[Congressional Record Volume 153, Number 127 (Friday, August 3, 2007)]
[Senate]
[Pages S10856-S10857]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  FISA

  Mr. KYL. Mr. President, I want to speak briefly to the issue, which, 
frankly, is keeping us in session right now, and explain a little bit 
about what is happening. Everyone in this body understands and agrees 
that we have an emergency on our hands that deals with our intelligence 
collection, and we need to address that emergency legislatively.
  But there is a disagreement on exactly how to do that. We must 
resolve that disagreement before we leave here. We will be taking a 
month back in our home States visiting with constituents. When we come 
back we will be right on the anniversary of 9/11. There are ways that 
we can prevent another 9/11 by good intelligence collection as to 
warnings that might tell us what we need to do to prevent such an 
attack, but we cannot do that the way the law is currently written.
  Obviously, this debate cannot get into a great deal of detail. But, 
suffice it to say, when the law relating to intelligence collection was 
written, it was written with a different kind of technology in mind. 
Technology has evolved over the years. In fact, it has evolved quite 
rapidly, and it is a simple fact that today's law does not match 
today's technology. It does not permit the kind of intelligence 
collection that we can and should be doing.
  Without, again, getting into details as to how much collection is 
being lost, it is fair to say that a significant amount, a significant 
percentage of intelligence that we could be collecting, we are not 
collecting, simply because of what is, in effect, an old-fashioned law, 
a law that can be changed, should be changed.
  The kind of collection we are talking about is precisely the kind of 
information we need that can give us warning of an impending attack. I 
think it is also fair to say, without getting into detail, that at this 
time we are seeing increasing evidence of efforts on the part of our 
enemies--I am speaking specifically of groups such as al-Qaida--to find 
a way to attack the American homeland.
  Given this increased effort on their part--and I would also suggest 
capability on their part--given that we know what they intend to do, 
and given that we know there is a great deal of intelligence out there 
we are not collecting simply because of an outmoded law, it is 
incumbent upon us to act and to act now.
  We cannot leave to go back to our home States for a month without 
resolving this issue because of the nature of the threat and the fact 
that an entire month will have elapsed not being able to collect 
information that we deem vital to be able to give us the kind of 
warning that we need.
  Now, there have been negotiations going on, not only in the 
Intelligence Committee but with leadership and, primarily Admiral 
McConnell, who is the Director of National Intelligence, who has 
brought this matter to our attention. But those negotiations have not 
resulted in an agreement we can pass in the House and the Senate before 
we leave. Time is running out. We will wait as long as it takes to 
resolve this problem. Anything less would be a dereliction of our duty.
  I will just conclude by saying this: Prior to 9/11, Senator Feinstein 
and I, as the chairman and ranking member of the Terrorism Subcommittee 
of the Judiciary Committee, predicted there would be a massive kind of 
attack on the United States by terrorists if we did not make 
substantial changes in the law, on which we had held hearings. We had 
put legislation in the hopper, and I urged our colleagues to take 
action on the legislation. They did not do so.
  Two days after 9/11, we stood on the floor of the Senate and finally 
got agreement on some of these elements of legislation, some of which 
became part of the PATRIOT Act, some of which were part of the Tools to 
Fight Terrorism Act.
  Let's do not let that happen again. The warnings are there. We have 
to be prepared to deal with them. We cannot leave without changing the 
law to fit the technology that currently exists, and we will not permit 
this situation to erode to the point where we have to accept something 
that is not adequate or we have delay in getting the job done before we 
leave.
  Mr. McCONNELL. Mr. President, will the Senator from Arizona yield for 
a question?
  Mr. KYL. Mr. President, I am happy to yield.
  Mr. McCONNELL. Isn't it the view of the Senator from Arizona--given 
the wide respect across this body and in the House as well that Admiral 
McConnell enjoys--that we should accept his judgment as to what is 
needed to solve this problem? Is he not, in the view of the Senator 
from Arizona, the expert on this subject? And is it not clear to 
everyone that his primary motivation is not to get into a political 
fight but to protect the homeland from another attack?
  Mr. KYL. Mr. President, as usual, the minority leader has made an 
extraordinarily important point.
  Admiral McConnell enjoys the confidence, I am sure, of every one of 
the Members of this body. When he briefed all of us about the problem, 
I did not see a dissenting voice in the classified briefing about the 
fact that we had to quickly do something to solve this problem.
  I think everyone recognizes that he not only has the expertise but 
the motivation--only one motivation--to protect the American people. I 
do not think there is a political bone in his body. As a result, for 
anybody here in the Congress to play politics with the issue, to not 
accept the judgment of a man who is so widely respected and so properly 
motivated in this regard, would not only be a dereliction of duty but 
would, frankly, set up a potential threat to the United States from 
which we might not recover.
  What I might do is just close my remarks and turn the floor over to 
the minority leader. I also know the Senator from New Mexico wants to 
make some comments. But perhaps he would allow the leader to make some 
comments.
  I just want to make this point. Winston Churchill said after World 
War II that no war could have been more easily prevented. We all 
understand what he was talking about. The threat was there. The people 
who were going to cause the problem--Adolf Hitler, Nazi Germany--were 
clear in their intentions, but people did not act on the knowledge they 
had.
  Mr. President, I submit the same thing is true here. If there is, God 
forbid, an attack on our homeland, I cannot imagine something that 
could have been more easily prevented by the kind of change we can make 
in this body today to ensure that the law that governs this 
intelligence collection keeps up with the technology.
  It is up to us to take the good judgment of people such as Admiral 
McConnell, as the minority leader has said, and move on with this and 
not allow a

