[Congressional Record (Bound Edition), Volume 150 (2004), Part 9]
[Senate]
[Pages 12413-12414]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 FOREIGN INTELLIGENCE SURVEILLANCE ACT

  Mr. DeWINE. Mr. President, I rise today because, frankly, I am 
alarmed. I am alarmed by bottlenecks and barriers blocking the ability 
of our law enforcement and intelligence agents to fight terrorism. 
These bottlenecks and barriers are hampering our law enforcement's 
ability to use the Foreign Intelligence Surveillance Act, known as the 
FISA statute. In setting up surveillance against foreign powers working 
inside the United States, all Americans should be concerned. All 
Americans should be concerned, frankly, as the FISA statute is one of 
the most important weapons we have to fight terrorism.
  Bottlenecks in the Justice Department's process of FISA applications 
could mean if there were a terrorist attack being planned against 
Americans today, we might not know about it. We would not know about it 
because a FISA request simply did not get processed.
  We would not know it because the bureaucracy in Washington, DC, 
simply did not get to the application in time, did not have the time or 
the people or the resources to process an agent's request allowing him 
or her to gather that pivotal piece of intelligence, that vital piece 
of information that very well could be the key to preventing a 
terrorist attack at home. That scares me, and that should scare every 
Member of this Senate, and that should scare every American.
  Although the FBI has been more aggressive in submitting FISA requests 
since the September 11 terrorist attacks, the Department of Justice has 
been unable to keep pace with the resulting surge in applications. Here 
is what the staff of the independent 9/11 Commission tells us:

       The application process . . . continues to be long and 
     slow.

  That process is still subject to ``bottlenecks.''
  I was very concerned about that. So on May 20, the last FBI oversight 
hearing held by the Judiciary Committee, I asked Director Mueller how 
well he thought the FISA statute was being utilized, and this is what 
Director Mueller said:

       We still have concerns. There is still frustration out 
     there in the field in certain areas where, because we have 
     had to prioritize, we cannot get to certain requests for FISA 
     as fast as perhaps we might have in the past.

  What does this mean? Does that mean it is now taking longer post-9/11 
to process certain FISA requests? If that is the case--and it is--that 
is a shocking statement and one that is certainly disconcerting and 
also downright frightening.
  Later in a Judiciary Committee hearing just last week, Attorney 
General Ashcroft made equally troubling statements. I told him I felt 
it was dangerous to have to prioritize FISA requests because we can 
never know what kind of information we will get from these warrants. 
Even our best guess is still just a guess, and this is what the 
Attorney General said:

     . . . we are prioritizing among FISA applications . . . so 
     that at least the most promising of those applications are 
     the ones that would be first attended to, but frankly, it is 
     not easy always to know where you are going to get the best 
     intelligence, and it is not a situation where I am confident 
     in saying, ``Oh, well, we do not have to worry about that 
     one.''

  The Attorney General was very candid. He was very honest, and he said 
it very well. You never can be sure where a promising lead will take 
you or which lead will be the one lead that uncovers the information 
that will save many lives. They have to prioritize. To have to 
prioritize, to have to pick and choose among these leads, is very risky 
and dangerous business. It is almost this kind of Russian roulette. We 
should not be in that business. We should not have to do it.
  The Justice Department should be able to look at each FISA request 
individually and do whatever is necessary to process that request, not 
prioritize it, not just put it higher up in the pile, but actually 
process it immediately so that the court can issue a warrant and agents 
can go about the business of catching terrorists.
  This is a very real problem we have. So I say to the Justice 
Department, you have to put more resources into this. You have to do a 
better job. Of all

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that you do in the Justice Department, what could be more important? Do 
you need more FISA lawyers at Justice? Do you need more people in this 
unit? If you do, then put them there. Do you need more FISA training 
for agents?
  Do you need more resources? How far behind are you in the FISA 
process? These are all questions that the Justice Department needs to 
answer right now. No excuses. Our national security is at stake.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Georgia is recognized for 8 
minutes.

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