[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 1017-1019]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. CHAMBLISS. Mr. President, I come to the floor this afternoon to 
talk for a minute about the pending FISA legislation.
  As a member of the Senate Intelligence Committee, I have been very 
pleased to be a part of the bipartisan process in which Chairman 
Rockefeller and Vice Chairman Bond have crafted a very delicate, a very 
sensitive, yet important piece of legislation. Probably the most 
important piece of legislation that the Intelligence Committee has 
dealt with over the last several months or even years. Certainly, it is 
one of the most important pieces of legislation to come to the floor of 
this body this year.
  This FISA legislation gives tools to our intelligence community which 
allow our brave men and women--who stand at the forefront today of the 
war on terrorism in every part of the world--to gather information from 
those who are plotting, planning, and scheming to kill and harm 
Americans. The tools with which the intelligence community seeks to get 
in this particular instance deal with their ability to gather 
information, primarily through what we refer to as electronic 
surveillance, from terrorists, or bad guys, who are overseas 
communicating to other individuals who are also overseas. There is no 
question that in order for our intelligence or law enforcement 
officials to be able to gather information from communications of 
persons located within the United States, it is necessary that they 
first obtain a court order. Let's make that very clear. We must first 
obtain a court order to conduct surveillance against individuals 
located within the United States. What we are seeking to do in this 
legislation is to give our intelligence community the ability to 
collect information without a court order from people who are planning 
attacks against the United States and located outside the United 
States. It is those individuals whom we seek to gather information from 
and prohibit from having the capability to kill and harm Americans. 
This legislation is a crucial piece in the puzzle to enable the 
intelligence community to gather information from these individuals.
  This particular piece of legislation has been debated in the 
Intelligence Committee for 10 months and was voted out of the 
Intelligence Committee on a very bipartisan vote of 13 to 2. I actually 
voted against several of the amendments offered in the Intelligence 
Committee. But at the end of the day, even though some of the 
amendments I voted against were accepted and were included in the bill, 
I believed it was such an important piece of legislation and put such 
necessary power and authority into the hands of the intelligence 
community that I voted to support it.
  I commend my vice chairman, Senator Bond, who is on the floor with me 
now, for his leadership. I would simply ask the vice chairman: We 
started debate on this bill on the Senate floor in December, have been 
debating this bill this week, as well as last week. Where are we? What 
is the holdup in passing this critical legislation? What is the 
problem? Why can't the Senate give our intelligence community the tools 
they need to protect Americans?
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, if I may respond to my colleague from 
Georgia, who is a very valuable member of the Intelligence Committee 
and who brings expertise from the other body and who has been a 
valuable contributor, when we passed the FISA bill in what is called 
the Protect America Act in August, everybody agreed that it should be 
60 votes because this is a very important but very controversial bill 
that has to be adopted by 60 votes. Thus, we have asked that amendments 
to this bill be considered under a 60-vote rule.
  It is very common in this Senate to demand 60 votes to be sure it is 
a nonpartisan bill. So far, we have not been able--although we have 
provided several alternatives to our friends on the other side--to get 
a clear way of going forward. So that is why we are stuck, waiting to 
find a reasonable manner of proceeding.
  I would ask my colleague if, in fact, he feels we had adequate 
contact with, interaction, and advice from the intelligence community 
and whether it is important to have the advice and assistance of those 
who are experts in and know the operations of electronic surveillance, 
to have a role in our drafting of the legislation.
  Mr. CHAMBLISS. Mr. President, I would respond to the vice chairman, 
the Senator from Missouri, that without question, under his leadership 
and the leadership of Senator Rockefeller, the chairman, we have 
received important input and had dialogue with the intelligence 
community throughout the drafting stages of this legislation. We not 
only had the top leadership, including the DNI, the Director of the 
NSA, the head of the CIA, and folks from the FBI in to testify before 
the Intelligence Committee, but also every member of the Senate 
Intelligence Committee has had the opportunity to visit these agencies 
and see firsthand where and how this information is gathered. We have 
had the opportunity to see firsthand the methods our intelligence 
community uses and the professionalism they exhibit. All of this is 
very highly classified. Our committee deals with all of this 
information in a very sensitive and classified manner. But the fact is, 
we have had testimony and firsthand accounts from top to bottom--from 
the individuals who physically gather the information all the way to 
the top leadership. Members of the committee on both sides of the aisle 
have asked tough questions to the individuals who have presented 
testimony before the committee. Everybody had the opportunity to have a 
free and open dialog and debate with those individuals.

