[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 1007-1009]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Ms. SNOWE. Mr. President, I rise today as a member of the Select 
Committee on Intelligence to discuss the pending legislation to 
modernize the Foreign Intelligence Surveillance Act that was originally 
passed in 1978. At the outset of my remarks I would like to first 
express my sincerest appreciation to the chairman of the committee, 
Senator Rockefeller, and the vice chair, Senator Bond, for their 
exceptional leadership in working in a concerted, cooperative manner to 
shepherd the Intelligence Committee bill through the legislative 
process in a strong, bipartisan manner.
  As my colleagues know, the act is set to expire on February 1--less 
than a week from now. It is imperative that Congress pass legislation 
reflecting the will of this body and send it to the President's desk 
for enactment. At a time when al-Qaida lurks in the shadows, making no 
distinctions between combatants and noncombatants, between our 
battlefields and our backyards, we as lawmakers must work with firm 
resolve to ensure that the intelligence community possesses the tools 
and the legal authority that is required to prevent future terrorist 
attacks on our soil. Yet in the wake of years of controversy 
surrounding the Terrorist Surveillance Program, we all must be mindful 
of our duties to uphold the constitutional protections as old as this 
Republic. I do not believe these goals are mutually exclusive.
  The Foreign Intelligence Surveillance Act, commonly known as FISA, 
establishes a distinct system of laws and regulations for the 
Government's ability to legally conduct national security-related 
surveillance of communications. The Intelligence Committee proposal, 
which was reported out on a strong 13-to-2 bipartisan vote, does not 
present the ideal solution to the urgent matter before us, underscoring 
the difficulties and complexities that are presented by the question of 
intelligence surveillance. However, it is a marked improvement over the 
Protect America Act and represents the collective agreement of 13 of 
the 15 members of the Intelligence Committee, both Republicans and 
Democrats. I appreciate the disparate views that many of my colleagues 
on both sides of this aisle espouse, but in the end, the Senate must 
work to achieve its will and to find the common ground that is so 
essential on this issue for our Nation's security. For Congress to be 
relevant, it must ultimately come to a legislative resolution and 
conclusion.
  The underlying premise of FISA recognizes that obtaining a standard 
search warrant through a typical Federal or State court is not 
appropriate when dealing with sensitive security operations and highly 
classified information. In creating separate legal mechanisms for such 
matters, FISA has, for nearly 30 years, relied upon the rulings of the 
special Foreign Intelligence Surveillance Court and continuous 
congressional oversight in ensuring that fourth amendment protections 
against unreasonable searches and seizures are respected. Although FISA 
is and remains an indispensable tool in the war on terror, it was 
written almost 30 years ago--long before the name ``al-Qaida'' rang 
with any significance--and it has begun to show its age.
  FISA was enacted before cell phones, before e-mail, and before the 
Internet, all of which are used today by hundreds of millions of people 
across the globe. Unfortunately, those numbers include terrorists who 
are using these tools for planning, training, and coordination of their 
operations. Put simply, FISA's technology-centered provisions do not 
correspond to the systems and apparati that are used in communications 
today. As Admiral McConnell, Director of National Intelligence, said 
most bluntly and straightforwardly:

       FISA's definition of electronic surveillance [has] simply 
     not [kept] pace with technology.

  But we all know this is not the only backdrop to FISA 
reauthorization. Prior to December 2005, only the party leaders in both 
the House and the Senate, and the chairmen and ranking members of those 
Houses' respective Intelligence Committees--the so-called gang of 
eight--had any knowledge that warrantless surveillance was occurring on 
U.S. soil with neither court approval nor congressional authorization. 
Once the program came to light, the administration asserted it had the 
legal authority to conduct such surveillance anyway, citing 
considerably tenuous interpretations of both article II of the 
Constitution and the 2001 authorization for the use of military force.
  This was not the power-sharing construct between the three branches 
of Government under which FISA had operated for nearly three decades. 
Rather, this was a unilateral exercise of executive branch authority to 
the exclusion of the other two. The use of unchecked executive power 
was neither how the Framers of the Constitution nor the framers of FISA 
intended this matter to be addressed.
  Accordingly, less than 2 months later, I, along with Senators DeWine, 
Hagel, and Graham, introduced the Terrorist Surveillance Act of 2006, 
which called for strict legislative oversight and judicial review of 
the program. A number of colleagues joined the effort with a variety of 
additional proposals to both exert congressional oversight, as well as 
to modernize

