[Congressional Record (Bound Edition), Volume 158 (2012), Part 13]
[Senate]
[Pages 18198-18225]
[From the U.S. Government Publishing Office, www.gpo.gov]




            FISA AMENDMENTS ACT REAUTHORIZATION ACT OF 2012

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will proceed to consideration of H.R. 5949, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (H.R. 5949) to extend the FISA Amendments Act of 
     2008 for five years.

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator from Oregon, Mr. Wyden, is recognized.
  Mr. WYDEN. Mr. President, I thank Leader Reid for the honor of being 
able to open this morning's debate. I also wish to particularly 
identify with a point the leader made. There is an old saying that most 
of life is just showing up. I think what the American people want--I 
heard this at checkout lines in our local stores, for example, this 
week--they want everybody back in Washington and going to work on this 
issue, just as the leader suggested.
  I think Senators know I am a charter member of what I guess you could 
call the optimist caucus in the Senate. As improbable as some of these 
talking heads say on TV that it is, I still think we ought to be here, 
just as the leader said, working on this issue because of the 
consequences.
  Mr. REID. Mr. President, will my friend yield for a question?
  Mr. WYDEN. I would be happy to yield to the majority leader.
  Mr. REID. The distinguished Senator from Oregon and I served together 
in the House of Representatives. Does the Senator remember the days 
when the House voted not as a majority but as a body to come up with 
how legislation should be given to the American people? Does my friend 
remember that?
  Mr. WYDEN. I do. The leader is being logical, and Heaven forbid that 
sometimes logic break out on some of these matters. I remember when we 
started out--and I joked that I had a full head of hair and rugged good 
looks--the majority leader and I used to work with people on both sides 
of the aisle. We would try to show up early, go home late, and, as the 
leader said, focus on getting some results. I thank the leader for his 
point and again for the honor of being able to start this discussion.
  As I indicated, what I heard at home is that we are supposed to be 
here and try to find some common ground. I know the talking heads on TV 
say this is impossible and it cannot be done. First of all, as the 
majority leader said, this has been done in the past. When there are 
big issues and big challenges, historically the Congress will come 
together and deal with it.
  I am particularly concerned about some of the effects going over the 
cliff will have on vulnerable senior citizens. As the Presiding Officer 
knows, that is my background. We have often talked about health care 
and seniors. My background was serving as codirector of the Oregon Gray 
Panthers. If the reimbursement system for Medicare, in effect, goes 
over this cliff, that is going to reduce access to health care for 
senior citizens across the country, and I don't believe there are 
Democrats and Republicans who want that to happen.
  As the majority leader indicated, finding some common ground on this 
issue and backing our country away from the fiscal cliff is hugely 
important and crucial to the well-being of our country. I just wanted 
to start with those remarks.
  Also crucial to our country is the legislation before the Senate 
right now. Its name is a real mouthful.
  Mr. President, I think you will recall this legislation from your 
days serving on the Senate Select Committee on Intelligence. The name 
of this is the Foreign Intelligence Surveillance Act Amendments Act. It 
also expires in a few days. Our job is to find a way to strike the best 
possible balance between protecting our country from threats from 
overseas and safeguarding the individual liberties of the law-abiding 
Americans we have cherished in this country for literally hundreds of 
years. This task of balancing security and liberty was one of the most 
important tasks defined by the Founding Fathers years and years ago, 
and it is no less important for the Congress today.
  As I indicated earlier, the majority leader, Leader Reid, has 
accorded me the honor of beginning this debate. I will open with a very 
short explanation of what the FISA Amendments Act is all about. Of 
course, this is an extension of the law that was passed in 2008. It is 
a major surveillance law, and it is the successor to the warrantless 
wiretapping program that operated under the Bush administration, which 
gave the government new authorities to collect the communications of 
foreigners

[[Page 18199]]

outside the United States. The bill before the Senate today would 
extend this law for another 5 years.
  There is going to be a discussion of various issues, but all of them 
go to what I call the constitutional teeter-totter, which is basically 
balancing security, protecting our country at a dangerous time, and the 
individual liberties that are so important to all of us. I expect there 
will be amendments to strengthen protections for the privacy of law-
abiding Americans.
  I want to say to my colleagues and those who are listening that this 
is likely to be the only floor debate the Senate has on this law 
encompassing literally a 9-year period--from 2008 to 2017. So if we are 
talking about surveillance authority that essentially looks to a 9-year 
period, we ought to have an important discussion about it, and that is 
why I am grateful to the majority leader for making today's discussion 
possible.
  I have served on the Senate Intelligence Committee for 12 years now, 
and I can tell every Member of this body that those who work in the 
intelligence community are hard-working and patriotic men and women. 
They give up an awful lot of evenings, weekends, and vacations to try 
to protect the well-being and security of our country. For example, we 
hear a lot about a well-publicized event, such as their enormously 
valuable role in apprehending bin Laden. What we don't hear about is 
the incredible work they do day in and day out. They work hard to 
gather intelligence, and I commend them for it as we begin this 
discussion.
  The job of those who work in the intelligence community is to follow 
whatever laws Congress lays down as those hard-working men and women 
collect intelligence. Our job here in the Congress is to make sure the 
laws we pass are in line with the vision of the Founding Fathers, which 
was to protect national security as well as the rights of individual 
Americans.
  We all remember the wonderful comment by Ben Franklin. I will 
paraphrase it, but essentially Ben Franklin said: If you give up your 
liberty to have security, you really don't deserve either. We owe it to 
the hard-working men and women in the intelligence community to work 
closely with them. We need to find the balance Ben Franklin was talking 
about, and we can help them by conducting robust oversight over the 
work that is being done there so members of the public can have 
confidence in the men and women of the intelligence community. This 
will give the public the confidence to know that as we protect our 
security at a dangerous time, we are also protecting the individual 
liberties of our people.
  The story with respect to this debate really begins in early America 
when the colonists were famously subjected to a lot of taxes by the 
British Government. The American colonists thought this was unfair 
because they were not represented in the British Parliament. They 
argued that if they were not allowed to vote for their own government, 
then they should not have to pay taxes.
  We all remember the renowned rallying cry of the colonists. It was 
``no taxation without representation.'' Early revolutionaries engaged 
in protests against these taxes all over the country. Of course, the 
most famous of these protests was the Boston Tea Party in which 
colonists threw shiploads of tea into the Boston Harbor in protest of 
the tax on tea.
  As we recall from our history books, there were a lot of taxes on 
items such as tea, sugar, paint, and paper. Because so many colonists 
believed these taxes were unjust, there was a lot of smuggling going on 
in the American Colonies. People would import things, such as sugar, 
and simply avoid paying the tax on them.
  We all remember that the King of England didn't like this very much. 
He wanted the colonists to pay taxes whether they were allowed to vote 
or not. So the English authority began issuing what were essentially 
general warrants. They were called writs of assistance, and they 
authorized government officials to enter into any house or building 
they wanted in order to search for smuggled goods. These officials were 
not limited to only searching in certain houses, and they were not 
required to show any evidence that the place they were searching had 
any smuggled goods in it. Basically, government officials were allowed 
to say they were looking for smuggled goods and then would search any 
house they were interested in to see if the house had some of those 
smuggled goods.
  An English authority's goal is to find smuggled goods. Letting 
constables and customs officers search any house or building is a 
pretty effective way to go out and find something. If they keep 
searching enough houses, eventually they will find some smuggled goods 
in one of them and seize those goods and arrest whoever lives in that 
house for smuggling. Of course, the problem is that if government 
officials can search any house they want, they are going to search 
through the houses of a lot of people who have not broken any laws.
  Mr. President, it is almost as if you decided you were going to 
search everybody in your State of Rhode Island. You could go in and 
turn them all upside down, shake them, and see if anything fell out. 
Obviously, you would find some people who had some things in their 
possession that they should not have, but that is not the way we do it 
in America. In America, there has to be probable cause in order to do 
something like that.
  The American colonists had a huge problem with the idea that 
everybody's house was going to be checked for smuggled goods on the 
prospect that maybe somebody somewhere had engaged in smuggling. The 
colonists said it is not OK to go around invading people's privacy 
unless there is some specific evidence that they have done something 
wrong. That is how people in Rhode Island and Oregon feel today. One 
cannot just go out and check everybody in sight on the prospect that 
maybe there is someone who has done something wrong.
  Back in the colonists' time, the law said that these writs of 
assistance were good until the King died. So when King George II died 
and the authorities had to get new writs, many colonists tried to 
challenge them in court.
  In Boston, James Otis denounced this mass invasion of privacy by 
reminding the court that--and we remember this wonderful comment--a 
man's house is his castle. Mr. Otis described the writs of assistance 
as the power that places the liberty of every man in the hands of every 
petty officer. Unfortunately, the court ruled that these general orders 
permitting mass searches without individual suspicion were legal, and 
English authorities continued to use them. The fact that English 
officials went around invading people's privacy without any specific 
evidence against them was one of the fundamental complaints the 
American colonists had against the British Government.So naturally our 
Founding Fathers, with the wisdom they showed on so many matters, made 
it clear they wanted to address this particular complaint when they 
wrote the Bill of Rights.
  The Bill of Rights ensures that strong protections of individual 
freedom would be included within our Constitution itself, and the 
Founding Fathers included strong protections for personal privacy in 
the fourth amendment. The fourth amendment states:

       The right of the people to be secure in their persons, 
     houses, papers, and effects against unreasonable searches and 
     seizures shall not be violated and no warrant shall issue but 
     upon probable cause, supported by oath or affirmation, and 
     particularly describing the place to be searched and the 
     person or things to be searched.

  This was a direct rejection of the authority the British had claimed 
to have when they ruled the American Colonies.
  The Founding Fathers said our government does not have the right to 
search any house that government officials want to search even if it 
helps them to do their job. Government officials may only search 
someone's house if they have evidence that someone is breaking the law 
and they show the evidence to a judge to get an individual warrant.
  For more than 200 years, this fundamental principle has protected 
Americans' privacy while still allowing our government to enforce the 
law and to protect public safety.

[[Page 18200]]

  As time passed and we entered the 20th century, advances in 
technology--a whole host of technologies--gave government officials the 
power to invade individual privacy in a whole host of new ways--new 
ways the Founding Fathers never dreamed of--and all through those days, 
the Congress and the courts struggled to keep up.
  Time and time again Congress and the courts were most successful when 
they returned to the fundamental principles of the fourth amendment. It 
is striking. If we look at a lot of the debates we are having today 
about the Internet--and the Presiding Officer has a great interest in 
this; we have talked often about it--certainly the Founding Fathers 
could never have envisioned tweeting and Twitter and the Internet and 
all of these extraordinary technologies. But what we have seen as 
technology has continued to bring us this treasure trove of information 
with all of these spectacular opportunities the Founding Fathers never 
envisioned is that time and time again the Congress and the courts were 
most successful when they returned to the fundamental principles of the 
fourth amendment.
  For example, in 1928 the Supreme Court considered a famous case about 
whether the fourth amendment made it illegal for the government to 
listen to an individual's phone conversations without a warrant. Once 
again, dating almost to the precedent about the colonists and 
smuggling, the 1928 case was about smuggling--specifically, 
bootlegging. The government argued then that as long as it did the 
wiretapping remotely without entering an individual's house, the fourth 
amendment would not apply.
  Now, Justice Louis Brandeis wrote what has come to be seen in history 
as an extraordinary dissent, a brilliant dissent, and he argued that 
this was all wrong; that the fourth amendment was about preventing the 
government from invading Americans' privacy regardless of how the 
government did it.
  I am just going to spend a couple of minutes making sure people see 
how brilliant and farsighted Justice Brandeis was in how his 
principles--the principles he talked about in 1928--are as valid now as 
they were then.
  Justice Brandeis said:

       When the Fourth and Fifth Amendments were adopted . . . 
     force and violence were then the only means known to man by 
     which a Government could directly effect self-incrimination. 
     . . . Subtler and more far-reaching means of invading privacy 
     have [in effect] now become available to the Government. 
     Discovery and invention have made it possible for the 
     Government . . . to obtain disclosure in court of what is 
     whispered in the closet.

  Justice Brandeis goes on to say:

       In the application of a Constitution, our contemplation 
     cannot be only of what has been but of what may be. The 
     progress of science in furnishing the Government with means 
     of espionage is not likely to stop with wiretapping. Ways may 
     someday be developed by which the Government, without 
     removing papers from secret drawers, can reproduce them in 
     court, and by which it will be enabled to expose to a jury 
     the most intimate occurrences of the home. ``That places the 
     liberty of every man in the hands of every petty officer'' 
     was said by James Otis of much less intrusions than these.

  Justice Brandeis goes on to say:

       The principles--

  The principles, literally--

       [behind the Fourth Amendment] affect the very essence of 
     constitutional liberty and security. They . . . apply to all 
     invasions on the part of the Government and its employees of 
     the sanctities of a man's home and the privacies of life. It 
     is not the breaking of his doors, and the rummaging of his 
     drawers that constitutes the essence of the offense; but it 
     is the invasion of his indefeasible right of personal 
     security, personal liberty and private property, where the 
     right has never been forfeited by his conviction of some 
     public offense.

  Justice Brandeis closes this remarkable dissent saying:

       . . . The evil incident to invasion of the privacy of the 
     telephone is far greater than that involved with tampering 
     with the mails. . . . As a means of espionage, writs of 
     assistance and general warrants are but puny instruments of 
     tyranny and oppression when compared with wiretapping.

  The protection guaranteed by the amendments Justice Brandeis was 
referring to--the fourth and fifth amendments--is broad in scope.

       The makers of our Constitution undertook to secure 
     conditions favorable to the pursuit of happiness. They 
     recognized the significance of man's spiritual nature, of his 
     feelings, and of his intellect. They knew that only a part of 
     the pain, pleasure and satisfaction of life are to be found 
     in material things. They sought to protect Americans and 
     their beliefs, their thoughts, their emotions, and their 
     sensations. They conferred, as against the Government, the 
     right to be let alone--the most comprehensive of rights, and 
     the right most valued by civilized men. To protect that 
     right, every unjustifiable intrusion by the Government on the 
     privacy of the individual, whatever the means employed, must 
     be deemed a violation of the Fourth Amendment.

  Because I have outlined Justice Brandeis's dissent on several issues, 
I want to make sure those last two sentences are clear.
  Justice Brandeis said that the right of the people to be left alone 
by their government is ``the most comprehensive of rights''--the most 
comprehensive of rights, said Justice Brandeis--and, he said, ``the 
right most valued by civilized men.'' And the Justice said that 
intrusions on individual privacy, ``whatever the means employed, must 
be deemed a violation of the Fourth Amendment.''
  The reason I have outlined Justice Brandeis's views on this issue is 
that Justice Brandeis's views didn't prevail in 1928. Back in 1928 they 
thought they were dealing with high-tech surveillance. But suffice it 
to say that his views were eventually adopted by the full Supreme 
Court. That is why I believe it is so important that as we look to 
today's debate--really an opportunity to update the way in which that 
careful balance, the constitutional teeter-totter: security, well-being 
of all of us on this side and individual liberties on this side--it is 
so important to recognize what Justice Brandeis said about the value of 
getting it right when it comes to liberty, when it comes to individual 
freedom.
  One of the reasons there are amendments being offered by Senators to 
this legislation at a time when we are dealing with these crucial 
issues about the fiscal cliff, the question of the budget, taxes, and, 
as I mentioned, senior citizens being able to see a doctor--those are 
crucial issues, but this legislation, the FISA Amendments Act, is also 
a crucial piece of legislation, and that is why Senators will be 
offering amendments in order to strike the best possible balance 
between security and liberty.
  When the Foreign Intelligence Surveillance Act, which is often known 
as FISA--Senators and those listening will hear that discussion almost 
interchangeably; the abbreviated name is FISA--when it was written in 
1978, Congress applied Justice Brandeis's principles to intelligence 
gathering. The Congress, when they wrote the original FISA legislation 
in 1978, really said that Justice Brandeis got it right with respect to 
how we ought to gather intelligence. So the original FISA statute 
stated that if the government wants to collect an American's 
communications for intelligence purposes, the government must go to a 
court, show evidence that the American is a terrorist or a spy, and get 
an individual warrant. This upheld the same principle the Founding 
Fathers fought for in the revolution, it is the same principle 
enshrined in the Bill of Rights, and it said that government officials 
are not allowed to invade Americans' privacy unless they have specific 
evidence and an individual warrant.
  After 9/11, the Bush administration decided it would seek additional 
surveillance authorities beyond what was in the original Foreign 
Intelligence Surveillance Act statute. To our great regret, instead of 
asking the Congress to change the law, the Bush administration 
developed a warrantless wiretapping program--let me repeat that, a 
warrantless wiretapping program--that operated in secret for a number 
of years. When this became public--as I have said on this floor before, 
these matters always do become public at some point--when it became 
clear that the Bush administration had developed this warrantless 
wiretapping program, there was a huge uproar across the land. I 
remember how angry many of my constituents were when they learned about 
the warrantless wiretapping program, and I and a lot of

[[Page 18201]]

other Senators were very angry as well.
  As has the Presiding Officer, I have been on the Intelligence 
Committee, and I have been a member for 12 years, but the first time I 
heard about the warrantless wiretapping program--the first time I heard 
about it--was when I read about it in the newspapers. It was in the New 
York Times before I, as a member of the Senate Select Committee on 
Intelligence, knew about it.
  There was a very heated debate. Congress passed the FISA Amendments 
Act of 2008, and that was to replace the warrantless wiretapping 
program with new authorities for the government to collect the phone 
calls and e-mails of those believed to be foreigners outside the United 
States.
  The centerpiece of the FISA Amendments Act is a provision that is now 
section 702 of the FISA statute.Section 702 is the provision that gave 
the government new authorities to collect the communications of people 
who are believed to be foreigners outside the United States. This was 
different than the original FISA statute. Unlike the traditional FISA 
authorities and unlike law enforcement wiretapping authorities, section 
702 of the FISA Amendments Act does not involve obtaining individual 
warrants. Instead, it allows the government to get what is called a 
programmatic warrant. It lasts for an entire year and authorizes the 
government to collect a potentially large number of phone calls and e-
mails, with no requirement that the senders or recipients be connected 
to terrorism, espionage--the threats we are concerned about.
  If that sounds familiar, it certainly should. General warrants that 
allowed government officials to decide whose privacy to invade were the 
exact sort of abuse that the American colonists protested over and led 
the Founding Fathers to adopt the fourth amendment in the first place. 
For this reason, section 702 of the FISA law contains language that is 
specifically intended to limit the government's ability to use these 
new authorities to spy on Americans.
  Let me emphasize that because that is crucial to this discussion and 
the amendments that will be offered. It is never OK--never OK--for 
government officials to use a general warrant to deliberately invade 
the privacy of a law-abiding American. It was not OK for constables and 
Customs officials to do it in colonial days, and it is not OK for the 
National Security Agency to do it today. So if the government is going 
to use general warrants to collect people's phone calls and e-mails, it 
is extremely important to ensure that this authority is only used 
against foreigners overseas and not against law-abiding Americans.
  Despite what the Acting President pro tempore and the Senate may have 
heard, this law does not actually prohibit the government from 
collecting Americans' phone calls and e-mails without a warrant. The 
FISA Amendments Act states--and I wish to quote because there have been 
a lot of inaccuracies and misrepresentations on this--the FISA 
Amendments Act states that acquisitions made under section 702 may not 
``intentionally target'' a specific American and may not 
``intentionally acquire'' communications that are ``known at the time 
of acquisition'' to be wholly domestic.
  But the problem with that is, it still leaves a lot of room for 
circumstances under which Americans' phone calls and e-mails--including 
purely domestic phone calls and e-mails--could be swept up and reviewed 
without a warrant. This can happen if the government did not know 
someone is American or if the government made a technical error or if 
the American was talking to a foreigner, even if that conversation was 
entirely legitimate.
  I am not talking about some hypothetical situation. The FISA Court, 
in response to a concern I and others have had, has already ruled at 
least once that collection carried out by the government under the FISA 
Amendments Act violated the fourth amendment to the Constitution. 
Senate rules regarding classified information prevent me from 
discussing the details of that ruling or how many Americans were 
affected, over what period of time, but this fact alone clearly 
demonstrates the impact of this law on Americans' privacy has been real 
and it is not hypothetical.
  When the Congress passed the FISA Amendments Act 4 years ago, it 
included an expiration date. The point of the expiration date was to 
ensure that Congress could review these authorities closely and the 
Congress could decide whether protections for Americans' privacy are 
adequate or whether they need to be modified.
  Again, go back to what I have described as the constitutional teeter-
totter--our job: balance the need of the government to collect 
information, particularly with respect to what can be threats coming 
from overseas, with the right of individual Americans to be left alone. 
It is that balance we are discussing. If the Congress finds it is 
unbalanced, the Congress has a responsibility to step up and figure out 
how to make the appropriate changes in the law to ensure that both 
security and privacy are being protected simultaneously.
  Unfortunately, the Congress and the public--the American people--do 
not currently have enough information to adequately evaluate the impact 
of the law we are debating on Americans' privacy. There are a host of 
important issues about the law's impact that intelligence officials 
have simply refused to answer publicly.
  I am going to now spend a few minutes outlining the big questions I 
believe Americans deserve answers to. Certainly, the Congress has to 
have answers to these questions in order to do our job--our job of 
doing robust oversight over this law and over intelligence, which, as I 
said a bit ago, is exactly what the hard-working men and women in the 
intelligence community need and deserve in order to do their job in a 
way that will generate confidence among the American people.
  First, if we want to know what kind of impact this law has had on 
Americans' privacy, we probably want to know roughly how many phone 
calls and e-mails that are to and from Americans have been swept up by 
the government under this authority. Senator Mark Udall, our 
distinguished colleague from Colorado and a great addition to the 
Intelligence Committee--he and I began the task of trying to ferret out 
this information some time ago. Over a year and a half ago, Senator 
Mark Udall and I asked the Director of National Intelligence how many 
Americans have had their communications collected under this law; in 
effect, swept up by the government under these authorities.
  The response was it is ``not reasonably possible to identify the 
number of people located in the United States whose communications may 
have been reviewed under the authority of the'' FISA Amendments Act. 
That is how the government responded to Senator Udall and me.
  If you are a person who does not like the idea of government 
officials secretly reviewing your phone calls and e-mails, you probably 
do not find that answer particularly reassuring. But suffice it to say, 
the situation got worse from there.
  In July of this year, I and a tripartisan group of 12 other Senators, 
including Senator Mark Udall, our colleague from Utah, Senator Mike 
Lee, Senator Durbin--I am pleased to be joined by Senator Merkley, who 
has been vital in this coalition, this tripartisan coalition to get the 
best possible balance between security and liberty--he was a signer of 
the letter; Senator Paul of Kentucky, who has also been an outspoken 
advocate of striking a better balance between privacy and liberty was a 
signer; Senator Coons, Senator Begich, Senator Bingaman, Senator 
Tester, Senator Sanders, Senator Tom Udall, Senator Cantwell--all of us 
joined in writing another letter to the Director of National 
Intelligence asking additional questions about the impact of this law 
on Americans' privacy.
  We asked the Director if he could give us even a rough estimate--just 
a rough estimate--in other words, there has been discussion both in the 
press and in the intelligence community: This group of Senators is 
asking for

