[Congressional Record (Bound Edition), Volume 154 (2008), Part 10]
[Senate]
[Pages 13603-13604]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2008

  Mr. KYL. Mr. President, I rise today to speak in favor of the passage 
of the FISA Amendments Act of 2008. This is a law that our Nation 
needs. The most important change made by the pending bill is to allow 
immediate and real-time surveillance of overseas targets as soon as 
they become apparent in the course of a foreign-intelligence 
investigation. FISA had never been intended to block surveillance of 
such targets, but a 2007 FISA court decision interpreted FISA to apply 
to even foreign-to-foreign communications that are routed through the 
United States. Because of changes in technology and U.S. dominance in 
the telecommunications industry, even phone calls from Afghanistan to 
Pakistan could be routed through the United States. As a result, a FISA 
order could be required before communications between two suspected al-
Qaida members outside the United States could be monitored.
  This system made overseas surveillance a practical impossibility in 
many cases and caused valuable intelligence to be lost. Our best tool 
against al-Qaida and other terrorists is intelligence; it is absolutely 
critical that we gather whatever intelligence is available.
  In the summer of 2007, Congress enacted a 6-month restoration of U.S. 
agents' surveillance capabilities with the Protect America Act. Today--
over 4 months after the PAA expired--Congress finally acts to extend 
this surveillance authority for another 4\1/2\ years. I am heartened to 
note that the Attorney General and the Director of National 
Intelligence both strongly support this bill and believe that it 
provides them with the tools they need to gather intelligence about 
America's foreign enemies.
  Critically, this bill allows immediate and real-time surveillance of 
foreign targets located overseas whenever the Justice Department and 
the intelligence community find that, without immediate surveillance, 
``intelligence important to the national security of the United States 
may be lost or not timely acquired and time does not permit the 
issuance'' of a court order prior to such surveillance. This provision, 
in a new section 702(c)(2) of FISA, addresses the exact problem that 
intelligence agencies faced in 2007. Congress expects our intelligence 
agents to use every tool that is technologically available to monitor 
al-Qaida and those associated with it. With this reform, we make such 
surveillance possible.
  I also think that it is important that, in new section 702(i), the 
FISA Amendments Act allows pending surveillance certifications to be 
immediately amended to allow surveillance of new targets related to or 
growing out of previous surveillance. This should help to reduce the 
paperwork burden of FISA, allowing our agents to focus more time on 
monitoring the enemy and less on filling out forms. Also, the judicial 
review authorized by this section is appropriately limited and 
recognizes the intelligence community's primary role in deciding what 
foreign targets to monitor. The court's role is limited to reviewing 
whether certifications are procedurally proper and are accompanied by 
reasonable procedures to limit potential impact on U.S. persons. Thus, 
courts could block any obviously bad faith or improper use of foreign 
surveillance that might affect U.S. persons, but courts will not be 
second-guessing intelligence judgments, and should not be imposing 
procedures or making demands that will consume intelligence resources 
and divert agents from their primary mission. This limited role should 
also allow the FISA Court to decide these cases very quickly, 
minimizing the burden on both the intelligence community and on those 
judges who are assigned to the FISA Court.
  I should also note that this bill contains important provisions that 
will allow all of the lawsuits against telecommunications companies to 
be dismissed upon certification by the Attorney General. Foreign 
intelligence surveillance is a matter that our Constitution entrusts to 
the executive in consultation with Congress, not to private litigants 
and the judiciary. These lawsuits all should have been dismissed 
immediately; this bill will finally produce that result. Title II is a 
critical part of this bill that should have been enacted long ago. 
Frankly, I find it odd that much of the early criticism of this bill 
has been directed at this of all provisions. Those who are opposed to 
the President's efforts to monitor al-Qaida's communications after 9/11 
should take their argument to the President, not to the private 
companies that patriotically complied with government requests to help 
this country. Monitoring of al-Qaida's electronic communications cannot 
be conducted without the cooperation of private companies. The general 
rule that private citizens acting in good faith to assist law 
enforcement are immune from suit has deep roots and serves important 
public policies. As Justice Cardozo noted in the 1928 case of 
Babbington v. Yellow Taxi Corporation, the rule ensures that ``the 
citizenry may be called upon to enforce the justice of the State, not 
faintly and with lagging steps, but honestly and bravely and with 
whatever implements and facilities are convenient and at hand.''
  Finally, I should note that this bill's so-called ``exclusive means'' 
provision, like the similar provision in the 1978 FISA, is hortatory 
verbiage that obviously yields the Constitutional authority of the 
President. The FISA Court of Review, in its 2002 decision in In re 
Sealed Cases, made the point:

       The [Fourth Circuit in the Truong case], as did all the 
     other courts to have decided the issue, held that the 
     President did have inherent authority to conduct warrantless 
     searches to obtain foreign intelligence information. . . . We 
     take for granted that the President does have that authority 
     and, assuming that is so, FISA could not encroach on the 
     President's constitutional power.

  Indeed, every administration since FISA was enacted--including the 
Carter administration--has concluded that Congress cannot take away the 
President's power to monitor foreign enemies of the United States 
without a warrant, and that to the extent that FISA purports to do so, 
it is unconstitutional. The Constitution's framers vested the executive 
with primary responsibility and authority to protect the United States 
from foreign attack. Section 102 repeats FISA's ``exclusive-means'' 
claims, yet provides in the same section of the bill, at subsection 
(c), an amendment to the immunity provisions for electronic 
communications service providers in 18 U.S.C. 2511(2) to require that 
certifications conferring immunity identify the ``specific statutory 
provision'' that allows the surveillance, but only if the certification 
``for assistance to obtain foreign intelligence information is based on 
statutory authority.'' This provision, in the same section making 
claims of exclusive means, acknowledges that not all surveillance is 
based on statutory authority, but may, instead, be based on the 
executive's constitutional authority. If this nation again finds itself 
under attack as it did on September 11, those in charge of our security 
should not conclude from the exclusive-means language in section 102 
that they may not act in any constitutionally appropriate way to 
protect this country.
  Finally, the ``sunset'' provision in section 403, which will repeal 
the authorities in the bill at the end of 2012,

[[Page 13604]]

is problematic. As the Attorney General and the Director of National 
Intelligence have said: ``[t]he Intelligence Community operates more 
effectively when the rules governing our intelligence professionals' 
ability to track our enemies are firmly established.'' The need to 
modernize FISA has been extensively debated since 2006, including 
numerous hearings, briefings, and floor debates that ``involved the 
discussion in open settings of extraordinary information dealing with 
sensitive intelligence operations.'' As the Attorney General and the 
Director of National Intelligence have pointed out, ``[e]very time we 
repeat this process it risks exposing our intelligence sources and 
methods to our adversaries.''
  Despite these flaws, the bill before us is needed. It is very similar 
to the bill that the Senate passed earlier this Congress and on which 
the House refused to act. It has passed the House by a 3-to-1 margin, 
and I expect that we will see a similar margin in the Senate, as the 
bill already appears to have gained the support of some Senators who 
opposed last year's bill. I look forward to the passage of this bill.

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