[Congressional Record: January 29, 2008 (Senate)]
[Page S403-S404]
FISA
Mr. REID. Mr. President, I want everyone--especially my Republican
colleagues and especially the people in the White House--to listen to
what I am going to say. FISA, if we don't do something on it today,
will expire. It will be out of business. The House is going out of
session tonight, so unless we get to them the 30-day extension we have
tried to move forward five or six times, unless we have an extension of
18 months, a year, 2 weeks, whatever the Republicans think is
appropriate--if they think nothing is appropriate--then the full brunt
of this law expiring is on their shoulders because it is virtually
legislatively impossible to get anything done today. Remember, the
House has already done what they are going to do. If we took what the
Intelligence Committee passed, which is likely not going to happen, we
would have to have a conference with the House. They are going out of
session tonight. They are out of town on Wednesday and Thursday and
Friday. So unless we do something today, the bill is not going to be
enacted and the legislation we passed last August will expire.
Now, the orders that have been sought and accomplished during the
time since last August will still be in effect, and, of course, there
will be an opportunity under the old FISA law to
[[Page S404]]
work on an emergency basis for new things they want to do.
We want to maintain the ability to go after the bad people. We
believe there is a necessity for intercepting telephone conversations
between people who are trying to do bad things. We think it should be
within the constitutional framework, and we believe that is what the
Intelligence Committee and the Judiciary Committee have done. But I
again say, without getting into any details, unless we do something
today, unless someone can explain to me how we can pass something here
in a matter of a few hours, how we can have a conference with the House
in a matter of a few hours and then bring those two conference reports
to the House and the Senate in a few hours--I say that is legislatively
impossible.
So I am saying again to my Republican colleagues: Agree to some
extension of time or the burden of this legislation not passing is on
your shoulders because we have had no attempt to legislate. We have not
had the opportunity to offer amendments, let alone vote on them.
Our goal is to provide the intelligence community with all of the
legal tools it needs, while protecting the privacy of law-abiding
Americans. So I would hope that in the next hour or so, we can work
something out before the House leaves town or nothing will have been
accomplished.
____________________
[Congressional Record: January 29, 2008 (Senate)]
[Page S404-S406]
FISA
Mr. McCONNELL. Mr. President, we have known we needed to get the FISA
law extended for 6 months--6 months. I have also heard it suggested
that somehow, little or no harm would be done if the law were allowed
to expire. Well, that is simply incorrect. The ability to go after new
targets would be eliminated with the expiration of this bill in 3 days.
So here we are with 3 days to go, and I gather from listening to my
good friend on the other side, the very real possibility is that there
is at least some willingness on the part of some on the other side to
just let the law expire.
Now, contrary to what some are saying, the expiration of this
important antiterrorist tool has serious consequences; that is, if we
don't get this job done, the notion that somehow it doesn't make any
difference is certainly not true. Let me say again: Once it expires,
intelligence officials will no longer be able to gather intelligence on
new--new--foreign terrorist targets. The terrorists are not going to
stop planning new attacks just because we stop monitoring their
activities. Our enemies are watching. They know our intelligence
capabilities will be degraded once the Protect America Act expires.
That is why we need to reauthorize FISA in such a way that we retain
its full--its full--terror-fighting force. The Senate Intelligence
Committee's version does just that. That is the Rockefeller-Bond
bipartisan proposal that came out of committee 13 to 2. Senate
Republicans stand ready to finish that good work the committee did and
the administration began.
We have proposed a list of several amendments to our colleagues on
the other side that could receive votes. I know those discussions are
ongoing, and hopefully we can begin to have some votes. But we do not
have the time to rebuild amendment by amendment a Judiciary Committee
version that a bipartisan majority of the Senate has already defeated.
It wouldn't become law even if we passed it.
Now, Republicans are ready to provide a short-term extension of the
Protect America Act to keep the Senate focused on the importance of
this critical terror-fighting tool. But after 10 months of waiting, we
do not need--and the country cannot afford--another month of delay.
We await the response of our Democratic colleagues to our amendment
proposal, and those discussions, as I indicated, are going forward, and
we look forward to finishing the job in a way that allows our
intelligence professionals to keep us safe from harm.
I yield the floor.
The ACTING PRESIDENT pro tempore. The majority leader is recognized.
Mr. REID. Mr. President, we understand the implication of the
legislation that is now in effect and will expire Thursday. We
understand that. We understand there are new targets our intelligence
officials may want to go after. We understand that. But I repeat: Using
the words of my friend, the Republican leader, once it expires, if it
expires, it is on the shoulders of the White House and the Republicans
in the Senate. We have attempted to work through this, and we have been
willing to extend this law for an extended period of time. We have been
willing to extend the law for a limited period of time.
I think what this all boils down to is that we should extend the law
for a long period of time because the only issue--there are other
issues, of course, but the main issue is whether there will be
retroactive immunity for the phone companies. That is what it all boils
down to--whether there is going to be retroactive immunity to the phone
companies. Some of us don't think that is appropriate; others think it
is appropriate.
So why don't we extend this law for an extended period of time? That
way, the new targets could be sought if, in fact, they are out there--
and we all believe there are some, and that is necessary to be done--
and then set up a time. We will agree to a time and have a debate on
the immunity provisions and see if the Senate and the House are willing
to give retroactive immunity. In the bill my distinguished colleague,
the Republican leader, talked about that came from the Intelligence
Committee, that is in that bill. That is in their bill that came from
committee. What the House has done doesn't have it in there. So why
don't we have a debate on that issue and just extend the law? We will
extend it until there is a new President. We are fine--we are happy to
do that--so that we get off this: We can't do the targets. Why don't we
just extend it for a period of time, and then our side will agree to
try to work out something legislatively so that we can have a real nice
debate on retroactive immunity.
Mr. DURBIN. Mr. President, will the majority leader yield for a
question?
Mr. REID. I am happy to yield.
Mr. DURBIN. Mr. President, I would like to ask the Senator if he
could recap for me two votes that I think are significant. There was a
vote taken as to whether the Judiciary Committee version would be
accepted. A cloture vote was taken, if I am not mistaken, and it was
defeated. If I am not mistaken, that was last week. And if I am not
mistaken as well, yesterday, when Senator McConnell offered a cloture
motion to promote his point of view, there were only 48 votes in
support of it out of the 60 that were necessary--4 from our side of the
aisle, 44 from the Republican side.
It seems to me we need to put our heads together to work this out.
Extending this law so that there is no damage or hazard to our country
is a reasonable way to do this. We now have reached a point where
amendments may be considered and voted on, and then we will be in a
spot where we can pass a version in the Senate, send it to conference,
and work out our differences. But I can't understand how the President
and the Republican leader can come to the floor and blame us for the
expiration of the law if we are offering an extension of the law and
they keep refusing.
Mr. REID. Mr. President, I say to my friend, the distinguished
Senator from Illinois, I personally have been to the floor and offered
on many occasions to extend the time. We could all see the train wreck
coming, and we believed that it was necessary to extend this law.
I don't know--I say very positively to my friend from Illinois and
everyone who can hear me--I don't know if we can work anything out on
these amendments. I don't know. On the title I aspect of it, one
Senator has six amendments. I am sure--he has always been a reasonable
person--he wouldn't have to offer that many. He has always been very
good about time agreements. But there are 10 or 12 amendments to title
I. Then there are three we have with title II dealing with some form of
immunity.
But I repeat to my friend, Democrats believe the program should
continue.
[[Page S405]]
We are willing to say, OK, let it continue as it is now in effect. A
lot of people don't like that. We are saying go ahead and let it
continue. Certainly, there could be a significant majority of
Senators--Democrats and Republicans--who will support that. And the
issue is immunity.
I reverse the question and ask my friend from Illinois, should we not
have a nice debate on immunity and find out how the Congress feels
about what the President feels is important? That is how this country
has worked for all these years. So extend this and do it until we have
a new President--Democrat or Republican, man or woman, whoever it might
be--and in the meantime have a decision made as to whether there should
be retroactive immunity.
Mr. DORGAN. Will the Senator yield for a question?
Mr. REID. I will, but let my friend from Illinois answer that
question first.
