[Congressional Record Volume 154, Number 111 (Tuesday, July 8, 2008)]
[Senate]
[Pages S6379-S6381]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008

  Mr. CARDIN. Mr. President, I rise today in opposition to final page 
of this legislation, H.R. 6304, the Foreign Intelligence Surveillance 
Act of 1978, FISA, Amendments Act of 2008, if it is not amended to 
change the retroactive immunity provisions.
  The President must have the necessary authority to track terrorists, 
intercept their communications, and disrupt their plots. Our Nation 
still faces individuals and groups that are determined to do harm to 
Americans, as well as our interests throughout the world.
  I have spent many hours at the National Security Agency, which is 
located in Fort Meade, MD. The men and women of our intelligence 
agencies are dedicated public servants who are doing a great job on 
behalf of their country. They are trying to do their jobs correctly, 
and comply with all applicable laws and regulations.
  As a member of the Judiciary Committee, I have received classified 
briefings about the advice and requests that were given to the 
telecommunications companies by the U.S. Government. I have seen the 
opinions of counsel on this issue. I have attended numerous hearings on 
this issue.
  Congress must indeed 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. The President deliberately bypassed 
the FISA Court for years with his warrantless wiretapping program--long 
after any emergency period directly following the 9/11 terrorist 
attacks--and did not ask Congress to change the FISA statute. In fact, 
President Bush refused to fully brief Congress on the Terrorist 
Surveillance Program, TSP, the existence of which was only exposed 
through a New York Times story. After the story broke, the 
administration reluctantly agreed to place this program under the 
supervision of the FISA Court.
  I do believe that many of the telecommunications companies cooperated 
with the Government in good faith, and may be entitled to relief. But 
the FISA statute of 1978 already lays out procedures for the Government 
to seek a court order and present this order to the telecommunications 
companies and require their assistance. The 1978 FISA statute also 
provides certain immunities to telecommunications companies that 
provide this type of assistance to the Government.
  The President chose to ignore the FISA statute. If the President did 
not want to use the FISA statute or wanted to change it, he had the 
responsibility to come to Congress and ask for that change. He cannot 
change the law by fiat, or by issuing a Presidential signing statement. 
Congress must change the law, and the courts must interpret the law. 
Congress and the courts have the power, and often the responsibility, 
to disagree with the President, and these co-equal branches have the 
constitutional checks to override his veto, disapprove of a request for 
a warrant, or strike down an action as unconstitutional.
  I will vote against retroactive immunity for the telecommunications 
companies. The current bill only authorizes the district court to 
review whether the companies received written requests from the U.S. 
Government stating that the activity was authorized by the President 
and determined to be lawful by the executive branch. The Court would 
have to simply accept the executive branch's conclusion that the 
warrantless wiretapping outside of the FISA statute and without FISA 
Court approval was legal, which means the executive branch--not the 
judiciary--gets to decide whether the law was broken. I want the courts 
to be able to look at what the executive branch is doing. I want the 
court to protect individual rights. Granting this type of immunity 
would violate the basic separation of powers. It would also create a 
dangerous precedent for future administrations and private actors to 
violate the law, and then seek relief in Congress or from the President 
through an after-the-fact amnesty or pardon.
  There was a way to provide the telecommunications companies with 
appropriate relief. Senator Feinstein's amendment would have allowed 
the courts to grant relief to the telecommunications companies if they 
acted reasonably under the reasonable assumption that the Government's 
requests were lawful. This amendment would have preserved the 
independent judgment of the judiciary, and preserved the necessary 
check and balance in our system of government. Unfortunately, the 
negotiators for this legislation rejected this compromise.

[[Page S6380]]

