Washington—Senator Dianne Feinstein (D-Calif.), Chairman of the Senate Intelligence Committee, today delivered the following remarks on the Senate floor urging a four year extension of three provisions of the Foreign Intelligence Surveillance Act that will expire on Thursday, May 26 at midnight.
Below are Senator Feinstein’s remarks:
As Chairman of the Senate Intelligence Committee, I wish to point out that as of Friday; there are three provisions of the Foreign Intelligence Surveillance Act which are going to expire. Those three provisions are something called “roving wiretaps,” the “lone wolf” provision, and the “business records” authority.
Because of prior discussions, let me point out up-front that this does not include national security letters, just these three provisions: roving wiretaps, the “lone wolf,” and the business records authorities.
I very much appreciate that the Majority Leader and the Republican leader have come together in agreement to bring this legislation to the Senate floor. Because of its importance, particularly at this point in time, I hope we will be able to conclude this business and see that those provisions are extended for 4 years before Friday.
Many of us strongly believe when it comes to national security there should be no partisan divide, only strong bipartisan support. So this measure should receive a substantial vote this afternoon, and the Senate will pass it quickly this week before these key authorities expire.
But before talking about the substance of the legislation, let me describe the context in which this debate occurs.
Three weeks ago, on May 1, the United States carried out a risky, complicated, but ultimately successful, strike against Osama bin Laden, in Abbottabad, Pakistan. The strike was the culmination of nearly a decade-long intelligence operation to locate bin Laden.
Similar to most complex intelligence challenges, finding bin Laden was the product of multiple intelligence sources and collection methods. It was a seamless effort led by the CIA, with important contributions from the National Security Agency--known as the NSA--and the National Geospatial Intelligence Agency as well.
The intelligence mechanisms that are employed in counterterrorism operations are carefully and regularly reviewed by the Senate's Intelligence Committee, which I have the honor to Chair. Some are also overseen by the Judiciary Committee, on which I also have the pleasure to serve.
These intelligence tools include the provisions of the Foreign Intelligence Surveillance Act, or FISA, and in particular the three provisions that will, if not reauthorized, expire on May 27. Again, they are the roving wiretap, the “lone wolf,” and the business records authorities.
The point is, we as a nation rely on certain secret sources and methods to protect our national security. Most other nations do as well.
It is also important to note that the strike against bin Laden, while a critical strategic blow to al Qaeda, is also very likely to lead to reprisal attempts.
There have been calls for attacks against the United States after the bin Laden strike from al Qaeda in Pakistan, from al Qaeda affiliates in Yemen and North Africa. There is a very real concern that radicalized Americans here at home may contemplate violence in response to extremists' calls for retribution.
So this is a time of heightened threat--maybe no specific threat, but certainly heightened threats. We are seeing attacks in Pakistan carried but by the Taliban in reprisals for this attack as well. Therefore, this is a time when our vigilance must also be heightened.
Key officials from the National Counterterrorism Center, the FBI, and the Department of Homeland Security recently described to the Intelligence Committee in closed session how their respective agencies have heightened their defensive posture over these very concerns.
Clearly, this is a time where every legal counterterrorism and intelligence-gathering mechanism should be made available.
It is also a time to seize the opportunity to further disrupt al Qaeda. The assault on the bin Laden compound netted a cache of valuable information: papers, videos, computer drives, and other materials about al Qaeda's vision and al Qaeda's plans.
The intelligence community established an interagency task force to go through that material as quickly as possible. I am hopeful that previously unknown terror plots will be identified and information leading to the location of terrorists will be found.
Authorities such as the three provisions set to expire this Friday may well prove critical to thwarting new plots and finding terrorists. They must be renewed.
Let me describe the three provisions in more detail.
First, the roving wiretap provision. Roving wiretap authority was first authorized for intelligence purposes in the PATRIOT Act in 2001. But, as you know, it has been used for years in the criminal context. This provision, codified in the Foreign Intelligence Surveillance Act, provides the government with the flexibility necessary to conduct electronic surveillance against elusive targets.
Let me explain.
