[Congressional Record: February 4, 2008 (Senate)]
[Page S564-S580]
FISA AMENDMENTS ACT OF 2007
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 2248, which the clerk will
report.
The legislative clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
Pending:
Rockefeller/Bond amendment No. 3911, in the nature of a
substitute.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, I thank my colleagues for agreeing on a way
forward on this bill. This is a very important bill, the Foreign
Intelligence Surveillance Act, the FISA Act, of 2008. It gives the
intelligence community the tools it needs right now and over the next 6
years to protect the country.
The Protect America Act we passed in Congress and the President
signed last August allowed the intelligence community to close critical
intelligence gaps, but that legislation expires in less than 2 weeks.
We cannot let those gaps reopen. We passed a short-term extension, and
that extension will expire when we are preparing to go out on the
President's Day recess. We cannot leave our country blind and deaf to
threats that terrorists might bring.
We were delayed in December by filibuster, which is the right of all
Senators to have extended discussions. And there are those who say we
need more time to look at this measure because it is very important and
it is very technical and it is controversial. But the Intelligence
Committee spent over 9 months looking at FISA modernization. We held
hearings, we reviewed the Terrorist Surveillance Program, we looked at
the implementation of the Protect America Act, and after that, we came
up with a solid bipartisan bill. That is something in which Chairman
Rockefeller and I take a great deal of pride because we accommodated
many changes and improvements and we did improve on the existing FISA
structure, as well as adding items the Protect America Act needed to
have but did not have.
The intelligence community is waiting for us to act. We have a bill
that is responsible and effective. It addresses the concerns about the
Protect America Act, but most of all, it gives the intelligence
operators the tools they need and ensures that our private partners
will continue to assist the Government.
As I said, this bill came out of the Intelligence Committee on a 13-
to-2 vote after months of studying the collection programs. Chairman
Rockefeller, whom I thank again, and I worked together to get an
agreement that protects America's constitutional rights and the privacy
rights of American citizens.
There was a lot of work with the intelligence community
representatives and lawyers from the Department of Justice. The
Intelligence Committee members and their staffs did an outstanding job
coming up with a solution.
Two provisions added during the initial markup without input from the
intelligence community needed to be changed. They are great objectives,
but they had to be made workable. It was our pleasure to work with
Chairman Rockefeller, Senator Whitehouse, and Senator Wyden to come up
with a solution to both these problems, and they are now in the
substitute now pending.
The Director of National Intelligence, who is responsible for running
our collection programs, said with these two problems fixed, he will
support the bill. This is very important to the chairman and to me
because we want to pass a bill that works and will become law. It would
do no good to pass a bill that has people's good ideas in it or pass a
bill that is good for politics but doesn't work for those who are
charged with protecting us from the threats our country faces. So the
support of this bill by the Director of National Intelligence in
particular is critical. With these fixes, we will have a bill the
President will sign.
The chairman and I have worked shoulder to shoulder on a bipartisan
basis to pass this bill. We will have to take a very careful look at
any amendments that are proposed because we don't want to jeopardize
the ability of the intelligence community and their private partners to
go forward. It is very technical. Each word matters. And we will do our
best to point out whether amendments will work. There are several
amendments pending that we think will improve the bill but will not
bring a veto.
With that, Mr. President, I thank all the Members who have worked
with us in close collaboration to get time agreements, to get a list of
acceptable amendments, and I am looking forward to moving ahead with
this bill just as soon as we can. I thank my colleague from West
Virginia and the other colleagues for working together on the
Intelligence Committee bill.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, first let me express my appreciation
to the distinguished vice chairman of the Senate Intelligence Committee
for his very energetic dedication to moving this bill forward. We have
not agreed on everything, but nobody can challenge his dedication to
moving a bill and to making progress on this issue.
Amendment No. 3920 to Amendment No. 3911
Mr. President, per the pending agreement, I call up amendment No.
3920, the Whitehouse amendment.
The ACTING PRESIDENT pro tempore. The clerk will report the
amendment.
The legislative clerk read as follows:
The Senator from Rhode Island [Mr. Whitehouse], for
himself, Mr. Rockefeller, and Mr. Leahy, proposes an
amendment numbered 3920.
Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the
reading of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:
(Purpose: To provide procedures for compliance reviews)
On page 19, between lines 20 and 21, insert the following:
``(7) Compliance reviews.--During the period that
minimization procedures approved under paragraph (5)(A) are
in effect, the Court may review and assess compliance with
such procedures and shall have access to the assessments and
reviews required by subsections (k)(1), (k)(2), and (k)(3)
with respect to compliance with such procedures. In
conducting a review under this paragraph, the Court may, to
the extent necessary, require the Government to provide
additional information regarding the acquisition, retention,
or dissemination of information concerning United States
persons during the course of an acquisition authorized under
subsection (a). The Court may fashion remedies it determines
necessary to enforce compliance.
Mr. WHITEHOUSE. Mr. President, in this debate about revising FISA and
cleaning up the damage done by the President's warrantless wiretapping
program, the administration has talked at length about the importance
of our foreign intelligence activities. It expends all its rhetorical
energy on a topic where we all agree, but it has largely ignored the
issue that has been central to our debate: On what terms will this
administration spy on Americans?
I rise today in support of an amendment offered by myself; by the
distinguished chairman of the Senate Intelligence Committee, Chairman
Rockefeller; the distinguished chairman of the Senate Judiciary
Committee, Senator Leahy; Senator Schumer of New
[[Page S565]]
York; and Senator Feingold of Wisconsin, that addresses this issue: the
privacy of Americans from Government surveillance.
Our amendment reflects the convergence of ideas Senator Schumer has
been working on in the Judiciary Committee and I was working on in the
Intelligence Committee and, similarly, Senator Feingold has played a
critical role in advancing this issue in both committees. Both
chairmen, Senator Leahy and Senator Rockefeller, have reviewed it and
given it their blessing. It is carefully crafted to incorporate
statutory language offered by the Department of Justice as technical
assistance.
On this amendment, we have done our homework. What is this amendment
about? As a former U.S. attorney and Rhode Island attorney general, I
oversaw wiretaps and other surveillance procedures, and I learned that
with any electronic surveillance, whether it is a domestic law
enforcement investigation or intelligence gathering on international
terrorism, information about Americans is intercepted incidentally--in
other words, when they are not being targeted by our intelligence or
law enforcement agencies but overheard because they are talking to or
talking with or even being discussed by someone who is under
surveillance. So minimization is the term of art. Minimization is the
process for protecting the privacy of Americans who are caught up in
surveillance without being the target of the surveillance.
The issue here is privacy rights of Americans, and in domestic law
enforcement there are clear, established procedures for minimizing the
collection or retention of this information to ensure that the privacy
of innocent Americans is protected. In this pursuit, the prospect of
judicial review--the prospect of judicial review--is an important part
of our protection.
Under the Senate Intelligence bill before us, the court has the
authority to approve minimization procedures. It has the authority to
approve the procedures, but it is then told that it can't look fully
into whether the procedures are being followed. Thus, there is no
guarantee the procedures are actually being adhered to by the executive
branch on the part of the overseeing court.
I have introduced this amendment to give the FISA Court the same
discretionary authority to follow up on the implementation of all these
minimization procedures that it has in every other context and that is
common to all courts throughout the American system of justice.
Chairman Rockefeller and Vice Chairman Bond have already agreed and put
into the bill we will vote on that this authority already lies with the
court where the target is an American, and I wish to thank Vice
Chairman Bond in particular for working with me in bipartisan fashion
on that point.
If the target of surveillance is an American inside the United States
or if the target of the surveillance is an American overseas, then the
court has the authority to review compliance through the minimization
procedures. But as will often be the case, the target will be a person
outside the United States, a person who is not in America, and then an
American could just as easily be incidentally intercepted in these
conversations, and they should still have rights, and they should still
have protections.
Because minimization serves to protect the incidentally intercepted
person, this protection should apply when the incidentally intercepted
person is an American, and the court's authority to make sure the rules
are being followed should apply there as well. It makes no sense to
strip a court of its natural authority based on the identity of the
target when the protection runs to the American who is not the target
but who has been incidentally intercepted.
It, frankly, makes no sense as a general proposition to limit the
court's authority to see whether rules it has approved are being
followed. I found no place else in the law, no place at all where the
authority of a court to approve an order, a rule, or a procedure is not
accompanied by the concomitant authority to see if there is compliance.
It is basic. Indeed, it may very well be, if there is litigation on
this matter, a court will find that it is so basic to judicial
authority that they will imply it. But we should put it in the bill and
get it right; otherwise, we are creating in this bill a bizarre and
unique quirk in American law, and there is no sensible justification
offered for it.
To be clear, this amendment creates no mandates, no cumbersome
procedures. Indeed, it may never be used at all. In my experience, as I
said, the mere prospect--the mere prospect--of a judicial inquiry into
compliance has a salutary effect--a healthy attention-getting,
awakening, compliance-enhancing effect--on those who are charged with
complying with the law. The opposite, I am afraid, is true as well.
When executive officials are assured, as this law would do without this
amendment, that the court that approves the minimization procedures is
forbidden to police the compliance of those procedures, one can
reasonably expect looser compliance in this enforcement holiday.
I know the Bush administration fears and despises judicial oversight,
probably with very good reason, but that is no reason that we as a
Senate should follow them down this wayward path. Both here, where the
FISA bill creates an unheard of limitation on judicial power to examine
compliance with its own approved rules, and in the immunity debate,
where we are being led as a legislature into ongoing legislation to
choose winners and losers, we embark into dangerous territory, outside
the well-established traditions of the separated powers of our American
system of government.
Particularly to my colleagues who are members of the Federalist
Society, an organization with a declared interest in separation of
powers, I hope you will take this occasion to defend those principles.
To quote the distinguished Justice Scalia from a Supreme Court
opinion regarding a sense of sharp necessity about this separation of
the legislative from the judicial power at the founding of our
Government:
This sense of a sharp necessity . . . triumphed among the
Framers of the new Federal Constitution.
And it did so, again quoting the decision:
. . . prompted by the crescendo of legislative interference
with private judgments of the courts.
Going back to a previous decision, United States versus Klein, the
U.S. Supreme Court, in a holding that Congress may not establish the
rule of decision in a particular case, said of the legislative and
judicial powers:
It is of vital importance that the legislative and judicial
powers be kept distinct. It is the intention of the
Constitution that each of the great co-ordinate departments
of the government--the legislative, executive and the
judicial--shall be, in its sphere, independent of the others.
I submit that a court cannot be independent if it is stripped of the
duty to determine whether rules and procedures it has the authority to
approve are even being complied with.
I urge other Members to support this amendment. I am very gratified
to see Senator Schumer from New York on the floor. I know he has worked
hard on this issue in the Judiciary Committee. I am very grateful that
somebody of his experience and distinction would cosponsor this
amendment.
I yield to Senator Schumer.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. WHITEHOUSE. I yield to Senator Schumer.
The ACTING PRESIDENT pro tempore. The Senator from New York.
Mr. SCHUMER. Mr. President, I ask for 10 minutes from my colleague
from Rhode Island, who has the time.
Mr. WHITEHOUSE. No objection.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. SCHUMER. May I modify that request to make it 12 minutes?
Mr. WHITEHOUSE. Does that leave 3 or 4 minutes, 5 minutes for the
chairman?
Mr. SCHUMER. I will move it back to 10. I didn't realize we were that
short on time.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island has
20 minutes remaining.
Mr. WHITEHOUSE. The 12 minutes will work, leaving time for the
chairman and some to spare.
Mr. SCHUMER. On amendment 2937, I wish to thank Senator Whitehouse
[[Page S566]]
for his leadership on this issue; Senator Feingold and our two great
chairs, Senator Rockefeller and Senator Leahy. I will briefly describe
this amendment.
When we debate these issues, our friends on the intelligence side say
you cannot stop us with cumbersome procedures that will not allow us to
listen in on a phone conversation a terrorist might be engaging in, you
have to act quickly. That is a legitimate wish. You certainly do not
want to let a phone conversation slip away while you are going through
days and days and days in court.
But this amendment has nothing to do with that. We do not interfere
with any phone conversation that might legitimately be listened in to,
that might be tapped ahead of time.
What we are saying is this: There ought to be oversight to make sure
our intelligence agencies obey the rules; that when there is a
conversation or a person, an American citizen on the line who should
not be listened in to because the conversation is not about the
intended subject, that they quickly stop listening.
