[Congressional Record: January 30, 2008 (Senate)]
[Page S470-S474]
]
FISA
Mr. BOND. Mr. President, our first Member is a distinguished member
of our Intelligence Committee, the distinguished junior Senator from
North Carolina. I yield to him.
Mr. BURR. Mr. President, I thank the ranking member, Senator Bond.
We have heard some people claim that the Intelligence Committee's
bill will allow dragnet surveillance that will sweep up communications
of innocent Americans. Is this accurate?
Mr. BOND. Mr. President, that question has been raised. We have heard
that on the floor a number of times. I think it is very important that
we dispel that myth right now. The answer is no--a flat no. Our
committee bill only allows the targeting of persons outside the United
States to obtain foreign intelligence information. It is not dragnet
surveillance. The targets of acquisition must be foreign targets and
they must be suspected terrorists or spies. The Attorney General and
the Director of National Intelligence, whom I will refer to as the DNI,
must certify that a significant purpose of the acquisition is to obtain
foreign intelligence information.
For example, if a foreign target is believed to be an agent or a
member of al-Qaida, then all communications of that target could be
intercepted.
Only Americans who communicate with suspected terrorists abroad will
have those specific communications monitored. If those same
communications turn out to be innocent, they will be minimized, which
is intel community speak for suppressed, so that Americans' privacy
interests are protected.
It is very misleading and nonfactual to suggest that the intelligence
community is spying on parents who are calling their children overseas
or students who are talking with their friends, or on our own soldiers
in the battlefield. Our intelligence professionals are far too busy
tracking real terrorists, members of al-Qaida, than to listen to family
discussions or conversations between classmates. Not only do they not
have time that is not permitted under this bill.
Mr. BURR. What happens when the intelligence community does become
interested in the communications of a person inside the United States?
Mr. BOND. Mr. President, I thank my colleague from North Carolina,
because that is precisely what our bill, the FISA Act Amendments bill,
does. That information will be turned over to the FBI, which would seek
a title III criminal warrant, or a FISA order, to intercept all of the
communications of that person, not just communications with targets
overseas.
Mr. BURR. We have heard a number of people claim that the foreign
targeting authorized under the Intelligence Committee's bill contains
inadequate protections for U.S. persons. What specific protections are
included for innocent Americans?
Mr. BOND. This is where the Intelligence Committee bill goes much
farther than any other law we have had in our history in protecting
U.S. persons; that is, U.S. citizens and others here in the United
States.
The bill includes express prohibitions against ``reverse targeting,''
and reverse targeting is a knowledge that you can target a person
overseas when the real purpose is to target someone in the United
States. This is illegal. The intelligence community does not do it.
Frankly, it is terribly impractical. They cannot under the law that we
have presented to this body target a person inside the United States
without a court order.
The bill also requires that all acquisitions comply with the
protections of the fourth amendment. In addition, the Intelligence
Committee bill requires, for the first time in history, that the
Foreign Intelligence Surveillance Court--and I will refer to that as
the FISC--for the first time in history approve any surveillance of a
U.S. person, or an American citizen abroad. This goes beyond the
requirement even in existing American criminal law.
Mr. BURR. As my good friend noted, the Intelligence Committee bill
gives the FISA Court an important role in foreign targeting. The bill
requires that any acquisition be conducted pursuant to the specific
targeting and minimization processes and procedures. What is the
court's role with respect to these procedures?
Mr. BOND. This provision came about as a result of discussions by
members on both sides of the committee who wanted to provide
protections for Americans overseas. To do that required a significant
expansion and clarification, which is included in the managers'
amendment that Senator Rockefeller and I have produced and have pending
before the body.
Under this bill, the FISC must review and approve the targeting and
minimization procedures used by the Government in conducting its
foreign targeting operations. The court must find that the targeting
procedures are reasonably designed to ensure that the authorized
acquisition is limited to the targeted persons reasonably believed to
be located outside the United States. The court must then find that
minimization procedures comply with the FISA law.
The court will also review the joint certification issued by the
Attorney General and the DNI to make sure that it contains all of the
required elements. If the court finds there is a deficiency in those
procedures or the certification--that even for a minor drafting or
technical reason they do not comply with the law--the court can order
the Government to correct the deficiency or cease the acquisition.
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Mr. BURR. There is an amendment already filed, and the amendment is
filed to the Intelligence Committee bill, that allows the FISA Court to
assess the Government's compliance with the minimization procedures.
Why shouldn't we have the court do this?
Mr. BOND. Well, it sounds like a reasonable proposal on the surface,
but when you look at the law and the structure that is set up, it does
not work. The FISC was created in 1978 simply to issue orders for
domestic surveillance on particular targets, but the Congress
specifically left foreign surveillance activities to the executive
branch and to the intelligence community.
FISA minimization procedures--the procedure to suppress information
on an innocent communication with a person in the United States--are
all about protecting the identities of a U.S. person or American
citizen. This comes up all of the time in domestic collections. But
almost all of the collection under these foreign targeting acquisitions
will be on non-U.S. persons who require no protection under FISA
minimization procedures.
It doesn't make sense to direct the FISC to get involved in assessing
compliance with the foreign targeting realm. They have said in their
opinion regarding sealed matters that they are not set up to do that,
and they do not have the expertise to do that.
As a practical matter, when the court assesses compliance with
minimization procedures, it would be second-guessing trained analysts'
decisions about which foreign terrorist to track and how to do it. They
simply are not competent, they are not set up, they don't have the
expertise to do that, and they have so stated in their published
opinion. They can't make these types of operational decisions.
Mr. BURR. It is my understanding that the FISA Court recently issued
an opinion where it commented on the expertise of the executive branch
over the court in national security and foreign intelligence matters.
Shouldn't we heed the court's own words?
