The FISA Amendments Act of 2008

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Ms. Snowe: Mr. President, I rise today as a member of the Select Committee on Intelligence to discuss the pending legislation to modernize the Foreign Intelligence Surveillance Act that was originally passed in 1978. At the outset of my remarks I would like to first express my sincerest appreciation to the chairman of the committee, Senator Rockefeller, and the vice chair, Senator Bond, for their exceptional leadership in working in a concerted, cooperative manner to shepherd the Intelligence Committee bill through the legislative process in a strong, bipartisan manner.

As my colleagues know, the act is set to expire on February 1--less than a week from now. It is imperative that Congress pass legislation reflecting the will of this body and send it to the President's desk for enactment. At a time when al-Qaida lurks in the shadows, making no distinctions between combatants and noncombatants, between our battlefields and our backyards, we as lawmakers must work with firm resolve to ensure that the intelligence community possesses the tools and the legal authority that is required to prevent future terrorist attacks on our soil. Yet in the wake of years of controversy surrounding the Terrorist Surveillance Program, we all must be mindful of our duties to uphold the constitutional protections as old as this Republic. I do not believe these goals are mutually exclusive.

The Foreign Intelligence Surveillance Act, commonly known as FISA, establishes a distinct system of laws and regulations for the Government's ability to legally conduct national security-related surveillance of communications. The Intelligence Committee proposal, which was reported out on a strong 13-to-2 bipartisan vote, does not present the ideal solution to the urgent matter before us, underscoring the difficulties and complexities that are presented by the question of intelligence surveillance. However, it is a marked improvement over the Protect America Act and represents the collective agreement of 13 of the 15 members of the Intelligence Committee, both Republicans and Democrats. I appreciate the disparate views that many of my colleagues on both sides of this aisle espouse, but in the end, the Senate must work to achieve its will and to find the common ground that is so essential on this issue for our Nation's security. For Congress to be relevant, it must ultimately come to a legislative resolution and conclusion.

The underlying premise of FISA recognizes that obtaining a standard search warrant through a typical Federal or State court is not appropriate when dealing with sensitive security operations and highly classified information. In creating separate legal mechanisms for such matters, FISA has, for nearly 30 years, relied upon the rulings of the special Foreign Intelligence Surveillance Court and continuous congressional oversight in ensuring that fourth amendment protections against unreasonable searches and seizures are respected. Although FISA is and remains an indispensable tool in the war on terror, it was written almost 30 years ago--long before the name "al-Qaida" rang with any significance--and it has begun to show its age.

FISA was enacted before cell phones, before e-mail, and before the Internet, all of which are used today by hundreds of millions of people across the globe. Unfortunately, those numbers include terrorists who are using these tools for planning, training, and coordination of their operations. Put simply, FISA's technology-centered provisions do not correspond to the systems and apparati that are used in communications today. As Admiral McConnell, Director of National Intelligence, said most bluntly and straightforwardly:

FISA's definition of electronic surveillance [has] simply not [kept] pace with technology.

But we all know this is not the only backdrop to FISA reauthorization. Prior to December 2005, only the party leaders in both the House and the Senate, and the chairmen and ranking members of those Houses' respective Intelligence Committees--the so-called gang of eight--had any knowledge that warrantless surveillance was occurring on U.S. soil with neither court approval nor congressional authorization. Once the program came to light, the administration asserted it had the legal authority to conduct such surveillance anyway, citing considerably tenuous interpretations of both article II of the Constitution and the 2002 authorization for the use of military force in Iraq.

This was not the power-sharing construct between the three branches of Government under which FISA had operated for nearly three decades. Rather, this was a unilateral exercise of executive branch authority to the exclusion of the other two. The use of unchecked executive power was neither how the Framers of the Constitution nor the framers of FISA intended this matter to be addressed.

Accordingly, less than 2 months later, I, along with Senators DeWine, Hagel, and Graham, introduced the Terrorist Surveillance Act of 2006, which called for strict legislative oversight and judicial review of the program. A number of colleagues joined the effort with a variety of additional proposals to both exert congressional oversight, as well as to modernize FISA; and the administration, bowing to this collective congressional pressure, finally permitted full access to the NSA program by members and staff of both Intelligence Committees. Congressional leverage also led the Attorney General this past January to submit the terrorist surveillance program to the requirements of FISA, including appropriate review of Stateside surveillance requests by the Foreign Intelligence Surveillance Court. At the time this was viewed as a step toward some restoration of the rule of law and constitutional principles, and FISA reform efforts focused on modernizing the statute for technological purposes.

Yet, as noted in the Intelligence Committee's report on the FISA Amendments Act of 2007,

At the end of May 2007 … attention was drawn to a ruling of the FISA court … that the DNI later described as significantly diverting NSA analysts from their counterterrorism mission to provide information to the Court. In late July, the DNI informed Congress that the decision … had led to degraded capabilities in the face of a heightened terrorist threat environment.

