[Congressional Record: June 26, 2008 (Senate)]
[Page S6174]
FISA
Mr. McCONNELL. Mr. President, last April the Director of National
Intelligence, ADM Mike McConnell, warned Congress about a serious flaw
in the laws that govern our Nation's terror-fighting capabilities. New
technologies had made our old electronic surveillance program
dangerously out of date, he said, causing us to miss substantial
amounts of vital intelligence on foreign terror suspects overseas.
In reaction to these concerns, the Senate passed and the President
signed a temporary measure, the Protect America Act. The Protect
America Act lived up to its name. We are told that from the time of its
passage last August until its expiration in February, it allowed us to
collect significant intelligence on terrorists and has been critical in
protecting the United States from harm. But the Protect America Act had
a signal failure: the telecom companies that may have helped prevent
terrorist attacks were not protected from potentially crippling
lawsuits. This was no small thing since without these companies,
America wouldn't even have an effective surveillance program.
Bankrupting the telecoms would be like outlawing fire hydrants--you
could have the best firetrucks and the best firemen in the world, but
you would still be incapable of putting out fires.
So after several months of new negotiations, the House finally
devised and approved last week a revision of the original surveillance
law that addresses the DNI's major concerns, including the important
telecom protection. As the DNI put it in a recent letter endorsing the
House-passed bill:
This bill would provide the intelligence community with the
tools it needs to collect the foreign intelligence necessary
to secure our Nation while protecting the civil liberties of
Americans. The bill would also provide the necessary legal
protections for those companies sued because they are
believed to have helped the government prevent terrorist
attacks in the aftermath of September 11. Because this bill
accomplishes these two goals, essential to any effort to
modernize FISA, we strongly support passage and will
recommend the President sign it.
That is the Director of National Intelligence.
Passage of this legislation is long overdue. When the Protect America
Act expired in February, the DNI warned Democratic leaders in the House
once again about the need for an updated law. Yet House Democrats were
evidently more concerned about the pressure they were getting from left
wing groups such as moveon.org. They brushed the DNI's warnings aside
and refused to take up and pass a bipartisan Senate-passed compromise
bill that would have easily cleared the House. As a result of
Democratic intransigence, our intelligence community has been
handicapped in its ability to acquire new terrorist targets overseas.
This was grossly irresponsible, and many of us said so at the time.
Now more than a year after the DNI made his initial plea, House
Democrats have finally done the right thing. They have acted on the
DNI's warnings by passing an updated surveillance law that meets his
original criteria and which meets the criteria Republicans laid out
during last year's debate--namely, one that gives the intelligence
community the tools it needs to protect us, which doesn't put the
telecom companies that made this program possible out of business, and
which would get a Presidential signature.
Now it is time for the Senate to take up this bill and pass it
without any further delay. The bill isn't perfect. I would have
preferred for the Speaker to allow a vote on the Senate-passed FISA
bill. But it does meet the DNI's criteria, and therefore its passage
will mark a serious achievement, though long overdue, in the interest
of our national security.
This hard-fought bill represents the epitome of compromise. The
senior Senator from Missouri should be singled out for his outstanding
work on this most important piece of legislation. He has done a service
to the Senate and to the Nation by patiently working all of this out
over the course of more than a year.
He was assisted in that effort by very able staff. Louis Tucker, Jack
Livingston, and Kathleen Rice were invaluable throughout the process,
to every Senator who was involved in this extremely important debate.
They also deserve our thanks.
I will support this bill for all the reasons I have mentioned and
urge my colleagues to do the same. We must pass this before leaving
town and not allow it to be held up by yet another Democratic
filibuster.
____________________
[...]
[Congressional Record: June 26, 2008 (Senate)]
[Page S6177-S6207]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr26jn08-222]
FISA AMENDMENTS ACT OF 2008--MOTION TO PROCEED
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to H.R. 6304,
which the clerk will report.
The legislative clerk read as follows:
Motion to proceed to Calendar No. 827, H.R. 6304, an Act to
amend the Foreign Intelligence Surveillance Act of 1978 to
establish a procedure for authorizing certain acquisitions of
foreign intelligence, and for other purposes.
The Senator from Missouri is recognized.
Mr. BOND. Mr. President, I thank our leaders for getting us on this
very important bill.
As we have discussed before, the failure to modernize and authorize
the Foreign Intelligence Surveillance Act last summer has caused
serious gaps in our intelligence capability.
When the Protect America Act that was introduced by our Republican
leader, Senator McConnell, and me last year finally passed, we put the
intelligence community back in the business of intercepting critical
intelligence communications from foreign terrorists talking to each
other about possible activities in the United States, or against our
troops and our allies elsewhere, and obviously any of those who were
threatening the United States.
I can tell you, without going into detail, that the foreign
intelligence collection from these has been about the most valuable
piece of information we have with respect to terrorist intent. So I
appreciate the fact that this body is ready to move forward.
I hope we will have a way forward to get it done by the time we leave
for the Fourth of July recess. It is critical we get this done
promptly. If we go into late July or even into August without getting
it done, serious consequences will start to impact our ability to
collect intelligence.
Again, I thank our minority leader, Senator McConnell, for his kind
words, especially about my very capable staff who have worked very
hard, not only to help put this bill together, but we have briefed
Members of both sides of the aisle, their staffs. We have spent a lot
of time doing that.
Of course, as I outlined yesterday, we spent a very long 2\1/2\
months working with the House. As I indicated, the bill this body
passed, the FISA amendments, we passed 68 to 29 in February with the
good, strong support of the chairman of the committee, Senator
Rockefeller. We worked on a bipartisan basis. We worked with and
listened to the intelligence community to do several things that were
critical.
No. 1, we wished to make sure there was protection for the privacy
and constitutional rights of Americans and U.S. persons here and
abroad. For the first time, we included that. We also needed to protect
the telephone companies or carriers who have participated in the
terrorist surveillance program under the lawful orders issued by the
President, under his constitutional authority in article II, an act in
good faith by those carriers.
We provided that immunity, or retroactive liability protection, more
accurately, that was critical to ensuring that they can continue to
participate. They are loyal American citizens, and they wanted to be
able to help. But when frivolous lawsuits, seeking billions of dollars
in damages, are filed against them, whether they participated or not,
and there is no assurance that any telephone company so sued has
participated. They cannot use a defense that they did not participate.
They have to have protection.
We built in that protection in a way that was acceptable to both
sides in this body in the FISA amendments and also satisfied the
concerns of the majority party in the House, which, as Leader McConnell
said, had the votes, if they had wished to pass our FISA amendments.
We believe this new bill we are considering, H.R. 6304, which passed
the House with a strong majority vote of 293 to 129 last Friday, should
be passed here.
As with the Senate's original FISA bill passed several months ago,
the compromise that is before us required a little give-and-take from
all sides. But, in essence, what we have before us today is basically
the Senate bill all over again.
I am aware that some on the far left wish to paint this as some
radical new legislation. But if you read the language, it is not
different. The press picked up on this straight away last week and kept
asking me to help them find the purported ``big changes'' in this bill
that no one can find. I have not been much help to them because the
answer is, there is not much that is significantly different, save some
cosmetic fixes that were requested by the majority party in the House.
For example, I am pleased that the strong retroactive liability
protections that the Senate bill offered are still in place, and our
vital intelligence sources and methods will be safeguarded. I am
pleased this compromise preserves the ability of the intelligence
community to collect foreign intelligence quickly and in exigent
circumstances without any prior court review.
I am also pleased the 2012 sunset, 3 years longer than the sunset
previously offered in any House bill, will give our intelligence
collectors and those parties we need to have cooperate with us the
certainty they need in the tools they use to keep us safe.
I am confident the few changes we made to the Senate bill in H.R.
6304 will in no way diminish the intelligence community's ability to
target terrorists overseas, and the Director of National Intelligence
and the Attorney General agreed. That had to be the test. They worked
with us. They made compromises. When we had a proposal for additional
protections for Americans, they agreed. But we had to work out the
language to make sure we provided protections without destroying the
basic integrity of the bill.
I believe we did that. We did that with the Senate bill, and we did
it again with the minor changes the House wanted to make.
Let me address, for the time being, the banner issue of the
legislation, which is Congress's affirmation that the telecom providers
that may have assisted the Government after 9/11 should have the
frivolous lawsuits against them dismissed.
I am confident in the standard of review in title II of the bill on
which we agreed with Congressman Hoyer and Congressman Blunt, his
counterpart in the House, namely, a ``substantial evidence'' standard,
which will ensure that those companies that assisted the Government
following the September 11 terrorist attacks obtain the civil
retroactive liability protection they deserve.
[[Page S6178]]
Unlike the amendment we defeated in the Senate that asked for the
court to determine whether the providers acted in ``good faith,'' we
affirm in this legislation, as we did in the previous Senate bill, that
the providers did act in good faith, and that the lawsuits shall be
dismissed unless the judge finds that the Attorney General's actions
were not ``supported by substantial evidence.''
The focus is on the Attorney General's certification to the court,
not the actions of the providers. We know the providers operated in
good faith, and they deserve liability protection. We are allowing,
however, the court to review the Attorney General's role in that.