[[Page 18202]]

something impossible. This group of Senators is asking for an exact 
count of how many Americans are being swept up under this FISA 
authority, their calls and e-mails reviewed. I wish to emphasize we 
just said, as a tripartisan group of Senators: We would just like a 
rough estimate--use any approach they want in terms of giving us an 
assessment of how many Americans' communications have been swept up in 
this way. Is it hundreds? Is it hundreds of thousands? Is it millions?
  The tripartisan group of Senators basically was just asking for a 
report, the kind of information that is a prerequisite to doing good 
oversight. Frankly, I think when we talk about oversight and we cannot 
even get a rough estimate of how many law-abiding Americans have had 
their communications swept up under this law, if they do not have that 
kind of information, oversight--the idea of robust oversight--it ought 
to be called toothless oversight if they do not have that kind of 
information.
  The Director declined to publicly answer this question. So our 
tripartisan group and others continued. We asked the Director if anyone 
else has already done such an estimate. We did not ask about doing 
anything new. The intelligence community said: Oh, my goodness. It will 
be so hard to give even a rough estimate. So we said: OK. Just tell us 
if anyone else has already done such an estimate. The Director declined 
to publicly answer this question as well.
  Right at the heart of this discussion is, if we are serious about 
doing oversight, the Congress ought to be able to get a straightforward 
answer to the question: Have any estimates been done already as to 
whether law-abiding Americans have had their communications swept up 
under the FISA authority?
  Second, if we want to understand this law's impact on Americans' 
privacy, we probably want to know whether any wholly domestic 
communications have been collected under the FISA authorities. When we 
are talking about wholly domestic communications, we are talking about 
one person in the United States talking to another person who is also 
in the United States. This law contains a number of safeguards that 
many people thought would prevent the warrantless collection of wholly 
domestic U.S. communications, and I think the Congress ought to know 
whether these safeguards are working.
  So our tripartisan group of Senators dug into this issue as well, and 
we asked the Director back in July if he knew whether any wholly 
domestic U.S. communications had been collected under the FISA 
Amendments Act. So here we are talking about wholly domestic 
communications from one American, for example, in Rhode Island, to 
another American in the home State of Senator Merkley and myself. I am 
disappointed to say the Director declined to answer this question as 
well.
  Let's contemplate that for a moment. A tripartisan group of 
Senators--Democrats, Republicans, Independents--asked if the government 
knew whether any wholly domestic communications had been collected 
under the FISA law, and the head of the intelligence community declined 
to publicly provide a simple yes or no response to that question.
  That means the FISA Amendments Act involves the government going to a 
secret court on a yearly basis and getting programmatic warrants to 
collect people's phone calls and e-mails, with no requirement that 
these communications actually belong to people involved with terrorism 
or espionage. This authority is not supposed to be used against 
Americans, but, in fact, intelligence officials say they do not even 
know how many American communications they are actually collecting. The 
fact is, once the government has this pile of communications, which 
contains an unknown but potentially very large number of Americans' 
phone calls and e-mails, there are surprisingly few rules about what 
can be done with it.
  For example, there is nothing in the law that prevents government 
officials from going to that pile of communications and deliberately 
searching for the phone calls or e-mails of a specific American, even 
if they do not have any actual evidence that the American is involved 
in some kind of wrongdoing, some kind of nefarious activity.
  Again, if it sounds familiar, it ought to because that is how I began 
this discussion, talking about these sorts of general warrants that so 
upset the colonists. General warrants allowing government officials to 
deliberately intrude on the privacy of individual Americans at their 
discretion was, as I have outlined this morning, the abuse that led 
America's Founding Fathers to rise up against the British. They are 
exactly what the fourth amendment was written to prevent.
  If government officials wanted to search an American's house or read 
their e-mails or listen to their phone calls, they are supposed to show 
evidence to a judge and get an individual warrant. But this loophole in 
the law allowed government officials to make an end run around 
traditional warrant requirements and conduct backdoor searches for 
American's communications.
  Now, let me be clear. If the government has clear evidence that an 
American is engaged in terrorism, espionage--serious crimes--I think 
the government ought to be able to read that person's e-mails and 
listen to that person's phone calls. I believe and have long felt that 
is an essential part of protecting public safety. But government 
officials ought to be required to get a warrant. As the Presiding 
Officer knows, there are even emergency provisions--and I support these 
strongly as well--that allow for an emergency authorization before you 
get the warrant, in order to protect the well-being of the American 
people.
  So what we want to know at this point, if you are trying to decide 
whether the constitutional teeter-totter is being properly balanced or 
is out of whack, you want to know whether the government has ever taken 
advantage of this backdoor search loophole and conducted a warrantless 
search for the phone calls or e-mails of specific Americans. So when 
the tripartisan group wrote to the Director of National Intelligence, 
we asked him to state whether the intelligence community has ever 
deliberately conducted a warrantless search of this nature. The 
Director declined to respond to this as well--declined to respond to a 
tripartisan group of Senators simply asking: Has the intelligence 
community ever deliberately conducted a warrantless search of this 
nature?
  If anybody is kind of keeping score on this, you will notice that the 
Director refused to publicly answer any of the questions that were 
asked in our letter. So if you are looking for reassurance that the law 
is being carried out in a way that respects the privacy of law-abiding 
American citizens, you will not find it in his response.
  I should note that the Director did provide additional responses in a 
highly classified attachment to his letter. This attachment was so 
highly classified that I think of the 13 Senators who signed the letter 
of the tripartisan group, 11 of those 13 Senators do not even have 
staff who have the requisite security clearance to read it. So 
naturally that makes it hard for those Senators, let alone the public, 
to gain a better understanding of the privacy impact of the law.
  Several Senators sent the Director a followup letter last month again 
urging him to provide public answers to what we felt were 
straightforward questions--really sort of a minimum set of responses 
that the Congress needs to do oversight. The Director refused that as 
well.
  Intelligence officials do not deny the facts I have outlined this 
morning. They still insist they are already protecting innocent 
Americans' privacy. There is a lot of discussion about how this program 
is overseen by the secret FISA Court, how the court is charged with 
ensuring that all of the collections carried out under this program are 
constitutional.
  To respond to those arguments, I would note that under the FISA 
Amendments Act, the government does not have to get the permission of 
the

[[Page 18203]]

FISA Court to read particular e-mails or listen to particular phone 
calls. The law simply requires the court to review the government's 
collection and handling procedures on an annual basis. There is no 
requirement in the law for the court to approve the collection and 
review of individual communications even if government officials set 
out to deliberately read the e-mails of an American citizen.
  Even when the court reviews the government's collection and handling 
procedures, it is important to note that the FISA Court's ruling are 
made entirely in secret. It may seem hard to believe, but the court's 
rulings that interpret major surveillance law and even the U.S. 
Constitution in significant ways--these are important judgments--the 
public has absolutely no idea what the court is actually saying. What 
that means is that our country is in effect developing a secret body of 
law so that most Americans have no way of finding out how their laws 
and their Constitution are being interpreted. That is a big problem. 
Americans do not expect to know the details of how government agencies 
collect information, but Americans do expect those agencies to operate 
within the boundaries of publicly understood law. Americans need and 
have a right to know how those laws and the Constitution are 
interpreted so they can ratify the decisions that elected officials 
make on their behalf. To put it another way, I think we understand that 
Americans know that intelligence agencies sometimes have to conduct 
secret operations, but the American people do not expect these agencies 
to rely on secret law.
  I think we understand that the work of the intelligence community is 
so extraordinarily important. I see the distinguished chair of the 
committee here. Every member of our committee--every member--feels that 
it is absolutely critical to protect the sources and methods by which 
the work of the intelligence community is being done. But we do not 
expect the public to, in effect, just accept secret law.
  When you go to your laptop and you look up a law, it is public. It is 
public. But what I have described is a growing pattern of secret law 
that makes it harder for the American people to make judgments about 
the decisions that are being made by those in the intelligence 
community. I think that can undermine the confidence the public has in 
the important work being done by the intelligence community.
  If you think back to colonial times, when the British Government was 
issuing writs of assistance and general warrants, the colonists were at 
least able to challenge those warrants in open court. So when the 
courts upheld those writs of assistance, ordinary people could read 
about the decisions, and people such as James Otis and John Adams could 
publicly debate whether the law was adequately protecting the privacy 
of law-abiding individuals. But if the FISA Court were to uphold 
something like that today, in the age of digital communications and 
electronic surveillance, it could conceivably pass entirely unnoticed 
by the public, even by those people whose privacy was being invaded.
  Since 2008 other Senators and I have urged the Department of Justice 
and the intelligence community to establish a regular process for 
reviewing, redacting, and releasing the opinions of the FISA Court that 
contain significant interpretation of the law so that members of the 
public have the opportunity to understand what their government thinks 
their law and their Constitution actually mean. I am not talking about 
a need to release every single routine decision made by the court. 
Obviously, most of the cases that come before the court contain 
sensitive information about intelligence sources and methods that are 
appropriate to keep secret.
  I do not take a backseat to any Member of this body in terms of 
protecting the sources and methods of those in the intelligence 
community doing their important work, but the law itself should never 
be secret. What Federal courts think the law and the fourth amendment 
to the Constitution actually mean should never be a secret from the 
American people, the way it is today.
  I am going to wrap up. I see Senator Merkley and Senator Feinstein 
here. I have a couple of additional points.
  I was encouraged in 2009 when the Obama administration wrote to 
Senator Rockefeller and myself to inform us that they would be setting 
up a process for redacting and releasing those FISA Court opinions that 
contained significant interpretations of law. Unfortunately, over 3 
years later, this process has produced literally zero results. Not a 
single redacted opinion or summary of FISA Court rulings has been 
released. I cannot even tell if the administration still intends to 
fulfill this promise. I often get the feeling they are hoping people 
will go away and forget that the promise was made in the first place.
  I should note, in fairness, that while the administration has so far 
failed to fulfill this promise, the intelligence community has 
sometimes been willing to declassify specific information about the 
FISA Court's rulings in response to requests from myself and other 
Senators. For example, in response to a request I made this past 
summer, the intelligence community acknowledged that on at least one 
occasion--this was an acknowledgement from the intelligence community. 
The intelligence community acknowledged that at least on one occasion, 
the FISA Court had ruled that collection carried out by the government 
under the FISA Amendments Act violated the fourth amendment to the 
Constitution. I think that is an important point to remember when you 
hear people saying the law is adequately protecting Americans' privacy.
  I would also note that on this point, partially declassified internal 
reviews of the FISA amendments collection act have noted that certain 
types of compliance issues continue to occur--continue to occur.
  I have two last points. Beyond the fact that the programmatic 
warrants authorized by the FISA Amendments Act are approved by a secret 
court, the other thing that intelligence officials cite is that there 
are ``minimization'' procedures to deal with the issues that those of 
us who are concerned about privacy rights have raised. This is an odd 
term, but it simply refers to rules for dealing with information about 
Americans.
  Intelligence officials will tell you that these are pretty much 
taking care of everything, and if there are not enough privacy 
protections in the law itself, minimization procedures provide all of 
the privacy protections any reasonable person could ever want or need. 
These minimization procedures are classified, so most people are never 
going to know what they say. As someone who has access to the 
minimization procedures, I will make it clear that I think they are 
certainly better than nothing, but there is no way, colleagues, these 
minimization procedures ought to be a substitute for having strong 
privacy protections written into the law.
  I will close with the reason I feel so strongly about this, which is 
that senior intelligence officials have sometimes described these 
handling procedures in misleading ways and make protections for 
Americans' privacy sound stronger than they actually are. I was 
particularly disappointed when the Director of NSA did this recently at 
a large technology conference.
  In response to a question about the National Security Agency's 
surveillance of Americans, General Alexander referenced the FISA 
Amendments Act and talked in particular about the minimization 
procedures that applied to the collection of U.S. communications. 
Understand that this was at a big, open technology conference. General 
Alexander said that when the NSA sweeps up communications from a ``good 
guy,'' which I think we all assume is a law-abiding American, the NSA 
has ``requirements from the FISA court and the Attorney General to 
minimize that, which means nobody else can see it unless there is a 
crime that is being committed.'' Now, anybody who hears that phrase 
says: That is pretty good. I imagine that is what people in that 
technology meeting and

[[Page 18204]]

the conference call wanted to hear. The only problem is that it is not 
true. It is not true at all. The privacy protections provided by these 
minimization procedures are simply not as strong as General Alexander 
made them out to be.
  In October, a few months after General Alexander made the comments, 
Senator Udall and I wrote him a letter asking him to please correct the 
record. The first paragraphs of the letter were:

       Dear General Alexander:
       You spoke recently at a technology convention in Nevada, at 
     which you were asked a question about NSA collection of 
     information about American citizens. In your response, you 
     focused in particular on section 702 of the FISA Amendments 
     Act of 2008, which the Senate will debate later this year. In 
     describing the NSA's collection of communications under the 
     FISA Amendments Act, you discussed rules for handling the 
     communications of U.S. persons.

  General Alexander said:

       We may, incidentally, in targeting a bad guy hit on 
     somebody [sic] from a good guy, because there's a discussion 
     there. We have requirements from the FISA Court and the 
     Attorney General to minimize that, which means nobody else 
     can see it unless there's a crime that's been committed.

  Senator Udall and I wrote:

       We believe that this statement incorrectly characterized 
     the minimization requirements that apply to the NSA's FISA 
     Amendments Act collection, and portrayed privacy protections 
     for Americans' communications as being stronger than they 
     actually are. We urge you to correct this statement, so that 
     Congress and the public can have a debate over the renewal of 
     this law that is informed by at least some accurate 
     information about the impact it has had on Americans' 
     privacy.

  General Alexander wrote us back a few weeks later and said that, of 
course, that is not exactly how minimization procedures work and, of 
course, the privacy protections aren't as strong as that.
  If anyone would like to read his letter, I put it up on my Web site. 
I don't know why General Alexander described the minimization 
procedures the way he did. It is possible he misspoke. It is possible 
he was mistaken. But I certainly would be more sympathetic to these 
arguments that all these privacy protections are being taken care of if 
it hadn't taken Senator Udall and I making a push to get the NSA to 
correct the record with respect to these minimization procedures. 
Frankly, I am not sure, if there hadn't been a big push by Senators who 
had questions about what was said at that technology conference, I am 
not sure the NSA would have ever corrected what they originally said 
about minimization.
  So minimization procedures are not a bad idea, but the suggestion 
that we don't need privacy protections written into the law because of 
them is a bad idea.
  Finally, at that conference, General Alexander stated: ``The story 
that we [the NSA] have millions or hundreds of millions of dossiers on 
people is absolutely false.''
  I have been on the Senate Intelligence Committee for 12 years, and I 
don't know what the term ``dossier'' means in that context.
  So in October, Senator Udall, a member of the committee, and I asked 
the Director to clarify that statement. We asked:

       Does the NSA collect any type of data at all on `millions 
     or hundreds of millions of Americans'?

  I think that is a pretty straightforward question. If we are asking 
whether the NSA is doing a good job protecting Americans' privacy, it 
is one of the most basic questions of all. If General Alexander saw 
fit, and he was the one who said they don't keep millions of dossiers, 
General Alexander could have answered our question about whether they 
were keeping these dossiers with a simple yes or no.
  Instead, the Director of the NSA replied that while he appreciated 
our desire to have responses to the questions on the public record, he 
would not provide a public answer.
  Again, the Director of the NSA said: ``The story that we [the NSA] 
have millions or hundreds of millions of dossiers on people is 
absolutely false.''
  So two members of the committee asked: ``Does the NSA collect any 
type of data at all on `millions or hundreds of millions of 
Americans,''' and the Director refused to respond.
  At this point, I close by way of saying I believe the FISA Amendments 
Act has enabled the government to collect useful intelligence 
information, and my goal is to reform the legislation. The two specific 
things I want to do are, first, require the intelligence community to 
provide more information about the impact of the FISA Amendments Act on 
Americans' privacy and, second, to make improvements to privacy 
protections so we can readily see where they are most needed.
  So there will be several amendments that will be offered. The 
amendment I will be offering is sponsored by 15 Members of the Senate. 
It simply says the Director of the National Intelligence Agency should 
submit a report to the Congress on the privacy impact of the FISA 
Amendments Act.
  This amendment would require the report to state whether any estimate 
has been done, how many U.S. communications have been collected under 
the authority, and to provide any estimates that exist. I wish to 
emphasize this amendment would not require any entity to actually 
conduct such an estimate. The Director would be required only to 
provide any estimates that have already been done and, if no estimates 
exist, the Director could say so.
  Additionally, the amendment would require the report to state whether 
any wholly domestic communications have been collected under the FISA 
Amendments Act and whether any government agencies have ever conducted 
any warrantless, backdoor searches. These are straightforward 
questions, and they are obviously relevant to understanding the scope 
of the law's impact on privacy.
  The report would address General Alexander's confusing statements by 
requiring the intelligence community to simply state whether the NSA 
has collected any personally identifiable data on more than 1 million 
Americans. The Congress and the country deserve an answer to this 
question as well.
  The amendment does not force the declassification of any information. 
The amendment gives the President full discretion to redact as much 
information from the public version of the report as he deems 
appropriate, as long as he tells the Congress why.
  To repeat, the amendment doesn't require the intelligence community 
to conduct a new estimate, and the President would have full discretion 
to decide whether any information should be made public.
  I offer this amendment because I believe every Member of Congress 
ought to have the answers to these questions. If your constituents are 
similar to mine and Senator Merkley's, they expect us to give 
government agencies the authority to protect our country and to gather 
intelligence on important topics, but they also expect us to conduct 
vigorous oversight on what those agencies are doing.
  It is, I guess, a temptation to say: I don't know what is going on, 
so I will let somebody else look at the privacy issues and go from 
there. I don't think that is good oversight.
  To me, at a minimum, if we don't pass a requirement that we get a 
rough accounting of whether there has even been an estimate done with 
respect to how many law-abiding Americans have been swept up under 
these FISA authorities, my view is that oversight becomes toothless, 
and that is not what our obligation over these issues is all about.
  There will be other important amendments as well. Senator Merkley has 
one that I think is particularly important because it goes to this 
question of secret laws. Senator Leahy seeks to promote additional 
accountability as well with his important amendment. My colleague 
Senator Paul will be offering an amendment, an important amendment as 
well, with respect to reasonable searches and seizures under the fourth 
amendment.
  We obviously have crucial work to do with respect to the fiscal cliff 
issue in the next few days. We talked earlier when the majority leader 
was here about the impact of the budget and taxes, senior citizens not 
being able to see doctors. It is crucial work, and I continue to be 
part of that optimists

[[Page 18205]]

caucus in the Senate, believing we can still find some common ground in 
these last few days on the fiscal cliff and avoid going over the fiscal 
cliff.
  That is crucial work, but striking the right balance between 
protecting our country and protecting our individual liberties is also 
important work. For that reason, I wanted to walk through the history 
of the FISA Amendments Act this morning, describe why it was so 
important, particularly for us to get even an accounting.
  Remember, this doesn't disrupt any operations in the intelligence 
community. This is just an accounting of how many law-abiding Americans 
had their communications swept up under this law. That work is crucial 
too.
  For that reason, I hope that on a bipartisan basis, the amendments 
will be viewed favorably by the Senate when we begin voting. Thank you 
for your indulgence for being part of this discussion, presiding in the 
chair, and with special thanks to the distinguished majority leader who 
gave me the opportunity to open this discussion about FISA this 
morning.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I would like to make an opening 
statement, as the committee chair, on the bill that is before the 
Senate.
  This bill is a simple bill. This is a House bill that extends, 
reauthorizes the FISA Amendments Act. FISA is the Foreign Intelligence 
Surveillance Act. The House bill reauthorizes the FISA Amendments Act 
for 5 years, until December 31, 2017. That is all it does.
  Without Senate action, these authorities to collect intelligence 
expire in 4 days. That is the reason it is the House bill before us, 
and that is the reason I urge this body to vote no on all amendments 
and send this reauthorization to the President where it will be signed. 
If it goes past the 31st, the program will be interrupted.
  This is important. Reauthorization of the FISA Amendments Act has the 
support of the Director of National Security, Jim Clapper; the Attorney 
General, Eric Holder; and other national security officials who have 
made clear the importance of this legislation.
  Following my remarks, I would like to enter letters into the Record 
from the Attorney General and the Director of National Intelligence, 
saying this reauthorization is the highest legislative priority of the 
Intelligence Community.
  Let me explain what the expiring provisions of the FISA Amendments 
Act do. I assume that is agreeable with the President that these 
letters go into the Record following my remarks.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (See exhibit 1.)
  Mrs. FEINSTEIN. Let me describe what these provisions do and why they 
are necessary to reauthorize.
  What will expire on December 31 is title VII of FISA, which is called 
the FAA, the FISA Amendments Act. This authorizes the executive branch 
of the government to go to the FISA Court, which is a special court--
and most people don't know this--of 11 Federal District Court judges 
appointed by the Supreme Court who review government requests for 
surveillance activities and obtain annual approval for a program to 
conduct surveillance on non-U.S. persons, in other words, surveillance 
on individuals who are not U.S. citizens or lawful permanent residents 
and who are located outside the United States.
  Under current law, the Attorney General and the Director of National 
Intelligence may submit an application to the FISA Court. I call this a 
program warrant. It identifies the category of foreign persons against 
whom the government seeks to conduct surveillance. This application is 
accompanied by targeting and minimization procedures that establish how 
the government will determine that someone targeted for surveillance is 
located outside the United States; and, secondly, how it is going to 
minimize the acquisition and retention of any information concerning 
U.S. persons who are accidentally caught up in this.
  If the FISA Court finds the procedures to be consistent with both law 
and the fourth amendment, they enter an order authorizing this kind of 
surveillance for 1 year--and the judges on the FISA Court have found 
both--and they have authorized the program to continue.
  The process that follows allows the intelligence community to collect 
the communications of international terrorists and other non-U.S. 
persons who are located outside the country by, for example, acquiring 
electronic communications such as phone calls and e-mails sent to or 
from a phone number or an e-mail address known to be used by the person 
under surveillance.
  Without this authority, the intelligence community would need to 
return to the process of going to the FISA Court in every individual 
case involving collection directed at a non-U.S. person and to prove in 
each case there is probable cause to believe the individual is part of 
or working for a foreign power or a terrorist group.
  Now, here is the question: Can the government use section 702 of FISA 
to target a U.S. person? The answer to that is no. The law specifically 
prohibits the use of section 702 authorities to direct collection 
against--that means target--U.S. persons. So no one should think the 
targets are U.S. persons.
  This prohibition is codified in section 702(b), which states that 
surveillance authorities may not be used--and let me quote the law--
``to intentionally target any person known at the time of acquisition 
to be located in the United States or to intentionally target a United 
States person reasonably believed to be located outside the United 
States.''
  Now, if the government wants to engage in electronic surveillance 
targeting a U.S. person for foreign intelligence purposes, it must go 
back to the FISA Court and it must get a specific order from that 
court. In an emergency, the surveillance can commence before the court 
order is issued, but the government still must have probable cause to 
believe the U.S. person is an agent of a foreign power.
  Let me take a few moments to address the principal concerns some of 
my colleagues have expressed about this legislation, which is the 
effect this one provision--Section 702--may have on the privacy and 
civil liberties of U.S. persons. And let me say that 13 members of the 
Intelligence Committee who have voted in favor of the extension of the 
FISA Amendments Act--and against previous amendments from Senator 
Wyden--do not believe privacy is being eliminated under the law this 
bill would reauthorize.
  As I have discussed, section 702 establishes a framework for the 
government to acquire foreign intelligence by conducting electronic 
surveillance on non-U.S. persons who are reasonably believed to be 
located outside of the United States under a program that is annually 
approved by the court. The privacy concerns stem from the potential for 
intelligence collection directed at non-U.S. persons located abroad to 
result in the incidental collection of or concerning communications of 
U.S. persons. I understand these concerns, and I would like to explain 
why I believe the existing provisions are adequate to address them.
  First, this section is narrowly tailored to ensure that it may only 
be used to target non-U.S. persons located abroad. It includes specific 
prohibitions on targeting U.S. persons or persons inside the United 
States and prohibitions on engaging in so-called reverse-targeting, 
which means targeting a non-U.S. person abroad when the real purpose is 
to obtain their communications with a person inside the United States. 
That is prohibited.
  Anytime the intelligence community is seeking to collect the 
communications of an American, it has to demonstrate that it has 
probable cause and get an individual FISA Court order.
  Second, Congress recognized at the time this amendments act was 
enacted that it is simply not possible to collect intelligence on the 
communications of a person of interest without also collecting 
information about the people with whom and about whom that person 
communicates, including, in some