Now, under present law, there is no oversight, none. So if someone
would want to take liberties, in one of the intelligence agencies or
other agencies, and listen in to Americans having conversations,
citizens, who have no right to be listened in to because they did not
involve legitimate security concerns, they could continue to do it and
no one would ever know.
That is wrong. The minimization requirements we have placed in this
amendment, which was originally in the Judiciary Committee amendments,
but, unfortunately, or in large part in the Judiciary Committee
amendments--unfortunately that amendment which I supported was
defeated--will ensure there is oversight and that we get all the
intelligence information we need, without abuse or overstepping of
bounds.
That is the perfect balance. It is hard to see how anyone could
object to oversight after the fact to make sure people are not abusing
the privilege of listening in to phone conversations or other
conversations, electronic conversations, American citizens are having.
That is why this amendment I hope will be supported unanimously in
this Chamber. Whether you are a conservative or a liberal, Democrat or
Republican, someone who leans to the side of making sure we get every
bit of information or someone who leans on the side of making sure
American liberties are protected, both worthy goals, you can support
this amendment.
I wish to once again thank my colleagues for their hard work on an
important issue.
The ACTING PRESIDENT pro tempore. The Senator from West Virginia is
recognized.
Mr. ROCKEFELLER. Mr. President, I would like to offer my strong
support for the amendment offered by Senator Whitehouse to ensure there
is explicit written legal authority in this bill for the Foreign
Intelligence Surveillance Court to review and to assess compliance with
the minimization procedures established for the bill's new acquisition
authority.
One of the most serious deficiencies in the Protect America Act was
the fact that the FISA Court was not given a role at all in approving
the minimization procedures put in place by the Attorney General and
the Director of National Intelligence for collection activity. That was
fine. But it was insufficient.
Minimization procedures are the procedures that govern the treatment
of nonpublic information concerning Americans in the acquisition and
retention and dissemination of foreign intelligence.
The Intelligence Committee's bill addressed this deficiency in the
Protect America Act by requiring the court to review and approve
minimization procedures. The committee, however, learned, and then was
happy to take from in our discussions, the Judiciary Committee's better
approach to this. We did not, in the Intelligence Committee bill,
explicitly authorize the court to assess compliance with these
minimization procedures.
As the Senators from Rhode Island and New York have pointed out,
there is no point in having something on the books if you cannot be
sure it is going to be complied with.
So compliance is a sacred principle. Senator Whitehouse's amendment
will ensure that the court can assess the executive branch's compliance
with these minimization procedures, be provided with information it
needs to make the assessment, and have the authority to enforce this
assessment.
The administration objected to the provision reported from the
Judiciary Committee allowing the FISA Court to review compliance with
minimization procedures as being what it called ``a massive expansion''
of the court's role.
The administration also argued there are enough other oversight
mechanisms already in the bill, through requirements on the Attorney
General, the Director of National Intelligence, the Inspectors General
of the intelligence agencies.
I respectfully disagree with that assessment. Assessing compliance is
inherent in the court's role. It is inherent in the FISA Court's role
in reviewing and approving minimization procedures in the first place.
In fact, without it, without the compliance part of it, the first parts
are nice but not sufficient.
Having the court assess compliance with minimization procedures is an
important safeguard to ensure there is due care in the handling of, as
I say, nonpublic information concerning U.S. persons.
I therefore urge the adoption of this amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, I yield myself 5 minutes. I ask that the
balance of the time on this side be reserved for Senators Hatch and
Sessions and others who want to speak.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. WHITEHOUSE. Will the vice chairman yield for a question?
Inquiring through the Chair, I am wondering when the vice chairman
believes Senators Hatch and Sessions might be here?
Mr. BOND. Mr. President, all I know is we were all expected to be
back at 5:30. I do not have their flight schedules. We are contacting
their offices, but I do not know when they will be back.
Let me move on now to address some of the things that have been said.
No. 1, there was a comment about the damage done by the Protect America
Act. Nobody has shown any damage done by the Protect America Act. What
it has done is given our intelligence community the ability to
intercept foreign terrorist electronic communications. It has kept the
world and our allies and our own people safer.
If anybody wants to look at that, there are, in our enclosed
intelligence rooms, the full description of what has been gained.
The amendment before us, allowing the FISA Court to assess
compliance, may sound like a good idea. But when we talk about foreign
targeting, we are outside the FISA Court's experience and their
expertise.
The FISA Court was created in 1978 to issue orders for domestic
surveillance on particular targets. But Congress specifically left
foreign surveillance activities to the executive branch and to the
intelligence community. This is the first time we have heard that a
court, set up to oversee domestic applications for electronic
surveillance, should be involved in the foreign targeting efforts
dealing with foreign information.
FISA minimization procedures are about protecting the identities of
U.S. persons. This comes up all the time in domestic surveillance. But
almost all the collection under these foreign targeting acquisitions
will be on non-U.S. persons who require no protection under FISA
minimization procedures.
I will explain later if I have time, after others have spoken, what
the FISA Court itself has said about it. Therefore, it does not make
sense to try to get the FISA Court involved in assessing compliance in
the foreign targeting arena.
Now, it has been said that a judge, one of the district court judges
who is brought in to rule on applications, probable cause applications
for domestic surveillance, should go out and review what goes on at the
facilities where collections are being made. Now in France, they have a
wonderful procedure that goes far beyond anything
[[Page S567]]
we have and would drive many of our civil libertarians nuts.
The investigating magistrate investigates, he prosecutes and he rules
on cases. That is a wonderful way of overseeing the whole line of
action. As an investigator and prosecutor, he makes a judgment.
We do not have that situation. We do not have that same system. We
have courts that rule on controversies. We have given them the power to
review the minimization procedures, the written procedures but not to
go out and spend the day trying to figure out what is going on where
the collections are being held.
What we do have is a very robust system of oversight, contrary to
what my colleague from New York said. I will have to agree with him: I
agree with all the things he said about the New York Giants. I rooted
for them. I thought they were great. I will have to confer with my
colleagues from New Hampshire and Maine to see whether they would
accept on our side the terrible things he said about the New England
Patriots. But I was a born-again Giants fan yesterday.
But when he said there is no oversight, he overlooks the supervisors,
the inspector general who is overseeing minimization, the Department of
Justice lawyers who are on top of them, and, more importantly, the
Intelligence Committee itself. That is our job. Our job is to oversee
it, and we intend to continue to oversee it to make sure that system
works. Our staff can go out there. Our members can go out there.
I suggest, given the background the distinguished Senator from Rhode
Island has in seeking warrants, and overseas warrants, probably nobody
in this body will be better able to oversee compliance than the
distinguished Senator from Rhode Island, who served as a prosecutor and
as attorney general. I assure you not one of the FISA Court judges
would have nearly as good a background or as fruitful a time as my
colleague from Rhode Island would have.
I believe, therefore, leaving the existing oversight policies in
place, with a robust oversight by the Intelligence Committee itself--
those of us who have been entrusted to assure the intelligence
collection goes forward in an appropriate manner--should be allowed to
do so.
Mr. President, I yield the floor and I reserve the remainder of my
time under the proposal I made previously.
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that my
remaining time on this amendment be reserved until a later time.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. WHITEHOUSE. I yield the floor.
Mr. SCHUMER. Mr. President, I rise as the proud cosponsor of
amendment No. 3920, offered by my friend Senator Whitehouse. I
supported the Judiciary substitute amendment, and I am disappointed
that it was tabled. It contained a number of important safeguards and
protections.
However, the Senate still has the opportunity to ensure independent
oversight of our intelligence activities. The amendment before us is a
key step in that effort. This amendment makes sure that the FISA Court
can review the privacy of American communications, and take action to
protect that privacy, any time American communications are gathered
during the course of foreign intelligence surveillance.
Senator Feingold and I had an early concern that any FISA update
needs court oversight with real teeth, and we pushed for these
protections to be included in the Judiciary substitute amendment.
Senator Whitehouse had the same concern, and so the amendment before us
today is the excellent product of many heads working together.
I have always said that when it comes to intelligence policy, we must
have three things. First, we need a free and open debate about any
measure that affects our security. We are having that debate now.
Second, we need clear rules so that our intelligence community knows
what is expected and can act within the clear boundaries set out by
Congress. I will only support a final bill that contains such rules.
Third and finally, we must have an independent arbiter to ensure that
those rules are being followed. A rule without oversight is likely to
be a hollow rule.
The amendment before us is necessary to put teeth into the Foreign
Intelligence Surveillance Court's independent oversight function. This
amendment is a simple, commonsense measure, and yet it is also one of
the most substantial protections we can provide for Americans. Let me
explain why this is so.
As we all know, the bill before us would grant the President broad
authority to wiretap communications between two foreign people or
between a foreign person and a U.S. person as long as the target of the
surveillance is located outside the United States. With these new
powers, the intelligence community can collect the communications of
law-abiding Americans, without a warrant, if that American happens to
be in contact with someone who is up to no good.
But law-abiding Americans expect their private communications to stay
private, and rightly so. How can we gather and use the intelligence we
need but also protect the privacy of innocent Americans? The
administration says that Americans are protected because the
intelligence community follows a set of rules called minimization
procedures. These rules limit the collection, use, and dissemination of
communications to make sure that Americans' privacy is protected. The
administration itself sets out these procedures, so they should present
no hindrance to our intelligence collection. What the administration
does not say is that currently, there is absolutely no independent
oversight of whether the administration is following its own rules. The
bill before us would allow the Foreign Intelligence Surveillance Court
to review the minimization rules on paper, to see whether they pass
muster, but no power to review them in practice.
The amendment now before the Senate offers a vast improvement. With
this amendment, the court will have the authority to examine the
administration's performance and to assess whether the intelligence
community is practicing what it preaches. If the court finds problems,
it can issue orders to ensure that the administration follows the
rules.
I am not suggesting that the court should be setting limits before
the fact. I think our intelligence community needs the flexibility to
protect our country. But I think it is essential for the court to be
able to look back and tell us, with an independent voice, whether the
administration was following its own rules to protect the privacy of
law-abiding Americans.
This amendment does not restrict our intelligence gathering. It
assures meaningful protection for individual Americans, and it helps to
promote faith in our Government and our intelligence community. I
cannot imagine why any of my colleagues would oppose this amendment. We
all know that the fox alone should not be guarding the henhouse. It is
just common sense to provide independent, retrospective oversight. I
hope and expect that all of my colleagues, on both sides of the aisle,
will join me to vote in favor of this amendment.
Mr. LEAHY. Mr. President, the bill we are now considering gives the
executive branch unprecedented authority to conduct warrantless
surveillance. It would permit the government, while targeting overseas,
to review more Americans' communications with less court supervision
than ever before. I support surveillance of those who might do us harm,
but we also have to protect Americans' civil liberties. One of the most
important ways to provide that balance is to ensure a meaningful role
for the courts in supervising this new authority.
Unfortunately, the Protect America Act severely diminished the
Foreign Intelligence Surveillance Court's role as a check and balance
on the executive branch. Under the Protect America Act, the FISA Court
cannot conduct oversight over whether the executive branch is complying
with the ``minimization'' rules that are a crucial protection for
Americans whose communications are incidentally picked up by government
surveillance of overseas targets. Judicial oversight of how these
safeguards are working is
[[Page S568]]
a critical protection of the privacy of U.S. persons in this area.
I want to praise Senator Whitehouse, who as member of both the
Judiciary Committee and the Select Committee on Intelligence did so
much work to reverse the courts diminished role and to craft this
fundamental provision. His amendment, which was part of our Judiciary
bill, would ensure that the FISA Court has the authority it needs to
assess the Government's compliance with minimization procedures, to
request the additional information it needs to make that determination,
and to enforce compliance with its orders. It would make certain that
the FISA Court has a meaningful role in overseeing this new
surveillance authority.
Minimization procedures are a key protection--indeed virtually the
only protection--for the privacy of the conversations of people in the
United States that are ``incidentally'' collected as part of this broad
new surveillance authority. These could well be completely innocent
Americans who happen to be talking to someone overseas. FISA Court
oversight of minimization procedures is critical. Without this
amendment, the FISA legislation would allow the court to review
minimization procedures, but it would not give authority to assess
whether the government is complying with those procedures, nor would it
permit the court to take any action to correct failure to comply with
those procedures. This is a crucial amendment and I urge Senators on
both sides of the aisle to support it.
The ACTING PRESIDENT pro tempore. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, is it necessary for me to ask that the
pending amendment be set aside?
I ask unanimous consent that the pending amendment be set aside.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Amendment No. 3979 to Amendment No. 3911
(Purpose: To provide safeguards for communications involving persons
inside the United States)
Mr. FEINGOLD. Mr. President, I call up amendment No. 3979.