Another way to describe it is that we have essentially provided the
district court with an appellate standard of review, just as we did in
the Senate bill. Congress affirms in this legislation that the lawsuits
will be dismissed, but then we give the district court an opportunity
to change that outcome if the judge determines the Attorney General's
certification was not supported by ``substantial evidence'' based on
the information the Attorney General will provide to the court. So the
intent of Congress is clear: the companies deserve liability
protections. That principle has been approved overwhelmingly on a
bipartisan basis in both the Senate when we adopted our bill in
February and the House when it adopted its bill last Friday.
Also, there are clear limits on what documents the court may review
and the extent to which parties may participate in legal arguments.
Because of these important limitations, I am confident that neither the
standard of review nor the court processes will jeopardize liability
protections or our intelligence sources and methods. Thus, Congress is
again positively reaffirming that these companies should have the
lawsuits dismissed.
Mr. President, for the record, I thank publicly these providers--and
they know who they are--who came to our Nation's defense in a time of
national peril. Thank you for ensuring that our Government could keep
Americans safe. Thank you for withstanding years of frivolous lawsuits
that you did not deserve. But, unfortunately, that has been your
penalty for your patriotism. You are a big factor in why America has
not been hit with another terrorist attack since September 11, 2001.
You helped keep us safe for nearly 7 years since that terrible day, and
you did so without legal relief. I thank you, and those who stand with
me today thank you. The least we can do in Congress is to provide you
with the legal protections you so rightly deserve.
Now, some Senators would like to strip the providers' civil liability
protections in the bill. Some believe the thanks these providers
deserve should come in the form of billions of dollars of penalties
through frivolous lawsuits that threaten their business reputation.
Having reviewed the underlying authorities, the certifications, as one
who has practiced a little bit of law in this area, I can tell you
there is no way they could or should be held liable for any monetary
damages, much less the billions of dollars irrationally requested in
the lawsuits.
What these lawsuits do is seek to undermine our program by laying out
who participates in it. By getting at the details of the program, we
would provide those who seek to do us harm with information on how we
collect the information on them that is needed to prevent their
attacks. Just as important, bringing them, dragging them through the
mud of trials in court would simply assure that their business
reputation would be severely damaged in the United States and
potentially obliterated abroad. In addition, there is a real likelihood
that terrorist activities or other extremists would turn on and attack
their property or even their personnel.
I believe seeking to strip liability protection is void of any mature
understanding of the threats this Nation faces. That sort of
shortsighted pandering to far-left political interest groups endangers
our citizens and pays back patriotic service with politically motivated
penalty.
I do not join with those who want to treat those who responded to our
call for help with disregard and disrespect. I thank the providers for
responding to the call, and I will join many others in passing this
legislation who will be thanking them with their vote on this important
national security legislation.
For those who want to challenge the program, note that we did not ban
civil suits against the Government or against any officer of the
Government. And criminal suits--if there are any criminal penalties--
are not banned. They could be instituted by the appropriate
jurisdictions with law enforcement responsibility.
So, Mr. President, there are lots of other points to consider, and
when we get on the bill I will be happy to join in discussing any
further questions that are raised.
Again, I thank my staff, I thank Senator Rockefeller and his team for
having passed the FISA bill. I am very grateful to Mr. Hoyer, the
majority leader in the House, whose efforts were essential to passing
this bill and bringing it to us. We have thanks also for the ranking
member of the House Intelligence Committee, Peter Hoekstra, who worked
with us day in and day out on all of the changes that were requested.
Lamar Smith, the ranking member of the House Judiciary Committee, he
and his staff and his team worked with us throughout.
We have before us not a perfect piece of legislation--I do not think
on this Earth we will ever see a perfect piece of legislation. But for
the challenges we had to go through and the compromises we had to make,
this is the best possible product we can produce that has already
gained an overwhelming bipartisan majority in the House. I hope it will
also get the same kind of response in the Senate.
Our intelligence community deserves it. The citizens of the United
States deserve not only their rights protected, but they need and
deserve the protection this act will give them from further attacks
like 9/11.
Mr. President, I do not see anyone seeking the floor, so I suggest
the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. GRAHAM. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GRAHAM. Mr. President, if I could, I would like to be recognized
for 15 minutes to speak on the FISA legislation.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. GRAHAM. Mr. President, the Senate is taking up a matter that I
think is very important to the American people and our national
security, and that is to pass the compromise reached by the House and
the administration regarding the FISA program.
I want to briefly lay out my view of how the law works in this area.
The initial approach by the Bush administration that there was no
requirement to comply with the FISA statute, the Foreign Intelligence
Surveillance Act, because of inherent authority of the Executive in a
time of war I didn't agree with, quite frankly. The idea that an
American would be travailed by an agency of our Government if that
American citizen was suspected of being involved with the enemy--a
fifth column movement, for lack of a better term--and there would be no
court review was unacceptable to me.
If an American citizen is suspected of collaborating with the enemy,
I think there is a requirement for the Government to have its homework
checked, have a judge authorize further surveillance in a kind of
balanced approach. Once there is a reasonable belief that an American
citizen may be involved with enemy forces, that becomes a crime of
treason, potentially.
I do think it is appropriate for Congress to pass a statute that
would say when an American citizen is suspected of being involved with
an enemy force, taking up arms against the United States--uniformed or
not--the FISA statute applies. The inherent authority of the Executive
to conduct surveillance in a time of war is limited, or can be limited
by the other branches of Government.
Having said that, this idea that at a time of war you need a warrant
to surveil the enemy, when no American citizen is involved, is crazy.
We have
[[Page S6179]]
never in any other war gone to a judge and said: We are listening to
enemy forces--for instance, two suspected members of al-Qaida, non-
American citizens--and we need a warrant. You don't need that. That is
inherent in the ability to conduct military operations, to monitor the
enemy.
Those who want to basically criminalize the war, I disagree in equal
measure. We are at war, and there is an effort by our intelligence
agencies out there to monitor phone calls and other electronic
communications of a very vicious enemy that is intent on attacking us
again. That program has been shut down because of this dispute.
We have finally found a compromise which would allow the program to
move forward, protecting American citizens who may be suspected of
being involved with enemy forces, and also allowing the Commander in
Chief and our military intelligence community to aggressively monitor
networks out there that wish us harm. In this global world in which we
live, the technology that is available to the enemy is different than
it was in 1978. So we have modernized FISA and made it possible for our
intelligence community to be able to keep up with the different
technologies that enemy forces may be using to communicate.
I can assure the American people that this program has been of
enormous benefit, the terrorist surveillance program. It has allowed us
to stay ahead of enemy activity, and with terrorism you do not deter
them by threatening them with death. That is something they welcome.
Other enemies in the past have been deterred from attacking America
because they know an overwhelming response will come their way. In the
Cold War, it was called mutually assured destruction. With terrorist
organizations that would gladly forfeit the lives of mentally
handicapped young people, and others, you have no idea what they are up
to, and you just try to isolate them the best you can. Finding out what
they are up to and following their movements is essential because you
have to preempt them before they are able to attack.
We have a compromise that has come from the House to the Senate that
I can live with. The sticking point was the role our telecommunications
companies played in the terrorist surveillance program. It is my
understanding that the Attorney General--the chief law enforcement
officer of the land--and the Department of Justice gave a letter to the
telecom companies involved, saying: Your cooperation with our
intelligence communities and military surveillance program is legal and
appropriate, and we need your help because a phone call made in
Afghanistan, because of the global economy in which we live, may be
routed through an American system here, and the two people talking are
not citizens, but there may be a telecommunications involvement in
terms of routing of the phone call, and we need assistance from the
telecom companies to be able to track the technology that exists today
that is being used by the enemies of the country.
The idea that somebody would want to sue them because they broke the
law, after they have been told by the Department of Justice and the
Attorney General their help was needed and it was lawful for them to
help, misses the point.
What are we trying to do as a country? Are we trying to avoid the
fact that we are at war by talking about lawsuits that undermine the
ability of our country to protect itself? I am very much for civil
liberties. I don't want any American, as I said before, to be followed
by an agency of our Government, suspecting they are cooperating with
al-Qaida or another terrorist group, and not have the Government's work
looked at by a judge. I would not want that to happen to anybody. If
you think anybody who is an American citizen is helping the enemy, you
ought to be able to go to a judge and get a warrant. But this idea of
having the American telecommunications companies, which were
cooperating with the Government in a fashion to help our forces and our
intelligence community stay ahead of an enemy, be subject to a civil
lawsuit is riduculous. That is not the appropriate remedy.
If we allow these companies who have been asked by their Government,
through the chief law enforcement officer of the land, to participate
in the program--if we ask them to participate and then sue them, who is
going to help us in the future? This is pretty basic stuff for me. If
we do not protect these companies from lawsuits that are existing out
there, when they were willing to help the Government--if we don't give
them protection, nobody in the future is going to come and help us. We
need all the help we can get. We need help from banks,
telecommunications companies, and we need help from all kinds of
different corners of the private sector to beat this enemy. We are all
in it together.
The terrorists use banks to funnel money. Well, the banks can help us
if we suspect that an account exists that is being used by a terrorist
organization. We should be able to track that down. We are all in this
together.
The private sector plays a role in the war on terrorism. Every
citizen can play a role in the war on terrorism by being vigilant. We
finally reached a deal that would allow the program to be reauthorized,
protecting civil liberty and telling the telecommunications companies
that helped us: You are not going to get sued.
