[Congressional Record: June 25, 2008 (Senate)]
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FISA AMENDMENTS ACT OF 2008
Mr. FEINGOLD. Mr. President, I strongly oppose H.R. 6304, the FISA
Amendments Act of 2008. I will vote against cloture on the motion to
proceed. This legislation has been billed as a compromise between
Republicans and Democrats. We are asked to support it because it is
supposedly a reasonable accommodation of opposing views.
Let me respond to that as clearly as possible. This bill is not a
compromise; it is a capitulation. This bill will effectively and
unjustifiably grant immunity to companies that allegedly participated
in an illegal wiretapping program, a program that more than 70 Members
of this body still know virtually nothing about. This bill will
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grant the Bush administration, the same administration that developed
and operated this illegal program for more than 5 years, expansive new
authorities to spy on Americans' international communications.
If you don't believe me, here is what Senator Bond had to say about
the bill:
I think the White House got a better deal than even they had hoped to
get.
House minority whip Roy Blunt said:
The lawsuits will be dismissed.
There is simply no question that Democrats who had previously stood
strong against immunity and in support of civil liberties were on the
losing end of this backroom deal.
The railroading of Congress began last summer when the administration
rammed through the so-called Protect America Act, or PAA, vastly
expanding the Government's ability to eavesdrop without a court-
approved warrant. That legislation was rushed through this Chamber in a
climate of fear--fear of terrorist attacks and fear of not appearing
sufficiently strong on national security. There was very little
understanding of what the legislation actually did. But the silver
lining was that the law did have a 6-month sunset. So Congress quickly
started working to fix the legislation. The House passed a bill last
fall. The Senate passed its bill, one that I believed was deeply
flawed, in February.
As the PAA 6-month sunset approached in late February, the House
faced enormous political pressure simply to pass the Senate bill before
the sunset date, but the reality was that no orders under the PAA were
actually going to expire in February. Fortunately, to their great
credit, the House stood firm in its resolve not to pass the Senate bill
with its unjustified immunity provisions. The House deserves enormous
credit for not buckling in the face of the President's attempts to
intimidate them. Ultimately, the House passed new legislation in March,
setting up the negotiations that have led us here today.
I think it is safe to say that even many who voted for the Protect
America Act last year came to believe it was a mistake to pass that
legislation. While the House deserves credit for refusing to pass the
Senate bill in February and for securing the changes in this new bill,
the bill is still a very serious mistake.
The immunity provision is a key reason for that. It is a key reason
for my opposition to the legislation and for that of so many of my
colleagues and, frankly, so many Americans. No one should be fooled
about the effect of this bill. Under its terms the companies that
allegedly participated in the illegal wiretapping program will walk
away from these lawsuits with immunity. They will get immunity. There
is simply no question about it. Anyone who says this bill preserves a
meaningful role for the courts to play in deciding these cases is just
wrong.
I am a little concerned that the focus on immunity has diverted
attention away from the other very important issues at stake in this
legislation. In the long run, I don't believe this bill will be
actually remembered as the immunity bill. I think this bill is going to
be remembered as the legislation in which Congress granted the
executive branch the power to sweep up all of our international
communications with very few controls or oversight.
Here I am talking about title I of the bill, the title that makes
substantive changes to the FISA statute. I would like to explain why I
am so concerned about the new surveillance powers granted in this part
of the bill, and why the modest improvements made to this part of the
bill don't even come close to being sufficient.
This bill has been sold to us as necessary to ensure that the
Government can collect communications between persons overseas without
a warrant and to ensure that the Government can collect the
communications of terrorists, including their communications with
people in the United States. No one disagrees that the Government
should have this authority. But the bill goes much further, authorizing
widespread surveillance involving innocent Americans at home and
abroad.
First, the FISA Amendments Act, like the Protect America Act, will
authorize the Government to collect all communications between the
United States and the rest of the world.
That could mean millions upon millions of communications between
innocent Americans and their friends, families, or business associates
overseas could legally be collected. Parents calling their kids
studying abroad, e-mails to friends `` serving in Iraq--all of these
communications could be collected, with absolutely no suspicion of any
wrongdoing, under this legislation. In fact, the DNI even testified
that this type of ``bulk collection'' would be ``desirable.''
The bill's supporters like to say that the Government needs
additional powers to target terrorists overseas. But under this bill,
the Government is not limited to targeting foreigners outside the
United States who are terrorists, or who are suspected of some
wrongdoing, or who are members or agents of some foreign government or
organization. In fact, the Government does not even need a specific
purpose for wiretapping anyone overseas. All it needs to have is a
general ``foreign intelligence'' purpose, which is a standard so broad
that it basically covers all international communications.
That is not just my opinion. The DNI has testified that, under the
PAA, and presumably this bill, the Government could legally collect all
communications between the United States and overseas. Let me repeat
that. Under this bill, the Government can legally collect all
communications--every last one--between Americans here at home at home
and the rest of the world.
I should note that one of the few bright spots in this bill is the
inclusion of a provision from the Senate bill to prohibit the
intentional targeting of an American overseas without a warrant. That
is an important new protection. But that amendment does not prevent the
indiscriminate vacuuming up of all international communications, which
would allow the Government to collect the communications of Americans
overseas, including with friends and family back home, without a
warrant.
I tried to address this issue of ``bulk collection'' several times,
working in the Intelligence Committee, the Judiciary Committee, and
ultimately on the Senate floor in February, when I offered an amendment
that would have required that there be some foreign intelligence
purpose for the collection of communications to or from particular
targets. The vast majority of Democrats supported this effort, but,
unfortunately, it was defeated. So the bill today we are considering
does not address this serious problem.
Second, like the earlier Senate version, this bill fails to
effectively prohibit the practice of reverse targeting and this is;
namely, wiretapping a person overseas when what the Government is
really interested in is listening to an American here at home with whom
the foreigner is communicating. The bill does have a provision that
purports to address this issue. The bill prohibits intentionally
targeting a person outside the United States without an individualized
court order if ``the purpose'' is to target someone reasonably believed
to be in the United States. But this language would permit intentional
and possibly unconstitutional warrantless surveillance of an American
so long as the Government has any interest in the person overseas with
whom the American is communicating. And, if there was any doubt, the
DNI has publicly said that the Senate bill--which contained identical
language as the current bill--merely ``codifies'' the administration's
position, which is that the Government can wiretap a person overseas
indefinitely without a warrant, no matter how interested it may really
be in the American with whom that person overseas is communicating.
Supporters of this bill also will argue that it requires the
executive branch to establish guidelines for implementing this new
reverse targeting requirement. But the guidelines are not subject to
any judicial review. And requiring guidelines to implement an
ineffective limitation is not a particularly comforting safeguard.
When the Senate considered the FISA bill earlier this year, I offered
an amendment--one that had actually been approved by the Senate
Judiciary Committee--to make this prohibition on reverse targeting
meaningful. My amendment, which again had the support of the vast
majority of the Democratic caucus and was included in the bill passed
by the House in March,
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would have required the Government to obtain a court order whenever a
significant purpose of the surveillance is actually to acquire the
communications of an American in the United States. This would have
done a far better job of protecting the privacy of the international
communications of innocent Americans. Unfortunately, it is not in this
bill.
Third, the bill before us imposes no meaningful consequences if the
Government initiates surveillance using procedures that have not been
approved by the FISA Court, and the FISA Court later finds that those
procedures were unlawful. Say, for example, that the FISA Court
determines that the procedures were not even reasonably designed to
wiretap foreigners rather than Americans. Under the bill, all of that
illegally obtained information on Americans can be retained and used
anyway. Once again, there are no consequences for illegal behavior.
Now, unlike the Senate bill, this new bill does generally provide for
FISA Court review of surveillance procedures before surveillance
begins. But it also says that if the Attorney General and the DNI
certify that they don't have time to get a court order and that
intelligence important to national security may be lost or not timely
acquired, then they can go forward without this judicial approval. This
is a far cry from allowing an exception to FISA Court review in a true
emergency because arguably all intelligence is important to national
security and any delay at all might cause some intelligence to be lost.
So I am really concerned that this so-called exigency exception could
very well swallow the rule and undermine any presumption of prior
judicial approval.
But whether the exception is applied broadly or narrowly, if the
Government invokes it and ultimately engages in illegal surveillance,
the court should be given at least some flexibility after the fact to
determine whether the government should be allowed to keep the results
of illegal surveillance if it involves Americans. That is what another
one of my amendments on the Senate floor would have done, an amendment
that actually garnered 40 votes. Yet this issue goes completely
unaddressed in the so-called compromise.
Fourth, this bill doesn't protect the privacy of Americans whose
communications will be collected in vast new quantities. The
administration's mantra has been: Don't worry, we have minimization
procedures. Minimization procedures are nothing more than unchecked
executive branch decisions about what information on Americans
constitutes ``foreign intelligence.'' As recently declassified
documents have again confirmed, the ability of Government officials to
find out the identity of Americans and use that information is
extremely broad. Moreover, even if the administration were correct that
minimization procedures have worked in the past, they are certainly
inadequate as a check against the vast amounts of Americans' private
information that could be collected under this bill. That is why on the
Senate floor joined with my colleagues, Senator Webb and Senator
Tester, to offer an amendment to provide real protections for the
privacy of Americans, j while also giving the Government the
flexibility it needs to wiretap terrorists overseas. But this bill,
like the Senate bill, relies solely on these inadequate minimization
procedures.
The broad surveillance powers involving international communications
that are contained in this legislation 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,
particularly with e-mail, such communications happen all the time.
Millions of ordinary, and innocent, Americans communicate with people
overseas for entirely legitimate personal and business reasons. Parents
or children call family members overseas. Students e-mail friends they
have met while studying abroad. Business people communicate with
colleagues or clients overseas. Technological advancements combined
with the ever more interconnected world economy have led to an
explosion of international contacts.
Supporters of the bill like to say that we just have to bring FISA up
to date with new technology. But changes in technology should also
cause us to take a close look at the need for greater protections 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 have a duty to protect their
privacy as much as we possibly can. And we can do that without
sacrificing our ability to collect information that will help us
protect our national security. This supposed compromise, unfortunately,
fails that test.
I don't mean to suggest that this bill does not contain some
improvements over the bill that the Senate passed early this year.
Clearly it does, and I appreciate that. Certainly, it is a good thing
that this bill includes language making clear, once and for all, that
Congress considers FISA and the criminal wiretap laws to be the
exclusive means by which electronic surveillance can be conducted in
this country--a provision that Senator Feinstein fought so hard for.
And it is a good thing that Congress is directing the relevant
inspectors general to do a comprehensive report on the President's
illegal wiretapping program--a report whose contents I hope will be
made public to the greatest degree possible. And it is a good thing
that the bill no longer redefines the critical FISA term ``electronic
surveillance,'' which could have led to a lot of confusion and
unintended consequences.
All of those provisions are positive developments, and I am glad that
the ultimate product seemingly destined to become law contains these
improvements.
But I just can't pretend somehow that these improvements are enough.
They are nowhere close. When I offered my amendments on the Senate
floor in February, the vast majority of the Democratic caucus supported
me. While I did not have the votes to pass those amendments, I am
confident that more and more Members of Congress will agree that
changes to this legislation need to be made. If we can't make them this
year, then Congress must return to this issue--and it must do so as
soon as the new President takes office. These issues are far too
important to wait until the sunset date, especially now that it is set
in this bill for 2012, another presidential election year.
But let me now turn to the grant of retroactive immunity that is
contained in this bill because on that issue there is no question that
any differences between this bill and the Senate bill are only
cosmetic. Make no mistake: This bill will result in immunity.
Under the terms of this bill, a Federal district court would evaluate
whether there is substantial evidence that a company received ``a
written request or directive . . . from the Attorney General or the
head of an element of the intelligence community . . . indicating that
the activity was authorized by the President and determined to be
lawful.''
But we already know from Senate Select Committee on Intelligence's
committee report last fall that the companies received exactly these
materials. That is already public information. So under the exact terms
of this proposal, the court's evaluation would essentially be
predetermined.
Regardless of how much information the court is permitted to review,
what standard of review is employed, how open the proceedings are, and
what role the plaintiffs are permitted to play, the court will
essentially be required to grant immunity under this bill.
Now, proponents will argue that the plaintiffs in the lawsuits
against the companies can participate in briefing to the court. This is
true. But they are allowed to participate only to the extent it does
not necessitate the disclosure of classified information. The
administration has restricted information about this illegal program so
much that, again, more than 70 Members of this Chamber alone don't even
have access to the basic facts about what happened. So let's not
pretend that the plaintiffs will be able to participate in any
meaningful way. And even if they could participate fully, as I said
before, immunity is a foregone conclusion under the bill.
This result is extremely disappointing on many levels, perhaps most
of all because granting retroactive immunity is unnecessary and
unjustified. Doing this will profoundly
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undermine the rule of law in this country.
For starters, current law already provides immunity from lawsuits for
companies that cooperate with the Government's request for assistance,
as long as they receive either a court order or a certification from
the Attorney General that no court order is needed and the request
meets all statutory requirements. But if requests are not properly
documented, FISA instructs the telephone companies to refuse the
Government's request, and subjects them to liability if they instead
still decide to cooperate. Now, there is a reason for this. This
framework, which has been in place for 30 years, protects companies
that act at the request of the Government while also protecting the
privacy of Americans' communications.
Some supporters of retroactively expanding this already existing
immunity provision argue that the telephone companies should not be
penalized if they relied on a high-level Government assurance that the
requested assistance was lawful. But as superficially appealing as that
argument may sound, it completely ignores the history of the FISA law.
Telephone companies have a long history of receiving requests for
assistance from the Government. That is because telephone companies
have access to a wealth of private information about Americans--
information that can be a very useful tool for law enforcement. But
that very same access to private communications means that telephone
companies are in a unique position of responsibility and public trust.
And yet, before FISA, there were basically no rules at all to help
these phone companies resolve the tension between the Government's
requests for assistance in foreign intelligence investigations and the
companies' responsibilities to their customers.
So this legal vacuum resulted in serious governmental abuse and
overreaching. The abuses that took place are well documented and quite
shocking. With the willing cooperation of the telephone companies, the
FBI conducted surveillance of peaceful antiwar protesters, journalists,
steel company executives, and even Martin Luther King, Jr.
So Congress decided to take action. Based on the history of, and
potential for, Government abuses, Congress decided that it was not
appropriate--not appropriate--for telephone companies to simply assume
that any Government request for assistance to conduct electronic
surveillance was legal. Let me repeat that: A primary purpose of FISA
was to make clear, once and for all, that the telephone companies
should not blindly cooperate with Government requests for assistance.
At the same time, however, Congress did not want to saddle telephone
companies with the responsibility of determining whether the
Government's request for assistance was a lawful one. That approach
would leave the companies in a permanent state of legal uncertainty
about their obligations.
So Congress devised a system that would take the guesswork out of it
completely. Under that system, which was in place in 2001, and is still
in place today, the companies' legal obligations and liability depend
entirely on whether the Government has presented the company with a
court order or a certification stating that certain basic requirements
have been met. If the proper documentation is submitted, the company
must cooperate with the request and will be immune from liability. If
the proper documentation has not been submitted, the company must
refuse the Government's request, or be subject to possible liability in
the courts.
The telephone companies and the Government have been operating under
this simple framework for 30 years. The companies have experienced,
highly trained, and highly compensated lawyers who know this law inside
and out.
In view of this history, it is inconceivable that any telephone
companies that allegedly cooperated with the administration's
warrantless wiretapping program did not know what their obligations
were. It is just as implausible that those companies believed they were
entitled to simply assume the lawfulness of a Government request for
assistance. This whole effort to obtain retroactive immunity is based
on an assumption that doesn't hold water.
That brings me to another issue. I have been discussing why
retroactive immunity is unnecessary and unjustified, but it goes beyond
that. Granting companies that allegedly cooperated with an illegal
program this new form of automatic, retroactive immunity undermines the
law that has been on the books for decades--a law that was designed to
prevent exactly the type of actions that allegedly occurred here.
Remember, telephone companies already have absolute immunity if they
complied with the applicable law. They have an affirmative defense if
they believed in good faith that they were complying with that law. So
the retroactive immunity provision we are debating here is necessary
only if we want to extend immunity to companies that did not comply
with the applicable law and did not even have a good faith belief that
they were complying with it. So much for the rule of law.
Even worse, granting retroactive immunity under these circumstances
will undermine any new laws that we pass regarding Government
surveillance. If we want companies to follow the law in the future, it
sends a terrible message, and sets a terrible precedent, to give them a
``get out of jail free'' card for allegedly ignoring the law in the
past.
I find it particularly troubling when some of my colleagues argue
that we should grant immunity in order to encourage the telephone
companies to cooperate with Government in the future. They want
Americans to think that not granting immunity will damage our national
security. But if you take a close look at the argument, it does not
hold up. The telephone companies are already legally obligated to
cooperate with a court order, and as I have mentioned, they already
have absolute immunity for cooperating with requests that are properly
certified. So the only thing we would be encouraging by granting
immunity here is cooperation with requests that violate the law. That
is exactly the kind of cooperation that FISA was supposed to prevent.
Let's remember why. These companies have access to our most private
conversations, and Americans depend on them to respect and defend the
privacy of these communications unless there is clear legal authority
for sharing them. They depend on us to make sure the companies are held
accountable for betrayals of that public trust. Instead, this immunity
provision would invite the telephone companies to betray that trust by
encouraging cooperation with illegal Government programs.
But this immunity provision does not just allow telephone companies
off the hook for breaking the law. It also will make it that much
harder to get to the core issue that I have been raising since December
2005, which is that the President ran an illegal program and should be
held accountable. When these lawsuits are dismissed, we will be that
much further away from an independent judicial review of this program.
Since 9/11, I have heard it said many times that what separates us
from our enemies is respect for the rule of law. Unfortunately, the
rule of law has taken it on the chin from this administration. Over and
over, the President and his advisers have claimed the right to ignore
the will of Congress and the laws on the books if and when they see
fit. Now they are claiming the same right for any entity that assists
them in that effort, no matter how unreasonable that assistance might
have been.
On top of all this, we are considering granting immunity when more
than 70 members of the Senate still--still--have not been briefed on
the President's wiretapping program. The majority of this body still
does not even know what we are being asked to grant immunity for.
In sum, I cannot support this legislation. I appreciate that changes
were made to the Senate bill, but they are not enough. Nowhere near
enough.
We have other alternatives. We have options. We do not have to pass
this law in the midst of a presidential election year, while George
Bush remains President, in the worst possible political climate for
constructive legislating in this area. If the concern is that orders
issued under the PAA could expire as early as August, we could extend
the PAA for another 6 months, 9 months, even a year. We could put a 1-
year sunset on this bill, rather than
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having it sunset in the next Presidential election year when partisan
politics will once again be at their worst. Or we could extend the
effect of any current PAA orders for 6 months or a year. All of these
options would address any immediate national security concerns.
What we do not have to do and what we should not do is pass a law
that will immunize illegal behavior and fundamentally alter our
surveillance laws for years to come.
I have spent a great deal of time over the past year--in the Senate
Intelligence Committee, in the Senate Judiciary Committee, and on the
Senate floor--discussing my concerns, offering amendments, and debating
the possible effects of the fine print of various bills. But this is
not simply about fine print. In the end, my opposition to this bill
comes down to this: This bill is a tragic retreat from the principles
that have governed Government conduct in this sensitive area for 30
years. It needlessly sacrifices the protection of the privacy of
innocent Americans, and it is an abdication of this body's duty to
stand up for the rule of law. I will vote no.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[...]
Mr. LEAHY. Mr. President, we have an ongoing debate on the whole
question of FISA, the Foreign Intelligence Surveillance Act. Since the
beginning of this debate, I have opposed legislation that does not
provide some kind of accountability for the 6 years of illegal
warrantless wiretapping that was started and, in fact, approved by this
administration.
The bill that has been presented to the Senate, as it stands now,
absent any amendments, seems intended to result in the dismissal of
ongoing cases against the telecommunication carriers that participated
in the warrantless wiretapping program. It would lead to the dismissal
of the cases without allowing a court ever to review whether the
program itself was legal.
So the bill would have the effect of ensuring that this
administration, the administration that decided to carry out the
illegal wiretapping, is never called to answer for its actions, and
never held accountable in a court of law. I cannot support that result.
It is now almost 7 years since the President began an effort to
circumvent the law in violation of the provisions of the governing
statute, the Foreign Intelligence Surveillance Act.
I have said I believe that the conduct was illegal. In running its
program of warrantless surveillance, the administration relied on
result-oriented legal opinions. These opinions were prepared in secret.
