Congressional Record, Volume 154 Issue 14 (Tuesday, January 29, 2008)

[Congressional Record Volume 154, Number 14 (Tuesday, January 29, 2008)]
[Senate]
[Pages S430-S432]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

FISA

Mr. CHAMBLISS. Mr. President, I come to the floor this afternoon to
talk for a minute about the pending FISA legislation.
As a member of the Senate Intelligence Committee, I have been very
pleased to be a part of the bipartisan process in which Chairman
Rockefeller and Vice Chairman Bond have crafted a very delicate, a very
sensitive, yet important piece of legislation. Probably the most
important piece of legislation that the Intelligence Committee has
dealt with over the last several months or even years. Certainly, it is
one of the most important pieces of legislation to come to the floor of
this body this year.
This FISA legislation gives tools to our intelligence community which
allow our brave men and women--who stand at the forefront today of the
war on terrorism in every part of the world--to gather information from
those who are plotting, planning, and scheming to kill and harm
Americans. The tools with which the intelligence community seeks to get
in this particular instance deal with their ability to gather
information, primarily through what we refer to as electronic
surveillance, from terrorists, or bad guys, who are overseas
communicating to other individuals who are also overseas. There is no
question that in order for our intelligence or law enforcement
officials to be able to gather information from communications of
persons located within the United States, it is necessary that they
first obtain a court order. Let's make that very clear. We must first
obtain a court order to conduct surveillance against individuals
located within the United States. What we are seeking to do in this
legislation is to give our intelligence community the ability to
collect information without a court order from people who are planning
attacks against the United States and located outside the United
States. It is those individuals whom we seek to gather information from
and prohibit from having the capability to kill and harm Americans.
This legislation is a crucial piece in the puzzle to enable the
intelligence community to gather information from these individuals.

This particular piece of legislation has been debated in the
Intelligence Committee for 10 months and was voted out of the
Intelligence Committee on a very bipartisan vote of 13 to 2. I actually
voted against several of the amendments offered in the Intelligence
Committee. But at the end of the day, even though some of the
amendments I voted against were accepted and were included in the bill,
I believed it was such an important piece of legislation and put such
necessary power and authority into the hands of the intelligence
community that I voted to support it.
I commend my vice chairman, Senator Bond, who is on the floor with me
now, for his leadership. I would simply ask the vice chairman: We
started debate on this bill on the Senate floor in December, have been
debating this bill this week, as well as last week. Where are we? What
is the holdup in passing this critical legislation? What is the
problem? Why can't the Senate give our intelligence community the tools
they need to protect Americans?
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Mr. President, if I may respond to my colleague from
Georgia, who is a very valuable member of the Intelligence Committee
and who brings expertise from the other body and who has been a
valuable contributor, when we passed the FISA bill in what is called
the Protect America Act in August, everybody agreed that it should be
60 votes because this is a very important but very controversial bill
that has to be adopted by 60 votes. Thus, we have asked that amendments
to this bill be considered under a 60-vote rule.
It is very common in this Senate to demand 60 votes to be sure it is
a nonpartisan bill. So far, we have not been able--although we have
provided several alternatives to our friends on the other side--to get
a clear way of going forward. So that is why we are stuck, waiting to
find a reasonable manner of proceeding.
I would ask my colleague if, in fact, he feels we had adequate
contact with, interaction, and advice from the intelligence community
and whether it is important to have the advice and assistance of those
who are experts in and know the operations of electronic surveillance,
to have a role in our drafting of the legislation.

[[Page S431]]

