[Congressional Record Volume 158, Number 169 (Friday, December 28, 2012)]
[Senate]
[Pages S8455-S8462]
FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012
The ACTING PRESIDENT pro tempore. The Senate will proceed to the
consideration of H.R. 5949, which the clerk will report.
The assistant legislative clerk read as follows:
A bill (H.R. 5949) to extend the FISA Amendments Act of
2008 for five years.
The ACTING PRESIDENT pro tempore. The Senator from Oregon.
Amendment No. 3439
Mr. WYDEN. I ask unanimous consent to call up my amendment which is
at the desk.
The ACTING PRESIDENT pro tempore. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Oregon [Mr. Wyden], for himself, Mr. Udall
of Colorado, Mr. Lee, Mr. Durbin, Mr. Merkley, Mr. Udall of
New Mexico, Mr. Begich, Mr. Franken, Mr. Webb, Mrs. Shaheen,
Mr. Tester, Mr. Bingaman, Mr. Lautenberg, Mr. Coons, and Mr.
Baucus proposes an amendment numbered 3439.
Mr. WYDEN. Mr. President, I ask unanimous consent the reading of the
amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:
(Purpose: To require a report on the impact of the FISA Amendments Act
of 2008 on the privacy of the people of the United States)
At the end, add the following:
SEC. 5. REPORT ON THE IMPACT OF THE FISA AMENDMENTS ACT OF
2008 ON THE PRIVACY OF THE PEOPLE OF THE UNITED
STATES.
(a) Findings.--Congress makes the following findings:
[[Page S8456]]
(1) The central provision of the FISA Amendments of 2008
(Public Law 110-261; 122 Stat. 2436) enacted section 702 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1881a) which provides the government authority to collect the
communications of persons reasonably believed to be citizens
of foreign countries who are located outside the United
States.
(2) Such section 702 contained restrictions regarding the
acquisition of the communications of United States persons
which were intended to protect the privacy of United States
persons and prevent intelligence agencies from using the
authority in such section to deliberately read or listen to
the communications of specific United States persons without
obtaining a warrant or emergency authorization to do so.
(3) Estimating the total number of communications to or
from the United States collected under the authority in such
section 702 would provide an indication of the degree to
which collection carried out under such section has impacted
the privacy of United States persons.
(4) Estimating the number of wholly domestic communications
collected under the authority in such section 702 would
provide a particularly significant indication of the degree
to which collection carried out under this authority has
impacted the privacy of United States persons.
(5) While Congress did not intend to provide authority in
such section 702 for elements of the intelligence community
to deliberately review the communications of specific United
States persons without obtaining individual warrants or
emergency authorizations to do so, such section 702 does not
include a specific prohibition against this action, and the
people of the United States have a right to know whether
elements of the intelligence community have deliberately
searched through communications collected under such section
702 to find the communications of specific United States
persons.
(6) Despite requests from numerous Senators, the Director
of National Intelligence has declined to state publicly
whether--
(A) any entity has made an estimate of the number of United
States communications that have been collected under such
section 702;
(B) any wholly domestic communications have been collected
under such section 702; or
(C) any element of the intelligence community has attempted
to search through communications collected under such section
702 in a deliberate effort to review the communications of a
specific United States person without obtaining a warrant or
emergency authorization permitting such a search.
(7) In public remarks in July 2012, the Director of the
National Security Agency stated that ``the story that we have
millions or hundreds of millions of dossiers on people is
absolutely false''.
(b) Report.--
(1) Requirement.--Not later than 90 days after the date of
the enactment of this Act, the Director of National
Intelligence shall submit to Congress a report on the impact
of the amendments made by the FISA Amendments Act of 2008
(Public Law 110-261; 122 Stat. 2436) and other surveillance
authorities on the privacy of United States persons.
(2) Content.--The report required by paragraph (1) shall
include the following:
(A) A determination of whether any government entity has
produced any estimate regarding--
(i) the total number of communications that--
(I) originated from or were directed to a location in the
United States; and
(II) have been collected under the authority of section 702
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1881a); or
(ii) the total number of wholly domestic communications
that have been collected under such authority.
(B) If any estimate described in subparagraph (A) was
produced, such estimate.
(C) An assessment of whether any wholly domestic
communications have been collected under the authority of
section 702 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1881a).
(D) A determination of whether any element of the
intelligence community has ever attempted to search through
communications collected under section 702 of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) in a
deliberate effort to find the communications of a specific
United States person, without obtaining a warrant or
emergency authorization to do so.
(E) A determination of whether the National Security Agency
has collected any type of personally identifiable data
pertaining to more than 1,000,000 United States persons.
(c) Form of Report.--
(1) Public availability of report.--The report required by
subsection (b) shall be made available to the public not
later than 15 days after the date such report is submitted to
Congress.
(2) Redactions.--If the President believes that public
disclosure of information in the report required by
subsection (b) could cause significant harm to national
security, the President may redact such information from the
report made available to the public.
(3) Submission to congress.--If the President redacts
information under paragraph (2), not later than 30 days after
the date the report required by subsection (b) is made
available to the public under paragraph (1), the President
shall submit to the Select Committee on Intelligence of the
Senate and the Permanent Select Committee on Intelligence of
the House of Representatives a statement explaining the
specific harm to national security that the disclosure of
such information could cause.
