[Congressional Record: July 8, 2008 (Senate)]
[Page S6379-S6381]
FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008
Mr. CARDIN. Mr. President, I rise today in opposition to final page
of this legislation, H.R. 6304, the Foreign Intelligence Surveillance
Act of 1978, FISA, Amendments Act of 2008, if it is not amended to
change the retroactive immunity provisions.
The President must have the necessary authority to track terrorists,
intercept their communications, and disrupt their plots. Our Nation
still faces individuals and groups that are determined to do harm to
Americans, as well as our interests throughout the world.
I have spent many hours at the National Security Agency, which is
located in Fort Meade, MD. The men and women of our intelligence
agencies are dedicated public servants who are doing a great job on
behalf of their country. They are trying to do their jobs correctly,
and comply with all applicable laws and regulations.
As a member of the Judiciary Committee, I have received classified
briefings about the advice and requests that were given to the
telecommunications companies by the U.S. Government. I have seen the
opinions of counsel on this issue. I have attended numerous hearings on
this issue.
Congress must indeed make needed changes to FISA to account for
changes in technology and rulings from the FISA Court involving purely
international communications that pass through telecommunications
routes in the United States. While we have a solemn obligation to
protect the American people, we must simultaneously uphold the
Constitution and protect our civil liberties.
After learning about executive branch abuses in the 1960s and 1970s,
Congress passed very specific laws which authorize electronic
surveillance. Congress has regularly updated these measures over the
years to provide the executive branch the tools it needs to investigate
terrorists, while preserving essential oversight mechanisms for the
courts and the Congress. FISA requires the Government to seek an order
or warrant from the FISA Court before conducting electronic
surveillance that may involve U.S. persons. The act also provides for
postsurveillance notice to the FISA Court by the Attorney General in an
emergency.
I am very concerned that the FISA law was disregarded by the
administration, and want to ensure that we put an end to this type of
abuse. We are a nation of laws and no one is above the law, including
the President and Attorney General. The President deliberately bypassed
the FISA Court for years with his warrantless wiretapping program--long
after any emergency period directly following the 9/11 terrorist
attacks--and did not ask Congress to change the FISA statute. In fact,
President Bush refused to fully brief Congress on the Terrorist
Surveillance Program, TSP, the existence of which was only exposed
through a New York Times story. After the story broke, the
administration reluctantly agreed to place this program under the
supervision of the FISA Court.
I do believe that many of the telecommunications companies cooperated
with the Government in good faith, and may be entitled to relief. But
the FISA statute of 1978 already lays out procedures for the Government
to seek a court order and present this order to the telecommunications
companies and require their assistance. The 1978 FISA statute also
provides certain immunities to telecommunications companies that
provide this type of assistance to the Government.
The President chose to ignore the FISA statute. If the President did
not want to use the FISA statute or wanted to change it, he had the
responsibility to come to Congress and ask for that change. He cannot
change the law by fiat, or by issuing a Presidential signing statement.
Congress must change the law, and the courts must interpret the law.
Congress and the courts have the power, and often the responsibility,
to disagree with the President, and these co-equal branches have the
constitutional checks to override his veto, disapprove of a request for
a warrant, or strike down an action as unconstitutional.
I will vote against retroactive immunity for the telecommunications
companies. The current bill only authorizes the district court to
review whether the companies received written requests from the U.S.
Government stating that the activity was authorized by the President
and determined to be lawful by the executive branch. The Court would
have to simply accept the executive branch's conclusion that the
warrantless wiretapping outside of the FISA statute and without FISA
Court approval was legal, which means the executive branch--not the
judiciary--gets to decide whether the law was broken. I want the courts
to be able to look at what the executive branch is doing. I want the
court to protect individual rights. Granting this type of immunity
would violate the basic separation of powers. It would also create a
dangerous precedent for future administrations and private actors to
violate the law, and then seek relief in Congress or from the President
through an after-the-fact amnesty or pardon.
There was a way to provide the telecommunications companies with
appropriate relief. Senator Feinstein's amendment would have allowed
the courts to grant relief to the telecommunications companies if they
acted reasonably under the reasonable assumption that the Government's
requests were lawful. This amendment would have preserved the
independent judgment of the judiciary, and preserved the necessary
check and balance in our system of government. Unfortunately, the
negotiators for this legislation rejected this compromise.
[[Page S6380]]
I also want to note the improvements made to title I of this
legislation, compared to current law and the Senate-passed Intelligence
Committee version. I thank the Members of the House and Senate who
worked hard on improvements to this legislation, particularly House
majority leader Steny Hoyer.
Title I is not perfect, but it is does bring the President's program
under the FISA statute and FISA Court, and provides for oversight by
Congress and the courts.
Title I contains a sunset of December 2012 for this legislation. I
feel strongly that the next administration should be required to come
back and justify these new authorities to Congress. As a member of the
Judiciary Committee, I believe the only meaningful cooperation we
received from the executive branch on this issue occurred when they
were facing a sunset and a potential lapsing of their authorities and
powers under the statute. Congress will then have time to evaluate how
the new law has been implemented, and debate whether further changes
are needed.
This legislation also requires the inspector general to review
compliance with: (1) Targeting and minimization procedures; (2) reverse
targeting guidelines; (3) guidelines for dissemination of U.S. person
identities; and (4) guidelines for acquisition of targets who turned
out to be in the United States. The inspector general review will be
provided to the Attorney General, Director of National Intelligence,
and the Judiciary and Intelligence Committees of the Senate and House.
The public would also be given an unclassified version of these
reviews, reports, and recommendations. These reviews will help Congress
evaluate the new authorities under the FISA statute, and how the
executive branch and the FISA Court are using these new authorities,
before the legislation sunsets. Congress can then decide how best to
reauthorize this program.
The bill strengthens the exclusivity language of FISA and the
criminal wiretap laws. Congress is making very clear that these
statutes are the exclusive means by which electronic surveillance can
be legally conducted by the U.S. Government. The bill also removes a
troubling attempt to unduly broaden the definition of ``electronic
surveillance.''
Supreme Court Justice Anthony Kennedy, in his opinion in the recent
Boumediene case on the Guantanamo detainees, stated: ``The laws and
Constitution are designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the law.''
I believe title I should have been strengthened by more effective
court review. However, absent the retroactive immunity provisions in
title II, I would support the compromise legislation, because it is
important for the intelligence community to have the tools it needs.
However, I regret that if the retroactive immunity provision remains
unchanged in the final legislation, I will vote against the
legislation, because of the fundamental problem with that provision.
In conclusion Mr. President, shortly we will be considering the
amendments to the Foreign Intelligence Surveillance Act, the FISA act.
I must tell you, I think it is important that our intelligence
community have the tools they need to obtain information from foreign
sources. That is what this legislation is about. We need to modernize
the FISA law. Communication methods have changed, and we need to give
the tools to the intelligence community to meet their modern needs of
communication.
I serve on the Judiciary Committee. I was privy to many hearings we
had, some of which were classified, to find out the information as to
what we could do. We brought forward legislation that I think was the
right legislation that would have given the necessary tools to the
intelligence agencies to get information from foreign sources without
being burdened by unnecessary court approval and protect the civil
liberties of the people of this Nation. Unfortunately, that compromise
was rejected.
We are in this situation today where we have had major disagreements
on how to amend the FISA statutes because of the action of the Bush
administration. It is absolutely clear to me that the President went
beyond the legal or constitutional authority that he has in doing
wiretaps without court approval. I want to make it clear, the men and
women who work at our intelligence agencies, many of whom are in
Maryland at NSA, are doing a great job. They are trying to do
everything that is correct to protect our Nation and do it in the
correct manner. It was the Bush administration that went beyond the
law. It was the Bush administration that went beyond the Constitution.
It is important for us to balance the needs of our community to get
information to protect us but also protect the civil liberties with the
proper checks and balances in our system.
That brings me to H.R. 6304, the legislation that will shortly be
before us.
Title I is a much better bill than the bill that left the Senate
earlier this year. I think this bill has been worked on in a very
constructive environment. I compliment not only Senator Rockefeller,
who is on the Senate floor, for his hard work on this legislation, I
also compliment my colleague from Maryland, Congressman Hoyer, the
majority leader of the House of Representatives, for the work he did in
bringing us together on a bill that I think is a better bill than the
bill that left the Senate.
This bill provides for a sunset in 2012. That is important because I
find we do not get the attention from the administration on this issue
unless they are faced with a deadline from Congress. This will force
the next administration to take a look at this legislation and come
back to the Congress with modifications or justifications for the
continuation of the legislation. I think that is an important
improvement.
The legislation provides for the inspector general to review the
targeting and minimization provisions. The targeting is when a U.S.
citizen, perhaps indirectly, is targeted. And the minimization
procedures deal with when the intelligence community gets information
about an American without court approval, to minimize the use of that
information or to seek court approval. Both of those provisions will be
reviewed by the inspector general and reports issued back to the
Congress with unclassified versions available for public inspection.
The FISA Court is strengthened through the compromise that has been
reached. Let me make it clear, I would have liked to have seen the
Judiciary Committee's bill passed and enacted into law. I think we can
still improve title I. But I believe in the legislative process, and I
think there has been a fair compromise reached on title I.
If title I were before us as an individual action, I would support
the compromise because I think it is time to move forward. But there is
title II, and title II is the retroactive immunity. It gives
retroactive immunity to our telecommunications companies, our telephone
companies. They are entitled to some relief. They acted under the
urgency of the attacks on our country on September 11 and with the
request of the President of the United States. They are entitled for
some relief. But this provision goes way too far.
It authorizes the executive branch to determine the legality of their
actions. In other words, the agency, the President who asked for the
information, will determine whether the telephone companies acted
properly. It should be the courts. This takes too much away from the
judicial branch. It, in my view, compromises the checks and balances
that are so important in our constitutional system.
We didn't have to be here. I thought Senator Feinstein offered a fair
compromise, and I am surprised it was not taken by the negotiators.
Senator Feinstein said: Why don't we let the FISA Court make a decision
as to whether the telephone companies acted legally? That is a
compromise I could have supported. I think it would have been a fair
compromise. Unfortunately, that was rejected. Title II is a fundamental
flaw in the separation of powers, in the proper protection of civil
liberties of the people of this Nation, and a dangerous precedent for
future action by this Congress.
I will vote to remove or modify title II by the amendments that will
be presented later today. I prefer to modify it. As I suggested, I
think we have compromises that can work, but I will vote
[[Page S6381]]
to remove it if there are no other options presented. If we do not
modify title II, reluctantly I will not be able to support the
compromise legislation that has been presented.
I urge my colleagues to try to get this done right. This is an
important bill. Unfortunately, it is fatally flawed with the
legislation that is before us.
I yield the floor.
____________________
[Congressional Record: July 8, 2008 (Senate)]
[Page S6381-S6386]
FISA AMENDMENTS ACT OF 2008
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of H.R. 6304, which the clerk will
report.
The legislative clerk read as follows:
A bill (H.R. 6304) to amend the Foreign Intelligence
Surveillance Act of 1978 to establish a procedure for
authorizing certain acquisitions of foreign intelligence, and
for other purposes.
The ACTING PRESIDENT pro tempore. Under the previous order, the
motion to proceed is agreed to and the motion to reconsider is made and
laid on the table.
The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the time I
consume be allocated to the Dodd amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. FEINGOLD. Mr. President, I strongly support Senator Dodd's
amendment to strike the immunity provision from this bill, and I
especially thank the Senator from Connecticut for his leadership on
this issue. Both earlier this year, when the Senate first considered
FISA legislation, and again this time around, he has demonstrated
tremendous resolve on this issue, and I have been proud to work with
him.