[[Page 1008]]

FISA; and the administration, bowing to this collective congressional 
pressure, finally permitted full access to the NSA program by members 
and staff of both Intelligence Committees. Congressional leverage also 
led the Attorney General last January to submit the terrorist 
surveillance program to the requirements of FISA, including appropriate 
review of Stateside surveillance requests by the Foreign Intelligence 
Surveillance Court. At the time this was viewed as a step toward some 
restoration of the rule of law and constitutional principles, and FISA 
reform efforts focused on modernizing the statute for technological 
purposes.
  Yet, as noted in the Intelligence Committee's report on the FISA 
Amendments Act of 2007,

       At the end of May 2007 . . . attention was drawn to a 
     ruling of the FISA court . . . that the DNI later described 
     as significantly diverting NSA analysts from their 
     counterterrorism mission to provide information to the Court. 
     In late July, the DNI informed Congress that the decision . . 
     . had led to degraded capabilities in the face of a 
     heightened terrorist threat environment.

  FISA reform efforts quickly shifted to addressing this gap. Congress 
responded this past August by passing the bipartisan Protect America 
Act, a law which cleared the Senate 60 to 28. Although an imperfect 
statute, it granted the DNI the tools necessary to protect our homeland 
at a time when there were well-documented gaps in our intelligence 
gathering. Congress wisely employed a 6-month sunset to ensure that the 
shortcomings of this temporary law could be explored at length and 
properly corrected. The bill before the Senate today is a product of 
that deliberation, and given all that I have just outlined, clearly the 
time has now come to take precise and concrete action.
  The Intelligence Committee has been guided by its vast expertise in 
overseeing American intelligence operations, and this proposal sorts 
out the confusion of the past several years and replaces legal gray 
areas with clear bright line rules. Central to this revision is the 
role of the FISA Court--a critical step in this process, as the courts 
must play a prominent role whenever fourth amendment concerns are at 
stake.
  The bill rightly maintains the rule that no court order is required 
when targeting communications abroad, and clarifies that this remains 
the case even if, for example, a foreign-to-foreign e-mail transits a 
server located on U.S. soil. However, the bill would, going forward, 
allow for so-called ``umbrella surveillance'' only under the following 
conditions: First, it may be conducted for 1 year. Secondly, the DNI 
and the Attorney General must certify that such operations would target 
only those individuals reasonably believed to be outside of the United 
States. Third, the FISA Court must receive and approve the minimization 
procedures to ensure that any ``inadvertent collection'' is promptly 
destroyed.
  More importantly, where the target is located within the United 
States, or where the target is a U.S. citizen or a permanent resident 
anywhere in the world, the bill now requires that a warrant first be 
obtained from the FISA Court. The FISA Court--only the FISA Court--will 
have the authority to determine that there is probable cause to believe 
that the U.S. person in question is an agent of a foreign power. Only 
then may a warrant be issued, and only then may targeted surveillance 
commence. This is a strong and substantial improvement over the 
provisions of the Protect America Act.
  It is noteworthy that this bill, if passed, would recognize for the 
first time ever the right of a U.S. citizen or permanent resident to be 
free from warrantless surveillance by the U.S. Government even when 
such person is abroad. As our colleague Senator Wyden said in the 
Washington Post on December 10, ``this is a change that was 
contemplated back in 1978 but which never received the attention 
necessary from Congress to become law.''
  Finally, the bill authorizes the inspectors general of the Department 
of Justice and elements of the intelligence community to conduct 
