The Presiding Officer: The Senator from Pennsylvania is recognized.
Mr. Specter: Mr. President, I have sought recognition to comment about the pending legislation on the Foreign Intelligence Surveillance Act and the so-called Leahy substitute. We are engaged here in the continuation of a historic debate. Confronted by terrorism on 9/11, the response has been made to legislate on the PATRIOT Act and the Protect America Act, in order to deal effectively with the terrorists. At the same time, there is great concern that there be an appropriate balance. While it is indisputable that our first duty is to protect America, it is also equally fundamental that the constitutional protections have to be kept in mind at all times, and it requires a balance.
The beauty of the Constitution is the doctrine of separation of powers, so that no one branch has too much. This has been a classic confrontation of the executive asserting its authority under article II, and disregarding statutes, such as the Foreign Intelligence Surveillance Act, disregarding the statutory requirement that the Members of the House and Senate Intelligence Committees be informed of activities like electronic surveillance, with the President asserting that authority under article II, saying that it supercedes a statute.
Congress has been ineffective on congressional oversight. The courts have filled the void, undertaking very significant action. A key part of what we are considering here today is whether there will be jurisdiction stricken on the pendency of many cases in the Federal courts challenging what the telephone companies have allegedly done or whether there will be continued access to the courts. It is my view, for reasons which I will amplify in the course of this floor statement, that there can be an accommodation to keep the courts open and to allow the electronic surveillance to continue. That can be accomplished by an amendment Senator Whitehouse and I intend to offer later today or perhaps tomorrow--at the first opportunity we have--where the litigation against the telephone companies would proceed, but the U.S. Government would be substituted as the party defendant.
There is no doubt that the telephone companies have been good citizens in whatever it is they have done. Yet there is nothing on the record as to what really happened. Whatever it is they have done, the indicators are that they have been good citizens, although, in the course of having the Federal Government substituted for the telephone companies, there will have to be evidence of compliance with the governmental request, a compliance in good faith.
The likelihood of verdicts being rendered, I think, in my legal judgment, is very remote. But that doesn't eliminate the requirement and the practice of keeping the courts open to make that determination.
The Specter-Whitehouse substitution amendment will place the Government in the shoes of the telephone companies to have the same defenses--no more and no less. For example, the doctrine of governmental immunity would not be available to the Government. There have been those who have criticized the Specter-Whitehouse amendment, who have ignored the very basic proposition that the suits cannot be dismissed because of governmental immunity.
On the other hand, by the same token, the state secrets defense will be available. In the lawsuits that are being prosecuted now against the telephone companies, the government has intervened to assert the state secrets doctrine. In fact, the Government has precluded the telephone companies from saying very much under that doctrine. When the Government is substituted for the telephone companies, the Government will retain the defense of the state secrets doctrine.
Before going into the body of the argument in support of the Specter- Whitehouse substitute approach, I wish to comment briefly on the substitute offered by the Judiciary Committee and by our distinguished chairman, Senator Leahy, as the pending business.
I begin by commending Senator Leahy for his work on the committee. For many years, we have worked together. His work as chairman has been exemplary, and there have been improvements that have been made by the modified Leahy substitute. Improvements have been made in that it clarifies that when surveillance occurs overseas, the FISA Court's role is limited to assessing probable cause and not the means of collection. It has further been improved by extending the length of emergency surveillance to conform to the Intelligence Committee bill's 7 days instead of 3 days. It has been improved by eliminating certain language criticized by the administration--and I think justifiably--as being overly broad. But it does retain the basic concept that the Foreign Intelligence Surveillance Act is the exclusive statutory procedure. So you preempt the Government argument that the Authorization for the Use of Military Force preempts and supersedes FISA. That argument has been made by the administration. I think it is a vacuous argument. In any event, this legislation would restate the proposition that the AUMF, or legislation like that, would not supersede FISA.
The substitute offered by the distinguished chairman also has a change which allows the continuation of surveillance pending en banc review by the Foreign Intelligence Surveillance Court. It also improves a provision calling for an inspector general review of the terrorist surveillance program.
I think, in essence, the substitute provision Senator Leahy has offered is an improvement over the prior bill. I regret that I cannot support it because it leaves out the provision with respect to immunity. While I do not like the provision with respect to immunity and think we can improve upon it, as I have said, by the approach of substituting the Federal Government for the telephone companies, I believe it is important to keep protecting the telephone companies in the picture and to benefit from the activities which they are undertaking. Therefore, I will not be able to support the substitute offered by Senator Leahy.
It is my hope that the Specter-Whitehouse amendment will be adopted, substituting the Government. If that fails, then with reluctance I will support retroactive immunity. To repeat, I think that is not the preferable course.
In dealing with the fundamental proposition of keeping the courts open, we have had an extended history in the past 2 or 3 years of the ineffectiveness of dealing with the expanded executive authority with congressional oversight. The PATRIOT Act reauthorization came out of the Judiciary Committee in 2005. I chaired it and was managing the bill on the floor of the Senate back in mid-December of 2005. I was very surprised that morning to read in the New York Times that the Federal Government had been undertaking the terrorist surveillance program without notifying the Intelligence Committees, as required by the National Security Act of 1947, and without notifying the chairman or ranking member of the Judiciary Committee. That was more than a surprise; it was a shock.
We were nearing the end of the consideration of the PATRIOT Act reauthorization, and all of the indicators were that we would get it passed. Some appeared on the floor of the Senate that day to say that they had intended to support the PATRIOT Act reauthorization, but no longer, in light of the fact that there had been the terrorist surveillance program, unknown to Congress, in violation of the Foreign Intelligence Surveillance Act and in violation of the National Security Act of 1947.
Now, it may be that the President was correct in asserting that he had article II power under the Constitution. If the President did have power under article II as Commander in Chief, then such power could not be reduced by legislation. That is a basic constitutional principle. But the determination of that really doesn't reside with the President alone.
I then introduced legislation to bring the terrorist surveillance program under the Foreign Intelligence Surveillance Court. I will not take the time now to go through the lengthy efforts made in that regard. Suffice it to say that congressional oversight was not satisfactory. Where there has been a conflict between the Congress and the White House, the tools available to the White House have rendered the congressional oversight ineffective. When the Judiciary Committee has issued subpoenas, the subpoenas have been ignored by the White House, and the enforcement procedures are insufficient, really nugatory.
In the first place, if litigated, they take at least 2 years to have a judicial decision. The law requires the U.S. attorney for the District of Columbia to bring the action. The U.S. attorney for the District of Columbia is part of the executive branch, and some in the Department of Justice have said forget about having the action brought. It is theoretically possible to have a contempt citation on the floor of the Senate, but it is a practical impossibility. So the efforts at enforcement of congressional oversight through the subpoena process has been to no avail.
On the other hand, the courts have been effective. When the issue has arisen as to the detention at Guantanamo, the Supreme Court of the United States said in Hamdan that the Geneva Conventions applied, and in Rasul that habeas corpus was in effect, notwithstanding the fact Guantanamo was outside the territorial limit of the United States because the U.S. Government controlled Guantanamo.
Where the Congress has responded with legislation, the issue is now before the Supreme Court of the United States again in the Boumediene case. The courts have been effective in asserting a balance, in asserting constitutional governance. A whole series of court cases have shown the effectiveness of the courts. For instance, in the Hepting case that is pending on the terrorist surveillance program, the district court rejected a blanket application of the state secrets doctrine. In the Padilla case, the Supreme Court's decision to take up the case led the government to file criminal charges. A New York case involving the national security letters, Doe v. Gonzalez, found that certain NSL gag orders were unconstitutional in light of the First Amendment.
The Hamdan case involved a detainee by the U.S. Government. There the Supreme Court held that the President does not have a blank check to deal with detainees and that Congress had a role to play.
In the Al-Haramain case, the Terrorist Surveillance Program was litigated by an Islamic charity that allegedly had a TSP derived transcript. The case Ninth Circuit decision upheld the government's assertion of the state secrets doctrine in that case.
I do not go into great length on these judicial decisions but to note that when the court issues a order and insists on witnesses being presented on pain of having the case dismissed or on pain of having adverse action taken against the party who doesn't follow the court order, the courts have been effective. That is why, on a constitutional balance, I think it is very important not to foreclose action by the courts, not to, in effect, strip the Federal courts of jurisdiction of the many pending cases which have been brought against the telephone companies, and it can be done in a practical way, preserving the importance of law enforcement activities for whatever it is the telephone companies are doing by substituting the Federal Government as the party defendant.
I am especially concerned about this issue in the context of what occurred back in June of 2006, when the Judiciary Committee, while I was chairing it, was trying to exercise congressional oversight, assert a constitutional balance with the executive branch, and we were unsuccessful for a variety of reasons. Where the Federal Government had the defense of executive privilege, it was impossible to move effectively on congressional oversight. But when it became known about the alleged activities of the telephone companies, I sought, as chairman, to have subpoenas issued. The Vice President then contacted Republican members of the Judiciary Committee, in effect, behind my back--the protocol is to call the chairman first; if not to call the chairman first, to call the chairman sometime--leading me to write a letter, dated June 7, 2006.
I ask unanimous consent to have printed in the Record at the conclusion of my remarks this letter, dated June 7, 2006.
The Presiding Officer (Mr. Tester): Without objection, it is so ordered.
(See exhibit 1.)
Mr. Specter: Mr. President, I did not like sending the Vice President a lawyer's letter, three pages, single spaced. It starts off--and I will read a short paragraph:
Dear Mr. Vice President, I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the administration of my own party, but I do so because of their importance.
And then I go into the issues of the expansion of executive authority in many directions, the refusal of the executive branch to accommodate legitimate congressional oversight, and complain about the Vice President's activities in contacting Republican members of the Judiciary Committee.
