Calendar No. 512
110th Congress Report
SENATE
2d Session 110-258
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FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AMENDMENTS ACT OF 2007
_______
January 22 (legislative day, January 3), 2008.--Ordered to be printed
_______
Mr. Leahy, from the Committee on Judiciary, submitted the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 2248]
[Including cost estimate of the Congressional Budget Office]
The Senate Committee on the Judiciary, to which was
referred the bill (S. 2248), to modernize and streamline the
provisions of the Foreign Intelligence Surveillance Act of 1978
and for other purposes, having considered the same, reports
favorably thereon with a substitute amendment, and recommends
the bill, as amended, do pass.
CONTENTS
Page
I. Purpose of the Legislation.......................................2
II. Background and Need for the Legislation..........................2
III. Scope of Committee Review........................................4
IV. Recommended Changes to Title I of S. 2248........................5
V. Committee Action................................................12
VI. Congressional Budget Office Cost Estimate.......................14
VII. Regulatory Impact Evaluation....................................17
VIII.Conclusion......................................................18
IX. Additional and Minority Views...................................19
X. Changes to Existing Law Made by the Bill, as Reported...........43
I. Purpose of the Legislation
The Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2007, S. 2248, would create additional
procedures for targeting communications of persons outside the
United States that would significantly enhance the Government's
surveillance authority. It moderates the new authorities that
Congress granted on a short-term basis in the Protect America
Act (PAA), but the bill as reported by the Senate Select
Committee on Intelligence would go further than the PAA by
providing retroactive immunity for civil lawsuits against
electronic communication service providers that were alleged to
have cooperated with the Government in surveilling Americans'
communications between 2001 and 2007, contrary to law.
The Senate Intelligence Committee reported S. 2248 on
October 26, 2007, and the bill was referred sequentially to the
Senate Committee on the Judiciary on November 1, 2007, in
accordance with section 3(b) of Senate Resolution 400, 94th
Congress, as amended by S. Res. 445, 108th Congress, for a
period not to exceed 10 days of session.
II. Background and Need for the Legislation
Congress enacted the Foreign Intelligence Surveillance Act
of 1978 as a direct consequence of extensive investigations by
Senate Committees into the legality of secret domestic
surveillance activities, including Project Minaret, Project
Shamrock and the Watergate scandal.\1\ These episodes, which
involved the United States Government spying on its own
citizens, shook the faith of the American people in their
Government.
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\1\ 1 Project Shamrock was a clandestine Government-run initiative
lasting into the 1960s that involved the accumulation by the National
Security Agency (NSA) of all telegraphic data entering into or
originating from the United States. Project Minaret was a sister
program that operated in the 1960s and 1970s that involving the use of
``watch lists'' to oversee ``subversive'' domestic activities. Both
programs were terminated once congressional investigations exposed
their full scope.
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Congress passed FISA to protect the rights of Americans
against abusive Government conduct. It mandated that a newly-
created independent court must decide whether the Government
may conduct electronic surveillance of Americans'
communications for foreign intelligence purposes. The FISA
court was designed to ensure that a second branch of Government
approve or reject the Executive's request to surveil Americans,
and the statute erected a legal framework within which the
Government, and those private companies the Government relies
upon to effectuate electronic surveillance, must operate.
In the years since its passage, FISA has been amended
numerous times to accommodate assertions by the Executive that
the legislation must keep pace with national security needs as
well as technological advancements. For example, in the wake of
the 9/11 terrorist attacks, Congress amended FISA to improve
communication and coordination between law enforcement and the
intelligence community, among other reforms.
In December 2005, the American public learned for the first
time that shortly after 9/11 the President had authorized the
NSA to conduct secret surveillance activities inside the United
States completely outside of FISA, and without congressional
consent. Shortly after the press exposed the existence of this
extra-statutory program, the Administration attempted to
justify its operation on the basis of congressional passage of
the Authorization for Use of Military Force (AUMF), Pub. L. No.
107-40, section 2(a), 115 Stat. 224 (2001) following the 9/11
attacks. The AUMF, however, made no reference to electronic
surveillance, and no legislative history associated with that
authorization indicates that it was intended to supersede FISA
in any way. Nevertheless, surveillance under this program,
commonly referred to as the Terrorist Surveillance Program, or
TSP, continued until January 2007, at which time the Attorney
General announced that the program would finally be placed
under the jurisdiction of the FISA court.
In April 2007, the Director of National Intelligence (DNI),
J.M. McConnell, submitted to Congress a proposal to amend FISA
in order to make it easier for the Government to target foreign
interests overseas. In August 2007, Congress adopted the PAA,
which eased restrictions on surveillance of foreigners where
one party (or both parties) to the communication are located
overseas. Under the PAA, communications that begin or end in a
foreign country may be monitored by the Government without FISA
court supervision. The PAA was ultimately approved as only a
temporary measure with a six-month sunset. Although there was
broad support for providing the intelligence community greater
flexibility for overseas surveillance, the PAA raised
significant concerns because of its lack of any protection for
or oversight of communications involving United States persons.
In October 2007, the Senate Intelligence Committee reported
a bill, S. 2248, to constitute more permanent legislation
supplanting the PAA. The Senate Intelligence bill preserved the
general framework of the PAA, but struck or modified some of
the PAA's provisions that would have given the Government
nearly unfettered authority to collect Americans'
communications so long as the Government sought information
``concerning'' persons outside the United States. The Senate
Intelligence bill also included new oversight provisions, but
left open several loopholes that could permit the same kinds of
extra-statutory surveillance that took place in the years
following 9/11. In addition, the Senate Intelligence bill added
provisions not formerly included in the PAA that would
retroactively immunize those private sector companies that may
have cooperated with the Government's surveillance activities
conducted outside of FISA in the years following 9/11.\2\
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\2\ For additional information on the specific provisions of S.
2248, see S. Rept. 110–209.
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The PAA is set to expire on February 1, 2008. In the
Committee's view, as more fully explained below, the Senate
Intelligence bill, like the PAA, does not contain adequate
protections to guard against the kind of Executive abuse that
occurred with the TSP and related programs. Congress is
prepared to grant the Administration the authority it needs to
surveil targets overseas. But the unilateral decision by the
Executive in the years following 9/11 to surveil Americans'
communications contrary to FISA illustrates the need for
Congress to provide clear statutory protections for
surveillance that impacts Americans' privacy rights. Both the
Intelligence Committee's bill and the Judiciary Committee's
proposed amendments would permit the Government, when targeting
overseas, to review more Americans' communications with less
court supervision than ever before. While the Senate
Intelligence bill's provisions governing the Government's
ability to conduct electronic surveillance improve upon the
PAA, they do not afford adequate protections for the rights of
Americans.
Additional protections are of critical importance. The
rules governing electronic surveillance affect every American
and remain the only buffer between the freedom of Americans to
make private communications and the ability of the Government
to listen in on those communications. In our ``Information
Age,'' FISA provides Americans a fundamental bulwark against
Government abuse. In the Committee's view, the improvements
contained in the Senate Intelligence bill do not go far enough
in ensuring that Americans' privacy rights are safeguarded.
Additional protections can be added without interfering with
the flexibility the Government needs to conduct overseas
surveillance.
III. Scope of Committee Review
The Judiciary Committee has concurrent jurisdiction over
the Foreign Intelligence Surveillance Act and all amendments to
that Act. The Committee reported S. 2248 favorably, as proposed
to be amended by a complete substitute, on November 16, 2007.
The complete substitute makes significant improvements to the
Senate Intelligence bill by adding several key protections for
Americans to title I of the bill that do not compromise the
Government's ability to conduct foreign intelligence
surveillance. These improvements include: (1) increased
oversight by Congress and the FISA court where the Government
is conducting warrantless surveillance of targets overseas that
will invariably capture Americans' communications; (2)
unequivocal new language that FISA is the exclusive means for
conducting foreign intelligence wiretaps; (3) improved
protections to ensure that Americans who travel overseas do not
forfeit their constitutional rights; and (4) appropriate and
common sense restrictions against bulk collection and reverse-
targeting of Americans' communications to prevent the abuse of
the significant new Government powers by this administration or
any future administration.
On the key question of immunity, the proposed amendments to
the bill preserve prospective immunity for those electronic
communications service providers who comply with the law
pursuant to title 18, United States Code, section 2511.\3\ But
the bill as reported does not include the blanket retroactive
immunity contained in title II of S. 2248, and legislative
termination of litigation efforts by those whose privacy rights
may have been violated where private companies, acting together
with the Government, arguably ignored the clear statutory
guidelines spelled out in FISA and the United States Criminal
Code.
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\3\ Title 18, United States Code, section 2511(2)(a)(ii)(A) and (B)
provide, in pertinent part, that providers of wire or electronic
communication service are authorized to provide assistance to the
Government so long as those providers receive a court order or a
certification in writing by the Attorney General or other statutorily
designated official stating that no warrant or court order is required
by law, that all statutory requirements have been met, and that the
specified assistance is required.
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Certain of the Committee's proposed changes to S. 2248's
title I were initially approved pursuant to a substitute
amendment adopted at the beginning of the November 15th
executive session. Other proposed changes to title I were
adopted by the Committee as individual amendments later in the
session. All Committee changes were approved as part of the
complete substitute amendment to S. 2248 that the Committee
ultimately adopted on November 16, 2007. For clarity, this
report breaks out below each of the individual proposed changes
contained in the complete substitute, and describes each
individually.
IV. Recommended Changes to Title I of S. 2248
1. STRENGTHENED ASSERTION THAT THE PRESIDENT MUST COMPLY WITH STATUTES
The Committee proposes an amendment to strengthen the
exclusivity language contained in S. 2248 to make absolutely
clear that FISA is the sole means by which the Government may
intercept Americans' communications for foreign intelligence
purposes. The actions and public arguments of the Executive in
conducting and later defending the TSP have underscored the
importance of inserting an exclusivity provision directly into
FISA. The proposed amendment would make clear that the
Government cannot claim authority to operate outside of FISA by
alluding to legislative measures that were never intended to
provide such authority.
The bill as reported by the Senate Intelligence Committee
adds a new section to FISA, section 112, which restates the
original 1978 language that FISA is the exclusive means by
which electronic surveillance will be conducted for foreign
intelligence purposes. See FISA Amendments Act of 2007, S.
2248, 110th Cong. (2007) [hereinafter ``S. 2248''] Sec. 112.
The Committee has revised S. 2248's section 112(a) to address
intelligence activities intended to collect the
``communications or communications information'' of United
States persons inside or outside the United States. S. Comm. on
the Judiciary, complete substitute to S. 2248 (2007)
[hereinafter ``Judiciary complete substitute''] Sec. 112(a).
This language is not restricted to ``electronic surveillance''
because that collection is addressed by subsection (b). The
term ``communications information'' in this section is intended
to apply to non-content information relevant to a communication
that may be acquired through surveillance. The intent of this
subsection is to prevent the targeting of the communications of
U.S. persons by means other than those defined to be
``electronic surveillance'' in section 101 of FISA.\4\ However,
it is not intended to bring into FISA acquisition procedures or
techniques that are lawfully used outside of FISA, including
those specifically permitted by other statutes.
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\4\ The exclusivity language contained S. 2248 has also been
modified in subsection (b) of the complete substitute to take into
account the striking of the redefinition of ``electronic surveillance''
in section 701.
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The Committee's bill also proposes a new subsection (c) to
section 112 that makes clear that no future law should be
interpreted as having authorized electronic surveillance or
overriding FISA unless it does so explicitly. This provision is
intended to foreclose any argument, as was made by the
Department of Justice in its January 2006 White Paper, that the
AUMF constituted a separate authority for surveillance outside
of FISA.
