[Congressional Record Volume 154, Number 19 (Wednesday, February 6, 2008)]
[Senate]
[Pages S686-S688]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page S686]]
FOREIGN INTELLIGENCE SURVEILLANCE ACT
Amendment No. 3913
Mr. HATCH. Mr. President, I wanted to briefly mention my opposition
to amendment No. 3913 offered by the Senator from Wisconsin. This
amendment relates to reverse targeting, which is a theory that the
Government could target a foreign person abroad when the real intention
is to target a U.S. person, thus circumventing the need to get a
warrant for the U.S. person. Quite simply, reverse targeting is already
considered illegal under FISA. Going even further, the Intelligence
Committee bill has a very explicit prohibition against reverse
targeting. The amendment offered by the Senator from Wisconsin adds
subjective language which completely alters the meaning of the original
bipartisan provision.
I asked Attorney General Mukasey this during a hearing on Wednesday,
and here is our exchange.
HATCH: Now the topic of reverse targeting has been
mentioned often during the FISA reform debate. From an
intelligence perspective, reverse targeting makes no sense.
From an efficiency standpoint, if the government was
interested in targeting an American, it would apply for a
warrant to listen to all of that person's conversations,
wouldn't it? Not just his conversations with terrorists
overseas?
MUKASEY: Correct.
HATCH: Now, I asked General Wainstein about this during the
Judiciary Committee hearing last October, and he reiterated
the government's view that FISA itself makes reverse
targeting illegal. Does the DOJ still consider reverse
targeting illegal under FISA?
MUKASEY: Absolutely.
HATCH: Are you aware of any instances of intelligence
analysts utilizing reverse targeting?
MUKASEY: I am not aware of any such instances.
We are enacting national security legislation, and it is our
responsibility to ensure that this bill does not lead to unintended
consequences which provide protections to terrorists. This amendment is
absolutely unnecessary, and I urge my colleagues to oppose it.
Amendment No. 3920
Mr. President, I wish to say a few remarks with regard to my dear
friend, Senator Whitehouse's amendment to authorize the FISC, the
Foreign Intelligence Surveillance Court, to assess compliance with
minimization techniques. I rise to express my opposition to the
Whitehouse amendment No. 3920.
My opposition to the Whitehouse amendment is related to the totality
of this bill. This is an amendment that greatly expands the Foreign
Intelligence Surveillance Court's jurisdiction. Keeping in mind that
the bill before us already expands FISC jurisdiction of foreign
collection to an unprecedented high historical level, this amendment
tips the balance and could lead to real-life instances of intelligence
analysts' operational decisions being second guessed by the court.
The original approach and goals of this legislation were simple and
twofold. Goal No. 1: Wire communications taking place in 2008 should
receive the same treatment as radio communications taking place in
1978; and goal No. 2: Our intelligence community's sources and methods
should not be subject to exposure by litigation brought about by
hearsay and innuendo.
I am pleased the legislation before us provides more protections to
American citizens than any intelligence bill in my recent memory, and
certainly more than the original FISA law.
Over the last several months, a great deal of attention has been
given to the FISC, the Foreign Intelligence Surveillance Court. The
FISC was created by the original FISA law, and its jurisdiction was
extremely limited by that law. Here is what the FISC was created to do.
Foreign Intelligence Surveillance Court: ``A court which shall have
jurisdiction to hear applications for and grant orders approving
electronic surveillance.''
This jurisdiction is purposefully limited, as the task of reviewing
applications to intercept electronic communications is among the most
important tasks our Government can do to protect our country and its
citizens. Terrorists have to communicate to plan and execute attacks,
and our interception of these communications is paramount to stopping
the next attack.
The jurisdiction of the FISC is greatly expanded by this legislation.
Combined with other provisions in this bill, the new oversight created
is prevalent and comprehensive. Since the breadth of this new oversight
is critical when determining the necessity of the amendment we are
debating, let's look at the oversight created by this legislation.
Let me read these five charts.
No. 1, for the first time the FISC will review and approve
minimization procedures used by the intelligence community.
No. 2, for the first time the FISC will review and approve targeting
procedures used by the intelligence community. The FISC will determine
whether the procedures are reasonably designed to ensure targeting is
limited to persons outside the United States.
No. 3, for the first time, a court order will be required to target
U.S. persons regardless of where they are in the world--for the first
time.
No. 4, for the first time the Attorney General and the Director of
National Intelligence will be required to assess the intelligence
community's compliance with court-approved targeting and minimization
procedures. These assessments must be provided to the FISC and
congressional Intelligence Committees.
No. 5, new congressional oversight--for the first time Congress is
creating statutorily required inspector general--that is the Department
of Justice and intelligence elements--semiannual assessments of
compliance with court-approved targeting and minimization procedures.
These assessments must be provided to congressional Intelligence
Committees.