The ACTING PRESIDENT pro tempore. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wisconsin [Mr. Feingold], for himself, Mr.
Webb, Mr. Tester, Mr. Biden, Mr. Sanders, Mr. Kennedy, Mr.
Menendez, Mr. Akaka, Mr. Dodd, and Mr. Obama, proposes an
amendment numbered 3979 to amendment No. 3911.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
(The amendment is printed in today's Record under ``Text of
Amendments.'')
Mr. FEINGOLD. Mr. President, the Protect America Act we passed last
year was sold repeatedly as a way to allow the Government to collect
foreign-to-foreign communications without needing the approval of the
FISA Court. Last week, the Vice President defended the Protect America
Act by talking about the need to wiretap without a court order ``one
foreign citizen abroad making a telephone call to another foreign
citizen abroad about terrorism.''
Now, this is something all of us support, every one of us. But what
the Vice President did not mention--and what rarely gets discussed--is
the Protect America Act actually went much further. It authorized new
sweeping intrusions into the privacy of countless Americans. The bill
the Senate is considering to replace the PAA does not do nearly enough
to safeguard against Government abuse. So this amendment--the Feingold-
Webb-Tester amendment--would provide those safeguards, while also
ensuring that the Government obtains the information it needs to fight
the terrorists who threaten us.
I am, of course, extremely pleased to have the support and
cosponsorship of Senators Webb and Tester, as well as Senators Biden,
Sanders, Kennedy, Menendez, Akaka, Dodd, and Obama. We have worked
closely together to develop a workable solution to a difficult
problem--a solution I hope the Senate can support.
Now, this is not about whether we will be effective in combating
terrorism. This amendment in no way hampers our fight against al-Qaida
and its affiliates. This is about whether Americans at home deserve
more privacy protections than foreigners overseas. This is about
whether anyone outside the executive branch will have a role in
overseeing what the Government is doing with all the communications of
Americans it collects inside the United States.
We all know the stakes are very high. I want my colleagues to
understand the impact the Intelligence Committee bill being considered
on the Senate floor could have on the privacy of Americans, because
that is exactly what our amendment addresses. This bill does not just
authorize the unfettered surveillance of people outside the United
States communicating with each other; it also permits the Government to
acquire those foreigners' communications with Americans inside the
United States, regardless of whether anyone involved in the
communication is under suspicion of any kind of wrongdoing at all.
There is no requirement the foreign targets of this surveillance be
terrorists, spies, other types of criminals or even agents of a foreign
power. The only requirements are that the foreigners are outside the
country and that the purpose of the surveillance is to obtain ``foreign
intelligence information,'' a term that has an extremely broad
definition covering anything involving the foreign affairs of the
United States.
The key, of course, is that no court reviews these targets
individually. Only the executive branch decides who fits these
criteria. So the result is many law-abiding Americans who communicate
with completely innocent people overseas will be swept up in this new
form of surveillance, with virtually no judicial involvement and
virtually no judicial oversight. That is astounding, isn't it? Yet
there has been very little discussion of it.
The administration has told us over and over this law is needed to
capture foreign-to-foreign, terrorism-related communications. In the
State of the Union last week, President Bush defended this law by
saying:
To protect America, we need to know who the terrorists are
talking to, what they are saying, and what they are planning.
Even the administration's illegal warrantless wiretapping program, as
described when it was publicly confirmed in 2005, at least focused on
particular al-Qaida terrorists. But what we are talking about now is
different. This is the authority to conduct a huge dragnet that will
sweep up innocent Americans at home, combined with an utter lack of
oversight mechanisms to prevent abuse.
These incredibly broad authorities are particularly troubling because
we live in a world in which international communications are
increasingly commonplace. Thirty years ago, it was very expensive and
not very common for most Americans to make an overseas call. Now,
though, particularly with e-mail, such communications are commonplace.
Millions of ordinary and innocent Americans communicate with people
overseas for entirely legitimate personal and business reasons.
Technological advancements, combined with the ever more connected world
economy, have led to an explosion of international contacts. Americans
call family members overseas; students e-mail friends they met while
they were studying abroad; businesspeople communicate with colleagues
or clients overseas.
In fact, recently released declassified responses to congressional
oversight questions highlight how broad these authorities are. The
executive branch was asked whether it could acquire all the calls and
e-mails between employees of a U.S. company and a foreign company the
U.S. Government is targeting, with no requirement to get a warrant and
no requirement that there be some link to terrorism or a specific
threat against the United States. The administration did not deny this
would be entirely legal under the PAA.
So any American who works at a company that does business overseas
should think about that.
Americans should also think about the testimony of the DNI himself,
in which he said the PAA would authorize the collection of all
communications between the United States and overseas. In other words,
the Government
[[Page S569]]
has the authority to collect all international calls and e-mails into
and out of the United States--every last one.
We often hear from those who want to give the Government new powers
that we just have to bring FISA up to date with new technology. But
changes in technology should also cause us to look closely at the need
for greater protection of the privacy of our citizens.
If we are going to give the Government broad new powers that will
lead to the collection of much more information on innocent Americans,
we in the Senate have a duty to provide the necessary safeguards
against abuse. That, of course, is what the Feingold-Webb-Tester
amendment would do. It allows the Government to acquire all the
communications of foreign targets communicating with other foreigners
overseas. It also allows the Government to acquire all the
communications of overseas terrorists, but it sets up additional
safeguards--additional checks and balances--for communications of
foreign targets the Government ultimately determines involves someone
in the United States.
The amendment has several components. But let me reiterate that the
amendment would permit the Government to freely acquire and share all
foreign-to-foreign communications without any court oversight. This is,
in fact, an enormous change from the pre-PAA law, and this amendment
leaves those new authorities intact.
Let me quickly describe how the amendment would work. First, when the
Government knows in advance that a foreign target is communicating with
someone in the United States, it permits the Government to acquire,
without a court order, those communications involving terrorism or
suspected terrorists or if someone's safety is at stake. It permits the
Government to acquire any other communications into the United States
with a court order. The FISA Court would review and approve procedures
for making these determinations. As I said, the Government could
continue to acquire and use any communications its foreign targets have
with other foreigners overseas. That surveillance would continue,
again, without any court oversight. Our amendment permits that.
The second part of this proposal recognizes it is frequently not
possible for the Government, in advance, to determine whether a
particular communication is a purely foreign communication or involves
one end in the United States. Thus, the amendment specifies that when
the Government does not know in advance with whom a foreign target is
communicating, it can acquire all the target's communications without
an individualized court order--all of them.
But at some point--and this is one of the keys to our amendment--the
Government may realize it has acquired a communication with one end in
the United States based on procedures that are developed by the
executive branch and reviewed and approved by the FISA Court. Under our
amendment, it must then tag or segregate the U.S.-end communication in
a separate database.
Now, we know this tagging process is feasible because the Government
recently declassified the fact that it does something similar with
information obtained under the PAA. The Government can then access,
analyze, and disseminate any of these tagged U.S. communications if
they involve terrorism or a suspected terrorist or if someone's safety
is at stake. All they have to do is this: They have to simply notify
the FISA Court after the fact and provide a brief certification that
one of these circumstances apply. There is no requirement that these
communications be destroyed, in case they include information that may
later prove to be useful. The other tagged communications can also be
accessed, analyzed, and disseminated if the Government obtains a court
order.
The amendment also ensures there is independent oversight of this
process. If the FISA Court has any concerns that the terrorism or
emergency certifications are being abused, it has authority to ask for
additional information, and to limit future access to certain
communications if it ultimately determines the Government's
certifications to the court are clearly erroneous.
Now, I do understand this amendment imposes a new framework that may
take some time to implement. That is why the amendment would not
require the Government to implement this new system for up to a year
after enactment. I think that is plenty of time to work out any
problems and get these procedures up and running.
The amendment also contains a critical oversight provision. It
directs the inspectors general of the Department of Justice and the
Department of Defense to audit the implementation of compliance with
this amendment. These IGs as well as the FISA Court will have access to
the American communications that the Government has acquired to make
sure the authorities are not being abused.
Taken together, these provisions ensure that we know when Americans'
communications are being collected so there is some baseline
information available to the FISA Court, Congress, inspectors general,
and other independent monitors for tracking impact of the legislation
on Americans' privacy.
Tracking this type of information is also good for national security.
We have heard the President tell us repeatedly in defense of his so-
called terrorist surveillance program that if there are people inside
our country who are talking with al-Qaida, we want to know about that.
This amendment takes him at his word, and it requires him to set up
procedures for identifying those communications in the United States
where it is reasonably practical.
We have been hearing for years now that the U.S. Government needs
authority to wiretap foreign terrorists outside the United States
without individual court orders. This amendment permits that. To take
one example, if the U.S. Government has targeted a member of al-Qaida
overseas, under this amendment it can acquire all of that target's
communications--all of them. If it determines the particular
communication is with someone in the United States, the Government
would tag it and it could access and disseminate it as long as the FISA
Court is simply notified after the fact with a brief certification.
That kind of focused, terrorism-related surveillance--the type of
surveillance we most want our Government to be engaging in--would
continue absolutely unabated. On the other hand, the amendment provides
safeguards in case the Government is, in fact, conducting massive
dragnet surveillance of communications with people in the United
States. In that situation, yes, this amendment would then impose the
oversight that is desperately needed. It will make sure that in
situations not involving terrorism or personal safety, the FISA Court
will play its important role in overseeing the Government's use of
communications involving Americans. In other words, it will make sure
these authorities are not abused.
We have heard a lot today about minimization procedures, which are
supposed to protect against unnecessary disclosure of information about
Americans' communications the Government collects, and the importance
of giving the FISA Court power to enforce compliance with them. I
strongly support that effort. I tried to initiate this issue in the
Intelligence Committee. It has been very effectively taken up in the
Judiciary Committee by the Senator from Rhode Island as well as the
Senator from New York, and it is extremely important that we prevail in
that amendment to get those protections. But the supporters of the
Intelligence Committee bill claim that minimization procedures are
enough to protect Americans' privacy. In fact, the minimization
requirements in the Foreign Intelligence Surveillance Act are quite
weak. They permit the widespread disseminations throughout the U.S.
Government of information about U.S. persons if it is deemed foreign
intelligence information which, again, is very broadly defined, and
they permit dissemination of the identities of these U.S. persons if
``necessary to understand foreign intelligence information or assess
its importance''--also a very loose standard.
Now, we know from our experience in the nomination hearing of John
Bolton to be United Nations Ambassador how easy it is for Government
officials to obtain access to those identities. And when the FBI
receives reports referring to a U.S. person, according to recently
declassified Government documents, it
[[Page S570]]
will ``likely request that person's identity'' and will ``likely be''
the requirements for obtaining it. There are other minimization
requirements and Government regulations, the details of which are
classified. We know in any event that those can be changed at any time.
Minimization is simply inadequate in the context of these broad new
authorities. More is needed.
The amendment I have developed with Senator Webb, Senator Tester, and
others is an extremely balanced and reasonable approach to addressing
one of the most serious problems with this legislation. It gives the
Government full access to foreign-to-foreign communications without any
court oversight. And it provides access to communications between a
foreigner and an American, if there is a terrorism link or if someone's
safety is at stake, without the requirement of a court order. In other
words, this amendment gives the administration what it asked for when
it demanded these massive new powers. So when the Vice President says
we need to pass legislation that permits warrantless wiretapping of
``one foreign citizen abroad making a telephone call to another foreign
citizen abroad about terrorism,'' this amendment totally permits that.
When the minority leader says the Government needs to be able to
``freely monitor new terrorist targets overseas,'' this amendment
totally permits that as well.
But this amendment also provides safeguards to make sure that
Americans' basic rights are being protected. Too many communications of
innocent Americans are going to end up in Government databases under
the PAA and under the Intelligence bill for us to ignore this very
serious problem.
Any Senator who believes that Americans here at home deserve more
privacy protections than foreigners overseas should support this
amendment, and any Senator who believes the executive branch should not
be granted far-reaching surveillance authorities involving Americans
without independent oversight should support this amendment as well.
At this time I ask unanimous consent that the Senator from Montana,
Senator Tester, be recognized to speak on this amendment, and after he
has concluded his remarks, that the Senator from Virginia be
recognized. Both of these presentations would be allocated from the
time I control on this amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. FEINGOLD. Mr. President, let me say how grateful I am to the
Presiding Officer, Senator Webb, and the next speaker, Senator Tester,
new Members of the Senate who have delved into this very difficult
subject and who have tried to achieve the right balance. I don't know
of any Senators who are more concerned about protecting the lives of
Americans from terrorists, but they also want to make sure that we get
this right while protecting the privacy of Americans. So I thank both
of them.