[[Page 18206]]

cases, non-targeted U.S. persons. The concern was addressed when the 
FAA was originally drafted. Specifically, in order to protect the 
privacy and civil liberty of U.S. persons, Congress mandated that for 
collection conducted under 702, the Attorney General adopt and the FISA 
Court review and approve procedures that minimize the acquisition, 
retention, and dissemination of nonpublic information concerning 
unconsenting U.S. persons.
  Third, numerous reports and assessments from the executive branch 
that I will describe in a moment provide the committee with extensive 
visibility into how these minimization procedures work and enable both 
the Intelligence and the Judiciary Committees to see how these 
procedures are effective in protecting the privacy and civil liberties 
of U.S. persons.
  Oversight by the legislative, judicial, and executive branch of the 
government over the past 4 years has been very thorough. There are 
procedures and requirements in place under current law that provide 
protection for the privacy and civil liberties of U.S. persons. Those 
entrusted with the responsibility to collect the oversight, the 
committees of jurisdiction, the FISA Court, and the executive branch 
agencies together remain vigilant and continue to review the operations 
of these agencies.
  Let me give a quick summary of the 702 reporting requirements under 
current law.
  They include a semiannual assessment by the Attorney General and the 
DNI. Every 6 months the AG and the DNI are required to assess 
compliance with the targeting and minimization procedures and the 
acquisition guidelines adopted under Section 702. They are both further 
required to submit each assessment to the FISA Court and the 
congressional Intelligence and Judiciary Committees.
  The inspector general of the Department of Justice and the inspector 
general of each element of the intelligence community are also 
authorized review compliance with Section 702. The IGs are required to 
provide copies of such reviews to the Attorney General, to the Director 
of National Intelligence, and the congressional Intelligence and 
Judiciary Committees. So we have the AG reviewing, we have the IGs 
reviewing, and then we have separate reviews by the agency heads.
  The head of each element of the intelligence community must conduct 
an annual review which includes the following:
  First, an accounting of the number of disseminated intelligence 
reports containing a reference to the U.S. person's identity. As a 
matter of fact, Members can go into a classified room at the offices of 
the Senate Intelligence Committee and review these reports. Any Member 
has access to that review.
  Second, an accounting of the number of U.S. person identities 
subsequently disseminated by that element in response to requests for 
identities that were not referred to by name or title in the original 
reporting. Members can review that.
  Third, the number of targets who were later determined to be located 
in the United States and, to the extent possible, whether 
communications of such targets were reviewed. Members can go in the 
Intelligence Committee offices and review that.
  Fourth, a description of any procedures developed by the head of such 
element of the intelligence community and approved by the Director of 
National Intelligence to assess the extent to which acquisitions under 
702 acquire communications of U.S. persons, and the results of any such 
assessment.
  So you see, the reporting requirements go on and on.
  Then there is a semiannual report. Every 6 months, the AG is required 
to fully inform the congressional Intelligence and Judiciary Committees 
concerning the implementation of Title VII of FISA, and there is a 
whole list of things that must be reviewed and recounted. Then there is 
a semiannual Attorney General review on FISA. There is also the 
provision for documents from the FISA Court relating to significant 
construction or interpretation of FISA.
  Mr. President, I ask unanimous consent to have printed in the Record 
this list.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             Summary of Section 702 Reporting Requirements

       Background: The surveillance authorities added to the 
     Foreign Intelligence Surveillance Act (``FISA'') by FISA 
     Amendments Act (``FAA'') enable the government to conduct 
     intelligence collection targeting persons located outside the 
     United States. The FAA provision that receives the most 
     attention is known as ``Section 702,'' which authorizes the 
     government to engage in certain forms of intelligence 
     collection targeting non-U.S. persons located overseas for 
     foreign intelligence purposes with the assistance of U.S.-
     based electronic communication service providers. This 
     Section 702 collection is approved by the FISA Court on a 
     programmatic basis, without the need for individualized court 
     orders. Instead, the Director of National Intelligence (DNI) 
     and Attorney General (AG) submit annual certifications to the 
     Court for review and approval, which identify categories of 
     non-U.S. person targets located overseas.
       Reporting Requirements Relating to Section 702: FISA 
     imposes a series reporting requirements on the AG, DNI, and 
     agencies within the Intelligence Community (IC) that utilize 
     Section 702 authorities. These include, with respect to 
     section 702:
       Semiannual AG/DNI Assessments of Section 702. Every six 
     months, the AG and DNI are required to assess compliance with 
     the targeting and minimization procedures and the acquisition 
     guidelines adopted under Section 702. The AG and DNI are 
     further required to submit each assessment to the FISA Court 
     and the congressional intelligence and judiciary committees. 
     Section 702(l)(1) [50 U.S.C. 1881a(l)(1)].
       IG Assessments of Section 702. The Inspector General of the 
     Department of Justice and the Inspector General of each 
     element of the intelligence community ``authorized to acquire 
     foreign intelligence information under [Section 702]'' (e.g., 
     the NSA IG) are ``authorized'' to review compliance with the 
     Section 702 targeting and minimization procedures and the 
     acquisition guidelines. Section 702(l)(2)(A) [50 U.S.C. 
     1881a(l)(2)(A)] (emphasis added).
       In addition, the IGs are required to review ``the number of 
     disseminated intelligence reports containing a reference to a 
     United States-person identity and the number of United 
     States-person identities subsequently disseminated by the 
     element concerned in response to requests for identities that 
     were not referred to by name or title in the original 
     reporting'' and ``the number of targets that were later 
     determined to be located in the United States and, to the 
     extent possible, whether communications of such targets were 
     reviewed.'' Section 702(l)(2)(B), (C) [50 U.S.C. 
     1881a(l)(2)(B), (C)].
       Finally, the IGs are required to provide copies of such 
     reviews to the AG, DNI, and the congressional intelligence 
     and judiciary committees. Section 702(l)(2)(D) [50 U.S.C. 
     1881a(l)(2)(D)].
       Annual Reviews by Agency Heads of Section 702. The head of 
     each element of the intelligence community ``conducting an 
     acquisition authorized under [Section 702]'' (e.g., the 
     Director of NSA) are required to conduct annual reviews to 
     ``determine whether there is reason to believe that foreign 
     intelligence information has been or will be obtained from 
     the acquisition.'' Among other things, the annual review must 
     include:
       (1) ``an accounting of the number of disseminated 
     intelligence reports containing a reference to a United 
     States-person identity;''
       (2) ``an accounting of the number of United States-person 
     identities subsequently disseminated by that element in 
     response to requests for identities that were not referred to 
     by name or title in the original reporting;''
       (3) ``the number of targets that were later determined to 
     be located in the United States and, to the extent possible, 
     whether communications of such targets were reviewed;'' and
       (4) ``a description of any procedures developed by the head 
     of such element of the intelligence community and approved by 
     the Director of National Intelligence to assess . . . the 
     extent to which the acquisitions authorized under [Section 
     702] acquire the communications of United States persons, and 
     the results of any such assessment.''
       The head of each element of the intelligence community that 
     conducts an annual review is also required to use the review 
     to ``evaluate the adequacy of the minimization procedures 
     utilized by such element.''
       Finally, the head of each element of the intelligence 
     community that conducts an annual review is required to 
     provide a copy of each review to the FISA Court, AG, DNI, and 
     the congressional intelligence and judiciary committees. 
     Section 702(l)(3) [50 U.S.C. 1881a(l)(3)].
       Semiannual AG Report on Title VII. Every 6 months, the AG 
     is required to ``fully inform'' the congressional 
     intelligence and judiciary committees ``concerning the 
     implementation'' of Title VII. This reporting requirement is 
     in addition the semiannual assessment performed under Section 
     702 and

[[Page 18207]]

     encompasses Section 703 and 704 of Title VII, as well as 
     Section 702. Among other things, each report is required to 
     include:
       (1) certifications submitted in accordance with Section 
     702;
       (2) justification for any exercise of the emergency 
     authority contained in Section 702;
       (3) directives issued under Section 702;
       (4) ``a description of the judicial review during the 
     reporting period . . . including a copy of an order or 
     pleading in connection with such review that contains a 
     significant legal interpretation of the provisions of 
     [Section 702];''
       (5) actions taken to challenge or enforce a directive under 
     Section 702;
       (6) compliance reviews of acquisitions authorized under 
     Section 702;
       (7) a description of any incidents of noncompliance with 
     directives, procedures, or guidelines issued under Section 
     702; and
       (8) the total number of applications made for orders under 
     Sections 703 and 704, as well as the total number of such 
     orders granted, modified; and denied; and the number of AG- 
     authorized emergency acquisitions under these sections. 
     Section 707 [50 U.S.C. 1881f].
       Semiannual AG Report on FISA. Every 6 months, the AG is 
     required to submit a report to the congressional intelligence 
     and judiciary committees concerning the implementation of 
     FISA. This reporting requirement comes in addition to both 
     the Section 702 semiannual assessment and the Title VII 
     semiannual report and encompasses all the provisions of the 
     Act. In addition to requirements that pertain to Titles I-V 
     of FISA, the report must include a ``summary of significant 
     legal interpretations'' involving matters before the FISA 
     Court and copies of all decisions, orders, or opinions of the 
     FISA Court that include ``significant construction or 
     interpretation'' of any provision of FISA, including Section 
     702. Section 601(a) [50 U.S.C. 1871(a)].
       Provision of Documents Relating to Significant Construction 
     or Interpretation of FISA. Within 45 days of any decision, 
     order, or opinion issued by the FISA Court that ``includes 
     significant construction or interpretation of any provision 
     of [FISA]'' (including Section 702), the AG is required to 
     submit to the congressional intelligence and judiciary 
     committees ``a copy of the decision, order, or opinion'' and 
     any ``pleadings, applications, or memoranda of law associated 
     with such decision, order, or opinion.'' Section 601(c) [50 
     U.S.C. 1871(c)].

  Mrs. FEINSTEIN. So, Mr. President, it is not a question of this 
oversight not being done. I must respectfully disagree with the Senator 
from Oregon on that point. There is clearly rigorous oversight, and we 
have done hearing after hearing, we have looked at report after report, 
and any Member of this body who so wishes can go and review this 
material in the offices of the Intelligence Committee.
  Now, let me talk about a protection that does exist for privacy, but 
will expire if this bill is not passed. That is section 704. Under this 
section, the intelligence community is required to get a specific 
judicial order before conducting surveillance on a U.S. person located 
outside the United States.
  Before this provision was enacted in 2008 as the product of Senators 
who were concerned--and they were listened to, and this was enacted--
the intelligence community could conduct intelligence collection on 
U.S. persons outside the country with only the approval of the Attorney 
General but without a requirement of independent judicial review. 
Section 704 provides that judicial review by the special Foreign 
Intelligence Surveillance Court. This will only be preserved if title 
VII of this act is reauthorized. If it isn't, the privacy provision 
goes down with it.
  Now, let me talk a bit more about the oversight that we have done. If 
you listen to some, there has been little oversight, but that is not 
the case. We have held numerous hearings with Directors of National 
Intelligence Dennis Blair and Jim Clapper; with the head of the NSA, 
General Alexander; and with Bob Mueller at the FBI. We have had Eric 
Holder appear before the committee to discuss this, and we have heard 
from intelligence community professionals involved in carrying out 
surveillance operations, the lawyers who review these operations, and, 
importantly, the inspectors general who carry out oversight of the 
program and have written reports and letters to the Congress with the 
results of that report.
  The intelligence committee's review of these FAA surveillance 
authorities has included the receipt and examination of dozens of 
reports concerning the implementation of these authorities over the 
past 4 years, which the executive branch is required to provide by law. 
We have received and scrutinized all the classified opinions of the 
court that interpret the law in a significant way.
  Finally, our staff has held countless briefings with officials from 
the NSA, the DOJ, the Office of the DNI, and the FISA Court itself, 
including the FBI. Collectively, these assessments, reports, and other 
information obtained by the Intelligence Committee demonstrate that the 
government implements the FAA surveillance authorities in a responsible 
manner, with relatively few incidents of noncompliance.
  Let me say this. Where such incidents of noncompliance have arisen, 
they have been inadvertent. They have not been intentional. They have 
been the result of human error or technical defect, and they have been 
promptly reported and remedied. That is important. Through 4 years of 
oversight, from all these reports, from all the meetings, from all the 
hearings, we have not identified a single case in which a government 
official engaged in a willful effort to circumvent or violate the law.
  Keep in mind the oversight performed by Congress--that is, both 
Houses--and the FISA court comes in addition to the extensive internal 
oversight of the implementation that is performed by the Department of 
Justice, the Director of National Intelligence, and multiple IGs.
  There is a view by some that this country no longer needs to fear 
attack. I don't share that view, and I have asked the intelligence 
committee staff to compile arrests that have been made in the last 4 
years in America on terrorist plots that have been stopped. There are 
100 arrests that have been made between 2009 and 2012. There have been 
16 individuals arrested just this year alone. Let me quickly review 
some of these plots. Some of these arrests may come about as a result 
of this program. Again, if Members want to see the specific cases where 
FISA Amendments Act authorities were used, they can go and look at the 
classified background of these cases.
  First, in November, 1 month ago, two arrests for conspiracy to 
provide material support to terrorists and use a weapon of mass 
destruction. That was Raees Alam Qazi and Sheheryar Alam Qazi. They 
were arrested by the FBI in Fort Lauderdale, FL. The next case is 
another conspiracy to provide material support. Arrested were Ralph 
Deleon, Miguel Alejandro Santana Vidriales and Arifeen David Gojali. 
These three men were planning to travel to Afghanistan to attend 
terrorist training and commit violent jihad; third, was a plot to bomb 
the New York Federal Reserve Bank; fourth, a plot to bomb a downtown 
Chicago bar; fifth, a conspiracy to provide material support to the 
Islamic Jihad Union; sixth, a plot to carry out a suicide bomb attack 
against the U.S. Capitol in February of 2012; seventh, a plot to bomb 
locations in Tampa, FL; eighth, a plot to bomb New York City targets 
and troops returning from combat overseas; ninth, a plot to assassinate 
the Saudi Ambassador to the United States; and it goes on and on and 
on.
  So I believe the FISA Amendments Act is important and these cases 
show the program has worked. As the years go on, I believe good 
intelligence is the most important way to prevent these attacks.
  Information gained through programs such as this one--and through 
other sources as well--is able to be used to prevent future attacks. 
So, in the past 4 years, there have been 100 arrests to prevent 
something from happening in the United States, some of these plots have 
been thwarted because of this program. I think it is a vital program. 
We are doing our level best to conduct good oversight and keep abreast 
of the details of the program and to see that these reports come in. I 
have tried to satisfy Senator Wyden but apparently have been unable to 
do so.
  I am hopeful the Senate Intelligence Committee's 13-to-2 vote to 
reauthorize this important legislation will be considered by all 
Members.

[[Page 18208]]

  I ask unanimous consent to have printed in the Record the Statement 
of Administrative Policy on the House bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                   Statement of Administration Policy


       H.R. 5949--FISA Amendments Act Reauthorization Act of 2012

          (Rep. Smith, R-TX, and 5 cosponsors, Sept. 10, 2012)

       The Administration strongly supports H.R. 5949. The bill 
     would reauthorize Title VII of the Foreign Intelligence 
     Surveillance Act (FISA), which expires at the end of this 
     year. Title VII of FISA allows the Intelligence Community to 
     collect vital foreign intelligence information about 
     international terrorists and other important targets 
     overseas, while providing protection for the civil liberties 
     and privacy of Americans. Intelligence collection under Title 
     VII has produced and continues to produce significant 
     information that is vital to defend the Nation against 
     international terrorism and other threats. The Administration 
     looks forward to working with the Congress to ensure the 
     continued availability of this critical intelligence 
     capability.

  Mrs. FEINSTEIN. It states that the administration strongly supports 
H.R. 5949, and it goes on to say what the bill would do. It says it is 
vital and it produced and continues to produce significant information 
that is vital to defend the Nation against international terrorism and 
other threats.
  I am very hopeful this bill will pass without amendment and thereupon 
can go directly to the President for signature.
  I yield the floor.


                               exhibit 1

                                          Inspector General of the


                                       Intelligence Community,

                                    Washington, DC, June 15, 2012.
     Hon. Ron Wyden,
     Senate Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
     Hon. Mark Udall,
     Senate Select Committee on Intelligence, U.S. Senate, 
         Washington, DC.
       Dear Senator Wyden and Senator Udall: Thank you for your 4 
     May 2012 letter requesting that my office and the National 
     Security Agency (NSA) Inspector General (IG) determine the 
     feasibility of estimating ``how many people inside the United 
     States have had their communications collected or reviewed 
     under the authorities granted by section 702'' of the FISA 
     Amendment Act (FAA). On 21 May 2012, I informed you that the 
     NSA Inspector General, George Ellard, would be taking the 
     lead on the requested feasibility assessment, as his office 
     could provide an expedited response to this important 
     inquiry.
       The NSA IG provided a classified response on 6 June 2012. I 
     defer to his conclusion that obtaining such an estimate was 
     beyond the capacity of his office and dedicating sufficient 
     additional resources would likely impede the NSA's mission. 
     He further stated that his office and NSA leadership agreed 
     that an IG review of the sort suggested would itself violate 
     the privacy of U.S. persons.
       As I stated in my confirmation hearing and as we have 
     specifically discussed, I firmly believe that oversight of 
     intelligence collection is a proper function of an Inspector 
     General. I will continue to work with you and the Committee 
     to identify ways that we can enhance our ability to conduct 
     effective oversight. If you have any questions concerning 
     this response, please contact me.
           Sincerely,


                                   I. Charles McCullough, III,

     Inspector General of the Intelligence Community.
                                  ____