In most cases under FISA, the government can go to the Foreign Intelligence Surveillance Act Court--which I will describe in detail later--and present an application to tap the telephone of a suspected terrorist or spy. The FISA Court reviews the application and can issue an order--basically a warrant--to allow the government to tap a phone belonging to that target.
We all know in this day and age there are disposable or “throw away” cell phones that allow foreign intelligence agents and terrorists not only to switch numbers but also to throw away their cell phone and replace it with another.
This roving wiretap authority allows the government to make a specific showing to the FISA Court that the actions of a terrorist or spy may have the effect of thwarting intelligence. In other words, they make one appearance, and the government can thus seek, and the FISA Court can authorize, a roving wiretap so that the FBI, for example, can follow the target without having to go back to the Court for each cell phone change.
Instead, the FBI in this case would report to the FISA Court, normally within 10 days of following the target to a new cell phone, with information on the fact justifying the belief that the new phone was or is being used by the target.
The Justice Department has advised Congress that the authority to conduct roving electronic surveillance under FISA has proven to be operationally useful in some 20 national security investigations annually. So this provision is both used and very necessary in this day of throw away cell phones.
“Lone wolf” authority allows the government to request, and the FISA Court to approve, intelligence collection against non-U.S. persons who engage in international terrorism but for whom an association with a specific international terrorist organization may not yet be known.
Let me explain that more clearly. All other FISA surveillance and searches must be focused on a target who the government can prove is tied to a foreign power. Before the government can tap a phone or search a residence, it needs to demonstrate that the person it is after is an employee or spy or otherwise working for, or on behalf of, another country or terrorist group.
The “lone wolf'” provision, which was added to FISA in 2004, recognizes that there may be cases where the government suspects an individual inside the United States of plotting a terrorist attack, but it has not been able to link that individual to al Qaeda, al Shabaab, or another group.
The “lone wolf” authority allows the government to go to the FISA Court, show why it believes a non-U.S. person is engaging in terrorist activity, and get a warrant to begin surveillance. This is not done without a warrant from the court.
It also allows for court-ordered collection against a non-U.S. target who may have broken with a terrorist organization while continuing to prepare for an act of international terrorism.
The Justice Department has advised Congress that although to date it has not used this authority, the “lone wolf” authority nevertheless fills an important gap in U.S. collection capabilities, and we have it if we need it.
The recent case of Khalid Aldawsari, a Saudi national arrested in Texas this past February, shows why the “lone wolf” authority is necessary. Aldawsari was arrested after the FBI learned he had purchased chemicals and conducted research needed to make improvised explosive devices. He had also researched bomb targets, including dams in California and the Dallas residence of former President George W. Bush.
Unlike other recent terrorists such as Najibullah Zazi, David Headley, and Umar Farouk Abdulmutallab, Aldawsari was not identified on the basis of his connections to foreign terrorist organizations, or known at the time of his capture to be working with one.
He is better described as one of the most recent cases of individuals already inside the United States who became radicalized and committed to carrying out terrorist attacks.
So it is for this kind of threat that the “lone wolf” authority is important and why we should extend this mechanism. It is also this kind of threat that the Intelligence Community is now especially worried about, as people inside the United States may be spurred to action in retaliation for the strike against bin Laden.
If the FBI, the Department of Homeland Security, or a State or local police officer identifies someone building bombs, it is necessary to move quickly and not take time to research a possible connection to al Qaeda before we use FISA authorities to learn what they are up to and when and how they might strike.
Business records. The third authority covered by this legislation is known as the business records provision and provides the government the same authority in national security investigations to obtain physical records that exist in an ordinary criminal case through a grand jury subpoena.
Business records authority has been used since 2001 in FISA to obtain driver's license records, hotel records, car rental records, apartment leasing records, credit card records, among other business records. This is the way in which you track a target.
Let me note that while the debate over this provision has often focused on library circulation records, the Justice Department has advised the Congress that this authority has never--let me stress, never--been used to obtain library circulation records.
We had a big debate on this issue when this came up before. In fact, this authority has never been used for library circulation records.
The Department has informed Congress that it submitted 96 applications to the FISA Court for business record orders last year. The Justice Department has further stated that some business records orders have been used to support critically important and highly sensitive intelligence collection activities. The House and Senate Intelligence Committees have been fully briefed on that collection.
