[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 1388-1390]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 FOREIGN INTELLIGENCE SURVEILLANCE ACT


                           Amendment No. 3913

  Mr. HATCH. Mr. President, I wanted to briefly mention my opposition 
to amendment No. 3913 offered by the Senator from Wisconsin. This 
amendment relates to reverse targeting, which is a theory that the 
Government could target a foreign person abroad when the real intention 
is to target a U.S. person, thus circumventing the need to get a 
warrant for the U.S. person. Quite simply, reverse targeting is already 
considered illegal under FISA. Going even further, the Intelligence 
Committee bill has a very explicit prohibition against reverse 
targeting. The amendment offered by the Senator from Wisconsin adds 
subjective language which completely alters the meaning of the original 
bipartisan provision.
  I asked Attorney General Mukasey this during a hearing on Wednesday, 
and here is our exchange.

       HATCH: Now the topic of reverse targeting has been 
     mentioned often during the FISA reform debate. From an 
     intelligence perspective, reverse targeting makes no sense. 
     From an efficiency standpoint, if the government was 
     interested in targeting an American, it would apply for a 
     warrant to listen to all of that person's conversations, 
     wouldn't it? Not just his conversations with terrorists 
     overseas?
       MUKASEY: Correct.
       HATCH: Now, I asked General Wainstein about this during the 
     Judiciary Committee hearing last October, and he reiterated 
     the government's view that FISA itself makes reverse 
     targeting illegal. Does the DOJ still consider reverse 
     targeting illegal under FISA?
       MUKASEY: Absolutely.
       HATCH: Are you aware of any instances of intelligence 
     analysts utilizing reverse targeting?
       MUKASEY: I am not aware of any such instances.

  We are enacting national security legislation, and it is our 
responsibility to ensure that this bill does not lead to unintended 
consequences which provide protections to terrorists. This amendment is 
absolutely unnecessary, and I urge my colleagues to oppose it.


                           Amendment No. 3920

  Mr. President, I wish to say a few remarks with regard to my dear 
friend, Senator Whitehouse's amendment to authorize the FISC, the 
Foreign Intelligence Surveillance Court, to assess compliance with 
minimization techniques. I rise to express my opposition to the 
Whitehouse amendment No. 3920.
  My opposition to the Whitehouse amendment is related to the totality 
of this bill. This is an amendment that greatly expands the Foreign 
Intelligence Surveillance Court's jurisdiction. Keeping in mind that 
the bill before us already expands FISC jurisdiction of foreign 
collection to an unprecedented high historical level, this amendment 
tips the balance and could lead to real-life instances of intelligence 
analysts' operational decisions being second guessed by the court.
  The original approach and goals of this legislation were simple and 
twofold. Goal No. 1: Wire communications taking place in 2008 should 
receive the same treatment as radio communications taking place in 
1978; and goal No. 2: Our intelligence community's sources and methods 
should not be subject to exposure by litigation brought about by 
hearsay and innuendo.
  I am pleased the legislation before us provides more protections to 
American citizens than any intelligence bill in my recent memory, and 
certainly more than the original FISA law.
  Over the last several months, a great deal of attention has been 
given to the FISC, the Foreign Intelligence Surveillance Court. The 
FISC was created by the original FISA law, and its jurisdiction was 
extremely limited by that law. Here is what the FISC was created to do.
  Foreign Intelligence Surveillance Court: ``A court which shall have 
jurisdiction to hear applications for and grant orders approving 
electronic surveillance.''
  This jurisdiction is purposefully limited, as the task of reviewing 
applications to intercept electronic communications is among the most 
important tasks our Government can do to protect our country and its 
citizens. Terrorists have to communicate to plan and execute attacks, 
and our interception of these communications is paramount to stopping 
the next attack.
  The jurisdiction of the FISC is greatly expanded by this legislation. 
Combined with other provisions in this bill, the new oversight created 
is prevalent and comprehensive. Since the breadth of this new oversight 
is critical when determining the necessity of the amendment we are 
debating, let's look at the oversight created by this legislation.
  Let me read these five charts.
  No. 1, for the first time the FISC will review and approve 
minimization procedures used by the intelligence community.
  No. 2, for the first time the FISC will review and approve targeting 
procedures used by the intelligence community. The FISC will determine 
whether the procedures are reasonably designed to ensure targeting is 
limited to persons outside the United States.
  No. 3, for the first time, a court order will be required to target 
U.S. persons regardless of where they are in the world--for the first 
time.
  No. 4, for the first time the Attorney General and the Director of 
National Intelligence will be required to assess the intelligence 
community's compliance with court-approved targeting and minimization 
procedures. These assessments must be provided to the FISC and 
congressional Intelligence Committees.
  No. 5, new congressional oversight--for the first time Congress is 
creating statutorily required inspector general--that is the Department 
of Justice and intelligence elements--semiannual assessments of 
compliance with court-approved targeting and minimization procedures. 
These assessments must be provided to congressional Intelligence 
Committees.
  Now, given the staggering amount of new oversight, we should be very 
careful when creating mechanisms which could negatively impact our 
intelligence analysts, particularly when these mechanisms provide no 
benefit, in this case, to the privacy of American citizens.
  The intelligence community has a great deal of experience in the 
techniques used to minimize incidental communications, and very 
detailed procedures for handling these communications are contained in 
the United States Signals Intelligence Directive 18, which has been in 
effect for over 28 years.
  Remember, the Government is gathering information relating to foreign 
intelligence in order to protect national security, not necessarily for 
criminal prosecution. That is why different procedures are necessary. 
Otherwise, all national security information gathering would be changed 
to fit within the procedures of title III criminal wiretaps, which is 
impossible.
  Minimization techniques deal not just with retention and 
dissemination, but with acquisition. Analysts make decisions up front 
whether to acquire, keep, or share U.S. person information based on 
whether it has foreign intelligence value.
  This means if a judge is reviewing compliance with minimization 
procedures, this review is much more than a factual check. The judge is 
not limited to simply making sure that technical and administrative 
guidelines are followed. Rather, this amendment could allow a judge to 
question specific decisions by intelligence analysts on why they chose 
to acquire, keep, or share certain communications.
  Now this begs the question: Are judges better trained in intelligence 
collection than the intelligence analysts whose job it is to repeatedly 
perform this task? Not only do I think the answer is no, but we should 
remember what the FISC said in their recently publicly released 
opinion, which is only the third public opinion released in the history 
of the Foreign Intelligence Surveillance Court.
  Here is what the FISC said:

       Although the FISC handles a great deal of classified 
     material, FISC judges do not make

[[Page 1389]]

     classification decisions and are not intended to become 
     national security experts. Furthermore, even if a typical 
     FISC 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.

  Enactment of this amendment could result in judges making foreign 
intelligence determinations in place of trained intelligence analysts. 
Based on this unjustified scrutiny, our intelligence analysts could 
become overly cautious when determining whether to deem information as 
having intelligence value in order to avoid unwarranted judicial 
scrutiny. This could result in less foreign intelligence information 
being accumulated, and thus could mean we may miss a vital piece of 
information. Do we want to take this chance? That is what this 
amendment would do. Should we risk this type of unintended result?
  In October of 2007, I asked Assistant Attorney General Wainstein if 
putting the FISC judges in the position of assessing compliance would 
effectively put the judge in the role of an analyst. Here is what he 
said in response:

       And that is the problem, that it would get the FISC in the 
     position of being operational to the extent that it's not 
     when it assesses compliance for, let's say, the minimization 
     procedures in the typical or traditional FISA context where 
     you're talking about one order, one person. Here, some of our 
     orders might well be programmatic, where you're talking about 
     whole categories of surveillances, and that would be a tall 
     order for the FISA Court to assess compliance.

  The Whitehouse amendment also contains language which lets the FISC 
fashion remedies it determines are necessary to enforce compliance. 
This is very broad language and gives the court the ability to come up 
with whatever methods it chooses to enforce compliance. Does this mean 
that the FISC could shut down collection of information from foreign 
targets overseas while the Government addresses technical issues which 
have little to do with the privacy of American citizens? We do not 
know, since this amendment does not answer this question. Remember, we 
are talking about targeting foreign terrorists to prevent terrorist 
attacks. This is not the same thing as wiretapping a cocaine dealer in 
Los Angeles for criminal prosecution. If we approve an amendment which 
creates numerous unanswered questions, we are putting Americans at risk 
in unprecedented ways.
  Given that the Government has adequately utilized minimization 
procedures for many years, what is the pressing need for FISC expansion 
into this area? There is no need to continue unlimited expansion of the 
FISC into unsuitable areas.
  If this amendment does not pass, it does not mean that American 
citizens are not protected. Incidental communications of Americans will 
continue to be minimized, and the minimization procedures will have 
been approved by the FISC. But if the Whitehouse amendment passes, we 
will be taking a great risk that the unnecessary judicial oversight 
will cause very harmful unintended consequences that I have already 
mentioned. We are too far along to introduce guesswork into the 
carefully crafted compromise bill before us. I will oppose this 
amendment, and I urge my colleagues to do the same.


