[Congressional Record Volume 154, Number 15 (Wednesday, January 30, 2008)]
[Senate]
[Pages S476-S478]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  FISA

  Mr. SESSIONS. Madam President, I thank my colleague, Senator Bond, 
the vice chairman of the Intelligence Committee. He has been working 
for a full year virtually on trying to accomplish what we need to 
accomplish now.
  I may not be able to follow the debate, but it seems to me that now 
we are beginning to hear that somehow despite your determined efforts 
and those of Senator McConnell and our side of the aisle the 
Republicans are being accused of holding up this legislation.
  Can you give us your perspective on that? I am sure it is different 
from what I have heard on the floor earlier on.
  Mr. BOND. Madam President, to respond to my colleague, it would be a 
pleasure. Let's go through the record.
  In April of 2007, the Director of National Intelligence, or the DNI, 
submitted a request to update FISA, the Foreign Intelligence 
Surveillance, law to Congress. The draft legislation that he sent to 
Congress was not a political or partisan piece of legislation, it was 
absolutely essential because technology has changed and the old FISA 
law was prohibiting our agencies from having the ability to go up on a 
foreign target without getting an order of the FISA Court, which 
totally gridlocked that court.
  But what he sent up was the result of a year of negotiations and 
coordination among civil servants in the Department of Justice and our 
intelligence agencies that will actually have to implement the system 
the legislation will cover. So the people who are running it set up the 
recommendation.

  Soon after that, there was a court order issued that resulted in 
these significant gaps. That ruling brought important parts of the 
system we use to monitor terrorists overseas to a halt. It created 
dangerous gaps in our ability to collect. The need to pass a permanent 
legislative fix for FISA suddenly became much more urgent, and the DNI 
came before the Intelligence Committee in May of 2007 to explain why it 
was needed and to say how urgent it was.
  Mr. SESSIONS. Indeed, didn't he say it couldn't have come at a worse 
time to have us be denied this kind of intelligence capability?
  Mr. BOND. That is correct. As the DNI explained to Congress in a 
closed-door briefing for all Senators in July of 2007, the FISC ruling 
came at a time of heightened concern in our intelligence agencies that 
terrorist attacks against the homelands of our allies might be in the 
works.
  The DNI explained in that briefing in no uncertain terms the urgent 
need to update FISA and close the intelligence gaps caused by the 
ruling so that our intelligence agencies would have the tools they need 
to detect terrorist plots against our homeland or our troops and allies 
overseas.
  Mr. SESSIONS. To follow up on that, you are familiar with the NSA and 
have seen it. Would you dispute his decision based on what you know? 
Didn't you also conclude, as I did, that he was exactly right; this was 
absolutely critical to our national defense and security?
  Mr. BOND. Mr. President, yes. I learned at the time why it was so 
essential, and I would say there is a letter from the DNI, a classified 
letter, which is available in our Intelligence Committee offices or in 
S-407 for Senators to read that says what the intelligence community 
was able to accomplish after the Protect America Act was passed on 
August 3, 4, and 5 of last year, which would not have been possible had 
we not changed the FISA law. So there are clear examples set forth in a 
classified letter that I invite all my colleagues to review. I would be 
happy to have them review it.
  Mr. SESSIONS. When we heard what he said, we got busy. You were one 
of the leaders. We worked through and passed the legislation in August, 
just this past August, that basically affirmed this program and kept it 
going. But can you tell us now why we didn't make it permanent at the 
time?
  Mr. BOND. First, I am not a big fan of sunsets. If the Intelligence 
Committee does its job--and with Chairman Rockefeller leading and my 
role in it, I can assure you that we are looking at all of these laws, 
all of these practices, and authorizing legislation of the intelligence 
community to see if it is working, to see if it is working within 
proper bonds. But I believe that. And I believe the Attorney General 
was correct when he said we should not sunset these laws because there 
are no sunsets on our enemies' fatwas.
  That came from our Attorney General. But we did agree to a 6-month 
sunset because Senate Democrats assured me that 6 months was long 
enough to take a systematic look at the law and come up with a strong, 
permanent solution. They believed we needed additional protections that 
had not existed in the original FISA law. It did not include one of the 
key elements that the DNI requested in his original April 2007 request. 
We had to pass a shortened version because of the timeline. But given 
that we had that sunset, our Intelligence Committee worked very hard, 
after the passage of the PAA, until we were able to pass on a 
bipartisan basis, by 13 to 2, a strong bill that adds significant new 
protections for Americans and which permits the DNI to conduct the 
program as he thinks it needs to be conducted to assure that our 
country is safe.
  Mr. SESSIONS. How did we get here and why do we need another 15-day 
extension? Why can't we get this thing done?
  Mr. BOND. That is kind of an obvious question that my colleague has 
asked. The following month, the Judiciary Committee of the Senate put 
out a bill on a straight party-line vote, a partisan substitute which 
was drafted without getting the effective input of the intelligence 
community, the Department of Justice. And the DNI said it absolutely 
would not work, so he couldn't support it. So a month after that, on 
December 17, the distinguished majority leader brought the bill to the 
Senate floor, thought it very timely to get it done in December, since 
we have a February 1 expiration date. But several members of the 
majority party filibustered the bill or actually they phoned in their 
objections, their filibusters, from campaign stops. And it could not go 
forward. Then the Senate didn't get around to taking up FISA again 
until over a month later, on January 23.
  We only returned to FISA after taking up the Indian health 
legislation. I don't diminish the importance of that measure, but it 
might have waited until after we finished FISA.
  Mr. SESSIONS. It seems to me that our Democratic leadership has had 
legislation from the Director of National Intelligence since April. We 
have refined it, particularly your committee, the Intelligence 
Committee, has moved it forward on the floor. And we have just wasted a 
lot of time when we need to be making this permanent.

