[Congressional Record Volume 158, Number 168 (Thursday, December 27, 2012)]
[Senate]
[Pages S8411-S8425]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




       FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012--Continued


                  Commending the President Pro Tempore

  Mr. BLUNT. Mr. President, also on two things that do not relate to my

[[Page S8412]]

comments about the Foreign Intelligence Surveillance Act--I would like 
to say it is a great honor for me to be able to speak on the floor for 
the first time with the President pro tempore presiding over the 
Senate. I know he is going to lead this body well and he has served 
with great dignity. It is an honor to be here with him on this day, 
even if it is December 27, 2012, and even though we are, of course, all 
continuing to think about the former President pro tempore and the 
services for him that were just completed.


                     Tributes to Departing Senators

                              Danny Akaka

  I would also like to say I was here when the new Member from Hawaii 
was sworn in and listened to Mr. Akaka's comments. I have great respect 
for him and the quiet dignity he brings to everything he does--from 
weekly demonstrations of his personal faith, which I share with him, to 
his name being mentioned first in all these quorum calls that have gone 
on now for, I assume, all the time he has been in the Senate, going 
back to 1981.
  But we will miss him, as we will miss his colleague from Hawaii, and 
we welcome his new colleague today. I get to welcome you personally, 
Mr. President, with heartfelt appreciation, as the new President pro 
tempore of the Senate.
  Following that, I wish to speak on the importance of extending the 
Foreign Intelligence Surveillance Act, the Amendments Act, I think it 
is called.
  While I was serving in the House in 2008, the Foreign Intelligence 
Surveillance Act had lapsed, and we were not doing the things we should 
be doing. I was able there to work with my good friend Steny Hoyer, who 
was the majority whip at the time. I was the minority whip at the time. 
We had held the reverse of those jobs in the previous Congress. I liked 
my role as majority whip better. But Mr. Hoyer and I were able to work 
together, particularly with my predecessor from Missouri, Senator Bond, 
and Senator Rockefeller--Senator Bond was the vice chairman of the 
Intelligence Committee; Senator Rockefeller was the chairman--as we 
tried to negotiate how we would extend the FISA Amendments Act.
  My colleagues here today--many of them remember the challenge we 
faced in getting that bill done. Many of them, including the current 
chairman of the Senate Intelligence Committee, know the importance we 
placed on the work that is done every day under the Foreign 
Intelligence Surveillance Act.
  At the time in 2008, we had a very concrete set of examples of what 
would happen without FISA because, frankly, we were effectively without 
it. For periods of time in 2007 and 2008, the National Security Agency 
was unable to fully perform its mission in monitoring many of the 
activities of known terrorists who were overseas and particularly found 
it impossible to focus in on new targets--and, again, those are known 
terrorists not in this country.

  It was wrong that Congress allowed the act to lapse, and it would be 
dangerously wrong if we let it happen again on December 31 of this 
year.
  Five years ago, I sat through many disturbing intelligence briefings. 
I remember the sense of urgency expressed by the then-Director of 
National Intelligence Mike McConnell; the then-CIA Director Michael 
Hayden; and the then-Attorney General Michael Mukasey, as they 
discussed the consequences we would have to deal with if we continued 
not to move forward and put this act back in place.
  The agreement we reached balanced the concerns of those who feared 
the National Security Agency had overreached with the ongoing authority 
the intelligence community needed to protect the country. That 
agreement is before us again to be reauthorized for another 5 years.
  The FISA Amendments Act protects individuals in the United States 
from so-called reverse targeting. It is one of the concerns people had 
5 years ago. This would be a process which, in theory, could be used to 
monitor the communications of American citizens under the guise of 
spying on terrorists.
  It also continues to ensure that any communication originating in the 
United States caught in the FISA process is minimized. What does that 
mean? It means it is handled in a way that American communications 
cannot be examined unless they have further justification.
  Meanwhile, the bill updated the antiquated way we monitor terrorist 
communications, ensuring that our intelligence professionals no longer 
have to spend countless hours trying to figure out whether an overseas 
terrorist's communications are traveling over fiber optic wires or 
through a satellite.
  I am concerned the amendments we are looking at here not only disrupt 
the delicate balance we struck in 2008 but also they may mean that this 
act does not get extended. The House has voted on a straight extension. 
The only thing standing between the continuation of that 2008 hard-
fought and I think properly balanced agreement is a Senate vote on what 
the House has passed. I will be voting against the amendments. I think 
some of these amendments are well intended and, in fact, if they were 
not part of this bill, studies and other things that are being proposed 
might very well be worth doing but not worth doing in a way that would 
allow FISA to expire in just a few short days.
  I am pleased to have been able to serve on both the Senate and the 
House Select Committees on Intelligence and have witnessed firsthand 
the important role that FISA plays in protecting our country.
  I am thankful for the intelligence professionals who serve our 
country, both in the United States and overseas. I hope, as they 
observe this debate we are having about FISA, they see a Congress that 
supports them, supports their families, and supports their important 
work.
  Unless the world changes--and, hopefully, it will change--we should 
never allow our ability to track terrorists overseas to go dark again. 
That is why it is critically important we pass this bill in the next 
few hours, why we extend FISA for another 5 years, and give our 
intelligence professionals the tools they need to protect our country 
and, frankly, give the Congress, the President, and, most importantly, 
the American people the obligation to look at this authority again in 5 
years and see if we still need it.
  Today, we need to extend the Foreign Intelligence Surveillance Act. I 
hope we do that.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Shaheen). The Senator from Colorado.
  Mr. UDALL of Colorado. Madam President, I would be happy to defer to 
the vice chairman.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Madam President, I rise today in support of H.R. 5949, 
the FISA Amendments Act Reauthorization Act of 2012. Before I speak on 
it as vice chairman of the Intelligence Committee, I wanted to say that 
this bill, along with many other products that have come out of the 
Intelligence Committee, has been put together in a strong bipartisan 
way under the leadership of our chairman Senator Feinstein, who has 
been a great advocate for the national security of the United States 
and a great advocate for our men and women in the intelligence 
community. I would be remiss if I did not say as we conclude this year, 
which is the second of the 2 years I have been vice chair, what a 
privilege and pleasure it has been to work with her. I thank her for 
her leadership and all of the issues we have worked on together.
  This bill, which passed the House with broad bipartisan support, 
provides a clean extension of the FISA Amendments Act until December 
31, 2017. Earlier this year, with strong bipartisan support, the Senate 
Intelligence Committee also reported the bill with a clean extension, 
although it had a slightly earlier sunset of June 1, 2017. So we have 
two bills--one from each Chamber--that recognize that the FAA must be 
reauthorized for the next 5 years. Both bills also confirm that there 
should be no substantive changes to the FAA itself. But time is running 
short before these vital authorities expire, as they expire on December 
31. So it makes the most sense for the Senate to simply pass the House 
bill and send it to the President for his immediate signature so that 
we have no gap in collection on those who seek to do us harm, as they 
are out there every day seeking to do that.
  As we debate the merits of passing a clean extension of the FAA, I 
think it is important to remember why the FAA is so necessary. The 
terrorist attacks by al-Qaida on September 11,

[[Page S8413]]

2001, highlighted a significant shortfall in our ability to collect 
foreign intelligence information against certain overseas targets. Our 
intelligence community took operational measures to address that 
shortfall but eventually realized that additional FISA authorities were 
needed to fully address the problem.
  More than 5 years ago, after an adverse ruling from the Foreign 
Intelligence Surveillance Act Court, the Director of National 
Intelligence requested that Congress act immediately to stem the sudden 
and significant reduction in the intelligence community's capability to 
collect foreign intelligence information on overseas targets. So 
Congress responded--first with the Protect America Act of 2007 and then 
with the FISA Amendments Act of 2008. By providing a statutory 
framework for acquiring foreign intelligence information from overseas 
targets, the FAA has enabled the intelligence community to identify and 
neutralize terror networks before they harm us either at home or 
abroad.
  While I cannot get into specific examples, I can say definitively 
that these authorities work extremely well. I encourage all of my 
colleagues to go to the Intelligence Committee's spaces and review the 
classified materials provided by the intelligence community. These 
materials give the classified examples that clearly demonstrate the 
FAA's success.
  Let me briefly highlight what some of those authorities do. Under 
section 702, the government may target persons reasonably believed to 
be outside the United States for the purpose of acquiring foreign 
intelligence information. However, there are a number of important 
limitations on this authority that are designed to ensure that this 
section 702 collection cannot be used to intentionally target a U.S. 
person under what we call reverse-targeting within the community. These 
acquisitions are authorized jointly through a certification by the 
Attorney General and the Director of National Intelligence and are 
approved by the FISA Court.
  The plain language and legislative history of section 702 makes clear 
that Congress understood there would be incidental collection of one-
end domestic and U.S. person communications. There has to be. If we 
impose an upfront ban on the collection of such communications, we 
could never do the acquisition in the first place because it is often 
impossible to determine in advance whether an unknown target overseas 
is, in fact, a U.S. person. So we need the broad ``any person'' 
authority at the outset to ensure that the acquisition can occur in the 
first instance. Moreover, Congress also understood that this incidental 
collection would likely provide the crucial lead information necessary 
to thwart terrorists like the 9/11 hijackers who trained and launched 
their attacks from within the United States. But because of legitimate 
concerns about the privacy of U.S. persons, Congress also placed 
specific safeguards on section 702 collection, including review and 
approval by the FISA Court of the AG-DNI certification and targeting 
and minimization procedures, a requirement that all acquisitions be 
consistent with the fourth amendment, and explicit prohibitions against 
certain conduct, such as intentionally targeting a U.S. person.
  Because there are instances, however, in which we may need to target 
U.S. persons overseas who have betrayed their country as terrorists or 
spies, the FAA does include specific ways to do this. Similar to the 
authorities in title I of FISA, sections 703 and 704 allow the FISA 
Court to authorize collection against certain U.S. persons overseas. 
Before the FAA, this type of collection was authorized by the Attorney 
General and not by a court. The FAA enhanced the protections for U.S. 
persons by requiring individual FISA Court orders based on probable 
cause that the U.S. person is a foreign person, agent of a foreign 
power, or an officer or employee of a foreign power. As I understand 
it, most of the objections to the FAA relate to section 702 and what we 
call incidental collection.
  I recommend again that my colleagues review the unclassified FAA 
background paper that was sent by the AG and by the DNI to Congress 
last February. That document was earlier made a part of the Record at 
my request. This paper describes the FAA authorities in some detail, 
and it highlights the layers of oversight by all three branches of 
government. These multiple oversight mechanisms are there primarily to 
protect U.S. persons.
  I can tell you firsthand from my work on the Intelligence Committee 
on both the House and the Senate side that it is vigorous oversight. 
Every aspect of the FAA gets looked at closely by the executive branch, 
from the dedicated personnel responsible for operating the system, up 
through the managerial chain of command to the relevant inspectors 
general and all of the lawyers at the National Security Division at the 
Department of Justice and at the agencies responsible for FAA 
implementation. Twice a year, Congress gets reports on its 
implementation on top of what we learn from hearings, oversight visits, 
briefings, and notifications, as well as other reports that are given 
to Congress. The judicial branch, the FISA Court, plays its own key 
role by reviewing the certifications and the targeting and minimization 
procedures and ensuring that all of those comply with the law.