To have the record complete, Mr. President, I ask unanimous consent to have printed in the Record at the conclusion of my remarks the Vice President's response to me, dated June 8, 2006.
The Presiding Officer: Without objection, it is so ordered.
(See exhibit 2.)
Mr. Specter: Mr. President, with that background, there is a particular sensitivity on my part to having retroactive immunity which I think would be an open invitation in the future for the executive branch to continue to ignore the statutes as the executive branch apparently ignored the Foreign Intelligence Surveillance Act that sets the exclusive way of getting wiretapping, a statement of probable cause to a judge, to ignore the National Security Act of 1947 in failing to notify the Intelligence Committees of the House and Senate as mandated, positively required, under that statute, to ignore that under the assertion of article II power. But the judicial branch of Government is the ultimate arbiter. To move to close the courts is a very serious and unwise step, especially when the objective can be retained of the law enforcement tools and having the litigation continue, of having the U.S. Government as the party defendant. I don't believe there will be verdicts against the Government, but if there are, it is part of the cost of doing business, part of the cost of fighting terrorism, and it ought to be borne by the U.S. Government, as opposed to being borne by the telephone companies which presumably have been good citizens, something they have to establish under the Specter-Whitehouse amendment to have the Government step in as a substitute.
Where we stand at the present time is on the substitute offered by the distinguished chairman. Again, I compliment him for the work he is doing generally and specifically about our Judiciary Committee activities on the Foreign Intelligence Surveillance Act. I have noted a number of particulars where I think Senator Leahy's revised substitute has made improvements. To repeat, I regret I cannot support it because it leaves out the immunity provision. Again, I do not like the immunity provision and think we can improve it with the Specter-Whitehouse amendment. But if I am unsuccessful on that, then I will have to, at least speaking for myself, swallow the retroactive immunity provision on a balance of my own judgment as to the importance of having that kind of electronic surveillance, whatever it is, go forward, even with the retroactive immunity.
It is my hope, when we consider the ramifications, that we can command the majority in this body, work through the legislation with the House of Representatives, and find a way to allow the Government to have the advantages of the electronic surveillance but not foreclose the courts by the remedy of having the Government substituted as the party defendant.
I yield the floor.
U.S. Senate,
Committee on the Judiciary,
Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.
Dear Mr. Vice President: I am taking this unusual step in writing to you to establish a public record. It is neither pleasant nor easy to raise these issues with the Administration of my own party, but I do so because of their importance.
No one has been more supportive of a strong national defense and tough action against terrorism than I. However, the Administration's continuing position on the NSA electronic surveillance program rejects the historical constitutional practice of judicial approval of warrants before wiretapping and denigrates the constitutional authority and responsibility of the Congress and specifically the Judiciary Committee to conduct oversight on constitutional issues.
On March 16, 2006, I introduced legislation to authorize the Foreign Intelligence Surveillance Court to rule on the constitutionality of the Administration's electronic surveillance program. Expert witnesses, including four former judges of the FISA Court, supported the legislation as an effective way to preserve the secrecy of the program and protect civil rights. The FISA Court has an unblemished record for keeping secrets and it has the obvious expertise to rule on the issue. The FISA Court judges and other experts concluded that the legislation satisfied the case-in- controversy requirement and was not a prohibited advisory opinion. Notwithstanding my repeated efforts to get the Administration's position on this legislation, I have been unable to get any response, including a "no".
The Administration's obligation to provide sufficient information to the Judiciary Committee to allow the Committee to perform its constitutional oversight is not satisfied by the briefings to the Congressional Intelligence Committees. On that subject, it should be noted that this Administration, as well as previous Administrations, has failed to comply with the requirements of the National Security Act of 1947 to keep the House and Senate Intelligence Committees fully informed. That statute has been ignored for decades when Presidents have only informed the so-called "Gang of Eight," the Leaders of both Houses and the Chairmen and Ranking Members on the Intelligence Committees. From my experience as a member of the "Gang of Eight" when I chaired the Intelligence Committee of the 104th Congress, even that group gets very little information. It was only in the face of pressure from the Senate Judiciary Committee that the Administration reluctantly informed subcommittees of the House and Senate Intelligence Committees and then agreed to inform the full Intelligence Committee members in order to get General Hayden confirmed.
When there were public disclosures about the telephone companies turning over millions of customer records involving allegedly billions of telephone calls, the Judiciary Committee scheduled a hearing of the chief executive officers of the four telephone companies involved. When some of the companies requested subpoenas so they would not be volunteers, we responded that we would honor that request. Later, the companies indicated that if the hearing were closed to the public, they would not need subpoenas.
I then sought Committee approval, which is necessary under our rules, to have a closed session to protect the confidentiality of any classified information and scheduled a Judiciary Committee Executive Session for 2:30 P.M. yesterday to get that approval.
I was advised yesterday that you had called Republican members of the Judiciary Committee lobbying them to oppose any Judiciary Committee hearing, even a closed one, with the telephone companies. I was further advised that you told those Republican members that the telephone companies had been instructed not to provide any information to the Committee as they were prohibited from disclosing classified information.
I was surprised, to say the least, that you sought to influence, really determine, the action of the Committee without calling me first, or at least calling me at some point. This was especially perplexing since we both attended the Republican Senators caucus lunch yesterday and I walked directly in front of you on at least two occasions enroute from the buffet to my table.
At the request of Republican Committee members, I scheduled a Republican members meeting at 2:00 P.M. yesterday in advance of the 2:30 P.M. full Committee meeting. At that time, I announced my plan to proceed with the hearing and to invite the chief executive officers of the telephone companies who would not be subject to the embarrassment of being subpoenaed because that was no longer needed. I emphasized my preference to have a closed hearing providing a majority of the Committee agreed.
Senator Hatch then urged me to defer action on the telephone companies hearing, saying that he would get Administration support for my bill which he had long supported. In the context of the doubt as to whether there were the votes necessary for a closed hearing or to proceed in any manner as to the telephone companies, I agreed to Senator Hatch's proposal for a brief delay on the telephone companies hearing to give him an opportunity to secure the Administration's approval of the bill which he thought could be done. When I announced this course of action at the full Committee Executive Session, there was a very contentious discussion which is available on the public record.
It has been my hope that there could be an accommodation between Congress's Article I authority on oversight and the President's constitutional authority under Article II. There is no doubt that the NSA program violates the Foreign Intelligence Surveillance Act which sets forth the exclusive procedure for domestic wiretaps which requires the approval of the FISA Court. It may be that the President has inherent authority under Article II to trump that statute but the President does not have a blank check and the determination on whether the President has such Article II power calls for a balancing test which requires knowing what the surveillance program constitutes.
If an accommodation cannot be reached with the Administration, the Judiciary Committee will consider confronting the issue with subpoenas and enforcement of that compulsory process if it appears that a majority vote will be forthcoming. The Committee would obviously have a much easier time making our case for enforcement of subpoenas against the telephone companies which do not have the plea of executive privilege. That may ultimately be the course of least resistance.
We press this issue in the context of repeated stances by the Administration on expansion of Article II power, frequently at the expense of Congress's Article I authority. There are the Presidential signing statements where the President seeks to cherry-pick which parts of the statute he will follow. There has been the refusal of the Department of Justice to provide the necessary clearances to permit its Office of Professional Responsibility to determine the propriety of the legal advice given by the Department of Justice on the electronic surveillance program. There is the recent Executive Branch search and seizure of Congressman Jefferson's office. There are recent and repeated assertions by the Department of Justice that it has the authority to criminally prosecute newspapers and reporters under highly questionable criminal statutes.
All of this is occurring in the context where the Administration is continuing warrantless wiretaps in violation of the Foreign Intelligence Surveillance Act and is preventing the Senate Judiciary Committee from carrying out its constitutional responsibility for Congressional oversight on constitutional issues. I am available to try to work this out with the Administration without the necessity of a constitutional confrontation between Congress and the President.
Sincerely,
Arlen Specter.
The Vice President,
Washington, DC, June 8, 2006.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This is in response to your letter of June 7, 2006 concerning the Terrorist Surveillance Program (TSP) the Administration has described. The commitment in your letter to work with the Administration in a non- confrontational manner is most welcome and will, of course, be reciprocated.
As recently as Tuesday of this week, I reiterated that, as the Administration has said before, while there is no need for any legislation to carry out the Terrorist Surveillance Program, the Administration will listen to the ideas of legislators about terrorist surveillance legislation and work with them in good faith. Needless to say, that includes you, Senator DeWine and others who have ideas for such legislation. The President ultimately will have to make a decision whether any particular legislation would strengthen the ability of the Government to protect Americans against terrorists, while protecting the rights of Americans, but we believe the Congress and the Administration working together can produce legislation to achieve that objective, if that is the will of the Congress.
Having served in the executive branch as chief of staff for one President and as Secretary of Defense for another, having served in the legislative branch as a Representative from Wyoming for a decade, and serving now in a unique position under the Constitution with both executive functions and legislative functions, I fully understand and respect the separate constitutional roles of the Congress and the Presidency. Under our constitutional separation between the legislative powers granted to Congress and the executive power vested exclusively in the Presidency, differences of view may occur from time to time between the branches, but the Government generally functions best when the legislative branch and the executive branch work together. And I believe that both branches agree that they should work together as Congress decides whether and how to pursue further terrorist surveillance legislation.
Your letter addressed four basic subjects: (1) the legal basis for the TSP; (2) the Administration position on legislation prepared by you relating to the TSP; (3) provision of information to Congress about the TSP; and (4) communications with Senators on the Judiciary Committee about the TSP.
The executive branch has conducted the TSP, from its inception on October 4, 2001 to the present, with great care to operate within the law, with approval as to legality of Presidential authorizations every 45 days or so by senior Government attorneys. The Department of Justice has set forth in detail in writing the constitutional and statutory basis, and related judicial precedents, for warrantless electronic surveillance under the TSP to protect against terrorism, and that information has been made available to your Committe and to the public.