In its conforming amendments, the Committee's bill proposes
the addition of clarifying language to title 18, United States
Code, section 2511, which is the provision allowing the
Executive Branch to use a certification to request assistance
from electronic communication service providers to conduct
surveillance. The current certification language only calls for
a declaration that no warrant or order is required, that all
statutory requirements have been met, and that the assistance
is required. The proposed amendment would mandate that each
certification be specific as to why a court order is not
required by referencing the applicable statutory provision on
which the authority is premised. See Judiciary complete
substitute Sec. 102(b). This could include, for example, the
provisions in FISA waiving the warrant requirement following a
declaration of war.
Ed Black, the President and CEO of the Computer and
Communications Industry Association, emphasized the providers'
need for clarity in testimony before this Committee. He noted
that the providers ``must be free to insist on constitutionally
solid procedures that are clear and transparent, so that they
are not reduced to guesswork about the applicability of
immunity under the FISA statute.'' ``Strengthening FISA: Does
the Protect America Act Protect Americans' Civil Liberties and
Enhance Security?'', Hearing before the S. Comm. on the
Judiciary, 110th Cong. (2007). If the Government is requesting
that an electronic services communications provider assist it
in conducting electronic surveillance of Americans, it is
entirely reasonable that the Government cite the specific basis
for its authority.
Finally, the Committee proposes an amendment that narrows
the current language of section 109(a) of FISA, which provides
for penalties against anyone who engages in electronic
surveillance, or uses or discloses information resulting from
electronic surveillance, except as authorized by law. To be
consistent with subsection (c), this bill replaces the text
``authorized by law'' with ``authorized by this title or
chapter 119, 121, or 206 of title 18, United States Code'' in
both places that such term appears in section 109(a). Judiciary
complete substitute Sec. 102(c).
The Committee believes the involvement of the FISA court is
an important protection for U.S. persons' privacy rights,
either through the issuance of an order under title I, or
through the provisions for the targeting of U.S. persons
overseas in section 702. The Committee's intent is to assert
the full authorities of Congress under Article I of the
Constitution to require that FISA's procedures be followed in
all cases where FISA applies.
2. INCREASED OVERSIGHT BY CONGRESS
a. Audit of the President's Warrantless Surveillance Program
The Committee proposes an audit of the TSP and any
previous, subsequent or related versions or elements of that
program, to be conducted jointly by the Department of Justice
Office of Inspector General and the Inspectors General of
relevant elements of the intelligence community. Following the
completion of the audit, a joint report would then be submitted
to the Intelligence and Judiciary Committees in the House and
Senate in unclassified form, but with a classified annex, if
necessary. See Judiciary complete substitute Sec. 110.
While certain members of Congress can provide a measure of
oversight by familiarizing themselves with classified documents
pertaining to the President's warrantless surveillance program,
it is important that the relevant Offices of Inspectors General
collectively conduct an inquiry to assimilate the key facts
and, among other inquiries, to investigate the procedures by
which the Department of Justice approved warrantless
surveillance of Americans outside of FISA. This is a critical
provision for ensuring a full understanding of the actions of
the Government in conducting electronic surveillance outside of
FISA for several years after 9/11.
The Committee used broad language to describe the scope of
the proposed audit for two reasons. First, the Committee was
careful not to describe the program beyond what has been
discussed publicly to ensure that classified information is not
disclosed. Second, the Committee wanted to ensure that the
audit covers the full scope of intelligence activities
authorized by the President. In a letter to Senator Specter
dated July 31, 2007, the DNI acknowledged that the President
authorized ``various intelligence activities'' shortly after 9/
11, and that ``[a] number of these intelligence activities were
authorized in one order.'' He stated that the ``Terrorist
Surveillance Program'' was ``[o]ne particular aspect of these
activities, and nothing more. * * *'' The letter went on to say
that the TSP was ``the only aspect of the NSA activities that
can be discussed publicly, because it is the only aspect of
those various activities whose existence has been officially
acknowledged.'' The broad language used by the Committee seeks
to make clear that all of these activities should be included
in the audit, and that it not be limited to the ``Terrorist
Surveillance Program'' that the President and others have
described previously, and can therefore be discussed.
b. Congressional access to FISA court orders
The bill as reported by the Senate Select Committee on
Intelligence, would require that Congress be provided with the
orders, decisions and opinions of the FISA court that include
significant interpretations of law within 45 days after they
are issued. This fills two existing loopholes. First, current
law excludes FISA court orders from congressional reporting
requirements even though many significant interpretations of
law are contained in those orders. Second, semi-annual
reporting requirements allow the Government to wait up to a
year before informing the Congress about important
interpretations of law made by the FISA court. Section 103
requires more timely notification. See S. 2248 Sec. 103(c)(1).
The Committee's proposed amendment would also require that
Congress be provided the relevant pleadings that may be
necessary to understanding the reasoning behind a particular
judicial interpretation of the law. See Judiciary complete
substitute Sec. 103(c)(1). And it would require that
significant interpretations of law by the FISA court that were
not provided to Congress over the past five years now be
provided. See Judiciary complete substitute Sec. 103(c)(2).
Access to past jurisprudence, as well as current decisions, is
critical to Congress's understanding of how FISA is being
interpreted and implemented.
3. IMPROVEMENTS TO WARRANT REQUIREMENT FOR AMERICANS OVERSEAS
The Committee proposes certain changes to the provisions
contained in S. 2248 relating to Government surveillance of
U.S. persons overseas.
The Committee believes that the core features of section
702(c), as passed by the Senate Intelligence Committee, provide
important protections for Americans overseas and should be
maintained in any final legislation. The Committee's proposed
amendment includes further revisions from the language
contained in S. 2248 to include an emergency provision that
enables the Government to respond to our national security
needs immediately, but requires the Government to seek FISA
court authorization no later than 72 hours after such
surveillance is authorized. See Judiciary complete substitute
Sec. 702(c)(2)(D). The Committee's proposed amendment also
revises the language contained in S. 2248 to provide for a
smooth transition from the existing surveillance authorizations
conducted under the President's Executive Order 12,333 to the
new framework.
Subsection 702(c)(3) requires that the Attorney General
submit to the FISA court procedures for determining whether a
person outside the United States is in fact a U.S. person. The
Court must review these procedures to determine whether they
are reasonably designed to determine whether a person outside
the United States is a U.S. person.
4. SUNSET
The Committee proposes an amendment to shorten the sunset
provision in S. 2248 from six years to four years. In view of
the broad new authorities Congress is prepared to approve, four
years is a sufficient length of time to revisit whether this
increased authority is being exercised appropriately and,
conversely, to ensure that the Government has the tools it
needs to effectively conduct foreign surveillance. See
Judiciary complete substitute Sec. 703(c). A four-year sunset
will also give the next Administration nearly three years of
experience under these new authorities before any
reauthorization process.
5. INCREASED OVERSIGHT AND DISCRETION BY THE FISA COURT
The Committee passed three proposed amendments to S. 2248
that would provide for increased judicial oversight over the
new authorities contained in S. 2248, and enhance FISA court
discretion.\5\
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\5\ In his minority views, Senator Hatch asserts that the
Judiciary complete substitute is ``deficient to accomplish the purpose
of protecting our nation for a myriad of reasons.'' But he never
explains what those ``reasons'' are. Instead, he questions only the
need for additional oversight by the FISA court, maintaining that there
are already sufficient oversight provisions in S. 2248. Senator Hatch
writes that the ``jurisdiction of the [FISA court] is to grant orders
for electronic surveillance,'' suggesting that he may view the FISA
court as nothing more than a rubber-stamp of the Executive will. The
Committee does not share this view of the court's role.
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a. Use restrictions
The bill as reported by the Senate Intelligence Committee
provides that the FISA court's review of the Government's
targeting procedures, minimization procedures, and
certifications is not required until after the Government has
already implemented those procedures and certifications. See S.
2248 Sec. 702(g).
The Committee's proposed amendment states that if the FISA
court determines that the Government has been using deficient
procedures or certifications to acquire information, its use of
the acquired information will be limited in the same way that
FISA traditionally limits the use of information acquired under
its title I emergency exception if the Government is later
turned down for a court order. See Judiciary complete
substitute Sec. 702(i)(5)(B)(ii)(I). In the Committee's view,
there should be at least the potential for consequences if the
Executive collects communications using deficient procedures.
To prevent the wholesale exclusion of such information in
appropriate circumstances, however, the new provision provides
increased flexibility by giving the FISA court the authority to
allow the continued use of the information under certain
circumstances. See Judiciary complete substitute
Sec. 702(i)(5)(b)(B)(II). In the Committee's view, the FISA
court should have the discretion to permit or to exclude the
use of communications obtained pursuant to deficient
procedures.
b. Continued oversight of Government procedures
Minimization procedures provide a measure of protection for
the privacy of U.S. persons. Judicial oversight of how these
safeguards are working is a critical element in protecting the
privacy of U.S. persons in the area of foreign intelligence
surveillance.
The Committee proposes that the FISA court be granted the
additional authority to review whether the Government is
complying with minimization rules, and be empowered to ask for
additional information that is necessary to make its
assessment. A new subsection 702(i)(7) would provide the FISA
court with explicit authority to review and assess the
Government's compliance with the minimization procedures, which
are submitted in semiannual reports by the Attorney General and
the DNI (and submitted to the FISA court pursuant to section
702(l)(1)). In conducting its review, the court may require the
Government to provide additional information regarding the
acquisition, retention or dissemination of information
concerning U.S. persons during the course of an acquisition.
The Committee also proposes granting the FISA court
explicit authority to take remedial action to enforce its
orders with regard to minimization compliance and targeting
procedures. See Judiciary complete substitute Sec. 702(i)(8).
Although the FISA court already has this general enforcement
authority, given the court's reduced role in up-front court
approval of minimization and targeting procedures, this
provision reinforces that enforcement authority with regard to
the new procedures in this new title.
c. FISA Court Discretion to Stay Decisions Pending Appeal
The bill as reported by the Senate Intelligence Committee,
mandates that if the FISA court finds that the Government has
relied on deficient procedures for conducting surveillance
under its new authorities, the Government is entitled, in every
case, to continue to use those deficient procedures while it is
appealing the FISA court's decision to the en banc FISA court
and to the FISA court of review. See S. 2248 Sec. 702(i)(6).
In the Committee's view, it is unnecessary and unwise to
cabin the FISA court's discretion by imposing a standard
mandating that all orders finding Government surveillance
procedures to be deficient must be stayed pending en banc and
appellate review. The Committee has, therefore, proposed an
amendment restoring discretion to the FISA court. Under this
provision the Government may move for a stay pending appeal of
a FISA court's order to the en banc FISA court or the FISA
court of review. See Judiciary complete substitute
Sec. 702(i)(6).
6. ELIMINATION OF RE-DEFINITION OF ``ELECTRONIC SURVEILLANCE''
The Committee proposes an amendment to eliminate the
redefinition of the critical term on which FISA is structured:
``electronic surveillance.'' The PAA and the Senate
Intelligence bill both redefine this key term, yet no logical
explanation has been offered for why this redefinition is
necessary.
This redefinition should be eliminated because it is
unnecessary to accomplish the goals of the bill, and it could
lead to a variety of unintended consequences. For example,
redefining electronic surveillance could potentially nullify
FISA's civil and criminal liability provisions for purposes of
the new authorities contained in the bill as those provisions
are triggered only by unauthorized interception of ``electronic
surveillance.'' See 50 U.S.C. Sec. Sec. 1809, 1810. Suzanne E.
Spaulding, a national security expert with 20 years of
experience at the CIA and in Congress, echoed this concern in
testimony before this Committee when she noted that ``[b]y
defining out of FISA the acquisition of any communication when
it is directed at someone reasonably believed to be outside the
United States, you remove any statutory protection that FISA
might otherwise provide for Americans whose communications
might fall into this category.'' ``Strengthening FISA: Does the
Protect America Act Protect Americans' Civil Liberties and
Enhance Security?'', Hearing before the S. Comm. on the
Judiciary, 110th Cong. (2007).