Mr. CHAMBLISS. Mr. President, I would respond to the vice chairman,
the Senator from Missouri, that without question, under his leadership
and the leadership of Senator Rockefeller, the chairman, we have
received important input and had dialogue with the intelligence
community throughout the drafting stages of this legislation. We not
only had the top leadership, including the DNI, the Director of the
NSA, the head of the CIA, and folks from the FBI in to testify before
the Intelligence Committee, but also every member of the Senate
Intelligence Committee has had the opportunity to visit these agencies
and see firsthand where and how this information is gathered. We have
had the opportunity to see firsthand the methods our intelligence
community uses and the professionalism they exhibit. All of this is
very highly classified. Our committee deals with all of this
information in a very sensitive and classified manner. But the fact is,
we have had testimony and firsthand accounts from top to bottom--from
the individuals who physically gather the information all the way to
the top leadership. Members of the committee on both sides of the aisle
have asked tough questions to the individuals who have presented
testimony before the committee. Everybody had the opportunity to have a
free and open dialog and debate with those individuals.
Again, based upon what our intelligence experts had to say, this
legislation was crafted and debated within the committee. Without
question, there was ample opportunity for every member to inquire of
all of those in the intelligence community of why we need this
legislation, why it is so critically important, where we would be
without it, and why we need it to make sure we are able to stop those
individuals who seek to do harm to Americans around the world.
Mr. BOND. Mr. President, I would ask the Senator from Georgia further
why it is so important to have the intelligence community operatives
and lawyers involved in drafting the measure. We had several good ideas
offered in the committee that turned out not to be workable. I would
ask my colleague why he thinks it is important to have the direct
involvement by the intelligence community experts as to how to craft
not only the legislation but amendments to it.
Mr. CHAMBLISS. Mr. President, I would respond to the distinguished
Senator from Missouri that without question, it is necessary, from a
legal standpoint and from a practical standpoint, to get testimony and
advice from the legal experts and our operators in the intelligence
community to make sure there are no unintended consequences that come
out of the final product from the Intelligence Committee.
As the Senator will recall, we had some very heated debates on a
couple of amendments within the committee. Very good debate on both
sides of the issues. Sometimes, there were Democrats arguing
with Democrats, other times Republicans were arguing with Republicans,
but that is the nature of the Intelligence Committee. It operates in a
bipartisan fashion to make sure we look at every aspect--legal,
technical, as well as practical--to make sure we get it right. As the
vice chairman knows and has been working to correct, some of the
amendments adopted in committee were well intentioned but harmful to
our collectors. With the input of the intelligence community the
manager's amendment has been able to correct those unintended
consequences while preserving the intent of the amendments. In this
instance, I think we did get it right through engaging with our
intelligence experts.

Mr. BOND. Mr. President, would the Senator from Georgia say that this
bill not only enables the intelligence community to move forward, but
it provides additional protections for Americans, for their privacy and
constitutional rights? I would ask him if he thinks those amendments
have been incorporated in the legislation before us and what he thinks
the final product of the Intelligence Committee is as a result.
Mr. CHAMBLISS. Mr. President, I thank the Senator for his question. I
would simply say that, again, there is just no doubt this legislation
goes beyond the Protect America Act and the current FISA statute to
protect American's privacy and constitutional rights. After all the
discussion, after all the testimony that was presented, after all the
debate that took place within the confines of the Senate Intelligence
Committee, we found that for 25 years, the members of the intelligence
community have been able to conduct surveillance against Americans
overseas without a court order. I would point out that they did this in
a professional manner and reduced the risk of compromising American's
privacy through established minimization procedures. Since FISA's
original enactment, the intelligence community has used minimization
procedures to ensure that the information being gathered from Americans
was necessary foreign intelligence information and from individuals who
are foreign agents. This legislation subjects this type of surveillance
to a court order, providing new protections for Americans.
One purpose of FISA reform was to ensure that the ultimate and final
language we came up with would provide additional privacy protections
to American citizens, both inside the United States as well as outside
the United States.
Mr. BOND. Mr. President, I would ask, isn't this the first time any
of the FISA bills--even the predecessor FISA bill or the Protect
America Act--have included privacy protections for Americans overseas?
Mr. CHAMBLISS. Mr. President, I would respond to the distinguished
Senator from Missouri that this is the first time these protections
have been enacted. This bill also prohibits reverse targeting.
This is the first time in the history of our intelligence community
that a FISA court order for U.S. persons is required regardless of
where that individual is located. So if a U.S. citizen who goes abroad
is an agent of a foreign power or a terrorist seeking to communicate,
our intelligence community must first get a court order before they can
conduct any electronic surveillance, irrespective of whether that
person is inside the United States or outside. For the first time in
the history of our intelligence operations, this will be the case. So
the added protections of the fourth amendment, which normally are not
needed for a person located outside the United States, are applied in
this particular piece of legislation.
Mr. BOND. Mr. President, my colleague mentioned reverse targeting. I
would ask him, after debate on both sides and suggestions from both
sides, did we not also include an express prohibition of reverse
targeting, as well as providing court review, as he has stated, of
minimization, acquisition, and certification procedures? I would ask
him if reverse targeting is prohibited and what reverse targeting
really means.
Mr. CHAMBLISS. Again, I thank the vice chairman for his question. The
issue of reverse targeting is directly addressed in the bill--it is
prohibited explicitly. Reverse targeting refers to the hypothetical
situation where our intelligence community targets a foreigner overseas
solely to get a U.S. persons' communications between that foreign
person and a U.S. person. The targeting of the foreign person is
allowed without a court order. The targeting of a person located in the
U.S. is not allowed unless a court order is first obtained. So if
someone in the intelligence community targeted a foreigner with the
intent to listen in on the U.S. citizen, that is reverse targeting.
This is prohibited in this legislation. Again, this is the first time
we have seen that protection put in the statute.
So as a lawyer still recovering from practicing law sometimes, I
think, it is the first time that I can remember in all of my years
since my days of constitutional law at law school where the United
States applies fourth amendment rights to individuals who are outside
of the United States.
Mr. BOND. Mr. President, I would ask my colleague--he just talked
about the new protections for U.S. persons overseas: prohibition of
reverse targeting, court review of acquisition, minimization, and
certification procedures.
Now, some have said we just ought to extend the Protect America Act.
As a sponsor of the Protect America Act, I thought it was pretty good.
But if we were simply to extend the Protect America Act, would that not

