[Congressional Record Volume 158, Number 169 (Friday, December 28, 2012)]
[Senate]
[Pages S8455-S8462]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




            FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012

  The ACTING PRESIDENT pro tempore. The Senate will proceed to the 
consideration of H.R. 5949, which the clerk will report.
  The assistant legislative clerk read as follows:

       A bill (H.R. 5949) to extend the FISA Amendments Act of 
     2008 for five years.

  The ACTING PRESIDENT pro tempore. The Senator from Oregon.


                           Amendment No. 3439

  Mr. WYDEN. I ask unanimous consent to call up my amendment which is 
at the desk.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Oregon [Mr. Wyden], for himself, Mr. Udall 
     of Colorado, Mr. Lee, Mr. Durbin, Mr. Merkley, Mr. Udall of 
     New Mexico, Mr. Begich, Mr. Franken, Mr. Webb, Mrs. Shaheen, 
     Mr. Tester, Mr. Bingaman, Mr. Lautenberg, Mr. Coons, and Mr. 
     Baucus proposes an amendment numbered 3439.

  Mr. WYDEN. Mr. President, I ask unanimous consent the reading of the 
amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

(Purpose: To require a report on the impact of the FISA Amendments Act 
       of 2008 on the privacy of the people of the United States)

       At the end, add the following:

     SEC. 5. REPORT ON THE IMPACT OF THE FISA AMENDMENTS ACT OF 
                   2008 ON THE PRIVACY OF THE PEOPLE OF THE UNITED 
                   STATES.

       (a) Findings.--Congress makes the following findings:

[[Page S8456]]

       (1) The central provision of the FISA Amendments of 2008 
     (Public Law 110-261; 122 Stat. 2436) enacted section 702 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1881a) which provides the government authority to collect the 
     communications of persons reasonably believed to be citizens 
     of foreign countries who are located outside the United 
     States.
       (2) Such section 702 contained restrictions regarding the 
     acquisition of the communications of United States persons 
     which were intended to protect the privacy of United States 
     persons and prevent intelligence agencies from using the 
     authority in such section to deliberately read or listen to 
     the communications of specific United States persons without 
     obtaining a warrant or emergency authorization to do so.
       (3) Estimating the total number of communications to or 
     from the United States collected under the authority in such 
     section 702 would provide an indication of the degree to 
     which collection carried out under such section has impacted 
     the privacy of United States persons.
       (4) Estimating the number of wholly domestic communications 
     collected under the authority in such section 702 would 
     provide a particularly significant indication of the degree 
     to which collection carried out under this authority has 
     impacted the privacy of United States persons.
       (5) While Congress did not intend to provide authority in 
     such section 702 for elements of the intelligence community 
     to deliberately review the communications of specific United 
     States persons without obtaining individual warrants or 
     emergency authorizations to do so, such section 702 does not 
     include a specific prohibition against this action, and the 
     people of the United States have a right to know whether 
     elements of the intelligence community have deliberately 
     searched through communications collected under such section 
     702 to find the communications of specific United States 
     persons.
       (6) Despite requests from numerous Senators, the Director 
     of National Intelligence has declined to state publicly 
     whether--
       (A) any entity has made an estimate of the number of United 
     States communications that have been collected under such 
     section 702;
       (B) any wholly domestic communications have been collected 
     under such section 702; or
       (C) any element of the intelligence community has attempted 
     to search through communications collected under such section 
     702 in a deliberate effort to review the communications of a 
     specific United States person without obtaining a warrant or 
     emergency authorization permitting such a search.
       (7) In public remarks in July 2012, the Director of the 
     National Security Agency stated that ``the story that we have 
     millions or hundreds of millions of dossiers on people is 
     absolutely false''.
       (b) Report.--
       (1) Requirement.--Not later than 90 days after the date of 
     the enactment of this Act, the Director of National 
     Intelligence shall submit to Congress a report on the impact 
     of the amendments made by the FISA Amendments Act of 2008 
     (Public Law 110-261; 122 Stat. 2436) and other surveillance 
     authorities on the privacy of United States persons.
       (2) Content.--The report required by paragraph (1) shall 
     include the following:
       (A) A determination of whether any government entity has 
     produced any estimate regarding--
       (i) the total number of communications that--

       (I) originated from or were directed to a location in the 
     United States; and
       (II) have been collected under the authority of section 702 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1881a); or

       (ii) the total number of wholly domestic communications 
     that have been collected under such authority.
       (B) If any estimate described in subparagraph (A) was 
     produced, such estimate.
       (C) An assessment of whether any wholly domestic 
     communications have been collected under the authority of 
     section 702 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1881a).
       (D) A determination of whether any element of the 
     intelligence community has ever attempted to search through 
     communications collected under section 702 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a) in a 
     deliberate effort to find the communications of a specific 
     United States person, without obtaining a warrant or 
     emergency authorization to do so.
       (E) A determination of whether the National Security Agency 
     has collected any type of personally identifiable data 
     pertaining to more than 1,000,000 United States persons.
       (c) Form of Report.--
       (1) Public availability of report.--The report required by 
     subsection (b) shall be made available to the public not 
     later than 15 days after the date such report is submitted to 
     Congress.
       (2) Redactions.--If the President believes that public 
     disclosure of information in the report required by 
     subsection (b) could cause significant harm to national 
     security, the President may redact such information from the 
     report made available to the public.
       (3) Submission to congress.--If the President redacts 
     information under paragraph (2), not later than 30 days after 
     the date the report required by subsection (b) is made 
     available to the public under paragraph (1), the President 
     shall submit to the Select Committee on Intelligence of the 
     Senate and the Permanent Select Committee on Intelligence of 
     the House of Representatives a statement explaining the 
     specific harm to national security that the disclosure of 
     such information could cause.