Some have tried to suggest that the bill before us will leave it up
to the courts to decide whether to give retroactive immunity to
companies that allegedly participated in the President's illegal
wiretapping program. But make no mistake, this bill will result in
immunity being granted--it will--because it sets up a rigged process
with only one possible outcome. Under the terms of this bill, a Federal
district court would evaluate whether there is substantial evidence
that a company received . . .
a written request or directive from the Attorney General or
the head of an element of the intelligence community
indicating that the activity was authorized by the President
and determined to be lawful.
We already know, from the report of the Senate Intelligence Committee
that was issued last fall, that the companies received exactly such a
request or directive. This is already public information. So under the
terms of this proposal, the court's decision would actually be
predetermined.
As a practical matter, that means that regardless of how much
information the court is permitted to review, what standard of review
is employed, how open the proceedings are, and what role the plaintiffs
are permitted to play, it won't matter. The court will essentially be
required to grant immunity under this bill.
Now, our proponents will argue that the plaintiffs in the lawsuits
against the companies can participate in briefing to the court, and
this is true. But they are not allowed any access to any classified
information. Talk about fighting with both hands tied behind your back.
The administration has restricted information about this illegal
wiretapping program so much that roughly 70 Members of this Chamber
don't even have access to the basic facts about what happened. Do you
believe that? So let's not pretend that the plaintiffs will be able to
participate in any meaningful way in these proceedings in which
Congress has made sure their claims will be dismissed.
This result is extremely disappointing. It is entirely unnecessary
and unjustified, and it will profoundly undermine the rule of law in
this country. I cannot comprehend why Congress would take this action
in the waning months of an administration that has consistently shown
contempt for the rule of law--perhaps most notably in the illegal
warrantless wiretapping program it set up in secret.
We hear people argue that the telecom companies should not be
penalized for allegedly taking part in this illegal program. What you
don't hear, though, is that current law already provides immunity from
lawsuits for companies that cooperate with the Government's request for
assistance, as long as they receive either a court order or a
certification from the Attorney General that no court order is needed
and the request meets all statutory requirements. But if requests are
not properly documented, the Foreign Intelligence Surveillance Act
instructs the telephone company to refuse the Government's request, and
it subjects them to liability if they instead decide to cooperate.
When Congress passed FISA three decades ago, in the wake of the
extensive, well-documented wiretapping abuses of the 1960s and 1970s,
it decided that in the future, telephone companies should not simply
assume that any Government request for assistance to conduct electronic
surveillance was appropriate. It was clear some checks needed to be in
place to prevent future abuses of this incredibly intrusive power; that
is, the power to listen in on people's personal conversations.
At the same time, however, Congress did not want to saddle telephone
companies with the responsibility of determining whether the
Government's request for assistance was legitimate. So Congress devised
a good system. It devised a system that would take the guesswork out of
it completely. Under that system, which is still in place today, the
company's legal obligations and liability depend entirely on whether
the Government has presented the company with a court order or a
certification stating that certain basic requirements have been met. If
the proper documentation is submitted, the company must cooperate with
the request and it is, in fact, immune from liability. If the proper
documentation, however, has not been submitted, the company must refuse
the Government's request or be subject to possible liability in the
courts.
This framework, which has been in place for 30 years, protects
companies that comply with legitimate Government requests while also
protecting the privacy of Americans' communications from illegitimate
snooping. Granting companies that allegedly cooperated with an illegal
program this new form of retroactive immunity in this bill undermines
the law that has been on the books for decades--a law that was designed
to prevent exactly the type of abuse that allegedly occurred here.
Even worse, granting retroactive immunity under these circumstances
will undermine any new laws we pass regarding Government surveillance.
If we want companies to obey the law in the future, doesn't it send a
terrible message, doesn't it set a terrible precedent, to give them a
``get out of jail free'' card for allegedly ignoring the law in the
past?
Last week, a key court decision on FISA undercut one of the most
popular arguments in support of immunity; that is, that we need to let
the companies off the hook because the State secrets privilege prevents
them from defending themselves in court. A Federal Court has now held
that the State secrets privilege does not apply to claims brought under
FISA. Rather, more specific evidentiary rules in FISA govern in
situations such as that. Shouldn't we at least let these cases proceed
to see how they play out, rather than trying to solve a problem that
may not even exist?
That is not all. This immunity provision doesn't just allow telephone
companies off the hook; it will also make it that much harder to get at
the core issue I have been raising since December 2005, which is that
the President broke the law and should be held accountable. When these
lawsuits are dismissed, we will be that much further away from an
independent judicial review of this illegal program.
On top of all this, we are considering granting immunity when roughly
70 Members of the Senate still have not been briefed on the President's
wiretapping program. The vast majority of this body still does not even
know what we are being asked to grant immunity for. Frankly, I have a
hard
[[Page S6382]]
time understanding how any Senator can vote against this amendment
without this information.
I urge my colleagues to support the amendment to strike the immunity
provision from the bill.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, would the distinguished Senator from
Wisconsin yield for a question?
Mr. FEINGOLD. I will.
Mr. SPECTER. As the Senator from Wisconsin doubtless knows, there was
a very extensive analysis of these issues by Chief Judge Walker of the
San Francisco District Court handed down last Wednesday, and I think it
was no coincidence that the decision preceded just a few days--after
everybody knew, including Chief Judge Walker--of the Senate taking up
this question.
In that opinion, Chief Judge Walker finds the Terrorist Surveillance
Program unconstitutional. He says, flatly, that the language of the
Foreign Intelligence Surveillance Act of 1978 means what it says on the
exclusive remedy for warrants, and that the President exceeded his
article II powers as Commander in Chief.
As we all know, the Detroit District Court came to the same
conclusion, was reversed by the Sixth Circuit in a 2-to-1 opinion on
standing, and then the Supreme Court of the United States handily
ducked the question by the noncert. That is the principal
constitutional confrontation of our era, on article I powers by
Congress and article II powers of the President as Commander in Chief.
They denied cert. And on the standing issue, as disclosed by the Senate
opinion in the Sixth Circuit, the Supreme Court could easily have taken
the case to resolve this big issue.
But now Judge Walker has decided, and it is very significant, because
Judge Walker has these more than 40 cases pending on the effort to
grant retroactive immunity. The case he decided it on is the Oregon
case where State secrets are involved, with the inadvertent disclosure
by the Federal agents.
It is hard for me to see how you have a State secret which is no
longer secret. And you have a document, just electronic surveillance,
which was disclosed, so it is no longer a secret. That remains to be
decided under the opinion of Chief Judge Walker, but he says there is a
``rich lode'' of material on the standing issue.
These questions involve extraordinarily complex matters. The Senator
from Wisconsin knows that. He has been deeply involved in it. And the
distinguished chairman knows that, because he has been deeply involved
in these matters. My question to the Senator from Wisconsin is twofold:
One, what do you see as the immediate ramifications of Chief Judge
Walker's opinion handed down a few days before we are to decide it?
And a related question: What do you think of the likelihood that
Members of the Senate have had or could have an adequate opportunity to
review that 59-page opinion with all of its detailed ramifications?
Mr. FEINGOLD. Mr. President, I thank the Senator for asking the
question. Yes, I referred to this decision in my brief comments about
this amendment. I think it is obviously a significant decision. As I
indicated, it deals with the State secrets issue. It says that FISA is
in fact the exclusive means and that the evidentiary rules regarding
FISA should control, rather than State secrets. That is an important
finding. But even more important is what the Senator from Pennsylvania
is alluding to, which is the broader issue that the judge didn't
decide, but clearly he indicated where he would head on the question of
whether the President's TSP program was illegal--and I have long
believed that it was illegal. In fact, the Senator and I were the first
Members to comment on the revelation of this program in December of
2005 on the floor of the Senate.
I have examined it closely myself, as a member of the Intelligence
Committee and the Judiciary Committee, and I feel even more strongly
today than I did then that this program was illegal and there needs to
be accountability for that illegality. That accountability can come in
part from litigation of the kind that involved this district court
decision, and it can come from other cases that are pending. But my
concern, of course, is that if we jam this bill through, it may have an
impact on the ability to pursue that underlying legal issue because of
the effective granting of immunity to telephone companies. So this
decision has significance, but I can't tell you that I know all the
ramifications.
Obviously, Members of the Senate, to answer your question, should
review the opinion and have a chance to find out more about the
opinion. But there are 70 Members of the Senate who haven't even had
the benefit of what you and I have had, which is the briefing on the
actual TSP and what happened from 2001 to 2007 with regard to
wiretapping.
I thank the Senator for making this important point about Senators
being ready to grant this immunity without reviewing the litigation.
Mr. SPECTER. Mr. President, if the Senator from Wisconsin will yield
for just one more question? And that is, in the context, is the
Senator--I asked him to yield for one more question, and I will use a
microphone so perhaps he can hear me, perhaps some people on C-SPAN2
will hear me, perhaps some Senators will hear me, because we need to be
heard on this subject because of its complexity.
The question relates to what the Senator from Wisconsin has said. He
puts it at some 70 Members of the Senate have not been briefed on the
program. I have heard from House leadership that most of the Members of
the House have not been briefed on the program. There has been no
official determination. The language is picked up from the allegations
of the complaint as to what is alleged.
The question is, How can the Congress intelligently decide--maybe
that is too high a standard. But how can the Congress, especially the
world's greatest deliberative body, the U.S. Senate--how can the
decision be made on electronic surveillance, granting retroactive
immunity, when we don't know what we are granting retroactive immunity
to?
The second part is, How can we fly in the face of the decision by the
judge who is ruling on these cases--we are sending them all to him--
when he, speaking for the court: The law of the case is that the
terrorist surveillance program is unconstitutional, that it exceeds the
authority.
The Foreign Intelligence Surveillance Act also covers the pen
register and related items, so--not specifying what is involved here--
whatever is involved, sending it to the judge who has already said it
is unconstitutional. How can we deal in an intelligent manner given
those two critical factors?
Mr. FEINGOLD. Mr. President, I again thank the Senator from
Pennsylvania for his comments and question. Really, the only
appropriate answer is to say ``amen'' to everything he just said. Think
about this: To vote on anything when 70 Members of the Senate haven't
been briefed on it seems unbelievable, and then you add to it that it
has to do with the most critical issue of our time: How can we best
protect our country from those who attacked us while also observing the
rule of law? That would be bad enough. But then you add to it, as the
Senator from Pennsylvania has indicated, that this goes to the very
core issue of the structure of the Constitution. Is it really true, as
the administration puts forward in defense of the TSP program, that
article II of the Constitution somehow allows the executive and
Commander in Chief power to override an absolutely clear, exclusive
authority adopted by Congress pursuant to Justice Jackson's third tier
of the test set out in his Youngstown opinion?
All of these levels are implicated by this. The Senator could not be
more correct. This is an amazingly inappropriate use of legislative
interference, pushed by this administration, and Senators should take a
very hard look at whether they want to be associated with such an
attack on the rule of law in this country.
I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time? The Senator from
West Virginia.
Mr. ROCKEFELLER. Mr. President, I am opposing the amendment. So I
would be taking time from Senator Bond. I ask for approximately 20
minutes.
The ACTING PRESIDENT pro tempore. Duly noted.
[[Page S6383]]
Mr. ROCKEFELLER. Mr. President, my colleagues have submitted two
amendments seeking to accomplish somewhat the same goal before, and in
a sense now down to one. Senators Dodd and Feingold have an amendment
to strike title II of the FISA bill. It is very plain and simple, and
they are very clear about that. The amendments have the same effect--
eliminating the title that provides a mechanism for a U.S. district
court to decide whether pending suits against telecommunications
companies should be dismissed.
