to the Intelligence Community's ability to
detect and prevent terrorist attacks and to protect the
Nation from other national security threats. The Judiciary
Committee proposal would degrade our foreign intelligence
collection capabilities. The Judiciary Committee's amendment
would impose unacceptable and potentially crippling burdens
on the collection of foreign intelligence information by
expanding FISA to restrict facets of foreign intelligence
collection never intended to be covered under the statute.
Furthermore, the Judiciary Committee amendment altogether
fails to address the critical issue of liability
protection. Accordingly. if the Judiciary Committee's
substitute amendment is part of a bill that is presented
to the President, the Director of National Intelligence,
the Attorney General, and the President's other senior
advisors will recommend that he veto the bill.
The Senate Select Committee on Intelligence Bill
Building on the authorities and oversight protections
included in the PAA, the SSCI drafted S. 2248 to provide a
sound legal framework for essential foreign intelligence
collection in a manner consistent with the Fourth Amendment.
As in the PAA, S. 2248 permits the targeting of foreign
terrorists and other foreign intelligence targets outside the
United States based upon the approval of the Director of
National Intelligence and the Attorney General.
The SSCI drafted its bill in extensive coordination with
Intelligence Community and national security professionals--
those who are most familiar with the needs of the
Intelligence Community and the complexities of our
intelligence laws. The SSCI also heard testimony from privacy
experts in order to craft a balanced approach. As a result,
the SSCI bill recognizes the importance of clarity in laws
governing intelligence operations. Although the
Administration would strongly prefer that the provisions of
the PAA be made permanent without modification, the
Administration engaged in extensive consultation in the
interest of achieving permanent legislation in a bipartisan
manner.
The SSCI bill is not perfect, however. Indeed, certain
provisions represent a major modification of the PAA and will
create additional burdens for the Intelligence Community,
including by dramatically expanding the role of the FISA
Court in reviewing foreign intelligence operations targeted
at persons located outside the United States, a role never
envisioned when Congress created the FISA court.
In particular, the SSCI bill contains two provisions that
must be modified in order to avoid significant negative
impacts on intelligence operations. Both of these provisions
are also included in the Judiciary Committee substitute,
detailed further below.
First, as part of the debate over FISA modernization,
concerns have been raised regarding acquiring information
from U.S. persons outside the United States. Accordingly, the
SSCI bill provides for FISA Court approval of surveillance of
U.S. persons abroad. The Administration opposes this
provision. Under executive orders in place since before the
enactment of FISA in 1978, Attorney General approval is
required before foreign intelligence surveillance and
searches may be conducted against a U.S. person abroad under
circumstances in which a person has a reasonable expectation
of privacy. More specifically, section 2.5 of Executive Order
12333 requires that the Attorney General find probable cause
that the U.S. person target is a foreign power or an agent of
a foreign power. S. 2248 dramatically increases the role of
the FISA Court by requiring court approval of this probable
cause determination before an intelligence operation may be
conducted beyond the borders of the United States. This
provision imposes burdens on foreign intelligence collection
abroad that frequently do not exist even with respect to
searches and surveillance abroad for law enforcement
purposes. Were the Administration to consider accepting FISA
Court approval for foreign intelligence searches and
surveillance of U.S. persons overseas, technical corrections
would be necessary. The Administration appreciates the
efforts that have been made by Congress to address these
issues, but notes that while it may be willing to accept
that the FISA Court, rather than the Attorney General,
must make the required findings, limitations on the scope
of the collection currently allowed are unacceptable.
Second, the Senate Intelligence Committee bill contains a
requirement that intelligence analysts count ``the number of
persons located in the United States whose communications
were reviewed.'' This provision would likely be impossible to
implement. It
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places potentially insurmountable burdens on intelligence
professionals without meaningfully protecting the privacy of
Americans, and takes scarce analytic resources away from
protecting our country. The Intelligence Community has
provided Congress with a detailed classified explanation of
this problem.
Although the Administration believes that the PAA achieved
foreign intelligence objectives with reasonable and robust
oversight protections, S. 2248, as drafted by the Senate
Intelligence Committee, provides a workable alternative and
improves on the PAA in one critical respect by providing
retroactive liability protection. The Senate Intelligence
Committee bill would achieve an effective legislative result
by returning FISA to its appropriate focus on the protection
of privacy interests of persons inside the United States,
while retaining our improved capability under PAA to collect
timely foreign intelligence information needed to protect the
Nation.
The Senate Judiciary Committee Proposal
The Senate Judiciary Committee amendment contains a number
of provisions that would have a devastating impact on our
foreign intelligence operations.
Among the provisions of greatest concern are:
An Overbroad Exclusive Means Provision That Threatens
Worldwide Foreign Intelligence Operations. Consistent with
current law, the exclusive means provision in the SSCI's bill
addresses only ``electronic surveillance'' and ``the
interception of domestic wire, oral, and electronic
communications.'' But the exclusive means provision in the
Judiciary Committee substitute goes much further and would
dramatically expand the scope of activities covered by that
provision. The Judiciary Committee substitute makes FISA the
exclusive means for acquiring ``communications information''
for foreign intelligence purposes. The term ``communications
information'' is not defined and potentially covers a vast
array of information--and effectively bars the acquisition of
much of this information that is currently authorized under
other statues such as the National Security Act of 1947, as
amended. It is unprecedented to require specific statutory
authorization for every activity undertaken worldwide by the
Intelligence Community. In addition, the exclusivity
provision in the Judiciary Committee substitute ignores
FISA's complexity and its interrelationship with other
federal laws and, as a result, could operate to preclude the
Intelligence Community from using current tools and
authorities, or preclude Congress from acting quickly to give
the Intelligence Community the tools it may need in the
aftermath of a terrorist attack in the United States or in
response to a grave threat to the national security. In
short, the Judiciary Committee's exclusive means provision
would radically reshape the intelligence collection framework
and is unacceptable.
Limits on Foreign Intelligence Collection. The Judiciary
Committee substitute would require the Attorney General and
the Director of National Intelligence to certify for certain
acquisitions that they are ``limited to communications to
which at least one party is a specific individual target who
is reasonably believed to be located outside the United
States.'' This provision is unacceptable because it could
hamper U.S. intelligence operations that are currently
authorized to be conducted overseas and that could be
conducted more effectively from the United States without
harming U.S. privacy rights.
Significant Purpose Requirement. The Judiciary Committee
substitute would require a FISA court order if a
``significant purpose'' of an acquisition targeting a person
abroad is to acquire the communications of a specific person
reasonably believed to be in the United States. If the
concern driving this proposal is so-called ``reverse
targeting''--circumstances in which the Government would
conduct surveillance of a person overseas when the
Government's actual target is a person in the United States
with whom the person overseas is communicating--that
situation is already addressed in FISA today: If the person
in the United States is the target, a significant purpose of
the acquisition must be to collect foreign intelligence
information, and an order from the FISA court is required.
Indeed, the SSCI bill codifies this longstanding Executive
Branch interpretation of FISA. The Judiciary Committee
substitute would place an unnecessary and debilitating burden
on our Intelligence Community's ability to conduct
surveillance without enhancing the protection of the privacy
of Americans.
Part of the value of the PAA, and any subsequent
legislation, is to enable the Intelligence Community to
collect expeditiously the communications of terrorists in
foreign countries who may contact an associate in the United
States. The Intelligence Community was heavily criticized by
numerous reviews after September 11, including by the
Congressional Joint Inquiry into September 11, regarding its
insufficient attention to detecting communications indicating
homeland attack plotting. To quote the Congressional Joint
Inquiry:
``The Joint Inquiry has learned that one of the future
hijackers communicated with a known terrorist facility in the
Middle East while he was living in the United States. The
Intelligence Community did not identify the domestic origin
of those communications prior to September 11, 2001 so that
additional FBI investigative efforts could be coordinated.
Despite this country's substantial advantages, there was
insufficient focus on what many would have thought was among
the most critically important kinds of terrorist-related
communications, at least in terms of protecting the
Homeland.''
(S. Rept. No. 107-351, H. Rept. No. 107-792 at 36.) To be
clear, a ``significant purpose'' of Intelligence Community
activities is to detect communications that may provide
warning of homeland attacks and that may include
communication between a terrorist overseas who places a call
to associates in the United States. A provision that bars the
Intelligence Community from collecting these communications
is unacceptable, as Congress has stated previously.
Liability Protection. In contrast to the Senate
Intelligence Committee bill, the Senate Judiciary Committee
substitute would not protect electronic communication service
providers who are alleged to have assisted the Government
with communications intelligence activities in the aftermath
of September 11th from potentially debilitating lawsuits.
Providing liability protection to these companies is a just
result. In its Conference Report, the Senate Intelligence
Committee ``concluded that the providers . . . had a good
faith basis for responding to the requests for assistance
they received.'' The Committee further recognized that
``the Intelligence Community cannot obtain the
intelligence it needs without assistance from these
companies.'' Companies in the future may be less willing
to assist the Government if they face the threat of
private lawsuits each time they are alleged to have
provided assistance. The Senate Intelligence Committee
concluded that: ``The possible reduction in intelligence
that might result from this delay is simply unacceptable
for the safety of our Nation.'' Allowing continued
litigation also risks the disclosure of highly classified
information regarding intelligence sources and methods. In
addition to providing an advantage to our adversaries by
revealing sources and methods during the course of
litigation, the potential disclosure of classified
information puts both the facilities and personnel of
electronic communication service providers and our
country's continued ability to protect our homeland at
risk. It is imperative that Congress provide liability
protection to those who cooperated with this country in
its hour of need.
The ramifications of the Judiciary Committee's decision to
afford no relief to private parties that cooperated in good
faith with the U.S. Government in the immediate aftermath of
the attacks of September 11 could extend well beyond the
particular issues and activities that have been of primary
interest and concern to the Committee. The Intelligence
Community, as well as law enforcement and homeland security
agencies, continue to rely on the voluntary cooperation and
assistance of private parties. A decision by the Senate to
abandon those who may have provided assistance after
September 11 will invariably be noted by those who may
someday be called upon again to help the Nation.
Mandates an Unnecessary Review of Historical Programs. The
Judiciary Committee substitute would require that inspectors
general of the Department of Justice and relevant
Intelligence Community agencies audit the Terrorist
Surveillance Program and ``any closely related intelligence
activities.'' If this ``audit'' is intended to look at
operational activities, there has been an ongoing oversight
activity by the Inspector General of the National Security
Agency (NSA) of operational activities and the Senate
Intelligence Committee has that material. Mandating a new and
undefined ``audit'' will divert significant operational
resources from current issues to redoing past audits. The
Administration understands, however, the ``audit'' may in
fact not be related to technical NSA operations. If it is the
case that in fact the Judiciary Committee is interested in
historical reviews of legal issues, the provision is
unnecessary. The Department of Justice Inspector General and
the Office of Professional Responsibility are already doing a
comprehensive review. In addition, the phrase ``closely
related intelligence activities'' would introduce substantial
ambiguities in the scope of this review. Finally, this
provision would require the inspectors general to acquire
``all documents relevant to such programs'' and submit those
documents with its report to the congressional intelligence
and judiciary committees. The requirement to collect and
disseminate this wide range of highly classified documents--
including all those ``relevant'' to activities ``closely
related'' to the Terrorist Surveillance Program--
unnecessarily risks the disclosure of extremely sensitive
information about our intelligence activities, as does the
audit requirement itself. Taking such national security risks
for a backwards-looking purpose is unacceptable.
Allows for Dangerous Intelligence Gaps During the Pendency
of an Appeal. The Judiciary Committee substitute would delete
an important provision in the SSCI bill that enables the
Intelligence Community to collect foreign intelligence from
overseas terrorists and other foreign intelligence targets
during an appeal. Without that provision, we could lose vital
intelligence necessary to protect the Nation because of the
views of one judge.
Limits Dissemination of Foreign Intelligence Information.
The Judiciary Committee substitute would impose significant
new restrictions on the use of foreign intelligence
information, including information
[[Page S248]]
not concerning United States persons, obtained or derived
from acquisitions using targeting procedures that the FISA
Court later found to be unsatisfactory for any reason. By
requiring analysts to go back to the databases and pull out
certain information, as well as to determine what other
information is derived from that information, this
requirement would place a difficult, and perhaps
insurmountable, burden on the Intelligence Community.
Moreover, this provision would degrade privacy protections,
as it would require analysts to locate and examine U.S.
person information that would otherwise not be reviewed.
Requires FISA Court Approval of All ``Targeting'' for
Foreign Intelligence Purposes. The Judiciary Committee
substitute potentially requires the FISA Court to approve
``[a]ny targeting of persons reasonably believed to be
located outside the United States.'' Although we assume that
the Committee did not intend to require these procedures to
govern all ``targeting'' done of any person in the world for
any purpose--whether it is to gather human intelligence,
communications intelligence, or for other reasons--the text
as passed by the Committee contains no limitation. Such a
requirement would bring within the FISA Court a vast range of
overseas intelligence activities with little or no connection
to civil liberties and privacy rights of Americans.
Imposes Court Review of Compliance with Minimization
Procedures. The Judiciary Committee substitute would require
the FISA Court to review and assess compliance with
minimization procedures. Together with provisions discussed
above, this would constitute a massive expansion of the
Court's role in overseeing the Intelligence Community's
implementation of foreign intelligence collection abroad.
Amends FISA to Impose Burdensome Document Production
Requirements. The Judiciary Committee substitute would amend
FISA to require the Government to submit to oversight
committees a copy of any decision, order, or opinion issued
by the FISA Court or the FISA Court of Review that includes
significant construction or interpretation of any provision
of FISA, including any pleadings associated with those
documents, no later than 45 days after the document is
issued. The Judiciary Committee substitute also would require
the Government to retrieve historical documents of this
nature from the last five years. As drafted, this provision
could impose significant burdens on Department of Justice
staff assigned to support national security operational and
oversight missions.
Includes an Even Shorter Sunset Provision Than That
Contained in the SSCI Bill. The Judiciary Committee
substitute and the SSCI bill share the same flaw of failing
to achieve permanent FISA reform. The Judiciary Committee
substitute worsens this flaw, however, by shortening the
sunset provision in the SSCI bill from six years to four
years. Any sunset provision, but particularly one as short as
contemplated in the Judiciary Committee substitute, would
adversely impact the Intelligence Community's ability to
conduct its mission efficiently and effectively by
introducing uncertainty and requiring re-training of all
intelligence professionals on new policies and procedures
implementing ever-changing authorities. Moreover, over the
past year, in the interest of providing an extensive
legislative record and allowing public discussion on this
issue, the Intelligence Community has discussed in open
settings extraordinary information dealing with intelligence
operations. To repeat this process in several years will
unnecessarily highlight our intelligence sources and methods
to our adversaries. There is now a lengthy factual record
on the need for this legislation, and it is time to
provide the Intelligence Community the permanent stability
it needs.
Fails to Provide Procedures for Implementing Existing
Statutory Defenses. The Judiciary Committee substitute fails
to include the important provisions in the SSCI bill that
would establish procedures for implementing existing
statutory defenses and that would preempt state
investigations of assistance allegedly provided by an
electronic communication service provider to an element of
the Intelligence Community. These provisions are important to
ensure that electronic communication service providers can
take full advantage of existing liability protection and to
protect highly classified information.
Fails to Address Transition Procedures. Unlike the SSCI
bill, the Judiciary Committee bill contains no procedures
designed to ensure a smooth transition from the PAA to new
legislation, and for a potential transition resulting from an
expiration of the new legislation. This omission could result
in uncertainty regarding the continuing validity of
authorizations and directives under the Protect America Act
that are in effect on the date of enactment of this
legislation.
Fails to Include a Severability Provision. The Judiciary
Committee substitute, unlike the SSCI bill, lacks a
severability provision. Such a provision should be included
in the bill.
The Administration is prepared to continue to work with
Congress towards the passage of a permanent FISA
modernization bill that would strengthen the Nation's
intelligence capabilities while protecting the constitutional
rights of Americans, so that the President can sign such a
bill into law. The Senate Intelligence Committee bill
provides a solid foundation to meet the needs of our
Intelligence Community, but the Senate Judiciary Committee
bill represents a major step backwards from the PAA and would
compromise our Intelligence Community's ability to protect
the Nation. The Administration calls on Congress to forge
ahead and pass legislation that will protect our national
security, not weaken it in critical ways.
____
November 14, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This letter presents the views of the
Administration on the proposed substitute amendment you
circulated to Title I of the FISA Amendments Act of 2007 (S.
2248), a bill ``to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that act, and for other purposes.'' We have
appreciated the willingness of Congress to address the need
to modernize FISA permanently and to work with the
Administration to do so in a manner that allows the
intelligence community to collect the foreign intelligence
information necessary to protect the Nation while protecting
the civil liberties of Americans. With all respect, however,
we strongly oppose the proposed substitute amendment. If the
substitute is part of a bill that is presented to the
President, we and the President's other senior advisers will
recommend that he veto the bill.
In August, Congress took an important step toward
modernizing the Foreign Intelligence Surveillance Act of 1978
by enacting the Protect America Act of 2007 (PAA). The
Protect America Act has allowed us temporarily to close
intelligence gaps by enabling our intelligence professionals
to collect, without a court order, foreign intelligence
information from targets overseas. The intelligence community
has implemented the Protect America Act in a responsible way,
subject to extensive congressional oversight, to meet the
country's foreign intelligence needs while protecting civil
liberties. Unless reauthorized by Congress, however, the
authority provided in the Protect America Act will expire in
less than three months. In the face of the continued
terrorist threats to our Nation, we think it is vital that
Congress act to make the core authorities of the Protect
America Act permanent. Congressional action to provide
protection from private lawsuits against companies that are
alleged to have assisted the Government in the aftermath of
the September 11th terrorist attacks on America also is
critical to ensuring the Government can continue to receive
private sector help to protect the Nation.
In late October, the Senate Select Committee on
Intelligence introduced a consensus, bipartisan bill (S.
2248) that would establish a firm, long-term foundation for
our intelligence community's efforts to target terrorists and
other foreign intelligence targets located overseas. While
the bill is not perfect, it contains many important
provisions, and was developed through a thoughtful process
that ensured that the intelligence community retains the core
authorities it needs to protect the Nation and that the bill
would not adversely impact critical intelligence operations.
Importantly, that bill would afford retroactive liability
protection to communication service providers that are
alleged to have assisted the Government with intelligence
activities in the aftermath of September 11th. The
Intelligence Committee recognized that ``without retroactive
immunity, the private sector might be unwilling to cooperate
with lawful Government requests in the future without
unnecessary court involvement and protracted litigation.
The possible reduction in intelligence that might result
from this delay is simply unacceptable for the safety of
Our Nation.'' The committee's measured judgment reflects
the principle that private citizens who respond in good
faith to a request for assistance by public officials
should not be held liable for their actions. The bill was
reported favorably out of committee on a 13-2 vote.
We respectfully submit that your substitute amendment to
Title I of the Senate Intelligence Committee's bill would
upset some important provisions in the Intelligence Committee
bill. The substitute also does not adequately address certain
provisions in the Intelligence Committee's bill that remain
in need of improvement. As a result, we have determined, with
all respect to your efforts, that the substitute would not
provide the intelligence community with the tools it needs
effectively to collect foreign intelligence information vital
for the security of the Nation.
I. Limitations on Intelligence Collection and National Security
Investigations
The substitute would make several amendments to S. 2248
that would have an adverse impact on our ability to collect
effectively the foreign intelligence information necessary to
protect the Nation. These amendments include the following:
Prohibits Intelligence and Law Enforcement Officials From
Using Valuable Investigative Tools. The substitute contains
an amendment to the ``exclusive means'' provision of FISA
that could severely harm our ability to conduct national
security investigations. As drafted, the provision would bar
the use of national security letters, Title III criminal
wiretaps, ad other well-established investigative tools to
collect information in national security investigations.