  The ACTING PRESIDENT pro tempore. Under the previous order, there 
will be 30 minutes of debate, equally divided, prior to the vote on the 
Wyden amendment.
  Mr. WYDEN. Mr. President, given the events of yesterday, this is the 
last opportunity for the next 5 years for the Congress to exercise a 
modest measure of real oversight over this intelligence surveillance 
law. Here is why. Colleagues, it is not real oversight when the 
Congress cannot get a yes or no answer to the question of whether an 
estimate currently exists as to whether law-abiding Americans have had 
their phone calls and e-mails swept up under the FISA law. That is the 
case today.
  Colleagues, it is not real oversight when the Congress cannot get a 
yes or no answer to the question of whether wholly domestic 
communications between law-abiding Americans in this country have been 
warrantlessly intercepted under the law. That is the case today.
  Colleagues, it is not real oversight when National Security Agency 
leadership states in a public forum that the Agency does not keep 
dossiers on millions of Americans and yet they will not give the 
Congress a yes or no answer as to whether the Agency collects any sort 
of data on millions of Americans. That is not the case today.
  What this amendment does is it gives us the opportunity to do real 
oversight--real oversight--by getting yes or no answers to questions 
that have been asked repeatedly by members of the Intelligence 
Committee. The amendment, in order to ensure that national security is 
protected at an important time in our country's history, gives the 
President of the United States unfettered discretion to redact any 
information he believes is necessary in order to protect the country's 
national security. The amendment does not require any agency to do new 
work. We have heard cited repeatedly it would be impossible to do an 
estimate on projections that have been discussed in the past. So we 
have changed course and we have said all we are seeking is a yes or no 
answer to the question of whether an estimate has actually been done.
  This is an important time for American security. It will always be an 
important time for American security. It is also an important time for 
American liberty, and this amendment ensures we can strike the 
appropriate balance between protecting our country's well-being and 
also protecting the individual liberties we all cherish.
  I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I rise in opposition to the amendment. 
This amendment would require the Director of National Intelligence to 
issue a public report within 90 days, assessing the impact of the FISA 
Amendments Act and its surveillance authorities on the privacy of U.S. 
persons.
  That sounds benign, but it is not. The goal of this amendment is to 
make information public about a very effective intelligence collection 
program that is currently classified. All of the information has 
already been made available to the Senate Intelligence and Judiciary 
Committees. It is available to all Members. All they have to do is read 
it. It is hundreds of pages of material.
  Senator Wyden has raised a number of issues that all concern the 
potential for surveillance conducted pursuant to authorities to result 
in what is called ``incidental collection.'' Section 702 authorizes the 
executive branch to go to the FISA Court--that is a Federal court, 
Federal district judges appointed by the Chief Justice of the Supreme 
Court--and obtain annual approval for the certifications of the 
Attorney General and the DNI that identify categories of foreign 
targets. These are what I call a program warrant, to conduct 
surveillance on non-U.S. persons; in other words, individuals who are 
not U.S. citizens or lawful permanent residents who are located outside 
the United States.
  It is possible there can be some incidental collection of 
communications of

[[Page S8457]]

or concerning those who are U.S. persons. This potential for incidental 
collection does not mean the intelligence community is intentionally 
conducting surveillance on U.S. persons. In fact, doing so would be a 
violation of the law.
  Here is the key point to understand about incidental collection. 
Although the government may, under the right circumstances, be 
authorized to retain the communication between--as an example--known 
terrorists and a presumptive U.S. person or persons, including the 
phone number he relayed to the terrorist, the government cannot place 
the U.S. number on surveillance and start collecting the calls to and 
from the U.S. number without first obtaining an individual court order 
or a warrant. To do so would be to target a U.S. person, which I will 
explain is reverse targeting.
  Let me answer another common question: Can the government use section 
702 to target a U.S. person? This is important. The answer is no. The 
law specifically prevents the use of section 702 to direct collection 
against U.S. persons. This prohibition is codified in 702(b), which 
states that the section may not be used to ``intentionally target any 
person known at the time of acquisition to be located in the United 
States'' or to ``intentionally target a United States person reasonably 
believed to be located inside the United States.''
  Another frequent question: Is there a loophole or backdoor that 
allows the government to use 702 to target U.S. persons by searching 
incidental collection? Answer: No. The Department of Justice, the DNI's 
offices, the FBI, and NSA have all advised that limiting the ability of 
intelligence analysts to review and analyze information already in the 
government's possession under section 702 would make these agencies 
less able to respond quickly during a developing terrorist plot.
  In sum, review of the information already collected enables the 
government to protect against a terrorist attack on this Nation.
  Regarding the level of oversight conducted on these authorities, as 
of October 7, 2011, the congressional Intelligence and Judiciary 
Committees received over 500 pages of information from the Department 
of Justice that specifically relate to matters covered by the Wyden 
amendment. The Senate Intelligence Committee held a closed hearing in 
October 2011 on these issues. The senior Senator from Oregon attended. 
These were the issues specifically discussed. In December of 2011, the 
congressional Intelligence and Judiciary Committees received in excess 
of another 100 pages of material relating to these issues.
  We held another closed hearing on February 9, 2012, which the Senator 
from Oregon attended, where these issues were discussed. The inspectors 
general for the intelligence community and NSA have both provided 
classified and unclassified responses to letters written by the Senator 
from Oregon and the Senator from Colorado, explaining why it is not 
feasible to estimate the number of people inside the United States who 
have had their communications collected or reviewed under the 
authorities granted by section 702. Finally, the DNI sent a letter in 
August on this issue.
  Here is the point. If we want to talk about oversight, all of the 
information exists, and it is up to Intelligence Committee of the 
Senate to do its oversight and Members have to go in and read the 
material.
  I believe very strongly that what this amendment aims to do is make 
public a program that should not be made public at this time. I urge my 
colleagues to oppose this amendment.