[[Page S432]]

eliminate or at least delay any of the additional protections against
reverse targeting, providing court review, and preventing reverse
targeting of U.S. persons?
Mr. CHAMBLISS. Again, Mr. President, I respond to the vice chairman
that reverse targeting is not prohibited under the Protect America Act.
It is a procedure that some allege could occur under the Protect
America Act, but which is clearly prohibited under this act.
Anybody who is concerned about extending and protecting the rights of
individuals ought to be a lot more concerned about getting this bill
enacted into law than they should be about extending the Protect
America Act. So this is one of those situations where it is totally
unexplainable to me for someone to say: I don't think we ought to pass
this law because it doesn't go far enough, when it goes further than
current law and the Protect America Act which we already have voted
for. Now there is an attempt being made to extend the Protect America
Act for an additional period of time.
Mr. BOND. Mr. President, I ask my colleague why it has taken so long
to get us to this point when the Protect America Act expires on
February 1?
Mr. CHAMBLISS. As the Senator has said on the floor over the last
several days, we are ready to pass this bill tonight if our friends on
the other side of the aisle will simply get together with us and let us
vote it up or down.
When it comes to the issue of 60 votes, I have only been in this body
for 5 years, but I cannot think of one single major piece of
legislation that I have seen on the floor of the Senate during those 5
years that didn't require 60 votes for all major amendments. I was the
manager of the farm bill recently. That is a long way away from this
sophisticated piece of legislation, but every major amendment we had
required 60 votes. That was the most recent, large piece of legislation
we have had on the floor. So every time we have a major bill, a 60-vote
requirement is reasonable and is going to be called for. I think for us
not to have it in this particular situation would be extremely unusual.
Mr. BOND. Mr. President, I might ask, isn't there a danger that if
there is an amendment not subject to the 60-vote point of order, it is
possible, with various Senators absent, that we could adopt, perhaps,
on a 47-to-46 vote, an amendment that would make it impossible for the
intelligence collection required by the intelligence community to go
forward, and if such were adopted, what would happen to the
legislation?
Mr. CHAMBLISS. Mr. President, if I may respond, the Senator is
exactly right. If we did not have a 60-vote requirement on amendments,
or dealing with any issue in this bill, then it is possible that we
could adopt amendments, by less than a majority of the Members of the
Senate, which could hamper our intelligence community. And on this
critical, sensitive, most important piece of legislation, for us to
pass an amendment without a 60-vote requirement really makes no sense
at all.
I think all of us would certainly be remiss and derelict in our
duties if we didn't insist on a 60-vote requirement.
Mr. DURBIN. Will the Senator yield for a question?
Mr. BOND. Of course.
Mr. DURBIN. Mr. President, is the Senator proposing to change the
Senate rules that all amendments will now take 60 votes? Is that the
proposal before the Senate?
Mr. BOND. Mr. President, if I may respond, as my friend from Georgia
pointed out, in order to pass very important legislation such as this,
it has been the practice in this body to require 60 votes, and as my
colleague from Georgia just said, the farm bill passed with 60 votes on
the amendments. When we passed the Protect America Act, we had to get
60 votes.
This bill could be enacted into law and will undoubtedly have to have
60 votes to be signed by the President. I say to my distinguished
colleague from Illinois, if there are changes made with less than a 60-
vote margin, if they destroy the ability of the intelligence community