Mr. DURBIN. Mr. President, I say to the majority leader, it appears
now that the Senate has to work its will. When the Judiciary Committee
proposal was suggested, it didn't pass. When the Senator from Kentucky
offered his cloture motion for his side, it didn't even have a majority
vote. It had 48 votes in support, let alone the 60 that were required.
I don't think we can expect to impose our will on this body. The Senate
has to work its will. We could have considered a lot of amendments in
the time we have lost so far in debate.
I say to the majority leader, how can we be held responsible for this
law expiring if it is the Republicans who opposed extending the law?
You have offered repeatedly to let them extend the law. They have said
no.
Mr. REID. Mr. President, I say to my friend, let's extend it for any
period of time, although I think that for each day it should be a
longer period of time.
Mr. McCONNELL. Will the majority leader yield for a question?
Mr. REID. I will after I have yielded to the Senator from North
Dakota. If anyone thinks we are going to come to an immediate agreement
on all these amendments, we have overused the term ``run the traps,''
but the Republicans are not going to agree to all of the amendments the
Democrats want to offer. I will respond to my friend from North Dakota.
Mr. DORGAN. Mr. President, this is a complicated and certainly an
important issue. It seems to me that it takes two sides to compromise.
One of the things I am curious about, as I listened to this and to the
Senator from Kentucky, the minority leader said we are ready to move
forward. He said he is disappointed in the delays. Isn't it the case,
however, that last week, when the cloture motion was filed by the
Senator from Kentucky, they decided at that point to block everything
else and stop everything from happening until this week? It seems to me
this delay has occurred because the other side has blocked the ability
to offer amendments. Had we offered amendments, we would have probably
been done with that at this point.
I say that there is not anyone in the Senate I am aware of--no one--
who doesn't believe we ought to extend this FISA law. Nobody is in that
position. Isn't that the reason for the delay and the reason we have
not moved forward--that we were blocked when the Senator from Kentucky
filed his cloture motion?
Mr. REID. Mr. President, I say to my friend, you were at the meeting
with me just from 9 to shortly before the hour of 10 o'clock. A person
who is heavily involved in this legislation, the distinguished Senator
from Wisconsin, Russ Feingold, said this legislation should be
extended. He has, on many occasions, voiced his opinion on what is
wrong with the way we passed this legislation in August, and he has
been very strong in his comments about how this law could be improved.
Every Democrat in our caucus believes this law should be extended. I
don't like to speak for everybody, but Senator Feingold believes the
law should be extended because it is the right thing to do. I cannot
imagine why we have had all the difficulty we have had in extending
this law. On a number of occasions, we have said if the law expires, it
is not our fault.
Now I am happy to yield to my friend from Kentucky.
Mr. McCONNELL. I thank my good friend.
Mr. President, he indicated that the principal issue we are sparring
over is the question of immunity from litigation for communications
companies that cooperated in protecting our country. I am sure the
majority leader knows that yesterday my side offered to his side a vote
on the Dodd-Feingold amendment related to that issue, and a vote on the
Specter-Whitehouse amendment related to that issue, and that package
was rejected.
Mr. REID. Yes. I say to my friends, there are also other amendments.
We talked about title I, and there are a number of amendments. I think
we can reduce those on that side to maybe eight. They would all be
short time limits. They would also make sure the record reflects that
we believe they should be majority votes, not 60-vote margins.
Mr. McCONNELL. Is the majority leader yielding the floor?
Mr. REID. Yes, I am happy to.
Mr. McCONNELL. Mr. President, this is the kind of discussion, of
course, that the Senate is witnessing that typically occurs between the
majority leader and myself and managers of the amendments. To sum it
up, this is the kind of legislative finger-pointing that turns the
public off. But it is the way in which we go forward.
We had discussions yesterday about voting on the very issues the
majority leader just indicated are the key issues relating to this
bill. Hopefully, during the course of the day, we will be able to come
together and have the votes on the key amendments and move forward.
The President, of course, is not going to sign a lengthy extension or
a 30-day extension. Any hope that we will extend existing law without
dealing with the retroactive liability issue is a waste of energy and
time. That isn't going to happen. So we are going to focus on this bill
and, hopefully, find a way to go forward and let the Senate work its
will.
If the House chooses to leave tonight, I find that a highly
irresponsible act--right before the expiration of this very important
law. There isn't anything more important that we are doing right now,
with the possible exception of trying to figure out a way of going
forward to stimulate our economy and prevent an extensive slowdown,
than getting the homeland protected.
A key ingredient in securing that protection, we know, is getting
this FISA law right and getting it passed--not some kind of short-term
extension. The terrorists are not going to take a vacation for a few
weeks or for 6 months or next year; they are going to be around for a
while. We need to get this right and do it now, and today is a good day
to get started.
I yield the floor.
Mr. REID. Mr. President, if this law is so good and we are able to,
in the words of the Republican leader, ``get new targets,'' why don't
we extend the law? I don't understand why we are not doing that.
I tell everyone again that it is legislatively impossible to do
anything as it relates to this legislation, as far as passing it today.
It is impossible. We have a number of amendments that have to be
handled. It is going to take a matter of quite a few hours. We can do
it in 1 day, I think. Remember, we have to have everybody agree to
that, all 100 Senators. Then the House has to agree to what we do or we
have to agree to what they do or work out a compromise in conference.
That cannot be done tonight. This is the last day we have to legislate.
If we don't legislate today, we are going to move on to something else
in a few minutes, because there is no agreement on FISA--to extend it.
I think that is unfortunate. Having said it so many times already--and
I am tired of hearing myself say it--if the law expires, Democrats have
no blame whatsoever.
Mr. McCONNELL. Mr. President, let me wrap it up for myself by saying
that we will be staying on this bill. We will not leave this bill.
Secondly, this is a bipartisan compromise that came out of the
Intelligence Committee by a vote of 13 to 2, the Rockefeller-Bond
bipartisan bill, which is supported by the President of the United
States. That is the Senate at its best--a bipartisan bill. The
President is willing to sign it. Our effort
[[Page S406]]
here is to get it to him for his signature. He awaits our action.
I yield the floor.
Mr. REID. Mr. President, this bill is not a bipartisan bill. The bill
that came out of the Intelligence Committee is bipartisan, but
understand it was concurrently referred to the Intelligence Committee
and the Judiciary Committee. They both have jurisdiction over this
legislation. We cannot pick and choose what the President likes. We
have a situation here where the Judiciary Committee is entitled to be
heard. That is what they are asking for--to be heard. They demand that
and it is appropriate.
____________________
[Congressional Record: January 29, 2008 (Senate)]
[Page S406-S407]
FISA
Mr. MARTINEZ. Mr. President, I wish to talk about the very important
issue relating to foreign intelligence surveillance. I want to talk
about it not in the sense of who gets to be blamed if something
happens. I believe that on something of this magnitude, the American
people are pretty tired of the blame game: We would have done this, but
if you didn't do that, we blame you; and if this happens, you get to
blame us. I think the time of blame-casting has well passed. The fact
is that the laws that grant the Government the authority to use the
resources we have in order to stay informed of what our enemies are
seeking to do to us are outdated and need to be modernized and put up
to date with our current technology. We are fighting a modern war
against a modern enemy. The tools we have to fight that war are out of
date. One of the only ways we are able to expose and stop terrorist
plots before they unfold is through the provisions accorded under FISA.
Some of my colleagues have expressed an understandable concern about
the current FISA reauthorization, and whether it would improperly
invade the civil liberties of our citizens. After 2 years of public
debate on the broad issues of FISA, and after reviewing the current
legislation, I believe those concerns are unwarranted.
This issue transcends the stance of either political party or any
partisan interest. Those who oppose this are sincere in their concern;
they just happen to be wrong. Needless hurdles will be created for our
Government in the obtaining and utilizing of valuable intelligence to
keep America safe. So I want to see us address this issue head on and
come together and send the President a bill that he can and will sign.
The President spoke about this last night in his State of the Union
Message. He wants to get this matter resolved, and he wants a bill on
his desk. We owe it to the military and the intelligence community to
equip them with the tools they need to protect our citizens and carry
out their duties effectively.
Throughout our history, Americans have always been concerned about
the proper balance between security and freedom. Those concerned about
the power of Government and trampling on the rights of free citizens
are right to insist on maintaining the individual liberties granted to
us by the Constitution, especially during a time of crisis. The bill we
are considering is precisely concerned with maintaining and keeping a
proper balance of those protections.