I yield to the Senator from Montana.
Mr. TESTER. Mr. President, I thank the Senator from Wisconsin for his
fine work on this amendment. My comments today will indicate my full
support for it. I hope this body uses its wise judgment to put this on
the Intelligence bill as it comes forth. I think it is critically
important that we move this amendment forward to protect American
citizens from unwarranted wiretapping.
Let me say I am very glad we finally reached an agreement on the
amendments to the Intelligence Committee bill that would replace
current law, that current law being the Protect America Act. I voted
against the Protect America Act this last August because it included
measures that would permit the Federal Government to conduct
warrantless wiretapping and intercept innocent Americans'
communications. We all recognize the need for our Government to have
the necessary tools to keep us safe. That is at the forefront in all of
our minds. At the same time, we must do this in a way that protects our
civil liberties and constitutional rights to privacy. A number of
amendments have been offered with that goal in mind, including the one
I rise to talk about today: the Feingold-Webb-Tester amendment.
This amendment would require that all inadvertent surveillance of a
U.S. person--someone who is a U.S. citizen, a legal permanent resident,
or a U.S. corporation--be tagged and sequestered. Right now, under the
Protect America Act and under the Intelligence Committee bill that we
are currently debating, the Government would be authorized to have
unfettered surveillance of all communications of all people outside of
the United States without a warrant. This access would also be extended
to Americans here in the United States at the other end of that phone
call or e-mail message. Americans abroad or those who receive
communications from abroad could be wiretapped without a warrant. That
deficiency is what this amendment addresses.
Let me be clear. This amendment does not stop surveillance from
happening; it merely sets a higher threshold for access to
communications that involve Americans. Let me repeat that. It sets a
higher threshold for access to communications for those that involve
Americans.
The Feingold-Webb-Tester amendment will not impede the collection of
foreign intelligence information or compromise our national security.
It would merely require that intelligence intercepted overseas of an
American citizen's communications would have to be tagged and
sequestered before it could be accessed. To be accessed, the
intelligence community would have to have a specific warrant to review
Americans' overseas communications.
Why is this necessary? Because in the past, the administration
implemented a warrantless surveillance program which severely
encroached upon our rights against unauthorized search and seizure.
Under the Protect America Act, when we monitor foreign
communications, there is no requirement that anyone involved in the
communication be under any suspicion of wrongdoing. As a result, simply
communicating with someone in a foreign country opens any American to
surveillance. This is most often the case when a conversation starts
abroad and ends up with someone in the United States. Why? Because the
Government must meet only two criteria: that at least one party to the
communication be outside of the United States, and that the purpose of
the surveillance is to obtain foreign intelligence.
This overreaching protocol is even more expansive than the
administration's illegal warrantless wiretapping program which is
focused on people targeted because of their involvement with suspected
terrorists. I am opposed to the widespread wiretapping and surveillance
of innocent Americans.
The Director of National Intelligence has openly stated that the
current law, the Protect America Act, allows full collection of all
international communications into and out of the United States, well
beyond what the Government says it needs to protect the American
people. Further amendments will be offered during the course of this
debate that explicitly state such widespread full collection of all
international communication is not authorized. However, as it stands,
any time you communicate with someone overseas by e-mail or by phone,
your conversation could very well end up in a Government database
somewhere.
These days, international communications are commonplace. Many
Americans have friends and family living overseas studying or for
business or vacationing. When they return, they often keep in touch
with the friends they have made while living abroad. For example, if
you are on a vacation in Europe and call home to check on your elderly
parents, the entire conversation could get caught in the crosshairs of
this foreign surveillance program. That is not right and it does not
make any sense. It opens innocent Americans to the unrestricted
surveillance of wholly innocent conversations by the Federal
Government. This is not what Americans expect or deserve.
We must act to ensure that such communications caught in the widely
cast net of surveillance are segregated or specifically designated so
that privacy concerns can be minimized. This amendment, the Feingold-
Webb-Tester amendment, would require that this information be kept
apart as a way to protect the privacy rights of those people who
innocently find themselves under surveillance. The content would not be
destroyed, but investigators
[[Page S571]]
would have to go through additional steps in order to access it in the
future.
The Foreign Intelligence Surveillance Act is meant for foreign
surveillance. Our amendment reiterates that focus and it protects
Americans from the accidental but very real intrusion of our right to
privacy. I don't want my granddaughter, my wife, your kids, or any
other Americans to have their communications monitored, stored away,
and then easily accessible at a later date. This amendment ensures that
doesn't happen.
I urge my colleagues to support this amendment. I think it is
critically important for the success of this bill and to protect
innocent Americans' civil liberties.
Mr. President, I yield the floor.
The PRESIDING OFFICER (Mr. Feingold). The Senator from Virginia is
recognized.
Mr. WEBB. Mr. President, I also rise in support of this amendment,
which I am very proud to be cosponsoring along with the Presiding
Officer and Senator Tester. I appreciate also the support of a number
of other Members of this body on this bill.
I wish to start by saying I consider myself to be very much a realist
when it comes to the intelligence services in the United States and
when it comes to the use of classified information. I got my first
security clearance when I was 17 years old. I have been involved in the
intelligence world all of my life. When I was Secretary of the Navy, I
was privileged to have ``black'' security clearances in a number of
areas with some highly sensitive information. I understand the
complexities of this environment.
I also am very sensitive to the massive instantaneous flow of data
that now exists in today's world that makes it essential we have more
rapid procedures in place in order to intercept key transmissions. But
that also gives us the responsibility to ensure that with this higher
volume of communication, we don't allow mistakes and abuse, because
that potential also rises.
Simply stated, this amendment is designed to allow our Government on
the one hand to aggressively fight terrorism but, on the other, to
protect our vital constitutional rights and our system of checks and
balances.
This amendment will neither stop nor slow down any of our vital
intelligence activities. I wish to reemphasize that. There is nothing
in this amendment that will slow down the ability of our intelligence
services to do the job they are supposed to do.
The American people have been following this debate. The law is a
complex law; we recognize that. But the arguments advanced by many in
this Chamber have not focused fully on the broad constitutional issues
about which Americans have concerns. We care about keeping our Nation
safe from further terrorist attack. But we also must care just as
deeply in this body about making sure our Government's surveillance is
done in a way that is consistent with our Constitution.
I agree with my colleagues--many of whom sit on the Intelligence or
Judiciary Committees--this law needs to be updated for all the reasons
I mentioned. I am very proud of our Government's trained professionals
who have worked so tirelessly for the last 6\1/2\ years, since 9/11, in
their effort to help keep our country safe.
But while the means of electronic communication surveillance have
rapidly modernized, the speed and overwhelming volume of those
communications still requires us to maintain a balanced Federal system,
with proper checks and balances against the improper use of
governmental authority. The broader the governmental authority, the
greater is our responsibility to ensure this authority is narrowly and
properly applied.
The watchwords of this debate, from our perspective, are: Safety.
Security. Fighting terrorism. But also oversight--oversight of the
executive branch, proper checks and balances. Those watchwords should
guide us.
The Senator from Wisconsin has completed an exhaustive explanation of
the nuts and bolts of this amendment. The Senator from Montana has
added to that. I will not belabor their explanations of those finer
points. But I emphasize our amendment will do what the American people
have been demanding: restore a proper system of checks and balances in
our Government's surveillance program. Every Member of this body--and
every American, no matter which political party or persuasion--supports
the fundamental bedrock concept of checks and balances, concepts we
have captured in this amendment's provisions.
As I mentioned, this amendment allows our Government to fully and
effectively monitor communications in order to keep us safe from
terrorist attack, in every conceivable way. It permits our Government
to acquire any foreign-to-foreign communications. It permits our
Government to acquire any communications of suspected terrorists into
or out of the United States. It permits our Government to acquire any
communication where there is reason to believe the acquisition is
necessary to prevent death or serious bodily harm. And it permits our
Government to acquire any communications for law enforcement purposes
if the communication is evidence that a crime has been, is being or is
about to be committed.
Simply stated, the underlying bill in this amendment bestows on our
Government the essential tools to keep America safe.
On top of that, for the first time, this amendment would erect a
system of oversight and accountability for communications that do not
fall into the broad categories I have described.
What types of communications? They are communications that have one
end in the United States and generally involve innocent Americans who
are not targeted as suspected terrorists, as the Senator from Wisconsin
so aptly described. In other words, it could be anyone; it could be
you, it could be me. For those of us who have no ties to terrorism, an
updated FISA law should and must provide proper protections.
As the Senator from Wisconsin described in his remarks, under this
amendment, when the Government realizes it has acquired a communication
with one end of the United States, the Government must segregate that
specific communication in a separate database. For example, this could
take the form of a telephone call or an e-mail.
To emphasize, so there is no misunderstanding: Even after segregating
these communications, the Government can have full access to them; but
the Government cannot, and should not, have unfettered access to
communications of innocent Americans.
This amendment is quite simple. The inspectors general for the
Department of Defense and Department of Justice would be given access
to sequestered communications. These sequestered communications will
allow the inspectors general to see specifically which Americans the
Government surveilled or which specific communications were diverted
into Government hands for possible surveillance.
Using this information, the inspectors general would be required to
conduct audits of the implementation of the sequestration system and
determine the extent of the surveillance. I note the inspectors general
would employ staffs with appropriate security clearances. And at least
once per year, they must report their findings to the Senate and House
Committees on the Judiciary and Intelligence.
I believe we need this amendment for many reasons. For almost 7
years, the executive branch's surveillance program has operated in
almost total secrecy, often above the law and the Constitution, and
often above any review by Congress or the Foreign Intelligence
Surveillance Court. For almost 7 years, only the executive branch, and
perhaps a few isolated employees of telecommunications companies, have
known which Americans were being surveilled. This is unacceptable in a
constitutional system, whose Founding Fathers rejected the notion of an
executive branch with absolute, unchecked authority. In fact, Congress
rejected the notion of unchecked executive authority when it originally
passed FISA, after the Watergate scandal.
There are many arguments that may be leveled against this amendment.
I believe they hold no water. Some of them simply employ fear tactics
to cloud the issues of constitutional propriety.
First, some may contend the underlying bill already greatly expands
the authority of the FISA Court. But the problem is the pending bill
requires
[[Page S572]]
only a review of general surveillance processes. Administrations can,
and have, abused processes. A truly robust system of checks and
balances demands accountability and oversight over the specific
communications obtained by the Government.
This oversight is all the more critical because, for almost 7 years
now, the administration may have enjoyed completely unrestrained access
to the communications of virtually every American.
Do we know this to be the case? I cannot be sure. One reason I cannot
be sure is I have been denied access to review the documents that may
answer these questions, even about the process. A month ago, our
majority leader wrote to the Director of National Intelligence, asking
that all Senators be given access to the documents surrounding the
telecommunications companies' involvement in the administration's
surveillance program. To this date, that request has been denied.
The denial of this request is one more reason the Senate must bring
true accountability to our Nation's intelligence-gathering process. If
we do not ask the tough questions and demand true oversight, how will
we ever know the extent of Government surveillance or how many innocent
Americans have been listened to?
Second, some will argue a process of sequestering communications will
be far too cumbersome and, as the Senator from Wisconsin pointed out,
this is simply untrue.
Under current law, the Government already labels the surveillance
communications it collects.
Additionally, members of the Judiciary and Intelligence Committees
tell me that the segregation of these communications can be easily
accomplished. Finally, if our intelligence community needs additional
personnel or resources to accomplish this requirement, then the
Congress should promptly provide the necessary funds. Compliance with
the U.S. Constitution is not a matter of option; it is mandatory.
Third, some may contend that this amendment is a partisan ploy
designed to embarrass the intelligence community and the
administration.
Again, this is simply untrue. I would make the same arguments if the
current President belonged to my party. This amendment is not rooted in
partisanship. Rather, it attempts to protect the constitutional rights
of all innocent Americans.
Moreover, I recognize the tremendous work and sacrifices made by the
professionals in our intelligence community, as they aim to keep our
homeland safe from attack. But only through a robust system of checks
and balances can we ensure the good name of our intelligence
professionals and the work that they do.
In sum, I ask my colleagues to join in supporting this amendment. It
is time to lay aside our differences and do what is right, time for the
Congress to aggressively and responsibly assert its oversight
responsibilities.