independent reviews of agency compliance with the court-approved 
acquisition and minimization procedures--adding another independent 
check to ensure that the agencies charged with implementing the program 
are in fact complying with the court order and minimizing any 
information that was inadvertently collected.
  This is not to say that the Judiciary Committee substitute was not 
superior in some regards. For example, it contained far stronger 
language asserting that the FISA Court and the Federal Criminal Code 
are the exclusive means by which the U.S. Government may conduct 
surveillance, counteracting allegations by the administration that the 
2001 authorization of the use of military force provided an alternate 
statutory authority.
  To be clear, the Intelligence Committee bill does state that such a 
restriction applies to ``electronic surveillance.'' In fact, I felt 
strongly about this provision, and that is why I joined other 
colleagues on the Intelligence Committee in submitting additional 
comments regarding this provision--specifically that FISA is the 
exclusive means by which the U.S. Government may conduct surveillance. 
Yet the Judiciary Committee bill took this one step further, expanding 
exclusivity to cover any ``communications or communications 
information,'' a broader term meant to reach even those communications 
not covered under the more narrowly defined category of ``electronic 
surveillance.''
  Yet, on balance, the Intelligence Committee legislation reflects the 
committee's expertise in this field, and it presents a bipartisan 
approach for restoring order to the state of the law surrounding 
Government surveillance.
  As the Intelligence Committee report noted, the committee held seven 
hearings in 2007 on these issues, received numerous classified 
briefings, propounded and received answers to numerous written 
questions, and conducted extensive interviews with several attorneys in 
the executive branch who were involved in the review of the President's 
program. In addition, the committee received formal testimony from the 
companies alleged to have participated in the program and reviewed 
correspondence that was provided to private sector entities concerning 
the President's program.
  The committee secured IG reports and the orders and opinions issued 
by the FISA Court following the shift of activity to the judicial 
supervision of the FISA Court and invited comments from experts on 
national security law and civil liberties. The committee also examined 
extensive testimony given before other committees in the last several 
years and visited the NSA, carefully scrutinizing the program's 
implementation.
  The underlying committee bill vests significant authority--and 
rightfully so--in the FISA Court to authorize targeting of U.S. persons 
and to sign off on minimization procedures of any nontargeting 
surveillance. It further modernizes FISA so that its terms apply 
rationally to today's technology, and streamlines procedures to ensure 
that the men and women in our intelligence community can maximize their 
focus on detecting threats to our homeland. It does all of this while 
employing the Intelligence Committee's technical expertise to avoid any 
unintended consequences.
  I wish to focus the remainder of my remarks on what has become the 
flashpoint of controversy--whether to grant retroactive immunity to the 
numerous telecommunications companies who have been sued for allegedly 
providing private customer information to the Government in violation 
of the law. I believe that this narrow, limited grant of immunity is a 
proper course of action for these reasons:
  First, it is critical to note and understand that a grant of immunity 
to telecom providers for assisting the Government is not a novel 
concept, but rather a longstanding component of existing law. 
Specifically, the Federal Criminal Code already states that ``no cause 
of action shall lie in any court against any provider . . . for 
providing information, facilities, or assistance'' to the Federal 
Government in conducting electronic surveillance if the company is 
presented with either a court order or a certification signed by

[[Page 1009]]