  I cannot say that the implementation of the FAA has been perfect. 
Certainly there have been a few mistakes along the way over the past 
several years. Sometimes technology does not always work the way it is 
supposed to, and sometimes there is a disconnect between the way a 
collection device actually works and the way it has been described by 
the lawyers. But I can tell you that on those few occasions where 
something has not been quite right with how these authorities have been 
used, the oversight mechanisms put in place by the FAA have worked 
exactly as intended by Congress. When a problem arises, the Justice 
Department knows about it, the FISA Court knows about it, and Congress 
knows about it. The collection related to the problem stops until the 
problem gets fixed.
  In my experience, the FAA is one of the most tightly overseen 
activities within the intelligence community. I know some people 
believe more oversight is needed, but I do not think there is 
justification for that. I am concerned that if we add more IG reviews, 
for example, we run the risk of taking scarce resources away from 
actual analysis and operations. That is not the right course, 
especially when we know the existing oversight mechanisms are working 
so well. These FAA authorities are simply too important to lose.
  We have a bill before us that has passed the House and can be sent 
straight from this body to the White House for signature by the 
President. The President has said he will sign the House bill as soon 
as he receives it from this body. I urge my colleagues to join me in 
voting for a clean extension of the FISA Amendments Act until December 
31, 2017.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Colorado.
  Mr. UDALL of Colorado. Madam President, I ask unanimous consent to 
speak for up to 30 minutes and that be under the time allotted to 
Senator Wyden.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. UDALL of Colorado. Madam President, I rise, as many have today, 
to talk about the Foreign Intelligence Surveillance Act. Before I get 
to the substance of my remarks, I wish to acknowledge the great 
leadership and work that both the chairwoman and the vice chairman 
provide for the committee. We would not be here today without their 
focus and their commitment to maintaining the best intelligence 
community, I believe, in the world. I also want to thank my colleague 
Senator Wyden and the others who have spoken today on the floor about 
the authorities under the FISA Amendments Act.
  I would suggest that most Americans likely do not recognize the name 
of the bill, but I am certain they have heard about what this bill 
addresses; that is, government surveillance of communications. This is 
an issue that is critical to get right because if it is done wrong, it 
can strike at the core of our constitutional freedoms. So I wanted to 
thank our Senate leadership today for providing us time to discuss what 
is a very important issue. I might suggest that the topic at hand is 
important

[[Page S8414]]

enough to require multiple days of debate, but given the gravity and 
the number of other issues we must confront before the end of the year, 
I am grateful for this debate and the discussion we are having for most 
of this day.
  Some observers may even question why we are taking even this limited 
amount of time to debate a bill we here in the Senate expect to pass 
easily. The truth is that even though many Senators are likely to vote 
for this bill, it is incomplete and it needs reforms. In fact, part of 
the reason this debate is so important is because I believe Congress 
and the public do not have an adequate understanding of the effect this 
law has had and could have on the privacy of law-abiding American 
citizens.
  This is an important subject. It is an important question. That is 
why a number of us have taken to the floor today to spend some time 
highlighting the issues at hand in the hopes our colleagues will join 
us in striking the right balance, one that preserves foundational 
values and constitutional liberties while still allowing us to 
effectively and forcefully prosecute our war on terror.
  I was a Member of the House in 2008 when the FISA Amendments Act 
passed Congress and was signed into law. I voted for it then, along 
with most of my Democratic colleagues in the House.
  In March 2008 many of us in the House viewed the FISA Amendments 
Act--or the FAA, in shorthand--as an improvement over the status quo. 
Why was that so? It was because it put a legal framework around 
President Bush's warrantless wiretapping program and it updated the 
Foreign Intelligence Surveillance Act--or FISA, as it is known in 
shorthand--to respond to changes in technology and to hold that 
administration accountable.
  As I noted 4 years ago during that debate, the bill also included 
important provisions that for the first time required intelligence 
agencies to seek a judge's permission before monitoring the 
communications of Americans overseas. That meant the Federal Government 
could no longer monitor the e-mail or phone calls of Americans overseas 
without a warrant.
  In my remarks, I am going to talk on a number of occasions about 
warrants and the check they provide on government overreach. That was 
an important part of that debate in 2008. Back in that year, back in 
2008, it was Senator Wyden, who is here on the floor today, who was 
instrumental in including that particular provision in the final FISA 
Amendments Act legislation. From the perspective of a House Member at 
that time, I was pleased, glad, and appreciated that we had Senator 
Wyden's leadership right here in the Senate.
  I now have the great privilege to serve on the Senate Intelligence 
Committee with Senator Wyden. I have to admit that from the position I 
now have, I am viewing the FISA Amendments Act through a different 
lens. As a member of that committee, I learned a great deal more about 
our post-9/11 surveillance laws and how they have been implemented. In 
the course of my 2 years on the committee, I have determined that there 
are reforms that need to be made to the FISA Amendments Act before we 
renew it into law.
  As we prepare to renew the FISA Amendments Act for the first time 
since 2008, it is important that we take this opportunity to address 
several flaws that have become apparent to me and a number of our 
colleagues. Fortunately, the sunset provision in the original bill 
effectively provides us with that opportunity so that today we can 
ensure that the statute still tracks with our foreign intelligence 
requirements and the interests of the American people. In addition, to 
remain an effective law, the sunset provision helps ensure that the 
FISA Amendments Act's authorities keep up with today's state of 
technology.
  Let me be clear that I strongly believe that for our national 
security, the Federal Government needs ways in which to monitor 
communications to ensure that we remain a step ahead of our enemies and 
terrorists. I also strongly believe we need to balance the civil 
liberties embodied in our Constitution with our ongoing fight against 
terrorists.
  We need only look to recent history to understand why Congress needs 
to keep a tight rein on these surveillance efforts. It was in the 
months after 9/11, just shortly after 9/11 that President Bush first 
authorized what we now refer to as the secret warrantless wiretapping 
program. Many legitimate concerns were raised about that program, and 
Congress wisely went back and put some limits on it in that 2008 law. 
But we have an opportunity to discuss today whether those limits went 
far enough and whether the circumstances that prompted the creation of 
the program in 2001 and its passage into law in 2008 still justify its 
existence today.
  I am a member of both the Armed Services and Intelligence Committees, 
and I will be the first to say that terrorism remains a serious threat 
to the United States, and we must be as diligent as ever in protecting 
our fellow American citizens. I can also say with confidence that the 
FISA Amendments Act has been beneficial to the protection of our 
national security.
  In the Senate Intelligence Committee, I receive regular briefings on 
our efforts to combat terrorism abroad and here at home in the United 
States, including the benefits and accomplishments of the FISA 
Amendments Act. I think the threats--I should say I not only think, I 
know the threats we still face today do justify the extension of these 
authorities. I don't question the value of the foreign intelligence the 
FAA provides. But my question to my colleagues and the administration 
is whether a 5-year straight extension of these authorities, without 
any changes, is the best way forward. In my view, it is not.
  I recognize that even after Osama bin Laden's death, we still face 
numerous threats. Make no mistake about it, terrorism is a serious 
threat to our homeland and to American lives, and terrorism has also 
forced us to have a conversation about our civil liberties and the 
balance between our privacy and the need to confront threats to our 
Nation. I strongly believe our commitment to protect the American 
people should not force us to abandon the foundational principles that 
make us a beacon for the rest of the world. This is a false choice. We 
must, as the Federal Government and the protectors of our Constitution, 
protect the constitutional liberties of the American people and live up 
to the standard of transparency our democracy demands.
  As I mentioned, I am the only Senator on our side of the aisle who 
serves on both the Intelligence Committee and the Armed Services 
Committee, and I believe I have a unique perspective when evaluating 
the critical balance between protecting our national security and the 
rights of American citizens. It is the responsibility of Congress to 
find that balance between the will of the many and the rights of the 
few, the security of the country and the freedom of its citizens. In 
times of war and crisis, finding this balance--and it is a delicate 
balance--can be even more challenging, and there are unfortunate times 
in our Nation's history when we have lost sight of our principles and 
what the United States represents as a nation.
  I understand that the law requires the intelligence community to 
conduct oversight of FAA implementation, that the Foreign Intelligence 
Surveillance Court reviews the legality of the procedures, and that the 
congressional Intelligence Committees conduct our oversight of FISA 
programs. But nearly all of this oversight is conducted in secret. I 
know my constituents trust me to conduct this oversight, but I believe 
the people too have a role in keeping a watchful eye on the government.
  As Senators Rockefeller and Wyden wrote in a letter to the Bush 
administration officials in 2008, ``secrecy comes with a cost'' which 
can--and I want to quote these two valued and wise Senators--``make it 
challenging for Members of Congress and the public to determine whether 
the law adequately protects both national security and the privacy 
rights of law-abiding Americans.''

  With that general overview, I wish to talk about some of the 
specifics in this particular bill we are considering today. I would 
like to get to the core of my concerns.
  As my colleagues know, section 702 of the FISA Amendments Act 
established a legal framework for the government to acquire foreign 
intelligence by targeting non-U.S. persons who are reasonably believed 
to be located outside

[[Page S8415]]