I am reminded today of a famous quote from U.S. Supreme Court Justice
Cardozo. Analyzing our constitutional system of checks and balances, in
1935 Justice Cardozo wrote that executive branch ``discretion is not
unconfined and vagrant. It is canalized within banks that keep it from
overflowing.''
I urge my colleagues to recognize the importance of this amendment in
keeping our Nation safe while also restoring an appropriate system of
checks and balances to the FISA surveillance process.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Presiding Officer, in his capacity as a
Senator from Wisconsin, reserves the remainder of his time on this
amendment.
The Senator from Missouri is recognized.
Mr. BOND. Mr. President, I yield myself 5 minutes. I appreciate the
concern of my colleagues on the other side of the aisle. But there are
quite a few misconceptions and misinterpretations about the bill and
about the impact this proposed amendment would have.
Again, after the chairman speaks, there are a number of members of
the committee who wish to come and speak more about it.
The purpose of this bill is, and always has been, to enable the
intelligence community to act to target foreign terrorists and spies
overseas. To answer many of the contentions made, you cannot get a
certification to begin the process, unless there are reasonable
procedures to assure that the targeted persons reasonably are believed
to be located outside the State. Two, the procedures are consistent
with the requirements of the Fourth Amendment and do not permit
intentional targeting of any person known to be located in the United
States. In 2(a)(3), it says that a significant purpose of the
acquisition is to obtain foreign intelligence information.
Now, the statements that somebody who has gone abroad and is calling
back home to their children would be surveilled is beyond the pale. No.
1, there is a clear prohibition in the bill against targeting any U.S.
persons abroad without getting a FISA Court order saying there is
reasonable cause to believe, one, they are acting as an agent or
officer or employee of a foreign power; and, two, they have significant
information. What this amendment does, however, is strike the ability
to collect information on some foreign power that may be talking about
proliferation of weapons of mass destruction. Furthermore, it would
prevent collection on hostile states acting in a dangerous manner to
the United States.
Now, the amendment, as it is drafted, will have a totally unexpected
impact. It is difficult to explain, in an unclassified session, why
this amendment is unworkable. But it would say that if there is a
person reasonably believed to be located in the United States, such
communication shall be segregated, or specifically designated, and no
person shall have access to such communication except in accordance
with title I, which presumes that you have access to that information,
to determine whether it qualifies under the exceptions to the
prohibition.
In effect, you would have a requirement that any kind of incidental
communication from a person, from a foreign terrorist target, somebody
having information of foreign intelligence value or a possible
terrorist attack, who calls the United States or sends an e-mail, you
would have to track down and find out where every e-mail recipient may
be. You would have to identify people who might be collecting that
information and investigate whether they are in the United States; and
you would compile a significant amount of information on U.S. persons.
The whole reason it operates with minimization is to say there are
only certain communications which the intelligence community is
lawfully permitted to acquire, and which it has any desire to acquire,
because to acquire all the communications from all foreigners is an
absolutely impossible task.
I cannot describe in a public setting how they go about ascertaining
which collections are important. But to say that if Osama bin Laden or
his No. 3 man--whoever that is today, after the last No. 3 man in al-
Qaida was wiped out--calls somebody in the United States, we cannot
listen in to that communication, unless we have an independent means of
verifying it has some impact or threats to our security or a terrorist
threat.
That is the most important communication we need to intercept. The
Protect America Act has kept our country safe because if somebody calls
in with information on a terrorist threat, then the FBI and local law
enforcement officials can go to work on that threat immediately and get
additional criminal authorities as needed. But that is the most vital
kind of information to get. We certainly should not be required to be
put in a lockbox, as this amendment would provide.
Finally, talking about expansion of surveillance powers, when FISA
was first adopted, most of the collection against foreign targets came
by radio, whether coming into the United States or going foreign to
foreign, and there was no limitation on it. There was no limitation on
intercepting radio communications.
What we have done in FISA is to impose significant new restrictions
on the collection of information that might be of foreign intelligence
value. We should change the definition of ``electronic surveillance,''
but we were not able to do so in this law so it would apply to
collection against other forms of communications.
[[Page S573]]
Suffice it to say, this bill before us, the bipartisan bill, is
carefully targeted, limited, covered with layers of protection and
oversight to assure minimization, as I previously suggested. Whether
you believe the inspector general of NSA, the inspector general of the
DNI, the Department of Justice will perform adequate oversight or not,
you can be sure the Intelligence Committee will do so.
I yield the floor and reserve the remainder of our time.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from Wisconsin.
Mr. LEAHY. Mr. President, will the Senator yield to me? I was going
to ask that I be allowed to proceed, I don't think it will be more than
5 or 6 minutes, as though in morning business to give a eulogy, with
the time not to be taken from either side.
Mr. FEINGOLD. I ask the Senator if I can quickly respond to the
Senator from Missouri.
Mr. LEAHY. Of course. I understand.
Mr. FEINGOLD. Mr. President, responding to the comments just made,
the Senator from Missouri, in responding to the Feingold-Webb-Tester
amendment, tried to indicate that this will prevent us from going after
spies and others from foreign states. First, under our amendment, of
course the FISA Court can grant permission to wiretap spies. And, if it
is a foreign state that is involved in terrorism, there would be no
permission required under our amendment to wiretap the officials
involved. It would not affect that.
It was also suggested this would somehow be very cumbersome. That
suggests we are requiring permission for all foreign communications,
but that is not true. Our amendment only affects, and only in a minimal
way, communications from a foreign place to someone in the United
States. That is not cumbersome.
Third, the Senator from Missouri suggests we will have to make the
Government sift through all kinds of e-mails to figure out whether they
can get at individual communications. That is the opposite of the way
this works. This amendment creates an assumption in favor of
collection. In other words, if the Government does not know for sure if
a communication is foreign or domestic, the assumption is it is foreign
until there is some indication that it is domestic. It is only then
that the limited oversight provided by this amendment kicks in.
The final example the Senator from Missouri used shows how
questionable these arguments are. If you can believe it, the Senator
argued that if Osama bin Laden called someone in the United States,
somehow our amendment would affect that. That is obviously false. Our
amendment specifically allows an exception for any conversation by
anyone in the United States with a terrorist overseas, without any
special FISA Court permission. That argument shows the weakness of the
opposition. The idea that the Senators from Virginia and Montana and I
would suggest an amendment to not allow us to listen in on Osama bin
Laden gives you a little clue that the arguments against this amendment
are not based on the amendment we offered.
I thank the Senator from Vermont very much for understanding. I
wanted to quickly respond to those arguments. I yield the floor and
reserve the remainder of my time.
Mr. CARDIN. Mr. President, may I ask the Senator from Vermont to
yield for a moment? I ask unanimous consent that I be recognized after
the Senator from Vermont.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. LEAHY. Mr. President, first, I might say, in this debate the
Senator from Wisconsin is absolutely correct. I was there during some
of the debate on this issue and I know what he means.
(The remarks of Mr. Leahy are printed in today's Record under
``Morning Business.'')
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, with the forbearance of the Senator
from Maryland, I wish to place our situation in context because we have
a number of things going on, and I would like the Parliamentarian to
explain it to me so it is very clear to all of us.
Before I do that, I am reading at the direction of the leader his
unanimous consent request, and that is to have the time from 5:20 p.m.
to 5:30 p.m. be reserved for debate on the motion to invoke cloture on
the motion to proceed to H.R. 5140, the economic stimulus bill;
further, that the time be equally divided and reserved for the two
leaders or their designees, with the Republicans controlling the first
5 minutes and the majority controlling the final 5 minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ROCKEFELLER. Now I would like to ask the Parliamentarian to help
me be sure and our Members on the floor and others what our situation
is. The chairman of the Judiciary Committee has just given an
extraordinarily moving tribute to a very dear friend of his--
extraordinarily moving--but that came in between. Now, the Senator from
Pennsylvania has come upon the floor and he wants to say certain
things, and there are people in the gallery to whom this would have a
direct effect, so there is a temptation to go along with that. On the
other hand, we are still on the Feingold amendment. I believe that to
be the pending amendment, if the Parliamentarian declares that to be
the case.
On the other hand, the person who is listed second on the order of
the day is the Senator from Maryland. In the matter of how many years
we should wait before going back to this, if we do, he was in fact the
second person on the order of the day for the second amendment. He is
here. He has been waiting and he wants to present that amendment. So it
is 4 o'clock and we have a variety of things before us, and I wish the
Parliamentarian to set us straight as to where we are.
The ACTING PRESIDENT pro tempore. The Feingold amendment is the
pending amendment. There is time remaining for debate on that
amendment. However, an order has been entered for the Senator from
Maryland to offer his amendment, on which there is 60 minutes of
debate, and that is to come next.
Mr. ROCKEFELLER. I don't know how much time is remaining on both
sides with respect to the Feingold amendment.
The ACTING PRESIDENT pro tempore. On the Feingold amendment, the
majority has 7 minutes 39 seconds, and those opposing have 37 minutes
27 seconds.
Mr. ROCKEFELLER. If this Senator does his mathematics, that takes us
already past the time of the unanimous consent.
The ACTING PRESIDENT pro tempore. The Senator is correct.
Mr. ROCKEFELLER. Of course, we don't have to use all our time.
Therefore, I would encourage our colleagues not to do so, and yet to
get out the full body of the amendment.
I appreciate the response of the Parliamentarian, the Presiding
Officer, and I yield the floor.
Mr. LEAHY. Mr. President, I support providing the Government with the
flexibility it needs to conduct important surveillance of overseas
targets. Both the Intelligence Committee's and the Judiciary
Committee's versions of this bill would allow the Government to
intercept all communications of overseas targets, including those
communications with people inside of the United States. However, this
also means that the Government will necessarily be acquiring the
communications of innocent Americans.
I commend Senators Feingold, Webb, and Tester for crafting an
amendment that will help to safeguard the privacy rights of innocent
Americans whose communications are acquired during the surveillance of
overseas targets. This new FISA legislation will grant the Government
authority to conduct surveillance on overseas targets concerning
``foreign intelligence.'' This term covers a broad range of subjects
and the new authority would permit the Government great latitude to
intercept communications without a court order. Once Americans'
communications are collected, they can be shared widely with other
agencies. This Feingold-Webb-Tester provision permits unfettered
acquisition of foreign-to-foreign communications and of communications
of suspected terrorists into or out of the United States while creating
safeguards for communications not related to terrorism that
[[Page S574]]
the Government knows have one end in the United States. If the
Government is not able to determine beforehand whether a communication
will be into or out of the United States, it can acquire all of those
communications without prior court approval. What this amendment does
is add the very reasonable protection that if it is later determined
that a communication involves a person in the United States, measures
will be taken to segregate that information to assure that privacy is
protected appropriately. There are exceptions even then to make sure
that national security is never placed at risk. If the communication
involves terrorism or a suspected terrorist, if someone's safety is at
stake, the Government can then access, analyze and disseminate that
communication.
This amendment is an important check to ensure that the new authority
we will grant with this bill is used as intended. Without it, many law-
abiding Americans who communicate with completely innocent people
overseas will be swept up in this new form of surveillance, with
virtually no judicial involvement or oversight.
The ACTING PRESIDENT pro tempore. The Senator from Maryland.
Mr. CARDIN. Mr. President, let me thank my friend from West Virginia
for clarifying the floor circumstances as best we can.
Amendment No. 3930 to Amendment No. 3911
Mr. President, I ask unanimous consent to lay aside the pending
amendment, and I call up amendment No. 3930.
The PRESIDING OFFICER (Mr. Levin). Without objection, it is so
ordered. The clerk will report.
The legislative clerk read as follows:
The Senator from Maryland [Mr. Cardin], for himself, Ms.
Mikulski, Mr. Leahy, Mr. Rockefeller, and Mr. Salazar,
proposes amendment numbered 3930.
The amendment is as follows:
(Purpose: To modify the sunset provision)
On page 54, line 16, strike ``2013.'' and insert the
following: ``2011. Notwithstanding any other provision of
this Act, the transitional procedures under paragraphs (2)(B)
and (3)(B) of section 302(c) shall apply to any order,
authorization, or directive, as the case may be, issued under
title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by this Act, in effect on December 31,
2011.''.
Mr. CARDIN. Mr. President, first let me thank my colleagues for their
patience. We are trying to get through a series of amendments on the
FISA legislation.
The amendment I am offering is one that was approved by the Judiciary
Committee, one that I think is very important to this legislation
moving forward, and one which would establish a 4-year sunset for
congressional review. I am proud that my cosponsors of this amendment
include Senator Leahy, Senator Rockefeller, Senator Mikulski, and
Senator Salazar, and I thank the distinguished chairman of the
Intelligence Committee, Mr. Rockefeller, for his leadership and for his
help in regard to the amendment I am bringing forward.