The ACTING PRESIDENT pro tempore. Under the previous order, there
will be 30 minutes of debate, equally divided, prior to the vote on the
Wyden amendment.
Mr. WYDEN. Mr. President, given the events of yesterday, this is the
last opportunity for the next 5 years for the Congress to exercise a
modest measure of real oversight over this intelligence surveillance
law. Here is why. Colleagues, it is not real oversight when the
Congress cannot get a yes or no answer to the question of whether an
estimate currently exists as to whether law-abiding Americans have had
their phone calls and e-mails swept up under the FISA law. That is the
case today.
Colleagues, it is not real oversight when the Congress cannot get a
yes or no answer to the question of whether wholly domestic
communications between law-abiding Americans in this country have been
warrantlessly intercepted under the law. That is the case today.
Colleagues, it is not real oversight when National Security Agency
leadership states in a public forum that the Agency does not keep
dossiers on millions of Americans and yet they will not give the
Congress a yes or no answer as to whether the Agency collects any sort
of data on millions of Americans. That is not the case today.
What this amendment does is it gives us the opportunity to do real
oversight--real oversight--by getting yes or no answers to questions
that have been asked repeatedly by members of the Intelligence
Committee. The amendment, in order to ensure that national security is
protected at an important time in our country's history, gives the
President of the United States unfettered discretion to redact any
information he believes is necessary in order to protect the country's
national security. The amendment does not require any agency to do new
work. We have heard cited repeatedly it would be impossible to do an
estimate on projections that have been discussed in the past. So we
have changed course and we have said all we are seeking is a yes or no
answer to the question of whether an estimate has actually been done.
This is an important time for American security. It will always be an
important time for American security. It is also an important time for
American liberty, and this amendment ensures we can strike the
appropriate balance between protecting our country's well-being and
also protecting the individual liberties we all cherish.
I reserve the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, I rise in opposition to the amendment.
This amendment would require the Director of National Intelligence to
issue a public report within 90 days, assessing the impact of the FISA
Amendments Act and its surveillance authorities on the privacy of U.S.
persons.
That sounds benign, but it is not. The goal of this amendment is to
make information public about a very effective intelligence collection
program that is currently classified. All of the information has
already been made available to the Senate Intelligence and Judiciary
Committees. It is available to all Members. All they have to do is read
it. It is hundreds of pages of material.
Senator Wyden has raised a number of issues that all concern the
potential for surveillance conducted pursuant to authorities to result
in what is called ``incidental collection.'' Section 702 authorizes the
executive branch to go to the FISA Court--that is a Federal court,
Federal district judges appointed by the Chief Justice of the Supreme
Court--and obtain annual approval for the certifications of the
Attorney General and the DNI that identify categories of foreign
targets. These are what I call a program warrant, to conduct
surveillance on non-U.S. persons; in other words, individuals who are
not U.S. citizens or lawful permanent residents who are located outside
the United States.
It is possible there can be some incidental collection of
communications of
[[Page S8457]]
or concerning those who are U.S. persons. This potential for incidental
collection does not mean the intelligence community is intentionally
conducting surveillance on U.S. persons. In fact, doing so would be a
violation of the law.
Here is the key point to understand about incidental collection.
Although the government may, under the right circumstances, be
authorized to retain the communication between--as an example--known
terrorists and a presumptive U.S. person or persons, including the
phone number he relayed to the terrorist, the government cannot place
the U.S. number on surveillance and start collecting the calls to and
from the U.S. number without first obtaining an individual court order
or a warrant. To do so would be to target a U.S. person, which I will
explain is reverse targeting.
Let me answer another common question: Can the government use section
702 to target a U.S. person? This is important. The answer is no. The
law specifically prevents the use of section 702 to direct collection
against U.S. persons. This prohibition is codified in 702(b), which
states that the section may not be used to ``intentionally target any
person known at the time of acquisition to be located in the United
States'' or to ``intentionally target a United States person reasonably
believed to be located inside the United States.''
Another frequent question: Is there a loophole or backdoor that
allows the government to use 702 to target U.S. persons by searching
incidental collection? Answer: No. The Department of Justice, the DNI's
offices, the FBI, and NSA have all advised that limiting the ability of
intelligence analysts to review and analyze information already in the
government's possession under section 702 would make these agencies
less able to respond quickly during a developing terrorist plot.
In sum, review of the information already collected enables the
government to protect against a terrorist attack on this Nation.
Regarding the level of oversight conducted on these authorities, as
of October 7, 2011, the congressional Intelligence and Judiciary
Committees received over 500 pages of information from the Department
of Justice that specifically relate to matters covered by the Wyden
amendment. The Senate Intelligence Committee held a closed hearing in
October 2011 on these issues. The senior Senator from Oregon attended.
These were the issues specifically discussed. In December of 2011, the
congressional Intelligence and Judiciary Committees received in excess
of another 100 pages of material relating to these issues.
We held another closed hearing on February 9, 2012, which the Senator
from Oregon attended, where these issues were discussed. The inspectors
general for the intelligence community and NSA have both provided
classified and unclassified responses to letters written by the Senator
from Oregon and the Senator from Colorado, explaining why it is not
feasible to estimate the number of people inside the United States who
have had their communications collected or reviewed under the
authorities granted by section 702. Finally, the DNI sent a letter in
August on this issue.