[[Page S10857]]

situation to develop where we would leave for the month of August not 
having solved this important problem.
  The PRESIDING OFFICER. The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, the solution to this problem is at the 
desk. The senior Senator from Missouri, the vice chair of the 
Intelligence Committee, and I placed a bill on the calendar earlier 
this week that Admiral McConnell has certified would give him and our 
intelligence community the ability to protect the homeland.
  As Senator Bond and I pointed out earlier this week, this measure 
which is at the desk, which could be taken up and passed by the Senate 
at any time, would give the intelligence community what it needs before 
we go off for a month, leaving America without this additional 
protection. This would be a solution to the problem.
  The Director of National Intelligence has pleaded with us in person 
about this issue which involves--as we all now know full well, whether 
we are on the Intelligence Committee or not--a glitch in the Foreign 
Intelligence Surveillance Act of 1978, commonly referred to around here 
as FISA, that is causing our intelligence community to miss 
significant, actionable intelligence.
  Now, the principle behind the FISA law is the same today as it was 30 
years ago. It is the principle that foreign terrorists are a 
legitimate--I repeat, legitimate--target for electronic surveillance. 
But because of changes in the way terrorists communicate, U.S. 
intelligence personnel are no longer able to act on this commonsense 
principle with the speed and the flexibility the law was originally 
meant to give them.
  In a significant number of cases, our intelligence professionals are 
now in the position of having to obtain court orders to collect foreign 
intelligence concerning foreign targets overseas in another country. 
This is absolutely absurd and completely unacceptable. We have never 
believed the targeting of a foreign terrorist overseas should require a 
FISA warrant. Let me say that again. We are talking about terrorists 
overseas. Yet that is the outrageous situation we find ourselves in 
today. It would be even more outrageous not to correct this glaring 
problem immediately before we leave town. And we will. We will be here 
as long as it takes to get this right.

  Congress created FISA in 1978 because it believed the terrorist 
threat was real. That belief has been tragically confirmed since the 
law was created. Intelligence officials remind us repeatedly that the 
threat remains real. An unclassified version of the recent National 
Intelligence Estimate tells us that al-Qaida is reconstituting itself 
and that its lethal intent is just as strong today as it was on the 
morning of September 11, 2001.
  The legislation could not be more urgent. While the administration 
submitted FISA modernization language months ago--this has been 
languishing for months--the only legislation before us is S. 1927, the 
McConnell-Bond bill, a bill specifically requested by the Director of 
National Intelligence.
  We know this bill provides our intelligence community with the 
necessary tools to protect our homeland. We know if we pass this 
measure, the President will sign it into law. We know we have a duty to 
pass it today to protect the American people. So why wait? Why wait? 
This job must be done, and done now.
  The recent National Intelligence Estimate on terrorism contained a 
finding that cooperation on the part of our allies may wane as 9/11 
becomes a more distant memory and perceptions of the threat tend to 
recede. Has that memory faded so greatly in our own minds that we would 
leave for an August recess without taking the reasonable step of 
revising this law? I certainly hope not. It would be completely 
unacceptable. The intelligence community assures us that al-Qaida is 
not taking an August break.
  The principle behind our electronic surveillance has not changed 
since 1978. But the terrorist threat has. As we have tried to adapt to 
this asymmetrical threat, the terrorists have adapted too--by using 
increasingly modern and increasingly lethal tools and technologies 
against us. They have used planes and, if they get their wish, they 
will use chemical and even nuclear weapons. They have killed our 
citizens and our soldiers by the thousands. And they have shown their 
intent to continue to kill on an even larger scale.
  We must not let these enemies of America exploit a weakness that we 
can identify. We understand this weakness exists, and we need to fix 
it. Didn't we learn this lesson after 9/11? Some have blamed our 
failure to prevent those attacks on a failure of imagination. Some have 
said it was because we did not connect the dots. Well, we will never be 
able to connect the dots if we cannot collect them. Failure to pass 
this legislation would suggest an indifference on the part of Congress 
about our ability to connect those very dots.
  Mr. President, I hope everybody understands the threat is real; the 
threat is urgent. We must not, we will not, leave for recess until we 
pass this urgent and necessary law.
  Senator Bond and I and others will have more to say about this issue 
during the course of the day.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.

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