This is a bipartisan bill. It was reported out of the Intelligence
Committee by a vote of 13 to 2. It is a modern update that is designed
to keep our technological edge and to effectively implement the goals
of the original FISA law passed in 1978. This bill is the product of
the careful consideration of Members of both sides of the aisle on the
Intelligence Committee--those best informed about these matters, who
have the most knowledge about the means and methods by which we gather
intelligence. Those Members recognize a need to modernize the way our
intelligence is collected and the need to share information that is
vital to terrorist communications, whether these communications be on a
cell phone, by e-mail, or in person. This bill is for the American
intelligence services to be able to timely develop intelligence without
having to wait for a court order. In other words, if a terrorist group
such as al-Qaida calls a sleeper cell within our borders, this would
ensure that our Government can protect our citizens, the specific
procedure for surveillance, and it ensures that the independent FISA
Court is fully informed of every step in the process.
The bill also has a provision to protect those who have assisted us
and the intelligence community in gathering information that was
absolutely vital to our national security. Fortunately, we have had
full cooperation from a number of telecommunications companies in
providing our intelligence officials with accessing and obtaining
information from foreign terrorists.
As we look at this issue--and the majority leader says this issue is
the big sticking point, so let me talk about that specifically, that
this retroactive immunity for telecommunications companies allows bad
actors to get off the hook--who is it we are giving immunity to and why
should it be retroactive? This has already been noted a number of
times, but I think it bears repeating.
Retroactive immunity is necessary not only to protect companies that
cooperated in good faith at the request of our President during the
time of the most serious domestic crisis our country has ever faced,
but it was done to ensure our national secrets regarding intelligence
methods remained classified and are not disclosed in public through the
civil court process. In other words, it is not just about providing
immunity to those who helped at the time it was needed, but it is also
to ensure that as we go forward, we are not going to have an O.J.
Simpson-type trial, with television cameras blaring with information
being disclosed. We know things do not keep. We know our enemies are
capable of getting the information because it will be in the New York
Times. The fact is, we want to keep our methods and sources secret and
confidential, and this is a very important part of this immunity idea.
If you want accountability for the executive branch, we have a
constitutional system of checks and balances, and leaving aside the
President's authority under article II, we are exercising congressional
oversight in passing S. 2248, and we, along with the FISA Court, are
certainly going to be able to pay close attention to how we select
intelligence going forward.
As far as letting bad actors off the hook is concerned, S. 2248
provides retroactive immunity from civil litigation if a series of
conditions are met. The assistance was provided in connection with
intelligence activity authorized by the President between September 11,
2001, and January 17, 2007, and was designed to detect or prevent
terrorist attacks against the United States.
What is wrong with that? The assistance was also to be provided in
response to a written request, a directive from the Attorney General or
other intelligence community head indicating the activity had been
authorized by the President and determined to be legal.
To me, it is a good idea to give these folks the kind of immunity
that will allow them to continue to cooperate, that will say to them:
The next time there is a vital emergency where your cooperation is
needed, we didn't stick you with the bill, we didn't allow the courts
to go wild. We protected you because you protected America. To me, that
seems only fair and only right.
I hope we can get through the partisan morass that always seems to
entangle us. I hope we can find a way we can pull together something of
this magnitude and importance, which is about the national security of
our country--it is about the intelligence needs of our intelligence
community--and that we can come together in a timely fashion, craft
this bill, take the bill the Senate Intelligence Committee passed on a
bipartisan 13-to-2 vote, put
[[Page S407]]
it up for a vote, let's take the amendments that are available, move it
forward, get a vote, and get a bill to the President that he can sign.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
Mr. ALEXANDER. Will the Chair kindly let me know when I have used 8
minutes?
The ACTING PRESIDENT pro tempore. The Senator will be notified.
____________________
[Congressional Record: January 29, 2008 (Senate)]
[Page S420-S423]
FISA
Ms. SNOWE. Mr. President, I rise today as a member of the Select
Committee on Intelligence to discuss the pending legislation to
modernize the Foreign Intelligence Surveillance Act that was originally
passed in 1978. At the outset of my remarks I would like to first
express my sincerest appreciation to the chairman of the committee,
Senator Rockefeller, and the vice chair, Senator Bond, for their
exceptional leadership in working in a concerted, cooperative manner to
shepherd the Intelligence Committee bill through the legislative
process in a strong, bipartisan manner.
As my colleagues know, the act is set to expire on February 1--less
than a week from now. It is imperative that Congress pass legislation
reflecting the
[[Page S421]]
will of this body and send it to the President's desk for enactment. At
a time when al-Qaida lurks in the shadows, making no distinctions
between combatants and noncombatants, between our battlefields and our
backyards, we as lawmakers must work with firm resolve to ensure that
the intelligence community possesses the tools and the legal authority
that is required to prevent future terrorist attacks on our soil. Yet
in the wake of years of controversy surrounding the Terrorist
Surveillance Program, we all must be mindful of our duties to uphold
the constitutional protections as old as this Republic. I do not
believe these goals are mutually exclusive.
The Foreign Intelligence Surveillance Act, commonly known as FISA,
establishes a distinct system of laws and regulations for the
Government's ability to legally conduct national security-related
surveillance of communications. The Intelligence Committee proposal,
which was reported out on a strong 13-to-2 bipartisan vote, does not
present the ideal solution to the urgent matter before us, underscoring
the difficulties and complexities that are presented by the question of
intelligence surveillance. However, it is a marked improvement over the
Protect America Act and represents the collective agreement of 13 of
the 15 members of the Intelligence Committee, both Republicans and
Democrats. I appreciate the disparate views that many of my colleagues
on both sides of this aisle espouse, but in the end, the Senate must
work to achieve its will and to find the common ground that is so
essential on this issue for our Nation's security. For Congress to be
relevant, it must ultimately come to a legislative resolution and
conclusion.
The underlying premise of FISA recognizes that obtaining a standard
search warrant through a typical Federal or State court is not
appropriate when dealing with sensitive security operations and highly
classified information. In creating separate legal mechanisms for such
matters, FISA has, for nearly 30 years, relied upon the rulings of the
special Foreign Intelligence Surveillance Court and continuous
congressional oversight in ensuring that fourth amendment protections
against unreasonable searches and seizures are respected. Although FISA
is and remains an indispensable tool in the war on terror, it was
written almost 30 years ago--long before the name ``al-Qaida'' rang
with any significance--and it has begun to show its age.
FISA was enacted before cell phones, before e-mail, and before the
Internet, all of which are used today by hundreds of millions of people
across the globe. Unfortunately, those numbers include terrorists who
are using these tools for planning, training, and coordination of their
operations. Put simply, FISA's technology-centered provisions do not
correspond to the systems and apparati that are used in communications
today. As Admiral McConnell, Director of National Intelligence, said
most bluntly and straightforwardly:
FISA's definition of electronic surveillance [has] simply
not [kept] pace with technology.
But we all know this is not the only backdrop to FISA
reauthorization. Prior to December 2005, only the party leaders in both
the House and the Senate, and the chairmen and ranking members of those
Houses' respective Intelligence Committees--the so-called gang of
eight--had any knowledge that warrantless surveillance was occurring on
U.S. soil with neither court approval nor congressional authorization.
Once the program came to light, the administration asserted it had the
legal authority to conduct such surveillance anyway, citing
considerably tenuous interpretations of both article II of the
Constitution and the 2002 authorization for the use of military force
in Iraq.
This was not the power-sharing construct between the three branches
of Government under which FISA had operated for nearly three decades.
Rather, this was a unilateral exercise of executive branch authority to
the exclusion of the other two. The use of unchecked executive power
was neither how the Framers of the Constitution nor the framers of FISA
intended this matter to be addressed.
Accordingly, less than 2 months later, I, along with Senators DeWine,
Hagel, and Graham, introduced the Terrorist Surveillance Act of 2006,
which called for strict legislative oversight and judicial review of
the program. A number of colleagues joined the effort with a variety of
additional proposals to both exert congressional oversight, as well as
to modernize FISA; and the administration, bowing to this collective
congressional pressure, finally permitted full access to the NSA
program by members and staff of both Intelligence Committees.
