[Congressional Record: March 7, 2008 (Senate)]
[Page S1725-S1728]
FOREIGN INTELLIGENCE SURVEILLANCE
Mr. KYL. Mr. President, it has now been 20 days since the law that
allows us to collect foreign intelligence abroad has lapsed. We are
without the authority we need to collect intelligence against our
terrorist enemy. The law expired February 16. The Senate passed a bill,
a bipartisan bill, with 68 Senators voting yes, Democrats and
Republicans. It was fashioned by the Intelligence Committee which
passed it 13 to 2, a wide bipartisan margin, clearly a consensus that
the United States must have authority for intelligence collection
against our terrorist enemies. We passed that bill, sent it to the
House of Representatives hoping that the House would act quickly, send
it to the President for signature so we could get on with this
important aspect of the war against terror. So far the House of
Representatives leadership has not brought the bill to the floor of the
House; this notwithstanding the fact that it clearly would pass. We
know, because of letters Members of the House of Representatives have
written to their leadership, that Democrats and Republicans together
have more than enough votes to pass this legislation we in the Senate
passed. Yet the House leadership sits on its hands.
Three weeks ago the House leadership said it needed 3 weeks to get
the job done. That 3 weeks expires Sunday. But the House is not even in
session now. So today I rise to urge our House colleagues and
especially the House leadership to step to the plate and pass this
foreign intelligence surveillance act reauthorization to enable us to
collect intelligence.
I am going to, at the conclusion of my remarks, ask unanimous consent
to put a variety of things in the Record. But I am going to refer to
them now and talk a little bit about why this is so important.
Let's start by stating the premise on which I think we all agree.
This is something that does not divide Democrats and Republicans. We
have some divisions about the war against terror. We have some
divisions about the war in Iraq. But all of us understand, first and
foremost, you defeat terrorists with good intelligence. You find out
what they are up to, and you are, therefore, better able to stop their
plans before they are able to execute them.
Without this intelligence, bad things happen. We did not have the
intelligence we needed before 9/11, and we all know what happened.
Since then, a lot of changes have been made. Among other things, we
have made changes to the law that enables us to collect intelligence
abroad. As a result of all of those changes, we have not had an attack
on the homeland.
God forbid we should have such an attack, but if we did, the new 9/11
Commission--whatever that would be called--would point the finger
directly at the leadership of the House of Representatives for not
reauthorizing this intelligence collection because every day that goes
by we are losing important intelligence.
As we found out through the 9/11 Commission after that fateful day,
we failed to see things we could have known about that might have
prevented us from suffering that attack on 9/11. But because of the law
that existed at the time, because of the wall that existed between the
CIA and the FBI, for example, they were not able to share this
information. As a result, we were not able to intercept two of the
hijackers.
Well, now, today we have a situation where the law that enables us to
collect this foreign intelligence has expired. There are two problems
with that expiration. The first is that every day that goes by new
intelligence is not being collected. You could have a terrorist in
Afghanistan calling a terrorist in Germany, plotting some action
against the United States, and because the call happened to be routed
through a U.S. connection of some kind the law would not enable us to
collect that intelligence. So every day we are losing intelligence.
Secondly, because the telecommunications companies that help us in
this effort have been sued by trial lawyers, we need to provide
protection against these lawsuits. If we do not, there will come a
time, in my opinion, that it will be very difficult for these
telecommunications companies to continue to cooperate with the U.S.
Government. Then, no matter what kind of law we passed, we would not
have the support of the only folks who can help us collect this
intelligence. So we need this legislation, and the House of
Representatives needs to act soon.
There was recently an op-ed that was written by Senator Kit Bond and
Representatives Pete Hoekstra and Lamar Smith. It occurred in the Wall
Street Journal on February 26. They point out, in this op-ed, that the
intercept of these terrorist communications ``requires the cooperation
of our telecommunications companies. They're already being sued for
having cooperated with the government after 9/11.'' They go on to say:
So without explicit protection for future actions (and
civil liability protection for the help they provided in the
past), those companies critical to collecting actionable
intelligence could be sidelined in the fight.