the United States under a program approved by FISA and the FISA Court, 
I should add. Because section 702 does not involve obtaining individual 
warrants, it contains language specifically intended to limit the 
government's ability to use these new authorities to deliberately spy 
on American citizens.
  Earlier this year Senator Wyden and I opposed the bill reported out 
of the Senate Intelligence Committee extending the expiration date of 
the FISA Amendments Act of 2008 from December 2012 to June 2017. We 
opposed this long-term extension because we believe Congress does not 
have an adequate understanding of the effect this law has had on the 
privacy of law-abiding citizens. In our view, it is important for 
Members of Congress and the public to have a better understanding of 
the foreign intelligence surveillance conducted under the FAA so that 
Congress can consider whether the law should be modified rather than 
simply extended without changes.
  This has been a longstanding quest for a number of us. In fact, while 
I have been outspoken on this issue, the effort to better understand 
the FAA's implementation precedes my time on the Senate Intelligence 
Committee. Senator Wyden and others have been pressing the intelligence 
agencies for years to provide more information to Congress and the 
public about the effect of this law on Americans' privacy.
  I think Senator Wyden and the others would agree with me that to his 
credit, the Director of National Intelligence in July 2012 agreed to 
declassify some facts about how the secret FISA Court has ruled on this 
law. So what did we learn from that declassification? Well, 
specifically, it is now public information that on at least one 
occasion, the FISA Court has ruled that some collection carried out by 
the government under the FISA Amendments Act violated the fourth 
amendment. The court has also ruled that the government has 
circumvented the spirit of the law.
  So much about this law's impact remains secret. What do I mean by 
that? Well, for example, Senator Wyden, I, and others have been trying 
to get a rough estimate of how many Americans have had their phone 
calls or e-mails collected and reviewed under these authorities. The 
Office of the Director of National Intelligence told us in July 2011 
that ``it is not reasonably possible to identify the number of people 
located in the United States whose communications may have been 
reviewed'' under the FISA Amendments Act.
  We are prepared to accept that it might be difficult to come up with 
an exact count of this number, but it is hard for us to believe that 
the Director of National Intelligence and the whole of the intelligence 
community cannot come up with at least a ballpark estimate. This is 
disconcerting. Our concern about numbers is this: If no one has even 
estimated how many Americans have had their communications collected 
under the FISA Amendments Act, then it is possible that this number 
could be quite large.
  So how did we respond? Well, during a markup in our committee, we 
offered an amendment that would have directed the inspectors general of 
the intelligence community and the Department of Justice to produce a 
rough estimate of how many Americans have had their communications 
collected under section 702. Our amendment did not pass, but we will 
continue our efforts to obtain this information because the American 
people deserve to know.
  There are those who are satisfied with the law's current privacy 
protections, and they point out that classified minimization procedures 
guide how government officials handle information on Americans' 
communications. But I don't believe those procedures are a substitute 
for strong privacy protections incorporated into the law itself. Do we 
really want accountability for those protections to be secret? Do we 
really want to be dependent upon the good will of future 
administrations to keep faith with the so-called minimization 
procedures?
  That is why I believe the FISA Amendments Act extension should 
include clear rules prohibiting the government from searching through 
the incidental or accidental collection of these communications unless 
the government has obtained a warrant or emergency authorization 
permitting surveillance of that American. Our founding principles 
demand no less.
  Senator Wyden and I offered an amendment during the committee's 
markup of this bill that would have clarified the law to prohibit such 
searches. Our amendment included exceptions for searches that involve a 
warrant or an emergency authorization, as well as for searches on phone 
calls or e-mails of the people who are believed to be in danger or who 
consent to the search, each of which is important.
  Our amendment to close this backdoor search loophole did not pass in 
committee, but we remain concerned--I would say very concerned--that 
this loophole could allow the government to effectively conduct 
warrantless searches for Americans' communications. Especially since we 
do not know how many Americans may have had their phone calls and e-
mails collected under this law, we believe it is particularly important 
to have strong rules in place to protect the privacy of our fellow 
Americans.
  As the majority report noted when the Senate bill passed out of the 
committee: ``Congress recognized at the time the FISA Amendments Act 
was enacted that it is simply not possible to collect intelligence on 
the communications of a party of interest without also collecting 
information about the people with whom, and about whom, that party 
communicates, including in some cases nontargeted U.S. persons.''
  Therefore, I understand that in scooping up large amounts of data, it 
may be impossible not to accidentally catch some Americans' 
communications along the way--seems logical. The language of the law--
the collection of foreign intelligence of U.S. persons reasonably 
believed to be located outside the United States--anticipates that 
incidental or accidental collection of Americans' e-mails or phone 
calls would, in fact, occur. But under the FISA Amendments Act, as it 
is written, there is nothing to prohibit the intelligence community 
from searching through a pile of communications, which may have 
incidentally or accidentally been collected without a warrant, to 
deliberately search for the phone calls or e-mails of specific 
Americans.
  Again, I understand--and I think I can speak for Senators Wyden and 
others of us who have this concern--this could happen by accident. But 
I don't think the government should be doing this on purpose without 
getting a warrant or an emergency authorization regarding the American 
they are looking for.
  I have noted that Senator Wyden and I call this the backdoor searches 
loophole. Understandably, the Intelligence Committee doesn't much like 
that term, arguing there is no loophole. But I think we are going to 
have to agree to disagree on the terminology. I don't believe, though, 
that Congress intended to authorize the searches when they voted for 
the FISA Amendments Act in 2008. I know I certainly didn't.
  The intelligence agencies have not denied that section 702 gives the 
NSA the authority to conduct these searches, and it is a matter of 
public record the intelligence community has sought to preserve this 
authority. If it is not classified that intelligence agencies have this 
authority and it is not classified they would like to keep it, we think 
it is reasonable to tell the public whether and how it has ever been 
used. Yet when Senator Wyden and I and 11 other Senators asked whether 
intelligence agencies have already done this, we were told the answer 
was classified.
  My concern is that this section 702 loophole could be used to 
circumvent traditional warrant protections and search for the 
communications of a potentially large number of American citizens. The 
Senate Intelligence Committee majority report argues there may be 
circumstances in which there is a legitimate foreign intelligence need 
to conduct queries on data already in its possession, including data 
from accidentally or incidentally collected communications of 
Americans. I would argue, if there is evidence that an American is a 
terrorist or spy or involved in a serious crime, the government should 
be permitted to search for the communications of that American by 
getting a warrant or an emergency authorization.
  In that spirit, Senator Wyden and I have offered this backdoor 
searches

[[Page S8416]]

loophole amendment once again to this bill, and we intend to continue 
to bring attention to this issue until our colleagues grasp what could 
be at stake should this loophole not be closed. We have also filed a 
second amendment which seeks to instill some transparency to 
surveillance conducted under FISA Amendments Act authorities.
  What is included in this amendment? It requires the Director of 
National Intelligence to provide information to Congress that we have 
requested before but that we have not yet received, including a 
determination of whether any government entity has produced an estimate 
of the number of U.S. communications collected under the FISA 
Amendments Act; an estimate of such number, if any exists; an 
assessment of whether any wholly domestic U.S. communications have been 
collected under the FISA Amendments Act; a determination of whether any 
intelligence agency has ever attempted to search through communications 
collected under the FISA Amendments Act to find the phone calls or e-
mails of a specific American without obtaining a warrant or emergency 
authorization to do so; and finally, a determination of whether the NSA 
has collected any type of personally identifiable information on more 
than 1 million Americans.
  The amendment states the report produced by the Director of National 
Intelligence shall be made available to the public, but it gives the 
President the authority to make any redactions he believes are 
necessary to protect national security.
  Colleagues, I am going to conclude by restating my belief that the 
American people need a better understanding of how the FISA Amendments 
Act, section 702, in particular, has affected the privacy of our fellow 
Americans. I also believe we need new protections against potential 
warrantless searches for Americans' communications. I believe without 
such reforms Congress should not simply extend the law for 5 years.
  We need to strike a better balance between giving our national 
security and law enforcement officials the tools necessary to keep us 
safe but not damage the very constitution we have sworn to support and 
defend. National security and civil liberties can coexist. We do not 
need to choose between them.
  In Federalist 51, James Madison stated--and I would like to quote 
that great American:

       In framing a government which is to be administered by men 
     over men, the great difficulty lies in this: you must first 
     enable the government to control the governed; and in the 
     next place oblige it to control itself.

  The bill that is before us could come closer to that standard if we 
improve it through some of the amendments being offered by my 
colleagues and me, but it does not live up to that standard now. The 
American people deserve their privacy, they deserve to know how the 
intelligence community interprets and implements this law, and, 
frankly, they deserve better than the protections put before us today.
  I urge my colleagues to consider the gravity of the issues at hand 
and seriously consider and contemplate the effect of another 5 years of 
unchanged FAA authorities.
  I appreciate the attention of the Chair and the patience of my 
colleagues on this important matter. I yield the floor, and I suggest 
the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mrs. FEINSTEIN. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. Madam President, I note the Wyden amendment has not 
yet been called up. Someone may wish to do so.
  First of all, though vice chairman Chambliss isn't here, he said some 
very nice things, and I just want him to know that one of the best 
experiences of my Senate career has been the ability to work in a 
bipartisan way in the Intelligence Committee, to put things together 
between both sides, and to have staffs working together on both sides. 
Sometimes that isn't possible, but most of the time it is, and I think 
it is the way the Intelligence Committee was supposed to function. The 
fact that it does function that way, I think, is real testimony to Vice 
Chairman Chambliss and the work we have done together.
  I find this particular amendment very frustrating because I have 
tried to be as helpful as I could over many years in getting 
information released in a classified form for Members of the committee. 
In fact, we have been very successful in that regard. There are 
approximately eight big reports a year now that present information in 
a classified function. There are two reports from the Attorney General 
and the DNI assessing compliance with the targeting and minimization 
procedures and the acquisition guidelines of section 702. There are 
also reports required on the implementation of title VII. That report 
includes actions taken to challenge or enforce a directive under 
section 702, and a description of any incident of noncompliance. There 
are annual reviews by each agency responsible for implementing these 
sections, regular reviews by the IG of the Department of Justice and 
the IG of each agency. It goes on and on and on. Yet there is no 
satisfaction from some Senators.
  I believe that the Senators who support this amendment are trying to 
maximize the public release of this information, but I would encourage 
Senators to remember that this is a classified program. The information 
is available, but it is available in classified form.
  The proponents of these amendments leave out the fact that each year 
the program is approved by the FISA Court. This is a court of 11 judges 
appointed by the Chief of the Supreme Court, all of whom are Federal 
district court judges.
  The administration has decided the program should remain classified, 
and so we do our level best to provide the information on a classified 
basis and information is declassified when it can be. But the Wyden 
amendment goes a step too far. It could remove the classification from 
most of this program and create a way to make more information public 
that could well jeopardize the future of the program.
  I think vice chairman Chambliss would agree with me. One of the 
things we have seen is that this program is valuable, and the ability 
to collect intelligence and use that intelligence wisely and, with 
oversight from appropriate agencies, this program saves lives in this 
country. I know there are people trying to attack this country all the 
time. I know in the last 4 years there have been 100 terrorism-related 
arrests. Therefore, the classified information, which is available--but 
available in a secure room for Members to read--is important. I would 
urge, as vice chairman Chambliss has urged, that Members go and read 
this information.
  I would like to quote from the letter sent to Speaker Boehner, Leader 
Reid, and Minority Leaders Pelosi and McConnell from the Director of 
National Intelligence on this provision, section 702, which authorizes 
surveillance directed at non-U.S. persons located overseas who are of 
foreign intelligence importance. The letter says all of the process--
and it is pages and pages--is carried out in a classified form but to 
inform the Members who are the ones to provide the oversight. I mean, 
we are the public check on the Executive Branch. We are not of the 
intelligence community. We are the public, and it is our oversight, it 
is our due diligence to go in and read the classified material.
  So this amendment is an effort to make more of that information 
public, and I think it is a mistake at this particular time because I 
think it will create a risk to the program. I think it will make us 
less secure, not more secure.
  There are parts of the collection apparatus which are classified, and 
at this stage they are classified for good reason. So I have a 
fundamental opposition to this amendment. But of more immediate 
concern, we have 4 days to get this bill signed by the President or 
this section ceases to function--4 days.
  This is the House bill that is before us. It reauthorizes the program 
to 2017, and we have been through this before. We can make changes. I 
have tried to work with Senator Wyden, to the greatest extent possible, 
by delving

[[Page S8417]]

into these issues at hearings of the Intelligence Committee and by 
supporting his requests for information. I have offered to Senator 
Merkley today to work with him to consider whether his proposal should 
be part of our intelligence authorization bill next year. I don't know 
what else to do because I know where this goes, and where it goes is 
that there may be an intent by some to undercut the program. I don't 
want to see it destroyed. I want to see us do our job of oversight, 
which means reading and studying the classified material and, if 
something isn't there, getting it in a classified manner.
  This is a very difficult issue that requires a great deal of study. 
And consider the threats that are out there. If it weren't for the FBI, 
Najibullah Zazi would have blown up the New York subway and it was 
because of intelligence received that the FBI was able to follow him 
and eventually arrest him and other co-conspirators.
  If I thought this country was out of danger, it might be different. 
But I believe we are still at risk, and I believe there are people who 
will kill Americans if they have the opportunity to do so. One of our 
jobs here in Congress is to see that the intelligence apparatus within 
the American Government functions in a way so that intelligence is 
streamlined, that it gets to the right place, that it stops terrorist 
plots before they can be carried out.
  So, I say this in good conscience to Senator Wyden. My great fear is 
that all of this information gets declassified and put out in public 
and then something that reveals sources and methods is disclosed, 
perhaps even inadvertently. Then, before we know it, the program is 
destroyed. I don't want to see this program destroyed.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mrs. FEINSTEIN. I believe his time is up.
  Mr. WYDEN. Madam President, I believe I control additional time. How 
much time does our side have remaining?
  The PRESIDING OFFICER. There is 39 minutes of general debate time 
remaining to the Senator from Oregon.
  Mr. WYDEN. Madam President, I am going to be very brief in terms of 
responding to Senator Feinstein, the distinguished chair.
  First of all, there is no question the chair of the committee is 
correct that this is a dangerous time. That is specifically why, at 
page 6 of my amendment on the report, I include a redaction provision.

