[Congressional Record Volume 153, Number 127 (Friday, August 3, 2007)]
[Senate]
[Pages S10858-S10861]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           FISA MODIFICATIONS

  Mr. BOND. Mr. President, I thank the Chair.
  I hope I have the attention of all of my colleagues because I believe 
we have an opportunity--we have an absolute necessity--to pass the 
Foreign Intelligence Surveillance Act modifications prior to leaving 
for the August recess. It is absolutely critical for our national 
security that we change the law which currently, by its application, is 
denying our intelligence community a very significant portion of the 
signals intelligence they could collect on al-Qaida and other terrorist 
sources who may well be planning another 9/11 attack on the United 
States.
  It has been publicly disclosed that al-Qaida's discussions are more 
active now than they had been since 2001 and even more since 2001, but 
we are, because of the application of this law, partially deaf to those 
communications. If we are to protect our homeland, the people of 
America, as well as our troops in the field, we have to collect better 
intelligence because that is our only significant weapon to fend off 
the attacks of those, through their misguided ideas, who want to 
inspire terror and kill as many Americans as possible.
  The Director of National Intelligence, Mike McConnell, whom I believe 
the people in this body have come to know and respect, told us in April 
that it was urgent that we reform the FISA law. He sent us a proposal 
on April 27. He appeared before our committee in open hearings on May 1 
and discussed at length the challenges and the threat we face and the 
need for revision of the FISA law. I had hoped we would move on that at 
the time, but some wanted to get more Department of Justice opinions. 
Nothing happened. I offered my version. My version, on behalf of 
Republican members, drew no response.
  The DNI, Director of National Intelligence, Admiral McConnell, came 
before a session of the entire Senate in S-407, our classified security 
area, a month ago, and he told us about the need to reform the law and 
to reform the law now. A significant number--not a majority--of this 
body was there, but everybody who heard him speak recognized the 
absolute, compelling necessity to move. Since time was running out, he 
offered a slimmed-down proposal.
  There are a number of things which need to be done with respect to 
FISA that can wait, and to accommodate the concerns of some on the 
other side of the aisle, he agreed to hold off dealing with issues such 
as carrier liability and streamlining FISA. But he presented to us a 
measure that he said was critically important, that must be passed so 
we don't remain deaf during August to discussions of threats being 
carried on by al-Qaida and others seeking to do us harm.
  As a result of the submission he made, we had another hearing for all 
Members of the Senate on Tuesday night, and at that Tuesday night 
session, several Democratic chairmen raised concerns with him about his 
proposal and their desire to have a different form. I was not privy to 
their

[[Page S10859]]

negotiations, but through the good efforts of Director McConnell, I 
found out what they were proposing, and it was obvious to me, as it was 
clear to Director McConnell, that this would not allow him to do what 
he needed to do and would not allow NSA to move forward on collection 
of vital information needed for his job to keep America safe.
  The next day, the admiral modified his original proposal to take into 
account some of the reasonable concerns the Democrats raised, things he 
thought he could live with. Leader McConnell and I introduced that on 
Wednesday evening. Since that time, there have been several more 
iterations coming from Democratic staff and some Democratic chairmen 
that have been presented to Director McConnell. He has reviewed them, 
and they do not meet the needs. He has responded to them, to try to 
find ways to accommodate them, and he has not been able to accommodate 
them.
  The admiral now is traveling and out of contact. He said that given 
the lateness of the hour and the fact that this is such a critical 
issue, the negotiations are over, and he said he would make one more 
accommodation to meet concerns of the majority party. So he has agreed 
that he would support and urge the President to sign the McConnell-Bond 
measure introduced on Wednesday night, with one accommodation; that is, 
to add a 6-month sunset to provisions of the law allowing the 
operations to continue under the orders put forward at that time.
  It will be my intent, after discussions with the leaders, to attempt 
to call this measure up so we can go to work on it and get it done, to 
keep our country safe and to allow us to come back after the recess and 
work on other portions of the FISA law that may be necessary and I 
think are very necessary. But right now, to keep the country safe, we 
need to pass this measure.
  The Director of National Intelligence said----
  Mr. CHAMBLISS. Mr. President, would the Senator yield for a question?
  Mr. BOND. I would be happy to.
  Mr. CHAMBLISS. I wish to ask the Senator about really the guts of 
what we are talking about because I want to make sure the American 
people thoroughly understand this. The FISA law is the law that deals 
with the collection of intelligence by our intelligence gatherers 
through the airways and through any other means we can seek to gather 
that information, whether it is e-mails, telephone calls, or whatever.