Mr. BOND. I am certainly glad the Senator brought that up. The court
did issue a published opinion this past December where it noted that
the FISA Court judges are:
Not expected or desired 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 national security.
Those are the words of the judges on the FISA Court, the FISC.
The court knows what to look for when it issues a warrant to tap
someone's phone in North Carolina or 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. That is exactly what the amendment would seek to have
them do.
This bill already contains numerous oversight reporting and numerous
judicial provisions. Those of us who have gone out to look at the
operations know how extensive and how carefully supervised they are.
There is no reason to ask the FISC to take on the additional authority
in the context of foreign targeting, especially where it could result
in operational problems or the loss of intelligence and, as the judges
have said, is beyond their competence.
Mr. BURR. The Intelligence Committee bill allows the Attorney General
and the DNI to direct a communications provider to assist the
Government with a foreign targeting acquisition. What protections does
this bill give to any provider who believes there is a problem with the
directive?
Mr. BOND. That is a very good question, because we cannot expect
carriers, telephone companies, telecom companies to work with us if
they don't have protection. That is why we are seeking retroactive
clarification of the civil liability for those who have, in the
exercise of their patriotic duty and pursuant to valid directives,
participated in the President's terrorist surveillance program. Under
this bill, the providers may challenge the directive by filing a
petition to modify or set aside the directive of the court. If the
court finds the directive does not meet specific requirements or is
unlawful, it can grant a petition. If the court does not modify or set
aside the directive, it will order the provider to comply with it. Both
the Government and the provider may appeal any decision to the FISC
Court of review and ultimately the Supreme Court.
Mr. BURR. Mr. President, I see that the senior Senator from Virginia
is here and I know he has some questions he wishes to ask, so I will
limit myself to one more.
What happens if a provider refuses to comply with the directive you
just talked about?
Mr. BOND. I would tell my good friend from North Carolina that the
bill we reported out of our committee provides a mechanism for the
Government to compel a provider to comply with a directive. If the
court finds that the directive was issued properly and is lawful, it
must order the provider to comply with the directive and that provider
is provided immunity for doing so. But a failure to comply by a company
could result in a contempt of court. Both the Government and the
provider may appeal any decision to the FISC Court of review and
ultimately the Supreme Court.
I thank my colleague for his service on the committee and for his
very helpful questions.
Mr. BURR. I thank the Senator.
Mr. BOND. Mr. President, I see the distinguished Senator from
Virginia is here, and I would turn to him if he has some questions.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, I thank my colleague, the ranking member
of the committee. I am privileged to serve on that committee with the
senior Senator from the great State of Missouri.
I would like to first make a few opening comments, if I might.
Mr. BOND. I appreciate that.
Mr. WARNER. Mr. President, first, I commend how well the
distinguished Senator from Missouri has represented to this Chamber and
its Members and, indeed, to all those in our Nation who are following
this debate, how well he has represented a proper and balanced
perspective and how a solution to the important questions that have
been raised by all of us can be resolved.
In my own case, I have thought long and hard about this situation,
and I would like to reflect on a bit of history. I was privileged to
serve in the Department of Defense from the years 1969 to 1974 during
the war in Vietnam. At the latter part of my service there, we
originated the concept of the all-volunteer force. There was great
skepticism as to whether this concept would work, and it was a high
risk to abolish the draft and to enter into this concept of all
volunteer, to be the only persons to be given the privilege of wearing
the uniform of the United States of America in the branches of the
Army, the Navy, the Air Force, and the Marines.
Fortunately, it was adopted by the President, eventually written into
law by the Congress. That concept has worked. It is working at this
very moment with brave young men and women all over the world. They are
there because each of them raised their right hand and took the oath of
office voluntarily.
I see a direct analogy to this question that is before this Chamber
and, indeed, the Nation, the question of whether corporations, which
although they did not raise their hand and volunteer, they have
nonetheless volunteered comparably to the men and women in the Armed
Forces.
The work product of their volunteering is every day saving and
protecting the lives of our service personnel and, indeed, many others
worldwide from the actions of terrorists and others who are trying to
rip freedom away from our Nation and other nations.
So as we reach our decision on this issue, let's stop to think about
the United States of America, while not written into the Constitution,
the Bill of Rights, or otherwise, has throughout its history adopted a
concept of voluntarism by its citizens, by its companies to step
forward and take on serious problems that confront our Nation.
I see a direct analogy, I say to my distinguished colleague, and I
stand steadfast with our committee which voted 13 to 2 to provide this
framework which we hope will eventually become the law of the land, to
give reasonable
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protections to these companies that are part of the overall volunteer
force, be they in uniform or corporations, working to protect our
Nation.
Having said that, I say to my distinguished colleague, I think it is
very important that we proceed to prepare a complete record for the
scrutiny of all on these issues. I wish to suggest a question to my
distinguished colleague.
All of us have heard a number of comments that more time is needed to
study this issue, the issue of carrier liability, carriers being those
companies that stepped up to work on behalf of the cause of freedom and
preservation of our safety here at home. Hasn't the Intelligence
Committee conducted a thorough and bipartisan review of the President's
surveillance program? And hasn't the committee determined the providers
acted in good faith?
Mr. BOND. Mr. President, I thank my distinguished colleague from
Virginia. The answer to that question is yes. I wish to say what a
pleasure it is to serve with the distinguished representative of
Virginia, who served his country in the Department of Defense, who
pushed through the landmark decision to have a volunteer military,
which I might say my son was proud to participate in, and to say that
his previous experience on the Intelligence Committee and his long and
devoted service on the Senate Armed Services Committee has made him an
invaluable member of the committee.
Mr. WARNER. For purposes of the record, I do not claim the credit. I
was but one of many who worked on the concept of that great program. I
found in this town, and as I know the Senator does likewise, the less
credit you try and take, the more effective one can be in other tasks.