Your letter indicated that you have repeatedly requested an Administration position on legislation prepared by you relating to the TSP program. If you would like a formal Administration position on draft legislation, you may at any time submit it to the Attorney General, the Director of National Intelligence, or the Director of the Office of Management and Budget (OMB) for processing, which will produce a formal Administration position. Before you do so, however, it might be more productive for executive branch experts to meet with you, and perhaps Senator DeWine or other Senators as appropriate, to review the various bills that have been introduced and to share the Administration's thoughts on terrorist surveillance legislation. Attorney General Alberto R. Gonzales and Acting Assistant Attorney General for the Office of Legal Counsel Steven G. Bradbury are key experts upon whom the executive branch would rely for this purpose. I will ask them to contact you promptly so that the cooperative effort can proceed apace.
Since the earliest days of the TSP, the executive branch has ensured that, consistent with the protection of the sensitive intelligence sources, methods and activities involved, appropriate members of Congress were briefed periodically on the program. The executive branch kept principally the chairman and ranking members of the congressional intelligence committees informed and later included the congressional leadership. Today, the full membership of both the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence (including four Senators on that Committee who also serve on your Judiciary Committee) are fully briefed on the program. As a matter of inter-branch comity and good executive- legislative practice, and recognizing the vital importance of protecting U.S. intelligence sources, methods and activities, we believe that the country as a whole, and the Senate and the House respectively, are best served by concentrating the congressional handling of intelligence matters within the intelligence committees of the Congress. The internal organization of the two Houses is, of course, a matter for the respective Houses. Recognizing the wisdom of the concentration within the intelligence committees, the rules of the Senate (S. Res. 400 of the 94th Congress) and the House (Rule X, cl. 11) creating the intellgence committees mandated that the intelligence committees have cross-over members who also serve on the judiciary, foreign/ international relations, armed services, and appropriations committees.
Both in performing the legislative functions of the Vice Presidency as President of the Senate and in performing executive functions in support of the President, I have frequent contact with Senators, both at their initiative and mine. We have found such contacts helpful in maintaining good relations between the executive and legislative branches and in advancing legislation that serves the interests of the American people. The respectful and candid exchange of views is something to be encouraged rather than avoided. Indeed, recognizing the importance of such communication, the first step the Administration took, when it learned that you might pursue use of compulsory process in an attempt to force testimony that may involve extremely sensitive classified information, was to have one of the Administration's most senior officials, the Chief of Staff to the President of the United States, contact you to discuss the matter. Thereafter, I spoke with a number of other Members of the Senate Leadership and the Judiciary Committee. These communications are not unusual--they are the Government at work.
While there may continue to be areas of disagreement from time to time, we should proceed in a practical way to build on the areas of agreement. I believe that other Senators and you, working with the executive branch, can find the way forward to enactment of legislation that would strengthen the ability of the Government to protect Americans against terrorists while continuing to protect the rights of Americans, if it is the judgment of Congress that such legislation should be enacted. We look forward to working with you, knowing of the good faith on all sides.
Sincerely,
Dick Cheney.
Mr. Leahy: Mr. President, I know the Senator from Connecticut has the floor at this point, but I wonder if he will yield to me for about another minute.
Mr. Dodd: Absolutely.
Mr. Leahy: Mr. President, I appreciate the comments of the distinguished senior Senator from Pennsylvania. I have enjoyed my work with him. Of course, we have been friends from the time we first met when we were both young prosecutors.
Mr. Specter: Younger prosecutors.
Mr. Leahy: I note that my amendment on the Judiciary Committee bill does not preclude a debate on the question of immunity for the telecommunications carriers. It speaks to what the FISA Court can or should do with this new surveillance authority.
If my amendment is voted down, several parts of it will be debated again. Many parts of this amendment will be germane after cloture, and we will be debating those as separate amendments. On the immunity issue, there will be an amendment by the distinguished Senator from Pennsylvania and the distinguished Senator from Rhode Island on the issue of substitution. We will vote either up or down on that amendment. My amendment is about the oversight of the FISA Court and Congress.
I understand the position of the Senator from Pennsylvania, but I hope he will look carefully at a number of the provisions in this bill. If he is unable to vote for the overall amendment, I hope he will support many of its provisions in separate amendments.
I have taken the time of the Senator from Connecticut who has worked with me and has been one of the leading voices on the important issue of oversight for electronic surveillance. We all want to be able to collect as much intelligence as we can against those who would act against the United States of America, but we have also lived long enough to see the danger when there are not enough checks on the government. We remember COINTELPRO and other circumstances where the government has used the great resources of this country not against enemies but against Americans. No voice in this body has been stronger on that issue than the distinguished senior Senator from Connecticut.
I yield the floor.
Mr. Dodd: Mr. President, I thank both my colleague from Vermont, the chairman of the committee, and the Senator from Pennsylvania as well. I arrived in this body in January of 1981 with a very engaged Senator from Pennsylvania as a new Member that day in January of 1981. The Senator from Vermont had already been here for a term. They do a tremendous job, and their voices are worth listening to on matters affecting civil liberties and the rule of law.
I spoke at some length last evening and back in December on the issue of the Foreign Intelligence Surveillance Act amendments and what I consider to be the most egregious provision in the Intelligence Committee bill: retroactive immunity for the telecommunications companies that may have helped this administration break the law. I have objected to that immunity on very specific grounds because it would cover an immense alleged violation of trust, privacy, and civil liberties.
But even more importantly, immunity is wrong because of what it represents: a fatal weakening of the rule of law that shuts out our independent judiciary and concentrates all the power in the hands of one branch--the executive branch.
We know there has been a pattern of behavior over the past 6 or 7 years. As I said last evening on this floor, had this been the first instance of an administration overreaching, candidly, I would have had some difficulty in objecting to the Intelligence Committee's proposal. If the alleged violation had been limited to a period of a few months, 6 months, a year even after 9/11, I might not have objected.
But all of us in this Chamber know there has been a 6 or 7 year pattern of this administration's abuses against the rule of law and civil liberties. And this alleged violation went on not for 6 months or a year but for 5 years--and it would still be ongoing today had it not been for a whistleblower in an article in a major publication, which revealed this program's ongoing activities to literally vacuum--and I am not exaggerating when I say "vacuum"--every telephone conversation, fax, and e-mail of millions of people in this country. I would object to retroactive immunity not just in this administration but in any administration, Democratic or Republican, that sought immunity to this extent, that sought to concentrate such power in the hands of the executive branch.
The Founders of this great Republic strenuously argued for a process that concentrates power not in one branch but provides a balance of that power, a tension, if you will, between the judicial, the legislative, and the executive branches. To grant such power to one branch, as this bill seeks to do, is a dangerous step. And it would be no matter which administration requested it.
The Foreign Intelligence Surveillance Act, as we have seen, was written precisely to resist that concentration. When we divide power responsibly, terrorist surveillance is not weakened; it is strengthened, Mr. President, made more judicious, more legitimate, and less subject to the abuse that saps public trust. I firmly believe any changes to this FISA bill must be in keeping with the original spirit of shared powers and the respect of the rule of law.
If we act wisely, as every previous Congress has for 30 years when amending the Foreign Intelligence Surveillance Act, then I think we can ensure terrorist surveillance remains inside the law--not an exception to it. The Senate should pass a bill doing just that.
But the FISA Amendments Act, as it comes to us from the Intelligence Committee, is not that bill, Mr. President. Its safeguards against abuse, against the needless targeting of ordinary American citizens, are far too weak. The power it concentrates in the hands of the executive branch is far too expansive. However, the Senate also has before it a version of a bill that embodies a far greater respect for the rule of law, and that is the proposal before us at this hour, offered by the chairman of the Judiciary Committee, Senator Patrick Leahy of Vermont. Both versions of the bill--both versions--authorize the American President to conduct overseas surveillance without individual warrants.
Both of these bills allow the President of the United States to submit his procedures for this new kind of surveillance for the review of the FISA Court after those procedures are already in place. But only one version of the bill balances these significant new powers with real oversight from the Congress and the courts, and that is the Leahy amendment.
That is the balance we need to strike. That is what every Congress has done for three decades--for three decades--with over 35 different changes to this bill, since its adoption in the late 1970s, passing every Congress almost unanimously, with the approval of Democrats and Republicans alike, balancing the tension between our determination to keep us safe from those who would do us harm with our need to protect the rule of law and the rights of the American people. That is the tension, that is the balance that we have struck over the last 30 years.
After three decades of maintaining that long-held balance, we are about to deviate from it. The intelligence version of this legislation, I am afraid, is a bill of token oversight and very weak protections for innocent Americans. Specifically, the intelligence version of the bill fails on five specific counts.
First, its safeguards against the targeting of Americans--its minimization procedures--are insufficient. The Intelligence Committee bill significantly expands the President's surveillance power while leaving the checks on that power unchanged. The intelligence version provides practically no deterrent against excessive domestic spying and no consequences if the court finds that the President's--any President's--minimization procedures are lacking. If his targeting procedures are found lacking, the President hardly has to worry. They administration can keep and share all the information it has obtained, and it can continue its actions all the way through the judicial review process, which can take months, if not years.
It should be clear to all of us that real oversight includes the power of enforcement. The Intelligence Committee's bill offers us the semblance of judicial oversight--but not the real thing. Imagine, if you will, a judge convicting a bank robber and then letting him keep the loot he stole, as long as he promises to never, ever, ever do it again. That might as well be the Intelligence version of the bill.
In fact, the Intelligence version would allow the President to immediately target anyone on a whim. Wiretapping could start even before the court has approved it. In the Intelligence Committee bill, oversight is exactly where the President likes it--after the fact. Don't get me wrong, Mr. President, when a President--any President-- needs immediate emergency authority to begin wiretapping, that President should have it. All of us, I think, agree with that. We find that obvious.