  Is it correct that right now our intelligence community is telling us 
they are not just handicapped but they are hamstrung and they do not 
have the ability because of the delay of this body and of the House of 
Representatives in passing this legislation which would give them the 
tools with which to go out into the bad guys' territory and collect 
information on those bad guys about what they are saying relative to 
potential attacks against Americans?
  Mr. BOND. Mr. President, the Senator from Georgia--and a valuable 
member of the Intelligence Committee--is precisely right. What we have 
before us is what is absolutely necessary to keep our country safe. He 
asked for the basic provisions.
  Basically, what Senator McConnell has proposed--which is not a 
Republican proposal, it is not a Democratic proposal, it is the 
proposal of Admiral McConnell as the Director of National 
Intelligence--is that the Government, the intelligence community, can 
listen in on communications from foreign sources, foreign intelligence, 
of somebody located overseas. If they find a suspect in the United 
States--and we call that a U.S. person--then any collection has to go 
before the FISA Court, which was established in 1978, before any 
collection can start against that target. It allows the Attorney 
General, with the Director of National Intelligence, to authorize that 
collection.
  Now, the DNI's proposal has made a number of accommodations to the 
points raised by our Democratic chairmen at that Tuesday night meeting. 
It includes having the FISA Court review the procedures to ensure that 
the targets of our collection without a warrant are overseas. I don't 
think court review is necessary, but it is an added layer of protection 
that several key Democratic chairmen wanted.
  I have been to NSA. I have seen how the procedures are so carefully 
monitored, with layers of oversight, supervision, reviews of attorneys, 
reviews of the inspector general, to make sure that the only 
intelligence they are collecting without a warrant is where the target 
is a person reasonably believed to be outside the United States.
  Mr. CHAMBLISS. Mr. President, would the Senator yield for another 
question?
  Mr. BOND. I would be happy to.
  Mr. CHAMBLISS. Mr. President, is it not true that prior to September 
11, certain of the September 11 hijackers were inside the United States 
and communicating outside the United States to the leaders of al-Qaida, 
who were giving them instructions, who were sending them money, and who 
were providing them the details of the circumstances leading up to the 
events of September 11? We did not have the capability at that time of 
intercepting those conversations because we did not have this 
particular program in place. Therefore, is it not true that we missed 
some of the intercepts of correspondence between the September 11 
hijackers and their leadership overseas?
  Is it not true that following September 11, the very essence of the 
program we are talking about now that the DNI says he needs, it was in 
place following September 11, but because of circumstances beyond his 
control, it is now not in place? Isn't it true that what he is asking 
for is the ability to gather information from any prospective terrorist 
who we know may have the ability and the intent to attack Americans, 
either on foreign soil or on domestic soil, and that what is sought to 
be done here is not to intercept conversations between Americans, not 
to intercept conversations even between terrorists who are in America, 
but what the DNI needs is the ability to intercept conversations coming 
out of areas such as Pakistan and Waziristan?
  Potential terrorists or actual terrorists who reside in the United 
States, much like happened prior to September 11--and we are about to 
get out of here for a month--we know this is a time when the Director 
and the Secretary of the Department of Homeland Security have said it 
is a high threat month. Would the Senator not agree that it is 
imperative that we give the intelligence community the ability to 
listen to those terrorists' conversations, which may include--and I 
emphasize ``may'' because this is a moving target--may include 
listening in on the planning of potential activity inside the United 
States?
  Mr. BOND. Mr. President, I ask unanimous consent for 5 more minutes 
to answer the questions that have been raised.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. I thank the Chair. I thank my colleague from Georgia for a 
very fine statement.
  I don't remember all of the questions, but I do remember his last 
question, which was, is it imperative for national security that we 
adopt this now. The Senator is correct. We were unable to accept 
communications prior to September 11, 2001. After that tragedy 
occurred, the President instituted a program, which he revealed several 
years later, to intercept foreign calls from al-Qaida coming into the 
United States and, because of concerns and questions raised in 
oversight, the President put the program to intercept foreign 
intelligence under the FISA Court. Now, at this point, because of the 
change in technology since the time FISA was adopted in 1978, 
inadvertently the new technology being used comes under FISA and 
prevents, in many instances, the collection of information on a foreign 
target.
  The foreign targets are the ones, as the Senator from Georgia so 
correctly pointed out, who were giving information, and still give 
information and direction and strategic operations, to terrorists who 
may well be in the United States. Yes, it is vitally important that we 
change this now. I hope my colleagues will review this and that we can 
get a large, bipartisan majority. This is not a Republican proposal. I 
tried my Republican proposal and didn't get a majority to support that. 
There are Democratic proposals and, to the extent they can be 
accommodated by the DNI and allow him to take the collections he needs 
against foreign