Here is the point. If we want to talk about oversight, all of the
information exists, and it is up to Intelligence Committee of the
Senate to do its oversight and Members have to go in and read the
material.
I believe very strongly that what this amendment aims to do is make
public a program that should not be made public at this time. I urge my
colleagues to oppose this amendment.
Finally, I request that a letter from General Alexander, head of the
National Security Agency--which essentially explains remarks he made--
be printed in the Record. I would also like to have the letter to the
general from the Senator from Oregon printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Department of Defense,
National Security Agency,
Fort George G. Meade, MD, Nov. 13, 2012.
Hon. Ron Wyden,
U.S. Senate, Dirksen Senate Office Building,
Washington, DC.
Dear Senator Wyden: Thank you for your letter dated 10
October 2012 concerning issues related to the National
Security Agency's (NSA's) handling of U.S. person
communications. As you know, NSA takes great care to protect
the civil liberties and privacy interests of U.S. persons in
the conduct of its mission.
Your letter requested clarity and further information with
respect to my extemporaneous response to a question posed by
a member of the audience following my formal presentation on
cybersecurity delivered on 27 July 2012, at DEFCON 20. At the
conference, a member of the audience asked me: ``Does NSA
really keep a file on everyone [in the United States] and, if
so, can I see mine?'' I responded: ``Absolutely not. And
anybody who would tell you that we're keeping files or
dossiers on the American people know[s] that's not true and
let me tell you why. First, under our Agency we have a
responsibility. Our job is foreign intelligence.'' I then
gave a short explanation of how we execute our foreign
intelligence mission and the oversight provided by all three
branches of government, including Congress, before
reiterating that ``the story that we have millions or
hundreds of millions of dossiers on people is absolutely
false.'' I referred to the fact that Section 702 of the
Foreign Intelligence Surveillance Act, as amended by the FISA
Amendments Act of 2008 (FAA 702), permits the targeting only
of communications of non-U.S. persons reasonably believed to
be located outside of the United States. Finally, I
highlighted the role served by minimization procedures to
provide additional protection to incidentally collected
communications of U.S. persons.
First, with respect to the reference to minimization
procedures, my response should be understood in the context
in which it was made. I noted at the outset that NSA has a
foreign intelligence mission, and my subsequent reference
focused on the type of circumstance in which U.S. person
information may be disseminated when this foreign
intelligence requirement is not met (e.g., when there is
evidence of a crime). As you are aware, the statutory
requirements for minimization procedures are a matter of
public record:
Section 101(h)(1) of FISA requires that minimization
procedures must be ``reasonably designed . . . to minimize
the acquisition and retention and prohibit the dissemination,
of nonpublicly available information concerning unconsenting
U.S. persons consistent with the need of the United States to
obtain, produce, and disseminate foreign intelligence
information.''
Section 101(h)(2) of FISA requires that ``nonpublicly
available information which is not foreign intelligence
information shall not be disseminated in a manner that
identifies any U.S. person, without such person's consent,
unless such person's identity is necessary to understand
foreign intelligence information or assess its importance.''
Section 101(h)(3) of FISA permits both retention and
dissemination where there is ``evidence of a crime which has
been, is being, or is about to be committed and that is to be
retained or disseminated for law enforcement purposes.''
Section 101(h)(4) of FISA permits disclosure,
dissemination, or use for any purpose or retention for 72
hours, or longer if a determination is made by the Attorney
General, ``if the information indicates a threat of death or
serious bodily harm to any person.''
Second, my response did not refer to or address whether it
is possible to identify the number of U.S. person
communications that may be lawfully but incidentally
intercepted pursuant to foreign intelligence collection
directed against non-U.S. persons located outside the United
States as authorized under FAA 702.
In your letter, you asked for unclassified answers to
several questions that you feel are important to allow the
public to better understand my remarks delivered at the
conference. While I appreciate your desire to have responses
to these questions on the public record, they directly relate
to operational activities and complete answers would
necessarily include classified information essential to our
ability to collect foreign intelligence. Indeed, as you are
aware, these very questions were recently addressed in a
classified letter to you from the Director of National
Intelligence dated 24 August 2012.
Finally, as you are also aware, senior officials from the
Administration, including the Office of the Director of
National Intelligence, the Justice Department, and NSA, have
testified and briefed before the relevant Congressional
committees on multiple occasions over the past year. We have
also conducted numerous sessions with committee staff and
counsel, as well as correspondence and discussions with
individual Senators and Representatives. As a result of the
many briefings, hearings, and other interactions between the
Intelligence Committees and the Administration, there exists
a comprehensive Congressional record relating to all of NSA's
foreign intelligence activities (including information
relevant to the questions you pose).
Again, thank you for your ongoing interest in these issues.
Regardless of differences that may exist on policy issues, I
cannot overstate the importance or value of ongoing
Congressional interest and oversight of NSA's operations,
acting on behalf of the American people. If you have further
questions, please contact me personally or have your staff
contact my Associate Director for
[[Page S8458]]
Legislative Affairs, Ethan L. Bauman, at (301) 688-7246.
Keith B. Alexander,
General, U.S. Army Director, NSA.
____
U.S. Senate,
Washington, DC, October 10, 2012.
General Keith Alexander,
Director, National Security Agency,
Fort Meade, MD.
Dear General Alexander: You spoke recently at a technology
convention in Nevada, at which you were asked a question
about NSA collection of information about American citizens.
