Jun 25 2008
Mrs. FEINSTEIN. Thank you very much, Mr. President.
Mr. President, I begin my remarks by thanking the chairman of the Intelligence Committee, Senator Rockefeller, and the vice chairman of the Intelligence Committee, Senator Bond, the House Speaker, and the House leadership for their distinguished work on this piece of legislation. This has not been easy. It is certainly not without controversy. There are some major challenges to work through.
I want to begin by putting my remarks, at least, in context.
There is no more important requirement for national security than obtaining accurate, actionable intelligence. At the same time, there have to be strong safeguards in place to ensure that the Government does not infringe on Americans’ constitutional rights.
Yet if Congress does not act and pass this bill, as it was passed overwhelmingly in the House, both of these goals, I believe, are in jeopardy. Here is why. If this bill does not pass, our Nation would likely be forced to either extend the Protect America Act or leave the Nation bare until a new bill can be written. Neither of these are good options.
As I will describe, the Protect America Act does not adequately protect Americans’ constitutional rights. It was written to be a temporary measure for 6 months, and it expired on February 5.
What many people do not understand is that surveillance conducted under the Protect America Act will cease by the middle of August. It will be impossible to write a new bill, to get it past both Houses, to have it signed by the President in time to meet this deadline.
If that bill expires without this Congress passing new legislation, we will be unable to conduct electronic surveillance on a large number of foreign targets. In other words, our intelligence apparatus will be laid bare and the Nation will go into greater jeopardy. I truly believe that.
The FISA legislation of 1978 cannot accommodate this number of targets. It is simply inadequate for this new task due to changes in technology and the communications industry. That is precisely why FISA needs to be modernized.
So taking no action means we will be opening ourselves, in my view, to the possibility of major attack. This is unacceptable.
So as I see it, our choice is a clear one: We either pass this legislation or we extend the Protect America Act. For me, this legislation is much the better option.
This bill, in some respects, improves even on the base bill, the 1978 Foreign Intelligence Surveillance Act. It provides clear protections for U.S. persons both at home and abroad. It ensures that the Government cannot conduct electronic surveillance on an American anywhere in the world without a warrant. No legislation has done that up to this point.
I think the improvements in this bill over the Protect America Act and the 1978 legislation are important to understand, and I wish to list a few.
First, prior court review. This bill ensures that there will be no more warrantless surveillance. Now, why do I say this? Under the Protect America Act--which is expiring, but we are still collecting surveillance under it for now--the intelligence community was authorized to conduct electronic surveillance for a period of 4 months before submitting an application for a warrant to the FISA Court. Surveillance could actually proceed for 6 months before there was a warrant.
Under this bill, the Government must submit an application and receive a warrant from the FISA Court before surveillance begins. No more warrantless surveillance. This is, in fact, a major point.
In emergency cases, there can be a short period of collection--up to 7 days--as the application is prepared. There has been a provision for emergency cases under FISA for some 30 years now. So that is prior court review for a U.S. person anywhere in the world if content is collected.
Meaningful court review. This bill strengthens court review. Under the Protect America Act, the Government submitted to the FISA Court its determination that procedures were in place to ensure that only people outside the United States would be targeted. The court could only reject an application for a warrant if it found that determination to be ``clearly erroneous.’’ This bill returns to the traditional FISA standard, empowering the court to decide whether the Government’s determination is ``reasonable.’’ This is a higher standard of review, so the court review under this bill is meaningful.
Next, minimization. These first two improvements ensure that the Government will only be targeting people outside the country. That is good, but it is not enough. There is always the possibility of someone outside the country talking to a U.S. person inside the country. The bill addresses this with a process known as minimization.
In 1978, Congress said that the Government could do surveillance on U.S. persons under a court warrant, but required the Government to minimize the amount of information on those Americans who get included in the intelligence reporting. In practice, this actually means that the National Security Agency only includes information about a U.S. person that is strictly necessary to convey the intelligence. Most of the time, the person’s name is not included in the report. That is the minimization process.
If an American’s communication is incidentally caught up in electronic surveillance while the Government is targeting someone else, minimization protects that person’s private information.
Now, the Protect America Act did not provide for court review over this minimization process at all. But this bill requires the court in advance to approve the Government’s minimization procedures prior to commencing with any minimization program. That is good. That is the third improvement.
Fourth, reverse targeting. There is an explicit ban on reverse targeting. Now, what is reverse targeting? That is the concern that the National Security Agency could get around the warrant requirement. If the NSA wanted to get my communications but did not want to go to the FISA Court, they might try to figure out who I am talking with and collect the content of their calls to get to me. This bill says you cannot do that. You cannot reverse target. It is prohibited. This was a concern with the Protect America Act, and it is fixed in this bill.