To my dear friend, Senator Specter--his solution is to let the
lawsuits come forward but shield the companies by having the Government
take legal responsibility and be subject to being sued. That is not the
right answer either. Our Government wasn't doing a bad thing. Our
Government was doing a good thing. Our Government was trying to find
out what enemies of this Nation were up to before it was too late.
We have had a lot of warnings in the past that were ignored. How many
times do we have to deal with this terrorist problem through the law
enforcement model to only wake up and find out that we were wrong? The
law enforcement model will not work. The law enforcement model punishes
people after they commit the crime. We are at war. Our goal is to keep
them from attacking us. The military model is the one we should pursue.
In every other war, the private sector itself has helped the Government
defeat the enemies of this country.
When Senator Obama says he would like this provision taken out of the
bill--protection for telecommunications companies from lawsuits--that
he would like that taken out of the bill, what he is telling the
Senate, the House, and the country is that this deal will fall apart.
If we took this provision out, there would be no deal. People like me
would not allow this process to go forward--and we had to give some.
There was a give on the part of the administration and people like
myself. There are some programs that I think are inherent to fighting
the war that now have to be reviewed by the court. But that was a
compromise.
So for Senator Obama to come and say that he would take this
provision out is saying that he does not believe in a bipartisan deal
on the subject matter in question. The left has gone nuts over there--
the hard left. They think this is totally unacceptable. So, apparently,
he is going to tell them: I don't support this. I am sure that is what
they want to hear. But I say to my colleague, deals require giving and
taking. It requires sometimes telling your friends what they don't want
to hear. This is an example, in my opinion, of trying to tell your
friends what they want to hear and positioning yourself in a way to
look good with the public in general.
That is not leadership. Leadership requires the common good to trump
special interests. It requires political leaders to turn to their
allies at times and say: No, your suggestion cannot win the day because
if I give you what you are insisting on having, there will be no
movement forward.
Senator Obama is willing to give the left what they want. The
consequence of that would be that the deal would fall apart because
many people like me believe if you allow these companies to be sued for
helping their country, then nobody will come forward in the future to
help their country from the private sector.
In this war, we are going to need support from the private sector,
not only in telecommunications but in banking and other areas. So I
hope the amendment to strike the retroactive immunity for
telecommunications companies will be defeated because, if it is
[[Page S6180]]
passed, the deal fails, the movement forward stops, and America is
harmed. I am here to support the deal.
Understand that I didn't get all I wanted, but America will be safer
if we can get this program reauthorized. Our civil liberties will be
better protected, and the ability to understand what our enemies are up
to will be greatly enhanced. Every day that we move forward as a nation
with this program being compromised is a day that the enemy has an
advantage over us. We know what happens if this enemy is not dealt with
firmly and quickly. They are lethal, they are committed, and they will
do anything to harm our way of life.
We have an opportunity to come together as Republicans and Democrats
and move forward on a surveillance program that is vital to our
national security, and those who want to undo this deal because of
special interest pressure are not exercising the leadership the
American people need in a time of war.
With that, I yield the floor.
The PRESIDING OFFICER (Mr. Brown). The Senator from Washington is
recognized.
Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in
morning business for 10 minutes and that the time be counted against
the bill.
The PRESIDING OFFICER. Without objection, it is so ordered.
[...]
Mr. ROCKEFELLER. Mr. President, I am going to talk a little about the
FISA amendment and the protection of civil liberties of Americans. Some
people who are concerned about this bill don't recognize that there
have been enormous changes made that specifically speak to civil
liberties, and so I would like to talk about that. I wish to take the
time to explain how the negotiators of the FISA bill have taken great
care in protecting the constitutional right of privacy of American
[[Page S6181]]
citizens in crafting this agreement, which was a heavily discussed and
worked over matter.
The FISA Amendments Act of 2008 includes strong protections of civil
liberties of Americans while still allowing the Government to collect
the foreign intelligence it needs to protect the country, literally.
Maintaining this balance between civil liberties for Americans and
protecting our Nation against foreign attack was obviously my utmost
priority, as well as Senator Bond's, during the lengthy negotiation
process that produced what I think is historic legislation in
modernizing FISA for the first time in 30 years.
The FISA bill protects Americans in a lot of ways by ensuring FISA
Court involvement in any aspect of the new procedure for targeting
foreigners outside the United States that could involve U.S. persons.
It does so in four significant ways:
First, the bill requires the FISA Court to approve procedures used to
determine whether the foreign target of the surveillance is outside of
the United States. The court's assessment of the adequacy of these
procedures will ensure that the new authorities cannot be used for
domestic surveillance.
Second, the bill requires the court to approve the procedures used to
address any incidental acquisition, retention, or dissemination of U.S.
person information. These procedures protect the privacy of any
Americans who might be in contact with a foreign target.
Third, by explicitly asking the court to assess whether the
procedures comply with the fourth amendment, the bill requires the
court to determine whether the privacy interests of U.S. persons are,
in fact, adequately protected.
Finally, the bill requires the court to approve targeting and
minimization before collection begins, in most instances. The court
would be required to review and approve the procedures at least
annually. This is called prior approval, and it was something that was
not welcomed by some, but through the negotiation process, the prior
approval process was incorporated in the bill, and it means that the
court has to approve targeting and minimization before collection. The
Director of National Intelligence and the Attorney General would only
be able to proceed prior to a court order if emergency circumstances
exist but for a period of time no greater than 7 days before being
required to seek the approval of the court and no more than 30 days
while the court is considering the request. Sometimes, but very rarely,
emergencies do take place.
The FISA bill also provides unprecedented new privacy protections for
Americans abroad. This may be the most important part. For the first
time, Americans traveling or working abroad are entitled to the same
protection from surveillance and search that they would have if they
were in the United States. There are 4 million Americans at any given
moment who are outside of the United States, which is equal to the
total population of our Nation when it was founded. The requirement is
that the Government obtain a court order prior to targeting them for
any foreign intelligence collection. So they get the same type of
protection as does anybody in the United States. That is a first.
Before, the Attorney General could pretty much just say: We want to
target these people overseas, and there was no court involved, there
was no approval process involved legally. Now that cannot happen. So
they are protected, indeed, the same as anybody in the United States.
The bill requires the court to make an individual determination of
probable cause before a U.S. person overseas may be targeted for any
electronic surveillance or other foreign intelligence collection. Each
court order is valid for no longer than 90 days. This is an important
new protection that has never before been in place.
Apart from the court review I have detailed, the FISA bill also
protects the privacy interests of Americans through other provisions.
The bill prohibits the new procedure for targeting foreigners outside
the United States from being used to target anyone inside the United
States or from being used to acquire entirely domestic communication.
The way it is now--and it is called reverse targeting--within the
United States, you take out of the air some communication of somebody
overseas who may be contacting somebody in the United States, and that
potentially puts the U.S. person at risk. That is reverse targeting. So
there is a prohibition now which explicitly includes reverse targeting,
where the purpose of targeting somebody outside the United States is to
target somebody in the United States. I know it is complicated, but it
is important.
Because of the importance of the prohibitions in the bill, the bill
requires the Attorney General to adopt guidelines that ensure that the
Government obtains individual court orders when required and does not
engage in any prohibited conduct, such as reverse targeting, which, in
effect, disappears from the lexicon of telecommunication collection.
The bill also requires the Attorney General and the Director of
National Intelligence to certify to the FISA Court, under oath, that
the acquisition complies with the prohibitions in the bill and that the
procedures and guidelines are consistent with the requirements of the
fourth amendment.
To ensure there are no unintended consequences relating to when a
warrant must be obtained under FISA or how information obtained using
FISA can be used, the bill does not change the definition of
``electronic surveillance'' in FISA. It is left exactly as it is.
People say: Well, why is that? Everything has changed. Well, there can
be legislative authorizations to make changes, but only if those
legislative authorizations are made can there be changes in electronic
surveillance. So the definition remains the same--a good, solid base.
The bill requires extensive reporting to Congress about the
implementation of the new provisions, compliance with the prohibitions
in the bill--that is important; we have not had that--and the impact of
the new provisions on U.S. persons.
The bill sunsets on December 31, 2012, a date which ensures that the
reauthorization of the FISA bill will be addressed, in fact, by the
next administration.
In addition to protecting the civil liberties of Americans in the new
procedures, the bill seeks to prevent any future circumvention of FISA
and to ensure that Congress has a complete set of facts about the
President's surveillance program.
Well, one might question: How does that happen? In title III of the
FISA bill that is before us, we direct the inspectors general of
relevant agencies--and that is a whole bunch of intelligence agencies--
to complete a comprehensive review of the President's warrantless
surveillance program. Then, within a year, the inspectors general must
submit an unclassified report to Congress, with a classified annex, if
necessary. This IG review provides an important vehicle for ensuring
that a comprehensive set of facts about the President's program is
available to Congress and, to the extent the classification permits, to
the American public itself.
A comprehensive review of the President's program is particularly
important given the possibility the courts will dismiss ongoing
litigation due to title II. It also ensures that accountability for the
program will be directed at the Government, where it belongs.