The question is what to do in those cases that aren't emergencies-- because not every case is an emergency. In those cases, I believe there is no reason that the court shouldn't give advice and approval beforehand. President Bush disagrees. He believes in a permanent state of emergency.
Second, the Intelligence Committee bill fails to protect American citizens from reverse targeting--the practice of targeting a foreign person on false pretenses without a warrant in order to collect the information on an American on the other end of the conversation. Reverse targeting, according to Admiral McConnell, the Director of National Intelligence, says:
It is not legal. It would be a breach of the fourth amendment.
That is according to the Director of National Intelligence. He is absolutely correct, of course, which is why it is so vital the FISA bill before us contain strong enforceable protections against reverse targeting. Unfortunately, the Intelligence Committee version doesn't have one.
Third, the intelligence version, by purporting to end warrantless wiretapping of Americans, might actually allow it to continue unabated. That is because the bill lacks strong exclusivity language--language stating that FISA is the only controlling law for foreign intelligence surveillance. With that provision in place, surveillance has a place inside the rule of law. Without it, there is no such guarantee, Mr. President.
Who knows what specious rationale this or any administration might cook up for lawless spying? The last time, as we have seen, Alberto Gonzalez--laughably, I might add, if it weren't so tragic--tried to find grounds for warrantless wiretapping in the authorization of force against Afghanistan. Those are the legal lengths to which this administration has proved willing and able to go to in order to achieve its goals.
As I mentioned last evening, Senator Daschle, the former majority leader, who was deeply involved in the negotiations of the authorization language to use force in Afghanistan, wrote an op-ed piece absolutely debunking the argument that any part of that negotiation included granting the administration the power to conduct warrantless wiretaps. He was offended by the suggestion that somehow we in this Congress, on a vote of 98 to nothing, gave the administration the power to conduct warrantless wiretappings. He was directly involved in those negotiations. It never, ever, ever came up. It is offensive that Alberto Gonzalez argued that Afghanistan justified warrantless wiretapping is offensive--but it is a good example, Mr. President, of what can happen if you don't have exclusivity.
FISA is the vehicle, and has been for 30 years, by which we allow for warrants to be granted to conduct surveillance when America is threatened. What is next without strong exclusivity language? The Intelligence Committee version of the bill would leave that question hanging over our heads.
Fourth, Mr. President, unlike the Leahy amendment, the Intelligence Committee version of the bill lacks strong protections against what is called "bulk collection"--the warrantless collection of all overseas communications, a massive dragnet with the potential to sweep up thousands or even millions of Americans, without cause. Today, bulk collection is not feasible. But Admiral McConnell said:
It would be authorized, if it were physically possible to do so.
Before any administration has that chance, I think it is important that we should clearly and expressly prohibit such an unprecedented violation of privacy. The intelligence version fails to do so.
In fact, I would suggest that the previous collection of data by the telecom industry, in fact, nearly approached such bulk collection: as we now know, millions and millions and millions of faxes, of e-mails, and of phone conversations were swept up over 5 years, without any warrants whatsoever.
Now, the legality of that is an unanswered question--but we are never going to know the answer if we grant retroactive immunity. We would shut the door forever on determining whether it was legal.
Even though global bulk collection is not yet feasible, we have already seen a vacuum operation sweep up millions of conversations, e- mails, and faxes. So we know the will for true bulk collection is there, and the Director of National Intelligence has admitted as much. So failure of the Intelligence version of the bill to prohibit bulk collection ought to cause us all some concern.
Fifth, and finally, Mr. President, the intelligence committee version of the bill stays in effect until 2013, through the next Presidential term and into the next one after that. Compare that to the 4-year sunset in the Leahy amendment. I believe that, when making such a dramatic change in the Nation's terrorist surveillance regime, we ought to err on the side of some caution. Once the new regime has been tested, once its effectiveness against terrorism and its compromises of privacy have been weighed, we deserve to have this debate again. Hopefully we will all be more informed when that happens; I trust that it will be a much less speculative debate.
And there is another advantage to coming back to this bill with greater frequency. We are learning painfully that the abilities those who would do us harm are growing more sophisticated year by year. We need to be flexible, as well. To not allow for a review of this legislation until 2013, except under extraordinary circumstances, locks us in place for far too long. We ought to come back and review whether we are facing additional problems that didn't exist even a year ago, given the warp speed with technology changes globally. We shouldn't wait 6 years. Given the ever-changing terrorist threats we face, taking another look at this bill sooner is in our security interest.
Mr. President, I said last evening that I admire the work of Senator Rockefeller and Senator Bond, and the members of the Intelligence Committee. And I know people say, "Oh, you are just being collegial." But this is not easy work. I know they struggle with these issues, and I don't want my criticism to be interpreted to suggest that I don't respect the work they do. I clearly respect it.
But this is such a critical issue, and maybe I have more of a passion about it, because it is so important. Once you begin to accept expanded executive power, it is so easy to move to the next step and the next step--and we have to be so careful about that.
We are mere custodians, those of us who serve here, over our rights and the rule of law. We are relying on the work of those who have preceded us. And I think all of us admire immensely what various Congresses have done over three decades since the adoption of the original FISA bill, which was done in a bipartisan, almost unanimous fashion. But the issue we face today is historic. It is not something that began just after 9/11. The tension between keeping us safe and protecting our rights has been an ongoing debate for more than two centuries, and it will be a continuous debate.
It will be a contentious debate. But striking that balance is what is so important. And the temptation to err on one side of that balance is so strong. James Madison warned more than two centuries ago that our willingness to give up domestic rights is always contingent upon the fear of what happens abroad. So while all of us here want to make sure we are doing everything to keep our country secure, we do not want to be willing to give up the basic rule of law here, and denigrate the importance of those rights.
It is very dangerous to confront the people of this country with a choice between rights and security. It is a false choice. In truth, we become more secure when we protect our rights. We have learned that over the years. And if we forget that lesson now, I believe we will come to deeply, deeply regret it.
This bill, the Intelligence Committee bill, reduces court oversight merely to the point of symbolism. It allows the targeting of Americans on false pretenses. It opens us up to new, twisted rationales for warrantless wiretapping, the very thing it ought to prevent. It would allow bulk collection as soon as this administration--or any administration--has the wherewithal to do it.
Mr. President, we are letting this debate become one of Republicans versus Democrats, liberals versus conservatives. But the Constitution is not a partisan document. It is a document which all of us embrace. It deeply troubles me that we have allowed things to come to this point instead of insisting that we can find the wisdom and the ability to keep America safe without compromising the rule of law.
In sum, the Intelligence version is entirely too trusting a bill, and not just for this administration. People say: If there were a Democrat sitting in the White House, you would not be saying this. Yes, I would. If any Democrat tried to do this, I would speak just as passionately, maybe more so, offended that someone I thought I shared some values with was suggesting a similar course of action.
My concern with what we are doing is not just about the next year; it is for the years and years and years to come, for the precedent we are setting, not only for this administration, but for all those that will follow.
So my passion about this is not rooted in partisanship; it is rooted in my deep conviction that abandoning or undermining the rule of law-- we don't have the right to do that. We are temporary custodians of the Constitution of the United States.
So the Intelligence version is too trusting, as I said. With its immunity provisions, with its wiretapping provisions, it simply responds to the executive branch's offer of "trust me" with an all- too-eager to say "yes."
I leave my colleagues with a simple question: Has that trust been earned, not just by this President, by any President? What would our Founders think? Why did they craft a system which insisted that there be a judicial, a legislative, and an executive branch? If we walk away from that balance, then we walk away from the very trust we were endowed with by those who elected us to this office and the oath we took here.
So I urge my colleagues to support the substitute being offered by Senator Leahy.
Again, I commend Senator Rockefeller and Senator Bond and members of that committee who worked hard at it. There are a lot of good ideas, outside of immunity, in the Intelligence Committee version of the bill. I think we can improve it; and the Leahy amendment does that.
I yield the floor.
The Presiding Officer: The Senator from Georgia.
Mr. Chambliss: Mr. President, while I have great admiration and respect for my friend from Connecticut, this is an issue upon which we simply disagree.
I rise today in opposition to the Judiciary substitute amendment to S. 2248, the FISA Amendments Act.
This legislation would strike, in its entirety, the bipartisan bill voted out of the Intelligence Committee by a 13-to-2 vote and replace it with a bill full of limitations on our foreign intelligence collection.
There are serious differences between the Judiciary Committee's substitute and the bill voted out of the Intelligence Committee. The Intelligence Committee bill is the result of a long drafting process where the committee reviewed the classified mechanisms under which FISA operates. As a result, the bill reflects the minimum tools our intelligence community needs to improve our foreign intelligence collection. Some of the provisions of the Judiciary bill seem to ignore the needs of our intelligence analysts and instead seek to hamper our ability to protect the Nation from hostile foreign intelligence collection and terrorists.
I believe the Judiciary Committee bill is seriously flawed, and I would like to highlight just two examples of how seriously flawed this amendment is.
First, it seeks to impose an unreasonable new restriction on the use of foreign intelligence information.
If the FISA Court finds the minimization procedure is deficient in some manner, information, including information not concerning U.S. persons obtained or derived from those acts, may not be kept. Our intelligence community analysts have used and complied with minimization standards for over 25 years. They know how to do it. They are familiar with when and how to minimize information in order to protect the identity of U.S. persons.
It is important to point out that minimization is used when disseminating important foreign intelligence. In other words, an intelligence analyst has determined that the information contains relevant foreign intelligence. Under the Judiciary Committee provision, if the FISA Court determines that the general proscriptions on how to minimize need improvement, the intelligence community may not use any previously gathered intelligence. This allows the FISA Court to second-guess trained analysts. The FISA Court's own opinion from December 11, 2007, recognizes that the executive branch has the expertise in national security matters, that the court should not make judgments as to which particular surveillances should be conducted.