Threatens Critical Intellilgence Collection Activities. The
``exclusive means'' provision also
[[Page S249]]
could harm the national security by disrupting highly
classified intelligence activities. Among other things,
ambiguities in critical terms and formulations in the
provision--including the term ``communications information''
(a term that is not defined in FISA) and the introduction of
the concept of targeting communications (as opposed to
persons)--could lead the statute to bar altogether or to
require court approval for overseas intelligence activities
that involve merely the incidental collection of United
States person information.
Limits Existing Provisions of Law that Protect
Communications Service Providers. The portion of the
substitute regarding protections to communication service
providers under Government certifications contains
ambiguities that could jeopardize our ability to secure the
assistance of these providers in the future. This could
hamper significantly the Government's efforts to obtain
necessary foreign intelligence information. As the Senate
Intelligence Committee noted in its report on S. 2248,
``electronic communications service providers play an
important role in assisting intelligence officials in
national security activities. Indeed, the intelligence
community cannot obtain the intelligence it needs without
assistance from these companies.''
Allows for Dangerous Intelligence Gaps During the Pendency
of an Appeal. The substitute would delete an important
provision in the bipartisan Intelligence Committee bill that
would ensure that our intelligence professionals can continue
to collect intelligence from overseas terrorists and other
foreign intelligence targets during the pendency of an appeal
of a decision of the FISA Court. Without that provision,
whole categories of surveillances directed outside the United
States could be halted before review by the FISA Court of
Review.
Limits Dissemination of Foreign Intelligence Information.
The substitute would impose significant new restrictions on
the use of foreign intelligence information, including
information not concerning United States persons, obtained or
derived from acquisitions using targeting procedures that the
FISA Court later found to be unsatisfactory. By requiring
analysts to go back to the databases and pull out the
information, as well as to determine what other information
is derived from that information, this requirement would
place a difficult, and perhaps insurmountable, operational
burden on the intelligence community in implementing
authorities that target terrorists and other foreign
intelligence targets located overseas. This requirement also
strikes us as at odds with the mandate of the September 11th
Commission that the intelligence community should find and
link disparate pieces of foreign intelligence information.
The requirement also harms privacy interests by requiring
analysts to examine information that would otherwise be
discarded without being reviewed.
Imposes Court Review of Compliance with Minimization
Procedures. The substitute would allow the FISA Court to
review compliance with minimization procedures that are used
on a programmatic basis for the acquisition of foreign
intelligence information by targeting individuals reasonably
believed to be outside the United States. This could place
the FISA Court in a position where it would conduct
individualized review of the intelligence community's foreign
communications intelligence activities. While conferring such
authority on the court is understandable in the context of
traditional FISA collection, it is anomalous in this context,
where the court's role is in approving generally applicable
procedures rather than individual surveillances.
Strikes a Provision Designed to Make the FISA Process More
Efficient. The substitute would strike a provision from the
bipartisan Senate Intelligence Committee bill that would
allow the second highest-ranking FBI official to certify
applications for electronic surveillance. Today, the only FBI
official who can certify FISA applications is the Director, a
restriction that can delay the initiation of surveillance
when the Director travels or is otherwise unavailable. It is
unclear why this provision from the Intelligence Committee
bill, which will enhance the efficiency of the FISA process
while ensuring high-level accountability, would be
objectionable.
II. Necessary Improvements to S. 2248
The substitute also does not make needed improvements to
the Senate Intelligence Committee bill. These include:
Provision Pertaining to Surveillance of United States
Persons Abroad. The substitute does not make needed
improvements to the Committee bill, which would require for
the first time that a court order be obtained to surveil
United States persons abroad. In addition to being
problematic for policy reasons and imposing burdens on
foreign intelligence collection abroad that do not exist with
respect to collection for law enforcement purposes, the
provision continues to have serious technical problems. As
drafted, the provision would not allow for the surveillance,
even with a court finding, of certain critical foreign
intelligence targets, and would allow emergency surveillance
outside the United States for significantly less time than
the bipartisan Senate Intelligence Committee bill had
authorized for surveillance inside the United States.
Maintains a Sunset Provision. Rather than achieving
permanent FISA reform, the substitute maintains a six year
sunset provision. Indeed, several members on the Judiciary
Committee have indicated that they may propose amendments to
the bill that would shorten the sunset, leaving the
intelligence community and our private partners subject to an
uncertain legal framework for collecting intelligence from
overseas targets. Any sunset provision withholds from our
intelligence professionals the certainty and permanence they
need to conduct foreign intelligence collection to protect
Americans from terrorism and other threats to the national
security. The intelligence community operates much more
effectively when the rules governing our intelligence
professionals' ability to track our adversaries are
established and are not changing from year to year. Stability
of law, we submit, also allows the intelligence community to
invest resources appropriately. In our respectful view, a
sunset provision is unnecessary and would have an adverse
impact on the intelligence community's ability to conduct its
mission efficiently and effectively.
Fails to Remedy an Unrealistic Reporting Requirement. The
substitute fails to make needed amendments to a reporting
requirement in the Senate Intelligence Committee bill that
poses serious operational difficulties for the intelligence
community. The Intelligence Committee bill contains a
requirement that intelligence analysts count ``the number of
persons located in the United States whose communications
were reviewed.'' This provision would be impossible to
implement fully. The provision, in short, places potentially
insurmountable burdens on intelligence professionals without
meaningfully protecting the privacy of Americans. The
intelligence community has provided Congress with a further
classified discussion of this issue.
We also are concerned by other serious technical flaws in
the substitute that create uncertainty.
The Administration remains prepared to work with Congress
towards the passage of a permanent FISA modernization bill
that would strengthen the Nation's intelligence capabilities
while respecting and protecting the constitutional rights of
Americans, so that the President can sign such a bill into
law. We look forward to working with you and the Members of
the Judiciary Committee on these important issues.
Thank you for the opportunity to present our views. The
Office of Management and Budget has advised us that from the
perspective of the Administration's program, there is no
objection to the submission of this letter.
Sincerely,
Michael B. Mukasey,
Attorney General.
J.M. McConnell,
Director of National Intelligence.
Mr. HATCH. On numerous occasions I have voiced very specific concerns
with the Judiciary substitute. I again want to list some of the reasons
that illustrate why I oppose this measure. One phrase that has been
expressed on the floor of the Senate is that the Judiciary substitute
supposedly ``strengthens'' oversight. That might sound like a good
talking point, but what does it mean? Does it mean that the
Intelligence Committee version is weak on oversight? Based on their
previous statements, some of my colleagues seem to believe this. One of
my colleagues described the Intelligence Committee bill as ``a bill of
token oversight and weak protections for innocent Americans.'' This
same colleague also stated that ``it really reduces court oversight
nearly to the point of symbolism.'' Another colleague stated the bill
will allow the Government to ``review more Americans' communications
with less court supervision than ever before.''
The truth is actually much different. The Intelligence Committee bill
contains extensive new oversight provisions for the Foreign
Intelligence Surveillance Court and Congress. I think it should be
perfectly clear that it is a fallacy to claim that the Intelligence
Committee bill does not have adequate oversight. On the contrary, it
has a level of oversight that is unprecedented and quite possibly
provides the most comprehensive oversight of any historical bill
relating to foreign intelligence gatherings.
We have also heard the contention that this bill would provide broad
new surveillance authorities. Since I have discussed the expanded
oversight, I wish I could put up some charts that illustrate this so-
called massive expansion of surveillance authority. The problem is that
expansion is not in the bill. It doesn't exist. Despite the phrase
being repeated over and over, this bill simply contains no new broad
and unprecedented surveillance authorities.
For the first time, the Federal Intelligence Court will review and
approve targeting procedures used by the intelligence community. For
the first time since 1978--it wasn't done before--FISC will determine
whether the procedures
[[Page S250]]
are reasonably designed to ensure targeting is limited to persons
outside the United States.
This bill simply accounts for the technological change in
international communications from over the air to cable. It is the bare
minimum, but it does give them what they need.
Given the amount of opposition to the Judiciary substitute, I wish to
highlight one of the controversial provisions added in the Judiciary
Committee relating to ``reverse targeting.''
One of the basic requirements of any FISA modernization proposal is
that we should not have any provisions which could be interpreted as
requiring warrants to target a foreign terrorist overseas. Quite
simply, foreign terrorists living overseas should never receive
protections provided by the fourth amendment to the Constitution. They
never have and they never should. Reverse targeting refers to the
possibility, as alleged by critics of lawful Government surveillance,
that the Government could target a foreign person when the real
intention is to target a U.S. person, thus circumventing the need to
get a warrant for the U.S. person. Reverse targeting has always been
unlawful in order to protect the communications of U.S. persons.
Contrary to what most people believe, the legitimate definition of U.S.
persons is not limited to U.S. citizens.
What is a United States person? ``An alien lawfully admitted for
permanent residence'' and ``a corporation which is incorporated in the
United States.''
So from an intelligence-gathering standpoint, reverse targeting makes
no sense. From an efficiency standpoint, if the Government were
interested in targeting an American, it would apply for a warrant to
listen to all of the American's conversations, not just conversations
with terrorists overseas. But let's not let logic get in the way of
good conspiracy theory.
Even though reverse targeting is already considered unlawful, a
provision is included in the Intelligence bill which makes it explicit.
This provision is clearly written and universally supported. However,
the Judiciary Committee passed an amendment by a 10-to-9 party-line
vote which altered the clear language of this provision. Where before
the provision said you cannot target a foreign person if the
``purpose'' is to target a U.S. person, the new language adds the
ambiguous term ``significant purpose.'' If this amendment became law,
an analyst would now have to ask himself the following question when
targeting a terrorist overseas: Is a ``significant purpose'' of why I
am targeting this foreign terrorist overseas the fact that the
terrorist may call, A, an airline in America to make flight
reservations or, B, a terrorist with a green card living in the USA? If
the answer is yes, then the language in this amendment would require a
warrant to listen to that foreign terrorist overseas. Do foreign
terrorists overseas deserve protections from the courts in the United
States? Of course not. The ambiguous and unnecessary text of this
amendment should not be left up to judicial interpretation. Enactment
of this amendment could lead to our analysts seeking warrants when
targeting any foreign terrorist, since the analyst may be afraid he or
she is otherwise breaking our new law.
Now we should remember that the Intelligence Committee spent months
working on a bipartisan compromise bill. This amendment I have been
talking about was not in the Intelligence bill. So people should assume
that the Judiciary Committee spent a great deal of time debating this
amendment, right? Wrong. The Judiciary Committee spent 7 minutes
debating this amendment before it was adopted on a 10-to-9 party-line
vote. Let me repeat that number: 7 minutes.
Now, the inclusion of this amendment alone would cause me to vote
against this Judiciary substitute. But there are many more provisions
that were added via party-line vote which I strongly oppose.
The Judiciary Committee also adopted an amendment to shorten the
length of the sunset in the Intelligence Committee's bill. There are a
few quick things we should realize when talking about sunsets.
It takes a great deal of time to ensure that all of our intelligence
agencies and personnel are fully trained in any new authorities and
restrictions brought about by congressional action. This is not
something that happens overnight. We cannot just wave a magic wand and
have our Nation's intelligence personnel instantaneously cognizant of
every administrative alteration imposed by Congress. Like so many
things in life, adjusting for these new mechanisms takes time and
practice.
While certain modifications are necessary, do we want to make it a
habit of consistently changing the rules? I do not think so. Don't we
want our analysts to spend their time actually tracking terrorists? Or
is their time better spent navigating administrative procedures that
may constantly be in flux? I can tell you clearly what I want, and that
is for our analysts to use lawful tools to keep our families safe. I do
not want to see them unnecessarily diverting their attention by burying
their heads in administrative manuals whenever the political winds
blow. After all of the efforts to finally write a bill that provides a
legal regime that governs contemporary technological capabilities, I am
certainly not alone in my opposition to this sunset provision. In fact,
my views are completely in line with what this body has done in the
past when amending FISA. Remembering that FISA itself had no sunset--
the 1978 bill had no sunset--let's look at how Congress has previously
legislated in this area: Sunsets are not common in previous laws
amending FISA. Other than the PATRIOT Act and the PATRIOT Act
reauthorization, seven of the eight public laws amending FISA had no
sunsets on FISA provisions, and the remaining public law had a sunset
on only one of the provisions.
Now this statistic speaks for itself. What is so different about this
bill? I do realize that it contains massive new oversight which could
possibly hinder our collection efforts, and that we may need to revisit
it for this reason. However, if this is the case, we obviously do not
need a sunset to do this. We can legislate in this area whenever we
want to.
The fact that the Judiciary Committee shortened the length of an
already unnecessary sunset is yet another example of why I will oppose
the Judiciary substitute amendment.
We all realize that the Judiciary Committee's bill also removed the
bipartisan immunity provision. I have come to the floor on numerous
occasions to articulate why this provision is so vital and so
necessary. I will do so again when we debate the misguided amendment to
strike this bipartisan compromise provision.
We are enacting national security legislation, and it is our
responsibility to ensure that this bill does not lead to unintended
consequences which provide protections to terrorists. I have no doubt
that provisions in the Judiciary Committee substitute could
significantly harm--significantly harm--our national security. I am not
willing to take that chance. I am not willing to support a bill which
raises operational hurdles that impede collection of foreign
intelligence. I am not willing to support initiatives that would allow
our collections to go dark during the appeal of a ruling from one
judge. I am not willing to support a bill which handcuffs our
intelligence agencies. I am not willing to support a bill which
provides excessive and obtrusive oversight that placates fringe
political groups at the possible expense of national security. The
stakes are too high. The damage that can be done if we get this wrong
is too great.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. HATCH. Mr. President, I ask unanimous consent for an additional
30 seconds to finish.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I will never apologize for voting in favor of provisions
which protect national security and civil liberties. During the
remainder of this debate, I will continue to support initiatives that
properly protect the lives and liberty of Americans. I am hopeful my
colleagues will do the same. And I hope we will table this Judiciary
Committee partisan amendment.
I yield the floor.
The PRESIDING OFFICER. The Senator from New York.
Mr. SCHUMER. Mr. President, I will speak later on the floor on the
FISA amendment. I want to say that I think the Judiciary Committee
amendment
[[Page S251]]
is careful and balanced and takes into account both security and
liberty. I also note, my colleague from Utah talked about the fact that
every citizen would need a warrant in terms of wiretapping. There
always has been, and will be in this bill, an emergency exception. So
if we have to quickly find someone, there will be an ability to
wiretap, and then go get the warrant. We do insist, however--and this
is one of the big differences on oversight--to make sure those
emergency provisions and the other provisions are being used according
to law, and it is not willy-nilly, whatever anybody wants at any time
in any place.
Mr. President, I ask unanimous consent to speak as in morning
business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Schumer are printed in today's Record under
``Morning Business.'')
Mr. SCHUMER. Mr. President, I yield the floor and suggest the absence
of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. KENNEDY. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. KENNEDY. Mr. President, I strongly urge my colleagues to support
the substitute amendment and pass the FISA bill reported by the
Judiciary Committee. Since I introduced the original FISA legislation
over 30 years ago, I have worked to amend the FISA law many times and I
believe that only the bill reported by the Judiciary Committee is
faithful to the traditional balance FISA has struck. FISA remains an
essential tool in our battle against America's enemies, and the bills
introduced by both the Judiciary Committee and the Intelligence
Committee give the executive branch vast authority to conduct
electronic surveillance that may involve Americans. But the
Intelligence Committee bill lacks safeguards to provide oversight and
prevent abuse, and Americans deserve better. The Foreign Intelligence
Surveillance Act is one of our landmark statutes. For three decades it
has regulated Government surveillance in a way that protects both our
national security and our civil liberties and prevents the Government
from abusing its powers. It is because FISA enhances both security and
liberty that it has won such broad support over the years from
Presidents, Members of Congress, and the public alike. It is important
to remember that before this administration, no administration had ever
resisted FISA, much less systematically violated it.
When the Bush administration finally came to Congress to amend FISA
after its warrantless wiretapping program was exposed, it did so not in
the spirit of partnership but to bully us into obeying its wishes. The
Protect America Act was negotiated in secret at the last minute. The
administration issued dire threats that failure to enact a bill before
the August recess would lead to disaster. Few, if any, knew what the
language would actually do. The result of this flawed process was
flawed legislation which virtually everyone now acknowledges must be
substantially revised.
I commend the members of the Intelligence Committee for their
diligent efforts to put together a new bill. They have taken their
duties seriously and they have made notable improvements to the Protect
America Act. But their bill is deeply flawed and I am opposed to
enacting it in its current form. This bill fails to protect America's
constitutional rights and fundamental freedoms. It is not just that the
Intelligence Committee bill gives retroactive immunity to telecoms,
which I strongly oppose; there are also many problems with title I of
the Intelligence Committee bill.
First: It redefines ``electronic surveillance,'' a key term in FISA,
in a way that is unnecessary and may have unintended consequences. We
have still not heard a single good argument for why this change is
needed.
Second: Court review occurs only after the fact with no consequences
if the court rejects the Government's targeting of minimization
procedures. This is a far cry from the traditional role played by the
FISA Court.
Third: It is not as clear as it should be that FISA and the criminal
wiretap law are the sole legal means by which the Government may
conduct electronic surveillance. This leaves open the possibility that
future administrations will claim that they are not bound by FISA.
Fourth: Its sunset provision is December 31, 2013. For legislation as
complicated, important, and controversial as this, Congress should
evaluate it much sooner. After all, the principal argument in support
of reforming FISA is that technology has evolved rapidly and the law
must change to take this into account. Because this legislation will
make major untested changes to the FISA system and the pace of
technology change will only increase, we should evaluate it sooner
rather than later.
The bill purports to eliminate the ``reverse targeting'' of
Americans, but does not actually contain language to do so. Reverse
targeting can occur if the Government wiretaps someone abroad because
it wants to listen to a correspondent in the United States, thereby
evading the traditional warrant requirement for domestic surveillance.
The Intelligence Committee bill has nothing similar to the House bill's
provision on reverse targeting which prohibits use of the authorities
if ``a significant purpose'' is targeting someone in the United States.
Mr. President, this legislation does not fully close the loophole
left open by the Protect America Act, allowing warrantless interception
of purely domestic communications. The administration has acknowledged
that when it knows ahead of time that both the person making the call
and the person receiving the call are located inside the United States,
it should have to get a court order before it can listen in on that
call. But the language of the bill doesn't clearly require it.
It does not require an independent review and report on the
administration's domestic warrantless eavesdropping program. Only
through such a process will we ever learn what happened and achieve
accountability and closure on this episode. It is enormously important,
Mr. President, that we find out exactly what happened during this
period of our history.
Add it all up, and the sum is clear: This bill is inconsistent with
the way FISA was meant to work and with the way FISA has always worked.
Fortunately, the Judiciary Committee's FISA bill shows that there is
a better way, one that is faithful to the traditional FISA balance. The
Judiciary Committee bill shares the same basic structure, but it
addresses all of the problems I listed earlier. The Judiciary Committee
bill was negotiated in public, which allowed outside groups and experts
to give critical feedback. It was also negotiated later in time than
the Intelligence bill, meaning we had the benefit of reviewing their
work.
Like the Intelligence Committee's bill, the Judiciary Committee's
version also gives the executive branch significantly greater authority
to conduct electronic surveillance than it has ever had before. Make no
mistake, it, too, grants substantial power to the intelligence
community. But unlike the Intelligence Committee's bill, the Judiciary
Committee's version sets reasonable limits to protect innocent
Americans from being spied on by their Government without
justification.
No one should underestimate the importance of title I of FISA. The
rules governing electronic surveillance affect every American. They are
the only thing that stands between the freedom of Americans to make a
phone call, send an e-mail, and search the Internet, and the ability of
the Government to listen in on that call, read that e-mail, and review
that Internet search.
In our information age, title I of FISA provides Americans essential
protections against Government tyranny and abuse. We have a choice. We
can adopt the Judiciary Committee's bill and preserve those protections
or we can adopt the Intelligence Committee's version of title I and
abandon them.