Congressional leverage also led the Attorney General this past January
to submit the terrorist surveillance program to the requirements of
FISA, including appropriate review of Stateside surveillance requests
by the Foreign Intelligence Surveillance Court. At the time this was
viewed as a step toward some restoration of the rule of law and
constitutional principles, and FISA reform efforts focused on
modernizing the statute for technological purposes.
Yet, as noted in the Intelligence Committee's report on the FISA
Amendments Act of 2007,
At the end of May 2007 . . . attention was drawn to a
ruling of the FISA court . . . that the DNI later described
as significantly diverting NSA analysts from their
counterterrorism mission to provide information to the Court.
In late July, the DNI informed Congress that the decision . .
. had led to degraded capabilities in the face of a
heightened terrorist threat environment.
FISA reform efforts quickly shifted to addressing this gap. Congress
responded this past August by passing the bipartisan Protect America
Act, a law which cleared the Senate 60 to 28. Although an imperfect
statute, it granted the DNI the tools necessary to protect our homeland
at a time when there were well-documented gaps in our intelligence
gathering. Congress wisely employed a 6-month sunset to ensure that the
shortcomings of this temporary law could be explored at length and
properly corrected. The bill before the Senate today is a product of
that 4-month deliberation, and given all that I have just outlined,
clearly the time has now come to take precise and concrete action.
The Intelligence Committee has been guided by its vast expertise in
overseeing American intelligence operations, and this proposal sorts
out the confusion of the past several years and replaces legal gray
areas with clear bright line rules. Central to this revision is the
role of the FISA Court--a critical step in this process, as the courts
must play a prominent role whenever fourth amendment concerns are at
stake.
The bill rightly maintains the rule that no court order is required
when targeting communications abroad, and clarifies that this remains
the case even if, for example, a foreign-to-foreign e-mail transits a
server located on U.S. soil. However, the bill would, going forward,
allow for so-called ``umbrella surveillance'' only under the following
conditions: First, it may be conducted for 1 year. Secondly, the DNI
and the Attorney General must certify that such operations would target
only those individuals reasonably believed to be outside of the United
States. Third, the FISA Court must receive and approve the minimization
procedures to ensure that any ``inadvertent collection'' is promptly
destroyed.
More importantly, where the target is located within the United
States, or where the target is a U.S. citizen or a permanent resident
anywhere in the world, the bill now requires that a warrant first be
obtained from the FISA Court. The FISA Court--only the FISA Court--will
have the authority to determine that there is probable cause to believe
that the U.S. person in question is an agent of a foreign power. Only
then may a warrant be issued, and only then may targeted surveillance
commence. This is a strong and substantial improvement over the
provisions of the Protect America Act.
It is noteworthy that this bill, if passed, would recognize for the
first time ever the right of a U.S. citizen or permanent resident to be
free from warrantless surveillance by the U.S. Government even when
such person is abroad. As our colleague Senator Wyden said in
the Washington Post on December 10, this is a change that was
contemplated back in 1978 but which never received the attention
necessary from Congress to become law.
Finally, the bill authorizes the inspectors general of the Department
of
[[Page S422]]
Justice and elements of the intelligence community to conduct
independent reviews of agency compliance with the court-approved
acquisition and minimization procedures--adding another independent
check to ensure that the agencies charged with implementing the program
are in fact complying with the court order and minimizing any
information that was inadvertently collected.
This is not to say that the Judiciary Committee substitute was not
superior in some regards. For example, it contained far stronger
language asserting that the FISA Court and the Federal Criminal Code
are the exclusive means by which the U.S. Government may conduct
surveillance, counteracting allegations by the administration that the
2002 authorization of the use of military force against Iraq provided
an alternate statutory authority.
To be clear, the Intelligence Committee bill does state that such a
restriction applies to ``electronic surveillance.'' In fact, I felt
strongly about this provision, and that is why I joined other
colleagues on the Intelligence Committee in submitting additional
comments regarding this provision--specifically that FISA is the
exclusive means by which the U.S. Government may conduct surveillance.
Yet the Judiciary Committee bill took this one step further, expanding
exclusivity to cover any ``communications or communications
information,'' a broader term meant to reach even those communications
not covered under the more narrowly defined category of ``electronic
surveillance.''
Yet, on balance, the Intelligence Committee legislation reflects the
committee's expertise in this field, and it presents a bipartisan
approach for restoring order to the state of the law surrounding
Government surveillance.
As the Intelligence Committee report noted, the committee held seven
hearings in 2007 on these issues, received numerous classified
briefings, propounded and received answers to numerous written
questions, and conducted extensive interviews with several attorneys in
the executive branch who were involved in the review of the President's
program. In addition, the committee received formal testimony from the
companies alleged to have participated in the program and reviewed
correspondence that was provided to private sector entities concerning
the President's program.
The committee secured IG reports and the orders and opinions issued
by the FISA Court following the shift of activity to the judicial
supervision of the FISA Court and invited comments from experts on
national security law and civil liberties. The committee also examined
extensive testimony given before other committees in the last several
years and visited the NSA, carefully scrutinizing the program's
implementation.
The underlying committee bill vests significant authority--and
rightfully so--in the FISA Court to authorize targeting of U.S. persons
and to sign off on minimization procedures of any nontargeting
surveillance. It further modernizes FISA so that its terms apply
rationally to today's technology, and streamlines procedures to ensure
that the men and women in our intelligence community can maximize their
focus on detecting threats to our homeland. It does all of this while
employing the Intelligence Committee's technical expertise to avoid any
unintended consequences.
I wish to focus the remainder of my remarks on what has become the
flashpoint of controversy--whether to grant retroactive immunity to the
numerous telecommunications companies who have been sued for allegedly
providing private customer information to the Government in violation
of the law. I believe that this narrow, limited grant of immunity is a
proper course of action for these reasons:
First, it is critical to note and understand that a grant of immunity
to telecom providers for assisting the Government is not a novel
concept, but rather a longstanding component of existing law.
Specifically, the Federal Criminal Code already states that ``no cause
of action shall lie in any court against any provider . . . for
providing information, facilities, or assistance'' to the Federal
Government in conducting electronic surveillance if the company is
presented with either a court order or a certification signed by the
Attorney General stating that ``no warrant or court order is required
by law, that all statutory requirements have been met, and that the
specific assistance is required.''
Why, then, must the bill before us contain an immunity provision for
communications firms? The answer is that they are unable to invoke it
because the very existence of whether a particular company--or any
company--did or did not participate in any alleged surveillance has
been designated as a state secret by the U.S. Government. This places
the telecom companies in a Catch-22 scenario: if, hypothetically, a
company did assist the Government, it cannot reveal that fact under the
State Secrets Doctrine, and thus cannot claim the benefit of immunity;
conversely, if a company did not provide any alleged assistance, it
still cannot demonstrate that fact to conclusively dismiss the lawsuit,
again because of the mandates of the State Secrets Doctrine. In the 40-
plus active lawsuits, defendant telecom companies are in a ``no-win
situation.''
To those who may ask why Congress should concern itself with
addressing these pending lawsuits, I would answer that the credibility
and effectiveness of America's intelligence community depends upon it.
Particularly in the wake of the devastating attacks of September 11,
2001, any American company that, when reportedly presented with proper
certification, assisted the Government in a matter of national security
was doing so, in all likelihood, in the best interests of our Nation.
And punishing such cooperation through subsequent lawsuits could have
drastic future consequences.
This position has been asserted by former Attorney General John
Ashcroft and former Deputy Attorney General James Comey, both of whom
had well-documented misgivings about the administration's approach to
surveillance. This view is also held by the distinguished chairman of
the Intelligence Committee, who on October 31 of this year wrote in the
Washington Post that the telecom lawsuits are ``unfair and unwise. As
the operational details of the program remain highly classified, the
companies are prevented from defending themselves in court. And if we
require them to face a mountain of lawsuits, we risk losing their
support in the future''--a development that Chairman Rockefeller
assessed would be ``devastating to the intelligence community, the
Justice Department and military officials who are hunting down our
enemies.''
The immunity provision in this bill is narrow and limited. First, it
is only retroactive. It clearly delineates what types of surveillance
require a search warrant from the FISA Court and what types do not. The
very fact that the FISA Court will be involved contrasts starkly with
the ``gray area'' under which the Terrorist Surveillance Program had
operated prior to January of this year. This clarity will thus also
make it clear as to whether a telecom company is complying with a
lawful request and thus whether it will be entitled to statutory
immunity.
