[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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