As I have said before, I also strongly oppose title II of the
Intelligence Committee bill, which grants retroactive immunity to the
phone companies. At the appropriate time, I will come to the floor and
explain why we must strike title II.
Mr. GRAHAM. Mr. President, I rise today in support of the bipartisan
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FISA legislation passed by the Senate Select Committee on Intelligence.
This legislation, which was passed by the Intelligence Committee on a
13-2 vote, will give the intelligence community the tools it needs to
effectively protect our Nation. It is not a perfect bill, but it is the
balanced product of months of hard work by the Intelligence Committee
members and their staff.
On the other hand, the substitute amendment proposed by the Judiciary
Committee would have substantially weakened the Intelligence Committee
legislation and our nation's ability to protect itself. Unlike the
bipartisan Intelligence Committee bill, the Judiciary Committee
legislation was passed on a series of party-line 10-9 votes. The
substitute would have added onerous and unnecessary hurdles to the
collection of vital national security intelligence. It would have
hamstrung our intelligence community at a very dangerous time in our
country's history. I am pleased that the Senate quickly rejected the
Judiciary Committee substitute. It would have been foolhardy for the
Senate to hinder America's ability to protect itself from terrorists
and other threats by gutting the Intelligence Committee bill.
Perhaps the biggest failure of the Judiciary substitute is its lack
of a retroactive immunity provision for electronic communication
service providers who are alleged to have assisted the government with
intelligence activities in the aftermath of September 11. The
telecommunications companies that lawfully responded to written
requests from their government to help protect the nation need and
deserve immunity from frivolous lawsuits that seek hundreds of billions
of dollars in damages.
The Intelligence Committee bill includes a responsible retroactive
immunity provision to protect the telecommunications companies that
aided the government in the wake of the September 11 attacks. However,
it leaves legal actions against the government and government officials
untouched. The Judiciary Committee substitute does not address the
critical need for retroactive immunity for cooperating companies and
would risk a future where companies refuse to cooperate with vital
government intelligence operations, lest they risk massive legal
liability. Without immunity, our Nation faces a substantial decrease in
future intelligence. Such a decrease would endanger American lives and
is simply unacceptable.
Again, while not a perfect bill, the Intelligence Committee
legislation would appropriately balance national security and
individual civil liberties. Our intelligence community must be able to
gather the information necessary to effectively protect the country.
The Intelligence Committee bill is a bipartisan compromise with
effective safeguards. The Senate should quickly pass this legislation
to give the intelligence community the tools it needs to protect
America.
The PRESIDING OFFICER (Mr. Salazar). The Senator from Missouri is
recognized.
Mr. BOND. Mr. President, I ask unanimous consent that I be given the
full 15 minutes that was allotted to us before the 2 o'clock vote. I
have some remarks, and I believe Senator Rockefeller, if we need that,
would like the full 15 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOND. Mr. President, last night, as I was preparing to leave my
office, I learned, with surprise, that Senator Leahy had made
significant modifications to the pending Judiciary Committee
substitute.
Our study during the night of these modifications revealed that the
partisan, Democratic-only Judiciary Committee substitute remains deeply
flawed.
While some aspects of the modified substitute have been cleaned up--
and, in fact, appear to borrow language that Senator Rockefeller and I
have been negotiating over the past several months as part of our
perfecting managers' amendment--the substitute contains many
problematic provisions that I cannot support.
In contrast to the underlying Intelligence Committee bill, I doubt
that the problematic provisions in the modified substitute were vetted
with the Republican Judiciary Committee members, the intelligence
community, or the Department of Justice.
It should be no surprise, then, that the DNI and the Department of
Justice continue to oppose the modified substitute.
Let me clarify some matters that were brought up by the distinguished
senior Senator from Massachusetts. First, the Protect America Act,
which expires on February 1, was not negotiated in secret. The DNI
asked the Intelligence Committee in April to consider a bill he set up.
He came before our committee and testified openly in May. He came
before the Senate in a classified meeting in S-407 in June. When we had
not been able to get a markup in the Senate Select Committee on
Intelligence and time was running short, he offered a stripped-down
version that would allow intelligence collection to continue. We were
unable to get a markup, so we filed with Leader McConnell the bill on
Wednesday. That bill sat on the floor Wednesday, Thursday, and Friday.
There were secret negotiations, but those were on the majority side.
The chairmen of several committees worked without informing the members
of the Intelligence Committee or, to my knowledge, any Republicans on
any of the committees, and they finally presented that to us less than
an hour before we went to the floor. So that was negotiated in secret.
It was unacceptable, and it did not allow intelligence collection to
continue. I am glad to say, on a bipartisan basis, we rejected the
secretly negotiated bill and passed the Protect America Act.
The Protect America Act did not expand on the authorities of FISA,
other than to clarify the means of collection, which previously were by
radio. Most communications overseas are by radio. Many communications
were going through America. This bill before us today, the Intelligence
Committee bill, does not, as my friend said, expand on the powers of
the intelligence community to collect. In fact, they impose more
restrictions to guarantee the privacy rights and the constitutional
rights of Americans. Those are in the bill. Those were negotiated. We
pushed the DNI and the Department of Justice lawyers as far as we could
to build in additional protections. Those are in the bill.
Now, if one reads the bill, you would see that reverse targeting is
prohibited in section 703(b), subparagraphs 2 and 3. It does strengthen
the privacy protections. That is why the Senate Intelligence Committee
bill is the bill that we should pass.
Moving back to the Judiciary Committee substitute, there is no
provision for retroactive or prospective immunity for communications
providers or for preemption of State investigations into providers'
alleged assistance to the Government in relation to the terrorist
surveillance program.
The distinguished chairman of the committee, Senator Rockefeller,
laid out at length, and very forcefully, why this protection is needed.
This protection is needed to assure that we can have the continued
assistance of carriers who might be called on not only in terrorist
matters but on many domestic crimes to provide assistance. Furthermore,
if we don't have that protection, if these lawsuits continue, it is
quite likely that the court proceedings will get into details further
on how the collection of electronic information and communications is
accomplished. Every time we talk about that and lay out more, we give
more information and more guidance to the terrorists themselves on how
to avoid our surveillance. We don't want to be in that position.
The next problem with the substitute from the Judiciary Committee is
that, unlike the managers' amendment that Senator Rockefeller and I
intend to offer for the Senate's consideration, the new substitute
doesn't fix the reporting problems of the Wyden amendment, which had a
great objective--and I agreed with the objective--but it is unworkable.
We are going to make it workable in our bill.
Furthermore, it requires the intelligence community to perform the
impossible task of estimating and recording U.S. person communications
in its possession. Anybody who wants to know why that is so, we would
be happy to meet with them in a closed meeting and explain why that is
not workable. It would be an impossible burden, one we cannot undertake
on the committee.
[[Page S253]]
Next, the substitute modifies the exclusive means provision from the
original substitute, but it is still problematic and requires an
express statutory authorization. That presumes that after the next
attack Congress will be in a position to act quickly to pass necessary
authorizations. I don't think we want to impose that provision.
The underlying Intelligence Committee bill provides the same
exclusive means, directions, and limitations that were in the FISA bill
initially.
Another problem with the Judiciary Committee bill is that it places a
provision in the Intelligence Committee bill that would have allowed
collection to continue until the FISA Court of review has--if they had
gotten an unfavorable ruling from one judge, it allows collection to
continue until the court of review rules on it. This is a real problem
if there is one unfavorable opinion that might put us deaf to
collections that are necessary.
The Intelligence Committee determined that anything except an
automatic stay through the FISA Court of review could jeopardize our
intelligence collection. This was already a compromise from the full
automatic stay that was in the Protect America Act.
Next, the substitute would impose unreasonable new restrictions on
the use of foreign intelligence information, including information not
concerning U.S. persons, obtained or derived from acquisitions using
targeting procedures that the FISA Court found to be deficient in some
manner, throwing out vital terrorist information because we didn't
protect the constitutional rights or there were some procedural flaws
in targeting a foreign terrorist in a foreign land.
It creates a superexclusionary rule in the foreign intelligence arena
that is at odds with the 9/11 Commission's mandate for the intelligence
community to find and link disparate pieces of foreign intelligence
information.
Read what they said. It was important. They said we are not sharing
information, and we need to share information within the community if
we are going to have a chance to prevent the next 9/11.
On reverse targeting, the substitute changes the bright-line reverse
targeting provision in S. 2248 to a new rule that changes ``the
purpose'' to ``a significant purpose.'' This change is a significant
concern to the DNI and DOJ. They told us it creates so much uncertainty
in the appropriate legal standard for collection, and it may confuse
analysts trying to follow the standards. This could inadvertently lead
to less robust intelligence collection.
Under the bulk collection, while the new substitute modifies the bulk
collection prohibition in the original Judiciary Committee substitute,
it doesn't solve the problem. This provision could have significant
unintended operational consequences, and it is unnecessary given
restrictions in S. 2248 about intentionally targeting persons in the
United States.
As I said, for example, if a general is about to order troops into
Fallujah, this prohibition could impede the ability of the intelligence
community to listen to calls coming into and out of that city without a
court order.
The FISA Court would be commanded, under the Judiciary Committee's
substitute, to assess compliance with minimization procedures used for
the acquisition of foreign intelligence information from individuals
outside the United States. As I reported earlier in my floor speech,
there is a FISA Court opinion, In Re: Motion For Release, December 11,
stating:
The Court recognizes the executive branch has the expertise
in national security, and the Court should not be making
judgments as to which particular surveillance unit should be
conducted.
Finally, it replaces a 6-year sunset with a 4-year sunset. As the
Senator from Massachusetts said, this bill ought to be reviewed
continually. Exactly. That is what the intelligence community should
do. We should not have a provision that would sunset the authority for
our collection of vital information. But we should have continuing
oversight which the Intelligence Committees have provided and will
continue to provide to make sure that collection is proceeding in a
manner consistent with the Constitution, with the laws, and the
regulations overseeing it.
We provide a robust oversight of the NSA collection. That collection
must be done in a manner consistent with the guidelines that Congress
has laid down, the Constitution has laid down, and the administration
has laid down. If there is any problem with that, then it is up to the
Intelligence Committees of both Houses to bring before the Congress, if
we cannot correct it by interceding with the people in the agency, a
bill to change it.
I see my chairman, Senator Rockefeller, is here. I will be glad to
yield the remaining 3 minutes of my time to the distinguished chairman
of the committee.
Mr. LEAHY. Mr. President, what is the parliamentary situation?
The PRESIDING OFFICER. The Senator from Missouri controls 2\1/2\
minutes. The Senator from Vermont controls 14 minutes.
The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I wish to take a few minutes to
describe to the Senate my views on the amendment reported by the
Judiciary Committee, and why I will be opposing the amendment when we
vote at 2.
First, I wish to repeat a few comments I made in my opening remarks
when we debated the motion to proceed to S. 2248 in December.
From the beginning of the Senate's consideration of foreign
intelligence surveillance legislation in 1976, the resulting law--the
Foreign Intelligence Surveillance Act of 1978--has been the joint
responsibility of both the Intelligence and Judiciary Committees. FISA
is, after all, a law that concerns both intelligence collection and
judicial proceedings.
The bill now before the Senate, S. 2248, was reported to the Senate
by the Intelligence Committee last October, and then sequentially
reported to the Senate by the Judiciary Committee in November.
As a parliamentary matter, the measure as reported by the Judiciary
Committee is the pending amendment to the bill reported by the
Intelligence Committee.
I agree with a number of the recommendations of the Judiciary
Committee. I have been pleased to work with members of the Judiciary
Committee on modifications that address particular concerns that had
been raised by the administration.
I will accordingly support individual amendments to add those
recommendations, as modified when necessary, to S. 2248. These include
a strengthened exclusivity provision, a 4-year sunset, court review of
compliance with minimization procedures, and an inspectors general
report on the President's warrantless surveillance program in order to
ensure there is a comprehensive historical record of that experience.
While I support many aspects of the Judiciary amendment, I cannot
agree with recommendations of the Judiciary Committee that may have an
adverse impact on U.S. intelligence collection or collection analysis,
and that are not warranted by a realistic concern about U.S. privacy
interests.
If any of those provisions are offered as individual amendments, I
will, of course, study them, but must reserve the right to oppose them.
I will illustrate my concern by describing two provisions of the
Judiciary amendment.
The Judiciary Committee substitute contains a ``significant purpose''
requirement. This has been described as a way to prevent reverse
targeting--that is, conducting surveillance of a person overseas when
the real target of the surveillance is a person within the United
States.
The Intelligence Committee bill already explicitly codifies the
existing prohibition on reverse targeting. What the Judiciary Committee
substitute actually does is turn the reverse targeting prohibition on
its head. I fear it would impose a new affirmative requirement that the
government must seek a FISA Court order when in the course of targeting
a foreign person outside the United States the government incidentally
collects the communications of U.S. persons.
This is unworkable and would create untenable gaps in our
intelligence coverage without significantly enhancing the privacy of
Americans. Incidental communications with or about Americans should be
handled properly, through minimization--a process that
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is strengthened in our bill. But the fact that there may also be a
foreign intelligence interest when a foreign target is in contact with
the United States should not be the cause of making it more difficult
to undertake the surveillance of the foreign target.
The Judiciary Amendment also includes a provision altering the
consequences of a FISA Court determination that there is a deficiency
in the Government's targeting or minimization procedures under the new
foreign targeting authority that will be enacted in S. 2248. Upon such
a court determination, the Intelligence Committee bill would require
the Government to either correct the deficiency or cease new
acquisition.
The Judiciary Committee provision goes beyond the requirement that
deficiencies be corrected or new acquisitions ceased. It would take the
further step of preventing all use of information already acquired
under the new procedure that concerns U.S. persons, unless the Attorney
General determines that the information indicates a threat of death or
serious bodily harm.
The provision is impractical. And it creates risks that we will lose
valuable intelligence.
The Judiciary Committee provision would require intelligence analysts
to go through all of the intelligence that had been collected under the
new process--presumably a very large collection of materials--to
identify information that might be subject to the restriction and make
sure that it had been not used in disseminated intelligence.
Even for minor deficiencies in procedures, this provision would
therefore require the Intelligence Community to discard information
that might constitute significant intelligence, and to focus its
analytical resources on satisfying this provision rather than
collecting and analyzing new intelligence. In my view, this allocation
of resources makes no sense.
At the end of our debate this morning, the Senate will be asked to
vote on the pending Judiciary Committee amendment as a whole, either by
way of a tabling motion or directly on the amendment.
Although, as I have indicated, there are parts of the Judiciary
amendment that I look forward to supporting, there are two reasons,
with all respect to the members of the Judiciary Committee, why I
cannot support the pending substitute amendment as a whole.
The first is that the form, and consequently the effect of the
amendment, goes beyond what the members of the Judiciary Committee
decided during their deliberations, and guts key parts of S. 2248
beyond any reasons agreed to by a majority of the Judiciary Committee.
S. 2248 has two substantive titles, in addition to a third title on
transition procedures.
The first title addresses intelligence collection; it is the direct
replacement of the Protect America Act.
The second title addresses the many lawsuits against telephone and
internet companies for their alleged cooperation with the Government.
At its markup, the Judiciary Committee rejected, by a clear 7-to-12
vote, an amendment to strike title II on liability protection.
Previously, the Intelligence Committee had voted against striking title
II by a 3-to-12 vote. In short, while there may be good ideas, that
certainly merit debate, about improving title II, there has not been
majority support in the Senate for striking it.
Yet, notwithstanding the lack of support in either the Judiciary or
Intelligence Committee for striking title II, the form in which the
Judiciary Committee reported its amendment would do just that.
We will welcome a debate about improving title II, but on behalf of
the Intelligence Committee--which voted overwhelmingly for title II--I
must defend keeping title II in the base text before the Senate. For
that reason alone, I must oppose the Judiciary amendment, even as I
support individual elements of it.
Second, as I have previously mentioned, even with respect to title I,
there are portions of the Judiciary amendment that I must oppose on the
ground that they will have an adverse impact on intelligence collection
or the use of intelligence that is not warranted by a realistic concern
about U.S. privacy interests.
Accordingly, with great respect for my colleagues on the Judiciary
Committee, I will vote against the Judiciary amendment. I also look
forward to joining them in urging the adoption of specific amendments
to improve the Intelligence Committee bill.
The PRESIDING OFFICER. The Senator's time has expired.
The Senator from Vermont.
Mr. LEAHY. Mr. President, obviously I disagree with the description
of the Senate Judiciary Committee's amendment. I spoke on this
yesterday, but I am going to take a few minutes to describe what is in
the Judiciary Committee's bill.
I support the Judiciary Committee amendment to the FISA Amendments
Act of 2007. The Judiciary Committee amendment would make important
improvements to the Intelligence Committee bill, at the same time
maintaining its structure and its authority.
The so-called Protect America Act was rushed through the Senate last
summer in an atmosphere of fear and intimidation. We even saw a key
member of the administration make commitments to numerous Senators,
Republicans and Democrats, on that bill and then break his word, first
to us and then on national television.
It was a bad bill that has provided sweeping new powers to the
Government. It imposes no checks on the Government and provides no
oversight or protection for Americans' privacy.
The Intelligence Committee did important work last fall in crafting a
bill that begins to walk back from the excesses of the Protect America
Act. I commend both Senator Rockefeller and Senator Bond for that. But
two committees in the Senate have jurisdiction over FISA the
Intelligence Committee and the Judiciary Committee.
The Intelligence Committee acted first to establish a good structure
for conducting critical overseas surveillance. The Judiciary
Committee's amendment maintains that structure and the authority for
surveillance. But in my view and in the view of many Senators, the
Intelligence Committee bill does not do enough to protect the rights of
Americans. Indeed, many members of the Intelligence Committee voted for
that bill knowing that the Judiciary Committee would have an
opportunity to improve it, and they expected us to do that.
FISA is among the most important pieces of legislation this Congress
has passed. It is there to provide a mechanism to conduct surveillance,
it is critical to our security, but also protect the privacy and civil
liberties of all Americans.
Let's be clear, this new authority expands FISA to allow more
flexibility to conduct surveillance. If we are going to expand
surveillance, we have to take great care to protect American civil
liberties, and that is what the Judiciary Committee adds.
I praise the members who serve on both the Judiciary and Intelligence
Committees--Senators Feinstein, Feingold, and Whitehouse, who
contributed so much to the Judiciary Committee's efforts to improve
this legislation. These Senators and others on the Judiciary Committee
worked hard to craft amendments that preserve the basic structure and
authority in the bill reported by the Select Committee on Intelligence,
while adding crucial protections for Americans.
The Judiciary Committee bill makes about 12 changes to the
Intelligence Committee bill. Let me address a few of them.
First, the Judiciary Committee bill contains a very strong
exclusivity provision. This provision makes clear that the Government
cannot claim authority to operate outside the law--outside of FISA--
from measures that were never intended to provide such exceptional
authority.
This administration argues that the Authorization for the Use of
Military Force, passed after September 11, provided the justification
for conducting warrantless surveillance of Americans for more than five
years. No, what it did was authorize going into Afghanistan to get
Osama bin Laden--the man who masterminded the attacks on 9/11. Not only
did the administration fail to do that, it took our troops out of
Afghanistan--when they had bin Laden cornered--to invade Iraq.
When we authorized going after Osama bin Laden, we did not authorize
explicitly or implicitly the warrantless
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wiretapping of Americans. Yet this administration still clings to this
phony legal argument. The Judiciary Committee bill would prevent that
dangerous contention with strong language reaffirming that FISA is the
exclusive means for conducting electronic surveillance for foreign
intelligence purposes. The Senate Intelligence Committee's bill would
do nothing to preclude the AUMF argument in the future.
We also provide a more meaningful role for the FISA Court in this new
surveillance. This court is a critical independent check on Government
excess in the sensitive area of electronic surveillance.