  Mr. BOND. Unfortunately, my colleague from Alabama is right. I know 
we both don't want to engage in finger-pointing, but some of my 
colleagues have been making statements about our efforts on the bill, 
which leave me no choice but to correct the record. I invite any of my 
colleagues who have a different view to come discuss it with me. It is 
critical that we move forward.
  We have a 15-day extension. At the end of 15 days, this body goes on 
a week's recess. There is no reason we cannot pass this bill, 
conference with the House, and pass it by February 15 so American 
citizens will have the additional protections this bill includes, and 
our carriers will have the liability they must have to continue to 
participate in the program.
  I thank my colleague from Alabama.
  Mr. SESSIONS. I thank Senator Bond and Senator Rockefeller and the 
Intelligence Committee. I serve as a member of the Judiciary Committee. 
I strongly opposed the bill that came out of our committee. I believed 
your bill, the Intelligence Committee bill, which passed 13 to 2 in a 
bipartisan fashion out of the Intelligence Committee, was superior to 
the one that passed Judiciary on a narrow party-line vote. I also 
grasped during that debate that one of the real differences was the 
Intelligence Committee members knew what was at stake. That had been 
your responsibility, to ensure that our intelligence community was

[[Page S477]]

able to function effectively. You knew how the system worked and we 
didn't. We allowed theoretical ideas and maybe partisan politics to 
interfere with a simple project which was to identify what we needed to 
do to fix the broken intelligence system and to do so consistent with 
the Constitution and liberty.
  You all worked on that and reached an agreement on it. We continued 
to have nitpicking, complaints, ideas. Everybody has a different idea 
how they would like to see it done. I guess that is lawyers. Maybe that 
is the Judiciary Committee lawyers as opposed to Intelligence Committee 
members.
  The way I would boil this issue down for the American people is this: 
We are not asking in this legislation that anything be done to diminish 
the great liberties we as Americans have come to cherish. Actually, all 
it is doing is facilitating historic concepts of intelligence 
surveillance that we have always done. Fundamentally, there is no 
dispute that American intelligence officers abroad can intercept such 
communications as they are able to intercept without any Federal court 
warrant or anything else of that nature because the Federal court does 
not have jurisdiction, one reason, in Europe or the Middle East or 
Pakistan or any other country. They just don't have jurisdiction there. 
So we have always known that our intelligence agencies are capable, 
authorized, and legally able to do this.
  In the United States, however, if somebody taps your phone--and we 
have had so much confusion about this--if a Government agency were to 
tap someone's phone, they are entitled to listen not only to the calls 
that are placed away from that phone to someone else, they are also 
entitled to listen to phone calls that come into that phone number. 
That is part of the legal authorization to surveil inside the United 
States.
  So the first thing you have to do is have legal authorization to 
surveil. Once you do, on that phone, then you can listen to the calls 
that come in. What we do as a matter of practicality is we mitigate if 
a phone call comes in on a matter unrelated to the criminal activity 
that is being surveilled in the United States. That is the way it is.
  So what I want to say is, don't think this is somehow a retrenchment 
of historic American protections. What we are saying is, if you have a 
legal authorization to intercept a telephone system in Afghanistan--and 
we do, our people have a right to intercept a phone conversation--it 
seems to me you also have a right, just as you do if you have a warrant 
involving a U.S. citizen, to listen to the phone calls they place into 
the United States. And if it is not relevant to any kind of terrorist 
activity, then you would mitigate against it. But if you follow what I 
am saying, once you have the authority, as we do, to intercept a cell 
phone number somewhere, something like that, if you have this activity 
and you intercept that and you can surveil that number, then you are 
able to surveil who they call.
  If they are calling into the United States to set up a terrorist 
organization to carry out a plot, then that is the kind of call you 
want to intercept, for heaven's sake. I just don't think we have a big 
issue. I am proud of the committee. They have added protections, 
eliminated ideas that could lead to some abuse somewhere, but you have 
written a bill that is worthwhile.
  Let me say about the people at the National Security Agency and our 
FBI and our other agencies that are out doing this kind of work, they 
