senator patrick leahy, on FISA:
Statement Of Senator
Patrick Leahy (D-Vt.)
On The Judiciary Committee’s
Proposed Amendment To
The FISA Amendments Act Of 2007, S.2248
January 24, 2008
Provisions In The Senate Judiciary Committee
Passed Substitute Amendment
To The FISA Amendments Act Of 2007
Strong, new language reaffirming that FISA is the exclusive means for conducting foreign intelligence electronic surveillance. Meaningful oversight by the FISA Court by ensuring that the FISA court can conduct oversight of the government’s use of minimization procedures, the procedures used to safeguard against unnecessary intrusion on Americans’ communications and giving the FISA Court the discretion to impose restrictions on the use and dissemination of Americans’ information if the FISA court determines that the procedures used to acquire that information were deficient. Prohibition of ‘bulk collection,’ clarifying that the government is prohibited from using the new authority in the legislation to collect contents of communications in bulk, and narrows the definition of ‘contents.’ Strengthened Prohibition on Reverse-Targeting by reducing the risk of reverse-targeting by requiring a FISA court order where a significant purpose of targeting a particular, known person abroad is to acquire the communications of a U.S. person. A fix to provisions governing the targeting of U.S. persons overseas as included in the Senate Intelligence bill. The Intelligence Committee bill provides that the government must make a probable cause showing to the FISA court if it wants to target a U.S. person overseas, thereby protecting Americans who travel, live or work abroad. The Judiciary bill maintains this important limitation, but adds an emergency requirement for situations where there is no time to seek a FISA court warrant. This ensures that national security will not be jeopardized in time-sensitive investigations. Increased oversight by Congress by mandating that the relevant Offices of Inspectors General jointly examine the legality of the Terrorist Surveillance Program and the process by which the program was authorized, and report back to Congress. Shortened the sunset provision from six to four years.
Mr. President, I speak today in support of the Judiciary Committee’s amendment to the FISA Amendments Act of 2007, which the Select Committee on Intelligence reported last fall. The Judiciary Committee amendment would make important improvements to the Intelligence Committee bill, while maintaining its structure and authority. The so-called Protect America Act was rushed through the Senate last summer in an atmosphere of fear and intimidation. It was a bad bill that has provided sweeping new powers to the government. It imposes no checks on the government, and provides no oversight or protections for Americans’ privacy. The Intelligence Committee did important work last fall in crafting a bill that begins to walk back the excesses of the Protect America Act.
Two committees in the Senate have jurisdiction over FISA — the Intelligence Committee and the Judiciary Committee. The Intelligence Committee acted first, and established a good structure for conducting critical overseas surveillance. The Judiciary Committee’s amendment maintains that structure and the authority for surveillance. However, in my view, and the view of many Senators, the Intelligence Committee bill does not do enough to protect the rights of Americans. Indeed, many members of the Intelligence Committee voted for that bill knowing that the Judiciary Committee would have an opportunity to improve it – and they expected that to happen.
FISA is among the most important pieces of legislation Congress has passed. It is there to provide a mechanism to conduct surveillance that is critical to our security, but also protect the privacy and civil liberties of all Americans. Let’s be clear – this new authority expands FISA to allow more flexibility to conduct surveillance. We have to take great care to protect Americans’ civil liberties. That is what the Judiciary Committee’s amendment adds.
I want to praise our joint members, Senators Feinstein, Feingold, and Whitehouse, who, as members of both the Judiciary Committee and the Select Committee on Intelligence contributed so much to the Judiciary Committee efforts to improve this legislation, and who have worked with me to author many of the additional protections that we adopted and reported. These Senators and others on the Judiciary Committee worked hard to craft amendments that preserve the basic structure and authority proposed in the bill reported by the Select Committee on Intelligence, while adding crucial protections for Americans.
The Judiciary bill makes about 12 changes to the Intelligence Committee’s bill, and I would like to address a few of them. First, the Judiciary amendment contains a strong “exclusivity” provision. This provision makes clear that the government cannot claim authority to operate outside the law — outside of FISA — from legislative measures that were never intended to provide such exceptional authority. This administration argues that the Authorization for the Use of Military Force (AUMF), passed after September 11, provided the justification for conducting warrantless surveillance of Americans for more than five years. I introduced a resolution concerning this in the last Congress, when we were first presented with this absurd argument. When we authorized going after Osama bin Laden, the Senate did not authorize – explicitly or implicitly – the warrantless wiretapping of Americans. Yet this administration still clings to this phony legal argument. The Judiciary bill would prevent that dangerous contention with strong language reaffirming that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes. The Intelligence Committee’s bill would do nothing to preclude the AUMF argument in the future.