The fundamental purpose of many of the Judiciary Committee changes is
to ensure that this important independent check remains meaningful,
while maintaining the flexibility of ``blanket'' orders, which we all
agree are necessary. The Intelligence Committee bill would give the
FISA Court only a very limited role in overseeing surveillance.
The Judiciary Committee bill would give the FISA Court the authority
it needs to assess the Government's compliance with minimization
procedures. It would allow the Court to request additional information
from the Government, and allow the Court to enforce compliance with its
orders. The amendment would also give the court discretion to impose
restrictions on the use and dissemination of Americans' information if
it is collected unlawfully.
The Judiciary bill would make other important changes. It reduces the
sunset for this new law from 6 years to 4 years. This was Senator
Cardin's amendment. There is too much here that is new and untested to
allow the authorities go longer than even the next President's term
before requiring a thorough review. It clarifies that the bill does not
allow bulk collection that would simply sweep up all calls into and out
of the United States. It also clarifies that the Government may not use
this new authority to target Americans indirectly if they are not
allowed to do it directly. The administration says it would never do
this. They have no credibility. The Judiciary Committee's bill would
make sure they keep their word.
Finally, the Judiciary Committee bill includes a requirement that
inspectors general, including the Department of Justice inspector
general, conduct a thorough review of the so-called Terrorist
Surveillance Program and report back to the Congress and, to the extent
it can in an unclassified version, to the American people.
The Department of Justice inspector general will have the
responsibility to look at, among other things, the process at the
Department of Justice that limited knowledge and review of important
legal decisions to a tiny group of like-minded individuals, at great
cost to the rule of law and American values. This is a key measure that
would finally require accountability for this administration. We have
not yet had anything close to a comprehensive examination of what
happened and how it happened. We cannot expect to learn from mistakes
if we refuse to allow them to be examined.
I strongly oppose a provision in the Intelligence Committee bill that
would grant blanket retroactive immunity to telecommunications carriers
for their warrantless surveillance activities from 2001 through earlier
this year. That provision goes even beyond the so-called Protect
America Act. It would insulate this administration from accountability
for its lawbreaking. The Judiciary Committee bill does not have that
provision. I know that will be a separate debate on this floor.
With the authority of a majority of the Judiciary Committee members,
I made a few changes to the amendment as we reported it in November.
There are no major additions or deletions. The original 12 changes are
still there. The revised version makes some changes to address
technical issues and concerns the administration raised about our
substitute. We have considered the Statement of Administration Policy
from last December and we have talked with the administration. We have
listened and made changes that we think address some legitimate
concerns.
For example, we have revised the exclusivity provision. The provision
in the earlier version of the Judiciary Committee amendment could have
been read to extend the scope of FISA in a way that was not intended.
We corrected that.
Another concern we addressed was about the issue of staying FISA
Court decisions pending appeal. The Intelligence Committee bill would
automatically stay FISA Court decisions, thereby requiring possibly
illegal surveillance to continue throughout a lengthy appeal process.
The original Judiciary Committee amendment left the decision about a
stay to the discretion of the FISA Court judges--which is how it is
typically done in courts. The administration was concerned that this
left too much power to stop surveillance in the hands of a lone judge.
We listened and made a change that would permit the stay decision to be
made--promptly--by a panel of the FISA Court of Review.
Another change we made to address an administration concern was the
important IG audit provision. That provision now makes it clear that no
department inspector general has the authority to conduct a review of
another department.
These revisions make the Judiciary Committee's product stronger. I
think overall the Judiciary Committee's bill dramatically improves the
Intelligence Committee bill. As the distinguished chairman of the
Intelligence Committee said, we included a number of items he supports.
If this gets voted down, these are changes that Senators will have to
offer piece by piece, and will. Most of it will be germane after
cloture. If we really want to conclude this FISA debate quickly,
adopting this amendment will save the Senate countless hours of debate.
I urge my colleagues to support this amendment. Now, Mr. President,
what is the parliamentary situation?
The PRESIDING OFFICER. The Senator from Vermont has 2 minutes 40
seconds.
Mr. LEAHY. Mr. President, let me just talk about this a little bit.
Incidentally, I ask for the yeas and nays on my amendment.
The PRESIDING OFFICER. Is there a sufficient second?
Mr. BOND. I am going to offer a motion to table, but yes.
The PRESIDING OFFICER. There appears to be a sufficient second.
The yeas and nays were ordered.
Mr. LEAHY. Mr. President, we all want to be able to collect
intelligence on terrorists. When I came here, during the Cold War, we
wanted to be sure we could collect on our adversaries. We still want to
be sure we can do that. That is why I have voted for dozens of changes
to FISA over the years, requested by both Republican and Democratic
administrations. I voted for them because the administrations made a
clear and convincing case each time that we needed a change to keep up
with the technology or to keep up with a changing threat.
But let's not be so frightened by terrorists that we go back to the
situation we had during the Watergate era, when we found our Government
was spying on people who disagreed with it. The government spied on
people who had legitimate concerns about, for example, the war in
Vietnam or the excesses of J. Edgar Hoover. The government could do
that back then because there were no checks and there was no oversight.
We do not want to go back to that time. We can do our intelligence
gathering and protect Americans at the same time.
Now, Mr. President, has my time expired?
The PRESIDING OFFICER. The Senator from Vermont has 30 seconds.
Mr. LEAHY. Is that the only time anybody has?
The PRESIDING OFFICER. The Senator is correct.
Mr. LEAHY. I yield back all time.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, I move to table, and I ask for the yeas and
nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is on agreeing to the motion to table the Judiciary
Committee substitute, as modified. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
[[Page S256]]
and the Senator from Illinois (Mr. Obama) are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. Graham) and the Senator from Arizona (Mr.
McCain).
The PRESIDING OFFICER (Mr. Webb). Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 60, nays 36, as follows:
[Rollcall Vote No. 2 Leg.]
YEAS--60
Alexander
Allard
Barrasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kyl
Landrieu
Lieberman
Lugar
Martinez
McCaskill
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NAYS--36
Akaka
Baucus
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Kennedy
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
Lincoln
Menendez
Murray
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Webb
Whitehouse
Wyden
NOT VOTING--4
Clinton
Graham
McCain
Obama
The motion was agreed to.
Mr. BOND. I move to reconsider the vote and to lay that on the table.
The motion to lay on the table was agreed to.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, there will be an amendment offered by
Senators Rockefeller and Bond. It is a substitute that will be pending
for a while. What we are going to try to do over here, I have spoken to
a number of Members who want to offer amendments relating to title I.
We are working out an order in which they will be offered. What we
would like to do is have a number of them offered, debated, and have a
time this afternoon that we can vote on all of them in succession. We
will try to finish all the title I amendments, and then we will move to
title II. We hope there isn't a lot of time spent on each amendment,
but Members have a right to take whatever time they want. In an effort
to make this more understandable, rather than jumping back and forth,
title I and title II, on this side we will try to offer amendments as
they relate to title I.
We understand there is no requirement to do this. But if there are
amendments the minority wants to offer, we will certainly be
cooperative and make sure we have the ability to go back and forth.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the pending
amendment be set aside and I call up amendment----
Mr. REID. Mr. President, the Senator from Wisconsin has been very
patient. As soon as Senators Rockefeller and Bond finish offering their
substitute, I ask unanimous consent that Senator Feingold have the
floor.
The PRESIDING OFFICER. Is there objection?
Mr. McCONNELL. I will object momentarily. I wish to discuss the
matter with the majority leader. Let's have Senator Rockefeller and
Senator Bond go ahead.
The PRESIDING OFFICER. Objection is heard.
Mrs. MURRAY. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from West Virginia is recognized.
Amendment No. 3911
Mr. ROCKEFELLER. Mr. President, I send an amendment to the desk on
behalf of myself and Senator Bond and ask for its immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from West Virginia [Mr. Rockefeller], for
himself and Mr. Bond, proposes an amendment numbered 3911.
Mr. ROCKEFELLER. I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. ROCKEFELLER. Mr. President, the distinguished vice chairman,
Senator Bond, and I have joined in a bipartisan amendment to S. 2248,
the FISA Amendments Act of 2008. The Rockefeller-Bond amendment
perfects various details of the underlying bill but its main purpose is
to provide explicit statutory protection, for the first time in the 30
years of FISA, for Americans who are outside the United States.
The amendment stands for the simple proposition that Americans,
whether they are working, studying, traveling or serving in our Armed
Forces outside the United States, do not lose their rights as Americans
when it comes to the actions of their own Government. In 1791, when the
Bill of Rights was ratified, including, of course, the fourth
amendment, which protects our people from unreasonable search and
seizure, there were 4 million Americans. That was it. Now that very
number of Americans, 4 million, lives outside the United States and, of
course, many millions more travel each year outside the United States.
Because this amendment is so important and because it has gone
through so much development to reach the point at which we have now
arrived, I would like to take, frankly, a few minutes to describe its
origin and evolution, with the forbearance of my colleagues.
The protection of Americans outside the United States may have been
the single most important piece of business left undone by the original
FISA statute created in 1978. To fill that void, President Reagan
issued an executive order, Executive Order 12333, that addresses the
use of intelligence techniques such as electronic surveillance or
unconsented searches against Americans abroad.
Executive Order 12333 requires that intelligence agencies have
procedures and that those procedures protect the constitutional rights
of Americans overseas. It also requires the Attorney General to
determine that there is probable cause to conclude that the American
overseas is an agent of a foreign power before the U.S. Government
undertakes electronic surveillance or conducts searches abroad against
that person. That was good but insufficient. In our country of laws, we
do not usually leave it, outside of an emergency, to any Attorney
General to decide alone whether there is probable cause for a search.
That is a decision which we entrust to neutral judges.
Our bipartisan amendment--Senator Bond's and mine--makes sure
Americans do not lose that important protection by setting foot outside
the United States.
Vice Chairman Bond and I took the first step when we included, in our
October Intelligence Committee mark, a provision concerning acquisition
by the intelligence community of the communications of U.S. persons
abroad.
We focused our proposal on the circumstance when the Government is
seeking those communications from electronic communication providers
within the United States. We did not address the targeting of U.S.
persons overseas by intelligence community collection methods that are
employed outside the United States.
The provision before the Intelligence Committee in its October markup
would have allowed the Attorney General to determine that a U.S. person
outside the United States was a foreign power, agent of a foreign
power, or an officer or employee of a foreign power, and then target
that person for collection. Under our proposal, the Attorney General
would then have been required to submit that probable cause
determination to the FISA Court for review.
But as the chairmen and ranking members of committees sometimes learn
from their full membership of
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their committees, important ideas may require broad solutions.
During our committee markup, Senator Wyden offered an amendment on
targeting U.S. persons abroad that substituted two new sections in
place of the language described above on targeting U.S. persons abroad.
First, the Wyden amendment required the Government to obtain a
standard FISA order for electronic surveillance--known as a title I
order--before the Government could target U.S. persons outside the
United States by seeking their communications from providers in the
United States.
Thus, rather than the new procedure described in our chairman and
vice chairman mark, the amendment required a title I FISA application
and order whenever the collection against an American abroad occurred
with the assistance of a provider in the United States.
Second, the Wyden amendment required that the Government, when acting
outside the United States, obtain a FISA Court order before targeting
the communications of U.S. persons located outside the United States.
Specifically, it required a FISA Court order that there was probable
cause to believe that the U.S. person who was the target of
surveillance was, in fact, a foreign power or an agent of a foreign
power before the Government employed surveillance techniques outside
the United States. This second part of the Wyden amendment implemented
an entirely new concept of law.
A court order has never before been required for foreign intelligence
collection that is conducted entirely outside the United States, even
if that collection involves U.S. persons. But while new, it quickly
became evident it was an idea whose time had come. The Wyden amendment
passed the committee with a vote of 9 to 6.
Yet, as often is the case for an initial amendment of such magnitude,
it was also immediately clear that further work needed to be done
before the proposal became law to make sure it worked well in practice.
During the markup, Senator Whitehouse, who is a member of the
Judiciary Committee--and in his first year in this body has already
emerged as a leading legal voice among us--stated he would be willing
to work on the language of the amendment in the Judiciary Committee, on
which he also serves, during the sequential referral process to ensure
that it achieved its desired goal and did not result in unintended
decreases in collection.
Senator Whitehouse, working with the Department of Justice, was
largely responsible for the changes made to the provision on U.S.
persons outside the United States that is included in the Judiciary
Committee substitute amendment. It is a good amendment.
He focused his efforts to changes on the second part of the section,
the portion relating to collection of electronic communications outside
the United States. The provision requiring a traditional FISA
electronic surveillance application for collection inside the United
States remained mostly unchanged in the Judiciary Committee markup.
The Judiciary Committee amendment makes some necessary technical
fixes to the section on collection outside the United States. It
stressed that the FISA Court would only be permitted to assess the
question of probable cause for collection outside the United States,
not the methods of acquisition of the information, as any such inquiry
might delve into very sensitive intelligence matters.
The Judiciary Committee section on collection outside the United
States also made three other important changes:
First, the addition of emergency procedures, similar to those
included in other parts of FISA, that would allow the Attorney General
to acquire the information as long as a subsequent order is obtained;
second, a more explicit, individualized review of minimization
procedures; and, third, the addition of procedures to transition
current acquisitions under Executive Order 12333 over to the new
procedure.
The managers' amendment, offered by Senator Bond and myself, now
seeks to complete this process by fully integrating the new procedure
into the overall reforms contained in the FISA Amendments Act of 2008
and does so in a manner that maintains an effective system of
intelligence collection.
In the course of doing that, we have sought to resolve, in
conjunction with the Department of Justice and the intelligence
community, several problems identified with the Judiciary Committee
substitute.
The most significant changes in the managers' amendment have been
made to the first part of the Wyden amendment: the requirement that the
Government obtain standard electronic surveillance--title I--orders for
the targeting of U.S. persons abroad that occurs within the United
States.
That provision, as of this moment, remains a part of our base bill
and will remain so until an amendment is adopted. As I will discuss in
more detail, our proposed changes are required because the language of
this provision, as reported out of both the Intelligence and Judiciary
Committees, would prevent certain types of important foreign
intelligence collection.
First, the definition ``agent of a foreign power'' in FISA, which
requires a U.S. person to have engaged in certain types of wrongdoing,
is different than the definition of ``agent of a foreign power'' that
has traditionally been used in overseas collection against Americans.
The Director of National Intelligence has therefore proposed, and we
agree, that collection against a U.S. person abroad should be expanded
beyond ``agent of a foreign power'' to ``an officer or employee of a
foreign power,'' to cover the types of collection that have
traditionally been allowed against U.S. persons overseas.
For example, the notorious Charles Taylor, the former President of
Liberia, who is now charged with crimes against humanity, is an
American who was an officer of a foreign power.
Second, the Judiciary Committee provision did not deal with the issue
of stored electronic communications or stored electronic data, the
collection of which is dealt with under title III rather than title I
of FISA and which are an important part of the acquisition system that
is established by the new title VII that S. 2248 will add to FISA.
To address this issue, the managers' amendment that Senator Bond and
I are proposing, after extensive technical consultations with the
intelligence community and the Department of Justice, adds two sections
to the new title VII in our committee's bill, and, in so doing,
addresses the intelligence collection concerns identified by the
Director of National Intelligence.
By placing all the relevant detail for collection against U.S.
persons overseas in the same new title of FISA--title VII--that
includes all other procedures for persons outside the United States,
the managers' amendment provides a comprehensive, consolidated roadmap
for all those in the intelligence community, the Department of Justice,
and the FISA Court who will have the responsibility to implement our
amendment.
In conclusion, I would like to underscore some major points.
As is evident from everything I have described, it is important to
thank two members of our committee for their work on this issue of
targeting Americans overseas.
Senator Wyden, obviously, is one of those. I wish to recognize his
leadership at all times in this area. He recognized the importance of
the issue and successfully offered an amendment at the Intelligence
Committee mark-up that broadened the protections contained in our bill.
Senator Whitehouse has been indispensable contributor to the effort
on this provision as well, quietly working out problems and making
things work better. His work goes a long way toward ensuring that the
provision can be successfully implemented by the intelligence
community, which is key.
By adopting this amendment on a bipartisan basis, the Intelligence
Committee--and now the vice chairman and myself in our managers'
amendment--seek to ensure that Americans are protected from unwarranted
surveillance, whether they are inside or outside the United States.
This is a significant new protection for U.S. persons. When the
United States conducts foreign intelligence collection overseas on a
U.S. person located outside the United States, currently only the
Attorney General, not a court, makes a probable cause determination. I
have said that. U.S. citizens have never before been entitled by
[[Page S258]]
statute to court protection in this area. Now, hopefully, they will be.
Our bipartisan goal is clear: A court must be involved when U.S.
persons are targeted for surveillance, no matter where those persons
are located or how they are targeted.
We are also in agreement that our original committee provision and
the work of the Judiciary Committee needed refinement to ensure it did
not have unintended consequences that might limit the collection of
foreign intelligence information. The purpose of our amendment is to
make sure we do not reduce the scope of any current intelligence
collection.
Our managers' amendment accomplishes this goal. Under the managers'
amendment, if a U.S. person is targeted overseas by using a
communications provider within the United States, FISA will now require
that the Government submit an application to the FISA Court and obtain
a FISA Court order. Although the process to obtain the order is
tailored to address some of the operational concerns relevant to the
issue of collection on U.S. persons located outside the United States,
and consolidated in a new title of FISA, the procedures are as robust
and protective of the privacy rights of U.S. persons as existing FISA
procedures.
If the acquisition occurs outside the United States, FISA will now
require that the FISA Court issue an order finding that there is
probable cause to believe the U.S. person who is the target of the
acquisition is an agent, officer or employee of a foreign power,
without involving the FISA Court in the methods of overseas collection.
Those methods of overseas collection will continue to be governed by
applicable executive branch directives, such as Executive Order 12333,
which impose limits on intelligence agencies in order to protect the
constitutional rights and other legal rights of Americans.
Mr. President, I urge the adoption of this amendment.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, I thank the chairman for his extensive
discussion of this measure. This is one of the significant additions we
are making to the preexisting FISA law. It is something that was
brought up and discussed in the committee. There was general agreement
that an American or a U.S. person who goes abroad ought to be provided
some form of protection. We discussed it at length.
The objective was provided in a very brief statement in the amendment
that appeared before the committee. I was very concerned about it
because I knew just enough about the FISA law to be thoroughly confused
about how it would work. I voted against it but expressed my desire and
willingness to work with the sponsor of this amendment and the other
members of the committee because it was a good idea.
Well, we found out how complicated it is to amend and to change the
FISA law because of the many working parts, not only within the law but
within the actual means of interception.
Well, we worked for better than a month on a bipartisan basis with
the proponents of this measure--and I consider myself a proponent of
this measure--with the intelligence community, lawyers for the
Department of Justice, and we came up with a simple little 25-page
statutory provision. It is now included in the managers' amendment.
Should anyone think it is simple to amend FISA, I suggest you begin
reading at page 5 of the measure before us, and read through page 29, I
believe it is, to show how it is accomplished. Nevertheless, this puts
in a new layer of protection for U.S. persons. Obviously, we are
concerned. Those are American citizens who are abroad.
There were questions raised: Well, if I go abroad, can the
intelligence community tap my phone without a court order? Well, first
of all, the intelligence community is not going to be tapping anybody's
phone or trying to listen in on any--intercept any conversations unless
they have good, solid information that that phone is in a terrorist's
hands. They have to have intel before they even look at that
conversation. That intel could come in many forms which I won't
describe here, but that--first of all, if you are abroad, you would not
have been targeted unless you had certain reasonable connections with a
terrorist activity or a terrorist who would give the Attorney General
and the intelligence community the basis for asserting that there was a
terrorist content to the phone conversation.