the Attorney General stating that ``no warrant or court order is 
required by law, that all statutory requirements have been met, and 
that the specific assistance is required.''
  Why, then, must the bill before us contain an immunity provision for 
communications firms? The answer is that they are unable to invoke it 
because the very existence of whether a particular company--or any 
company--did or did not participate in any alleged surveillance has 
been designated as a state secret by the U.S. Government. This places 
the telecom companies in a Catch-22 scenario: if, hypothetically, a 
company did assist the Government, it cannot reveal that fact under the 
State Secrets Doctrine, and thus cannot claim the benefit of immunity; 
conversely, if a company did not provide any alleged assistance, it 
still cannot demonstrate that fact to conclusively dismiss the lawsuit, 
again because of the mandates of the State Secrets Doctrine. In the 40-
plus active lawsuits, defendant telecom companies are in a ``no-win 
situation.''
  To those who may ask why Congress should concern itself with 
addressing these pending lawsuits, I would answer that the credibility 
and effectiveness of America's intelligence community depends upon it. 
Particularly in the wake of the devastating attacks of September 11, 
2001, any American company that, when reportedly presented with proper 
certification, assisted the Government in a matter of national security 
was doing so, in all likelihood, in the best interests of our Nation. 
And punishing such cooperation through subsequent lawsuits could have 
drastic future consequences.
  This position has been asserted by former Attorney General John 
Ashcroft and former Deputy Attorney General James Comey, both of whom 
had well-documented misgivings about the administration's approach to 
surveillance. This view is also held by the distinguished chairman of 
the Intelligence Committee, who on October 31 of last year wrote in the 
Washington Post that the telecom lawsuits are ``unfair and unwise. As 
the operational details of the program remain highly classified, the 
companies are prevented from defending themselves in court. And if we 
require them to face a mountain of lawsuits, we risk losing their 
support in the future''--a development that Chairman Rockefeller 
assessed would be ``devastating to the intelligence community, the 
Justice Department and military officials who are hunting down our 
enemies.''
  The immunity provision in this bill is narrow and limited. First, it 
is only retroactive. It clearly delineates what types of surveillance 
require a search warrant from the FISA Court and what types do not. The 
very fact that the FISA Court will be involved contrasts starkly with 
the ``gray area'' under which the Terrorist Surveillance Program had 
operated prior to January of last year. This clarity will thus also 
make it clear as to whether a telecom company is complying with a 
lawful request and thus whether it will be entitled to statutory 
immunity.
  As the Intelligence Committee report underscored, the action the 
committee proposes should be understood by the executive branch and 
provided as a one-time response to an unparalleled national experience 
in the midst of which representations were made that assistance to the 
Government was authorized and lawful.
  In doing so, the underlying legislation acts prospectively to guard 
against any future infringements of constitutional liberties that might 
occur. By contrast, striking title II will accomplish nothing 
constructive in the future. To the contrary, as I indicated, it may be 
counterproductive by discouraging future cooperation by private 
entities.
  Second, the bill only grants immunity for civil lawsuits. It would 
not provide amnesty to anyone--the telecommunications companies, 
Government officials or any other party--who engaged in any potential 
criminal wrongdoing. Should any criminal allegations arise against 
telecommunications officers, Government officials or others, such 
investigations would not be prevented by this provision. Nothing in 
this bill is intended to affect any of the pending suits against the 
Government or individual Government officials.
  Third, this provision does not make any determination as to whether 
the program in question was legal. It only grants the 
telecommunications carriers immunity if the Attorney General certifies 
those carriers cooperated with intelligence activities designed to 
detect or prevent a terrorist attack and that such a request was made 
in writing and with the assertion that the program was authorized by 
the President and determined to be lawful.
  Finally, this bill provides the fairest course of action for 
addressing corporations that, when presented with an urgent official 
request at a critical period for our Nation's security, acted in a 
patriotic manner and provided assistance in defending this Nation. 
These companies were assured that their cooperation was not only legal 
but necessary and essential because of their unique technical 
capabilities. Also note that the President initially authorized the NSA 
program in the early days and weeks after the September 11 attacks, 
attacks that shocked our Nation and forced us to quickly react and 
adjust to the new reality of the 21st century, where terrorism was 
occurring in our own backyard. If a telecommunications company was 
approached by Government officials asking for assistance in warding off 
another terrorist attack and those Government officials produced a 
document stating the President had authorized that specific activity 
and that activity was regarded as legal, could we say the company acted 
unreasonably in complying with this request?
  In the interest of protecting our Nation in this new environment of 
the 21st century and bringing stability and certainty to the men and 
women who are in our intelligence community as they carry out their 
very vital and critical missions in defending and preserving our 
freedoms at home, I urge passage of FISA reform that is bipartisan, 
that respects an active balance among all branches of Government, that 
will establish a key role for the courts going forward in evaluating 
surveillance measures in the United States and against U.S. persons 
abroad and that we will allow the intelligence community to devote its 
full efforts to fighting and winning the war on terror.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Pryor). The Senator from Oklahoma.

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