  Finally, I request that a letter from General Alexander, head of the 
National Security Agency--which essentially explains remarks he made--
be printed in the Record. I would also like to have the letter to the 
general from the Senator from Oregon printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                            Department of Defense,


                                     National Security Agency,

                          Fort George G. Meade, MD, Nov. 13, 2012.
     Hon. Ron Wyden,
     U.S. Senate, Dirksen Senate Office Building,
     Washington, DC.
       Dear Senator Wyden: Thank you for your letter dated 10 
     October 2012 concerning issues related to the National 
     Security Agency's (NSA's) handling of U.S. person 
     communications. As you know, NSA takes great care to protect 
     the civil liberties and privacy interests of U.S. persons in 
     the conduct of its mission.
       Your letter requested clarity and further information with 
     respect to my extemporaneous response to a question posed by 
     a member of the audience following my formal presentation on 
     cybersecurity delivered on 27 July 2012, at DEFCON 20. At the 
     conference, a member of the audience asked me: ``Does NSA 
     really keep a file on everyone [in the United States] and, if 
     so, can I see mine?'' I responded: ``Absolutely not. And 
     anybody who would tell you that we're keeping files or 
     dossiers on the American people know[s] that's not true and 
     let me tell you why. First, under our Agency we have a 
     responsibility. Our job is foreign intelligence.'' I then 
     gave a short explanation of how we execute our foreign 
     intelligence mission and the oversight provided by all three 
     branches of government, including Congress, before 
     reiterating that ``the story that we have millions or 
     hundreds of millions of dossiers on people is absolutely 
     false.'' I referred to the fact that Section 702 of the 
     Foreign Intelligence Surveillance Act, as amended by the FISA 
     Amendments Act of 2008 (FAA 702), permits the targeting only 
     of communications of non-U.S. persons reasonably believed to 
     be located outside of the United States. Finally, I 
     highlighted the role served by minimization procedures to 
     provide additional protection to incidentally collected 
     communications of U.S. persons.
       First, with respect to the reference to minimization 
     procedures, my response should be understood in the context 
     in which it was made. I noted at the outset that NSA has a 
     foreign intelligence mission, and my subsequent reference 
     focused on the type of circumstance in which U.S. person 
     information may be disseminated when this foreign 
     intelligence requirement is not met (e.g., when there is 
     evidence of a crime). As you are aware, the statutory 
     requirements for minimization procedures are a matter of 
     public record:
       Section 101(h)(1) of FISA requires that minimization 
     procedures must be ``reasonably designed . . . to minimize 
     the acquisition and retention and prohibit the dissemination, 
     of nonpublicly available information concerning unconsenting 
     U.S. persons consistent with the need of the United States to 
     obtain, produce, and disseminate foreign intelligence 
     information.''
       Section 101(h)(2) of FISA requires that ``nonpublicly 
     available information which is not foreign intelligence 
     information shall not be disseminated in a manner that 
     identifies any U.S. person, without such person's consent, 
     unless such person's identity is necessary to understand 
     foreign intelligence information or assess its importance.''
       Section 101(h)(3) of FISA permits both retention and 
     dissemination where there is ``evidence of a crime which has 
     been, is being, or is about to be committed and that is to be 
     retained or disseminated for law enforcement purposes.''
       Section 101(h)(4) of FISA permits disclosure, 
     dissemination, or use for any purpose or retention for 72 
     hours, or longer if a determination is made by the Attorney 
     General, ``if the information indicates a threat of death or 
     serious bodily harm to any person.''
       Second, my response did not refer to or address whether it 
     is possible to identify the number of U.S. person 
     communications that may be lawfully but incidentally 
     intercepted pursuant to foreign intelligence collection 
     directed against non-U.S. persons located outside the United 
     States as authorized under FAA 702.
       In your letter, you asked for unclassified answers to 
     several questions that you feel are important to allow the 
     public to better understand my remarks delivered at the 
     conference. While I appreciate your desire to have responses 
     to these questions on the public record, they directly relate 
     to operational activities and complete answers would 
     necessarily include classified information essential to our 
     ability to collect foreign intelligence. Indeed, as you are 
     aware, these very questions were recently addressed in a 
     classified letter to you from the Director of National 
     Intelligence dated 24 August 2012.
       Finally, as you are also aware, senior officials from the 
     Administration, including the Office of the Director of 
     National Intelligence, the Justice Department, and NSA, have 
     testified and briefed before the relevant Congressional 
     committees on multiple occasions over the past year. We have 
     also conducted numerous sessions with committee staff and 
     counsel, as well as correspondence and discussions with 
     individual Senators and Representatives. As a result of the 
     many briefings, hearings, and other interactions between the 
     Intelligence Committees and the Administration, there exists 
     a comprehensive Congressional record relating to all of NSA's 
     foreign intelligence activities (including information 
     relevant to the questions you pose).
       Again, thank you for your ongoing interest in these issues. 
     Regardless of differences that may exist on policy issues, I 
     cannot overstate the importance or value of ongoing 
     Congressional interest and oversight of NSA's operations, 
     acting on behalf of the American people. If you have further 
     questions, please contact me personally or have your staff 
     contact my Associate Director for