The Judiciary bill would also provide a more meaningful role for the FISA Court in this new surveillance. The Court is a critical, independent check on government excess in the very sensitive area of electronic surveillance. The fundamental purpose of many of the Judiciary Committee changes is to assure that this important independent check remains meaningful, while maintaining the flexibility of “blanket” orders from the Intelligence Committee bill, which we all agree are necessary. The Intelligence Committee bill, although it improves on the Protect America Act, would give the FISA Court only a very limited role in overseeing the surveillance.
The Judiciary bill would give the FISA Court the authority it needs to assess the government’s compliance with minimization procedures, request additional information from the government, and to enforce compliance with its orders. It would also give the Court the discretion to impose restrictions on the use and dissemination of Americans’ information if it was collected unlawfully.
The Judiciary bill would make other important changes. It reduces the sunset for this new law from six years to four. There is too much here that is new and untested to allow the authorities to go longer than even the next President’s term before requiring a thorough review. It clarifies that the bill does not allow bulk collection that would simply sweep up all calls into or out of the United States. It also clarifies that the government may not use this new authority to target Americans indirectly when it cannot do so directly. The administration says it will not do that, but the Intelligence Committee’s bill does nothing to prevent it.
Finally, the Judiciary Committee’s bill would include a requirement that Inspectors General, including the Department of Justice Inspector General, conduct a thorough review of the so-called Terrorist Surveillance Program and report back to the Congress and, to the greatest degree possible, the American people. The Department of Justice Inspector General will have the responsibility to look at, among other things, the process at the Department of Justice that limited knowledge and review of important legal decisions to a tiny group of like-minded individuals, at great cost to rule of law and American values. This is a key measure to finally require accountability for this administration. We have not yet had anything close to a comprehensive examination of what happened and how it happened. We cannot expect to learn from mistakes if we refuse to allow them to be examined.
As I have made clear, I strongly oppose the provision in the Intelligence Committee bill that would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year, contrary to FISA and in violation of the privacy rights of Americans. That provision goes even beyond even the so-called Protect America Act. It would insulate this administration from accountability for its lawbreaking. The Judiciary Committee bill contains no such provision.
With the authority of a majority of the Judiciary Committee members, I have made a few changes to the amendment that the Judiciary Committee reported in November. There are no major additions or deletions. The original 12 changes made by the Judiciary Committee are still there. The revised version makes some changes to address technical issues and concerns the administration has raised about our substitute. We have considered the Statement of Administration Policy sent last December and Judiciary Committee staff has had discussions with people from the administration. We have listened and made changes that we think address some legitimate concerns raised.
For example, we have revised the exclusivity provision. The provision in the earlier version of the Judiciary amendment could have been read to extend the scope of FISA in a way that was not intended. We corrected that. Another concern we addressed was about the issue of staying FISA Court decisions pending appeal. The Intelligence Committee bill would automatically stay FISA Court decisions, thereby requiring possibly illegal surveillance to continue throughout a lengthy appeal process. The original Judiciary Committee amendment left the decision about a stay to the discretion of the FISA Court judges – which is how it is typically done in courts. The administration was concerned that this left too much power to stop surveillance in the hands of a lone judge. We listened, and made a change that would permit the stay decision to be made – promptly – by a panel of the FISA Court of Review. Another change we made to address an administration concerns was in the important IG review provision. That provision now makes it clear that no department Inspector General has the authority to conduct a review of another department. These revisions make the Judiciary Committee’s product stronger.
This amendment contains important changes to the Intelligence Committee bill. They are changes that Senators will have to offer one-by-one if we do not pass this amendment. If we really want to get this FISA debate done quickly, adopting this amendment will save the Senate countless hours of debate. I urge my colleagues to support this amendment. But even if you cannot support it, I hope that you will make sure it is considered on its merits.
I believe it is important that we correct the excesses of the so-called Protect America Act. The Judiciary Committee has done good work in reporting protective measures to the Senate to add balance to the surveillance powers of the government and to better ensure the rights of Americans. I urge my colleagues to support this amendment.