Two other amendments with respect to title II, to be offered by
Senator Specter and Senator Bingaman, will follow. While I address
those amendments in separate statements, I would like to say now with
respect to the amendments that I oppose each of them and I urge that
the Senate pass H.R. 6304 without amendment so that the delicate
compromise which serves as best it can to protect both national
security and privacy and civil liberties can, in fact, become law.
Six and a half years ago, instead of consulting with Congress about
changes that might be needed to FISA, the President made the very
misguided decision to create a secret surveillance program that
circumvented the judicial review process and authorization required by
FISA and was kept from the full congressional oversight committees.
That is calling it running around the end altogether. We are right to
be angry about the President's actions, but our responsibility today is
to look forward. That is what this bill is about, to make sure we have
adequately dealt with the numerous issues that have arisen from the
President's very poor decision, bad decision.
The bill in front of us today accomplishes three important goals with
respect to the President's warrantless program.
First, the bill establishes a sure and realistic method of learning
the truth about the President's program--I repeat, learning the truth
about the President's program. It requires the relevant inspectors
general--that is a term of art. What I mean by that is the inspectors
general of the CIA, DOD, NSA, et cetera, people who oversee and know
what is in this program altogether--to submit an unclassified report
about the program to the Congress. This report will ensure that both
Congress and, by the way, therefore, obviously, the public will have as
complete a picture of the President's warrantless surveillance program
as possible or as messy as it may be for them to ingest.
Second, the bill tightens the exclusivity of the FISA law, making it
improbable for any future President to argue that acting outside of
FISA is lawful. That is huge. That means the President can never again,
ever use what he has used--his all-purpose powers--and say he can just
walk right around the end of FISA. He has to have a statutory
authority, it has to come from us, and he cannot bypass FISA as he did
altogether.
Third, the bill addresses the problems the President's decision has
caused for the telecommunications companies that were told their
cooperation was both legal and necessary to prevent another terrorist
attack. They were not told a lot, but they were certainly told that.
The bill does not provide those companies with a free pass. It requires
meaningful district court review of whether statutory standards for
protection from liability have been met for the companies having relied
on the Government's written representations of legality.
You remember there was a period when we were using the FISA Court to
make these kinds of judgments, and we bent to the better wisdom of the
House with respect to the district court, which is a more public court.
So they have that responsibility.
All of these pieces fit together, and not just because they are part
of a larger compromise on this bill. Private companies that cooperated
with the Government in good faith, as the facts before the
congressional intelligence committees demonstrate they did, should not
be held accountable for the President's bad policy decisions. But if
the court ultimately dismisses the litigation against those companies,
it is important that there be a mechanism for public disclosure about
the President's program, and it is precisely, therefore, in this bill
that the inspectors general report, which has to be provided to us
within a year, provide that public accountability.
Likewise, we can only put past actions behind us if we can be
reassured that this will not happen again, and therefore the strength
in the exclusivity language in the FISA bill addresses that concern.
That it does.
Together, the three components of the bill provide accountability for
the mistakes of the past as well as a way to move forward.
Although title II in the bill before us today differs in important
ways from the title II we passed out of the Senate this past February,
the two bills address the same underlying problems faced by the
telecommunications companies.
Because the majority of the information in the cases is classified,
there has been no substantial progress in the cases against the
telecommunications companies--several of them have been going on for
years. Classified information, they can't have it; state secrets, can't
have it. The Government has not even allowed the telecommunications
companies in the many pending lawsuits to disclose publicly whether
they assisted the Government. These companies, therefore, have not been
permitted to invoke the defense to which they are entitled. But sued
they are. The companies cannot reveal, for example, whether they did
not participate in the program. That would be a false accusation
against some company, but they cannot say that they didn't participate
or that they only participated pursuant to a court order--they can't
talk about that--or participated in reliance on written Government
representation of legality--cannot talk about that. The bill before us
today allows these defenses to be presented to the district court, the
public court--not the FISA Court, which is kind of a secret court, but
to the district court, which is not a secret court. It is a public
court.
The Attorney General is authorized to certify to the court that
particular statutory requirements have been met without requiring
public acknowledgment of whether particular providers assisted the
Government.
The bill then requires the district court to determine whether the
Attorney General's certification is supported by ``substantial
evidence.'' That is a higher, tougher standard than the ``abuse of
discretion'' test we had in the Senate bill. In making this assessment,
the district court is specifically authorized to review the underlying
documents on which the Attorney General's certification is based. The
court can, therefore, ``review any court orders, statutory directives
or certifications authorizing providers' cooperation.''
Importantly, the court may also review the highly classified
documents provided to the companies indicating that the President had
authorized the program and that it had been determined to be lawful.
Explicitly allowing the court to base its decision on whether companies
are entitled to liability protection on relevant underlying documents
is an important improvement to the bill, and I am happy it is in it.
Because such documents would be classified, any review of those
documents in the litigation prior to this bill would have been limited
to a court assessment of whether the documents were privileged. The
court could not have relied on what the Government's communications to
the providers actually said in making its assessment about whether the
cases should be dismissed. The court could not have relied on what
those Government communications said--it is different.
This bill before the Senate, therefore, gives the district court both
an important role in determining whether statutory requirements for
liability protection have been met and the tools to make that
assessment.
The FISA bill also provides a more explicit role for the parties to
the litigation--this is new and better--to ensure that they will have
their day in court open--sort of, and so to speak--but they will have
their day in court.
But they will have their day in court. They are provided the
opportunity to brief the legal and constitutional issues before the
court and may submit documents to the court for review. Whatever it is
they want to submit, they can submit.
[[Page S6384]]
A few of my colleagues have argued that including any sort of
mechanism that would allow the district court to resolve these cases
will prevent the public from hearing the details about the President's
program. But even if the litigation were to continue indefinitely, it
would never tell the full story.
Lawsuits have now been pending for, as I indicated, over 2 years. The
fight during all that time, and the likely fight in the future, has
been about whether the plaintiffs will have access to any classified
information about the program. The plaintiffs in the litigation, they
have never been and will never be provided with wide-ranging
information about the President's classified program that would enable
them to put together a comprehensive picture of what happened.
This capability is reserved for those who have complete access to
information about the program. And that again is why I come back to the
importance of the inspectors general aspect of this oversight. You can
say: inspectors general, them and their reports. Well, inspectors
general can take apart their agencies, and they are sort of in there to
do that.
That is why we have asked the inspectors general of these relevant
intelligence agencies, including the DOD, who do, in fact, have
complete access to information about the program, to conduct a
comprehensive review of that same program, the whole thing.
The FISA bill requires a report of the review be submitted to the
Congress in a year and requires that the report, apart from any
classified annex, be submitted in an unclassified form that can be made
available to the public.
That is not a dodge, that is simply a fact. You cannot release
classified information to the public. So this is an appropriate way to
obtain answers to questions about the President's program and ensure
the public's accountability.
Critics have also claimed that granting immunity will suggest to the
telecommunications companies that that compliance with the law is
optional or that Congress believes that the President's program was
legal. An examination of the bill that is before us in the Senate would
make it impossible for anyone to come to either conclusion.
The administration made very strained arguments to circumvent
existing laws in carrying out the President's warrantless surveillance
program: a claim, for example, that the 2001 authorization for use of
military force was a statutory authorization for electronic
surveillance outside FISA, even though that authorization did not
mention electronic surveillance.
What role did we expect telecommunications companies to play in those
assessments of legality? To answer that question, we must consider the
legal regime under which these companies were operating. Numerous
statutes over the years have stressed the importance of cooperation
between the telephone companies and the Federal Government,
particularly in times of emergency. This has a fairly long history.
FISA itself allows the Attorney General to authorize electronic
surveillance for short periods of time in emergencies prior to the
submission of an application for an order. The law, as it existed in
2001 and as it exists today, grants immunity to telecommunications
companies, based solely on a certification from the Attorney General
that no warrant or court order is required by law, that the statutory
requirements have been met, and that the specified assistance is
required.
Given the need for speedy cooperation in times of emergency, Congress
has never asked companies to question the Government's legal analysis
that their cooperation is legal and necessary. Thus, although the
telecommunications companies have always been and will always be
expected to comply with the law, Congress has told them, prior to 2001,
that they were entitled to rely on representations from the highest
levels of Government as to what conduct was legal.
That is the way it worked. In the case of the President's
surveillance program, representations of legality were made to
providers from the very highest levels of Government. The FISA bill
before the Senate, therefore, eliminates any possible loopholes in
existing law, ensuring that neither the telecommunications companies
nor any future Presidents have any doubt about what is required to
comply with the law.
It strengthens the exclusivity language of FISA--I have mentioned
that, I do again--making it absolutely clear that the Congress does not
intend general statutes to be an exception to FISA's exclusivity
requirements. In other words, no future President can therefore claim
that an authorization for use of military force allows the Government
to circumvent FISA.
Even more importantly for the telecommunications companies, the bill
before us makes it a criminal offense to conduct electronic
surveillance outside of specifically listed statutes. Unlike existing
criminal and civil penalties which exempt electronic surveillance that
is authorized by statute, the bill puts telecommunications companies on
notice that any electronic surveillance outside FISA or specifically
listed criminal intercept provisions, in the future, is a criminal
offense that is subject to civil penalties for claims brought by
individuals who are free to do so.
This clear language provides no room for any future President or
Attorney General to argue that criminal and civil penalties should not
attach for any circumvention of FISA.
Now, the improvements to this bill address many of the concerns
raised with the possibility that the court might dismiss the lawsuits
against the telecommunications companies. The bill before us makes
clear that Congress expects compliance with the laws, and it assures
that public accountability is on the Government, where it belongs, and
not on the companies that acted in good faith in cooperating with the
Government.
It is important to say that whatever the inspectors general come up
with in their analysis of this, and believe me, they will be under the
gun to do it right, that they have to report that, both unclassified
and classified, to the Intelligence Committees and the Judiciary
Committees in both Houses. So the oversight factor again comes in.
I think it is time to pass this bill and move forward. I urge my
colleagues to oppose the Dodd-Feingold amendment.
Mr. SPECTER. Mr. President, would the Senator yield for a question;
two questions, very briefly?
Mr. ROCKEFELLER. Of course.
Mr. SPECTER. The first question relates to the fact, as represented,
that some 70 Members of the Senate will not have been briefed on the
program.
I have been advised by the leadership in the House that most of the
Members of the House have not been briefed on the program. The
chairman, in detail, went over what the telephone companies cannot do
because they cannot make any public disclosures.
And my question is: How can we intelligently grant retroactive
immunity on a program that most Members of Congress do not know what we
are granting retroactive immunity on?
Mr. ROCKEFELLER. First of all, I should point out to the
distinguished Senator from Pennsylvania that there was a period when
members of the Intelligence Committee, members of the Judiciary
Committee, were not even able to go to the Executive Office Building to
look at any of the orders that came down, President to Attorney General
to National Security Advisor, then a letter to the companies. We were
not allowed to do that.
The chairman and the vice chairman were allowed to do that. Nobody
else was. That changed. And it changed because this Senator and a
number of others put tremendous pressure, because it was such a
ridiculous situation that I could not even talk to my committee members
about it. And so they expanded that to include not only committee
members but also some staff from both the Intelligence and
Judiciary Committees.
So I would say to the good Senator that intelligence is difficult,
and it is difficult to legislate it on the floor of the Senate. Let me
phrase it this way. There is a common view held by many that members of
the Intelligence Committee and then, to some extent, the Judiciary
Committee, in fact, have the intelligence, they control the
intelligence, it is all theirs.
I wish to debunk that right now. We control no intelligence. It is
entirely controlled, meted out or not, by the executive branch. This
executive branch
[[Page S6385]]
has been extremely cautious, stingy, I would say undemocratic, in doing
this.