Now, given the staggering amount of new oversight, we should be very
careful when creating mechanisms which could negatively impact our
intelligence analysts, particularly when these mechanisms provide no
benefit, in this case, to the privacy of American citizens.
The intelligence community has a great deal of experience in the
techniques used to minimize incidental communications, and very
detailed procedures for handling these communications are contained in
the United States Signals Intelligence Directive 18, which has been in
effect for over 28 years.
Remember, the Government is gathering information relating to foreign
intelligence in order to protect national security, not necessarily for
criminal prosecution. That is why different procedures are necessary.
Otherwise, all national security information gathering would be changed
to fit within the procedures of title III criminal wiretaps, which is
impossible.
Minimization techniques deal not just with retention and
dissemination, but with acquisition. Analysts make decisions up front
whether to acquire, keep, or share U.S. person information based on
whether it has foreign intelligence value.
This means if a judge is reviewing compliance with minimization
procedures, this review is much more than a factual check. The judge is
not limited to simply making sure that technical and administrative
guidelines are followed. Rather, this amendment could allow a judge to
question specific decisions by intelligence analysts on why they chose
to acquire, keep, or share certain communications.
Now this begs the question: Are judges better trained in intelligence
collection than the intelligence analysts whose job it is to repeatedly
perform this task? Not only do I think the answer is no, but we should
remember what the FISC said in their recently publicly released
opinion, which is only the third public opinion released in the history
of the Foreign Intelligence Surveillance Court.
Here is what the FISC said:
Although the FISC handles a great deal of classified
material, FISC judges do not make classification decisions
and are not intended to become national security experts.
Furthermore, even if a typical FISC judge had more expertise
in national security matters than a typical district court
judge, that expertise would still not equal that of the
Executive Branch, which is constitutionally entrusted with
protecting the national security.
Enactment of this amendment could result in judges making foreign
intelligence determinations in place of trained intelligence analysts.
Based on this unjustified scrutiny, our intelligence analysts could
become overly cautious when determining whether to
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deem information as having intelligence value in order to avoid
unwarranted judicial scrutiny. This could result in less foreign
intelligence information being accumulated, and thus could mean we may
miss a vital piece of information. Do we want to take this chance? That
is what this amendment would do. Should we risk this type of unintended
result?
In October of 2007, I asked Assistant Attorney General Wainstein if
putting the FISC judges in the position of assessing compliance would
effectively put the judge in the role of an analyst. Here is what he
said in response:
And that is the problem, that it would get the FISC in the
position of being operational to the extent that it's not
when it assesses compliance for, let's say, the minimization
procedures in the typical or traditional FISA context where
you're talking about one order, one person. Here, some of our
orders might well be programmatic, where you're talking about
whole categories of surveillances, and that would be a tall
order for the FISA Court to assess compliance.
The Whitehouse amendment also contains language which lets the FISC
fashion remedies it determines are necessary to enforce compliance.
This is very broad language and gives the court the ability to come up
with whatever methods it chooses to enforce compliance. Does this mean
that the FISC could shut down collection of information from foreign
targets overseas while the Government addresses technical issues which
have little to do with the privacy of American citizens? We do not
know, since this amendment does not answer this question. Remember, we
are talking about targeting foreign terrorists to prevent terrorist
attacks. This is not the same thing as wiretapping a cocaine dealer in
Los Angeles for criminal prosecution. If we approve an amendment which
creates numerous unanswered questions, we are putting Americans at risk
in unprecedented ways.
Given that the Government has adequately utilized minimization
procedures for many years, what is the pressing need for FISC expansion
into this area? There is no need to continue unlimited expansion of the
FISC into unsuitable areas.
If this amendment does not pass, it does not mean that American
citizens are not protected. Incidental communications of Americans will
continue to be minimized, and the minimization procedures will have
been approved by the FISC. But if the Whitehouse amendment passes, we
will be taking a great risk that the unnecessary judicial oversight
will cause very harmful unintended consequences that I have already
mentioned. We are too far along to introduce guesswork into the
carefully crafted compromise bill before us. I will oppose this
amendment, and I urge my colleagues to do the same.
Amendment No. 3930
Now, Mr. President, there is one other amendment I wish to refer to.
In October of last year, the Intelligence Committee passed a bipartisan
compromise bill which would modernize our foreign intelligence
surveillance activities. Unfortunately, this bipartisan bill contained
a 6-year sunset provision which would automatically curtail our ability
to protect our homeland unless Congress acted.
Let me be clear, I am opposed to any sunset in this legislation.
While I believe the inclusion of this sunset provision was not
appropriate, it was a result of the bipartisan negotiations in the
Intelligence Committee. Now this serves as yet another example that not
all of us who support this bill are happy with every provision, and
every Senator will need to make concessions to get this bill passed and
signed into law.