They were shown only to a tiny group of like-minded officials. This
ensured, of course, that the administration received not independent
legal advice, but the legal advice that it had predetermined it wanted.
A former head of the Justice Department's Office of Legal Counsel
described this program as a ``legal mess.''
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And this administration wants to make sure no court ever reviews this
legal mess.
The bill presented to the Senate seems designed to ensure that they
are going to get their wish. The administration worked very hard to
ensure that Congress could not effectively review the program or the
basis for its arguments for immunity.
Since the existence of the program became known through the press,
the Judiciary Committee has repeatedly tried to obtain access to
information its members needed so we could evaluate the
administration's legal arguments, which are squarely under the
jurisdiction of our committee.
Indeed, Senator Specter, when he was the chairman of the Judiciary
Committee, prepared subpoenas to telecommunication carriers to obtain
this information. He wanted information from the telecommunications
carriers because the administration would not tell us directly what it
had done. But those subpoenas sought by a Republican chairman were
never issued.
As Senator Specter himself has explained publicly, Vice President
Cheney intervened with other Republican members of the Judiciary
Committee to undercut Senator Specter, and, of course, the Vice
President then succeeded in blocking the subpoenas.
It was only just before the Intelligence and Judiciary Committees'
consideration of this bill that the Judiciary Committee members finally
obtained access to some of the documents we had sought. I remind you,
though, that most Members of this Chamber, most Senators called upon to
vote, have not seen those documents. I have seen them, and I would hope
that they would be made available to every Senator.
The Senators who have seen them have drawn very different
conclusions. But no matter what conclusion you reach, you ought to get
access to the documents so that you can make an informed judgment.
I will not discuss the documents that are still held in secret, but I
will talk about the public reports. There are public reports that at
least one telecommunications carrier refused to comply with the
administration's request to cooperate with the warrantless wiretapping.
All Senators should have had the opportunity to know those facts so
they can make informed judgments whether there were legal claims that
other carriers should have raised.
It is also clear that the Bush-Cheney administration did not want the
Senate to evaluate the evidence and be able to draw its own
conclusions. They wanted to avoid accountability.
Indeed, the Senate Select Committee on Intelligence, with all of the
work it has done on this issue, has not conducted a review of the
legality of the warrantless wiretapping program.
Now, I am not here to try to get the telephone companies. According
to public reports, at least one company said no, presumably because it
feared that by complying it would break the law. Other phone companies,
according to the public statements, apparently believed they were doing
what was best for their country. I am not out to get them.
In fact, I would have supported legislation to have the Government
indemnify the telecommunications carriers for any liability incurred at
the behest of the Government. As I said, it is not a case of going
after the phone companies; I want accountability.
I supported alternative efforts by Senator Specter and Senator
Whitehouse to substitute the Government for the defendants in these
cases. In other words, take the phone companies out and substitute the
Government so the cases can proceed to a determination on the merits.
These alternatives would have allowed judicial review of the legality
of the administration's acts--I think it is clear that the
administration's actions were illegal--then let a court determine who
was responsible for those actions.
This bill does not provide that accountability. As I read the
language of the bill, it is designed to have the courts dismiss the
pending cases if the Attorney General simply certifies to the court
that the alleged activity was the subject of a written request from the
Attorney General, and that request indicated the activity was
authorized by the President and determined to be lawful.
In other words, if the Attorney General said: Well, I do not care
what the law says, I have determined that the President does not have
to follow the law. If the Attorney General says, in effect,
notwithstanding the rule of law in this country, this President is
above the law, so, therefore, nothing he does is illegal. These kinds
of baseless legal conclusions could form the basis for immunity under
this scheme.
That is really what this bill provides. That concerns me, as it
should concern everybody. We should not be dismissing Americans' claims
that their fundamental rights were violated based on the mere assertion
of a party in interest that what it did was lawful.
Think about it: this would be like a police officer catching someone
committing a burglary and saying: I am going to arrest you for
burglary. And the burglar sitting there with a bag of burglary tools,
having broken in the door, saying: You cannot do that because I thought
about this breaking and entering. I decided that in my case it is not
illegal. And then the police officer has to say: Gee, I am sorry for
the inconvenience, sir, go on your merry way.
That is what we are saying. Or actually, it is even worse than that.
It is as if they actually arrested that burglar, they brought him into
court, and the burglar stands up and says: Your Honor, I determined all
by myself--disregarding you, Your Honor; disregarding the evidence, I
determined all by myself--that even though I was involved in a
burglary, I should not even be subject to the court's jurisdiction
because I say that what I did was legal. Goodbye, Your Honor. Have a
nice day. I am leaving.
That is what we are doing with this bill. In fact, there is not even
a determination by the current Attorney General that the wireless
wiretapping program was lawful, perhaps because he could not make such
a determination. But all he has to do to ensure immunity is to certify
that the phone company acted at the behest of the administration and
that the administration indicated that the activity was determined to
be lawful.
Regardless of whether or not it actually was lawful, all the Attorney
General has to say is that it was determined to be lawful. We are not
going to tell you when that determination was made. We are not even
going to tell you whether the people who made that determination went
to law school. It is lawful because the President is above the law;
therefore, we are off the hook.
I believe the rule of law is important. I do not believe any one of
us, the 100 of us in this body, is above the law. I have been here with
six Presidents. I do not believe any one of them, Republican or
Democratic Presidents, is above the law. I do not believe Congress
should try to put a President above the law and seek to take away the
only viable avenue for Americans to seek redress for harm to their
privacy and liberty, and the only viable avenue of accountability for
the administration's lawlessness.
Why should we, the United States Senate, the conscience of the
Nation, why should we sit here and say: We are going to condone
lawlessness, and even more importantly, we 100 people, acting on behalf
of 300 million other Americans, are saying: We are never even going to
let you know who committed the unlawful acts and why.
Now, I recognize this legislation also contains important
surveillance authority. I support this new authority. I worked for
years to craft legislation that provides that important authority along
with appropriate protections for privacy and civil liberties. I have
voted for dozens of changes in the FISA legislation to be able to help
our intelligence agencies.
In fact, the Senate Judiciary Committee, under my leadership,
reported such a bill last fall. So I commend House Majority Leader
Hoyer and Senator Rockefeller, who negotiated this legislation, for
incorporating several additional protections to bring it closer to the
bill we voted out of the Judiciary Committee.
I note, in particular, the requirement of an inspector general review
of this administration's warrantless wiretapping program. It is a
provision I have advocated at every single meeting we have had, open or
closed, through the course of the consideration of these matters. This
review will provide for a
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comprehensive examination of the relevant facts about this program.
Actually, it should prove useful to the next President. I believe we
should have still more protections for privacy and civil liberties. If
this bill becomes law I will work with the next administration on
additional protections. Despite some improvements to the surveillance
authorities the bill authorizes, improvements I support, I will not
support this legislation. The administration broke the law. They
violated FISA by conducting warrantless surveillance for more than 5
years, and they got caught. Now they want us to cover their actions.
They want us to say: That's OK. Even though we don't know which one of
you decided to break the law, we are going to let you all off the hook.
The apparent purpose of title II of this bill is to ensure that they
will not be held to account. That is wrong. I will, therefore, oppose
cloture on the motion to proceed to the measure. If the Senate proceeds
to the bill, I will then support amendments to its unaccountability
provisions, including an amendment to strike the immunity provisions.
But if those are not successful, I will have to vote against it.
The bottom line is this: In America, nobody should be above the law.
One thing unites every single Senator. We want to keep our great and
good country safe. We all want to stop terrorists. We have spent
hundreds of billions of dollars to do that. We have procedures to do
that. But one of the principles of this country and something we have
always preached to other countries is, that in good times and bad
times, we follow the law. We did this during two world wars, in the
Revolutionary War and in the Civil War.
I am imploring the Senate not to turn its back on over 200 years of
history of following the law and saying, in this situation, we are
going to condone an administration that broke the law. I cannot vote
for that. I cannot in good conscience vote for that. I cannot be true
to my own oath of office and vote for that. Certainly, I would not want
to tell the people of Vermont I voted for that.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri is
recognized.
Mr. BOND. Mr. President, I ask unanimous consent that after my
remarks, the Senator from California, Mrs. Feinstein, be recognized,
and that she be followed by the Senator from Georgia, Mr. Chambliss.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BOND. Mr. President, while my good friend from Vermont was on the
floor, I thought he raised some good questions. I believe we have good
answers for those questions. I know of his dedication and commitment to
the rule of law and accountability, his very distinguished service as
head of the Judiciary Committee. But there are several things I would
point out.
No. 1, we have been working on this entire issue of the President's
terrorist surveillance program for better than a year now. We have
reviewed all of the documents. We have had all of the people who
administered the program, who have given opinions on it, come in. I
dispute his statement that there were 6 years of unlawful activity of
the President. He said no court will be able to review the illegality;
no independent officials have reviewed it.
First, it is my understanding, although I was not one of them, that
the big eight at the time--that is, the Republican and Democratic
leaders of the House and the Senate and the leaders of their
Intelligence Committees--were briefed on this program before it
started. I don't know the substance of the briefing. I would imagine
that they told them the problems in the existing old FISA law would
make it difficult to implement that law, given the new technology
which, in fact, was the case. In any event, it went forward.
When the program was finally disclosed and briefed to the
Intelligence Committee, I spent a good bit of time reviewing that. I
have studied constitutional law and made constitutional law arguments
before. I believe if my friends who have questions about it will check
the Constitution and the appellate court's interpretation of article
II, they will find that they assume the President does have power to
collect foreign intelligence information as an adjunct to his
responsibility to conduct foreign affairs.
There is no question that Congress cannot pass a law abrogating that
constitutional right. As a matter of fact, in one of the released
cases, one of the cases made public by the Foreign Intelligence
Surveillance Court, or FISC, they noted that Congress could not
abrogate that constitutional right. It would be unconstitutional. For
those who raise the test of the steel cases, I don't necessarily accept
that test, that the enactments of Congress can affect the measure of
credibility and extent of the President's power. The Congress did pass
the authorization for the use of military force prior to the imposition
of the terrorist surveillance program. We had access to the documents.
Based on review of the documents, the Senate Intelligence Committee, by
a vote of 13 to 2, passed out the bill which is the essential framework
that is before us.
The courts can review to see that there are certifications by the
Attorney General, directives by the President, and only if they find no
substantial evidence to support that, then the suits will be dismissed.
My friend from Vermont said we ought to substitute the Government for
the phone company for judicial review. There is another provision in
the bill he should understand. If you want to sue the Government, there
is no ban in this bill on suing the Government or suing Government
officials. That can go forward. That is not affected by this bill.
There has been extensive discussion over the legality of it. For those
who wish to have a trial on the legality of the program, there are
other means still available. To penalize a phone company or other
carrier which, in good faith reliance on a representation of the
Attorney General and the President of the United States, carried out a
program that I believe is lawful to protect American citizens, I think
is totally unwarranted.
Let me describe today for my colleagues and for those who may be
interested this long and difficult process which I believe has finally
accomplished its goal. This week we have a chance to tell the American
people that the intelligence community on which our citizens, our
troops, and our allies rely to keep us safe from terrorists and other
forms of evil in the world can continue to do its job. We can tell
those companies that answered their Government's call for help in the
aftermath of the September 11 terrorist attacks that a grateful nation
stands behind them and that they will be given the civil liability
protection they rightly deserve.
I strongly support voting for cloture on the motion to proceed to
H.R. 6304, the FISA Amendments Act, this afternoon. I strongly
encourage my colleagues not only to do the same but also to oppose any
amendments offered to it. We have finally struck a deal with the House,
and the House honored the deal last Friday by allowing no amendments on
the House floor. I ask my colleagues to hold up our end of the bargain.
While it is in every Senator's right to offer an amendment, I urge my
colleagues to vote down all amendments no matter what they may be so
that we may send the bill immediately to the President for signature
and make sure we don't have further gaps in our intelligence
system which could appear once again if we do not pass this in a timely
fashion. If we send it back to the House, there is no telling when a
final bill could be back here for passage.
Let me describe briefly how we got here. Approximately a year ago,
Director of National Intelligence ADM Mike McConnell came to Congress
and asked that we update the Foreign Intelligence Surveillance Act.
Changes in technology resulted in court rulings or interpretations that
made it very difficult to use electronic surveillance effectively
against terrorist enemies overseas. The problem came to a head in May
2007, with a ruling that caused significant gaps in collection.
Although the DNI at the time pleaded to Congress to help, the
leadership of Congress did not move.
In the looming pressure of the August recess, the Republican leader,
Senator McConnell, and I cosponsored the Protect America Act which
Congress passed the first week of August last year. The act did exactly
what it
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was intended to. It closed the intelligence gaps that threatened the
security of our Nation and of our troops. But it was lacking in one
important aspect, as we were not able to include in it the retroactive
civil liability protection from ongoing frivolous lawsuits against
those partners who had assisted the intelligence community in the
President's program.
Following the passage of the Protect America Act, I am proud to say
that Senator Rockefeller and I worked on a bipartisan basis to come up
with a permanent solution to modernize FISA and give those private
partners the needed retroactive liability protection. We worked closely
for months with the DNI, Department of Justice, and their experts from
the intelligence community to ensure there would be no unintended
operational consequences from any of the provisions included in our
bipartisan product. In February of this year, after many hearings,
briefings, and a lot of debate on the Senate floor, the Senate passed
the FISA amendments by a strong bipartisan vote of 68 to 29.
The bill coming out of the Senate reflected the Intelligence
Committee's conclusion that the electronic communication service
providers who assisted the President's TSP acted in good faith and
deserved civil liability protection from frivolous lawsuits. The Senate
bill also went farther than any legislation in history in protecting
the privacy interests of American citizens or U.S. persons whose
communications might be acquired through targeting overseas. It also
required the FISA approval to target U.S. persons overseas, if they are
going to have collection initiated against them.
At the end of the day, there were many difficult compromises. Both
sides gave, and we came up with a bill that was not only bipartisan but
the best piece of effort we could get out of this legislative process.
Although the Senate passed the bill before the Protect America Act
expired, in the House there was a clear majority. But the leadership
didn't let it come up. They went on recess. In the days following the
expiration, private partners refused to provide intelligence
information, frankly, in light of the ongoing litigation, the
tremendous threat to their business franchise, the fact that they and,
particularly their shareholders, who may be retired persons depending
on pensions and others, could be losing billions of dollars in the
marketplace because of the size of these outrageous lawsuits seeking
billions of dollars, when, in my view, there was no damage and no
grounds for recovery. Fortunately, after several days' negotiation, the
intelligence community was able to get the providers to resume
cooperation, but the intelligence lost in that time was gone, and we
will never know what we missed because the House leadership refused to
bring up the Senate bill.
Some have accused me and my colleagues of saying at the time,
falsely, that the sky was falling. For a few days the sky was falling
until a tenuous agreement was worked out between the executive branch
and the providers. But the agreement was all predicated upon ongoing
work to pass a FISA modernization law in the near term. That is another
reason why it is vital the Senate move immediately to consider the FISA
Amendments Act. Once the House returned from the Easter recess, my good
friend and fellow Missourian, majority whip Roy Blunt, and I met with
the House majority leader, Steny Hoyer, asking him what he thought the
House needed in order to allow the Senate bill a vote on the House
floor. We and our staffs began discussions and sent proposals back and
forth attempting to come together. During that time, Roy Blunt and I
conferred repeatedly with Congressmen Hoekstra and Smith and, of
course, vetted our proposals with the intelligence community.
Finally, after four personal meetings over 2 months--and a tremendous
amount of staff work--between Majority Leader Hoyer, Minority Whip
Blunt, and me--Whip Blunt and I delivered a proposal to Mr. Hoyer
before Memorial Day, a deadline he had set.
This agreement was one that had been signed off on and fully
discussed with Mr. Hoekstra, the vice chairman of the House
Intelligence Committee, and Lamar Smith, the ranking member of the
Judiciary Committee. We felt this was the best offer we could make on
behalf of the Republicans in the House and Senate, and it was agreed to
by the intelligence community.
The Memorial Day deadline, however, came and went, and again the
House went on recess. Finally, after more interaction among our staffs,
I received word 2 weeks ago that the House Democrats were ready to work
out final language. So Leader Hoyer and Whip Blunt and I met for a
fifth time, this time inviting my colleague, Jay Rockefeller, to join
us in the final negotiations. On June 12, the Democratic House leaders
gave up their idea of having a commission take a look at the
surveillance program, which we believe would have been political,
further interfering with the work of the Intelligence Committee and
perhaps community, and perhaps lead to increased leaks about the
program.
They agreed on a longer sunset than in previous bills. We abandoned
the idea that the FISA Court should be the one to assess compliance
with the minimization procedures used in foreign targeting. With the
concessions Republicans and the administration had already made, along
with some minor technical fixes, I am proud to say the intelligence
community was given the flexibility and tools it needs to keep us safe.
We had a compromise.
Now, I offer all that as background so the record is clear. That
brings us where we are today. Once we get on the bill, I will explain
what is before us, and I will explain how statements from some about
this legislation is nothing short of fear mongering, such as from those
who are saying all Americans who talk to anyone overseas will be
listened to by the Government. That is flat wrong.
Americans cannot be targeted without a court order, period. If
someone overseas is targeted and talks to an American, then the
American's end of the communication is what we call minimized, which
means it is hidden, protected, suppressed. I will elaborate further on
this. But at this time, I simply ask my colleagues to vote for cloture
so we may move immediately to the bill.
I note some of my colleagues from the Senate Intelligence Committee
are seeking recognition, and I appreciate the work all members of the
committee have done. I see my colleague from Georgia, who has been an
outstanding help, and the Senator from California, who has offered many
useful ideas. This has been truly a year's long work, and we are happy
to bring the final process before the Senate today.
I thank the Chair and yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from California is
recognized.
Mrs. FEINSTEIN. Mr. President, it is my understanding I am next in
the order. I ask unanimous consent that following my presentation the
Senator from Vermont be recognized on our side. I know Senator
Chambliss is here on the Republican side and wishes to speak.
Mr. CHAMBLISS. Mr. President, reserving the right to object, can we
propose a unanimous consent request that following Senator Feinstein, I
be recognized to speak, and then Senator Sanders will be next?
The ACTING PRESIDENT pro tempore. I believe that was the Senator's
request.
Mrs. FEINSTEIN. That was the intent.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mrs. FEINSTEIN. Thank you very much, Mr. President.
Mr. President, I begin my remarks by thanking the chairman of the
Intelligence Committee, Senator Rockefeller, and the vice chairman of
the Intelligence Committee, Senator Bond, the House Speaker, and the
House leadership for their distinguished work on this piece of
legislation. This has not been easy. It is certainly not without
controversy. There are some major challenges to work through.
I want to begin by putting my remarks, at least, in context.
There is no more important requirement for national security than
obtaining accurate, actionable intelligence. At the same time, there
have to be strong safeguards in place to ensure that the Government
does not infringe on Americans' constitutional rights.
Yet if Congress does not act and pass this bill, as it was passed
overwhelmingly in the House, both of these goals,
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I believe, are in jeopardy. Here is why. If this bill does not pass,
our Nation would likely be forced to either extend the Protect America
Act or leave the Nation bare until a new bill can be written. Neither
of these are good options.
As I will describe, the Protect America Act does not adequately
protect Americans' constitutional rights. It was written to be a
temporary measure for 6 months, and it expired on February 5.
What many people do not understand is that surveillance conducted
under the Protect America Act will cease by the middle of August. It
will be impossible to write a new bill, to get it past both Houses, to
have it signed by the President in time to meet this deadline.
If that bill expires without this Congress passing new legislation,
we will be unable to conduct electronic surveillance on a large number
of foreign targets. In other words, our intelligence apparatus will be
laid bare and the Nation will go into greater jeopardy. I truly believe
that.
The FISA legislation of 1978 cannot accommodate this number of
targets. It is simply inadequate for this new task due to changes in
technology and the communications industry. That is precisely why FISA
needs to be modernized.
So taking no action means we will be opening ourselves, in my view,
to the possibility of major attack. This is unacceptable.
So as I see it, our choice is a clear one: We either pass this
legislation or we extend the Protect America Act. For me, this
legislation is much the better option.
This bill, in some respects, improves even on the base bill, the 1978
Foreign Intelligence Surveillance Act. It provides clear protections
for U.S. persons both at home and abroad. It ensures that the
Government cannot conduct electronic surveillance on an American
anywhere in the world without a warrant. No legislation has done that
up to this point.
I think the improvements in this bill over the Protect America Act
and the 1978 legislation are important to understand, and I wish to
list a few.