[[Page S8458]]

     Legislative Affairs, Ethan L. Bauman, at (301) 688-7246.
                                               Keith B. Alexander,
     General, U.S. Army Director, NSA.
                                  ____



                                                  U.S. Senate,

                                 Washington, DC, October 10, 2012.
     General Keith Alexander,
     Director, National Security Agency,
     Fort Meade, MD.
       Dear General Alexander: You spoke recently at a technology 
     convention in Nevada, at which you were asked a question 
     about NSA collection of information about American citizens. 
     In your response. you focused in particular on section 702 or 
     the FISA Amendments Act of 2008, which the Senate will debate 
     later this year. In describing the NSA's collection of 
     communications under the FISA Amendments Act, you discussed 
     rules for handling the communications of US persons. 
     Specifically, you said:
       We may, incidentally, in targeting a bad guy hit on 
     somebody from a good guy, because there's a discussion there. 
     We have requirements from the FISA Court and the Attorney 
     General to minimize that, which means nobody else can see it 
     unless there's a crime that's been committed.
       We believe that this statement incorrectly characterized 
     the minimization requirements that apply to the NSA's FISA 
     Amendments Act collection, and portrayed privacy protections 
     for Americans' communications as being stronger than they 
     actually are. We urge you to correct this statement, so that 
     Congress and the public can have a debate over the renewal of 
     this law that is informed by at least some accurate 
     information about the impact it has had on Americans' 
     privacy.
       You also stated, in response to the same question, that ``. 
     . . the story that we have millions or hundreds of millions 
     of dossiers on people is absolutely false''. We are not 
     entirely clear what the term ``dossier'' means in this 
     context, so we would appreciate it if you would clarify this 
     remark. Specifically, we ask that you please answer the 
     following questions:
       The intelligence community has stated repeatedly that it is 
     not possible to provide even a rough estimate of how many 
     American communications have been collected under the FISA 
     Amendments Act, and has even declined to estimate the scale 
     of this collection. Are you certain that the number of 
     American communications collected is not ``millions or 
     hundreds of millions''? If so, then clearly you must have 
     some ability to estimate the scale of this number, or at 
     least some range in which you believe it falls. If this is 
     the case, how large could this number possibly be? How small 
     could I possibly be?
       Does the NSA collect any type of data at all on ``millions 
     or hundreds of millions of Americans''?
       Since you made your remarks in an unclassified forum, we 
     would appreciate an unclassified response to these questions, 
     so that your remarks can be properly understood by Congress 
     and the public, and not interpreted in a misleading way. 
     Additionally, since the Senate will debate this issue during 
     the November/December 2012 session, please provide your 
     response by November 13.
       If you have any questions concerning this request, please 
     have your staff contact John Dickas of Senator Wyden's staff, 
     or Jennifer Barrett of Senator Udall's staff. We appreciate 
     your attention to this matter and look forward to your prompt 
     response.
           Sincerely,
     Ron Wyden.
     Mark Udall.

  Mrs. FEINSTEIN. I thank the Chair and yield the floor to the vice 
chairman for the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I oppose Senator Wyden's amendment also 
because it imposes an unreasonably burdensome reporting requirement on 
the DNI and is inconsistent with the purpose of FISA, which is to 
obtain foreign intelligence information. This amendment would require 
the diversion of scarce intelligence personnel and resources away from 
the identification of foreign intelligence information but, rather, to 
assess whether any wholly domestic communications have been 
inadvertently collected under FAA authorities. This is an unnecessary 
and pointless exercise. The collection system was designed to comply 
with FISA's clear prohibition against the intentional collection of 
wholly domestic communications.
  I will read how specific this is in the law. This is directly out of 
section 702, which the amendment seeks to attack. There are limitations 
against collection of information under the following guise:

       An acquisition authorized under subsection (a)--

  Which is to collect information from those located outside the United 
States. We:

     may not intentionally target any person known at the time of 
     acquisition to be located in the United States; may not 
     intentionally target a person reasonably believed to be 
     located outside the United States if the purpose of such 
     acquisition is to target a particular, known person 
     reasonably believed to be in the United States; may not 
     intentionally target a United States person reasonably 
     believed to be located outside the United States.

  It goes further into detail and is very specific about the fact that 
there is no authorization to target U.S. persons.
  As the chairman said, it is our duty, as members of the Intelligence 
Committee, to do the oversight required to make sure these laws are 
complied with, and we do that. We do it in a very deliberate and direct 
way by not only having the individuals responsible for the collection 
of this information made available to the committee, but it goes all 
the way to the top. The individuals who collect it, as well as the 
leaders of the intelligence community, come in once a year--and they 
will come more often than that if there is a problem we need to 
address--and we review this information.
  The Senator from Oregon, the distinguished Presiding Officer, members 
of the Intelligence Committee, know the type of oversight that is 
available to us. So if there is any question about what is done and 
whether section 702 is not being complied with, we have the opportunity 
to ask the questions.
  The amendment by the distinguished Senator from Oregon actually goes 
further than what he said was a simple yes-or-no question and requires 
that the intelligence community go into great detail on any estimate or 
any finding where a U.S. person may have been involved. Is that the 
type of information we need for our intelligence community to spend 
their time on versus trying to find bad guys around the world? I think 
the answer is pretty simple.
  As we said yesterday, if there is a problem and the problem is 
addressed by the intelligence community and the Intelligence Committees 
on both the House and Senate side, it is not abused. If there is a 
problem, we fix it. There are minimization procedures that are in place 
which address this issue that are used when necessary. If we do our 
job, there is absolutely no reason for this amendment--and we do our 
job.
  The chairman is very diligent in making sure the annual reviews are 
set at specific times of the year. Every member of the committee has an 
obligation to be at the hearings to ask the tough and right questions. 
As far as I know, every member of the committee has done that. We have 
provided the right kind of oversight.
  I encourage my colleagues to vote against this because it is simply 
an unnecessary amendment, and it is the last amendment we have to 
consider. As we said over and over yesterday, we have to get this bill 
on the desk of the President by December 31, which is 3 days away.
  It is important we conclude this morning, that the bill be sent to 
the President's desk so we can sign it, and we can continue to provide 
the right kind of supervised collection against foreign individuals to 
make sure America and Americans are protected.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Colorado.
  Mr. UDALL of Colorado. Mr. President, I rise in support of the Wyden 
amendment. Before I share my thoughts, I wanted to express my respect 
and admiration for the chairwoman and vice chairman of the Senate 
Intelligence Committee. They are professional, easy to work with, and 
have the security of our people front and center at all times.
  As a member of the Senate Intelligence Committee, I have learned a 
great deal with respect to 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 there are reforms which need to be made to the FISA 
Amendments Act before we renew this important law.
  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 because we believe Congress does not have an 
adequate understanding of the effect this law has had on the privacy of 
law-abiding American 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 Congress 
can consider whether the law should be modified rather than simply 
extended without changes.

