[Congressional Record Volume 154, Number 24 (Wednesday, February 13, 2008)]
[Senate]
[Pages S962-S964]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FISA AMENDMENTS ACT
Mr. REED. Madam President, we have had a lengthy debate, and in the
end I decided to vote against final passage of S. 2248, the FISA
Amendments Act of 2007.
First, I commend Senators Rockefeller and Bond for recognizing
immediately that the Protect America
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Act, passed in August, needed modifications. S. 2248 does improve FISA
procedures. The bill increases the role of the FISA Court with respect
to targeting. It mandates FISA Court review and approval of the
minimization procedures governing the protection of identities and
nonpublic information about U.S. persons. This bill also provides
statutory rules for the use of information acquired under it.
However, when S. 2248 came before the full Senate for debate, I, and
many of my colleagues, believed that additional protections and
clarifications could and should be added. But it soon became clear that
all such measures would be defeated.
I was particularly disappointed that Senator Feinstein's amendment on
exclusivity did not pass. I believe it is very important to reiterate
that FISA is the exclusive means for conducting surveillance on
Americans for foreign intelligence purposes. I would have thought that
every member of the Senate would have been interested in clarifying
what the administration was authorized to do under the laws that
Congress passes rather than allowing the administration to boldly and
erroneously assert authorities from the Authorization for the Use of
Military Force against al-Qaida and the Taliban. But unfortunately I
was wrong.
I also admit that I had serious concerns about granting retroactive
immunity to telecommunications companies for actions they may or may
not have taken in response to administration requests that may or may
not have been legal. One of my concerns is regarding the accessibility
of information. First, my colleagues on the Judiciary Committee and
Intelligence Committee were allowed to read the necessary documents
only after extensive negotiations with the administration. I, and the
rest of my Senate colleagues who are not on those committees, were
denied access to those documents. In addition, the telecommunications
companies who have been named in several lawsuits have been prohibited
by the Government from providing any information regarding this issue
to the courts, to the plaintiffs, to Members of Congress, or to the
public. Yet we were asked to blindly vote for retroactive immunity,
which is something I simply could not do. Therefore I supported Senator
Dodd's amendment to strike immunity, but it did not pass.
I was then willing to consider some compromise approaches, such as
the Specter and Whitehouse amendment, which would have substituted the
Government for the telecommunications companies in civil suits, or
Senator Feinstein's amendment, which would have provided for the FISA
Court's review of the telecommunications companies to determine if
immunity should apply. However, neither of these amendments was able to
secure enough votes to pass. At the end of day, retroactive immunity
remained in the bill, setting what I believe could be a dangerous
precedent.
S. 2248 is indeed an improvement over the Protect America Act. But in
my judgment, it still did not provide enough protections to American
citizens and did not provide ample justification for retroactive
immunity for telecommunications companies. I therefore voted to oppose
the bill. I hope to continue to work with my colleagues to pass the
modifications I believe are needed.
Mr. CARDIN. Madam President, I rise today in opposition to final
passage of S. 2248, the FISA, Foreign Intelligence Surveillance Act,
Amendments Act. I am disappointed that the Senate has failed to
adequately improve the Protect America Act, PAA, which Congress enacted
in August 2007 and which I voted against.
The President should have the necessary authority to track
terrorists, intercept their communications, and disrupt their plots.
Congress should make needed changes to FISA to account for changes in
technology and rulings from the FISA Court involving purely
international communications that pass through telecommunications
routes in the United States. While we have a solemn obligation to
protect the American people, we must simultaneously uphold the
Constitution and protect our civil liberties.
After learning about executive branch abuses in the 1960s and 1970s,
Congress passed very specific laws which authorize electronic
surveillance. Congress has regularly updated these measures over the
years to provide the executive branch the tools it needs to investigate
terrorists, while preserving essential oversight mechanisms for the
courts and the Congress. FISA requires the Government to seek an order
or warrant from the FISA Court before conducting electronic
surveillance that may involve U.S. persons. The act also provides for
postsurveillance notice to the FISA Court by the Attorney General in an
emergency.
I am very concerned that the FISA law was disregarded by the
administration and want to ensure that we put an end to this type of
abuse. We are a nation of laws, and no one is above the law, including
the President and Attorney General. Congress has the right to know the
extent of the warrantless wiretapping program and how it was initiated
and changed over the years by this administration.
I voted in favor of the Judiciary Committee substitute to the
Intelligence Committee bill. The Judiciary Committee version
strengthened congressional and judicial review, including increasing
the oversight by the FISA Court of the administration's wiretapping
program. I am therefore very disappointed that the Senate rejected the
Judiciary Committee substitute and that the Senate has rejected
numerous amendments--including an amendment that I had offered--to
improve this legislation.
I am hopeful that the House will make much needed improvements in
this legislation during conference and that I can support balanced
legislation that gives the intelligence community the tools it needs to
track terrorists and prevent attacks, while maintaining safeguards
against the abuse of power by the executive branch. I will continue to
work to ensure the safety and security of the American people, as well
as their civil liberties. Domestic eavesdropping raises serious and
fundamental questions regarding the conduct of the war against
terrorism, the privacy rights of Americans, and the separation of
powers between the legislative, executive, and judicial branches.