  I also want to note the improvements made to title I of this 
legislation, compared to current law and the Senate-passed Intelligence 
Committee version. I thank the Members of the House and Senate who 
worked hard on improvements to this legislation, particularly House 
majority leader Steny Hoyer.
  Title I is not perfect, but it is does bring the President's program 
under the FISA statute and FISA Court, and provides for oversight by 
Congress and the courts.
  Title I contains a sunset of December 2012 for this legislation. I 
feel strongly that the next administration should be required to come 
back and justify these new authorities to Congress. As a member of the 
Judiciary Committee, I believe the only meaningful cooperation we 
received from the executive branch on this issue occurred when they 
were facing a sunset and a potential lapsing of their authorities and 
powers under the statute. Congress will then have time to evaluate how 
the new law has been implemented, and debate whether further changes 
are needed.
  This legislation also requires the inspector general to review 
compliance with: (1) Targeting and minimization procedures; (2) reverse 
targeting guidelines; (3) guidelines for dissemination of U.S. person 
identities; and (4) guidelines for acquisition of targets who turned 
out to be in the United States. The inspector general review will be 
provided to the Attorney General, Director of National Intelligence, 
and the Judiciary and Intelligence Committees of the Senate and House. 
The public would also be given an unclassified version of these 
reviews, reports, and recommendations. These reviews will help Congress 
evaluate the new authorities under the FISA statute, and how the 
executive branch and the FISA Court are using these new authorities, 
before the legislation sunsets. Congress can then decide how best to 
reauthorize this program.
  The bill strengthens the exclusivity language of FISA and the 
criminal wiretap laws. Congress is making very clear that these 
statutes are the exclusive means by which electronic surveillance can 
be legally conducted by the U.S. Government. The bill also removes a 
troubling attempt to unduly broaden the definition of ``electronic 
surveillance.''
  Supreme Court Justice Anthony Kennedy, in his opinion in the recent 
Boumediene case on the Guantanamo detainees, stated: ``The laws and 
Constitution are designed to survive, and remain in force, in 
extraordinary times. Liberty and security can be reconciled; and in our 
system they are reconciled within the framework of the law.''
  I believe title I should have been strengthened by more effective 
court review. However, absent the retroactive immunity provisions in 
title II, I would support the compromise legislation, because it is 
important for the intelligence community to have the tools it needs. 
However, I regret that if the retroactive immunity provision remains 
unchanged in the final legislation, I will vote against the 
legislation, because of the fundamental problem with that provision.
  In conclusion Mr. President, shortly we will be considering the 
amendments to the Foreign Intelligence Surveillance Act, the FISA act. 
I must tell you, I think it is important that our intelligence 
community have the tools they need to obtain information from foreign 
sources. That is what this legislation is about. We need to modernize 
the FISA law. Communication methods have changed, and we need to give 
the tools to the intelligence community to meet their modern needs of 
communication.
  I serve on the Judiciary Committee. I was privy to many hearings we 
had, some of which were classified, to find out the information as to 
what we could do. We brought forward legislation that I think was the 
right legislation that would have given the necessary tools to the 
intelligence agencies to get information from foreign sources without 
being burdened by unnecessary court approval and protect the civil 
liberties of the people of this Nation. Unfortunately, that compromise 
was rejected.
  We are in this situation today where we have had major disagreements 
on how to amend the FISA statutes because of the action of the Bush 
administration. It is absolutely clear to me that the President went 
beyond the legal or constitutional authority that he has in doing 
wiretaps without court approval. I want to make it clear, the men and 
women who work at our intelligence agencies, many of whom are in 
Maryland at NSA, are doing a great job. They are trying to do 
everything that is correct to protect our Nation and do it in the 
correct manner. It was the Bush administration that went beyond the 
law. It was the Bush administration that went beyond the Constitution.
  It is important for us to balance the needs of our community to get 
information to protect us but also protect the civil liberties with the 
proper checks and balances in our system.
  That brings me to H.R. 6304, the legislation that will shortly be 
before us.
  Title I is a much better bill than the bill that left the Senate 
earlier this year. I think this bill has been worked on in a very 
constructive environment. I compliment not only Senator Rockefeller, 
who is on the Senate floor, for his hard work on this legislation, I 
also compliment my colleague from Maryland, Congressman Hoyer, the 
majority leader of the House of Representatives, for the work he did in 
bringing us together on a bill that I think is a better bill than the 
bill that left the Senate.
  This bill provides for a sunset in 2012. That is important because I 
find we do not get the attention from the administration on this issue 
unless they are faced with a deadline from Congress. This will force 
the next administration to take a look at this legislation and come 
back to the Congress with modifications or justifications for the 
continuation of the legislation. I think that is an important 
improvement.
  The legislation provides for the inspector general to review the 
targeting and minimization provisions. The targeting is when a U.S. 
citizen, perhaps indirectly, is targeted. And the minimization 
procedures deal with when the intelligence community gets information 
about an American without court approval, to minimize the use of that 
information or to seek court approval. Both of those provisions will be 
reviewed by the inspector general and reports issued back to the 
Congress with unclassified versions available for public inspection.
  The FISA Court is strengthened through the compromise that has been 
reached. Let me make it clear, I would have liked to have seen the 
Judiciary Committee's bill passed and enacted into law. I think we can 
still improve title I. But I believe in the legislative process, and I 
think there has been a fair compromise reached on title I.
  If title I were before us as an individual action, I would support 
the compromise because I think it is time to move forward. But there is 
title II, and title II is the retroactive immunity. It gives 
retroactive immunity to our telecommunications companies, our telephone 
companies. They are entitled to some relief. They acted under the 
urgency of the attacks on our country on September 11 and with the 
request of the President of the United States. They are entitled for 
some relief. But this provision goes way too far.
  It authorizes the executive branch to determine the legality of their 
actions. In other words, the agency, the President who asked for the 
information, will determine whether the telephone companies acted 
properly. It should be the courts. This takes too much away from the 
judicial branch. It, in my view, compromises the checks and balances 
that are so important in our constitutional system.
  We didn't have to be here. I thought Senator Feinstein offered a fair 
compromise, and I am surprised it was not taken by the negotiators. 
Senator Feinstein said: Why don't we let the FISA Court make a decision 
as to whether the telephone companies acted legally? That is a 
compromise I could have supported. I think it would have been a fair 
compromise. Unfortunately, that was rejected. Title II is a fundamental 
flaw in the separation of powers, in the proper protection of civil 
liberties of the people of this Nation, and a dangerous precedent for 
future action by this Congress.
  I will vote to remove or modify title II by the amendments that will 
be presented later today. I prefer to modify it. As I suggested, I 
think we have compromises that can work, but I will vote

[[Page S6381]]

to remove it if there are no other options presented. If we do not 
modify title II, reluctantly I will not be able to support the 
compromise legislation that has been presented.
  I urge my colleagues to try to get this done right. This is an 
important bill. Unfortunately, it is fatally flawed with the 
legislation that is before us.
  I yield the floor.

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