                            Director of National Intelligence,

                                                   Washington, DC.
     Hon. Ron Wyden,
     U.S. Senate.
     Hon. Mike Lee
     U.S. Senate.
     Hon. Rand Paul,
     U.S. Senate.
     Hon. Mark Begich,
     U.S. Senate.
     Hon. Jon Tester,
     U.S. Senate.
     Hon. Tom Udall,
     U.S. Senate.
     Hon. Maria Cantwell,
     U.S. Senate.
     Hon. Mark Udall,
     U.S. Senate.
     Hon. Jeff Merkley,
     U.S. Senate.
     Hon. Chris Coons,
     U.S. Senate.
     Hon. Jeff Bingaman,
     U.S. Senate.
     Hon. Bernard Sanders,
     U.S. Senate.
     Hon. Dick Durbin,
     U.S. Senate.
       Dear Senators: (U) Thank you for your July 26, 2012 letter 
     on the FISA Amendments Act (FAA). As you noted, 
     reauthorization of FAA is an extremely high priority for the 
     Administration. The FAA authorities have proved to be an 
     invaluable asset in our effort to detect and prevent threats 
     to our nation and our allies.
       The members of the Intelligence Community and I appreciate 
     the need for Congress to be fully informed about this statute 
     as it considers reauthorization. We have repeatedly reported 
     to the Intelligence and Judiciary committees of both the 
     House and Senate how we have implemented the statute, the 
     operational value it has afforded, and the extensive measures 
     we take to ensure that the Government's use of these 
     authorities comports with the Constitution and the laws of 
     the United States. Our record of transparency with the 
     Congress includes many formal briefings and hearings, 
     numerous written notifications and reports, and countless 
     hours that our legal, operational, and compliance experts 
     have spent in detailed discussions, briefings, and 
     demonstrations with committee staff and counsel. In addition, 
     we have provided classified and unclassified white papers, 
     available to any Member of Congress, detailing how the law is 
     implemented, the robust oversight involved, and the nature 
     and value of the resulting collection.
       (U) This extensive history of interaction with Congress has 
     included discussions, within the past several months, of the 
     issues raised in your letter of July 26. We have met at 
     length with committee staff and counsel to discuss the legal 
     and operational parameters associated with use of FAA 702. 
     With the benefit of this information, the committees have 
     reported FAA reauthorization legislation. We urge that it be 
     brought to the floor of the Senate and House, and enacted 
     without amendment as proposed by the Administration at the 
     earliest possible date.
       This degree of transparency with Congress has been possible 
     because these hearings, briefings, reports, and discussion 
     have generally been classified. The issues you have raised 
     cannot be accurately and thoroughly addressed in an 
     unclassified setting without revealing intelligence sources 
     and methods, which would defeat the very purpose for which 
     the laws were enacted. It remains vitally important to avoid 
     public disclosure of sources and methods with respect to 
     section 702 in order to protect the efficacy of this 
     important provision for collecting foreign intelligence 
     information.
       (U) The ability to discuss these issues in a classified 
     setting allows us to be completely transparent with Congress 
     on behalf of the American people. We are committed to 
     continuing that transparency. Although a meaningful and 
     accurate unclassified response to the important questions you 
     have asked is not possible. I am enclosing a classified 
     response that addresses your questions in detail.
       (U) That said, there is a point in your letter I would like 
     to address directly. I strongly take exception to the 
     suggestion that there is a ``loophole'' in the current law 
     concerning access to communications collected under section 
     702 of the FAA. While our collection methods are classified, 
     the basic standards for that collection are a matter of 
     public law:
       Section 702 only permits targeting of non-U.S. persons 
     reasonably believed to be located outside of the United 
     States. It does not permit targeting of U.S. persons anywhere 
     in the world, or of any person inside the United States.
       Section 702 prohibits so-called ``reverse targeting''--
     targeting a person located outside the United States as a 
     pretext when the real goal is to target a person inside the 
     United States.
       Section 702 prohibits the intentional acquisition of any 
     communication when all communicants are known at the time of 
     acquisition to be within the United States.
       (U) In enacting these standards for collection, Congress 
     understood that some communications of U.S. persons would be 
     incidentally acquired, and the statute therefore specifies 
     minimization procedures that restrict that acquisition, 
     retention, and dissemination of any information about U.S. 
     persons. The Foreign Intelligence Surveillance Court is 
     required by statute to ensure that those procedures are both 
     reasonably designed to ensure compliance with the above 
     limitations and consistent with the Fourth Amendment. In 
     addition, components of the Executive Branch, including both 
     my office and the Department of Justice, regularly assess 
     compliance with the targeting and minimization procedures. 
     Finally, the Intelligence Committees have been fully briefed 
     on both the law and how the government collects and uses 
     information under section 702. In short, there is no loophole 
     in the law.
       (U) As the legislation comes up for floor consideration, we 
     would welcome the opportunity to meet with any Senator or 
     appropriately cleared staff member to address these issues in 
     a classified setting. I have asked Kathleen Turner, Director 
     of my Office of Legislative Affairs, to contact your offices 
     to try to schedule a briefing.
       (U) I appreciate your taking the time to share your views 
     with me, and I look forward to working with you to ensure 
     that Congress has a full understanding of these and any

[[Page 18209]]

     other concerns you may have as the Senate considers 
     legislation to reauthorize the FAA this fall.
           Sincerely,
                                                 James R. Clapper.
       Enclosure.
       UNCLASSIFIED upon removal of Enclosure.
                                  ____

         Office of the Director of National Intelligence, and 
           United States Department of Justice
                                 Washington, DC, February 8, 2012.
     Hon. John Boehner,
     Speaker, House of Representatives, Washington, DC.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Washington, DC.
     Hon. Nancy Pelosi,
     Democratic Leader, House of Representatives, Washington, DC.
     Hon. Mitch McConnell,
     Republican Leader, U.S. Senate, Washington, DC.
       Dear Speaker Boehner and Leaders Reid, Pelosi, and 
     McConnell: we are writing to urge that the Congress 
     reauthorize Title VII of the Foreign Intelligence 
     Surveillance Act (FISA) enacted by the FISA Amendments Act of 
     2008 (FAA), which is set to expire at the end of this year. 
     Title VII of FISA allows the Intelligence Community to 
     collect vital information about international terrorists and 
     other important targets overseas. Reauthorizing this 
     authority is the top legislative priority of the Intelligence 
     Community.
       One provision, section 702, authorizes surveillance 
     directed at non-U.S. persons located overseas who are of 
     foreign intelligence importance. At the same time, it 
     provides a comprehensive regime of oversight by all three 
     branches of Government to protect the privacy and civil 
     liberties of U.S. persons. Under section 702, the Attorney 
     General and the Director of National Intelligence may 
     authorize annually, with the approval of the Foreign 
     Intelligence Surveillance Court (FISC), intelligence 
     collection targeting categories of non-U.S. persons abroad, 
     without the need for a court order for each individual 
     target. Within this framework, no acquisition may 
     intentionally target a U.S. person, here or abroad, or any 
     other person known to be in the United States. The law 
     requires special procedures designed to ensure that all such 
     acquisitions target only non-U.S. persons outside the United 
     States, and to protect the privacy of U.S. persons whose 
     nonpublic information may be incidentally acquired. The 
     Department of Justice and the Office of the Director of 
     National Intelligence conduct extensive oversight reviews of 
     section 702 activities at least once every sixty days, and 
     Title VII requires us to report to the Congress on 
     implementation and compliance twice a year.
       A separate provision of Title VII requires that 
     surveillance directed at U.S. persons overseas be approved by 
     the FISC in each individual case, based on a finding that 
     there is probable cause to believe that the target is a 
     foreign power or an agent, officer, or employee of a foreign 
     power. Before the enactment of the FAA, the Attorney General 
     could authorize such collection without court approval. This 
     provision thus increases the protection given to U.S. 
     persons.
       The attached background paper provides additional 
     unclassified information on the structure, operation and 
     oversight of Title VII of FISA.
       Intelligence collection under Title VII has produced and 
     continues to produce significant intelligence that is vital 
     to protect the nation against international terrorism and 
     other threats. We welcome the opportunity to provide 
     additional information to members concerning these 
     authorities in a classified setting. We are always 
     considering whether there are changes that could be made to 
     improve the law in a manner consistent with the privacy and 
     civil liberties interests of Americans. Our first priority, 
     however, is reauthorization of these authorities in their 
     current form. We look forward to working with you to ensure 
     the speedy enactment of legislation reauthorizing Title VII, 
     without amendment, to avoid any interruption in our use of 
     these authorities to protect the American people.
           Sincerely,
     James R. Clapper,
       Director of National Intelligence.
     Eric H. Holder, Jr.,
       Attorney General.
                                  ____


  Background Paper on Title VII of FISA Prepared by the Department of 
   Justice and the Office of Director of National Intelligence (ODNI)

       This paper describes the provisions of Title VII of the 
     Foreign Intelligence Surveillance Act (FISA) that were added 
     by the FISA Amendments Act of 2008 (FAA). Title VII has 
     proven to be an extremely valuable authority in protecting 
     our nation from terrorism and other national security 
     threats. Title VII is set to expire at the end of this year, 
     and its reauthorization is the top legislative priority of 
     the Intelligence Community.
       The FAA added a new section 702 to FISA, permitting the 
     Foreign Intelligence Surveillance Court (FISC) to approve 
     surveillance of terrorist suspects and other foreign 
     intelligence targets who are non-U.S. persons outside the 
     United States, without the need for individualized court 
     orders. Section 702 includes a series of protections and 
     oversight measures to safeguard the privacy and civil 
     liberties interests of U.S. persons. FISA continues to 
     include its original electronic surveillance provisions, 
     meaning that, in most cases, an individualized court order, 
     based on probable cause that the target is a foreign power or 
     an agent of a foreign power, is still required to conduct 
     electronic surveillance of targets inside the United States. 
     Indeed, other provisions of Title VII extend these 
     protections to U.S. persons overseas. The extensive oversight 
     measures used to implement these authorities demonstrate that 
     the Government has used this capability in the manner 
     contemplated by Congress, taking great care to protect 
     privacy and civil liberties interests.
       This paper begins by describing how section 702 works, its 
     importance to the Intelligence Community, and its extensive 
     oversight provisions. Next, it turns briefly to the other 
     changes made to FISA by the FAA, including section 704, which 
     requires an order from the FISC before the Government may 
     engage in surveillance targeted at U.S. persons overseas. 
     Third, this paper describes the reporting to Congress that 
     the Executive Branch has done under Title VII of FISA. 
     Finally, this paper explains why the Administration believes 
     it is essential that Congress reauthorize Title VII.


1. Section 702 provides valuable foreign intelligence information about 
terrorists and other targets overseas, while protecting the privacy and 
                      civil liberties of Americans

       Section 702 permits the FISC to approve surveillance of 
     terrorist suspects and other targets who are non-U.S. persons 
     outside the United States, without the need for 
     individualized court orders. The FISC may approve 
     surveillance of these kinds of targets when the Government 
     needs the assistance of an electronic communications service 
     provider.
       Before the enactment of the FAA and its predecessor 
     legislation, in order to conduct the kind of surveillance 
     authorized by section 702, FISA was interpreted to require 
     that the Government show on an individualized basis, with 
     respect to all non-U.S. person targets located overseas, that 
     there was probable cause to believe that the target was a 
     foreign power or an agent of a foreign power, and to obtain 
     an order from the FISC approving the surveillance on this 
     basis. In effect, the Intelligence Community treated non-U.S. 
     persons located overseas like persons in the United States, 
     even though foreigners outside the United States generally 
     are not entitled to the protections of the Fourth Amendment. 
     Although FISA's original procedures are proper for electronic 
     surveillance of persons inside this country, such a process 
     for surveillance of terrorist suspects overseas can slow, or 
     even prevent, the Government's acquisition of vital 
     information, without enhancing the privacy interests of 
     Americans. Since its enactment in 2008, section 702 has 
     significantly increased the Government's ability to act 
     quickly.
       Under section 702, instead of issuing individual court 
     orders, the FISC approves annual certifications submitted by 
     the Attorney General and the DNI that identify categories of 
     foreign intelligence targets. The provision contains a number 
     of important protections for U.S. persons and others in the 
     United States. First, the Attorney General and the DNI must 
     certify that a significant purpose of the acquisition is to 
     obtain foreign intelligence information. Second, an 
     acquisition may not intentionally target a U.S. person. 
     Third, it may not intentionally target any person known at 
     the time of acquisition to be in the United States. Fourth, 
     it may not target someone outside the United States for the 
     purpose of targeting a particular, known person in this 
     country. Fifth, section 702 prohibits the intentional 
     acquisition of ``any communication as to which the sender and 
     all intended recipients are known at the time of the 
     acquisition'' to be in the United States. Finally, it 
     requires that any acquisition be consistent with the Fourth 
     Amendment.
       To implement these provisions, section 702 requires 
     targeting procedures, minimization procedures, and 
     acquisition guidelines. The targeting procedures are designed 
     to ensure that an acquisition only targets persons outside 
     the United States, and that it complies with the restriction 
     on acquiring wholly domestic communications. The minimization 
     procedures protect the identities of U.S. persons, and any 
     nonpublic information concerning them that may be 
     incidentally acquired. The acquisition guidelines seek to 
     ensure compliance with all of the limitations of section 702 
     described above, and to ensure that the Government files an 
     application with the FISC when required by FISA.
       The FISC reviews the targeting and minimization procedures 
     for compliance with the requirements of both the statute and 
     the Fourth Amendment. Although the FISC does not approve the 
     acquisition guidelines, it receives them, as do the 
     appropriate congressional committees. By approving the 
     certifications submitted by the Attorney General and the DNI 
     as well as by approving the targeting and minimization 
     procedures, the FISC plays a major role in ensuring that 
     acquisitions under section 702 are conducted in a lawful and 
     appropriate manner.

[[Page 18210]]

       Section 702 is vital in keeping the nation safe. It 
     provides information about the plans and identities of 
     terrorists, allowing us to glimpse inside terrorist 
     organizations and obtain information about how those groups 
     function and receive support. In addition, it lets us collect 
     information about the intentions and capabilities of weapons 
     proliferators and other foreign adversaries who threaten the 
     United States. Failure to reauthorize section 702 would 
     result in a loss of significant intelligence and impede the 
     ability of the Intelligence Community to respond quickly to 
     new threats and intelligence opportunities. Although this 
     unclassified paper cannot discuss more specifically the 
     nature of the information acquired under section 702 or its 
     significance, the Intelligence Community is prepared to 
     provide Members of Congress with detailed classified 
     briefings as appropriate.
       The Executive Branch is committed to ensuring that its use 
     of section 702 is consistent with the law, the FISC's orders, 
     and the privacy and civil liberties interests of U.S. 
     persons. The Intelligence Community, the Department of 
     Justice, and the FISC all oversee the use of section 702. In 
     addition, congressional committees conduct essential 
     oversight, which is discussed in section 3 below.
       Oversight of activities conducted under section 702 begins 
     with components in the intelligence agencies themselves, 
     including their Inspectors General. The targeting procedures, 
     described above, seek to ensure that an acquisition targets 
     only persons outside the United States and that it complies 
     with section 702's restriction on acquiring wholly domestic 
     communications. For example, the targeting procedures for the 
     National Security Agency (NSA) require training of agency 
     analysts, and audits of the databases they use. NSA's Signals 
     Intelligence Directorate also conducts other oversight 
     activities, including spot checks of targeting decisions. 
     With the strong support of Congress, NSA has established a 
     compliance office, which is responsible for developing, 
     implementing, and monitoring a comprehensive mission 
     compliance program.
       Agencies using section 702 authority must report promptly 
     to the Department of Justice and ODNI incidents of 
     noncompliance with the targeting or minimization procedures 
     or the acquisition guidelines. Attorneys in the National 
     Security Division (NSD) of the Department routinely review 
     the agencies' targeting decisions. At least once every 60 
     days, NSD and ODNI conduct oversight of the agencies' 
     activities under section 702. These reviews are normally 
     conducted on-site by a joint team from NSD and ODNI. The team 
     evaluates and, where appropriate, investigates each potential 
     incident of noncompliance, and conducts a detailed review of 
     agencies' targeting and minimization decisions.
       Using the reviews by Department of Justice and ODNI 
     personnel, the Attorney General and the DNI conduct a semi-
     annual assessment, as required by section 702, of compliance 
     with the targeting and minimization procedures and the 
     acquisition guidelines. The assessments have found that 
     agencies have ``continued to implement the procedures and 
     follow the guidelines in a manner that reflects a focused and 
     concerted effort by agency personnel to comply with the 
     requirements of Section 702.'' The reviews have not found 
     ``any intentional attempt to circumvent or violate'' legal 
     requirements. Rather, agency personnel ``are appropriately 
     focused on directing their efforts at non-United States 
     persons reasonably believed to be located outside the United 
     States.''
       Section 702 thus enables the Government to collect 
     information effectively and efficiently about foreign targets 
     overseas and in a manner that protects the privacy and civil 
     liberties of Americans. Through rigorous oversight, the 
     Government is able to evaluate whether changes are needed to 
     the procedures or guidelines, and what other steps may be 
     appropriate to safeguard the privacy of personal information. 
     In addition, the Department of Justice provides the joint 
     assessments and other reports to the FISC. The FISC has been 
     actively involved in the review of section 702 collection. 
     Together, all of these mechanisms ensure thorough and 
     continuous oversight of section 702 activities.


   2. Other important provisions of Title VII of FISA also should be 
                              reauthorized

       In contrast to section 702, which focuses on foreign 
     targets, section 704 provides heightened protection for 
     collection activities conducted overseas and directed against 
     U.S. persons located outside the United States. Section 704 
     requires an order from the FISC in circumstances in which the 
     target has ``a reasonable expectation of privacy and a 
     warrant would be required if the acquisition were conducted 
     inside the United States for law enforcement purposes.'' It 
     also requires a showing of probable cause that the targeted 
     U.S. person is ``a foreign power, an agent of a foreign 
     power, or an officer or employee of a foreign power.'' 
     Previously, these activities were outside the scope of FISA 
     and governed exclusively by section 2.5 of Executive Order 
     12333. By requiring the approval of the FISC, section 704 
     enhanced the civil liberties of U.S. persons.
       The FAA also added several other provisions to FISA. 
     Section 703 complements section 704 and permits the FISC to 
     authorize an application targeting a U.S. person outside the 
     United States to acquire foreign intelligence information, if 
     the acquisition constitutes electronic surveillance or the 
     acquisition of stored electronic communications or data, and 
     is conducted in the United States. Because the target is a 
     U.S. person, section 703 requires an individualized court 
     order and a showing of probable cause that the target is a 
     foreign power, an agent of a foreign power, or an officer or 
     employee of a foreign power. Other sections of Title VII 
     allow the Government to obtain various authorities 
     simultaneously, govern the use of information in litigation, 
     and provide for congressional oversight. Section 708 
     clarifies that nothing in Title VII is intended to limit the 
     Government's ability to obtain authorizations under other 
     parts of FISA.


    3. Congress has been kept fully informed, and conducts vigorous 
                oversight, of Title VII's implementation

       FISA imposes substantial reporting requirements on the 
     Government to ensure effective congressional oversight of 
     these authorities. Twice a year, the Attorney General must 
     ``fully inform, in a manner consistent with national 
     security,'' the Intelligence and Judiciary Committees about 
     the implementation of Title VII. With respect to section 702, 
     this semi-annual report must include copies of certifications 
     and significant FISC pleadings and orders. It also must 
     describe any compliance incidents, any use of emergency 
     authorities, and the FISC's review of the Government's 
     pleadings. With respect to sections 703 and 704, the report 
     must include the number of applications made, and the number 
     granted, modified, or denied by the FISC.
       Section 702 requires the Government to provide to the 
     Intelligence and Judiciary Committees its assessment of 
     compliance with the targeting and minimization procedures and 
     the acquisition guidelines. In addition, Title VI of FISA 
     requires a summary of significant legal interpretations of 
     FISA in matters before the FISC or the Foreign Intelligence 
     Surveillance Court of Review. The requirement extends to 
     interpretations presented in applications or pleadings filed 
     with either court by the Department of Justice. In addition 
     to the summary, the Department must provide copies of 
     judicial decisions that include significant interpretations 
     of FISA within 45 days.
       The Government has complied with the substantial reporting 
     requirements imposed by FISA to ensure effective 
     congressional oversight of these authorities. The Government 
     has informed the Intelligence and Judiciary Committees of 
     acquisitions authorized under section 702; reported, in 
     detail, on the results of the reviews and on compliance 
     incidents and remedial efforts; made all written reports on 
     these reviews available to the Committees; and provided 
     summaries of significant interpretations of FISA, as well as 
     copies of relevant judicial opinions and pleadings.


   4. It is essential that Title VII of FISA be reauthorized well in 
                       advance of its expiration

       The Administration strongly supports the reauthorization of 
     Title VII of FISA. It was enacted after many months of 
     bipartisan effort and extensive debate. Since its enactment, 
     Executive Branch officials have provided extensive 
     information to Congress on the Government's use of Title VII, 
     including reports, testimony, and numerous briefings for 
     Members and their staffs. This extensive record demonstrates 
     the proven value of these authorities, and the commitment of 
     the Government to their lawful and responsible use.
       Reauthorization will ensure continued certainty with the 
     rules used by Government employees and our private partners. 
     The Intelligence Community has invested significant human and 
     financial resources to enable its personnel and technological 
     systems to acquire and review vital data quickly and 
     lawfully. Our adversaries, of course, seek to hide the most 
     important information from us. It is at best inefficient and 
     at worst unworkable for agencies to develop new technologies 
     and procedures and train employees, only to have a statutory 
     framework subject to wholesale revision. This is particularly 
     true at a time of limited resources. It is essential that 
     these authorities remain in place without interruption--and 
     without the threat of interruption--so that those who have 
     been entrusted with their use can continue to protect our 
     nation from its enemies.

  Mr. GRASSLEY. Mr. President, the reauthorization of the Foreign 
Intelligence Surveillance Act Amendments Act, also known as the FISA 
Amendments Act, is a crucial authority for the U.S. Intelligence 
Community. Unless we act to pass this legislation, the law will expire 
in just a few days from now. It must be reauthorized immediately for a 
5-year period.
  I am familiar with the FISA Amendments Act, FAA, through my role as 
ranking member of the Judiciary Committee, which along with the Select 
Committee on Intelligence, has jurisdiction over this legislation and 
oversight of the intelligence operations

[[Page 18211]]

conducted by the Department of Justice and Federal Bureau of 
Investigation. During the last year, my staff and I have engaged in 
extensive consultation with the intelligence community and the 
Department of Justice to understand how the FAA has been used. The 
committee held a closed hearing with witness testimony and questions 
from Senators as well.
  We debated this legislation in committee where I opposed the version 
produced by the Judiciary Committee which is now the basis of the Leahy 
amendment. I opposed it because I have learned a great deal both about 
the value of the intelligence collected under the FAA and about the 
lengths that the intelligence community goes to protect the rights of 
U.S. citizens when collecting that intelligence. Given the 
congressional oversight of this legislation, coupled with the built-in 
protections and oversight from the executive branch, the value of the 
intelligence gathered by this important legislation warrants 
reauthorization without the changes made by the Leahy amendment.
  The most important portion of the FAA is Section 702. It authorizes, 
with approval of the Foreign Intelligence Surveillance Court, FISC, an 
11-member panel of Article III judges appointed by the Supreme Court, 
electronic surveillance of non-U.S. persons located overseas, but 
without the need for individualized orders for every target of the 
surveillance, as is required for surveillance of anyone inside the 
United States. The law specifically prohibits targeting U.S. persons, 
acquiring wholly domestic communications, or targeting someone outside 
the U.S. with the intent to collect information on a target inside the 
U.S. known as ``reverse-targeting''.
  It is possible that the communications of some U.S. citizens may be 
captured during the conduct of authorized surveillance. But that is 
only incidentally. The only way that a U.S. person's communication 
would be picked up would be if that person were in communication with a 
non-U.S. person overseas who had been targeted under the FAA.
  Some people think that a U.S. person has a constitutional right not 
to have his communications with a foreign target eavesdropped by the 
U.S. government without a warrant. But that's not how the fourth 
amendment works. It protects the rights of the person who is being 
targeted, not anyone in contact with him. For example, if the 
government legally taps the phone of a mafia godfather in the United 
States, it can listen to his conversation with anyone who calls him. It 
doesn't need a court-issued warrant for the person calling, only for 
the godfather himself. He is the one who has a reasonable expectation 
of privacy in his telephone.
  In the same way, when the government legally intercepts the 
communications of a terrorist living overseas, it can listen to his 
conversation with anyone who contacts him, even if the other party is 
in the United States. What matters is whether the government has the 
legal authority to intercept the communications of the terrorist in the 
first place. That's what the FAA provides. It is important to point out 
that no warrant is required because the target is not a U.S. citizen 
and is located overseas. So, the fourth amendment doesn't apply to him.
  Instead, under Section 702, the FISC approves annual certifications 
from the attorney general and director of National Intelligence about 
collection of information on categories of foreign intelligence 
targets, what procedures the intelligence community will use to 
accomplish this surveillance, how they will target subjects for 
surveillance, and how the IC will use the information. The government 
must also demonstrate to the court that it has special procedures to 
weed out intentional collection of communications of anyone located 
inside the United States and to minimize the use of any incidentally 
collected information.
  In addition, there is significant oversight of the program to protect 
U.S. citizens' rights. The law requires that the Attorney General and 
director of National Intelligence conduct semi-annual assessments of 
the surveillance activities. Furthermore, it authorizes the inspector 
general of the Department of Justice to review the program at any time. 
Both houses of Congress are provided the semi-annual reports and IG 
audits, as well as significant decisions of the FISC. These are on file 
with the Senate security office and any Senator and appropriately 
cleared staff can review them.
  This process works. Our oversight of the implementation of the 
statute has found no evidence that it has been intentionally misused in 
order to eavesdrop on Americans. Senator Feinstein, chair of the Senate 
Select Committee on Intelligence, and even Senator Leahy, chairman of 
the Judiciary Committee, have stated that no such misconduct has been 
discovered.
  For these reasons, we should reauthorize the statute without any 
changes, as the House has done. The only adjustment to the existing 
statute in the House bill is replacing the expiration date of December 
31, 2012 with December 31, 2017, a 5-year period. That is also what the 
administration supports and what the intelligence committee passed this 
summer. A 5-year period would allow the intelligence community to 
continue utilizing these valuable tools against potential terrorists or 
other intelligence targets without interruption or delay. It will 
provide the intelligence community with much needed certainty and 
stability in a program that works to save American lives.
  The combination of the statutory limitations on collection, targeting 
and minimization procedures, and acquisition guidelines, court review 
of those procedures and guidelines, and compliance oversight by the 
administration and Congress, ensure that the rights of U.S. persons are 
sufficiently protected when their communications are incidentally 
collected in the course of targeting non-U.S. persons located abroad.
  I urge my colleagues to support the House passed version of the FAA 
reauthorization so we can ensure that there is no interruption in one 
of our most vital national security tools.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.