Mr. BOND. I say through the Chair, the distinguished Senator from
Virginia deserves far more credit than he is ever given. I was trying
to sneak in a little bit to say how much we appreciate his service.
When he needs to correct me, I always stand corrected.
To return to the question, I do have an answer, and that is, the
committee conducted a comprehensive and bipartisan review. We
interviewed witnesses, we went out to NSA to see how the Terrorist
Surveillance Program was implemented, examined documents, including the
Department of Justice legal opinions and letters from the Government to
providers.
The letters were provided to the carriers in regular intervals and
stated the activities had been authorized by the President. All the
letters also state the Attorney General had determined the activities
to be lawful, except for one which stated the determination had been
made by the counsel to the President.
After conducting this extensive review, the committee concluded the
providers that allegedly assisted the TSP acted in good faith and,
based on representations of the highest level of the Government, that
the program was lawful. Therefore, the committee concluded the civil
liability protection for these providers was appropriate, and I draw
upon my experience at the law school at the University of Virginia,
where my distinguished colleague also studied law, to say that
reviewing those documents and letters led me to the conclusion that it
was clear on its face that the carriers were receiving a valid, legal
directive from the highest authorities in the Federal Government.
Mr. WARNER. Mr. President, I thank my colleague. He said the
committee ``concluded.'' It concluded by the manifestation of a vote of
13 to 2, so that an overwhelming majority of the committee, bipartisan,
made this decision.
Mr. BOND. That is correct.
Mr. WARNER. I think that is an important reference point.
Further, I say to my colleague, the committee's liability provision
in the matters pending before this Senate today extends only to civil--
I underline civil--liability protection for those providers that
allegedly assisted with the TSP program. Isn't this already a
compromise from what the Director of the National Intelligence had
initially requested of the Congress?
Mr. BOND. Mr. President, I say to my friend from Virginia, in April
of 2007, the DNI submitted his request to modernize FISA to Congress,
to our committee, and it included a request for full liability for all
persons, including Government officials who had allegedly participated
in the President's Terrorist Surveillance Program.
As my colleague has stated, the committee passed this bill by a 13-
to-2 bipartisan vote. It included civil liability protection for those
providers that allegedly assisted with the TSP. The protection was not
extended to Government officials or to criminal prosecution. We did not
seal off all potential liability of anyone who may have acted
criminally--that would be up to the Department of Justice to
determine--or Government officials who are named, I believe, in seven
pending lawsuits.
Mr. WARNER. Mr. President, I thank my colleague for that because the
DNI, Director McConnell, a former admiral--I knew him in the Navy going
way back when I was there. As a matter of fact, as a point of
reference, when I was Secretary, he was one of the junior officers who
briefed me every morning at 7:30 on intelligence. But he has done an
extraordinary job in presenting in a very fair and objective way the
need for the revisions to this legislation which are reflected in the
pending bill before the Senate as submitted by the committee.
I think the Senator has carefully delineated those portions which we
resolved, as a committee, were essential and did not accept in full
measure all his recommendations; am I not correct in that?
Mr. BOND. That is correct. Now I understand why Admiral McConnell is
doing such a good job because he obviously had very good early
training. I did not know he had been through the Warner course in
intelligence, but that ties up the loose ends, and now I understand
more fully.
Mr. WARNER. Again, Mr. President, I have to tell you, I was learning
at a very young age and taking on responsibility in that critical
period of history. I learned as much from him, if not more, than he did
from me.
I have another question for my colleague. What consequences or risks
are there if our private volunteer--I underline volunteer--participants
by way of corporations are not given civil liability protection from
the pending and ongoing lawsuits and perhaps others?
Mr. BOND. Mr. President, that is a very serious question because if
those lawsuits should continue, either directly against carriers
alleged to have participated or substitution or indemnification, No. 1,
the identities of the providers could be revealed which would
compromise our intelligence sources and methods. No. 2, the providers
would be far less willing to cooperate with legitimate requests for
assistance in the future, thus crippling our intelligence collection.
Why is this? Quite frankly, because this would have a huge damage to
their business reputations. They have already been accused falsely of
all sorts of things that have raised questions that are reflected in
damage to the value of the shareholders of the company and potentially
bring great risk to the employees of those corporations and their
facilities. These lawsuits would occur not only in the United States
but even more likely they would occur overseas, and there could be real
personal danger if the companies are confirmed as assisting the
Government's fight against terrorism. Their facilities, their personnel
could be at risk of terrorist targeting or other vigilante actions.
Mr. WARNER. Mr. President, I thank my colleague. I think it is very
important that we portray the risks that are associated with these
endeavors taking place in the court system now. Again, I draw the
attention of all colleagues to the thorough work done by this committee
on which I am privileged to serve and the bipartisan manner in which we
resolved these issues.
A question to my colleague: We heard some Members advocate
substitution--in other words, a substituted solution--rather than a
civil liability protection. Perhaps the Senator can address exactly
what that substitution is and how, in his judgment, this would not be a
means by which to resolve this very serious problem.
Mr. BOND. Mr. President, as I indicated, the dangers to the providers
would be as great under substitution as if they were sued directly.
While the providers might not be parties to the litigation, under the
amendment offered by Senators Specter and Whitehouse, discovery would
be allowed to proceed against the providers,
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and this puts them at the same risk of disclosure as allowing the
litigation to proceed directly against them. That is one of the most
sensitive intelligence programs in our history. The intelligence
community has done a thorough bipartisan review of the providers'
conduct, and we in the committee feel we cannot risk our intelligence
sources and methods by allowing litigation to continue and by allowing
the potential of significant damage to those companies and their
shareholders who may be widows and orphans and certainly members whose
pensions may be invested in shares of those companies.