[[Page S8459]]

  That is the simple purpose of the amendment Senator Wyden, other 
colleagues, and I have filed--to make more information available to 
Members of Congress and the public so they have a better understanding 
of the law and its imitation.
  This amendment requires the Director of National Intelligence to 
provide information to Congress about the effects of the FISA 
Amendments Act on the privacy of America, which is something we all 
hold dear. It would require information on whether an estimation has 
been conducted of how many U.S. communications have been collected 
under the FISA Amendments Act and, if so, how many, whether any wholly 
domestic communications have been collected and whether officials have 
gone through these communications to conduct warrantless searches for 
the phone calls and e-mails of specific Americans.
  It would not require the intelligence community to conduct any new 
estimates of Americans whose communications may have been collected 
under the statute and would give the President full discretion to 
redact information from the public version of the report.
  I will 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 Americans. I also believe we 
need new protections against potential warrantless searches for 
Americans' communications. I believe that without such reforms, 
Congress should not simply extend the law for 5 years.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.
  Mr. WYDEN. I thank my colleague from Colorado. He has been a 
wonderful partner in this effort to strike a balance between security 
and liberty. I look forward to working with him in the days ahead.
  Mr. President, how much time remains on each side?
  The ACTING PRESIDENT pro tempore. Proponents have 8 minutes and the 
opponents have 2 minutes.
  Mr. WYDEN. Mr. President, I say this with the greatest respect to the 
distinguished chair of the committee--with whom I have worked 
cooperatively on so many issues--that when she said this amendment 
seeks to publish names, I would just like to say that is simply and 
factually incorrect. In no way, shape or form does this amendment seek 
to publish names, and I wish to tell colleagues that if anyone in 
connection with this program were to seek to publish names, I would 
vigorously oppose that effort. I simply just want to make sure the 
Record reflects that.
  We have heard by the opponents of this amendment that the 
intelligence community has already provided the Congress with lots of 
information about the FISA Amendments Act. However, the reality is a 
lot more complicated than that. Much of that information is in highly 
classified documents that are difficult for most Members to review, and 
the reality is most Members literally have no staff who are cleared to 
read the documents which have been cited.
  So the fact is most Members of Congress don't have staff to help them 
deal with these complicated issues so they are--in many particulars--in 
the dark about the program, and certainly the 300 million-plus 
Americans who expect us to strike that balance between security and 
liberty are also in the dark.
  I have already noted that the amendment gives the executive branch 
unfettered authority to make redactions, and I just want to make sure 
every Senator hears the exact language because I think this is as broad 
a redaction proposal as I have seen in my service on the committee. The 
redaction proposal states: If the President believes that public 
disclosure of the report required by this section could cause 
significant harm to national security, the President may redact such 
information from the report made available to the public.
  I hope colleagues who have asked about whether this would endanger 
our country and have heard on the floor of the Senate that somehow this 
amendment would seek to name names--particularly at a dangerous time--
will see, No. 1, that is not the case; and No. 2, that the President, 
as outlined on page 6, has full and unfettered discretion to redact the 
report as he sees fit.
  I also want to respond to this point that there would be no time for 
this to be considered by the other body if we add this modest measure 
of oversight. As I understand from the news reporting this morning, the 
other body will be meeting on Sunday, so they will be here this 
weekend. The other body is perfectly capable of passing an amended 
bill, getting it to the President by the end of the month. The 
distinguished vice chair and I both served in the other body. We know 
that when they are here--particularly on something that just involves a 
report--it would be very easy for the other body to pass this and send 
it to the President. In fact, the House passed the extension a few 
months ago with over 300 votes. So passing it Sunday when the other 
body is in session seems to not exactly be a difficult and arduous 
task.
  What it comes down to is what we define robust congressional 
oversight in a program such as this to be. Again, I respectfully say 
that without basic information as to whether an estimate even exists--
in response to colleagues--this is not talking about anybody going out 
and doing a lot of work. This is a question of either responding 
affirmatively or negatively to the question Senator Udall and I have 
been asking lo these several years: Does an estimate exist as to 
whether or not law-abiding Americans have had their communications 
swept up under this law?
  There is a reason to be concerned about this because Senator Udall 
and I worked very hard to get at least a little bit of information on 
this, and we have been able to declassify that there has been a fourth 
amendment violation in the past.
  I believe that without the information Senator Udall and I have 
sought that is behind this amendment--those who say there ought to be 
robust congressional oversight of this program ought to reflect on the 
fact that without this information which is so essential to do our 
work, oversight is not robust, it is toothless--it is toothless--if we 
cannot get an answer to the question as to whether an estimate exists 
for how many Americans have had their communications swept up.
  So I close with this: This is, as the distinguished chair of the 
committee said earlier, a critically important time for American 
security. Those of us who serve on the committee--and the distinguished 
Presiding Officer is part of these briefings--go into the room, and the 
doors are locked, and we certainly get significant information about 
the threats and the well-being of this country. So it is an important 
time for American security. It is also an important time for American 
liberty.
  To paraphrase Ben Franklin, as I did yesterday, those who give up 
their liberty in order to have security really don't deserve either. 
The two are not mutually exclusive. We can do both. That is what the 
constitutional teeter-totter has always been about--security and well-
being of our country on the one hand and protecting our liberties on 
the other.
  What Senator Udall and I contend this morning is that without access 
to information about critical questions such as whether an estimate 
even exists as to how many law-abiding Americans have had their 
communications swept up under FISA, we can't answer the question as to 
whether the constitutional teeter-totter is in balance. So I hope my 
colleagues will vote for this amendment given the events of yesterday.
  I say to my colleagues that this will be the last opportunity--the 
last opportunity for 5 years--to exercise some modest measure of real 
oversight over this program. I hope my colleagues on a bipartisan basis 
will support this amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, we have how many minutes?
  The ACTING PRESIDENT pro tempore. There is 2\1/2\ minutes remaining.
  Mrs. FEINSTEIN. I will use 1 minute.
  The fact is, we do an intelligence authorization bill every year. If 
there is a need to change the law, we can change it there, so this 
isn't the last opportunity to effect any change on the FISA Amendments 
Act for 5 years. I believe that it is the last opportunity to see that 
this program continues on without interruption.