Now, why do they do this? Because they have more communications than
they can handle. They have more terrorist communications almost than it
is possible to keep up with. The last thing they want to do is target a
conversation of a U.S. person or an American abroad who doesn't have
any connection to terrorist activities. So previously, only if there
was one of the connections that would give reasonable grounds to lead
the Attorney General to say that there was valuable foreign
intelligence collection would you collect on it. But now, if that is an
American citizen or, more broadly, a U.S. person, they have to go to
the intelligence court, the FISC, to get an order--two different kinds
of orders depending upon how the collection is going to occur--and get
an order finding that there is probable cause to believe, as the
chairman has said, that this person is an agent, officer, employee of a
foreign power and has foreign intelligence information that may be
communicated.
So this is a protection that I hope those concerned about the use of
electronic surveillance will understand is a significant step we have
taken toward protecting the rights of American citizens. But I point
out the fact that it took us a month and about 24 or 25 pages to
accomplish it. But with that being said, I urge my colleagues on both
sides of the aisle to support it. This is a major new expansion of
protection for American citizens, U.S. persons, and this is one of the
privacy constitutional right protections added by this bill that was
never there before. I urge my colleagues to support it.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Amendment No. 3909 to No. 3911
Mr. FEINGOLD. Mr. President, I call up amendment No. 3909.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wisconsin [Mr. Feingold] proposes an
amendment numbered 3909 to amendment No. 3911.
The amendment is as follows:
(Purpose: To require that certain records be submitted to Congress)
Strike subsection (b) of section 103, and insert the
following:
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following new subsection:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings associated with such decision,
order, or opinion, not later than 45 days after such
decision, order, or opinion is issued; and
``(2) a copy of any such decision, order, or opinion, and
the pleadings associated with such decision, order, or
opinion, that was issued during the 5-year period ending on
the date of the enactment of the FISA Amendments Act of 2008
and not previously submitted in a report under subsection
(a).''.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that Senator
Dodd be added as a cosponsor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, this amendment is a straightforward
reporting requirement that is critical if Congress is to understand how
the foreign intelligence surveillance laws it passes, including this
one, are being interpreted and applied. The issue is very simple. If
the FISA Court makes a significant interpretation of the law, I think
Congress should know about it. Congress can't conduct oversight of
intelligence unless it knows what the court is and is not permitting
the administration to do. Congress can't pass new legislation without
knowing how the court has interpreted current law.
This issue is absolutely fundamental to our constitutional system.
Congress has a responsibility to understand the impact of the laws it
is passing. The courts should have the assurance that when they
interpret the law, those interpretations will be communicated to the
legislature. This isn't some unusual idea; this is how our system of
[[Page S259]]
government has operated from its inception.
Specifically, this amendment does two things. First, it requires that
when the court issues an opinion that includes a significant legal
interpretation, the Government must provide the Government's pleadings
associated with that decision to Congress. Now, these pleadings are
often critical to understanding the legal interpretations of the court.
This is in part because at times the court's opinions merely reference
and approve the Government's arguments made in those pleadings. So it
is really necessary to be able to review the pleadings themselves if
you are going to understand the court's decision. They are also
necessary to understand how the Government interprets and seeks to
implement the law.
Neither Congress's oversight of the intelligence community nor any
responsible legislating in the area of foreign intelligence
surveillance can be effective without these documents. Yet, even today,
as Congress considers this FISA legislation, the administration
continues to refuse to provide Congress with important FISA Court
pleadings.
The other reason is this: The amendment requires that the Government
provide Congress with FISA Court orders that include significant
interpretations of law over the last 5 years. Now, this is necessary
because there was an enormous loophole in previous statutory reporting
requirements that would be closed for the first time by this
Intelligence Committee bill.
The Government didn't previously have to provide Congress with
significant interpretations of law if they were included in court
orders rather than court decisions or opinions. But we know from the
administration's public announcement in January about the President's
wiretapping program that such legal interpretations are, in fact, found
in orders. For Congress to have any sense of how the court has
interpreted the FISA statute, therefore, it is critical to understand
recent jurisprudence. Congress needs to have access to FISA Court
orders not just going forward but for the past 5 years as well.
This is not theoretical. The administration has refused to provide to
Congress orders containing significant interpretations of law, and that
is just what we know of. Without this amendment, we might never know
what other important legal interpretations are out there.
To be clear, I first offered an amendment to require that FISA Court
orders and other documents be provided to Congress through the
intelligence authorization bill. It was approved on a bipartisan basis.
It was later removed from the authorization bill, and only a watered-
down version was included in the Intelligence Committee FISA bill. What
my amendment today does is merely put the language back that has
already been given the support of a bipartisan majority of the
Intelligence Committee.
The most appropriate arrangement for Congress to obtain information
related to the FISA Court would be for the court to provide it
directly, without the involvement of the executive branch. So granting
the executive branch any role in an exchange between the two other
branches of Government, which is what my amendment actually allows, is,
in fact, already a compromise.
But this amendment is a direct response to the administration's
assertion that it can withhold FISA Court opinions and documents that
include significant interpretations of law from Congress--not letting
us read these things. Imagine if the administration tried to keep
Supreme Court decisions from Congress. Even worse, imagine if the
administration tried to keep from Congress a decision like Hamdan v.
Rumsfeld, which rejected the administration's military commissions,
just as Congress was considering the Military Commissions Act. Congress
wouldn't stand for it. Yet that is exactly what is happening in the
world of intelligence.
There are really no serious, substantive reasons to oppose this
amendment. Orders and pleadings will be provided to the Intelligence
Committee in a classified and, if necessary, redacted manner, just as
FISA Court decisions are now. This is the furthest thing from an
onerous reporting requirement. If there are FISA Court orders that
include significant interpretations of law, Government lawyers
certainly know what they are and where to find them.
It is sometimes said that intelligence in technical terms ``belongs''
to the executive branch. I disagree. But in any case, such an argument
simply doesn't apply here. This amendment relates to the documents of
an article III court. Just last month, that court confirmed in a rare
public opinion that it has ``inherent power'' over its own records--in
other words, they do not belong to the executive branch.
Finally, let me stress the scope of the information Congress needs
before it can conduct effective oversight and legislative
responsibility.
While the public is understandably focused on the FISA Court's
involvement with regard to the President's warrantless wiretapping
program, the FISA Court is actually responsible for interpreting all of
the FISA statutes. Now, that includes the electronic surveillance
issues we are considering here today but also physical searches of
Americans' homes and the collection of sensitive business records,
including library and medical records. Just as Congress should know how
the Protect America Act and this FISA bill will be interpreted, it
should have similar information with regard to the FISA provisions
related to the PATRIOT Act and any other legislation that governs
surveillance and affects the rights of Americans.
This simple reporting requirement is critical to congressional
oversight, and I urge my colleagues to support it.
Mr. LEAHY. Mr. President, I support Senator Feingold's amendment to
provide Congress with additional materials from the FISA Court to
enable Congress to conduct more effective oversight. This amendment is
one of the many improvements to the Senate Intelligence bill adopted by
the Judiciary Committee and included in the Judiciary Committee's
substitute amendment. Regrettably, that substitute was tabled by the
full Senate earlier today. But I urge Senators to reconsider their
votes with respect to this simple but critically important reporting
requirement.
Under current law, semi-annual reporting requirements allow the
government to wait up to a year before informing the Congress about
important interpretations of law made by the FISA Court. The Senate
Intelligence bill took a step in the right direction by requiring that
Congress be provided with the orders, decisions and opinions of the
FISA Court that include significant interpretation of law within 45
days after they are issued.
Senator Feingold's amendment would go a step further to ensure sound
oversight by Congress of the activities of the FISA Court. It would
require that, when the FISA Court issues an opinion containing a
significant legal interpretation, the government must provide Congress
with the government's pleadings related to the case. This is critically
important because, where the FISA Court simply adopts the government's
reasoning in one of its decision, Congress will have no way of knowing
the true basis for the court's ruling without access to the
government's pleadings.
The Feingold amendment would also require that Congress now be
provided with any significant interpretations of law by the FISA Court
that were not provided to Congress over the past 5 years. Access to
past jurisprudence, as well as current decisions, is critical to
Congress's understanding of how FISA is being interpreted and
implemented.
Opponents of this amendment say that it may create additional
``paperwork.'' But if Congress can be better informed about the
workings of the FISA Court--a court Congress created--and can more
effectively oversee the government's advocacy in that Court, then any
incremental additional paperwork is clearly in the best interests of
the American public. Opponents also say that the pleadings may reveal
sources and methods, and therefore cannot be turned over to the
Congress. This is a red herring. As Senator Feingold has stated
repeatedly, this amendment is not intended to compel disclosure of this
kind of information, and nothing in the amendment could be construed to
change the time-tested practice of redacting information that could
reveal sources and methods.
I urge all Senators to support the Feingold amendment, and to reject
any attempts to water down this important reporting requirement by way
of second-degree amendments.
[[Page S260]]
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Mr. President, this measure has been considered in the
Intelligence Committee. I believed it was not necessary to require
additional paperwork, but also I think it is important to note that
some of the charges made about the powers given to the intelligence
community are way out of bounds.
This measure before us does, in fact, put further constraints on the
intelligence community. There are powers that exist in both the
intelligence community and in law enforcement agencies which may not be
affected here. But to say this offers broad new means of getting into
business records and other personal effects of individuals--this is a
bill devoted to electronic surveillance. The reason we needed to do the
bill on electronic surveillance was the fact that the means of
electronic surveillance have changed, and the old FISA law did not
permit the kind of collection that previously was permitted when
communications outside the United States were by radio rather than by
cable.
The whole purpose of this bill is to ensure that there are procedures
in place to permit surveillance targeting people reasonably believed to
be outside the United States who have connections with terrorist
activities, so that they are an agent or an employee or an officer of a
foreign power and have legitimate foreign intelligence information.
That is the test. That is what this does. Arguments about the nature of
foreign intelligence surveillance should be limited to this bill.
Mr. President, I yield the floor.
Mr. KYL. Mr. President, might I inquire of the Senator from Wisconsin
a question. As I read the amendment, it is silent with respect to the
ability of the administration to--or the appropriate authorities to
redact material in the interests of protecting their sources and
methods. Is it assumed in the amendment that the authority to redact
would exist?
Mr. FEINGOLD. Not only is it assumed, but I just stated specifically
on the floor a few minutes ago that it would exist.
Mr. KYL. I thought I had heard the Senator indicate that redaction
would be permitted, and that is the intent of the amendment; is that
correct?
Mr. FEINGOLD. Correct.
Mr. KYL. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BOND. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3916 to Amendment No. 3909
Mr. BOND. Mr. President, I send a second-degree amendment to the desk
and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Missouri [Mr. Bond] proposes an amendment
numbered 3916 to amendment No. 3909.
Mr. BOND. Mr. President, I ask unanimous consent that the reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
On page 1, line 8, strike all after ``subsection (a)''
through page 2, line 14, and insert the following: ``, with
due regard to the protection of the national security of the
United States--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of review that includes
significant construction or interpretation of any provision
of this Act, not later than 45 days after such decision,
order, or opinion is issued; and
``(2) a copy of any such decision, order, or opinion that
was issued during the 5-year period ending on the date of the
enactment of the FISA Amendments Act of 2008 and not
previously submitted in a report under subsection (a).''.
Mr. BOND. Mr. President, as the sponsor of the first-degree amendment
has noted, this was debated and it was adopted on I believe a 10-to-5
or 9-to-6 vote in the committee, but we found out there were
substantial problems with this amendment to which the intelligence
community objected. We modified it to the provisions that are now in
the current managers' amendment and the underlying bill.
The major problem with this amendment is the pleadings. Pleadings
have historically been protected during any litigation involving FISA.
Congress has only received limited access to certain pleadings, certain
actions for audit purposes in controlled circumstances.
This amendment I have offered incorporates the national security
protection, which the author of the underlying amendment suggested, and
it does provide for the 5 years of back opinions from the FISC. This
gives the 5 years. We have had semiannual reports from the FISC on all
of the opinions handed down in the previous 6 months.
It is somewhat burdensome, but I have been negotiating with the
Department of Justice lawyers. They say while it is burdensome, this is
not objectionable. They prefer not to have it, but the one thing on
which they are standing firm and believe they cannot accept is to
require turning over the pleadings.
The pleadings are actually some of the most sensitive intelligence
information we have because in those pleadings the Government has to
describe the facilities to be used, the targets of the collection, the
information, and how the information is going to be collected, who gave
them the information, how they got it. This is the ultimate description
of sources and methods. Any time the sources and methods or the assets
are disclosed, it is possibly a death sentence to someone who is
working with us undercover or as an agent. The Department of Justice
believes this information is so sensitive that it has to be kept
extremely closely held within the court and the people who must see it
to issue the order. Without that protection, they believe that our most
sensitive assets, our means of collection, where the facilities are,
the whole framework of our intelligence system could be brought down.
The opinions themselves go into legal reasoning; they give the
justifications. They are the end product of the work of the FISC.
What the Department of Justice says the intelligence community is
unwilling to give is to lay out and submit to Congress the whole list
of information of sources, methods, facilities, targets, the names of
assets, or the identification of assets that could result in death for
the informant, the agents, or the assets.
We have accepted a portion of the amendment proposed by the Senator
from Wisconsin. This accepts another portion, but that final portion is
objectionable and is a red line. I urge my colleagues not to support
the amendment which turns over the very most secret sources and methods
which the intelligence community cannot afford to share.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I rise to oppose the second-degree
amendment. This is a classic example of people hiding behind a tragedy
in this country to make arguments that have no merit. This argument,
that the provision of pleadings, legal arguments by the Government,
will somehow compromise sources and methods and bring down the
intelligence system, has no merit.
When the Senator from Arizona asked me specifically whether my
amendment allows for certain sensitive information to be redacted, my
answer was yes, and he didn't respond. In fact, I had already stated
that in my opening statement. Everything the Senator from Missouri
referred to--confidential information, sensitive information about
individuals we are going after, critical intelligence--all of that can
be redacted. What the Senator wants to help the administration do is
prevent Members of Congress--and by the way, these are kept classified;
it is only people who have certain clearances who can see them--from
seeing the pleadings provided to an article III court. That is the
basis for their arguments.
As I pointed out in my statement, a lot of times the court just
refers to the pleadings in its orders. So if we don't have the
pleadings, we have no idea what the order is about.
Listen very carefully because this kind of argument is going to be
used with regard to every aspect of this bill.
[[Page S261]]
Everything is a red line. I want to tell you something, Mr. President,
it is not a red line for the duly elected representatives of the people
of this country in a classified setting to be able to review documents
from a court proceeding. That is a ridiculous notion and disrespectful
to the United States Congress that has an oversight role.
I was involved in the debate, as the Senator from Missouri knows, in
the Intelligence Committee. We won fair and square on this vote by a
majority bipartisan vote when it was first offered to the Intelligence
Authorization bill. Because of various issues and pressures relating to
other matters, we later had to compromise, and ultimately they said,
why don't you do it on the FISA bill, which is exactly what I am doing.
But the idea that somehow this endangers America to allow certain
Members of Congress and a few staff members who have been cleared to
look at the pleadings of the Government in a court proceeding takes
this way too far.
There are no substantive arguments against doing this, and I urge
Senators to reject the second-degree amendment and adopt the underlying
amendment.
Mr. ROCKEFELLER. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. WYDEN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WYDEN. Mr. President, I ask unanimous consent to speak on the
managers' amendment, as offered earlier by the distinguished chairman
and vice chairman.
The PRESIDING OFFICER. The Senator has that right.
Mr. WYDEN. Mr. President, I wish to commend the distinguished
chairman of the committee and the distinguished vice chairman because
they have worked with me many hours on this issue. It is an
extraordinarily important issue as it relates to the rights of
Americans in the digital age, and I appreciate the involvement the
chairman and vice chairman have had with me on this matter.
What this debate is all about, and I know it is very hard to follow
the complicated legal language that is associated with this discussion,
is the proposition that Americans ought to have the same rights
overseas that they have inside the United States. Now, the chairman and
the vice chairman have worked with me through the last few weeks to
ensure that we can embed this basic proposition in this FISA
legislation and do it in a way that is not going to have any unintended
consequences or any impact on our national security.
I have long felt, literally for decades, that the FISA law has
represented the ultimate balance between America's need to fight
terrorism ferociously and to protect the constitutional rights of our
people, and it is a balance that should not be eliminated because an
American leaves U.S. soil. It ought to always mean something to be an
American, and that ought to apply even outside the United States. Now,
under current law, before conducting surveillance on an American
citizen within the United States, the Government must establish
probable cause before a criminal court for law enforcement cases or
before the FISA Court for intelligence cases.
So what this means is the U.S. Government needs a court-approved
warrant to deliberately tap the phone conversations of a person living
in Medford, OR; or Kansas City, MO; or Arlington, VA; or anywhere else.
This protection, however, is not extended to Americans who are outside
the United States. So if the U.S. Government wants to deliberately tap
the phone conversations of the same Americans on business in India or
serving their country in Iraq, the Attorney General can personally
approve the surveillance by making his own unilateral determination of
probable cause.
During the Senate Intelligence Committee's consideration of
legislation that would revise FISA, I offered the amendment that has
been discussed by the distinguished chairman and the vice chairman to
require the Government to secure a warrant from the FISA Court before
targeting an American overseas.
This amendment was cosponsored by our colleagues, the Senator from
Wisconsin, Mr. Feingold, and the Senator from Rhode Island, Mr.
Whitehouse. It was, as the chairman of the committee has noted,
approved on a bipartisan basis. It has largely been incorporated into
the Senate Judiciary Committee approach as well.
Since then the administration has raised concerns about this issue.
There have been concerns raised by several others. And we have sought
to address those through many hours of negotiations so that we can make
sure in the digital age, when Americans travel so frequently, we are
not seeing their rights go in the trash can when they travel outside
U.S. soil.
We have almost reached a final agreement on this important issue, but
I wanted to take just a minute. I see the distinguished chairman on the
Senate floor and the distinguished vice chairman. I would like to just
outline very briefly for them what my remaining concern is because my
hope is we can work this out.
I would also like to say that throughout this day the Justice
Department, as we have been looking at it, has been talking to our
staffs as well. I think they have been very cooperative also.
The issue that is outstanding, I would say to my colleagues, is the
managers' amendment does not require the Government to specify what
facilities it is targeting, even in situations where the Government has
historically been required to do so. So one automatically thinks of a
hypothetical kind of situation that goes something like this: Under
current law, the Government has to specify, for example, that it is
going to do surveillance on an apartment dweller on a military base
overseas. That is something that has to be approved with specificity,
and that is required under current law.
What I am troubled about is the hypothetical possibility. That is
what we are dealing with now, hypothetical possibilities. And if the
language is not written carefully with respect to facilities--and my
concern is that it has not yet been dealt with adequately--the
Government could, in effect, do surveillance on that military base for
all of the apartment dwellers in the building or conceivably all of the
people on the military base at large.
Now, my friend, the distinguished vice chairman of the committee,
clearly does not want to see that happen, nor does the chairman of the
full committee. So what I have been trying to do, and had some
discussion with the Justice Department about, is to try to persuade the
Justice Department to take the precise language they have found
acceptable in title I and move it over to the title VII that we have
all been working on in a cooperative kind of fashion. It deals with
what is called the after acquisition issue, to again make sure we are
able to stay on top of the serious threats our country faces but not at
the same time overreach and sweep all kinds of individuals like, say,
an apartment dweller on a military base oversees into a surveillance
program.
So I am going to continue, and I want to make this clear to the vice
chairman who is on the Senate floor, and the chairman who has had to
leave the floor for a few minutes, that I want to continue to work with
them. This is an important issue. In the digital age, it makes no sense
for Americans' rights and freedoms to be limited by physical geography.
That is what we got bipartisan support for in the Intelligence
Committee. Suffice it to say, there is a history of support for this
kind of approach. During the initial consideration of the first FISA
Act back in 1978, many Members of Congress argued for the inclusion of
protections for Americans overseas.
All of the committees that debated the bill noted the significance of
the issue. But at that time there was a judgment made that it was best
to deal with this matter by separate legislation.
For example, the Senate Intelligence Committee in the 1978 report on
FISA stated:
Further legislation may be necessary to protect the rights
of Americans abroad from the improper electronic surveillance
by their Government.
