Foreign Intelligence Surveillance Act--Motion to Proceed --

Floor Speech

FOREIGN INTELLIGENCE SURVEILLANCE ACT--MOTION TO PROCEED -- (Senate - December 17, 2007)

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Mr. BOND. Forty-six. I thank the Chair.

Mr. President, first let me begin by thanking our majority leader, Senator Reid, and our minority leader, Senator McConnell, for bringing this very important bill to the Senate floor. It is critical that we discuss it, debate it, vote on it, and pass it. I express my great thanks to the chairman of the committee, Senator Rockefeller, for his thoughtful discussion of the bill and his urgent request, in which I join, that all Members of this body move forward, adopt cloture, and adopt this bill. I wish to thank the chairman and all of the members of the committee and the staff of the Intelligence Committee who have labored long and hard over many months, beginning well before the April request for legislation, to understand the program. I believe almost all of us have gone out to the NSA to see how the program works and to see what the protections are that are built in.

We have asked questions many times over. I think I have heard the same questions asked many times, and each time they are explained, I learn a little bit more. I think we have a good understanding--not a perfect understanding--of the process, but we do fully appreciate how important it is.

The bill before us today reflects a tremendous amount of work and compromise. The distinguished chairman and I and others have had disagreements. We view things a little bit differently. But I think it is significant for this body to realize we came together, the majority and the minority, in a 13-to-2 vote to present to this body a good compromise. Nobody is 100 percent happy with it. I don't expect them to be. But this is about as good as we can do in earthly matters, and particularly in congressional matters, if we can come that close, I think it is a good product.

Obviously, I have some disagreements with the chairman on the Protect America Act of which I was a principal sponsor. Because that bill was passed--had to be passed hurriedly before the August recess--what we were able to do in that bill was to restore the FISA process with a Foreign Intelligence Surveillance Court acting as it had originally been intended to act: to approve collections on U.S. persons in the United States. We changed the law so that technological changes would no longer bring within the FISA Court jurisdiction--or the FISA Court workload, more appropriately--collections on foreign targets where very often they were communicating with foreign recipients of messages. That was never the purpose and, as I indicated on the Senate floor, the FISA Court objected to the intelligence community having to be burdened by approving collections against targets where there was only minimal impact on any U.S. citizen.

The Protect America Act did fill in a critical national security intelligence gap. We all heard about it for a number of months. The intelligence community was shut out of the ability to go up on foreign targets which might have had vital information. Now, we have had time to consider all of the aspects of this collection program, and we have come up with a plan that will modernize the bill not only to make sure it keeps up with modern technology, but that it adds additional protections under the Foreign Intelligence Surveillance Act.

This morning, in a few minutes, we will hear from some of our colleagues about why they are not happy with the bill coming before us. I would venture that some individuals made the same speeches back in 1978 before the passage of that bill as well. But let me state the measure very plainly. The question is, Can the intelligence community of the United States obtain signals intelligence on foreign persons believed to be terrorists and reasonably believed to be outside of the United States, and do so in a manner that will protect us.

We know the electronic surveillance that was done under the President's program and under the current FISA Court jurisdiction has provided valuable intelligence which has helped to thwart attacks on the United States and, more importantly, as we heard from GEN Stan McCrystal, the commander of the Joint Special Operations Command, when the outmoded FISA law application shut down our ability to collect foreign intelligence, the people most greatly at risk were our men and women in the service overseas who did not have the benefit of collection of intelligence that might have foretold attacks on them. So our men and women volunteers defending America, protecting security in the world, were without the protection our technology enables us to collect at the same time they were fighting overseas, and this kind of information could have been a big help.

Well, the legislation we are looking at today contains far greater protections for U.S. persons than this body ever conceived of or was ever willing to grant Americans when it passed FISA 30 years ago. We have gone further than ever before in this bill in protecting Americans' privacy rights, and I am proud to be part of the process that is shoring up our national security while protecting to the greatest extent possible the liberties of all Americans.

The chairman is correct; we made many changes. We added many protections--important protections--that the Director of National Intelligence agreed were necessary additions to provide protections for Americans, U.S. persons that were not previously in the law. But I believe we can say today that Americans can feel safe and secure; that not only is their privacy being protected but their lives are being protected from terrorist attacks if we pass this bill which will modernize and extend FISA.

We have an urgent need to proceed to the Senate's consideration of the FISA amendments of 2007. Just last week, the Senate heard from our Director of National Intelligence, ADM Mike McConnell, and Attorney General Mike Mukasey in a closed briefing about the vital importance of this legislation to our intelligence collection efforts. This legislation will give the intelligence community the tools it needs today and in the future to protect our country.