In your response. you focused in particular on section 702 or
the FISA Amendments Act of 2008, which the Senate will debate
later this year. In describing the NSA's collection of
communications under the FISA Amendments Act, you discussed
rules for handling the communications of US persons.
Specifically, you said:
We may, incidentally, in targeting a bad guy hit on
somebody from a good guy, because there's a discussion there.
We have requirements from the FISA Court and the Attorney
General to minimize that, which means nobody else can see it
unless there's a crime that's been committed.
We believe that this statement incorrectly characterized
the minimization requirements that apply to the NSA's FISA
Amendments Act collection, and portrayed privacy protections
for Americans' communications as being stronger than they
actually are. We urge you to correct this statement, so that
Congress and the public can have a debate over the renewal of
this law that is informed by at least some accurate
information about the impact it has had on Americans'
privacy.
You also stated, in response to the same question, that ``.
. . the story that we have millions or hundreds of millions
of dossiers on people is absolutely false''. We are not
entirely clear what the term ``dossier'' means in this
context, so we would appreciate it if you would clarify this
remark. Specifically, we ask that you please answer the
following questions:
The intelligence community has stated repeatedly that it is
not possible to provide even a rough estimate of how many
American communications have been collected under the FISA
Amendments Act, and has even declined to estimate the scale
of this collection. Are you certain that the number of
American communications collected is not ``millions or
hundreds of millions''? If so, then clearly you must have
some ability to estimate the scale of this number, or at
least some range in which you believe it falls. If this is
the case, how large could this number possibly be? How small
could I possibly be?
Does the NSA collect any type of data at all on ``millions
or hundreds of millions of Americans''?
Since you made your remarks in an unclassified forum, we
would appreciate an unclassified response to these questions,
so that your remarks can be properly understood by Congress
and the public, and not interpreted in a misleading way.
Additionally, since the Senate will debate this issue during
the November/December 2012 session, please provide your
response by November 13.
If you have any questions concerning this request, please
have your staff contact John Dickas of Senator Wyden's staff,
or Jennifer Barrett of Senator Udall's staff. We appreciate
your attention to this matter and look forward to your prompt
response.
Sincerely,
Ron Wyden.
Mark Udall.
Mrs. FEINSTEIN. I thank the Chair and yield the floor to the vice
chairman for the remainder of my time.
The ACTING PRESIDENT pro tempore. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I oppose Senator Wyden's amendment also
because it imposes an unreasonably burdensome reporting requirement on
the DNI and is inconsistent with the purpose of FISA, which is to
obtain foreign intelligence information. This amendment would require
the diversion of scarce intelligence personnel and resources away from
the identification of foreign intelligence information but, rather, to
assess whether any wholly domestic communications have been
inadvertently collected under FAA authorities. This is an unnecessary
and pointless exercise. The collection system was designed to comply
with FISA's clear prohibition against the intentional collection of
wholly domestic communications.
I will read how specific this is in the law. This is directly out of
section 702, which the amendment seeks to attack. There are limitations
against collection of information under the following guise:
An acquisition authorized under subsection (a)--
Which is to collect information from those located outside the United
States. We:
may not intentionally target any person known at the time of
acquisition to be located in the United States; may not
intentionally target a person reasonably believed to be
located outside the United States if the purpose of such
acquisition is to target a particular, known person
reasonably believed to be in the United States; may not
intentionally target a United States person reasonably
believed to be located outside the United States.
It goes further into detail and is very specific about the fact that
there is no authorization to target U.S. persons.
As the chairman said, it is our duty, as members of the Intelligence
Committee, to do the oversight required to make sure these laws are
complied with, and we do that. We do it in a very deliberate and direct
way by not only having the individuals responsible for the collection
of this information made available to the committee, but it goes all
the way to the top. The individuals who collect it, as well as the
leaders of the intelligence community, come in once a year--and they
will come more often than that if there is a problem we need to
address--and we review this information.
The Senator from Oregon, the distinguished Presiding Officer, members
of the Intelligence Committee, know the type of oversight that is
available to us. So if there is any question about what is done and
whether section 702 is not being complied with, we have the opportunity
to ask the questions.
The amendment by the distinguished Senator from Oregon actually goes
further than what he said was a simple yes-or-no question and requires
that the intelligence community go into great detail on any estimate or
any finding where a U.S. person may have been involved. Is that the
type of information we need for our intelligence community to spend
their time on versus trying to find bad guys around the world? I think
the answer is pretty simple.
As we said yesterday, if there is a problem and the problem is
addressed by the intelligence community and the Intelligence Committees
on both the House and Senate side, it is not abused. If there is a
problem, we fix it. There are minimization procedures that are in place
which address this issue that are used when necessary. If we do our
job, there is absolutely no reason for this amendment--and we do our
job.
The chairman is very diligent in making sure the annual reviews are
set at specific times of the year. Every member of the committee has an
obligation to be at the hearings to ask the tough and right questions.
As far as I know, every member of the committee has done that. We have
provided the right kind of oversight.
I encourage my colleagues to vote against this because it is simply
an unnecessary amendment, and it is the last amendment we have to
consider. As we said over and over yesterday, we have to get this bill
on the desk of the President by December 31, which is 3 days away.