Mr. WARNER. Mr. President, I thank my colleague. I would also add
that there will be further chapters in the history of this country, and
I cannot try to look that far into the future as to what those chapters
may be when we, as a successor government to the one we now have in
terms of our President, will be faced with another challenge and look
to volunteers--volunteers--to solve this problem. This is going to be a
landmark precedent for future Presidents as we address problems which
could be assisted by the participation of the corporate world here in
our United States.
A further question of my colleague. We have also heard some Members
say the Foreign Intelligence Surveillance Court should decide whether
the providers acted in good faith. Wouldn't this duplicate the
bipartisan work of the Intelligence Committee?
Mr. BOND. Mr. President, that is why we have an Intelligence
Committee. The Intelligence Committee concluded on a bipartisan basis
that they acted in good faith. There is no need for the FISC to
duplicate the work. The FISC was set up to issue orders on individual
targets for domestic collection. We expanded their responsibilities.
The court is not set up and was not set up for protected en banc
litigation. The amendment offered by Senator Feinstein would allow
parties to litigate the good-faith providers.
I see my time has expired. I believe the Senator from Virginia has
sought time, and I see one of my colleagues on the other side has
sought time, so I will yield to them for their comments, and I ask
unanimous consent that I be recognized at the end of the remarks of
these two colleagues.
The PRESIDING OFFICER (Mrs. McCaskill). Is there objection?
Mr. WARNER. Madam President, no objection.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WARNER. I would just ask if it would be possible--and I see my
distinguished colleague on the floor seeking recognition--may I have
but a few minutes to conclude my remarks here with my good friend and
the ranking member of the committee?
Madam President, last year, when the important legislation passed by
the Senate Intelligence Committee came to the floor, I spoke about
several elements in this bill. Specifically, I spoke about how the
Intelligence Committee bill ensures that the intelligence gap that was
closed by the Protect America Act in August remains sealed. I spoke
about the important balance the Intelligence Committee bill strikes
between protecting civil liberties and ensuring that our hard-working
and dedicated intelligence professionals have the tools they need to
protect this Nation--a point I cannot too strongly emphasize. I also
highlighted one of the most important provisions of the bill:
retroactive liability protection for carriers alleged to have assisted
the Government with the terrorist surveillance program. I said in
December that, based on the documents and testimony provided to our
committee, I strongly believed the carriers that have participated in
the program relied--I repeat, relied--upon our Government--that is, the
executive branch of the Government of the United States--that their
actions were legal and in the best interests of the security of
America. Further, I stated that, in my opinion, these companies deserve
and must be protected from costly and damaging litigation in our court
system.
During the Senate's Christmas recess, I had additional time to
further study this issue, as I have day after day, and gather
additional information. That time to reflect and study and to deepen my
knowledge on this issue has only reinforced my view that the carrier
liability protections in the Intelligence Committee's bill are not only
necessary but vital for the protection of our future national security.
One item in particular has played a key role in my thinking about
this issue. It was a thoughtful opinion piece written by three
gentlemen I know very well, former public servants, and I wish to say a
few words about that, and then I will conclude my remarks.
Three individuals stepped forward to give their perspectives on this
critical issue. The first was Benjamin Civiletti, U.S. Attorney General
under President Jimmy Carter; the second was Dick Thornburgh, U.S.
Attorney General under President George Herbert Walker Bush; and
thirdly, Judge William Webster, known very well by almost all of us
here in the Chamber, former Director of the CIA and former Director of
the Federal Bureau of Investigation. The article these fine public
servants authored, titled ``Surveillance Sanity,'' appeared in the
October 31, 2007, edition of the Wall Street Journal.
Madam President, I ask unanimous consent to have printed in the
Record a copy of that article following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. WARNER. I wish to share some of the thoughts in that article with
my colleagues.
First, regarding the Intelligence Committee's carefully crafted and
limited liability protections, the three public servants said:
We agree with the committee. Dragging phone companies
through protracted litigation would not only be unfair, but
it would deter other companies and private citizens from
responding in terrorist emergencies whenever there may be
uncertainty or legal risk.
Our committee has heard testimony that without such protections, some
companies believe they can no longer cooperate and assist our
Government because they would risk hundreds of millions of dollars of
their shareholders' money in protracted lawsuits. They have a fiduciary
responsibility, those companies, to their shareholders. That is
intrinsic in all of our corporate structures.
Second, the boards of directors of these companies have a fundamental
obligation to those shareholders. On this issue, the three public
servants wrote:
The government alone cannot protect us from the threats we
face today. We must have the help of all of our citizens.
There will be times when the lives of thousands of Americans
will depend on whether corporations such as airlines and
banks are willing to lend assistance. If we do not treat them
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.
Moreover, I believe that companies which assisted the Government will
not be treated fairly by the provision being offered by my Judiciary
Committee colleagues to substitute the Government in currently pending
lawsuits.
I strongly believe the substitution proposal is not an acceptable
alternative to the Intelligence Committee's bill.
Additionally, if lawsuits are allowed to proceed, companies will
still be forced to participate and provide evidence. The continuing
damage in terms of business reputation and stock valuation even if the
Government ultimately prevails, will surely be extremely harmful to the
companies.
Further, the Government being substituted as the defendant in a trial
opens up evidentiary problems regarding sources and methods which, if
exposed, would hinder the ability of the intelligence community to
intercept terrorist communications and those of our other enemies.
Finally, the last point I would like to raise relates to the right of
individuals to file suit. Let me be clear--individuals who believe that
the Government violated their civil liberties can pursue legal action
against the Government--the Intelligence Committee's bill does nothing
to limit that legal recourse.