First, prior court review. This bill ensures that there will be no
more warrantless surveillance. Now, why do I say this? Under the
Protect America Act--which is expiring, but we are still collecting
surveillance under it for now--the intelligence community was
authorized to conduct electronic surveillance for a period of 4 months
before submitting an application for a warrant to the FISA Court.
Surveillance could actually proceed for 6 months before there was a
warrant.
Under this bill, the Government must submit an application and
receive a warrant from the FISA Court before surveillance begins. No
more warrantless surveillance. This is, in fact, a major point.
In emergency cases, there can be a short period of collection--up to
7 days--as the application is prepared. There has been a provision for
emergency cases under FISA for some 30 years now. So that is prior
court review for a U.S. person anywhere in the world if content is
collected.
Meaningful court review. This bill strengthens court review. Under
the Protect America Act, the Government submitted to the FISA Court its
determination that procedures were in place to ensure that only people
outside the United States would be targeted. The court could only
reject an application for a warrant if it found that determination to
be ``clearly erroneous.'' This bill returns to the traditional FISA
standard, empowering the court to decide whether the Government's
determination is ``reasonable.'' This is a higher standard of review,
so the court review under this bill is meaningful.
Next, minimization. These first two improvements ensure that the
Government will only be targeting people outside the country. That is
good, but it is not enough. There is always the possibility of someone
outside the country talking to a U.S. person inside the country. The
bill addresses this with a process known as minimization.
In 1978, Congress said that the Government could do surveillance on
U.S. persons under a court warrant, but required the Government to
minimize the amount of information on those Americans who get included
in the intelligence reporting. In practice, this actually means that
the National Security Agency only includes information about a U.S.
person that is strictly necessary to convey the intelligence. Most of
the time, the person's name is not included in the report. That is the
minimization process.
If an American's communication is incidentally caught up in
electronic surveillance while the Government is targeting someone else,
minimization protects that person's private information.
Now, the Protect America Act did not provide for court review over
this minimization process at all. But this bill requires the court in
advance to approve the Government's minimization procedures prior to
commencing with any minimization program. That is good. That is the
third improvement.
Fourth, reverse targeting. There is an explicit ban on reverse
targeting. Now, what is reverse targeting? That is the concern that the
National Security Agency could get around the warrant requirement. If
the NSA wanted to get my communications but did not want to go to the
FISA Court, they might try to figure out who I am talking with and
collect the content of their calls to get to me. This bill says you
cannot do that. You cannot reverse target. It is prohibited. This was a
concern with the Protect America Act, and it is fixed in this bill.
Those are four reasons--good reasons. Here is a fifth: U.S. person
privacy outside the United States. This bill does more than Congress
has ever done before to protect Americans' privacy regardless of where
they are, anywhere in the world. Under this bill, the executive branch
will be required to obtain a warrant any time it seeks to direct
surveillance at a U.S. person anywhere in the world. So any U.S. person
anywhere in the world is protected by the requirement that a warrant
must be received from the Foreign Intelligence Surveillance Court
before electronic surveillance can begin.
Previously, FISA only covered people inside the United States. The
Protect America Act did the same thing.
Now, also under this bill, there will be reviews of surveillance
authorities by the Director of National Intelligence, the Attorney
General, the heads of all relevant agencies, and the inspectors general
of all relevant agencies on a regular basis, and the FISA Court and the
Congress will receive the results of those reviews.
So there will be regular reporting from the professionals in the
arena on how this bill is being followed through on--how electronic
surveillance is being carried out worldwide. The Intelligence and
Judiciary Committees will receive those reports. That, too, is
important.
Also, under this bill, there will be a retrospective review of the
President's Terrorist Surveillance Program. That is the program that
has stirred the furor. The bill requires an unclassified report on the
facts of the program, including its limits, the legal justifications,
and the role played by the FISA Court and any private actors involved.
This will provide needed accountability.
In summary, all intelligence collection under the Terrorist
Surveillance Program will be brought under court review and court
orders.
Everything I have described brings this administration back under the
law. There is no more Terrorist Surveillance Program. There is only
court-approved, Congressionally reviewed collection.
But what is to keep this administration or any other administration
from going around the law again? The answer is one word, and it is
called exclusivity.
It means that the Foreign Intelligence Surveillance Act is the only,
the exclusive, means for conducting electronic surveillance inside the
United States for foreign intelligence purposes.
The exclusivity language in this bill is identical in substance to
the amendment I offered in February, which received 57 votes in this
Senate. It is section 102 of this bill.
This language reiterates what FISA said in 1978, and it goes further.
Here is what this bill says:
Never again will a President be able to say that his authority--or
her authority, one day, I hope--as Commander in Chief can be used to
violate a law duly enacted by Congress.
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Never again can an Executive say that a law passed to do one thing--
such as use military force against our enemies--also overrides a ban on
warrantless surveillance. The administration has said that the
resolution to authorize the use of military force gave this President
the right to go around FISA.
Never again can the Government go to private companies for their
assistance in conducting surveillance that violates the law.
Now, this administration has a very broad view of Executive
authority. Quite simply, it believes that when it comes to these
matters, the President is above the law. I reject that notion in the
strongest terms.
I think it is important to review the recent history with this
administration to demonstrate why FISA exclusivity is so important.
At the very beginning of the Terrorist Surveillance Program, John
Yoo, at the Office of Legal Counsel, wrote in a legal opinion that:
. . . [u]nless Congress made a clear statement in the
Foreign Intelligence Surveillance Act that it sought to
restrict presidential authority to conduct warrantless
searches in the national security area--which it has not--
then the statute must be construed to avoid [such] a reading.
That was the argument. I believe it is wrong. Congress wrote FISA in
1978 precisely in the field of national security; there are other,
separate laws that govern wiretapping in the criminal context. In fact,
the Department of Justice has repudiated Yoo's notion.
But if the Department admitted that FISA did apply, it found another
excuse not to take the Terrorist Surveillance Program to the FISA
Court.
The Department of Justice developed a new, convoluted argument that
Congress had authorized the President to go around FISA by passing the
authorization to use military force against al-Qaida and the Taliban.
This is as flimsy as the last argument.
There is nothing in the AUMF that talks about electronic surveillance
or FISA, and I know of not one Member who believed we were suspending
FISA when we authorized the President to go to war.
But that is another argument we lay to rest with this bill. Here is
how we do it. We say in the language in this bill that FISA is
exclusive. Now, here is the major part: Only a specific statutory grant
of authority in future legislation can provide authority to the Chief
Executive to conduct surveillance without a FISA warrant.
So we go a step further in exclusivity. We cover what Yoo was trying
to argue and what others might argue on behalf of a Chief Executive in
the future, by closing the loophole and saying: You need specific
statutory authority by the Congress of the United States to go outside
the law and the Constitution.
The final argument the President has made is that even if FISA was
intended to apply, and even if the AUMF didn't override FISA's
procedures, he still had the authority as Commander in Chief to
disregard the law.
Now, I have spoken on the floor before about how the President
believes he is above the law and the Youngstown Sheet and Tube Company
v. Sawyer case. In that case, Justice Jackson described how the
President's power is at the ``lowest ebb'' when he is acting in
contravention to the will of the Congress.
This bill, again, makes it clear that the will of Congress is that
there will be no electronic surveillance inside the United States
without a warrant, and it makes clear that any electronic surveillance
that is conducted outside of FISA or outside of another express
statutory authorization for surveillance is a criminal act. It is
criminalized. This is the strongest statement of exclusivity in
history.
The reason I am describing all this is to build a case of legislative
intent in case this is ever litigated, and I suspect it may well be.
So, finally, I wish to read into the Record the comments on
exclusivity from a June 19, 2008, letter that Attorney General Mukasey
and Director of National Intelligence McConnell wrote to the Congress.
The letter recognizes that the exclusivity provision in this bill
``goes beyond the exclusive means provision that was passed as part of
FISA [in 1978].''
So they essentially admit we are taking exclusivity to a new high.
Nevertheless, they acknowledge that the provision in this bill ``would
not restrict the authority of the government to conduct necessary
surveillance for intelligence and law enforcement purposes in a way
that would harm national security.''
I said in February I could not support a bill without exclusivity.
This is what keeps history from repeating itself and another President
from going outside the law. I believe that with this language we will
prevent it from ever happening again.
Now, a comment on title II of the bill, which is the telecom immunity
section. This bill also creates a legal process that may--and, in fact,
is likely to--result in immunity for telecommunications companies that
are alleged to have provided assistance to the Government.
I have spent a great deal of time reviewing this matter. I have read
the legal opinions written by the Office of Legal Counsel at the
Department of Justice. I have read the written requests to
telecommunications companies. I have spoken to officials inside and
outside the Government, including several meetings with the companies
alleged to have participated in the program.
The companies were told after 9/11 that their assistance was needed
to protect against further terrorist acts. This actually happened
within weeks of 9/11. I think we can all understand and remember what
the situation was in the 3 weeks following 9/11.
The companies were told the surveillance program was authorized and
that it was legal, and they were prevented from doing their due
diligence in reviewing the Government's request. In fact, very few
people in these companies--these big telecoms--are actually cleared to
receive this information and discuss it. So that creates a very limited
universe of people who can do their due diligence within the confines
of a given telecommunications company.
For the record, let me also address what I have heard some of my
colleagues say. At the beginning of the Terrorist Surveillance Program,
only four Senators were briefed. The Intelligence Committee was not,
other than the Chairman and Vice Chairman.
I am one who believes it is right for the public and the private
sector to support the Government at a time of need. When it is a matter
of national security, it is all the more important.
I think the lion's share of the fault rests with the administration,
not with the companies.
It was the administration who refused to go to the FISA Court to seek
warrants. They could have gone to the FISA Court to seek these warrants
on a program basis, and they have done so subsequently.
It was the administration who withheld this surveillance program from
the vast majority of Members of Congress, and it was the administration
who developed the legal theories to explain why it could, in fact, go
around the law.
So I am pleased this bill includes independent reviews of the
administration's actions to be conducted by the inspectors general of
the relevant departments.
All of that said, when the legislation was before the Senate in
February, I stated my belief that immunity should only be provided if
the defendant companies acted legally, or if they acted in good faith
with a reasonable belief that their actions were legal. That is what
the law calls for.
I moved an amendment to require the court to review the written
requests to companies to see whether they met the terms of the law.
That law requires that a specific person send a certification in
writing to a telecommunications company. That certification is required
to state that no court order is required for the surveillance, that all
statutory requirements have been met, and that the assistance is
required by the Government.
Unfortunately, my amendment was not adopted, but I continue to
believe it is the appropriate standard.
Now, the pending legislation does not assess whether the request made
by the Government was, in fact, legal, nor whether the companies had a
good-faith and objective belief that the requests were legal. What this
bill does provide is a limited measure of court
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review. It is not as robust as my amendment would have provided, but it
does provide an opportunity for the plaintiffs to be heard in court,
and it provides an opportunity for the court to review these request
documents.
I believe the court should not grant immunity without looking into
the legality of the companies' actions. So if there is an amendment
that does support this, I would intend to vote for it.
But I believe the Record should be clear in noting that if this bill
does become law, in my view, it does not mean the Congress has passed
judgment on whether any companies' actions were or were not legal.
Rather, it should be interpreted as Congress recognizing the
circumstances under which the companies were acting and the reality
that we desperately need the voluntary assistance of the private sector
to keep the Nation secure in the future.
I believe this bill balances security and privacy without sacrificing
either. It is certainly better than the Protect America Act in that
regard, and makes improvements over the 1978 FISA law.
As I said, if a new bill is not in place by mid-August, the Nation
will be laid bare and unable to collect intelligence.
This bill provides for meaningful and repeated court review of
surveillance done for intelligence purposes. It ends, once and for all,
the practice of warrantless surveillance, and it protects Americans'
constitutional rights both at home and abroad. It provides the
Government with the flexibility it needs under the law to protect our
Nation. It makes it crystal clear that this is the law of the land and
that this law must be obeyed.
I yield the floor.
The PRESIDING OFFICER (Mr. Webb). The Senator from Georgia is
recognized.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the
unanimous consent agreement be amended, and that following my comments,
Senator Sanders be recognized, and that following Senator Sanders,
Senator Hatch be recognized.
The PRESIDING OFFICER. Is there an objection?
Without objection, it is so ordered.
Mr. CHAMBLISS. Mr. President, I wish to speak about H.R. 6304, the
Foreign Intelligence Surveillance Act Amendments Act.
Before I do that, I wish to make a couple comments relative to the
comments made by my colleague from California regarding the TSP or
terrorist surveillance program implemented by the President within days
after September 11, and make sure Americans are very clear about two
points: First of all, Congress did know about this program. Members of
Congress were briefed throughout the duration of this program. Members
of Congress were briefed on a regular basis. That doesn't mean every
Member of Congress but the leadership knew exactly what was going on,
exactly what the President was doing. They were kept very informed.
Secondly, the targets of the terrorist surveillance program were not
Americans; the program targeted the communications of al-Qaida, that we
knew--not guessed but that the intelligence community knew were used by
al-Qaida. Today, al-Qaida gets up every morning, just as they did
before and after September 11, and they think of ways to kill and harm
Americans. Our intelligence community, without getting into the details
of it, suffice it to say, has done a magnanimous job since then in
protecting Americans.
The fact that we have not suffered another attack on domestic soil
since then indicates the terrific job that members of the intelligence
community have done. The terrorist surveillance program that was
implemented by the administration immediately after September 11 is a
major factor in why we have not suffered another act of terrorism on
domestic soil. Information gathered from the terrorist surveillance
program was used rightly to disrupt terrorist activity, both
domestically as well as abroad. Some of the instances where the
terrorist surveillance program has stopped attacks and saved lives are
very public right now.
Again, I rise to comment on H.R. 6304. This critical legislation has
been the subject of many negotiations and, although the legislation is
not perfect, I am pleased with the bipartisan nature of this compromise
bill. I commend Vice Chairman Bond, Congressman Hoyer, and Congressman
Blunt on their work.
I am satisfied that this legislation will provide our intelligence
agencies with the legal tools necessary to perform their jobs, the
flexibility they require, and the capability to protect Americans'
civil liberties. However, I am perplexed it has taken Congress this
long to adopt meaningful legislation necessary to protect our country;
legislation which Congress knew, at least since last August, needed to
be enacted expeditiously. Normally, Congress is accused of being guided
by expediency rather than principle but not usually in national
security matters. Intelligence is bipartisan. Securing our Nation is
bipartisan. It is in every American's interest that Congress act
quickly to protect our Nation from terrorist attack, espionage, or any
other harm. Yet the bill before us now is substantially the same as S.
2248, which was drafted in a bipartisan nature by Senators Rockefeller
and Bond and passed the Senate over 4 months ago, on February 12, 2008,
with a supermajority vote of 68 in favor and only 29 in opposition.
Last summer, our intelligence community officials informed us that,
as a result of a decision by the FISA Court and changes in technology,
they had lost the ability to collect intelligence on terrorists around
the world who wish to harm the United States. Congress responded to
these pleas from our intelligence community and passed the Protect
America Act, which temporarily fixed this problem, but we knew then we
had to have a more permanent solution. Despite this knowledge and
despite the hard work of the Senate Intelligence Committee for the
previous 10 months, Congress failed to fix FISA in February. The House
leadership refused to consider the Senate-passed bill, despite stated
support from a majority of that body's members. I can only surmise that
there were political, rather than substantive, reasons that prevented
this legislation from passing months ago. Some may say this is the
nature of one of the political branches of Government. What no one
talks about is the harm this has caused.
But, as a result of the Protect America Act's expiration, our
collection efforts have been degraded. The public likely is not aware,
nor may be many Members of this Chamber, but the members on the Senate
Select Committee on Intelligence have heard regularly about the
disruptions and legal obstacles that have occurred as a result of our
inaction. The week after the Protect America Act expired, the Director
of National Intelligence told us that ``we have lost intelligence
information this past week as a direct result of the uncertainty
created by Congress' failure to act.'' Gaps in our intelligence
collection began to resurface, and it has had a real and negative
impact on our national security.
Our intelligence collection relies on the assistance of U.S.
telecommunications carriers. These communication providers are facing
multimillion dollar lawsuits for their alleged assistance to the
Government after September 11, 2001. After the expiration of the
Protect America Act, many providers began to delay or refuse further
assistance. Losing the cooperation of just one provider could mean
losing thousands of pieces of intelligence on a daily basis. According
to the Director of National Intelligence, uncertainty about potential
liability caused many carriers to question whether they could continue
to provide assistance after the expiration of the Protect America Act.
In just 1 week after its expiration, we lost significant amounts of
intelligence forever. We will never be able to recover those lost
communications, nor will we ever know what we missed.
For this reason, it is crucial that any FISA legislation include
retrospective, as well as prospective, immunity for telecommunications
providers who assist the Government in securing our national security.
Title II of this bill, just as title II of S. 2248, provides the
minimum protections needed for our electronic service providers. In a
civil suit against a communications provider, the Government may submit
a certification that any assistance provided was pursuant to a
Presidential authorization and at the time determined to be lawful. The
district courts may review this certification, and if it finds that it
is supported by substantial evidence, the court must dismiss
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the case. This is not a commentary on, or a court sanction of, the
President's alleged terrorist surveillance program. It is the right
thing to do.
Unlike many countries which regularly suppress an individual's speech
or violate an individual's right to privacy, a cornerstone of our
democratic and free society is a limited Government--one that doesn't
sanction Government intrusion on an individual's private life. The
Government cannot infringe upon an individual's rights without due
process. But, in order to preserve those rights, Americans rely upon
the Government to provide that freedom and security to protect them
from harm, whether it be from a criminal on the streets or from an
international terrorist.
Under U.S. criminal law, the U.S. frequently requests the assistance
of private citizens and companies in order to combat crime. These
companies provide assistance, usually pursuant to a court order--
but not always--to help keep Americans safe. When assistance is needed
to combat terrorism overseas, patriotic U.S. companies step up to the
plate and help their country. At a minimum, these companies rely upon
Government assurances that their assistance is lawful. When sued in a
court, they are sometimes unable to supply a defense for their actions
without exposing Government secrets or jeopardizing Government
investigations. Instead, they rely on the Government to come to their
defense and assert Government sanction. In the case of the President's
terrorist surveillance program--which despite leaks in the press,
remains highly classified and secret--these companies are defenseless.
If the Government can show a court its assurances--still classified--
that the assistance was lawful, and the court determines upon
substantial evidence that the company acted pursuant to a Presidential
authorization or other lawful means, then our American companies should
not be liable.
If any constitutional or privacy violation occurred, an aggrieved
individual may still sue the Government. This bill, however, assures
America's corporations that their good-faith assistance will not
subject them to frivolous lawsuits from individuals who really are
alleging a claim against the Government, not those who assist it.
Ordinarily, Americans should be protected against Government intrusion,
but it should not be at the cost of higher phone and Internet access
bills for customers just so these corporations can defend themselves
against frivolous lawsuits.
This legislation preserves liability protection for Americans, and I
am pleased to see that our bipartisan, bicameral negotiators sustained
this provision. Title II of this legislation is largely the same as
what was in the Senate-passed bill. I commend the House for passing
legislation including this provision and the Senate for now taking
much-needed action.
One thing that came out of the debate on this particular aspect of
the bill within the Intelligence Committee was the fact that in this
situation it is pretty obvious that the Government was in a crisis
situation just following September 11. We had just been attacked by
terrorists. We needed the assistance of private corporations in
America. When we asked for their assistance, they stepped up to the
plate. We know it is going to happen again. It may not be a terrorist
attack next time; it may be some other crisis that is inflicted upon
America. At that point in time, we are going to need the assistance of
the private sector in America again. If we don't tell the private
sector, in this particular case, that we are going to protect them and
make sure they suffer no loss as a result of stepping up to help
protect Americans following September 11, then should we expect the
private sector to step up next time, whatever the crisis may be? The
answer to that is obvious, and, in a very bipartisan way within the
Intelligence Committee, there was general agreement that is the way we
should proceed.
The only real and meaningful differences between this bill and the
Senate-passed bill are more judicial involvement in the President's
constitutional duty to conduct foreign affairs and protect our Nation.
Our intelligence agencies will be allowed to collect intelligence
against individuals located outside the United States, without having
to first seek individual court orders in each instance.
Rather than having to seek numerous court orders and losing time and
valuable collection opportunities, this legislation will require a
reasonable belief that the target is outside the United States, so our
intelligence analysts have the ability to assess and task new
collection in real time; that is, before the bad guys get away, switch
phones, and continue their planning. Unlike the Senate-passed bill,
this legislation requires prior court review and approval of the
targeting and minimization procedures submitted by the Attorney
General, our chief law enforcement and legal advisor, and the Director
of National Intelligence, our primary national security adviser.