       If the President believes that public disclosure of 
     information in the report required by the subsection could 
     cause significant harm to national security, the President 
     may redact such information from the report made available to 
     the public.

  The bottom line: If the President believes any information that is 
made public would jeopardize our country at a dangerous time, the 
President is given full discretion with respect to redaction.
  Point No. 2. The chair of the committee is absolutely right; this is 
an important time for national security. It is also an important time 
for American liberties. We know the people of this country want to 
strike a balance between protecting our security and protecting our 
liberties. So under the reporting amendment all we require is, first, 
an estimate, just the question of an estimate and whether it has been 
done by any entity with respect to collecting this information--no new 
work, just a response to the question of whether an estimate has been 
done.
  Second, we request information on whether any wholly domestic 
communications have been collected under section 702, and then we ask 
whether there have been any backdoor searches under the legislation. 
Finally, we want a response with respect to what the Director of 
National Security meant when he said: ``The story that we have millions 
or hundreds of millions of dossiers on people is absolutely false.''
  That is what we are talking about. I think, without that information, 
oversight in the intelligence field will essentially be toothless. This 
interrupts no operations in the intelligence field. It does not 
jeopardize sources and methods. It is, in my view, the fundamentals of 
doing real oversight.
  I thank my colleague from Kentucky for giving me this time, and I 
close by saying: No disagreement with the distinguished chair in the 
fact that there are real threats to this country's well-being and 
security, and that is why the President is given complete discretion in 
order to redact any information that would be made public.
  I yield the floor, and I thank the Senator from Kentucky for the 
time.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Madam President, we are going to have two or three votes at 
5:30. A number of the Senators who have amendments dealing with the 
supplemental have agreed to come at that time as soon as the votes are 
over and start debating those amendments tonight. We would like to get 
as much of that debate out of the way tonight as possible so we can 
start voting at a reasonably early time tomorrow.
  The debate today on FISA has been stimulating, has been very thorough 
and good. As I understand it, there are three FISA amendments we are 
going to vote on tonight. That will still leave Senator Wyden's 
amendment, and we will worry about taking care of that tomorrow 
sometime.
  I ask unanimous consent that at 5:30 any remaining debate time on the 
pending amendments--Leahy, Merkley, and Paul--be yielded back and the 
Senate proceed to vote in relation to the pending amendments in the 
order provided in the previous agreement; that there be 2 minutes, 
equally divided, prior to each vote and that all after the first vote 
be 10-minute votes.
  The PRESIDING OFFICER. Is there objection?
  Mrs. FEINSTEIN. Reserving the right to object. Might I ask tomorrow 
when the intelligence votes will take place?
  Mr. REID. We don't have the intelligence to do that right now.
  Mrs. FEINSTEIN. It is too classified.
  Mr. REID. We have two very important measures to finish. I appreciate 
the collegiality of the Senators on this most important piece of 
legislation dealing with the espionage on our country part, and we 
should be able to work it out tomorrow. But we have 21 amendments we 
have to dispose of dealing with the supplemental. Some of those will be 
agreed to and would not need votes, but we have a lot of debate time on 
that in addition to votes. If we just did the votes alone, it would be 
8 hours of voting.
  We hope to be able to narrow that down, as soon as we have something 
more definite, so the Senator and Senator Wyden and others can complete 
the time, and set up a time that is appropriate for Senator Wyden's 
amendment.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Madam President, I appreciate the comments of the 
leader. I think the chairman and I--and I assume those who have 
amendments that will be remaining, I guess one amendment remaining and 
then final passage. If we could complete debate tonight, we would be 
prepared, at the pleasure of the leader, to go ahead and finalize the 
FISA amendments.
  Mr. REID. It would be very important to do that. I don't want to 
press the Senator from Oregon. He has been very good and flew all night 
from his newborn to get here from Oregon, and he was here at 10 a.m. I 
don't want to press him anymore.
  I say, through the Chair, to my friend from Oregon, how does he feel 
about finishing the debate tonight?
  Mr. WYDEN. I wish to thank the distinguished leader who has been so 
helpful in ensuring that we have a real debate.
  With my colleagues' indulgence, my understanding from the leader is 
we would have 15 minutes on each side at some point in the morning. If 
we could proceed with what I thought was the direction we were going, I 
would very much appreciate it. But it should be limited to 15 minutes 
on each side, pro and con, at some point in the session tomorrow.
  Mr. CHAMBLISS. Madam President, through the Chair, if I could ask the 
Senator from Oregon, is the Senator talking 15 minutes on his amendment 
and 15 minutes on passage? Fifteen minutes on each, on your amendment 
and vote on it and go to final passage?
  Mr. WYDEN. It is fine. Through the Chair, 15 minutes with respect to 
our side reporting the amendment, 15 minutes on the other side, it will 
be voted on, and then we go to final passage.
  Mr. REID. I would suggest this. When we come in, in the morning, why 
don't

[[Page S8418]]

we have this the first order of business. We would have the half hour 
evenly divided, vote on the Wyden amendment, and then final passage. 
That way we could devote the rest of the day and tonight to the 
supplemental.
  I ask unanimous consent that be the case in addition to what I just 
did here.
  The PRESIDING OFFICER. Is there objection to the request as modified? 
Without objection, it is so ordered.
  The Republican leader.
  Mr. McCONNELL. Madam President, I am going to proceed in my leader 
time.
  The PRESIDING OFFICER. The Senator has that right.


                            The Fiscal Cliff

  Mr. McCONNELL. Madam President, you will excuse me if I am a little 
frustrated at the situation in which we find ourselves.
  Last night, President Obama called myself and the Speaker--and maybe 
others--from Hawaii and asked if there was something we could do to 
avoid the fiscal cliff.
  I say I am a little frustrated because we have been asking the 
President and the Democrats to work with us on a bipartisan agreement 
for months--literally, for months--on a plan that would simplify the 
Tax Code, shrink the deficit, protect the taxpayers, and grow the 
economy, but Democrats consistently rejected those offers.
  The President chose instead to spend his time on the campaign trail. 
This was even after he got reelected, and congressional Democrats have 
sat on their hands. Republicans have bent over backward. We stepped way 
out of our comfort zone. We wanted an agreement, but we had no takers. 
The phone never rang.
  So now here we are, 5 days from New Year's Day, and we might finally 
start talking. Democrats have had an entire year to put forward a 
balanced, bipartisan proposal. If they had something to fit the bill, I 
am sure the majority leader would have been able to deliver the votes 
the President would have needed to pass it in the Senate and we 
wouldn't be in this mess. But here we are, once again, at the end of 
the year, staring at a crisis we should have dealt with literally 
months ago.
  Make no mistake. The only reason Democrats have been trying to 
deflect attention onto me and my colleagues over the past few weeks is 
that they don't have a plan of their own that could get bipartisan 
support.
  The so-called Senate bill the majority leader keeps referring to 
passed with only Democratic votes, and despite his repeated calls for 
the House to pass it, he knows as well as I do that he himself is the 
reason it can't happen. The paperwork never left the Senate, so there 
is nothing for the House to vote on.
  As I pointed out before we took that vote back on July 25, the 
Democratic bill is, ``a revenue measure that didn't originate in the 
House, so it has got no chance whatsoever of becoming law.'' The only 
reason we ever allowed that vote on that proposal, as I said at that 
time, was we knew it didn't pass constitutional muster. If Democrats 
were truly serious, they would proceed to a revenue bill that 
originated in the House--as the Constitution requires and as I called 
on them to do again last week.
  To repeat, the so-called Senate bill is nothing more than a glorified 
sense of the Senate resolution. So let's put that convenient talking 
point aside from here on out.
  Last night, I told the President we would be happy to look at 
whatever he proposes, but the truth is we are coming up against a hard 
deadline. As I said, this is a conversation we should have had months 
ago. Republicans are not about to write a blank check for anything 
Senate Democrats put forward just because we find ourselves at the edge 
of the cliff. That would not be fair to the American people.