The good Senator from Missouri who is coming in now, the vice
chairman of the Intelligence Committee and I have fought like bears to
expand the number of people who can have access to these programs. But
I cannot argue that the Senator--his point is worthy of thought.
I think then one has to consider, are the people on the Judiciary
Committee and the people on the Intelligence Committee representative
of good faith, people of reasonable intellect, people who know their
business, and people who exercise fair judgment? I have been handed a
note to say something I have already said, that the public reporting
accompanying the Senate Intelligence Committee bill, detailed, with a
great deal of specificity, what the companies received from the Federal
Government.
That still does not allow me to argue the Senator's point. It is a
peculiar and difficult nature of legislating intelligence legislation
on the floor of the Senate. But it is not weakened by so doing because
of what I have indicated, because of what the inspectors general,
granted, not in time for this, will come up with, and, secondly, what I
would call the very high standard of people who serve on both the
Republican and the Democratic side of the Senate and House Judiciary
Committee and Intelligence Committee.
Mr. SPECTER. Mr. President, my second question is, very briefly----
Mr. BOND. Mr. President, I would like to reclaim my time.
The ACTING PRESIDENT pro tempore. There are 34 minutes remaining in
opposition. The Senator from West Virginia has the floor.
Mr. SPECTER. Mr. President, very briefly on the second question, and
I will be very brief--the chairman has gone over the ineffectiveness of
Congress in dealing with the statutory requirement for notice to the
Intelligence Committees which wasn't followed. We have gone over the
ineffectiveness of the courts in dealing with enforcing the Foreign
Intelligence Surveillance Act, where the Supreme Court, as I detailed
earlier, had ducked the question. So given the ineffectiveness of
Congress--and I know, I chaired the Intelligence Committee in the 104th
Congress and could find out hardly anything; I found the Director of
the CIA knew so little about what was going on--and then the signing
statements, the only recourse we have now is to the courts and to Chief
Judge Walker.
So my question to you is, if we are to maintain separation of powers
and determination of constitutionality, article I versus article II
powers, how in the world can we act to divest Chief Judge Walker of his
jurisdiction in the case, especially in light of the opinion he handed
down last Wednesday?
Mr. ROCKEFELLER. I respond to the Senator from Pennsylvania by saying
he indicated that Judge Walker said this was not a constitutional
effort between 2001 and 2007, and it was not constitutional. But when
the Senator offers his own amendment this afternoon, I will make the
point I make now, that even if it is determined that the program is
unconstitutional--and that, for reasons I will explain after lunch when
we do the amendment, will not be possible--the immunity fact is not
compromised. It is not changed. You are talking about the
constitutionality of the White House's action. This bill talks about
title I and then title II and a couple of other titles which referred
to protecting basic rights, reverse targeting, all kinds of things such
as that, which, in fact, came from Senator Feingold, and it is not
involved in the constitutionality. It is not involved in that. Even if
the judge ruled it unconstitutional, it would make no difference
whatsoever on title II.
Mr. SPECTER. I respect Senator Bond's time, and I will pursue this
with the chairman when my amendment is called up later today.
I thank my colleagues.
Mrs. BOXER. I have a parliamentary inquiry.
The ACTING PRESIDENT pro tempore. The Senator will state it.
Mrs. BOXER. Senator Dodd has yielded me 10 minutes of his time to
speak in favor of his amendment to strike the immunity clause. I am
wondering how I may get recognition here and how much time does Senator
Dodd have left in this debate?
The ACTING PRESIDENT pro tempore. There is 43 minutes remaining for
the Senator from Connecticut.
Mrs. BOXER. I wonder if Senator Bond would allow me to take 10
minutes of the 43 minutes Senator Dodd has remaining?
Mr. BOND. Mr. President, I am happy to accommodate the Senator from
California. With respect to the comments by the Senator from
Pennsylvania, I had asked that those be reserved for the arguments in
favor of the amendment. How much time remains on the chairman and my
side of the aisle?
The ACTING PRESIDENT pro tempore. There is 30 minutes.
Mr. BOND. We will reserve that and accommodate the Senator from
California. I thank the Chair and my colleagues.
The ACTING PRESIDENT pro tempore. Without objection, the Senator from
California is recognized for 10 minutes.
Mrs. BOXER. Mr. President, I rise today to speak in strong support of
the amendment offered by Senator Dodd to strike the provision from the
bill providing immunity to the telecom companies who assisted President
Bush with his warrantless surveillance program; in essence, breaking
the law they were supposed to live by. I also note that not every
telecom company went along with this. There was at least one, Qwest,
that refused to go along because they said it would break the law if
they did so. I thank Senators Dodd, Feingold, Leahy, and others for
their leadership. I know these are difficult debates to have because
people could say: My goodness, they are offering an amendment to the
intelligence bill and, ipso facto, that must be a bad thing because
they are slowing things down.
I have to say, when you are standing up to fight for liberty and
justice and the truth, you should never be afraid to slow something
down. As a matter of fact, it is our job to do so. I do thank my
colleagues for their leadership.
I am proud to be a cosponsor of this amendment. In my support of this
amendment to strike the immunity to the telecom companies who went
along with the President's secret and, I believe, illegal program, I
wish to say I am not seeking punishment for them. As a matter of fact,
I have stated a long time ago that I support indemnification for the
telecom companies. I believe Senator Whitehouse took the lead on that.
Senator Specter, at one point, I think, was involved in that and
others. I thank them for their leadership on that issue.
I understand the predicament of a company that is facing the White
House and the White House is saying: You need to spy on your customers
because we are asking you to do it for the safety of the people. I
understand their predicament. But I do believe, at this point in time,
to give retroactive immunity kind of makes a mockery of the fact that
we are supposed to be a government of laws, not people. We are
a government of laws. Do we then come back and say: By the way, there
are three laws over here we don't like so we are going to say to the
people who broke them, it is OK, because we have looked at it and we
think it is OK? This is America. We are a country of laws. So this
issue is so important. I can't overstate how deeply I feel about it.
We cannot place the interests of the companies and, frankly, of this
administration, that doesn't want the truth to come out, ahead of the
constitutional rights of our citizens who seek justice in our courts.
This administration is so desperate to have this immunity because they
have no interest in the American people finding out the truth.
In another subject area, I had a press conference today with a
wonderful man who stood up and quit the Environmental Protection Agency
because they were thwarting him every step of the way as he tried to
tell the truth about the real dangers, as a matter of fact, the
endangerment posed by global warming. He sent the White House an e-
mail, and it was entitled ``Endangerment Finding.'' The White House
called and said: Take it back. We don't want to open it. And he said:
It is too late. So that e-mail is floating around in cyberspace because
the
[[Page S6386]]
White House knows, if they open it, it becomes public domain. So
secrecy is what this administration lives by.
This is a blatant example of where they want to keep secret an
illegal program. I don't think we should be complicit. I don't think we
should enable them to avoid the constitutional scrutiny of our Federal
courts. We can't sacrifice--we can't--the truth for convenient
expediency. It is not American. We have a system of government that is
built not only on our Constitution but on the notion of checks and
balances. The Federal courts are doing their job by checking this
administration's broad exercise of Executive power. That is why I will
be supporting other amendments that will be coming up that deal with
this matter.
Last week, Chief Judge Walker, of the Northern District of
California, issued an opinion rejecting this administration's claim to
have ``inherent authority'' to eavesdrop on Americans outside of
statutory law. What does this Senate want to do? A lot of the leaders
you hear speaking on this want to make it possible to give
retroactively to this administration the inherent authority to
eavesdrop on Americans outside the law. In the future, we are fixing
it. Good, I am glad. I am happy. But you can't then say, but we are
going to look back and change the law. It is not right.
Listen to what Judge Walker wrote:
Congress appears clearly to have intended to establish the
exclusive means for foreign intelligence activities to be
conducted. Whatever power the executive might otherwise have
had in this regard, FISA limits the power of the executive
branch to conduct such activities and it limits the executive
branch's authority to assert the State secrets privilege in
response to challenges to the legality of its foreign
intelligence surveillance activities.
So we, Congress, limited the power of the executive. We said: You
can't assert the state secrets privilege in response to challenges to
the legality of its foreign intelligence activities. And here we are
rolling over with bravado to say to this administration--and by the
way, I would feel the same way whoever was the President, this
administration or any administration--oh, you are the absolute ruler,
the King. You can do whatever you want. You can roll over. You can do
all of that.
We need to protect this country from terrorists. We must. I voted to
go to war against bin Laden, and I will not rest until he is gone and
we break the back of al-Qaida. Unfortunately, that has gone awry. I
will be very willing to have our Government listen in on conversations
of the bad actors out there, but I don't want good people being spied
on. That was the whole reason FISA came into being in the first place.
People seem to forget the original FISA was to protect the people from
being spied on, ordinary people. Suddenly, it has been turned on its
head. I believe the current process works. Our system of government
works. The Federal courts are exercising their constitutional duty to
review Executive power.
So why in this bill are we seeking to stop that process? Why are we
attempting to tie the capable hands of the Federal courts and deny our
citizens their day in court? Covering up the truth is not the way to
gain or regain the trust of the American people. The truth is the basis
of the American ideal.
I always marveled, as a little girl and as a young woman, growing up,
watching as the truth came out about America. I remember my dad, who
loved this country so much, saying to me: Honey, you just watch this
country. We are not afraid to admit a mistake. We are not fearful of
giving people rights. We will stand up and tell the truth, even when we
make the biggest mistakes.
Covering up the truth is not the way to gain the trust of the
American people. Since learning, in late 2005, that the President
violated the trust of our people by spying on our citizens, Congress
and the American people have struggled to find out what happened. Last
week, we celebrated the day we adopted the Declaration of Independence,
Independence Day, July 4. In that historic document is the following
phrase:
To secure these rights, governments are instituted among
men deriving their just powers from the consent of the
governed.
``The consent of the governed,'' that means the law has to be behind
you when you undertake to do something such as this administration did.
They didn't care about the consent of the governed. They didn't care
about the law that was in place. Truth is the centerpiece of justice. I
don't see how we ever get to the truth if we grant this immunity. I
don't. It is not, to me, about the punishment.
As I said, I will be happy to have substitution, to have the
Government step in. That is not the issue. We need to get to the truth,
and we all know how that happens in our country. The immunity provision
in this bill sweeps the warrantless program under the carpet. It hides
the truth. The people deserve better from us.
I will close with a quote by former Supreme Court Justice Sandra Day
O'Connor:
It is during our most challenging and uncertain moments
that our nation's commitment to due process is severely
tested. It is in those times we must preserve our commitment
at home to the principles for which we fight abroad.
I hope we will support the Dodd amendment to strike the immunity
provision.
I thank the Chair.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, I understand we are coming up on a hard
break, as they say in television, for the party lunches.
The ACTING PRESIDENT pro tempore. That is correct.
Mr. BOND. Mr. President, I note only before we go into that break
that the Senator from Pennsylvania has made a number of comments on
time for the supporters of the bill that actually deserve a response.
One clear point that needs to be made in response to the Senator from
Pennsylvania and the Senator from California is that Judge Walker's
actions will not be dismissed if retroactive liability protection is
accorded carriers. It is a case against the United States, not a case
against the telephone companies.
Furthermore, I would say that the dictum in Judge Walker's opinion is
contrary to higher, more authoritative courts. So Judge Walker was not
correct, and I believe should his case go up on appeal, he will be
found not to be accurate. But that does not go, as my colleague from
West Virginia has said, to the issue of whether carriers deserve
retroactive liability protection. So I will reserve my comments, and I
will ask to be recognized when--when will the Senate return to session?