I wish to state in the record that the exigent circumstances
provision included in this legislation is not meant to be limited.
Rather, it is a provision necessary to allow the retention of
intelligence gathered in those situations where prior court approval
was not practical.
Under no circumstance is it acceptable for intelligence gathered
under an exigent circumstance, and later found to be acceptable by the
court, to be discharged. Intelligence does not wait for court orders,
and it must be collected timely. The intelligence community should not
have to wait for a court order to continue collection against those who
seek to harm America. If the court later determines that the targeting
and certifications were lawful, then our intelligence officials should
be allowed to review that which was collected.
It is now time for us to make more permanent changes to FISA to
ensure we have the ability to obtain intelligence on terrorists and our
adversaries. Although not a perfect bill, the FISA Amendments Act will
fill the gaps identified by our intelligence officials and provide them
with the tools and flexibility they need to collect intelligence from
targets overseas, while at the same time providing significant
safeguards for the civil liberties of Americans. This bill will ensure
that we do not miss opportunities to target and collect foreign
terrorist communications just because our operators had to get
permission from a U.S. court first.
Let me be clear, these amendments to FISA would only apply to
surveillance directed at individuals who are located outside of the
United States. This is not meant to intercept conversations between
Americans or even between two terrorists who are located within the
United States. The Government still would be required to seek the
permission of the FISA Court for any surveillance done against people
physically located within the United States, whether a citizen or not.
In fact, this legislation will provide new protections for U.S.
citizens under our law. Under this bill, for the first time, a court
order must be obtained to conduct electronic surveillance for foreign
intelligence purposes against an American who is located outside the
United States. It also includes a prohibition on reverse targeting;
that is, our intelligence agencies will not be allowed to target an
individual overseas with the intent and purpose of obtaining a U.S.
person's communications.
I am satisfied that the FISA Amendments Act will close gaps in our
intelligence collection as well as provide some legal certainty to
those patriotic companies that assist us. I urge my colleagues to
support this bill and give our professional intelligence officials the
confidence they need to secure our Nation.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. SANDERS. Mr. President, I come to the floor today to express my
strong opposition to H.R. 6304, the FISA Amendments Act, and my
opposition to invoking cloture on the motion to proceed to this
legislation.
Let me tell you what I think this debate is about and what it is not
about. What it is not about is whether anyone in the Senate or the
Congress is not going to do everything he or she can to protect the
American people from another terrorist attack. It is not about whether
we are going to be as vigorous as we can in hunting down terrorists. It
is not about whether we are going to be vigilant in the war against
terrorism. That is what it is not about. What it is
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about essentially is whether we can be forceful and successful in
fighting terrorism while we protect the constitutional rights that make
us a free country. That is what this debate is about.
I happen to believe that with strong law enforcement, with a strong
and effective judiciary, with a Congress working diligently, we can be
vigorous and successful in protecting the American people against
terrorism and we can do it in a way that does not undermine the
constitutional rights which people have fought for hundreds of years to
protect--the Constitution, which today remains one of the greatest
documents ever written in the history of humanity.
We hear a whole lot about the word ``freedom.'' Everybody in the
Senate and the House is for freedom. But what do we mean by freedom?
What we mean by freedom is that we want our kids to be able to read any
book they want to read without worrying that the FBI is going to come
into a library or a bookstore to check on what they are reading. We
want people to be able to write letters to the editor critical of the
President, critical of their Congressmen or their Senator without
worrying that somebody is going to knock on their door. We want people
to have the freedom to assemble, to demonstrate without worrying that
someone has a camera on them and is taking notes and later on there
will be retribution because they exercised their freedom of assembly
and their right to dissent.
That is really what the debate is about. It is not whether you are
for protecting the American people against a terrorist attack. That is
not what the debate is. The debate is whether we, as a great country,
will be capable of doing that within the context of our laws, within
the context of our Constitution, and understanding that we are a nation
of laws and not of men, regardless of who the President is.
Before I go into deeper concerns, I begin by recognizing the very
hard work done by members of both the Intelligence Committee and the
Judiciary Committee in the Senate and in the House. We all know these
are not issues resolved, and while I have strong disagreements with the
final product, I know that the intentions of all the Members on both
sides of the aisle were honorable.
Although there have been some improvements made to this bill that the
Senate passed earlier this year, including having the inspector general
review the so-called terrorist surveillance program and making it clear
that FISA and criminal law are the exclusive process by which the
electronic surveillance can take place rather than some broad power of
the President, this final legislation is something I simply cannot
support.
This legislation does not strike the right and appropriate balance
between ensuring that our intelligence community has the tools it needs
to protect our country against international terrorism and protecting
the civil liberties of law-abiding Americans. Instead, it gives a get-
out-of-jail-free card to companies that may well have violated the
privacy and constitutional rights of millions of innocent Americans.
I am proud to be a cosponsor of the amendment that will be offered,
as I understand it, by Senators Dodd, Feingold, and Leahy to strike
title II of the Intelligence bill which deals with retroactive
immunity. This is a very important amendment, and I hope a majority of
the Members of the Senate will support it.
It is important in this debate to put the discussion of this FISA
legislation in a broader context. The context, sadly, in which we must
view this legislation has everything to do with the history of what
this administration currently in power has done since 9/11. Sadly, what
they have done is shown the people of our country and people all over
the world that they really do not understand what the Constitution of
the United States is about and, in fact, they do not understand, in
many instances, what international human rights agreements, such as the
Geneva Convention, are all about.
So when we enter this debate, we should not look at it that this is
the first time we are addressing the issue of fundamental attacks on
American civil liberties. This has been going on year after year. This
is more of the same from an administration which believes, to a
significant degree, that they are an imperial Presidency, that in the
guise of fighting terrorism, a President has the right to do anything
against anybody for any reason without understanding what our
Constitution is about or what our laws are about.
Let me give a few examples to remind my colleagues what kind of
credibility, or lack thereof, this administration has in the whole area
of civil liberties.
Among other things, this administration has pushed for, successfully,
the passage of the original PATRIOT Act and the PATRIOT Act
reauthorization. Under that bill, among many things, an area I was
involved in when I was in the House was a provision that says, without
probable cause, the FBI can go into a library or bookstore and find out
the books you are reading, and if the librarian or bookstore owner were
to tell anybody, that person would be in violation of the law. Do we
want the kids of this country to be frightened about taking out a book
on Osama bin Laden because somebody may think they are sympathetic to
terrorism? I don't think so. What freedom is about is encouraging our
young people and all Americans to investigate any area they want. I
don't want the people of this country to be intimidated. That is not
what free people are about.
Further, under this administration, we have seen an illegal and
expanded use of national security letters by the FBI.
We have seen the NSA's warrantless wiretap program, which, in fact,
is what we are discussing today.
We have seen the President using signing statements to ignore the
intent of Congress's law in an unprecedented way. The President says:
Oh, yes, I am going to sign this bill, but, by the way, I am not going
to enforce section 387; I don't like that section. Mr. President, that
is not the way the law works. If you don't like it, you have the power
to veto. You cannot pick and choose what provisions you want. But that
is, to a large degree, what this President has done.
What we have seen in recent years is a profiling of citizens engaged
in constitutionally protected free speech and peaceful assembly. As I
mentioned earlier, the right to dissent, the right to protest is at the
heart of what this country is about. I do not want Americans to be
worried that there is a video camera filming them and they will be
punished somewhere down the line because they exercised their freedom
of speech.
We have seen data mining of personal records.
We have seen the Abu Ghraib prison scandal, which has embarrassed us
before the entire world.
We have seen a broad interpretation of congressional resolutions
regarding use of military force as justification for unauthorized
surveillance and other actions.
We have seen extraordinary renditions of detainees to countries that
allow torture. All over the world, people are looking at the United
States of America and saying: What is going on in that great Nation? We
tell them to be like us, to support democracy, to support human rights,
and then we engage in torture and we pick people up and we take them to
countries where they are treated in horrendous ways. This is certainly
one of the reasons respect for the United States has gone down all over
this world, which is a tragedy unto itself but obviously makes it
harder for us to bring countries together in the important fight
against international terrorism.
We have seen an administration that has gotten rid of the rights of
detainees to file habeas corpus petitions--simply put people away, deny
them access to a lawyer, deny them the right to defend themselves.
We have seen political firings in the Office of the U.S. Attorney.
We have seen destruction of CIA tapes.
The list goes on and on.
So the issue we are debating today has to be seen in the broader
context that for the last 7 years, there has been a systematic attack
on our Constitution by an administration which believes that, in the
guise of fighting terrorism, they can do anything they want against
anybody they want without getting court approval or without respecting
our Constitution and the rule of law.
[[Page S6124]]
I wish to touch on one point. I know Senator Feingold, Senator Leahy,
and Senator Dodd have touched on this bill at great length. I just want
to focus on one issue, and that is the retroactive immunity granted to
the telecommunications companies.
Why is it important that we support the amendment which does away
with that retroactive immunity? It is very simple. The argument is that
the President of the United States went to these companies and said:
Look, I need your help in doing something, and the companies obliged.
Then the issue is, well, why are we punishing them, even if they
broke the law? And the answer is pretty simple: It is precisely that we
are a nation of laws and not of men. If we grant them retroactive
immunity, what it says to future Presidents is, I am the law because I
am the President, and I will tell you what you can do. And because I
tell you what to do or ask you to do something, that is, by definition,
legal. Go and break into my political opponent's office. Don't worry
about it; I am the President. I am saying it is for national security.
Those guys are bad guys, just do it. I am the President, and that is
all that matters.
That is the precedent that we are setting today, and I think it is a
very bad precedent. Trust me, Verizon and these other large
telecommunications companies, multi, multibillion-dollar companies,
have a lot of lawyers. They have a lot of good lawyers. And what we
know, in fact, is that some of the telecommunications companies--at
least one that comes to mind--said: No, Mr. President, sorry, that is
unconstitutional. That is illegal, I ``ain't'' gonna do it. I applaud
them for that. But others said: Hey, the President is asking us, we are
going to do it.
The point is, the President is not the law. The law is the law. The
Constitution is the law. And I don't want to set a precedent today by
which any President can tell any company or any individual: You go out
and do it; don't worry about it; no problem at all. That is not what
this country is about.
So let me conclude, Mr. President, by saying this is a very important
issue which concerns millions and millions of Americans. Bottom line,
every American, every Member of the Senate understands we have to do
every single thing we can to protect the American people from terrorist
attacks. There is no debate about that. Some of us believe, however,
that we can be successful in doing that while we uphold the rule of
law, while we uphold the Constitution of this country, which has made
us the envy of the world and for which we owe the Founders of our
country and those who came after, fighting to protect those civil
liberties, so much.
Madam President, I yield the floor.
The PRESIDING OFFICER (Mrs. McCASKILL). The Senator from Utah.
Mr. HATCH. Madam President, Congress has been working on FISA
modernization since April of 2007. That is over 425 days ago. It is
simply amazing to me that it would take this long. As I have often
said, the Constitution of the United States was written in about 115
days, and that included travel time on horseback for the Founding
Fathers. We have spent plenty of time on this issue.
So why is it taking so long? Should this issue be controversial? I
can only surmise that the delay is due to the ominous sounding
terrorist surveillance program. That is the program where the President
had the audacity to allow the intelligence community to listen to
international communications where at least one person was suspected to
be a member of al-Qaida--the same al-Qaida who killed nearly 3,000
innocent American civilians on September 11; the same al-Qaida who
since that day has committed attacks in Istanbul, Algiers, Karachi,
Islamabad, Casablanca, London, Madrid, Mombasa, the Gulf of Aden,
Riyadh, Tunisia, Amman, and Bali; the same al-Qaida whose mission
statement can be summed up in three words: ``Death to America.''
This is the group the President targeted. He wanted an early warning
system to help prevent future attacks--a terrorist smoke detector, if
you will. We often are reminded that we are fighting against an
unconventional enemy, one that has asymmetrical advantages against us.
Al-Qaida is not a nation state and adheres to no treaties or principles
on the conduct of war. They wear no uniforms. They hide in peace-loving
societies and deliberately conduct mass attacks against unarmed
civilians. But we also have asymmetrical advantages.
As the most technologically sophisticated Nation in history, we have
huge advantages that derive from this expertise. We are also--and I
certainly see this as an asymmetrical advantage over the barbarism that
is al-Qaida--a nation of laws. Finally, our surveillance laws are going
to be modernized so we can continue to use our own technological
superiority to help prevent future attacks against our public and the
public of nations that have joined us in our fight to liquidate al-
Qaida.
This is what the President was always intent on doing. So he
initiated the terrorist surveillance program, and the administration
provided appropriate briefings to the chairs and ranking members of the
Senate and House Intelligence Committees and to the leaders of both
parties in both Chambers. When a new Member of Congress assumed one of
those positions, they were given a similar briefing.
Last year, the Senate Intelligence Committee and numerous staff
conducted a full review of the terrorist surveillance program and found
no wrongdoing.
So why has it taken us so long to get here, and what is the concern
that has caused the delay; that the President listened to the
international communications of al-Qaida after 9/11? No President would
ever engage in this type of activity, except of course President
Woodrow Wilson, who authorized interceptions of communications between
Europe and the United States, and President Franklin Roosevelt, who in
1940 authorized interception of all communications into and out of the
United States.
I guess the fourth amendment and the media's outrage were more
flexible under Democratic Presidents. But let's leave these situations
aside and continue to focus on the program one of my Democratic
colleagues previously called ``one of the worst abuses of executive
power in our history.''
With all due respect to my colleague, if listening to the
international communications of al-Qaida is one of the biggest power
grabs in the country's history, then our Nation has lived a charmed
existence, worthy of envy throughout the world.
We should never forget the reasons for the creation of this program.
It is no accident that America has not been attacked since September
11. Is it more than luck? Did al-Qaida take a hiatus from terrorist
attacks? Given al-Qaida's numerous foreign attacks during this same
timeframe, I think the answer is clearly no. So something must be
working. Perhaps the terrorist surveillance program has played a role.
But what about warrantless wiretapping? That phrase certainly means
something illegal, right? Not really. As often as that phrase is
repeated, what does it really mean? Does warrantless wiretapping
automatically mean unconstitutional? That is certainly what we are led
to believe by the hand-wringing blatteroons of the day. But this is
simply not true.
The fourth amendment does not proscribe warrantless searches or
surveillance. It proscribes unreasonable searches or surveillance. For
example, let's look at a few of the numerous warrantless searches that
are performed every day: Waiting for warrantless searches at the U.S.
Border Inspection Station. Look at that mess.
Look at this: Waiting for warrantless searches at the U.S. Supreme
Court. It is done every day that the court is in session, and even when
it isn't sometimes. Waiting for warrantless searches at the National
Archives. In other words, waiting to be searched before viewing the
fourth amendment. This happens every day. I see that there are members
of the public in the gallery above. Every last one of them went through
a warrantless search just to get into this building.
So the question becomes whether a warrantless search or surveillance
of international communications involving al-Qaida is reasonable or, to
put it another way, whether signals intelligence against a declared
enemy of the United States is reasonable. In my opinion, and I think in
the opinion of the vast majority of our body, it certainly is.
[[Page S6125]]
Let's also look at what the Foreign Intelligence Surveillance Court
of Review, the highest court that has considered this issue, has said:
The Truong court, as did all the other courts to have
decided the issue, held that the President did have inherent
authority to conduct warrantless searches to obtain foreign
intelligence information. We take for granted that the
President does have that authority and, assuming that is so,
FISA could not encroach on the President's constitutional
power.
That is out of in re: Sealed, case 310 F3d, 717, the FISA Court of
Review, 2002.
While the phrase ``warrantless wiretapping'' has been cited
incessantly, there is another phrase mentioned nearly as often, and
that is ``domestic spying.'' In order to better evaluate this phrase,
let's look at what the President said in a December 17, 2005, radio
address that described the TSP.
In the weeks following the terrorist attacks on our Nation,
I authorized the National Security Agency, consistent with
U.S. law and the Constitution, to intercept the international
communications of people with known links to al-Qaida and
related terrorist organizations. Before we intercept these
communications, the government must have information that
establishes a clear link to these terrorist networks.
I don't see anything in that statement about domestic spying. I
thought the definition of the word ``domestic'' was pretty clear. If
the program intercepted communications in which at least one party was
overseas, not to mention a member of al-Qaida, then it seems fairly
obvious that those calls were--and I will emphasize this--not domestic.
Is this a domestic call? A foreign terrorist calling a terrorist
within the United States? I hardly think so. Is this really such a hard
concept? The last time I flew overseas, I didn't fly on a domestic
flight. I flew on an international flight. My last phone bill showed
there is a big difference between domestic calls and international
calls.
Domestic spying may sound catchy and mysterious, but it is a
completely inaccurate, even misleading, way to describe the TSP
terrorist surveillance program--or FISA modernization. Why don't we
describe them as international spying, which is what they really are?
Isn't that a more accurate description? But I imagine international
spying wouldn't raise the same level of fear and distrust in our
Government that some on the left try to foster.
So while I regret the political machination that has turned this
seemingly straightforward issue on its head, I am hopeful the time for
debate is finally over. Yet some have suggested Congress should not
pass a bill modernizing FISA. Even after such a prolonged period and
extensive debate on the issue, they would prefer that we do nothing.
We are now hearing about efforts to strike or amend the immunity
provisions in the compromise bill so that Members may express their
views.
Is this really necessary? Did the multiple times the Senate has
considered and rejected similar efforts mean nothing?
Look at this: The Senate has affirmed telecom civil liability
protection in six separate votes. On October 18, 2007, the Senate
Intelligence Committee rejects the amendment to strike the immunity
provisions 12 to 3. That was bipartisan, by the way. On November 15,
2007, the Senate Judiciary Committee rejects amendment to strike
immunity provisions 12 to 7. Again, bipartisan. On 12/13/07, the Senate
Judiciary Committee rejects stand-alone Government substitution bill 13
to 5. On January 24, 2008, the full Senate tables the Judiciary's
substitute, which does not include immunity, 60 to 36. On February 12,
2008, the full Senate rejects the amendment to substitute the
Government for telecoms 68 to 30. On February 12, 2008, the full Senate
rejects amendment to strike immunity provisions 67 to 31.
The last time I saw that and looked at those numbers, those were all
bipartisan votes. The civil liability provision in the Senate bill,
which has been tweaked in this compromise, is supported by a bipartisan
majority of the House and Senate, after all this hullabaloo.
In addition, let us not forget the opinions of the State attorneys
general who previously wrote to Congress to express their support for
civil liability protection.
Look at all the State attorneys general who endorse immunity. State
attorney general of Wisconsin, the attorney general of Rhode Island,
the attorney general of Oklahoma, the attorney general of Colorado, the
attorney general of Florida, the attorney general of Alabama, the
attorney general of Arkansas, the attorney general of Georgia, the
attorney general of Kansas, the attorney general of my beloved home
State of Utah, the attorney general of Texas, the attorney general of
New Hampshire, the attorney general of Virginia, the attorney general
of North Dakota, the attorney general of North Carolina, the attorney
general of South Carolina, the attorney general of Pennsylvania,
attorney general of South Dakota, attorney general of Nebraska, the
attorney general of West Virginia, the attorney general of Washington.
These are all legal officers, by the way, attorneys general of those
very States.
Another complaint that has been mentioned is that this bill does not
have adequate oversight. We have heard allegations that:
the government can still sweep up and keep the
international communications of innocent Americans in the
U.S. with no connection to suspected terrorists, with very
few safeguards to protect against abuse of this power.
We have heard other allegations that this bill does not provide
adequate protections for innocent Americans. Make no mistake. The role
of the Federal judiciary into the realm of foreign intelligence
gathering is greatly expanded by this legislation.
So when we hear the incessant claims that this legislation lacks
meaningful review, I want people to be absolutely crystal clear on the
staggering amount of oversight in this bill.
The Foreign Intelligence Surveillance Court was created by the 1978
FISA law for solely one purpose: This is Title 50 of the U.S. Code
1803(a): ``a court which shall have jurisdiction to hear applications
for and grant orders approving electronic surveillance.''
Let's think about this. It is America in 1978. The Church Committee
has published information about known abuses by the Government
involving surveillance against American citizens. The public wanted
action. So what did the 95th Congress do?
Did it create a Court with the authority to review and approve the
intelligence community's foreign targeting techniques? No.
Did it create a Court with the ability to review and approve the
techniques used to minimize incidental interceptions involving
Americans? No.
Did it mandate the intelligence community to get a warrant when
targeting United States persons overseas? No.
But the 110th Congress will mandate each and every one of those
things by passing this bill.