follow the laws we give them. Don't think, like you see on television, 
on ``24'' and some of these things that people just go around and 
violate the law on a regular basis. I was a Federal prosecutor for 15 
years. People don't put their careers on the line, throw away their 
careers, violating the law.
  So we have to have a law that allows them to lawfully do their work 
and not deny them the right or a legitimate power to protect America 
because we are putting ourselves at risk, and we should not do it. So I 
am frustrated, forgive me, that we are so timid about allowing the full 
historical surveillance capabilities our Nation is used to having at 
this time when we have unique threats from terrorists who have proven 
they have the ability to inflict thousands of deaths on Americans.
  Our good people are working their hearts out. Let's don't make it 
more difficult for them. Let's affirm what they are doing. We will 
continue to monitor it so it is never abused.
  I thank the chairman and the Intelligence Committee for their 
bipartisan work to serve our country by producing a bill we all can be 
proud of.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Pryor). The Senator from Missouri.
  Mr. BOND. Mr. President, I extend my most sincere thanks to my 
colleague from Alabama, who is a very valuable member of the Judiciary 
Committee. He does not let the fact that he was a lawyer and a 
prosecutor interfere with the exercise of good judgment. I congratulate 
him on his very perceptive comments. I thank him for participating with 
me.
  I also would agree with him. He made the strong point that sensitive 
intelligence matters should be handled in the Intelligence Committee. 
Our intelligence community leaders have said it is very difficult to 
present matters to a committee when they have to deal in closed session 
on so many things. Even the things that may in themselves not be 
classified are often related to classified materials. So I hope maybe 
we can take a look at committee jurisdiction in the future.
  I will take a few minutes to discuss why it is so important the 
Senate pass the bipartisan Rockefeller-Bond substitute amendment 
without adding unnecessary or harmful amendments that have not been 
vetted by the intelligence community.
  There are some colleagues who may believe we can just keep adding 
amendments without causing any problem for our intelligence collectors. 
But the fact is, the legislation is intended, first and foremost, to 
keep the intelligence gaps that existed prior to the passage of the 
Protect America Act, or PAA, closed. If we do not check with the 
experts in the intelligence community about whether their proposals 
will enable the intelligence community to keep the gaps closed, and if 
we do not heed their advice, the legislation can have--and often has--
unintended consequences that impede vital intelligence collection.
  An example of why this is so important: There was a substitute 
amendment included in the Rockefeller-Bond bill that provides 
additional protections for Americans traveling overseas. Originally, 
this amendment was offered by the Senator from Oregon--a valued member 
of our committee. His intent--which I share, and the intelligence 
community shares--is to provide overseas Americans with the same level 
of court review and approval as Americans in the United States receive. 
We believe that is very important.
  The amendment passed in the committee despite my vote in opposition 
because of the drafting that the amendment had not been vetted by the 
intelligence community. It turned out it would have been unworkable, 
causing unintended consequences, including impeding important 
intelligence collection on legitimate targets, if it was passed as it 
was.
  But the chairman and I worked with Senators Wyden and Whitehouse over 
the past few months so we could make this functional--a well-
intentioned amendment, a very valuable addition to this bill. We fixed 
that provision, and it is in the managers' amendment that Chairman 
Rockefeller and I have. So we will have a workable bill, one that the 
DNI supports, and one we can be very proud of, because it does extend 
additional protections to American citizens and U.S. persons abroad.
  But when we had to fix this issue, what we thought was a simple 
amendment took 24 pages of language to make sure we did not have 
unintended consequences--in an amendment that was originally only 3 
pages long. I raise this not to criticize the authors of the amendment 
but to thank them for their cooperation.
  But the basic principle is a principle of medicine, and we can apply 
it to the intelligence legislation: First, do no harm. I am concerned 
about the unwillingness of some colleagues who have proposed 
legislation to call the office of the DNI or NSA to make sure their 
amendments would do no harm. If amendments cause the intelligence gaps 
to reopen, the legislation will be worthless, probably will not pass, 
and will not be signed into law.