[[Page S8460]]

  I would also point out that one of the areas in which the 
administration has really made an effort is to bring leaders of the 
Intelligence Community--whether it is the DNI or representatives from 
the Department of Justice--to the Hill and explain to individual 
Members how this program works.
  With respect to the classified material, any Member has access to it; 
any Member can go up and read this material. The staff of the 
Intelligence Committee, which helps us conduct this oversight, can read 
this material. The Members of the Intelligence Committee can read this 
material. As chairman, if someone finds an irregularity, I am happy to 
look at it, to have a hearing on it. But to adopt this amendment that 
would change this program at this time has my very strong opposition. I 
urge a ``no'' vote.
  I yield to the vice chairman.
  The ACTING PRESIDENT pro tempore. The Senator from Georgia.
  Mr. CHAMBLISS. Mr. President, I would echo what the chairman said--
that the very well trained, dedicated staff of the Intelligence 
Committee is available to assist any Member in reviewing the classified 
information that is the subject of section 702. That is why they are 
there. The Senator from Oregon is right. Every Member of Congress 
doesn't have that highly trained, top-secret staff member, and there 
are reasons for that. There are reasons why the Intelligence Committee 
members do have those types of staffers. Those staffers are available 
at any time for discussion of this issue or, for that matter, any other 
issue relative to national security that is within the purview of the 
Intelligence Committee.
  So I again say that this amendment is simply totally unnecessary 
because there are specific and direct prohibitions in the law as well 
as in court decisions that do not allow our respective intelligence 
community agencies to listen in or review e-mails or whatever on U.S. 
citizens unless it is under some sort of court order where probable 
cause must be shown.
  We need to make sure we are equipping our intelligence community 
agents with every single tool necessary to combat terrorists around the 
world. This section is critical to doing that. I urge a vote against 
the amendment.
  Mrs. FEINSTEIN. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second.
  Under the previous order, the question is on agreeing to amendment 
No. 3439 offered by the Senator from Oregon, Mr. Wyden.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The assistant bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from New Jersey (Mr. Lautenberg), and the Senator from 
Missouri (Mrs. McCaskill) are necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from South Carolina (Mr. DeMint) and the Senator from Illinois (Mr. 
Kirk).
  The PRESIDING OFFICER (Mrs. Hagan). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 43, nays 52, as follows:

                      [Rollcall Vote No. 235 Leg.]

                                YEAS--43

     Akaka
     Baucus
     Begich
     Bennet
     Bingaman
     Blumenthal
     Brown (OH)
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Coons
     Durbin
     Franken
     Gillibrand
     Grassley
     Harkin
     Heller
     Klobuchar
     Landrieu
     Leahy
     Lee
     Levin
     Manchin
     Menendez
     Merkley
     Murkowski
     Murray
     Nelson (NE)
     Paul
     Reed
     Reid
     Sanders
     Schatz
     Shaheen
     Stabenow
     Tester
     Toomey
     Udall (CO)
     Udall (NM)
     Webb
     Wyden

                                NAYS--52

     Alexander
     Ayotte
     Barrasso
     Blunt
     Boozman
     Brown (MA)
     Burr
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Corker
     Cornyn
     Crapo
     Enzi
     Feinstein
     Graham
     Hagan
     Hatch
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Kohl
     Kyl
     Lieberman
     Lugar
     McCain
     McConnell
     Mikulski
     Moran
     Nelson (FL)
     Portman
     Pryor
     Risch
     Roberts
     Rockefeller
     Rubio
     Schumer
     Sessions
     Shelby
     Snowe
     Thune
     Vitter
     Warner
     Whitehouse
     Wicker