It is important we conclude this morning, that the bill be sent to
the President's desk so we can sign it, and we can continue to provide
the right kind of supervised collection against foreign individuals to
make sure America and Americans are protected.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Colorado.
Mr. UDALL of Colorado. Mr. President, I rise in support of the Wyden
amendment. Before I share my thoughts, I wanted to express my respect
and admiration for the chairwoman and vice chairman of the Senate
Intelligence Committee. They are professional, easy to work with, and
have the security of our people front and center at all times.
As a member of the Senate Intelligence Committee, I have learned a
great deal with respect to our post-9/11 surveillance laws and how they
have been implemented. In the course of my 2 years on the committee, I
have determined there are reforms which need to be made to the FISA
Amendments Act before we renew this important law.
Earlier this year, Senator Wyden and I opposed the bill reported out
of the Senate Intelligence Committee extending the expiration date of
the FISA Amendments Act because we believe Congress does not have an
adequate understanding of the effect this law has had on the privacy of
law-abiding American citizens. In our view it is important for Members
of Congress and the public to have a better understanding of the
foreign intelligence surveillance conducted under the FAA so Congress
can consider whether the law should be modified rather than simply
extended without changes.
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That is the simple purpose of the amendment Senator Wyden, other
colleagues, and I have filed--to make more information available to
Members of Congress and the public so they have a better understanding
of the law and its imitation.
This amendment requires the Director of National Intelligence to
provide information to Congress about the effects of the FISA
Amendments Act on the privacy of America, which is something we all
hold dear. It would require information on whether an estimation has
been conducted of how many U.S. communications have been collected
under the FISA Amendments Act and, if so, how many, whether any wholly
domestic communications have been collected and whether officials have
gone through these communications to conduct warrantless searches for
the phone calls and e-mails of specific Americans.
It would not require the intelligence community to conduct any new
estimates of Americans whose communications may have been collected
under the statute and would give the President full discretion to
redact information from the public version of the report.
I will conclude by restating my belief that the American people need
a better understanding of how the FISA Amendments Act, section 702, in
particular, has affected the privacy of Americans. I also believe we
need new protections against potential warrantless searches for
Americans' communications. I believe that without such reforms,
Congress should not simply extend the law for 5 years.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Oregon.
Mr. WYDEN. I thank my colleague from Colorado. He has been a
wonderful partner in this effort to strike a balance between security
and liberty. I look forward to working with him in the days ahead.
Mr. President, how much time remains on each side?
The ACTING PRESIDENT pro tempore. Proponents have 8 minutes and the
opponents have 2 minutes.
Mr. WYDEN. Mr. President, I say this with the greatest respect to the
distinguished chair of the committee--with whom I have worked
cooperatively on so many issues--that when she said this amendment
seeks to publish names, I would just like to say that is simply and
factually incorrect. In no way, shape or form does this amendment seek
to publish names, and I wish to tell colleagues that if anyone in
connection with this program were to seek to publish names, I would
vigorously oppose that effort. I simply just want to make sure the
Record reflects that.
We have heard by the opponents of this amendment that the
intelligence community has already provided the Congress with lots of
information about the FISA Amendments Act. However, the reality is a
lot more complicated than that. Much of that information is in highly
classified documents that are difficult for most Members to review, and
the reality is most Members literally have no staff who are cleared to
read the documents which have been cited.
So the fact is most Members of Congress don't have staff to help them
deal with these complicated issues so they are--in many particulars--in
the dark about the program, and certainly the 300 million-plus
Americans who expect us to strike that balance between security and
liberty are also in the dark.
I have already noted that the amendment gives the executive branch
unfettered authority to make redactions, and I just want to make sure
every Senator hears the exact language because I think this is as broad
a redaction proposal as I have seen in my service on the committee. The
redaction proposal states: If the President believes that public
disclosure of the report required by this section could cause
significant harm to national security, the President may redact such
information from the report made available to the public.
I hope colleagues who have asked about whether this would endanger
our country and have heard on the floor of the Senate that somehow this
amendment would seek to name names--particularly at a dangerous time--
will see, No. 1, that is not the case; and No. 2, that the President,
as outlined on page 6, has full and unfettered discretion to redact the
report as he sees fit.
I also want to respond to this point that there would be no time for
this to be considered by the other body if we add this modest measure
of oversight. As I understand from the news reporting this morning, the
other body will be meeting on Sunday, so they will be here this
weekend. The other body is perfectly capable of passing an amended
bill, getting it to the President by the end of the month. The
distinguished vice chair and I both served in the other body. We know
that when they are here--particularly on something that just involves a
report--it would be very easy for the other body to pass this and send
it to the President. In fact, the House passed the extension a few
months ago with over 300 votes. So passing it Sunday when the other
body is in session seems to not exactly be a difficult and arduous
task.
What it comes down to is what we define robust congressional
oversight in a program such as this to be. Again, I respectfully say
that without basic information as to whether an estimate even exists--
in response to colleagues--this is not talking about anybody going out
and doing a lot of work. This is a question of either responding
affirmatively or negatively to the question Senator Udall and I have
been asking lo these several years: Does an estimate exist as to
whether or not law-abiding Americans have had their communications
swept up under this law?
There is a reason to be concerned about this because Senator Udall
and I worked very hard to get at least a little bit of information on
this, and we have been able to declassify that there has been a fourth
amendment violation in the past.