                           Amendment No. 3930

  Now, Mr. President, there is one other amendment I wish to refer to. 
In October of last year, the Intelligence Committee passed a bipartisan 
compromise bill which would modernize our foreign intelligence 
surveillance activities. Unfortunately, this bipartisan bill contained 
a 6-year sunset provision which would automatically curtail our ability 
to protect our homeland unless Congress acted.
  Let me be clear, I am opposed to any sunset in this legislation. 
While I believe the inclusion of this sunset provision was not 
appropriate, it was a result of the bipartisan negotiations in the 
Intelligence Committee. Now this serves as yet another example that not 
all of us who support this bill are happy with every provision, and 
every Senator will need to make concessions to get this bill passed and 
signed into law.
  Given my opposition to any sunset, I will oppose the Cardin amendment 
No. 3930, which would change the sunset from 6 to 4 years. Proponents 
of this amendment have propounded several arguments, none of which 
justifies this change. I am going to discuss three of those arguments 
today.
  The most common argument cited is that this legislation is too 
technical and too complex to have a 6-year sunset. This is certainly a 
complex bill, but this is not the first time the 110th Congress has 
tackled complex issues. We have already waded through several different 
and complex bills, such as immigration reform, ethics and lobbying 
legislation, and even a vast energy bill.
  We are not reinventing the wheel with surveillance law, as this is a 
FISA modernization bill. But it is important to note how Congress has 
previously legislated in this area. The 1978 FISA law made dramatic 
changes to our surveillance laws and oversight mechanisms. While FISA 
has been discussed extensively, what has not been stated nearly enough 
is that the 1978 FISA had no sunset. Given that FISA had no sunset, 
let's look at how Congress has previously legislated FISA amendments 
with regard to sunsets.
  Sunsets are not common in previous laws amending FISA. Other than the 
PATRIOT Act and the PATRIOT Act reauthorization, seven of the eight 
public laws amending FISA had no sunsets on FISA provisions, and the 
remaining public law had a sunset on only one of those provisions.
  Now, this statistic speaks for itself. What is so different about 
this bill? I do realize it contains massive new congressional oversight 
provisions which could possibly hinder our collection efforts, and that 
we may need to revisit it for this reason. However, if this is the 
case, we obviously do not need a sunset to do this. We can legislate in 
this area whenever we want to.
  A second reason I have heard that some support the Cardin amendment 
is that this sunset will keep Congress more engaged. One of my 
colleagues previously stated that a sunset ``gives Congress the ability 
to stay involved.'' Congress should not need sunsets to stay involved. 
We do not need legislative alarm clocks to go off in 4 years in order 
to address national security. I wake up every day thinking about how we 
might protect our fellow Americans. I certainly do not need a 
sunsetting bill to remind me about national security and oversight, and 
neither should my colleagues.
  The final reason I have heard for a 4-year sunset is the idea that 
the next administration should be given an opportunity to address this 
issue and that a sunset fosters cooperation between Congress and the 
White House. Along these lines, one of my colleagues previously stated: 
Having a sunset gives us a much better chance to get cooperation . . . 
between the Congress and the White House. Once again, the next 
President can weigh in on this topic whenever and however he or she 
wants to. And regarding the idea that we should include a 4-year sunset 
to foster cooperation between two branches of Government--do we need a 
statute to influence the separation of powers? I say to my colleagues 
that the relationship between the branches of Government should be 
fostered by natural restrictions contained in the Constitution of the 
United States, not by an artificial sunset provision in an intelligence 
bill.
  The very idea of a 4-year sunset understates the importance of 
timeline implementation of new legislation. It takes a great deal of 
time to ensure that all of our intelligence agencies and personnel are 
fully trained in new authorities and restrictions brought about by 
congressional action. This is not something that happens overnight. We 
cannot wave a magic wand and have our Nation's intelligence personnel 
instantaneously cognizant of every administrative alteration imposed by 
Congress. Like so many other things in life, adjusting for these new 
mechanisms takes time and practice.
  While certain modifications are necessary, do we want to make it a 
habit of consistently changing the rules? Don't we want our analysts to 
spend their time actually tracking terrorists,

[[Page 1390]]

or is their time better spent navigating administrative procedures that 
may be constantly in flux?
  I know my preference is that our analysts be given the time to use 
the lawful tools at their disposal to keep our families safe.
  I do not want to see them spending all their time burying their heads 
in administrative manuals which change from day to day whenever the 
political winds blow.
  After all of the efforts by many in this body to write a bill that 
provides a legal regime to govern contemporary technological 
capabilities, I am certainly not alone in my opposition to a sunset 
provision. In fact, my views are completely in line with what the 
Senate has done in the past when amending FISA. The administration 
strongly opposes a sunset, and Attorney General Mukasey confirmed this 
opposition during last week's oversight hearing here in the Senate.
  The fact is that this administration will not be here to see this 
sunset occur. Why would they care if there is a sunset in the bill or 
not? Their opposition demonstrates that those who are in charge of 
protecting our country know that a sunset is a bad idea and their 
opposition is based in logic and practical application. The 
administration knows that they will not be here, but the intelligence 
analysts who protect our country will. These analysts are not 
politically appointed, and do their job regardless of who the President 
is or what party the President represents. They need the stability of 
our laws to effectuate long term operations to prevent terrorist 
attacks, not guesswork which could hinder intelligence gathering 
practices.
  We have already had a trial run with the 6-month sunset of the 
Protect America Act. Enough of the quick fixes, let's have confidence 
in the work product created by the nearly 10 months we have spent on 
this issue. A shorter sunset gives us an excuse to not legislate with 
conviction, and this is an excuse we should not make.
  The 95th Congress had the ability to decipher complex problems and 
pass FISA with no sunset, and the 110th Congress can certainly 
modernize it without second guessing our capabilities by approving the 
Cardin amendment. I will oppose this amendment, and I urge my 
colleagues to do the same.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.

                          ____________________