[[Page 1018]]

  Again, based upon what our intelligence experts had to say, this 
legislation was crafted and debated within the committee. Without 
question, there was ample opportunity for every member to inquire of 
all of those in the intelligence community of why we need this 
legislation, why it is so critically important, where we would be 
without it, and why we need it to make sure we are able to stop those 
individuals who seek to do harm to Americans around the world.
  Mr. BOND. Mr. President, I would ask the Senator from Georgia further 
why it is so important to have the intelligence community operatives 
and lawyers involved in drafting the measure. We had several good ideas 
offered in the committee that turned out not to be workable. I would 
ask my colleague why he thinks it is important to have the direct 
involvement by the intelligence community experts as to how to craft 
not only the legislation but amendments to it.
  Mr. CHAMBLISS. Mr. President, I would respond to the distinguished 
Senator from Missouri that without question, it is necessary, from a 
legal standpoint and from a practical standpoint, to get testimony and 
advice from the legal experts and our operators in the intelligence 
community to make sure there are no unintended consequences that come 
out of the final product from the Intelligence Committee.
  As the Senator will recall, we had some very heated debates on a 
couple of amendments within the committee. Very good debate on both 
sides of the issues. Sometimes, there were Democrats arguing with 
Democrats, other times Republicans were arguing with Republicans, but 
that is the nature of the Intelligence Committee. It operates in a 
bipartisan fashion to make sure we look at every aspect--legal, 
technical, as well as practical--to make sure we get it right. As the 
vice chairman knows and has been working to correct, some of the 
amendments adopted in committee were well intentioned but harmful to 
our collectors. With the input of the intelligence community the 
manager's amendment has been able to correct those unintended 
consequences while preserving the intent of the amendments. In this 
instance, I think we did get it right through engaging with our 
intelligence experts.
  Mr. BOND. Mr. President, would the Senator from Georgia say that this 
bill not only enables the intelligence community to move forward, but 
it provides additional protections for Americans, for their privacy and 
constitutional rights? I would ask him if he thinks those amendments 
have been incorporated in the legislation before us and what he thinks 
the final product of the Intelligence Committee is as a result.
  Mr. CHAMBLISS. Mr. President, I thank the Senator for his question. I 
would simply say that, again, there is just no doubt this legislation 
goes beyond the Protect America Act and the current FISA statute to 
protect American's privacy and constitutional rights. After all the 
discussion, after all the testimony that was presented, after all the 
debate that took place within the confines of the Senate Intelligence 
Committee, we found that for 25 years, the members of the intelligence 
community have been able to conduct surveillance against Americans 
overseas without a court order. I would point out that they did this in 
a professional manner and reduced the risk of compromising American's 
privacy through established minimization procedures. Since FISA's 
original enactment, the intelligence community has used minimization 
procedures to ensure that the information being gathered from Americans 
was necessary foreign intelligence information and from individuals who 
are foreign agents. This legislation subjects this type of surveillance 
to a court order, providing new protections for Americans.
  One purpose of FISA reform was to ensure that the ultimate and final 
language we came up with would provide additional privacy protections 
to American citizens, both inside the United States as well as outside 
the United States.
  Mr. BOND. Mr. President, I would ask, isn't this the first time any 
of the FISA bills--even the predecessor FISA bill or the Protect 
America Act--have included privacy protections for Americans overseas?
  Mr. CHAMBLISS. Mr. President, I would respond to the distinguished 
Senator from Missouri that this is the first time these protections 
have been enacted. This bill also prohibits reverse targeting.
  This is the first time in the history of our intelligence community 
that a FISA court order for U.S. persons is required regardless of 
where that individual is located. So if a U.S. citizen who goes abroad 
is an agent of a foreign power or a terrorist seeking to communicate, 
our intelligence community must first get a court order before they can 
conduct any electronic surveillance, irrespective of whether that 
person is inside the United States or outside. For the first time in 
the history of our intelligence operations, this will be the case. So 
the added protections of the fourth amendment, which normally are not 
needed for a person located outside the United States, are applied in 
this particular piece of legislation.