                           Amendment No. 3435

  Mr. MERKLEY. Mr. President, I call up my amendment which is at the 
desk.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The bill clerk read as follows:

       The Senator from Oregon [Mr. Merkley] proposes an amendment 
     numbered 3435.

  Mr. MERKLEY. Mr. President, I ask unanimous consent that further 
reading be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

 (Purpose: To require the Attorney General to disclose each decision, 
  order, or opinion of a Foreign Intelligence Surveillance Court that 
includes significant legal interpretation of section 501 or 702 of the 
Foreign Intelligence Surveillance Act of 1978 unless such disclosure is 
      not in the national security interest of the United States)

       At the appropriate place, insert the following:

     SEC. _. DISCLOSURE OF DECISIONS, ORDERS, AND OPINIONS OF THE 
                   FOREIGN INTELLIGENCE SURVEILLANCE COURT.

       (a) Findings.--Congress finds the following:
       (1) Secret law is inconsistent with democratic governance. 
     In order for the rule of law to prevail, the requirements of 
     the law must be publicly discoverable.
       (2) The United States Court of Appeals for the Seventh 
     Circuit stated in 1998 that the ``idea of secret laws is 
     repugnant''.
       (3) The open publication of laws and directives is a 
     defining characteristic of government of the United States. 
     The first Congress of the United States mandated that every 
     ``law, order, resolution, and vote [shall] be published in at 
     least three of the public newspapers printed within the 
     United States''.
       (4) The practice of withholding decisions of the Foreign 
     Intelligence Surveillance Court is at odds with the United 
     States tradition of open publication of law.
       (5) The Foreign Intelligence Surveillance Court 
     acknowledges that such Court has issued legally significant 
     interpretations of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1801 et seq.) that are not accessible to 
     the public.
       (6) The exercise of surveillance authorities under the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
     et seq.), as interpreted by secret court opinions, 
     potentially

[[Page 18212]]

     implicates the communications of United States persons who 
     are necessarily unaware of such surveillance.
       (7) Section 501 of the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1861), as amended by section 215 of 
     the USA PATRIOT Act (Public Law 107-56; 115 Stat. 287), 
     authorizes the Federal Bureau of Investigation to require the 
     production of ``any tangible things'' and the extent of such 
     authority, as interpreted by secret court opinions, has been 
     concealed from the knowledge and awareness of the people of 
     the United States.
       (8) In 2010, the Department of Justice and the Office of 
     the Director of National Intelligence established a process 
     to review and declassify opinions of the Foreign Intelligence 
     Surveillance Court, but more than two years later no 
     declassifications have been made.
       (b) Sense of Congress.--It is the sense of Congress that 
     each decision, order, or opinion issued by the Foreign 
     Intelligence Surveillance Court or the Foreign Intelligence 
     Surveillance Court of Review that includes significant 
     construction or interpretation of section 501 or section 702 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1861 and 1881a) should be declassified in a manner 
     consistent with the protection of national security, 
     intelligence sources and methods, and other properly 
     classified and sensitive information.
       (c) Requirement for Disclosures.--
       (1) Section 501.--
       (A) In general.--Section 501 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1861) is amended by 
     adding at the end the following:
       ``(i) Disclosure of Decisions.--
       ``(1) Decision defined.--In this subsection, the term 
     `decision' means any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of this section.
       ``(2) Requirement for disclosure.--Subject to paragraphs 
     (3) and (4), the Attorney General shall declassify and make 
     available to the public--
       ``(A) each decision that is required to be submitted to 
     committees of Congress under section 601(c), not later than 
     45 days after such opinion is issued; and
       ``(B) each decision issued prior to the date of the 
     enactment of the ____ Act that was required to be submitted 
     to committees of Congress under section 601(c), not later 
     than 180 days after such date of enactment.
       ``(3) Unclassified summaries.--Notwithstanding paragraph 
     (2) and subject to paragraph (4), if the Attorney General 
     makes a determination that a decision may not be declassified 
     and made available in a manner that protects the national 
     security of the United States, including methods or sources 
     related to national security, the Attorney General shall 
     release an unclassified summary of such decision.
       ``(4) Unclassified report.--Notwithstanding paragraphs (2) 
     and (3), if the Attorney General makes a determination that 
     any decision may not be declassified under paragraph (2) and 
     an unclassified summary of such decision may not be made 
     available under paragraph (3), the Attorney General shall 
     make available to the public an unclassified report on the 
     status of the internal deliberations and process regarding 
     the declassification by personnel of Executive branch of such 
     decisions. Such report shall include--
       ``(A) an estimate of the number of decisions that will be 
     declassified at the end of such deliberations; and
       ``(B) an estimate of the number of decisions that, through 
     a determination by the Attorney General, shall remain 
     classified to protect the national security of the United 
     States.''.
       (2) Section 702.--Section 702(l) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(l)) is 
     amended by adding at the end the following:
       ``(4) Disclosure of decisions.--
       ``(A) Decision defined.--In this paragraph, the term 
     `decision' means any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of this section.
       ``(B) Requirement for disclosure.--Subject to subparagraphs 
     (C) and (D), the Attorney General shall declassify and make 
     available to the public--
       ``(i) each decision that is required to be submitted to 
     committees of Congress under section 601(c), not later than 
     45 days after such opinion is issued; and
       ``(ii) each decision issued prior to the date of the 
     enactment of the ____ Act that was required to be submitted 
     to committees of Congress under section 601(c), not later 
     than 180 days after such date of enactment.
       ``(C) Unclassified summaries.--Notwithstanding subparagraph 
     (B) and subject to subparagraph (D), if the Attorney General 
     makes a determination that a decision may not be declassified 
     and made available in a manner that protects the national 
     security of the United States, including methods or sources 
     related to national security, the Attorney General shall 
     release an unclassified summary of such decision.
       ``(D) Unclassified report.--Notwithstanding subparagraphs 
     (B) and (C), if the Attorney General makes a determination 
     that any decision may not be declassified under subparagraph 
     (B) and an unclassified summary of such decision may not be 
     made available under subparagraph (C), the Attorney General 
     shall make available to the public an unclassified report on 
     the status of the internal deliberations and process 
     regarding the declassification by personnel of Executive 
     branch of such decisions. Such report shall include--
       ``(i) an estimate of the number of decisions that will be 
     declassified at the end of such deliberations; and
       ``(ii) an estimate of the number of decisions that, through 
     a determination by the Attorney General, shall remain 
     classified to protect the national security of the United 
     States.''.

  Mr. MERKLEY. Mr. President, I rise this morning to talk about the 
Foreign Intelligence Surveillance Act and the concerns I and many of my 
colleagues have.
  Earlier this morning, Senator Wyden, the senior Senator from Oregon, 
was discussing at length the importance of the fourth amendment, the 
importance of Americans knowing the boundaries and the rules under 
which our government collects intelligence and to know their rights to 
privacy are protected.
  Under this Foreign Intelligence Surveillance Act, there are a variety 
of ways in which that assurance is compromised, and Senator Wyden did a 
very good job of laying those out. I wish to emphasize that same 
message; that our country was founded on the principles of privacy and 
liberty, of protection from an overreaching central government.
  During the founding, we set out and said we are going to be a new 
kind of nation; one that will not permit an overbearing, intrusive 
government spying on citizens or meddling in their private affairs. 
This belief was enshrined in our fourth amendment:

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable searches 
     and seizures, shall not be violated, and no Warrants shall 
     issue, but upon probable cause, supported by Oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized.

  I think that is an extraordinarily complete description saying that 
the government is bound--bound--by having to demonstrate before a court 
probable cause a case that is put forward and backed up by oath or 
affirmation, a case that is put forward with great detail about the 
places to be searched and the persons or things to be seized.
  So the concept is laid out very clearly about what constitutes 
unreasonable searches and seizures. It is certainly not that the 
government can't collect information, just they have to show probable 
cause of a crime in order to create that boundary that says the 
information we have in our daily lives. I don't know how much broader 
it can be than houses, papers, and effects. It pretty much covers the 
entire parameter.
  One of the problems we have is that sometimes lawyers start looking 
for loopholes, and we can address those loopholes if they are discussed 
in a public setting, if we can get our hands around them. But if they 
are loopholes created in secrecy, then indeed it is very hard to have a 
debate on the floor of the Senate about whether those loopholes or 
interpretations are right or whether we should change the law in order 
to address them.
  Of course, our laws have had to be updated and changed over time to 
adapt to new technology and changing threats, and one of those 
developments was the creation of the Foreign Intelligence Surveillance 
Act in the 1970s.
  In 1972, the Supreme Court held the fourth amendment does not permit 
warrantless surveillance for intelligence investigations within our 
country. One may wonder how this even took a Supreme Court decision 
since the fourth amendment is so absolutely clear on this point.
  In 1978, Congress enacted FISA--Foreign Intelligence Surveillance 
Act--to regulate government surveillance within our country that is 
conducted for foreign intelligence purposes. Under FISA, the government 
had to obtain an order from a special court called the FISA Court in 
order to spy on Americans. This is certainly an appropriate boundary to 
implement. The order required the government to obtain a warrant and 
show probable cause. These

[[Page 18213]]

are the same basic, commonsense protections we have had in place for 
other types of searches. This development required individualized and 
particular orders from the FISA Court to collect communications.
  But now let's fast forward to 2001. President Bush decided in secret 
to authorize the National Security Agency to start a new program of 
warrantless surveillance inside the United States. This is in complete 
contravention of the fourth amendment and in complete contravention of 
the law at that time. As I am sure many of my colleagues will certainly 
recall, this was revealed to the American people 4 years later when it 
was reported in the New York Times in 2005. In response, after years of 
back and forth contentious debate, Congress passed the FISA Amendments 
Act--the bill we are considering on this floor today. We are 
considering a reauthorization. This law gave the government new 
surveillance authority but also included a sunset provision to ensure 
that Congress examines where the law is working and the way it was 
intended.
  The debate we are having right now on this floor is that 
reexamination. I will note that I think it is unfortunate that we are 
doing this at the last second. We have known that this intelligence law 
is going to expire for years. It was laid out for a multiyear span. 
Certainly, it is irresponsible for this Chamber to be debating this 
bill under a falsely created pressure that it needs to be done without 
any amendments in order to match the bill from the House. That is a way 
of suppressing debate on critical issues here in America.
  If you care about the fourth amendment, if you care about privacy, 
you should be arguing that we should either create a very short-term 
extension in order to have this debate fully or that we should have had 
this debate months ago so it could have been done in a full and 
responsible manner, with no pressure to vote against amendments in 
order to falsely address the issue of partnering with the House bill.
  This law included that sunset provision. Now here we are looking at 
the extension. It is a single-day debate, crowded here into the 
holidays when few Americans will be paying attention. But I think it is 
important, nonetheless, for those of us who are concerned about the 
boundaries of privacy and believe the law could be strengthened to make 
our case here in hopes that at some point we will be able to have the 
real consideration these issues merit.
  In my opinion, there are serious reforms that need to be made before 
we consider renewing this law. This law is supposed to be about giving 
our government the tools it needs to collect the communications of 
foreigners, outside of our country. If it is possible that our 
intelligence agencies are using the law to collect and use the 
communications of Americans without a warrant, that is a problem. Of 
course, we cannot reach conclusions about that in this forum because 
this is an unclassified discussion.
  My colleagues Senator Wyden and Senator Udall, who serve on 
Intelligence, have discussed the loophole in the current law that 
allows the potential of backdoor searches. This could allow the 
government to effectively use warrantless searches for law-abiding 
Americans. Senator Wyden has an amendment that relates to closing that 
loophole.
  Congress never intended the intelligence community to have a huge 
database to sift through without first getting a regular probable cause 
warrant, but because we do not have the details of exactly how this 
proceeds and we cannot debate in a public forum those details, then we 
are stuck with wrestling with the fact that we need to have the sorts 
of protections and efforts to close loopholes that Senator Wyden has 
put forward.
  What we do know is that this past summer, the Director of National 
Intelligence said in a public forum that on at least one occasion the 
FISA Court has ruled that a data collection carried out by the 
government did violate the fourth amendment. We also know that the FISA 
Court has ruled that the Federal Government has circumvented the spirit 
of the law as well as the letter of the law. But too much else of what 
we should know about this law remains secret. In fact, we have 
extremely few details about how the courts have interpreted the 
statutes that have been declassified and released to the public. This 
goes to the issue of secret law my colleague from Oregon was discussing 
earlier. If you have a phrase in the law and it has been interpreted by 
a secret court and the interpretation is secret, then you really do not 
know what the law means.
  The FISA Court is a judicial body established by Congress to consider 
requests for surveillance made under the FISA Amendments Act, but, 
almost without exception, its decisions, including significant legal 
interpretations of the statute, remain highly classified. They remain 
secret.
  I am going to put up this chart just to emphasize that this is a big 
deal. Here in America, if the law makes a reference to what the 
boundary is, we should understand how the court interprets that 
boundary so it can be debated. If the court reaches an interpretation 
with which Congress is uncomfortable, we should be able to change that, 
but of course we cannot change it, not knowing what the interpretation 
is because the interpretation is secret. So we are certainly 
constrained from having the type of debate that our Nation was founded 
on--an open discussion of issues.
  These are issues that can be addressed without in any way 
compromising the national security of the United States. Understanding 
how certain words are interpreted tells us where the line is drawn. But 
that line, wherever it is drawn, is, in fact, relevant to whether the 
intent of Congress is being fulfilled and whether the protection of 
citizens under the fourth amendment is indeed standing strong.
  An open and democratic society such as ours should not be governed by 
secret laws, and judicial interpretations are as much a part of the law 
as the words that make up our statute. The opinions of the FISA Court 
are controlling. They do matter. When a law is kept secret, public 
debate, legislative intent, and finding the right balance between 
security and privacy all suffer.
  In 2010, due to concerns that were raised by a number of Senators 
about the problem of classified FISA Court opinions, the Department of 
Justice and the Office of the Director of National Intelligence said 
they would establish a process to declassify opinions of the FISA Court 
that contained important rulings of law. In 2011, prior to her 
confirmation hearing, Lisa Monaco, who is our Assistant Attorney 
General for National Security, expressed support for declassifying FISA 
opinions that include ``significant instructions or interpretations of 
FISA.''
  So here we have the situation where the Department of Justice and the 
Office of the Director of National Intelligence said they would 
establish a process of declassifying opinions. They understood that 
Americans in a democracy deserve to know what the words are being 
interpreted to mean. We have the Assistant Attorney General for 
National Security during her hearings express that she supports 
significant instructions or interpretations being made available to the 
public. But here we are 2 years later since the 2010 expressions and a 
year from the confirmation hearings for Lisa, and nothing has been 
declassified--nothing.
  The amendment I am offering today sets out a three-step process for 
sending the message it is important Americans know the interpretations 
of these laws. It does so in a fashion that is carefully crafted to 
make sure there is no conflict with national security.
  First you call upon the Attorney General to declassify the FISA 
report in court of review opinions that include significant legal 
interpretations. If the Attorney General makes a decision, however, 
that it cannot be declassified--those decisions--in a way that does not 
jeopardize national security, then the amendment requires the 
administration to declassify summaries of their opinions.
  So at the first point, you have the official written court opinions. 
But possibly woven into those court opinions are a variety of contexts 
about ways

[[Page 18214]]

and manner of gathering intelligence that pose national security 
problems. This amendment says: OK, if that is the case, we certainly do 
not want to disclose sensitive information about ways and means of 
collecting intelligence, so declassify summaries. That way, we can 
understand the legal interpretation without adjoining information that 
might represent a national security problem.
  This amendment goes further. If the Attorney General decides that not 
even a summary can be declassified without compromising national 
security, then the amendment requires the administration to report to 
Congress regarding the status of its process for declassifying these 
opinions--a process the administration has already said it is 
undertaking. It just says: Tell us where you are.
  It is probably very clear from my discussion that I would prefer that 
the opinions, the actual court opinions, be declassified and that 
perhaps, if they are sensitive, the national security information would 
be redacted. That is the normal process in which documents are 
declassified--you black out or remove sections that are sensitive. But 
the amendment I am presenting goes further on the side of protecting 
national security, saying: You don't have to just redact court 
opinions, you can do a summary that addresses significant legal 
implications without addressing the ways and means that might be 
embedded in a further court decision. Furthermore, Mr. Attorney 
General, if you make a decision that not even that is possible, then 
update us on the process.
  But the key point is that it requires the Attorney General to make a 
decision, a clear decision over the national security balance and 
provide what can be done within the context, within the framework of 
not compromising our national security.
  This is so straightforward that anyone bringing the argument to this 
floor that we should not do it because it compromises national security 
really has no case to make--absolutely no case to make.
  The ACTING PRESIDENT pro tempore. The time of the Senator, under the 
order, has expired.
  Mr. MERKLEY. My understanding is that 30 minutes was allocated?
  The ACTING PRESIDENT pro tempore. Thirty minutes equally divided.
  Mr. WYDEN. Mr. President, parliamentary inquiry: Can I yield to 
Senator Merkley time from general debate in order to let him complete 
his remarks?
  The ACTING PRESIDENT pro tempore. With the unanimous consent of the 
Senate.
  Mr. WYDEN. I ask unanimous consent.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. FEINSTEIN. Well, wait a minute.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mrs. FEINSTEIN. I object, if it is time on our side that will be 
used.
  Mr. MERKLEY. Mr. President, if there is no one else waiting to speak, 
I ask unanimous consent to speak as in morning business and will yield 
when someone is ready, prepared to speak to the bill.
  The ACTING PRESIDENT pro tempore. Is there objection?
  The Senator from California.
  Mrs. FEINSTEIN. Mr. President, let me do something I do sometimes--
correct myself. If the Senator is offering to use the time on his side, 
that is fine with me. As long as it is not using the time for the bill 
on our side.
  Mr. WYDEN. Mr. President, I think this is acceptable, yes.
  Mrs. FEINSTEIN. I thank the Senator.
  Mr. MERKLEY. Mr. President, I thank my colleagues for setting out the 
parameters. I am going to wrap this up in fairly short order.
  I again wish to emphasize that if any of my colleagues would like to 
come down and argue that this in any way compromises national security, 
I will be happy to have that debate because this has been laid out very 
clearly so the Attorney General has complete control over any possible 
compromise of information related to national security. Indeed, 
although I think it is important for this body to continue to express 
that the spirit of what we do in this Nation should be about citizens 
to the maximum extent possible having full and clear understanding of 
how the letter of the law is being interpreted.
  Let me show an example of a passage. Here is a passage about what 
information can be collected: `` . . . reasonable grounds to believe 
that the tangible things sought are relevant to an authorized 
investigation (other than a threat assessment) conducted in accordance 
with subsection (a)(2),'' and so on.
  Let me stress these words: ``relevant to an authorized 
investigation.''
  There are ongoing investigations, multitude investigations about the 
conduct of individuals and groups around this planet, and one could 
make the argument that any information in the world helps frame an 
understanding of what these foreign groups are doing. So certainly 
there has been some FISA Court decision about what ``relevant to an 
authorized investigation'' means or what ``tangible things'' means. Is 
this a gateway that is thrown wide open to any level of spying on 
Americans or is it not? Is it tightly constrained in understanding what 
this balance of the fourth amendment is? We do not know the answer to 
that. We should be able to know.
  If we believe that an administration and the secret court have gone 
in a direction incompatible with our understanding of what we were 
seeking to defend, then that would enable us to have that debate here 
about whether we tighten the language of the law in accordance with 
such an interpretation. Again, is this an open gateway to any 
information anywhere in the world, anytime, on anyone or is it a very 
narrow gate? We do not know. American citizens should have the ability 
to know, and certainly a Senator working to protect the fourth 
amendment should know that as well. We have always struck a balance in 
this country between an overbearing government and the important 
pathway to obtaining information relevant to our national security.
  The amendment I am laying forth strikes that balance appropriately. 
It urges the process to continue by providing an understanding of what 
the secret court interpretations are, which is very important to 
democracy. It provides the appropriate balance with national security, 
gives clear decisionmaking authority to the Attorney General of this 
process, and in that sense it gives the best possible path that honors 
national security concerns while demanding transparency and 
accountability for this issue of privacy and protection of the fourth 
amendment.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.
  Mr. WYDEN. For purpose of general debate, how much time remains on 
our side and how much time remains under the control of the 
distinguished chair of the committee?
  The ACTING PRESIDENT pro tempore. The opponents have 140 minutes 
remaining; the proponents have 183 minutes remaining.
  Mr. WYDEN. I thank the Chair. I will speak out of our time in order 
to respond to a couple points. I also wish to commend my colleague 
Senator Merkley from Oregon for his excellent statement. He has been 
doing yeoman's work in terms of trying to promote accountability and 
transparency on this issue and the work he has done in the Senate. I am 
going to correct a couple of misconceptions about what has been said 
and also talk on behalf of the good work Senator Merkley is doing.
  With respect to this amendment I will be offering, I believe the 
Senate cannot say we passed the smell test with respect to doing 
vigorous oversight if we don't have some sense of how many Americans in 
our country who are communicating with each other are being swept up 
under this legislation. For purposes of the FISA Amendments Act, I 
think we ought to know, generally, how many Americans are being swept 
up under the legislation. Oversight essentially would be toothless 
without this kind of information.
  I wish to correct one misconception with respect to where we are on 
the