To ensure that the Government never again relies on an inapplicable
statute to argue that warrantless wiretapping is permissible, the bill
strengthens the requirements that FISA and specific chapters of title
XVIII are the exclusive means by which electronic surveillance and
criminal law interceptions may be conducted. The act provides that in
addition to the specifically listed statutes, only an express statutory
authorization passed by the Congress for surveillance or interception
may constitute an additional exclusive means for that surveillance or
for that interception. It is a very strong protection against abuse.
Finally, the bill clarifies that criminal and civil penalties can be
imposed for any electronic surveillance that is not conducted in
accordance with FISA or the specifically listed criminal intercept
laws.
In summary, the FISA bill has a multitude of statutory provisions
that provide the judicial and congressional oversight that is essential
to protecting the civil liberties of all Americans, both here and
abroad. They were
[[Page S6182]]
not protected abroad. They are now. The House did not pass this bill
because they believed there was an insufficiency of civil liberty
protections--and they may have been right. So we hammered these out in
long meetings in which the White House, all the intelligence agencies,
and the leadership--Republican and Democratic--of the House and the
Senate were there.
It is a much stronger bill. People will argue that people like me
talk about a balance between being able to collect--which is the only
way you are going to know if you are going to be attacked--or civil
liberties. So people tend to go all the way this way or all the way
that way, not recognizing or not being willing to accept that there can
be a balance. We have created that balance in our bill. I am proud of
that. It is one of the many reasons I am for the bill.
I yield the floor.
[...]
Mr. WARNER. I thank the Chair.
Mr. President, this is one of the most important subjects I have had
the privilege of addressing in my 30-some years in the Senate. I and
many others will rise in connection with this bill in support of the
FISA Amendments Act. It is a critical piece of legislation for
America's present and future security. It achieves an important balance
between protecting civil liberties and ensuring that our dedicated
intelligence professionals have the capabilities they need to protect
this Nation.
Currently, Admiral McConnell is Director of our intelligence system.
I have had the privilege of knowing him for over 30 years, working with
him. We are fortunate that he and General Hayden and many others are
carrying the torch for our Nation's intelligence. They have worked very
hard on this piece of legislation, as has my dear colleague from
Missouri, Senator Bond. I am on the Intelligence Committee. He has done
a splendid job in negotiating the conference--hopefully, what will be a
settlement. He was supported by our chairman, Senator Rockefeller. It
has been a team, with the two of them achieving the juncture we are at
now in the consideration of this bill.
The bill ensures that the intelligence capabilities provided by the
Protect America Act, enacted in August of 2007, remain sealed in
statute. I cannot overemphasize how important that is to ensuring our
Nation's security. I wish to underscore, once again, the importance of
legal protection for the telecommunications carriers that have
voluntarily--underline voluntarily--come
[[Page S6197]]
forth for the private sector and have assisted our Government with the
terrorist surveillance program, commonly referred to as TSP, which was
originated and authorized by the President under appropriate sections,
in my judgment, of the Constitution, particularly article II.
I wish to emphasize that I was privileged to be Secretary of the Navy
in the period of the 1970s, when the All-Volunteer Force was conceived.
That force of young men and women, each of whom raised their hands and
said, I volunteer to serve in uniform, is not unlike the issue today
with elements of corporate America, the private sector, who have come
forward to volunteer to assist this Government in performing the
intelligence responsibilities undertaken which guarantee the freedoms
and safety we enjoy every day here at home. The extensive evidence made
available to the Senate Intelligence Committee shows that carriers that
participated in this program relied upon our Government's assurances
that their actions were legal, authorized by the President, and in the
best interests of the security of our Nation.
In brief, our Government provided the carriers with essential
assurances, and the carriers responded to our Government's request for
help. These carriers must be protected from costly and damaging
lawsuits. Such lawsuits could end the current level of participation in
the vital intelligence programs by these carriers and will likely deter
other companies and private citizens who might like to step forward and
volunteer in helping us protect ourselves by virtue of the essential
intelligence we must monitor and collect every day. After all, these
carriers are corporations in most instances, if not all. They are
beholden, the executives of these corporations, to the stockholders.
That is the system of free enterprise we have in the United States.
Consequently, they, on behalf of their stockholders--and the
stockholders could be the pension funds, could be a stock held by any
number of people and entities in our system of Government--are coming
forth simply asking for codification of assurances having been given by
the Government so they can go back to their stockholders and explain
that: We are doing this to protect America. We now have, by virtue of
the actions of the Congress, signed and sealed by the President, the
law that will protect your interests in this country from lawsuits
which have no foundation in law.
I would like to share a ``Dear Colleague'' letter which all Members
of our Chamber some months ago received from the esteemed chairman and
vice chairman of the Intelligence Committee, Senators Rockefeller and
Bond.
I ask unanimous consent that the full text of the letter be printed
in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 1.)
Mr. WARNER. The letter discussed the Senate Intelligence Committee's
extensive and bipartisan review of the TSP, which included dozens of
briefings, hearings, and interviews, as well as extensive document
reviews. As a result of this more than 10-month comprehensive
examination, the committee concluded--and I quote what was written and
published to our colleagues by the committee--
Irrespective of one's opinion of the President's reliance
on Article II authority to justify the TSP, those companies
that assisted with the TSP did so in good faith and based
upon the written--
I repeat: ``written representations''--
from the highest levels of government that the program was
lawful. The Committee's bill reported out on a strong,
bipartisan vote of 13-2--
I wish to repeat that. That is a strong vote. I have served on the
Intelligence Committee. This is my third tour of duty, you might say,
given that we have, under our leadership, stipulated periods to serve.
That is a big, strong vote. At one time, I was ranking member, as is
Mr. Bond, of that committee, and that is about as strong a vote as you
can get among the diversity of the wonderful people who have,
throughout my years in the Senate, served on that committee.
[That vote] reflects our determination that companies that
cooperated with the government in good faith should be
protected from time-consuming and expensive litigation. It is
a matter of fundamental fairness.
End quote by the committee.
Another item which played a key role in my thinking about the issue
was a thoughtful article published in a newspaper by private citizens
with past distinguished careers in public service relating to
intelligence. The first is Benjamin Civiletti, U.S. Attorney General
under President Jimmy Carter; followed by Dick Thornburgh, U.S.
Attorney General under President George Herbert Walker Bush; and Judge
William Webster, a very distinguished gentleman I have known personally
for many years, former Director of the CIA and former Director of the
Federal Bureau of Investigation.
Now, there are three diverse public servants, with different
political backgrounds, but they came together for the common purpose of
trying to strengthen America's intelligence system. The article,
entitled ``Surveillance Sanity,'' appeared in the October 31, 2007,
edition of the Wall Street Journal. I have spoken on the floor
previously about this article and their contribution, but because of
its direct relevance to the issue we are now deliberating on and
hopefully will vote on today, I ask unanimous consent that a copy of
the article be printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. WARNER. Let me share with you some of their thoughts. Regarding
the Intelligence Committee's carefully crafted and limited liability
provision, which is very similar to the provision in the bill currently
before us, these three distinguished public servants--now private
citizens--said:
We agree with the Committee. Dragging phone companies
through protracted litigation would not only be unfair, but
it would deter other companies and private citizens from
responding in terrorist emergencies whenever there may be
uncertainty or level risk.
Unfortunately, our committee has already heard testimony that without
such protections, some companies believe they can no longer continue
their cooperation and assistance to our American Government,
particularly the intelligence sections.
Messrs. Civiletti, Thornburgh, and Webster also wrote:
The government alone cannot protect us from the threats we
face today. We must have the help of all of our citizens.
There will be times when the lives of thousands of Americans
will depend on whether corporations such as airlines or banks
are willing to lend assistance. If we do not treat them
fairly when they respond to assurances from the highest
levels of the government that their help is legal and
essential for saving lives, then we will be radically
reducing our society's capacity to defend itself.
That is very strong language, very clear language. I urge my
colleagues, once again, to look at their article.
As the Senate considers this bill, it should reject any amendments
which would put the carriers and their millions of shareholders in
legal limbo, waiting while the Government litigates unrelated
constitutional claims. Lawsuits against the companies would likely
continue in the interim which would: have negative ramifications on our
intelligence sources and methods; likely harm the business reputations
of these companies; and cause the companies to reconsider their
participation--or worse--cause them to terminate their cooperation in
the future.
The Senate Intelligence Committee, by a vote of 13 to 2, stated its
belief that the carriers acted in good faith and that they deserve to
be protected.
Clearly the issue of whether the President acted within his
constitutional authority in authorizing the TSP can and should be
addressed in a separate context from this bill.
Even the exclusive means provision in this bill favored by my
Democratic colleagues in the House and Senate acknowledges the
President's constitutional authority in stating that certifications to
companies for assistance shall identify the statutory provision on
which the certification is based, ``if a certification . . . is based
on statutory authority.'' This clearly indicates that the certification
could be based on the President's constitutional authority.
But, even if one did not agree that the President acted within his
Article II powers, why would anyone want to punish the carriers for
something the Government called on them to do and assured them was
legal?
[[Page S6198]]
Individuals who believe that the Government violated the civil
liberties can pursue legal action against the Government, and the bill
before us does nothing to limit that legal recourse.
As stated so eloquently by Messrs. Civiletti, Thornburg, and Webster,
I quote the following:
Whether the government has acted properly is a different
question from whether a private person has acted properly in
responding to the government's call for help. . . . Because a
private person cannot have all the information necessary to
assess the propriety of the government's actions, he must be
able to rely on official assurances about need and legality.