FISA reform efforts quickly shifted to addressing this gap. Congress responded this past August by passing the bipartisan Protect America Act, a law which cleared the Senate 60 to 28. Although an imperfect statute, it granted the DNI the tools necessary to protect our homeland at a time when there were well-documented gaps in our intelligence gathering. Congress wisely employed a 6-month sunset to ensure that the shortcomings of this temporary law could be explored at length and properly corrected. The bill before the Senate today is a product of that 4-month deliberation, and given all that I have just outlined, clearly the time has now come to take precise and concrete action.

The Intelligence Committee has been guided by its vast expertise in overseeing American intelligence operations, and this proposal sorts out the confusion of the past several years and replaces legal gray areas with clear bright line rules. Central to this revision is the role of the FISA Court--a critical step in this process, as the courts must play a prominent role whenever fourth amendment concerns are at stake.

The bill rightly maintains the rule that no court order is required when targeting communications abroad, and clarifies that this remains the case even if, for example, a foreign-to-foreign e-mail transits a server located on U.S. soil. However, the bill would, going forward, allow for so-called "umbrella surveillance" only under the following conditions: First, it may be conducted for 1 year. Secondly, the DNI and the Attorney General must certify that such operations would target only those individuals reasonably believed to be outside of the United States. Third, the FISA Court must receive and approve the minimization procedures to ensure that any "inadvertent collection" is promptly destroyed.

More importantly, where the target is located within the United States, or where the target is a U.S. citizen or a permanent resident anywhere in the world, the bill now requires that a warrant first be obtained from the FISA Court. The FISA Court--only the FISA Court--will have the authority to determine that there is probable cause to believe that the U.S. person in question is an agent of a foreign power. Only then may a warrant be issued, and only then may targeted surveillance commence. This is a strong and substantial improvement over the provisions of the Protect America Act.

It is noteworthy that this bill, if passed, would recognize for the first time ever the right of a U.S. citizen or permanent resident to be free from warrantless surveillance by the U.S. Government even when such person is abroad. As our colleague Senator Wyden said in the Washington Post on December 10, this is a change that was contemplated back in 1978 but which never received the attention necessary from Congress to become law.

Finally, the bill authorizes the inspectors general of the Department of Justice and elements of the intelligence community to conduct independent reviews of agency compliance with the court-approved acquisition and minimization procedures--adding another independent check to ensure that the agencies charged with implementing the program are in fact complying with the court order and minimizing any information that was inadvertently collected.

This is not to say that the Judiciary Committee substitute was not superior in some regards. For example, it contained far stronger language asserting that the FISA Court and the Federal Criminal Code are the exclusive means by which the U.S. Government may conduct surveillance, counteracting allegations by the administration that the 2002 authorization of the use of military force against Iraq provided an alternate statutory authority.

To be clear, the Intelligence Committee bill does state that such a restriction applies to "electronic surveillance." In fact, I felt strongly about this provision, and that is why I joined other colleagues on the Intelligence Committee in submitting additional comments regarding this provision--specifically that FISA is the exclusive means by which the U.S. Government may conduct surveillance. Yet the Judiciary Committee bill took this one step further, expanding exclusivity to cover any "communications or communications information," a broader term meant to reach even those communications not covered under the more narrowly defined category of "electronic surveillance."

Yet, on balance, the Intelligence Committee legislation reflects the committee's expertise in this field, and it presents a bipartisan approach for restoring order to the state of the law surrounding Government surveillance.

As the Intelligence Committee report noted, the committee held seven hearings in 2007 on these issues, received numerous classified briefings, propounded and received answers to numerous written questions, and conducted extensive interviews with several attorneys in the executive branch who were involved in the review of the President's program. In addition, the committee received formal testimony from the companies alleged to have participated in the program and reviewed correspondence that was provided to private sector entities concerning the President's program.

The committee secured IG reports and the orders and opinions issued by the FISA Court following the shift of activity to the judicial supervision of the FISA Court and invited comments from experts on national security law and civil liberties. The committee also examined extensive testimony given before other committees in the last several years and visited the NSA, carefully scrutinizing the program's implementation.

The underlying committee bill vests significant authority--and rightfully so--in the FISA Court to authorize targeting of U.S. persons and to sign off on minimization procedures of any nontargeting surveillance. It further modernizes FISA so that its terms apply rationally to today's technology, and streamlines procedures to ensure that the men and women in our intelligence community can maximize their focus on detecting threats to our homeland. It does all of this while employing the Intelligence Committee's technical expertise to avoid any unintended consequences.