[[Page 18215]]

language in the reporting amendment. The distinguished chair of the 
committee urged Senators to visit the offices of the Senate Select 
Committee on Intelligence to see the documents the chair has stated 
relate to intelligence officials who say it is impossible for them to 
estimate the number of law-abiding Americans who have had their 
communications swept up under the legislation. However, the fact is 
that when colleagues read the amendment I will be offering, they will 
see I am not requiring anyone to take on a new task of preparing an 
estimate of how many law-abiding Americans have been swept up in it. 
This is simply a request to the intelligence community, which states 
that if any estimate has already been done, that estimate ought to be 
provided.
  When the distinguished chair of the committee says Senators should go 
over to the committee's offices and look at the documents which state 
that the intelligence community cannot do a new estimate, I want 
Senators to know the language of my amendment does not ask for a new 
estimate. In no way does it ask for a new estimate. It simply says: If 
an estimate has been done, that estimate ought to be furnished. If no 
estimate has been done, the answer to that is simply no. We will be 
very clear about it, and the matter will have been clarified. If no 
estimate has been done, then fine; the answer is no.
  As I indicated earlier, the amendment also requires the intelligence 
community to state whether any wholly domestic communications have been 
collected. That again can be answered with a yes or no. Finally, it 
requires a response as to whether the National Security Agency has 
collected personal information on millions of Americans, and that too 
is a very straightforward answer.
  I think when we talk about this kind of information, we ought to come 
back to the fact that no sources and methods in the intelligence 
community would be compromised. In no way would the operations or the 
important work of the intelligence community be interrupted. What it 
would simply do is provide us with what I think are the basics that 
this Senate needs to be able to say it is doing real oversight over a 
very broad area of surveillance law.
  I hope Senators will ask themselves as we look at this: Do we in the 
Senate know whether anyone has ever estimated how many U.S. phone calls 
and e-mails have been warrantless collected under the statute? Does the 
Senate know whether any wholly domestic phone calls or e-mails have 
been collected under this statute? Does the Senate know whether the 
government has ever conducted any warrantless, backdoor searches for 
Americans' communication? If not, this is the Senate's chance to answer 
that question.
  When our constituents come forward and ask us whether the government 
is protecting our privacy rights as we protect our security, the 
question is: How does the Senator look their constituents in the eye 
and tell them they don't know and are not in a position to get 
information that is essential to pass the smell test when it comes to 
this body doing basic oversight over what is certainly a broad and, for 
many Americans, rather controversial surveillance law.
  I assume--because we have already heard some characterizations of my 
amendment, which are simply and factually incorrect--that we will have 
other responses to the reporting amendment in terms of objections. I 
have already stated my first concern: The intelligence community 
stating that they cannot estimate how many Americans' communications 
are collected under key section 702 of FISA. Again, my response is that 
when Senators look at the text of the amendment, it does not require 
anybody to do an estimate. It simply says that if estimates do exist, 
they ought to be provided to the Congress. When it comes to our 
oversight responsibilities, I do not think that request is excessive or 
unreasonable.
  Second, I think we will hear the House and Senate Intelligence 
Committees already do oversight of FISA. Every Member of the Congress 
has to vote on whether to renew the FISA Amendments Act. Frankly, I 
think every Member of this body ought to be able to get a basic 
understanding of how the law actually works, and that is not available 
today.
  Next, we will hear that the intelligence community has already 
provided the Congress with lots of information about the FISA 
Amendments Act. As the Presiding Officer knows from his service on the 
committee, much of that information is in highly classified documents 
that are difficult for most Members to review. The reality is most 
Members literally have no staff who have the requisite security 
clearance in order to read them.
  The amendment I am talking about with respect to basic information on 
the number of Americans who have had their communications swept up 
under FISA--whether Americans with respect to wholly domestic 
communications have been swept up under this law--in my view that 
information ought to be available to this body in documents Members can 
actually access. Frankly, it ought to be available in a single document 
which Members can access.
  In connection with the discussion about these issues, we will also 
hear the answers to these questions should not be made public. The 
amendment I am going to be offering with respect to getting a rough set 
of estimates as to how many Americans are being swept up under these 
authorities--and whether an estimate actually even exists--gives the 
President full authority to redact whatever information he wishes from 
the public version of the report. Under the amendment I am pursuing, 
the executive branch would have full discretion to decide whether it is 
appropriate to make any of this information public.
  As we ensure more transparency and more accountability with respect 
to this information and access to it, no sources or methods which have 
to be protected--including important work the intelligence committee is 
doing--will be compromised in any way. The last word on this subject is 
the call of the President of the United States, who has the full 
discretion to decide whether it is appropriate to make any of this 
information public.
  Finally, we are undoubtedly going to hear that the law is about to 
expire and amendments will slow it down. First of all, I think many of 
us would rather have had this debate earlier in this session of the 
Senate, and had there been more dialog on many of these issues, that 
would have been possible. We are where we are, and I think all of us 
understand that. We understand this is a huge challenge. The fiscal 
cliff is vital in terms of our work this week, but I continue to 
believe the other body is perfectly capable of passing this legislation 
before the end of the year.
  The amendments that are being offered all go to the issue of 
transparency and accountability. Not one of those amendments would 
jeopardize the ongoing issues and operations which relate to the 
sources and methods of the intelligence community. The Congress can 
make amendments to improve oversight and still keep this law from 
expiring.
  With respect to the reporting amendment, I hope the argument made by 
the distinguished chair of the committee that the intelligence 
community has said they cannot estimate how many Americans' 
communications have been collected under section 702--that Senators go 
to the offices of the Intelligence Committee. When colleagues look at 
the text of the amendment, the amendment does something different than 
the issue which has been raised by the distinguished chair of the 
committee. The amendment does not require anyone to do an estimate. It 
simply says that if an estimate already exists, that estimate ought to 
be provided to the Congress.
  Let me also make some brief remarks on this issue of secret law that 
touches on the point raised by my colleague from Oregon Senator 
Merkley, who I think has given a very good presentation on the floor 
and has a very good amendment. When the laws are interpreted in secret, 
the results frequently fail to stand up to public scrutiny. We have 
talked about this on the

[[Page 18216]]

floor and in the committee and it isn't that surprising when we think 
about it. The law-making process in our country is often cumbersome, it 
is often frustrating, and it is often contentious. But over the long 
run I think we know this process is the envy of the world because it 
gives us a chance to have a real debate, generate support of most 
Americans because then people see, when they have had a chance to be a 
part of a discussion, that they are empowered in our system of 
government. On the other hand, when laws are secretly interpreted 
behind closed doors by a small number of government officials without 
public scrutiny or debate, we are much more likely to end up with 
interpretations of the law that go well beyond the boundaries of what 
the public accepts or supports. So let's be clear that when we are 
talking about public scrutiny and having debates, that is what allows 
the American people to see that those of us who are honored to serve 
them are following their will.
  Sometimes it is entirely legitimate for government agencies to keep 
certain information secret. In a democratic society, of course, 
citizens rightly expect their government will not arbitrarily keep 
information from them, and throughout our history our people have 
guarded their right to know. But I think we also know our constituents 
acknowledge certain limited exceptions exist in this principle of 
openness. For example, most Americans acknowledge that tax collectors 
need to have access to some financial information, but the government 
does not have the right to share this information openly. So we strike 
the appropriate balance on a whole host of these issues on a regular 
basis.
  Another limited exception exists for the protection of national 
security. The U.S. Government has the inherent responsibility to 
protect its citizens from threats, and it can do this most effectively 
if it is sometimes allowed to operate in secrecy. I don't expect our 
generals to publicly discuss the details of every troop movement in 
Afghanistan any more than Americans expected George Washington to 
publish his strategy for the Battle of Yorktown. By the same token, 
American citizens recognize their government may sometimes rely on 
secret intelligence collection methods in order to ensure national 
security, ensure public safety, and they recognize these methods often 
are more effective when the details--what are the operations and 
methods as we characterize them under intelligence principles--remain 
secret. But while Americans recognize government agencies will 
sometimes rely on secret sources and methods to collect intelligence 
information, Americans expect these agencies will at all times operate 
within the boundaries of publicly understood law.
  I have had the honor to serve on the Intelligence Committee now for 
over a decade. I don't take a backseat to anyone when it comes to the 
importance of protecting genuine, sensitive details about the work 
being done in the intelligence community, particularly their sources 
and methods. However, the law itself should never be secret. The law 
itself should never be secret because voters have a right to know what 
the law says and what their government thinks the text of the law means 
so they can make a judgment about whether the law has been 
appropriately written, and they can then ratify or reject the decisions 
elected officials make on their behalf.
  When it comes to most government functions, the public can directly 
observe the functions of government and the typical citizen can decide 
for himself or herself whether they support or agree with the things 
their government is doing. American citizens can visit our national 
forests--we take particular pride in them in our part of the country--
and decide for themselves whether the forests are being appropriately 
managed. When our citizens drive on the interstate, they can decide for 
themselves whether those highways have been properly laid out and 
adequately maintained. If they see an individual is being punished, 
they can make judgments for themselves whether that sentence is too 
harsh or too lenient, but they generally can't decide for themselves 
whether intelligence agencies are operating within the law. That is 
why, as the U.S. intelligence community evolved over the past several 
decades, the Congress has set up a number of watchdog and oversight 
mechanisms to ensure intelligence agencies follow the law rather than 
violate it. That is why both the House and the Senate have Select 
Intelligence Committees. It is also why the Congress created the 
Foreign Intelligence Surveillance Court, and it is why the Congress 
created a number of statutory inspectors general to act as independent 
watchdogs inside the intelligence agencies themselves. All these 
oversight entities--one of which I am proud to serve on, the Senate 
Select Committee on Intelligence--all of them were created, at least in 
part, to ensure intelligence agencies carry out all their activities 
within the boundaries of publicly understood law.
  But I come back to my reason for bringing up this issue this 
afternoon. The law itself always ought to be public and government 
officials must not be allowed to fall into the trap of secretly 
reinterpreting the law in a way that creates a gap between what the 
public thinks the law says and what the government is secretly claiming 
the law says. Any time that is being done, it first violates the public 
trust, and, second, I have long felt that allowing this kind of gap--a 
gap between the government's secret interpretation of the law and what 
the public thinks the law is--undermines the confidence our people are 
going to have in government. Also, by the way, it is pretty 
shortsighted because history shows the secret interpretations of the 
law are not likely to stay secret forever, and when the public 
eventually finds out government agencies are rewriting these 
surveillance laws in secret, the result is invariably a backlash and an 
erosion of confidence in these important government intelligence 
agencies and the important work, as I noted this morning, our 
intelligence officials are doing.
  So this is a big problem. Our intelligence and national security 
agencies are staffed by exceptionally hard-working and talented men and 
women, and the work they do is extraordinarily important. If the public 
loses confidence in these agencies, it doesn't just undercut morale, it 
makes it harder for these agencies to do their jobs. If we ask the head 
of any intelligence agency, particularly an agency that is involved in 
domestic surveillance in any way, he or she will tell us that public 
trust is a vital commodity and voluntary cooperation from law-abiding 
Americans is critical to the effectiveness of their agencies. If 
members of the public lose confidence in these government agencies 
because they think government officials are rewriting surveillance laws 
in secret, those agencies are going to be less effective. I don't want 
to see that happen. On my watch, I don't want to be a part of anything 
that makes our intelligence agencies less effective.
  Officials at these government agencies do not get up in the morning 
to do their work with malicious intent. They work very hard to protect 
intelligence sources and methods for good reasons. Sometimes what 
happens is people lose sight of the difference between protecting 
sources and methods, which ought to be kept secret, and the law itself, 
which should not be kept secret. Sometimes they even go so far as to 
argue that keeping the interpretation of the law secret is actually 
necessary because it prevents our Nation's adversaries from figuring 
out what our intelligence agencies are allowed to do. My own view is 
this is ``Alice in Wonderland'' logic, but if the U.S. Government were 
to actually adopt it, then all our surveillance laws would be kept 
secret because that would, I guess one could argue, be even more 
useful. When Congress passed the Foreign Intelligence Surveillance Act 
in 1978, it would have been useful to keep the law secret from the KGB 
so Soviet agents wouldn't know whether the FBI was allowed to track 
them down. But American laws and the American Constitution shouldn't be 
public only when government officials think it is convenient. They 
ought to be public all the time.

[[Page 18217]]

Americans ought to be able to find out what their government thinks 
those laws mean, and I think it is possible to do that while still 
ensuring that sensitive information--information about sources and 
methods and the operations of the intelligence community--is 
appropriately kept secret.
  My own view is the executive branch in the United States has so far 
failed to live up to their promises of greater transparency in this 
area, greater commitment to ensuring the public sees how our laws are 
being interpreted. As long as there is a gap between the way the 
government interprets these laws and what the public sees when people 
are sitting at home and looking it up on their laptops, I am going to 
do everything I can to reduce that gap and to ensure our citizens, 
consistent with our national security, have additional information with 
respect to how our laws are interpreted. We can do that while at the 
same time protecting the critical work being done by officials in the 
intelligence community.
  With that, I am happy to yield to the distinguished chairwoman.
  The ACTING PRESIDENT pro tempore. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I wish to take a moment to clarify 
this question of secret law. This code book I am holding is the law. It 
is not secret. This is all of the code provisions which guarantees the 
legality of what the intelligence community does. There is a whole 
section on congressional oversight. There is a whole section on 
additional procedures regarding persons inside the United States and 
persons outside the United States. This, in fact, is the law. We can 
change the law, and Senator Wyden had something to do with adding 
section 704. He did, in fact, change the law to put additional privacy 
protections in and those privacy protections are up for reauthorization 
in this bill before us.
  I wish to address, if I could, what Senator Merkley said in his 
comments. I listened carefully. What he is saying is opinions of the 
Foreign Intelligence Surveillance Court should, in some way, shape or 
form, be made public, just as opinions of the Supreme Court or any 
court are made available to the public. To a great extent, I find 
myself in agreement with that. They should be. Why can't they be? 
Because the law and the particular factual circumstances are mixed 
together in the opinion, so the particular facts and circumstances are 
possibly classified. Hopefully the opinion can either be written in a 
certain way for public release or the Attorney General can be required 
to prepare a summary of what that opinion said for release to the 
public.
  There is one part of Senator Merkley's amendment which I think we can 
work together on regarding the FISA Court opinions, and that is on page 
5, lines 3 to 11, where the amendment says:

       . . . if the Attorney General makes a determination that a 
     decision may not be declassified and made available in a 
     manner that protects the national security of the United 
     States, including methods or sources related to national 
     security, the Attorney General shall release an unclassified 
     summary of such decision.

  I have talked to Senator Merkley about this, and I have offered my 
help in working to establish this. The problem is, we have 4 days, and 
this particular part of the law expires, the FISA Amendments Act. I 
have offered to Senator Merkley to write a letter requesting 
declassification of more FISA Court opinions. If the letter does not 
work, we will do another intelligence authorization bill next year, and 
we can discuss what can be added to that bill on this issue.
  I am concerned that what is happening is the term ``secret law'' is 
being confused with what the Foreign Intelligence Surveillance Court 
issues in the form of classified opinions based on classified 
intelligence programs. As I have made clear, the law is public and when 
possible, the opinions of the Foreign Intelligence Surveillance Court 
should be made available to the public in declassified form. It can be 
done, and I think it should be done more often.
  If the opinion cannot be made public, hopefully a summary of the 
opinion can. And I have agreed with Senator Merkley to work together on 
this issue.
  I ask unanimous consent that all quorum calls during debate on the 
FISA bill be equally divided between the proponents and opponents.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from Oregon.
  Mr. WYDEN. Mr. President, just to respond to the points made by the 
distinguished chair of the committee--and, by the way, I think the 
chair's reference to being willing in the next intelligence 
authorization bill to work with those of us--and Senator Merkley has 
made good points this afternoon to try to include language in the next 
intelligence authorization bill to deal with secret law--I think that 
would be very constructive. I appreciate the chair making that 
suggestion.
  Colleagues may know that under the leadership of the chair of the 
committee and the distinguished Senator from Georgia, the vice chair of 
the committee, Mr. Chambliss, we were able, late last week, to work out 
the disagreements with respect to the intelligence authorization bill 
this year. I wish to thank the chair for those efforts. I think we have 
a good bill. I think all of us are against leaks. That is what was at 
issue. I think we have now dealt with the issue in a fashion so as to 
protect the first amendment and the public's right to know, and I 
appreciate the chair working with this Senator on it.
  I think we have a good intelligence authorization bill now for this 
year. I think the chair's suggestion that we look at dealing with this 
issue of secret law--in addition, I hope, to adopting the Merkley 
amendment--that we deal with it in the next intelligence authorization 
bill is constructive. I do want to respond to one point on the merits 
with respect to comments made by the distinguished chair on this issue.
  The distinguished chair of the committee essentially said the law is 
public because the text of the statute is public. That is true. That is 
not in dispute. It is true that the text of the law is public. But the 
secret interpretations of that law and the fourth amendment from the 
FISA Court are not public. The administration pledged 3 years ago to do 
something about that. They pledged it in writing in various kinds of 
communications, and that still has not been done. That is why this is 
an important issue with respect to transparency and accountability.
  The distinguished chair of the committee is absolutely correct that 
the law is public. The text of the law is public. Nobody disputes that. 
But the secret interpretations of the law and the fourth amendment--the 
interpretations of the FISA Court are not public, and we have received 
pledges now for years that this would change.
  I remember--perhaps before the distinguished chair of the committee 
was in the Chamber--talking about how Senator Rockefeller and I got a 
letter indicating that this was going to be changed and that we were 
very hopeful we were going to again get more information with respect 
to legal interpretations, matters that ought to be public that do not 
threaten sources and methods and operations. We still have not gotten 
that. That is the reason why Senator Merkley's work is so important.
  I see my friend and colleague. I say to Senator Merkley, the 
distinguished chair of the committee has made the point--I think while 
the Senator had to be out of the Chamber--that the law is public 
because the text of it is public. But what the Senator has so 
eloquently described as being our concern is that the opinions of the 
FISA Court--their opinions and views about the fourth amendment--are 
what has been secret, and the administration has said for years now 
they would do something about it.
  So the Senator's amendment seeks to give this the strongest possible 
push. I think that is why the Senator's amendment is so important. The 
Senator is obviously making a lot of headway because the distinguished 
chair of the committee has also said this issue of secret law is 
something that can be addressed as well in the intelligence 
authorization bill.