I strongly believe that the President did act within his Article II
executive branch authority in authorizing this program. Even the
exclusive means provision in this bill favored by my Democratic
Colleagues in the House and Senate acknowledges the President's
constitutional authority in stating that certifications to companies
for assistance shall identify the statutory provision on which the
certification is based ``if a certification . . . is based on statutory
authority.'' This clearly indicates the certification could be based on
the President's constitutional authority.
But even if one did not agree that the President acted--acted--within
the confines of the U.S. Constitution--particularly article II outlines
the executive branch's power under the President--why would anyone want
to punish the carriers for something the Government called on them to
do and assured them was legal? Individuals who believe the Government
violated their civil liberties can pursue legal action against the
Government, and the bill before us does nothing--I repeat: does
nothing--to prohibit a citizen to bring that legal recourse against
their Government, the U.S. Government.
As stated so eloquently in the Messrs. Civiletti, Thornburgh, and
Webster document, I further quote:
Whether the government has acted properly is a different
question from whether a private person has acted properly in
responding to the government's call for help. . . . Because a
private person cannot have all the information necessary to
assess the propriety of the government's actions, he must be
able to rely on official assurances about need and legality.
I agree with the conclusions of these three eminent private citizens.
I would like to also call your attention to an important letter sent
last week--June 19, 2008--to Senate and House leadership from the
Attorney General of the United States and the Director of National
Intelligence--that is GEN Michael Mukasey and ADM Michael McConnell--
two distinguished public servants now serving America.
Mr. President, I also ask unanimous consent that this letter be
printed in the Record following my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 3.)
Mr. WARNER. These gentlemen said:
[P]roviding this liability protection is critical to the
Nation's security.
They confirmed that the intelligence community cannot obtain the
intelligence it needs without--I repeat, without--the assistance from
these carriers, companies, and other segments of the private sector.
They noted:
It is critical that any long-term FISA modernization
legislation contain an effective liability protection
provision.
It should be clear from this letter that the Director of National
Intelligence and the Attorney General of the United States could not
support the bill without explicit retroactive legal protection for the
carriers and other segments of the private sector.
It is for these reasons that I urge my colleagues to support H.R.
6304, the FISA Amendments Act, as passed by the House, and to vote
against any amendments that intend to strip out or alter the critical
civil liability provision or any other section of the bill that is
essential to our intelligence community.
Mr. President, I yield the floor.
Exhibit 1
U.S. Senate,
Select Committee on Intelligence,
Washington, DC, February 1, 2008.
Dear Colleagues: The FISA Amendments Act, S. 2248, provides
limited and narrowly-drawn retroactive civil liability
protection to those telecommunication companies that
allegedly assisted the government with the President's
Terrorist Surveillance Program (TSP). An amendment has been
offered to this Act to strike these liability protections in
favor of ``substitution,'' a legal mechanism for replacing
the companies in the ongoing TSP litigation with the
government.
The Senate Intelligence Committee conducted a comprehensive
and bipartisan review of the President's TSP, including the
issue of carrier liability. The Committee reviewed numerous
documents, including the Department of Justice legal opinions
and the letters from the government to the companies. The
Committee held a number of briefings and hearings involving
government and company officials. The Committee also visited
the National Security Agency to see firsthand how the TSP
worked.
As a result of this extensive review, the Committee
concluded that, irrespective of one's opinion of the
President's reliance on Article II authority to justify the
TSP, those companies that assisted with the TSP did so in
good faith and based upon the written representations from
the highest levels of government that the program was lawful.
The Committee's bill, reported out on a strong, bipartisan
vote of 13-2, reflects our determination that companies that
cooperated with the government in good faith should be
protected from time-consuming and expensive litigation. It is
a matter of fundamental fairness. The Committee rejected the
broad immunity proposal sought by the Administration. Our
limited immunity provision only covers assistance provided
from September 11th to when the TSP was put under court
authorization in January of last year. It does not provide
protection from criminal prosecution or extend protections to
government officials. Any litigation against government
officials will continue.
In concluding that civil liability protection for those
companies was appropriate, the Committee recognized that
allowing the current litigation to continue could: (1)
compromise our intelligence sources and methods through
ongoing discovery and other litigation proceedings; (2)
result in significant loss of business reputation or
financial loss for those companies that participated in good
faith; (3) jeopardize the personal safety of overseas
employees of these companies if it becomes known that the
companies assisted the government in fighting terrorism; (4)
put taxpayers' dollars at risk for dubious legal claims; and
(5) lead to reluctance by these and other companies to
cooperate with legitimate requests for assistance in the
future.
The substitution amendment sponsored by Senators Specter
and Whitehouse does not alleviate any of these concerns. Even
if the companies are removed directly from the litigation,
discovery would still be allowed to proceed against them. In
short, the conduct of the companies would continue to be
litigated, raising significant concerns that their identities
or details about their assistance will be disclosed. Given
the essential role that our private partners play in
intelligence collection, we believe that this is simply too
great a risk to our national security.
We believe, therefore, that the ongoing litigation against
the telecommunication companies should be brought to an
immediate close and that the Intelligence Committee's
bipartisan determination of good faith should stand. We urge
you to support the Intelligence Committee's bill and oppose
any effort to modify or strike its civil liability provision.
Sincerely,
John D. Rockefeller IV,
Chairman.
Christopher S. Bond,
Vice Chairman.
Exhibit 2
[From the Wall Street Journal, Oct. 31, 2007]
Surveillance Sanity
(By Benjamin Civiletti, Dick Thornburgh and William Webster)
Following the terrorist attacks of Sept. 11, 2001,
President Bush authorized the National Security Agency to
target al Qaeda communications into and out of the country.
Mr. Bush concluded that this was essential for protecting the
country, that using the Foreign Intelligence Surveillance Act
would not permit the necessary speed and agility, and that he
had the constitutional power to authorize such surveillance
without court orders to defend the country.
Since the program became public in 2006, Congress has been
asserting appropriate oversight. Few of those who learned the
details of the program have criticized its necessity.
Instead, critics argued that if the president found FISA
inadequate, he should have gone to Congress and gotten the
changes necessary to allow the program to proceed under court
orders. That process is now underway. The administration has
brought the program under FISA, and the Senate Intelligence
Committee recently reported out a bill with a strong
bipartisan majority of 13-2, that would make the changes to
FISA needed for the program to continue. This bill is now
being considered by the Senate Judiciary Committee.
Public disclosure of the NSA program also brought a flood
of class-action lawsuits seeking to impose massive liability
on phone companies for allegedly answering the government's
call for help. The Intelligence Committee has reviewed the
program and has concluded that the companies deserve targeted
protection from these suits. The protection would extend only
to activities
[[Page S6199]]
undertaken after 9/11 until the beginning of 2007, authorized
by the president to defend the country from further terrorist
attack, and pursuant to written assurances from the
government that the activities were both authorized by the
president and legal.
We agree with the committee. Dragging phone companies
through protracted litigation would not only be unfair, but
it would deter other companies and private citizens from
responding in terrorist emergencies whenever there may be
uncertainty or legal risk.
The government alone cannot protect us from the threats we
face today. We must have the help of all our citizens. There
will be times when the lives of thousands of Americans will
depend on whether corporations such as airlines or banks are
willing to lend assistance. If we do not treat companies
fairly when they respond to assurances from the highest
levels of the government that their help is legal and
essential for saving lives, then we will be radically
reducing our society's capacity to defend itself.
This concern is particularly acute for our nation's
telecommunications companies. America's front line of defense
against terrorist attack is communications intelligence.
When Americans put their loved ones on planes, send their
children to school, or ride through tunnels and over
bridges, they are counting on the ``early warning'' system
of communications intelligence for their safety.
Communications technology has become so complex that our
country needs the voluntary cooperation of the companies.
Without it, our intelligence efforts will be gravely
damaged.
Whether the government has acted properly is a different
question from whether a private person has acted properly in
responding to the government's call for help. From its
earliest days, the common law recognized that when a public
official calls on a citizen to help protect the community in
an emergency, the person has a duty to help and should be
immune from being hauled into court unless it was clear
beyond doubt that the public official was acting illegally.
Because a private person cannot have all the information
necessary to assess the propriety of the government's
actions, he must be able to rely on official assurances about
need and legality. Immunity is designed to avoid the burden
of protracted litigation, because the prospect of such
litigation itself is enough to deter citizens from providing
critically needed assistance.
As the Intelligence Committee found, the companies clearly
acted in ``good faith.'' The situation is one in which
immunity has traditionally been applied, and thus protection
from this litigation is justified.
First, the circumstances clearly showed that there was a
bona fide threat to ``national security.'' We had suffered
the most devastating attacks in our history, and Congress had
declared the attacks ``continue to pose an unusual and
extraordinary threat'' to the country. It would have been
entirely reasonable for the companies to credit government
representations that the nation faced grave and immediate
threat and that their help was needed to protect American
lives.
Second, the bill's protections only apply if assistance was
given in response to the president's personal authorization,
communicated in writing along with assurances of legality.
That is more than is required by FISA, which contains a safe-
harbor authorizing assistance based solely on a certification
by the attorney general, his designee, or a host of more
junior law enforcement officials that no warrant is required.