  That having been said, we will see what the President has to propose. 
Members on both sides of the aisle will review it and then we will 
decide how best to proceed. Hopefully, there is still time for an 
agreement of some kind that saves the taxpayers from a wholly 
preventable economic crisis.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Blumenthal). The majority leader.
  Mr. REID. Mr. President, I am not sure my distinguished Republican 
counterpart has followed what has taken place in the House of 
Representatives. In the House, as reported by the press and we all know 
it, one of the plans--it did not have a name, it was not Plan B, I 
don't know what plan it was because they had a number over there--but 
this plan was to show the American people that the $250,000 ceiling on 
raising taxes would not pass in the House. Why did they not have that 
vote? Because it would have passed. They wanted to kill it. The Speaker 
wanted to show everybody it would not pass the House, but he could not 
bring it up for a vote because it would have passed. A myriad of 
Republicans think it is a fair thing to do and of course every Democrat 
would vote for that.
  The Republican leader finds himself frustrated that the President has 
called on him to help address the fiscal cliff. He is upset because 
``the phone never rang.'' He complains that I have not delivered the 
votes to pass a resolution of the fiscal cliff, but he is in error. We 
all know that in July of this year we passed, in the Senate, relief for 
middle-class Americans. That passed the Senate.
  We know Republicans have buried themselves in procedural roadblocks 
on everything we have tried to do around here. Now they are saying we 
cannot do the $250,000 because it will be blue-slipped. How do the 
American people react to that? There was a bill introduced by the 
ranking member of the Ways and Means Committee in the House, Sandy 
Levin, that called for this legislation. The Speaker was going to bring 
it up to kill it, but he could not kill it. Then we moved to Plan B, 
the debacle of all debacles. It is the mother of all debacles. That was 
brought up in an effort to send us something. He could not even pass it 
among the Republicans it was so absurd--``he'' meaning the Speaker.
  It is very clear now that the Speaker's No. 1 goal is to get elected 
Speaker on January 3. The House is not even here. He has told them he 
will give them 2 days to get back here--48 hours; not 2 days, 48 hours.
  They do not even have enough of the leadership here to meet to talk 
about it. They have done it with conference calls. People are spread 
all over this country because the Speaker basically is waiting for 
January 3. The President campaigned on raising taxes on people making 
more than $250,000 a year. The Bush-era tax cuts expire at the end of 
this year. Obama was elected with a surplus of 3 million votes. He won 
the election. He campaigned on this issue.
  Again, the Speaker cannot take yes for an answer. The President has 
presented him something that would prevent us from going over the 
cliff. It was in response to something the Speaker gave to the 
President himself. But again, I guess, with the dysfunctional 
Republican caucus in the House, even the Speaker cannot tell what they 
are going to do because he backed off even his own proposal. The House, 
we hear this so often, is controlled by the Republicans. We acknowledge 
that. I would be most happy to move forward on something Senator 
McConnell said they would not filibuster over here, that he would 
support and that Boehner would support, if it were reasonable. But 
right now we have not heard anything. I don't know--it is none of my 
business, I guess, although I am very curious--if the Republican leader 
over here and the Speaker are even talking.
  What is going on here? You cannot legislate with yourself. We have 
nobody to work with, to compromise. That is what legislation is all 
about, the ability to compromise. The Republicans in the House have 
left town. The negotiations between the President and the Speaker have 
fallen apart, as they have for the last 3\1/2\ years. We have tried 
mightily to get something done.
  I will go over the little drill, to remind everyone how unreasonable 
the Republicans have been. Senator Conrad and Judd Gregg came up with a 
proposal to pattern what they wanted to do after the Base Closing 
Commission. The Commission would be appointed, they would report back 
to us, no filibusters, no amendments, yes or no, as we did with the 
base closings. We did a great job there. We closed bases over two 
different cycles, saving the country hundreds of billions of dollars. 
We brought that up here--I brought it up. We had plenty of votes to do 
it, except the Republican cosponsors walked away and wouldn't vote for 
it. That is where Bowles-Simpson came from.

[[Page S8419]]

  Again, people talked about why don't we do Bowles-Simpson? One 
problem: The Republicans appointed there would not vote for it, 
generally speaking.
  Then we went through the months and months of talks between the 
President and Boehner. Both times Boehner could not deliver because 
they refused, because of Grover Norquist, to allow any tax revenues 
whatsoever. We had meetings with Vice President Biden and Cantor. 
Cantor walked out of those meetings. He is the majority leader in the 
House. We had the Gang of 6, we had the Gang of 8, we had the 
supercommittee. They were doing good things dealing with entitlements 
and revenues. One week before they were to report by virtue of statute 
I get a letter signed by virtually every Republican: Too bad about the 
supercommittee, we are not going to do anything with revenues.
  This is not a capsule of a couple days. This has been going on for 
years. They cannot cross over the threshold that has been built by 
Grover Norquist. People who are rich, who make a lot of money, they are 
not opposing raising the taxes on them. The only people in America who 
do not think taxes should be raised on the rich are the Republicans who 
work in this building. Any-time the Speaker and the Republican leader 
come to the President and say we have a deal for you, the President's 
door is always open and mine is too.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. I would only add the majority leader has given you his 
view of the last 2 years. I have certainly given you my take on it. The 
American people have spoken, and they basically voted for the status 
quo. The President got reelected, the Senate is still in Democratic 
hands and the House is still in Republican hands and the American 
people have spoken. They obviously expect us to come together and to 
produce a result.
  As I indicated, the President called me and probably called others 
last night. My impression is he would like to see if we can move 
forward. We do not have very many days left. I have indicated I am 
willing to enter into a discussion and see what the President may have 
in mind. I know the majority leader would certainly be interested in 
what the President has in mind. It appears to me the action, if there 
is any, is now on the Senate side. We will just have to see whether we 
are able, on a bipartisan basis, to move forward.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, we are going to have to decide, my friend 
says, how we are going to move forward on a bipartisan basis. Even on 
the Sunday shows we have just completed, with FOX network, Chris 
Wallace pushed one of the Republican leaders very hard: Would you 
filibuster something the Democrats brought to the floor? He refused to 
answer the question. He would not say, and he kept being pressed.
  We are in the same situation we have been in for a long time here. We 
cannot negotiate with ourselves because that is all we are doing. 
Unless we get a signoff from the Republicans in the House and the 
Republican leader, we cannot get anything done. For them to talk about 
a bipartisan arrangement, we have done that. The President has given 
them one, given them two, given them three, and we cannot get past 
Grover Norquist. We tried hard, but when there is no revenue as part of 
the package, it makes it very hard. John Boehner could not even pass a 
tax proposal that he suggested over there where he would keep the taxes 
the same for everybody except people making over $1 million a year. No. 
Grover and the boys said, no, can't do that. He didn't even bring it up 
for a vote.
  I am here. I am happy to listen to anything the Speaker and the 
Republican leader have. They have a way of getting to the President. 
They don't need my help. I am happy to work with them any way I can, 
but the way things have been going it is not a good escape hatch we 
have. They are out of town now for 2 days, 48 hours. That is where we 
are.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. DURBIN. Mr. President, I think all of us understand the gravity 
of the challenge we face. This so-called fiscal cliff has been subject 
to parody and comedy routines, but it is very serious. If Congress 
fails to act, enacting a measure to be signed by the President, the 
taxes will go up on every single income-tax-paying American--every one 
of them; not just the wealthy but everyone. What it means, frankly, is 
whether one lives in Connecticut, such as the Presiding Officer, or 
Illinois, such as myself, every family is going to see several things 
happen automatically. Taxes will go up, the payroll tax cut that has 
helped this economy is going to disappear, unemployment benefits are 
going to disappear for millions of Americans who are searching for 
work, and many other changes will take place, none of which will be 
favorable in terms of an economic recovery.
  I think we ought to stop and reflect for a moment on lessons learned. 
Here is what I have learned. If we are going to solve this problem, we 
need to do two things. We need to be prepared on both sides of the 
table to give. That is a hard thing for many people to acknowledge, but 
we do; we have to be willing to give on both sides of the table. I 
remember Senator Reid receiving a letter after the supercommittee was 
hard at work coming up with a bipartisan proposal. It was signed by 
virtually every Senator on the other side of the aisle and it said: Do 
not include a penny of revenue.
  That was the end of the supercommittee. There was no place to go at 
that point. They have to be willing to give on revenue, and we have to 
be willing to give on our side, particularly in the area of 
entitlements. That is painful. I am one of those who believes, 
frankly--I have said it over and over--Social Security should be taken 
from the table and put aside for a separate commission, a separate 
debate. I do not believe it adds a penny to the deficit, and it should 
not be a victim of deficit reduction when it has nothing to do with the 
current deficit.
  Second, I understand the importance of Medicaid to those who are 
young, single moms, the disabled, the elderly, those suffering from 
mental illness. Medicaid is critically important, and we cannot let 
that be devastated, particularly in a struggling economy when so many 
people are out of work or working at jobs without health insurance.
  Third, Medicare. In 12 years Medicare will go bankrupt. It will be 
insolvent. We have to sit down and honestly deal with entitlement 
reform that saves the programs; doesn't lose them to the Paul Ryan 
budget approach but saves the programs in a fiscally responsible way.
  That is the first thing we should agree on. Both sides have to come 
together and be prepared to give.
  The second thing is it takes both sides. What Speaker Boehner proved 
to us last week is if they try to do so-called Plan B in the Republican 
caucus: No hope. But if they take a measure to the floor of the House 
and invite Democratic and Republican support for it, they can pass it. 
I believe they can, as we can in the Senate.
  That is what needs to be done. We need to have some grassroots 
efforts in the House and the Senate, of Senators from both sides of the 
aisle who are prepared to work on a bipartisan basis to solve this 
problem.
  To say we should have done this long ago is to overlook the obvious. 
Until November 6, we didn't know who the President would be for this 
new administration, and now we do. It would have been a much different 
debate with a different outcome if the American voters had not chosen 
President Obama to be reelected. So we had to wait until November 6, 
honestly, before we could seriously take on the important and difficult 
issues involved in this debate, but that time has passed.
  The President has stepped forward and has made a proposal. He has 
made concessions on his proposal and he continues to be here. He flew 
back from a family vacation that I know is as important to him as it is 
to all our families over the holidays to be here in Washington and to 
be part of the conversation and dialog.
  I hope Speaker Boehner will bring back the House of Representatives. 
We cannot do this alone. We must do this with their leadership and 
their cooperation. The point which has been made by Senator Reid over 
and over is that this is an issue and a challenge which we can 
successfully resolve and we must before we go over the cliff.
  Mr. President, the pending business is amendments to the FISA 
reauthorization bill. I rise to speak about that

[[Page S8420]]