As the Intelligence Committee report underscored, the action the
committee proposes should be understood by the executive branch and
provided as a one-time response to an unparalleled national experience
in the midst of which representations were made that assistance to the
Government was authorized and lawful.
In doing so, the underlying legislation acts prospectively to guard
against any future infringements of constitutional liberties that might
occur. By contrast, striking title II will accomplish nothing
constructive in the future. To the contrary, as I indicated, it may be
counterproductive by discouraging future cooperation by private
entities.
Second, the bill only grants immunity for civil lawsuits. It would
not provide amnesty to anyone--the telecommunications companies,
Government officials or any other party--who engaged in any potential
criminal wrongdoing. Should any criminal allegations arise against
telecommunications officers, Government officials or others, such
investigations would not be prevented by this provision. Nothing in
this bill is intended to affect any of the pending suits against the
Government or individual Government officials.
Third, this provision does not make any determination as to whether
the
[[Page S423]]
program in question was legal. It only grants the telecommunications
carriers immunity if the Attorney General certifies those carriers
cooperated with intelligence activities designed to detect or prevent a
terrorist attack and that such a request was made in writing and with
the assertion that the program was authorized by the President and
determined to be lawful.
Finally, this bill provides the fairest course of action for
addressing corporations that, when presented with an urgent official
request at a critical period for our Nation's security, acted in a
patriotic manner and provided assistance in defending this Nation.
These companies were assured that their cooperation was not only legal
but necessary and essential because of their unique technical
capabilities. Also note that the President initially authorized the NSA
program in the early days and weeks after the September 11 attacks,
attacks that shocked our Nation and forced us to quickly react and
adjust to the new reality of the 21st century, where terrorism was
occurring in our own backyard. If a telecommunications company was
approached by Government officials asking for assistance in warding off
another terrorist attack and those Government officials produced a
document stating the President had authorized that specific activity
and that activity was regarded as legal, could we say the company acted
unreasonably in complying with this request?
In the interest of protecting our Nation in this new environment of
the 21st century and bringing stability and certainty to the men and
women who are in our intelligence community as they carry out their
very vital and critical missions in defending and preserving our
freedoms at home, I urge passage of FISA reform that is bipartisan,
that respects an active balance among all branches of Government, that
will establish a key role for the courts going forward in evaluating
surveillance measures in the United States and against U.S. persons
abroad and that we will allow the intelligence community to devote its
full efforts to fighting and winning the war on terror.
I yield the floor.
The PRESIDING OFFICER (Mr. Pryor). The Senator from Oklahoma.
____________________
[Congressional Record: January 29, 2008 (Senate)]
[Page S430-S432]
FISA
Mr. CHAMBLISS. Mr. President, I come to the floor this afternoon to
talk for a minute about the pending FISA legislation.
As a member of the Senate Intelligence Committee, I have been very
pleased to be a part of the bipartisan process in which Chairman
Rockefeller and Vice Chairman Bond have crafted a very delicate, a very
sensitive, yet important piece of legislation. Probably the most
important piece of legislation that the Intelligence Committee has
dealt with over the last several months or even years. Certainly, it is
one of the most important pieces of legislation to come to the floor of
this body this year.
This FISA legislation gives tools to our intelligence community which
allow our brave men and women--who stand at the forefront today of the
war on terrorism in every part of the world--to gather information from
those who are plotting, planning, and scheming to kill and harm
Americans. The tools with which the intelligence community seeks to get
in this particular instance deal with their ability to gather
information, primarily through what we refer to as electronic
surveillance, from terrorists, or bad guys, who are overseas
communicating to other individuals who are also overseas. There is no
question that in order for our intelligence or law enforcement
officials to be able to gather information from communications of
persons located within the United States, it is necessary that they
first obtain a court order. Let's make that very clear. We must first
obtain a court order to conduct surveillance against individuals
located within the United States. What we are seeking to do in this
legislation is to give our intelligence community the ability to
collect information without a court order from people who are planning
attacks against the United States and located outside the United
States. It is those individuals whom we seek to gather information from
and prohibit from having the capability to kill and harm Americans.
This legislation is a crucial piece in the puzzle to enable the
intelligence community to gather information from these individuals.
This particular piece of legislation has been debated in the
Intelligence Committee for 10 months and was voted out of the
Intelligence Committee on a very bipartisan vote of 13 to 2. I actually
voted against several of the amendments offered in the Intelligence
Committee. But at the end of the day, even though some of the
amendments I voted against were accepted and were included in the bill,
I believed it was such an important piece of legislation and put such
necessary power and authority into the hands of the intelligence
community that I voted to support it.
I commend my vice chairman, Senator Bond, who is on the floor with me
now, for his leadership. I would simply ask the vice chairman: We
started debate on this bill on the Senate floor in December, have been
debating this bill this week, as well as last week. Where are we? What
is the holdup in passing this critical legislation? What is the
problem? Why can't the Senate give our intelligence community the tools
they need to protect Americans?
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Mr. President, if I may respond to my colleague from
Georgia, who is a very valuable member of the Intelligence Committee
and who brings expertise from the other body and who has been a
valuable contributor, when we passed the FISA bill in what is called
the Protect America Act in August, everybody agreed that it should be
60 votes because this is a very important but very controversial bill
that has to be adopted by 60 votes. Thus, we have asked that amendments
to this bill be considered under a 60-vote rule.
It is very common in this Senate to demand 60 votes to be sure it is
a nonpartisan bill. So far, we have not been able--although we have
provided several alternatives to our friends on the other side--to get
a clear way of going forward. So that is why we are stuck, waiting to
find a reasonable manner of proceeding.
I would ask my colleague if, in fact, he feels we had adequate
contact with, interaction, and advice from the intelligence community
and whether it is important to have the advice and assistance of those
who are experts in and know the operations of electronic surveillance,
to have a role in our drafting of the legislation.
[[Page S431]]
Mr. CHAMBLISS. Mr. President, I would respond to the vice chairman,
the Senator from Missouri, that without question, under his leadership
and the leadership of Senator Rockefeller, the chairman, we have
received important input and had dialogue with the intelligence
community throughout the drafting stages of this legislation. We not
only had the top leadership, including the DNI, the Director of the
NSA, the head of the CIA, and folks from the FBI in to testify before
the Intelligence Committee, but also every member of the Senate
Intelligence Committee has had the opportunity to visit these agencies
and see firsthand where and how this information is gathered. We have
had the opportunity to see firsthand the methods our intelligence
community uses and the professionalism they exhibit. All of this is
very highly classified. Our committee deals with all of this
information in a very sensitive and classified manner. But the fact is,
we have had testimony and firsthand accounts from top to bottom--from
the individuals who physically gather the information all the way to
the top leadership. Members of the committee on both sides of the aisle
have asked tough questions to the individuals who have presented
testimony before the committee. Everybody had the opportunity to have a
free and open dialog and debate with those individuals.
Again, based upon what our intelligence experts had to say, this
legislation was crafted and debated within the committee. Without
question, there was ample opportunity for every member to inquire of
all of those in the intelligence community of why we need this
legislation, why it is so critically important, where we would be
without it, and why we need it to make sure we are able to stop those
individuals who seek to do harm to Americans around the world.
Mr. BOND. Mr. President, I would ask the Senator from Georgia further
why it is so important to have the intelligence community operatives
and lawyers involved in drafting the measure. We had several good ideas
offered in the committee that turned out not to be workable. I would
ask my colleague why he thinks it is important to have the direct
involvement by the intelligence community experts as to how to craft
not only the legislation but amendments to it.
Mr. CHAMBLISS. Mr. President, I would respond to the distinguished
Senator from Missouri that without question, it is necessary, from a
legal standpoint and from a practical standpoint, to get testimony and
advice from the legal experts and our operators in the intelligence
community to make sure there are no unintended consequences that come
out of the final product from the Intelligence Committee.
As the Senator will recall, we had some very heated debates on a
couple of amendments within the committee. Very good debate on both
sides of the issues. Sometimes, there were Democrats arguing
with Democrats, other times Republicans were arguing with Republicans,
but that is the nature of the Intelligence Committee. It operates in a
bipartisan fashion to make sure we look at every aspect--legal,
technical, as well as practical--to make sure we get it right. As the
vice chairman knows and has been working to correct, some of the
amendments adopted in committee were well intentioned but harmful to
our collectors. With the input of the intelligence community the
manager's amendment has been able to correct those unintended
consequences while preserving the intent of the amendments. In this
instance, I think we did get it right through engaging with our
intelligence experts.