Second, the Judiciary Committee amendment contains no provision for retroactive or prospective immunity for communications providers.
After careful review of the President's terrorist surveillance program, a bipartisan majority of the Intelligence Committee believed that providing our telecommunications service providers immunity for their assistance to the Government is absolutely necessary.
I think without question this is such a critical part of the bill that came out of the Intelligence Committee for all of the right reasons. The Intelligence Committee heard testimony and reviewed the President's specific intelligence program. The President granted the committee members and staff access to the legal memoranda and other documents related to this program. As stated in the committee report accompanying this legislation, the committee determined:
That electronic communication service providers acted on a good faith belief that the President's program, and their assistance, was lawful.
The committee reviewed correspondence sent to the electronic communication service providers stating that the activities requested were authorized by the President and determined by the Attorney General to be lawful, with the exception of one letter covering a period of less than 60 days, in which the Counsel to the President certified the program's lawfulness.
The statement continues:
The committee concluded that granting liability relief to the telecommunications providers was not only warranted, but required to maintain the regular assistance our intelligence and law enforcement professionals seek from them. Although I believe that the President's program was lawful and necessary, this bill makes no such determination. This is not a review or commentary on the President's program.
I urge my colleagues to support the determinations of the Intelligence Committee, which is charged with regularly reviewing the intelligence activities of the United States and all of the agencies included within the intelligence community. Providing our telecommunications carriers with liability relief is the necessary and responsible action for Congress to take.
The Government often needs assistance from the private sector in order to protect our national security, and in return, they should be able to rely on the Government's assurances that the assistance they provide is lawful and necessary for our national security. As a result of this assistance, America's telecommunications carriers should not be subject to costly legal battles.
This is not the last time that the private sector is going to be asked to come to the aid of the American people in protecting us on a matter of national security. There will be other days when the private sector will be called upon by the Government to act in concert and in partnership to protect the American public. If we do not grant immunity in this particular instance, should we expect the private sector to be cooperative with us in the future? I think the answer to that is pretty clear.
That was the gist of the bipartisan discussion and agreement within the Intelligence Committee about the main reason why, if no other reason, we should seriously look and give the immunity to the telecommunications providers that may have been involved in this situation.
I urge my colleagues to reject the Judiciary Committee substitute amendment, which contains numerous problematic provisions which will hamper and try to micromanage our intelligence collection, and support the carefully crafted bipartisan bill passed out of the Intelligence Committee.
Mr. President, I suggest the absence of a quorum and ask unanimous consent the time be equally divided on both sides.
The Presiding Officer: Without objection, it is so ordered.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. Bond: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The Presiding Officer: Without objection, it is so ordered.
Mr. Bond: Mr. President, I will be speaking more at about 1:30 on the Judiciary Committee substitute, but I thought I would clarify a few concerns that have been raised that I have heard. I know there are a number of Members coming down, and I do not want to hold them up, but I do want to point out that my good friend, the senior Senator from Pennsylvania, was concerned that the President's terrorist surveillance program was not briefed to Members of Congress. It is my understanding it was briefed to the leadership of the Intelligence Committee and the leadership on both sides. Personally, I would have preferred that more Members be briefed, but it is my understanding that when these leaders were briefed, it was their view that in light of the urgency and the need and the difficulties of explaining what we were going to do prior to--which could delay the implementation of the terrorist surveillance program, that it was a consensus of these meetings that the President should not bring a measure before Congress modifying FISA to take account of the new means of electronic surveillance and electronic communication.
Secondly, my good friend, the senior Senator from Connecticut, in his comments urged that we ban reverse targeting. I would call his attention to section 703(b), subparagraph 2 and subparagraph 3, which do explicitly ban targeting of overseas terrorist activities in order to gain information on U.S. persons. That is explicitly banned.
The Senator from Connecticut also spoke warmly of the exclusive test that existed in FISA from the period from 1978 forward.
We have included in the bill the exclusive means test that worked for some 30 years. That is in section 102. Without getting into classified information, we can say that this bill does not allow our intelligence community to listen in on conversations or read mail unless those persons are afforded the protection of the Intelligence Committee bill. To clarify that, the collection is carefully limited and overseen. There have been comments that the collection efforts by the NSA are not subject to oversight. I can only suggest to the people who have raised those concerns to ask members of the Intelligence Committee how much time we have spent looking into electronic surveillance. I can assure them that we enjoy looking into all these issues. We do so on a continuing basis. We have done so extensively over the last 9 months. I am sure they can count on us continuing to exercise that oversight. The Intelligence Committee has been set up specifically to review all of the intelligence collection methods of our intelligence community. They do a great job. We look over their shoulders and suggest ways they can improve the collection and analysis and also take steps to ensure they stay carefully within the boundaries of the Constitution and the laws that apply to them. With respect to collection methods such as 12333, we also oversee that as well.
So the people of America can be assured that the laws, the Constitution, and the regulations are being complied with. That is our job in the Intelligence Committee. We intend to continue to do so. I didn't want to leave without clarification of the suggestion that some of these matters were not attended to.
I see my colleague from Utah. I thank him for his great work. He is not only a valuable member of the Intelligence Committee but his work on the Judiciary Committee reflects his keen understanding and devotion to ensuring that we do a proper job of oversight and legislation when it comes to these very important collection methods.
I yield the floor.
The Presiding Officer: The Senator from Utah.
Mr. Hatch: Mr. President, I thank my dear colleague from Missouri for the leadership he has provided, along with Senator Rockefeller, on the Intelligence Committee and throughout this process. We ought to be listening to him. This is a very important bill, one of the most important in the history of the country, and we have to get it right. I congratulate him and thank him for the hard work he has done, and also Senator Rockefeller who, as chairman of the committee, led us in this matter.
As the only Republican on both the Intelligence and Judiciary Committees, I have been very involved in the process of developing the FISA modernization bill with a unique understanding of the journey this bill has taken through the Senate. I continue to express my full support for the bill as passed out of the Intelligence Committee and encourage my colleagues to reject the risky and problematic Judiciary substitute amendment.
The seeds of discontent with the Judiciary substitute were sown from the very beginning of that committee's consideration. Late in the afternoon the day before the markup, a Judiciary substitute amendment was circulated that replaced the entire first title of the Intelligence Committee-reported bill. This substitute included 10 Democratic amendments and no Republican amendments. It was eventually adopted on a party-line vote. Unfortunately, the careful bipartisan balance crafted by the Intelligence Committee was irrevocably altered and effectively nullified by partisan maneuvering. The Judiciary Committee was not able to coalesce to advance a compromise bill, as evidenced by the consistent 10-to-9 party-line votes on amendments and final passage. These votes typified the approach the Judiciary Committee undertook.
We know that this bill, like all national security legislation, needs bipartisan support to pass. The Judiciary substitute simply doesn't have it. I remind my colleagues that on November 14, 2007, Attorney General Mukasey and Director of National Intelligence McConnell sent a letter to the chairman and ranking member of the Judiciary Committee stating:
If the Judiciary substitute is part of a bill that is presented to the President, we and the President's other senior advisors will recommend that he veto the bill.
In addition, on December 17, 2007, a statement of administration policy was distributed for S. 2248 which stated:
If the Judiciary Committee substitute amendment is part of a bill that is presented to the President, the Director of National Intelligence, the Attorney General, and the President's other senior advisors will recommend that he veto the bill.
Both of these letters illustrate extensive problems with provisions included in the Judiciary substitute and in very specific terms. These warnings from the very people in the Government who are asked to protect us from terrorist threats should be heeded. We disregard these warnings at our own peril.
I ask unanimous consent that both of these letters be printed in the Record.
There being no objection, the material was ordered to be printed in the Record, as follows:
S. 2248--to amend the foreign intelligence surveillance act of 1978, to modernize and streamline the provisions of that act, and for other purposes
Protection of the American people and American interests at home and abroad requires access to timely, accurate, and insightful intelligence on the capabilities, intentions, and activities of foreign powers, including terrorists. The Protect America Act of 2007 (PAA), which amended the Foreign Intelligence Surveillance Act of 1978 (FISA) this past August, has greatly improved the Intelligence Community's ability to protect the Nation from terrorist attacks and other national security threats. The PAA has allowed us to close intelligence gaps, and it has enabled our intelligence professionals to collect foreign intelligence information from targets overseas more efficiently and effectively. The Intelligence Community has implemented the PAA under a robust oversight regime that has protected the civil liberties and privacy rights of Americans. Unfortunately, the benefits conferred by the PAA are only temporary because the act sunsets on February 1, 2008.
The Director of National Intelligence has frequently discussed what the Intelligence Community needs in permanent FISA legislation, including two key principles. First, judicial authorization should not be required to gather foreign intelligence from targets located in foreign countries. Second, the law must provide liability protection for the private sector.
The Senate is considering two bills to extend the core authorities provided by the PAA and modernize FISA. In October, the Senate Select Committee on Intelligence (SSCI) passed a consensus, bipartisan bill (S. 2248) that would establish a sound foundation for our Intelligence Community's efforts to target terrorists and other foreign intelligence targets located overseas. Although the bill is not perfect and its flaws must be addressed, it nevertheless represents a bipartisan compromise that will ensure that the Intelligence Community retains the authorities it needs to protect the Nation. Indeed, the SSCI bill is an improvement over the PAA in one essential way--it would provide retroactive liability protection to electronic communication service providers that are alleged to have assisted the Government with intelligence activities in the aftermath of September 11th.