                             NOT VOTING--5

     Boxer
     DeMint
     Kirk
     Lautenberg
     McCaskill
  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for the adoption of this amendment, the amendment is rejected.
  The bill (H.R. 5949) was ordered to a third reading and was read the 
third time.
  Mr. UDALL of New Mexico. Madam President, I rise today to express my 
longstanding concerns about the FISA Amendments Act of 2008. We are 
being asked to extend the sunset provisions in the Act until 2017. 
Without adoption of the amendments to include additional privacy 
protections and oversight requirements, I cannot support an extension.
  We all appreciate the dedicated work of the intelligence community. 
They have a big job in keeping us safe. But we also have to protect the 
constitutional rights of American citizens. That goes to the heart of 
who we are. Of what our country stands for. These aims are not 
contradictory. We can do both. And we must do both.
  The FISA Amendments Act of 2008 gave broad powers to the intelligence 
community. Too broad, for some of us. I was one of the minority votes 
in the House against FISA. It allows a very wide net to search phone 
calls and emails of foreigners outside of the United States.
  We knew then, and we know now, that net would also scoop up the 
private communications of American citizens. The challenge was clear. 
Go after the bad guys. But do not violate the privacy of the American 
people. So the Act contained specific limitations.
  Now, 4 years later, we are asking a basic question. Have those 
limitations worked? And the answer is--we really do not know.
  This uncertainty is not for lack of trying. We have tried to get 
answers. Numerous times. But the information is still lacking. 
Intelligence officials have said they are unable to tell us how many 
U.S. communications have been collected under FISA authority. Not an 
actual number. Not an exact number. Not even an estimate.
  Plain and simple--we need more information. How else can we evaluate 
this policy? The American public has a right to know. And needs to 
know. How many Americans are affected by FISA? Are existing privacy 
protections working? Are they too weak? Do they need to be 
strengthened? These are vital questions. They need to be answered. And 
so far they have not been.
  That is why the amendments that have been offered are so important. 
These amendments are intended to strengthen privacy protections of 
American citizens and to improve congressional oversight. These 
amendments will improve FISA. And they deserve bipartisan support.
  I want to emphasize my support for Senator Wyden's amendment that we 
will vote on this morning. The amendment would require the Director of 
National Intelligence to report to Congress on the impact of FISA. And 
provide specific information. In particular, how many U.S. 
communications have been collected under the Act? Have there been 
deliberate attempts to search the phone calls or emails of individual 
Americans? Without obtaining a warrant or emergency authorization?
  The Director's report would be available to the public. And the 
President could withhold public disclosure of any information necessary 
to national security. This amendment will not compromise national 
security. But it will help protect the rights of American citizens.
  As Senator Wyden stated on the floor yesterday, several of us sent 
letters to Director Clapper requesting this information, but have not 
received an adequate response. The Wyden amendment would ensure that 
Congress has the information we need to make an informed decision about 
whether to extend future sunset provisions.
  The war on terrorism that began after the 9/11 attacks has continued 
for over 10 years. During that time, Congress has passed laws, 
including the PATRIOT Act and FISA Amendments Act, which gave sweeping 
new authorities to law enforcement and the intelligence community.
  I know we must protect the Nation from future attacks. But there must

[[Page S8461]]

also be a balance--we cannot give up our constitutional protections in 
the name of security. I voted against the PATRIOT Act and FISA 
Amendments Act because I believed they were not balanced--they unduly 
infringed on the guaranteed rights of our citizens.
  As I said, we all value the work of our intelligence community. Their 
efforts are vital to our Nation's security. But, I believe these 
amendments are crucial. We can protect our citizens without trampling 
their constitutional rights.
  Unfortunately, none of the amendments we voted on yesterday were 
adopted. But the main argument I heard against them was not on the 
substance of the amendments. It was that we do not have time to amend 
the bill and send it back to the House. The Chair and Vice-chair argued 
that we must pass the House bill without amendment and get it to the 
President before the provisions expire.
  This is not how the ``world's greatest deliberative body'' should 
function. It is one more example of why we need to reform our rules so 
that we are not constantly mired in procedural gridlock. Rather than an 
11th hour passage of the House bill, we should have had a real 
opportunity to debate and amend the Senate bill that came out of 
committee over 5 months ago.
  The PRESIDING OFFICER. The question is on passage of the bill.
  Mrs. FEINSTEIN. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer) 
and the Senator from New Jersey (Mr. Lautenberg) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from South Carolina (Mr. DeMint) and the Senator from Illinois (Mr. 
Kirk).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 73, nays 23, as follows:

                      [Rollcall Vote No. 236 Leg.]

                                YEAS--73

     Alexander
     Ayotte
     Barrasso
     Bennet
     Blumenthal
     Blunt
     Boozman
     Brown (MA)
     Burr
     Cardin
     Carper
     Casey
     Chambliss
     Coats
     Coburn
     Cochran
     Collins
     Conrad
     Corker
     Cornyn
     Crapo
     Enzi
     Feinstein
     Gillibrand
     Graham
     Grassley
     Hagan
     Hatch
     Heller
     Hoeven
     Hutchison
     Inhofe
     Isakson
     Johanns
     Johnson (SD)
     Johnson (WI)
     Kerry
     Klobuchar
     Kohl
     Kyl
     Landrieu
     Levin
     Lieberman
     Lugar
     Manchin
     McCain
     McCaskill
     McConnell
     Mikulski
     Moran
     Nelson (NE)
     Nelson (FL)
     Portman
     Pryor
     Reed
     Reid
     Risch
     Roberts
     Rockefeller
     Rubio
     Schumer
     Sessions
     Shaheen
     Shelby
     Snowe
     Stabenow
     Thune
     Toomey
     Vitter
     Warner
     Webb
     Whitehouse
     Wicker