It seems to me, 30 years later, it is time to take action. So we are
going to continue these discussions. I want to
[[Page S262]]
express my appreciation to the vice chairman of the Intelligence
Committee and his staff. They have put many hours into this matter
working with us and clearly have sought to make sure that we can
modernize this particular part of the FISA statute, and do it without
what all of us have said are the unintended consequences or potential
impact on national security.
I think we are there once we deal with this remaining issue. I think
it would be very hard for any of us to explain how it is that current
law has to specify what facilities are being targeted and then, now, in
the name of the so-called reform approach, adopt something that
hypothetically--again, I talk only hypothetically about it--might sweep
some, for example, soldiers on a military base overseas into a
surveillance program. I do not want that. The distinguished vice
chairman of our committee, Senator Bond, does not want that.
So we are going to keep working on this matter. I see my friend from
Missouri has indicated his desire to speak. As always, I am anxious to
hear his thoughts on it and to work with him.
I ask unanimous consent to have a few, perhaps up to 10 additional
minutes after the vice chairman has had a chance to address us.
The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so
ordered.
The Senator from Missouri.
Mr. BOND. Madam President, I thank my colleague from Oregon. As
usual, he states objectives that he and I agree with. We both have the
same desire, to protect American citizens, U.S. persons, certainly
military men and women and their families on military bases.
I would say to my friend, under the clear provisions of section 703
and 704, if they are an American military person overseas, the first
test would be: Are you an officer or an employee of a foreign
government?
Obviously, they are employees of our Government. But you would have
to be acting as an agent of a foreign power, and, furthermore, there
would have to be intelligence information provided showing that there
was reasonable grounds to believe there was intelligence information.
Now, there could be the situation, as there has been in the past--it
has happened within the CIA; it has happened within the military--that
some person may turn into an agent of a foreign power even though they
are wearing our uniform. That is a very rare situation. But in that
instance, then, you would be able, if you had intelligence information,
to suggest this person was acting as an agent and had the appropriate
foreign intelligence.
Absent that, nobody is going to sweep them up, nobody is going to
listen in, nobody is going to listen in to their phone calls back home
to their families or their families' calls to them.
Now, my colleague mentioned some other questions about collection.
And this is a very important discussion, a complicated discussion, but
regrettably a classified discussion. So let me suggest to him that we
understand. He has talked to the Department of Justice. I believe they
have had some confidential discussions. We would be happy to have more
with him. I regret we cannot have them on the floor of the Senate
because they go into matters which are classified.
But he and I share the same objective. We have slightly different
ways of getting there. There are certain items I think have to be
discussed off the Senate floor.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Madam President, I will be very brief in terms of
responding to the distinguished vice chair. I also note the person we
look to for counsel on these matters, Senator Whitehouse, is here. I
want to express my appreciation to him for all of his assistance. If
anyone is capable of, once again, stepping in and bringing together all
of the parties--Senator Bond, the Bush administration, Senator
Rockefeller, myself--Senator Whitehouse is that person. He has done it
repeatedly, and we thank him for all of his help.
On the one remaining issue, just to be very brief in terms of
responding to the vice chairman, the vice chairman is spot on with
respect to the fact that in most respects, the language of our joint
efforts does seek to zero in only on the legitimate targets. And that
is all to the good.
What we are concerned about, and again, steering clear of anything
classified, is some of the technical issues with respect to the
definition of ``facilities,'' which lead us to be concerned that others
could be swept in. That is what we still need to resolve.
So let's do this. The distinguished Senator from Rhode Island wants
to have a chance to speak on this issue. This is not going to be the
last word on the subject. But I would say this is an opportunity, after
months and months of discussion, to get it right in terms of
modernizing the Foreign Intelligence Surveillance Act.
Thirty years ago, it was a big issue. It is an even bigger issue
today. I think a business person, for example, in Kansas City, MO, or
Portland, OR, or anywhere else, when they travel the globe and are
doing business, speaking to loved ones, they have an expectation that
their rights are not thrown into the trash can when they leave the soil
of the United States.
We have taken steps to ensure, under the efforts of Senator
Rockefeller, Senator Bond, myself and others, we have gone a long way
to extending the overseas protections for our people that they have
here. We are not quite there yet. We have one issue left to deal with,
and it is an important issue.
We are going to continue to have these discussions, and they will
certainly be good-faith discussions. I hope we can persuade all
parties, and particularly those in the administration, to support our
efforts to deal with this one remaining matter, which literally is a
question--we have staff on the floor--of importing language that the
administration says works in other parts of this legislation, into this
area which we think is substantially the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WHITEHOUSE. Madam President, first, let me thank the Senator from
Oregon for his very kind words, probably too kind words, but that is
one of the glorious conventions of this body.
I salute his leadership in this area because perhaps the most
significant thing that has been accomplished so far in this FISA
dispute, that has been accomplished in a bipartisan fashion, in a
manner in which great credit reflects on Vice Chairman Bond who is here
on the Senate floor, is consensus has been reached that when an
American travels overseas, the rights they believe they enjoy here in
these United States, the rights the Constitution guarantees them here
in these United States, travel with them and cannot be overruled at the
whim of the very same branch of Government that seeks the surveillance.
And the reason that was able to take place is because the Senator from
Oregon had the foresight to put together the amendment that he and
Senator Feingold and I argued for in the Intelligence Committee. I
express my personal appreciation to him for his wisdom in that regard.
I ask unanimous consent that the pending amendment be set aside in
order that I might call up amendment No. 3908.
Mr. BOND. Madam President, I must object to that. I do commend the
Senator from Rhode Island and the Senator from Oregon for their
leadership on the issues which they have addressed. They have made a
strong push, and they worked with us through the 20-plus pages of
construction to get a workable means of achieving the goal they so
eloquently champion. We will continue to work with them on those
efforts dealing with the items the Senator from Oregon addressed.
However, I must object to setting aside the pending amendment.
The PRESIDING OFFICER. Objection is heard.
Mr. WHITEHOUSE. Madam President, I am disappointed to hear that. The
Senator, of course, clearly has that right. As everyone in this body
knows, we are facing a deadline of February 1 to conclude this
legislation. There is considerable other business related to the
stimulus package, given our economic concerns in this country, and I
would hope now that the FISA bill has been called up, that we are on
this bill here on the floor, that amendments to the title I provisions
we are
[[Page S263]]
working on now could be called up and considered. It would certainly
move things along in the process if they could be called up and debated
so that when it came time for a vote, we could move more expeditiously
through the process. I hope very much this is not a signal that it is
anyone's intention to slow down this process.
We saw in August how unfortunate the result can be when this body's
time to give a major issue such as this significant attention is
compressed. Indeed, I refer to that unfortunate August situation as
``the August stampede.'' I don't think we reflected great credit on
this institution when we did what we did back then.
The effort we are undertaking now is an effort, in fact, to remedy
some of those concerns. There has been significant bipartisan effort to
get us to this point. While there are clearly remaining points of
disagreement, I would think it would be in everyone's interest to work
through those issues and to give these different amendments a chance to
be voted on. For instance, the amendment I had hoped to call up is one
that is supported not only by myself but Chairman Rockefeller, the
distinguished chairman of the Intelligence Committee. It is supported
by Chairman Leahy, the distinguished chairman of the Judiciary
Committee. It is supported by Senator Schumer, the distinguished
Senator from New York. It is supported by Senator Feingold, the
distinguished Senator from Wisconsin who serves, like myself, on both
the Intelligence and Judiciary Committees. It addresses a very
important issue to this body which is the terms on which we will allow
this administration to spy on Americans.
It is an amendment that a lot of work has gone into. It reflects a
convergence of ideas that was developed by Senator Schumer and Senator
Feingold in the Judiciary Committee, that we developed in the
Intelligence Committee, again, through an often bipartisan process.
Senator Feingold played a critical role in both committees in advancing
this issue. We have worked very carefully with the Department of
Justice to incorporate changes that they have recommended as technical
assistance. It is a meaningful, worthy, well-thought-out amendment that
merits consideration and discussion on the floor. It relates to an
issue that is a fairly simple one but in order to understand it, you
have to have a basic understanding, at least, of wiretap surveillance.
As United States Attorney and as Rhode Island's Attorney General, I
oversaw wiretap and surveillance investigations, and I am familiar with
the procedures. With any electronic surveillance, whether it is in a
domestic law enforcement context or intelligence gathering on
international terrorism, what you find is that information about
Americans is intercepted incidentally. You have, as all the prosecutors
in this body well know, including the distinguished Presiding Officer,
the target of your investigation. The target has certain rights; a
warrant requirement under the Constitution, for instance. But what you
find is that once you have surveillance up on your target, they
obviously talk to other people. Those other people who are incidentally
intercepted in the surveillance also have rights as well.
In domestic law enforcement, there are clear and established
procedures for what is called minimizing the interception of the
conversations to the extent that they touch on the incidentally
intercepted person who is not the target of the surveillance. The
minimization procedures govern the collection and the retention of this
information to ensure that the privacy of innocent Americans is
protected. These are sensible measures. I have been in the trailers
with the FBI agents as they are switching on and off to honor the
minimization procedures. But one of the key elements of these
minimization procedures is the knowledge on the part of the surveilling
agency that they are subject to court oversight. That is natural in the
domestic law enforcement context. You are operating under a court order
to begin with. In the domestic context, it happens as a simple
consequence of there being a court order in the first place.
When you are dealing with Americans abroad and when they are swept up
in international surveillance for national security purposes, the
situation can be different. We have had to provide for these
minimization procedures. Under the Senate Intelligence bill, the court,
the Foreign Intelligence Surveillance Court, is now being given the
authority to approve the minimization procedures when an American is
listened to incidentally in surveillance that targets another
individual. The court has the authority to approve the procedures. But
what was missing is that the court did not have the authority to
determine whether the procedures it has approved are actually being
followed. You would think that would be obvious. If you are going to
set it up so that the court can approve minimization procedures, should
it not follow as a matter of simple logic that the court should have
the authority to see whether the procedures the court approved are in
fact being followed?
We have worked very carefully with Vice Chairman Bond, with Chairman
Rockefeller, with the technical folks at the Director of National
Intelligence Office, and at the Department of Justice. At present, we
have a situation in which it has been agreed that the court will have
the power to determine whether its rules are being followed if the
target of the surveillance is an American in the United States. We have
also reached agreement that the Foreign Intelligence Surveillance Court
will have the authority to determine whether its rules are being
followed if the target is an American overseas. The issue that remains
involves those cases in which the target is a foreign person but they
are in touch with a U.S. person, an American, who is being incidentally
intercepted because they are in touch with a foreign target--because
the foreign target has called them, because the foreign target is
discussing them, because they have called the foreign target, whatever.
I cannot for the life of me understand why this is a difference that
we are obliged to come to the Senate floor to decide. It would seem to
me that when the purpose of the exercise is enforcing minimization
procedures that benefit the U.S. person who is incidentally
intercepted, it should not matter whether the target is an American in
the United States or an American overseas or a foreign person. The
person we are trying to protect is the U.S. person incidentally swept
into the surveillance. So the purpose of this amendment, if I were to
be permitted to call it up, would be to see to it that the court, which
has the authority to determine the minimization procedures when there
is a foreign target who talks to a United States person, should have
what would seem to me obviously consequent authority to determine
whether those rules it has approved are being followed.
It may even be that it is so inherent in the nature of a court that
subsequent litigation would determine that in fact the court does have
that right. It comes, in its very nature as an article III court, to
have the authority to determine whether its rules and whether its
orders are being followed. But rather than force it to that point, it
would be better if we simply cleared up the matter here.
Again, I regret that merely calling up the amendment at this point is
being objected to. I hope this is not a signal that we are trying to
recreate, to put it mildly, the hectic atmosphere of the August
stampede. I would like as quickly as possible to work through the
amendments that relate to title I. There are a number of them. I expect
we will be staying rather late if we can't start working through them
now. But when the time comes, I will come back to the floor and again
seek permission to call up this amendment; I hope at that time with
more success.
I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Madam President, we too want to move through this bill.
This amendment, sponsored by the Senator from Rhode Island, was
included in the Judiciary Committee substitute for the Intelligence
Committee bill. We defeated that.
The chairman of the Judiciary Committee has said we are going to come
back and vote on all of these amendments one by one. At this point I
think it is appropriate that the leaders are discussing or will discuss
how we are going to proceed. In the meantime, we are not going to set
aside amendments
[[Page S264]]
until we have some direction from the leadership on how they wish to
handle these amendments.
On the substance of the amendment, earlier today in discussing the
Judiciary Committee substitute, I pointed out that the FISA Court, or
the FISC as it is called, has said: We are not going to get into this
area. We don't want to get into the business of trying to oversee how
foreign intelligence is collected. That means whether it is collected
or whether there is incidental collection, those challenges are
significantly different from the challenges that the FBI would face in
carrying out their court order.
But it should be noted, as I believe the Senator from Rhode Island
has, that the FISA court order, the FISC, will set out the requirement
that minimization procedures be followed. There will be significant
review and oversight of those because the person conducting the
surveillance has a supervisor who will look over their shoulder. That
supervisor knows there will be a representative of the inspector
general who is watching, who is looking for any problems. That
inspector general knows there will be a lawyer from the Department of
Justice overseeing it to assure there is compliance.
We have an Intelligence Committee with a very able staff, some of
whom understand very well how the NSA programs work, whether it is
under the FISC or under the previous time. It is our job, under our
challenge, our charter, as an oversight committee of the intelligence
community, to make sure these laws are followed. So I will say that
when the FISC was challenged to take on a broader role in handling
foreign intelligence, they stated in the December 17 released opinion,
In re Motion for Release of Court Records, at the very bottom of page
19, footnote 31, the appellant claimed that the court could conduct a
review because it is a ``specialized body with considerable expertise
in the area of national security.'' The FISC itself said that this
overstates the FISC's expertise:
Although the FISC handles a great deal of classified
material, FISC judges do not make classification decisions
and are not intended to become national security experts. . .
. (FISC judges are not expected or desired to become experts
in foreign policy matters or foreign intelligence activities,
and do not make substantive judgments on the propriety or
need for a particular surveillance). Furthermore, even if a
typical FISC judge had more expertise in national security
matters than a typical district court judge, that expertise
would still not equal that of the Executive Branch, which is
constitutionally entrusted with protecting the national
security.
They cite a case, which says:
. . . (``a reviewing court must recognize that the
Executive departments responsible for national defense and
foreign policy matters have unique insights'' into national
security harms that might follow from disclosure). . . .
At the end it says:
For these reasons, the more searching review requested by
the [appellant in that case] would be inappropriate.
So while there are court orders that the minimization procedures be
followed, there is an existing framework for significant oversight, and
there is the oversight not only by the executive branch but by the
legislative branch, and the FISC says that is not the business they are
to get into.
We will have an opportunity to revisit this when the matter is
brought up. But I wanted to advise my good friend, a diligent worker on
the Intelligence Committee, why we had argued against that provision in
the amendment or the substitute that the Judiciary Committee proposed.
I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mr. Sanders). The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I thank the very distinguished vice
chairman of the committee for his description of his views on this
matter. I know they are honestly held and founded in his beliefs.
I do take some issue with his recollection of the travel of this in
the Intelligence Committee. I thought I heard the distinguished vice
chairman say this amendment had been voted down in the Intelligence
Committee. It is my recollection that I withdrew it because there were
technical concerns that were described by some of the officials from
the Office of National Intelligence and from the Department of Justice
who were present.
Indeed, it was that withdrawal and willingness to work to try to find
a better amendment that resulted in the very commendable process by
which the distinguished vice chairman agreed to allow the court to
oversee compliance with its own rule in those two circumstances I
mentioned earlier: where the target is an American, either overseas or
at home.
Other than that, the only other point I would add is that I think it
is probably a situation unique in the annals of American law that an
American court would be provided the authority to approve a rule or
make an order but denied the authority to determine whether it was
complied with. I can certainly think of no situation in our law or in
our history where that has ever been the case.
I know the distinguished Senator from Maryland seeks the floor. I
yield the floor, and I thank the Presiding Officer.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Thank you, Mr. President.
Mr. President, I ask unanimous consent that the pending amendment be
set aside so I can offer amendment No. 3859.
Mr. BOND. I object, Mr. President.
The PRESIDING OFFICER. Objection is heard.
Mr. BOND. Mr. President, if I may respond to the Senator from Rhode
Island--I apologize to the Senator from Maryland--I say to the Senator
from Rhode Island, what I said was his provision was in the Judiciary
substitute that we defeated. We did not deal with his amendment in the
Intelligence Committee. We discussed it. He offered it, and it was
accepted in the Judiciary substitute. That amendment was defeated.
What I raised was the concern that our leadership has about going
back and revisiting all the elements of the Judiciary substitute.
I thank the Chair, and my apologies and thanks to my colleague from
Maryland.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Mr. President, let me point out to the cochair of the
Intelligence Committee and the distinguished Republican whip on the
floor why I asked for this amendment to be called up. I hope there will
be a time when we will have a chance to vote on this amendment. It is
one I hope would gain some broad support in this body.
What this amendment would do is to change the automatic termination
date that is in the statute, the bill now--which is at 6 years--to 4
years. I know there are some Members of this body who are opposed to
any termination date. The administration is opposed to a termination
date.
I applaud the Intelligence Committee for including a termination
date, a sunset in the legislation, recognizing it is our responsibility
to make sure we are included in the appropriate oversight with the
executive branch. Knowing the history of this legislation, knowing how
quickly technology changes, it is important that Congress be intimately
involved in reviewing the operations of this statute, the changing
technology, and that we have the full attention and cooperation not
only of the intelligence community but also the White House and the
executive branch of Government.
The reason why I believe the 4 years is much more preferable than 6--
I urge my colleagues to please follow this debate--with a 4-year
sunset, it will be a requirement of the next administration to be
involved in this FISA statute. They are not going to be able to sit
back for their entire term and say: Gee, we have this authority; there
is no need to make the information readily available to Congress.
Let me remind my colleagues, it was not easy to get information from
the executive branch on the use of their authority, of which for some
we recently found out the full extent of the use of their authority. So
if we keep a 6-year sunset, there will be no legal need for the next
administration to work with Congress to make sure there is broad
support for what the administration is doing, to make sure we do not
have another situation where there was the use of power by the
executive branch that, quite frankly, we did not know about, and that
we will at least know whether the technology is the right technology.
We will have much better attention.
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So for the purposes of our oversight, our responsibility as the
legislative branch of Government, we should make it clear to the next
administration: Sure, you have plenty of time under this authority. You
do not have to worry about this authority terminating. You have almost
your entire term in office. But we want you to focus on it, and make
sure we are not only protecting the rights of Americans, that we are
not only making sure the intelligence community has the tools it needs,
but we are making sure that as technology changes during the next
years--and technology is changing very quickly--we are all engaged in
the subject.
We are ready to take action as the legislative branch of Government
to make sure we are working with the executive branch to give the
intelligence community the tools it needs to gather the information on
foreign targets, and that they are also doing it in ways, as the
chairman and vice chairman of the committee and the committee have
said, that respect the rights of Americans and the civil liberties of
the people of our Nation.
It is for that reason that I urge we find a time to take this up. I
took this few moments now in the hopes that when we come back to this
amendment we will not quite need as much time. I do hope the Members
will understand this is being offered so we in the Congress can carry
out our responsibility.
It is interesting that there were several debates on the floor of
this body when the original PATRIOT Act was passed and the Protect
America Act was passed to make sure there were sunsets in it. We are
now amending the bill today. The chairman and vice chairman of the
Intelligence Committee just brought forward a set of amendments, and as
I listened to the chairman and vice chairman talk, they said: We want
to make sure we get it right.
There were a lot of technical changes made as of today. I do not
think anyone here feels totally comfortable that we got it right. We
are going to have to stay engaged on this subject. I think it is
critically important we have the attention of the next administration
to make sure we can do the right thing for the people of this Nation to
keep them safe and to protect their civil liberties.