Third, the ultimate legal issue--whether the president was
acting within his constitutional powers--is not the kind of
question a private party can definitively determine. The
companies were not in a position to say that the government
was definitely wrong.
Prior to FISA's 1978 enactment, numerous federal courts
took it for granted that the president has constitutional
power to conduct warrantless surveillance to protect the
nation's security. In 2002, the FISA Court of Review, while
not dealing directly with the NSA program, stated that FISA
could not limit the president's constitutional powers. Given
this, it cannot be said that the companies acted in bad faith
in relying on the government's assurances of legality.
For hundreds of years our legal system has operated under
the premise that, in a public emergency, we want private
citizens to respond to the government's call for help unless
the citizen knows for sure that the government is acting
illegally. If Congress does not act now, it would be
basically saying that private citizens should only help when
they are absolutely certain that all the government's actions
are legal. Given the threats we face in today's world, this
would be a perilous policy.
Exhibit 3
June 19, 2008.
Hon. Nancy Pelosi, Speaker,
House of Representatives,
Washington, DC.
Dear Madam Speaker: This letter presents the views of the
Administration on the Foreign Intelligence Surveillance Act
of 1978 (``FISA'') Amendments Act of 2008 (H.R. 6304). The
bill would modernize FISA to reflect changes in
communications technology since the Act was first passed 30
years ago. The amendments would provide the Intelligence
Community with the tools it needs to collect the foreign
intelligence necessary to secure our Nation while protecting
the civil liberties of Americans. The bill would also provide
the necessary legal protections for those companies sued
because they are believed to have helped the Government
prevent terrorist attacks in the aftermath of September 11.
Because this bill accomplishes these two goals essential to
any effort to modernize FISA, we strongly support passage of
this bill and will recommend that the President sign it.
Last August, Congress took an important step toward
modernizing FISA by enacting the Protect America Act of 2007.
That Act allowed us temporarily to close intelligence gaps by
enabling our intelligence professionals to collect, without
having to first obtain a court order, foreign intelligence
information from targets overseas. The Act has enabled us to
gather significant intelligence critical to protecting our
Nation. It has also been implemented in a responsible way,
subject to extensive executive, congressional, and judicial
oversight in order to protect the country in a manner
consistent with safeguarding Americans' civil liberties.
Since passage of the Act, the Administration has worked
closely with Congress to address the need for longterm FISA
modernization. This joint effort has involved compromises on
both sides, but we believe that it has resulted in a strong
bill that will place the Nation's foreign intelligence effort
in this area on a firm, long-term foundation. Below, we have
set forth our views on certain important provisions of H.R.
6304.
Title I--Foreign Intelligence Surveillance
Title I of H.R. 6304 contains key authorities that would
ensure that our intelligence agencies have the tools they
need to collect vital foreign intelligence information and
would provide significant safeguards for the civil liberties
of Americans.
Court Approval. With respect to authorizations for foreign
intelligence surveillance directed at foreign targets outside
the United States, the bill provides that the Foreign
Intelligence Surveillance Court (FISC) would review
certifications made by the Attorney General and the Director
of National Intelligence relating to these acquisitions, the
reasonableness of the procedures used by the Intelligence
Community to ensure the targets are overseas, and the
minimization procedures used to protect the privacy
of Americans. The scope of the FISC's review is carefully
and rightly crafted to focus on aspects of the acquisition
that may affect the privacy rights of Americans so as not
to confer quasi-constitutional rights on foreign
terrorists and other foreign intelligence targets outside
the United States.
We have been clear that any satisfactory bill could not
require individual court orders to target non-United States
persons outside the United States, nor could a bill establish
a court-approval mechanism that would cause the Intelligence
Community to lose valuable foreign intelligence while
awaiting such approval. H.R. 6304 would do neither and would
retain for the Intelligence Community the speed and agility
that it needs to protect the Nation. The bill would establish
a schedule for court approval of certifications and
procedures relating to renewals of existing acquisition
authority. A critical feature of the H.R. 6304 would allow
existing acquisitions, which were the subject of court review
under the Protect America Act or will be the subject of such
review under the H.R. 6304, to continue pending court review.
With respect to new acquisitions, absent exigent
circumstances, Court review of new procedures and
certifications would take place before the Government begins
the acquisition. The exigent circumstances exception is
critical to allowing the Intelligence Community to respond
swiftly to changing circumstances when the Attorney General
and the Director of National Intelligence determine that
intelligence may be lost or not timely acquired. Such exigent
circumstances could arise in certain situations where an
unexpected gap has opened in our intelligence collection
efforts. Taken together, these provisions would enable the
Intelligence Community to keep closed the intelligence gaps
that existed before the passage of the Protect America Act
and ensure that it will have the opportunity to collect
critical foreign intelligence information in the future.
Exclusive means. H.R. 6304 contains an exclusive means
provision that goes beyond the exclusive means provision that
was passed as part of FISA. As we have previously stated, we
believe that the provision will complicate the ability of
Congress to pass, in an emergency situation, a law to
authorize immediate collection of communications in the
aftermath of an attack or in response to a grave threat to
the national security. Unlike other versions of this
provision, however, the one 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.
Oversight and Protections for the Civil Liberties of
Americans. H.R. 6304 contains numerous provisions that
protect the civil liberties of Americans and allow for
extensive executive, congressional, and judicial oversight of
the use of the authorities. The bill would require the
Attorney General and the Director of National Intelligence to
conduct semiannual assessments of compliance with targeting
procedures and minimization procedures and to submit those
assessments to the FISC and to Congress. The FISC and
Congress would also receive annual reviews relating to those
acquisitions prepared by the heads of agencies that use the
authorities
[[Page S6200]]
contained in the bill. Congress would receive reviews from
the Inspectors General of these agencies and of the
Department of Justice regarding compliance with the
provisions of the bill. In addition, the bill would require
the Attorney General to submit to Congress a report at
least semiannually concerning the implementation of the
authorities provided by the bill and would expand the
categories of FISA-related court documents that the
Government must provide to the congressional intelligence
and judiciary committees.
Title I also includes provisions that would protect the
civil liberties of Americans. For instance, the bill would
require for the first time that a court order be obtained to
conduct foreign intelligence surveillance outside the United
States of an American abroad. Historically, Executive Branch
procedures guided the conduct of surveillance of a U.S.
person overseas, such as when a U.S. person acts as an agent
of a foreign power, e.g., spying on behalf of a foreign
government. Given the complexity of extending judicial review
to activities outside the United States, these provisions
were carefully crafted with Congress to ensure that such
review can be accomplished while preserving the necessary
flexibility for intelligence operations. Other provisions of
the bill address concerns that some voiced about the Protect
America Act, such as clarifying that the Government cannot
``reverse target'' without a court order and requiring that
the Attorney General establish guidelines to prevent this
from occurring. We believe that, taken together, these
provisions will allow for ample oversight of the use of these
new authorities and ensure that the privacy and civil
liberties of Americans are well protected.
II. Title II--Protections for Electronic Communications Service
Providers
Title II of the bill contains, among other provisions,
vital protections for electronic communications service
providers who assist the Intelligence Community's efforts to
protect the Nation from terrorism and other foreign
intelligence threats. Title II would provide liability
protection related to future assistance while ensuring the
protection of sources and methods. Importantly, the bill
would also provide the necessary legal protection for those
companies who are sued only because they are believed to have
helped the Government with communications intelligence
activities in the aftermath of September 11, 2001.
The framework contained in the bill for obtaining
retroactive liability protection is narrowly tailored. An
action must be dismissed if the Attorney General certifies to
the district court in which the action is pending that
either: (i) the electronic communications service provider
did not provide the assistance; or (ii) the assistance was
provided in the wake of the September 11 attack and was the
subject of a written request or series of requests from a
senior Government official indicating that the activity was
authorized by the President and determined to be lawful. The
district court would be required to review this certification
before dismissing the action, and the provision allows for
the participation of the parties to the lawsuit in a manner
consistent with the protection of classified information. The
liability protection provision does not extend to the
Government or to Government officials and it does not
immunize any criminal conduct.
Providing this liability protection is critical to the
Nation's security. As the Senate Select Committee on
Intelligence recognized, ``the intelligence community cannot
obtain the intelligence it needs without assistance from
these companies.'' That committee also recognized that
companies in the future may be less willing to assist
the Government if they face the threat of private lawsuits
each time they are believed to have provided assistance.
Finally, allowing litigation over these matters risks the
disclosure of highly classified information regarding
intelligence sources and methods. As we have stated on
many occasions, it is critical that any long-term FISA
modernization legislation contain an effective liability
protection provision. H.R. 6304 contains just such a
provision and for this reason, as well as those expressed
with respect to Title I above, we strongly support its
passage.
III. Title III--Review of Previous Actions
Title III would require the Inspectors General of the
Department of Justice, the Office of the Director of National
Intelligence, and of certain elements of the Intelligence
Community to review certain communications surveillance
activities, including the Terrorist Surveillance Program
described by the President. Although improvements have been
made over prior versions of this provision, we believe, as we
have written before, that it is unnecessary in light of the
Inspector General reviews previously completed, those already
underway, and the congressional intelligence and judiciary
committee oversight already conducted. Nevertheless, we do
not believe that, as currently drafted, the provision would
create unacceptable operational concerns. The bill contains
important provisions to make clear that such reviews should
not duplicate reviews already conducted by Inspectors
General.