They go on to say:
It has already happened, briefly.
They quote Director of Intelligence Mike McConnell and Attorney
General Michael Mukasey saying:
[W]e have lost intelligence information . . . as a direct
result of [this] uncertainty.
So, Mr. President, I ask unanimous consent this article, dated
February 26, 2008, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the Wall Street Journal, Feb. 26, 2008]
In Case You Missed It: Hard of Hearing
(By Reps. Kit Bond, Pete Hoekstra and Lamar Smith)
Are Americans as safe today as they were before Congress
allowed the Protect America Act to expire on Feb. 16?
House Speaker Nancy Pelosi and other Democrats say we are.
They go so far as to say that the Protect America Act--put in
place last year to overcome obstacles in the Foreign
Intelligence Surveillance Act (FISA) that make it harder to
intercept terrorist communications--was not even necessary.
In the Washington Post yesterday, Sens. Jay Rockefeller and
Patrick Leahy, and Reps. Silvestre Reyes and John Conyers,
wrote that our intelligence agencies can collect all the
intelligence they need under FISA.
That is simply false. We are less safe today and will
remain so until Congress clears up the legal uncertainty for
companies that assist in collecting intelligence for the
government--and until it gives explicit permission to our
intelligence agencies to intercept, without a warrant,
foreign communications that pass through the U.S. Here's why:
Intercepting terrorist communications requires the
cooperation of our telecommunications companies. They're
already being sued for having cooperated with the government
after 9/11. So without explicit protection for future actions
(and civil liability protection for the help they provided in
the past), those companies critical to collecting actionable
intelligence could be sidelined in the fight.
It has already happened, briefly. ``[W]e have lost
intelligence information this past week as a direct result of
the uncertainty created by Congress' failure to act,''
Director of National Intelligence Mike McConnell and Attorney
General Michael Mukasey wrote in a letter dated Feb. 22 to
Mr. Reyes, the chairman of the House Intelligence Committee.
The old FISA law does not adequately protect the U.S.,
which is why it was revised by the Protect America Act last
summer. The problem is that, although it has a few work-
around-provisions, such as allowing intelligence agencies to
conduct surveillance for up to 72 hours without a warrant,
FISA ultimately requires those agencies to jump through too
many legal hurdles. Those include the Fourth Amendment's
``probable
[[Page S1726]]
cause'' requirements, protections never intended for
suspected terrorists' communications that are routed through
the U.S.
It is true that the FISA Court approves the vast majority
of warrants sought by intelligence agencies. This
demonstrates that our intelligence agencies are professional
and painstakingly provide all of the necessary evidence to
establish probable cause to the Court. But in the fast-paced
intelligence world, and when dealing with foreign
communications, we need our agencies to be able to intercept
a far greater number of comunications--notably those of
foreign terrorists--than can be justified under the Fourth
Amendment.
Telecommunications companies are for now, after intense
negotiations, cooperating with the government under the
assumption that protections granted to them under the Protect
America Act will be upheld in court, even though the law is
now defunct. But there is no guarantee that the courts will
do any such thing. There is also no guarantee that corporate
executives, under pressure from their legal counsels and
shareholders to limit liabilities, will continue to
cooperate.
The cooperation of the telecommunications companies is
limited to intercepting communications of terrorists
identified before the Protect America Act lapsed. Until
intelligence agencies can chase leads involving foreign
communications, the U.S. will not be as safe as it was just a
few weeks ago.
Further extending the Protect America Act is no way to
fight a war against a determined enemy that uses our
infrastructure against us. We need a long-term fix for FISA;
and that is what a bipartisan majority in the Senate tried to
accomplish earlier this month when it passed its FISA
modernization bill by a 68-29 margin.
The problem is in the House, where Democratic leaders
prefer to play an obstructionist role instead of constructing
the architecture we need to fight an intelligence-driven war.