So that is the reason I intend to offer this amendment. It was in the
Judiciary Committee substitute. We debated it in the committee. We had
a good debate in the Judiciary Committee. Senator Kennedy had offered a
2-year sunset. We talked about that also. There are others who have
been interested in this. I am not alone in this request. I know I am
joined by Senator Mikulski as a cosponsor of this amendment, who serves
on the Intelligence Committee, and was part of getting that bill
together. I know Senator Rockefeller is sympathetic and supportive of
this issue, as is Senator Leahy.
I urge my colleagues on both sides of the aisle to take a careful
look at this amendment when we come back to it. Hopefully, I will have
your support.
With that, Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Oklahoma.
Mr. INHOFE. Mr. President, I ask unanimous consent that I be
recognized for up to 15 minutes as in morning business.
Mrs. FEINSTEIN. Mr. President, reserving the right to object, if I
may, I ask unanimous consent that I be recognized following the remarks
of Senator Inhofe.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Oklahoma.
Mr. INHOFE. Thank you very much, Mr. President.
(The remarks of Mr. Inhofe pertaining to the introduction of S. 2551
are printed in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Mr. LEAHY. Mr. President, Senator Kennedy and I have offered an
important amendment to ensure that there will be some measure of
accountability for the unlawful actions of this administration in the
years following 9/11. Regrettably, those opposing this commonsense
review have so far succeeded in stopping the full Senate from even
considering its merits.
It is a sad day for the American public when its elected officials
stonewall a measure designed to shed light on the Government's efforts
to unlawfully spy on its own citizens. I urge Senators across the aisle
to allow this amendment to be called up, debated, and given an up-or-
down vote.
As we all now know from press accounts, in the years after 9/11, the
Government secretly conducted surveillance on its own citizens on a
massive scale through what has become known as the Terrorist
Surveillance Program, TSP. It was done completely outside of FISA, the
law specifically drafted to regulate such conduct. And it was done
without the consent or even the knowledge of the Congress. It is
crucial that Congress and the American people understand why and how
these decisions were made, both in the months after 9/11, and in the
several years following that difficult time. This inspector general
review amendment will provide that accountability.
This review would be conducted jointly by the Offices of Inspectors
General of each component of the intelligence community that may have
played any role in the TSP, including the inspector general of the
Department of Justice. It will examine the circumstances that led to
the approval of the TSP, as well as any procedural irregularities that
may have taken place within the Department of Justice Office of Legal
Counsel--the part of the Justice Department that is supposed to give
unvarnished legal advice to the President. It will result in a final
report to be submitted to the Intelligence and Judiciary Committees in
the House and Senate within 180 days, containing recommendations and a
classified annex. There has been no such comprehensive review to date.
This amendment is particularly important because the administration
and some of its allies in Congress are relentlessly arguing for
retroactive immunity for the 40 or so lawsuits against those
telecommunications companies that may have assisted in conducting this
secret surveillance. They are trying to shut down avenues for
investigating and determining whether their actions were lawful. This
amendment will ensure that there will be an objective assessment of the
lawfulness of the secret spying program and the manner in which the
Government approved and carried out the program.
Critics of the amendment claim that Congress has already conducted
sufficient oversight of the TSP, and that no further review is
warranted. That is simply not true. Only a small number of Senators and
Representatives have been granted access to classified documents
related to the TSP. Those of us who have been granted access can
provide a measure of oversight by reading through documents to try to
piece together how the Government decided to spy on its own citizens,
for years, and how the Justice Department came to bless this unlawful
conduct. But the documents don't tell the full story. As we learned
from Jack Goldsmith, the former head of the Office of Legal Counsel,
the President's program was a ``legal mess'' when he took over. It is
crucial to understand how this ``legal mess'' got approved in the first
place. Who was responsible? Were the normal procedures followed at the
Office of Legal Counsel? And, perhaps most importantly, how can we stop
something like this from ever happening again?
This amendment is one of the many improvements to the Senate
Intelligence bill that were adopted by the Judiciary Committee and
included in the Judiciary Committee's substitute amendment.
Regrettably, that substitute was tabled by the Senate earlier today. I
urge Senators to reconsider their votes with respect to this simple but
critically important accountability measure.
If the critics succeed in quashing not only the outstanding lawsuits
seeking accountability, but also congressional efforts to arrive at the
truth through a comprehensive review of the TSP, the American public
will never forgive us. This administration is hoping it will end its
time in office without any meaningful review of its more than 5 years
of illegal surveillance. We must not let this happen. I urge all
Senators to support this commonsense amendment to ensure
accountability.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. I note the absence of a quorum.
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The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, is one of the managers on the floor? Yes. I
have been in contact with the distinguished Republican leader. I ask
unanimous consent that Senator Kennedy be recognized for 5 minutes for
purposes of offering an amendment, and following his 5 minutes, that
Senator Feinstein be recognized for 5 minutes, and following their
statements and their attempt to offer amendments, that I then be
recognized.
The PRESIDING OFFICER. Is there objection?
Mr. KYL. I didn't hear the last half.
Mr. REID. Following their 5-minute statements, I be recognized.
Mr. KYL. Mr. President, as propounded, I object to the request, but I
have no objection to Members each asking consent to which there would
be no objection and certainly not to their speaking for whatever length
of time or whatever order the leader would desire.
Mr. REID. So you have no objection to Senator Kennedy being
recognized for 5 minutes and Senator Feinstein being recognized for 5
minutes?
Mr. KYL. Absolutely no objection to that.
Mr. REID. And then following their statement, that I be recognized?
Mr. KYL. I have no objection to that.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Massachusetts is recognized.
Mr. KENNEDY. Mr. President, at the appropriate time, I hope the
Senate will permit us to take action on an amendment I will offer on
behalf of myself and Senator Leahy and others. This amendment we have
prepared is very simple, but it is absolutely critical to this bill.
The amendment would require the inspectors general of the Department
of Justice and the National Security Agency and other relevant offices
to work together to review the Bush administration's warrantless
wiretapping program. The inspectors general will analyze this program
and then issue a report on what they find. Members of Congress will
receive a classified version of the report. The public will receive an
unclassified version of the report.
Simply put, there is no other way to put this episode behind us.
Court cases looking into the administration's warrantless wiretapping
have been stymied by concerns about standing, mootness, and the state
secrets privilege. If Congress grants retroactive immunity, some of
these cases will be eliminated altogether.
But either way, court cases are no substitute for an inspector
general review when it comes to finding and reporting the facts.
Traditional rulings will tell us whether any laws were broken and which
ones. The inspector general review will tell us why and how this
happened, and it will help us avoid a similar lapse in the future.
The administration has decided to share documents with the Senate
Judiciary Committee but not with the House Intelligence Committee, or
the Judiciary Committee whose FISA bill it doesn't like. It has refused
to share any documents with other Members of the House and Senate who
are now expected to vote on this legislation. So where are we now?
We know that for 5 years the Bush administration conducted a massive
program of warrantless surveillance that may have violated the rights
of literally millions of innocent Americans. What we do not know is how
this program was started, why it was started, what it covered, how many
Americans were spied on, or what happened to the information it
collected. We are being kept in the dark about one of the most
significant and outrageous constitutional violations by the executive
branch in modern history.
An inspector general review is the only way to shed light on this
abuse, the only way to document and assess the administration's
warrantless surveillance activities over the past 6 years. The review
will help bring clarity, closure, and accountability to this episode.
It will help us draw lessons and move on from it.
Millions of Americans have been secretly spied on for years. They at
least deserve to know the reason. The Senate also deserves to know.
Senators who vote to pass this amendment will be not only honoring
their constituents' right to learn what was done to them, they will
also be enabling themselves to serve their constituents better in the
future.
The inspector general report will produce information that will
assist us in our legislative duties. When Congress takes up FISA in the
future, the results of this report will be enormously valuable in
helping us to enact legislation to meet the genuine national security
and civil liberty needs of the Nation.
It is revealing in how quiet the White House has been in opposing the
inspector general review. Make no mistake, they have been clear they
don't want any kind of investigation into what they did. But their
arguments against the inspector general review have been very quiet,
indeed, perhaps because they know how transparently weak and self-
serving their arguments are. They said we should not have an inspector
general review because it might reveal classified information or help
our enemies. This argument is nothing more than a scare tactic.
The inspectors general public report will contain only unclassified
material. Any classified material will go into a classified appendix.
It has been said an inspector generals' review might fuel a partisan
witch hunt. Senator Leahy and I have drafted this amendment to be
tightly limited to the warrantless wiretapping program. The inspectors
general will have a very specific mandate, and they will do their work
without any political influence whatever.
Understanding what happened to the rights of Americans over the past
6 years is not a partisan effort. All Members of Congress should want
to learn about the activities in which the administration has engaged.
The American people are concerned about what their Government has been
up to. They need an independent review to restore trust in the
Government and to feel confident that both their security and their
liberty are being protected.
Finally, I have heard it said the inspectors general are not the
appropriate entity to conduct this review. The question is, if not the
inspectors general, then who? The inspectors general are experienced
and independent; they are trusted by Congress and the American people.
They frequently conduct confidential investigations and have procedures
in place to protect classified information. It is precisely for
situations such as this that we created the inspector general.
It has been reported that the Justice Department recently reopened
the Office of Professional Responsibility's investigation into the
warrantless surveillance program. That is a positive step, but it is
not relevant to this amendment. The scope of the OPR investigation is
severely limited. It deals with attorney misconduct, and it is confined
to the Justice Department. By contrast, the inspector general review
will cover all of the relevant agencies, including the National
Security Agency, and it will examine the use of warrantless
surveillance much more fully.
Moreover, the inspectors general are more independent than OPR, and
for investigating a warrantless surveillance program authorized by the
President, independence is of critical importance.
Inspectors general also have a proven track record that gives them
unique credibility. For example, the inspector general report on
national security letters showed widespread abuse by the FBI, and it
helped Congress understand what needs to be done.
There is one reason, and only one reason, to oppose this amendment,
and that is to cover up the administration's actions. A vote against
the inspector general review is a vote for silence and secrecy, for
stonewalling and denial. It is a vote to erase the past.
Many of the issues we have been debating on FISA are difficult and
complicated, and there is room for reasonable people to disagree. But
there is no such room on this amendment. It is simple and
straightforward. Its potential benefits are great, and its costs are
negligible.
No matter where one stands on the issues of retroactive immunity for
the
[[Page S267]]
phone companies, this amendment should be a no-brainer. In fact, for my
colleagues who want to eliminate the court cases against the phone
companies, this should be even more critical because it will at least
preserve some measure of accountability. It will give the Senate
critical information to fulfill its constitutional duty to protect the
rights of Americans, the separation of powers, and our national
security.
Many Senators who have been defending retroactive immunity have done
so by emphasizing that the phone companies were just following White
House orders. If you believe that argument, you should be especially in
favor of this amendment because it places the inquiry exclusively on
the White House. Here is what the amendment says:
The unclassified report shall not disclose the name or
identity of any individual or entity of the private sector
that participated in the program or with whom there was communication
about the program.
Even though we oppose retroactive immunity, Senator Leahy and I
included that provision because we want to make this amendment as
uncontroversial as possible. We want to make it crystal clear that all
Senators who take their constitutional duties seriously, whether they
are Democrats or Republicans, need to support this amendment.
I urge all of my colleagues to pass this amendment and take a vital
step toward restoring honesty and the rule of law in America's
surveillance policy.
I yield the floor.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, I wish to speak for a short period of
time on an amendment that I would like to offer, in the event I am
given the opportunity to do so.
The Terrorist Surveillance Program began in mid-October of 2001, and
it operated until January of 2007. It operated outside of the
jurisdiction of the FISA Court during that period of time. That is 5
years and 2 months, when a program operated with no court review or no
court approval.
Now, I must regretfully say the United States--long before this
President and the prior President, but for decades--has had a rather
sordid history of misusing foreign intelligence for domestic political
purposes. This was well outlined in the Church Committee's report,
which led to the development of the Foreign Intelligence Surveillance
Act--which is the bill we are talking about--in 1978.
If you go back and read the record, you will see that President
Carter signed the bill. In his signing statement, as well as the record
of the deliberations of the Congress at that time, he tried to overcome
this sordid history by making the Foreign Intelligence Surveillance
Act--this bill--the exclusive authority for electronic surveillance of
Americans for the purpose of foreign intelligence. That was the bottom
line, so that never again could foreign intelligence be used
politically against American citizens domestically.
FISA has continued over the decades, and I think it has served this
Nation well.
What we have seen develop now is a Presidency and a President who
believes very strongly in his executive authority and has tried,
through many different ways, to enhance that executive authority. One
of those ways has been signing statements--more signing statements by
this President, saying what part of the law he would follow and what
part he would not follow; the concept of the unitary Executive, which
has been espoused, whereby all commissions, even the FCC, would be
subject to the will of the Presidency and by his use of article II
authority--asserting that authority under the Constitution as supreme
to any statute.
The battle over FISA going back to 1978--was to give FISA statutory
authority that would be supreme in this one particular area. The
President strove to do it at the time, and the Congress strove to do it
at the time. The Judiciary Committee bill has this strong statement of
exclusivity in it, which I will propose in an amendment to this bill.
The amendment is cosponsored by the chairmen of both committees,
Intelligence and Judiciary, Senators Rockefeller and Leahy; Senator
Nelson, who serves on the Intelligence Committee; Senator Whitehouse,
who serves on both committees along with myself; Senator Wyden from the
Intelligence Committee; Senator Hagel from Intelligence; Senator
Menendez; Senator Snowe from the Intelligence Committee; and Senator
Specter, the ranking member of the Judiciary Committee.
All of us together believe there should be strong exclusivity
language that reinforces the intent of the Congress, that the Foreign
Intelligence Surveillance Act be the exclusive authority for the
wiretapping of Americans for the purpose of foreign intelligence. It
makes sense and should be the case.
Finally, the administration said in January of last year: OK, we will
try to put the program under the FISA Court. In fact, the program today
is under the FISA Court through the Protect America Act. So there is a
court review and, where warranted, court warrants are granted for the
collection of content. That is the way it should be. As we move to this
bill, minimization strictures will be spelled out, approved by the
court prior, and that is the way it should be.
We would like to add to this bill the exclusivity language contained
in the Judiciary Committee bill. All of us are in agreement, whether we
are Intelligence Committee members or Judiciary Committee members, that
FISA should become the exclusive authority, and we should try to
reinforce it so that in 2 years, 10 years, or 20 years we will not be
right back to where we are today.
Let me quickly describe the amendment, and shortly I will try to send
a modification of the amendment that is at the desk now, which has some
technical corrections in it.
Let me describe this amendment briefly. We add language to reinforce
the existing FISA exclusivity language in title 18 by making it part of
the FISA language, which is codified in title 50.
The second provision addresses the so-called AUMF loophole. The
administration has also argued that the authorization for the use of
military force against al-Qaida implicitly authorized warrantless
electronic surveillance.
The amendment we would offer states that only an express statutory
authorization for electronic surveillance in future legislation shall
constitute an additional authority outside of FISA. This makes clear
that only a specific future law that provides an exception to FISA can
supersede FISA. Only another statute specific can supersede FISA.
Third, the amendment makes a similar change to the penalty section of
FISA. Currently, FISA says it is a criminal penalty to conduct
electronic surveillance, except as authorized by statute. The amendment
replaces that general language with a prohibition on any electronic
surveillance except as authorized by FISA, by the corresponding parts
of title 18 that govern domestic criminal wiretapping, or any future
express statutory authorization for surveillance.
Finally, the amendment requires more clarity in any certification
that the Government provides to a company--in this case, a telecom
company--when it requests assistance for surveillance and there is no
court order.
The FISA law provides only two ways to do electronic surveillance.
One of the ways is a court order. That is clear, that is distinct, that
is understandable.
The second way provides that if assistance is based on statutory
authorization, a certification is sent to the company, in writing,
requesting assistance and saying that all statutory requirements have
been met.
Under this amendment, the certification must specify what provision
in law provides that authority and that the conditions of that
provision have been met. This adds specificity to the certification
process which today is called for by the FISA law. I believe this is
something that is necessary to have in law.
In good conscience, I could not vote for any law that did not make
the test case that we need to make, which is our legislative intent
that FISA is intended to be the exclusive authority for the collection
of electronic surveillance, foreign intelligence involving a U.S.
person.
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It should be subject to FISA law. I don't think any one of us would
want to vote to prevent that from happening.
I believe this amendment could be adopted given a chance. We have
vetted it. It will not interfere with the collection of intelligence.
We have vetted it with the Department of Justice and with the
intelligence agencies. As I say, it is bipartisan.
What I would like to do at this time is call up the amendment. It is
No. 3857, and I ask unanimous consent to send a modification to the
desk to that amendment.
The PRESIDING OFFICER. Is there objection to setting aside the
pending amendments?
Mr. KYL. For the reasons Senator Bond explained earlier, I object.
The PRESIDING OFFICER. Objection is heard.
The majority leader.
Mr. REID. Mr. President, yesterday our Vice President gave a speech
at the Heritage Foundation talking about the need to pass the Foreign
Intelligence Surveillance Act. Today, the President gave a statement;
it was a brief statement. The President gave a statement following up
on the Vice President's speech yesterday. The Vice President gave a
speech; the President gave a statement today.
Among other things, he said:
If Congress does not act quickly, our national security
professionals will not be able to count on critical tools
they need to protect our nation, and our ability to respond
to new threats and circumstances will be weakened. That means
it will be harder to figure out what our enemies are doing to
recruit terrorists and infiltrate them into our country. . .
.
So I ask congressional leaders to follow the course set by
their colleagues in the Senate Intelligence Committee, bring
this legislation to a prompt vote in both houses. . . .
Congress' action--or lack of action--on this important
issue will directly affect our ability to keep Americans
safe.
Let the record be spread with the fact that all 51 Democrats joined
with 49 Republicans in that we want to do everything we can to make our
homeland safe. We want, if necessary, within the confines of the law,
to do wiretapping of these bad people. But having said that, we want to
do it within the confines of the law and our Constitution. We want to
make sure this wiretapping does not include innocent Americans who
happen to be part of what they are collecting. That is what the
American people expect us to do.
So I again say, no one can question our patriotism, our willingness
to keep our homeland safe. We have tried to move forward on this
legislation. We have tried in many different ways. What we have been
doing today and yesterday is moving forward on this legislation. As the
distinguished Senator from California said, there are amendments that
will make this legislation better. That is in the eye of the beholder,
and we all understand that. But shouldn't the Senate have the ability
to vote on those amendments because no matter what we do as a Senate,
it has to have a conference with the House. They have already passed
their legislation. We have been stalled every step of the way--every
step of the way.
The Feingold amendment, for example, was offered. It certainly is
germane. But we are being told he cannot get a vote on this amendment
because it concerns FISA's court orders. His amendment was discussed at
length previously. Half of it was accepted on a bipartisan basis, the
other half was not. But certainly he is entitled to a vote.
Senator Feingold and I do not mean to embarrass him--is a legal
scholar. He is a graduate of one of our finest law schools in the
world. He is a Rhodes Scholar. Senator Whitehouse has been attorney
general of the State of Rhode Island and is certainly known all over
the country as someone who understands the law. He has been a
tremendously good person as a Member of the Senate. He serves on both
committees, the Intelligence Committee and on the Judiciary Committee,
and he is a thoughtful person.
He thought the legislation that came out of the Intelligence
Committee should be improved, and as a member of the Judiciary
Committee, he worked to have it improved. He sought to offer a germane
amendment a short time ago concerning minimization. What does that
mean? That means if you pick up by mistake an American, that you drop
it. You push that out of the way, that isn't going to be made public in
any manner. We want to vote on that amendment. It seems everyone would
vote for it. I certainly hope so. But there is an objection to even
having a vote on that amendment.
