The FISA Amendments Act of 2008

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Mr. Kyl: Mr. President, I also wish to pick up on what our Republican leader has just been talking about: that we can, with bipartisanship, accomplish a great deal in this Senate and that there is no better place to start than on the Foreign Intelligence Surveillance Act. In the Senate, we refer to that by its acronym, FISA, but it needs to be our first important piece of business.

Certainly, our intelligence community, to whom we have given a very big responsibility, needs certainty with respect to its responsibilities and its rights. It needs permanency, not just 1-month extensions. This intelligence community must know the rules of the road. That is why it is so important for us to, within the next week or so, reauthorize the Foreign Intelligence Surveillance Act with a few additional changes to ensure that we can, in fact, collect this intelligence on our enemies.

Theodore Roosevelt once referred to his opportunities in life and said the greatest opportunity was work worth doing. And there is no more work worth doing than ensuring that we can gain the intelligence on the enemy that attacked us in this war.

We are at war, both at home and abroad. These radical militant Islamists have attacked us, and they continue to threaten us. We all know that the best approach to defeating them is good intelligence and that most of that intelligence, by necessity, is collected overseas-- that is why it is called foreign intelligence--and that the basis for the collection of much of this intelligence is the FISA law, or the Foreign Intelligence Surveillance Act. As noted, that act expires next week, and that is why it is important for the Senate to act now and the reason this reauthorization is actually very simple and straightforward and very interesting.

Technology has actually outpaced the law. What we found is that we are now able to collect intelligence in ways that were never understood when the FISA law was first written nearly 30 years ago. As a result, we need to change that law to accommodate the intelligence collection capabilities we have today.

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 our enemy, to the terrorists.

When we enacted the Protect America Act last summer, we regained that capability to collect communications intelligence against al-Qaida by conforming the legal procedures to the technology that is available to us. Let there be no doubt that the collection of this information, as a result of that work, is critical to our Nation's security. In fact, 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."

This is important business. It is work worth doing.

The Intelligence Committee, in a very bipartisan way, crafted an extension of the foreign Intelligence Committee legislation.

The Judiciary Committee, on which I sit, took a much more partisan approach. The Judiciary Committee bill has a lot of flaws that the Intelligence Committee bill does not have. Let me mention a couple of those flaws, suggesting to my colleagues that the bill we should start with as our base bill is the Intelligence Committee bill, not the bill that came out of Judiciary Committee.

One of the things the Judiciary Committee bill does is it includes an "exclusive means" provision that would undermine intelligence gathering directed at foreign terrorist organizations. The provision not only uses vague terms whose mention is unclear, it also appears to preclude use of other intelligence-gathering tools that have already proven to be valuable sources of intelligence about al-Qaida.

As the official Statement of Administration Policy for this bill notes:

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.

Another serious flaw of the Judiciary Committee bill is it has a provision that would limit FISA overseas intelligence gathering--to quote the legislation itself--

… to communications to which at least one party is a specific individual target who is reasonably believed to be outside the United States.

The problem, of course, is it is not always possible to identify such a specific individual in our intelligence collection.

And finally let me respond generally to those who would dismiss or ignore the harm done to our national security by applying layer after layer of bureaucratic hurdles to foreign intelligence investigations. These restrictions, for example, that the Judiciary bill would impose, matter in our agents' ability to collect this intelligence. We know they can undermine critical investigations because we have seen it happen in the past, and let me cite an example that makes this point.

In the 1990s, the Justice Department determined--well, first of all, it imposed this infamous wall that segregated foreign intelligence and criminal investigations. It determined it was necessary to do this to protect constitutional rights, but it went well beyond what the FISA law itself required. These rules were created by individuals, and they prevented criminal and intelligence agents who were chasing after the same suspects from cooperating with each other, even sharing information with each other and with the other agents. So the FBI and the CIA had a very difficult time talking to each other. This was part of the criticism of the 9/11 Commission after that horrible event.

Well, a few years after this wall was built, in the summer of 2001-- note the date, summer 2001--an FBI agent in the Bureau's New York field office became aware that Khalid al-Mihdhar, Nawaf al-Hazmi, and two other bin Laden-related individuals were present in the United States. They were here. This agent knew these men had been at an important al- Qaida meeting in Kuala Lumpur, Malaysia, and instinctively understood they were dangerous. The agent initiated a search for these men and sought the help of criminal investigators who have much greater access to resources for finding people in the United States. This search was probably the best chance the United States had of disrupting or potentially stopping the September 11 attacks.

This FBI agent was literally on the trail of the 9/11 hijackers in the summer of 2001. But what happened when the agent sought to enlist the help of criminal investigators and the full resources of the FBI? Well, the agent ran into this legal wall separating criminal and intelligence investigations, and he was repeatedly told criminal investigators could not aid in the investigation. Finally, after being repeatedly rebuffed in requests for assistance in searching for Khalid al-Mihdhar and the other hijackers, the agent sent the following, disturbingly prophetic, e-mail to FBI headquarters in August 2001. August 2001.

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.

Well, the officials who created the intelligence investigation wall in the 1990s, and who thereby undercut the search for al-Mihdhar and the other hijackers, at least had one excuse. In the summer of 2001, few people appreciated the threat the Nation faced from al-Qaida. Few realized how devastating an al-Qaida terrorist attack could be and how many innocent people could be killed.

Today we have no such excuses. We have already suffered one horrific al-Qaida attack, and we know much worse attacks are possible. We now know what is at stake. Yet despite this knowledge, some in this body are proposing we repeat the mistakes of the past; that we create new walls and other arbitrary legal procedures to the surveillance of al- Qaida. We know from hard experience terrorist plots are hard to detect, and we don't get many chances to stop them. We know what a terrible loss of life a terrorist attack can inflict.

We know if another terrorist attack occurs, there will be multiple reviews and investigations that will identify what went wrong, what opportunities were missed, and who was responsible. Members who are thinking about supporting the Judiciary Committee bill should think hard about the consequences of enacting a set of arbitrary limits on the surveillance of al-Qaida. If that substitute is enacted, it is likely to undermine future critical intelligence investigations, just as the wall between intelligence and criminal investigations undermined the search for the 9/11 hijackers. Future investigations will uncover exactly what went wrong, and we will be held accountable for our actions.

I urge my colleagues to reject the Judiciary Committee substitute and vote to ensure our intelligence agents have the tools they need to confront the threat posed by al-Qaida and other foreign terrorist organizations.

The Presiding Officer: The Senator from Tennessee is recognized.

Mr. Alexander: Mr. President, I wish to congratulate the Senator from Arizona on his thoughtful comments regarding intelligence.

How much time remains?

The Presiding Officer: There are 18 minutes remaining.

Mr. Alexander: Mr. President, I will take half that, and if the Chair will let me know when 2 minutes remain, I will be grateful.