The ACTING PRESIDENT pro tempore. At 2:15 p.m.
Mr. BOND. Mr. President, I ask unanimous consent that I be recognized
for what remains of time on this side.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
____________________
[Congressional Record: July 8, 2008 (Senate)]
[Page S6386-S6429]
FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008--Continued
The PRESIDING OFFICER. Under the previous order, the Senator from
Missouri is recognized for 29 minutes.
Mr. BOND. Thank you, Mr. President. I appreciate the recognition.
To begin, to clarify for the floor and our colleagues the arrangement
the chairman and I have on this bill, I ask unanimous consent that
Senator Rockefeller manage the time in opposition to the Specter
amendment and that I manage the time in opposition to the Dodd and
Bingaman amendments.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. BOND. Mr. President, as I mentioned earlier today, the Senate is
poised to wrap up consideration of the Foreign Intelligence
Surveillance Amendments Act of 2008 in the form of H.R. 6304. Now, most
of my colleagues know this legislation has had a way of hanging around
for quite awhile, being caught up in the congressional process. Many,
including myself, believe we should have passed it well before now, but
it appears that we are on about the
[[Page S6387]]
5 yard line and ready to move it across into the end zone. As one who
believes this badly needed update to FISA will enhance our Nation's
security and advance and protect America's civil liberties and privacy
rights, I certainly hope a strong majority of the Senate will pass this
legislation unamended tomorrow.
Some of my colleagues have been intent on using Senate procedures to
slow this legislation to a snail's pace. They have succeeded in doing
so, first by choosing to ignore the Director of National Intelligence--
and I will call him the DNI from now on--the DNI's pleas for
modernization of the Foreign Intelligence Surveillance Act, or FISA, as
we will call it, in April 2007, for over 3 months, until August of
2007, and back in December of 2007 when a Democratic Member
filibustered us past the end of the year and into the recess, into
2008. It came to the floor in February when it took us several weeks to
work out a way to move forward; then, once again, over the past few
weeks, with another Democratic Member filibuster of sorts that pushed
us past last week's recess. Up until now, we have been delayed, but one
thing is sure in the Senate. Just as they say in military and basic
training: No matter what you do, you can't stop the clock. Now that
some of my colleagues are out of time in delaying any further, the
Senate will move ahead this week, despite all of these delays.
I am very proud of the comprehensive compromise legislation before us
today which passed out of the House with a strong bipartisan vote of
293 to 129. That was almost 3 weeks ago. As with the Senate's original
FISA bill that passed several months ago, the compromise that is before
us required a little give from all sides but, in essence, what we have
before us today is basically the Senate bill all over again. Everyone
who studied the language recognizes that. I have here a detailed
legislative history that I will ask unanimous consent to be printed in
the Record that explains the provisions of the bill. Chairman
Rockefeller submitted his own legislative history before the recess,
and while we largely agree on the description of the legislation, we do
have a few key differences. So as Vice Chairman of the Intelligence
Committee, I believe it is important to make my views and those of
several other Senators a part of the legislative history of this bill
by including it in the Record. I therefore ask unanimous consent to
have this legislative description printed in the Record as part of my
remarks.
There being no objection, the material was ordered to be printed in
the Record, as follows:
H.R. 6304, FISA AMENDMENTS ACT OF 2008
Section-by-Section Analysis and Explanation
This section-by-section analysis is based almost entirely
upon the good work of Senator John D. Rockefeller IV,
Chairman of the Select Committee on Intelligence. Time did
not permit us to reach an agreement on text that may have
been mutually agreeable to both of us, so I have modified his
section-by-section analysis to reflect my own perspective as
a co-manager on this important legislation. A careful
comparison of these two versions will reveal that there are
fewer areas in which our analyses diverge than in which they
agree.
The consideration of legislation to amend the Foreign
Intelligence Surveillance Act of 1978 (``FISA'') in the 110th
Congress began with the submission by the Director of
National Intelligence (``DNI'') on April 12, 2007 of a
proposed Foreign Intelligence Surveillance Modernization Act
of 2007, as Title IV of the Administration's proposed
Intelligence Authorization Act for Fiscal Year 2008. The
DNI's proposal was the subject of an open hearing on May 1,
2007 and subsequent closed hearings by the Senate Select
Committee on Intelligence, but was not formally introduced.
It is available on the Committee's website: http://
intelligence.senate
.gov/070501/bill.pdf.
In May 2007, a decision by the Foreign Intelligence
Surveillance Court (FISA Court) led to the creation of
significant gaps in our foreign intelligence collection. As a
result of this decision, throughout the summer of 2007, the
DNI asked Congress to consider his FISA modernization
legislation. In response to the DNI's concerns, Congress
passed the Protect America Act of 2007, Pub. L. 110-55
(August 5, 2007) (``Protect America Act''). As a result of
the Protect America Act, the Intelligence Community was able
to close immediately the intelligence gaps that had been
created by the court's decision. While the Protect America
Act provided important authorities for the collection of
foreign intelligence, it did not contain any retroactive
civil liability protections for those electronic
communication service providers who had assisted with the
President's Terrorist Surveillance Program following the
September 11th terrorist attacks on our nation.
The Protect America Act included a sunset of February 1,
2008. After the passage of the Protect America Act, the
Chairman and Vice Chairman began to draft permanent FISA
legislation. S. 2248 was reported by the Select Committee on
Intelligence on October 26, 2007 (S. Rep. No. 110-209
(2007)), and then sequentially reported by the Committee on
the Judiciary on November 16, 2007 (S. Rep. No. 110-258
(2008)). In the House, the original legislative vehicle was
H.R. 3773. It was reported by the Committee on the Judiciary
and the Permanent Select Committee on Intelligence on October
12, 2007 (H. Rep. No. 110-373 (Parts 1 and 2) (2007)). H.R.
3773 passed the House on November 15, 2007. S. 2248 passed
the Senate on February 12, 2008, and was sent to the House as
an amendment to H.R. 3773. On March 14, 2008, the House
returned H.R. 3773 to the Senate with an amendment.
No formal conference was convened to resolve the
differences between the two Houses on H.R. 3773. Instead,
following an agreement reached without a formal conference,
the House passed a new bill, H.R. 6304, which contains a
complete compromise of the differences on H.R. 3773.
H.R. 6304 is a direct descendant of the Protect America Act
and S. 2248, which became the basis for the Senate amendment
to H.R. 3373 (February 12, 2008) and influenced the House
amendment to H.R. 3373 (March 18, 2008). The Protect America
Act, H.R. 3773, as well as the original Senate bill, S. 2248,
and the legislative history of those measures constitutes the
legislative history of H.R. 6304.
The section-by-section analysis and explanation set forth
below is based on the analysis and explanation in the report
of the Select Committee on Intelligence on S. 2248, at S.
Rep. No. 110-209, pp. 12-25, as expanded and edited to
reflect the floor amendments to S. 2248 and the negotiations
that produced H.R. 6304.
Overall Organization of Act
The FISA Amendments Act of 2008 (``FISA Amendments Act'')
contains four titles.
Title I includes, in Section 101, a new Title VII of FISA
entitled ``Additional Procedures Regarding Certain Persons
Outside the United States.'' This new title of FISA (which
will sunset in four and a half years) is a successor to the
Protect America Act, with amendments. Sections 102 through
110 of the Act contain a number of amendments to FISA apart
from the collection issues addressed in the new Title VII of
FISA. These include a provision that FISA is the exclusive
statutory means for electronic surveillance, important
streamlining provisions, and a change in the definitions
section of FISA (in Section 110 of the bill) to facilitate
foreign intelligence collection against proliferators of
weapons of mass destruction.
Title II establishes a new Title VIII of FISA, entitled
``Protection of Persons Assisting the Government.'' This new
title establishes a long-term procedure, in new FISA Section
802, for the Government to implement statutory defenses and
obtain the dismissal of civil cases against persons,
principally electronic communication service providers, who
assist elements of the intelligence community in accordance
with defined legal documents, namely, orders of the FISA
Court or certifications or directives provided for and
defined by statute. Section 802 also incorporates a procedure
with precise boundaries for civil liability relief for
electronic communication service providers who are or may be
defendants in civil cases involving an intelligence
activity authorized by the President between September 11,
2001, and January 17, 2007. In addition, Title II provides
for the protection, by way of preemption, of the federal
government's ability to conduct intelligence activities
without interference by state investigations.
Title III directs the Inspectors General of the Department
of Justice, the Department of Defense, the Office of National
Intelligence, the National Security Agency, and any other
element of the intelligence community that participated in
the President's Surveillance Program authorized by the
President between September 11, 2001, and January 17, 2007,
to conduct a comprehensive review of the program. The
Inspectors General are required to submit a report to the
appropriate committees of Congress, within one year, that
addresses, among other things, all of the facts necessary to
describe the establishment, implementation, product, and use
of the product of the President's Surveillance Program,
including the participation of individuals and entities in
the private sector related to the program.
Title IV contains important procedures for the transition
from the Protect America Act to the new Title VII of FISA.
Section 404(a)(7) directs the Attorney General and the DNI,
if they seek to replace an authorization under the Protect
America Act, to submit the certification and procedures
required in accordance with the new Section 702 to the FISA
Court at least 30 days before the expiration of such
authorizations, to the extent practicable. Title IV
explicitly provides for the continued effect of orders,
authorizations, and directives issued under the Protect
America Act, and of the provisions pertaining to protection
from liability, FISA Court jurisdiction, the use of
information acquired, and Executive branch reporting
requirements, past the statutory sunset of that act. Title IV
also contains provisions on the
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continuation of authorizations, directives, and orders under
Title VII that are in effect at the time of the December 31,
2012, sunset, until their expiration within the year
following the sunset.
TITLE I. FOREIGN INTELLIGENCE SURVEILLANCE
Section 101. Targeting the Communications of Persons Outside
the United States
Section 101(a) of the FISA Amendments Act establishes a new
Title VII of FISA. Entitled ``Additional Procedures Regarding
Certain Persons Outside the United States,'' the new title
includes, with important modifications, an authority similar
to that granted by the Protect America Act as temporary
sections 105A, 105B, and 105C of FISA. Those Protect America
Act provisions had been placed within FISA's Title I on
electronic surveillance. Moving the amended authority to a
title of its own is appropriate because the authority
involves not only the acquisition of communications as they
are being carried but also while they are stored by
electronic communication service providers.
Section 701. Definitions
Section 701 incorporates into Title VII the definition of
nine terms that are defined in Title I of FISA and used in
Title VII: ``agent of a foreign power,'' ``Attorney
General,'' ``contents,'' ``electronic surveillance,''
``foreign intelligence information,'' ``foreign power,''
``person,'' ``United States,'' and ``United States person.''
It defines the congressional intelligence committees for the
purposes of Title VII. Section 701 defines the two courts
established in Title I that are assigned responsibilities
under Title VII: the FISA Court and the Foreign Intelligence
Surveillance Court of Review. Section 701 also defines
``intelligence community'' as found in the National Security
Act of 1947. Finally, Section 701 defines a term, not
previously defined in FISA, which has an important role in
setting the parameters of Title VII: ``electronic
communication service provider.'' This definition is
connected to the objective that the acquisition of foreign
intelligence pursuant to this title is meant to encompass the
acquisition of stored electronic communications and related
data.
Section 702. Procedures for Targeting Certain Persons Outside
the United States Other than United States Persons
Section 702(a) sets forth the basic authorization in Title
VII, replacing Section 105B of FISA, as added by the Protect
America Act. Unlike the Protect America Act, the collection
authority in Section 702(a) cannot be exercised until the
FISA Court has conducted its review in accordance with
subsection (i)(3), or the Attorney General and the DNI,
acting jointly, have made a determination that exigent
circumstances exist, as defined in Section 702(c)(2).