IV. Title IV--other Provisions
Title IV contains important provisions that will ensure
that the transition between the current authorities and the
authorities provided in this bill will not have a detrimental
effect on intelligence operations.
Title IV also states that the authorities in the bill
sunset at the end 2012. We have long favored permanent
modernization of FISA. The Intelligence Community operates
more effectively when the rules governing our intelligence
professionals' ability to track our enemies are firmly
established. Stability of law also allows the Intelligence
Community to invest resources appropriately. Congress has
extensively debated and considered the need to modernize FISA
since 2006, a process that has involved numerous hearings,
briefings, and floor debates. The process has been valuable
and necessary, but it has also involved the discussion in
open settings of extraordinary information dealing with
sensitive intelligence operations. Every time we repeat this
process it risks exposing our intelligence sources and
methods to our adversaries. Although we would prefer that
H.R. 6304 contain no sunset, a sunset in 2012 is
significantly longer than others that were proposed and it is
long enough to avoid impairing the effectiveness of
intelligence operations.
Thank you for the opportunity to present our views on this
crucial bill. We reiterate our sincere appreciation to the
Congress for working with us on H.R. 6304, a long-term FISA
modernization bill that will strengthen the Nation's
intelligence capabilities while respecting and protecting the
constitutional rights of Americans. We strongly support its
prompt passage.
Sincerely,
Michael B. Mukasey,
Attorney General.
J.M. McConnell,
Director of National Intelligence.
[...]
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WHITEHOUSE. Madam President, before I discuss for a moment the
Foreign Intelligence Surveillance Act, I applaud my colleague, the
distinguished Senator from Pennsylvania, for his remarks. In the year
and a half we have served together in this body, he has stood out as a
powerful advocate for consumers, particularly Pennsylvania consumers.
He has always had a very thoughtful, helpful, and productive approach
to the solutions he has put forward and espoused. It is an honor for me
to follow him on the Senate floor here.
On the question of the Foreign Intelligence Surveillance Act, I will
talk about the immunity question for telecoms at another time. It is
not yet clear what amendment will be allowed to be offered. I thought I
would talk about two other issues at this point. The first is the
process that has got us here. I do wish to pay particular tribute to
the chairman of the Senate Select Committee on Intelligence, Jay
Rockefeller, for how steadfast he has been in pushing through this
process.
We in the Senate have also been done a great service by our
colleagues in the House of Representatives, who stood fast against the
Bush administration efforts to stampede this legislation through
without proper negotiation and without the basic process of back and
forth that ordinarily improves legislation. It has made for a better
piece of legislation. It also makes for a notable contrast with what
happened a year ago, when we first took up this legislation.
I wish to talk for a minute about that because it was a very
disappointing episode, I believe, in the Senate's history, and it is
one I wish to make sure we chronicle because it should not be repeated.
In order to understand what I am going to say, it will be important
to remember the schedule at the time. I have just replicated July of
2007, and the early days of August here. The first time the big sort of
stampede push began, for me at least, was when the Director of National
Intelligence, Admiral McConnell, met with me on July 11 in the secure
confines of the Senate Intelligence Committee to tell me what he
wanted. There had been a big FISA bill that had everything but the
kitchen sink in it. It was clearly going no place. He realized he would
have to focus on what he wanted, and he said three things. These are
from my notes of that meeting.
No. 1, we need to compel the telecoms to help us; No. 2, we need to
get foreign-to-foreign conversations, not Americans, foreign-to-foreign
conversations without having to go to the FISA Court; and No. 3, we
need a warrant if we are going to wiretap Americans. We accept that.
[[Page S6206]]
So I said to him: That is fine, but you do not have any legislation.
We are suspicious of what is going to be in this legislation when it
shows up, so the sooner you can get it written and the sooner you can
get it to us the better, because the devil is going to be in the
details and we need a chance to look it over. That was on July 11.
The draft legislation was circulated on July 27. It was circulated,
at least to me, by mail, so I didn't get it on July 27. I got it over
the weekend, the following Monday, on July 30. The Friday from Monday
delivery stunt is one we have seen before. But what concerned me was
that once that legislation was delivered, the Bush administration began
to whip up everything they could do to try to panic Americans about
what was going on.
On July 28, that Saturday, President Bush gave a radio address,
saying:
Our intelligence community warns that under the current
statute we are missing a significant amount of foreign
intelligence that we should be collecting to protect our
country. Congress needs to act immediately to pass this bill
so that our national security professionals can close
intelligence gaps and provide critical warning time for our
country.
He asked us to work together to pass FISA modernization now, before
we leave town, and said our national security depends on it. That is
what he said here.
The Senate promptly picked up the chorus with one of my colleagues
saying we would be deaf during August to discussions of threats being
carried on by al-Qaida and others seeking to do us harm if we did not
pass the legislation.
Another colleague said:
This is a time when the Director of National Intelligence
and the Secretary of the Department of Homeland Security have
said it is a high threat month and it is imperative for
national security that we adopt this now.
Another one of our colleagues said:
Make no mistake, inaction on our part needlessly subjects
every American to increased danger. We need to act.
Those are just several high points of a real campaign to try to drive
this issue by public fear.
Well, here is what concerned me. If, when the President spoke on July
28, national security was that vitally affected by the speed of this
legislation; if every day that went by we were missing intelligence,
because of an intelligence gap, of al-Qaida plots that were being
developed then and there to attack us; if that were true also on the
3rd, why wasn't it true back here on July 11 and 12 and 13, 14, 15, and
all the way through here when they circulated the draft on July 27?
Here is what they sent us. This. It is 12 pages. That is it. Double
spaced. I could write 12 pages of legislation double spaced in 17 hours
if our national security depended upon it. It would not take me 17
days. So when it takes them 17 days to write 12 pages of legislation
and then deliver it on the Monday before we recess and suddenly there
is an explosion of concern about immediate al-Qaida attacks that are
being planned that we need to get into, something does not add up. I
believe the result was what I call the August stampede, and as a result
we passed, bluntly, a very poor piece of legislation, the so-called
Protect America Act.
This piece of legislation does a number of very good things to repair
some of the damage in the Protect America Act.
The first is protection for Americans when we travel abroad.
Americans travel a lot now. They travel on business, they travel on
vacation. It is a lot more expensive now given the Bush
administration's oil prices, but people still travel a lot. The rule
had been, under the Protect America Act, that if you were traveling
abroad, you had no statutory or judicial protection of your privacy,
none whatsoever. They could listen to your telephone calls, they could
take your BlackBerrys, e-mails, anything--it was open season. There
were no statutory or judicial protections for Americans once they set
foot outside of the country. The only protection was an executive
order, 12333, which said that if the Attorney General determined that
you as an American were an agent of a foreign power, then they could
listen, then they could surveil, then they could intercept, but only if
the Attorney General made that determination. So there was a
protection, but it was only an executive order--nothing statutory,
nothing judicial. Then we looked into the opinions that underlie the
Bush warrantless wiretapping program, and here is what I found.
The flaw in the Protect America Act is that it contained no
statutory, no judicial protections for Americans once they were
traveling abroad and put them at the mercy of the executive branch of
Government to be wiretapped at will, protected only by an Executive
order. Our discovery, in the course of looking at the classified legal
opinions that supported the warrantless wiretapping program, we
discovered this rule that had been inserted by the Office of Legal
Counsel:
An executive order cannot limit a President. There is no
constitutional requirement for a President to issue a new
executive order whenever he wishes to depart from the terms
of a previous executive order. Rather than violate an
executive order, the President has instead modified or waived
it.
Well, as a theory, I think that is, frankly, deeply flawed legally.
In my examination of Attorney General nominee Mukasey, I asked him
what the force of an Executive order was. He answered me saying:
Should an executive order apply to the President and he
determines that the order be modified, the appropriate course
would be for him to issue a new order, or amend the prior
order.
I think that is not only the correct but the obvious solution. But we
were left in a situation in which an American traveling abroad, without
statutory protection, without judicial protection, and with the only
protection from the executive being a protection that the President
cannot be limited by and that he can ignore at will--frankly, that was
no protection at all.
So we worked very hard in the committee--and it has persisted through
the entire lengthy process we have been involved in--to make sure that
an American, whether you are in the United States or traveling abroad,
has the protection of a judicial order before your Government can
wiretap you. And that has been achieved. That has been an important
achievement.
A second achievement has been in the area of minimization. I know the
Presiding Officer was a prosecutor in Minnesota. I have run wiretap
investigations as a U.S. attorney, I have run wiretap investigations as
an attorney general, and I have seen firsthand how important
minimization is to a wiretap investigation.
Minimization is what happens when you have the authority to wiretap
somebody, but because you have the authority to wiretap one person,
they could be talking to somebody else who is not part of the criminal
or national security activity involved, and if that proves to be the
case, you have to minimize that to protect the rights of the third
person they are talking to. In the old days, the FBI agents would
literally sit there with their earmuffs on listening and flip the
switch on and off to see whether the conversation was still an innocent
conversation or related to some criminal matter.
Now it is more complex, but those minimization procedures did not
previously have any judicial oversight. They only were required to be
filed. Under this bill, the Attorney General shall adopt minimization
procedures. It is mandatory. But more than that, the Foreign
Intelligence Surveillance Court is given authority to review those
minimization procedures; specifically, to determine whether those
procedures meet the statutory standards we require for minimization
procedures. So that is particularly important.
