The FISA Amendments Act of 2008

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Mr. Dorgan: Madam President, we are talking about FISA we use a lot of acronyms in Washington, DC, unfortunately--the Foreign Intelligence Surveillance Act. It is a complicated subject, and one, if people have been watching the debate, that is also controversial. There is a lot of passion about this subject. We have people standing up and saying: None of this should be disclosed. We should not be talking about this. This is about the ability to protect our country against terrorists. Of course, we have to listen into communications and intercept communications. It is the only way to find out if there are terrorist acts being plotted by terrorist groups, and so on. There is that kind of thing.

There are concerns on the other side by people who say: Wait a second. There is something called a Constitution in this country. There is a right to privacy, a right to expect that the Government will not be spying on American citizens without cause.

This is a very controversial and difficult subject. Frankly, nearly everyone, with the possible exception of the chairman and ranking member or maybe one or two others on the Intelligence Committee, knows very little about that which we are discussing.

Let me put up a photograph of a door. This is a door in San Francisco, CA, a rather unremarkable photograph of a door. This is a door that is in AT&T's central offices in San Francisco. A courageous employee of AT&T named Mark Klein, who had been with the company for 22 years, blew the whistle on what was happening behind this door. According to Mark Klein, the National Security Agency had connected fiber optic cables to AT&T's circuits through which the National Security Agency could essentially monitor all of the data crossing the Internet. Here is what Mr. Klein had to say went on behind this door:

It appears the [National Security Agency] is capable of conducting what amounts to vacuum-cleaner surveillance of all the data crossing the Internet--whether that be people's e- mail, web surfing, or any other data.

The description of what was happening at this one telephone company in this one location in San Francisco was this: the intercepting of communications at the AT&T Folsom Street facility, millions, perhaps billions of communications from ordinary Americans coming into and through the facility, which would normally have been the case for a telephone company, and a splitter being used, according to the discussion by Mark Klein, splitting off all of this conversation into an NSA-controlled room, to be eventually evaluated with sophisticated programming, and then going back out in order to complete the communication. So you have effectively a copy of everything that is happening going through with a splitter to a secret room.

When this became public, when a whistleblower working for the company said, here is what is happening, there was an unbelievable outcry on both sides. Some people said: What on Earth is happening? We have secret rooms in which the National Security Agency is running all this data and all this information through and spying on American citizens? Others said: What is going on? Who on Earth would have decided they should disclose this publicly? They are going to alert the terrorists to what we are doing. We had both sides aghast that this was disclosed. It is important to say that, initially, almost no one in an official capacity was willing to admit to this. Finally, it was admitted, yes, there was a program. The President said: Yes, there is a program-- speaking, apparently, of just this program; we don't know of other programs that exist or may exist, but this program existed without our knowledge. The President indicated this program existed because we are going after the bad guys, and we have a right to do that. And we did this program because the process that had been set up because of abuses with respect to eavesdropping and spying on American citizens decades ago, that process was way too cumbersome, took far too much time, and we needed to streamline that. That is a paraphrase. But there was an admission that this program existed and no additional legal authority needed to empower the President to do it.

So that is where we are. Most of us don't know the full extent of this program at all. In fact, my understanding is that rooms like this exist in other parts of the country with other telephone companies where splitters are used to move data to separate rooms and data is evaluated.

This whole process comes from several decades ago when something called the FISA Court was set up, a court to evaluate the questions about when it is legal and appropriate and when the Government is able to intercept communications. The FISA Court was established for the very purpose of trying to make the judgment about when it is appropriate to go after the bad guys and how to protect our civil liberties at the same time.

The FISA Court was an outgrowth of concern by the Congress when we discovered that there was a time in this country when we had the National Security Agency running secret projects called Shamrock and Minaret to gather both international communications and also domestic communications. Project Shamrock actually started during the Second World War when major communications companies of the day gave the Federal Government access to all of their international traffic. One can imagine, in the fight against the Nazis and the Japanese Imperial Army, the desire for international communications to evaluate things that might threaten this country's security. But the Shamrock program then, as we know, changed over time.

At first the goal was to intercept international telegrams relating to foreign targets. Then, soon the Government began to intercept telegrams of U.S. citizens. By the time there were hearings held in the Congress, the National Security Agency was intercepting and analyzing about 150,000 messages per month.

Data from Project Shamrock was then used for another project code named Project Minaret, which we now know spied on perceived political opponents of the then-administration of Richard Nixon. Under this program the NSA added Vietnam war protesters to its watch list. After there was a march on the Pentagon, the Army requested that they add antiwar protesters. The list included people such as folk singer Joan Baez and civil rights leader Dr. Martin Luther King, Jr. We just celebrated within the week the Federal holiday celebrating the birthday of Martin Luther King, Jr. Yet it was not too many decades ago that Dr. Martin Luther King, Jr., was under surveillance by his own Government.

The Congress passed its findings, when it did investigative hearings, and the Foreign Intelligence Surveillance Act created the FISA Court.