Information about this sensitive collection has also been provided to the House and Senate Judiciary Committees, and information has been available for months to all Senators for their review.
The details on how the government uses all three of these authorities are classified and discussion of them here would harm our ability to identify and stop terrorist attacks and espionage. But, if any Senators would like further details, I encourage them to contact the Intelligence Committee, or to request a briefing from the Intelligence Community or the Department of Justice.
I have mentioned several times the role of the Foreign Intelligence Surveillance Court. Let me describe what it is and how it operates.
The FISA Court is a special court. It is a set of 11 Federal district judges, each of whom is appointed by the Chief Justice to specifically serve in this role.
At least one of these judges is available at all times--24 hours a day, 7 days a week, 365 days a year--for the purpose of reviewing government applications to use FISA authorities and, if those applications are sufficient, approving them by issuing an order, or what we call in the criminal law, a warrant.
The FISA Court judges meet in closed session to review classified declarations, and they provide very careful judicial review of the government's applications. They are expert in this specialized area of the law, as is their expert staff. The Department of Justice officials who come before them take all care in making their case and presenting their facts, as they do in public court.
The American people should understand that these FISA authorities we are discussing now--the ability to conduct electronic surveillance and obtain records--are subject to strict oversight. A Senate-confirmed official in the Department of Justice, the Attorney General, the Deputy Attorney General, or the Assistant Attorney General for National Security--one of these three must, and I stress must--sign off on every application before it goes to the Foreign Intelligence Surveillance Court.
Federal judges, also confirmed by the Senate, must approve the applications. Inspectors General conduct regular audits and oversight as well. The Senate and House Intelligence and Judiciary Committees receive regular reports from the Department of Justice on the use of all FISA authorities, as well as briefings from the FBI and NSA on the implementation of the FISA statute.
The three authorities reauthorized by this legislation have been debated extensively on this floor and in this Congress since it came up for reauthorization in 2009. Every single national security official to come before the Congress in the past 2 years has testified that these provisions are vital to protect America and has urged their reauthorization.
It is very hard, I think, to vote no in the face of what we have been told in classified intelligence briefings and in hearings by officials from the Attorney General's office and the FBI. In fact, the Attorney General and the Director of National Intelligence wrote a letter to Leaders Reid and McConnell today, May 23, expressing their strong support for immediate enactment of the legislation we are now considering.
I ask unanimous consent to have printed in the Record the letter to Leaders Reid and McConnell.
There being no objection, the material was ordered to be printed in the Record, as follows:
Hon. John Boehner, Speaker, U.S. House of Representatives, Washington, DC.
Hon. Harry Reid, Majority Leader, U.S. Senate, Washington, DC.
Hon. Nancy Pelosi, Democratic Leader, U.S. House of Representatives, Washington, DC.
Hon. Mitch McConnell, Republican Leader, U.S. Senate, Washington, DC.
Dear Speaker Boehner And Leaders Reid, Pelosi, And McConnell:
We write to express our strong support for the immediate enactment of S. 1038, the Patriot Sunsets Extension Act of 2011. The Foreign Intelligence Surveillance Act (“FISA”) is a critical tool that has been used in numerous highly sensitive intelligence collection operations. Three vital provisions of FISA are scheduled to expire after May 26, 2011: section 206 of the USA PATRIOT Act, which provides authority for roving surveillance of targets who take steps that may thwart FISA surveillance; section 215 of the USA PATRIOT Act, which provides expanded authority to compel production of business records and other tangible things with the approval of the FISA court; and section 6001 of the Intelligence Reform and Terrorism Prevention Act, which provides the authority under FISA to target non-United States persons who engage in international terrorism or activities in preparation therefore, but are not necessarily associated with an identified terrorist group (the so-called “lone wolf” definition).
In the current threat environment, it is essential that our intelligence and law enforcement agencies have the tools they need to protect our national security. At this critical moment there must be no interruption in our ability to make full use of these authorities to protect the American people, and we urge the Congress to pass the bill and send it to the President without delay.