To avoid redefining this key term, the Committee's proposed
amendment would affirmatively grant the Government the
additional authority it needs to target persons outside the
United States in order to acquire foreign intelligence
information without an individualized warrant. Judiciary
complete substitute Sec. 702(a). This common-sense change
explicitly grants the Government the authority it says it needs
while avoiding the unintended consequences that may flow from
redefining a key term in FISA.
7. PROHIBITION ON BULK COLLECTION
The Director of National Intelligence acknowledged at a
Senate Judiciary Committee hearing on September 25, 2007 that
the Protect America Act would permit ``bulk collection'' of all
international communications into and out of the United States
if the Government had the technological capacity to acquire
those communications. See ``Does the Protect America Act
Protect Americans'' Civil Liberties and Enhance Security?'',
Hearing before the S. Comm. on the Judiciary, 110th Cong., at
82 (2007). Such broad authority goes far beyond what the
Government has said it needs and could mean that millions of
communications of innocent Americans end up in Government
databases.
The Committee proposes that S. 2248 be amended to
explicitly forbid bulk collection. Its proposed amendment would
require the Government to include in its certification to the
FISA court a statement that: ``The acquisition is limited to
communications to which at least 1 party is a specific
individual target who is reasonably believed to be located
outside of the United States, and a significant purpose of the
acquisition of the communications of any target is to obtain
foreign intelligence information.'' Judiciary complete
substitute Sec. 702(g)(2)(vii).
This provision does not require the Government to either
identify its individual targets or to explain its interest in
the targets to the FISA court. It merely has to make a general
certification that there is such an interest and that there are
individual targets. In addition, the target need not be named
individuals. The target could be, for instance, a phone number,
or, if the target is a person, the Government need not know the
identity of that person. The Committee also wants to make clear
that in an active or projected zone of military combat, the
acquisition of communications of any target, known or unknown,
would be deemed to have a foreign intelligence purpose by
virtue of geographic location if such acquisition is tailored
to support such military operations.
The Administration has said that it will use the new
authorization granted by FISA for targeted surveillance, not
bulk collection. Indeed, warrantless bulk collection of
millions of Americans' communications where the Government has
no specific interest in the individuals communicating may be
unreasonable under the Fourth Amendment. Consistent with the
way the Administration has said it plans to use this new
authority, this amendment would dispel any concern that this
authorization would permit such mass collection and would
preserve the Government's ability to target persons overseas.
8. STRENGTHENED PROHIBITION ON REVERSE TARGETING
Reverse-targeting is the prohibited practice of bypassing
the FISA court-order requirement by targeting someone overseas
in order to mask the Government's actual interest in the U.S.
person with whom that foreign target is communicating.
The bill as reported by the Senate Intelligence Committee
contains reverse-targeting language requiring a court order
when ``the purpose'' of the surveillance is targeting a person
inside the U.S. This language, however, would allow the
Government to conduct ongoing, long-term surveillance of an
American's communications, without an individualized court
order, simply by relying on the fact that the Government is
really ``targeting'' the person overseas with whom the American
is communicating.
To ensure that the broad new authorities contained in S.
2248 may not be used to engage in reverse-targeting of
Americans, the proposed amendment would require an
individualized FISA court order when ``a significant purpose of
such acquisition is to acquire the communications of a specific
person reasonably believed to be located in the United
States.'' Judiciary complete substitute Sec. 702(b)(2)
(emphasis added). This prohibition affirms the fundamental and
long-standing proposition underpinning title I of FISA that
when the Government's interest is in the communications of a
person in the U.S., the Government must conduct this
surveillance with a court order based on probable cause.
9. FBI DEPUTY DIRECTOR AS CERTIFYING OFFICIAL
The bill as reported by the Senate Select Committee on
Intelligence, would have permitted, without restriction, the
Deputy Director of the FBI to be the certifying official on
FISA warrants. See S. 2248 Sec. Sec. 104(1)(D)(ii),
107(a)(1)(E)(ii). The Committee has proposed an amendment that
this additional delegated authority be used only when the FBI
Director is unavailable. See Judiciary complete substitute
Sec. Sec. 104(1)(D)(ii), 107(a)(1)(E)(ii).
This proposed amendment is not meant to unduly burden the
delegation of this function to the Deputy Director of the FBI.
It is simply meant to clarify that the certifying official for
FISA applications should be, whenever feasible, a politically
accountable official who has been appointed by the President
and confirmed by the Senate.
V. Committee Action
On November 15, 2007, by vote of 10 ayes and 9 noes, the
Committee agreed to adopt a substitute amendment offered by
Chairman Leahy and Senators Feinstein, Durbin, Schumer and
Whitehouse, which contained several recommended changes to
Title I of S. 2248. The votes in person or by proxy were as
follows: Chairman Leahy--aye, Senator Kennedy--aye; Senator
Biden--aye; Senator Kohl--aye; Senator Feinstein--aye; Senator
Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; Senator
Whitehouse--aye; Senator Specter--no; Senator Hatch--no;
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no;
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no;
Senator Coburn--no.
Later that morning, by vote of 9 ayes and 10 noes, the
Committee rejected an amendment by Senator Specter that would
have automatically stayed a FISA judge's order that the
Government was using deficient procedures in acquiring
communications. The votes in person or by proxy were as
follows: Chairman Leahy--no, Senator Kennedy--no; Senator
Biden--no; Senator Kohl--no; Senator Feinstein--no; Senator
Feingold--no; Senator Schumer--no; Senator Durbin--no; Senator
Cardin--no; Senator Whitehouse--no; Senator Specter--aye;
Senator Hatch--aye; Senator Grassley--aye; Senator Kyl--aye;
Senator Sessions--aye; Senator Graham--aye; Senator Cornyn--
aye; Senator Brownback--aye; Senator Coburn--aye.
Later that morning, by vote of 10 ayes and 9 noes, the
Committee agreed to an amendment by Senator Cardin that would
reduce the sunset for S. 2248 from 6 years to 4 years. The
votes in person or by proxy were as follows: Chairman Leahy--
aye, Senator Kennedy--aye; Senator Biden--aye; Senator Kohl--
aye; Senator Feinstein--aye; Senator Feingold--aye; Senator
Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; Senator
Whitehouse--aye; Senator Specter--no; Senator Hatch--no;
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no;
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no;
Senator Coburn--no.
Later that morning, by vote of 9 ayes and 10 noes, the
Committee rejected an amendment by Senator Specter that would
have modified his earlier amendment concerning stays of FISA
court orders. The vote in person or by proxy were as follows:
Chairman Leahy--no, Senator Kennedy--no; Senator Biden--no;
Senator Kohl--no; Senator Feinstein--no; Senator Feingold--no;
Senator Schumer--no; Senator Durbin--no; Senator Cardin--no;
Senator Whitehouse--no; Senator Specter--aye; Senator Hatch--
aye; Senator Grassley--aye; Senator Kyl--aye; Senator
Sessions--aye; Senator Graham--aye; Senator Cornyn--aye;
Senator Brownback--aye; Senator Coburn--aye.
Later that morning, by vote of 10 ayes and 9 noes, the
Committee accepted an amendment by Senator Feingold to clarify
that bulk collection of data is not permissible. The votes in
person or by proxy were as follows: Chairman Leahy--aye,
Senator Kennedy--aye; Senator Biden--aye; Senator Kohl--aye;
Senator Feinstein--aye; Senator Feingold--aye; Senator
Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; Senator
Whitehouse--aye; Senator Specter--no; Senator Hatch--no;
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no;
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no;
Senator Coburn--no.
Later that morning, by vote of 8 ayes and 11 noes, the
Committee rejected an amendment by Senator Kyl that would have
created a carve-out for overseas warrants where no warrant
would have been required in a criminal investigation. The votes
in person or by proxy were as follows: Chairman Leahy--no,
Senator Kennedy--no; Senator Biden--no; Senator Kohl--no;
Senator Feinstein--no; Senator Feingold--no; Senator Schumer--
no; Senator Durbin--no; Senator Cardin--no; Senator
Whitehouse--no; Senator Specter--no; Senator Hatch--aye;
Senator Grassley--aye; Senator Kyl--aye; Senator Sessions--aye;
Senator Graham--aye; Senator Cornyn--aye; Senator Brownback--
aye; Senator Coburn--aye.
That afternoon, by vote of 10 ayes and 9 noes, the
Committee accepted an amendment by Senator Feingold that would
require a FISA court order when a significant purpose of
targeting someone abroad is to acquire the communications of
someone reasonably believed to be in the U.S. The votes in
person or by proxy were as follows: Chairman Leahy--aye,
Senator Kennedy--aye; Senator Biden--aye; Senator Kohl--aye;
Senator Feinstein--aye; Senator Feingold--aye; Senator
Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; Senator
Whitehouse--aye; Senator Specter--no; Senator Hatch--no;
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no;
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no;
Senator Coburn--no.
That afternoon, by vote of 8 ayes, 10 noes and 1 pass, the
Committee rejected an amendment by Senator Kyl that would have
created a carve-out for overseas warrants where no warrant
would have been required in the U.S. The votes in person or by
proxy were as follows: Chairman Leahy--no, Senator Kennedy--no;
Senator Biden--no; Senator Kohl--no; Senator Feinstein--no;
Senator Feingold--no; Senator Schumer--no; Senator Durbin--no;
Senator Cardin--no; Senator Whitehouse--no; Senator Specter--
pass; Senator Hatch--aye; Senator Grassley--aye; Senator Kyl--
aye; Senator Sessions--aye; Senator Graham--aye; Senator
Cornyn--aye; Senator Brownback--aye; Senator Coburn--aye.
That afternoon, by vote of 7 ayes and 12 noes, the
Committee rejected an amendment by Senator Feingold that would
strike the retroactivity immunity provisions from S. 2248.
Chairman Leahy--aye, Senator Kennedy--aye; Senator Biden--aye;
Senator Kohl--no; Senator Feinstein--no; Senator Feingold--aye;
Senator Schumer--aye; Senator Durbin--aye; Senator Cardin--aye;
Senator Whitehouse--no; Senator Specter--no; Senator Hatch--no;
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no;
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no;
Senator Coburn--no.
That afternoon, by vote of 10 ayes and 9 noes, the
Committee accepted the substitute amendment to Title I, as
amended. The votes in person or by proxy were as follows:
Chairman Leahy--aye, Senator Kennedy--aye; Senator Biden--aye;
Senator Kohl--aye; Senator Feinstein--aye; Senator Feingold--
aye; Senator Schumer--aye; Senator Durbin--aye; Senator
Cardin--aye; Senator Whitehouse--aye; Senator Specter--no;
Senator Hatch--no; Senator Grassley--no; Senator Kyl--no;
Senator Sessions--no; Senator Graham--no; Senator Cornyn--no;
Senator Brownback--no; Senator Coburn--no.
That afternoon, by vote of 10 ayes and 9 noes, the
Committee accepted a complete substitute amendment to S. 2248,
which included Title I and the changes made to that title in
Committee, but struck Titles II and III. The votes in person or
by proxy were as follows: Chairman Leahy--aye, Senator
Kennedy--aye; Senator Biden--aye; Senator Kohl--aye; Senator
Feinstein--aye; Senator Feingold--aye; Senator Schumer--aye;
Senator Durbin--aye; Senator Cardin--aye; Senator Whitehouse--
aye; Senator Specter--no; Senator Hatch--no; Senator Grassley--
no; Senator Kyl--no; Senator Sessions--no; Senator Graham--no;
Senator Cornyn--no; Senator Brownback--no; Senator Coburn--no.
The next morning, the Committee reconvened and ratified by
voice vote its adoption of a complete substitute amendment to
S. 2248, and its decision to report the bill, with the proposed
amendment, favorably. The Committee proceeded by voice vote to
report favorably S. 2248, with the complete substitute as a
recommended amendment.