Instead of voting on the Senate bill, even though a majority
of House members stand ready to pass it, Mrs. Pelosi is still
sitting on it. She is now pushing for a ``compromise'' that
would gut many of the provisions that secure the cooperation
of telecommunications companies.
Our troops collect intelligence in Iraq and Afghanistan on
a daily basis. We must exploit quickly the leads they turn
up. Court orders should not be necessary to engage foreign
targets in foreign countries. The Senate bill must be allowed
to come to a vote in the House of Representatives without
further delay.
Mr. KYL. Secondly, a letter was written to Congressman Hoekstra, the
ranking member of the House Intelligence Committee, and Lamar Smith,
ranking member of the House Committee on the Judiciary, dated March 6
of this year, signed by Attorney General Mukasey and Admiral McConnell,
Director of National Intelligence. I am going to quote a couple of
lines from it:
We write in response to your letter of March 5 concerning
the core surveillance authorities needed in any modernization
of the Foreign Intelligence Surveillance Act of 1978.
. . . As we have explained in prior correspondence, the
RESTORE Act--
Which is the bill that had been passed by the House of
Representatives earlier--
. . . would seriously undermine these authorities and may
well reopen the gaps temporarily closed by the Protect
America Act. The RESTORE Act, or legislation similar to it,
is, in short, no substitute for the bipartisan Senate bill.
Mr. President, I ask unanimous consent that this letter of March 6,
to which I just referred, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
March 6, 2008.
Hon. Pete Hoekstra,
Ranking Member, House Permanent Select Committee on
Intelligence, House of Representatives, Washington, DC.
Hon. Lamar Smith,
Ranking Member, House Committee on the Judiciary, U.S. House
of Representatives, Washington, DC.
Dear Congressman Hoekstra and Congressman Smith: We write
in response to your letter of March 5 concerning the core
surveillance authorities needed in any modernization of the
Foreign Intelligence Surveillance Act of 1978 (FISA). We
appreciate the seriousness of Congress's engagement in this
critical issue. As you note, much of the recent discussion
concerning FISA reform has centered on liability protection
for electronic communication service providers who assisted
the Government in preventing another terrorist attack after
September 11, 2001. The liability protection provisions of
the Rockefeller-Bond FISA modernization bill, passed by a
strong bipartisan majority in the Senate and now pending in
the House of Representatives, provide precisely the
protection from civil suits that our national security
requires. Although liability protection is critical to any
FISA modernization proposal, equally if not more important to
our efforts to protect our nation from terrorist attack and
other foreign intelligence threats are the carefully drafted
authorities that modernize FISA for the technologies of the
21st century. These authorities address the operational
aspects of conducting surveillance of foreign terrorists and
other threats overseas, and we urge that they not be altered.
Over the past year, the Intelligence Community and the
Department of Justice have worked closely with Congress,
first to pass the Protect America Act last summer by a
bipartisan majority in both the House and Senate as a short-
term measure to enable us to close dangerous intelligence
gaps and then to create a long-term framework for foreign
intelligence surveillance of individuals outside the United
States. Those months of bipartisan effort and of careful
compromise are reflected in the bill passed by the Senate, a
bill that we believe would also enjoy the support of a
majority of the members of the House of Representatives.
Title I of the Senate bill would preserve the core
authorities of the Protect America Act--authorities that have
helped us to obtain exactly the type of information we need
to keep America safe. For example, the Senate bill would
allow the Government to continue collecting foreign
intelligence information against foreign terrorists and other
foreign intelligence targets located outside the United
States without obtaining prior court approval. Initiating
surveillance of individuals abroad without awaiting a court
order will ensure that we will keep closed the intelligence
gaps that existed before the passage of the Protect America
Act.
