Senate
Begins Debate On FISA Legislation
Leahy
Outlines Strengths Of Judiciary Committee Substitute
Language
WASHINGTON (Thursday, Jan. 24,
2008) – Senate Judiciary Committee Chairman Patrick Leahy
(D-Vt.) Wednesday afternoon took to the Senate floor to
discuss the important work of the Judiciary Committee in
crafting legislation to amend the country’s critical
surveillance laws. The Judiciary Committee in November
passed an improved version of the Intelligence Committee’s
Foreign Intelligence Surveillance Act (FISA) Amendments Act,
including measures to strengthen checks and balances to
protect the privacy and civil liberties of all Americans.
Notably, the Judiciary Committee amendment would strike a
provision giving retroactive immunity to telephone companies
that would eliminate the courts’ ability to examine the
legality or illegality of the administration’s warrantless
wiretapping program. The Senate is scheduled to begin
debate today on the legislation.
Text Of Judiciary Committee Substitute Amendment
Judiciary Committee Report Together With Supplemental Views
To Accompany S. 2248, The FISA Amendments Act Of 2007
Statement Of Senator Patrick Leahy On The FISA Amendments
Act Of 2007
For Background – Provisions In The Judiciary Committee
Passed Substitute Amendment
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Statement Of Senator Patrick Leahy (D-Vt.),
Chairman,
Senate Committee On The Judiciary
On The FISA
Amendments Act Of 2007, S.2248
January 23,
2008
Mr. President, the Senator
from North Dakota is absolutely right. Having managed a
number of bills, I know that sometimes it is hard to get
people with amendments to come forth. I hope they do. Once
this bill is finished, we will go to the Foreign
Intelligence Surveillance Act or, as we know it here, FISA.
It is intended to protect both our national security and
also the privacy and civil liberties of all Americans. We
are considering amendments to that important act that will
provide new flexibility to our intelligence community. We
all support surveillance authority. With terrorists
plotting against us and talking about it, we want to be able
to use all the various electronic and other means to find
out what they are saying. Unlike some in the administration
who say we are dealing with an antiquated law, we have
updated this act many times, probably 30 or more times since
its historic passage after intelligence abuses of earlier
decades.
I came here 34 years ago. I
well remember that this Nation was still reeling from the
excesses of the COINTEL Program when people were being spied
on by their Government simply because they disagreed with
what the Government was doing; in this case, the war in
Vietnam. We enacted FISA so we could do the legitimate
thing of actually spying on people who wanted to do harm to
the United States at the time of the Cold War, when we had
adversaries all over the world. We also wanted to make sure
that Americans who were minding their own business, not
doing anything illegal, wouldn't be spied upon.
We rushed the so-called
Protect America Act through the Senate just before the
August recess and with it were a number of excesses. They
came about because the administration broke agreements it
had reached with congressional leaders. The bill was
hurriedly passed under intense partisan pressure from the
administration. In fact, the pressure was so strong, they
made it very clear why they were willing to break agreements
with those Republicans and Democrats who had been working
together to try to craft a bill that would protect America's
interests but also protect the privacy of individual
Americans.
So we passed a bill that
provides sweeping new powers to the Government to engage in
surveillance, without a warrant, of international calls to
and from the United States involving Americans, and it
provided no meaningful protection for the privacy and civil
liberties of the Americans who were on those calls. It
could be an American calling a member of their family
studying overseas. It could be a business person who, as
they travel around to various companies they represent, ends
up having their telephone calls intercepted.
But before that flawed bill
passed – the one that came about because of the broken
agreements by the administration – Senator Rockefeller and I
and several others in the House and Senate worked hard, in
good faith with the administration, to craft legislation
that solved an identified problem but, as I said, protected
America's privacy and liberties.
Just before the August recess
the administration decided instead to ram through its
version of the Protect America Act with excessive grants of
Government authority and without any accountability or
checks and balances. They did this after 6 years of
breaking the law through secret warrantless wiretapping
programs. It was one of the most egregious things I have
seen in my 34 years in the Senate. First they violate the
law, and then instead of being held accountable, they ram
through a law designed to allow them to continue those
actions. Some of us saw it for what it was and voted
against it. Both Senators from Vermont voted against it.
We are from a State that borders a foreign country. We are
concerned about our security, but we are also concerned
about our liberties and our privacy.
We did manage to include
6-month sunset in the Protect America Act so we would have a
chance to revisit this matter and do it right. The Senate
Judiciary Committee and the Intelligence Committee, as well
as our House counterparts, have spent the past month
considering changes. In the Senate Judiciary Committee we
held open hearings. We had more briefings than I can even
count and meetings with the administration, with people in
the intelligence service, with people at the CIA, NSA, and
others. We considered legislative language in a number of
open business meetings where Senators from across the
political spectrum could be heard. Then we reported a good
bill to the Senate before Thanksgiving.