This issue is underscored by the final quote I would like to share
with you by Messrs. Civiletti, Thornburg, and Webster:
Whether the government has acted properly is a different
question from whether a private person has acted properly in
responding to the government's call for help. From
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its earliest days, the common law recognized that when a
public official calls on a citizen to help protect the
community in an emergency, the person has a duty to help and
should be immune from being hauled into court unless it was
clear beyond doubt that the public official was acting
illegally. Because a private person cannot have all the
information necessary to assess the propriety of the
government's actions, he must be able to rely on officials
assurances about need and legality. Immunity is designed to
avoid the burden of protracted litigation, because the
prospect of such litigation itself is enough to deter
citizens from providing critically needed assistance.
Madam President--I agree with these distinguished gentlemen.
Bottom line, companies who participate in this program do so
voluntarily to help America preserve its freedom and security. And that
security will ensure for the very safety--both individually and
collectively--of its citizens.
In closing, I would like to state that I have long supported the idea
of ``an all-volunteer force'' for our military and I believe ``an all-
volunteer force'' of citizens and businesses who do their part to
protect our great Nation from harm is equally important.
Without this retroactive liability provision, I believe companies
will no longer voluntarily participate. This will result in a
degradation of America's ability to protect its citizens.
It is for these reasons that I urge my colleagues to support the
Rockefeller-Bond substitute amendment to grant the men and women of the
intelligence community the tools they need to protect our country.
Exhibit 1
[From The Wall Street Journal, Oct. 31, 2007]
Surveillance Sanity
(By Benjamin Civiletti, Dick Thornburgh and William Webster)
Following the terrorist attacks of Sept. 11, 2001,
President Bush authorized the National Security Agency to
target al Qaeda communications into and out of the country.
Mr. Bush concluded that this was essential for protecting the
country, that using the Foreign Intelligence Surveillance Act
would not permit the necessary speed and agility, and that he
had the constitutional power to authorize such surveillance
without court orders to defend the country.
Since the program became public in 2006, Congress has been
asserting appropriate oversight. Few of those who learned the
details of the program have criticized its necessity.
Instead, critics argued that if the president found FISA
inadequate, he should have gone to Congress and gotten the
changes necessary to allow the program to proceed under court
orders. That process is now underway. The administration has
brought the program under FISA, and the Senate Intelligence
Committee recently reported out a bill with a strong
bipartisan majority of 13-2, that would make the changes to
FISA needed for the program to continue. This bill is now
being considered by the Senate Judiciary Committee.
Public disclosure of the NSA program also brought a flood
of class-action lawsuits seeking to impose massive liability
on phone companies for allegedly answering the government's
call for help. The Intelligence Committee has reviewed the
program and has concluded that the companies deserve targeted
protection from these suits. The protection would extend only
to activities undertaken after 9/11 until the beginning of
2007, authorized by the president to defend the country from
further terrorist attack, and pursuant to written assurances
from the government that the activities were both authorized
by the president and legal.
We agree with the committee. Dragging phone companies
through protracted litigation would not only be unfair, but
it would deter other companies and private citizens from
responding in terrorist emergencies whenever there may be
uncertainty or legal risk.
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.
This concern is particularly acute for our nation's
telecommunications companies. America's front line of defense
against terrorist attack is communications intelligence. When
Americans put their loved ones on planes, send their children
to school, or ride through tunnels and over bridges, they are
counting on the ``early warning'' system of communications
intelligence for their safety. Communications technology has
become so complex that our country needs the voluntary
cooperation of the companies. Without it, our intelligence
efforts will be gravely damaged.
Whether the government has acted properly is a different
question from whether a private person has acted properly in
responding to the government's call for help. From its
earliest days, the common law recognized that when a public
official calls on a citizen to help protect the community in
an emergency, the person has a duty to help and should be
immune from being hauled into court unless it was clear
beyond doubt that the public official was acting illegally.
Because a private person cannot have all the information
necessary to assess the propriety of the government's
actions, he must be able to rely on official assurances about
need and legality. Immunity is designed to avoid the burden
of protracted litigation, because the prospect of such
litigation itself is enough to deter citizens from providing
critically needed assistance.
As the Intelligence Committee found, the companies clearly
acted in ``good faith.'' The situation is one in which
immunity has traditionally been applied, and thus protection
from this litigation is justified.
First, the circumstances clearly showed that there was a
bona fide threat to ``national security.'' We had suffered
the most devastating attacks in our history, and Congress had
declared the attacks ``continue to pose an unusual and
extraordinary threat'' to the country. It would have been
entirely reasonable for the companies to credit government
representations that the nation faced grave and immediate
threat and that their help was needed to protect American
lives.
Second, the bill's protections only apply if assistance was
given in response to the president's personal authorization,
communicated in writing along with assurances of legality.
That is more than is required by FISA, which contains a safe-
harbor authorizing assistance based solely on a certification
by the attorney general, his designee, or a host of more
junior law enforcement officials that no warrant is required.
Third, the ultimate legal issue--whether the president was
acting within his constitutional powers--is not the kind of
question a private party can definitively determine. The
companies were not in a position to say that the government
was definitely wrong.
Prior to FISA's 1978 enactment, numerous federal courts
took it for granted that the president has constitutional
power to conduct warrantless surveillance to protect the
nation's security. In 2002, the FISA Court of Review, while
not dealing directly with the NSA program, stated that FISA
could not limit the president's constitutional powers. Given
this, it cannot be said that the companies acted in bad faith
in relying on the government's assurances of legality.
For hundreds of years our legal system has operated under
the premise that, in a public emergency, we want private
citizens to respond to the government's call for help unless
the citizen knows for sure that the government is acting
illegally. If Congress does not act now, it would be
basically saying that private citizens should only help when
they are absolutely certain that all the government's actions
are legal. Given the threats we face in today's world, this
would be a perilous policy.
Mr. WARNER. Madam President, I yield the floor at this time.
The PRESIDING OFFICER. The Senator from North Dakota.
Mr. DORGAN. Madam President, are we in morning business?