In sharp contrast to the SSCI's bipartisan approach to modernizing FISA, the Senate Judiciary Committee reported an amendment to the SSCI bill that would have devastating consequences to the Intelligence Community's ability to detect and prevent terrorist attacks and to protect the Nation from other national security threats. The Judiciary Committee proposal would degrade our foreign intelligence collection capabilities. The Judiciary Committee's amendment would impose unacceptable and potentially crippling burdens on the collection of foreign intelligence information by expanding FISA to restrict facets of foreign intelligence collection never intended to be covered under the statute. Furthermore, the Judiciary Committee amendment altogether fails to address the critical issue of liability protection. Accordingly. if the Judiciary Committee's substitute amendment is part of a bill that is presented to the President, the Director of National Intelligence, the Attorney General, and the President's other senior advisors will recommend that he veto the bill.
Building on the authorities and oversight protections included in the PAA, the SSCI drafted S. 2248 to provide a sound legal framework for essential foreign intelligence collection in a manner consistent with the Fourth Amendment. As in the PAA, S. 2248 permits the targeting of foreign terrorists and other foreign intelligence targets outside the United States based upon the approval of the Director of National Intelligence and the Attorney General.
The SSCI drafted its bill in extensive coordination with Intelligence Community and national security professionals-- those who are most familiar with the needs of the Intelligence Community and the complexities of our intelligence laws. The SSCI also heard testimony from privacy experts in order to craft a balanced approach. As a result, the SSCI bill recognizes the importance of clarity in laws governing intelligence operations. Although the Administration would strongly prefer that the provisions of the PAA be made permanent without modification, the Administration engaged in extensive consultation in the interest of achieving permanent legislation in a bipartisan manner.
The SSCI bill is not perfect, however. Indeed, certain provisions represent a major modification of the PAA and will create additional burdens for the Intelligence Community, including by dramatically expanding the role of the FISA Court in reviewing foreign intelligence operations targeted at persons located outside the United States, a role never envisioned when Congress created the FISA court.
In particular, the SSCI bill contains two provisions that must be modified in order to avoid significant negative impacts on intelligence operations. Both of these provisions are also included in the Judiciary Committee substitute, detailed further below.
First, as part of the debate over FISA modernization, concerns have been raised regarding acquiring information from U.S. persons outside the United States. Accordingly, the SSCI bill provides for FISA Court approval of surveillance of U.S. persons abroad. The Administration opposes this provision. Under executive orders in place since before the enactment of FISA in 1978, Attorney General approval is required before foreign intelligence surveillance and searches may be conducted against a U.S. person abroad under circumstances in which a person has a reasonable expectation of privacy. More specifically, section 2.5 of Executive Order 12333 requires that the Attorney General find probable cause that the U.S. person target is a foreign power or an agent of a foreign power. S. 2248 dramatically increases the role of the FISA Court by requiring court approval of this probable cause determination before an intelligence operation may be conducted beyond the borders of the United States. This provision imposes burdens on foreign intelligence collection abroad that frequently do not exist even with respect to searches and surveillance abroad for law enforcement purposes. Were the Administration to consider accepting FISA Court approval for foreign intelligence searches and surveillance of U.S. persons overseas, technical corrections would be necessary. The Administration appreciates the efforts that have been made by Congress to address these issues, but notes that while it may be willing to accept that the FISA Court, rather than the Attorney General, must make the required findings, limitations on the scope of the collection currently allowed are unacceptable.
Second, the Senate Intelligence Committee bill contains a requirement that intelligence analysts count "the number of persons located in the United States whose communications were reviewed." This provision would likely be impossible to implement. It places potentially insurmountable burdens on intelligence professionals without meaningfully protecting the privacy of Americans, and takes scarce analytic resources away from protecting our country. The Intelligence Community has provided Congress with a detailed classified explanation of this problem.
Although the Administration believes that the PAA achieved foreign intelligence objectives with reasonable and robust oversight protections, S. 2248, as drafted by the Senate Intelligence Committee, provides a workable alternative and improves on the PAA in one critical respect by providing retroactive liability protection. The Senate Intelligence Committee bill would achieve an effective legislative result by returning FISA to its appropriate focus on the protection of privacy interests of persons inside the United States, while retaining our improved capability under PAA to collect timely foreign intelligence information needed to protect the Nation.
The Senate Judiciary Committee amendment contains a number of provisions that would have a devastating impact on our foreign intelligence operations.
Among the provisions of greatest concern are:
An Overbroad Exclusive Means Provision That Threatens Worldwide Foreign Intelligence Operations. 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.
Limits on Foreign Intelligence Collection. The Judiciary Committee substitute would require the Attorney General and the Director of National Intelligence to certify for certain acquisitions that they are "limited to communications to which at least one party is a specific individual target who is reasonably believed to be located outside the United States." This provision is unacceptable because it could hamper U.S. intelligence operations that are currently authorized to be conducted overseas and that could be conducted more effectively from the United States without harming U.S. privacy rights.
Significant Purpose Requirement. The Judiciary Committee substitute would require a FISA court order if a "significant purpose" of an acquisition targeting a person abroad is to acquire the communications of a specific person reasonably believed to be in the United States. If the concern driving this proposal is so-called "reverse targeting"--circumstances in which the Government would conduct surveillance of a person overseas when the Government's actual target is a person in the United States with whom the person overseas is communicating--that situation is already addressed in FISA today: If the person in the United States is the target, a significant purpose of the acquisition must be to collect foreign intelligence information, and an order from the FISA court is required. Indeed, the SSCI bill codifies this longstanding Executive Branch interpretation of FISA. The Judiciary Committee substitute would place an unnecessary and debilitating burden on our Intelligence Community's ability to conduct surveillance without enhancing the protection of the privacy of Americans.
Part of the value of the PAA, and any subsequent legislation, is to enable the Intelligence Community to collect expeditiously the communications of terrorists in foreign countries who may contact an associate in the United States. The Intelligence Community was heavily criticized by numerous reviews after September 11, including by the Congressional Joint Inquiry into September 11, regarding its insufficient attention to detecting communications indicating homeland attack plotting. To quote the Congressional Joint Inquiry:
"The Joint Inquiry has learned that one of the future hijackers communicated with a known terrorist facility in the Middle East while he was living in the United States. The Intelligence Community did not identify the domestic origin of those communications prior to September 11, 2001 so that additional FBI investigative efforts could be coordinated. Despite this country's substantial advantages, there was insufficient focus on what many would have thought was among the most critically important kinds of terrorist-related communications, at least in terms of protecting the Homeland."
(S. Rept. No. 107-351, H. Rept. No. 107-792 at 36.) To be clear, a "significant purpose" of Intelligence Community activities is to detect communications that may provide warning of homeland attacks and that may include communication between a terrorist overseas who places a call to associates in the United States. A provision that bars the Intelligence Community from collecting these communications is unacceptable, as Congress has stated previously.
Liability Protection. 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.
Mandates an Unnecessary Review of Historical Programs. The Judiciary Committee substitute would require that inspectors general of the Department of Justice and relevant Intelligence Community agencies audit the Terrorist Surveillance Program and "any closely related intelligence activities." If this "audit" is intended to look at operational activities, there has been an ongoing oversight activity by the Inspector General of the National Security Agency (NSA) of operational activities and the Senate Intelligence Committee has that material. Mandating a new and undefined "audit" will divert significant operational resources from current issues to redoing past audits. The Administration understands, however, the "audit" may in fact not be related to technical NSA operations. If it is the case that in fact the Judiciary Committee is interested in historical reviews of legal issues, the provision is unnecessary. The Department of Justice Inspector General and the Office of Professional Responsibility are already doing a comprehensive review. In addition, the phrase "closely related intelligence activities" would introduce substantial ambiguities in the scope of this review. Finally, this provision would require the inspectors general to acquire "all documents relevant to such programs" and submit those documents with its report to the congressional intelligence and judiciary committees. The requirement to collect and disseminate this wide range of highly classified documents-- including all those "relevant" to activities "closely related" to the Terrorist Surveillance Program-- unnecessarily risks the disclosure of extremely sensitive information about our intelligence activities, as does the audit requirement itself. Taking such national security risks for a backwards-looking purpose is unacceptable.
Allows for Dangerous Intelligence Gaps During the Pendency of an Appeal. The Judiciary Committee substitute would delete an important provision in the SSCI bill that enables the Intelligence Community to collect foreign intelligence from overseas terrorists and other foreign intelligence targets during an appeal. Without that provision, we could lose vital intelligence necessary to protect the Nation because of the views of one judge.
Limits Dissemination of Foreign Intelligence Information. The Judiciary Committee substitute would impose significant new restrictions on the use of foreign intelligence information, including information not concerning United States persons, obtained or derived from acquisitions using targeting procedures that the FISA Court later found to be unsatisfactory for any reason. By requiring analysts to go back to the databases and pull out certain information, as well as to determine what other information is derived from that information, this requirement would place a difficult, and perhaps insurmountable, burden on the Intelligence Community. Moreover, this provision would degrade privacy protections, as it would require analysts to locate and examine U.S. person information that would otherwise not be reviewed.
Requires FISA Court Approval of All "Targeting" for Foreign Intelligence Purposes. The Judiciary Committee substitute potentially requires the FISA Court to approve "[a]ny targeting of persons reasonably believed to be located outside the United States." Although we assume that the Committee did not intend to require these procedures to govern all "targeting" done of any person in the world for any purpose--whether it is to gather human intelligence, communications intelligence, or for other reasons--the text as passed by the Committee contains no limitation. Such a requirement would bring within the FISA Court a vast range of overseas intelligence activities with little or no connection to civil liberties and privacy rights of Americans.
Imposes Court Review of Compliance with Minimization Procedures. The Judiciary Committee substitute would require the FISA Court to review and assess compliance with minimization procedures. Together with provisions discussed above, this would constitute a massive expansion of the Court's role in overseeing the Intelligence Community's implementation of foreign intelligence collection abroad.