I wish to go back a little in time to when the original FISA statute
was passed. During that period of time, we had recently come out of
Watergate. There were certainly indications of warrantless surveillance
done on Americans because of their disagreement with the administration
in power, there were indications of warrantless surveillance of
individuals because they happened to disagree with U.S. policy in
Vietnam, and there was genuine concern that we had not balanced
properly the Government's need to obtain information in order to keep
us safe and the protections of the civil liberties of the people who
live in our own country. So we tried to enact a statute that would
provide balance in 1978. There was the Church committee report, and in
1978 Congress passed the FISA statute.
I want to start by quoting from one of our colleagues, Senator
Kennedy, and what he said in 1978 about the original passage of the
FISA statute--the Foreign Intelligence Surveillance Act of 1978. He
said:
The complexity of the problem must not be underestimated.
Electronic surveillance can be a useful tool for the
government's gathering of certain kinds of information; yet,
if abused, it can also constitute a particularly
indiscriminate and penetrating invasion of the privacy of our
citizens. My objective over the past 6 years has been to
reach some kind of fair balance that will protect the
security of the United States without infringing on our
citizens' human liberties and rights.
The Attorney General at that time for the Carter administration was
Griffin Bell. Attorney General Bell said:
I believe this bill is remarkable not only in the way it
has been developed, but also in the fact that for the first
time in our society the clandestine intelligence activities
of our government shall be subject to the regulation and
receive the positive authority of a public law for all to
inspect. President Carter stated it very well in announcing
this bill when he said that ``one of the most difficult tasks
in a free society like our own is the correlation between
adequate intelligence to guarantee our Nation's security on
the one hand, and the preservation of basic human rights on
the other.'' It is a very delicate balance to strike, but one
which is necessary in our society, and a balance which cannot
be achieved by sacrificing either our Nation's security or
our civil liberties.
A lot has happened since 1978 when that law was passed. We know that
technology has changed and the law has been amended over its life, but
we still have the same problem: how to balance our need to get
information, which is important for the protection of our Nation, and
the civil liberties of our citizens.
I am proud to represent the people of Maryland. I am proud of the
work done by NSA--the National Security Agency--which is located in
Maryland. I have visited the National Security Agency on many
occasions. These men and women, dedicated to a mission of protecting
our country by getting lawful information which is important to
preserve the security of America, do their job with great distinction
and great dedication to our country.
But we have seen in recent years the difficulty in complying with the
FISA statute. Information obtained from foreign sources, because some
communications come through America with the new technologies and the
way in which communications are now handled today, is different than it
was back in the 1970s. So we need to pass this statute. I think
everyone here is prepared and understands the need for us to modernize
the FISA statute, but we have to get it right.
Let me mention one debate that has been taking place on this floor
that the chairman and the Republican leader on the Intelligence
Committee have talked frequently about, as has the leadership on the
Judiciary Committee, and that is the minimization rules. We think we
have it right now, but we are still concerned about the minimization
rules. It is interesting to go back in history and look at what the
Senate Judiciary Committee said in 1978 about the concerns of Americans
being caught in the web but not being the main focus of our target for
surveillance. The Senate Judiciary Committee observed:
Also formidable, although incalculable, is the chilling
effect which warrantless electronic surveillance may have on
the constitutional rights of those who were not targets of
surveillance, but who perceived themselves, whether
reasonably or unreasonably, as potential targets. Our Bill of
Rights is concerned not only with direct infringements on
constitutional rights, but also with Government activities
which effectively inhibit exercise of these rights. The
exercise of political freedom depends in large measure on
citizens' understanding that they will be able to be publicly
active and dissent from official policy within lawful limits,
without having to sacrifice the expectation of privacy that
they rightfully hold. Warrantless electronic surveillance can
violate that understanding and impair that public confidence
so necessary to an uninhibited political life.
That is what we are concerned about here. We want to make sure we get
this right, and we know that over time we have seen abuses of the
statute. We are now concerned about what happens when an American is
targeted. They didn't think about that before, about someone traveling
abroad. I congratulate the committee for bringing forward a bill that
does protect Americans who are traveling abroad and are a target of
surveillance by requiring cause be shown. That is how it should be.
I am very concerned about the debate we are having in this body
concerning the exclusivity in the statute we are going to pass. There
has been a long history of debate as to how much article II power the
President has in regard to warrantless surveillance. This is not a new
subject. But I must tell you, I think this administration took that
issue to a new level. I believe the courts agree that the President
went
[[Page S575]]
too far. So it is our responsibility to try to get this right so that
we have the rule of law behind what the administration does, rather
than trying to use article II power, which in fact can very easily be
abused.
There is another issue I want to comment on briefly--and I will come
back to the sunset provisions as to why I think the 4 years is so
particularly important in this legislation--and that is the immunity
issue and the retroactive immunity. Retroactive immunity concerns me. I
would hope it would concern every Member of the Senate. It concerns me
not just as it affects the telephone companies in their cooperation
with this administration--because there has been clear evidence that
they operated under the authority that the administration had this
power and that they were helping their country--but what concerns me
about granting them retroactive immunity is the impact it will have on
the courts' oversight of the abuse of privacy by the administration or
private companies.
We need the courts actively involved here. We don't get this right
all the time, and certainly the administration doesn't get it right all
the time. We need the courts involved in these issues. If we grant
retroactive immunity, we are saying we reserve the right to take away
the third branch of Government--the judicial branch of Government--for
making determinations as to whether an individual's right of privacy is
violated. I don't think that is something we want as a legacy of this
Congress. That is why many of us are concerned about using retroactive
immunity.
There are other options that are out there. I see my distinguished
colleague from Pennsylvania, Senator Specter, is here. He has a
proposal that I think would take care of the concerns of the telephone
companies yet protect the integrity of the courts. I congratulate him
for that recommendation, and I think he has now refined it to the point
that I hope it will garner the type of support necessary for approval
by this body.
Senator Feinstein has a proposal that, rather than just giving
immunity, would at least have the courts make the determination as to
whether the telephone companies are entitled to this relief; whether
they acted in good faith. So at least we have the courts involved in
this decision rather than taking away their authority. I think either
of those recommendations would be a major improvement over giving
retroactive immunity to telecommunication companies.
But let me get to the specifics of the amendment I have offered,
which is the 4-year sunset on the provisions. Again I am pleased to be
joined by several of our colleagues. It is interesting to point out
that sunsets have been part of the FISA statute for a long time. When
the USA PATRIOT Act was passed, it contained a 4-year sunset. Now why
did we put a 4-year sunset in? We were worried about whether we got it
all right. This is something that required the continued attention of
the Congress and the administration. In fact, we reauthorized it with
significant changes and then put in another 3-year sunset, in this case
for one of the most controversial provisions. So this is something we
have done in the past.
The Protect America Act is a major departure from the PATRIOT Act. It
was passed hurriedly, and no one denies that. It was passed hurriedly
last August, and we weren't comfortable with what we did. The proof is
the bill now before us is a much better bill. Thank goodness we had the
sunset. The committee recognized the need for a sunset because they put
a 6-year sunset in.
Why do I think it is so important to change that 6 years to 4 years?
Let me tell you why: I think it is in our national interest that the
next administration taking office in January of 2009 be focused on this
issue, this vital issue of getting the intelligence information that is
critical to protect the safety of the people of this Nation but also to
protect the civil liberties of Americans.
I think it is vital that the next administration look at those
opinions that came out of the Attorney General's Office and the White
House and give a fresh look to it and try to figure out if there is not
even a better way to accomplish both the collection of information and
the protection of civil liberties.
If we continue the 6-year sunset, there will be no requirement for
the next administration to take a look at this statute. With a 4-year
sunset, it will come under the watch of the next administration.
It is very interesting that one of my colleagues talked about the
opportunity to review documents, and I believe the distinguished
chairman of the Intelligence Committee would agree with me--from the
fact that we had a sunset on the bill we passed in August, we got a lot
more attention from the administration on getting material. They
brought a lot of material into our office so we could review it. They
cooperated with us because they knew we had to act. If we include a 6-
year sunset, there will be no requirement for the next administration
to engage Congress on this issue. I want the next administration to
engage Congress on this issue.
We have seen the change in technology since we passed this bill in
1976, and technology is changing more rapidly than ever before. We do
not know the next way in which terrorists are going to be using it in
order to try to circumvent our detection as well as our laws. We do not
know that. So it is important for us to stay engaged so that we can
have the most effective tools in place, not using the article II power
of the President but having Congress engaged and making sure we have
the statutes correct.
It is another reason I think it is very important to have a 4-year
sunset. I know I am not telling you something you do not already know,
but the FISA statute gives the administration extraordinary powers and
very sensitive powers as it relates to the privacy of people here in
America and an issue on which we have to make sure we protect the
rights of our citizens.
So for all of those reasons, we want to stay engaged on this subject.
Again, I want to emphasize this is not a question of no sunset versus a
6-year sunset. I understand the administration wants no sunset. I can
understand that. The President probably would want no Congress. But the
Framers of our Constitution understood the importance of the
legislative branch of Government. It is rated as No. 1, article I.
I urge my colleagues to support this amendment. It is an amendment
that is offered in good faith. I would encourage my colleagues to
support the amendment.
I reserve the reminder of my time.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. This Senator would add an additional complication
but one which is necessary and highly important.
Senator Leahy, as I indicated, gave a very moving statement. We now
have two more Senators on the floor who wish to discuss equally tragic
circumstances with members of either the family or close friends in the
gallery, which means we cannot postpone, for a variety of reasons which
the senior Senator gave me.
I ask unanimous consent that we set the pending amendment aside
temporarily and first call upon the junior Senator from Pennsylvania
and then the senior Senator from Pennsylvania to make a few short
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered. The
junior Senator from Pennsylvania is recognized.
Mr. CASEY. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The remarks of Mr. Casey and Mr. Specter pertaining to the
submission of S. Res. 442 are printed in today's Record under
``Submitted Resolutions.'')
(The remarks of Mr. Specter pertaining to the introduction of S. 2591
are printed in today's Record under ``Statements on Introduced Bills
and Joint Resolutions.'')
Mr. SPECTER. Mr. President, I thank the managers of the bill for the
time.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, in the absence of the Senator from
Maryland, I yield myself 5 minutes from the time controlled by Senator
Cardin on his amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S576]]
Amendment No. 3930
Mr. ROCKEFELLER. Mr. President, this Senator supports the amendment
of the Senator from Maryland to revise the sunset provision of the bill
so that the new authority established under this act will expire after
4 years.
This Senator had originally started out supporting a 4-year sunset
because it seemed to make sense because it comes during the next
President's term in office.
This is supremely important legislation. There is no one--with the
exception of the administration--who has objected, no committee which
has objected to the idea of considering a sunset review. The reason is
very clear: One wants to make sure, when you are balancing foreign
intelligence collection, intelligence collection in general, and civil
liberties, that one has the right balance. The question before us today
is what date in the future makes the most sense for a sunset.
There are a number of new initiatives which are either proposed to be
started in this legislation or which will be started in this
legislation, and none of them are entirely predictable.
I think a 4-year sunset makes a lot of sense because it is so
important that we know what we are doing, that we know we are doing it
right, and that we know the intelligence community knows it is doing
its work correctly--I do not mean badly or superbly but simply that
they are getting it the way they want to do it and it is compatible
with the spirit of the law, that the Congress and the administration
are in sync on it. We do this before we settle this into permanent law.
This is all new. Everything changed on 9/11. Many considerations
under the law, particularly with respect to the gathering of
intelligence and the protection of privacy, changed. This is especially
important in light of the rapid pace of change in telecommunications
technology--one of the main reasons were are here today revising FISA.
I think we need to have a 4-year sunset amendment. I do think it is
important that the intelligence community, the Congress, and the
administration come back together in 4 years. Congress, obviously, can
bring it up anytime we want. On the other hand, if we do it this way,
with a 4-year sunset amendment, it obliges all participants to come to
participate. That is the way we get resolved what works and what does
not work, and we learn from the intelligence people, and they learn
from us, as to what we think is the best way to proceed.
So I do strongly support that amendment. It would take us to December
31, 2011. This four year period would give the intelligence community
ample time to move ahead but it also ensures that the decision on
permanency is made when Congress and the executive branch are prepared
to evaluate the legislation again. As I have indicated, I support the
amendment.
I yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. The Republican floor manager, I think by our
tradition, is to be recognized.
Mr. BOND. Mr. President, I thank the Chair.