The Office of Management and Budget has advised us that there is no objection to this letter from the perspective of the Administration's program.
James R. Clapper,
Director of National Intelligence.
Eric H. Holder, Jr.,
Mr. President, let me point out there are no recent cases of abuse of these authorities. The oversight system in place is working well, I believe, to ensure they will not be misused in the future.
Other Senators may come to this floor and talk about abuses of these authorities, but I ask: Listen carefully. Chances are they are talking about a section not involved here, and that is the section on national security letters. Again, national security letters are not touched by these three sections we are renewing today. And I would say, yes, they were abused or misused in years past, according to the Inspector General of the Department of Justice. But corrections have been made since then. More important, for today's debate, there is nothing we are taking up today that affects or mentions national security letters at all. I have referred to this now four times. I hope I get it across because that is what happened last time. People came to the floor and what they were talking about was not in the legislation we were considering.
Earlier this year, I was pleased to support legislation authored by Senator Leahy that would have made several improvements in the Foreign Intelligence Surveillance Act in order to better protect privacy rights and civil liberties. But the point I made during the debate in the Judiciary Committee, which I will repeat again today, is that many of these changes were in fact codifying practices the Department of Justice and the FBI have already implemented.
For example, minimization. That was one of the issues that was discussed. It has been implemented. The departments are listening and they have taken action where there have been problems.
I wish to say to my colleagues that the Executive Branch has heard and has acted to address concerns about intrusions into Americans' civil liberties. The Office of the Inspector General in the Department of Justice has indicated that it intends to conduct audits and inspections to ensure that the implementation of FISA is in full compliance with the law, and its reports will be carefully reviewed by this Congress and by the concerned Committees. A major priority of the Intelligence Committee in this house is to conduct regular oversight on the use of FISA authorities, and we will continue to do so after passage of this legislation.
Just about every administration official to testify on the use of FISA authorities has also noted the importance of having the stability that comes with a long-term extension. Since December of 2009, when we reauthorized it, the Congress has passed three short-term extensions--one for 2 months, one for 1 year, and one for 3 months. By lurching from one sunset to another, we run the risk that these intelligence authorities are going to expire. And here we are, once again, because they expire this Friday. I hope Members will think about that. I hope Members who want to produce an amendment will think about the following: if they expire, what if NSA and other agencies have to stop, what if they miss something, what if something happens? That is a responsibility that rests on the heads of everyone in these two bodies--both the House of Representatives and the Senate of the United States.
Even short of that, by providing one short-term extension after another--2 months here, 1 year there--we create significant uncertainty in the Intelligence Community as investigators are not sure whether these tools will continue to be available to them. I can tell you as one who tries to read the intelligence rather assiduously, we are not out of harm's way, and no one should believe that. People are plotting every day as to how they can send someone into the United States or convince someone in the United States to attack this country. The only thing we have to prevent this from happening is intelligence and an FBI that is now able to institute surveillance and tracking on possible targets in this country.
We have come, in my judgment, a long way since 9/11, but we cannot leave this country vulnerable. We must keep our guard up, and we must see that the intelligence mechanisms that are available to this country are able to be utilized.
This legislation now extends the use of these sunsetting authorities for 4 years, to June 1, 2015. In view of the times we are living in, I believe this is appropriate, it is keeping with past practice, and it is vital to the protection of the United States of America.
The PATRIOT Act was enacted in October 2001, and several provisions were up for review and reauthorization 4 years later in December of 2005. After some significant debate, some of the original PATRIOT Act provisions were made permanent and some were reauthorized for another 4 years until the end of 2009.
The “lone wolf” authority that expires later this week was first enacted in the Intelligence Reform Act of 2004 and placed in the same sunset cycle as the roving wiretap and business records authorities. Under the model established in the PATRIOT Act and a subsequent reauthorization, a 4-year extension from the end of May 2011 to June 2015 is based on sound congressional practice.
These issues have been debated and re-debated and should be very familiar to Members, especially those on the Intelligence and Judiciary Committees.
I hope we are now going to act in the best interests of protecting the people of this country from another terrorist attack by passing this legislation so our intelligence professionals can continue to keep this Nation secure.
Mr. President, I yield the floor.