The PRESIDING OFFICER. We are.
Mr. DORGAN. Madam President, I ask unanimous consent that I be
allowed to speak for such time as I may consume.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
[Congressional Record: January 30, 2008 (Senate)]
[Page S476-S478]
FISA
Mr. SESSIONS. Madam President, I thank my colleague, Senator Bond,
the vice chairman of the Intelligence Committee. He has been working
for a full year virtually on trying to accomplish what we need to
accomplish now.
I may not be able to follow the debate, but it seems to me that now
we are beginning to hear that somehow despite your determined efforts
and those of Senator McConnell and our side of the aisle the
Republicans are being accused of holding up this legislation.
Can you give us your perspective on that? I am sure it is different
from what I have heard on the floor earlier on.
Mr. BOND. Madam President, to respond to my colleague, it would be a
pleasure. Let's go through the record.
In April of 2007, the Director of National Intelligence, or the DNI,
submitted a request to update FISA, the Foreign Intelligence
Surveillance, law to Congress. The draft legislation that he sent to
Congress was not a political or partisan piece of legislation, it was
absolutely essential because technology has changed and the old FISA
law was prohibiting our agencies from having the ability to go up on a
foreign target without getting an order of the FISA Court, which
totally gridlocked that court.
But what he sent up was the result of a year of negotiations and
coordination among civil servants in the Department of Justice and our
intelligence agencies that will actually have to implement the system
the legislation will cover. So the people who are running it set up the
recommendation.
Soon after that, there was a court order issued that resulted in
these significant gaps. That ruling brought important parts of the
system we use to monitor terrorists overseas to a halt. It created
dangerous gaps in our ability to collect. The need to pass a permanent
legislative fix for FISA suddenly became much more urgent, and the DNI
came before the Intelligence Committee in May of 2007 to explain why it
was needed and to say how urgent it was.
Mr. SESSIONS. Indeed, didn't he say it couldn't have come at a worse
time to have us be denied this kind of intelligence capability?
Mr. BOND. That is correct. As the DNI explained to Congress in a
closed-door briefing for all Senators in July of 2007, the FISC ruling
came at a time of heightened concern in our intelligence agencies that
terrorist attacks against the homelands of our allies might be in the
works.
The DNI explained in that briefing in no uncertain terms the urgent
need to update FISA and close the intelligence gaps caused by the
ruling so that our intelligence agencies would have the tools they need
to detect terrorist plots against our homeland or our troops and allies
overseas.
Mr. SESSIONS. To follow up on that, you are familiar with the NSA and
have seen it. Would you dispute his decision based on what you know?
Didn't you also conclude, as I did, that he was exactly right; this was
absolutely critical to our national defense and security?
Mr. BOND. Mr. President, yes. I learned at the time why it was so
essential, and I would say there is a letter from the DNI, a classified
letter, which is available in our Intelligence Committee offices or in
S-407 for Senators to read that says what the intelligence community
was able to accomplish after the Protect America Act was passed on
August 3, 4, and 5 of last year, which would not have been possible had
we not changed the FISA law. So there are clear examples set forth in a
classified letter that I invite all my colleagues to review. I would be
happy to have them review it.
Mr. SESSIONS. When we heard what he said, we got busy. You were one
of the leaders. We worked through and passed the legislation in August,
just this past August, that basically affirmed this program and kept it
going. But can you tell us now why we didn't make it permanent at the
time?
Mr. BOND. First, I am not a big fan of sunsets. If the Intelligence
Committee does its job--and with Chairman Rockefeller leading and my
role in it, I can assure you that we are looking at all of these laws,
all of these practices, and authorizing legislation of the intelligence
community to see if it is working, to see if it is working within
proper bonds. But I believe that. And I believe the Attorney General
was correct when he said we should not sunset these laws because there
are no sunsets on our enemies' fatwas.
That came from our Attorney General. But we did agree to a 6-month
sunset because Senate Democrats assured me that 6 months was long
enough to take a systematic look at the law and come up with a strong,
permanent solution. They believed we needed additional protections that
had not existed in the original FISA law. It did not include one of the
key elements that the DNI requested in his original April 2007 request.
We had to pass a shortened version because of the timeline. But given
that we had that sunset, our Intelligence Committee worked very hard,
after the passage of the PAA, until we were able to pass on a
bipartisan basis, by 13 to 2, a strong bill that adds significant new
protections for Americans and which permits the DNI to conduct the
program as he thinks it needs to be conducted to assure that our
country is safe.
Mr. SESSIONS. How did we get here and why do we need another 15-day
extension? Why can't we get this thing done?
Mr. BOND. That is kind of an obvious question that my colleague has
asked. The following month, the Judiciary Committee of the Senate put
out a bill on a straight party-line vote, a partisan substitute which
was drafted without getting the effective input of the intelligence
community, the Department of Justice. And the DNI said it absolutely
would not work, so he couldn't support it. So a month after that, on
December 17, the distinguished majority leader brought the bill to the
Senate floor, thought it very timely to get it done in December, since
we have a February 1 expiration date. But several members of the
majority party filibustered the bill or actually they phoned in their
objections, their filibusters, from campaign stops. And it could not go
forward. Then the Senate didn't get around to taking up FISA again
until over a month later, on January 23.
We only returned to FISA after taking up the Indian health
legislation. I don't diminish the importance of that measure, but it
might have waited until after we finished FISA.
Mr. SESSIONS. It seems to me that our Democratic leadership has had
legislation from the Director of National Intelligence since April. We
have refined it, particularly your committee, the Intelligence
Committee, has moved it forward on the floor. And we have just wasted a
lot of time when we need to be making this permanent.