For the first time, the FISC will review and approve targeting
procedures to ensure that authorized acquisitions are limited to
persons outside of the United States.
For the first time, the FISC will review and approve minimization
techniques.
For the first time, the FISC will ensure that the foreign
targeting procedures are consistent with the fourth amendment.
So given the staggering amount of oversight, there must be some
sweeping new surveillance authority that would necessitate these
changes, right? Wrong.
The ``broad new surveillance authority'' that we hear so much about
is directed at one thing: the Government can target foreign citizens
overseas after the FISC reviews and approves the targeting and
minimization procedures. In layman's terms: the Government can listen
to foreign citizens overseas to collect foreign intelligence
information. That doesn't sound like broad sweeping authority to me. In
fact, it is less authority than the Government had before.
Let me enumerate some of the many restrictions on this authority:
No. 1, the Government can't intentionally target any person known to
be in the U.S.
No. 2, the Government can't intentionally target a person outside the
U.S. if the purpose is to target a known person in the U.S.--reverse
targeting.
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No. 3, the Government can't acquire domestic communications in the
U.S.
No. 4, the targeting has to be consistent with the fourth amendment
to the Constitution.
And there is more: the Attorney General and the Director of National
Intelligence have to develop and adopt guidelines to ensure compliance
with these limitations. These guidelines must be submitted to
Congressional Intelligence and Judiciary Committees as well as the
FISC.
The Attorney General and the Director of National Intelligence shall
assess compliance with the targeting and minimization procedures at
least every 6 months. This assessment must be submitted to the FISC,
and the Intelligence and Judiciary committees of both chambers of
Congress.
The Inspectors General of the Department of Justice and each element
of the intelligence community may review compliance with the targeting
and minimization procedures.
Finally, this bill authorizes a horde of inspectors general to
conduct a full review of certain communications surveillance
activities--a review that the Senate Intelligence Committee has already
conducted on a bipartisan basis and found nothing wrong. Vice Chairman
Bond and the other negotiators agreed to narrow the scope of this
review so that there would be minimal or no operational impact on our
intelligence analysts. It should come as no surprise that we want
intelligence analysts to focus on analysis, not spend limited time and
resources digging up documents for redundant IG reviews.
So for those who criticize this bill as lacking oversight, I wonder
if any level would be enough? I have no doubt that some would only be
satisfied by specific individual warrants for each and every foreign
terrorist overseas. This would complete the twisted logic that somehow
giving complete constitutional protections to foreign terrorists leads
to more protections for Americans. Do we really need to remind people
that foreign citizens outside of our country, particularly members of
terrorist organizations, enjoy no--none--no protections from our
Constitution?
Make no mistake about the power the FISA Court will possess in
foreign intelligence gathering following passage of this bill. If the
Court finds any deficiency in the certification submitted by the
Attorney General or Director of National Intelligence, then the FISC
can direct the Government to cease or not initiate the foreign
targeting. In other words--our collection would go dark. Fortunately,
the Government will be able to rightly begin acquisitions pending an
appeal to the Foreign Intelligence Surveillance Court of Review.
This is surely an intimidating environment for our intelligence
analysts. Essentially, any accident or mistake will be highlighted to
Congress. Unforgiving is not the word. I wonder how many private
citizens would enjoy having policies at their jobs where any
inadvertent error would result in notification to and review by
Congress?
I will suggest that the amount of oversight in this bill should be
revisited in the future; not to increase it, but rather to mandate more
realistic and appropriate levels of review.
The multiple oversight initiatives in this legislation are not
fulfilled by magic. It takes a tremendous amount of time and resources
by the very analysts whose primary job is to track terrorists. As great
as our analysts are, they can't be two places at once. There are only
so many of them, and they don't have unlimited resources. It is worth
noting what Director of National Intelligence McConnell said to
Congress last September:
Prior to the Protect America Act, we were devoting
substantial expert resources towards preparing applications
that needed FISA Court approval. This was an intolerable
situation, as substantive experts, particularly IC subject
matter and language experts, were diverted from the job of
analyzing collection results and finding new leads.
The leaders of our intelligence community have to make wise choices
when allocating the time and expertise of analysts, and their hands
should not be unnecessarily tied by Congress. Analytic expertise on
target is a finite resource; a finite resource which the public must
understand is rendered against an enemy whose resources and
capabilities remain obscured to us, while its intent remains deadly.
But I guess I shouldn't be surprised by the inclusion of these
onerous oversight provisions, which no previous Congress felt the need
to add. How many times have we heard claims that the Protect America
Act would permit the Government to spy on innocent American families
overseas on their vacations? Or innocent American soldiers overseas
serving our country? Or innocent students who are simply studying
abroad?
Painting this type of picture only feeds the delusions of those who
wear tin foil hats around their house and think that 9/11 was an inside
job.
Do we think so little of the fine men and women of our intelligence
community that we assume they would rather target college kids in
Europe than foreign terrorists bent on nihilistic violence?
The absurdity of these accusations cannot be understated and we
should not tolerate them. We should never forget that our intelligence
analysts are not political appointees. They serve regardless of which
President is in office, or which political party is represented. They
take an oath to defend the Constitution. And rather than respect and
trust their judgment and integrity, we layer oversight mechanisms that
treat them like 16-year-olds who just got their first job and have to
be birdwatched for fear they are stealing money from the cash register.
Now I agree there are some instances in which we may want to target
individuals studying abroad. I am not necessarily talking about
institutions of higher learning like the Sorbonne, but rather terrorist
training camps spread through some hostile regions of foreign
countries. These are the type of schools that our intelligence
community is interested in. When it comes to these students, I want to
know what they are up to.
Here is a good illustration: Supposed ``Graduation'' of Taliban
Members on June 9, 2007. I want to know what they are about.
After addressing some of the critiques of this bill by others, let me
offer one of my own. This bill calls for prior court review and
approval of certifications presented to the FISC before foreign
intelligence collection can begin. As I have consistently stated
throughout these FISA modernization discussions, I believe this
principle is unjustified and unwise.
The idea that the executive branch of the Government needs the
explicit approval of the judiciary branch before collecting foreign
intelligence information from foreign citizens in foreign countries is
simply wrongheaded and is contrary to our Constitutional principles. I
don't care if the President represents the Democratic party, Republican
party, Green party, Independent party, or Whig party; he shouldn't need
permission to track foreign terrorists.
With that said, I am encouraged that the bill includes a provision
which would allow collection before court review of procedures if
``exigent circumstances'' exist. Even with this provision, I am
troubled that one of my Democratic colleagues in the House made the
following statement last week about this provision:
This is intended to be used rarely, if at all, and was
included upon assurances from the administration that agrees
that it shall not be used routinely.
This begs the question, is tracking terrorists not an ``exigent
circumstance''? I urge the executive branch to utilize this provision
appropriately and as often as necessary following the informed judgment
of those with the appropriate acumen to make such decisions. The phrase
``intelligence * * * may be lost'' means what it says: if the executive
branch determines that we may lose intelligence while waiting for the
Court to issue an order, then the Intelligence Community should do what
our Nation expects: it should act and act quickly. The executive branch
should not hesitate to utilize this authority because of fear of
reprisal from those who may seek to advance political agendas--which we
have seen plenty of, and some on this floor today.
Finally, I want to highlight the extensive efforts of the negotiators
of this bill in both chambers. I especially want to express my
appreciation and gratitude to my friend and colleague Kit Bond, the
dedicated vice chairman of the Intelligence Committee, who adeptly
navigated and managed the
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tense and tedious negotiations to bring about the opportunity for
passage of this historic legislation, the most extensive rewrite of
foreign intelligence surveillance laws in 30 years.
As you can tell from the tone of my remarks, I am less than pleased
at some of the compromises made in these negotiations. I don't like the
expansion of the judiciary branch into what I believe are activities
rightly under the executive's prerogative. But I came to the Senate to
achieve improvements for the American people, not to be an ideologue.
My entire career as a legislator has been in recognition that
compromise gets more done for the public than obstruction. The people
of Utah didn't send me to the Senate to obstruct business, but to get
business done. Nowhere is this more important than on matters where the
Congress is enjoined by our citizens to improve the national security.
I am a pragmatist, and I am a realist. Part of being a realist, these
days, is to recognize that there is a disturbing backlash against the
national security policies of this administration. Fueled by
dissatisfaction over mistakes in Iraq, over frustration that the fight
there and in Afghanistan continues into its seventh year, and that Al
Qaeda remains a credible and deadly threat, many people in the majority
party have gone beyond criticism to denunciation, to condemnation and
obstruction. I am hoping that the general election before us will
provide the opportunity for a truly grand debate on what we consider
are threats, and how we believe we must continue to address them. But
so far the debate has not been joined, and the rhetoric is becoming
more poisonous. I have come to this floor and expressed my own
criticisms of this administration, but I have never had reason to
condemn them as operating in bad faith when it came to defending this
Nation.
I know this President. The President is a wonderfully good man. He
has done everything in his power to try to protect us. He is an honest
man. He has had untoward criticism from the media day in and day out.
He has been deliberately maligned by people who should know better.
Yes, this administration has made mistakes, but they have not been
made intentionally. It is pathetic the way the media and many have
treated this President. I think we have got to go back to where we
respect our President and we show some degree of tolerance for the
tough job that being President is.
It is regrettable for me that the rhetoric around the terrorism
surveillance program has devolved too often into fire but no light. So
while I am concerned about some of the compromises made in this bill, I
am grateful for all of the work done to bring it to a vote this week.
We have to have this bill to protect the American people.
I urge my colleagues to support this monumental and historic
legislation. Our country continues to be both the envy of the world and
the target of those who seek to advance their warped, violent ideology.
We know the threats are out there. We do not have to live our lives in
fear, but we should acknowledge that the world changed on September 11
and we must remain vigilant.
Let's ensure that all of the dedicated and noble professionals who
play a part in ensuring our liberty and safety are not hampered by
partisan problems that we have the ability and responsibility to
correct.
The legislation before us makes an important and admirable attempt to
do just that. I hope my colleagues will support this legislation and
support final passage. It is overdue. It has been delayed too long. We
have been playing around with this far too long. There have been so
many unjust criticisms, I am sick of them, to be honest with you. It is
almost as though politics has to rear its ugly head every time we turn
around here. A lot of it is driven by the fact that people resent the
President of the United States. They do so unjustly, without proper
sense, in ways that are detrimental to our country and future
presidencies that will come into office. This President has had very
difficult problems to handle.
I believe I am the longest serving person on the Senate Select
Committee on Intelligence. I have been around a long time. I have seen
a lot of things. I have tried to help prior Presidents as I have played
a role on the Intelligence Committee. I have done so, I believe,
without resorting to partisan attacks. We have had too many partisan
attacks around here, and I think too many vicious attacks against the
President and, I might add, against these unnamed, highly classified
unknown, except by those in the intelligence community, telecom
companies that patriotically helped our country to protect us, that
have gone through untold expense, the deprivation and harm caused by
the zealousness of those who believe that only they can protect the
civil liberties of this country, when, in fact, that is what the
telecom companies were cooperating to do.
I thank all of the Intelligence Committee staffers who have played
such a big role in helping this bill to come to the floor. We have a
very dedicated staff on the Intelligence Committee. I have to say that
in this current Intelligence Committee I have seen more partisanship
than I have seen in the past. But, by and large, when we passed the
original bill out of the committee, it was passed 13 to 2, and we
worked together in a very good way on that committee.
So I thank those staffers who worked so hard to try and help us all
resolve this set of difficulties. I hope everybody in the Senate will
vote for this bill and send it out with resounding victory.
I yield the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. WYDEN. Madam President, soon the Senate will take up the Foreign
Intelligence Surveillance Act. It, of course, is known as FISA. FISA
may not be a household word to most Americans, but a properly written
FISA reauthorization is exceptionally important to the well-being of
our country and it needs to meet a simple test: It must allow our
country to fight terrorism ferociously and still protect our individual
liberty.
I do not know how many Senators have traveled to the other end of
Pennsylvania Avenue to personally read the legal opinions from the
Department of Justice on the warrantless wiretapping program that is at
the center of this debate. Someday these opinions are going to become
public. Someday the American people will see how flimsy the legal
reasoning is behind warrantless wiretapping. Someday the American
people will see the damage that is done to our Nation when the
executive branch tries to rewrite important national security law in
secret.
The warrantless wiretapping program is not the first of this
administration's counterterrorism programs that is built on legal
quicksand. We have seen the coercive interrogation program, and the
detention program at Guantanamo. Again and again on these vital
counterterrorism programs, the administration has overreached, it has
fallen short, and then it has come to the Congress and asked that the
Congress clean up these legal messes. I am especially troubled by the
provisions in this reauthorization of the FISA bill that grant blanket
retroactive immunity to any telecommunications company that
participated in the warrantless wiretapping program. I want to spend a
few minutes to unpack this issue and discuss why I think it is such a
significant mistake to reauthorize the program in this fashion and to
have what amounts to a blanket amnesty provision for those who may have
been involved in illegal activity.
Many have argued that companies that were asked to participate in the
warrantless wiretapping program should be treated leniently since they
acted during a state of national panic and confusion. I have given this
argument a lot of thought and, frankly, I think there is a valid
rationale behind that thinking if you are talking about a short period
of time. But that is not what is being discussed here. The warrantless
wiretapping program did not last for a few weeks or a few months as
America worried about the prospect of another attack. It went on for
nearly 6 years. At some point during that nearly 6-year period, any
company participating in the program had an obligation to stop and to
consider whether what they were doing was legal.
Others have suggested that if you do not give amnesty to the
companies now, it is going to be impossible to get
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cooperation from other companies in the future in the fight against
terrorism. I do not buy that argument. Our country is full of patriotic
citizens and businesses that are eager to do their part and to serve
their Nation. I will say, I think it is insulting to suggest that
American businessmen and women will be less patriotic if the Congress
does not grant amnesty to the phone companies. People of this country
love our Nation, and I believe they step up, they come forward whenever
they can.
I hope, however, that they are not going to say: Well, okay, when the
Government breaks the law we will automatically step forward in those
instances. When American businesses are asked to participate in a
program that looks as if it could be illegal, we all say, that is the
time to hold on. I think it is important, particularly for our major
businesses, to follow the law and not just the words of the President.
I am disappointed that this legislation includes this amnesty
provision. I hope as colleagues continue to examine the bill, they
understand what is at issue.
If the legislation passes, the Attorney General will be able to stop
any of the lawsuits against the companies dead in their tracks. All the
Attorney General will have to do is tell the judges considering these
cases that any corporation that participated in the program was told by
the Government that what they were doing was legal. They will not have
to actually prove it was legal, they will not have to provide any
evidence, they will not have to cite any statutes, they will not have
to make any legal arguments whatsoever.
In my view, this amounts to self-certification. Self-certification
runs counter to the whole idea of the Foreign Intelligence Surveillance
Act in the first place. The Foreign Intelligence Surveillance Act is
based on the notion that the way to keep classified intelligence
activities from intruding on Americans' privacy is to make sure there
is a significant measure of independent judicial oversight. The judges
in this situation will be allowed to examine as many documents as they
like. But, in this instance, they will not actually be allowed to
exercise independent judgment at all. As long as they see a piece of
paper, a piece of paper that gets held up from a few years ago, a
Presidential permission slip, if you will, that claims the program is
legal, they will be required to grant immunity to the phone companies.
Even the distinguished leader in the House, the minority whip, has
acknowledged that this would be a mere ``formality.''
The concept of independent oversight that is so central to the
Foreign Intelligence Surveillance Act and that has worked so well in
practice simply, in my view, should not be transformed into an approach
that effectively permits the administration to self-certify with
respect to these particular cases.
I want to be clear that I cannot begin to divine how various matters
in litigation will come out. In addition to the constitutional issues
that are at stake, there is a number of contentious matters regarding
standing, injury, a host of very difficult legal problems involved. I
think the judges in these cases will need to consider all of the issues
if the cases go forward. That is what makes the judicial process in the
original statute so important. It is independent. They look at all of
the factors that are relevant. But I will say that I did not think the
Congress or I should substitute our judgment for the judgment of the
courts, and that is, in effect, what happens if the legislation goes
forward as written and blanket immunity is granted to every company
that participated in the program.
It saddens me to have to oppose the legislation as written. I do so
knowing that the bill contains a number of very important provisions
and, with respect to individual liberty and the rights of our people,
contains some significant steps forward. I am especially grateful to
Senators Rockefeller and Bond for working very closely with me to
ensure that Americans who travel overseas don't lose their rights when
they leave America's shores. That is the status today, regrettably. In
this area, Senators Rockefeller, Bond, myself, Whitehouse, Feingold, a
number of us who serve on the Senate Select Committee on Intelligence
worked in a constructive, good-faith way with the Bush administration.
In this legislation, we have put into law that in the digital age, your
rights are going to travel with you. You don't lose your rights. If you
are a serviceman from the State of Missouri or a businessperson from
another part of the country, you won't lose your rights when you leave
American soil. That is as it should be. It is a significant expansion
of the individual liberties of our citizens. They should not give up
their rights when they travel. They ought to have rights that do travel
in a world with modern communications and modern transportation. That
provision is part of this reauthorization.
However, I feel so strongly about the ill-advised nature of the
provisions that provide for blanket amnesty that I must oppose this
bill as written. I think when history looks back at what happened, the
warrantless wiretapping program, they are going to say that this
program, along with several other flawed counterterrorism programs that
have come from this administration, was a mistake. We should not
compound those mistakes by reauthorizing this legislation that contains
a blanket grant of immunity at a time when Americans understand that it
is possible to fight terrorism relentlessly, fight terrorism
ferociously without trashing our rights and liberties simultaneously.
We can do better. The Senate will have an opportunity to do better. A
number of colleagues are going to be advocating proposals to strip the
legislation of the amnesty provision. I hope those provisions will be
successful.
I would like to pass this bill when we have an opportunity to strike
a better balance between fighting terrorism aggressively and protecting
the liberties of our citizens.
With that, I yield the floor.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. DODD. Madam President, before our colleague leaves the Chamber, I
commend him for his statement. I had a chance to listen to part of it
before coming to the floor of the Senate. This is a long-held view of
my colleague when it comes to civil liberties and the rule of law. I
commend him for remaining consistent in that insistence. He is
absolutely correct that this is not a choice between security or
liberty. In fact, I argue, as he has, that when we begin to retreat on
the rule of law, we become less secure as a people. We have learned
that lesson painfully throughout history. This is the time for us to be
vigilant, both in terms of our security and also when it comes to our
rights. This is an issue that ought not divide people based on our
determination to deal with terrorism or those who wish to do great harm
to our country but to recognize that historically, when we have been
motivated by fear and have failed to stand up for basic rights, we have
made horrendous mistakes. When we have stood up for our rights as well
as insisting on our security, we have done our job as a generation, as
previous ones have as well.
This is one of those moments history will look back upon. Why did we
say that 17 phone companies that relied on a letter and not much more
than that decided for over 5 years to invade the privacy of millions of
Americans and would still be doing it today but for a whistleblower who
revealed the program? Why did they not seek the FISA Court, as 18,748
other cases that been submitted and only 5 examples when they were
turned down seeking a warrant since 1978? Why in this case did the Bush
administration decide to avoid that normal process and go with a simple
letter, without any legal justification I can determine, and get that
kind of reaction? Why should we not know that? Why should not the
American people know that? What happened here?
That is what the Senator is insisting upon. We will not know the
answers to those questions if we, as a legislative body, by a simple
vote here, declare that the courts have no business examining the
legality of this action. We will avoid that responsibility by casting a
vote to keep this immunity process in place. I will be joining him. In
fact, I will be offering the amendment to strike the immunity
provisions, to do our job when it comes to dealing with FISA, to
modernizing it, but not to grant immunity to 17 phone companies.
Quest, to their great credit, when they were given that letter, said:
We need more legal justification. They did
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not engage in this program. Not all phone companies did. But the ones
that did bear the responsibility to determine whether what they did was
legal. We will never know the answer to that if the Senator from Oregon
and I do not prevail on our amendment.
I commend him immensely for his statement.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. I thank the Chair.
Madam President, the Senate today--hopefully, tomorrow--returns to
debating the matter of modernizing FISA and, more specifically, the
Foreign Intelligence Surveillance Amendments Act of 2008. After many
months of careful and often very difficult negotiations, we bring to
the Senate an agreement that many believed could actually never be
achieved, that is bipartisan legislation aimed at protecting the
Nation's security and civil liberties, supported by the House, by the
Senate, as well as both the Attorney General and the Director of
National Intelligence.
The bill before us reflects the fact that FISA, as it was created in
1978, has increasingly become outdated and hindered our Nation's
ability to collect intelligence on foreign targets in a timely manner.