Amends FISA to Impose Burdensome Document Production Requirements. The Judiciary Committee substitute would amend FISA to require the Government to submit to oversight committees a copy of any decision, order, or opinion issued by the FISA Court or the FISA Court of Review that includes significant construction or interpretation of any provision of FISA, including any pleadings associated with those documents, no later than 45 days after the document is issued. The Judiciary Committee substitute also would require the Government to retrieve historical documents of this nature from the last five years. As drafted, this provision could impose significant burdens on Department of Justice staff assigned to support national security operational and oversight missions.
Includes an Even Shorter Sunset Provision Than That Contained in the SSCI Bill. The Judiciary Committee substitute and the SSCI bill share the same flaw of failing to achieve permanent FISA reform. The Judiciary Committee substitute worsens this flaw, however, by shortening the sunset provision in the SSCI bill from six years to four years. Any sunset provision, but particularly one as short as contemplated in the Judiciary Committee substitute, would adversely impact the Intelligence Community's ability to conduct its mission efficiently and effectively by introducing uncertainty and requiring re-training of all intelligence professionals on new policies and procedures implementing ever-changing authorities. Moreover, over the past year, in the interest of providing an extensive legislative record and allowing public discussion on this issue, the Intelligence Community has discussed in open settings extraordinary information dealing with intelligence operations. To repeat this process in several years will unnecessarily highlight our intelligence sources and methods to our adversaries. There is now a lengthy factual record on the need for this legislation, and it is time to provide the Intelligence Community the permanent stability it needs.
Fails to Provide Procedures for Implementing Existing Statutory Defenses. The Judiciary Committee substitute fails to include the important provisions in the SSCI bill that would establish procedures for implementing existing statutory defenses and that would preempt state investigations of assistance allegedly provided by an electronic communication service provider to an element of the Intelligence Community. These provisions are important to ensure that electronic communication service providers can take full advantage of existing liability protection and to protect highly classified information.
Fails to Address Transition Procedures. Unlike the SSCI bill, the Judiciary Committee bill contains no procedures designed to ensure a smooth transition from the PAA to new legislation, and for a potential transition resulting from an expiration of the new legislation. This omission could result in uncertainty regarding the continuing validity of authorizations and directives under the Protect America Act that are in effect on the date of enactment of this legislation.
Fails to Include a Severability Provision. The Judiciary Committee substitute, unlike the SSCI bill, lacks a severability provision. Such a provision should be included in the bill.
The Administration is prepared to continue to work with Congress towards the passage of a permanent FISA modernization bill that would strengthen the Nation's intelligence capabilities while protecting the constitutional rights of Americans, so that the President can sign such a bill into law. The Senate Intelligence Committee bill provides a solid foundation to meet the needs of our Intelligence Community, but the Senate Judiciary Committee bill represents a major step backwards from the PAA and would compromise our Intelligence Community's ability to protect the Nation. The Administration calls on Congress to forge ahead and pass legislation that will protect our national security, not weaken it in critical ways.
November 14, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This letter presents the views of the Administration on the proposed substitute amendment you circulated to Title I of the FISA Amendments Act of 2007 (S. 2248), a bill "to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that act, and for other purposes." We have appreciated the willingness of Congress to address the need to modernize FISA permanently and to work with the Administration to do so in a manner that allows the intelligence community to collect the foreign intelligence information necessary to protect the Nation while protecting the civil liberties of Americans. With all respect, however, we strongly oppose the proposed substitute amendment. If the substitute is part of a bill that is presented to the President, we and the President's other senior advisers will recommend that he veto the bill.
In August, Congress took an important step toward modernizing the Foreign Intelligence Surveillance Act of 1978 by enacting the Protect America Act of 2007 (PAA). The Protect America Act has allowed us temporarily to close intelligence gaps by enabling our intelligence professionals to collect, without a court order, foreign intelligence information from targets overseas. The intelligence community has implemented the Protect America Act in a responsible way, subject to extensive congressional oversight, to meet the country's foreign intelligence needs while protecting civil liberties. Unless reauthorized by Congress, however, the authority provided in the Protect America Act will expire in less than three months. In the face of the continued terrorist threats to our Nation, we think it is vital that Congress act to make the core authorities of the Protect America Act permanent. Congressional action to provide protection from private lawsuits against companies that are alleged to have assisted the Government in the aftermath of the September 11th terrorist attacks on America also is critical to ensuring the Government can continue to receive private sector help to protect the Nation.
In late October, the Senate Select Committee on Intelligence introduced a consensus, bipartisan bill (S. 2248) that would establish a firm, long-term foundation for our intelligence community's efforts to target terrorists and other foreign intelligence targets located overseas. While the bill is not perfect, it contains many important provisions, and was developed through a thoughtful process that ensured that the intelligence community retains the core authorities it needs to protect the Nation and that the bill would not adversely impact critical intelligence operations. Importantly, that bill would afford retroactive liability protection to communication service providers that are alleged to have assisted the Government with intelligence activities in the aftermath of September 11th. The Intelligence Committee recognized that "without retroactive immunity, the private sector might be unwilling to cooperate with lawful Government requests in the future without unnecessary court involvement and protracted litigation. The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of Our Nation." The committee's measured judgment reflects the principle that private citizens who respond in good faith to a request for assistance by public officials should not be held liable for their actions. The bill was reported favorably out of committee on a 13-2 vote.
We respectfully submit that your substitute amendment to Title I of the Senate Intelligence Committee's bill would upset some important provisions in the Intelligence Committee bill. The substitute also does not adequately address certain provisions in the Intelligence Committee's bill that remain in need of improvement. As a result, we have determined, with all respect to your efforts, that the substitute would not provide the intelligence community with the tools it needs effectively to collect foreign intelligence information vital for the security of the Nation.
The substitute would make several amendments to S. 2248 that would have an adverse impact on our ability to collect effectively the foreign intelligence information necessary to protect the Nation. These amendments include the following:
Prohibits Intelligence and Law Enforcement Officials From Using Valuable Investigative Tools. The substitute contains an amendment to the "exclusive means" provision of FISA that could severely harm our ability to conduct national security investigations. As drafted, the provision would bar the use of national security letters, Title III criminal wiretaps, ad other well-established investigative tools to collect information in national security investigations.
Threatens Critical Intellilgence Collection Activities. The "exclusive means" provision also could harm the national security by disrupting highly classified intelligence activities. Among other things, ambiguities in critical terms and formulations in the provision--including the term "communications information" (a term that is not defined in FISA) and the introduction of the concept of targeting communications (as opposed to persons)--could lead the statute to bar altogether or to require court approval for overseas intelligence activities that involve merely the incidental collection of United States person information.
Limits Existing Provisions of Law that Protect Communications Service Providers. The portion of the substitute regarding protections to communication service providers under Government certifications contains ambiguities that could jeopardize our ability to secure the assistance of these providers in the future. This could hamper significantly the Government's efforts to obtain necessary foreign intelligence information. As the Senate Intelligence Committee noted in its report on S. 2248, "electronic communications service providers play an important role in assisting intelligence officials in national security activities. Indeed, the intelligence community cannot obtain the intelligence it needs without assistance from these companies."
Allows for Dangerous Intelligence Gaps During the Pendency of an Appeal. The substitute would delete an important provision in the bipartisan Intelligence Committee bill that would ensure that our intelligence professionals can continue to collect intelligence from overseas terrorists and other foreign intelligence targets during the pendency of an appeal of a decision of the FISA Court. Without that provision, whole categories of surveillances directed outside the United States could be halted before review by the FISA Court of Review.
Limits Dissemination of Foreign Intelligence Information. The substitute would impose significant new restrictions on the use of foreign intelligence information, including information not concerning United States persons, obtained or derived from acquisitions using targeting procedures that the FISA Court later found to be unsatisfactory. By requiring analysts to go back to the databases and pull out the information, as well as to determine what other information is derived from that information, this requirement would place a difficult, and perhaps insurmountable, operational burden on the intelligence community in implementing authorities that target terrorists and other foreign intelligence targets located overseas. This requirement also strikes us as at odds with the mandate of the September 11th Commission that the intelligence community should find and link disparate pieces of foreign intelligence information. The requirement also harms privacy interests by requiring analysts to examine information that would otherwise be discarded without being reviewed.
Imposes Court Review of Compliance with Minimization Procedures. The substitute would allow the FISA Court to review compliance with minimization procedures that are used on a programmatic basis for the acquisition of foreign intelligence information by targeting individuals reasonably believed to be outside the United States. This could place the FISA Court in a position where it would conduct individualized review of the intelligence community's foreign communications intelligence activities. While conferring such authority on the court is understandable in the context of traditional FISA collection, it is anomalous in this context, where the court's role is in approving generally applicable procedures rather than individual surveillances.
Strikes a Provision Designed to Make the FISA Process More Efficient. The substitute would strike a provision from the bipartisan Senate Intelligence Committee bill that would allow the second highest-ranking FBI official to certify applications for electronic surveillance. Today, the only FBI official who can certify FISA applications is the Director, a restriction that can delay the initiation of surveillance when the Director travels or is otherwise unavailable. It is unclear why this provision from the Intelligence Committee bill, which will enhance the efficiency of the FISA process while ensuring high-level accountability, would be objectionable.
The substitute also does not make needed improvements to the Senate Intelligence Committee bill. These include:
Provision Pertaining to Surveillance of United States Persons Abroad. The substitute does not make needed improvements to the Committee bill, which would require for the first time that a court order be obtained to surveil United States persons abroad. In addition to being problematic for policy reasons and imposing burdens on foreign intelligence collection abroad that do not exist with respect to collection for law enforcement purposes, the provision continues to have serious technical problems. As drafted, the provision would not allow for the surveillance, even with a court finding, of certain critical foreign intelligence targets, and would allow emergency surveillance outside the United States for significantly less time than the bipartisan Senate Intelligence Committee bill had authorized for surveillance inside the United States.