  Mr. BOND. Mr. President, my colleague mentioned reverse targeting. I 
would ask him, after debate on both sides and suggestions from both 
sides, did we not also include an express prohibition of reverse 
targeting, as well as providing court review, as he has stated, of 
minimization, acquisition, and certification procedures? I would ask 
him if reverse targeting is prohibited and what reverse targeting 
really means.
  Mr. CHAMBLISS. Again, I thank the vice chairman for his question. The 
issue of reverse targeting is directly addressed in the bill--it is 
prohibited explicitly. Reverse targeting refers to the hypothetical 
situation where our intelligence community targets a foreigner overseas 
solely to get a U.S. persons' communications between that foreign 
person and a U.S. person. The targeting of the foreign person is 
allowed without a court order. The targeting of a person located in the 
U.S. is not allowed unless a court order is first obtained. So if 
someone in the intelligence community targeted a foreigner with the 
intent to listen in on the U.S. citizen, that is reverse targeting. 
This is prohibited in this legislation. Again, this is the first time 
we have seen that protection put in the statute.
  So as a lawyer still recovering from practicing law sometimes, I 
think, it is the first time that I can remember in all of my years 
since my days of constitutional law at law school where the United 
States applies fourth amendment rights to individuals who are outside 
of the United States.
  Mr. BOND. Mr. President, I would ask my colleague--he just talked 
about the new protections for U.S. persons overseas: Prohibition of 
reverse targeting, court review of acquisition, minimization, and 
certification procedures.
  Now, some have said we just ought to extend the Protect America Act. 
As a sponsor of the Protect America Act, I thought it was pretty good. 
But if we were simply to extend the Protect America Act, would that not 
eliminate or at least delay any of the additional protections against 
reverse targeting, providing court review, and preventing reverse 
targeting of U.S. persons?
  Mr. CHAMBLISS. Again, Mr. President, I respond to the vice chairman 
that reverse targeting is not prohibited under the Protect America Act. 
It is a procedure that some allege could occur under the Protect 
America Act, but which is clearly prohibited under this act.
  Anybody who is concerned about extending and protecting the rights of 
individuals ought to be a lot more concerned about getting this bill 
enacted into law than they should be about extending the Protect 
America Act. So this is one of those situations where it is totally 
unexplainable to me for someone to say: I don't think we ought to pass 
this law because it doesn't go far enough, when it goes further than 
current law and the Protect America Act which we already have voted 
for. Now there is an attempt being made to

[[Page 1019]]

extend the Protect America Act for an additional period of time.
  Mr. BOND. Mr. President, I ask my colleague why it has taken so long 
to get us to this point when the Protect America Act expires on 
February 1?
  Mr. CHAMBLISS. As the Senator has said on the floor over the last 
several days, we are ready to pass this bill tonight if our friends on 
the other side of the aisle will simply get together with us and let us 
vote it up or down.
  When it comes to the issue of 60 votes, I have only been in this body 
for 5 years, but I cannot think of one single major piece of 
legislation that I have seen on the floor of the Senate during those 5 
years that didn't require 60 votes for all major amendments. I was the 
manager of the farm bill recently. That is a long way away from this 
sophisticated piece of legislation, but every major amendment we had 
required 60 votes. That was the most recent, large piece of legislation 
we have had on the floor. So every time we have a major bill, a 60-vote 
requirement is reasonable and is going to be called for. I think for us 
not to have it in this particular situation would be extremely unusual.
  Mr. BOND. Mr. President, I might ask, isn't there a danger that if 
there is an amendment not subject to the 60-vote point of order, it is 
possible, with various Senators absent, that we could adopt, perhaps, 
on a 47-to-46 vote, an amendment that would make it impossible for the 
intelligence collection required by the intelligence community to go 
forward, and if such were adopted, what would happen to the 
legislation?
  Mr. CHAMBLISS. Mr. President, if I may respond, the Senator is 
exactly right. If we did not have a 60-vote requirement on amendments, 
or dealing with any issue in this bill, then it is possible that we 
could adopt amendments, by less than a majority of the Members of the 
Senate, which could hamper our intelligence community. And on this 
critical, sensitive, most important piece of legislation, for us to 
pass an amendment without a 60-vote requirement really makes no sense 
at all.