I believe that without the information Senator Udall and I have
sought that is behind this amendment--those who say there ought to be
robust congressional oversight of this program ought to reflect on the
fact that without this information which is so essential to do our
work, oversight is not robust, it is toothless--it is toothless--if we
cannot get an answer to the question as to whether an estimate exists
for how many Americans have had their communications swept up.
So I close with this: This is, as the distinguished chair of the
committee said earlier, a critically important time for American
security. Those of us who serve on the committee--and the distinguished
Presiding Officer is part of these briefings--go into the room, and the
doors are locked, and we certainly get significant information about
the threats and the well-being of this country. So it is an important
time for American security. It is also an important time for American
liberty.
To paraphrase Ben Franklin, as I did yesterday, those who give up
their liberty in order to have security really don't deserve either.
The two are not mutually exclusive. We can do both. That is what the
constitutional teeter-totter has always been about--security and well-
being of our country on the one hand and protecting our liberties on
the other.
What Senator Udall and I contend this morning is that without access
to information about critical questions such as whether an estimate
even exists as to how many law-abiding Americans have had their
communications swept up under FISA, we can't answer the question as to
whether the constitutional teeter-totter is in balance. So I hope my
colleagues will vote for this amendment given the events of yesterday.
I say to my colleagues that this will be the last opportunity--the
last opportunity for 5 years--to exercise some modest measure of real
oversight over this program. I hope my colleagues on a bipartisan basis
will support this amendment.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from California.
Mrs. FEINSTEIN. Mr. President, we have how many minutes?
The ACTING PRESIDENT pro tempore. There is 2\1/2\ minutes remaining.
Mrs. FEINSTEIN. I will use 1 minute.
The fact is, we do an intelligence authorization bill every year. If
there is a need to change the law, we can change it there, so this
isn't the last opportunity to effect any change on the FISA Amendments
Act for 5 years. I believe that it is the last opportunity to see that
this program continues on without interruption.
[[Page S8460]]
I would also point out that one of the areas in which the
administration has really made an effort is to bring leaders of the
Intelligence Community--whether it is the DNI or representatives from
the Department of Justice--to the Hill and explain to individual
Members how this program works.
With respect to the classified material, any Member has access to it;
any Member can go up and read this material. The staff of the
Intelligence Committee, which helps us conduct this oversight, can read
this material. The Members of the Intelligence Committee can read this
material. As chairman, if someone finds an irregularity, I am happy to
look at it, to have a hearing on it. But to adopt this amendment that
would change this program at this time has my very strong opposition. I
urge a ``no'' vote.
I yield to the vice chairman.
The ACTING PRESIDENT pro tempore. The Senator from Georgia.
Mr. CHAMBLISS. Mr. President, I would echo what the chairman said--
that the very well trained, dedicated staff of the Intelligence
Committee is available to assist any Member in reviewing the classified
information that is the subject of section 702. That is why they are
there. The Senator from Oregon is right. Every Member of Congress
doesn't have that highly trained, top-secret staff member, and there
are reasons for that. There are reasons why the Intelligence Committee
members do have those types of staffers. Those staffers are available
at any time for discussion of this issue or, for that matter, any other
issue relative to national security that is within the purview of the
Intelligence Committee.
So I again say that this amendment is simply totally unnecessary
because there are specific and direct prohibitions in the law as well
as in court decisions that do not allow our respective intelligence
community agencies to listen in or review e-mails or whatever on U.S.
citizens unless it is under some sort of court order where probable
cause must be shown.
We need to make sure we are equipping our intelligence community
agents with every single tool necessary to combat terrorists around the
world. This section is critical to doing that. I urge a vote against
the amendment.
Mrs. FEINSTEIN. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There appears to be a sufficient second.
Under the previous order, the question is on agreeing to amendment
No. 3439 offered by the Senator from Oregon, Mr. Wyden.
The yeas and nays have been ordered.
The clerk will call the roll.
The assistant bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer),
the Senator from New Jersey (Mr. Lautenberg), and the Senator from
Missouri (Mrs. McCaskill) are necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. DeMint) and the Senator from Illinois (Mr.
Kirk).
The PRESIDING OFFICER (Mrs. Hagan). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 43, nays 52, as follows:
[Rollcall Vote No. 235 Leg.]
YEAS--43
Akaka
Baucus
Begich
Bennet
Bingaman
Blumenthal
Brown (OH)
Cantwell
Cardin
Carper
Casey
Conrad
Coons
Durbin
Franken
Gillibrand
Grassley
Harkin
Heller
Klobuchar
Landrieu
Leahy
Lee
Levin
Manchin
Menendez
Merkley
Murkowski
Murray
Nelson (NE)
Paul
Reed
Reid
Sanders
Schatz
Shaheen
Stabenow
Tester
Toomey
Udall (CO)
Udall (NM)
Webb
Wyden
NAYS--52
Alexander
Ayotte
Barrasso
Blunt
Boozman
Brown (MA)
Burr
Chambliss
Coats
Coburn
Cochran
Collins
Corker
Cornyn
Crapo
Enzi
Feinstein
Graham
Hagan
Hatch
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Kohl
Kyl
Lieberman
Lugar
McCain
McConnell
Mikulski
Moran
Nelson (FL)
Portman
Pryor
Risch
Roberts
Rockefeller
Rubio
Schumer
Sessions
Shelby
Snowe
Thune
Vitter
Warner
Whitehouse
Wicker
NOT VOTING--5
Boxer
DeMint
Kirk
Lautenberg
McCaskill
The PRESIDING OFFICER. Under the previous order requiring 60 votes
for the adoption of this amendment, the amendment is rejected.