Following such determination and subsequent submission of a
certification and related procedures, the Court is required
to conduct its review expeditiously. Authorizations must
contain an effective date and may be valid for a period of up
to one year from that date.
Subsequent provisions of the Act implement the prior order
and effective date provisions of Section 702(a): in addition
to Section 702(c)(2) which defines exigent circumstances,
Section 702(i)(1)(B) provides that the court shall complete
its review of certifications and procedures within 30 days
(unless extended under Section 702(j)(2)); Section
702(i)(5)(A) provides for the submission of certifications
and procedures to the FISA Court at least 30 days before the
expiration of authorizations that are being replaced, to the
extent practicable; and Section 702(i)(5)(B) provides for the
continued effectiveness of expiring certifications and
procedures until the court issues an order concerning their
replacements.
Section 105B and Section 702(a) differ in other important
respects. Section 105B authorized the acquisition of foreign
intelligence information ``concerning'' persons reasonably
believed to be outside the United States. To make clear that
all collection under Title VII must be targeted at persons
who are reasonably believed to be outside the United States,
Section 702(a) eliminates the word ``concerning'' and instead
authorizes ``the targeting of persons reasonably believed to
be located outside the United States to collect foreign
intelligence information.''
Section 702(b) establishes five related limitations on the
authorization in Section 702(a). Overall, the limitations
ensure that the new authority is not used for surveillance
directed at persons within the United States or at United
States persons. The first is a specific prohibition on using
the new authority to target intentionally any person within
the United States. The second provides that the authority may
not be used to conduct ``reverse targeting,'' the intentional
targeting of a person reasonably believed to be outside the
United States if the purpose of the acquisition is to target
a person reasonably believed to be in the United States. If
the purpose is to target a person reasonably believed to be
in the United States, then the electronic surveillance should
be conducted in accordance with FISA or the criminal wiretap
statutes. The third bars the intentional targeting of a
United States person reasonably believed to be outside the
United States. In order to target such United States person,
acquisition must be conducted under three subsequent sections
of Title VII, which require individual FISA court orders for
United States persons: Sections 703, 704, and 705. The fourth
limitation goes beyond targeting (the object of the first
three limitations) and 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
located in the United States. The fifth is an overarching
mandate that an acquisition authorized in Section 702(a)
shall be conducted in a manner consistent with the Fourth
Amendment to the U.S. Constitution, which provides for ``the
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.''
Section 702(c) governs the conduct of acquisitions.
Pursuant to Section 702(c)(1), acquisitions authorized under
Section 702(a) may be conducted only in accordance with
targeting and minimization procedures approved at least
annually by the FISA Court and a certification of the
Attorney General and the DNI, upon its submission in
accordance with Section 702(g). Section 702(c)(2) describes
the ``exigent circumstances'' in which the Attorney General
and Director of National Intelligence may authorize targeting
for a limited time without a prior court order for purposes
of subsection (a). Section 702(c)(2) provides that the
Attorney General and the DNI may make a determination that
exigent circumstances exist because, without immediate
implementation of an authorization under Section 702(a),
intelligence important to the national security of the United
States may be lost or not timely acquired and time does not
permit the issuance of an order pursuant to Section 702(i)(3)
prior to the implementation of such authorization. Section
702(c)(3) provides that the Attorney General and the DNI may
make such a determination before the submission of a
certification or by amending a certification at any time
during which judicial review of such certification is pending
before the FISA Court.
Section 702(c)(4) addresses the concern, reflected in
Section 105A of FISA as added by the Protect America Act,
that the definition of electronic surveillance in Title I
might prevent use of the new procedures. To address this
concern, Section 105A redefined the term ``electronic
surveillance'' to exclude ``surveillance directed at a person
reasonably believed to be located outside of the United
States.'' In contrast, Section 702(c)(4) does not change the
definition of electronic surveillance, but clarifies the
intent of Congress to allow the targeting of foreign targets
outside the United States in accordance with Section 702
without an application for a court order under Title I of
FISA. The addition of this construction paragraph, as well as
the language in Section 702(a) that an authorization may
occur ``notwithstanding any other law,'' makes clear that
nothing in Title I of FISA shall be construed to require a
court order under that title for an acquisition that is
targeted in accordance with Section 702 at a foreign person
outside the United States.
Section 702(d) provides, in a manner essentially identical
to the Protect America Act, for the adoption by the Attorney
General, in consultation with the DNI, of targeting
procedures that are reasonably designed to ensure that
collection is limited to targeting persons reasonably
believed to be outside the United States. As provided in the
Protect America Act, the targeting procedures are subject to
judicial review and approval. In addition to the requirements
of the Protect America Act, however, Section 702(d) provides
that the targeting procedures also must be reasonably
designed to prevent 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
located in the United States. Section 702(d)(2) subjects
these targeting procedures to judicial review and approval.
Section 702(e) provides that the Attorney General, in
consultation with the DNI, shall adopt, for acquisitions
authorized by Section 702(a), minimization procedures that
are consistent with Section 101(h) or 301(4) of FISA, which
establish FISA's minimization requirements for electronic
surveillance and physical searches. Unlike the Protect
America Act, Section 702(e)(2) provides that the minimization
procedures, which are essential to the protection of United
States persons, shall be subject to judicial review and
approval.
Section 702(f) provides that the Attorney General, in
consultation with the DNI, shall adopt guidelines to ensure
compliance with the limitations in Section 702(b), including
prohibitions on the acquisition of purely domestic
communications, targeting persons within the United States,
targeting United States persons located outside the United
States, and reverse targeting. Such guidelines shall also
ensure that an application for a court order is filed as
required by FISA. It is intended that these guidelines will
provide clear requirements and procedures governing the
appropriate implementation of the authority under this title
of FISA. The Attorney General is to provide these guidelines
to the congressional intelligence committees, the judiciary
committees of the House of Representatives and the Senate,
and the FISA Court. Subsequent provisions implement the
guidelines requirement. See Section 702(g)(2)(A)(iii)
(certification requirements); Section 702(l)(1) and 702(l)(2)
(Attorney General and DNI assessment of compliance with
guidelines); and Section 707(b)(1)(G)(ii) (reporting on
noncompliance with guidelines).
Section 702(g) requires that the Attorney General and the
DNI provide to the FISA Court, prior to implementation of an
authorization under subsection (a), a written certification,
with any supporting affidavits. In
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exigent circumstances, the Attorney General and DNI may make
a determination that, without immediate implementation,
intelligence important to the national security may be lost
or not timely acquired prior to the implementation of an
authorization. It is expected that the Attorney General and
the DNI will utilize this ``exigent circumstances'' exception
as often as necessary to ensure the protection of our
national security. For this reason, the standard to use this
authority is much lower than in traditional emergency
situations under FISA. In exigent circumstances, if time does
not permit the submission of a certification prior to the
implementation of an authorization, the certification must be
submitted to the FISA Court no later than seven days after
the determination is made. The seven-day time period for
submission of a certification in the case of exigent
circumstances is identical to the time period by which the
Attorney General must apply for a court order after
authorizing an emergency surveillance under other provisions
of FISA, as amended by this Act.
Section 702(g)(2) sets forth the requirements that must be
contained in the written certification. The required elements
are: (1) the targeting and minimization procedures have been
approved by the FISA Court or will be submitted to the court
with the certification; (2) guidelines have been adopted to
ensure compliance with the limitations of subsection (b); (3)
those procedures and guidelines are consistent with the
Fourth Amendment; (4) the acquisition is targeted at persons
reasonably believed to be outside the United States; (5) a
significant purpose of the acquisition is to obtain foreign
intelligence information; and (6) an effective date for the
authorization that in most cases is at least 30 days after
the submission of the written certification. Additionally, as
an overall limitation on the method of acquisition permitted
under Section 702, the certification must attest that the
acquisition involves obtaining foreign intelligence
information from or with the assistance of an electronic
communication service provider.
Requiring an effective date in the certification serves to
identify the beginning of the period of authorization (which
is likely to be a year) for collection and to alert the FISA
Court of when the Attorney General and DNI are seeking to
begin collection. Section 702(g)(3) permits the Attorney
General and DNI to change the effective date in the
certification by amending the certification.
As with the Protect America Act, the certification under
Section 702(g)(4) is not required to identify the specific
facilities, places, premises, or property at which the
acquisition under Section 702(a) will be directed or
conducted. The certification shall be subject to review by
the FISA Court.
Section 702(h) authorizes the Attorney General and the DNI
to direct, in writing, an electronic communication service
provider to furnish the Government with all information,
facilities, or assistance necessary to accomplish the
acquisition authorized under Section 702(a). It is important
to note that such directives may be issued only in exigent
circumstances pursuant to Section 702(c)(2) or after the FISA
Court has conducted its review of the certification and the
targeting and minimization procedures and issued an order
pursuant to Section 702(i)(3). Section 702(h) requires
compensation for this assistance and provides that no cause
of action shall lie in any court against an electronic
communication service provider for its assistance in
accordance with a directive. It also establishes expedited
procedures in the FISA Court for a provider to challenge the
legality of a directive or the Government to enforce it. In
either case, the question for the court is whether the
directive meets the requirements of Section 702 and is
otherwise lawful. Whether the proceeding begins as a provider
challenge or a Government enforcement petition, if the court
upholds the directive as issued or modified, the court shall
order the provider to comply. Failure to comply may be
punished as a contempt of court. The proceedings shall be
expedited and decided within 30 days, unless that time is
extended under Section 702(j)(2).
Section 702(i) provides for judicial review of any
certification required by Section 702(g) and the targeting
and minimization procedures adopted pursuant to Sections
702(d) and 702(e). In accordance with Section 702(i)(5), if
the Attorney General and the DNI seek to reauthorize or
replace an authorization in effect under the Act, they shall
submit, to the extent practicable, the certification and
procedures at least 30 days prior to the expiration of such
authorization.
The court shall review certifications to determine whether
they contain all the required elements. It shall review
targeting procedures to assess whether they are reasonably
designed to ensure that the acquisition activity is limited
to the targeting of persons reasonably believed to be located
outside the United States and prevent the intentional
acquisition of any communication whose sender and intended
recipients are known at the time of acquisition to be located
in the United States. The Protect America Act had limited the
review of targeting procedures to a ``clearly erroneous''
standard; Section 702(i) omits that limitation. For
minimization procedures, Section 702(i) provides that the
court shall review them to assess whether they meet the
statutory requirements. The court is to review the
certifications and procedures and issue its order within 30
days after they were submitted unless that time is extended
under Section 702(j)(2). The Attorney General and the DNI may
also amend the certification or procedures at any time under
Section 702(i)(1)(C), but those amended certifications or
procedures must be submitted to the court in no more than 7
days after amendment. The amended procedures may be used
pending the court's review.
If the FISA Court finds that the certification contains all
the required elements and that the targeting and minimization
procedures are consistent with the requirements of
subsections (d) and (e) and with the Fourth Amendment, the
court shall enter an order approving their use or continued
use for the acquisition authorized by Section 702(a). If
it does not so find, the court shall order the Government,
at its election, to correct any deficiencies or cease, or
not begin, the acquisition. If acquisitions have begun,
they may continue during any rehearing en banc of an order
requiring the correction of deficiencies. If the
Government appeals to the Foreign Intelligence
Surveillance Court of Review, any collection that has
begun may continue at least until that court enters an
order, not later than 60 days after filing of the petition
for review, which determines whether all or any part of
the correction order shall be implemented during the
appeal.