Those are four reasons--good reasons. Here is a fifth: U.S. person privacy outside the United States. This bill does more than Congress has ever done before to protect Americans’ privacy regardless of where they are, anywhere in the world. Under this bill, the executive branch will be required to obtain a warrant any time it seeks to direct surveillance at a U.S. person anywhere in the world. So any U.S. person anywhere in the world is protected by the requirement that a warrant must be received from the Foreign Intelligence Surveillance Court before electronic surveillance can begin.
Previously, FISA only covered people inside the United States. The Protect America Act did the same thing.
Now, also under this bill, there will be reviews of surveillance authorities by the Director of National Intelligence, the Attorney General, the heads of all relevant agencies, and the inspectors general of all relevant agencies on a regular basis, and the FISA Court and the Congress will receive the results of those reviews.
So there will be regular reporting from the professionals in the arena on how this bill is being followed through on--how electronic surveillance is being carried out worldwide. The Intelligence and Judiciary Committees will receive those reports. That, too, is important.
Also, under this bill, there will be a retrospective review of the President’s Terrorist Surveillance Program. That is the program that has stirred the furor. The bill requires an unclassified report on the facts of the program, including its limits, the legal justifications, and the role played by the FISA Court and any private actors involved. This will provide needed accountability.
In summary, all intelligence collection under the Terrorist Surveillance Program will be brought under court review and court orders.
Everything I have described brings this administration back under the law. There is no more Terrorist Surveillance Program. There is only court-approved, Congressionally reviewed collection.
But what is to keep this administration or any other administration from going around the law again? The answer is one word, and it is called exclusivity.
It means that the Foreign Intelligence Surveillance Act is the only, the exclusive, means for conducting electronic surveillance inside the United States for foreign intelligence purposes.
The exclusivity language in this bill is identical in substance to the amendment I offered in February, which received 57 votes in this Senate. It is section 102 of this bill.
This language reiterates what FISA said in 1978, and it goes further. Here is what this bill says:
Never again will a President be able to say that his authority--or her authority, one day, I hope--as Commander in Chief can be used to violate a law duly enacted by Congress.
Never again can an Executive say that a law passed to do one thing--such as use military force against our enemies--also overrides a ban on warrantless surveillance. The administration has said that the resolution to authorize the use of military force gave this President the right to go around FISA.
Never again can the Government go to private companies for their assistance in conducting surveillance that violates the law.
Now, this administration has a very broad view of Executive authority. Quite simply, it believes that when it comes to these matters, the President is above the law. I reject that notion in the strongest terms.
I think it is important to review the recent history with this administration to demonstrate why FISA exclusivity is so important.
At the very beginning of the Terrorist Surveillance Program, John Yoo, at the Office of Legal Counsel, wrote in a legal opinion that:
..... [u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area--which it has not--then the statute must be construed to avoid [such] a reading.
That was the argument. I believe it is wrong. Congress wrote FISA in 1978 precisely in the field of national security; there are other, separate laws that govern wiretapping in the criminal context. In fact, the Department of Justice has repudiated Yoo’s notion.
But if the Department admitted that FISA did apply, it found another excuse not to take the Terrorist Surveillance Program to the FISA Court.
The Department of Justice developed a new, convoluted argument that Congress had authorized the President to go around FISA by passing the authorization to use military force against al-Qaida and the Taliban.
This is as flimsy as the last argument.
There is nothing in the AUMF that talks about electronic surveillance or FISA, and I know of not one Member who believed we were suspending FISA when we authorized the President to go to war.
But that is another argument we lay to rest with this bill. Here is how we do it. We say in the language in this bill that FISA is exclusive. Now, here is the major part: Only a specific statutory grant of authority in future legislation can provide authority to the Chief Executive to conduct surveillance without a FISA warrant.
So we go a step further in exclusivity. We cover what Yoo was trying to argue and what others might argue on behalf of a Chief Executive in the future, by closing the loophole and saying: You need specific statutory authority by the Congress of the United States to go outside the law and the Constitution.
The final argument the President has made is that even if FISA was intended to apply, and even if the AUMF didn’t override FISA’s procedures, he still had the authority as Commander in Chief to disregard the law.
Now, I have spoken on the floor before about how the President believes he is above the law and the Youngstown Sheet and Tube Company v. Sawyer case. In that case, Justice Jackson described how the President’s power is at the ``lowest ebb’’ when he is acting in contravention to the will of the Congress.