Given my opposition to any sunset, I will oppose the Cardin amendment
No. 3930, which would change the sunset from 6 to 4 years. Proponents
of this amendment have propounded several arguments, none of which
justifies this change. I am going to discuss three of those arguments
today.
The most common argument cited is that this legislation is too
technical and too complex to have a 6-year sunset. This is certainly a
complex bill, but this is not the first time the 110th Congress has
tackled complex issues. We have already waded through several different
and complex bills, such as immigration reform, ethics and lobbying
legislation, and even a vast energy bill.
We are not reinventing the wheel with surveillance law, as this is a
FISA modernization bill. But it is important to note how Congress has
previously legislated in this area. The 1978 FISA law made dramatic
changes to our surveillance laws and oversight mechanisms. While FISA
has been discussed extensively, what has not been stated nearly enough
is that the 1978 FISA had no sunset. Given that FISA had no sunset,
let's look at how Congress has previously legislated FISA amendments
with regard to sunsets.
Sunsets are not common in previous laws amending FISA. Other than the
PATRIOT Act and the PATRIOT Act reauthorization, seven of the eight
public laws amending FISA had no sunsets on FISA provisions, and the
remaining public law had a sunset on only one of those provisions.
Now, this statistic speaks for itself. What is so different about
this bill? I do realize it contains massive new congressional oversight
provisions which could possibly hinder our collection efforts, and that
we may need to revisit it for this reason. However, if this is the
case, we obviously do not need a sunset to do this. We can legislate in
this area whenever we want to.
A second reason I have heard that some support the Cardin amendment
is that this sunset will keep Congress more engaged. One of my
colleagues previously stated that a sunset ``gives Congress the ability
to stay involved.'' Congress should not need sunsets to stay involved.
We do not need legislative alarm clocks to go off in 4 years in order
to address national security. I wake up every day thinking about how we
might protect our fellow Americans. I certainly do not need a
sunsetting bill to remind me about national security and oversight, and
neither should my colleagues.
The final reason I have heard for a 4-year sunset is the idea that
the next administration should be given an opportunity to address this
issue and that a sunset fosters cooperation between Congress and the
White House. Along these lines, one of my colleagues previously stated:
Having a sunset gives us a much better chance to get cooperation . . .
between the Congress and the White House. Once again, the next
President can weigh in on this topic whenever and however he or she
wants to. And regarding the idea that we should include a 4-year sunset
to foster cooperation between two branches of Government--do we need a
statute to influence the separation of powers? I say to my colleagues
that the relationship between the branches of Government should be
fostered by natural restrictions contained in the Constitution of the
United States, not by an artificial sunset provision in an intelligence
bill.
The very idea of a 4-year sunset understates the importance of
timeline implementation of new legislation. It takes a great deal of
time to ensure that all of our intelligence agencies and personnel are
fully trained in new authorities and restrictions brought about by
congressional action. This is not something that happens overnight. We
cannot wave a magic wand and have our Nation's intelligence personnel
instantaneously cognizant of every administrative alteration imposed by
Congress. Like so many other things in life, adjusting for these new
mechanisms takes time and practice.
While certain modifications are necessary, do we want to make it a
habit of consistently changing the rules? Don't we want our analysts to
spend their time actually tracking terrorists, or is their time better
spent navigating administrative procedures that may be constantly in
flux?
I know my preference is that our analysts be given the time to use
the lawful tools at their disposal to keep our families safe.
I do not want to see them spending all their time burying their heads
in administrative manuals which change from day to day whenever the
political winds blow.
After all of the efforts by many in this body to write a bill that
provides a legal regime to govern contemporary technological
capabilities, I am certainly not alone in my opposition to a sunset
provision. In fact, my views are completely in line with what the
Senate has done in the past when amending FISA. The administration
strongly opposes a sunset, and Attorney General Mukasey confirmed this
opposition during last week's oversight hearing here in the Senate.
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The fact is that this administration will not be here to see this
sunset occur. Why would they care if there is a sunset in the bill or
not? Their opposition demonstrates that those who are in charge of
protecting our country know that a sunset is a bad idea and their
opposition is based in logic and practical application. The
administration knows that they will not be here, but the intelligence
analysts who protect our country will. These analysts are not
politically appointed, and do their job regardless of who the President
is or what party the President represents. They need the stability of
our laws to effectuate long term operations to prevent terrorist
attacks, not guesswork which could hinder intelligence gathering
practices.
We have already had a trial run with the 6-month sunset of the
Protect America Act. Enough of the quick fixes, let's have confidence
in the work product created by the nearly 10 months we have spent on
this issue. A shorter sunset gives us an excuse to not legislate with
conviction, and this is an excuse we should not make.
The 95th Congress had the ability to decipher complex problems and
pass FISA with no sunset, and the 110th Congress can certainly
modernize it without second guessing our capabilities by approving the
Cardin amendment. I will oppose this amendment, and I urge my
colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
____________________