Section 702(j)(1) provides that judicial proceedings are to
be conducted as expeditiously as possible. Section 702(j)(2)
provides that the time limits for judicial review in Section
702 (for judicial review of certifications and procedures or
in challenges or enforcement proceedings concerning
directives) shall apply unless extended, by written order, as
necessary for good cause in a manner consistent with national
security.
Section 702(k) requires that records of proceedings under
Section 702 shall be maintained by the FISA Court under
security measures adopted by the Chief Justice in
consultation with the Attorney General and the DNI. In
addition, all petitions are to be filed under seal and the
FISA Court, upon the request of the Government, shall
consider ex parte and in camera any Government submission or
portions of a submission that may include classified
information. The Attorney General and the DNI are to retain
directives made or orders granted for not less than 10 years.
Section 702(l) provides for oversight of the implementation
of Title VII. It has three parts. First, the Attorney General
and the DNI shall assess semiannually under subsection (l)(1)
compliance with the targeting and minimization procedures,
and the Attorney General guidelines for compliance with
limitations under Section 702(b), and submit the assessment
to the FISA Court and to the congressional intelligence and
judiciary committees, consistent with congressional rules.
Second, under subsection (l)(2)(A), the Inspector General
of the Department of Justice and the Inspector General
(``IG'') of any intelligence community element authorized to
acquire foreign intelligence under Section 702(a) are
authorized to review compliance of their agency or element
with the targeting and minimization procedures adopted in
accordance with subsections (d) and (e) and the guidelines
adopted in accordance with subsection (f). Subsections
(l)(2)(B) and (l)(2)(C) mandate several statistics that the
IGs shall review with respect to United States persons,
including the number of disseminated intelligence reports
that contain references to particular known U.S. persons, the
number of U.S. persons whose identities were disseminated in
response to particular requests, and the number of targets
later determined to be located in the United States. Their
reports shall be submitted to the Attorney General, the DNI,
and the appropriate congressional committees. Section
702(l)(2) provides no statutory schedule for the completion
of these IG reviews; the IGs should coordinate with the heads
of their agencies about the timing for completion of the IG
reviews so that they are done at a time that would be useful
for the agency heads to complete their semiannual reviews.
Third, under subsection (l)(3), the head of an intelligence
community element that conducts an acquisition under Section
702 shall review annually whether there is reason to believe
that foreign intelligence information has been or will be
obtained from the acquisition and provide an accounting of
information pertaining to United States persons similar to
that included in the IG report. Subsection (l)(3) also
encourages the head of the element to develop procedures to
assess the extent to which the new authority acquires the
communications of U.S. persons, and to report the results of
such assessment. The review is to be used by the head of the
element to evaluate the adequacy of minimization procedures.
The annual review is to be submitted to the FISA Court, the
Attorney General and the DNI, and to the appropriate
congressional committees.
Section 703. Certain Acquisition Inside the United States
Targeting United States Persons Outside the United States
Section 703 governs the targeting of United States persons
who are reasonably believed to be outside the United States
when the acquisition of foreign intelligence is conducted
inside the United States. The authority and procedures of
Section 703 apply when the acquisition either constitutes
electronic surveillance, as defined in Title I of FISA, or is
of stored electronic communications or stored electronic
data. If the United States person returns to the United
States, acquisition under Section 703 must cease. The
Government may always, however, obtain an
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order or authorization under another title of FISA.
The application procedures and provisions for a FISA Court
order in Sections 703(b) and 703(c) are drawn from Titles I
and III of FISA. Key among them is the requirement that the
FISA Court determine that there is probable cause to believe
that, for the United States person who is the target of the
surveillance, the person is reasonably believed to be located
outside the United States and is a foreign power or an agent,
officer, or employee of a foreign power. The inclusion of
United States persons who are officers or employees of a
foreign power, as well as those who are agents of a foreign
power as that term is used in FISA, is intended to permit the
type of collection against United States persons outside the
United States that has been allowed under Executive Order
12333 and existing Executive branch guidelines. The FISA
Court shall also review and approve minimization procedures
that will be applicable to the acquisition, and shall order
compliance with such procedures.
As with FISA orders against persons in the United States,
FISA orders against United States persons outside of the
United States under Section 703 may not exceed 90 days and
may be renewed for additional 90-day periods upon the
submission of renewal applications. Emergency authorizations
under Section 703 are consistent with the requirements for
emergency authorizations in FISA against persons in the
United States, as amended by this Act; the Attorney
General may authorize an emergency acquisition if an
application is submitted to the FISA Court in not more
than seven days.
Section 703(g) is a construction provision that clarifies
that, if the Government obtains an order and targets a
particular United States person in accordance with Section
703, FISA does not require the Government to seek a court
order under any other provision of FISA to target that United
States person while that person is reasonably believed to be
located outside the United States.
Section 704. Other Acquisitions Targeting United States
Persons Outside the United States
Section 704 governs other acquisitions that target United
States persons who are outside the United States. Sections
702 and 703 address acquisitions that constitute electronic
surveillance or the acquisition of stored electronic
communications. In contrast, Section 704 addresses any
targeting of a United States person outside of the United
States under circumstances in which that person has a
reasonable expectation of privacy and a warrant would be
required if the acquisition occurred within the United
States. It thus covers not only communications intelligence,
but, if it were to occur, the physical search for foreign
intelligence purposes of a home, office, or business of a
United States person by an element of the United States
intelligence community, outside of the United States.
Pursuant to Section 704(a)(3), if the targeted United
States person is reasonably believed to be in the United
States while an order under Section 704 is in effect, the
acquisition against that person shall cease unless authority
is obtained under another applicable provision of FISA. The
Government may not use Section 704 to authorize an
acquisition of foreign intelligence inside the United States.
Section 704(b) describes the application to the FISA Court
that is required. For an order under Section 704(c), the FISA
Court must determine that there is probable cause to believe
that the United States person who is the target of the
acquisition is reasonably believed to be located outside the
United States and is a foreign power, or an agent, officer,
or employee of a foreign power. An order is valid for a
period not to exceed 90 days, and may be renewed for
additional 90-day periods upon submission of renewal
applications meeting application requirements.
Because an acquisition under Section 704 is conducted
outside the United States, or is otherwise not covered by
FISA, the FISA Court is expressly not given jurisdiction to
review the means by which an acquisition under this section
may be conducted. Although the FISA Court's review is limited
to determinations of probable cause, Section 704 anticipates
that any acquisition conducted pursuant to a Section 704
order will in all other respects be conducted in compliance
with relevant regulations and Executive Orders governing the
acquisition of foreign intelligence outside the United
States, including Executive Order 12333 or any successor
order.
Section 705. Joint Applications and Concurrent Authorizations
Section 705 provides that if an acquisition targeting a
United States person under Section 703 or 704 is proposed to
be conducted both inside and outside the United States, a
judge of the FISA Court may issue simultaneously, upon the
request of the Government in a joint application meeting the
requirements of Sections 703 and 704, orders under both
sections as appropriate. If an order authorizing electronic
surveillance or physical search has been obtained under
Section 105 or 304, and that order is still in effect, the
Attorney General may authorize, without an order under
Section 703 or 704, the targeting of that United States
person for the purpose of acquiring foreign intelligence
information while such person is reasonably believed to be
located outside the United States.
Section 706. Use of Information Acquired Under Title VII
Section 706 fills a void that has existed under the Protect
America Act which had contained no provision governing the
use of acquired intelligence. Section 706(a) provides that
information acquired from an acquisition conducted under
Section 702 shall be deemed to be information acquired from
an electronic surveillance pursuant to Title I of FISA for
the purposes of Section 106 of FISA, which is the provision
of Title I of FISA that governs public disclosure or use in
criminal proceedings. The one exception is for subsection (j)
of Section 106, as the notice provision in that subsection,
while manageable in individual Title I proceedings, would
present a difficult national security question when applied
to a Title VII acquisition. Section 706(b) also provides that
information acquired from an acquisition conducted under
Section 703 shall be deemed to be information acquired from
an electronic surveillance pursuant to Title I of FISA for
the purposes of Section 106 of FISA; however, the notice
provision of subsection (j) applies. Section 706 ensures a
uniform standard for the types of information acquired under
the new title.
Section 707. Congressional Oversight
Section 707 provides for additional congressional oversight
of the implementation of Title VII. The Attorney General is
to fully inform ``in a manner consistent with national
security'' the congressional intelligence and judiciary
committees about implementation of the Act at least
semiannually. Each report is to include any certifications
made under Section 702, the reasons for any determinations
made under Section 702(c)(2), any directives issued during
the reporting period, a description of the judicial review
during the reporting period to include a copy of any order or
pleading that contains a significant legal interpretation of
Section 702, incidents of noncompliance and procedures to
implement the section. With respect to Sections 703 and 704,
the report must contain the number of applications made for
orders under each section and the number of such orders
granted, modified and denied, as well as the number of
emergency authorizations made pursuant to each section and
the subsequent orders approving or denying the relevant
application.
Section 708. Savings Provision
Section 708 provides that nothing in Title VII shall be
construed to limit the authority of the Government to seek an
order or authorization under, or otherwise engage in any
activity that is authorized under, any other title of FISA.
This language is designed to ensure that Title VII cannot be
interpreted to prevent the Government from submitting
applications and seeking orders under other titles of FISA.
Section 101(b). Table of Contents
Section 101(b) of the bill amends the table of contents in
the first section of FISA.
Subsection 101(c). Technical and Conforming Amendments
Section 101(c) of the bill provides for technical and
conforming amendments in Title 18 of the United States Code
and in FISA.
Section 102. Statement of Exclusive Means by which Electronic
Surveillance and Interception of Certain Communications
May Be Conducted
Section 102(a) amends Title I of FISA by adding a new
Section 112 of FISA. Under the heading of ``Statement of
Exclusive Means by which Electronic Surveillance and
Interception of Certain Communications May Be Conducted,''
the new Section 112(a) states: ``Except as provided in
subsection (b), the procedures of chapters 119, 121 and 126
of Title 18, United States Code, and this Act shall be the
exclusive means by which electronic surveillance and the
interception of domestic wire, oral, or electronic
communication may be conducted.'' New Section 112(b) of FISA
provides that only an express statutory authorization for
electronic surveillance or the interception of domestic wire,
oral, or electronic communications, other than as an
amendment to FISA or chapters 119, 121, or 206 of Title 18
shall constitute an additional exclusive means for the
purpose of subsection (a). The new Section 112 is based on a
provision which Congress enacted in 1978 as part of the
original FISA that is codified in Section 2511(2)(f) of Title
18, United States Code, and which will remain in the U.S.
Code.
Section 102(a) strengthens the statutory provisions
pertaining to electronic surveillance and interception of
certain communications to clarify the express intent of
Congress that these statutory provisions are the exclusive
means for conducting electronic surveillance and interception
of certain communications. This section makes it clear that
any existing statute cannot be used in the future as the
statutory basis for circumventing FISA. Section 102(a) is
intended to ensure that additional exclusive means for
surveillance or interceptions shall be express statutory
authorizations.
In accord with Section 102(b) of the bill, Section 109 of
FISA that provides for criminal penalties for violations of
FISA, is amended to implement the exclusivity requirement
added in Section 112 by making clear that the safe harbor to
FISA's criminal offense provision is limited to statutory
authorizations for electronic surveillance or the
interception of domestic wire, oral, or electronic
communications which are pursuant to a provision of FISA, one
of the enumerated chapters of the criminal code, or a
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statutory authorization that expressly provides an additional
exclusive means for conducting the electronic surveillance.
By virtue of the cross-reference in Section 110 of FISA to
Section 109, that limitation on the safe harbor in Section
109 applies equally to Section 110 on civil liability for
conducting unlawful electronic surveillance.