Maintains a Sunset Provision. Rather than achieving permanent FISA reform, the substitute maintains a six year sunset provision. Indeed, several members on the Judiciary Committee have indicated that they may propose amendments to the bill that would shorten the sunset, leaving the intelligence community and our private partners subject to an uncertain legal framework for collecting intelligence from overseas targets. Any sunset provision withholds from our intelligence professionals the certainty and permanence they need to conduct foreign intelligence collection to protect Americans from terrorism and other threats to the national security. The intelligence community operates much more effectively when the rules governing our intelligence professionals' ability to track our adversaries are established and are not changing from year to year. Stability of law, we submit, also allows the intelligence community to invest resources appropriately. In our respectful view, a sunset provision is unnecessary and would have an adverse impact on the intelligence community's ability to conduct its mission efficiently and effectively.
Fails to Remedy an Unrealistic Reporting Requirement. The substitute fails to make needed amendments to a reporting requirement in the Senate Intelligence Committee bill that poses serious operational difficulties for the intelligence community. The Intelligence Committee bill contains a requirement that intelligence analysts count "the number of persons located in the United States whose communications were reviewed." This provision would be impossible to implement fully. The provision, in short, places potentially insurmountable burdens on intelligence professionals without meaningfully protecting the privacy of Americans. The intelligence community has provided Congress with a further classified discussion of this issue.
We also are concerned by other serious technical flaws in the substitute that create uncertainty.
The Administration remains prepared to work with Congress towards the passage of a permanent FISA modernization bill that would strengthen the Nation's intelligence capabilities while respecting and protecting the constitutional rights of Americans, so that the President can sign such a bill into law. We look forward to working with you and the Members of the Judiciary Committee on these important issues.
Thank you for the opportunity to present our views. The Office of Management and Budget has advised us that from the perspective of the Administration's program, there is no objection to the submission of this letter.
Sincerely,
Michael B. Mukasey,
Attorney General.
J.M. McConnell,
Director of National Intelligence.
Mr. Hatch: On numerous occasions I have voiced very specific concerns with the Judiciary substitute. I again want to list some of the reasons that illustrate why I oppose this measure. One phrase that has been expressed on the floor of the Senate is that the Judiciary substitute supposedly "strengthens" oversight. That might sound like a good talking point, but what does it mean? Does it mean that the Intelligence Committee version is weak on oversight? Based on their previous statements, some of my colleagues seem to believe this. One of my colleagues described the Intelligence Committee bill as "a bill of token oversight and weak protections for innocent Americans." This same colleague also stated that "it really reduces court oversight nearly to the point of symbolism." Another colleague stated the bill will allow the Government to "review more Americans' communications with less court supervision than ever before."
The truth is actually much different. The Intelligence Committee bill contains extensive new oversight provisions for the Foreign Intelligence Surveillance Court and Congress. I think it should be perfectly clear that it is a fallacy to claim that the Intelligence Committee bill does not have adequate oversight. On the contrary, it has a level of oversight that is unprecedented and quite possibly provides the most comprehensive oversight of any historical bill relating to foreign intelligence gatherings.
We have also heard the contention that this bill would provide broad new surveillance authorities. Since I have discussed the expanded oversight, I wish I could put up some charts that illustrate this so- called massive expansion of surveillance authority. The problem is that expansion is not in the bill. It doesn't exist. Despite the phrase being repeated over and over, this bill simply contains no new broad and unprecedented surveillance authorities.
For the first time, the Federal Intelligence Court will review and approve targeting procedures used by the intelligence community. For the first time since 1978--it wasn't done before--FISC will determine whether the procedures are reasonably designed to ensure targeting is limited to persons outside the United States.
This bill simply accounts for the technological change in international communications from over the air to cable. It is the bare minimum, but it does give them what they need.
Given the amount of opposition to the Judiciary substitute, I wish to highlight one of the controversial provisions added in the Judiciary Committee relating to "reverse targeting."
One of the basic requirements of any FISA modernization proposal is that we should not have any provisions which could be interpreted as requiring warrants to target a foreign terrorist overseas. Quite simply, foreign terrorists living overseas should never receive protections provided by the fourth amendment to the Constitution. They never have and they never should. Reverse targeting refers to the possibility, as alleged by critics of lawful Government surveillance, that the Government could target a foreign person when the real intention is to target a U.S. person, thus circumventing the need to get a warrant for the U.S. person. Reverse targeting has always been unlawful in order to protect the communications of U.S. persons. Contrary to what most people believe, the legitimate definition of U.S. persons is not limited to U.S. citizens.
What is a United States person? "An alien lawfully admitted for permanent residence" and "a corporation which is incorporated in the United States."
So from an intelligence-gathering standpoint, reverse targeting makes no sense. From an efficiency standpoint, if the Government were interested in targeting an American, it would apply for a warrant to listen to all of the American's conversations, not just conversations with terrorists overseas. But let's not let logic get in the way of good conspiracy theory.
Even though reverse targeting is already considered unlawful, a provision is included in the Intelligence bill which makes it explicit. This provision is clearly written and universally supported. However, the Judiciary Committee passed an amendment by a 10-to-9 party-line vote which altered the clear language of this provision. Where before the provision said you cannot target a foreign person if the "purpose" is to target a U.S. person, the new language adds the ambiguous term "significant purpose." If this amendment became law, an analyst would now have to ask himself the following question when targeting a terrorist overseas: Is a "significant purpose" of why I am targeting this foreign terrorist overseas the fact that the terrorist may call, A, an airline in America to make flight reservations or, B, a terrorist with a green card living in the USA? If the answer is yes, then the language in this amendment would require a warrant to listen to that foreign terrorist overseas. Do foreign terrorists overseas deserve protections from the courts in the United States? Of course not. The ambiguous and unnecessary text of this amendment should not be left up to judicial interpretation. Enactment of this amendment could lead to our analysts seeking warrants when targeting any foreign terrorist, since the analyst may be afraid he or she is otherwise breaking our new law.
Now we should remember that the Intelligence Committee spent months working on a bipartisan compromise bill. This amendment I have been talking about was not in the Intelligence bill. So people should assume that the Judiciary Committee spent a great deal of time debating this amendment, right? Wrong. The Judiciary Committee spent 7 minutes debating this amendment before it was adopted on a 10-to-9 party-line vote. Let me repeat that number: 7 minutes.
Now, the inclusion of this amendment alone would cause me to vote against this Judiciary substitute. But there are many more provisions that were added via party-line vote which I strongly oppose.
The Judiciary Committee also adopted an amendment to shorten the length of the sunset in the Intelligence Committee's bill. There are a few quick things we should realize when talking about sunsets.
It takes a great deal of time to ensure that all of our intelligence agencies and personnel are fully trained in any new authorities and restrictions brought about by congressional action. This is not something that happens overnight. We cannot just wave a magic wand and have our Nation's intelligence personnel instantaneously cognizant of every administrative alteration imposed by Congress. Like so many things in life, adjusting for these new mechanisms takes time and practice.
While certain modifications are necessary, do we want to make it a habit of consistently changing the rules? I do not think so. Don't we want our analysts to spend their time actually tracking terrorists? Or is their time better spent navigating administrative procedures that may constantly be in flux? I can tell you clearly what I want, and that is for our analysts to use lawful tools to keep our families safe. I do not want to see them unnecessarily diverting their attention by burying their heads in administrative manuals whenever the political winds blow. After all of the efforts to finally write a bill that provides a legal regime that governs contemporary technological capabilities, I am certainly not alone in my opposition to this sunset provision. In fact, my views are completely in line with what this body has done in the past when amending FISA. Remembering that FISA itself had no sunset-- the 1978 bill had no sunset--let's look at how Congress has previously legislated in this area: Sunsets are not common in previous laws amending FISA. Other than the PATRIOT Act and the PATRIOT Act reauthorization, seven of the eight public laws amending FISA had no sunsets on FISA provisions, and the remaining public law had a sunset on only one of the provisions.
Now this statistic speaks for itself. What is so different about this bill? I do realize that it contains massive new oversight which could possibly hinder our collection efforts, and that we may need to revisit it for this reason. However, if this is the case, we obviously do not need a sunset to do this. We can legislate in this area whenever we want to.
The fact that the Judiciary Committee shortened the length of an already unnecessary sunset is yet another example of why I will oppose the Judiciary substitute amendment.
We all realize that the Judiciary Committee's bill also removed the bipartisan immunity provision. I have come to the floor on numerous occasions to articulate why this provision is so vital and so necessary. I will do so again when we debate the misguided amendment to strike this bipartisan compromise provision.
We are enacting national security legislation, and it is our responsibility to ensure that this bill does not lead to unintended consequences which provide protections to terrorists. I have no doubt that provisions in the Judiciary Committee substitute could significantly harm--significantly harm--our national security. I am not willing to take that chance. I am not willing to support a bill which raises operational hurdles that impede collection of foreign intelligence. I am not willing to support initiatives that would allow our collections to go dark during the appeal of a ruling from one judge. I am not willing to support a bill which handcuffs our intelligence agencies. I am not willing to support a bill which provides excessive and obtrusive oversight that placates fringe political groups at the possible expense of national security. The stakes are too high. The damage that can be done if we get this wrong is too great.
The Presiding Officer: The Senator's time has expired.
Mr. Hatch: Mr. President, I ask unanimous consent for an additional 30 seconds to finish.
The Presiding Officer: Without objection, it is so ordered.
Mr. Hatch: I will never apologize for voting in favor of provisions which protect national security and civil liberties. During the remainder of this debate, I will continue to support initiatives that properly protect the lives and liberty of Americans. I am hopeful my colleagues will do the same. And I hope we will table this Judiciary Committee partisan amendment.
I yield the floor.
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| Reid: GOP Stalling |