I wish to focus the remainder of my remarks on what has become the flashpoint of controversy--whether to grant retroactive immunity to the numerous telecommunications companies who have been sued for allegedly providing private customer information to the Government in violation of the law. I believe that this narrow, limited grant of immunity is a proper course of action for these reasons:

First, it is critical to note and understand that a grant of immunity to telecom providers for assisting the Government is not a novel concept, but rather a longstanding component of existing law. Specifically, the Federal Criminal Code already states that "no cause of action shall lie in any court against any provider … for providing information, facilities, or assistance" to the Federal Government in conducting electronic surveillance if the company is presented with either a court order or a certification signed by the Attorney General stating that "no warrant or court order is required by law, that all statutory requirements have been met, and that the specific assistance is required."

Why, then, must the bill before us contain an immunity provision for communications firms? The answer is that they are unable to invoke it because the very existence of whether a particular company--or any company--did or did not participate in any alleged surveillance has been designated as a state secret by the U.S. Government. This places the telecom companies in a Catch-22 scenario: if, hypothetically, a company did assist the Government, it cannot reveal that fact under the State Secrets Doctrine, and thus cannot claim the benefit of immunity; conversely, if a company did not provide any alleged assistance, it still cannot demonstrate that fact to conclusively dismiss the lawsuit, again because of the mandates of the State Secrets Doctrine. In the 40- plus active lawsuits, defendant telecom companies are in a "no-win situation."

To those who may ask why Congress should concern itself with addressing these pending lawsuits, I would answer that the credibility and effectiveness of America's intelligence community depends upon it. Particularly in the wake of the devastating attacks of September 11, 2001, any American company that, when reportedly presented with proper certification, assisted the Government in a matter of national security was doing so, in all likelihood, in the best interests of our Nation. And punishing such cooperation through subsequent lawsuits could have drastic future consequences.

This position has been asserted by former Attorney General John Ashcroft and former Deputy Attorney General James Comey, both of whom had well-documented misgivings about the administration's approach to surveillance. This view is also held by the distinguished chairman of the Intelligence Committee, who on October 31 of this year wrote in the Washington Post that the telecom lawsuits are "unfair and unwise. As the operational details of the program remain highly classified, the companies are prevented from defending themselves in court. And if we require them to face a mountain of lawsuits, we risk losing their support in the future"--a development that Chairman Rockefeller assessed would be "devastating to the intelligence community, the Justice Department and military officials who are hunting down our enemies."

The immunity provision in this bill is narrow and limited. First, it is only retroactive. It clearly delineates what types of surveillance require a search warrant from the FISA Court and what types do not. The very fact that the FISA Court will be involved contrasts starkly with the "gray area" under which the Terrorist Surveillance Program had operated prior to January of this year. This clarity will thus also make it clear as to whether a telecom company is complying with a lawful request and thus whether it will be entitled to statutory immunity.

As the Intelligence Committee report underscored, the action the committee proposes should be understood by the executive branch and provided as a one-time response to an unparalleled national experience in the midst of which representations were made that assistance to the Government was authorized and lawful.

In doing so, the underlying legislation acts prospectively to guard against any future infringements of constitutional liberties that might occur. By contrast, striking title II will accomplish nothing constructive in the future. To the contrary, as I indicated, it may be counterproductive by discouraging future cooperation by private entities.

Second, the bill only grants immunity for civil lawsuits. It would not provide amnesty to anyone--the telecommunications companies, Government officials or any other party--who engaged in any potential criminal wrongdoing. Should any criminal allegations arise against telecommunications officers, Government officials or others, such investigations would not be prevented by this provision. Nothing in this bill is intended to affect any of the pending suits against the Government or individual Government officials.

Third, this provision does not make any determination as to whether the program in question was legal. It only grants the telecommunications carriers immunity if the Attorney General certifies those carriers cooperated with intelligence activities designed to detect or prevent a terrorist attack and that such a request was made in writing and with the assertion that the program was authorized by the President and determined to be lawful.

Finally, this bill provides the fairest course of action for addressing corporations that, when presented with an urgent official request at a critical period for our Nation's security, acted in a patriotic manner and provided assistance in defending this Nation. These companies were assured that their cooperation was not only legal but necessary and essential because of their unique technical capabilities. Also note that the President initially authorized the NSA program in the early days and weeks after the September 11 attacks, attacks that shocked our Nation and forced us to quickly react and adjust to the new reality of the 21st century, where terrorism was occurring in our own backyard. If a telecommunications company was approached by Government officials asking for assistance in warding off another terrorist attack and those Government officials produced a document stating the President had authorized that specific activity and that activity was regarded as legal, could we say the company acted unreasonably in complying with this request?

In the interest of protecting our Nation in this new environment of the 21st century and bringing stability and certainty to the men and women who are in our intelligence community as they carry out their very vital and critical missions in defending and preserving our freedoms at home, I urge passage of FISA reform that is bipartisan, that respects an active balance among all branches of Government, that will establish a key role for the courts going forward in evaluating surveillance measures in the United States and against U.S. persons abroad and that we will allow the intelligence community to devote its full efforts to fighting and winning the war on terror.

I yield the floor.

The Presiding Officer (Mr. Pryor): The Senator from Oklahoma.