The FISA Amendments Act of 2008

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Mr. Bond: Mr. President, I thank my colleague from Georgia. I thought maybe, if anybody is still listening, we would talk a little bit about the intent of the Foreign Intelligence Surveillance Act. I hope maybe we can clarify some of the misunderstandings.

First, I believe that when the distinguished Senator from California, a valued member of the committee, Mrs. Feinstein, spoke on the origins of FISA, she correctly noted that it was created, at least in part, in response to the disclosed abuses of domestic national security surveillance. However, as the legislative history makes clear, FISA was never intended to regulate the acquisition of the contents of international or foreign communications where the contents are acquired by intentionally targeting a particular known U.S. person who is in the United States.

The legislative history states:

This bill does not afford protections to U.S. persons who are abroad, nor does it regulate the acquisition of the contents of international communications of U.S. persons who are in the United States, where the contents are acquired unintentionally. The Committee does not believe this bill is the appropriate vehicle for addressing this area. The standards and procedures for overseas surveillance may have to be different than those provided in this bill for electronic surveillance within the United States, or targeted against U.S. persons who are in the United States.

In essence, then, FISA, as originally drafted, was a domestic foreign intelligence surveillance act. Congress was concerned about targeting persons inside the United States with interceptions conducted inside the United States.

The FISA Act amendments legislation we are considering today is a very different animal, and it could be better characterized as an international foreign intelligence surveillance act. The bill is concerned mainly with targeting persons outside the United States when interception might occur inside the United States. What do I mean by that? The legislation will regulate how the President may conduct electronic surveillance of foreign terrorists operating in foreign countries when their communications just happen to pass through the United States on wire communications networks.

This strange interference with the intelligence community's and, indeed, the President's authority to conduct foreign intelligence activities appears to arise from an overabundant concern about the "rights" of persons in the United States whose communications are incidentally collected when they talk to terrorists overseas.

It is odd that we are creating a new law in this area that departs from the original construct of FISA because in the international surveillance realm, there have been no significant abuses of the intelligence community's ability to collect overseas foreign intelligence.

Unfortunately, two factors have compelled us to make these changes to FISA. First, we need to ensure that the critical intelligence gaps identified by the DNI last year do not reappear.

The Protect America Act effectively closed those gaps last summer, but there was bipartisan agreement that we could improve on its provisions, especially in the area of carrier liability protection, and that is what our committee did.

Second, this legislation is also required because we must address the practical reality that electronic communications service providers are now insisting on a formal process to compel cooperation in the foreign arena in order to obtain prospective liability protection similar to that enjoyed for domestic intelligence and criminal wiretaps. That is why the carrier liability protection and prospective liability protection provisions of this bill are so important.

Another area where we are departing from the original intent of FISA is the targeting of U.S. persons abroad. FISA, as passed in 1978, left the targeting of American citizens abroad to the President's Executive order applicable to the intelligence community and the procedures approved by the Attorney General. In this legislation for the first time in history, we build into the FISA new laws that govern the targeting of U.S. persons overseas who are agents, officers or employees of foreign powers when a significant purpose of the acquisition is to obtain foreign intelligence information.

These new procedures are sometimes referred to as 2.5 procedures because they are based in part upon section 2.5 of Executive Order 12333, which has long governed the electronic surveillance of U.S. persons overseas by requiring the approval of the Attorney General based upon a finding of probable cause that the target is a foreign power or agent of a foreign power.

These 2.5 changes were part of the overall bipartisan compromise and now require prior court review by the Foreign Intelligence Surveillance Court of all surveillance conducted by the U.S. Government targeting U.S. persons overseas. Americans will still be on their own with respect to being surveilled by foreign governments overseas, but at least they can remain confident that if they are not working for a foreign power as a spy or terrorist, their own Government will not be listening to their conversations.

The last area that merits discussion on the issue of FISA's original intent is the Foreign Intelligence Surveillance Court. We refer to it as the FISC. According to section 103 of FISA, the FISC was established as a special court with nationwide jurisdiction to "hear applications for and grant orders approving electronic surveillance anywhere within the United States." That is it.

As evidenced by the application and order requirements in FISA, each application is for a "specific target" for the significant purpose of obtaining foreign intelligence information.

The court was originally structured so its seven judges would provide geographical diversity. The post-9/11 expansion of the FISC from 7 to 11 judges enhanced that diversity. Judges are nominated by the chief judge of their circuit to promote ideological balance on the FISC.

It was clearly recognized that only one or two judges would be in Washington, DC, on a rotating basis at any given time. This was intended to discourage judge shopping and make it unlikely that an application for the extension of an order would be heard by the same judge who granted the original order.

The FISC was never envisioned as a court that would or should handle protracted litigation. It possesses neither the staff nor the facilities to preside over such litigation. Moreover, it is very likely that such prolonged litigation would interfere with the main business of the FISC, which is to ensure the timely review and approval of individual operational FISA applications for court orders.

We need to remember that the FISC was set up to review domestic electronic surveillance and later physical searches, an area that has numerous parallels to the similar reviews conducted by district court judges when they are asked to authorize criminal wiretaps. As I mentioned previously, even the FISC has acknowledged its lack of expertise in the foreign-targeting context, which is, they say, better left to the executive branch.

The Court's recent opinion in the case of In re: Motion for Release of Court Records stated:

… even if a typical FISA judge had more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security.

We should be very hesitant to disregard the Court's own assessment of its competency in the overseas intelligence realm, especially given the original intent of FISA. I urge all my colleagues to be mindful of the Court's own words as we consider some of the proposed amendments, particularly those that would allow the court to assess compliance with minimization procedures used to target foreign terrorists. For example, amendment Nos. 3920 and 3908, and would require the court to determine the good faith of those providers who allegedly assisted the Government with the Terrorist Surveillance Program. As examples, amendment Nos. 3919 and 3858.

In conclusion, I offer these observations mainly to ensure the record reflect the legislation departs from FISA's original intent in a deliberate and carefully tailored manner. While there are some practical considerations, including a desire for a strong bipartisan bill, that have driven the need for this legislation, we should be extremely careful about adding new or changing existing provisions in the bill that could negatively impact the operational effectiveness of our intelligence community or provide unwarranted protection to overseas terrorists and spies.

Mr. President, I will not propound a unanimous consent request now, but I advise my colleagues that if we cannot reach agreement, I will ask unanimous consent that all amendments to the FISA bill be brought up and decided at a 60-vote threshold so we can move forward on this important legislation. I am not making that request now. I alert my colleagues on the other side of the aisle, I hope that will not be necessary, but we have not had a response to our proposal on how we move forward. We have been at this a week now, and we only have, at best, two full working weeks before we go on recess. We must get this bill done, sent to the House, conferenced, and passed before we leave for the President's Day recess. Failure to do so could leave our intelligence community without the tools they need and, thus, America without the protection it needs.

I yield the floor.

The Presiding Officer (Mr. Menendez): The Senator from Colorado.