VI. Congressional Budget Office Cost Estimate
December 7, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2248, the FISA
Amendments Act of 2007.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jason
Wheelock.
Sincerely,
Peter R. Orszag.
Enclosure.
S. 2248--FISA Amendments Act of 2007
Summary: The Foreign Intelligence Surveillance Act
Amendments Act of 2007 would make several modifications to the
Foreign Intelligence Surveillance Act (FISA) and repeal several
sections added to FISA by the Protect America Act of 2007
(Public Law 110-55).
The bill would grant authority to the Attorney General and
the Director of National Intelligence (DNI) to authorize
surveillance of individuals or groups outside the United
States. Such authorizations would permit the incidental
acquisition of communications of individuals located within the
United States so long as procedures are in place to minimize
such acquisitions and to ensure that surveillance is targeted
at individuals outside the United States. Under the bill, the
Foreign Intelligence Surveillance Court (FISC) would be
authorized to review those procedures and to order the
government to modify them if the court finds they are
inadequate or violate the Constitutional protections against
unreasonable search and seizure.
Section 101 of the bill would restrict the ability of the
government to target U.S. persons located outside of the United
States pursuant to authorizations by the Attorney General and
DNI. Under the bill, if the government targets a U.S. person
overseas but intends to acquire that individual's
communications in the United States, the government must follow
the traditional FISA warrant process for electronic
surveillance. The bill would require the government to submit
an application to the FISC in cases where the government wishes
to target a U.S. person overseas intending to acquire that
individual's communications outside the United States if that
individual had a reasonable expectation of privacy and a
warrant would normally be required in the United States. If the
government can show that the target is a foreign power or an
agent of a foreign power, the bill would authorize the FISC to
approve the surveillance.
Since this bill would require the Attorney General and DNI
to forward certifications to the FISC regarding the
authorization of surveillance of overseas targets and would
require the court to review such certifications, the bill would
increase discretionary costs associated with such oversight of
surveillance programs. However, CBO does not have access to
information regarding the amount of surveillance that would be
affected by the bill or the current costs incurred by agencies
involved with conducting and authorizing such surveillance.
Thus, CBO cannot predict how implementing this bill might
affect the budget. Any changes in federal spending under the
bill would be subject to the appropriation of the necessary
amounts. Enacting the bill would not affect direct spending or
revenues.
The Unfunded Mandates Reform Act (UMRA) excludes from the
application of that act any legislative provisions that are
necessary for national security. CBO has determined that the
portions of sections 101, 105, and 107 of S. 2248 that would
authorize certain electronic surveillance and physical searches
without a court order in an emergency situation fall under that
exclusion, and CBO has not reviewed those provisions for
intergovernmental or private-sector mandates.
Other provisions of the bill contain intergovernmental
mandates as defined in UMRA, but CBO estimates that the costs
of those mandates to state and local governments would not
exceed the annual threshold established in UMRA ($66 million in
2007, adjusted annually for inflation).
S. 2248 also contains a private-sector mandate as defined
in UMRA by requiring certain entities to assist the government
with electronic surveillance. Because CBO has no information
about the prevalence of electronic surveillance and the cost of
compliance for entities assisting the government with
electronic surveillance, CBO has no basis for estimating the
costs of the mandate or whether the costs would exceed the
annual threshold established by UMRA for private-sector
mandates ($131 million in 2007, adjusted annually for
inflation).
Estimated cost to the Federal Government: Since CBO does
not have access to information regarding the prevalence of
surveillance that would be affected by the bill, or the current
costs incurred by agencies involved with conducting and
authorizing such surveillance, CBO cannot predict how
implementing this bill might affect the budget. Any changes in
federal spending under the bill would be subject to the
appropriation of necessary amounts. Enacting the bill would not
affect direct spending or revenues.
Intergovernmental and private-sector impact: The Unfunded
Mandates Reform Act excludes from the application of that act
any legislative provisions that are necessary for national
security. CBO has determined that the portions of sections 101,
105, and 107 of S. 2248 that would authorize certain electronic
surveillance and physical searches without a court order in an
emergency situation fall under that exclusion, and CBO has not
reviewed those provisions for intergovernmental or private-
sector mandates.
Estimated impact on state, local, and tribal governments
Provisions of the bill contain intergovernmental mandates
as defined in UMRA, but CBO estimates that the costs of those
mandates to state and local governments would not exceed the
annual threshold established in UMRA.
If electronic communication service providers comply with
certain federal requests for information, the bill would
protect them from future liability. Therefore, the bill would
preempt some state and local liability laws, and it would
eliminate the ability of a public entity to pursue legal action
against a service provider. The preemption and the elimination
of a legal course of action would be intergovernmental
mandates. Information about the nature of existing and
potential claims is severely limited, but CBO assumes that few
state, local, or tribal governments would act as plaintiffs in
such cases. Consequently, we estimate that the costs of the
mandates would be small.
The bill also would allow federal law enforcement officers
to compel communications service providers, including libraries
and other public institutions, to provide information about
their customers and users. Based on information from a recent
survey of public libraries, CBO estimates that the number of
requests and associated costs would likely be small. The bill
also would direct the federal government to compensate entities
for providing such information.
Estimated impact on the private sector
S. 2248 contains a private-sector mandate as defined in
UMRA by authorizing the Director of National Intelligence and
the Attorney General to direct certain electronic communication
service providers to provide the government with all
information, facilities, and assistance necessary to conduct
electronic surveillance and to acquire foreign intelligence.
Because CBO has no information about how often such entities
would be directed to provide assistance or the costs associated
with providing assistance, CBO has no basis for estimating the
costs of the mandate or whether the costs would exceed the
annual threshold established by UMRA for private-sector
mandates. The bill also would direct the government to provide
compensation, at the prevailing rate, to persons providing
information, facilities, or assistance.
Previous CBO estimates: On October 26, 2007, CBO
transmitted a cost estimate for the FISA Amendments Act of
2007, as ordered reported by the Senate Select Committee on
Intelligence. That version of the bill did not contain the
provision found in section 110 of this bill requiring an audit
of the ``Terrorist Surveillance Program,'' and authorizing
additional personnel for that purpose. To the extent that
section 110 would require additional funding for such
personnel, the costs associated with implementing this
legislation could exceed the costs associated with implementing
the version reported by Senate Select Committee on
Intelligence. In addition, while both the Intelligence and
Judiciary Committees' legislation would protect communication
service providers from future liability claims resulting from
compliance with federal requests, the earlier version of the
bill also included a retroactive liability exemption.
On October 12, 2007, CBO transmitted cost estimates for
H.R. 3773, the RESTORE Act of 2007, as ordered reported by the
House Permanent Select Committee on Intelligence and the House
Committee on the Judiciary on October 10, 2007. Both versions
of H.R. 3773 would require the government to apply to the FISC
for authorization to conduct surveillance on individuals
overseas if such surveillance also would result in the
government obtaining the communications of individuals located
in the United States. In contrast, S. 2248 would allow the
Attorney General and Director of National Intelligence to
authorize such surveillance while providing certifications to
the FISC that procedures have been put in place to ensure that
individuals in the United States are not targeted for
surveillance and that the acquisition of communications to or
from individuals in the United States is minimized.
Estimate prepared by: Federal Costs: Jason Wheelock; Impact
on State, Local, and Tribal Governments: Neil Hood; Impact on
the Private Sector: Victoria Liu.
Estimate approved by: Peter H. Fontaine, Assistant Director
for Budget Analysis.
VII. Regulatory Impact Evaluation
In accordance with paragraph 11(b)(2) of rule XXVI of the
Standing Rules of the Senate, the Committee deems it
impractical to evaluate in this report the regulatory impact of
provisions of this bill due to the classified nature of the
operations conducted pursuant to this legislation.
VIII. Conclusion
The Foreign Intelligence Surveillance Act of 1978
Amendments Act of 2007, S. 2248, as amended by the Judiciary
Complete substitute will strike an appropriate balance between
Americans' privacy rights and national security prerogatives.
IX. ADDITIONAL AND MINORITY VIEWS
----------
A. Additional Views of Senator Leahy
I write separately to express my view that Congress should
not grant retroactive immunity to the electronic communication
service providers. I also write to express my support for
substituting the United States as the party in interest in the
on-going lawsuits against the providers as a possible
alternative to retroactive immunity.
I strongly oppose the blanket grant of immunity contained
in title II of the Senate Intelligence Committee's bill. By its
own acknowledgment, the Administration failed to follow the
dictates in FISA by conducting warrantless surveillance of
Americans for more than five years. The press uncovered this
extra-statutory conduct in late 2005; had it not done so, this
unauthorized surveillance may still be going on today. When the
public found out that the Government had been spying on the
American people outside of FISA for years, the Government and
the providers were sued by citizens who believed that their
privacy rights were violated. Now, the Administration is
attempting to have Congress terminate those lawsuits, perhaps
in order to insulate itself from liability. The Senate
Intelligence bill would cut off all meaningful accountability
by the courts, and would take away the plaintiffs' right to
their day in court. We should not allow this to happen.
In running its warrantless surveillance program, the
Administration relied on legal opinions prepared in secret and
shown only to a tiny group of like-minded officials. Jack
Goldsmith, who briefly headed the Justice Department's Office
of Legal Counsel, described the program as a ``legal mess''.
This Administration does not want a court to get a chance to
look at this ``mess,'' and to determine whether the providers
were accomplices to illegal surveillance of their customers.
Retroactive immunity would assure that the Administration gets
its wish.
Senator Rockefeller and I have fought hard to obtain access
to the information that our members need to evaluate whether
there is any justification for retroactive immunity. Senator
Specter has also worked hard to ensure full disclosure. While
these efforts have led to the disclosure of some documents to a
limited number of Senators and staffers, it is past time for
all other Senators and members of Congress to have access to
the entire record in order to make informed judgments about
whether to wipe out over 40 on-going lawsuits.
Senator Rockefeller and I have been cleared to review
certain documents about the TSP, but we have drawn very
different conclusions about retroactive immunity. I agree with
Senator Specter and many others that blanket retroactive
immunity, which would end on-going lawsuits by legislative
fiat, undermines accountability and the rule of law.
The arguments in favor of full retroactive immunity do not
withstand scrutiny. The Administration and its allies in
Congress assert that the providers should be granted immunity
based on the common law principle that a private citizen should
cooperate when asked to do so by law enforcement. The
fundamental flaw in this assertion is that Congress enacted
FISA to make clear to the providers what they may and may not
do in cooperation with the Government, and Congress already
provided for immunity for the providers when they act in
accordance with FISA. Given these clear statutory guidelines,
the providers cannot now claim a common law defense. That is
precisely what the federal district court judge overseeing the
consolidated cases against the providers found as a matter of
law.
Those arguing for full retroactive immunity point to the
possible release of classified information as a reason for
short-circuiting the lawsuits. They ignore the fact that
federal courts have long had procedures for dealing with
classified information in a manner that protects national
security. These procedures have been implemented by the federal
judge in San Francisco who is handling the bulk of the cases
against the providers, and there have been no reported leaks of
classified information.
Proponents of full retroactive immunity also argue that if
Congress does not terminate the lawsuits against the providers,
the providers will not cooperate with legitimate Government
surveillance efforts in the future. But this bill would require
such cooperation. Moreover, FISA, together with the United
States Criminal Code, provide clear guidelines governing when
the providers may lawfully cooperate with Government requests
for assistance, and there is simply no reason why future
providers would ignore these clear statutory guidelines.