Mr. BOND. Unfortunately, my colleague from Alabama is right. I know
we both don't want to engage in finger-pointing, but some of my
colleagues have been making statements about our efforts on the bill,
which leave me no choice but to correct the record. I invite any of my
colleagues who have a different view to come discuss it with me. It is
critical that we move forward.
We have a 15-day extension. At the end of 15 days, this body goes on
a week's recess. There is no reason we cannot pass this bill,
conference with the House, and pass it by February 15 so American
citizens will have the additional protections this bill includes, and
our carriers will have the liability they must have to continue to
participate in the program.
I thank my colleague from Alabama.
Mr. SESSIONS. I thank Senator Bond and Senator Rockefeller and the
Intelligence Committee. I serve as a member of the Judiciary Committee.
I strongly opposed the bill that came out of our committee. I believed
your bill, the Intelligence Committee bill, which passed 13 to 2 in a
bipartisan fashion out of the Intelligence Committee, was superior to
the one that passed Judiciary on a narrow party-line vote. I also
grasped during that debate that one of the real differences was the
Intelligence Committee members knew what was at stake. That had been
your responsibility, to ensure that our intelligence community was
[[Page S477]]
able to function effectively. You knew how the system worked and we
didn't. We allowed theoretical ideas and maybe partisan politics to
interfere with a simple project which was to identify what we needed to
do to fix the broken intelligence system and to do so consistent with
the Constitution and liberty.
You all worked on that and reached an agreement on it. We continued
to have nitpicking, complaints, ideas. Everybody has a different idea
how they would like to see it done. I guess that is lawyers. Maybe that
is the Judiciary Committee lawyers as opposed to Intelligence Committee
members.
The way I would boil this issue down for the American people is this:
We are not asking in this legislation that anything be done to diminish
the great liberties we as Americans have come to cherish. Actually, all
it is doing is facilitating historic concepts of intelligence
surveillance that we have always done. Fundamentally, there is no
dispute that American intelligence officers abroad can intercept such
communications as they are able to intercept without any Federal court
warrant or anything else of that nature because the Federal court does
not have jurisdiction, one reason, in Europe or the Middle East or
Pakistan or any other country. They just don't have jurisdiction there.
So we have always known that our intelligence agencies are capable,
authorized, and legally able to do this.
In the United States, however, if somebody taps your phone--and we
have had so much confusion about this--if a Government agency were to
tap someone's phone, they are entitled to listen not only to the calls
that are placed away from that phone to someone else, they are also
entitled to listen to phone calls that come into that phone number.
That is part of the legal authorization to surveil inside the United
States.
So the first thing you have to do is have legal authorization to
surveil. Once you do, on that phone, then you can listen to the calls
that come in. What we do as a matter of practicality is we mitigate if
a phone call comes in on a matter unrelated to the criminal activity
that is being surveilled in the United States. That is the way it is.
So what I want to say is, don't think this is somehow a retrenchment
of historic American protections. What we are saying is, if you have a
legal authorization to intercept a telephone system in Afghanistan--and
we do, our people have a right to intercept a phone conversation--it
seems to me you also have a right, just as you do if you have a warrant
involving a U.S. citizen, to listen to the phone calls they place into
the United States. And if it is not relevant to any kind of terrorist
activity, then you would mitigate against it. But if you follow what I
am saying, once you have the authority, as we do, to intercept a cell
phone number somewhere, something like that, if you have this activity
and you intercept that and you can surveil that number, then you are
able to surveil who they call.
If they are calling into the United States to set up a terrorist
organization to carry out a plot, then that is the kind of call you
want to intercept, for heaven's sake. I just don't think we have a big
issue. I am proud of the committee. They have added protections,
eliminated ideas that could lead to some abuse somewhere, but you have
written a bill that is worthwhile.
Let me say about the people at the National Security Agency and our
FBI and our other agencies that are out doing this kind of work, they
follow the laws we give them. Don't think, like you see on television,
on ``24'' and some of these things that people just go around and
violate the law on a regular basis. I was a Federal prosecutor for 15
years. People don't put their careers on the line, throw away their
careers, violating the law.
So we have to have a law that allows them to lawfully do their work
and not deny them the right or a legitimate power to protect America
because we are putting ourselves at risk, and we should not do it. So I
am frustrated, forgive me, that we are so timid about allowing the full
historical surveillance capabilities our Nation is used to having at
this time when we have unique threats from terrorists who have proven
they have the ability to inflict thousands of deaths on Americans.
Our good people are working their hearts out. Let's don't make it
more difficult for them. Let's affirm what they are doing. We will
continue to monitor it so it is never abused.
I thank the chairman and the Intelligence Committee for their
bipartisan work to serve our country by producing a bill we all can be
proud of.
I yield the floor.
The PRESIDING OFFICER (Mr. Pryor). The Senator from Missouri.
Mr. BOND. Mr. President, I extend my most sincere thanks to my
colleague from Alabama, who is a very valuable member of the Judiciary
Committee. He does not let the fact that he was a lawyer and a
prosecutor interfere with the exercise of good judgment. I congratulate
him on his very perceptive comments. I thank him for participating with
me.
I also would agree with him. He made the strong point that sensitive
intelligence matters should be handled in the Intelligence Committee.
Our intelligence community leaders have said it is very difficult to
present matters to a committee when they have to deal in closed session
on so many things. Even the things that may in themselves not be
classified are often related to classified materials. So I hope maybe
we can take a look at committee jurisdiction in the future.
I will take a few minutes to discuss why it is so important the
Senate pass the bipartisan Rockefeller-Bond substitute amendment
without adding unnecessary or harmful amendments that have not been
vetted by the intelligence community.
There are some colleagues who may believe we can just keep adding
amendments without causing any problem for our intelligence collectors.