Here is the experience with the FISA Courts. Between 1975 and 2006, there were 2,990 warrants issued by the FISA Court. Only five were denied. What that suggests is that it is not too difficult to get approval by the FISA Court for surveillance. But the President and Mr. McConnell, the head of our intelligence agency, have indicated that there has been a problem.

For example, Mr. McConnell cited the capture of three American soldiers who were later killed in Iraq. Right after they were captured there was a period of time when it was critically important to be able to intercept communications in Iraq, and they were encumbered at a time when it was critical to find out who held these soldiers.

That is not accurate, and the head of intelligence would have known that. I don't know why he represented that. There is a period of time when in an emergency situation, you can begin surveillance without having to go to FISA. You have to go FISA after that period of time, but you are given an opportunity for emergency surveillance even before you get the approval or even before you go to the FISA Court.

What we have learned, however, through all of this process is from a December 2005 report in the newspapers. President Bush had authorized the National Security Agency to eavesdrop without warrants inside the United States which bypassed the entire FISA Court system. It turns out that most of the large telephone companies in this country had gone along with the administration's request for that activity.

We are told that the administration, Attorney General Gonzales, and others furnished the telephone companies with some sort of letter, a certification of sorts. We don't know what that letter was, however, because the administration, citing the State Secrets Act, refuses to allow that to be disclosed.

I think if they provide certification to a telephone company--and the telephone company relies on that--by officers of the Federal Government, in good faith, let's have that disclosed. Why should we wonder about the actions of a telephone company? If, in fact, you have an Attorney General of the United States who is certifying, let's find out what this administration did. Let's find out how they did it. Let's not have them tell us you cannot even see what was provided to a telephone company in terms of certification. That, in my judgment, does not pass the red face test.

I hope very much we will begin to learn at some point what this administration has done, when they did it, and what the consequences of it are. This issue of the Foreign Intelligence Surveillance Act has become a political football by this administration. The last time we debated this, some while ago, it was quite clear that the politics of it were viewed as wonderful politics by the other side and by the White House. But this ought not be about politics at all. This ought to be about two issues, both of which are critically important: One is protecting this country's interests, yes, giving us a chance to make sure we understand what the terrorists are doing, how to foil terrorist attempts to injure this country--it is about that; and that is very important--but it is also about civil liberties and protecting the rights of the American people at the same time.

We thought we had done that by putting together the FISA Court. We thought we had done that by establishing a procedure that needed to be followed. We now understand the President, with his lawyers, says those laws do not matter. There is in the Constitution, they say, something about the powers of the Commander in Chief, and he can do whatever he wants. That is a pretty dangerous interpretation of the U.S. Constitution.

We debate this in so much ignorance because almost no one knows what this administration has done, and they are preventing us from knowing as much as we should know, in most cases, by claiming protection under the State Secrets Act, and not even allowing the release of the letter that was provided to the telephone companies that cooperated that describes to them the legal authority for doing so.

I think there is much to be learned here, much we need to know. I think it is very important, as we reach an agreement on the Foreign Intelligence Surveillance Act--and we should because it is an important circumstance by which we need, in certain cases, when we believe there is information being passed from terrorist to terrorist, and so on--if those communications are being run through this country, we need to be able to intercept and interpret what is happening--but it is critically important we not allow a kind of an approach to this where there is no oversight, there is no check.

We have a government of checks and balances. What the President and his people seem to be saying to us is: We are not interested in checks and balances. We have the authority in the Constitution, as we interpret it, and that means it exceeds every law you can pass. We are going to do what we want to do. And if you don't like it, tough luck. And if you don't like it, by the way, what we will say to the American people is you are not willing to stand up for the security of this country.

It is outrageous. It is dragging this issue smack-dab in the middle of their little political balloon. But this is a much more important process than that. We need to do this, and we need to get it right in order to protect America. We need to do this, and we need to get it right in order to protect the interests of the American people as well--and that interest of privacy and that interest of making sure that "big brother government" is not running all of your telephone calls and all of your e-mails and all of your information through its drift net to find out what you are saying and what you are doing and who you are talking to.

That is not what I understand to be the best interests of this country or the guarantees that exist in the Constitution for the American people. That is why this is worth an important controversy and an important fight. It is why it is for us to take enough time to get it right. This is a big issue. We do a lot of things on the floor of the Senate that are not so big--not big issues. They are smaller issues in consequence. This issue is about freedom and liberty and the guarantees given the American people in the Constitution. It is about whether there is a check on Presidential power that assumes they have the power that exceeds all other laws. If we do not have that kind of check and balance in this Government, then we have bigger problems than I thought.

So I only wanted to say, with respect to this issue, we do not know much about it. We know at this point that behind this door, as shown on this chart--behind this door--exists information split off what is called a splitter from the main line. Massive amounts of information come into it--in this case, it was AT&T; it could have been other telephone companies--it is split off, and then all of it is evaluated to find out: Is there something there that is suspicious? It is not the way America has ever worked, and not the way it should work.

So the more we know, I think the more we will be able to better understand how to do two things at once: protect our country against terrorists, and protect the civil liberties of the American people. Both are important. At least there is one group of people in this political system of ours that believes the first is far more important than the second. They are wrong. They are both important, and both worth standing up for.