The Protect America Act, passed in August by Congress, allowed the intelligence community temporarily to close critical intelligence gaps that were impeding the intelligence community's ability to protect our troops and to detect terrorist plots against our homeland. That temporary legislation expires in less than 2 months, and we must not let those dangerous gaps reopen. Two months may seem like a lot of time, but when it comes to this bill or when it comes to floor action in the Congress in both Houses and then a conference, it is a very short time period. Anybody who has watched this distinguished deliberative body and its counterpart on the other side work knows that 2 months sometimes can go in the flash of an eye.

The Senate will go out of session this week until mid-January, leaving only about 2 weeks for us to work out our differences with the House to get a bicameral bill sent to the President--one that he can sign into law before the current Protect America Act expires on February 5. I regret the majority did not let this important bill get to the floor sooner, particularly when we had the DNI on the Hill last March urging Congress to modernize FISA, giving us his template of legislation for FISA modernization in early April. But we are here in the last week before Christmas, and I hope we will not waste any time in passing the bill on the way to becoming law.

I sincerely hope we are not going to leave ourselves in the same uncomfortable position we found ourselves in this past August when the Senate's consideration of the Protect America Act had to be passed very quickly. Because the Senate waited from April until August to act, we found ourselves in a chaotic rush to pass a bill, and there were genuine fears in the intelligence community that a terrorist attack against the homeland might be in the works. If we had acted in a more timely manner, we would not have had some of the hard feelings we do today that resulted from that rushed process in August. That process produced a bill that continued FISA as it was originally intended but did not include the additional protections we have added today.

The good news, however, is that all of that is ancient history now because the product we have coming before us today is a thoroughly bipartisan Intelligence Committee bill that was put together in close coordination with the subject matter experts in the offices of both the Director of National Intelligence and the Department of Justice. I can assure my colleagues that all of the good ideas we have had--I have had and other members of the committee have had--when we have taken them to these experts, we have found out you have to do it this way if you want to accomplish the results you want. Some of the things we attempted to do had impossible burdens that we did not understand until we laid them out for these experts. They have told us how to accomplish our purposes and do so in a manner that would be effective in protecting the interests, and yet not destroy the ability of the intelligence community to collect the information we need.

So I implore my colleagues in the Senate to move as quickly as possible on this bill since its construction has been quite deliberate so that we do not repeat the history of the hasty manner in which we had to pass the Protect America Act. But that also means we must pass a good bill that will not get vetoed. We don't have time for that. It is always fun to posture and make political statements, but what is more important, we don't have to do that. The bill coming before the Senate out of the Intelligence Committee offers the legislation that gives the intelligence community the flexibility it needs to protect our troops and those of us in America, while protecting the privacy and civil liberties of Americans. With two small fixes that Chairman Rockefeller and I intend to add to the bill in a manager's amendment, I have been assured that the President will sign that bill.

Now, let me comment a minute on exclusivity. We are working on an agreement on exclusivity that states to the greatest extent possible this will be the exclusive legislative means for the President to collect foreign intelligence. As one who used to be a student of the Constitution and still remembers a little bit of it, I have been impressed to read over the years how article 2 of the Constitution has been interpreted. Article 2 of the Constitution has been interpreted to say that the President--the President alone--has the power to collect foreign intelligence.

That power was used by Presidents going back in history. President Carter and President Clinton have used that bill to collect information. The FISA Court of Review has said, in the in re: Sealed Case, that the President's power to collect foreign intelligence remains. The President has put this bill under the FISA Court. So he has accepted the jurisdiction of the court in assessing the appropriateness of the collection means that have been requested.

We cannot erase by legislation a constitutional power. That constitutional power that the President has was fully laid out in the opinions and advice given by the Department of Justice and the intelligence community to any carriers that may have participated in the collection of information during the pendency of the President's terror surveillance program.

One other item I will comment on is the sunset. The provision we have in the bill--the 6-year sunset--is a compromise we reached. I don't believe a bill such as this should have a sunset. FISA did not have a sunset. It stayed in effect from 1978 until 2006. We should have reviewed it before. That is what we are in business for.

The Intelligence Committee of the Senate continues to hold hearings and have oversight of the intelligence community, and I would expect that if we see problems in the bill, we will move to correct them when we see them, not wait to a sunset. General Mukasey strongly opposed having any sunset on the bill, and I oppose lessening the sunset from 6 years. In fact, I prefer to see that sunset provision out of the bill.

To summarize, S. 2248, the bill passed out of the Intelligence Committee by a solid bipartisan vote of 13 to 2, on which I hope the Senate invokes cloture in a few minutes, will be the proper means of assuring the intelligence community can go forward with the vitally important collection of signals intelligence, while at the same time protecting the civil rights and privacy of all Americans and U.S. persons.

The bill is an extremely delicate arrangement of compromises that will fall apart if significant changes are made to it. By ``fall apart,'' what I really mean is it won't become law. We need a bill that Democrats and Republicans can support, that the DNI says will work for the intelligence community, and that the President will sign into law. That means the first principle we need to follow today is that the age-old advice that doctors and others use: ``do no harm,'' and not deconstruct what the Intelligence Committee has carefully crafted.