I appreciate the opportunity to share a few views on the amendment.
Again, on this measure, as on the others, I have a number of my
colleagues who have indicated a desire to speak on it, so I am only
going to take a very few minutes.
But let's be clear: When this issue came before the Intelligence
Committee, we worked on a bipartisan basis to compromise. I think we
had, as I have said before, a very good compromise. Everybody gave. I
did not want any sunset. I felt providing our intelligence community
the ability to establish a good, strong, adequately protected but yet
effective means of intercepting foreign intelligence communications was
vitally important so the intelligence community would know they had
this ability.
Moreover, I have had the opportunity, in the last couple years, to
meet with many of our allies abroad. Our allies depend upon our ability
to intercept communications that lead to the disruption of terrorist
attacks in other countries.
Again, I ask my colleagues who want to know what the Protect America
Act has done to review the classified communication that the Director
of National Intelligence sent us saying how many times and where in
foreign countries we were able to provide vital information through our
collection of electronic signals to the governments that wanted to be
able to prevent terrorist attacks and were significantly enabled to do
so by means of our collection efforts. Probably the reason for keeping
it a permanent law was best expressed by the Attorney General, Mike
Mukasey. When he was asked about why we shouldn't have a sunset, he
said: The enemies, the Islamist terrorists who want to do us harm, do
not put a sunset on their fatwas, their orders to go out and kill
Americans and kill our allies and kill our troops abroad.
There is no immediate prospect of cessation of foreign terrorist
activities or proliferation of weapons of mass destruction or even
threats from countries that are absolutely hostile and dangerous to the
United States. To put an artificial time limit on it makes no sense.
I have a different view of what the Intelligence Committee should be
doing. One of the things we see, as we have discussed some of these
amendments, is that those of us on the Intelligence Committee have
special access to all this information, but we have a heavy
responsibility. We try to carry it out well. Every time we explain on
the floor what our intelligence activities are concerning, even in an
unclassified setting, the more we talk about it, the more our enemies--
those who would seek to do us harm--learn about our intelligence
collection capabilities. Bringing this back to the floor will enable
them, once again, to learn more about what we are doing and when we are
doing it.
Frankly, having a sunset that expires just before a new
administration is sworn in after the 2012 elections seems to me not to
make much sense. If there are changes needed in the Foreign
Intelligence Surveillance Act amendments of 2008, it is our job on the
Intelligence Committee to conduct continuing oversight. If there is a
problem with that activity, if it is inadequate or if it is not
properly regulated, then it is our job in our oversight hearings to
bring that to the floor and bring that particular fix or that
particular change that is needed to the floor immediately. We shouldn't
wait 6 years or even 4 years. If we need to fix it, we need to find out
what fixing is needed, and we need to take those steps at that time,
not wait for 4 years or 6 years. All we do by setting an artificial
time limit on it is to say to those who seek to do us harm: Well, if
you go past the deadline, who knows? Maybe the Congress will not be
able to adopt an extension. Maybe we will be able to communicate with
our operatives in the United States and elsewhere without surveillance.
It causes uncertainty in the intelligence community, and I believe it
is not wise to cut back on the compromise we reached on a bipartisan
basis in passing out the FISA amendments of 2008 by a 13-to-2 vote.
So I urge my colleagues to vote against this amendment.
I yield the floor, and I reserve the remainder of the time on this
side.
The PRESIDING OFFICER. The Senator from Maryland is recognized.
Mr. CARDIN. Mr. President, first, let me thank the distinguished
chairman of the Intelligence Committee for his support for this
amendment. He has helped in bringing it forward. Let me respond, if I
might, to Senator Bond's points.
First, let me point out that the cooperation we receive from the
executive branch is very much enhanced when they know we have to pass a
statute. All we need to look at is the cooperation we have received
over the last several years from this administration to know that when
we get to a point where Congress needs to act, we get the help of the
administration in bringing us on board.
As to the comments by the Republican leader on the committee that the
terrorists don't have sunsets, they also don't have a legislature. They
don't have democracy. They don't have any process that is open. They
have no respect for civil liberties. We fight for this Nation because
of what this Nation stands for. We know there are abuses of power, and
we have a responsibility to take action on them. Sunsets have worked on
the FISA statute.
[[Page S577]]
My colleague from Missouri has supported sunsets at different times
during the process. We had it in the PATRIOT Act, and in the renewal of
the PATRIOT Act we still have sunsets. We had sunsets on the original
Protect America Act, and the bill that came out of the Intelligence
Committee has a sunset in it.
I understand the administration is against sunsets. I understand
that. I don't agree with the administration's view and the way they use
the power that was given to them--that they thought was given to them.
I think they have abused it at times. Thank goodness we had oversight
to try to rein that in, and thank goodness we had the courts looking at
what they were doing.
So the point is whether it should be 6 years or 4 years. I think it
is critically important that the next administration work with this
Congress to take a look at how this administration used the power and
take a look at the legal opinions that were written so we have a
comfort level between Congress and the next administration on
protecting the security of America and protecting the civil liberties
of the people who live in this Nation. That is why I believe the 4-year
sunset is so important.
I respect the view of my colleague from Missouri as to the
predictability of statutes. We are not going to let the authorities
expire. We are going to carry out our responsibility. We know that.
There is not a person who is a Member of this body who disagrees with
giving the appropriate tools to the intelligence community.
As I said earlier, I am very proud of the work that is done at NSA in
the State of Maryland by dedicated men and women. They can't send out
press releases when they do things that are very important to our
country in protecting our security. They do a great job. We owe them
the type of support that includes a statute that is definitive and
makes sense and that we pass; also, that we continue to be their
partners and continue the oversight with the change in technology and
continue to work with the executive branch to make sure we get it
right.
I urge my colleagues to support the amendment. I reserve the
remainder of my time.
Mr. LEAHY. Mr. President, I think we all recognize that this
legislation would provide broad and untested new powers to the
executive branch. We are willing to do that in order to protect our
national security. But this surveillance does not just affect foreign
targets; it also affects the privacy rights of potentially millions of
American citizens. That is why it is so important that we get this
right. And that is why I support Senator Cardin's amendment, which
would reduce the sunset provision of this bill from 6 years to 4 years.
We are dealing with untested procedures; we have no assurance that
what we are doing now will properly protect national security or the
privacy rights of Americans. Many questions remain about how the new
authorities that Congress is prepared to grant will be implemented,
whether they will be effective, and--equally important--the extent to
which they will intrude on innocent conversation of Americans. As we
understand more about these authorities--and perhaps as technology
allows us to improve our approach to this important surveillance--the
executive branch and the Congress should reevaluate these sensitive
authorities.
There is too much here that is new and untested to allow the
authorities to go longer than even expiration of the next President's
term before requiring a thorough review. A 4-year sunset makes sense.
It will allow the next President 3 years of experience under these
authorities to monitor how these new powers are being carried out. And
it is an appropriate time for the Congress to evaluate whether the
legislation strikes the right balance between national security needs
and Americans' civil liberties.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. I thank the Senator from Maryland for his leadership on
the sunset issue. I ask unanimous consent that the pending amendment be
set aside.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Amendment No. 3915 to Amendment No. 3911
Mr. FEINGOLD. Mr. President, I call up amendment No. 3915.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wisconsin [Mr. Feingold], for himself and
Mr. Dodd, proposes an amendment numbered 3915.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To place flexible limits on the use of information obtained
using unlawful procedures)
On page 17, strike line 20 and all that follows through
page 18, line 11, and insert the following:
``(B) Correction of deficiencies.--
``(i) In general.--If the Court finds that a certification
required by subsection (f) does not contain all of the
required elements, or that the procedures required by
subsections (d) and (e) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the Court's order--
``(I) correct any deficiency identified by the Court's
order not later than 30 days after the date the Court issues
the order; or
``(II) cease the acquisition authorized under subsection
(a).
``(ii) Limitation on use of information.--
``(I) In general.--Except as provided in subclause (II), no
information obtained or evidence derived from an acquisition
under clause (i)(I) concerning any United States person shall
be received in evidence or otherwise disclosed in any trial,
hearing, or other proceeding in or before any court, grand
jury, department, office, agency, regulatory body,
legislative committee, or other authority of the United
States, a State, or political subdivision thereof, and no
information concerning any United States person acquired from
such acquisition shall subsequently be used or disclosed in
any other manner by Federal officers or employees without the
consent of such person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(II) Exception.--If the Government corrects any
deficiency identified by the Court's order under clause (i),
the Court may permit the use or disclosure of information
acquired before the date of the correction pursuant to such
minimization procedures as the Court shall establish for
purposes of this clause.
Mr. FEINGOLD. Mr. President, this amendment is a provision that was
part of the Judiciary Committee bill. It was included in a larger
substitute amendment adopted in that committee that was sponsored by
Senator Leahy and cosponsored by Senator Feinstein, Senator Schumer,
and others.
This amendment puts no additional limits on the Government's ability
to target people overseas under this legislation or to collect
information about those people. All it does is help ensure that the
Government's procedures follow the requirements that are laid out in
the bill. It fixes an enormous problem in the Intelligence Committee
bill: the complete lack of any incentive for the Government to do what
the bill tells it to do, namely, target people overseas rather than
people in America.
There are many aspects of this bill that have generated strong
disagreement, but one thing on which everyone in this Chamber should
agree is that the Government should not be using these authorities to
target the conversations of innocent Americans in their homes and
offices in the United States. For that, the Government should have to
get an individualized court order, as it always has.
The bill requires the Attorney General, in consultation with the
Director of National Intelligence, to adopt targeting procedures that
are reasonably designed to ensure that only people outside the United
States are targeted. The bill also requires the Attorney General, in
consultation with the Director of National Intelligence, to adopt
minimization procedures to govern the retention and dissemination of
information about Americans that is captured in the course of the
surveillance.
All of this sounds good. The targeting procedures, in particular, are
one of the few safeguards built into this legislation. Yet, remarkably,
the Intelligence Committee bill does nothing to ensure the Government
will follow them. They are basically non-binding. The FISA Court does
not have to approve the procedures before they are
[[Page S578]]
implemented. If the Government develops procedures that target
Americans in this country, in violation of the law, the FISA Court can
reject those procedures and require them to develop new ones but only
after those procedures have already been in effect.
The bill does nothing to stop the Government from continuing to use
and share the information it collected under those illegal procedures.
Think about that. The Government develops and implements procedures the
FISA Court later finds out are not reasonably designed to target people
who are outside the United States, meaning the procedures likely permit
the targeting of Americans here at home--something we all agree should
not be permitted under this bill. Yet if the Government has been using
those unlawful procedures while the FISA Court reviews them, it can
keep and freely share any communications it gathered. In theory, the
Government could play this game indefinitely, periodically revising its
procedures and all the while using and disseminating information that
has been illegally collected under prior procedures rejected by the
court.
My amendment would solve this problem, at least in part, by allowing
the FISA Court to put limits on the use of information about Americans
the Government has gathered using procedures the court later finds do
not comply with the requirements of this legislation.
These types of use limitations are not a new concept. Indeed, they
are borrowed from another part of FISA. Under current law, if the
Government in an emergency starts surveillance of an American without a
court order and the court later determines the surveillance was not
lawful, FISA places limits on how the Government can use that
unlawfully gathered information. It is simple common sense: If the
Government wasn't supposed to obtain this information under the law,
then the Government shouldn't be permitted to use this information
except in a true emergency. Otherwise, the limit on obtaining the
information in the first place isn't worth the paper it is printed on--
it's just there for show.
This amendment adopts the same basic idea, but with significantly
more leeway for the Government. Under the amendment, if the Government
collects information using unlawful procedures, the default is that the
Government may only use the information regarding U.S. persons--namely,
the information the Government was never supposed to collect in the
first place--in an emergency involving a threat of death or serious
bodily harm to any person. But the Government can continue to freely
use information collected on foreign persons.
The amendment also provides significant additional flexibility. It
gives the FISA Court discretion to allow the Government to use even
information about U.S. persons--information collected illegally--as
long as the Government ultimately fixes the defective procedures. That
is a very broad exception to the use limitation, but importantly, it is
an exception that is overseen and applied by the FISA Court.
This is the bare minimum we could possibly do to encourage the
Government to adopt and adhere to lawful targeting and minimization
procedures in the first place. The practical effect of this amendment
is simply to give the FISA Court the option of prohibiting the use of
information about U.S. persons obtained illegally--in violation of the
very act we are debating. Given the FISA Court's history of
overwhelming deference to the executive branch, it is quite clear the
court will exercise this option, if ever, only in the most egregious
cases of Government excess or abuse. And as I said before, the
Government will always have the ability to use information about
foreign persons and any information that indicates a threat of death or
serious bodily harm.