It is essential to our national security that any
legislation passed by the House of Representatives not weaken
the intelligence collection authorities provided in the
Protect America Act, which are preserved in Title I of the
Senate bill. As we have explained in prior correspondence,
the RESTORE Act, passed by the House last November, would
seriously undermine these authorities and may well reopen the
gaps temporarily closed by the Protect America Act. The
RESTORE Act, or legislation similar to it, is, in short, no
substitute for the bipartisan Senate bill. Even seemingly
small changes to the Senate bill may have serious operational
consequences. It is our firm belief that the Senate bill
provides our intelligence professionals the tools they need
to protect the country.
Title I of the Senate bill also protects the civil
liberties of Americans. In fact, the privacy protections for
Americans in the Senate bill exceed the protections contained
in both the Protect America Act and the RESTORE Act. For
example, the bill would require for the first time that a
court order be obtained to conduct foreign intelligence
surveillance of an American abroad. Historically, such
surveillance has been conducted pursuant to Executive Branch
procedures when, for example, a U.S. person was acting as an
agent of a foreign power, e.g., spying on behalf of a foreign
government. This change contained in the Senate bill is a
significant increase in the involvement of the FISA Court in
these surveillance activities. Other provisions of the bill
address concerns that some have voiced about the Protect
America Act, such as clarifying that the Government cannot
``reverse target'' without a court order.
The bill substantially increases the role of the FISA Court
and of Congress in overseeing acquisitions of foreign
intelligence information from foreign terrorists and other
national security threats located outside the United States.
Under the Senate bill, the Court would review certifications
by the Attorney General and the Director of National
Intelligence relating to such acquisitions, the targeting
procedures used by the Government to conduct acquisitions
under the Act, and the minimization procedures used by the
Government to ensure that such acquisitions do not invade the
privacy of Americans. 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 FISA Court and to Congress. The FISA Court
and Congress would also receive annual reviews relating to
those acquisitions prepared by the heads of agencies that use
the authorities of the bill. In addition, the bill requires
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.
We remain prepared to work with Congress towards the
passage of a long-term FISA modernization bill that would
strengthen the Nation's intelligence capabilities while
protecting the civil liberties of Americans, so that the
President can sign such a bill into law. Congress has such
legislation before it--the bipartisan Senate bill--and the
authorities provided in Title I of that bill strike a careful
balance and should not be altered.
Sincerely,
Michael B. Mukasey,
Attorney General.
J.M. McConnell,
Director of National Intelligence.
Mr. KYL. The point of this letter, of course, is to urge the House to
adopt the bill passed by the Senate.
The next item I would like to have printed in the Record is a note
from
[[Page S1727]]
the American Legion Commander, in which he urges, on February 25 of
this year, that Congress pass the bill passed by the Senate. He pointed
out that ``the National Intelligence Estimate noted that the United
States will face a persistent and evolving threat over the next three
years, with the main threat coming from Islamic terrorist groups and
cells.'' And he says:
It defies all common sense to give lawsuits a higher
priority than national security. The American people expect
Congress to protect America, not the lawsuit lobby. This
surveillance is aimed at terrorists who want to kill innocent
Americans. The government is not interested in phone calls
that you make to Aunt Sally.
Mr. President, I ask unanimous consent that that item be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
American Legion Commander to Congress: Pass Surveillance Law Now
Indianapolis (February 25, 2008).--Congress should put
America's national security ahead of frivolous lawsuits,
American Legion National Commander Marty Conatser said today.
The head of the nation's largest veterans organization sent a
letter to members of the House of Representatives, urging
them to pass an important intelligence-gathering law
immediately.
``Since this war began, the Congress has done an exemplary
job of ensuring that the nation's fighting men and women are
the best-trained and best-equipped military ever in American
history,'' National Commander Marty Conatser wrote. ``Today,
The American Legion asks you to continue this precedent by
equipping the intelligence assets with the necessary tools
needed to provide these dedicated troops the very best
information available by timely enactment of S. 2248, The
Foreign Intelligence and Surveillance Act (FISA).''
The bill had bipartisan support in the Senate but is stuck
in the House because leaders there do not believe
telecommunications companies should be protected from
lawsuits that arise from cooperating with surveillance
requests.