If anything, the greater risk is that granting full
retroactive immunity will discourage future providers from
questioning Government efforts to conduct extra-statutory
surveillance because those providers will know that that their
lawless conduct can ultimately be nullified by Congress. This
would subvert the gatekeeping role that FISA contemplates for
the providers. As Jim Dempsey, the Policy Director for the
Center for Democracy & Technology, noted at a recent Committee
hearing: ``[R]etroactive immunity would be inconsistent with
the structure and purpose of FISA. FISA was intended to provide
clarity to both communications companies and government
officials. Retroactive immunity would undermine the role the
communications carriers play in effectively checking unlawful
surveillance. It would place all carriers in an impossible
position during the next crisis. If the government approached
them with a request for surveillance that did not meet the
statutory requirements, they would be uncertain as to whether
they should cooperate in the hope that they would later get
immunity. A communications service provider should not have to
guess whether cooperation with an apparently illegal request
will be excused.''
Finally, there is simply no good reason why Congress must
act now to deal with the issue of the on-going lawsuits against
providers. The claim that these lawsuits will somehow
``bankrupt'' the providers is belied by the record
demonstrating the financial health of these companies today
despite the on-going litigation. Even the most alarmist critics
of the lawsuits acknowledge that it will be years, and probably
at least two trips to the U.S. Supreme Court, before there are
any enforceable final judgments.
While I believe no congressional action is necessary at
this time, if there is a clear congressional will to act on
this issue in 2008, I would urge members to consider carefully
the proposals being developed by Senators Specter and
Whitehouse that would substitute the United States for the
providers in on-going litigation.
Substitution is a mechanism by which the United States
takes the place of private persons or entities in litigation
and, in turn, defends the claims against those private parties
itself, paying out any resulting monetary damages. Retroactive
immunity would effectively quash all on-going cases against the
providers. A substitution proposal tailored to these
circumstances, however, could allow the plaintiffs to proceed
with the essence of their claims against the providers as re-
pleaded claims against the United States. While under these
unique circumstances plaintiffs may not be able to obtain all
of the relief to which they may have been entitled with the
providers as party-defendants--such as declaratory or
injunctive relief--legal proceedings could move forward against
the United States that would entitle the plaintiffs to obtain
monetary damages and, importantly, would enable the courts to
rule on the legality of the underlying program.
Under classic substitution, the private parties are removed
from the litigation entirely. Prior examples of substitution
are the National Swine Flu Immunization Program of 1976, Pub.
L. No. 94-380, which substituted the Government as defendant in
all actions against Swine Flu vaccine manufacturers, and the
Atomic Energy Act, Pub. L. No. 101-510, which did the same for
claims of injury from exposure to radiation incurred in the
course of atomic weapons testing by Government contractors. In
these cases, the United States stepped into the shoes of the
private parties to defend the tort-based damage claims, and
assumed potential liability, because Congress viewed the
Government as the true culpable party in litigation.
The United States is immune from civil suit absent an
explicit waiver of sovereign immunity. Historically, therefore,
Congress has drafted statutes calling for substitution of the
U.S. as a party in litigation by waiving sovereign immunity
under the framework of the Federal Tort Claims Act (FTCA), 28
U.S.C. Sec. 1346(b). The FTCA is a statutory regime that
permits civil actions for money damages against the U.S. for
injuries caused by the wrongful acts or omissions of a
Government employee. The Government sometimes substitutes
itself for the defendant and waives sovereign immunity where
one of its employees may be liable for tort damages under state
law, and the ensuing lawsuits proceed under the FTCA regime.
Prior substitution legislation has used this framework because
it provides a time-tested means of allowing tort-based private
lawsuits to proceed against the Government, and it allows
private parties to maintain the exact same claims against the
Government that they had maintained against private interests.
The plaintiffs in the lawsuits against the providers have
advanced not only state-based tort claims, but also federal
statutory claims that are specific to the providers and that
may only be brought against private parties. The U.S. cannot,
therefore, simply step into the shoes of the providers, as it
would do in classic substitution. Rather, given the unique
facts here, substitution proposals would have to permit
plaintiffs to re-plead their claims so that they may be brought
against the Government. The Specter and Whitehouse proposals
are drafted to permit such re-pleading.
The Specter and Whitehouse proposals contain an explicit
waiver of sovereign immunity, which will allow the lawsuits to
proceed against the United States. They also provide for a
waiver of the discretionary function exception, which may
otherwise exempt the U.S. from civil liability if the conduct
of its employees fell within those employees' discretion. And
they contain provisions that would make it easier for the
plaintiffs to receive discovery from the providers even once
those providers are no longer party-defendants.
While I see no need to deal with the issue of lawsuits
against the providers in this Congress, I believe that
substitution is a fairer means of dealing with these lawsuits
than full retroactive immunity, because it would give the
plaintiffs their day in court, and it would allow for a measure
of accountability for the Administration's actions in the years
following 9/11.
Patrick Leahy.
B. Additional Views of Senator Feingold
Before leaving town for the August recess this year,
Congress passed the Protect America Act (PAA), vastly expanding
the government's ability to eavesdrop without a court-approved
warrant. That legislation was rushed through without adequate
consideration, but it contained a six-month sunset to force
Congress to reconsider the approach taken in that bill.
Congress should be taking this opportunity to pass a new
bill that allows the government to wiretap suspected terrorists
but also protects Americans' basic freedoms. I agree that there
is a legislative problem that needs to be addressed. Congress
needs to make clear that when foreign terrorists are
communicating with each other overseas, the U.S. government
does not need a warrant to listen in, even if the collection
ends up taking place in this country because of the way modern
communications are routed. This purpose can be achieved while
protecting the rights and privacy of law-abiding Americans
conducting international communications.
S. 2248 as reported by the Senate Select Committee on
Intelligence, on which I also serve, falls far short of that
goal. In addition, it provides sweeping, unjustified
retroactive immunity to those alleged to have cooperated with
the President's warrantless wiretapping program. Fortunately,
the Senate Judiciary Committee has considered S. 2248 on
sequential referral and made significant improvements. While I
still have concerns about the bill, I strongly support the
changes made in the Judiciary Committee.
The Judiciary Committee version of S. 2248 addresses a
number of deficiencies in the Intelligence Committee product.
First, I was pleased that the Judiciary Committee adopted an
amendment that I offered to rectify a significant problem with
the Intelligence Committee bill: it does not clearly prohibit
the government from using this new authority to engage in the
``bulk collection'' of international communications. Bulk
collection is the acquisition of large quantities of
communications beyond those of individual targets, and could
involve the acquisition of all international communications
between the U.S. and overseas. The Director of National
Intelligence confirmed during the September 25, 2007, hearing
of this Committee that the PAA, and presumably the Intelligence
Committee bill as well, authorizes bulk collection.
Americans understand that if they talk to a criminal
suspect or a terrorist overseas, their conversations might be
overheard by the government. What Americans do not expect is
that all their international conversations could be wiretapped.
Bulk collection goes far beyond the ``surgical'' approach the
Administration has publicly stated that it takes with respect
to foreign targeting. According to the Director of National
Intelligence (DNI) in an interview with the El Paso Times this
summer, ``Now there's a sense that we're doing massive data
mining. In fact, what we're doing is surgical. A telephone
number is surgical. So, if you know that number, you can select
it out.''
My amendment simply clarifies that the government must have
specific targets when it conducts surveillance using these
authorities. It need not specify those targets to the FISA
Court, nor do the targets have to be known or named
individuals. They can, for instance, be telephone numbers, as
described by the DNI. Finally, the amendment does not limit
collection in support of military operations. As the Committee
Report states, ``in an active or projected zone of military
combat the acquisition of communications of any target, known
or unknown, would be deemed to have a foreign intelligence
purpose by virtue of geographic location if such acquisition is
tailored to support such military operations.''
Second, the Judiciary Committee bill contains an additional
protection for Americans included in an amendment that I
offered. It ensures that the government cannot engage in
``reverse targeting''--avoiding FISA's court order requirement
by targeting an individual overseas in order to acquire the
communications of a person in the U.S. with whom the foreign
target is communicating. It requires that a FISA court order be
obtained if ``a significant purpose'' of wiretapping an
individual abroad is to acquire the communications of a person
reasonably believed to be in the United States. The DNI has
stated that reverse targeting, which he defined as wiretapping
an individual overseas when the government really wants to
listen to an American with whom the target is communicating,
violates the Fourth Amendment. This amendment merely codifies
this fundamental constitutional principle.
The Judiciary Committee bill also provides a greater
oversight role for the FISA Court in a number of respects. It
allows the FISA Court to impose restrictions on the use and
dissemination of information about Americans that was acquired
through procedures the FISA Court later determines to be
unlawful. It allows the FISA Court to assess on an ongoing
basis the government's compliance with minimization procedures
and to ask for additional information to make that assessment.
And it makes explicit the FISA Court's authority to take
remedial action to enforce its orders and to enforce compliance
with those orders.
These changes and others help put the bill on stronger
constitutional footing. But troubling aspects of the
Intelligence Committee bill remain. Most importantly, the bill
does not adequately protect Americans whose communications are
intercepted through the use of these new authorities against
foreign targets. The scope of the new warrantless collection
authorities provided by the Intelligence Committee bill goes
far beyond what is commonly understood. The bill would allow
the government to listen to communications between Americans in
the United States and their friends and colleagues abroad
without judicial oversight, even if no party to the
communication has any connection to terrorism or any other
criminal activity.
While the government must be ``targeting'' an individual
overseas to invoke these authorities, the overseas target need
not be a terrorism suspect or be under any suspicion of
wrongdoing. The only requirement is that the purpose of the
acquisition be to gather ``foreign intelligence information,''
a term with an extremely broad definition that includes
anything relating to foreign affairs. And this broad
surveillance is permitted regardless of whether the target is
speaking to individuals overseas or individuals in the United
States. That means that the government could secretly monitor
the communications of an American reporter talking to sources
overseas, or an American e-mailing relatives or friends abroad,
without a court order or any other any meaningful protections
for those Americans. This is perhaps the most serious problem
with the Intelligence Committee bill.
It is also a very substantial problem. International
communications are now an everyday experience for many
Americans. Thirty years ago, when Congress was first
considering FISA, it was very expensive, and not very common,
for most Americans to make an overseas call. Now, particularly
with email, such communications are commonplace. Millions of
ordinary Americans communicate with people overseas for
legitimate personal and business reasons. Students email
friends they have met while studying abroad. Business people
communicate with colleagues or clients overseas. Reporters have
sources all over the world. Technological advancements combined
with the ever more interconnected world economy have led to an
explosion of international contacts.
Those who want to give the government new powers often
argue that FISA needs to be brought up to date with new
technology. But changes in technology should also cause
Congress to take a close look at the need for greater
protections of the privacy of our citizens. If we are going to
give the government broad new powers that may very well lead to
the collection of vast quantities of information on innocent
Americans, we have a duty to protect their privacy as much as
we possibly can. And I believe we can do that without
sacrificing any of the efficacy of these new powers for
collecting information that will help protect our national
security. Unfortunately, neither the Intelligence Committee
bill nor the Judiciary Committee bill adequately do so.
In addition, in one very significant respect, the
Intelligence Committee bill is far worse than the PAA. It
provides retroactive immunity to companies that allegedly
cooperated with the illegal warrantless wiretapping program set
up secretly after 9/11--an illegal program that continued for
more than five years.
I am strongly opposed to this unjustified grant of
immunity, which is why I offered an amendment in the Judiciary
Committee to strike the retroactive immunity provisions of the
bill. Granting retroactive immunity is unnecessary. Current law
already provides immunity from lawsuits for companies that
cooperate with the government's request for assistance, as long
as they receive either a court order or a certification from
the Attorney General that no court order is needed and the
request meets all statutory requirements. This limited immunity
already protects companies that act in good faith while also
protecting the privacy of Americans' communications. There is
no reason to grant companies that allegedly cooperated with the
program a new form of retroactive immunity that undermines the
law that applied during the course of this illegal program. It
sends a message that Congress does not intend its laws to be
followed. And it might very well prevent the courts from ruling
on the warrantless wiretapping program. I was disappointed that
my amendment to strip this provision failed, but heartened that
six of my colleagues joined me in supporting it.