Mr. BOND. Mr. President, would the Senator from Georgia say that this
bill not only enables the intelligence community to move forward, but
it provides additional protections for Americans, for their privacy and
constitutional rights? I would ask him if he thinks those amendments
have been incorporated in the legislation before us and what he thinks
the final product of the Intelligence Committee is as a result.
Mr. CHAMBLISS. Mr. President, I thank the Senator for his question. I
would simply say that, again, there is just no doubt this legislation
goes beyond the Protect America Act and the current FISA statute to
protect American's privacy and constitutional rights. After all the
discussion, after all the testimony that was presented, after all the
debate that took place within the confines of the Senate Intelligence
Committee, we found that for 25 years, the members of the intelligence
community have been able to conduct surveillance against Americans
overseas without a court order. I would point out that they did this in
a professional manner and reduced the risk of compromising American's
privacy through established minimization procedures. Since FISA's
original enactment, the intelligence community has used minimization
procedures to ensure that the information being gathered from Americans
was necessary foreign intelligence information and from individuals who
are foreign agents. This legislation subjects this type of surveillance
to a court order, providing new protections for Americans.
One purpose of FISA reform was to ensure that the ultimate and final
language we came up with would provide additional privacy protections
to American citizens, both inside the United States as well as outside
the United States.
Mr. BOND. Mr. President, I would ask, isn't this the first time any
of the FISA bills--even the predecessor FISA bill or the Protect
America Act--have included privacy protections for Americans overseas?
Mr. CHAMBLISS. Mr. President, I would respond to the distinguished
Senator from Missouri that this is the first time these protections
have been enacted. This bill also prohibits reverse targeting.
This is the first time in the history of our intelligence community
that a FISA court order for U.S. persons is required regardless of
where that individual is located. So if a U.S. citizen who goes abroad
is an agent of a foreign power or a terrorist seeking to communicate,
our intelligence community must first get a court order before they can
conduct any electronic surveillance, irrespective of whether that
person is inside the United States or outside. For the first time in
the history of our intelligence operations, this will be the case. So
the added protections of the fourth amendment, which normally are not
needed for a person located outside the United States, are applied in
this particular piece of legislation.
Mr. BOND. Mr. President, my colleague mentioned reverse targeting. I
would ask him, after debate on both sides and suggestions from both
sides, did we not also include an express prohibition of reverse
targeting, as well as providing court review, as he has stated, of
minimization, acquisition, and certification procedures? I would ask
him if reverse targeting is prohibited and what reverse targeting
really means.
Mr. CHAMBLISS. Again, I thank the vice chairman for his question. The
issue of reverse targeting is directly addressed in the bill--it is
prohibited explicitly. Reverse targeting refers to the hypothetical
situation where our intelligence community targets a foreigner overseas
solely to get a U.S. persons' communications between that foreign
person and a U.S. person. The targeting of the foreign person is
allowed without a court order. The targeting of a person located in the
U.S. is not allowed unless a court order is first obtained. So if
someone in the intelligence community targeted a foreigner with the
intent to listen in on the U.S. citizen, that is reverse targeting.
This is prohibited in this legislation. Again, this is the first time
we have seen that protection put in the statute.
So as a lawyer still recovering from practicing law sometimes, I
think, it is the first time that I can remember in all of my years
since my days of constitutional law at law school where the United
States applies fourth amendment rights to individuals who are outside
of the United States.
Mr. BOND. Mr. President, I would ask my colleague--he just talked
about the new protections for U.S. persons overseas: prohibition of
reverse targeting, court review of acquisition, minimization, and
certification procedures.
Now, some have said we just ought to extend the Protect America Act.
As a sponsor of the Protect America Act, I thought it was pretty good.
But if we were simply to extend the Protect America Act, would that not
[[Page S432]]
eliminate or at least delay any of the additional protections against
reverse targeting, providing court review, and preventing reverse
targeting of U.S. persons?
Mr. CHAMBLISS. Again, Mr. President, I respond to the vice chairman
that reverse targeting is not prohibited under the Protect America Act.
It is a procedure that some allege could occur under the Protect
America Act, but which is clearly prohibited under this act.
Anybody who is concerned about extending and protecting the rights of
individuals ought to be a lot more concerned about getting this bill
enacted into law than they should be about extending the Protect
America Act. So this is one of those situations where it is totally
unexplainable to me for someone to say: I don't think we ought to pass
this law because it doesn't go far enough, when it goes further than
current law and the Protect America Act which we already have voted
for. Now there is an attempt being made to extend the Protect America
Act for an additional period of time.
Mr. BOND. Mr. President, I ask my colleague why it has taken so long
to get us to this point when the Protect America Act expires on
February 1?
Mr. CHAMBLISS. As the Senator has said on the floor over the last
several days, we are ready to pass this bill tonight if our friends on
the other side of the aisle will simply get together with us and let us
vote it up or down.
When it comes to the issue of 60 votes, I have only been in this body
for 5 years, but I cannot think of one single major piece of
legislation that I have seen on the floor of the Senate during those 5
years that didn't require 60 votes for all major amendments. I was the
manager of the farm bill recently. That is a long way away from this
sophisticated piece of legislation, but every major amendment we had
required 60 votes. That was the most recent, large piece of legislation
we have had on the floor. So every time we have a major bill, a 60-vote
requirement is reasonable and is going to be called for. I think for us
not to have it in this particular situation would be extremely unusual.
Mr. BOND. Mr. President, I might ask, isn't there a danger that if
there is an amendment not subject to the 60-vote point of order, it is
possible, with various Senators absent, that we could adopt, perhaps,
on a 47-to-46 vote, an amendment that would make it impossible for the
intelligence collection required by the intelligence community to go
forward, and if such were adopted, what would happen to the
legislation?
Mr. CHAMBLISS. Mr. President, if I may respond, the Senator is
exactly right. If we did not have a 60-vote requirement on amendments,
or dealing with any issue in this bill, then it is possible that we
could adopt amendments, by less than a majority of the Members of the
Senate, which could hamper our intelligence community. And on this
critical, sensitive, most important piece of legislation, for us to
pass an amendment without a 60-vote requirement really makes no sense
at all.
I think all of us would certainly be remiss and derelict in our
duties if we didn't insist on a 60-vote requirement.
Mr. DURBIN. Will the Senator yield for a question?
Mr. BOND. Of course.
Mr. DURBIN. Mr. President, is the Senator proposing to change the
Senate rules that all amendments will now take 60 votes? Is that the
proposal before the Senate?
Mr. BOND. Mr. President, if I may respond, as my friend from Georgia
pointed out, in order to pass very important legislation such as this,
it has been the practice in this body to require 60 votes, and as my
colleague from Georgia just said, the farm bill passed with 60 votes on
the amendments. When we passed the Protect America Act, we had to get
60 votes.
This bill could be enacted into law and will undoubtedly have to have
60 votes to be signed by the President. I say to my distinguished
colleague from Illinois, if there are changes made with less than a 60-
vote margin, if they destroy the ability of the intelligence community
to operate the collection system as we have prescribed, then that bill
will never be signed into law. We would have to start all over again,
and we would thus be leaving our intelligence community without the
tools to protect us.
We are not saying we are changing the rules of procedure. We are
following the practice that has been adopted in this Senate.
Mr. DURBIN. If the Senator will further yield, I am new here; I have
only been here 11 years. So I am trying to learn a little about how
this works. I recall that somehow the Republic survived and the Nation
did well, we kept our armies in the field and built our highways and
passed our bills, and we did that for a long period of time without
requiring 60 votes on every amendment. Then there came this age of the
filibuster, where the Republican minority last year had 62 filibusters,
breaking a record in the Senate. Well, to stop the filibuster, you need
60 votes.
So now I assume what the Senator is suggesting is that we are in a
new age in the Senate, and it is going to take 60 votes for everything.
If that is the proposal, I suggest a rules change. Let's get on with it
and find out if there are enough votes here to make that the rule. If
it is going to be the age of filibusters again this year, the public
won't like it much. We were in the minority not that long ago.