It is the direct result of changing technologies, advances in
technology, in telecommunications, and the need to evolve and meet
today's threat facing our Nation; namely, global terrorism and the
proliferation of weapons of mass destruction.
The fact is, as telecommunications technology has changed,
intelligence agencies have been presented with collection opportunities
inside the United States against targets overseas. Yet, because of the
way FISA was written in 1978, they could not take full advantage of
these new opportunities.
Finding a solution to this problem has not been easy. It was made
more complicated by the President's decision, in the aftermath of the
September 11, 2001, disaster, to go completely outside of the FISA
rather than work with Congress to fix the situation. That decision was
complicated even further by the fact that the President put
telecommunication companies in a precarious position by not giving them
the legal security of the FISA Court, even when they were told their
efforts were legal and necessary to prevent another terrorist attack.
Early last year, at the start of our tenure as the new chairman and
vice chairman of the Senate Intelligence Committee, Senator Bond and I
agreed that our top priority was going to be to modernize FISA. It had
to be our top priority for the year. Even then, I don't think we
understood how complex and difficult this endeavor would be or even
just how important it would be to our intelligence efforts and to the
war against terrorism. It is a monumental bill, and it redoes, for the
first time in 30 years, proper handling of collection, which is why I
am so pleased to stand before you today and say that we have succeeded.
The laborious process of consultation with Members of both bodies and
both parties and legal and intelligence officials in the executive
branch has worked. We have produced a strong, smart policy that will
meet the needs of our intelligence community and protect America's
cherished civil liberties.
For procedural reasons, the bill now before the Senate is a new bill
which passed the House on Friday by a vote of 293 to 129. You can run
that out to a 70-percent vote. While formally a new bill, it is the
product of compromise between the FISA bills developed, debated, and
amended in both Houses in the course of the past year.
In the absence of a formal conference, there is no conference report
that describes this final bill. To help fill that void, I have
prepared, as manager of the bill, a section-by-section analysis which
builds on the analysis in our earlier Senate report and includes the
changes that have followed. I hope it will be of assistance to the
Senate in consideration of this final legislation as well as to the
public and all those who will have responsibility to implement the
bill.
Accordingly, I ask unanimous consent to have printed in the Record
the summary of the bill's legislative history and a description of its
four titles.
There being no objection, the material was ordered to be printed in
the Record, as follows:
H.R. 6304, FISA AMENDMENTS ACT OF 2008
Section-by-Section Analysis and Explanation
Senator John D. Rockefeller IV, Chairman of the Select Committee on
Intelligence
The consideration of legislation to amend the Foreign
Intelligence Surveillance Act of 1978 (``FISA'') in the 110th
Congress began with submission by the Director of National
Intelligence (``DNI'') on April 12, 2007 of a proposed
Foreign Intelligence Surveillance Modernization Act of 2007,
as Title IV of the Administration's proposed Intelligence
Authorization Act for Fiscal Year 2008. The DNI's proposal
was the subject of an open hearing on May 1, 2007 and
subsequent closed hearings by the Senate Select Committee on
Intelligence, but was not formally introduced. It is
available on the Committee's website: http://
intelligence.senate.gov/070501/bill.pdf. In the Senate, the
original legislative vehicle for the consideration of FISA
amendments in the 110th Congress was S. 2248. It was reported
by the Select Committee on Intelligence on October 26, 2007
(S. Rep. No. 110-209 (2007)), and then sequentially reported
by the Committee on the Judiciary on November 16, 2007 (S.
Rep. No. 110-258 (2008)). In the House, the original
legislative vehicle was H.R. 3773. It was reported by the
Committee on the Judiciary and the Permanent Select Committee
on Intelligence on October 12, 2007 (H. Rep. No. 110-373
(Parts 1 and 2)(2007)). H.R. 3773 passed the House on
November 15, 2007. S. 2248 passed the Senate on February 12,
2008, and was sent to the House as an amendment to H.R. 3773.
On March 14, 2008, the House returned H.R. 3773 to the Senate
with an amendment.
No formal conference was convened to resolve the
differences between the two Houses on H.R. 3773. Instead,
following an agreement reached without a formal conference,
the House passed a new bill, H.R. 6304, which contains a
complete compromise of the differences on H.R. 3773.
H.R. 6304 is a direct descendant of H.R. 3773, as well as
of the original Senate bill, S. 2248, and the legislative
history of those measures constitutes the legislative history
of H.R. 6304. The section-by-section analysis and explanation
set forth below is based on the analysis and explanation in
the report of the Select Committee on Intelligence on S.
2248, at S. Rep. No. 110-209, pp. 12-25, as expanded and
edited to reflect the floor amendments to S. 2248 and the
negotiations that produced H.R. 6304.
Overall Organization of Act
The FISA Amendments Act of 2008 (``FISA Amendments Act'')
contains four titles.
Title I includes, in section 101, a new Title VII of FISA
entitled ``Additional Procedures Regarding Certain Persons
Outside the United States.'' This new title of FISA (which
will sunset in four and a half years) is a successor to the
Protect America Act of 2007, Pub. L. 110-55 (August 5, 2007)
(``Protect America Act''), with amendments. Sections 102
through 110 of the Act contain a number of amendments to FISA
apart from the collection issues addressed in the new Title
VII of FISA. These include a provision reaffirming and
strengthening the requirement that FISA is the exclusive
means for electronic surveillance, important streamlining
provisions, and a change in the definitions section of FISA
(in section 110 of the bill) to facilitate foreign
intelligence collection against proliferators of weapons of
mass destruction.
Title II establishes a new Title VIII of FISA which is
entitled ``Protection of Persons Assisting the Government.''
This new title establishes a long-term procedure, in new FISA
section 802, for the Government to implement statutory
defenses and obtain the dismissal of civil cases against
persons, principally electronic communication service
providers, who assist elements of the intelligence community
in accordance with defined legal documents, namely, orders of
the FISA Court or certifications or directives provided for
and defined by statute. Section 802 also incorporates a
procedure with precise boundaries for liability relief for
electronic communication service providers who are defendants
in civil cases involving an intelligence activity authorized
by the President between September 11, 2001, and January 17,
2007. In addition, Title II provides for the protection, by
way of preemption, of the federal government's ability to
conduct intelligence activities without interference by state
investigations.
Title III directs the Inspectors General of the Department
of Justice, the Department of Defense, the Office of National
Intelligence, the National Security Agency, and any other
element of the intelligence community that participated in
the President's Surveillance Program authorized by the
President between September 11, 2001, and January 17, 2007,
to conduct a comprehensive review of the program. The
Inspectors General are required to submit a report to the
appropriate committees of Congress, within one year, that
addresses, among other things, all of the facts necessary to
describe the establishment, implementation, product, and use
of the product of the President's Surveillance Program,
including the participation of individuals and entities in
the private sector related to the program.
Title IV contains important procedures for the transition
from the Protect America Act to the new Title VII of FISA.
Section 404(a)(7) directs the Attorney General and the DNI,
if they seek to replace an authorization under the Protect
America Act, to
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submit the certification and procedures required in
accordance with the new section 702 to the FISA Court at
least 30 days before the expiration of such authorizations,
to the extent practicable. Title IV explicitly provides for
the continued effect of orders, authorizations, and
directives issued under the Protect America Act, and of the
provisions pertaining to protection from liability, FISA
court jurisdiction, the use of information acquired and
Executive Branch reporting requirements, past the statutory
sunset of that act. Title IV also contains provisions on
the continuation of authorizations, directives, and orders
under Title VII that are in effect at the time of the
December 31, 2012 sunset, until their expiration within
the year following the sunset.
Title I. Foreign Intelligence Surveillance
Section 101. Targeting the Communications of Persons Outside
the United States
Section 101(a) of the FISA Amendments Act establishes a new
Title VII of FISA. Entitled ``Additional Procedures Regarding
Certain Persons Outside the United States,'' the new title
includes, with important modifications, an authority similar
to that granted by the Protect America Act as temporary
sections 105A, 105B, and 105C of FISA. Those Protect America
Act provisions had been placed within FISA's Title I on
electronic surveillance. Moving the amended authority to a
title of its own is appropriate because the authority
involves not only the acquisition of communications as they
are being carried but also while they are stored by
electronic communication service providers.
Section 701. Definitions
Section 701 incorporates into Title VII the definition of
nine terms that are defined in Title I of FISA and used in
Title VII: ``agent of a foreign power,'' ``Attorney
General,'' ``contents,'' ``electronic surveillance,''
``foreign intelligence information,'' ``foreign power,''
``person,'' ``United States,'' and ``United States person.''
It defines the congressional intelligence committees for the
purposes of Title VII. Section 701 defines the two courts
established in Title I that are assigned responsibilities
under Title VII: the Foreign Intelligence Surveillance Court
(``FISA Court'') and the Foreign Intelligence Surveillance
Court of Review. Section 701 also defines ``intelligence
community'' as found in the National Security Act of 1947.
Finally, section 701 defines a term, not previously defined
in FISA, which has an important role in setting the
parameters of Title VII: ``electronic communication service
provider.'' This definition is connected to the objective
that the acquisition of foreign intelligence pursuant to this
title is meant to encompass the acquisition of stored
electronic communications and related data.
Section 702. Procedures for Targeting Certain Persons Outside
the United States Other than United States Persons
Section 702(a) sets forth the basic authorization in Title
VII, replacing section 105B of FISA, as added by the Protect
America Act. Unlike the Protect America Act, the collection
authority in section 702(a) is to be conducted pursuant to
the issuance of an order of the FISA Court, or pursuant to a
determination of the Attorney General and the DNI, acting
jointly, that exigent circumstances exist, as defined in
section 702(c)(2), subject to subsequent and expeditious
action by the FISA Court. Authorizations must contain an
effective date, and may be valid for a period of up to one
year from that date.
Subsequent provisions of the Act implement the prior order
and effective date provisions of section 702(a): in addition
to section 702(c)(2) which defines exigent circumstances,
section 702(i)(1)(B) provides that the court shall complete
its review of certifications and procedures within 30 days
(unless extended under section 702(j)(2)); section
702(i)(5)(A) provides for the submission of certifications
and procedures to the FISA Court at least 30 days before the
expiration of authorizations that are being replaced, to the
extent practicable; and section 702(i)(5)(B) provides for the
continued effectiveness of expiring certifications and
procedures until the court issues an order concerning their
replacements.
Section 105B and section 702(a) differ in other important
respects. Section 105B authorized the acquisition of foreign
intelligence information ``concerning'' persons reasonably
believed to be outside the United States. To make clear that
all collection under Title VII must be targeted at persons
who are reasonably believed to be outside the United States,
section 702(a) eliminates the word ``concerning'' and instead
authorizes ``the targeting of persons reasonably believed to
be located outside the United States to collect foreign
intelligence information.''
Section 702(b) establishes five related limitations on the
authorization in section 702(a). Overall, the limitations
ensure that the new authority is not used for surveillance
directed at persons within the United States or at United
States persons. The first is a specific prohibition on using
the new authority to target intentionally any person within
the United States. The second provides that the authority may
not be used to conduct ``reverse targeting,'' the intentional
targeting of a person reasonably believed to be outside the
United States if the purpose of the acquisition is to target
a person reasonably believed to be in the United States. If
the purpose of the acquisition is to target a person
reasonably believed to be in the United States, the
acquisition must be conducted in accordance with other titles
of FISA. The third bars the intentional targeting of a United
States person reasonably believed to be outside the United
States. In order to target such United States person,
acquisition must be conducted under three subsequent sections
of Title VII, which require individual FISA court orders for
United States persons: sections 703, 704, and 705. The fourth
limitation goes beyond targeting (the object of the first
three limitations) and prohibits the intentional acquisition
of any communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States. The fifth is an overarching
mandate that an acquisition authorized in section 702(a)
shall be conducted in a manner consistent with the Fourth
Amendment to the U.S. Constitution, which provides for ``the
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.''
Section 702(c) governs the conduct of acquisitions.
Pursuant to section 702(c)(1), acquisitions authorized under
section 702(a) may be conducted only in accordance with
targeting and minimization procedures approved at least
annually by the FISA Court and a certification of the
Attorney General and the DNI, upon its submission in
accordance with section 702(g). Section 702(c)(2)
describes the ``exigent circumstances'' in which the
Attorney General and Director of National Intelligence may
authorize targeting for a limited time without a prior
court order for purposes of subsection (a). Section
702(c)(2) provides that the Attorney General and the DNI
may make a determination that exigent circumstances exist
because, without immediate implementation of an
authorization under section 702(a), intelligence important
to the national security of the United States may be lost
or not timely acquired and time does not permit the
issuance of an order pursuant to section 702(i)(3) prior
to the implementation of such authorization. Section
702(c)(3) provides that the Attorney General and the DNI
may make such a determination before the submission of a
certification or by amending a certification at any time
during which judicial review of such certification is
pending before the FISA Court.
Section 702(c)(4) addresses the concern, reflected in
section 105A of FISA as added by the Protect America Act,
that the definition of electronic surveillance in Title I
might prevent use of the new procedures. To address this
concern, section 105A redefined the term ``electronic
surveillance'' to exclude ``surveillance directed at a person
reasonably believed to be located outside of the United
States.'' This redefinition, however, broadly exempted
activities from the limitations of FISA's individual order
requirements. In contrast, section 702(c)(4) does not change
the definition of electronic surveillance, but clarifies the
intent of Congress to allow the targeting of foreign targets
outside the United States in accordance with section 702
without an application for a court order under Title I of
FISA. The addition of this construction paragraph, as well as
the language in section 702(a) that an authorization may
occur ``notwithstanding any other law,'' makes clear that
nothing in Title I of FISA shall be construed to require a
court order under that title for an acquisition that is
targeted in accordance with section 702 at a foreign person
outside the United States.
Section 702(d) provides, in a manner essentially identical
to the Protect America Act, for the adoption by the Attorney
General, in consultation with the DNI, of targeting
procedures that are reasonably designed to ensure that
collection is limited to targeting persons reasonably
believed to be outside the United States. As provided in the
Protect America Act, the targeting procedures are subject to
judicial review and approval. In addition to the requirements
of the Protect America Act, however, section 702(d) provides
that the targeting procedures also must be reasonably
designed to prevent the intentional acquisition of any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States. Section 702(d)(2) subjects
these targeting procedures to judicial review and approval.
Section 702(e) provides that the Attorney General, in
consultation with the DNI, shall adopt, for acquisitions
authorized by section 702(a), minimization procedures that
are consistent with section 101(h) or 301(4) of FISA, which
establish FISA's minimization requirements for electronic
surveillance and physical searches. Section 702(e)(2)
provides that the minimization procedures, which are
essential to the protection of United States citizens and
permanent residents, shall be subject to judicial review and
approval. This corrects an omission in the Protect America
Act which had not provided for judicial review of the
adherence of minimization procedures to statutory
requirements.
Section 702(f) provides that the Attorney General, in
consultation with the DNI, shall adopt guidelines to ensure
compliance with
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the limitations in section 702(b), including the prohibitions
on the acquisition of purely domestic communications, on
targeting persons within the United States, on targeting
United States persons located outside the United States, and
on reverse targeting. Such guidelines shall also ensure that
an application for a court order is filed as required by
FISA. It is intended that these guidelines will be used for
training intelligence community personnel so that there are
clear requirements and procedures governing the appropriate
implementation of the authority under this title of FISA. The
Attorney General is to provide these guidelines to the
congressional intelligence committees, the judiciary
committees of the House of Representatives and the Senate,
and the FISA Court. Subsequent provisions implement the
guidelines requirement. See section
702(g)(2)(A)(iii)(certification requirements); section
702(l)(1) and 702(l)(2) (assessment of compliance with
guidelines); and section 707(b)(1)(G)(ii) (reporting on
noncompliance with guidelines).
Section 702(g) requires that the Attorney General and the
DNI provide to the FISA Court, prior to implementation of an
authorization under subsection (a), a written certification,
with any supporting affidavits. In exigent circumstances, the
Attorney General and DNI may make a determination that,
without immediate implementation, intelligence important to
the national security will be lost or not timely acquired
prior to the implementation of an authorization. In exigent
circumstances, if time does not permit the submission of a
certification prior to the implementation of an
authorization, the certification must be submitted to the
FISA Court no later than seven days after the determination
is made. This seven-day time period for submission of a
certification in the case of exigent circumstances is
identical to the time period by which the Attorney General
must apply for a court order after authorizing an emergency
surveillance under other provisions of FISA, as amended by
this Act.
Section 702(g)(2) sets forth the requirements that must be
contained in the written certification. These elements
include: that the targeting and minimization procedures have
been approved by the FISA Court or will be submitted to the
court with the certification; that guidelines have been
adopted to ensure compliance with the limitations of
subsection (b) have been adopted; that those procedures and
guidelines are consistent with the Fourth Amendment; that the
acquisition is targeted at persons reasonably believed to be
outside the United States; that a significant purpose of the
acquisition is to obtain foreign intelligence information;
and an effective date for the authorization that in most
cases is at least 30 days after the submission of the written
certification. Additionally, as an overall limitation on the
method of acquisition. permitted under section 702, the
certification must attest that the acquisition involves
obtaining foreign intelligence information from or with
the assistance of an electronic communication service
provider.
Requiring an effective date in the certification serves to
identify the beginning of the period of authorization (which
is likely to be a year) for collection and to alert the FISA
Court of when the Attorney General and DNI are seeking to
begin collection. Section 702(g)(3) permits the Attorney
General and DNI to change the effective date in the
certification by amending the certification.
As with the Protect America Act, the certification under
section 702(g)(4) is not required to identify the specific
facilities, places, premises, or property at which the
acquisition under section 702(a) will be directed or
conducted. The certification shall be subject to review by
the FISA Court.
Section 702(h) authorizes the Attorney General and the DNI
to direct, in writing, an electronic communication service
provider to furnish the Government with all information,
facilities, or assistance necessary to accomplish the
acquisition authorized under subsection 702(a). It requires
compensation for this assistance and provides that no cause
of action shall lie in any court against an electronic
communication service provider for its assistance in
accordance with a directive. Section 702(h) also establishes
expedited procedures in the FISA Court for a provider to
challenge the legality of a directive or the Government to
enforce it. In either case, the question for the court is
whether the directive meets the requirements of section 702
and is otherwise lawful. Whether the proceeding begins as a
provider challenge or a Government enforcement petition, if
the court upholds the directive as issued or modified, the
court shall order the provider to comply. Failure to comply
may be punished as a contempt of court. The proceedings shall
be expedited and decided within 30 days, unless that time is
extended under section 702(j)(2).
Section 702(i) provides for judicial review of any
certification required by section 702(g) and the targeting
and minimization procedures adopted pursuant to sections
702(d) and 702(e). In accordance with section 702(i)(5), if
the Attorney General and the DNI seek to reauthorize or
replace an authorization in effect under the Act, they shall
submit, to the extent practicable, the certification and
procedures at least 30 days prior to the expiration of such
authorization.
The court shall review certifications to determine whether
they contain all the required elements. It shall review
targeting procedures to assess whether they are reasonably
designed to ensure that the acquisition activity is limited
to the targeting of persons reasonably believed to be located
outside the United States and prevent the intentional
acquisition of any communication whose sender and intended
recipients are known to be located in the United States. The
Protect America Act had limited the review of targeting
procedures to a ``clearly erroneous'' standard; section
702(i) omits that limitation. For minimization procedures,
section 702(i) provides that the court shall review them to
assess whether they meet the statutory requirements. The
court is to review the certifications and procedures and
issue its order within 30 days after they were submitted
unless that time is extended under section 702(j)(2). The
Attorney General and the DNI may also amend the certification
or procedures at any time under section 702(i)(1)(C), but
those amended certifications or procedures must be submitted
to the court in no more than 7 days after amendment. The
amended procedures may be used pending the court's review.
If the FISA Court finds that the certification contains all
the required elements and that the targeting and minimization
procedures are consistent with the requirements of
subsections (d) and (e) and with the Fourth Amendment, the
court shall enter an order approving their use or continued
use for the acquisition authorized by section 702(a). If it
does not so find, the court shall order the Government, at
its election, to correct any deficiencies or cease, or not
begin, the acquisition. If acquisitions have begun, they may
continue during any rehearing en banc of an order requiring
the correction of deficiencies. If the Government appeals to
the Foreign Intelligence Surveillance Court of Review, any
collection that has begun may continue at least until that
court enters an order, not later than 60 days after filing of
the petition for review, which determines whether all or any
part of the correction order shall be implemented during the
appeal
Section 702(j)(1) provides that judicial proceedings are to
be conducted as expeditiously as possible. Section 702(j)(2)
provides that the time limits for judicial review in section
702 (for judicial review of certifications and procedures or
in challenges or enforcement proceedings concerning
directives) shall apply unless extended, by written order, as
necessary for good cause in a manner consistent with national
security.