Sen. Jay Rockefeller, D-West Va., the Chairman of the
Select Committee on Intelligence, also supports the bill.
``Unfortunately, much of the debate over this bill has
focused on liability protection for telecommunication
carriers, instead of the new civil liberties protections and
oversight mechanisms that have been included,'' Rockefeller
said in statement posted on his Senate web site. ``We should
not hold the carriers hostage to years of litigation for
stepping forward when the country asked for help and
providing assistance they believed to be legal and necessary.
The fact is, if we lose cooperation from these or other
private companies, our national security will suffer.''
Conatser pointed out to Representatives that the National
Intelligence Estimate noted that the United States will face
a persistent and evolving threat over the next three years,
with the main threat coming from Islamic terrorist groups and
cells.
``It defies all common sense to give lawsuits a higher
priority than national security,'' Conatser said. ``The
American people expect Congress to protect America, not the
lawsuit lobby. This surveillance is aimed at terrorists who
want to kill innocent Americans. The government is not
interested in phone calls that you make to Aunt Sally.''
With a current membership of 2.7-million wartime veterans,
The American Legion, www.legion.org, was founded in 1919 on
the four pillars of a strong national security, veterans
affairs, Americanism, and patriotic youth programs.
Legionnaires work for the betterment of their communities
through more than 14,000 posts across the nation.
Mr. KYL. Finally, a letter was written by a bipartisan group of 25
State attorneys general dated March 4, 2008. It is a letter directed to
the four leaders of the House of Representatives. Among other things,
these 25 Democratic and Republican attorneys general note the fact
that:
Passing [this legislation] S. 2248 would ensure our
intelligence experts are once again able to conduct real-time
surveillance. As you know, prompt access to intelligence data
is critical to the ongoing safety and security of our nation.
As Attorneys General, we are our states' chief law
enforcement officials and therefore responsible for taking
whatever action is necessary to keep our citizens safe. With
S. 2248 still pending in the House of Representatives, our
national security is in jeopardy.
They close by saying:
We therefore urge the House of Representatives to schedule
a vote and pass the FISA Amendments Act of 2007.
Mr. President, I ask unanimous consent that the letter be printed in
the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
March 4, 2008.
Re FISA Amendments Act of 2007 (S. 2248).
Hon. Nancy Pelosi1,
Speaker of the House,
Washington, DC.
Hon. Steny Hoyer,
Majority Leader,
Washington, DC.
Hon. John Boehner,
Minority Leader,
Washington, DC.
Hon. Roy Blunt,
Minority Whip,
Washington, DC.
Dear Madam Speaker Pelosi, Majority Leader Hoyer, Minority
Leader Boehner and Minority Whip Blunt: We urge the House of
Representatives to schedule a vote and pass S. 2248, the FISA
Amendments Act of 2007. This bipartisan legislation is
critical to the national security of the United States. Once
passed, S. 2248 will ensure intelligence officials have the
ability to collect vitally important information about
foreign terrorists operating overseas.
Senate Intelligence Committee Chairman John D. Rockefeller
(D-WV) authored S. 2248 to solve a critical problem that
arose when the Protect America Act was allowed to lapse on
February 16, 12008. The root of the problem stems from a
Foreign Intelligence Surveillance Act (``FISA'') Court order
that jeopardizes America's national security efforts. Under
that decision, U.S. intelligence agencies must obtain a FISA
warrant before initiating surveillance involving suspected
foreign terrorists located outside the United States.
The FISA Court's decision hinged on the fact that those
entirely foreign communications are frequently routed through
telecommunications facilities that happen to be located in
the United States. Because modem global communications
networks routinely route data through numerous facilities in
a myriad of countries, the nation in which the call
originates may be completely unrelated to the nation through
which that call is ultimately routed.
A bipartisan majority of the United States Senate recently
approved S. 2248. But until it is also passed by the House of
Representatives, intelligence officials must obtain FISA
warrants every time they attempt to monitor suspected
terrorists in overseas countries. Passing S. 2248 would
ensure our intelligence experts are once again able to
conduct real-time surveillance. As you know, prompt access to
intelligence data is critical to the ongoing safety and
security of our nation.
