[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 1020-1021]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. BOND. Mr. President, I thank my colleague from Georgia. I thought 
maybe, if anybody is still listening, we would talk a little bit about 
the intent of the Foreign Intelligence Surveillance Act. I hope maybe 
we can clarify some of the misunderstandings.
  First, I believe that when the distinguished Senator from California, 
a valued member of the committee, Mrs. Feinstein, spoke on the origins 
of FISA, she correctly noted that it was created, at least in part, in 
response to the disclosed abuses of domestic national security 
surveillance. However, as the legislative history makes clear, FISA was 
never intended to regulate the acquisition of the contents of 
international or foreign communications where the contents are acquired 
by intentionally targeting a particular known U.S. person who is in the 
United States.
  The legislative history states:

       This bill does not afford protections to U.S. persons who 
     are abroad, nor does it regulate the acquisition of the 
     contents of international communications of U.S. persons who 
     are in the United States, where the contents are acquired 
     unintentionally. The Committee does not believe this bill is 
     the appropriate vehicle for addressing this area. The 
     standards and procedures for overseas surveillance may have 
     to be different than those provided in this bill for 
     electronic surveillance within the United States, or targeted 
     against U.S. persons who are in the United States.

  In essence, then, FISA, as originally drafted, was a domestic foreign 
intelligence surveillance act. Congress was concerned about targeting 
persons inside the United States with interceptions conducted inside 
the United States.
  The FISA Act amendments legislation we are considering today is a 
very different animal, and it could be better characterized as an 
international foreign intelligence surveillance act. The bill is 
concerned mainly with targeting persons outside the United States when 
interception might occur inside the United States. What do I mean by 
that? The legislation will regulate how the President may conduct 
electronic surveillance of foreign terrorists operating in foreign 
countries when their communications just happen to pass through the 
United States on wire communications networks.
  This strange interference with the intelligence community's and, 
indeed, the President's authority to conduct foreign intelligence 
activities appears to arise from an overabundant concern about the 
``rights'' of persons in the United States whose communications are 
incidentally collected when they talk to terrorists overseas.
  It is odd that we are creating a new law in this area that departs 
from the original construct of FISA because in the international 
surveillance realm, there have been no significant abuses of the 
intelligence community's ability to collect overseas foreign 
intelligence.
  Unfortunately, two factors have compelled us to make these changes to 
FISA. First, we need to ensure that the critical intelligence gaps 
identified by the DNI last year do not reappear.
  The Protect America Act effectively closed those gaps last summer, 
but there was bipartisan agreement that we could improve on its 
provisions, especially in the area of carrier liability protection, and 
that is what our committee did.
  Second, this legislation is also required because we must address the 
practical reality that electronic communications service providers are 
now insisting on a formal process to compel cooperation in the foreign 
arena in order to obtain prospective liability protection similar to 
that enjoyed for domestic intelligence and criminal wiretaps. That is 
why the carrier liability protection and prospective liability 
protection provisions of this bill are so important.
  Another area where we are departing from the original intent of FISA 
is the targeting of U.S. persons abroad. FISA, as passed in 1978, left 
the targeting of American citizens abroad to the President's Executive 
order applicable to the intelligence community and the procedures 
approved by the Attorney General. In this legislation for the first 
time in history, we build into the FISA new laws that govern the 
targeting of U.S. persons overseas who are agents, officers or 
employees of foreign powers when a significant purpose of the 
acquisition is to obtain foreign intelligence information.
  These new procedures are sometimes referred to as 2.5 procedures 
because they are based in part upon section 2.5 of Executive Order 
12333, which has long governed the electronic surveillance of U.S. 
persons overseas by requiring the approval of the Attorney General 
based upon a finding of probable cause that the target is a foreign 
power or agent of a foreign power.
  These 2.5 changes were part of the overall bipartisan compromise and 
now require prior court review by the Foreign Intelligence Surveillance 
Court of all surveillance conducted by the U.S. Government targeting 
U.S. persons overseas. Americans will still be on their own with 
respect to being surveilled by foreign governments overseas, but at 
least they can remain confident that if they are not working for a 
foreign power as a spy or terrorist, their own Government will not be 
listening to their conversations.
  The last area that merits discussion on the issue of FISA's original 
intent is the Foreign Intelligence Surveillance Court. We refer to it 
as the FISC. According to section 103 of FISA, the FISC was established 
as a special court with nationwide jurisdiction to ``hear applications 
for and grant orders approving electronic surveillance anywhere within 
the United States.'' That is it.
  As evidenced by the application and order requirements in FISA, each 
application is for a ``specific target'' for the significant purpose of 
obtaining foreign intelligence information.
  The court was originally structured so its seven judges would provide 
geographical diversity. The post-9/11 expansion of the FISC from 7 to 
11 judges enhanced that diversity. Judges are nominated by the chief 
judge of their circuit to promote ideological balance on the FISC.
  It was clearly recognized that only one or two judges would be in 
Washington, DC, on a rotating basis at any given time. This was 
intended to discourage judge shopping and make it unlikely that an 
application for the extension of an order would be heard by the same 
judge who granted the original order.
  The FISC was never envisioned as a court that would or should handle 
protracted litigation. It possesses neither the staff nor the 
facilities to preside over such litigation. Moreover, it is very likely 
that such prolonged litigation would interfere with the main business 
of the FISC, which is to ensure the timely review and approval of 
individual operational FISA applications for court orders.
  We need to remember that the FISC was set up to review domestic 
electronic surveillance and later physical searches, an area that has 
numerous parallels to the similar reviews conducted by district court 
judges when they are asked to authorize criminal wiretaps. As I 
mentioned previously, even the FISC has acknowledged its lack of 
expertise in the foreign-targeting context, which is, they say, better 
left to the executive branch.
  The Court's recent opinion in the case of In re: Motion for Release 
of Court Records stated:

        . . . even if a typical FISA judge had more expertise in 
     national security matters than a typical district court 
     judge, that expertise would still not equal that of the 
     Executive Branch, which is constitutionally entrusted with 
     protecting the national security.

  We should be very hesitant to disregard the Court's own assessment of 
its competency in the overseas intelligence realm, especially given the 
original intent of FISA. I urge all my colleagues to be mindful of the 
Court's own words as we consider some of the proposed amendments, 
particularly those that would allow the court to assess compliance with 
minimization procedures used to target foreign terrorists. For example, 
amendment Nos. 3920 and 3908, and would require the court to determine 
the good faith of those providers who allegedly assisted the Government 
with the Terrorist Surveillance Program. As examples, amendment Nos. 
3919 and 3858.

[[Page 1021]]

  In conclusion, I offer these observations mainly to ensure the record 
reflect the legislation departs from FISA's original intent in a 
deliberate and carefully tailored manner. While there are some 
practical considerations, including a desire for a strong bipartisan 
bill, that have driven the need for this legislation, we should be 
extremely careful about adding new or changing existing provisions in 
the bill that could negatively impact the operational effectiveness of 
our intelligence community or provide unwarranted protection to 
overseas terrorists and spies.
  Mr. President, I will not propound a unanimous consent request now, 
but I advise my colleagues that if we cannot reach agreement, I will 
ask unanimous consent that all amendments to the FISA bill be brought 
up and decided at a 60-vote threshold so we can move forward on this 
important legislation. I am not making that request now. I alert my 
colleagues on the other side of the aisle, I hope that will not be 
necessary, but we have not had a response to our proposal on how we 
move forward. We have been at this a week now, and we only have, at 
best, two full working weeks before we go on recess. We must get this 
bill done, sent to the House, conferenced, and passed before we leave 
for the President's Day recess. Failure to do so could leave our 
intelligence community without the tools they need and, thus, America 
without the protection it needs.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Menendez). The Senator from Colorado.

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