Section 702(k) requires that records of proceedings under
section 702 shall be maintained by the FISA Court under
security measures adopted by the Chief Justice in
consultation with the Attorney General and the DNI. In
addition, all petitions are to be filed under seal and the
FISA Court, upon the request of the Government, shall
consider ex parte and in camera any Government submission or
portions of a submission that may include classified
information. The Attorney General and the DNI are to retain
directives made or orders granted for not less than 10 years.
Section 702(l) provides for oversight of the implementation
of Title VII. It has three parts. First, the Attorney General
and the DNI shall assess semiannually under subsection (l)(1)
compliance with the targeting and minimization procedures,
and the Attorney General guidelines for compliance with
limitations under section 702(b), and submit the assessment
to the FISA Court and to the congressional intelligence and
judiciary committees, consistent with congressional rules.
Second, under subsection (l)(2)(A), the Inspector General
of the Department of Justice and the inspector general
(``IG'') of any intelligence community element authorized to
acquire foreign intelligence under section 702(a) are
authorized to review compliance of their agency or element
with the targeting and minimization procedures adopted in
accordance with subsections (d) and (e) and the guidelines
adopted in accordance with subsection (f). Subsections
(l)(2)(B) and (l)(2)(C) mandate several statistics that the
IGs shall review with respect to United States persons,
including the number of disseminated intelligence reports
that contain references to particular U.S. persons, the
number of U.S. persons whose identities were disseminated in
response to particular requests, and the number of targets
later determined to be located in the United States. Their
reports shall be submitted to the Attorney General, the DNI,
and the appropriate congressional committees. Section
702(l)(2) provides no statutory schedule for the completion
of these IG reviews; the IGs should coordinate with the heads
of their agencies about the timing for completion of the IG
reviews so that they are done at a time that would be useful
for the agency heads to complete their semiannual reviews.
Third, under subsection (l)(3), the head of an intelligence
community element that conducts an acquisition under section
702 shall review annually whether there is reason to believe
that foreign intelligence information has been or will be
obtained from the acquisition and provide an accounting of
information pertaining to United States persons similar to
that included in the IG report. Subsection (l)(3) also
encourages the
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head of the element to develop procedures to assess the
extent to which the new authority acquires the communications
of U.S. persons, and to report the results of such
assessment. The review is to be used by the head of the
element to evaluate the adequacy of minimization procedures.
The annual review is to be submitted to the FISA Court, the
Attorney General and the DNI, and to the appropriate
congressional committees.
Section 703. Certain Acquisition Inside the United States
Targeting United States Persons Outside the United States
Section 703 governs the targeting of United States persons
who are reasonably believed to be outside the United States
when the acquisition of foreign intelligence is conducted
inside the United States. The authority and procedures of
section 703 apply when the acquisition either constitutes
electronic surveillance, as defined in Title I of FISA, or is
of stored electronic communications or stored electronic
data. If the United States person returns to the United
States, acquisition under section 703 must cease. The
Government may always, however, obtain an order or
authorization under another title of FISA.
The application procedures and provisions for a FISA Court
order in sections 703(b) and 703(c) are drawn from Titles I
and III of FISA. Key among them is the requirement that the
FISA Court determine that there is probable cause to believe
that, for the United States person who is the target of the
surveillance, the person is reasonably believed to be located
outside the United States and is a foreign power or an agent,
officer or employee of a foreign power. The inclusion of
United States persons who are officers or employees of a
foreign power, as well as those who are agents of a foreign
power as that term is used in FISA, is intended to permit the
type of collection against United States persons outside the
United States that has been allowed under existing Executive
Branch guidelines. The FISA Court shall also review and
approve minimization procedures that will be applicable to
the acquisition, and shall order compliance with such
procedures.
As with FISA orders against persons in the United States,
FISA orders against United States persons outside of the
United States under section 703 may not exceed 90 days and
may be renewed for additional 90-day periods upon the
submission of renewal applications. Emergency authorizations
under section 703 are consistent with the requirements for
emergency authorizations in FISA against persons in the
United States, as amended by this Act; the Attorney General
may authorize an emergency acquisition if an application is
submitted to the FISA Court in not more than seven days.
Section 703(g) is a construction provision that clarifies
that, if the Government obtains an order and target a
particular United States person in accordance with section
703, FISA does not require the Government to seek a court
order under any other provision of FISA to target that United
States person while that person is reasonably believed to be
located outside the United States.
Section 704. Other Acquisitions Targeting United States
Persons Outside the United States
Section 704 governs other acquisitions that target United
States persons who are outside the United States. Sections
702 and 703 address acquisitions that constitute electronic
surveillance or the acquisition of stored electronic
communications. In contrast, as provided in section
704(a)(2), section 704 addresses any targeting of a United
States person outside of the United States under
circumstances in which that person has a reasonable
expectation of privacy and a warrant would be required if the
acquisition occurred within the United States. It thus covers
not only communications intelligence, but, if it were to
occur, the physical search of a home, office, or business of
a United States person by an element of the United States
intelligence community, outside of the United States.
Pursuant to section 704(a)(3), if the targeted United
States person is reasonably believed to be in the United
States while an order under section 704 is in effect, the
acquisition against that person shall cease unless authority
is obtained under another applicable provision of FISA.
Likewise, the Government may not use section 704 to authorize
an acquisition of foreign intelligence inside the United
States.
Section 704(b) describes the application to the FISA Court
that is required. For an order under section 704(c), the FISA
Court must determine that there is probable cause to believe
that the United States person who is the target of the
acquisition is reasonably believed to be located outside the
United States and is a foreign power, or an agent, officer or
employee of a foreign power. An order is valid for a period
not to exceed 90 days, and may be renewed for additional 90-
day periods upon submission of renewal applications meeting
application requirements.
Because an acquisition under section 704 is conducted
outside the United States, or is otherwise not covered by
FISA, the FISA Court is expressly not given jurisdiction to
review the means by which an acquisition under this section
may be conducted. Although the FISA Court's review is limited
to determinations of probable cause, section 704 anticipates
that any acquisition conducted pursuant to a section 704
order will in all other respects be conducted in compliance
with relevant regulations and Executive Orders governing the
acquisition of foreign intelligence outside the United
States, including Executive Order 12333 or any successor
order.
Section 705. Joint Applications and Concurrent Authorizations
Section 705 provides that if an acquisition targeting a
United States person under section 703 or 704 is proposed to
be conducted both inside and outside the United States, a
judge of the FISA Court may issue simultaneously, upon the
request of the Government in a joint application meeting the
requirements of sections 703 and 704, orders under both
sections as appropriate. If an order authorizing electronic
surveillance or physical search has been obtained under
section 105 or section 304, and that order is still in
effect, the Attorney General may authorize, without an order
under section 703 or 704, the targeting of that United States
person for the purpose of acquiring foreign intelligence
information while such person is reasonably believed to be
located outside the United States.
Section 706. Use of Information Acquired Under Title VII
Section 706 fills a void that has existed under the Protect
America Act which had contained no provision governing the
use of acquired intelligence. Section 706(a) provides that
information acquired from an acquisition conducted under
section 702 shall be deemed to be information acquired from
an electronic surveillance pursuant to Title I of FISA for
the purposes of section 106 of FISA, which is the provision
of Title I of FISA that governs public disclosure or use in
criminal proceedings. The one exception is for subsection (j)
of section 106, as the notice provision in that subsection,
while manageable in individual Title I proceedings, would
present a difficult national security question when applied
to a Title VII acquisition. Section 706(b) also provides that
information acquired from an acquisition conducted under
section 703 shall be deemed to be information acquired from
an electronic surveillance pursuant to Title I of FISA for
the purposes of section 106 of FISA; however, the notice
provision of subsection (j) applies. Section 706 ensures that
a uniform standard for the types of information is acquired
under the new title.
Section 707. Congressional Oversight
Section 707 provides for additional congressional oversight
of the implementation of Title VII. The Attorney General is
to fully inform ``in a manner consistent with national
security'' the congressional intelligence and judiciary
committees about implementation of the Act at least
semiannually. Each report is to include any certifications
made under section 702, the reasons for any determinations
made under section 702(c)(2), any directives issued during
the reporting period, a description of the judicial review
during the reporting period to include a copy of any order or
pleading that contains a significant legal interpretation of
section 702, incidents of noncompliance and procedures to
implement the section. With respect to sections 703 and 704,
the report must contain the number of applications made for
orders under each section and the number of such orders
granted, modified and denied, as well as the number of
emergency authorizations made pursuant to each section and
the subsequent orders approving or denying the relevant
application. In keeping the congressional intelligence
committees fully informed, the Attorney General should
provide no less information than has been provided in the
past in keeping the committees fully and currently informed.
Section 708. Savings Provision
Section 708 provides that nothing in Title VII shall be
construed to limit the authority of the Government to seek an
order or authorization under, or otherwise engage in any
activity that is authorized under, any other title of FISA.
This language is designed to ensure that Title VII cannot be
interpreted to prevent the Government from submitting
applications and seeking orders under other titles of FISA.
Section 101(b). Table of Contents
Section 101(b) of the bill amends the table of contents in
the first section of FISA.
Subsection 101(c). Technical and Conforming Amendments
Section 101(c) of the bill provides for technical and
conforming amendments in Title 18 of the United States Code
and in FISA.
Section 102. Statement of Exclusive Means by which Electronic
Surveillance and Interception of Certain Communications
May Be Conducted
Section 102(a) amends Title I of FISA by adding a new
Section 112 of FISA. Under the heading of ``Statement of
Exclusive Means by which Electronic Surveillance and
Interception of Certain Communications May Be Conducted,''
the new section 112(a) states: ``Except as provided in
subsection (b), the procedures of chapters 119, 121 and
126 of Title 18, United States Code, and this Act shall be
the exclusive means by which electronic surveillance and
the interception of domestic wire, oral, or electronic
communication may be conducted.'' New section 112(b) of
FISA provides that only an express statutory authorization
for electronic surveillance or the interception of
domestic wire, oral, or electronic communications, other
than as an amendment to FISA or chapters 119, 121, or 206
of Title 18 shall constitute an additional exclusive means
for the
[[Page S6133]]
purpose of subsection (a). The new section 112 is based on
a provision which Congress enacted in 1978 as part of the
original FISA that is codified in section 2511(2)(f) of
Title 18, United States Code, and which will remain in the
U.S. Code.
Section 102(a) strengthens the statutory provisions
pertaining to electronic surveillance and interception of
certain communications to clarify the express intent of
Congress that these statutory provisions are the exclusive
means for conducting electronic surveillance and interception
of certain communications. With the absence of reference to
the Authorization for Use of Military Force, Pub. L. 107-40,
(September 18, 2001) (``AUMF''), Congress makes clear that
this AUMF or any other existing statute cannot be used in the
future as the statutory basis for circumventing FISA. Section
102(a) is intended to ensure that additional exclusive means
for surveillance or interceptions shall be express statutory
authorizations.
In accord with section 102(b) of the bill, section 109 of
FISA that provides for criminal penalties for violations of
FISA, is amended to implement the exclusivity requirement
added in section 112 by making clear that the safe harbor to
FISA's criminal offense provision is limited to statutory
authorizations for electronic surveillance or the
interception of domestic wire, oral, or electronic
communications which are pursuant to a provision of FISA, one
of the enumerated chapters of the criminal code, or a
statutory authorization that expressly provides an additional
exclusive means for conducting the electronic surveillance.
By virtue of the cross-reference in section 110 of FISA to
section 109, that limitation on the safe harbor in section
109 applies equally to section 110 on civil liability for
conducting unlawful electronic surveillance.
Section 102(c) requires that when a certification for
assistance to obtain foreign intelligence is based on
statutory authority, the certification provided to an
electronic communication service provider is to include the
specific statutory authorization for the request for
assistance and certify that the statutory requirements have
been met. This provision is designed to assist electronic
communication service providers in understanding the legal
basis for any government requests for assistance.
In the section-by-section analysis of S. 2248, the report
of the Select Committee on Intelligence (S. Rep. No. 110-209,
at 18) described and incorporated the discussion of
exclusivity in the 1978 conference report on the original
Foreign Intelligence Surveillance Act, in particular the
conferees' description of the Youngstown Sheet and Tube Co.
v. Sawyer, 343 U.S. 579, 637 (1952) and the application of
the principles described there to the current legislation.
That full discussion should be deemed incorporated in this
section-by-section analysis.
Section 103. Submittal to Congress of Certain Court Orders
under the Foreign Intelligence Surveillance Act of 1978
Section 6002 of the Intelligence Reform Act and Terrorism
Prevention Act of 2004 (Pub. L. 108-458), added a Title VI to
FISA that augments the semiannual reporting obligations of
the Attorney General to the intelligence and judiciary
committees of the Senate and House of Representatives. Under
section 6002, the Attorney General shall report a summary of
significant legal interpretations of FISA in matters before
the FISA Court or Foreign Intelligence Surveillance Court of
Review. The requirement extends to interpretations presented
in applications or pleadings filed with either court by the
Department of Justice. In addition to the semiannual summary,
the Department of Justice is required to provide copies of
court decisions, but not orders, which include significant
interpretations of FISA. The importance of the reporting
requirement is that, because the two courts conduct their
business in secret, Congress needs the reports to know how
the law it has enacted is being interpreted.
Section 103 improves the Title VI reporting requirements in
three ways. First, as significant legal interpretations may
be included in orders as well as opinions, section 103
requires that orders also be provided to the committees.
Second, as the semiannual report often takes many months
after the end of the semiannual period to prepare, section
103 accelerates provision of information about significant
legal interpretations by requiring the submission of such
decisions, orders, or opinions within 45 days. Finally,
section 103 requires that the Attorney General shall submit a
copy of any such decision, order, or opinion, and any
pleadings, applications, or memoranda of law associated with
such decision, order, or opinion, from the period five years
preceding enactment of the bill that has not previously been
submitted to the congressional intelligence and judiciary
committees.
Overview of Sections 104 through Section 109. FISA Streamlining
Sections 104 through 109 amend various sections of FISA for
such purposes as reducing a paperwork requirement, modifying
time requirements, or providing additional flexibility in
terms of the range of Government officials who may authorize
FISA actions. Collectively, these amendments are described as
streamlining amendments. In general, they are intended to
increase the efficiency of the FISA process without depriving
the FISA Court of the information it needs to make findings
required under FISA.
Section 104. Applications for Court Orders
Section 104 of the bill strikes two of the eleven
paragraphs on standard information in an application for a
surveillance order under section 104 of FISA, either because
the information is provided elsewhere in the application
process or is not needed.
In various places, FISA has required the submission of
``detailed'' information, as in section 104 of FISA, ``a
detailed description of the nature of the information sought
and the type of communications or activities to be subjected
to the surveillance.'' The DNI requested legislation that
asked that ``summary'' be substituted for ``detailed'' for
this and other application requirements, in order to reduce
the length of FISA applications. In general, the bill
approaches this by eliminating the mandate for ``detailed''
descriptions, leaving it to the FISA Court and the Government
to work out the level of specificity needed by the FISA Court
to perform its statutory responsibilities. With respect to
one item of information, ``a statement of the means by which
the surveillance will be effected,'' the bill modifies the
requirement by allowing for ``a summary statement.''
In aid of flexibility, section 104 increases the number of
individuals who may make FISA applications by allowing the
President to designate the Deputy Director of the Federal
Bureau of Investigation (``FBI'') as one of those
individuals. This should enable the Government to move more
expeditiously to obtain certifications when the Director of
the FBI is away from Washington or otherwise unavailable.
Subsection (b) of section 104 of FISA is eliminated as
obsolete in light of current applications. The Director of
the Central Intelligence Agency is added to the list of
officials who may make a written request to the Attorney
General to personally review a FISA application as the head
of the CIA had this authority prior to the establishment of
the Office of the Director of National Intelligence.
Section 105. Issuance of an Order
Section 105 strikes from Section 105 of FISA several
unnecessary or obsolete provisions. Section 105 strikes
subsection (c)(1)(F) of Section 105 of FISA which requires
minimization procedures applicable to each surveillance
device employed because Section 105(c)(2)(A) requires each
order approving electronic surveillance to direct the
minimization procedures to be followed.
Subsection (a)(6) reorganizes, in more readable form, the
emergency surveillance provision of section 105(f), now
redesignated section 105(e), with a substantive change of
extending from 3 to 7 days the time by which the Attorney
General must apply for and obtain a court order after
authorizing an emergency surveillance. The purpose of the
change is to help make emergency authority a more practical
tool while keeping it within the parameters of FISA.
Subsection (a)(7) adds a new paragraph to section 105 of
FISA to require the FISA Court, on the Government's request,
when granting an application for electronic surveillance, to
authorize at the same time the installation and use of pen
registers and trap and trace devices. This will save the
paperwork that had been involved in making two applications.
Section 106. Use of Information
Section 106 amends section 106(i) of FISA with regard to
the limitations on the use of unintentionally acquired
information. Currently, section 106(i) of FISA provides that
unintentionally acquired radio communication between persons
located in the United States must be destroyed unless the
Attorney General determines that the contents of the
communications indicates a threat of death or serious bodily
harm to any person. Section 106 of the bill amends subsection
106(i) of FISA by making it technology neutral on the
principle that the same rule for the use of information
indicating threats of death or serious harm should apply no
matter how the communication is transmitted.
Section 107. Amendments for Physical Searches
Section 107 makes changes to Title III of FISA: changing
applications and orders for physical searches to correspond
to changes in sections 104 and 105 on reduction of some
application paperwork; providing the FBI with administrative
flexibility in enabling its Deputy Director to be a
certifying officer; and extending the time, from 3 days to 7
days, for applying for and obtaining a court order after
authorization of an emergency search.
Section 303(a)(4)(C), which will be redesignated section
303(a)(3)(C), requires that each application for physical
search authority state the applicant's belief that the
property is ``owned, used, possessed by, or is in transmit to
or from'' a foreign power or an agent of a foreign power. In
order to provide needed flexibility and to make the provision
consistent with electronic surveillance provisions, section
107(a)(1)(D) of the bill allows the FBI to apply for
authority to search property that also is ``about to be''
owned, used, or possessed by a foreign power or agent of a
foreign power, or in transit to or from one.
Section 108. Amendments for Emergency Pen Registers and Trap
and Trace Devices
Section 108 amends section 403 of FISA to extend from 2
days to 7 days the time for applying for and obtaining a
court order after an emergency installation of a pen register
or trap and trace device. This change harmonizes among FISA's
provisions for electronic surveillance, search, and pen
register/
[[Page S6134]]
trap and trace authority the time requirements that follow
the Attorney General's decision to take emergency action.
Section 109. Foreign Intelligence Surveillance Court
Section 109 contains four amendments to section 103 of
FISA, which establishes the FISA Court and the Foreign
Intelligence Surveillance Court of Review.
Section 109(a) amends section 103 to provide that judges on
the FISA Court shall be drawn from ``at least seven'' of the
United States judicial circuits. The current requirement--
that the eleven judges be drawn from seven judicial circuits
(with the number appearing to be a ceiling rather than a
floor) has proven unnecessarily restrictive or complicated
for the designation of the judges to the FISA Court.
Section 109(b) amends section 103 to allow the FISA Court
to hold a hearing or rehearing of a matter en banc, which is
by all the judges who constitute the FISA Court sitting
together. The Court may determine to do this on its own
initiative, at the request of the Government in any
proceeding under FISA, or at the request of a party in the
few proceedings in which a private entity or person may be a
party, i.e., challenges to document production orders under
Title V, or proceedings on the legality or enforcement of
directives to electronic communication service providers
under Title VII.
Under section 109(b), en banc review may be ordered by a
majority of the judges who constitute the FISA Court upon a
determination that it is necessary to secure or maintain
uniformity of the court's decisions or that a particular
proceeding involves a question of exceptional importance. En
banc proceedings should be rare and in the interest of the
general objective of fostering expeditious consideration of
matters before the FISA Court.
Section 109(c) provides authority for the entry of stays,
or the entry of orders modifying orders entered by the FISA
Court or the Foreign Intelligence Surveillance Court of
Review, pending appeal or review in the Supreme Court. This
authority is supplemental to, and does not supersede, the
specific provision in section 702(i)(4)(B) that acquisitions
under Title VII may continue during the pendency of any
rehearing en banc and appeal to the Court of Review subject
to the requirement for a determination within 60 days under
section 702(i)(4)(C).