[[Page S478]]

  An example of how well a bipartisan FISA reform bill can function is 
the Protect America Act. I have said before that the PAA did exactly 
what it was intended to do: it closed the intelligence gaps that 
threatened the security of our Nation and our troops. It did so in a 
truncated fashion, but it worked for 6 months.
  Now, there are some Members who criticize the PAA and call it flawed. 
But let there be no doubt, the PAA has been a great success. It did not 
open any new powers that had not existed before the technology changed 
and brought applications of new limitations on our collectors.
  Next, I want to call attention to a letter received by the Senate 
Select Committee on Intelligence on January 25 from the DNI. Director 
McConnell wrote that the authorities provided by Congress, through the 
Protect America Act, passed in August of last year, have ``allowed the 
Intelligence Community to collect vital foreign intelligence 
information, and made the Nation safer by enabling the IC to close gaps 
in our foreign intelligence collection.''
  Let me repeat that: It has enabled the intelligence community to 
close gaps in our foreign intelligence collection.

  More specifically, Director McConnell said the PAA has enabled the 
intelligence community to obtain information related to disruption of 
planned terrorist attacks against Americans, efforts by an individual 
to become a suicide operative, instructions to a foreign terrorist 
associate about entering the United States, efforts by terrorists to 
obtain guns and ammunition, terrorist facilitator plans to travel to 
Europe, information on money transfers; plans for future terrorist 
attacks, and movements of key extremist groups to evade arrest--among 
others.
  While I cannot say anything more publicly about these examples, I can 
say these are examples of how the PAA disrupted ongoing and planned 
attacks against our interests, our allies, and our citizens. The 
Director did send the committee a classified letter laying out the 
details of these disruptions. He also gave examples of how collection--
that had faltered because of a FISA Court decision in the spring--was 
renewed under the PAA. As a result, key intelligence against terrorists 
was collected.
  I have reviewed the letter. I think any of our colleagues interested 
in this subject should go to the Senate Intelligence Committee offices 
or to S-407 to read the classified letter for themselves to see how the 
PAA has helped save American lives.
  Director McConnell has told us some targets might not have been 
pursued without the PAA because of the administrative, analytic, and 
legal burden of seeking FISA orders. Keep in mind, these orders would 
have been FISA orders to collect information on foreigners, not 
Americans.
  It is clear from my reading of Director McConnell's letter that most 
of the successes he identified would not have occurred had it not been 
for the PAA.
  While the PAA has been key to gathering unique and vital intelligence 
information, Director McConnell does not support its extension. The 
reason he does not support the renewal--one that has been critical to 
enabling the intelligence community he leads to do its job--is because 
it does not include retroactive civil liability protection. In his 
letter, and on numerous occasions--and in every substantive discussion 
I have had with him--the Director has said that we cannot gather this 
kind of information in sensitive intelligence areas without the 
cooperation of private parties.
  Despite the success of the intelligence community's ability to 
collect intelligence under the PAA, Director McConnell does not support 
its extension without this retroactive civil liability provision 
because he believes the voluntary cooperation of private parties is 
necessary to the success of the program. I have stated previously in 
answers to questions of my colleagues precisely why it would work. By 
implication, it seems he is concerned, wisely, I believe, that carriers 
will no longer cooperate with the Government if they fear being dragged 
into expensive lawsuits.
  Again, for all these reasons, we must pass and get the bill out of 
here--I hope at least by early next week--and pass a conference report 
before February 15. The Rockefeller-Bond substitute is that bill.
  A lot of questions have been asked about when we are going to move 
forward. We have exchanged papers back and forth. Chairman 
Rockefeller's staff and my staff have negotiated extensively. We need 
to get the concurrence of the leaders on both sides. I hope we are 
close to getting a workable framework. This is such a critical piece of 
legislation. I do not want to hold it up any longer.
  I know my colleagues have been waiting for votes. Nobody has been 
more anxious than Chairman Rockefeller and I. We understand how 
important this issue is. We hope to give this body some real action on 
moving the bill forward sooner rather than later. We will need the 
leaders, who will make the decisions. We will need the cooperation of 
all colleagues on both sides. Let's hope we can come to a successful 
resolution.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The 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. Without objection, it is so ordered.

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