  I think all of us would certainly be remiss and derelict in our 
duties if we didn't insist on a 60-vote requirement.
  Mr. DURBIN. Will the Senator yield for a question?
  Mr. BOND. Of course.
  Mr. DURBIN. Mr. President, is the Senator proposing to change the 
Senate rules that all amendments will now take 60 votes? Is that the 
proposal before the Senate?
  Mr. BOND. Mr. President, if I may respond, as my friend from Georgia 
pointed out, in order to pass very important legislation such as this, 
it has been the practice in this body to require 60 votes, and as my 
colleague from Georgia just said, the farm bill passed with 60 votes on 
the amendments. When we passed the Protect America Act, we had to get 
60 votes.
  This bill could be enacted into law and will undoubtedly have to have 
60 votes to be signed by the President. I say to my distinguished 
colleague from Illinois, if there are changes made with less than a 60-
vote margin, if they destroy the ability of the intelligence community 
to operate the collection system as we have prescribed, then that bill 
will never be signed into law. We would have to start all over again, 
and we would thus be leaving our intelligence community without the 
tools to protect us.
  We are not saying we are changing the rules of procedure. We are 
following the practice that has been adopted in this Senate.
  Mr. DURBIN. If the Senator will further yield, I am new here; I have 
only been here 11 years. So I am trying to learn a little about how 
this works. I recall that somehow the Republic survived and the Nation 
did well, we kept our armies in the field and built our highways and 
passed our bills, and we did that for a long period of time without 
requiring 60 votes on every amendment. Then there came this age of the 
filibuster, where the Republican minority last year had 62 filibusters, 
breaking a record in the Senate. Well, to stop the filibuster, you need 
60 votes.
  So now I assume what the Senator is suggesting is that we are in a 
new age in the Senate, and it is going to take 60 votes for everything. 
If that is the proposal, I suggest a rules change. Let's get on with it 
and find out if there are enough votes here to make that the rule. If 
it is going to be the age of filibusters again this year, the public 
won't like it much. We were in the minority not that long ago.
  But if that is your goal, if you want to make this a 60-vote 
requirement, it is a different Senate, and it will be, unfortunately, 
adding to the frustration many people have when they look at Washington 
and say: Why don't you pass something, or why don't you do something 
about health care or about other issues? We will have to tell them we 
don't have 60 votes.
  Mr. BOND. Mr. President, if that was a question--and I assume it was 
a question--let me say that requiring 60 votes is something which has 
occurred frequently in previous years, when this side had the majority 
and the other side was in the minority. We found that it was very 
difficult to pass legislation without 60 votes. Thus, we have seen that 
practice before.
  But this is not an ordinary piece of legislation. Had we dealt with 
this in a timely fashion, this could have been handled on a different 
basis. But the Director of National Intelligence, whom I will refer to 
as the DNI, submitted to the Intelligence Committee, in April, a 
measure that he felt was necessary to modernize FISA. That bill was not 
brought up. The DNI testified in person before the committee in open 
hearing in May. Despite my request, no legislation was developed in the 
committee. The DNI came before the Senate in closed session, in a 
confidential room, in July of this year, to say how important it was. 
No bill came out of the Intelligence Committee. So the DNI proposed a 
short-term fix, which I brought to the floor on his behalf at the end 
of July, the first of August, and we were able to pass the bill, but we 
had to pass on a 60-vote basis.
  When there are very important pieces of legislation, with strong 
feelings on both sides--as my colleague from Georgia has pointed out, 
he handled a very important and difficult farm bill--those measures had 
to have 60 votes.
  Now, the fact is, we could have a bunch of simple majority votes, and 
there are many we can take on a simple majority. But if there are 
amendments which, if adopted, would prevent the bill from being passed 
and signed into law, as a practical matter, it makes sense to have a 
60-vote margin.
  We are waiting for a response to the offers we have made to the other 
side because, frankly, February 1 is coming. I hope we will agree on 
it. I understand the House is sending us a 15-day extension. I say to 
my friend from Illinois that I hope we can adopt the 15-day extension 
and a collaborative agreement between the two sides on how we are going 
to proceed to finish this bill.
  I see the distinguished assistant majority leader has some 
information. I am happy to yield to him for that.

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