[[Page S10860]]

targets, without a warrant--unless we can change the law, he will be 
deaf and we will be endangered in August and thereafter.
  Regarding the question my colleague from Georgia raised about 
terrorists communicating in the United States, if there is collection, 
if we have intelligence that there are terrorists communicating in the 
United States--they would be non-U.S. persons--we would still have to 
go to the FISA Court to get an order before anybody can collect on 
them. If a U.S. person receives a call, the U.S. person's participation 
is what they call minimized and it is put aside. That person does not 
become a target if he or she is a U.S. person, unless and until there 
is a FISA Court order included.
  Mr. CHAMBLISS. Will the Senator yield for a final question?
  Mr. BOND. Yes.
  Mr. CHAMBLISS. First, I thank the Senator for his great leadership. 
The Senator said we have worked on this in a bipartisan way in the 
Intelligence Committee since April. The Senator and Senator McConnell 
have proposed a fix to this particular issue that now is before the 
Senate. Is it not true that everybody on this side of the aisle is 
prepared to vote for that, vote their conscience on it, whatever it may 
be, and that we expect a number of Senators from the other side will 
also be supportive of that? Are we ready to vote on this, to give the 
DNI the authority he has asked for?
  Mr. BOND. Yes. I have a very important message from the DNI:

       We understand that the FISA court judges urgently support a 
     more appropriate alignment of the court's caseload and 
     jurisdiction away from the focus on non-U.S. persons 
     operating outside of the United States. The judges have 
     clearly expressed both frustration with the fact that so much 
     of their docket is consumed by applications that focus on 
     foreign targets and involve minimal privacy interests of 
     Americans.

  That is the end of the statement that has been communicated to us by 
electronics from the DNI--that FISA Court judges have asked today that 
we pass a law that gets them out of the business of overseeing foreign 
target collection.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I ask unanimous consent that following my 
remarks, the Senator from North Dakota be recognized.
  The PRESIDING OFFICER. Is there objection?
  Mr. GREGG. Reserving the right to object. May I ask the Senator from 
Missouri, the ranking Republican on the Intelligence Committee, a quick 
and simple question prior to that? It won't take more than 2 minutes to 
deal with.
  Mr. HATCH. We only have about 8 minutes to go, but that is fine.
  Mr. GREGG. I ask the Senator from Missouri if he could give his 
estimate of how much of a diminution of the ability of the intelligence 
community occurs if we do not pass adequate FISA authorization? Would 
it be a 30-percent reduction in their ability, or is it 20 percent? Can 
the Senator give a ballpark figure?
  Mr. BOND. Mr. President, I thank the Senator from New Hampshire. I am 
not at liberty to disclose the amount, but it is very significant. I 
cannot give him the percentages, but it is more significant than the 
Senator has suggested.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I add to that that it is very significant. 
We do know that.
  I thank the distinguished Senator from Missouri for his remarks 
because he is a leader in this area and certainly has no higher 
interest than protecting our country and our citizens.
  Mr. BOND. I thank the Senator from Utah.
  Mr. HATCH. Mr. President, as Congress prepares to adjourn for the 
traditional August recess, I want to draw continued emphasis to a 
significant issue: FISA modernization.
  I am greatly encouraged by the bipartisan negotiations concerning 
this topic. However, I remain troubled about the possibility of 
adjournment without resolution of this vital initiative. It is very--
simple passing a bill with limited FISA modernization will contribute 
to a safer America. If passing this bill means we must delay our 
recess, then we must do it. We should be able to get together today, 
though.
  Do you think al-Qaida takes a recess? It is essential that we not 
adjourn until we send an appropriate bill to the President.
  While some issues that we debate in Congress necessitate that we 
persuade Members of a pressing need, this is not one of them. Every 
Senator in the 110th Congress knows that the current FISA statute has 
loopholes which are putting our country at increased risk.
  How should we tackle this issue? I suggest we take a logical and 
sound approach: Identify the problem, discuss and debate solutions, 
implement the solution. In this case, we have identified the problem.
  The Foreign Intelligence Surveillance Act has not been changed to 
reflect the vast technological changes that have occurred since this 
law was passed in 1978. Since the law has not been appropriately 
modified, our Nation is missing potentially valuable intelligence that 
is essential to protect our country. Getting this intelligence is 
essential for our safety. It is about getting the enemy's secrets--
their plans and intentions--without them knowing we've got them.
  The Director of National Intelligence, Mike McConnell, has done a 
tremendous job in explaining the exceptional problems that our 
intelligence community continues to encounter based on antiquated 
sections of the law. When the United States Director of National 
Intelligence says our country is at risk, I hope we are listening. Let 
me read a quote that Director McConnell recently stated:

       Many Americans would be surprised at just what the current 
     law requires. To state the facts plainly: In a significant 
     number of cases, our intelligence agencies must obtain a 
     court order to monitor the communications of foreigners 
     suspected of terrorist activity who are physically located in 
     foreign countries. We are in this situation because the law 
     simply has not kept pace with technology.

