[Congressional Record: June 26, 2008 (Extensions)]
[Page E1378]
FISA AMENDMENTS ACT OF 2008
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speech of
HON. PETER HOEKSTRA
of michigan
in the house of representatives
Friday, June 20, 2008
Mr. HOEKSTRA. Madam Speaker, I would also like to clarify a number of
aspects of this legislation on behalf of myself and the distinguished
Ranking Member of the Judiciary Committee, Mr. Smith.
We have faced substantial challenges in reconciling fundamentally
different philosophies on how to modernize the Foreign Intelligence
Surveillance Act (FISA). The text of H.R. 6304 was carefully,
deliberately crafted on a bipartisan basis to reconcile these
differences. Other statements by media reports, or the reports or work
product of any of outside groups reflect their own views and should not
be construed as determinative guidance with respect to legislative
intent. While the text of the bill ultimately controls interpretation
of the bill, we would like to note our understanding of H.R. 6304 as
the Ranking Members of the Permanent Select Committee on Intelligence
and the Committee on the Judiciary respectively on three matters within
this legislation.
role of the foreign intelligence surveillance court
The authority of the Foreign Intelligence Surveillance Court (FISC)
or any court in approving foreign intelligence collection generally,
and specifically the surveillance of foreigners located in other
countries, was an issue of great debate during negotiations and the
resulting text was delicately constructed. For the first time ever,
this bill will statutorily insert the FISA court in a limited way into
the Executive's Constitutional authority to collect foreign
intelligence information targeting foreign persons in foreign
countries. This unprecedented move was an accommodation to those who
believed that the court could provide some sort of additional check to
ensure that the IC is properly using its procedures to target a
foreigner abroad and to minimize U.S. person information that may be
incidentally obtained. There is no mechanism included in the text that
would provide for a probable cause or similar type of review that the
FISC has done in the past with respect to traditional FISA
applications, but rather a method for the FISC to verify that the
Intelligence Community is following the law and its own procedures when
it targets foreigners abroad for surveillance under this law. The FISC
is also required to approve procedures developed and used by the
Intelligence Community. It is important for the FISC to adhere to the
limited role set forth in the text of this bill, and to recognize that
it is a different role from that which it has traditionally held with
regard to traditional, individual FISA applications. This should not be
construed as an opening to insert the courts further into foreign
intelligence matters that properly lie within the Executive's purview.
It is also important to note the flexibility that remains with the
Executive Branch to prevent gaps from forming in the future that are
similar to those we saw last August before the Protect America Act was
passed. This bill permits the Attorney General and Director of National
Intelligence to immediately authorize intelligence collection, as
provided for under the law, upon a determination that ``exigent
circumstances'' exist. While the text of the bill uses the term
``exigent circumstances,'' the use of this term is not intended to
implicate in any way the use of that term in criminal procedure
jurisprudence as an exception to the Fourth Amendment warrant
requirement. See, e.g., U.S. v. Karo, 468 U.S. 705 (1984); Warden v.
Hayden, 387 U.S. 294 (1967); McDonald v. U.S., 335 U.S. 451 (1948).
Rather, section 702 specifically defines its use of the term ``exigent
circumstances'' for purposes of targeting a foreign person reasonably
believed to be located outside the United States as those circumstances
that will result in the loss or failure to timely acquire intelligence
important to the national security of the United States. The compromise
text was delicately drafted and reaching compromise on the bill was
premised, in part, on maintaining flexibility for the Intelligence
Community to immediately initiate surveillance in situations where
intelligence may be lost, or not gathered in time to act on in a way
that best protects the United States. This section is designed to
prevent the type of intelligence gaps that put us in a critical
situation during the summer of 2007.
exclusive means
Section 102 of the bill provides that the procedures in FISA and in
the relevant provisions of the federal criminal code are the exclusive
means for electronic surveillance. It is important to note that section
102 of H.R. 6304 denotes the statutory exclusive means for acquiring
foreign surveillance. In enacting this section, Congress did not intend
legislatively abrogate any inherent Article II powers of the Executive
Branch. See In re Sealed Case No. 02-001 (FISCR 2002) (citing the
holding in U.S. v. Truong Dinh Hung, 629 F.2d 908 (4th Cir. 1980) that
the President has inherent authority to conduct warrantless searches to
obtain foreign intelligence information).
protections for electronic communications service providers
The provisions in Title II set forth a process under which the
Federal district courts would have jurisdiction to review both
prospective and retroactive claims relating to alleged assistance to
the intelligence community. The standard and type of review by the
courts with respect to the retroactive liability protections were
issues of great and delicate debate while this bill was being drafted.
Careful and lengthy discussions took place about which court would
review the Attorney General certifications, what the certifications
would contain, and what the standard of review would be, and all of
these considerations culminated in the text of H.R. 6304 as it passed
the House on June 20, 2008.
With respect to retroactive liability protection, the Attorney
General must certify to the district court that one of two situations
is present. Either the assistance alleged to have been provided by the
carrier was authorized by the President, designed to detect or prevent
a terrorist attack against the U.S. after the September 11th attacks,
and was the subject of a written request or series of requests to the
carrier, or the carrier did not provide the alleged assistance. The
aforementioned written request or series of requests must have informed
the communications provider that the activity requested was authorized
by the President, and was determined to be lawful.
The statute expressly requires the Attorney General's certification
to be given effect unless the court finds that the Attorney General's
certification is not supported by substantial evidence that the
statutorily required elements of the certification have been fulfilled.
The provision also allows the court to review only certain specified
supplemental materials (any relevant court order, certification,
written request or directive) when considering the certification, and
permits plaintiffs or defendants in civil actions to participate in
briefing or argument of legal issues to the extent that such
participation does not require the disclosure of classified information
to such parties. Careful consideration went into the drafting of this
provision, and the final text is very clear about what the federal
district court may consider in its review under this section. The bill
is intended to require and authorize the district courts to review
exactly what the text of H.R. 6304 specifies, which does not include a
review of the underlying legal basis for any representations that may
have been made in a written request or series of requests for
assistance to a company during the life of the Terrorist Surveillance
Program. Rather, these provisions were intended to ensure that any
companies that may have provided assistance to the government did so
based on their good faith reliance on specified representations made to
it by the Government.
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