legislation, which the Senate will vote on in a little over an hour.
  As chairman of the Constitution Subcommittee on the Senate Judiciary 
Committee, I have some concerns about this law known as the FISA 
Amendments Act. It does not have adequate checks and balances to 
protect the constitutional rights of innocent American citizens. 
Although this legislation is supposed to target foreign intelligence, 
it gives our government broad authority to spy on Americans in the 
United States without adequate oversight by the courts or by Congress.
  It is worth taking a moment to review the history that led to the 
enactment of the FISA Amendments Act. After 9/11, President George W. 
Bush asked Congress to pass the PATRIOT Act. Many of us were concerned 
that the legislation might go too far, but it was a time of national 
crisis and we wanted to make sure the President had the authority to 
fight terrorism. We did not know then that shortly after we passed the 
PATRIOT Act, the Bush administration began spying on American citizens 
in the United States without the judicial approval otherwise required 
by law and without authorization from Congress.
  Years later, the Judiciary Committee on which I serve heard dramatic 
testimony from former Deputy Attorney General Jim Comey about the 
efforts of Andrew Card and White House counsel Alberto Gonzales to 
pressure Attorney General John Ashcroft into reauthorizing this 
surveillance of American citizens while Ashcroft was in the hospital.
  After the New York Times revealed the existence of the warrantless 
surveillance program, the Bush administration demanded that Congress 
pass legislation authorizing the program. This led to enactment of the 
FISA Amendments Act in 2008. In short, this legislation was born in 
original sin.
  Congress added some oversight requirements and civil liberties 
protections to the Bush administration's warrantless surveillance 
program, but they did not go far enough. That is why I opposed the 
original FISA Amendments Act, along with the majority of Democratic 
Senators. I supported an earlier version offered by Senator Leahy, 
chairman of our Judiciary Committee, which would have authorized broad 
surveillance powers but included civil liberties protections.
  In 2008, the Bush administration accused opponents of this 
legislation of not understanding the threat of terrorism. Vice 
President Cheney went so far as to say: ``The lessons of September 11th 
have become dimmer and dimmer in some people's minds.''
  I am sorry some supporters of this reauthorization legislation have 
repeated this claim of the Bush administration by suggesting that those 
of us who want to protect the privacy of innocent Americans believe the 
threat of terrorism has receded. That is not the case. The American 
people will never forget the lessons of 9/11, and I personally will 
not. We need to make sure our government has the authority it needs to 
detect and monitor terrorist communications, but we also need to ensure 
that we protect the constitutional rights of American citizens.
  Earlier this year, I received a classified briefing on the FISA 
Amendments Act, and I am as concerned now as I was 4 years ago that the 
legislation does not include sufficient checks to protect the 
constitutional rights of innocent Americans.
  The FISA Amendments Act is supposed to focus on foreign intelligence, 
but the reality is that this legislation permits targeting an innocent 
American in the United States as long as an additional purpose of the 
surveillance is targeting a person outside the United States. This is 
known as reversed targeting of American citizens.
  The 2008 Judiciary Committee bill, which I supported, would have 
prevented reverse targeting by prohibiting warrantless surveillance if 
a significant purpose of the surveillance is targeting a person in the 
United States. We have a Constitution and a due process procedure 
spelled out when it comes to surveillance of American citizens. The 
FISA Amendments Act has found a way around it, and I think that is a 
fatal flaw.
  The FISA Amendments Act permits the government to collect every 
single phone call and e-mail to and from the United States. This is 
known as bulk collection. The 2008 Judiciary Committee bill would have 
prohibited bulk collection of communications between innocent American 
citizens and their friends and families outside the United States.
  The FISA Amendments Act also permits the government to search all the 
information it collects during this bulk collection. The government can 
even search for the phone calls or e-mails of innocent American 
citizens, and these searches can be conducted without a court order. 
This kind of backdoor warrantless surveillance of U.S. citizens 
should not be allowed. Both parties ought to stand for our 
Constitution.

  Earlier in this year in the Judiciary Committee's markup of FISA 
Amendments Act reauthorization, Senator Mike Lee and I offered a 
bipartisan amendment to prohibit backdoor warrantless surveillance of 
Americans. Unfortunately, our amendment did not pass, so Americans will 
still be at risk for this kind of surveillance if the FISA Amendments 
Act is reauthorized.
  I am pleased the Senate will consider a number of amendments that 
will at least add some transparency and oversight to the FISA 
Amendments Act so Congress and the American people will know about how 
the government is using this authority.
  I wish to thank majority leader Senator Reid for ensuring that the 
Senate will have the opportunity to debate and vote on these 
amendments.
  I am cosponsor of the Judiciary Committee chairman Pat Leahy's 
amendment which was reported by the committee. This amendment would 
shorten the reauthorization of the FISA Amendments Act from 5 years to 
3 years and strengthen the authority of the inspector general.
  I am also cosponsor of an important bipartisan amendment offered by 
Senator Ron Wyden, who is on the floor. Senator Wyden, together with 
Senator Mark Udall, Senator Lee, and myself, has joined an amendment 
which would require the director of National Intelligence to provide a 
report to Congress that includes, among other things, information on 
whether any intelligence agency has ever attempted to search the 
communications collected under this legislation to find the phone calls 
or e-mails of a specific American without a warrant. Isn't this the 
kind of information Congress and the American people should have?
  Senator Wyden is a senior member of the Intelligence Committee. He is 
offering this amendment because he has been frustrated in his attempts 
to obtain basic information about the use of surveillance powers by our 
government authorized by the FISA Amendments Act.
  Earlier this year, Senator Wyden and Senator Mark Udall asked the 
Office of the Director of National Intelligence a fundamental question: 
How many Americans have been subjected to surveillance under the FISA 
Amendments Act? The Office of the Director of National Intelligence 
claimed it is not possible to answer that question. At a minimum, 
before the Senate acts to extend the FISA Amendments Act, Senators 
should be given any information the intelligence community has about 
whether innocent Americans have had their private e-mails and phone 
conversations swept up by FISA Amendments Act collection.
  I am pleased to be a cosponsor of the bipartisan amendment that has 
been offered by Senators Jeff Merkley and Mike Lee. The Foreign 
Intelligence Surveillance Act is interpreted by a secret court known as 
the Foreign Intelligence Surveillance Court. The Merkley-Lee amendment 
would require that significant legal interpretations of FISA by this 
secret court be declassified. The concept of secret law is anathema to 
a democracy. The American people have a right to know how the laws 
passed by their elected representatives are being interpreted and 
implemented.
  I wish to thank Senators Merkley and Lee for taking up this cause. 
Back in 2003, I worked on a provision in the 9/11 intelligence reform 
bill that would have required the declassification of significant legal 
interpretations by the FISA Court. Unfortunately, that provision was 
removed from the final bill at the insistence of the Bush 
administration.
  Former Senator Russ Feingold, my predecessor as chairman of the 
Constitution Subcommittee, was also an

[[Page S8421]]

outspoken advocate of declassifying FISA Court opinions, and back in 
2008 he held a hearing on the problem of secret law. This is an 
important issue, and I hope the Senate will approve the Merkley 
amendment.
  I am not aware of any substantive objections to the Leahy, Wyden, and 
Merkley amendments. The only concern I have heard is that if the Senate 
approves one of these amendments, this bill will have to go back to the 
House for final approval. There are still 4 days before the end of the 
year, when the FISA Amendments Act expires, which is plenty of time for 
the House to vote on the bill the Senate passes.
  Even with these amendments, I am concerned this reauthorization of 
the FISA Amendments Act does not include the checks and balances needed 
to preserve our basic freedoms and liberties. I believe we can be both 
safe and free. We can give the government the authority it needs to 
protect us from terrorism but place reasonable limits on government 
power to protect our constitutional rights.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I rise in opposition to the legislation 
we are going to be voting on today. I want to refer to the Leahy 
amendment just referred to by the Senator from Illinois.
  Senator Leahy's amendment will act as a complete substitute to the 
bill that is on the floor and, if passed, it will require a conference 
with the House of Representatives. It is December 27, and the House is 
not coming back until the December 30. There simply is not time, even 
if the amendment was substantive enough that it ought to be considered 
for passage, to get that conferenced with the House and get this bill 
on the desk of President by December 31, which is when these provisions 
expire.
  The first change the Leahy amendment makes is to reduce the extension 
sunset from December 31, 2017, back to December 1, 2015. That date 
coincides with the expiration of certain other FISA provisions; namely, 
the roving wiretap authority, the business records court orders, and 
the lone wolf.
  It may seem like it ought to make sense that we have all of these 
expiring at that time but, frankly--having been involved in the 
intelligence community for the last 12 years--it actually works in 
reverse from that and it would have a negative influence on the 
community itself.
  If we match the FAA sunset with the PATRIOT Act and IRPTA sunsets, it 
provides no real benefit to congressional oversight and could actually 
increase the risk that all these authorities will expire at the same 
time. If they all expired at the same time, the community would 
certainly be at a real disadvantage from an operational standpoint.
  The Leahy amendment also makes a number of modifications to the 
executive branch oversight provisions that simply, I believe, are not 
necessary. For example, the amendment would require the inspector 
general of the Intelligence Community, ICIG, to conduct a mandatory 
review of U.S. person privacy rights in the context of the FISA 
Amendments Act implementation. If we truly believe this sort of review 
by the ICIG is necessary, we don't need a statutory provision. We can 
simply get a letter from the Intelligence Committee directing that be 
done, and it will be done. So trying to think we need a statutory 
provision on that type of issue--if there is any contemplation that it 
exists--is simply not necessary.
  I am also concerned the Leahy substitute incorrectly elevates the 
ICIG to the same level as the Attorney General and the Director of 
National Intelligence by adding the ICIG as a recipient of FISA 
Amendments Act reviews that are conducted by the DOJ IG and other 
intelligence community element inspectors general. That doesn't make a 
lot of sense because the attorney general and the DNI are the only ones 
responsible for jointly authorizing the collection of foreign 
intelligence information under the FAA. They are the ones who need to 
review compliance assessments conducted by the relevant IGs, including 
those conducted by the ICIG.
  If there is concern about whether the ICIG can even conduct these 
type of reviews, then I think the FAA is clear on that point. Since the 
ODNI is authorized to acquire or receive foreign intelligence 
information, the ICIG can conduct these reviews to the same extent as 
any other inspector general of an element of the intelligence 
community. He doesn't need redundant statutory authorization.
  It is important to understand that the word ``acquire'' as used here 
doesn't mean acquisition in the actual physical collection of foreign 
intelligence information. Rather, ``acquiring'' here simply means to 
come into possession or control of, often by unspecified means. We know 
this because in the annual review provision in the very next paragraph 
sought to be amended, the FAA uses the more precise conducting and 
acquisition terminology which clearly indicates that it affects only 
those elements that are actually collecting foreign intelligence 
information.

  This same annual review provision would also be modified by section 4 
of Senator Leahy's amendment. His changes would expand the agency heads 
responsible for conducting these annual reviews to any agency with 
targeting or minimization procedures as opposed to the current law, 
which applies to only those agencies that are actually responsible for 
conducting an acquisition; that is, the physical collection of foreign 
intelligence information.
  Right now, any IC element that receives downstream FISA collection 
must comply with FISA's retention, dissemination, and use limitations. 
They don't have any kind of blanket authority to use this information. 
But the elements required in the annual reviews are geared more toward 
the actual collectors of the foreign intelligence information than they 
are toward downstream IC elements that are already required to comply 
with FISA's retention, dissemination, and use limitations.
  The Intelligence Committee has been conducting oversight on this 
collection program long before it was ever codified in the FISA 
Amendments Act. We worked closely with the Judiciary Committee to 
carefully monitor the implementation of the FAA authorities by the 
executive branch. In the end, I am fully satisfied the FAA is working 
exactly as intended and in a manner that protects our rights as 
Americans. As I have just explained, I do not believe Senator Leahy's 
proposed changes are necessary, nor do I believe they improve upon the 
current practice.
  I wish to just quickly address what the Senator from Illinois said 
about the collection on U.S. persons. If one is collecting on someone 
who is in Pakistan and they call somebody in the United States, he may 
be a U.S. citizen or he may be a non-U.S. citizen, and if we are 
collecting on him under a proper court order, there can be at times 
collection on somebody inside the United States. But the FISA 
Amendments Act has a provision for dealing with that so that we have 
what we call minimization provisions in place that immediately do not 
allow the use of any information collected on a U.S. citizen in an 
unlawful manner.
  The FISA Court is very tough, they are very strict, and they don't 
just grant an authority to allow our intelligence community to gather 
information on foreign suspects or foreign entities or somebody who is 
working for a foreign power in any kind of household manner. They are 
very strict in their requirements of what must be shown in order to be 
able to collect. So in the rare times there is a U.S. citizen on the 
other end of the line, the minimization provisions kick in, and they 
work. They work very well. The Leahy substitute simply will not allow 
the community to do the job we need to get done.
  Secondly, I wish to address the Merkley amendment. Again, I oppose 
this amendment. When Congress created the FISA Court back in 1978, it 
was understood that this court would have to operate behind closed 
doors given the sensitivity of the national security matters the court 
considers. Each time FISA has been amended, whether it is section 501 
dealing with business records or 702 relating to targeting foreign 
terrorists overseas, Congress has maintained the same high level of 
protection for the court's decisions. The Merkley amendment would make 
those decisions public.
  Section 601 of FISA already requires the Attorney General to provide 
copies