[[Page 18218]]

  If we can adopt the Senator's amendment and then move on to the 
intelligence authorization bill, that will be a very constructive way 
to proceed, very much in the public interest. The Senator is obviously 
making headway.
  Mr. MERKLEY. Mr. President, if I could interject for a moment.
  Mr. WYDEN. Yes, of course.
  The ACTING PRESIDENT pro tempore. The Senator from Oregon.
  Mr. MERKLEY. I thank my colleague from Oregon for spearheading this 
whole conversation about privacy and national security and how the two 
are not at war with each other. We are simply looking for appropriate 
warrant processes, an assurance to the public that the boundaries of 
privacy are being respected. Certainly, a piece of that is the secret 
law. I appreciate the comments of the chair of the Intelligence 
Committee on this issue. I do feel that in a democracy, understanding 
how a statute is interpreted is essential to the conduct of our 
responsibility in forging laws and ensuring that the constitutional 
vision is protected.
  Mr. WYDEN. I thank my colleague. He is making an important point. I 
have sat next to Senator Feinstein in the Intelligence Committee now 
for 12 years, and I think all of us--and we have had chairs on both 
sides of the aisle--understand how important the work of the 
intelligence community is. This is what prevents so many threats to our 
country from actually becoming realities--tragic realities.
  What my friend and colleague from Oregon has hammered home this 
afternoon is that if a law is secret and there is a big gap between the 
secret interpretation of a law and what the public thinks the law 
means--my friend and I represent people who, for example, could be 
using their laptop at home in Coos Bay. If they look up a law and they 
see what the public interpretation is and they later find out that the 
public interpretation is real different than what the government 
secretly says it is, when people learn that, they are going to be very 
unhappy.
  I see my colleague would like some additional time to address this 
issue. I am happy to yield to him.
  Mr. MERKLEY. I thank Senator Wyden.
  The Senator mentioned an Oregonian sitting in Coos Bay working on his 
or her laptop and calling the Senator's office and saying: Hey, the law 
says the government can collect tangible material related to an 
investigation. Does that mean they can collect all of my Web 
conversations--knowing that the Web circuits travel around the world 
multiple times and at some point they travel through a foreign space. 
They ask this question in all sincerity because they care about the 
fourth amendment and their privacy.
  How much ability do we have to give them a definitive answer on that?
  Mr. WYDEN. Absent the information we are seeking to get under the 
amendment I am going to offer, I do not think it is possible for a 
Senator to respond to the question.
  The issue for an individual Senator would be: Do you know whether 
anyone has ever estimated how many U.S. phone calls and e-mails have 
been warrantlessly collected under the statute? Do you know whether any 
wholly domestic phone calls and e-mails have been collected under this 
statute, which I believe is the exact question my colleague from Oregon 
has asked.
  I do not believe a Member of the Senate can answer that question. 
Being unable to answer that question means that oversight, which is so 
often trumpeted on both sides of the aisle, is toothless when it comes 
to the specifics.
  I hope that responds to my colleague's question.
  Mr. MERKLEY. Absolutely. I think about other questions our 
constituents might ask. They might ask if our spy agencies are 
collecting vast data from around the world and they become interested 
in an American citizen, can they search all that data without getting a 
warrant--a warrant that is very specific to probable cause and an 
affirmation.
  Again, I suspect the answer we could give to the citizen would be 
that we cannot give a very precise evaluation of that, not knowing how 
the concept of information related to an investigation has been 
interpreted and laid out.
  Mr. WYDEN. My colleague is asking a particularly important question 
because the Director of the National Security Agency, General 
Alexander, recently spoke at a large technology conference, and he said 
that with respect to communications from a good guy, which we obviously 
interpret as a law-abiding American, and someone overseas, the NSA has 
``requirements from the FISA Court and the Attorney General to minimize 
that''--to find procedures to protect the individual, the law-abiding 
American's rights, essentially meaning, in the words of General 
Alexander, ``nobody else can see it unless there's a crime that's been 
committed.''
  If people hear that answer to my colleague's question--which, 
frankly, General Alexander responded to directly--they pretty much say 
that is what they were hoping to hear; that nobody is going to get 
access to their communications unless a crime has been committed.
  The only problem, I would say to my friend, is Senator Udall and I 
have found out that is not true. It is simply not true. The privacy 
protections provided by this minimization approach are not as strong as 
General Alexander made them out to be. Senator Udall and I wrote to 
General Alexander, and he said--and I put this up on my Web site so all 
Americans can see the response--the general said: That is not really 
how the minimization procedures work--these minimization procedures 
that have been described in such a glowing way--and that the privacy 
protections are not as strong as we have been led to believe. He may 
have misspoken and may have just been mistaken, but I am not sure the 
record would be correct even now had not Senator Udall and I tried to 
make an effort to follow it up.
  I can tell the Senator that at this very large technology 
conference--this was not something that was classified--at a very large 
technology conference recently in Nevada, what the head of the National 
Security Agency said was taking place with respect to protecting 
people, in response to my colleague's questions: Were their e-mails and 
phone calls protected, the general said to a big group: They are, 
unless a crime has been committed. The real answer is that is not 
correct.
  Mr. MERKLEY. I thank my colleague from Oregon for being so deeply 
invested in the details of this over many years, utilizing a fierce 
advocacy in support of the fourth amendment and privacy to bring to 
these debates. I also thank the chair of the Intelligence Committee for 
her comments earlier today about secret laws and her own concerns about 
that and her willingness to help to work to have the administration 
provide the type of information that clarifies how these secret 
opinions interpret statutes. My thanks go to the Senator from 
California, Mrs. Feinstein.
  The PRESIDING OFFICER (Mrs. McCaskill.) The Senator from Oregon.
  Mr. WYDEN. I thank my friend. Just one last point with respect to 
this technology conference where so many people walked away and thought 
their privacy was being protected by strong legal protections. General 
Alexander made additional confusing remarks that were in response to 
that same question with respect to the protections of law-abiding 
people.
  General Alexander said, `` . . . the story that we [the NSA] have 
millions or hundreds of millions of dossiers on people is absolutely 
false.''
  Now, I have indicated this morning as well, having served on the 
Intelligence Committee for a long time, I do not have the faintest idea 
of what anybody is talking about with respect to a dossier. So Senator 
Udall and I followed that up as well. We asked the Director to clarify 
that statement. We asked, ``Does the NSA collect any type of data at 
all on millions or hundreds of millions of Americans?'' So that, too, 
is a pretty straightforward question.
  The question Senators have been asking about this are not very 
complicated. If you are asking whether the National Security Agency is 
addressing

[[Page 18219]]

these privacy issues, I think it is one of the most basic questions you 
can ask. Does the National Security Agency collect any type of data at 
all on millions or hundreds of millions of Americans? If the Agency saw 
fit, they could simply answer that with a yes or no. Instead, the 
Director of the Agency replied that while he appreciated our desire to 
have responses to those questions on the public record, there would not 
be a public response forthcoming.
  So to go over the exchange again, the Director of National Security 
Agency states that `` . . . the story that we have millions or hundreds 
of millions of dossiers on people is absolutely false.'' Senator Udall 
and I then asked: Does the NSA collect any type of data at all on 
millions or hundreds of millions of Americans? The Agency is unwilling 
to answer the question.
  So that is what this debate is all about, is reforming the FISA 
Amendments Act and, in particular, getting enough information so that 
it is possible for the Senate to say to our constituents: We are doing 
oversight over this program.
  I think right now, based on what we have outlined over the last 3 or 
more hours, it is clear that on so many of the central questions--the 
gap, for example, between the secret interpretation of the law and the 
public interpretation of the law, our inability to find out whether 
Americans in their wholly domestic communications have had their rights 
violated, how many law-abiding Americans have had their e-mails and 
phone calls swept up under FISA authorities, responses to these 
questions that stem from public remarks made by intelligence officials 
at public conferences--the inability to get answers to these questions 
means that this Senate cannot conduct the vigorous oversight that is 
our charge.
  I expect we will have colleagues coming in. With the weather, it is a 
special challenge to get here from our part of the country.
  I have a parliamentary inquiry. The distinguished chair of the 
committee already, I believe, got unanimous consent that the time in 
quorum calls be allocated to both sides. That was my understanding. Is 
that correct?
  The PRESIDING OFFICER. That is correct.
  Mrs. FEINSTEIN. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. COONS. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COONS. Madam President, I ask unanimous consent to speak in 
general debate as to H.R. 5949 and that my time in so speaking be 
charged against Senator Wyden.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. COONS. Madam President, in this dangerous world, we have an 
obligation to give our intelligence community the tools and the 
resources they need to keep us safe. But we also have a fundamental 
obligation--just as great, I believe--to protect the civil liberties of 
law-abiding American citizens. A right to private communications free 
from the prying eyes and ears of the government should be the rule, not 
the exception, for American citizens on American soil whom law 
enforcement has no reason to suspect of wrongdoing. Yet the legislation 
that we debate on this Senate floor today, the FISA Amendments Act, or 
the Foreign Intelligence Surveillance Act Amendments Act, would 
reauthorize surveillance authority that most Americans, most of the 
Delawareans whom I represent, would be shocked to learn the government 
has in the first place.
  Under section 702, FISA permits the government to wiretap 
communications in the United States without a warrant if it reasonably 
believes the target of the wiretap to be outside of the country and has 
a significant purpose of acquiring foreign intelligence information.
  Of course, communications are by definition between two or more 
people, so even if one participant is outside our country, the person 
they are talking to may be here in the United States and they may well 
be an American citizen.
  Under this legislation, the government is permitted to collect and 
store their communications but without clear legal limits on what can 
be done with this information. They can keep it for an indefinite 
period of time. They can search within these communications and use 
them in civilian criminal investigations. Perhaps most concerning of 
all to me, they can search information obtained under this act for the 
communications of a specific individual U.S. citizen without judicial 
oversight and for any reason. If these are all true and this is the 
case, then I am gravely concerned.
  What is at issue today is the scope of the government's power to 
conduct surveillance without getting a warrant. The warrant requirement 
is enshrined in our legal system from the very founding of our Nation 
because we believe in judicial checks and balances. If the government 
suspects wrongdoing by a U.S. citizen, it must convince a judge to 
approve a warrant. Warrants are issued each and every day in courts 
across the United States for investigation of potential offenses across 
the whole spectrum of criminal activity, including crimes affecting 
national security. In contrast, surveillance under this act is not 
required to meet this standard, leaving American citizens vulnerable to 
potentially very real violations of their privacy.
  The balance between privacy and security is an essential test for any 
government, but it is a vital test for our government and for this 
country.
  This law, in my view, does not contain some essential checks that are 
supposed to protect our privacy.
  This law in its current form does contain some checks that I want to 
review that are supposed to protect our privacy. It requires that the 
government surveillance program must be reasonably designed to target 
foreigners abroad and not intentionally acquire wholly domestic 
communications. The law requires that a wiretap be turned off when the 
government knows it is listening in on a conversation between two U.S. 
individuals, and it forbids the government from targeting a foreigner 
as a pretext for obtaining the communications of a U.S. national. All 
three of these are important privacy protections currently in the law.
  The problem is that we here in the Senate--and so the citizens we 
represent--don't know how well any of these safeguards actually work. 
We don't know how courts construe the law's requirements that 
surveillance be, as I mentioned, reasonably designed not to obtain any 
purely domestic information. The law doesn't forbid purely domestic 
information from being collected.
  We know that at least one FISA Court has ruled that a surveillance 
program violated the law. Why? Those who know can't say, and average 
Americans can't know. We can suspect that U.S. communications 
occasionally do get swept up in this kind of surveillance, but the 
intelligence community has not--in fact, they say they cannot offer us 
any reasonable estimate of the number or frequency with which this has 
happened.
  The government also won't state publicly whether any wholly domestic 
communications have been obtained under this authority, and the 
government won't state publicly whether it has ever searched this 
surveillance, this body of communications, for the communications of a 
specific American without a warrant.
  For me, this lack of information, this lack of understanding, this 
lack of detail about exactly how the protections in this act have 
worked is of, as I said, grave concern. Too often, this body finds 
itself in the position of having to give rushed consideration to the 
extension of expiring surveillance authorities.
  The intelligence communities tell us these surveillance tools are 
indispensable to the fight against terrorism and foreign spies, just as 
they did during the PATRIOT Act reauthorization debate last year. Also 
as in the case of the PATRIOT reauthorization, the expiration of these 
authorities, we were told, would throw ongoing surveillance operations 
into a legal limbo, that it

[[Page 18220]]

could cause investigations to collapse or harm our ability to track 
terrorists and prevent crimes. All of these are profound and legitimate 
concerns. It is precisely because this legislation is so important that 
it is all the more deserving of the Senate's careful, timely, and 
deliberate attention.
  This kind of serious consideration requires more declassified 
information on the public record than we have available now. That is 
why I am supporting the amendments reported by the Judiciary Committee, 
on which I serve, which would help to shine a light on exactly how this 
surveillance authority is used. It would direct the intelligence 
community inspector general to issue a public report explaining whether 
and how the FISA Amendments Act respects the privacy interests of 
Americans.
  This amendment would also give us another chance to amend this FAA 
after we receive this report by adjusting the sunset not to 2017 but to 
2015. The new expiration date would align the sunset of the FISA 
Amendments Act with those in the PATRIOT Act, allowing for more 
comprehensive review of both surveillance authorizations.
  Concerns about privacy rights of law-abiding American citizens, as 
well as the striking lack of current public information, are also why I 
support the amendment of Senator Merkley to direct the administration 
to establish a framework for declassifying FISA Court opinions about 
the FAA. Secure sources and methods vital to the success of our 
intelligence community must be protected. I agree with that, and this 
amendment would do that. But the default position here ought to be that 
the legal analysis about the government's use of warrantless 
surveillance in this country is public rather than hidden from view.
  I also strongly support the amendment of Senator Wyden to force the 
intelligence community to provide Congress and the public, as 
appropriate, with specifics on just how much domestic communication has 
been captured under the FAA and what the intelligence community does 
with that information. This amendment simply asks for the most basic 
information about the practical consequences of the use of the powerful 
surveillance authorities in this act. To what extent are these 
authorities being used to discover the content of private conversations 
by U.S. citizens? What is the order of magnitude? We don't know.
  This amendment is simply common sense. The Delawareans for whom I 
work and the Nation for whom we work expect that the government cannot 
listen in on their phone calls or read their e-mails unless a judge has 
signed a warrant. If there is a reason why this requirement is not 
consistent with national security, then I say let the intelligence 
community make that case and allow us to debate that and consider it in 
public. It is simply not acceptable for the intelligence community to 
ask us to surrender our civil liberties and then refuse to tell us with 
any specificity why we must do so, the context, and the scale of the 
exercise of this surveillance authority. In my view, America's first 
principles demand better.
  I thank Senator Wyden for his leadership on this issue, and I thank 
Majority Leader Reid for ensuring that we have the opportunity to 
debate and consider these amendments and the very important issues they 
reflect here today.
  I urge all of my colleagues to consider carefully and then support 
these amendments to the FAA. We cannot let the impending deadline 
distract us from the important opportunity to conduct oversight and 
implement responsible reforms. To simply be rushed to passage when we 
have known the deadline was approaching for years strikes me as an 
abrogation of our fundamental oversight responsibility. This Chamber 
deserves a full and informed debate about our intelligence-gathering 
procedures and their potentially very real impact on Americans' privacy 
rights, and we need it sooner rather than later. These amendments would 
allow us to have that conversation and to work together on a path that 
strikes the essential balance between privacy and security for the 
citizens of these United States.
  Madam President, I yield the floor, and I suggest the absence of a 
quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. PAUL. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. PAUL. Madam President, I rise today in support of the Fourth 
Amendment Protection Act. The fourth amendment guarantees the right of 
the people to be secure in their persons, their houses, their papers, 
and their effects against unreasonable searches and seizures.
  John Adams considered the fight against general warrants--or what 
they called in those days writs of assistance--to be when ``the child 
Independence was born.'' Our independence and the fourth amendment go 
hand in hand. They emerge together. To discount or to dilute the fourth 
amendment would be to deny really what constitutes our very Republic.
  But somehow, along the way, we have become lazy and haphazard in our 
vigilance. We have allowed Congress and the courts to diminish our 
fourth amendment protections, particularly when we give our papers to a 
third party--once information is given to an Internet provider or to a 
bank. Once we allowed our papers to be held by third parties, such as 
telephone companies or Internet providers, the courts determined we no 
longer had a legally recognized expectation of privacy.
  There have been some dissents over time. Justice Marshall dissented 
in the California Bankers Association v. Schulz case, and he wrote 
these words:

       The fact that one has disclosed private papers to a bank 
     for a limited purpose within the context of a confidential 
     customer-bank relationship does not mean that one has waived 
     all right to the privacy of the papers.

  But privacy and the fourth amendment have steadily lost ground over 
the past century. From the California Bankers Association case, to 
Smith v. Maryland, to U.S. v. Miller, the majority has ruled that 
records, once they are held by a third party, don't deserve the same 
fourth amendment protections.
  Ironically, though, digital records seem to get less protection than 
paper records. As the National Association of Defense Attorneys has 
pointed out, ``since the 1870s, a warrant has been required to read 
mail, and since the Supreme Court's decision in Katz v. the United 
States, a warrant has generally been required to wiretap telephone 
conversations. However, under current law, e-mail, text messages, and 
other communication content do not receive this same level of 
protection.'' Why is a phone call deserving of more protection than our 
e-mail or texts?
  In U.S. v. Jones, the recent Supreme Court case that says the 
government can't put a GPS tracking device on a car without a warrant, 
Justice Sotomayor said this:

       I for one doubt that people would accept without complaint 
     the warrantless disclosure to the government of a list of 
     every Web site they have visited in the last week, or month, 
     or year. . . . I would not assume that all information 
     voluntarily disclosed to some member of the public for a 
     limited purpose is, for that reason alone, disentitled to the 
     Fourth Amendment protection.

  Justices Marshall and Brennan, dissenting in Smith v. Maryland, 
emphasized the danger of giving up fourth amendment protections. They 
wrote:

       The prospect of government monitoring will undoubtedly 
     prove disturbing even to those with nothing illicit to hide. 
     Many individuals, including members of unpopular political 
     organizations or journalists with confidential sources, may 
     legitimately wish to avoid disclosure of their personal 
     contacts.

  In Miller and in Smith, the Supreme Court held that the fourth 
amendment did not protect records held by third parties. Sotomayor 
wrote in the Jones case that it may be time to reconsider these cases, 
reconsider how they were decided; that their approach is, in her words, 
``ill-suited to the digital age, in which people reveal a great deal of 
information about themselves to third parties in the course of carrying 
out mundane tasks.''

[[Page 18221]]

  Today, this amendment that I will present, the Fourth Amendment 
Protection Act, does precisely that. This amendment would restore the 
fourth amendment protection to third-party records. This amendment 
would simply apply the fourth amendment to modern means of 
communications. E-mailing and text messaging would be given the same 
protections we currently give to telephone conversations.
  Some may ask, well, why go to such great lengths to protect records? 
Isn't the government just interested in the records of bad people?
  To answer this question, one must imagine their Visa statement and 
what information is on that Visa statement. From our Visa statement, 
the government may be able to ascertain what magazines we read; whether 
we drink and how much; whether we gamble and how much; whether we are a 
conservative, a liberal, a libertarian; whom we contribute to; what our 
preferred political party is; whether we attend a church, a synagogue, 
or a mosque; whether we are seeing a psychiatrist; and what type of 
medications we take. By poring over a Visa statement, the government 
can pry into every aspect of one's personal life. Do we really want to 
allow our government unfettered access to sift through millions of 
records without first obtaining a judicial warrant?
  If we have people who are accused of committing a crime, we go before 
a judge and get a warrant. It is not that hard. I am not saying the 
government wouldn't be allowed to look through records. I am saying 
that the mass of ordinary, innocent citizens should not have their 
records rifled through by a government that does not first have to ask 
a judge for a warrant before they look at personal records.
  We have examples in the past of abuses by our own country. During the 
civil rights era, the government snooped on activists. During the 
Vietnam era, the government snooped on antiwar protesters. In a digital 
age, where computers can process billions of bits of information, do we 
want the government to have unfettered access to every detail of our 
lives? From a Visa statement, the government can determine what 
diseases one may or may not have; whether one is impotent, manic, 
depressed; whether someone is a gun owner and whether he or she buys 
ammunition; whether one is an animal rights activist, an environmental 
activist; what books we order, what blogs we read, and what stores or 
Internet sites we look at. Do we really want our government to have 
free and unlimited access to everything we do on our computers?
  The fourth amendment was written in a different time and a different 
age, but its necessity and its truth are timeless. The right to privacy 
and, for that matter, the right to private property are not explicitly 
mentioned in the Constitution, but the ninth amendment says that the 
rights not stated are not to be disparaged or denied.
  James Otis--arguably the father of the fourth amendment--put it best 
when he said:

       One of the most essential branches of English liberty is 
     the freedom of one's house. A man's house is his castle; and 
     whilst he is quiet, he is as well guarded as a prince in his 
     castle.

  Today's castle may be an apartment, and who knows where the 
information is coming from. It may be paper in one's apartment or it 
may be bits of data stored who knows where, but the concept that 
government should be restrained from invading a sphere of privacy is a 
timeless concept.
  Over the past few decades, our right to privacy has been eroded. The 
Fourth Amendment Protection Act would go a long way toward restoring 
this cherished and necessary right. I hope my colleagues will consider 
supporting, defending, and enhancing the fourth amendment, bringing it 
into a modern age where modern electronic and computer information and 
communications are once again protected by the fourth amendment.
  Madam President, I reserve the remainder of my time.
  Mrs. FEINSTEIN. Madam President, is the Senator going to call up his 
amendment?


                           Amendment No. 3436

  Mr. PAUL. Madam President, I ask unanimous consent to call up my 
amendment, which is at the desk.
  The PRESIDING OFFICER. Without objection, the clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Kentucky [Mr. Paul], for himself and Mr. 
     Lee, proposes an amendment numbered 3436.

  Mr. PAUL. Madam President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To ensure adequate protection of the rights under the Fourth 
          Amendment to the Constitution of the United States)

       At the appropriate place, insert the following:

     SEC. ___. FOURTH AMENDMENT PRESERVATION AND PROTECTION ACT OF 
                   2012.

       (a) Short Title.--This section may be cited as the ''Fourth 
     Amendment Preservation and Protection Act of 2012''.
       (b) Findings.--Congress finds that the right under the 
     Fourth Amendment to the Constitution of the United States of 
     the people to be secure in their persons, houses, papers, and 
     effects against unreasonable searches and seizures is 
     violated when the Federal Government or a State or local 
     government acquires information voluntarily relinquished by a 
     person to another party for a limited business purpose 
     without the express informed consent of the person to the 
     specific request by the Federal Government or a State or 
     local government or a warrant, upon probable cause, supported 
     by oath or affirmation, and particularly describing the place 
     to be searched, and the persons or things to be seized.
       ``(c) Definition.--In this section, the term ``system of 
     records'' means any group of records from which information 
     is retrieved by the name of the individual or by some 
     identifying number, symbol, or other identifying particular 
     associated with the individual.
       (d) Prohibition.--
       (1) In general.--Except as provided in paragraph (2), the 
     Federal Government and a State or local government is 
     prohibited from obtaining or seeking to obtain information 
     relating to an individual or group of individuals held by a 
     third-party in a system of records, and no such information 
     shall be admissible in a criminal prosecution in a court of 
     law.
       (2) Exception.--The Federal Government or a State or local 
     government may obtain, and a court may admit, information 
     relating to an individual held by a third-party in a system 
     of records if--
       (A) the individual whose name or identification information 
     the Federal Government or State or local government is using 
     to access the information provides express and informed 
     consent to the search; or
       (B) the Federal Government or State or local government 
     obtains a warrant, upon probable cause, supported by oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized.

  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, I rise in opposition to this 
amendment. This amendment is extraordinarily broad. It is much broader 
than FISA, and in the course of my remarks, I would hope to address how 
broad it is. It essentially bars Federal, State, and local governments 
from obtaining any information relating to an individual that is held 
by a third party unless the government first obtains either a warrant 
or consent from the individual. This is also not germane to FISA. It 
has not been reviewed by the Judiciary Committee, which would have 
jurisdiction over this matter. For that reason alone, I would vote 
against it. Also, it impedes the timely reauthorization of the FISA 
Amendments Act.
  I also oppose the substance of the amendment. The amendment is titled 
the ``Fourth Amendment Preservation and Protection Act.'' In reality, 
it seeks to reverse over 30 years of Supreme Court precedent 
interpreting the fourth amendment.
  In 1967 the Supreme Court established its reasonable expectation of 
privacy test under the fourth amendment, in the case of Katz v. United 
States. Nine years later, in a case known as U.S. v. Miller, the 
Supreme Court held:

       [T]he Fourth Amendment does not prohibit the obtaining of 
     information revealed to a third party and conveyed by him to 
     Government authorities.

  So already you have a Supreme Court case saying that the fourth 
amendment does not prohibit the use of this kind of information by the 
government.

[[Page 18222]]

  The Miller case involved the government obtaining account records 
from a bank. But in 1979, just 3 years after Miller, the Supreme Court 
took up the issue of third-party collection in a case involving the 
installation and use of pen registers, which are electronic devices 
that enable law enforcement to collect telephone numbers dialed from a 
particular phone line without listening to the content of those calls. 
The 1973 case is known as Smith v. Maryland, and in it the Court held:

       [W]e doubt that people in general entertain any actual 
     expectation of privacy in the numbers they dial. All 
     telephone users realize that they must ``convey'' phone 
     numbers to the telephone company, since it is through 
     telephone company switching equipment that their calls are 
     completed. All subscribers realize, moreover, that the phone 
     company has facilities for making permanent records of the 
     numbers they dial, for they see a list of their long-distance 
     (toll) calls on their monthly bills. . . . Telephone users . 
     . . typically know that they must convey numerical 
     information to the phone company; that the phone company has 
     facilities for recording this information; and that the phone 
     company does in fact record this information for a variety of 
     legitimate business purposes. Although subjective 
     expectations cannot be scientifically gauged, it is too much 
     to believe that telephone subscribers, under these 
     circumstances, harbor any general expectation that the 
     numbers they dial will remain secret. . . . This Court 
     consistently has held that a person has no legitimate 
     expectation of privacy in information he voluntarily turns 
     over to third parties.