The bill we are now
considering will permit the Government, while targeting
overseas, to review more Americans' communications with less
court supervision than ever before. I support surveillance
of those who might do us harm, but we also have to protect
Americans' liberties. Attorney General Mukasey said at his
nomination hearing that "protecting civil liberties, and
people's confidence that those liberties are protected, is a
part of protecting national security." Let me repeat what
the new Attorney General said, “Protecting civil liberties,
and people's confidence that those liberties are protected,
is a part of protecting national security.”
I agree with him. That is
what the Judiciary Committee bill does. I commend the House
of Representatives for passing a bill, the RESTORE Act, that
takes a balanced approach to these issues and allows the
intelligence community great flexibility to conduct
surveillance of overseas targets but also provides oversight
and protection for Americans' civil liberties. The Senate
Select Committee on Intelligence has also worked hard. I
know Chairman Rockefeller was as disappointed as I at the
administration's partisan maneuvering just before the August
recess. After being here through six administrations, it
has always been my experience, with Republican or Democratic
administrations at certain points, when you are negotiating
a key piece of legislation with the administration, you have
to rely on them to keep their word and be honest with you,
as they have to rely on you to keep your word and be honest
with them. Through six administrations, 34 years, I can
never remember a time where an administration was less
truthful or flatly broke their word in the way this one
did.
I commended the efforts of
Senator Rockefeller and those working with him. I do so
again now. I believe both he and I want surveillance but we
want surveillance with oversight and accountability within
the law. I also want to praise our joint members. In the
Judiciary Committee we have, by practice, a certain number
of members who serve on both Judiciary and Intelligence for
obvious reasons. The ranking member of Judiciary and I, of
course, have access to a great deal of intelligence whenever
we have requested it, but that is on an ongoing basis.
Senators Feinstein, Feingold, and Whitehouse contributed so
much to the work of the Judiciary Committee. They worked
with me to author many of the additional protections we
adopted and reported. They had worked on the bill in the
Intelligence Committee and then worked with us. These
Senators and others on the Judiciary Committee worked hard
to craft amendments that will preserve the basic structure
and authority proposed in the bill reported by the Select
Committee on Intelligence, but then they added those crucial
protections for Americans, the part the Judiciary Committee,
because of our oversight of courts, worries about.
I believe we need to do more
than the bill initially reported by the Senate Select
Committee on Intelligence does to protect the rights of
Americans. I know the chairman of that committee joins with
me to support many of the Judiciary Committee's
improvements.
Let me cite briefly what they
are. The Judiciary bill, for example, makes clear that the
Government cannot claim authority to operate outside the law
– outside of FISA – by alluding to other legislative
measures never intended to provide that authority.
I will give you an example of
what happened. The House and the Senate passed an
authorization for the use of military force. We did this
right after September 11. It was authorization to go in and
capture Osama bin Laden – the man who engineered 9/11, is
still loose, and taunts us periodically. But what
happened? The administration was so hell-bent on getting
into Iraq that when they had Osama bin Laden cornered, they
withdrew their forces and let him get away so they could
invade Iraq – a country that had absolutely nothing to do
with 9/11. Now they say that authorization allowed them to
wiretap Americans without a warrant. I have heard some
strange, convoluted, cockamamie arguments before in my
life. This one takes the cake.
I introduced a resolution on
this in the last Congress when we first heard this canard.
We authorized going after Osama bin Laden, but the Senate
did not authorize – explicitly or implicitly – the
warrantless wiretapping of Americans. By their logic, they
could also say we authorized the warrantless search of the
distinguished Presiding Officer's home or my home. This
body did no such thing, but the administration still is
clinging to their phony legal argument.
The Judiciary bill would
prevent that dangerous contention with strong language that
reaffirms that the Foreign Intelligence Surveillance Act is
the exclusive means for conducting electronic surveillance
for foreign intelligence purposes.
The Judiciary Committee’s
amendment would also provide a more meaningful role for the
FISA court to oversee this new surveillance authority. The
FISA court is a critical independent check on Government
excess in the sensitive area of electronic surveillance.
The administration claims that of course the Foreign
Intelligence Surveillance court can look at what they are
doing, they just don’t want the court to be able to do
anything about it. No. The Judiciary Committee says the
court should be able to look at what they are doing and
should be able to stop them if they are breaking the law.
In this Nation we fought a
revolution over 200 years ago to have that right.
With the authority of a
majority of the Judiciary Committee members, I am going to
offer a revised version of the Committee's amendment that
makes some changes to address technical issues and also to
address some of the claims the administration has made about
our substitute.
For example, in response to
concerns raised by the administration in its Statement of
Administration Policy, we have revised the exclusivity
provision to ensure that we are not overextending the scope
of FISA. We have also revised the provision concerning stay
of decisions of the FISA Court pending appeal, the provision
clarifying that the bill does not permit bulk collection of
communications into or out of the United States, and a few
other provisions.