  This is a powerful statement that Director McConnell gives. However, 
I must disagree with one thing he says. I don't think most Americans 
would be ``surprised'' by what our current law requires, I think most 
Americans would be outraged by what our current law requires. A 
terrorist in Afghanistan speaks with a terrorist in Iraq, and U.S. 
intelligence agencies need a court order to listen to this 
conversation?
  This is absurd.
  We need to bring FISA back to its original intent to protect the 
rights and privacy of American individuals while allowing us to monitor 
foreign individuals outside of the United States.
  The President of the United States has also recognized the perilous 
situation in which we find ourselves. In his radio address last 
weekend, he stated that ``Our intelligence community warns that under 
the current statute, we are missing a significant amount of foreign 
intelligence that we should be collecting to protect our country.''
  Let's look closely at this. Our intelligence community is saying that 
we are missing a significant amount of foreign intelligence. Why are we 
missing this intelligence? Is it because we don't know how to get it?
  No.
  Is it because we don't have the ability or funds to get it?
  No.
  Is it because terrorist groups have technology that we can't exploit?
  No.
  It is because a law passed in 1978 has not been appropriately amended 
to conform with the technological advances that we have seen since that 
time. Why are we handcuffing ourselves?
  I believe most Americans would look at this situation and simply 
shake their heads.
  If we know we have a problem, and we know how to fix it, why don't 
we? Is the excuse that we might not have enough time before recess?
  Of course we have time.
  We'll make time.
  It is outrageous that we would even consider a recess while this 
problem and other loopholes of the FISA law remain intact.
  If we can't get this done, why are we here? It is no wonder that the 
approval ratings for Congress are approaching all time lows.
  Quite simply, we have a problem, but we know how to fix it. I note 
that Senator Bond has introduced a straight

[[Page S10861]]

forward measure which we can pass today.
  This bill will put the tools back in the hands of the people who work 
tirelessly in providing a safe environment for American families 
throughout this great country.
  This amendment of FISA simply returns the law to its original intent, 
which is twofold: first, allowing surveillance of foreign targets, who 
were never underprotected under FISA; and second, guaranteeing the 
privacy and rights of U.S. persons, who remain protected.
  It is time to address this situation. I would ask my colleagues to 
join me in pledging to pass legislation in this area before we recess. 
This is not about partisan politics.
  This is about protecting Americans. We are all painfully aware of the 
continued dangers that our country continues to face at the hands of 
organized groups and dedicated individuals who desire nothing more than 
the collapse of our country as a superpower.
  This is not a case of the boy who cried wolf. We know the threats are 
out there. However, each day that passes creates emotional distance 
between the nightmares of September 11, and each new day provides 
opportunities to heal.
  We don't have to live our lives in fear, but we have to acknowledge 
that the world changed that day. Rather than obsessing over news 
reports, let's enjoy the tremendous opportunities that the greatest 
Nation on Earth provides.
  And let's ensure that all of the dedicated and noble professionals 
who play a part in ensuring our liberty and safety are not hampered by 
nonpartisan problems that we have the ability to fix.
  We always hear that the terrorists have an asymmetrical advantage 
over us: They do not operate as nation-states, and some of them are 
willing to die as suicide bombers.
  But we have a massive asymmetrical advantage over them: Our 
technological prowess.
  Are we to compromise one of our greatest strengths, when that 
strength is essential, effective and lawful?
  I remind my colleagues that even though we will return to our States 
for the recess, our enemies and their threats don't go away. They don't 
adjust their schedules to fit ours.
  Make no mistake, inaction on our part needlessly subjects every 
American to increased danger. We need to act.
  We have two options: Cut into August recess if necessary to provide 
safety to Americans, or go home and leave this vulnerability intact.
  The answer is an easy one: Let's ensure that our defenders have all 
of the tools they need for our continued safety, no matter how long it 
takes.
  I urge my colleagues to join me in pledging to pass FISA 
modernization legislation before our recess. I yield the floor.
  The PRESIDING OFFICER. The Senator from Alaska is recognized.
  (The remarks of Mr. Stevens pertaining to the introduction of S.J. 
Res. 17 are located in today's Record under ``Statements on Introduced 
Bills and Joint Resolutions.'')


                RECESS SUBJECT TO THE CALL OF THE CHAIR

  Mr. STEVENS. Mr. President, I ask unanimous consent that the Senate 
stand in recess subject to the call of the Chair.
  There being no objection, at 11:33 a.m., the Senate recessed subject 
to the call of the Chair and reassembled at 8:08 p.m., when called to 
order by the Presiding Officer (Mr. Tester).
  The PRESIDING OFFICER. The majority leader is recognized.

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