The bill (H.R. 5949) was ordered to a third reading and was read the
third time.
Mr. UDALL of New Mexico. Madam President, I rise today to express my
longstanding concerns about the FISA Amendments Act of 2008. We are
being asked to extend the sunset provisions in the Act until 2017.
Without adoption of the amendments to include additional privacy
protections and oversight requirements, I cannot support an extension.
We all appreciate the dedicated work of the intelligence community.
They have a big job in keeping us safe. But we also have to protect the
constitutional rights of American citizens. That goes to the heart of
who we are. Of what our country stands for. These aims are not
contradictory. We can do both. And we must do both.
The FISA Amendments Act of 2008 gave broad powers to the intelligence
community. Too broad, for some of us. I was one of the minority votes
in the House against FISA. It allows a very wide net to search phone
calls and emails of foreigners outside of the United States.
We knew then, and we know now, that net would also scoop up the
private communications of American citizens. The challenge was clear.
Go after the bad guys. But do not violate the privacy of the American
people. So the Act contained specific limitations.
Now, 4 years later, we are asking a basic question. Have those
limitations worked? And the answer is--we really do not know.
This uncertainty is not for lack of trying. We have tried to get
answers. Numerous times. But the information is still lacking.
Intelligence officials have said they are unable to tell us how many
U.S. communications have been collected under FISA authority. Not an
actual number. Not an exact number. Not even an estimate.
Plain and simple--we need more information. How else can we evaluate
this policy? The American public has a right to know. And needs to
know. How many Americans are affected by FISA? Are existing privacy
protections working? Are they too weak? Do they need to be
strengthened? These are vital questions. They need to be answered. And
so far they have not been.
That is why the amendments that have been offered are so important.
These amendments are intended to strengthen privacy protections of
American citizens and to improve congressional oversight. These
amendments will improve FISA. And they deserve bipartisan support.
I want to emphasize my support for Senator Wyden's amendment that we
will vote on this morning. The amendment would require the Director of
National Intelligence to report to Congress on the impact of FISA. And
provide specific information. In particular, how many U.S.
communications have been collected under the Act? Have there been
deliberate attempts to search the phone calls or emails of individual
Americans? Without obtaining a warrant or emergency authorization?
The Director's report would be available to the public. And the
President could withhold public disclosure of any information necessary
to national security. This amendment will not compromise national
security. But it will help protect the rights of American citizens.
As Senator Wyden stated on the floor yesterday, several of us sent
letters to Director Clapper requesting this information, but have not
received an adequate response. The Wyden amendment would ensure that
Congress has the information we need to make an informed decision about
whether to extend future sunset provisions.
The war on terrorism that began after the 9/11 attacks has continued
for over 10 years. During that time, Congress has passed laws,
including the PATRIOT Act and FISA Amendments Act, which gave sweeping
new authorities to law enforcement and the intelligence community.
I know we must protect the Nation from future attacks. But there must
[[Page S8461]]
also be a balance--we cannot give up our constitutional protections in
the name of security. I voted against the PATRIOT Act and FISA
Amendments Act because I believed they were not balanced--they unduly
infringed on the guaranteed rights of our citizens.
As I said, we all value the work of our intelligence community. Their
efforts are vital to our Nation's security. But, I believe these
amendments are crucial. We can protect our citizens without trampling
their constitutional rights.
Unfortunately, none of the amendments we voted on yesterday were
adopted. But the main argument I heard against them was not on the
substance of the amendments. It was that we do not have time to amend
the bill and send it back to the House. The Chair and Vice-chair argued
that we must pass the House bill without amendment and get it to the
President before the provisions expire.
This is not how the ``world's greatest deliberative body'' should
function. It is one more example of why we need to reform our rules so
that we are not constantly mired in procedural gridlock. Rather than an
11th hour passage of the House bill, we should have had a real
opportunity to debate and amend the Senate bill that came out of
committee over 5 months ago.
The PRESIDING OFFICER. The question is on passage of the bill.
Mrs. FEINSTEIN. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There is a
sufficient second.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer)
and the Senator from New Jersey (Mr. Lautenberg) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. DeMint) and the Senator from Illinois (Mr.
Kirk).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 73, nays 23, as follows:
[Rollcall Vote No. 236 Leg.]
YEAS--73
Alexander
Ayotte
Barrasso
Bennet
Blumenthal
Blunt
Boozman
Brown (MA)
Burr
Cardin
Carper
Casey
Chambliss
Coats
Coburn
Cochran
Collins
Conrad
Corker
Cornyn
Crapo
Enzi
Feinstein
Gillibrand
Graham
Grassley
Hagan
Hatch
Heller
Hoeven
Hutchison
Inhofe
Isakson
Johanns
Johnson (SD)
Johnson (WI)
Kerry
Klobuchar
Kohl
Kyl
Landrieu
Levin
Lieberman
Lugar
Manchin
McCain
McCaskill
McConnell
Mikulski
Moran
Nelson (NE)
Nelson (FL)
Portman
Pryor
Reed
Reid
Risch
Roberts
Rockefeller
Rubio
Schumer
Sessions
Shaheen
Shelby
Snowe
Stabenow
Thune
Toomey
Vitter
Warner
Webb
Whitehouse
Wicker
NAYS--23
Akaka
Baucus
Begich
Bingaman
Brown (OH)
Cantwell
Coons
Durbin
Franken
Harkin
Leahy
Lee
Menendez
Merkley
Murkowski
Murray
Paul
Sanders
Schatz
Tester
Udall (CO)
Udall (NM)
Wyden
NOT VOTING--4
Boxer
DeMint
Kirk
Lautenberg
The PRESIDING OFFICER. Under the previous order requiring 60 votes
for passage of the bill, the bill (H.R. 5949) is passed.