Finally, I want to express my support for the open process
that the Judiciary Committee used to consider this legislation,
including an open markup and open hearings. There is no
question that some of the Intelligence Committee's work must be
conducted behind closed doors due to the sensitive nature of
the information it handles on a regular basis. But there should
be broader participation in the process of considering changes
to this critically important law that has such serious
implications for Americans' constitutional rights.
In conclusion, I am pleased with the progress made in the
Judiciary Committee. I voted to report the bill because of the
improvements it made to the Intelligence Committee bill and
because, in the end, the Committee elected not to address Title
II of the Intelligence Committee bill, which included the
immunity provision. However, I continue to believe that
additional improvements are necessary.
Russell D. Feingold.
C. Minority Views of Senator Specter
I agree strongly with the view that Congress must update
the Foreign Intelligence Surveillance Act (``FISA'') to provide
the Intelligence Community with the tools necessary to track
foreign terrorists. We must craft a legal framework that
provides the Government with the flexibility to respond quickly
to emerging threats, while protecting the civil liberties of
Americans at home and abroad.
I write separately to express my hope that certain
provisions of the Judiciary Committee substitute amendment will
be improved and considered individually when the full Senate
debates this legislation. I also write to underscore my support
for a provision that would substitute the United States
Government as the party defendant in place of the
communications companies that have been sued for their alleged
assistance with the Terrorist Surveillance Program, as an
alternative to either retroactive immunity or congressional
inaction.
The Judiciary Committee substitute amendment
The Judiciary Committee substitute amendment was adopted on
a party-line vote of 10 to 9. Nevertheless, I believe several
individual provisions of the substitute amendment, especially
if modified to address specific concerns articulated by the
Administration and Members of the Minority, could attract
bipartisan support in the full Senate. For example, the
Committee substitute makes several changes to the so-called
Wyden amendment, which requires a court order upon a showing of
probable cause for electronic surveillance of United States
persons overseas. These changes, including the addition of an
emergency exception modeled on existing FISA procedures, should
be a welcome improvement to the bill passed by the Select
Committee on Intelligence. Likewise, although the substitute's
current provision on the exclusivity of FISA may be overbroad,
it includes a new subsection intended to clarify that future
congressional enactments should not be interpreted as
authorizing electronic surveillance or amending FISA unless
they do so explicitly. This subsection is similar to language
in a bipartisan bill I introduced with Senator Feinstein
earlier this year, S. 1114, and should be embraced by those who
do not believe the September 2001 Authorization for Use of
Military Force (Pub. L. 107-40) constituted a separate
authority for surveillance outside of FISA.
It is my view that these and other provisions of the
Judiciary Committee substitute, particularly those concerning
enhanced congressional oversight and the ability of the
Government to continue surveillance after an adverse ruling by
a single FISA Court judge, could and should be modified so as
to win broader support. I intend to work with Chairman Leahy
before final passage of the FISA legislation to achieve this
goal, because I believe that Congress must act in a bipartisan
way on matters of national security.
Substitution of the Government for communications carriers in pending
litigation
I regret that the Judiciary Committee substitute did not
deal directly with the question of whether communications
carriers alleged to have assisted the Government with the
Terrorist Surveillance Program ought to receive some relief
from liability. I circulated an amendment on this topic, but it
was not considered during the Committee's consideration of FISA
reform. Therefore, I subsequently modified and introduced the
measure as a stand alone bill, S. 2402. With the agreement of
Chairman Leahy, my bill was considered by the Judiciary
Committee at the December 13, 2007 executive business meeting.
The bill was not approved by the Committee. Nevertheless, I
believe that, as my colleagues become more familiar with its
provisions, it will gain wider acceptance by the Senate.
The bill, S. 2402, proposes a responsible alternative to
the retroactive immunity proposed in S. 2248. It would
simultaneously protect the telecommunications providers who
assisted the government, while not depriving litigants of their
day in court.
The bill substitutes the United States in place of any
electronic communication service provider who provided
assistance in connection with an intelligence activity that was
(1) authorized by the President between September 11, 2001 and
January 17, 2007, and (2) designed to detect or prevent a
terrorist attack against the United States. For substitution to
apply, the electronic communications service provider must have
received a written request from the Attorney General or the
head of an element of the intelligence community indicating
that the activity was authorized by the President and
determined to be lawful. The Government will also be
substituted if the Attorney General certifies that the
electronic communications service provider did not provide the
alleged assistance. If, however, the provider assisted the
Government beyond what was requested in writing, the bill would
provide no relief for such assistance.
At the constructive urging of Senator Whitehouse, the bill
also requires, as a precondition for substitution, a
determination by the FISA Court that the written request
received by the carrier met the statutory standard in title 18,
United States Code, section 2511, for surveillance without a
court order or that the carrier's assistance was undertaken
with a reasonable belief that it was lawful. Once substitution
occurs, Federal and state courts are directed to dismiss the
providers from the action.
The bill protects the carriers against liability without
damaging the litigation interests of legitimate plaintiffs.
Specifically, S. 2402 provides that plaintiffs in these cases
may continue to send third-party discovery requests to the
communications providers after the providers have been
dismissed. Moreover, the bill states that plaintiffs may deem
provider admissions as Government admissions in their cases
against the Government. This bill also establishes a limited
waiver of sovereign immunity intended to ensure that the
Government can only assert those defenses the communications
companies may assert under current law. On the other hand,
nothing in the bill is designed to increase or diminish the
ability of the Government to assert the State Secrets
privilege, which has already been asserted in the pending
litigation. Again, it is my hope that my colleagues will
familiarize themselves with this alternative to retroactive
immunity before the full Senate considers FISA reform
legislation.
Arlen Specter.
D. Minority Views of Senators Kyl, Hatch, Grassley, Sessions, Graham,
Cornyn, Coburn, and Brownback
The [Fourth Circuit in the Truong case], as did all
the other courts to have decided the issue, held that
the President did have inherent authority to conduct
warrantless searches to obtain foreign intelligence
information. * * * We take for granted that the
President does have that authority and, assuming that
is so, FISA could not encroach on the President's
constitutional power.
--In re Sealed Cases, 310 F.3d 717, 742 (FISA Ct. of Review
2002).
[The rule that private citizens acting in good faith
to assist law enforcement are immune from suit ensures
that] the citizenry may be called upon to enforce the
justice of the State, not faintly and with lagging
steps, but honestly and bravely and with whatever
implements and facilities are convenient and at hand.
--Babbington v. Yellow Taxi Corp., 250 N.Y. 14, 17 (1928)
(Cardozo, J.).
Whatever has happened to this, someday someone will
die and, wall or not, the public will not understand
why we were not more effective in throwing every
resource we had at certain problems.
--Email from FBI Agent in New York Field Office to FBI
Headquarters, August 2001, responding to Headquarters' refusal
to allow criminal investigators to search for Khalid al-
Mihdhar, Nawaf al-Hazmi, and two other ``Bin Laden-related
individuals'' known to be in the United States prior to the
September 11 attacks, because of concerns about violating legal
rules segregating intelligence and criminal investigations.
The reason why Congress needs to enact a FISA bill is
simple and straightforward: technology has outpaced the law. We
are now able to collect intelligence in ways that were never
understood or contemplated nearly 30 years ago when the FISA
law was drafted. As a result, we need to change the law to
accommodate that intelligence collection. Before we changed the
law last year, U.S. intelligence agencies had lost about two-
thirds of their ability to collect communications intelligence
against al-Qaida. Obviously, in this war, we cannot cede two-
thirds of the battlefield to the terrorists.
When we enacted the Protect America Act last summer, we
regained the capability to collect communications intelligence
about al-Qaida by conforming the legal procedures to the
technology that enables us to collect this material. Let there
be no doubt that the collection of this information as a result
of the PAA is critical to our nation's security. In a New York
Times op-ed on December 10, Michael McConnell, the Director of
National Intelligence, noted that ``[i]nformation obtained
under this law has helped us develop a greater understanding of
international Qaeda networks, and the law has allowed us to
obtain significant insight into terrorist planning.''
Similarly, on October 31 of this year, Kenneth Wainstein, the
Assistant Attorney General in charge of the Justice
Department's National Security Division, testified before the
Judiciary Committee that ``since the passage of the [Protect
America] Act, the Intelligence Community has collected critical
intelligence important to preventing terrorist actions and
enhancing our national
security.''
Al-Qaida has not ceased to exist in years since the
September 11 attacks and the fall of the Taliban. Al-Qaida
still exists and still desires to carry out the same kinds of
attacks against the United States and other countries that it
executed on September 11, 2001. We know the incredible amount
of damage that can be inflicted if we do not monitor and
respond to this threat. We also know that the best way to deal
with al-Qaida and the like is to collect intelligence so that
we can prevent attacks from occurring in the first place,
rather than trying to respond to them after they have occurred.
That is why it is so important for Congress to ensure that
under the law, the United States can engage in the kind of
intelligence collection against al-Qaida that technology today
allows.
Many members of the Senate Majority insist that there be
stringent congressional oversight of these intelligence-
collection programs. No one disputes that point. All agree that
we need oversight over the intelligence agencies. That is why
this Congress and previous Congresses have agreed on a
bipartisan basis to create robust oversight of U.S.
intelligence gathering, even when such intelligence gathering
is directed at foreign targets. The agencies executing wiretaps
and conducting other surveillance must report their activities
to Congress and to others, so that opportunities for domestic
political abuse of these authorities are eliminated.
The Intelligence Committee bill
The Intelligence Committee worked hard to address the
problems posed by changes in communications technology and,
after numerous hearings and countless hours of internal
deliberations, produced a serious effort to solve these
problems. The strength of that committee's effort to work
together to improve FISA is apparent in the 13-2 vote by which
the committee was able to report a bill. That committee
deserves to be commended for its efforts.
Nevertheless, the Intelligence Committee bill is not
perfect. To cite one example, the bill includes a provision,
adopted via an amendment over the objection of both the
Chairman and the Ranking Member, this has come to be called the
Wyden amendment. This provision, as written, would require a
warrant for any overseas surveillance that is conducted for
foreign intelligence purposes and that targets a U.S. citizen
or a foreign national who holds a U.S. green card.
The Wyden amendment is unnecessary, it is overly broad, and
it threatens to undermine overseas intelligence gathering.
First, it is important to emphasize that we already have
protocols in place to limit overseas surveillance that is
targeted at U.S. persons and to minimize any potential abuses
that might result from such surveillance. Section 2.5 of
Executive Order 12333 permits surveillance targeting of a U.S.
person overseas only if the U.S. Attorney General makes a
finding that there is probable cause to believe that the person
is an agent of a foreign terrorist organization or other
foreign power. The advocates of the Wyden amendment have cited
no evidence that this authority has ever been abused by the
Intelligence Community.
The Wyden amendment is also overly broad. Under current
law, a warrant generally would not be required for overseas
surveillance targeted at a U.S. person if the surveillance is
conducted for purposes of a criminal investigation.\6\ The
Wyden amendment thus creates the anomalous situation in which a
warrant would be required in order to monitor an overseas
terrorist group that includes some U.S. citizens or green-card
holders, but no warrant would be required to monitor the very
same people--or even a group composed exclusively of U.S.
citizens--if that group were suspected of drug trafficking or
money laundering. It should not be more burdensome to monitor
al-Qaida than it is to monitor a drug cartel. Yet the Wyden
provision literally would create a situation in which if an
overseas group that includes U.S. persons is suspected of
smuggling hashish, no warrant is required, but if the same
overseas group is suspected of plotting to blow up New York
City, then a warrant would be required. This is absurd.
---------------------------------------------------------------------------
\6\ As Kenneth Wainstein noted in his October 31, 2007 testimony
before this committee, ``[t]he Government is not required to obtain a
warrant to collect evidence outside the United States when its purpose
is to build a criminal case--where the expected end of the
investigative process is often the criminal prosecution of that United
States person.''