Congress must continue to work to strike the right balance, and we have
not achieved that goal today.
Mr. KERRY. Madam President, I believe the FISA bill that passed the
Senate yesterday could have and should have been a better bill. There
is no charitable explanation for why the U.S. Senate failed to pass a
bill that demonstrates at once that we can protect our national
security and protect the Constitution of the United States and the
rights of law-abiding American citizens at the same time.
September 11 was a wakeup call for millions about a global struggle
against extremism--and the need to modernize our Government to win that
struggle. September 11 also began a debate in our country over how we
can win the struggle against extremists without losing sight of who we
are and what we value as Americans. Former Supreme Court Justice Sandra
Day O'Connor described the challenge best:
We must preserve our commitment at home to the principles
for which we fight abroad.
Congress has a duty to protect the American people--and to protect
the Constitution. That is the oath we take. It is a solemn pledge. That
is why this debate, and this vote in the Senate is so disappointing:
This latest FISA law does not live up to the words we speak when we
take that oath in the Senate. Instead, rather than produce a bill that
made us stronger in the fight against extremism, colleagues on the
other side of the aisle summarily rejected every effort this week to
give the President of the United States the added flexibility needed to
hunt down and capture terrorists while protecting the rights of law-
abiding Americans.
More than 6 years after 9/11, we are still searching to strike this
proper balance. Once again, in the latest rushed effort in the face of
partisan fear-mongering, the world's greatest deliberate body missed an
opportunity to get it right.
Make no mistake, today's bill is a marked improvement over the
Protect America Act. But this issue is far too critical to settle for
half-measures and insufficient improvements. This bill doesn't do
enough to protect independent judicial oversight by the Foreign
Intelligence Surveillance Court,
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FISC, of sweeping Government powers. It doesn't provide the FISC the
authority to assess the Government's ongoing compliance with its
wiretapping procedures, and doesn't set limits on the way the
Government uses information acquired about Americans.
Instead, this bill leaves Americans vulnerable to continued
overreaching by the executive branch. It allows the President to rely
on other statutory authorities to circumvent the will of the people and
conduct warrantless foreign intelligence surveillance, permits
limitless ``fishing expeditions''--so-called bulk collection of all
communications between the United States and overseas--and lets the
government eavesdrop on Americans under the guise of targeting
foreigners--what is known as ``reverse targeting.'' If we have learned
anything from over 7 years of the Bush administration, it is that we
cannot simply hand them a blank check and trust that they will not
abuse it.
The Judiciary Committee's FISA bill recognized the need for this type
of robust judicial and congressional oversight in the face of ever-
expanding Executive power. It systematically sought to create all of
the aforementioned safeguards on liberty, while making sure to give the
President the expanded set of tools required to fight terrorism in the
digital age. That is the bill we should have passed.
Most importantly, unlike the FISA bill that passed the Senate
yesterday, the Judiciary Committee's version did not grant amnesty to
telecommunications providers that were complicit in the
Administration's warrantless spying program. The administration may
well be deliberately stonewalling to avoid a judgment day in court.
Yet, today, the Senate rewarded the President's obstructionism,
providing him cover to seek political security under the guise of
national security. That is wrong. It is also a slap in the face to
telecommunications providers like QWEST, which in the difficult days
after 9/11, courageously refused to aid the administration's
warrantless wiretapping efforts and questioned their legality.
Americans, who are deeply concerned about the secrecy and abuses of
power that have marked this administration's years in office, and who
are tired of learning information after the fact in our newspapers when
whistleblowers leak it, deserve much better. This bill shreds the
bipartisan principle that Americans should have their day in court--
that accountability should be preserved to adjudicate competing claims
and at last shed light on the administration's secret surveillance
program. It is for these reasons, after all, that Senator Specter, the
ranking member of the Judiciary Committee, refused to grant blanket
amnesty and, as he put it, ``undercut[] a major avenue of redress.'' If
these lawsuits are shielded by Congress, the courts may never rule on
whether the administration's surveillance activities were lawful.
An impartial court of law insulated from political pressure is the
most appropriate setting in which to receive a fair hearing. That is a
far cry from the U.S. Senate wiping the slate clean for the Bush
administration. Everyone agrees, if the telecoms followed the law, they
should get immunity, as Congress explicitly provided under the original
FISA law. But our courts should decide, not Congress--and that is a
matter of principle protected in the House's FISA bill.
There is today, as divided as we are, very much that we agree upon:
We all want to prevent terrorist attacks, we all want to gather
effectively as much intelligence as possible, and we all want to bring
those who would attack us to justice before they strike us. But we
undermine--not strengthen--our cause when we subvert our Constitution,
throw away our system of checks and balances, and disregard human
dignity. We also accept a false choice between security and liberty.
There is no need to. That is why, yesterday, I stood up for the belief
that the rule of law isn't just compatible with--but essential to--
keeping our homeland safe. We owe Americans a better FISA bill.
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