But the fact is, the legislation is intended, first and foremost, to
keep the intelligence gaps that existed prior to the passage of the
Protect America Act, or PAA, closed. If we do not check with the
experts in the intelligence community about whether their proposals
will enable the intelligence community to keep the gaps closed, and if
we do not heed their advice, the legislation can have--and often has--
unintended consequences that impede vital intelligence collection.
An example of why this is so important: There was a substitute
amendment included in the Rockefeller-Bond bill that provides
additional protections for Americans traveling overseas. Originally,
this amendment was offered by the Senator from Oregon--a valued member
of our committee. His intent--which I share, and the intelligence
community shares--is to provide overseas Americans with the same level
of court review and approval as Americans in the United States receive.
We believe that is very important.
The amendment passed in the committee despite my vote in opposition
because of the drafting that the amendment had not been vetted by the
intelligence community. It turned out it would have been unworkable,
causing unintended consequences, including impeding important
intelligence collection on legitimate targets, if it was passed as it
was.
But the chairman and I worked with Senators Wyden and Whitehouse over
the past few months so we could make this functional--a well-
intentioned amendment, a very valuable addition to this bill. We fixed
that provision, and it is in the managers' amendment that Chairman
Rockefeller and I have. So we will have a workable bill, one that the
DNI supports, and one we can be very proud of, because it does extend
additional protections to American citizens and U.S. persons abroad.
But when we had to fix this issue, what we thought was a simple
amendment took 24 pages of language to make sure we did not have
unintended consequences--in an amendment that was originally only 3
pages long. I raise this not to criticize the authors of the amendment
but to thank them for their cooperation.
But the basic principle is a principle of medicine, and we can apply
it to the intelligence legislation: First, do no harm. I am concerned
about the unwillingness of some colleagues who have proposed
legislation to call the office of the DNI or NSA to make sure their
amendments would do no harm. If amendments cause the intelligence gaps
to reopen, the legislation will be worthless, probably will not pass,
and will not be signed into law.
[[Page S478]]
An example of how well a bipartisan FISA reform bill can function is
the Protect America Act. I have said before that the PAA did exactly
what it was intended to do: it closed the intelligence gaps that
threatened the security of our Nation and our troops. It did so in a
truncated fashion, but it worked for 6 months.
Now, there are some Members who criticize the PAA and call it flawed.
But let there be no doubt, the PAA has been a great success. It did not
open any new powers that had not existed before the technology changed
and brought applications of new limitations on our collectors.
Next, I want to call attention to a letter received by the Senate
Select Committee on Intelligence on January 25 from the DNI. Director
McConnell wrote that the authorities provided by Congress, through the
Protect America Act, passed in August of last year, have ``allowed the
Intelligence Community to collect vital foreign intelligence
information, and made the Nation safer by enabling the IC to close gaps
in our foreign intelligence collection.''
Let me repeat that: It has enabled the intelligence community to
close gaps in our foreign intelligence collection.
More specifically, Director McConnell said the PAA has enabled the
intelligence community to obtain information related to disruption of
planned terrorist attacks against Americans, efforts by an individual
to become a suicide operative, instructions to a foreign terrorist
associate about entering the United States, efforts by terrorists to
obtain guns and ammunition, terrorist facilitator plans to travel to
Europe, information on money transfers; plans for future terrorist
attacks, and movements of key extremist groups to evade arrest--among
others.
While I cannot say anything more publicly about these examples, I can
say these are examples of how the PAA disrupted ongoing and planned
attacks against our interests, our allies, and our citizens. The
Director did send the committee a classified letter laying out the
details of these disruptions. He also gave examples of how collection--
that had faltered because of a FISA Court decision in the spring--was
renewed under the PAA. As a result, key intelligence against terrorists
was collected.
I have reviewed the letter. I think any of our colleagues interested
in this subject should go to the Senate Intelligence Committee offices
or to S-407 to read the classified letter for themselves to see how the
PAA has helped save American lives.
Director McConnell has told us some targets might not have been
pursued without the PAA because of the administrative, analytic, and
legal burden of seeking FISA orders. Keep in mind, these orders would
have been FISA orders to collect information on foreigners, not
Americans.
It is clear from my reading of Director McConnell's letter that most
of the successes he identified would not have occurred had it not been
for the PAA.
While the PAA has been key to gathering unique and vital intelligence
information, Director McConnell does not support its extension. The
reason he does not support the renewal--one that has been critical to
enabling the intelligence community he leads to do its job--is because
it does not include retroactive civil liability protection. In his
letter, and on numerous occasions--and in every substantive discussion
I have had with him--the Director has said that we cannot gather this
kind of information in sensitive intelligence areas without the
cooperation of private parties.
Despite the success of the intelligence community's ability to
collect intelligence under the PAA, Director McConnell does not support
its extension without this retroactive civil liability provision
because he believes the voluntary cooperation of private parties is
necessary to the success of the program. I have stated previously in
answers to questions of my colleagues precisely why it would work. By
implication, it seems he is concerned, wisely, I believe, that carriers
will no longer cooperate with the Government if they fear being dragged
into expensive lawsuits.
Again, for all these reasons, we must pass and get the bill out of
here--I hope at least by early next week--and pass a conference report
before February 15. The Rockefeller-Bond substitute is that bill.
A lot of questions have been asked about when we are going to move
forward. We have exchanged papers back and forth. Chairman
Rockefeller's staff and my staff have negotiated extensively. We need
to get the concurrence of the leaders on both sides. I hope we are
close to getting a workable framework. This is such a critical piece of
legislation. I do not want to hold it up any longer.
I know my colleagues have been waiting for votes. Nobody has been
more anxious than Chairman Rockefeller and I. We understand how
important this issue is. We hope to give this body some real action on
moving the bill forward sooner rather than later. We will need the
leaders, who will make the decisions. We will need the cooperation of
all colleagues on both sides. Let's hope we can come to a successful
resolution.
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. 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.
____________________
