Recent Speeches

Mrs. FEINSTEIN.  Mr. President, I rise today to re-introduce legislation from the last Congress that would bring all electronic surveillance of terrorists under the color of law and would modernize the rules for conducting such surveillance. I am pleased that Senator Specter, the Ranking Member of the Judiciary Committee, has co-sponsored this legislation.

We all agree that the President and the Intelligence Community should have all the tools they need to find the terrorists before they have a chance to strike us again. This cannot be said too many times in too many ways.

We also agree, though, that these intelligence tools can and should be used in a way that protects the constitutional and privacy rights of all Americans. That is the balance that this legislation attempts to strike.

Nowhere is this more at issue than in electronic surveillance, where government officials record the content of Americans’ phone and electronic communications. This important means of obtaining critical counterterrorism information is at the same time a significant, constitutionally recognized intrusion into Americans’ privacy rights.

It is worth reminding ourselves of this. We have recently focused on the use of National Security Letters, through which the FBI inappropriately obtained telephone records of at least hundreds of Americans. Electronic surveillance goes far beyond records and collects the actual content--the words spoken over the phone or typed in email.

It is also worth reminding ourselves of why this legislation is necessary, as it has been several months before this was the top legislative issue before the Senate.

For more than five years since September 11, 2001, the National Security Agency collected the content of calls from or to United States persons--citizens and permanent residents--without a court order as is required by the Foreign Intelligence Surveillance Act of 1978 (FISA).

This surveillance was done without notifying and seeking authorization from the congressional intelligence committees. The President and Vice President have very closely restricted disclosure of information about what they call the “Terrorist Surveillance Program.”

Until this surveillance came to light through an article in The New York Times in December 2005, only eight members of Congress were briefed on it. Even after the article came out, the White House refused to brief the members of the House and Senate Intelligence Committees for several months.

Even now, the Intelligence Committee does not have all the information it needs to carry out its Constitutional oversight duties.

Throughout 2006, the Judiciary Committee debated various bills to authorize or prohibit electronic surveillance outside of FISA. The bill that Senator Specter and I authored last year, which is being re-introduced today, was reported out of Judiciary on a bipartisan vote on September 13, 2006. The Senate, however, took no legislative action prior to adjournment.

Then, on January 17, 2007, Attorney General Alberto Gonzales notified the chairman and ranking member of the Senate Judiciary Committee that the FISA Court had authorized the Terrorist Surveillance Program. Since January, the program has proceeded under Court supervision, as is required by FISA.

I was pleased that the Administration submitted the TSP to the FISA Court, and that the Court had found a way to issue an order approving this surveillance. I was pleased, but not surprised.

I had maintained throughout the legislative debate last year that it would not take many changes for the TSP to fit under the confines of FISA. All it took was the willingness of the Administration to follow legal process.

Members may ask, given the recent developments, why legislation is now necessary. There are two reasons.

The first is that the Senate should enact this bill is because this Administration has never conceded the point that it cannot conduct electronic surveillance outside of the law. It has put the TSP under FISA Court review, but it asserts that it has the right not to do so. Future Administrations, if not enjoined, may take the same view.

I disagree with this legal analysis.

Secondly, the Director of the National Security Agency, the Director of the FBI, and the Attorney General have said on many occasions that FISA is outdated and in need of modernization. The current FISA process is too bureaucratic, too slow to initiate electronic surveillance from the time a suspected terrorist’s phone or email account is identified.

This bill addresses those concerns by providing new flexibility and additional resources to speed the FISA process and allow for the more timely collection of valuable intelligence.

Allow me to summarize the legislation. The bill:

  • Re-iterates that FISA is the exclusive means for conducting electronic surveillance for intelligence purposes.
  • Specifies that FISA’s requirements cannot be written off through contorted interpretations of other statutes. The Administration’s tortured argument with respect to the Authorization for the 2001 Use of Military Force (AUMF) notwithstanding, this legislation would specify that FISA’s language can only be undone by a specific and direct Act of Congress.
  • Requires that Congress, through the Intelligence Committees, be fully briefed on the Terrorist Surveillance Program and any related surveillance programs.
  • Requires the Supreme Court to review, on an expedited basis, the constitutionality of the Terrorist Surveillance Program.
  • Streamlines the current “emergency procedures” in FISA. Currently, the Attorney General can authorize surveillance prior to a Court order for 72 hours in an emergency. This legislation would extend the time to one week, which should remove any doubt as to whether Court approval can be sought and obtained in time. The bill also allows the Attorney General to delegate his authority to initiate electronic surveillance in an emergency to specific supervisory officials at the NSA and FBI.
  • Authorizes additional personnel to expedite the writing, submission, and review of FISA applications. Specifically, additional FISA Court judges and staff are authorized, as are additional positions at the Department of Justice, FBI, and NSA.
  • Extends the existing FISA authority--for 15 days of warrantless surveillance following a declaration of war--to any 30-day period following an authorization for the use of military force or a national emergency following a terrorist attack.
  • Allows the National Security Agency to take full advantage of its capabilities to collect intelligence on foreign communications.

While foreign-to-foreign communications are not covered now by FISA’s requirements, the NSA can only conduct surveillance on these calls if it can be sure, in advance, that a telephone call of email won’t transit the United States or unexpectedly end here. In the age of cell phones and the global telecommunications system, this a priori certification is very difficult to make. This legislation therefore specifies that in such inadvertent collection cases, the NSA must minimize the data, but that it has not violated the law.

Finally, the legislation clarifies that FISA court orders for electronic surveillance must be individualized to a particular target that the government has probable cause to believe is a foreign power or an agent of a foreign power.

From the briefings I have received as a member of the Intelligence Committee and the hearings held in Judiciary, I am convinced that the Terrorist Surveillance Program is an important anti-terrorism tool that should be continued.

It is also clear from the January FISA Court ruling that the Terrorist Surveillance Program can be conducted within the confines of FISA. It is appropriate now for Congress to re-iterate that this is the appropriate arrangement.

This is by no means an issue that has been overtaken by events. The Administration continues to support a view of plenary authority in which it can conduct electronic surveillance in violation of FISA. The NSA and the FBI continue to labor under a process that was formed 29 years ago, prior to fundamental changes in the telecommunications system.

I urge the Senate to act to ensure that the law is followed and privacy rights upheld, and to provide the Intelligence Community the tools it needs to continue to make us safe.