Section 102(c) requires that, if a certification for
assistance to obtain foreign intelligence is based on
statutory authority, the certification provided to an
electronic communication service provider is to include the
specific statutory authorization for the request for
assistance and certify that the statutory requirements have
been met. This provision is designed to assist electronic
communication service providers in understanding the legal
basis for any government request for assistance.
In the section-by-section analysis of S. 2248, the report
of the Select Committee on Intelligence (S. Rep. No. 110-209,
at 18) described and incorporated the discussion of
exclusivity in the 1978 conference report on the original
Foreign Intelligence Surveillance Act, in particular the
conferees' description of the analysis in Youngstown Sheet
and Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) and the
application of the principles described there to the current
legislation. That full discussion should be deemed
incorporated in this section-by-section analysis.
Section 102 of the bill will not--and cannot--preclude the
President from exercising his Article II constitutional
authority to conduct warrantless foreign intelligence
surveillance. At most, this exclusive means provision only
places the President at his ``lowest ebb'' under the third
prong of the Youngstown case analysis. That is exactly where
the President was when FISA was passed back in 1978 and the
``revised'' exclusive means provision in this bill does not
change this fact. Even at his lowest ebb, the President's
authority with respect to intercepting enemy communications
is still quite strong, especially when compared to the non-
existent capability of Congress to engage in similar
interception activities.
Further, Section 102(c) actually reinforces the President's
Article II authority, stating that ``if a certification . . .
for assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the specific statutory provision and shall certify
that the statutory requirements have been met.'' The
implication from such language is that if a certification is
not based on statutory authority, then citing statutory
authority would be unnecessary. This language thus
acknowledges that certifications may be based on something
other than statutory authority, namely the President's
inherent constitutional authority.
Section 103. Submittal to Congress of Certain Court Orders
under the Foreign Intelligence Surveillance Act of 1978
Section 6002 of the Intelligence Reform Act and Terrorism
Prevention Act of 2004 (Pub. L. 108-458), added a Title VI to
FISA that augments the semiannual reporting obligations of
the Attorney General to the intelligence and judiciary
committees of the Senate and House of Representatives. Under
Section 6002, the Attorney General shall report a summary of
significant legal interpretations of FISA in matters before
the FISA Court or 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 semiannual summary,
the Department of Justice is required to provide copies of
court decisions, but not orders, which include significant
interpretations of FISA. The importance of the reporting
requirement is that, because the two courts conduct their
business in secret, Congress needs the reports to know how
the law it has enacted is being interpreted.
Section 103 adds to the Title VI reporting requirements in
three ways. First, as significant legal interpretations may
be included in orders as well as opinions, Section 103
requires that orders also be provided to the committees.
Second, as the semiannual report often takes many months
after the end of the semiannual period to prepare, Section
103 accelerates provision of information about significant
legal interpretations by requiring the submission of such
decisions, orders, or opinions within 45 days. Finally,
Section 103 requires that the Attorney General shall submit a
copy of any such decision, order, or opinion, and any
pleadings, applications, or memoranda of law associated with
such decision, order, or opinion, from the period five years
preceding enactment of the bill that has not previously been
submitted to the congressional intelligence and judiciary
committees. The Attorney General, in consultation with the
Director of National Intelligence, may authorize redactions
of documents submitted in accordance with subsection 103(c)
as necessary to protect national security.
Overview of Sections 104 through Section 109; FISA Streamlining
Sections 104 through 109 amend various sections of FISA for
such purposes as reducing a paperwork requirement, modifying
time requirements, or providing additional flexibility in
terms of the range of Government officials who may authorize
FISA actions. Collectively, these amendments are described as
streamlining amendments. In general, they are intended to
increase the efficiency of the FISA process without depriving
the FISA Court of the information it needs to make findings
required under FISA.
Section 104. Applications for Court Orders
Section 104 of the bill strikes two of the eleven
paragraphs on standard information in an application for a
surveillance order under Section 104 of FISA, either because
the information is provided elsewhere in the application
process or is not needed.
In various places, FISA has required the submission of
``detailed'' information, as in Section 104 of FISA, ``a
detailed description of the nature of the information sought
and the type of communications or activities to be subjected
to the surveillance.'' The DNI requested legislation that
asked that ``summary'' be substituted for ``detailed'' for
this and other application requirements, in order to reduce
the length of FISA applications. In general, the bill
approaches this by eliminating the mandate for ``detailed''
descriptions, leaving it to the FISA Court and the Government
to work out the level of specificity needed by the FISA Court
to perform its statutory responsibilities. With respect to
one item of information, ``a statement of the means by which
the surveillance will be effected,'' the bill modifies the
requirement by allowing for ``a summary statement.''
In aid of flexibility, Section 104 increases the number of
individuals who may make FISA applications by allowing the
President to designate the Deputy Director of the Federal
Bureau of Investigation (``FBI'') as one of those
individuals. This should enable the Government to move more
expeditiously to obtain certifications when the Director of
the FBI is away from Washington or otherwise unavailable.
Subsection (b) of Section 104 of FISA is eliminated as
obsolete in light of current applications. The Director of
the Central Intelligence Agency is added to the list of
officials who may make a written request to the Attorney
General to personally review a FISA application as the head
of the CIA had this authority prior to the establishment of
the Office of the Director of National Intelligence.
Section 105. Issuance of an Order
Section 105 strikes from Section 105 of FISA several
unnecessary or obsolete provisions. Section 105 strikes
subsection (c)(1)(F) of Section 105 of FISA which requires
minimization procedures applicable to each surveillance
device employed because Section 105(c)(2)(A) requires each
order approving electronic surveillance to direct the
minimization procedures to be followed.
Subsection (a)(6) reorganizes, in more readable form, the
emergency surveillance provision of Section 105(f), now
redesignated Section 105(e), with a substantive change of
extending from 3 to 7 days the time by which the Attorney
General must apply for and obtain a court order after
authorizing an emergency surveillance. The purpose of the
change is to ease the administrative burdens upon the
Department of Justice, the Intelligence Community, and the
FISA Court currently imposed by the three-day requirement.
Subsection (a)(7) adds a new paragraph to Section 105 of
FISA to require the FISA Court, on the Government's request,
when granting an application for electronic surveillance, to
authorize at the same time the installation and use of pen
registers and trap and trace devices. This change recognizes
that when the Intelligence Community seeks to use electronic
surveillance, pen register and trap and trace information is
often essential to conducting complete surveillance, and the
Government should not need to file two separate applications.
Section 106. Use of Information
Section 106 amends Section 106(i) of FISA with regard to
the limitations on the use of unintentionally acquired
information. Currently, Section 106(i) of FISA provides that
unintentionally acquired radio communication between persons
located in the United States must be destroyed unless the
Attorney General determines that the contents of the
communications indicates a threat of death or serious bodily
harm to any person. Section 106 of the bill amends subsection
106(i) of FISA by making it technology neutral on the
principle that the same rule for the use of information
indicating threats of death or serious harm should apply no
matter how the communication is transmitted.
Section 107. Amendments for Physical Searches
Section 107 makes changes to Title III of FISA: changing
applications and orders for physical searches to correspond
to changes in Sections 104 and 105 on reduction of some
application paperwork; providing the FBI with administrative
flexibility in enabling its Deputy Director to be a
certifying officer; and extending the time, from 3 days to 7
days, for applying for and obtaining a court order after
authorization of an emergency search.
Section 303(a)(4)(C), which will be redesignated Section
303(a)(3)(C), requires that each application for physical
search authority state the applicant's belief that the
property is ``owned, used, possessed by, or is in transmit to
or from'' a foreign power or an agent of a foreign power. In
order to provide needed flexibility and to make the provision
consistent with electronic surveillance provisions, Section
107(a)(1)(D) of the bill allows the FBI to apply for
authority to search property that also is ``about to be''
owned, used, or possessed by a foreign power or agent of a
foreign power, or in transit to or from one.
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Section 108. Amendments for Emergency Pen Registers and Trap
and Trace Devices
Section 108 amends Section 403 of FISA to extend from 2
days to 7 days the time for applying for and obtaining a
court order after an emergency installation of a pen register
or trap and trace device. This change harmonizes among FISA's
provisions for electronic surveillance, search, and pen
register/trap and trace authority the time requirements that
follow the Attorney General's decision to take emergency
action.
Section 109. Foreign Intelligence Surveillance Court
Section 109 contains four amendments to Section 103 of
FISA, which establishes the FISA Court and the Foreign
Intelligence Surveillance Court of Review.
Section 109(a) amends Section 103 to provide that judges on
the FISA Court shall be drawn from ``at least seven'' of the
United States judicial circuits. The current requirement--
that the eleven judges be drawn from seven judicial circuits
(with the number appearing to be a ceiling rather than a
floor) has proven unnecessarily restrictive or complicated
for the designation of the judges to the FISA Court.
Section 109(b) amends Section 103 to allow the FISA Court
to hold a hearing or rehearing of a matter en banc, which is
by all the judges who constitute the FISA Court sitting
together. The Court may determine to do this on its own
initiative, at the request of the Government in any
proceeding under FISA, or at the request of a party in the
few proceedings in which a private entity or person may be a
party, i.e., challenges to document production orders under
Title V, or proceedings on the legality or enforcement of
directives to electronic communication service providers
under Title VII.
Under Section 109(b), en banc review may be ordered by a
majority of the judges who constitute the FISA Court upon a
determination that it is necessary to secure or maintain
uniformity of the court's decisions or that a particular
proceeding involves a question of exceptional importance. En
banc proceedings should be rare and in the interest of the
general objective of fostering expeditious consideration of
matters before the FISA Court.
Section 109(c) provides authority for the entry of stays,
or the entry of orders modifying orders entered by the FISA
Court or the Foreign Intelligence Surveillance Court of
Review, pending appeal or review in the Supreme Court. This
authority is supplemental to, and does not supersede, the
specific provision in Section 702(i)(4)(B) that acquisitions
under Title VII may continue during the pendency of any
rehearing en banc and appeal to the Court of Review subject
to the requirement for a determination within 60 days under
Section 702(i)(4)(C).
Section 109(d) provides that nothing in FISA shall be
construed to reduce or contravene the inherent authority of
the FISA Court to determine or enforce compliance with an
order or a rule of that court or with a procedure approved by
it. The recognition in subsection (d) of the FISA Court's
inherent authority to determine or enforce compliance with a
court order, rule, or procedure does not authorize the Court
to assess compliance with the minimization procedures used in
the foreign targeting context. This conclusion is based upon
three observations.
First, Section 702 contains no explicit statutory provision
that authorizes the FISA Court to assess compliance with the
minimization procedures in the foreign targeting context. If
it had so desired, Congress could have included a specific
statutory authorization like those included in Sections
105(d)(3), 304(d)(3), and 703(c)(7). In fact, there were
several unsuccessful efforts during the legislative process
to include a specific statutory authorization in this bill.
Second, the Court's inherent authority to review and
approve minimization procedures in the context of domestic
electronic surveillance or physical searches is different
from its inherent authority to review and approve
minimization procedures in the foreign targeting context. In
the domestic context, the Court must direct that the
minimization procedures be followed. See Sections
105(c)(2)(A), 304(c)(2)(A), and 703(c)(5)(A). There is no
such requirement in the foreign targeting context. Instead,
the Court's judicial review is limited to assessing whether
the procedures meet the definition of minimization procedures
under FISA. See Section 702(i)(2)(C). When the Court issues
an order under Section 702, it merely enters an order
approving the use of the minimization procedures for the
acquisition. See 702(i)(3)(A). This limitation on the scope
of the Court's order in the foreign targeting context should
be interpreted as not