But if that is your goal, if you want to make this a 60-vote
requirement, it is a different Senate, and it will be, unfortunately,
adding to the frustration many people have when they look at Washington
and say: Why don't you pass something, or why don't you do something
about health care or about other issues? We will have to tell them we
don't have 60 votes.
Mr. BOND. Mr. President, if that was a question--and I assume it was
a question--let me say that requiring 60 votes is something which has
occurred frequently in previous years, when this side had the majority
and the other side was in the minority. We found that it was very
difficult to pass legislation without 60 votes. Thus, we have seen that
practice before.
But this is not an ordinary piece of legislation. Had we dealt with
this in a timely fashion, this could have been handled on a different
basis. But the Director of National Intelligence, whom I will refer to
as the DNI, submitted to the Intelligence Committee, in April, a
measure that he felt was necessary to modernize FISA. That bill was not
brought up. The DNI testified in person before the committee in open
hearing in May. Despite my request, no legislation was developed in the
committee. The DNI came before the Senate in closed session, in a
confidential room, in July of this year, to say how important it was.
No bill came out of the Intelligence Committee. So the DNI proposed a
short-term fix, which I brought to the floor on his behalf at the end
of July, the first of August, and we were able to pass the bill, but we
had to pass on a 60-vote basis.
When there are very important pieces of legislation, with strong
feelings on both sides--as my colleague from Georgia has pointed out,
he handled a very important and difficult farm bill--those measures had
to have 60 votes.
Now, the fact is, we could have a bunch of simple majority votes, and
there are many we can take on a simple majority. But if there are
amendments which, if adopted, would prevent the bill from being passed
and signed into law, as a practical matter, it makes sense to have a
60-vote margin.
We are waiting for a response to the offers we have made to the other
side because, frankly, February 1 is coming. I hope we will agree on
it. I understand the House is sending us a 15-day extension. I say to
my friend from Illinois that I hope we can adopt the 15-day extension
and a collaborative agreement between the two sides on how we are going
to proceed to finish this bill.
I see the distinguished assistant majority leader has some
information. I am happy to yield to him for that.
____________________
[Congressional Record: January 29, 2008 (Senate)]
[Page S433-S434]
FISA
Mr. BOND. Mr. President, I thank my colleague from Georgia. I thought
maybe, if anybody is still listening, we would talk a little bit about
the intent of the Foreign Intelligence Surveillance Act. I hope maybe
we can clarify some of the misunderstandings.
First, I believe that when the distinguished Senator from California,
a valued member of the committee, Mrs. Feinstein, spoke on the origins
of FISA, she correctly noted that it was created, at least in part, in
response to the disclosed abuses of domestic national security
surveillance. However, as the legislative history makes clear, FISA was
never intended to regulate the acquisition of the contents of
international or foreign communications where the contents are acquired
by intentionally targeting a particular known U.S. person who is in the
United States.
The legislative history states:
This bill does not afford protections to U.S. persons who
are abroad, nor does it regulate the acquisition of the
contents of international communications of U.S. persons who
are in the United States, where the contents are acquired
unintentionally. The Committee does not believe this bill is
the appropriate vehicle for addressing this area. The
standards and procedures for overseas surveillance may have
to be different than those provided in this bill for
electronic surveillance within the United States, or targeted
against U.S. persons who are in the United States.
In essence, then, FISA, as originally drafted, was a domestic foreign
intelligence surveillance act. Congress was concerned about targeting
persons inside the United States with interceptions conducted inside
the United States.
The FISA Act amendments legislation we are considering today is a
very different animal, and it could be better characterized as an
international foreign intelligence surveillance act. The bill is
concerned mainly with targeting persons outside the United States when
interception might occur inside the United States. What do I mean by
that? The legislation will regulate how the President may conduct
electronic surveillance of foreign terrorists operating in foreign
countries when their communications just happen to pass through the
United States on wire communications networks.
This strange interference with the intelligence community's and,
indeed, the President's authority to conduct foreign intelligence
activities appears to arise from an overabundant concern about the
``rights'' of persons in the United States whose communications are
incidentally collected when they talk to terrorists overseas.
It is odd that we are creating a new law in this area that departs
from the original construct of FISA because in the international
surveillance realm, there have been no significant abuses of the
intelligence community's ability to collect overseas foreign
intelligence.
Unfortunately, two factors have compelled us to make these changes to
FISA. First, we need to ensure that the critical intelligence gaps
identified by the DNI last year do not reappear.
The Protect America Act effectively closed those gaps last summer,
but there was bipartisan agreement that we could improve on its
provisions, especially in the area of carrier liability protection, and
that is what our committee did.
Second, this legislation is also required because we must address the
practical reality that electronic communications service providers are
now insisting on a formal process to compel cooperation in the foreign
arena in order to obtain prospective liability protection similar to
that enjoyed for domestic intelligence and criminal wiretaps. That is
why the carrier liability protection and prospective liability
protection provisions of this bill are so important.
Another area where we are departing from the original intent of FISA
is the targeting of U.S. persons abroad. FISA, as passed in 1978, left
the targeting of American citizens abroad to the President's Executive
order applicable to the intelligence community and the procedures
approved by the Attorney General. In this legislation for the first
time in history, we build into the FISA new laws that govern the
targeting of U.S. persons overseas who are agents, officers or
employees of foreign powers when a significant purpose of the
acquisition is to obtain foreign intelligence information.
These new procedures are sometimes referred to as 2.5 procedures
because they are based in part upon section 2.5 of Executive Order
12333, which has long governed the electronic surveillance of U.S.
persons overseas by requiring the approval of the Attorney General
based upon a finding of probable cause that the target is a foreign
power or agent of a foreign power.
These 2.5 changes were part of the overall bipartisan compromise and
now require prior court review by the Foreign Intelligence Surveillance
Court of all surveillance conducted by the U.S. Government targeting
U.S. persons overseas. Americans will still be on their own with
respect to being surveilled by foreign governments overseas, but at
least they can remain confident that if they are not working for a
foreign power as a spy or terrorist, their own Government will not be
listening to their conversations.
The last area that merits discussion on the issue of FISA's original
intent is the Foreign Intelligence Surveillance Court. We refer to it
as the FISC. According to section 103 of FISA, the FISC was established
as a special court with nationwide jurisdiction to ``hear applications
for and grant orders approving electronic surveillance anywhere within
the United States.'' That is it.
As evidenced by the application and order requirements in FISA, each
application is for a ``specific target'' for the significant purpose of
obtaining foreign intelligence information.
The court was originally structured so its seven judges would provide
geographical diversity. The post-9/11 expansion of the FISC from 7 to
11 judges enhanced that diversity. Judges are nominated by the chief
judge of their circuit to promote ideological balance on the FISC.
It was clearly recognized that only one or two judges would be in
Washington, DC, on a rotating basis at any given time. This was
intended to discourage judge shopping and make it unlikely that an
application for the extension of an order would be heard by the same
judge who granted the original order.
The FISC was never envisioned as a court that would or should handle
protracted litigation. It possesses neither the staff nor the
facilities to preside over such litigation. Moreover, it is very likely
that such prolonged litigation would interfere with the main business
of the FISC, which is to ensure the timely review and approval of
individual operational FISA applications for court orders.
We need to remember that the FISC was set up to review domestic
electronic surveillance and later physical searches, an area that has
numerous parallels to the similar reviews conducted by district court
judges when they are asked to authorize criminal wiretaps. As I
mentioned previously, even the FISC has acknowledged its lack of
expertise in the foreign-targeting context, which is, they say, better
left to the executive branch.
The Court's recent opinion in the case of In re: Motion for Release
of Court Records stated:
. . . 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.
We should be very hesitant to disregard the Court's own assessment of
its competency in the overseas intelligence realm, especially given the
original intent of FISA. I urge all my colleagues to be mindful of the
Court's own words as we consider some of the
[[Page S434]]
proposed amendments, particularly those that would allow the court to
assess compliance with minimization procedures used to target foreign
terrorists. For example, amendment Nos. 3920 and 3908, and would
require the court to determine the good faith of those providers who
allegedly assisted the Government with the Terrorist Surveillance
Program. As examples, amendment Nos. 3919 and 3858.
