[Congressional Record Volume 154, Number 107 (Thursday, June 26, 2008)]
[Senate]
[Pages S6213-S6214]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  FISA

  Mr. BOND. Mr. President, I know this is morning business, but I need 
to get people's attention back on FISA, I hope. Let me clarify some 
things that have been said earlier today. From time to time, some have 
tried to rewrite the history on what happened 1 year ago in producing 
the Protect America Act, our first attempt to fix the problems with 
foreign intelligence surveillance 1 year ago. That was not pretty, but 
I note there have been mischaracterizations of it. After last year, 
many critics of FISA, most notably in the House, tried to rewrite 
history and discredit ADM Mike McConnell, the Director of National 
Intelligence, and this compelled me to speak out on the matter at this 
time. He, in my view, from what I saw, acted in good faith, and he was 
charged with not having done so. But it seems there is another effort 
today to rewrite history. I can say, as vice chairman of the Senate 
Intelligence Committee and the cosponsor of the Protect America Act, I 
was the lead negotiator during the final hours of the Congress, as we 
tried to pass a critical short-term update of our Nation's law 
governing terrorist surveillance.
  As one who was there, I dispute the misinformation that was spread 
and largely by those who were not there. I will outline the events as 
they occurred, and here is what happened.
  As I think most of us know, in January 2007, the President announced 
that the terrorist surveillance program was coming under the FISA 
Court. Our Director of National Intelligence, Admiral McConnell, 
subsequently stated that after that time, the intelligence community 
lost a significant amount of collection capability and that, combined 
with increased threat, compelled him to ask Congress to modernize FISA, 
sooner rather than later.
  On April 12, Admiral McConnell sent his full FISA modernization 
proposal to Congress, and on May 1 he presented it in open session to 
the Senate Intelligence Committee.
  Some would like us to believe that was the first time this became an 
issue for us, in July, but it was not. The DNI had appeared in open 
session before the Senate Intelligence Committee and had pleaded with 
us to update FISA months earlier.
  I might say, along with another colleague of ours on the Senate 
Intelligence Committee, Senator Bayh, we visited Iraq in early May of 
2007, and the Joint Special Operations Commander, LTG Stan McChrystal, 
told us at that time that the blockage in electronic surveillance by 
FISA was substantially hurting his ability to gain the intelligence he 
needed to protect our troops in the field and gain an offensive 
advantage. I believe I, and perhaps Senator Bayh, spoke about that in 
committee and on the floor.
  Immediately following the admiral's testimony in May, I had urged the 
Intelligence Committee immediately to mark up FISA legislation. I was 
told by members of the majority that until the President turned over 
certain legal opinions from the terrorist surveillance program, 
Congress would not modernize FISA. That Congress would hold America's 
security hostage to receiving documents from a program that no longer 
existed was disheartening to me. We had already received an inordinate 
amount of documents from the Department of Justice and the Director of 
National Intelligence. Yet I do not dispute the desire or the right of 
members to seek privileged documents from the executive branch. In 
fact, I joined in requesting some of that. But I did disagree with 
holding up FISA modernization when those documents were not necessary 
to do that.
  Despite the urging from the Director of National Intelligence, and 
knowing this outdated law was harming our terrorist surveillance 
capabilities, for

[[Page S6214]]

more than 3 months Congress chose to do nothing. Let me be clear, it 
was Congress that chose to ignore the pleas of the intelligence 
community. As a matter of fact, in late June, Admiral McConnell had a 
briefing for the entire Senate. I believe about 42 to 44 of us showed 
up there. He briefed Members of the Senate, again urging us to 
modernize FISA. Finally, his pleadings began to gain traction.
  In mid-July, Members of Congress agreed to discuss a short-term, 
scaled-down version of FISA to protect the country for the next few 
months before we could address comprehensive reform in the fall. 
Admiral McConnell immediately sent Congress his scaled-down proposal.
  Over the next week, Admiral McConnell was given nearly half a dozen 
versions of unvetted proposals from various congressional staffs across 
Congress and then pressed for instant support of these proposals. The 
admiral returned a compromise proposal to the Senate, including some of 
the provisions requested. Unfortunately, there were numerous bait and 
switches that took place during that time.
  Since the bipartisan committee process was circumvented to craft 
legislation behind closed doors without input from the relevant 
committee and the minority, it got messy in the final hours. Even as 
the vice chairman of the Intelligence Committee, I was excluded from 
the key meetings. Not only was I excluded, most members of the 
Intelligence Committee, Republican and Democratic, were left out of the 
process.
  Therefore, in the waning moments before the recess, I got together 
with a number of Democrats, including several from our Intelligence 
Committee, to discuss the short-term approach for the Protect America 
Act that Leader McConnell and I had introduced and which had the 
support of the DNI and the Department of Justice.
  Finally, on August 3 and 4, Congress, on a strong bipartisan basis 
and a desire to get out of town for the August recess, passed the 
Protect America Act.
  That was why it was jammed up. The administration was not trying to 
stiff us. The administration felt it was being stiffed. Fortunately, a 
solid, bipartisan majority of the Senate came together, passed the 
bill, and gave the House, regrettably, no choice but to pass it--which 
they did. But after the passage of the act, I think we all learned a 
good lesson. We sat down together on the Senate Intelligence Committee 
and began, on a bipartisan basis, to work out a permanent solution to 
FISA. I am very thankful we could do it. We put in a great deal of 
work. We spent a lot of time with the DNI, with the lawyers and the 
operatives for the program, and Senator Rockefeller and I worked, in a 
bipartisan fashion, to come up with a strong committee bill that we 
passed out of the Senate later on a 68-to-29 vote.
  I thank my colleagues on the committee, their staff, and all the 
Members of Congress who supported us, particularly the 68 who came and 
voted aye to pass the FISA amendments in February.
  That started the process that led us to where we are today. There is 
a strong bipartisan product before us. There were changes, cosmetic 
changes largely, made that the House believed were important and the 
intelligence community assured us would not interfere with their 
ability to collect information under the structure we had set forth in 
the FISA amendments that were passed by the Senate.
  That is where we are today. I am ready, willing, and able, whenever 
it is the will of the leadership, to act on amendments that may be 
before us and try to pass this bill so we will have some certainty for 
the intelligence community that they will know what the guidelines are 
for the next period through 2012.
  In any event, I will be back when we get on the bill to go over some 
of the items which are in question. But I think you see our chairman, 
Senator Rockefeller, who is on the floor, and I can assure you this is 
a good, solid, bipartisan bill that we should pass.
  I see it is a good time to yield the floor.
  The PRESIDING OFFICER. The Senator from Montana is recognized, 
pursuant to the previous order.

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