Section 109(d) provides that nothing in FISA shall be
construed to reduce or contravene the inherent authority of
the FISA Court to determine or enforce compliance with any
order of that court or with a procedure approved by it.
Section 110. Weapons of Mass Destruction
Section 110 amends the definitions in FISA of foreign power
and agent of a foreign power to include individuals who are
not United States persons and entities not substantially
composed of United States persons that are engaged in the
international proliferation of weapons of mass destruction.
Section 110 also adds a definition of weapon of mass
destruction to the Act that defines weapons of mass
destruction to cover explosive, incendiary, or poison gas
devices that are designed, intended to, or have the
capability to cause a mass casualty incident or death, and
biological, chemical and nuclear weapons that are designed,
intended to, or have the capability to cause illness or
serious bodily injury to a significant number of persons.
Section 110 also makes corresponding, technical and
conforming changes to FISA.
Title II. Protections for Electronic Communication Service Providers
This title establishes a new Title VIII of FISA. The title
addresses liability relief for electronic communication
service providers who have been alleged in various civil
actions to have assisted the U.S. Government between
September 11, 2001, and January 17, 2007, when the Attorney
General announced the termination of the Terrorist
Surveillance Program. In addition, Title VIII contains
provisions of law intended to implement statutory defenses
for electronic communication service providers and others who
assist the Government in accordance with precise, existing
legal requirements, and for providing for federal preemption
of state investigations. The liability protection provisions
of Title VIII are not subject to sunset.
Section 801. Definitions
Section 801 establishes definitions for Title VIII. Several
are of particular importance.
The term ``assistance'' is defined to mean the provision
of, or the provision of access to, information, facilities,
or another form of assistance. The word ``information'' is
itself described in a parenthetical to include communication
contents, communication records, or other information
relating to a customer or communications. ``Contents'' is
defined by reference to its meaning in Title I of FISA. By
that reference, it includes any information concerning the
identity of the parties to a communication or the existence,
substance, purport, or meaning of it.
The term ``civil action'' is defined to include a ``covered
civil action.'' Thus, ``covered civil actions'' are a subset
of civil actions, and everything in new Title VIII that is
applicable generally to civil actions is also applicable to
``covered civil actions.'' A ``covered civil action'' has two
key elements. It is defined as a civil action filed in a
federal or state court which (1) alleges that an electronic
communication service provider (a defined term) furnished
assistance to an element of the intelligence community and
(2) seeks monetary or other relief from the electronic
communication service provider related to the provision of
the assistance. Both elements must be present for the lawsuit
to be a covered civil action.
The term ``person'' (the full universe of those protected
by section 802) is necessarily broader than the definition of
electronic communication service provider. The aspects of
Title VIII that apply to those who assist the Government in
accordance with precise, existing legal requirements apply to
all who may be ordered to provide assistance under FISA, such
as custodians of records who may be directed to produce
records by the FISA Court under Title V of FISA or landlords
who may be required to provide access under Title I or III
of FISA, not just to electronic communication service
providers.
Section 802. Procedures for Implementing Statutory Defenses
Section 802 establishes procedures for implementing
statutory defenses. Notwithstanding any other provision of
law, no civil action may lie or be maintained in a federal or
state court against any person for providing assistance to an
element of the intelligence community, and shall be promptly
dismissed, if the Attorney General makes a certification to
the district court in which the action is pending. (If an
action had been commenced in state court, it would have to be
removed, pursuant to section 802(g) to a district court,
where a certification under section 802 could be filed.) The
certification must state either that the assistance was not
provided (section 802(a)(5)) or, if furnished, that it was
provided pursuant to specific statutory requirements
(sections 802(a)(1-4)). Three of these underlying
requirements, which are specifically described in section 802
(sections 802(a)(1-3)), come from existing law. They include:
an order of the FISA Court directing assistance, a
certification in writing under sections 2511(2)(a)(ii)(B) or
2709(b) of Title 18, or directives to electronic
communication service providers under particular sections of
FISA or the Protect America Act.
The Attorney General may only make a certification under
the fourth statutory requirement, section 802(a)(4), if the
civil action is a covered civil action (as defined in section
801(5)). To satisfy the requirements of section 802(a)(4),
the Attorney General must certify first that the assistance
alleged to have been provided by the electronic communication
service provider was in connection with an intelligence
activity involving communications that was (1) authorized by
the President between September 11, 2001 and January 17, 2007
and (2) designed to detect or prevent a terrorist attack or
preparations for one against the United States. In addition,
the Attorney General must also certify that the assistance
was the subject of a written request or directive, or a
series of written requests or directives, from the Attorney
General or the head (or deputy to the head) of an element of
the intelligence community to the electronic communication
service provider indicating that the activity was (1)
authorized by the President and (2) determined to be lawful.
The report of the Select Committee on Intelligence contained
a description of the relevant correspondence provided to
electronic communication service providers (S. Rep. No. 110-
209, at 9).
The district court must give effect to the Attorney
General's certification unless the court finds it is not
supported by substantial evidence provided to the court
pursuant to this section. In its review, the court may
examine any relevant court order, certification, written
request or directive submitted by the Attorney General
pursuant to subsection (b)(2) or by the parties pursuant to
subsection (d). Section 802 is silent on the nature of any
additional materials that the Attorney General may submit
beyond those listed in subsection (b)(2) if the Attorney
General determines they are necessary to provide substantial
evidence to support the certification, such as if the
Attorney General certifies that a person did not provide the
alleged assistance.
If the Attorney General files a declaration that disclosure
of a certification or supplemental materials would harm
national security, the court shall review the certification
and supplemental materials in camera and ex parte, which
means with only the Government present. A public order
following that review shall be limited to a statement as to
whether the case is dismissed and a description of the legal
standards that govern the order, without disclosing the basis
for the certification of the Attorney General. The purpose of
this requirement is to protect the classified national
security information involved in the identification of
providers who assist the Government. A public order shall not
disclose whether the certification was based on an order,
certification, or directive, or on the ground that the
electronic communication service provider furnished no
assistance. Because the district court must find that the
certification--including a certification that states that a
party did not provide the alleged assistance--is supported by
substantial evidence in order to dismiss a case, an order
failing to dismiss a case is only a conclusion that the
substantial evidence test has not been met. It does not
indicate whether a particular provider assisted the
government.
Subsection (d) makes clear that any plaintiff or defendant
in a civil action may submit any relevant court order,
certification, written request, or directive to the district
court for review and be permitted to participate in the
briefing or argument of any legal
[[Page S6135]]
issue in a judicial proceeding conducted pursuant to this
section, to the extent that such participation does not
require the disclosure of classified information to such
party. The authorities of the Attorney General under section
802 are to be performed only by the Attorney General, the
Acting Attorney General, or the Deputy Attorney General.
In adopting the portions of section 802 that allow for
liability protection for those electronic communication
service providers who may have participated in the program of
intelligence activity involving communications authorized by
the President between September 11, 2001, and January 17,
2007, the Congress makes no statement on the legality of the
program. This is in accord with the statement in the report
of the Senate Intelligence Committee that ``Section 202 [as
the immunity provision was then numbered] makes no assessment
about the legality of the President's program.'' S. Rep. No.
110-209, at 9.
Section 803. Preemption of State Investigations
Section 803 addresses actions taken by a number of state
regulatory commissions to force disclosure of information
concerning cooperation by state regulated electronic
communication service providers with U.S. intelligence
agencies. Section 803 preempts these state actions and
authorizes the United States to bring suit to enforce the
prohibition.
Section 804. Reporting
Section 804 provides for oversight of the implementation of
Title VIII. On a semiannual basis, the Attorney General is to
provide to the appropriate congressional committees a report
on any certifications made under section 802, a description
of the judicial review of the certifications made under
section 802, and any actions taken to enforce the provisions
of section 803.
Section 202. Technical Amendments
Section 202 amends the table of contents of the first
section of FISA.
Title III. Review of Previous Actions
Title III directs the Inspectors General of the Department
of Justice, the Office of the Director of National
Intelligence, the Department of Defense, the National
Security Agency, and any other element of the intelligence
community that participated in the President's surveillance
program, defined in the title to mean the intelligence
activity involving communications that was authorized by the
President during the period beginning on September 11, 2001,
and ending on January 17, 2007, to complete a comprehensive
review of the program with respect to the oversight authority
and responsibility of each such inspector general.
The review is to include: all of the facts necessary to
describe the establishment, implementation, product, and use
of the product of the program; access to legal reviews of the
program and information about the program; communications
with, and participation of, individuals and entities in the
private sector related to the program; interaction with the
FISA Court and transition to court orders related to the
program; and any other matters identified by any such
inspector general that would enable that inspector general
complete a review of the program with respect to the
inspector general's department or element.
The inspectors general are directed to work in conjunction,
to the extent practicable, with other inspectors general
required to conduct a review, and not unnecessarily duplicate
or delay any reviews or audits that have already been
completed or are being undertaken with respect to the
program. In addition, the Counsel of the Office of
Professional Responsibility of the Department of Justice is
directed to provide the report of any investigation of that
office relating to the program, including any investigation
of the process through which the legal reviews of the program
were conducted and the substance of such reviews, to the
Inspector General of the Department of Justice, who shall
integrate the factual findings and conclusions of such
investigation into its review.
The inspectors general shall designate one of the Senate
confirmed inspectors general required to conduct a review to
coordinate the conduct of the reviews and the preparation of
the reports. The inspectors general are to submit an interim
report within sixty days to the appropriate congressional
committees on their planned scope of review. The final report
is to be completed no later than one year after enactment and
shall be submitted in unclassified form, but may include a
classified annex.
The Congress is aware that the Inspector General of the
Department of Justice has undertaken a review of the program.
This review should serve as a significant part of the basis
for meeting the requirements of this title. In no event is
this title intended to delay or duplicate the investigation
completed to date or the issuance of any report by the
Inspector General of the Department of Justice.
Title IV. Other Provisions
Section 401. Severability
Section 401 provides that if any provision of this bill or
its application is held invalid, the validity of the
remainder of the Act and its application to other persons or
circumstances is unaffected.
Section 402. Effective Date
Section 402 provides that except as provided in the
transition procedures (section 404 of the title), the
amendments made by the bill shall take effect immediately.
Section 403. Repeals
Section 403(a) provides for the repeal of those sections of
FISA enacted as amendments to FISA by the Protect America
Act, except as provided otherwise in the transition
procedures of section 404, and makes technical and conforming
amendments.
Section 403(b) provides for the sunset of the FISA
Amendments Act on December 31, 2012, except as provided in
section 404 of the bill. This date ensures that the
amendments by the Act will be reviewed during the next
presidential administration. The subsection also makes
technical and conforming amendments.
Section 404. Transition Procedures
Section 404 establishes transition procedures for the
Protect America Act and the Foreign Intelligence Surveillance
Act Amendments of 2008.
Subsection (a)(1) continues in effect orders,
authorizations, and directives issued under FISA, as amended
by section 2 of the Protect America Act, until the expiration
of such order, authorization or directive.
Subsection (a)(2) sets forth the provisions of FISA and the
Protect America Act that continue to apply to any acquisition
conducted under such Protect America Act order, authorization
or directive. In addition, subsection (a) clarifies the
following provisions of the Protect America Act: the
protection from liability provision of subsection (l) of
Section 105B of FISA as added by section 2 of the Protect
America Act; jurisdiction of the FISA Court with respect to a
directive issued pursuant to the Protect America Act, and the
Protect America Act reporting requirements of the Attorney
General and the DNI. Subsection (a) is made effective as of
the date of enactment of the Protect America Act (August 5,
2007). The purpose of these clarifications and the effective
date for them is to ensure that there are no gaps in the
legal protections contained in that act, including for
authorized collection following the sunset of the Protect
America Act, notwithstanding that its sunset provision was
only extended once until February 16, 2008. Additionally,
subsection (a)(3) fills a void in the Protect America Act and
applies the use provisions of section 106 of FISA to
collection under the Protect America Act, in the same manner
that section 706 does for collection under Title VII.
In addition, subsection (a)(7) makes clear that if the
Attorney General and the DNI seek to replace an authorization
made pursuant to the Protect America Act with an
authorization made under section 702, as added by this bill,
they are, to the extent practicable, to submit a
certification to the FISA Court at least 30 days in advance
of the expiration of such authorization. The authorizations,
and any directives issued pursuant to the authorization, are
to remain in effect until the FISA Court issues an order with
respect to that certification.
Subsection (b) provides similar treatment for any order of
the FISA Court issued under Title VII of this bill in effect
on December 31, 2012.
Subsection (c) provides transition procedures for the
authorizations in effect under section 2.5 of Executive Order
12333. Those authorizations shall continue in effect until
the earlier of the date that authorization expires or the
date that is 90 days after the enactment of this Act. This
transition provision is particularly applicable to the
transition to FISA Court orders that will occur as a result
of sections 703 and 704 of FISA, as added by this bill.
Mr. ROCKEFELLER. Before laying out where this bill improves upon the
Senate-passed bill--and it does--let me first restate how proud I am of
our efforts in February that laid the foundation for the final action
we will soon take. Our Senate bill established the framework for a
judicial review of the targeting and minimization procedures which are
at the heart of the present compromise. It also established clear
authority and procedures for individual judicial orders where there is
probable cause for targeting Americans overseas. This may long be
regarded as the single most important innovation of the act we will
soon pass.
Additionally, during debate on our Senate bill, we identified other
needed improvements that have been addressed in this compromise,
including strengthening exclusivity, something Senator Feinstein was a
great advocate of, and also a shorter sunset, something Senator Cardin
wanted to see happen; that is, when the bill sunsets, and it will end
before the end of the next administration.
The bottom line is, we started with a good product in February and,
through hard work and compromise with all parties in both Houses, we
have made it even stronger. And we have. We have. We are all slightly
aghast at what we were able to do. So let me mention a few of the key
features in this new compromise.
First, the agreement makes changes in the provisions related to
targeting foreigners overseas to increase protections for Americans. It
requires the
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FISA Court to approve targeting and minimization procedures before
collections begin in virtually all instances. The Attorney General and
the Director of National Intelligence can move forward without a court
order only in what will be extremely rare instances, if emergency
circumstances exist. And there is a way that is done which is time
minimized, a total of 37 days, but it doesn't happen.
It preserves the definition of ``electronic surveillance.'' That is
important. It doesn't sound very interesting, but it is important. It
preserves that definition found in title I of FISA to ensure that there
are no unintended consequences--that sounds like gobbledygook, but it
isn't--relating to when a warrant must be obtained under FISA or how
information obtained using FISA can be used. In other words, we leave
the definition of ``telecommunications'' exactly as it is. We do not
change it. If there is to be a change, then there must be legislative
action to expand or make that change.
But unintended consequences is when something you do in one bill
affects something that happened in another bill, and you just do not
know it at the time you are doing it. You have to be very careful about
that. So that is why we did that.
Second, the agreement contains additional measures compared to the
Senate bill to improve oversight and accountability--the two greatest
needs we have in the Congress and for the administration.
It shortens the sunset of the legislation to December 31, 2012, to
ensure the FISA modernization law we are going to pass is reviewed in
the next administration.
It requires a comprehensive review by multiple inspectors general of
the President's warrantless surveillance program to ensure Congress has
a complete set of facts about the program. We will have them. We will
be informed. The public will be informed about that.
Third, the agreement assures that no past or future congressional
authorization for the use of military force may be used to justify the
conduct of warrantless surveillance electronically, unless Congress
explicitly provides that can happen. That means the President cannot
ever do what he did again. No other President can ever do that. FISA
rules, and only the Congress can make the change.
With enactment of this agreement, there will be no question that
Congress intends that only an express statutory authorization for
electronic surveillance or interception may constitute an additional
exclusive means for that surveillance or interception. It is logical,
and it is necessary.
This is reinforced by the clarification that criminal and civil
penalties can be imposed for any electronic surveillance that is not
conducted in accordance with FISA or specifically listed provisions of
title XVIII. We are prepared to do criminal, civil fines. It is in the
bill. It will happen if somebody tries to do something.
Finally, with respect to the liability protection provisions of title
II, the new language is improved in a number of ways. The agreement
makes clear that the district court has the authority to review the
documents provided to the companies to determine whether the Attorney
General has met the statutory requirements for the certification under
the statute.
In addition, the plaintiffs are given their fair day in court in our
bill, as the parties to the litigation are explicitly provided the
opportunity to brief the legal and constitutional issues before the
court, to the court. And the district court, in deciding the question,
must go beyond whether the Attorney General abused his discretion in
preparing his certification to seek the dismissal of a lawsuit. Under
the agreement, the district court must decide whether the Attorney
General's certification is supported by ``substantial evidence.'' It is
a good bar.
These are important additions and clarifications, and I hope many of
my colleagues will recognize how far we have come. Remember, this is a
bill that the House would not even vote on a couple of months ago. They
would not even vote on it. So we just went over to them, to Steny
Hoyer, who deserves all praise for being an unbelievable moderator,
bringer-together of opinions and people and a lot of people who are
reluctant over there about doing anything, and gradually, through
compromise, through extensive consultation, worked it out so they could
agree on the bill. Indeed, Speaker Pelosi went to the floor of the
House and spoke as to why she was going to vote for the bill--which she
did.
Now, before I conclude, I must say a few words about all the people--
and spare me on this, I say to the Presiding Officer--who worked
together to make this happen.
House majority leader Steny Hoyer is--I have down here in my text ``a
near saint.'' I have decided that is in extremis. I think he is
extraordinary--extraordinary. He deserves tremendous credit for his
ability to bring people together with strongly divergent views and not
give up until a compromise is achieved. He has everything on his plate,
but he always seemed to have time for--he kept saying he was not really
schooled in this, but he knew everything that was going on.
Vice Chairman Bond and House Minority Whip Blunt also deserve our
thanks and our praise for their hard work and unending commitment. The
other leaders of the House and Senate Intelligence and Judiciary
Committees--Silvestre Reyes, Peter Hoekstra, John Conyers, Lamar Smith,
and on our side Pat Leahy and Arlen Specter--not all of whom have or
will support the final bill--also deserve thanks for their valuable
contributions for making the legislation a much better product.
My own leader, Harry Reid, deserves special credit for insisting that
we persevere on protecting national security and civil liberties, even
though at times he believed he himself could not support our ultimate
compromise. I do not know what that result will be, but he has been
terrific in pushing us.
In addition, we would not have reached this critical juncture without
the unlimited support of the Director of National Intelligence, Mike
McConnell, Attorney General Michael Mukasey, and the dedicated staff of
the DNI, DOJ, and NSA counsel, in particular Ben Powell, Brett Gerry,
John Demers, Vito Potenza, and Chris Thuma. I did not think I would be
saying those words, but I am saying them, and I do believe them deeply.
All of those individuals worked with us for months on this issue,
putting in long hours, even at times when there was not light at the
end of the tunnel.
As we know all too well, the legislative efforts of the House and the
Senate would come to a screeching halt if we were forced to operate
without the seamless efforts of our staffs.
I would like to thank my exceptionally talented staff: Andy Johnson,
Mike Davidson, Alissa Starzak, Chris Healey, and Melvin Dubee--all of
whom brought an enormous amount of expertise, creativity, and
perseverance to the table.
I want to single out Mike Davidson. Mike Davidson is a very smart
lawyer. He has this way of when everything is collapsing all about
him--it is kind of a let's come and reason together. Let's be
practical. He is such a good person and so smart and so respected for
what he knows that people follow his lead. It was in many ways because
of him that a lot of our problems got solved. He would not quit on
them, and he would keep saying: Now, let's deal with this practically.
And he uses his hands just in that manner. It worked because we have a
bill.
I would also like to thank Mariah Sixkiller, Brian Diffel, Joe Onek,
Mike Sheehy, Jeremy Bash, Wyndee Parker, Eric Greenwald, Chris Donesa,
Lou DeBaca, Perry Apelbaum, Ted Kalo, and Caroline Lynch in the House
of Representatives; and in the Senate, Louis Tucker, Jack Livingston,
Kathleen Rice, Mary DeRosa, Zulima Espinel, Matt Solomon, Nick Rossi,
Ron Weich, Serena Hoy, and Marcel Lettre for their efforts.
I may have left somebody out. But I think the Presiding Officer
thinks I have probably done enough. It is heartfelt, and if you have
been through the process you really feel what people put into it and
what they give up.
Madam President, this is a very proud day for the Senate, for
national security and civil liberties, and for the Congress in general.
I would venture to say this may be the most important bill we will pass
this year. We have proven that compromise is not a lost virtue and that
good, sound policy is not only possible, it is achievable.
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I thank the Presiding Officer and yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
[...]
