[Congressional Record (Bound Edition), Volume 154 (2008), Part 3]
[Senate]
[Pages 4249-4250]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 HOUSE CONSIDERATION OF FISA LEGISLATION

   Mr. LEAHY. Mr. President, I commend the House of Representatives for 
debating its amendment to the Senate's FISA Amendments Act of 2007. 
This is a step forward and a good bill.
   The Foreign Intelligence Surveillance Act is intended to protect 
both our National security and the privacy and civil liberties of 
Americans. This law was passed to protect the rights of Americans after 
the excesses of an earlier time.
   The FISA Amendments Act of 2007 that passed the Senate had a number 
of serious failings and did not adequately protect the privacy and 
civil liberties of Americans with this sweeping new surveillance. I had 
hoped that the Senate would incorporate improvements that had been 
reported by the Senate Judiciary Committee and that I and other 
Senators offered as amendments on the floor. It did not. Instead, 
having gotten exactly the bill they wanted from the Intelligence 
Committee, the administration threatened of Presidential veto if any 
further improvements were made. The Senate bill was flawed.
   The House leadership understood that under our constitutional system 
of government, Congress gets a say in legislation. For the last month 
the House has worked with 4 Senators and sought to work with 
congressional Republicans and the administration to fashion a 
reasonable compromise between its earlier legislation, the RESTORE Act, 
which passed last fall, and the Senate's bill. Unfortunately, 
congressional Republicans and the administration have refused to engage 
in meaningful discussions or negotiations about the legislation. It has 
been their position that the Senate's bill must be the end of all 
discussions, and the House must simply accept it. I commend the House 
leadership for upholding our legislative tradition and allowing 
Congress to act as a separate and equal branch of the Federal 
Government. The Constitution provides in article I for Congress to 
write the laws and in article II for the executive to faithfully 
execute them--not the other way around.
   The administration has engaged in all of its usual scare tactics to 
try to bully the House into accepting the Senate bill. First, they 
refused to allow an extension of the Protect America Act, thereby 
allowing it to expire. Then, they tried to convince the American people 
that the expiration put Americans at risk--and somehow that was the 
Democrats' fault. It was not true, of course; the expiration of the 
Protect America Act put nobody at risk because the orders entered under 
that act remain in force for a year. And it is the White House and 
congressional Republicans who have repeatedly refused to extend the 
Protect America Act. And they have ensured delay by refusing to allow 
the appointment of conferees so work on the bill can move forward. 
These are just more in a long line of administration attempts to 
politicize national security in order to shield itself from 
accountability.
   Despite the failure of the administration and the Republican Members 
of Congress to discuss the bills, the House engaged in intensive, 
productive bicameral discussions and produced a compromise bill that 
improves on both the Senate bill and their earlier efforts. It adds to 
title I of the bill several protections that I urged in the Senate. 
Very importantly, it includes a requirement that inspectors general, 
including the Department of Justice inspector general, conduct a 
thorough review of the so-called terrorist surveillance program and 
report back to the Congress and, to the greatest degree possible, the 
American people. This is a key measure to finally require 
accountability from this administration. We have not yet had anything 
close to a comprehensive examination of what happened and how it 
happened. We cannot expect to learn from mistakes if we refuse to allow 
them to be examined. As an additional accountability mechanism, the 
House bill would establish a bipartisan national commission to 
investigate and report on the administration's warrantless surveillance 
activities.
   The House bill also strengthens the exclusivity provision from the 
Senate bill by mandating that, absent specific statutory authorization, 
FISA is the exclusive means to conduct electronic surveillance. This 
provision makes clear that the Government cannot claim authority to 
operate outside the law--outside of FISA--from legislative measures 
that were never intended to provide such exceptional authority. This 
administration argues that the Authorization for the Use of Military 
Force, AUMF, passed after September 11, justified conducting 
warrantless surveillance of Americans for more than 5 years. That is 
not what was intended. With enactment of this

[[Page 4250]]

strengthened exclusivity provision, we should not see similar arguments 
of circumvention in the future.
   The House bill would also clarify that the Government may not use 
this new authority to target Americans indirectly when it cannot do so 
directly. The administration says it will not do that, but the Senate 
bill does nothing to prevent it.
   Finally, and critically, the House bill would not grant blanket 
retroactive immunity. This administration violated FISA by conducting 
warrantless surveillance for more than 5 years. They got caught, and if 
they had not, they would probably still be doing it. When the public 
found out about the President's illegal surveillance of Americans, the 
administration and the telephone companies were sued by citizens who 
believe their privacy and their rights were violated. Now, the 
administration is trying to get this Congress to terminate those 
lawsuits in order to insulate itself from accountability.
   The House bill does, however, address the concerns of the carriers 
who are defendants in those lawsuits that they are prevented from 
defending themselves because the administration is asserting the State 
Secrets privilege over the subject matter of the litigation. The bill 
provides mechanism for the companies to present their defenses in 
secure proceedings in the district court. I think this is a fair 
provision.
   I have been very disappointed by the failure of the administration 
and congressional Republicans to participate in important discussions 
about this bill. I applaud the House for its significant efforts. It 
has passed a good bill.
   Republicans in Congress and the administration now have a choice: If 
they are concerned with a delay in authority, they should help the 
House, and in urn the Senate, pass the improvements to FISA that the 
House amendment contains and replace the expired Protect American Act 
provisions and do so immediately. Having rejected the extension of the 
Protect America Act and allowed it to expire before the last 
congressional recess, I hope that they will join in supporting the 
House amendment to restore the additional tools this measure would 
provide without further delay.

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