This bill, again, makes it clear that the will of Congress is that there will be no electronic surveillance inside the United States without a warrant, and it makes clear that any electronic surveillance that is conducted outside of FISA or outside of another express statutory authorization for surveillance is a criminal act. It is criminalized. This is the strongest statement of exclusivity in history.
The reason I am describing all this is to build a case of legislative intent in case this is ever litigated, and I suspect it may well be.
So, finally, I wish to read into the Record the comments on exclusivity from a June 19, 2008, letter that Attorney General Mukasey and Director of National Intelligence McConnell wrote to the Congress. The letter recognizes that the exclusivity provision in this bill “goes beyond the exclusive means provision that was passed as part of FISA [in 1978].”
So they essentially admit we are taking exclusivity to a new high. Nevertheless, they acknowledge that the provision in this bill “would not restrict the authority of the government to conduct necessary surveillance for intelligence and law enforcement purposes in a way that would harm national security.”
I said in February I could not support a bill without exclusivity. This is what keeps history from repeating itself and another President from going outside the law. I believe that with this language we will prevent it from ever happening again.
Now, a comment on title II of the bill, which is the telecom immunity section. This bill also creates a legal process that may--and, in fact, is likely to--result in immunity for telecommunications companies that are alleged to have provided assistance to the Government.
I have spent a great deal of time reviewing this matter. I have read the legal opinions written by the Office of Legal Counsel at the Department of Justice. I have read the written requests to telecommunications companies. I have spoken to officials inside and outside the Government, including several meetings with the companies alleged to have participated in the program.
The companies were told after 9/11 that their assistance was needed to protect against further terrorist acts. This actually happened within weeks of 9/11. I think we can all understand and remember what the situation was in the 3 weeks following 9/11.
The companies were told the surveillance program was authorized and that it was legal, and they were prevented from doing their due diligence in reviewing the Government’s request. In fact, very few people in these companies--these big telecoms--are actually cleared to receive this information and discuss it. So that creates a very limited universe of people who can do their due diligence within the confines of a given telecommunications company.
For the record, let me also address what I have heard some of my colleagues say. At the beginning of the Terrorist Surveillance Program, only four Senators were briefed. The Intelligence Committee was not, other than the Chairman and Vice Chairman.
I am one who believes it is right for the public and the private sector to support the Government at a time of need. When it is a matter of national security, it is all the more important.
I think the lion’s share of the fault rests with the administration, not with the companies.
It was the administration who refused to go to the FISA Court to seek warrants. They could have gone to the FISA Court to seek these warrants on a program basis, and they have done so subsequently.
It was the administration who withheld this surveillance program from the vast majority of Members of Congress, and it was the administration who developed the legal theories to explain why it could, in fact, go around the law.
So I am pleased this bill includes independent reviews of the administration’s actions to be conducted by the inspectors general of the relevant departments.
All of that said, when the legislation was before the Senate in February, I stated my belief that immunity should only be provided if the defendant companies acted legally, or if they acted in good faith with a reasonable belief that their actions were legal. That is what the law calls for.
I moved an amendment to require the court to review the written requests to companies to see whether they met the terms of the law. That law requires that a specific person send a certification in writing to a telecommunications company. That certification is required to state that no court order is required for the surveillance, that all statutory requirements have been met, and that the assistance is required by the Government.
Unfortunately, my amendment was not adopted, but I continue to believe it is the appropriate standard.
Now, the pending legislation does not assess whether the request made by the Government was, in fact, legal, nor whether the companies had a good-faith and objective belief that the requests were legal. What this bill does provide is a limited measure of court review. It is not as robust as my amendment would have provided, but it does provide an opportunity for the plaintiffs to be heard in court, and it provides an opportunity for the court to review these request documents.
I believe the court should not grant immunity without looking into the legality of the companies’ actions. So if there is an amendment that does support this, I would intend to vote for it.
But I believe the Record should be clear in noting that if this bill does become law, in my view, it does not mean the Congress has passed judgment on whether any companies’ actions were or were not legal. Rather, it should be interpreted as Congress recognizing the circumstances under which the companies were acting and the reality that we desperately need the voluntary assistance of the private sector to keep the Nation secure in the future.
I believe this bill balances security and privacy without sacrificing either. It is certainly better than the Protect America Act in that regard, and makes improvements over the 1978 FISA law.
As I said, if a new bill is not in place by mid-August, the Nation will be laid bare and unable to collect intelligence.
This bill provides for meaningful and repeated court review of surveillance done for intelligence purposes. It ends, once and for all, the practice of warrantless surveillance, and it protects Americans’ constitutional rights both at home and abroad. It provides the Government with the flexibility it needs under the law to protect our Nation. It makes it crystal clear that this is the law of the land and that this law must be obeyed.
I yield the floor.