                                NAYS--23

     Akaka
     Baucus
     Begich
     Bingaman
     Brown (OH)
     Cantwell
     Coons
     Durbin
     Franken
     Harkin
     Leahy
     Lee
     Menendez
     Merkley
     Murkowski
     Murray
     Paul
     Sanders
     Schatz
     Tester
     Udall (CO)
     Udall (NM)
     Wyden

                             NOT VOTING--4

     Boxer
     DeMint
     Kirk
     Lautenberg
  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for passage of the bill, the bill (H.R. 5949) is passed.
  Mrs. FEINSTEIN. Madam President, I thank my colleagues for their 
coming to the floor over the past 2 days for a good debate on the 
reauthorization of the FISA Amendments Act, which the Senate approved 
today by a vote of 73-23.
  As I described a number of times during this debate, this electronic 
surveillance tool is among the most important intelligence collection 
measures we have for identifying and thwarting terrorist plots, as well 
as stopping proliferation of weapons of mass destruction, cyber attacks 
against the United States, and for intelligence collection to advise 
policy decisions. Authorizing the statute for another 5 years will put 
the Nation's intelligence community on strong ground.
  I also would like to reiterate the offer I made during the debate to 
make sure that any Senator interested in getting additional, classified 
information on the FISA Amendments Act can get that information. In 
particular, I look forward to working with Senator Merkley to see that 
significant decisions of the FISA Court--or summaries of those 
decisions--are reviewed and made public in a way that does not 
compromise classified information. I also will work with Senator Leahy, 
the chairman of the Judiciary Committee, to seek any additional reviews 
by the relevant inspectors general to complement the oversight that is 
already done every year on FISA programs. I will continue to work with 
Senators Wyden and Udall on the committee to help pursue their 
oversight requests and interests.
  Lastly, but very importantly for me, I would like to thank the staff 
who have worked over the past four years to conduct oversight of the 
FISA Amendments Act and who worked to get this legislation approved. 
Their work includes countless hours of meetings with officials from the 
Office of the Director of National Intelligence, the Department of 
Justice, the National Security Agency, and the Federal Bureau of 
Investigation, and even more time reading and analyzing reports, 
answers, and communications from those departments and agencies.
  On the staff of the Senate Select Committee on Intelligence, I would 
like to note first and foremost the dedicated efforts and counsel of 
Christine Healey, the committee's general counsel, and Eric Losick, 
counsel on the majority side who have been my main advisors on this 
legislation. I also appreciate their Republican counterparts, Jack 
Livingston and Kathleen Rice, with whom we have worked closely and 
collaboratively in this effort.
  My appreciation as well goes to Mike Buchwald, my designee on the 
committee, for his tireless staff work; to Mike Davidson, who was the 
committee's general counsel during part of this past 4 year period and 
who set the structure of the committee's ongoing oversight; and to 
David Grannis, the committee's staff director.
  Finally, I deeply appreciate the efforts of the majority leader's 
people and the floor staff--Tommy Ross, Serena Hoy, Gary Myrick, Tim 
Mitchell, and Tricia Engle--who got this bill to the floor before the 
expiration of the FISA Amendments Act and who helped guide it through 
to passage.
  Thanks to the Senate's vote today, this critical intelligence tool 
will continue to be available to the Nation's intelligence community. 
The Senate's oversight of it will continue as well, as I intent to 
continue the committee's careful review of the program for the next 5 
years.
  Mr. REED. Madam President, major terrorist threats still exist, and 
it is critical that we do all we can to protect Americans, not only in 
terms of national security, but also in terms of civil liberties. In 
voting today to extend the FISA Amendments Act, FAA, for 5 years, I 
made a difficult judgment as there are still major outstanding 
concerns. In trying to address these concerns, I supported three 
amendments that would have made important improvements.
  The first was Senator Leahy's amendment, which sought to align the 
FAA sunset with the Patriot Act sunset so that both of these national 
security laws could be evaluated together prior to their expiration. 
Additionally, this amendment required a comprehensive review of FAA 
surveillance by the Inspector General of the intelligence community to 
address privacy concerns that have been raised.
  I also supported Senator Merkley's amendment, which would have 
increased transparency by requiring the Attorney General, in a manner 
consistent with the protection of national security, to make publicly 
available Foreign Intelligence Surveillance Court decisions that 
include a significant construction or interpretation of the law.
  Finally, I voted in favor of Senator Wyden's amendment, which would 
have required the Director of National Intelligence to submit a report 
to Congress and the public on the impact of FAA on the privacy of 
American citizens, while preserving the President's ability to make 
necessary redactions.

[[Page S8462]]

  I am disappointed that these amendments, which all call for greater 
accountability and transparency, were unsuccessful.
  In 2008, I largely objected to the FAA because I had serious concerns 
about granting retroactive immunity to telecommunications companies for 
actions they may or may not have taken in response to administration 
requests that may or may not have been legal. Because these immunity 
provisions are not subject to a sunset, they are not at issue with 
today's vote.
  I ultimately decided to vote in favor of extending FAA for 5 years 
because, as I noted earlier, major threats still exist. However, I did 
so reluctantly. We should have considered an FAA extension months ago 
without the threat of FAA expiration in mere days. Protecting Americans 
means that we must balance ensuring our national security with 
preserving our civil liberties, and I will continue to work with my 
colleagues to ensure that this balance is struck.

                          ____________________