---------------------------------------------------------------------------
The Wyden amendment is also likely to undermine overseas
counterterrorism investigations by hindering cooperation with
foreign intelligence services. In many cases, the best
intelligence that the United States obtains about al-Qaida
comes from foreign governments' intelligence agencies.
Particularly in the Middle East, these governments frequently
are afraid of al-Qaida or of radicalized elements of their own
populations, and they are quite anxious to ensure that it not
be made known that they are cooperating with the United States
in the war with al-Qaida. Thus when these foreign governments
share intelligence with the United States, they often demand
strict assurances that the information will not be disseminated
outside of the U.S. Intelligence Community.
If U.S. agents conducting an overseas search in cooperation
with a foreign intelligence service will now, as a result of
the Wyden amendment, be required to disclose and justify the
search to the FISA court, those agents will also need to inform
their foreign counterparts that cooperation with the United
States will be disclosed to a court. It is already anticipated
that these foreign intelligence agencies will be unenthusiastic
about working with the United States if the fact of such
cooperation will be disclosed in judicial proceedings. It is
inevitable that the Wyden requirement will cost the United
States information and cooperation from foreign intelligence
services--possibly including valuable information that is not
available from any other source.
Finally, the Wyden amendment raises the specter that U.S.
agents will be required to prove to a U.S. court that overseas
intelligence activities comply with foreign law. As Ken
Wainstein noted in his October 31, 2007 Judiciary Committee
testimony, by ``extending this new role to the FISA Court and
requiring the court to approve acquisitions abroad [, the Wyden
amendment] could cause that court to feel compelled to analyze
questions of foreign law as they relate to [such overseas
intelligence gathering].''
The Wyden amendment is not only anomalous; it is bad
policy. It is the very kind of thing that, if Congress were to
permit it to be written in to law and another attack should
occur, the next 9/11 Commission will be asking why Congress
tied the intelligence agencies' hands in this way. Congress can
prevent such an eventuality by rejecting or at least mitigating
the effect of the Wyden amendment.
One final criticism of the Intelligence Committee's bill:
section 703(l) of that legislation requires intelligence
agencies to annually report on ``the number of persons located
in the United States whose communications were reviewed.'' As
it is written, this provision would require, for example, that
if U.S. intelligence agents come into possession of an email
message that was sent from overseas, even if our agents quickly
concluded that the message is unimportant and they decide not
to analyze or even read the message, they would still be
required to analyze whether any of the email addresses to which
the message was directed belong to a person who is located
inside the United States. As the Administration's formal policy
statement regarding this bill notes, ``[t]his provision would
likely be impossible to implement.'' Ken Wainstein concurred in
this point in his October 31 testimony, noting that ``[g]iven
the fragmentary nature of foreign intelligence collection and
the limited amount of information available concerning any
specific intercepted communication, I am informed that it would
likely be impossible for intelligence agencies to comply with
this requirement.''
The Judiciary Committee bill
Some of those reading this statement may wonder why this
Judiciary Committee Minority Report principally addresses the
Intelligence Committee bill and devotes relatively little
attention to the Judiciary Committee bill. The explanation is
that at the point in time when this report is being prepared--
when the legislation is already under consideration on the
Senate floor--it is generally expected that the Senate will
only act on the Intelligence Committee bill, and that the
Judiciary Committee substitute amendment will not survive a
cloture vote and will thereby fall off the bill. It has been
made clear that the Director of National Intelligence, the
Attorney General, and other senior intelligence advisors would
recommend to the President that he veto the Judiciary Committee
bill should it reach his desk. Nevertheless, the Judiciary
Committee bill merits a few words.
The Judiciary Committee bill includes an ``exclusive
means'' provision that could (and probably would) undermine
intelligence gathering directed at foreign terrorist
organizations. The provision not only uses vague terms whose
meaning is unclear, it also appears to preclude use of other
intelligence-gathering tools that have already proven to be a
valuable source of intelligence about al-Qaida. As the official
Statement of Administration Policy for this bill notes:
Consistent with current law, the exclusive means
provision in the SSCI's bill addresses only
``electronic surveillance'' and ``the interception of
domestic wire, oral, and electronic communications.''
But the exclusive means provision in the Judiciary
Committee substitute goes much further and would
dramatically expand the scope of activities covered by
that provision. The Judiciary Committee substitute
makes FISA the exclusive means for acquiring
``communications information'' for foreign intelligence
purposes. The term communications information'' is not
defined and potentially covers a vast array of
information--and effectively bars the acquisition of
much of this information that is currently authorized
under other statues such as the National Security Act
of 1947, as amended. It is unprecedented to require
specific statutory authorization for every activity
undertaken worldwide by the Intelligence Community. In
addition, the exclusivity provision in the Judiciary
Committee substitute ignores FISA's complexity and its
interrelationship with other federal laws and, as a
result, could operate to preclude the Intelligence
Community from using current tools and authorities, or
preclude Congress from acting quickly to give the
Intelligence Community the tools it may need in the
aftermath of a terrorist attack in the United States or
in response to a grave threat to the national security.
In short, the Judiciary Committee's exclusive means
provision would radically reshape the intelligence
collection framework and is unacceptable.
To cite just one example of the damage that the Judiciary
Committee's ``exclusive means'' provision could do, it is
unclear whether intelligence about terrorist organizations
could still be gathered under that provision through the use of
grand-jury subpoenas. The ``exclusive means'' provision
requires that foreign-intelligence-gathering tools have
``specific statutory authorization.'' Grand-jury subpoenas are
authorized by the Federal Rule of Evidence. Arguably, the
Federal Rules themselves are authorized by statute, and thus
so, too, are grand-jury subpoenas. (Though is such derivative
authorization ``specific?'') Grand-jury subpoenas have proven a
very valuable tool in counterterrorism investigations; they
were the source of some of the United States's first
intelligence about al-Qaida, intelligence that was gathered in
the course of the 1993 Trade Center bombing trial and
investigations of al-Qaida attacks during the 1990s. The fact
that the Judiciary Committee bill even creates a question as to
whether antiterrorism investigators could continue to employ
grand-jury subpoenas to track al-Qaida strongly suggests that
this legislation is poorly thought out.
Another fatal flaw in the Judiciary Committee bill is its
failure to provide protection to private parties who have
assisted the government in past terrorism investigations--and
whose assistance the United States will need in future
investigations. As the SAP on the Judiciary Committee bill
notes, the failure to provide such protection undermines U.S.
efforts to respond to and stop al-Qaida in two ways: first, it
allows the continuation of litigation that has already resulted
in leaks that have done serious damage to U.S. counterterrorism
efforts. This litigation is inherently and inevitably damaging
to U.S. efforts to monitor al-Qaida's communications. As one
Intelligence Committee staffer aptly characterized the
situation, allowing this litigation to go forward is the
equivalent of allowing the legality of the enigma code-breaking
system to be litigated during World War II.
In addition, the failure to provide protection to third
parties who have assisted the United States will undermine the
willingness of such parties to cooperate with the government in
the future. And such cooperation is essential to U.S. efforts
to track al-Qaida. As the SAP on the bill explains:
In contrast to the Senate Intelligence Committee
bill, the Senate Judiciary Committee substitute would
not protect electronic communication service providers
who are alleged to have assisted the Government with
communications intelligence activities in the aftermath
of September 11th from potentially debilitating
lawsuits. Providing liability protection to these
companies is a just result. In its Conference Report,
the Senate Intelligence Committee ``concluded that the
providers * * * had a good faith basis for responding
to the requests for assistance they received.'' The
Committee further recognized that ``the Intelligence
Community cannot obtain the intelligence it needs
without assistance from these companies.'' Companies in
the future may be less willing to assist the Government
if they face the threat of private lawsuits each time
they are alleged to have provided assistance. The
Senate Intelligence Committee concluded that: ``The
possible reduction in intelligence that might result
from this delay is simply unacceptable for the safety
of our Nation.'' Allowing continued litigation also
risks the disclosure of highly classified information
regarding intelligence sources and methods. In addition
to providing an advantage to our adversaries by
revealing sources and methods during the course of
litigation, the potential disclosure of classified
information puts both the facilities and personnel of
electronic communication service providers and our
country's continued ability to protect our homeland at
risk. It is imperative that Congress provide liability
protection to those who cooperated with this country in
its hour of need.
The ramifications of the Judiciary Committee's
decision to afford no relief to private parties that
cooperated in good faith with the U.S. Government in
the immediate aftermath of the attacks of September 11
could extend well beyond the particular issues and
activities that have been of primary interest and
concern to the Committee. The Intelligence Community,
as well as law enforcement and homeland security
agencies, continue to rely on the voluntary cooperation
and assistance of private parties. A decision by the
Senate to abandon those who may have provided
assistance after September 11 will invariably be noted
by those who may someday be called upon again to help
the Nation.
The Judiciary Committee bill also includes a provision that
would limit FISA overseas intelligence gathering to
``communications to which at least 1 party is a specific
individual target who is reasonably believed outside of the
United States.'' One implication of this provision is that if
the U.S. military were planning to enter and occupy an enemy-
occupied city in Iraq, and the night before the invasion the
commanding officer asked that all communications into or out of
the city be monitored, FISA would bar such surveillance. The
enemy forces inside the city, unless identified as including at
least one ``specific individual target,'' would have privacy
rights against the United State Army, courtesy of the U.S.
Congress.
The Majority Report for this bill, at subsection 6,
attempts to back away from the implications of this provision.
The Report states: ``The Committee also wants to make clear
that in an active or projected zone of military combat the
acquisition of communications of any target, known or unknown,
would be deemed to have a foreign intelligence purpose by
virtue of geographic location if such acquisition is tailored
to support such military operations.''
The text of the Judiciary Committee bill, of course,
contains no such ``military zone'' exception. Committee reports
can explain legislative language but they cannot amend it. We
nevertheless take comfort in this statement in the Majority
Report, as it suggests that even the Committee Majority has
concluded that the natural and obvious implications of this
provision of the Judiciary Committee bill are indefensible.
Finally, we would note in passing that the first paragraph
of the Majority Report's explanation of the purpose of this
bill asserts that telecommunications companies' assistance to
the United States--and, by implication, the entire program of
post-September 11 warrantless surveillance of al-Qaida
communications--was ``contrary to law.'' Yet as the quotation
from the FISA Court of Review at the beginning of this dissent
notes, every court that has considered the question has
concluded that the President does have inherent authority under
the Constitution to gather information about foreign enemies of
the United States without a warrant. The Majority Report cites
no authority to the contrary, and there is no such authority.
Indeed, every Administration since FISA was enacted--including
the Carter Administration--has concluded that Congress cannot
take away the President's power to monitor foreign enemies of
the United States without a warrant, and that to the extent
that FISA purports to do so, it is unconstitutional. The
Constitution's framers vested the executive with primary
responsibility and authority to protect the United States from
foreign attack. The severe flaws in the Judiciary Committee
bill, noted here and elsewhere, tend to confirm the wisdom of
this approach.
Why this matters
Many of those defending various legal limits on
counterterrorism investigations assume or even explicitly
assert that these limits are simply procedural--that such
limits only require intelligence agencies to jump through a few
extra hoops, and that in the end the job will still get done.
One pre-September 11 investigation in particular offers a
cautionary tale as to why we should not assume that arbitrary
legal barriers will not fatally compromise a critical
antiterrorism investigation. The investigation in question
involved Khalid al-Mihdhar. Al-Mihdhar was one of the eventual
suicide hijackers of American Airlines Flight 77, which was
crashed into the Pentagon, killing 58 passengers and crew and
125 people on the ground.