[[Page S8422]]

of all decisions, orders, or opinions of the Foreign Intelligence 
Surveillance Court or Foreign Intelligence Surveillance Court of Review 
that include significant construction or interpretations of the 
provisions of the entire act. So there are some reporting requirements 
right now in place.
  The Merkley amendment would further require the Attorney General to 
declassify and make available to the public any of those decisions that 
relate to section 501 business record court orders or section 702 
overseas targeting provisions.
  I believe the American people understand there are certain matters 
that simply do not need to be made public, particularly when it comes 
to dealing with bad guys around the world, men who get up every morning 
and think about ways they can harm and kill Americans. Our folks in the 
intelligence community are doing a darn good job of gathering 
information on those types of individuals. Those are not the types of 
FISA Court orders, given by the court to gather that information that 
ought to be made public.
  In matters concerning the FISA Court, the congressional Intelligence 
and Judiciary Committees serve as the eyes and ears of the American 
people. Through this oversight, which includes being given all 
significant decisions, orders, and opinions of the court, we can ensure 
that the laws are being applied and implemented as Congress intended.
  If a significant FISA Court decision raises concerns, the 
Intelligence and Judiciary Committees will ask questions--and we have 
done that from time to time. We hold hearings, we get briefings, we 
receive notifications and semiannual reports--all designed to give 
Congress good insight into the real-life applications and 
interpretations of the FISA Act. This amendment does nothing to advance 
that oversight, but it could cause real operational problems. If we put 
in the public domain declassified opinions or unclassified summaries of 
the most significant court orders, we would give our enemies a roadmap 
into our collection priorities and capabilities.
  I know one of the responses is going to be that the specific 
intelligence sources and methods could be redacted, but that only 
solves part of the problem. These guys we are dealing with, these bad 
guys around the world are smart guys. They are not idiots. When they 
look at a declassified piece of intelligence information that has 
redacted portions, they are able to piece the puzzle back together 
again and figure out exactly who those sources are and what their 
methods are, which is going to put our intelligence gatherers in 
jeopardy from a national security standpoint.

  There is already substantial oversight of sections 501 and 702 by the 
FISA Court, the Department of Justice, the intelligence community, and 
the Congress. I can't think of any two provisions in FISA that have 
received more attention and more scrutiny than sections 501 and 702. 
Yet, as a result of this vigorous oversight, we also know these 
sections are two of the most carefully implemented by all of our 
investigative authorities.
  This amendment sets a dangerous precedent and would undermine some of 
our most sensitive investigations and investigative techniques. Passing 
it would also impede our chances of getting a clean FAA extension to 
the President, as I mentioned earlier in my comments.
  Lastly, I wish to quickly mention the Paul amendment. Again, I am 
going to oppose this amendment because it is inconsistent with the 
Constitution and it contradicts decades of established Supreme Court 
precedent and Federal law. Contrary to what this amendment says, there 
is no fourth amendment violation when the government gets information 
from a third party about a person who has voluntarily given that 
information to the third party. The Paul amendment would limit the 
ability of our intelligence community and our prosecutors to take 
information that a bad guy has given to a third party, and we get that 
information from a third party, from that information being used in a 
prosecution against that bad guy.
  In the U.S. v. Miller 1976 Supreme Court case, the Court stated that 
it ``has repeatedly held that the Fourth Amendment does not prohibit 
the obtaining of information revealed to a third party and conveyed by 
him to Government authorities, even if the information is revealed on 
the assumption that it will be used only for a limited purpose and the 
confidence placed in the third party will not be betrayed.'' Clearly, 
that is language directly contrary to the Paul amendment. The Paul 
amendment says the government would always have to either have consent 
or a search warrant to get information held by the third party in a 
system of records.
  This amendment would have a significant impact not just on criminal 
cases, from drugs to violent crime to child offenses, but on national 
security matters. Often, the information obtained from a system of 
records as described in this amendment is what we call building-block 
information. It is the basic information the law enforcement and 
intelligence communities use to build an investigation long before 
there may be probable cause. This type of information can be used not 
just to build cases but to rule out people as suspects--in short, 
ensuring they won't be subjected to more intrusive and investigative 
measures such as search warrants. Yet this amendment elevates building-
block information in the hands of a third party to the equivalent of 
privately held information in which there is reasonable expectation of 
privacy. Even though a person voluntarily hands over information to a 
third party, this amendment says we should put the genie back in the 
bottle and now create a reasonable expectation of privacy.
  What is more, if the government gets information from a third party 
without consent or a search warrant, this amendment says it can never 
be used in a criminal prosecution. The message here to banks, hotels, 
shipping companies, fertilizer stores, you name it: Don't bother being 
Good Samaritans and give law enforcement tips about suspicious 
activities. We will just take our chances and hope we get enough 
probable cause in time to stop whatever crime or terrorist act may be 
planned.
  Simply stated, this amendment is contrary to case law and contrary to 
constitutional provisions.
  I urge all of my colleagues to vote against the Paul amendment, the 
Merkley amendment, as well as the Leahy amendment when we begin voting 
at 5:30.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. MERKLEY. Mr. President, will my colleague from Georgia yield for 
a question?
  Mr. CHAMBLISS. Sure. I would be happy to.
  Mr. MERKLEY. I thank the Chair, and I thank my colleague.
  My colleague did address issues regarding the Merkley-Lee amendment, 
which has three stages in it designed to be sensitive to national 
security. It says that if the Attorney General determines that an 
opinion is not dangerous to national security, it asks them to release 
it to the public. It says that if the Attorney General finds that it is 
sensitive to national security, to release only a summary so written as 
to protect national security. Then it goes even further to say that if, 
in the Attorney General's opinion, that is not possible, then please 
just give us a report on the process the executive branch has already 
said they are doing, which is to go through a systematic process of 
determining what they feel should be released independent of any advice 
we in the Senate might have.
  So in these three stages, national security is given full 
consideration at each step. What it means is that in a situation where 
we have language such as ``the government can collect information 
relevant to an investigation,'' and the public wonders, well, is that 
investigation any investigation in the world, is it--what does 
``relevant'' mean? What does ``tangible information'' mean? There are 
decisions that may confirm that the plain language operates in a 
fashion that protects the fourth amendment or those interpretations of 
FISA may, in fact, stand the statute on its head and open a door that 
was meant to be, by what we did when we passed it here, open just a 
slit, to be turned into a wide-open gate.
  So with those provisions to carefully protect national security, as 
the Senator so rightly pointed out is necessary, can I perhaps win the 
Senator's support?

[[Page S8423]]

  Mr. CHAMBLISS. Well, here is my problem with that provision, and it 
is twofold. First of all, there is the proverbial elephant's nose under 
the tent theory, that this is the beginning of opening other things 
down the road. I think that in this world in which we operate, this 
cloak-and-dagger world of the intelligence community--and we don't 
often like to think about the fact that it is necessary in modern 
times, but it is more necessary today than ever before because of the 
enemy we face--I think there is a real danger in beginning to open any 
of those opinions.
  The second part of it is kind of tied to that as well. As I said 
earlier, these folks we are dealing with are very smart individuals. 
These bad guys carry laptops, they communicate with encrypted messages 
that we have to try to pick up on with the right kinds of 
authorizations that the FISA Court gives us and do our best to figure 
out what they are doing in advance of them taking any action. And while 
we may not think about a provision in an opinion coming out of the FISA 
Court being a tipoff to bad guys about what we are doing or, more 
significantly, what they are doing that is alerting us, you better 
believe those guys are going to be examining every one of these 
opinions that we make public, and they are going to be reviewing those 
opinions, and they are going to, at some point in time, pick up on some 
small piece of information that is going to give them a shortcut next 
time they plan an attack against America or Americans.

  So I think for us to say that it is the personal opinion of the 
Attorney General that, well, maybe this does not involve national 
security, but maybe it does, and we ought to go through those other 
steps that the Senator alluded to--those bad guys are going to be 
looking at every single one of those, and at some point in time it is 
going to come back to haunt us.
  Mr. MERKLEY. I thank my colleague for sharing his insights. And 
certainly national security is extremely important. I obviously reach a 
different conclusion.
  I encourage my colleagues to support the amendment that Senator Lee 
and I have put forward because it appropriately balances national 
security concerns against issues of privacy and the fourth amendment. 
It says simply that where national security is not affected, the public 
should be able to see these interpretations of what the statutes we 
write in this Chamber mean so the public can weigh in on whether they 
feel comfortable with where the secret court has taken us and so we can 
weigh in, so we can have a debate on this floor not about our best 
guess about what possible implications might occur from some secret 
court opinion, but we can actually share a situation where national 
security is not affected. Well, here is how related to investigations 
it has been interpreted: Oh my goodness. What was intended to be a door 
open 1 inch is a door flung open like a barn gate, and the fourth 
amendment is in serious trouble. That should be debated here.
  Certainly, the amendment Senator Lee and I have put forward is very 
sensitive to the concerns my colleague has presented. I do appreciate 
his viewpoints. But, Mr. President, through you I ask my colleagues to 
weigh in on the side that the American people have a right to know what 
the plain language of the statute actually means after being 
interpreted by a court.
  Thank you.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEE. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEE. Mr. President, no one disputes the vital importance of our 
national security. Indeed, in Federalist No. 41, James Madison noted 
that ``[s]ecurity against foreign danger is one of the primitive 
objects of civil society,'' and he emphasized that such security ``is 
an avowed and essential object of the American Union.'' Government 
officials have a solemn duty, particularly in the age of global 
terrorism, to help ensure that the American people are safe and secure.
  Yet at the same time, the government also exists to do a lot more 
than just promote security. Its most fundamental purpose is to protect 
our natural and inalienable liberties. Safeguarding individual rights 
and liberties is the bedrock of American Government. In the words of 
our Nation's founding document, the Declaration of Independence, it is 
``to secure these rights [that] Governments are instituted among Men.''
  In our quest for ever-greater security, we must be mindful not to 
sacrifice the very rights and liberties that make our safety valuable. 
As Benjamin Franklin put it, ``Those who would give up essential 
liberty to purchase a little temporary safety, deserve neither liberty 
nor safety.''
  I worry that in seeking to achieve temporary safety, some of the 
authorities we have given the government under FISA may compromise 
essential rights and liberties. In particular, I am concerned about the 
government's ability, without a warrant, to search through FISA 
materials for communications involving individual American citizens. I 
worry that this authority is inconsistent with and diminishes the 
essential constitutional right each of us has ``to be secure . . . 
against unreasonable searches and seizures.''
  We do not know the precise number of communications involving 
American citizens that the government collects, stores, and analyzes 
under section 702 of FISA. Whether this number is large or small, I 
believe we must enforce meaningful protections for circumstances when 
the government searches through its database of captured communications 
looking for information on individual American citizens; otherwise, by 
means of these so-called backdoor searches, the government may conduct 
significant warrantless surveillance of American persons. I believe 
this current practice is inconsistent with core fourth amendment 
privacy protections and needs to be reformed.
  During consideration of FISA in the Judiciary Committee, Senator 
Durbin and I offered a bipartisan amendment to address this very 
problem. The language of our amendment is identical to that offered by 
Senators Wyden and Udall during consideration of FISA by the Select 
Committee on Intelligence. The amendment clarifies that section 702 
does not permit the government to search its database of FISA materials 
to identify communications of a particular U.S. person.
  In effect, it would require the government to obtain a warrant before 
performing such queries involving an American person's communications. 
The amendment is limited in scope. It excludes from the warrant 
requirement instances where the government has obtained an emergency 
authorization, circumstances when the life or physical safety of the 
American person targeted by the search is in danger and the search is 
for the purpose of assisting that same person, and in instances where 
the person has consented to the search.
  Moreover, the warrant requirement would apply only to deliberate 
searches for American communications and would not prevent the 
government from reviewing, analyzing, or disseminating any American 
communications collected under FISA and discovered through other types 
of analysis.
  FISA rightly requires that the government obtain a warrant anytime it 
seeks to conduct direct surveillance on a U.S. person. Indirect 
surveillance of U.S. persons by means of backdoor searches should be no 
different. No one disputes that the government may have a legitimate 
need to search its FISA database for information about a U.S. person, 
but there is no legitimate reason why the government ought not first 
obtain a warrant, while articulating and justifying the need for its 
intrusion on the privacy of U.S. persons. Our constitutional values 
demand nothing less.
  Unfortunately, we will not be voting on such an amendment later 
today, so our reauthorization of FISA will include a grant of authority 
for the government to perform backdoor searches, seeking information on 
individual American citizens without a warrant. I believe such searches 
are inconsistent with fundamental fourth amendment principles. For this 
reason, I cannot support the FISA reauthorization, and I urge my 
colleagues to oppose the bill in its current form.