to operate the collection system as we have prescribed, then that bill
will never be signed into law. We would have to start all over again,
and we would thus be leaving our intelligence community without the
tools to protect us.
We are not saying we are changing the rules of procedure. We are
following the practice that has been adopted in this Senate.
Mr. DURBIN. If the Senator will further yield, I am new here; I have
only been here 11 years. So I am trying to learn a little about how
this works. I recall that somehow the Republic survived and the Nation
did well, we kept our armies in the field and built our highways and
passed our bills, and we did that for a long period of time without
requiring 60 votes on every amendment. Then there came this age of the
filibuster, where the Republican minority last year had 62 filibusters,
breaking a record in the Senate. Well, to stop the filibuster, you need
60 votes.
So now I assume what the Senator is suggesting is that we are in a
new age in the Senate, and it is going to take 60 votes for everything.
If that is the proposal, I suggest a rules change. Let's get on with it
and find out if there are enough votes here to make that the rule. If
it is going to be the age of filibusters again this year, the public
won't like it much. We were in the minority not that long ago.
But if that is your goal, if you want to make this a 60-vote
requirement, it is a different Senate, and it will be, unfortunately,
adding to the frustration many people have when they look at Washington
and say: Why don't you pass something, or why don't you do something
about health care or about other issues? We will have to tell them we
don't have 60 votes.
Mr. BOND. Mr. President, if that was a question--and I assume it was
a question--let me say that requiring 60 votes is something which has
occurred frequently in previous years, when this side had the majority
and the other side was in the minority. We found that it was very
difficult to pass legislation without 60 votes. Thus, we have seen that
practice before.
But this is not an ordinary piece of legislation. Had we dealt with
this in a timely fashion, this could have been handled on a different
basis. But the Director of National Intelligence, whom I will refer to
as the DNI, submitted to the Intelligence Committee, in April, a
measure that he felt was necessary to modernize FISA. That bill was not
brought up. The DNI testified in person before the committee in open
hearing in May. Despite my request, no legislation was developed in the
committee. The DNI came before the Senate in closed session, in a
confidential room, in July of this year, to say how important it was.
No bill came out of the Intelligence Committee. So the DNI proposed a
short-term fix, which I brought to the floor on his behalf at the end
of July, the first of August, and we were able to pass the bill, but we
had to pass on a 60-vote basis.
When there are very important pieces of legislation, with strong
feelings on both sides--as my colleague from Georgia has pointed out,
he handled a very important and difficult farm bill--those measures had
to have 60 votes.
Now, the fact is, we could have a bunch of simple majority votes, and
there are many we can take on a simple majority. But if there are
amendments which, if adopted, would prevent the bill from being passed
and signed into law, as a practical matter, it makes sense to have a
60-vote margin.
We are waiting for a response to the offers we have made to the other
side because, frankly, February 1 is coming. I hope we will agree on
it. I understand the House is sending us a 15-day extension. I say to
my friend from Illinois that I hope we can adopt the 15-day extension
and a collaborative agreement between the two sides on how we are going
to proceed to finish this bill.
I see the distinguished assistant majority leader has some
information. I am happy to yield to him for that.

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