An account of a pre-September 11 investigation of al-
Mihdhar is provided in the 9/11 Commission's Staff Statement
No. 10. That statement notes as follows:
During the summer of 2001 a CIA agent asked an FBI
official * * * to review all of the materials from an
al Qaeda meeting in Kuala Lumpur, Malaysia one more
time. * * * The FBI official began her work on July 24
of 2001. That day she found the cable reporting that
Khalid Al-Mihdhar had a visa to the United States. A
week later she found the cable reporting that Mihdhar's
visa application--what was later discovered to be his
first application--listed New York as his destination.
* * * The FBI official grasped the significance of this
information.
The FBI official and an FBI analyst working the case
promptly met with an INS representative at FBI
Headquarters. On August 22 INS told them that Mihdhar
had entered the United States on January 15, 2000, and
again on July 4, 2001. * * * The FBI agents decided
that if Mihdhar was in the United States, he should be
found.
At this point, the investigation of Khalid al-Mihdhar came
up against the infamous legal ``wall'' that separated criminal
and intelligence investigations at the time. The Joint Inquiry
Report of the House and Senate Intelligence Committees
describes what happened next:
Even in late August 2001, when the CIA told the FBI,
State, INS, and Customs that Khalid al-Mihdhar, Nawaf
al-Hazmi, and two other ``Bin Laden-related
individuals'' were in the United States, FBI
Headquarters refused to accede to the New York field
office recommendation that a criminal investigation be
opened, which might allow greater resources to be
dedicated to the search for the future hijackers. * * *
FBI attorneys took the position that criminal
investigators ``CAN NOT'' (emphasis original) be
involved and that criminal information discovered in
the intelligence case would be ``passed over the wall''
according to proper procedures. An agent in the FBI's
New York field office responded by e-mail, saying:
``Whatever has happened to this, someday someone will
die and, wall or not, the public will not understand
why we were not more effective in throwing every
resource we had at certain problems.''
The 9/11 Commission has reached the following conclusion
about the effect that the legal wall between criminal and
intelligence investigations had on the pre-September 11
investigation of Khalid al-Mihdhar:
Many witnesses have suggested that even if Mihdhar
had been found, there was nothing the agents could have
done except follow him onto the planes. We believe this
is incorrect. Both Hazmi and Mihdhar could have been
held for immigration violations or as material
witnesses in the Cole bombing case. Investigation or
interrogation of these individuals, and their travel
and financial activities, also may have yielded
evidence of connections to other participants in the 9/
11 plot. In any case, the opportunity did not arise.
The USA Patriot Act later dismantled the legal wall between
intelligence and criminal investigations. But were the Congress
to enact the Judiciary Committee's FISA bill, or impose other
arbitrary limits on overseas intelligence gathering, it would
be erecting new walls that would unnecessarily burden
counterterrorism investigations and compromise U.S. efforts in
the war against al-Qaida. These types of bureaucratic barriers
matter. They may have fatally undermined the best chance that
the United States had of uncovering or at least disrupting the
9/11 plot. We should learn from the mistakes of the past.
Conclusion
We conclude by asking: what is the Congress's goal? Do we
want to allow our intelligence agencies to use the most up-to-
date technology to track and prevent attacks by the most evil
people in the world today, al-Qaida terrorists, or are we so
concerned about some potential, theoretical situation in which
an American citizen's communications might be temporarily
intercepted, if they call an al-Qaida person or an al-Qaida
person calls them, that we are not going to take advantage of
these intelligence-collection techniques?
We can write the law to ensure the protection of every U.S.
person against surveillance abuses. We need to do that. But we
should not restrict our intelligence agencies from collecting
the available and accessible intelligence that might warn us of
another terrorist attack.
Jon Kyl.
Orrin G. Hatch.
Chuck Grassley.
Jeff Sessions.
Lindsey Graham.
John Cornyn.
Tom Coburn.
Sam Brownback.
E. Minority Views of Senator Hatch
As the only Republican Senator on both the Intelligence and
Judiciary Committees, I have witnessed the evolution of this
bill through both committees.
The Judiciary substitute is deficient to accomplish the
purpose of protecting our nation for a myriad of reasons,
primarily for the fact that it contains numerous provisions
which will harm national security. But to put it in one simple
phrase, the Judiciary substitute lacks balance.
The Judiciary Committee received a bipartisan bill which
had been approved 13-2. However, after deliberations the final
Judiciary Committee substitute included 13 substantive changes,
all of which were approved by a party line 10-9 vote.
Does that sound balanced? Does it sound like the Judiciary
Committee exhibited a willingness to work together?
Fueled by disappointment with the process in the committee,
I joined seven other Republican Senators on the Judiciary
Committee to send a letter to Senate Leadership expressing our
support for the FISA bill as passed out of the Intelligence
Committee to serve as the basis for floor debate. I can
guarantee that the other Senators took no joy in recommending a
bill from another committee over the one in which they serve,
but the end product produced by the Judiciary Committee gave
them no choice.
Some have expressed support for the Judiciary Substitute
because they think it has increased oversight.
Are people aware of the extensive amount of oversight that
is included in the bipartisan Intelligence Committee FISA
modernization bill? Here are some provisions:
Foreign Intelligence Surveillance Court (FISC)
review of AG/DNI certifications.
FISC review of targeting procedures.
FISC review of minimization procedures.
Statutorily required AG/DNI semiannual assessment
of compliance with targeting and minimization procedures.
Statutorily required Inspector General semiannual
assessment of compliance with targeting and minimization
procedures.
The bill also includes:
Annual reviews to be conducted by the head of each
IC element conducting acquisitions.
Statutorily required Attorney General semiannual
report to Congress regarding implementation.
Seeing this dramatic expansion in FISC jurisdiction, it's
important to realize what it was created for. The jurisdiction
of the FISC is to grant orders for electronic surveillance.
That's it. Many of the oversight provisions represent a
dramatic departure from the original intent of FISA, which was
to apply oversight and protections to domestic surveillance.
This bill is greatly expanding oversight of foreign
surveillance.
I believe this expansion of FISC jurisdiction is
unnecessary. Since the creation of the National Security
Agency, American intelligence analysts have had the authority
and responsibility to conduct surveillance and abide by our
laws. These analysts all pass an extensive background check to
receive security clearances. They are not politically
appointed, and they continue to serve regardless of who the
current President may be, or which political party is in power.
They all take an oath to defend the Constitution of the United
States. Their integrity is beyond dispute, and yet we continue
to push proposals that treat them as if they can't be trusted.
These analysts don't need more oversight, they need us to give
them the tools necessary to prevent the next terrorist attack.
Despite my concerns with this issue, I am still fully
supporting the Intelligence Committee FISA modernization bill
over the Judiciary substitute. This is because I understand
what it means to compromise. Do I wish there were additional
changes? Absolutely. But I've served long enough to know that
legislation, especially national security legislation, requires
compromise to ensure passage.
Personally seeing the transformation of the bill between
the two committees has made my opinion crystal clear. I will
support the bill which passed the intelligence committee 13-2,
and will adamantly oppose the partisan Judiciary Substitute if
it is offered as a substitute on the Senate floor.
Orrin G. Hatch.
ATTACHMENT
December 4, 2007.
Hon. Harry Reid,
Senate Majority Leader,
Washington, DC.
Hon. Mitch McConnell,
Senate Minority Leader,
Washington, DC.
Dear Majority Leader Reid and Minority Leader McConnell: As
the Senate prepares to debate Foreign Intelligence Surveillance
Act (FISA) modernization legislation, we want to state our
collective support for the bipartisan legislation (S. 2248),
drafted by Chairman Rockefeller and Vice Chairman Bond and
reported by the Senate Select Committee on Intelligence (SSCI),
serving as the basis for floor debate.
The Rockefeller-Bond bill represents a bipartisan attempt
to craft legislation which would provide critical intelligence-
gathering authority to the Intelligence Community, while
providing appropriate oversight by Congress, the Foreign
Intelligence Surveillance Court, and the Executive Branch. The
Rockefeller-Bond bill was drafted after careful and lengthy
negotiations between Democratic and Republican staff on the
Intelligence Committee. The legislation includes important
input from the Director of National Intelligence, the
Department of Justice, and the Intelligence Community as a
whole. These efforts resulted in a balanced bill which was
reported by the SSCI by an overwhelming 13-2 bipartisan vote.
In stark contrast, the substitute bill reported by the
Senate Judiciary Committee does not reflect the same bipartisan
spirit. Following committee referral and during a Judiciary
Executive Business Meeting, a substitute amendment offered by
Senator Leahy was adopted after little debate by a slim 10-9
party-line vote. The Leahy substitute replaced the entire
Intelligence Committee bill and completely disregarded the
delicate compromises contained in the bipartisan bill.
The Leahy substitute, when narrowly approved by the
Democrats on the Judiciary Committee, contained 10 separate
Democratic amendments and no Republican amendments. The
Intelligence Community expressed great concern before the
Judiciary Committee's markup--and indeed continues to express
such concern--with many of the amendments included in the
Judiciary bill. These concerns prompted Attorney General
Mukasey and Director of National Intelligence McConnell to send
a joint letter to the Chairman and Ranking Member of the
Judiciary Committee as well as the Chairman and Vice Chairman
of the SSCI stating, ``If the substitute is part of a bill
which is presented to the President, we and the President's
other senior advisers will recommend that he veto the bill.''
While this letter reflected the views of the Intelligence
Community on the earlier version of the Leahy substitute, most
of these concerns still apply to the substitute as reported,
which contains provisions that could limit intelligence
collection and national security investigations.
Furthermore, three additional Democratic amendments were
adopted via party-line votes during the markup. Some of these
amendments could lead to very serious unintended consequences
for our Intelligence Community, hampering its ability to
protect American citizens from terrorists. For example, one
amendment would prevent the military from monitoring all
electronic communications into and out of foreign cities or
compounds prior to American military invasion. This presents a
risk to the safety of our troops that is simply unacceptable.
The Rockefeller-Bond legislation also contains important
immunity provisions for those telecommunications carriers
alleged to have assisted the U.S. Government after the
September 11th terrorist attacks. During the Judiciary business
meeting, an amendment to strike these immunity provisions was
rejected by a 12-7 bipartisan vote. However, in a move which
nullified the committee's 12-7 vote, Chairman Leahy called for
a subsequent vote on favorably reporting only Title I of the
Leahy substitute, thus striking titles II and III of the
Rockefeller-Bond legislation. This motion passed on a party-
line 10-9 vote. This vote not only removed the retroactive
immunity provisions, but also removed vital procedures for
implementing future statutory defenses, a severability clause,
and procedures for transitioning from the Protect America Act.
This leaves the final bill reported by the Judiciary Committee
with an amalgamation of unworkable and ill-defined procedures
for the Intelligence Community to follow, combined with poor
public policy which could cripple our nation's ability to
effectively gather intelligence and protect our citizens from
harm.
As you know, in order for FISA legislation to successfully
pass the Senate and be enacted into law, it will need
bipartisan support and the backing of those trusted to protect
U.S. interests in the Intelligence Community.
We therefore reiterate our support for the Rockefeller-Bond
legislation as passed by the SSCI. Such support, however,
should not be construed as endorsement of every facet of the
bill, as we recognize that there are significant concerns with
a few provisions in the bill that will need to be addressed on
the Senate floor. However, we remain confident that these
issues can be resolved in a timely manner so that our nation's
intelligence personnel can spend their time protecting
Americans from the forces of evil around the world.
In our opinion the Rockefeller-Bond legislation holds the
greatest promise for bringing the Senate together and getting a
FISA bill enacted swiftly. As you well know, we must act
efficiently and responsibly to ensure that the dedicated men
and women in the Intelligence Community have the tools and
authority they need to effectively collect foreign intelligence
information.
Sincerely,
Lindsey Graham.
Tom Coburn.
Sam Brownback.
Jon Kyl.
Orrin Hatch.
Jeff Sessions.
John Cornyn.
Charles Grassley.
X. Changes to Existing Law Made by the Bill, as Reported
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