  More recently, in the Court's 2012 decision in U.S. v. Jones, some 
Justices have questioned whether the time has come to revisit Miller 
and Smith in some form. Now, perhaps they are right, but this amendment 
isn't the form they had in mind. And this isn't the time to do so.
  This amendment is so broad that the police could not use cell phone 
data to find a missing or kidnapped child without a warrant or the 
consent of the missing child--impossible to get. Similarly, they could 
not ask the phone company to provide the home address of a terrorist, 
drug dealer, or other criminal without consent or warrant. They could 
not ask a bank if such criminals had recently deposited large sums of 
money. In fact, as written, this amendment would prohibit law 
enforcement from looking up the name, address, and phone number of a 
criminal suspect, witness, or any other person online unless they 
obtained a warrant or the consent of the criminal suspect. As you can 
see, the amendment is too broad.
  As I have already stated, the FAA authorities expire in 4 days. If 
those authorities are allowed to lapse, our intelligence agencies will 
be deprived of a critical tool that enables those agencies to acquire 
vital information about international terrorists and other important 
targets overseas, plus what they may be plotting in the United States. 
It is imperative that we pass a clean reauthorization of these 
authorities without amendments that will hamper passage in the House.
  I urge my colleagues to oppose this amendment.
  The PRESIDING OFFICER. The Senator from Vermont.


                           Amendment No. 3437

  Mr. LEAHY. Madam President, I ask unanimous consent to set aside the 
pending amendments and call up my amendment, which is at the desk.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Vermont [Mr. Leahy] for himself, Mr. 
     Durbin, Mr. Franken, Mrs. Shaheen, Mr. Akaka, and Mr. Coons, 
     proposes an amendment numbered 3437.

  Mr. LEAHY. I ask unanimous consent that reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

                (Purpose: In the nature of a substitute)

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``FAA Sunsets Extension Act of 
     2012''.

     SEC. 2. EXTENSION OF FISA AMENDMENTS ACT OF 2008 SUNSET.

       (a) Extension.--Section 403(b)(1) of the FISA Amendments 
     Act of 2008 (Public Law 110-261; 50 U.S.C. 1881 note) is 
     amended by striking ``December 31, 2012'' and inserting 
     ``June 1, 2015''.
       (b) Technical and Conforming Amendments.--Section 403(b)(2) 
     of such Act (Public Law 110-261; 122 Stat. 2474) is amended 
     by striking ``December 31, 2012'' and inserting ``June 1, 
     2015''.
       (c) Orders in Effect.--Section 404(b)(1) of such Act 
     (Public Law 110-261; 50 U.S.C. 1801 note) is amended in the 
     heading by striking ``December 31, 2012'' and inserting 
     ``June 1, 2015''.

     SEC. 3. INSPECTOR GENERAL REVIEWS.

       (a) Agency Assessments.--Section 702(l)(2) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(l)(2)) 
     is amended--
       (1) in the matter preceding subparagraph (A), by striking 
     ``authorized to acquire foreign intelligence information 
     under subsection (a)'' and inserting ``with targeting or 
     minimization procedures approved under this section'';
       (2) in subparagraph (C), by inserting ``United States 
     persons or'' after ``later determined to be''; and
       (3) in subparagraph (D)--
       (A) in the matter preceding clause (i), by striking ``such 
     review'' and inserting ``review conducted under this 
     paragraph'';
       (B) in clause (ii), by striking ``and'' at the end;
       (C) by redesignating clause (iii) as clause (iv); and
       (D) by inserting after clause (ii), the following:
       ``(iii) the Inspector General of the Intelligence 
     Community; and''.
       (b) Inspector General of the Intelligence Community 
     Review.--Section 702(l) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1881a(l)) is amended--
       (1) by redesignating paragraph (3) as paragraph (4); and
       (2) by inserting after paragraph (2) the following:
       ``(3) Inspector general of the intelligence community 
     review.--
       ``(A) In general.--The Inspector General of the 
     Intelligence Community is authorized to review the 
     acquisition, use, and dissemination of information acquired 
     under subsection (a) in order to review compliance with the 
     targeting and minimization procedures adopted in accordance 
     with subsections (d) and (e) and the guidelines adopted in 
     accordance with subsection (f), and in order to conduct the 
     review required under subparagraph (B).
       ``(B) Mandatory review.--The Inspector General of the 
     Intelligence Community shall review the procedures and 
     guidelines developed by the intelligence community to 
     implement this section, with respect to the protection of the 
     privacy rights of United States persons, including--
       ``(i) an evaluation of the limitations outlined in 
     subsection (b), the procedures approved in accordance with 
     subsections (d) and (e), and the guidelines adopted in 
     accordance with subsection (f), with respect to the 
     protection of the privacy rights of United States persons; 
     and
       ``(ii) an evaluation of the circumstances under which the 
     contents of communications acquired under subsection (a) may 
     be searched in order to review the communications of 
     particular United States persons.
       ``(C) Consideration of other reviews and assessments.--In 
     conducting a review under subparagraph (B), the Inspector 
     General of the Intelligence Community should take into 
     consideration, to the extent relevant and appropriate, any 
     reviews or assessments that have been completed or are being 
     undertaken under this section.
       ``(D) Report.--Not later than December 31, 2014, the 
     Inspector General of the Intelligence Community shall submit 
     a report regarding the reviews conducted under this paragraph 
     to--
       ``(i) the Attorney General;
       ``(ii) the Director of National Intelligence; and
       ``(iii) consistent with the Rules of the House of 
     Representatives, the Standing Rules of the Senate, and Senate 
     Resolution 400 of the 94th Congress or any successor Senate 
     resolution--

       ``(I) the congressional intelligence committees; and
       ``(II) the Committees on the Judiciary of the House of 
     Representatives and the Senate.

       ``(E) Public reporting of findings and conclusions.--In a 
     manner consistent with the protection of the national 
     security of the United States, and in unclassified form, the 
     Inspector General of the Intelligence Community shall make 
     publicly available a summary of the findings and conclusions 
     of the review conducted under subparagraph (B).''.

     SEC. 4. ANNUAL REVIEWS.

       Section 702(l)(4)(A) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1881a(l)(4)(A)), as 
     redesignated by section 3(b)(1), is amended--
       (1) in the matter preceding clause (i)--
       (A) in the first sentence--
       (i) by striking ``conducting an acquisition authorized 
     under subsection (a)'' and inserting ``with targeting or 
     minimization procedures approved under this section''; and
       (ii) by striking ``the acquisition'' and inserting 
     ``acquisitions under subsection (a)''; and

[[Page 18223]]

       (B) in the second sentence, by striking ``The annual 
     review'' and inserting ``As applicable, the annual review''; 
     and
       (2) in clause (iii), by inserting ``United States persons 
     or'' after ``later determined to be''.

  Mr. LEAHY. Madam President, when Congress passed the FISA Amendments 
Act of 2008, it granted the Government sweeping new electronic 
surveillance powers which, if abused or misused, could impinge on the 
privacy rights of Americans. Congress enacted these controversial 
authorities with the understanding that it would re-examine these 
provisions within four years, and determine whether to allow these 
authorities to continue.
  While there is no question that the surveillance powers established 
in the FISA Amendments Act have proven to be extraordinarily important 
for our national security, it is equally clear to me that those broad 
powers must continue to come with rigorous oversight and strong privacy 
protections.
  That is why the Senate should adopt the Senate substitute amendment 
that would allow the Government to continue using these authorities, 
but for a period of time that ensures strong and independent oversight. 
This amendment was considered and reported favorably by the Senate 
Judiciary Committee last July. I urge Senators to support this 
reasonable and commonsense measure. I call on all Senators who talk 
about accountability and oversight to join with us to adopt this better 
approach to ensuring our security and our privacy.
  Many of us will remember that the FISA Amendments Act was originally 
passed to clean up what one Bush administration lawyer called the 
``legal mess'' of the warrantless wiretapping program, which undermined 
the privacy rights and civil liberties of countless Americans. More 
than that, the warrantless wiretapping program undermined the public's 
trust in our Government, and in the intelligence community's ability to 
police itself.
  During the debate on the FISA Amendments Act in 2007 and 2008, I 
worked with others on the Judiciary Committee to ensure that important 
oversight, accountability, and privacy protections were put into place, 
including express prohibitions on the warrantless wiretapping of U.S. 
persons or any individual located here in the United States, as well as 
a prohibition against the practice of so-called ``reverse targeting.''
  I am convinced that the oversight and accountability provisions that 
we included in the original legislation have helped to prevent the 
abuse of these surveillance tools. Based on my review of information 
provided by the Government, and after a series of classified briefings, 
I have not seen evidence that the law has been abused, or that the 
communications of U.S. persons are being intentionally targeted. But 
let's be absolutely clear, my conclusion is based on the information I 
have seen to date, and current compliance does not guarantee future 
compliance. We must not relax our oversight efforts, and I believe that 
there is more that can be done to protect against future abuse and 
misuse.
  In June, after the Senate Intelligence Committee originated the 
Senate bill to reauthorize and extend FISA, Senator Grassley and I 
asked for a sequential referral, just as I did in 2008, to allow the 
Judiciary Committee to consider and improve this important legislation. 
The bill that was approved by the Intelligence Committee provided for a 
general and unfettered extension of the expiring provisions until June 
2017.
  I hoped that the Senate Judiciary Committee would improve on that, 
and we did. I worked with Senator Feinstein, Chair of the Senate 
Intelligence Committee, to craft a compromise to shorten the sunset to 
2015 and to add some accountability and oversight provisions. I 
appreciated the Senator from California's commitment to helping to 
improve this sensitive and important legislation and her strong words 
of support for the Senate Judiciary Committee bill. The Senate 
Judiciary Committee adopted the substitute and reported the Senate bill 
to the Senate promptly last July. That is the bill that I am offering, 
the Senate bill. There is no reason for us to merely rubberstamp the 
House bill. We have a better bill with better provisions and more 
accountability and oversight. I am pleased that Senators Durbin, 
Franken, Shaheen, Akaka, and Coons have joined me as cosponsors of this 
amendment.
  The Senate bill that the Judiciary Committee adopted, and that I am 
offering to improve on the House bill that has been brought before us, 
provides for a shorter sunset of the expiring surveillance authorities. 
The House bill's sunset is longer than that adopted by the Senate 
Select Committee on Intelligence and unnecessarily extended. The Senate 
bill I offer provides for extending FISA authorities, but would sunset 
them in June 2015. This will allow the existing programs to continue 
but ensures that we revisit them in a timely fashion as more 
information becomes available. It would also align with the June 2015 
sunset of certain provisions of the USA PATRIOT Act, thereby enabling 
Congress to evaluate all of the expiring surveillance provisions of 
FISA together. This is an approach that Chairman Feinstein and I both 
supported during the PATRIOT Act reauthorization debate in 2011, along 
with many members of the Judiciary and Intelligence Committees. This is 
the position the intelligence community and the administration 
supported then and as recently as last year. It is the right position 
and the right sunset, and that is why the Senate bill should include it 
and will if my amendment is adopted.
  As we have seen through our experience with the USA PATRIOT Act, 
sunsets are important oversight tools. Sunsets force Congress to re-
examine carefully the surveillance powers that have been authorized. If 
we know we have to actually look at it because it is going to run out, 
what happens is amazing--Senators in both parties actually look at it. 
More importantly, sunsets force the administration to provide full and 
accurate information to justify to Congress the reauthorization of 
significant authorities. Any administration is going to be willing to 
kick the ball down the road if they don't have to do it; if they have a 
sunset, they do. The last thing we want is for the NSA and the FBI to 
take forgranted that they will have these powers, especially when the 
misuse or abuse of these powers could significantly impact the 
constitutional liberties of Americans. Likewise, we must never take for 
granted our constitutional liberties, and we should not shy away from 
our duty as Senators to protect against any such misuse or abuse.
  I acknowledge and appreciate those in the intelligence community who 
work very hard to ensure compliance with our laws and Constitution. But 
it is also important to note that there has never been a comprehensive 
review of these authorities by an independent Inspector General that 
would provide a complete perspective on how these authorities are being 
used, and whether they are being used properly.
  The DOJ Inspector General recently completed a review of the FBI's 
implementation of the FISA Amendments Act, but this was limited in 
scope--not only because it was just limited to the FBI, and not any 
other part of the intelligence community, but also because it was 
limited in scope to the period ending in early 2010. Notably, this was 
the first report ever issued by the DOJ Inspector General regarding the 
FBI's use of Section 702 authorities, and it was issued in September 
2012--after the Senate Intelligence and Judiciary Committees reported 
their bills, and after the House voted to pass its clean extension.
  Even more troubling is the fact that we still have not received a 
report from the NSA Inspector General that fully assesses the NSA's 
compliance with its targeting and minimization procedures, or the 
limitations we put in place to protect the privacy of Americans. I am 
told that a preliminary report on the adequacy of the management 
controls at the NSA is being finalized--but it is just that: a 
preliminary report, and not an actual, final, comprehensive, or 
definitive assessment of whether NSA analysts are complying with the 
procedures and

[[Page 18224]]

rules that they have put into place. Indeed, the NSA Inspector 
General's office has acknowledged that there is more work to be done, 
and that this review--once completed--will just be a first step. 
Moreover, as with the DOJ Inspector General's report, this review is 
limited just to a single agency, and does not incorporate any review or 
assessment of any information-sharing that might be taking place.
  To address the limitations faced by the IGs for individual agencies, 
our Senate bill as embodied in my substitute amendment adds some 
commonsense improvements to the oversight provisions in the FISA 
Amendments Act, including a comprehensive independent review by the 
Inspector General of the Intelligence Community. The Office of the 
Inspector General of the Intelligence Community was established in 2010 
and has the unique ability to provide a comprehensive assessment of the 
surveillance activities across the intelligence community, rather than 
just a limited view of a single agency. An independent review by the 
Inspector General for the Intelligence Community could answer some 
remaining questions about the implementation of the FISA Amendments 
Act, particularly with respect to the protection of the privacy rights 
of U.S. persons. I also believe that an unclassified summary of such an 
audit should be made public in order to provide increased 
accountability directly to the American people.
  These are reasonable improvements to the law that I urge all Senators 
to support. We often hear Senators speak about the need for vigorous 
and independent oversight of the Executive Branch, the need to support 
independent inspectors general who are not beholden to a particular 
agency, and the need for Congress to conduct its own independent 
reviews as a check on the power of the Executive. So I ask those same 
Senators this question: When Congress has authorized the use of 
expansive and powerful surveillance tools that have the potential to 
impact so significantly the constitutional rights of law-abiding 
Americans, isn't this exactly the type of situation that calls for that 
sort of vigorous and independent oversight? Put simply, someone needs 
to be watching the watchers--and watching them like a hawk. I call upon 
all Senators, on both sides of the aisle, who talk about accountability 
and oversight to join with us to adopt this better approach to ensuring 
our security and our privacy by adopting the Senate bill as embodied in 
the substitute amendment.
  No one can argue that shortening the sunset or adding oversight 
provisions somehow hampers the Government's ability to fight terrorism 
or somehow harms national security. That is not true. All Senators 
should know that neither the 2015 sunset date nor the added oversight 
provisions have any operational impact on the work of the intelligence 
community. No one--I repeat, no one from the administration has ever 
said to me that these provisions cause any operational problems for the 
intelligence community, and to suggest otherwise now is simply not 
accurate.
  In fact, when the Senate Select Committee on Intelligence reported 
its bill last year that bill had exactly the same sunset date of June 
2015 that is in the substitute amendment. I was encouraged that Senator 
Feinstein supported this 2015 sunset date when the Judiciary Committee 
approved this substitute amendment, and noted then that this substitute 
amendment does not cause any operational problems for the intelligence 
community.
  So where does that leave us? It leaves us with a simple choice. We 
can enable the intelligence community to continue using these 
authorities until 2015, while adding commonsense improvements that will 
help us to conduct vigorous oversight. Or the Senate can abdicate its 
responsibilities and rubberstamp the House bill that extends these 
powerful authorities for another five years, without a single 
improvement in oversight or accountability--even though we may not have 
all the information we need to make an informed determination.
  As an American, and as a Vermonter, the choice is simple for me. We 
have an obligation to ensure that these expansive surveillance 
authorities are accompanied by safeguards. We can fulfill our duty to 
protect the privacy and civil liberties of the American public, while 
continuing to provide the intelligence community with tools to help 
keep America safe. That is what the Senate bill as embodied in the 
substitute amendment accomplishes. I urge Senators to choose this 
balanced, commonsense approach, and to support adopt the Senate 
substitute to the over-expansive House bill.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Madam President, in listening to the distinguished 
chairman of the Judiciary Committee and also reading the amendment, I 
want to make clear that there are parts of this amendment to which I 
would agree. However, the House bill is now before us, which would 
extend the sunset of the FISA Amendments Act 5 years versus 2\1/2\ 
years in the Leahy Amendment. So, before us is the 5-year authorization 
period which the House has already passed. We have 4 days before the 
FISA Amendments Act essentially end. I cannot support that shorter time 
but I support the 5-year extension.
  The part of the amendment of the chairman of the Judiciary Committee 
that I do agree with is the expanded mission of the inspector general 
of the Intelligence Community. Since the chairman is now becoming the 
President in rapid promotion, I will be happy to address my remarks to 
him.
  (The PRESIDENT pro tempore assumed the Chair.)
  Mr. President, Mr. Chairman, I want you to know we have spent large 
amounts of time on the particular issue of Section 702 reporting. For 
example, the law requires semiannual Attorney General and DNI 
assessments of section 702. Every 6 months they assess compliance with 
the targeting and minimization procedures. The law also requires the 
inspector general of Justice and the IG of every element of the 
intelligence community authorized to acquire foreign intelligence 
information to review compliance within Section 702. In addition, the 
IGs are required to review the number of disseminated intelligence 
reports containing a reference to a U.S.-person identity and the number 
of U.S. person identities subsequently disseminated. The law also 
already requires annual reviews by agency heads of Section 702. It also 
requires a semiannual Attorney General report on Title VII every 6 
months to fully inform the congressional Intelligence and Judiciary 
Committees. And there is another semiannual report on FISA required for 
the Attorney General to submit a report to the committees. Finally, 
there are requirements for the provision of documents relating to 
significant construction or interpretation of FISA by the FISA Court.
  So it is clear that there are many reporting requirements on FISA and 
specifically section 702. I would also add that the Intelligence 
Committee has had hearings with the DNI, with Attorney General Holder, 
with Director of FBI Mueller on how Section 702 is carried out. I will 
also tell you the Intelligence Committee staff spends countless hours 
going over the reports in meetings with representatives of the 
departments. However, I would say to Chairman Leahy that what I would 
like to do is look at your amendment and see how it compares to what is 
currently being done and possibly add some parts of your amendment to 
our authorization bill next year.
  I would urge that we have your staff and the Intelligence Committee 
staff work together to see what we can do. The real reason to oppose 
all of this at this time is that these authorities expire in 4 days. I 
remember the vote in the Judiciary Committee on this amendment very 
well. Had the bill come to the floor over the summer, after it passed 
out of Committee, then we might have had time to convince the House to 
consider these changes to current law. But here we are where we have a 
5-year House bill in front of us and only 4 days to extend the sunset. 
As I am opposing all amendments, I would respectfully and, not quite 
sorrowfully but almost, have to oppose

[[Page 18225]]

your amendment with the caveat I added, Mr. Chairman.
  In deference to you and your chairmanship of the Judiciary Committee, 
the Intelligence Committee staff will work closely with yours to see if 
there is anything that needs to be added to a future intelligence 
authorization bill.
  I thank you for that and I yield the floor.
  The PRESIDENT pro tempore. The Senator from Oregon.
  Mr. WYDEN. Mr. President, first, I strongly support your amendment, 
given how little most Members of Congress know about the actual impact 
of the law. The shorter extension period as envisioned by the 
distinguished chairman of the Judiciary Committee makes a lot of sense. 
I also think it makes sense to have the intelligence community 
inspector general conduct an audit on how FISA Amendment Act authority 
has been used.
  Once again, we have had this discussion about how much everybody 
already knows about how the FISA Amendments Act affects the operations 
of this program on law-abiding Americans. I would have to respectfully 
disagree. I asked Senators, as we touched on this in the course of the 
afternoon, whether they know if anyone has ever estimated how many U.S. 
phone calls and e-mails have been warrantlessly collected under this 
statute?
  Senator Udall and I have asked this very simple question: Has there 
been an estimate--not whether there is going to be new work, whether 
they are going to be difficult assignments. We have asked whether there 
has ever been an estimate of how many U.S. phone calls have been 
warrantlessly collected under the statute. We were told in writing we 
were not going to be able to get that information.
  I think Senators ought to also ask themselves whether they know if 
any domestic phone calls and e-mails, what are wholly domestic 
communications, have been conducted under this statute. I think they 
will also find they do not know the answer to this question. I think 
Senators also would want to know whether the Government has ever 
conducted any warrantless backdoor searches for Americans' 
communications.
  So when we have the argument that has now been advanced several times 
in the course of the day that we already know so much, we do not need 
all these amendments, it is just going to delay passage of the 
legislation, I urge people--go to my Web site, in particular--to look 
at what we have learned from the intelligence community, which is the 
response to request after request, particularly requests of a 
tripartisan group of Senators asking yes or no questions: Has there 
been an estimate? For example, how many law abiding Americans have had 
their communications swept up into these FISA authorities? Our 
inability to get that answer makes it clear that when one talks about 
robust oversight under this legislation, the reality is that there is 
enormous lack of specifics with respect to how this legislation 
actually works.
  I would only say in response to the amendment offered by the 
Presiding Officer, Senator Leahy, the chairman of the Judiciary 
Committee, I think his amendment is very appropriate. Given how little 
is known, to me it is one of the fundamental pillars of good oversight 
that we do not grant open-ended kind of authorizations when we lack so 
much fundamental information about how this program works, particularly 
how it would affect law-abiding Americans.
  With that, I yield back.
  Mrs. FEINSTEIN. Mr. President, I suggest the absence of a quorum.
  The PRESIDENT pro tempore. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  The PRESIDENT pro tempore. The majority leader.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDENT pro tempore. Without objection, it is so ordered.

                          ____________________