Just to be clear, no one is talking about holding the Government to a
standard of perfection. The bill we are debating does not require the
Government to develop procedures that ensure that in every instance,
only people overseas are targeted. Instead, it requires the Government
to develop procedures that are reasonably designed to target people who
are reasonably believed to be outside the United States. So the use
limitation I am proposing would come into play only if several things
happen: First, the Government failed to get court clearance for its
procedures before implementing them; second, the procedures were not
even reasonably designed to meet the modest goal of targeting people
reasonably believed to be overseas; third, the Government failed to
correct the problem when given a chance to do so, or the FISA Court
decides not to allow the use of the illegally collected information
despite the procedures being fixed; fourth, the information involves a
U.S. person; and fifth, the information does not indicate a threat of
death or serious bodily harm. All these things have to be true in order
for there to be any limitation here at all.
This is an extremely modest safeguard against unlawful procedures and
one that gives the Government ample leeway to develop sound targeting
procedures while simultaneously getting and using the information it
needs.
It comes down to a very simple question: Do we mean what we say when
we declare that Americans in this country should not be targeted under
the powers we are giving the Government in this legislation? If we do
mean what we say, we should have no problem saying that the use of
information obtained through procedures that target Americans can be
blocked by the FISA Court, since that information should never have
been obtained in the first place. If we don't say that, then the
targeting and minimization requirements are really just suggestions,
and the supporters of the bill are not serious when they say they only
want to go after foreigners overseas.
This amendment is based on a commonsense provision that already
exists in FISA, with significant additional flexibility for the
Government. It gives the Government a modest incentive to comply with
the law, without taking away any of the legitimate tools it needs to
respond to foreign threats. And it was already adopted by the Judiciary
Committee.
I urge my colleagues to support the amendment, and I reserve the
remainder of my time.
The PRESIDING OFFICER (Ms. Stabenow). The Senator from Missouri.
Mr. BOND. Madam President, I rise in opposition to another amendment
that has been argued very strongly on the other side but which would
impose additional operational burdens and limit the ability of our
collective agencies in the intelligence community to get the
information they need and to be able to use it to keep our country
safe.
We have gone through all of these, and we have worked to develop much
greater protections for American citizens. One of the protections the
American citizens seek from us is the protection from foreign attack
and terrorist attack. If we hamstring our intelligence community--as
they were hamstrung under the new techniques under the old FISA law--
you will find out we cannot collect the information we need. This
burden--this superexclusionary rule--goes far beyond what is necessary
to protect American citizens.
While supporters of the amendment may argue that a similar rule
appears elsewhere in FISA, it is important to remember that rule is
limited to individual domestic surveillance and searches, where the
court has found there is no probable cause to target that person. That
is very different and is a very important protection for Americans from
searches and seizures and surveillance without a court order--not a
properly developed court order.
This amendment tries to apply that same rule to foreign targeting,
when there may be a deficiency identified in the targeting or
minimization procedures. Applying an exclusionary rule in the context
of a domestic surveillance involving a small number of targets is
manageable and it must be done to protect Americans. It makes no sense
if there is no finding of probable cause. That is the threshold under
which that rule applies. But it makes no sense to exclude the use of
information simply because there is a deficiency--any deficiency--in
the certification or procedures used to target foreign terrorists
overseas. That is whom we are talking about; that is the overwhelming
amount of the collection--against foreign targets, foreign terrorists,
and others with weapons of mass destruction plans or proliferation or
foreign powers. It makes no sense to say a deficiency, which can be
corrected, should
[[Page S579]]
require all the information collected to be suppressed.
For example, this automatic suppression rule would make the
Government temporarily sequester significant amounts of data,
potentially, that might contain vital foreign intelligence
information--obviously, there is a qualification--but not amount to
information that indicates a threat of death or serious bodily injury
during a period of time when the Government is attempting to correct a
relatively minor or inadvertent deficiency.
That is unreasonable, and it is one more administrative burden to
place on the intelligence community. Moreover, the Intelligence
Committee's bill already provides an adequate remedy if the FISA Court
ultimately determines that the collection is improper; it may order the
Government to cease collection.
The court then has the inherent authority to fashion an appropriate
remedy to address the collection and the contents that have been
collected in a manner inconsistent with the law and the authorities of
the collecting agency.
This amendment does not fix a problem with the statute. Instead, it
potentially creates a problem that could have unintended operational
consequences for our intelligence community. They don't need any more
burdens. They have all the challenges they need in trying to intercept,
translate, incorporate, and divine the intents of terrorists. There is
more than enough work to do for our intelligence analysts just to stay
within the existing boundaries we have applied in the protection for
American citizens, without them having to fear we will lose vital
foreign intelligence collection information because there was some
minor deficiency that may later be identified by the court. That would
make our country less safe and it is not warranted.
Therefore, I encourage my colleagues to join me in voting against
this amendment.
I yield the floor to my colleague, the chairman.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Senator Feingold's amendment concerns the effects of
a court determination that there are deficiencies in the Government's
procedures under the new authority. This is a complicated issue and I
think it is important to explain why I cannot support this amendment.
I wish to add that what the vice chairman and I both believe all of
this is going to be litigated in the courts for decades to come, and
all that is said here by us and everybody else becomes an important
part of the record.
Under the Intelligence Committee bill, the FISA Court is required to
review the Government's certification, targeting procedures, and
minimization procedures to ensure their adequacy. If the court finds a
deficiency in either the minimization or targeting procedures, the
Intelligence Committee bill requires the Government correct the
deficiency or cease the acquisition.
The Feingold amendment goes beyond requiring that collection be
terminated or deficiencies corrected. It restricts the use or
disclosure of any information collected that concerns U.S. persons.
Unless the Attorney General determines the information indicates a
threat of death or serious bodily harm or the person consents, the
amendment would prevent the Government from sharing or disseminating
with anyone in the Federal Government any information already acquired
under the new procedure that concerns U.S. persons.
I can understand that there may be, at first glance, some appeal to
that idea. Senator Feingold, for example, has said it is important to
ensure there are consequences when the Government has not adequately
developed its procedures. Hard to argue.
But looking at the consequences of this amendment in more detail
makes it clear the provision is impractical. And it creates serious
risks that we will lose valuable intelligence.
The language of the Senator's amendment is taken from the emergency
provisions currently in FISA. Under those provisions, the Attorney
General can authorize electronic surveillance without a court order in
an emergency, as long as an application for an order is submitted to
the court within 72 hours. If a court does not approve the FISA
collection on an individual target after this emergency intelligence
collection has begun, FISA prevents the intelligence collected from
being ``used or disclosed in any . . . manner by Federal officers or
employees without the consent of such persons,'' unless the Attorney
General determines the information indicates a threat of death or
serious bodily harm.
The impact of this existing emergency provision in FISA, however, is
far different than the impact of Senator Feingold's amendment.
In contrast to limiting the use of a small amount of information
collected on one target during 72 hours of emergency procedures,
Senator Feingold's amendment potentially limits use of all information
gathered through a new system of intelligence collection. To understand
why these are different situations, it is useful to consider the
difference between traditional FISA applications and orders and the new
title VII provisions.
Unlike traditional FISA applications and orders, which involve
collection on one individual target, the new FISA provisions create a
system of collection. The court's role in this system of collection is
not to consider probable cause on individual targets but to ensure that
the procedures used to collect intelligence are adequate. The court's
determination of the adequacy of procedures, therefore, impacts all
electronic communications gathered under the new mechanism, even if it
involves thousands of targets. I will repeat that.
Senator Feingold's amendment applies to all of this intelligence
collection. If the court finds a deficiency that the Government does
not correct within 30 days, the Federal Government could not disclose
any information on U.S. persons that was gathered as part of the new
intelligence collection system without the consent of the person.
Thus, unlike existing emergency procedures, which limit the use of a
small amount of intelligence gathered over a 72-hour period on one
target, Senator Feingold's amendment would potentially restrict the use
of large amounts of intelligence, without regard to the importance of
the intelligence.
In addition, under the Feingold amendment, intelligence analysts
would have to determine whether the collected intelligence contained
information concerning U.S. persons. The Feingold amendment would
require the intelligence analysts to sift through all of the
intelligence collected under the new process in order to identify
information potentially subject to restriction.
As part of that process, analysts might be required to look at
information that had not previously been analyzed in detail because it
did not appear to contain significant foreign intelligence information,
in order to determine whether the information concerned U.S. persons.
Senator Feingold's amendment, therefore, has the potential to be more
intrusive of U.S. privacy interests than the initial collection.
Finally, this limitation on use applies regardless of what deficiency
is found by the court, as long as the deficiency is not corrected
within 30 days. Even if the court finds a minor deficiency in the
procedures and the Government is acting in good faith to correct it,
this provision would require the intelligence community to prevent any
disclosure of the information.
Please consider that, Madam President--to share with nobody in the
Government.
In sum, this provision could restrict the use of significant amounts
of intelligence based solely on minor deficiencies in procedures. It
may also require the intelligence community to focus its analytical
resources on satisfying this provision rather than on collecting and
analyzing the intelligence needed to protect this country.
In my view, this allocation of resources makes no sense. I therefore
cannot support this amendment.
I reserve the remaining time, which is about 4 minutes.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, let me agree with the Chair that it is
important to clarify what these amendments do and do not do, not only
for purposes of voting on the amendment, but for any court
consideration of this issue.
[[Page S580]]
The arguments of the chairman and ranking member do not relate, in
many cases, to the amendment that has been put forward. The Senator
from Missouri just made the argument that my amendment differs from the
use limit provisions for emergency surveillance because my amendment
would limit the use of information about foreign targets. But that is
not true. That is not the amendment I offered. My amendment only puts
limits on information about U.S. persons. The Government can always use
information about foreign persons.
With regard to the comments of the Chair of the committee, the
supposed burden of identifying which communications involved U.S.
persons only comes up if the Government starts its targeting procedures
before it gets court approval, and then fails to keep track of what it
is collecting during that time. And it only comes up if the Government
procedures are targeting Americans in the United States, in which case
I think there are overwhelming policy and constitutional reasons why
this information needs to be retrieved and its use limited.
Moreover, if the intelligence community is concerned about this
potential burden, it can do what it says it already does with
information gathered using the PAA, and that is to label it. Then it
shouldn't have any problem finding it later on; it shouldn't be
cumbersome.
The arguments of the chairman and ranking member would yield the
following result: We set up rules for the Government, the Government
doesn't follow the rules, and there is simply no consequence at all.
The law has no teeth. There is no incentive for the Government to
follow the rules.
Again, under my amendment, the Government can use information even
about U.S. persons if it indicates a threat of death and serious bodily
harm, and the FISA Court can allow the Government to use any
information if the Government fixes the defective procedures. On that
point, I am very troubled by the arguments of the Senator from
Missouri. He says that my amendment will not even allow the Government
to fix the problem with its procedures. That is absolutely false. I
specifically stated that the Government is given an opportunity to fix
the problem. If it fixes the problem, the FISA Court can allow it to
use the information.
If the Government gets a complete free pass and faces no consequence
whatsoever for adopting and implementing unlawful procedures, then the
law's requirements for targeting and minimization procedures and the
FISA Court's oversight of these procedures have no meaning. The
Government would be allowed to intrude on the private conversations of
Americans with no consequences.
This amendment contains a very modest series of provisions. It gives
the court and the Government tremendous flexibility. If the Government
makes even a reasonable effort to address the concerns of the FISA
Court, there will be no disruption of the information the Government
needs--and, of course, none is intended.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Madam President, in two sentences, thousands of
targets in the Senator's amendment, thousands of targets, all foreign
means hundreds or thousands of pieces of intelligence. Intelligence
does not come as one lump. It is an enormous array of collection of all
kinds of things which are stitched together over time. All that
intelligence could be lost under the Feingold amendment if there were
only U.S. person information that was involved.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, in response to the Senator from West
Virginia, it is true that the use limits in my amendment would apply to
any information about U.S. persons gathered under unlawful procedures,
other than information indicating a threat of bodily harm. That is why
the amendment provides significantly more flexibility to the Government
than the use limits for emergency surveillance. The FISA Court can
allow the Government to use even information about U.S. persons as long
as the Government corrects the defective procedures. That is a huge
exception that is not present in the emergency use limits provision.
The PRESIDING OFFICER. If the Senator will suspend, the Senate is
operating under a previous order for 5:20 p.m.
____________________
