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Kennedy: The Chairman's NSA Deal with the White House Has Echoes of Blanket Authority

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KENNEDY: THE CHAIRMAN'S NSA DEAL WITH THE WHITE HOUSE HAS ECHOES OF BLANKET AUTHORITY
(AS PREPARED FOR DELIVERY BEFORE SENATE JUDICIARY COMMITTEE)

In 1978, President Carter signed the "Foreign Intelligence Surveillance Act" into law, successfully ending years of debate on the power of the President to conduct surveillance on U.S. soil.

The enactment of FISA was a recognition of Congress's role in national security and a demonstration of what can be achieved through bipartisan and inter-branch cooperation. There was only one vote against the bill. In his signing statement, President Carter said, "the act helps to solidify the trust between the American people and their Government. It provides a basis of trust of the American people in the fact that the activities of their intelligence agencies are both effective and lawful." We also had a signing statement that affirmed the President's intent to comply with the law.

Now, however, the situation is very different. Public trust in government is eroding, and serious constitutional doubts abound.

It doesn't have to be this way. We're far stronger on national security when all of us stand together. We all agree on the need for law enforcement and intelligence officers to have strong powers to investigate terrorism, prevent future attacks, and improve information-sharing between federal, state and local law enforcement. Cooperation between the Administration and Congress is vital for our national security. We need to come together to protect the security of our country.

Modern electronic surveillance can be a useful tool for the Government to gather intelligence. But if it's abused, it can be a particularly indiscriminate and penetrating invasion of the privacy of our citizens. Technologies may change, but our objective should stay the same: to reach a fair balance, capable of protecting our citizens without infringing on their basic rights and liberties.

When we passed FISA, the country was facing the same kind of fundamental questions we're facing now. The technologies were more limited, but the threats facing our country were great. The Cold War was underway and we faced a nuclear superpower, yet Congress did not enact laws that ignore the fundamental principles enshrined in our Constitution, and we should not do so now.

Our guiding principle must be is our constitutional role as a check on the President's power in the area of national security. The entire basis for FISA - as Attorney General Edward Levi agreed at the time - is that even if the President has an "inherent" constitutional power to authorize warrantless surveillance for foreign intelligence purposes, Congress has the power to regulate the exercise of that power. For that reason, FISA placed internal and external checks on the power of the executive.
We must fulfill our role responsibly. We should proceed deliberately and not act before we've carefully studied all of the issues. With unnecessary haste, we're heading down a path that could lead to many unintended consequences. We need to explore all of the proposals thoroughly. Our staff has received numerous versions of the Chairman's proposal since it was first circulated, and several provisions in the latest proposal are new and complex. Before rushing ahead, we should have an opportunity to discuss the scope of these proposed changes.

In addition, we're still waiting for written responses to the questions that members of the committee submitted to witnesses after the July 26th hearing. Because of the gravity and complexity of the issues, we need to consider them matters in detail before acting.

More hearings are clearly needed, and the Chairman indicated to Ranking Member Leahy that he would be willing to schedule more hearings to discuss the complex changes in his most recent proposal.

My concerns certainly are not limited to the process. I have serious substantive concerns as well about the Chairman's proposal. It creates a shadow regime for domestic surveillance, free of judicial or congressional oversight, and skirting FISA, even though there has been no demonstration that FISA is not adequate to the task or cannot be modified to remove existing obstacles to effective intelligence gathering. The Chairman's proposal abdicates Congress's role in national security, deferring to an Administration that has proved untrustworthy time and again.

The Chairman's deal with the White House has echoes of blanket authority. It would give the Executive an electronic blank check to spy on our citizens. Under the guise of "new technologies," this Administration and the Chairman would grant powers to the Executive that the nation's founders rejected. The reaction to the improper searches of the 1700s was embodied in the words in the Fourth Amendment, which rejected the use of such blanket searches without any basis for individual suspicion, and which provided protection from unchecked intrusions.

A provision in FISA allows the Attorney General to conduct surveillance without a court order for one year - but only if the surveillance was solely directed at the contents of communications transmitted by a "means of communications used exclusively between or among foreign powers." This exception was narrowly tailored to give the intelligence agencies greater flexibility.

There is also a 15-day exception to FISA's requirements during times of war, but we did not make a decision to "punt" the hard questions, as some have suggested. Our intent was clear and unambiguous - and the result of many long hours of negotiation.

By contrast, the Chairman's proposal would set no limits. Instead, it allows the President to pick and choose when to consult with Congress and the courts. Unfettered discretion would result in the very abuses that FISA was intended to prevent.

After September 11th, the Authorization for Use of Military Force passed by Congress did not authorize domestic electronic surveillance, and certainly not domestic electronic surveillance of American citizens, without a judicial warrant. The Administration obviously wants unchecked and unlimited authority to be able to monitor communications without any Congressional or court oversight.

The Chairman's major selling point for his bill has been that it provides the only avenue for obtaining judicial review of the lawfulness of the NSA surveillance program. The President would remain free, however, under the Chairman's bill to refuse to allow judicial review.

Even if the President did submit the program for review, it would apparently be reviewed in a secret proceeding at which only the government would appear. That's a long way from the open, adversarial manner in which we traditionally resolve significant constitutional issues in our country.

The bill would also consolidate all of the existing challenges to the NSA surveillance program in the Foreign Intelligence Surveillance Court of Review. There are currently dozens of challenges around the country, one of which has already resulted in a holding that the program is unconstitutional. Others are headed toward final adjudication. We should not truncate that process by herding all of the cases into a forum that is not suited to their adjudication.

If the President believes that winning the war on terror requires new surveillance capabilities, he should work with Congress to expand current law - not just pledge to follow legislation that destroys our surveillance laws. We shouldn't throw out the playbook. The President and his team ignored well-established laws, and they should not be rewarded with new legislation that immunizes such reckless decisions, and gives them far greater unchecked powers.

http://kennedy.senate.gov/newsroom/press_release.cfm?id=4b209350-a1a4-4d07-bb6b-54e6af54feff

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