In conclusion, I offer these observations mainly to ensure the record
reflect the legislation departs from FISA's original intent in a
deliberate and carefully tailored manner. While there are some
practical considerations, including a desire for a strong bipartisan
bill, that have driven the need for this legislation, we should be
extremely careful about adding new or changing existing provisions in
the bill that could negatively impact the operational effectiveness of
our intelligence community or provide unwarranted protection to
overseas terrorists and spies.
Mr. President, I will not propound a unanimous consent request now,
but I advise my colleagues that if we cannot reach agreement, I will
ask unanimous consent that all amendments to the FISA bill be brought
up and decided at a 60-vote threshold so we can move forward on this
important legislation. I am not making that request now. I alert my
colleagues on the other side of the aisle, I hope that will not be
necessary, but we have not had a response to our proposal on how we
move forward. We have been at this a week now, and we only have, at
best, two full working weeks before we go on recess. We must get this
bill done, sent to the House, conferenced, and passed before we leave
for the President's Day recess. Failure to do so could leave our
intelligence community without the tools they need and, thus, America
without the protection it needs.
I yield the floor.
The PRESIDING OFFICER (Mr. Menendez). The Senator from Colorado.
____________________
[Congressional Record: January 29, 2008 (Senate)]
[Page S439-S440]
FISA
Mr. COBURN. Mr. President, at the end of this week, Americans may
find themselves at greater risk of a terrorist attack when the Protect
America Act expires on February 1. On that date, we will be forced to
revert to the antiquated 1978 Foreign Intelligence Surveillance Act, or
FISA, to monitor the communications of suspected terrorists, unless
this Congress moves quickly to make permanent changes to that law. It
is therefore critical for Congress to enact permanent modernizations to
FISA so that our intelligence officials will have every tool they need
to monitor the communications of terrorists who seek to destroy the
United States.
The consequences of allowing the Protect America Act to lapse could
be deadly. The PAA was passed last August to modernize FISA so that the
statute could do in practice what it was always intended to do--govern
certain foreign intelligence surveillance activities directed at
persons in the United States, without inadvertently burdening those
activities directed at persons overseas. FISA, however, has not kept up
with technological advances that have been made since 1978. As a
result, prior to the PAA, intelligence officers were often forced to
obtain a court order before beginning surveillance against a terrorist
or other foreign target located in another country. This unnecessary
and burdensome requirement caused U.S. intelligence agencies to lose
about two-thirds of their ability to collect communications
intelligence against al-Qaida.
Thankfully, the Protect America Act helped to close the inexcusable
gap that left this country blind to the plans our enemies were making
against us. As Director of National Intelligence Michael McConnell
said, the PAA has ``allowed us to obtain significant insight into
terrorist planning.'' To allow such a vital antiterror tool to lapse at
this time would be the ultimate dereliction of duty.
The United States must remain vigilant against a terror threat that
is real and constant. The National Intelligence Estimate on ``The
Terrorist Threat to the US Homeland,'' released just 6 months ago,
concluded that this country will face a ``persistent and evolving''
terrorist threat over the next 3 years, particularly from Islamic
terrorist groups and cells like al-Qaida. No person in America is
unfamiliar with the capabilities and determination of such terrorist
groups, and Americans trust us to make the right decisions to protect
them and their children. Without making permanent changes to FISA to
ensure the fast and effective intercept of foreign intelligence
information, little else we do will matter.
Retroactive immunity is in the best interest of this Nation's
security and must be included in FISA modernization, as it was in the
Intelligence Committee bill. Following the attacks of September 11,
2001, President Bush authorized the National Security Agency to
intercept international communications into and out of the United
States of persons linked to al-Qaida or related terrorist
organizations. The administration's obvious and stated purpose of this
authorization was to ``establish an early warning system to detect and
prevent another catastrophic terrorist attack on the United States.''
Therefore, the administration made requests for telecom companies to
cooperate with its intelligence activities. The companies complied with
the government's request for help, relying on written assurance from
the executive branch that their actions were both necessary and legal.
Now these companies face multibillion dollar lawsuits challenging
their actions. Such lawsuits not only create potentially staggering
liability for the companies, they also create the risk that sensitive
details about our intelligence sources and methods will be revealed
through discovery. Moreover, failing to protect those who cooperate
with the Government to thwart terrorist activity will undermine the
willingness of others to cooperate in the future. A powerful op-ed
authored last October by former Attorneys General Benjamin Civiletti,
Dick Thornburgh, and William Webster, said it best:
The government alone cannot protect us from the threats we
face today. We must have the help of all our citizens. There
will be times when the lives of thousands of Americans will
depend on whether corporations such as airlines or banks are
willing to lend assistance. If we do not treat companies
fairly when they respond to assurances from the highest
levels of the government that their help is legal and
essential for saving lives, then we will be radically
reducing our society's capacity to defend itself.
Recognizing the gravity of the situation, the bipartisan Senate
Intelligence Committee voted 13 to 2 to include retroactive immunity in
its bill. This overwhelming vote came after the committee reviewed the
classified documents on which these companies relied. The committee
ultimately concluded that the Government ``cannot obtain the
intelligence it needs without assistance from [telecommunications]
companies.''
Protecting the corporate good citizens who answered the call to
assist our intelligence community during a time of great danger to this
country is the right thing to do. Anything short of full immunity for
those companies that, at the Government's request, on the written
assurance that such action had been authorized by the President and
deemed lawful, would undermine the security of the United States is
simply unacceptable.
The carefully crafted, bipartisan Senate Intelligence Committee bill
protects privacy interests without undermining our intelligence
community's ability to do its vitally important job. The bill was
approved by a vote of 13 to 2 after careful consideration of
complicated issues and classified documents. It will allow our
intelligence professionals to continue collecting foreign intelligence
against foreign targets located outside the United States without
requiring prior court approval. This is consistent with the intent of
the legislators who enacted FISA in 1978 and represents no change in
the way that the NSA has always conducted foreign surveillance.
In so doing, the bill will also continue to protect the civil
liberties of Americans in this country, surveillance of whom has always
required prior court approval. Nothing we are considering in the Senate
today would alter that. In the event that communication from a U.S.
person is inadvertently intercepted, the intelligence community uses
``minimization procedures'' to suppress the data. The result is that
the communication is never used or shared. These procedures have been
used effectively for 30 years and will remain in place after permanent
FISA changes are enacted.
Enacting permanent modernizations to FISA is one of the most
important duties the Senate will undertake this year. We have known for
6 months that the Protect America Act would expire on February 1 and
have no excuse for not getting this done correctly before that date.
The stakes in this debate could not be higher. Although the details can
be complicated, the basic issue is pretty simple. As Andy McCarthy said
in a recent piece for the National Review Online, ``Osama bin Laden
doesn't need to apply to a sharia court before blowing up an American
embassy; the president shouldn't need to apply to a federal court to
try to stop him.''
Unfortunately, I was unable to make it back to town in time for the
two cloture votes that were held yesterday.
[[Page S440]]
Had I been here, I would have voted for cloture on Rockefeller
amendment No. 3911, the Intelligence Committee's FISA bill, and against
cloture on Reid amendment No. 3918, to temporarily extend the Protect
America Act.
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. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Whitehouse.) Without objection, it is so
ordered.
____________________
[Congressional Record: January 29, 2008 (Senate)]
[Page S457]
EXTENSION OF THE PROTECT AMERICA ACT OF 2007
Mr. REID. Mr. President, I ask unanimous consent that the Senate
proceed to the consideration of H.R. 5104, a 15-day FISA extension,
received from the House earlier today; that the bill be read a third
time, passed, and the motion to reconsider be laid upon the table; that
any statements relating to this matter be printed in the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
The bill (H.R. 5104) was ordered to be read a third time, was read
the third time, and passed.
Mr. REID. Mr. President, I appreciate the cooperation of my
colleagues, especially Senator McConnell. We are going to do our very
best to have an agreement shortly so we can move to finish Senate
action on this. There has been a lot of time spent on this by a lot of
people--people in the Intelligence Committee, Democrats and
Republicans; members of the Judiciary Committee, Democrats and
Republicans.
There is an effort to try to resolve this. We have had a number of
good meetings today. This will allow us to do that. Our goal is to get
it done quickly so we can get it to the House and complete a conference
prior to the 15 days being extended.
____________________
