[Congressional Record Volume 154, Number 14 (Tuesday, January 29, 2008)]
[Senate]
[Pages S439-S440]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  FISA

  Mr. COBURN. Mr. President, at the end of this week, Americans may 
find themselves at greater risk of a terrorist attack when the Protect 
America Act expires on February 1. On that date, we will be forced to 
revert to the antiquated 1978 Foreign Intelligence Surveillance Act, or 
FISA, to monitor the communications of suspected terrorists, unless 
this Congress moves quickly to make permanent changes to that law. It 
is therefore critical for Congress to enact permanent modernizations to 
FISA so that our intelligence officials will have every tool they need 
to monitor the communications of terrorists who seek to destroy the 
United States.
  The consequences of allowing the Protect America Act to lapse could 
be deadly. The PAA was passed last August to modernize FISA so that the 
statute could do in practice what it was always intended to do--govern 
certain foreign intelligence surveillance activities directed at 
persons in the United States, without inadvertently burdening those 
activities directed at persons overseas. FISA, however, has not kept up 
with technological advances that have been made since 1978. As a 
result, prior to the PAA, intelligence officers were often forced to 
obtain a court order before beginning surveillance against a terrorist 
or other foreign target located in another country. This unnecessary 
and burdensome requirement caused U.S. intelligence agencies to lose 
about two-thirds of their ability to collect communications 
intelligence against al-Qaida.
  Thankfully, the Protect America Act helped to close the inexcusable 
gap that left this country blind to the plans our enemies were making 
against us. As Director of National Intelligence Michael McConnell 
said, the PAA has ``allowed us to obtain significant insight into 
terrorist planning.'' To allow such a vital antiterror tool to lapse at 
this time would be the ultimate dereliction of duty.
  The United States must remain vigilant against a terror threat that 
is real and constant. The National Intelligence Estimate on ``The 
Terrorist Threat to the US Homeland,'' released just 6 months ago, 
concluded that this country will face a ``persistent and evolving'' 
terrorist threat over the next 3 years, particularly from Islamic 
terrorist groups and cells like al-Qaida. No person in America is 
unfamiliar with the capabilities and determination of such terrorist 
groups, and Americans trust us to make the right decisions to protect 
them and their children. Without making permanent changes to FISA to 
ensure the fast and effective intercept of foreign intelligence 
information, little else we do will matter.
  Retroactive immunity is in the best interest of this Nation's 
security and must be included in FISA modernization, as it was in the 
Intelligence Committee bill. Following the attacks of September 11, 
2001, President Bush authorized the National Security Agency to 
intercept international communications into and out of the United 
States of persons linked to al-Qaida or related terrorist 
organizations. The administration's obvious and stated purpose of this 
authorization was to ``establish an early warning system to detect and 
prevent another catastrophic terrorist attack on the United States.'' 
Therefore, the administration made requests for telecom companies to 
cooperate with its intelligence activities. The companies complied with 
the government's request for help, relying on written assurance from 
the executive branch that their actions were both necessary and legal.
  Now these companies face multibillion dollar lawsuits challenging 
their actions. Such lawsuits not only create potentially staggering 
liability for the companies, they also create the risk that sensitive 
details about our intelligence sources and methods will be revealed 
through discovery. Moreover, failing to protect those who cooperate 
with the Government to thwart terrorist activity will undermine the 
willingness of others to cooperate in the future. A powerful op-ed 
authored last October by former Attorneys General Benjamin Civiletti, 
Dick Thornburgh, and William Webster, said it best:

       The government alone cannot protect us from the threats we 
     face today. We must have the help of all our citizens. There 
     will be times when the lives of thousands of Americans will 
     depend on whether corporations such as airlines or banks are 
     willing to lend assistance. If we do not treat companies 
     fairly when they respond to assurances from the highest 
     levels of the government that their help is legal and 
     essential for saving lives, then we will be radically 
     reducing our society's capacity to defend itself.

  Recognizing the gravity of the situation, the bipartisan Senate 
Intelligence Committee voted 13 to 2 to include retroactive immunity in 
its bill. This overwhelming vote came after the committee reviewed the 
classified documents on which these companies relied. The committee 
ultimately concluded that the Government ``cannot obtain the 
intelligence it needs without assistance from [telecommunications] 
companies.''
  Protecting the corporate good citizens who answered the call to 
assist our intelligence community during a time of great danger to this 
country is the right thing to do. Anything short of full immunity for 
those companies that, at the Government's request, on the written 
assurance that such action had been authorized by the President and 
deemed lawful, would undermine the security of the United States is 
simply unacceptable.

  The carefully crafted, bipartisan Senate Intelligence Committee bill 
protects privacy interests without undermining our intelligence 
community's ability to do its vitally important job. The bill was 
approved by a vote of 13 to 2 after careful consideration of 
complicated issues and classified documents. It will allow our 
intelligence professionals to continue collecting foreign intelligence 
against foreign targets located outside the United States without 
requiring prior court approval. This is consistent with the intent of 
the legislators who enacted FISA in 1978 and represents no change in 
the way that the NSA has always conducted foreign surveillance.
  In so doing, the bill will also continue to protect the civil 
liberties of Americans in this country, surveillance of whom has always 
required prior court approval. Nothing we are considering in the Senate 
today would alter that. In the event that communication from a U.S. 
person is inadvertently intercepted, the intelligence community uses 
``minimization procedures'' to suppress the data. The result is that 
the communication is never used or shared. These procedures have been 
used effectively for 30 years and will remain in place after permanent 
FISA changes are enacted.
  Enacting permanent modernizations to FISA is one of the most 
important duties the Senate will undertake this year. We have known for 
6 months that the Protect America Act would expire on February 1 and 
have no excuse for not getting this done correctly before that date. 
The stakes in this debate could not be higher. Although the details can 
be complicated, the basic issue is pretty simple. As Andy McCarthy said 
in a recent piece for the National Review Online, ``Osama bin Laden 
doesn't need to apply to a sharia court before blowing up an American 
embassy; the president shouldn't need to apply to a federal court to 
try to stop him.''
  Unfortunately, I was unable to make it back to town in time for the 
two cloture votes that were held yesterday.

[[Page S440]]

Had I been here, I would have voted for cloture on Rockefeller 
amendment No. 3911, the Intelligence Committee's FISA bill, and against 
cloture on Reid amendment No. 3918, to temporarily extend the Protect 
America Act.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Whitehouse.) Without objection, it is so 
ordered.

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