As Attorneys General, we are our states' chief law
enforcement officials and therefore responsible for taking
whatever action is necessary to keep our citizens safe. With
S. 2248 still pending in the House of Representatives, our
national security is in jeopardy. We therefore urge the House
of Representatives to schedule a vote and pass the FISA
Amendments Act of 2007.
Sincerely,
Hon. Greg Abbott, Attorney General of Texas; Hon. Roy
Cooper, Attorney General of North Carolina; Hon. W.A.
Drew Edmondson, Attorney General of Oklahoma; Hon. Bill
McCollum, Attorney General of Florida; Hon. Troy King,
Attorney General of Alabama; Hon. Talis Colberg,
Attorney General of Alaska; Hon. Dustin McDaniel,
Attorney General of Arkansas; Hon. John Suthers,
Attorney General of Colorado; Hon. Thurbert Baker,
Attorney General of Georgia; Hon. Lawrence Wasden,
Attorney General of Idaho; Hon. Steve Carter, Attorney
General of Indiana; Hon. Stephen Six, Attorney General
of Kansas; Hon. Doug Gansler, Attorney General of
Maryland.
Hon. Mike Cox, Attorney General of Michigan; Hon. Jon
Bruning, Attorney General of Nebraska; Hon. Kelly
Ayotte, Attorney General of New Hampshire; Hon. Wayne
Stenehjem, Attorney General of North Dakota; Hon. Tom
Corbett, Attorney General of Pennsylvania; Hon. Patrick
Lynch, Attorney General of Rhode Island; Hon. Henry
McMaster, Attorney General of South Carolina; Hon.
Larry Long, Attorney General of South Dakota; Hon. Mark
Shurtleff, Attorney General of Utah; Hon. Robert
McDonnell, Attorney General of Virginia; Hon. Rob
McKenna, Attorney General of Washington; Hon. Darrell
McGraw, Attorney General of West Virginia.
Mr. KYL. So in conclusion, the bottom line is, we have a bill passed
by the Senate Intelligence Committee 13 to 2, passed by the Senate with
68 affirmative votes. I believe it was 28 or 29 negative votes--
clearly, a bipartisan effort. The President has indicated he would sign
this legislation. It has now been 19 days since it has been sent to the
House of Representatives which said it needed 3 weeks to get the job
done.
During that period of time, we have lost intelligence--we do not know
how critical. We will never know because we will never gather it. The
phone call was made yesterday or the day before or the day before that.
It is gone now, and we cannot go back and get it. But what we can do is
ensure that from now on we are going to collect that critical
intelligence. Unless this legislation is
[[Page S1728]]
passed, the telecommunications companies that are critical to the
collection of this intelligence are less and less likely to support our
efforts. That is why it is critical this legislation, rather than some
other version of it, be passed.
Mr. President, I urge the House leadership to call up this
legislation. Next week is the last week it can be acted on before yet
another 2-week recess. The House recessed before without adopting it.
It would be absolutely a dereliction of responsibility, in my view, for
the Congress not to conclude its work on this matter and ensure that
the President can sign this important legislation into law before the
Easter recess; that is to say, by the end of next week, 1 week from
right now.
I urge our House colleagues to please--in fact, I implore them to
understand the danger in which they have placed the American people by
not acting on this legislation--the fact that we are not collecting
intelligence today because the authority has lapsed--and that according
to the people who know best, the Attorney General and the Director of
National Intelligence, it is no answer to say that warrants that have
previously been issued will continue in force. All that means is the
actions that have been taken in the past can continue. It does not do
anything about intelligence gathering today and tomorrow and the next
day. And it does not do anything to assuage the concerns of the very
companies that are critical to the operation of this program.
So I urge our House colleagues to act on this legislation as soon as
possible for the safety and security of the American people.
The PRESIDING OFFICER (Mr. Casey). The Senator from Ohio.
____________________