I believe these revisions make
the Judiciary Committee's product even stronger, and I urge
my colleagues to support it.
Now, in the bill we have a
title I, a title II. Title II in the Intelligence bill
talks about retroactive immunity. We do not address that in
the Judiciary Committee's bill, but I do strongly oppose the
bill reported by the Senate Select Committee on Intelligence
in that area. Their bill would grant blanket retroactive
immunity to telecommunications carriers for their
warrantless surveillance activities from 2001 through
earlier this year. This surveillance was contrary to FISA
and violated the privacy rights of Americans.
The administration violated
FISA for more than 5 years. They got caught. If they had
not gotten caught, they probably would still be doing it.
But when the public found out about the President's illegal
surveillance of Americans, the administration and the
telephone companies were sued by citizens who believe their
privacy and their rights were violated. Now the
administration is trying to get this Congress to terminate
those lawsuits. It is not that they are worried about the
telephone companies. They are not as concerned about the
telephone companies as they are about insulating themselves
from accountability.
This is an administration that
does not want us to ask them anything, and they do not want
to tell us anything. Interesting policy. If you do ask
them, they are not going to tell you. If they do tell you,
it appears oftentimes they do not tell you the truth. Now,
the rule of law is fundamental to our system. It has helped
us maintain the greatest democracy we have ever seen in our
lifetimes. But in conducting warrantless surveillance, the
administration showed flagrant disrespect for the rule of
law. It is like the King of France, who once said: "L'Etat,
c'est moi." "The state is me." They are saying: What we
want to do is what we will do. And if we want to do it, the
law is irrelevant.
I cannot accept that.
The administration relied on
legal opinions that were prepared in secret and shown only
to a tiny group of like-minded officials who made sure they
got the advice they wanted -- advice that, when it saw the
light of day, people said: How could anybody possibly write
a legal memorandum like that?
Jack Goldsmith, who came in
briefly to head the Justice Department's Office of Legal
Counsel, described the program as a "legal mess." He is a
conservative Republican. He looked at this and said: It is
a legal mess. Now, the administration does not want a court
to get a chance to look at this legal mess. Retroactive
immunity would assure that they get their wish and that
nobody could ask how and why they broke the law.
Frankly, I do not believe
anybody is above the law. I do not believe a President is,
I do not believe a Senator is, I do not believe anybody is.
I do not believe that Congress
can or should seek to take rights and legal claims from
those already harmed. I support the efforts of Senators
Specter and Whitehouse to use the legal concept of
substitution to place the Government in the shoes of the
private defendants who acted at its behest and to let it
assume full responsibility for the illegal conduct.
Although my preference, of
course, is to allow the lawsuits to go forward as they are,
I believe the substitution alternative is effective. It is
far preferable to retroactive immunity, and it allows this
country to find out what happened.
Keep in mind why we have FISA.
Congress passed that law only after we discovered the abuses
of J. Edgar Hoover’s FBI. Through the COINTEL Program,
Hoover spied on Americans who objected and spoke out against
the war in Vietnam -- which pretty well involved 100 percent
of the Vermont delegation in Congress.
It is like the Department of
Defense today that is going around videotaping Quakers
protesting the war. Quakers always protest the war. But
this administration seems to think, if you disagree with
them, somehow you are an enemy of the country and they can
justify spying on you. That is why we put these laws in
place. Is memory so short around here? Is memory so short
or are we so frightened by 9/11 that we are willing to throw
away everything this country fought for and everything that
has made this country survive as long as it has?
We were told this building was
targeted by terrorists. I proudly come into this building
every day to go to work. It is the highlight of my life,
other than my wife and my family. But I come in here
because I believe 100 Members of the Senate can be the
conscience of the Nation. We can protect Americans’ rights,
we can protect those things that our forefathers fought a
revolution for, that we fought a civil war to protect, that
we fought two World Wars to protect. Now we are going to
throw it away because of a group of terrorists? This is
"Alice in Wonderland."
So as we debate these issues,
let's keep in mind the reason we have FISA in the first
place. As I said, back in the 1970s we learned the painful
lesson that powerful surveillance tools, without adequate
oversight or the checks and balances of judicial review,
lead to abuses of the rights of the American people.
So I hope this debate will
provide us with an opportunity to show the American people
what we stand for. We can show them that we will do all we
can to secure their future, but at the same time protect
their cherished rights and freedoms. Those are the rights
and freedoms that protected past generations and allowed us
to have a future. If we do not protect them, what will our
children and grandchildren have?
It is incumbent upon us to
stand up for this country. When you stand up for this
country, it does not mean jingoism, it does not mean
sloganeering. It means protecting what is best for this
country. If we do that, the terrorists will not win. The
United States of America wins. The people who rely on us
around the world will win. Our example will be one they
will want to follow.
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***For Background***
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 US 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 US 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.
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