Mrs. FEINSTEIN. Madam President, I thank my colleagues for their
coming to the floor over the past 2 days for a good debate on the
reauthorization of the FISA Amendments Act, which the Senate approved
today by a vote of 73-23.
As I described a number of times during this debate, this electronic
surveillance tool is among the most important intelligence collection
measures we have for identifying and thwarting terrorist plots, as well
as stopping proliferation of weapons of mass destruction, cyber attacks
against the United States, and for intelligence collection to advise
policy decisions. Authorizing the statute for another 5 years will put
the Nation's intelligence community on strong ground.
I also would like to reiterate the offer I made during the debate to
make sure that any Senator interested in getting additional, classified
information on the FISA Amendments Act can get that information. In
particular, I look forward to working with Senator Merkley to see that
significant decisions of the FISA Court--or summaries of those
decisions--are reviewed and made public in a way that does not
compromise classified information. I also will work with Senator Leahy,
the chairman of the Judiciary Committee, to seek any additional reviews
by the relevant inspectors general to complement the oversight that is
already done every year on FISA programs. I will continue to work with
Senators Wyden and Udall on the committee to help pursue their
oversight requests and interests.
Lastly, but very importantly for me, I would like to thank the staff
who have worked over the past four years to conduct oversight of the
FISA Amendments Act and who worked to get this legislation approved.
Their work includes countless hours of meetings with officials from the
Office of the Director of National Intelligence, the Department of
Justice, the National Security Agency, and the Federal Bureau of
Investigation, and even more time reading and analyzing reports,
answers, and communications from those departments and agencies.
On the staff of the Senate Select Committee on Intelligence, I would
like to note first and foremost the dedicated efforts and counsel of
Christine Healey, the committee's general counsel, and Eric Losick,
counsel on the majority side who have been my main advisors on this
legislation. I also appreciate their Republican counterparts, Jack
Livingston and Kathleen Rice, with whom we have worked closely and
collaboratively in this effort.
My appreciation as well goes to Mike Buchwald, my designee on the
committee, for his tireless staff work; to Mike Davidson, who was the
committee's general counsel during part of this past 4 year period and
who set the structure of the committee's ongoing oversight; and to
David Grannis, the committee's staff director.
Finally, I deeply appreciate the efforts of the majority leader's
people and the floor staff--Tommy Ross, Serena Hoy, Gary Myrick, Tim
Mitchell, and Tricia Engle--who got this bill to the floor before the
expiration of the FISA Amendments Act and who helped guide it through
to passage.
Thanks to the Senate's vote today, this critical intelligence tool
will continue to be available to the Nation's intelligence community.
The Senate's oversight of it will continue as well, as I intent to
continue the committee's careful review of the program for the next 5
years.
Mr. REED. Madam President, major terrorist threats still exist, and
it is critical that we do all we can to protect Americans, not only in
terms of national security, but also in terms of civil liberties. In
voting today to extend the FISA Amendments Act, FAA, for 5 years, I
made a difficult judgment as there are still major outstanding
concerns. In trying to address these concerns, I supported three
amendments that would have made important improvements.
The first was Senator Leahy's amendment, which sought to align the
FAA sunset with the Patriot Act sunset so that both of these national
security laws could be evaluated together prior to their expiration.
Additionally, this amendment required a comprehensive review of FAA
surveillance by the Inspector General of the intelligence community to
address privacy concerns that have been raised.
I also supported Senator Merkley's amendment, which would have
increased transparency by requiring the Attorney General, in a manner
consistent with the protection of national security, to make publicly
available Foreign Intelligence Surveillance Court decisions that
include a significant construction or interpretation of the law.
Finally, I voted in favor of Senator Wyden's amendment, which would
have required the Director of National Intelligence to submit a report
to Congress and the public on the impact of FAA on the privacy of
American citizens, while preserving the President's ability to make
necessary redactions.
[[Page S8462]]
I am disappointed that these amendments, which all call for greater
accountability and transparency, were unsuccessful.
In 2008, I largely objected to the FAA because I had serious concerns
about granting retroactive immunity to telecommunications companies for
actions they may or may not have taken in response to administration
requests that may or may not have been legal. Because these immunity
provisions are not subject to a sunset, they are not at issue with
today's vote.
I ultimately decided to vote in favor of extending FAA for 5 years
because, as I noted earlier, major threats still exist. However, I did
so reluctantly. We should have considered an FAA extension months ago
without the threat of FAA expiration in mere days. Protecting Americans
means that we must balance ensuring our national security with
preserving our civil liberties, and I will continue to work with my
colleagues to ensure that this balance is struck.
____________________