We don't have time for poison pill amendments or any other sort of political posturing. The Senate Intelligence Committee bill is a good one and needs to become law without further delay so our intelligence collectors and troops in harm's way will have the tools they need before the Protect America Act expires in February.

Mr. President, I urge my colleagues to vote with Chairman Rockefeller and me to proceed to this bill.

I yield the floor and I reserve the remainder of my time.

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BOND. Mr. President, I wanted to share a few views on matters that have been just raised. I thought it was important to bring these up. I will have longer remarks when we actually get on the bill.

I appreciated hearing from our colleague, who is an original cosponsor of the first FISA bill, and to learn about the negotiations which went on then. But I was a little puzzled to hear how this bill--this bill, which includes significantly more protections for Americans' civil liberties and constitutional rights--somehow goes back on the original FISA. The original FISA required a court review of targeting of U.S. persons. We have gone far beyond that in this bill. As a matter of fact, the Protect America Act, which he decried, contained all of the protections that were in the original FISA bill.

Now, we have, on a bipartisan basis--I keep emphasizing that the Intelligence Committee, on a bipartisan basis, after being fully briefed--fully briefed--by several elements of the intelligence community--and we asked them questions. We had briefings. We went to the NSA to see how it worked. We went through all of these ideas with them. They said: We understand your objective. Here is how to accomplish it.

I think we have prepared a very good bill that by any fair reading--any fair reading--will extend the protections beyond what the original FISA, and even the Protect America Act, had for the surveillance, electronic surveillance of anybody either in the United States or a U.S. person abroad. I am very much surprised that he says somehow, this bill, which provides more protection, doesn't provide the basic protections of FISA. I regret to say that is just not right.

I also want to address some questions about immunity which have been brought up. I thought our committee report, a bipartisan product, said it pretty well when talking about why providing immunity--and it is not amnesty because these companies, the companies alleged to have done wrong, did nothing wrong. This is what the Intelligence Committee said. We concluded:

The providers had a good faith basis for responding to the request for assistance they received. The intelligence community cannot obtain the intelligence it needs without assistance from these companies. Companies in the future may be less willing to assist the government if they face the threat of private lawsuits each time they are alleged to have provided assistance. The possible reduction in intelligence that might result from this delay is simply unacceptable for the safety of our Nation. Allowing continued litigation also risks the disclosure of highly classified information regarding intelligence sources and methods. In addition to providing an advantage to our adversaries by revealing sources and methods during the course of litigation, the potential disclosure of classified information puts both the facilities and personnel of electronic communications service providers and our country's continued ability to protect our homeland at risk. It is imperative that Congress provide liability protection to those who cooperated with our country in the hour of need.

Now, there was some talk about article II, and some suggested that the FISA Court would not have--this could not have been approved by the FISA Court. Well, my

understanding is the FISA Court knew about it. The FISA Court has acted on this measure, and in one of the few published reports of the FISA Court of Review, In Re: Sealed Case--that is a very compelling and provocative title, but that is the name of the case--it is stated in one of the footnotes dealing with the case that: The Truong case, where a warrantless search of U.S. persons in the United States was approved by the court, the FISA Court of Review said:

The Truong court, as did all the other courts to have decided this issue, held that the President did have the inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power.

The court went on to say:

The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.

That is the view of the FISA Court of Review. Everybody is saying, well, we need to find out what the FISA Court of Review has to say about these certifications, about the authorizations. What I just read is what the FISA Court has said. The President does have the power under article II of the Constitution to conduct warrantless surveillances. Once that determination is made, then to go back and say that any company, any U.S. person, or any corporation that got a notice from the Attorney General to carry out an order of the President through the Intelligence Committee to conduct foreign intelligence surveillance is breaking the law is just absolutely beyond the bounds.

I am very sorry we have such a disjoint in the reading and understanding of the constitutional powers. And to say now that these people should be dragged back into court where they will be subjected not only to the potential of large legal bills, the potential loss in terms of any judgment--although I think that is minimal; I don't think anybody is going to be able to show any harm that would warrant the court to grant a monetary recovery--but what they will find, what they will find is great damage to their reputation, as the people who are enemies of the United States go out actively and trash any company or any individual who cooperates with the United States.

There are evil people out there who would love to be able to get information and confirm what companies may have participated. Once that happens, those companies would be at great risk abroad. Their reputations would suffer, and they and their personnel could be at great risk of physical harm.

So there are many good reasons not to bring these cases in court against the providers. Please note, as we have stated before, that this measure only protects the private sector people who might have cooperated. It does not protect Government employees. I hope by clarifying this, people will get a better understanding of why immunity is necessary to protect the legitimate interests of the United States in collecting foreign information.

Many of my colleagues want to speak, so I appreciate the opportunity to clarify the question of immunity.

Mr. President, I yield the floor.

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