Finally, this statute for the first time recognizes ``the inherent
authority of the FISA Court to determine or enforce compliance with an
order or a rule of such court.'' So they not only get the minimization
procedures, they get to approve the minimization procedures. If it is
determined that the executive branch isn't following them, they can
check for compliance, and they can enforce the procedure. That is a
substantial, additional improvement that brings this in line with the
traditions of wiretap surveillance within the United States.
Another significant improvement has been in the area of exclusivity.
FISA has always said that ``it shall be the exclusive means by which
electronic surveillance . . . and the interception of domestic wire,
oral, and electric communications may be conducted.''
That was clearly the intent of Congress, as courts, including in the
[[Page S6207]]
Andonian decision, have agreed. However, we have a problem again with
the Office of Legal Counsel. The Office of Legal Counsel said this:
Unless made a clear statement in the Foreign Intelligence
Surveillance Act that it sought to restrict presidential
authority to conduct wireless searches in the national
security area--which it has not--then the statute must be
construed to avoid a reading.
I don't know how you get ``which it has not'' out of the clear
language of the Foreign Intelligence Surveillance Act saying this is
the exclusive means. But once we found out that in these classified
opinions the Office of Legal counsel had suggested this language right
here either didn't exist or didn't mean anything, it had to be solved.
Thanks to the leadership of Senator Feinstein, in particular, there has
been great energy put into improving the exclusivity provision. I think
it is now an exclusivity provision that would defeat this type of,
frankly, improbable legal analysis and clearly define that it is
Congress's intent in the FISA statute to take every possible avenue it
can to limit executive surveillance activities to those that are
performed within the statutory authority of this particular
legislation.
The last thing is reverse targeting. There has been considerable
concern about allowing the Government to identify a foreigner who is in
touch with Americans regularly and target that foreigner with the
reverse targeting purpose to actually pick up the conversations of the
American and dodge the requirement for a warrant for judicial review
vis-a-vis the American. There are strong provisions in here that
require that regulations and procedures be developed to prevent that.
I hope to be able to discuss the statute further, as we get to the
discussion about immunity. But I will conclude by summarizing that the
process we went through to get to this piece of legislation,
particularly article I of this bill, was a very proud moment for this
Senate and for this caucus, for Chairman Rockefeller. It has been
infinitely better than the degraded process we went through last August
in the atmosphere of stampede. I think the quality of the underlying
legislation shows it. I hope as we continue to work together in the
Senate on other issues, we continue to follow the process that took
place with respect to this iteration of the FISA bill, and we never go
back to the kind of hectic, imprudent stampede we were put through last
August. Second, the elements of article I are improved. This is, in
article I, a bill we can we very proud of. We will have our dispute
about the immunity provisions. I will have my thoughts on that for
later. But there is much that has been accomplished and great credit is
due particularly to Chairman Rockefeller for those accomplishments.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. I ask unanimous consent that the order for the quorum call
be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
[Congressional Record: June 26, 2008 (Senate)]
[Page S6213-S6214]
FISA
Mr. BOND. Mr. President, I know this is morning business, but I need
to get people's attention back on FISA, I hope. Let me clarify some
things that have been said earlier today. From time to time, some have
tried to rewrite the history on what happened 1 year ago in producing
the Protect America Act, our first attempt to fix the problems with
foreign intelligence surveillance 1 year ago. That was not pretty, but
I note there have been mischaracterizations of it. After last year,
many critics of FISA, most notably in the House, tried to rewrite
history and discredit ADM Mike McConnell, the Director of National
Intelligence, and this compelled me to speak out on the matter at this
time. He, in my view, from what I saw, acted in good faith, and he was
charged with not having done so. But it seems there is another effort
today to rewrite history. I can say, as vice chairman of the Senate
Intelligence Committee and the cosponsor of the Protect America Act, I
was the lead negotiator during the final hours of the Congress, as we
tried to pass a critical short-term update of our Nation's law
governing terrorist surveillance.
As one who was there, I dispute the misinformation that was spread
and largely by those who were not there. I will outline the events as
they occurred, and here is what happened.
As I think most of us know, in January 2007, the President announced
that the terrorist surveillance program was coming under the FISA
Court. Our Director of National Intelligence, Admiral McConnell,
subsequently stated that after that time, the intelligence community
lost a significant amount of collection capability and that, combined
with increased threat, compelled him to ask Congress to modernize FISA,
sooner rather than later.
On April 12, Admiral McConnell sent his full FISA modernization
proposal to Congress, and on May 1 he presented it in open session to
the Senate Intelligence Committee.
Some would like us to believe that was the first time this became an
issue for us, in July, but it was not. The DNI had appeared in open
session before the Senate Intelligence Committee and had pleaded with
us to update FISA months earlier.
I might say, along with another colleague of ours on the Senate
Intelligence Committee, Senator Bayh, we visited Iraq in early May of
2007, and the Joint Special Operations Commander, LTG Stan McChrystal,
told us at that time that the blockage in electronic surveillance by
FISA was substantially hurting his ability to gain the intelligence he
needed to protect our troops in the field and gain an offensive
advantage. I believe I, and perhaps Senator Bayh, spoke about that in
committee and on the floor.
Immediately following the admiral's testimony in May, I had urged the
Intelligence Committee immediately to mark up FISA legislation. I was
told by members of the majority that until the President turned over
certain legal opinions from the terrorist surveillance program,
Congress would not modernize FISA. That Congress would hold America's
security hostage to receiving documents from a program that no longer
existed was disheartening to me. We had already received an inordinate
amount of documents from the Department of Justice and the Director of
National Intelligence. Yet I do not dispute the desire or the right of
members to seek privileged documents from the executive branch. In
fact, I joined in requesting some of that. But I did disagree with
holding up FISA modernization when those documents were not necessary
to do that.
Despite the urging from the Director of National Intelligence, and
knowing this outdated law was harming our terrorist surveillance
capabilities, for
[[Page S6214]]
more than 3 months Congress chose to do nothing. Let me be clear, it
was Congress that chose to ignore the pleas of the intelligence
community. As a matter of fact, in late June, Admiral McConnell had a
briefing for the entire Senate. I believe about 42 to 44 of us showed
up there. He briefed Members of the Senate, again urging us to
modernize FISA. Finally, his pleadings began to gain traction.
In mid-July, Members of Congress agreed to discuss a short-term,
scaled-down version of FISA to protect the country for the next few
months before we could address comprehensive reform in the fall.
Admiral McConnell immediately sent Congress his scaled-down proposal.
Over the next week, Admiral McConnell was given nearly half a dozen
versions of unvetted proposals from various congressional staffs across
Congress and then pressed for instant support of these proposals. The
admiral returned a compromise proposal to the Senate, including some of
the provisions requested. Unfortunately, there were numerous bait and
switches that took place during that time.
Since the bipartisan committee process was circumvented to craft
legislation behind closed doors without input from the relevant
committee and the minority, it got messy in the final hours. Even as
the vice chairman of the Intelligence Committee, I was excluded from
the key meetings. Not only was I excluded, most members of the
Intelligence Committee, Republican and Democratic, were left out of the
process.
Therefore, in the waning moments before the recess, I got together
with a number of Democrats, including several from our Intelligence
Committee, to discuss the short-term approach for the Protect America
Act that Leader McConnell and I had introduced and which had the
support of the DNI and the Department of Justice.
Finally, on August 3 and 4, Congress, on a strong bipartisan basis
and a desire to get out of town for the August recess, passed the
Protect America Act.
That was why it was jammed up. The administration was not trying to
stiff us. The administration felt it was being stiffed. Fortunately, a
solid, bipartisan majority of the Senate came together, passed the
bill, and gave the House, regrettably, no choice but to pass it--which
they did. But after the passage of the act, I think we all learned a
good lesson. We sat down together on the Senate Intelligence Committee
and began, on a bipartisan basis, to work out a permanent solution to
FISA. I am very thankful we could do it. We put in a great deal of
work. We spent a lot of time with the DNI, with the lawyers and the
operatives for the program, and Senator Rockefeller and I worked, in a
bipartisan fashion, to come up with a strong committee bill that we
passed out of the Senate later on a 68-to-29 vote.
I thank my colleagues on the committee, their staff, and all the
Members of Congress who supported us, particularly the 68 who came and
voted aye to pass the FISA amendments in February.
That started the process that led us to where we are today. There is
a strong bipartisan product before us. There were changes, cosmetic
changes largely, made that the House believed were important and the
intelligence community assured us would not interfere with their
ability to collect information under the structure we had set forth in
the FISA amendments that were passed by the Senate.
That is where we are today. I am ready, willing, and able, whenever
it is the will of the leadership, to act on amendments that may be
before us and try to pass this bill so we will have some certainty for
the intelligence community that they will know what the guidelines are
for the next period through 2012.
In any event, I will be back when we get on the bill to go over some
of the items which are in question. But I think you see our chairman,
Senator Rockefeller, who is on the floor, and I can assure you this is
a good, solid, bipartisan bill that we should pass.
I see it is a good time to yield the floor.
The PRESIDING OFFICER. The Senator from Montana is recognized,
pursuant to the previous order.
____________________