[[Page S8424]]

  I would like next to speak about a few amendments I think would make 
some improvements to this legislation, nonetheless. I would like to 
first speak on the Merkley-Lee amendment, which would require 
declassification of significant FISA Court opinions.
  The FISA Court is authorized to oversee requests for surveillance 
both inside and outside of the United States. Given the sensitive 
nature of these requests, it is necessarily a secret court, a court 
whose rulings, orders, and other deliberations are and remain 
classified. Yet, although much of the court's work must properly be 
kept confidential, it must not operate without meaningful oversight.
  Beyond the straightforward application of the law to specific and 
sometimes highly classified circumstances, FISA Court rulings may 
include substantive interpretations of governing legal authorities. As 
is true in every court called on to construe statutory text, FISA Court 
interpretations and applications are influential in determining the 
contours of the government's surveillance authorities. Unlike specific 
sources of information or particular methods of surveillance 
collection, which are properly classified in many instances, I believe 
the FISA Court's substantive legal interpretation of statutory 
authorities should be made public.
  A hallmark of the rule of law which is a bedrock principle upon which 
our Nation is founded is that the requirements of law must be made 
publicly available--available for review, available for the scrutiny of 
the average American.
  The Merkley-Lee amendment establishes a cautious and reasonable 
process for declassification consistent with the rule of law. Its 
procedures are limited in three key respects:
  First, the pathway for declassification applies only to the most 
important decisions that include significant instruction or 
interpretation of the law.
  Second, declassification must proceed in a manner consistent with the 
protection of national security, intelligence sources and methods, and 
other properly classified and sensitive information.
  Third, the process contemplates instances where the Attorney General 
determines declassification is not possible in a manner that protects 
national security. In such cases, the process requires only an 
unclassified summary opinion or a report on the opinion that happened 
to remain classified.
  This modest and bipartisan amendment will help ensure that we are 
governed by the rule of law, that government activities are made by 
applying legal standards known to the public, and that we remain, in 
John Adams' famous formulation, ``a government of laws and not of 
men.''
  I would like next to speak on the Wyden amendment to require a report 
on the privacy impact of FISA surveillance. The FISA Amendments Act of 
2008 gave the government broad authority to surveil phone calls and e-
mails of people reasonably believed to be foreigners outside the United 
States. Despite the intent that this authority be directed at 
noncitizens who are located abroad at the moment the surveillance is 
collected, officials have acknowledged that communications by Americans 
may be swept up in the government collection of those same materials.
  I believe it is critical for both Congress and the public to have 
access to information about the impact of these FISA authorities on the 
privacy of individual Americans. Only with such knowledge can we 
reasonably assess whether existing privacy protections are sufficient 
or whether reforms might be needed. Yet senior intelligence officials 
have declined to provide in a public forum the necessary information to 
such discussion and such analysis.
  In particular, it is essential that we learn the extent to which 
Americans' communications are collected under FISA, whether this 
includes any wholly domestic communications, and whether government 
officials subsequently searched through those communications and 
conducted warrantless searches of phone calls and e-mails related to 
specific American persons. This modest compromise in this modest, 
commonsense amendment requires the Director of National Intelligence to 
provide this information and report back to Congress regarding the 
privacy impact of the FISA Amendments Act. Given the sensitive nature 
of this information, our amendment provides for necessary redactions to 
protect core national security interests that would be important to our 
country and help keep us safe.
  Providing Congress with answers to these critical questions should be 
a relatively uncontroversial exercise. It should be a no-brainer. Only 
with such information can we do our job of ensuring a proper balance 
between intelligence efforts on the one hand and the protection of 
fundamental individual rights and liberties on the other hand.
  Finally, I would like to speak on the Paul amendment, the Fourth 
Amendment Preservation and Protection Act. The fourth amendment 
protects the right of the people to be secure in their persons, papers, 
and effects against unreasonable searches and seizures. At its core the 
Constitution protects our right to be free from unwarranted government 
intrusion in our affairs absent probable cause, which the government 
must set forth with specificity to a court in an application for a 
warrant.

  It is undisputed that absent exigent circumstances, consent, or a 
warrant, the government may not intrude upon a person's home and search 
through his papers and personal effects. But we no longer keep our most 
sensitive information solely in the form of physical papers, physical 
documents, and other tangible things. The explosion of data sharing and 
data storage has made our economy more responsive and more efficient, 
but it also creates the potential for government abuse.
  Congress has a fundamental responsibility to protect the individual 
liberties of Americans by ensuring that the Constitution's core fourth 
amendment protections are not eroded by the operation of changed 
circumstances, by new techniques that are made possible and in some 
cases made necessary by new technology. But Congress has failed to do 
this.
  Some court rulings have likewise fallen short of protecting the full 
scope, the full spirit of the fourth amendment as it applies to our 
world of complex data sharing. Courts have attempted in good faith to 
determine whether individuals have a reasonable expectation of privacy 
in different kinds of information that they might share with third 
parties, sometimes online, but the results of many of these rulings are 
a varied and unpredictable legal landscape in which many do not know 
and cannot figure out whether they can rely on the fourth amendment to 
protect sensitive information they routinely share with others for a 
limited business purpose.
  Congress needs to act to preserve the fourth amendment's protections 
as they apply to everyday uses, including routine use of the Internet, 
use of credit cards, libraries, and banks. Absent such protections, 
individuals may in time grow wary of sharing information with third 
parties.
  I am cognizant that this area of the law is complex. It is full of 
changes. It is full of instances in which we have to undertake a very 
delicate balancing act. Nevertheless, much work remains to be done to 
ensure that the fourth amendment protections are here and that they are 
real and that they benefit Americans and they do so in a way that does 
not interfere with legitimate law enforcement and national security 
activities. We must not shy away from the task simply because it is 
hard. It is daunting, but it is possible and it is necessary. Congress 
must act to preserve Americans' constitutional right to be secure in 
their persons, their papers, and effects against unreasonable searches 
and seizures.
  The PRESIDING OFFICER (Mr. Franken.) The Senator from Montana.
  Mr. TESTER. I would like to talk about the FISA Amendments Act. I 
thank Senator Wyden for his leadership on this issue and for offering 
an amendment to this act that I have cosponsored and will speak on in 
just a minute.
  On our vote tomorrow, I will say that I will reluctantly plan to 
oppose the vote on the FISA Amendments Act when we get to final 
passage. There are many reasons for that. I am not naive. I do 
understand there are people out there who want to do harm to our 
Nation. I very much appreciate the folks in the intelligence community 
who do

[[Page S8425]]

difficult behind-the-scenes work to keep us all safe. But at the same 
time, I believe our civil liberties and our right to privacy need to be 
protected. I do not believe they are sufficiently protected under the 
current law. So simply extending current law for 5 more years is 
irresponsible, and it is not a reflection of our values.
  There are a few ways this bill falls short. I am especially concerned 
about the practice of reverse-targeting. The deputy majority leader 
talked about it about an hour ago.
  The intelligence community does not need a warrant to conduct 
surveillance on someone located overseas. I think we can all agree 
there is no problem there. The problem comes when the intelligence 
community conducts surveillance on someone overseas where the real 
purpose is to gain information about someone right here in America. 
That can happen without a warrant, and we should not let that happen 
without a warrant.
  Our national security is not threatened if we require this 
information to be tagged and sequestered and subject to judicial 
review. It would merely ensure that the information intercepted 
overseas in the form of communications to or from an American citizen 
would have to be overseen by the courts. Current law is supposed to 
prohibit this practice, but there really is no way to enforce the 
prohibition. That leaves the door open for abuse. That is simply 
unacceptable.
  Unfortunately, neither Senator Wyden nor I are able to offer our 
amendments that would address this hole in our privacy rights.
  We can do better. We can also do better when it comes to 
transparency. The simplest amendment the Senate can approve today is 
the one I am proud to consponor. It is the Wyden amendment to require 
the Director of National Intelligence to report to Congress on the 
impact of FISA amendments on the privacy of American citizens. It is a 
commonsense amendment.
  The report could be classified but would no longer allow the 
intelligence community to ignore requests for information from 
Congress. Why in the world do we not require the intelligence community 
to be accountable to us for its actions? It is our responsibility in 
Congress to hold the entire executive branch accountable. If we do not 
ask these questions, we are simply not doing our job. That is true 
whether it is President Obama, President Bush, or some other President.
  I hope we can adopt the Wyden amendment to improve the reporting 
requirements of FISA. I urge my colleagues to support this commonsense 
amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Mr. President, I ask unanimous consent the Senate proceed 
to the immediate consideration of H.R. 1, for the purpose of calling up 
and debating the Coats amendment; that following the remarks of Senator 
Coats Senator Alexander be recognized; the Senate resume consideration 
of the FISA bill, H.R. 5949; and that all provisions of the previous 
orders remain in effect.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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