[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Page 992]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. MARTINEZ. Mr. President, I wish to talk about the very important 
issue relating to foreign intelligence surveillance. I want to talk 
about it not in the sense of who gets to be blamed if something 
happens. I believe that on something of this magnitude, the American 
people are pretty tired of the blame game: We would have done this, but 
if you didn't do that, we blame you; and if this happens, you get to 
blame us. I think the time of blame-casting has well passed. The fact 
is that the laws that grant the Government the authority to use the 
resources we have in order to stay informed of what our enemies are 
seeking to do to us are outdated and need to be modernized and put up 
to date with our current technology. We are fighting a modern war 
against a modern enemy. The tools we have to fight that war are out of 
date. One of the only ways we are able to expose and stop terrorist 
plots before they unfold is through the provisions accorded under FISA.
  Some of my colleagues have expressed an understandable concern about 
the current FISA reauthorization, and whether it would improperly 
invade the civil liberties of our citizens. After 2 years of public 
debate on the broad issues of FISA, and after reviewing the current 
legislation, I believe those concerns are unwarranted.
  This issue transcends the stance of either political party or any 
partisan interest. Those who oppose this are sincere in their concern; 
they just happen to be wrong. Needless hurdles will be created for our 
Government in the obtaining and utilizing of valuable intelligence to 
keep America safe. So I want to see us address this issue head on and 
come together and send the President a bill that he can and will sign.
  The President spoke about this last night in his State of the Union 
Message. He wants to get this matter resolved, and he wants a bill on 
his desk. We owe it to the military and the intelligence community to 
equip them with the tools they need to protect our citizens and carry 
out their duties effectively.
  Throughout our history, Americans have always been concerned about 
the proper balance between security and freedom. Those concerned about 
the power of Government and trampling on the rights of free citizens 
are right to insist on maintaining the individual liberties granted to 
us by the Constitution, especially during a time of crisis. The bill we 
are considering is precisely concerned with maintaining and keeping a 
proper balance of those protections.
  This is a bipartisan bill. It was reported out of the Intelligence 
Committee by a vote of 13 to 2. It is a modern update that is designed 
to keep our technological edge and to effectively implement the goals 
of the original FISA law passed in 1978. This bill is the product of 
the careful consideration of Members of both sides of the aisle on the 
Intelligence Committee--those best informed about these matters, who 
have the most knowledge about the means and methods by which we gather 
intelligence. Those Members recognize a need to modernize the way our 
intelligence is collected and the need to share information that is 
vital to terrorist communications, whether these communications be on a 
cell phone, by e-mail, or in person. This bill is for the American 
intelligence services to be able to timely develop intelligence without 
having to wait for a court order. In other words, if a terrorist group 
such as al-Qaida calls a sleeper cell within our borders, this would 
ensure that our Government can protect our citizens, the specific 
procedure for surveillance, and it ensures that the independent FISA 
Court is fully informed of every step in the process.
  The bill also has a provision to protect those who have assisted us 
and the intelligence community in gathering information that was 
absolutely vital to our national security. Fortunately, we have had 
full cooperation from a number of telecommunications companies in 
providing our intelligence officials with accessing and obtaining 
information from foreign terrorists.
  As we look at this issue--and the majority leader says this issue is 
the big sticking point, so let me talk about that specifically, that 
this retroactive immunity for telecommunications companies allows bad 
actors to get off the hook--who is it we are giving immunity to and why 
should it be retroactive? This has already been noted a number of 
times, but I think it bears repeating.
  Retroactive immunity is necessary not only to protect companies that 
cooperated in good faith at the request of our President during the 
time of the most serious domestic crisis our country has ever faced, 
but it was done to ensure our national secrets regarding intelligence 
methods remained classified and are not disclosed in public through the 
civil court process. In other words, it is not just about providing 
immunity to those who helped at the time it was needed, but it is also 
to ensure that as we go forward, we are not going to have an O.J. 
Simpson-type trial, with television cameras blaring with information 
being disclosed. We know things do not keep. We know our enemies are 
capable of getting the information because it will be in the New York 
Times. The fact is, we want to keep our methods and sources secret and 
confidential, and this is a very important part of this immunity idea.
  If you want accountability for the executive branch, we have a 
constitutional system of checks and balances, and leaving aside the 
President's authority under article II, we are exercising congressional 
oversight in passing S. 2248, and we, along with the FISA Court, are 
certainly going to be able to pay close attention to how we select 
intelligence going forward.
  As far as letting bad actors off the hook is concerned, S. 2248 
provides retroactive immunity from civil litigation if a series of 
conditions are met. The assistance was provided in connection with 
intelligence activity authorized by the President between September 11, 
2001, and January 17, 2007, and was designed to detect or prevent 
terrorist attacks against the United States.
  What is wrong with that? The assistance was also to be provided in 
response to a written request, a directive from the Attorney General or 
other intelligence community head indicating the activity had been 
authorized by the President and determined to be legal.
  To me, it is a good idea to give these folks the kind of immunity 
that will allow them to continue to cooperate, that will say to them: 
The next time there is a vital emergency where your cooperation is 
needed, we didn't stick you with the bill, we didn't allow the courts 
to go wild. We protected you because you protected America. To me, that 
seems only fair and only right.
  I hope we can get through the partisan morass that always seems to 
entangle us. I hope we can find a way we can pull together something of 
this magnitude and importance, which is about the national security of 
our country--it is about the intelligence needs of our intelligence 
community--and that we can come together in a timely fashion, craft 
this bill, take the bill the Senate Intelligence Committee passed on a 
bipartisan 13-to-2 vote, put it up for a vote, let's take the 
amendments that are available, move it forward, get a vote, and get a 
bill to the President that he can sign.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Tennessee.
  Mr. ALEXANDER. Will the Chair kindly let me know when I have used 8 
minutes?
  The ACTING PRESIDENT pro tempore. The Senator will be notified.

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