Senator Cardin, a long-time Member of Congress, a relatively new
Member of the Senate, but a long-time, experienced Member of the
Congress of the United States sought to offer a germane amendment
shortening the sunset provision. The bill that is before us that came
out of the Intelligence Committee is for 6 years. Things are changing
rapidly in our country and in the world as it relates to electronics.
We don't know what is going to take place in regard to terrorism,
violence or what is going to take place with our ability to do a better
job electronically to uncover some of what we believe should be
uncovered. He wants this legislation to be for not 6 years but 4 years.
That is a pretty simple amendment. I support it. I think it is a good
amendment. But he has been unable to offer that simple amendment.
Senator Feinstein has given a very fine statement seeking consent to
offer a germane amendment on exclusivity, meaning that FISA is the only
basis for the President's eavesdropping. There have been editorials
written virtually in every State of the Union in the newspapers saying
that should be the law, but she has not been able to offer that
amendment.
Senator Kennedy wanted to offer an amendment that is so rational, so
important. He says: Let's have the inspector general do an
investigation about the whole wiretapping program to find out what has
taken place, who has been involved in it, and report back to Congress,
not tomorrow; he sets a reasonable time that be done. But guess what.
We cannot even vote on that amendment. He cannot even offer the
amendment.
I say to my friends it does not matter what we try to do, we cannot
do it. It appears the President and the Republicans want failure. They
don't want a bill. So that is why they are jamming this forward.
I am going to vote against cloture. It is not fair that we have a
major piece of legislation such as this and we are not allowed to offer
an amendment as to whether the bill should be 4 years or 6 years, and
we are not allowed to offer an amendment as to minimization, that is
whether Americans picked up by mistake are going to be brought out in
the public eye, or Senator Feingold's germane amendment dealing with
how court orders are issued, a real good amendment, an important
amendment.
If there were ever a Catch-22, this is it because what we are being
asked to do is irrational, irresponsible, and wrong. From where does
this ``Catch-22'' come? We all know it was a bestseller. Joseph Heller
wrote this book. He was a pilot during World War II. Joseph Heller
thought he was crazy. He was a bomber pilot. We all know how difficult
it was to fly those big airplanes in World War II. The casualty rate
was high. If you were crazy and you said so, you would be grounded from
flying these big bombers. But the officials of the military would say:
We are not going to let you not fly airplanes because you have to be
crazy to fly one of these in the first place. That is what Joseph
Heller was stuck with because it was crazy to fly bomber missions, and
they would immediately make you fly more bomber missions.
That is what we have today. We are trying everything we can do, but
no matter what we do, we step on each other in the process.
I suggest we were doing this the right way. We were looking at title
I, which deals with procedures of this FISA legislation, and then we
were going to come later and offer amendments to title II. For example,
one of the difficult issues is whether there should be retroactive
immunity for the phone companies. Senators Dodd and Feingold want to
offer an amendment to strike from the provisions of the bill
retroactive immunity. That is something on which we should be able to
vote.
Senator Levin came up with the idea, and there are others--I believe
Senator Whitehouse also wanted to offer an amendment dealing with
substitution,
[[Page S269]]
saying: OK, if there is going to be retroactive immunity, have the
Government pay for it, not the phone companies, because if, in fact,
they were entitled to immunity, that means they were forced into
something they shouldn't have been forced into. That is something I
think is reasonable and logical to vote on, but we will not be able to
vote on it.
I asked unanimous consent that we extend this matter for 30 days
because it is very apparent, unless cloture is invoked--and I say to my
Democratic colleagues I think this is an example of something on which
we should not invoke cloture--if cloture is not invoked, this bill is
not going to be finished by February 1 and this program will expire.
So we say to the President, who gave this statement today saying he
wants the program to continue, he needs to talk with his Republicans in
the Senate and say: OK, let's get an extension; let's see if we can
work something out. Two weeks, a month, we are willing, if the
President wants, to continue this awful program for a year, 15 months,
wait until the next President comes along. We are willing to do that,
and he will still have his authority.
We know one of his counsel, Mr. Yu, says he doesn't need this anyway;
he can do what he wants without this legislation. But we are willing to
do whatever is within the realm of possibility.
I said we will take a 30-day extension. We will take a 2-week
extension. We will take a 12-month extension. We will take an 18-month
extension. I tell all my friends, I have been told--and I appreciate
very much my distinguished counterpart, Senator McConnell, who has told
me he has a cloture motion, it is all signed, and he is going to file
it as soon as I yield the floor to him--I say to all my friends, under
the regular order, we will have this vote Monday. If, in fact, cloture
is invoked, we will have to have the vote early Monday because the 30
hours begins running, and we will have to finish it because we have so
much to do before the final week. I explained all this to the
distinguished Republican leader.
If cloture is going to be filed, and I know it is going to be, and if
cloture is invoked, we have to have a vote no later than 1 p.m. on
Monday, so the 30 hours runs out at a reasonable time on Tuesday so we
can do other things. If cloture is not invoked--and I am not going to
vote for cloture--unless the President agrees to some extension of
time, the program will fail. I don't know any way out of that. But I,
in good conscience, cannot support this legislation, at least unless we
have a vote on retroactivity of immunity. I can't vote for cloture
unless some of the very basic amendments that people want to offer are
allowed. They all have asked for very short time limits. No one is
questioning spending a lot of time. We Democrats are not in any way
trying to stall this bill. We have been trying to expedite it for a
long time now.
For purposes of making the record clear, and for my distinguished
counterpart, I ask unanimous consent that the Judiciary Committee be
discharged from further consideration of S. 2541, which is a 30-day
extension of FISA, and that the Senate then proceed to its
consideration; that the bill be considered read a third time, passed,
and the motion to reconsider be laid on the table.
The PRESIDING OFFICER (Mr. Whitehouse). Is there objection?
Mr. McCONNELL. Reserving the right to object, I ask unanimous consent
to modify the request so that instead of passing the House bill, we
will now pass the bill we know the President will sign. So, therefore,
I would ask the pending amendments to the substitute be withdrawn and
the substitute offered by Senator Rockefeller and Senator Bond be
agreed to; that the bill be read a third time, and passed.
Mr. REID. Mr. President, we have, Republicans and Democrats--I
acknowledge more Democrats than Republicans--who believe this
Intelligence Committee bill can be improved upon, and I so appreciate
the Judiciary Committee working in good faith with the Intelligence
Committee. We think there are some tuneups that can be done to this
bill to make it much better, and it is not fair, I say respectfully to
my friend from Kentucky, it is really not fair that we be asked to just
accept this without the ability to have a vote on a single amendment.
So I respectfully object to my colleague's request to modify the
unanimous consent request.
The PRESIDING OFFICER. Objection is heard. Is there objection to the
majority leader's request?
Mr. McCONNELL. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. REID. Mr. President, I am now going to ask unanimous consent to
pass the House bill, which was passed by the House last November.
I ask unanimous consent that the Senate proceed to the immediate
consideration of Calendar No. 517, H.R. 3773, which is the House-passed
FISA bill; that the bill be read three times, passed, and the motion to
reconsider be laid upon the table.
The PRESIDING OFFICER. Is there objection?
Mr. McCONNELL. Mr. President, I object.
The PRESIDING OFFICER. Objection is heard. The Republican leader.
Mr. McCONNELL. Mr. President, I am sure those watching C-SPAN 2 are
probably thoroughly confused with all of the parliamentary discussion
back and forth and the parliamentary nuances attached thereto.
Obviously, there are two sides to every story.
In fact, in April of 2007, the DNI--the Director of National
Intelligence--asked for this FISA bill to be passed. Our good friends
on the other side of the aisle delayed it. In June and July of 2007,
the DNI actually pleaded--pleaded--for help. Our friends on the other
side delayed right up until the August recess, at which time we did
pass the Protect America Act, which was a 6-month authorization.
Now, during September and October, the Permanent Select Committee on
Intelligence, in a bipartisan way, produced the Bond-Rockefeller
compromise, which is the pending proposal before the Senate. It was, I
gather, a painful series of compromises that brought the two sides
together 13 to 2 on this extraordinarily important piece of legislation
to protect our homeland. And that is the pending issue before us.
Now, we all know on an issue as important as protecting the homeland
we don't get the job done unless we get a Presidential signature, and
we do know the President of the United States will sign the
Rockefeller-Bond proposal that is before us. So my strong
recommendation to our colleagues is that we avail ourselves of the
opportunity to pass this measure, which is already the product of
substantial bipartisan compromise between the chairman and vice
chairman of the Permanent Select Committee on Intelligence and also the
members, who approved it 13 to 2.
A way to do that, obviously, would be to invoke cloture on that
proposal, indicating that 60 or more Members of the Senate believed
this bipartisan compromise, which we know will get a signature by the
President of the United States and go into effect, would be a good
bipartisan accomplishment for the Senate, and ultimately for the House
and for America.
cloture motion
Bearing that in mind, Mr. President, I send a cloture motion on the
substitute amendment; that is, the Rockefeller-Bond proposal, to the
desk.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the pending
substitute amendment to S. 2248, Foreign Intelligence
Surveillance Act of 1978 Amendments Act of 2007.
Mitch McConnell, Christopher S. Bond, Kay Bailey
Hutchison, Wayne Allard, Jon Kyl, Robert F. Bennett,
Sam Brownback, John Thune, Pat Roberts, John Barrasso,
Chuck Grassley, Johnny Isakson, Lamar Alexander, Gordon
H. Smith, Tom Coburn, Jim DeMint, Richard Burr.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
[[Page S270]]
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I am, of course, disappointed we are where
we are, but that is where we are. I have had a conference just now with
the distinguished Republican leader, and what we are going to do is to
vote on this cloture motion at 4:30 on Monday. I have gotten agreement,
and we will formalize that in just a bit. I have agreement that the
vote will be as if it occurred at noon that day, so if in fact cloture
is invoked, we can start something at 6 o'clock on Tuesday because we
have a lot to do.
So having said that, Mr. President, we have one call to make, which I
think will be fine, and I will make the request at a later time when we
do have agreement of what we want to do. I will formalize that as soon
as we make a phone call.
Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. CANTWELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Stimulus Package
Ms. CANTWELL. Mr. President, as my colleagues are trying to sort out
issues related to scheduling votes, and I certainly do care about the
pending issue and making sure that we come to a resolution that will
protect a variety of interests, I rise now to speak specifically about
the economic stimulus package which the Senate is going to take up next
week.
We all know there has been a downturn in the economy caused by
persistent high energy costs and an ongoing mortgage crisis, and we
know we are seeing damages to both individual households and to
businesses. We know that layoffs are accelerating, gas and home heating
prices are skyrocketing, making us face some of the biggest economic
challenges we have seen in years. So I think it is very important, Mr.
President, that we continue on this rapid pace to get a stimulus
package. And that is the good news; that in a bipartisan effort we have
been working diligently along with the White House to immediately get
some stimulus into the economy and help working people and businesses
that are struggling.
I think our goal should be that we identify measures that are timely,
targeted, and, when possible, address the underlying causes of our
economic problems--that is getting money in people's pockets, I
believe, must be a key component of this package. I have been following
what the other side of the Capitol has been doing, the House of
Representatives is working on a formidable package, and I know we are
discussing a variety of issues here. But I believe any package should
take the opportunity to invest in critical business stimulus measures
that can alleviate some of the underlying problems that are causing
Americans economic heartburn.
We are seeing oil prices in recent weeks hovering around $100 a
barrel and natural gas prices remaining at exceedingly historic highs,
which I think is adding great impact to what Americans are doing in
trying to deal with this economy. In fact, a Los Angeles Times article
in December cited economists' fear that high energy costs could ignite
inflation. This would just aggravate our economic problems further.
High energy costs make it much more difficult for our manufacturing
and agricultural sectors to make ends meet. Today the National Farmers
Union came out in favor of a proposal that I think we should put into
our stimulus package, and one that I am about to describe. It is an
opportunity to include in the stimulus package incentives that both
dramatically boost economic activity in 2008 and take an important step
toward reducing energy costs.
I believe we should consider an extension of the clean energy tax
incentives in the stimulus package. They meet the definition of short-
term stimulus, targeted and timely. They have the benefit of getting
immediate short-term results--that is, significant economic activity
and new jobs in 2008. And they also result in long-term benefits which
will help us deal with the underlying problem that is causing so much
havoc with our economy, and that is high energy costs.
Mr. President, the American Wind Energy Association estimates that
extending the production tax credit will result in as many as 75,000
new jobs in 2008 and $7 billion of capital spending over the next 12
months. All by Congress making the right decisions about tax incentives
for the wind industry.
I think that would be a big boost to our economy. Wind generation
alone has accounted for over 30 percent of our new generation placed in
service last year. This industry is well beyond what some might
consider a pilot phase and has significant sources of job diversity for
the United States.
Likewise, the solar industry estimates that up to 40,000 new jobs
could actually be lost in the next 12 months if we do not extend the
investment tax credit. That is right; not only do those tax credits add
stimulus to the economy, we should understand that by not doing them,
by not passing them, we are actually taking away economic opportunity
and investment plans that people would be making this year.
Included in this package are also four energy efficiency incentives
for consumers. As a Deutsche Bank report released last November said:
Gains in efficiency will have the effect of muting the
effect of expensive oil.
If we want to get consumers to go shopping, why not encourage them to
buy items that will reduce their energy costs? Everybody wins when this
happens. Consumers get lower bills, retailers get more economic
activity, and it reduces the upward pressure on prices by mitigating
demand. All of which helps the overall economy rebound faster.
This is the kind of economic stimulus we need. It helps with jobs, it
helps diversify the energy industry. The clean energy industry is one
of the few bright spots in an otherwise slumping economy. Unless those
incentives are extended in this quarter, we are taking a risk at an
even steeper downturn in an industry that saw remarkable results in
2007.
Mr. President, that's why we need to make sure we extend these
critical clean energy tax incentives. I will remind my colleagues that
the three times Congress let the clean energy tax incentives lapse, the
wind industry saw a 75- to 93-percent decline the following year,
because we were not giving them the predictability in tax incentives.
So while I am very happy to make sure the public is getting the
incentives in the form of rebate checks, I also want to say to my
constituents that we are also putting a variety of solutions on the
table, that we are trying to deal with problems that will help them not
just in the near term, but also to solve the underlying problem of high
energy costs that is a drag on our economy.
I know some of my colleagues will probably talk about lots of
different ways we can stimulate infrastructure development, but I will
say that this is about a business tax investment strategy. These clean
energy incentives will stimulate billions of dollars of capital outlay
now in the next 12 months, and be a huge source of new job creation.
An immediate cash infusion into the economy is necessary, but we
should not lose sight of the fact that this has the additional benefit
of helping us with our long-term problem.
I look forward to working with my colleagues on an extension of these
clean energy incentives as part of the stimulus package, and to
demonstrate the leadership and foresight that we have here in the
Senate to make the right decisions about a package that will
simultaneously provide us near term economic boost, prevent job loss,
and help solve high energy costs.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, I ask unanimous consent that the vote on the
cloture motion just filed occur on Monday, January 28, at 4:30 p.m.;
that the requirements of rule XXII be waived; that if cloture is
invoked, all postcloture time during a recess or adjournment would be
counted.
The PRESIDING OFFICER. Is there objection?
Mr. REID. Also, Mr. President, when we get the vote, the vote be
deemed as having occurred at 12 noon on Monday, January 28.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S271]]
The PRESIDING OFFICER. The assistant majority leader.
Mr. DURBIN. Mr. President, at the direction of the majority leader, I
announce there will be no further votes today. The next vote is
scheduled for 4:30 on Monday. It will be a cloture motion filed by
Senator McConnell relative to the bill on the Foreign Intelligence
Surveillance Act.
The Senate will be in session tomorrow at 9:30 for morning business
and debate. Members who care to may come to the floor to discuss issues
of their choosing. I would say on behalf of the majority leader as well
our frustration that we have reached this point. We have a deadline of
February 1 to enact this new FISA act. The President has argued he
needs this to keep America safe. We have offered to the Republican side
an extension of the current law so that the President would be able to
continue this policy and program uninterrupted for a month, several
months, as long as a year and a half, and we have been rejected. The
Republican leadership on the floor has argued they do not want to
extend this program as we try to work out differences on the issue of
the liability of telephone companies that provided information to the
Federal Government. That is unfortunate.
It is also unfortunate that we had Members of the Senate come to the
floor in good faith to offer amendments to this bill. I can tell you,
having spoken to those on our side of the aisle, each of the amendments
was prepared and offered to the Republican side for their review, no
surprises. We understood that they would offer their own amendments in
response. That is certainly proper. It would engage the Senate in
debate on some very important issues relative to national security. But
it was the decision of the Republican leadership they wanted no
amendments, they wanted no debate. They wanted the President's version
of this bill, take it or leave it. They would rather run the risk of
closing down this program of surveillance of terrorists than perhaps
give us a chance for a few amendments to be debated and voted on in the
next 24 hours. That is an unfortunate start to the 2008 Senate session.
In the last year of the Senate, the Republicans were responsible for
some 62 efforts to stop debate on the floor, 62 efforts at filibusters,
which is a modern record; in fact, it is an all-time record for the
Senate; 62 different occasions the Republicans engaged in filibusters
to stop debate.
We were hopeful as we talked about the stimulus package and
bipartisanship, working together, that things had changed. And then
within a matter of hours, the Republican leadership came to the floor
to stop us from having any amendments, any debate in a timely fashion
on this important bill, and also to stop us from extending this bill,
this law, so the President can use this program, and that America would
never have its security at risk.
I think the Republicans have taken an untenable, indefensible
position. They do not want the law extended so the President can use
it. They do not want us to enact any revision to the law or even debate
it on the off chance that there might be a change. They have taken the
position it is their way or the highway.
Well, we will have a vote on Monday, an unfortunate vote that would
have been avoided with a modicum of cooperation here in the Senate.
So there will be no further votes today; the first vote will be at
4:30 on Monday.
[...]
[Congressional Record: January 24, 2008 (Senate)]
[Page S301-S302]
FISA
Mr. REID. Mr. President, I was hoping that at this time today we
would be talking about the work we had done on the Foreign Intelligence
Surveillance Act. But we were unable to do that. What an unusual day.
We were not allowed to vote on anything on this bill. I hope our
friends in the press have been able to witness what took place today.
We talk about last year the Republicans having caused us to try to
invoke cloture more in 1 year than had ever happened in a Congress
before. In 1 year, they obstructed more things than ever in the history
of the country.
Now we are starting this year, and they are objecting to their own
bills. The President wants the bill passed. Every one of the
Republicans--all 49 of them, I assume--will vote for this bill. So all
they would need to pass it is two Democrats. I would have to suggest
they probably could do that. They are so afraid they may take a vote
that may not be something they want to take that they stop everything.
This is the President's program. It is not our program. We have stood
by since 9/11 telling the President: Anything that you need, we are
here at
[[Page S302]]
your disposal. Just tell us what you need and we will do it. We only
have one request--let's do it legally, constitutionally. If the present
law is not sufficient, tell us what you need changed.
We have been standing with our arms out since 9/11. But what we have
learned now, since 9/11, is basically the President does not care what
we do because he has been told--and he accepts the advice given to him
by a man by the name of John Yoo, among others--that the President does
not need to follow any law that Congress passes, that he is above the
law. I am not making this up. This is the fact. Mr. Yoo has stated so
before the world on television: The President does not need to follow
any law that we pass. But in spite of that, we have said: Mr.
President, we are willing to work with you. We don't think you have
that authority. But here we are today, with the law about to expire,
and the Vice President having made a speech yesterday, and the
President making a statement today saying: They have to pass that bill.
As I explained in some detail earlier today, they put us in a Catch-
22. No matter what we do, it does not meet their expectations. So I
again repeat, I hope the press is watching this. I hope people who
believe in good government are watching this. I hope the people are not
going to accept Monday night, during the speech that he is going to
give, or any statements made between now and the State of the Union
Address, that we are holding up his legislation. We are not holding it
up. The Republicans in the Senate are holding it up.
____________________
