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Public Statements

Foreign Intelligence Surveillance Act -- Motion to Proceed

Floor Speech

By:
Date:
Location: Washington, DC


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

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Mr. CHAMBLISS. I rise in support of the motion to proceed to the Foreign Intelligence Surveillance Act Amendments Act of 2007. It is important to underscore just how critical this legislation is and how the bill which was voted out of the Senate Select Committee on Intelligence by a vote of 13 to 2 is a comprehensive and bipartisan bill.

Some of my colleagues on the other side of the aisle have made allegations that this bill will infringe upon Americans' right to privacy. This bill only infringes on one group's right to privacy, and that is terrorists.

Prior to congressional action in August, and again if we do not make permanent these changes, our intelligence community was unable to collect vital foreign intelligence without the prior approval of a court. If our intelligence community wanted to direct surveillance at an al-Qaida member located in Waziristan who was communicating with another terrorist in Germany, they would have to first petition the FISA court for approval. In August, our intelligence community told us that without updating FISA, they were not just handicapped, they were hamstrung.

Congress passed the Protect America Act which temporarily fixed the intelligence community's legal gaps. However, the Protect America Act will expire in February of 2008. Congress must act swiftly before our core collectors are faced with losing valuable intelligence as a result of inaction by Congress.

When FISA was enacted in 1978, it was meant to provide our Government with the means to collect foreign intelligence within the United States while not infringing upon U.S. citizens' rights. Prior to FISA, the courts held that fourth amendment warrant protection applied to surveillance in a variety of cases, including the decisions of Katz and Keith. Congress reacted to these cases in the criminal and foreign intelligence arena by enacting legislation addressing the requirements of the fourth amendment in title III of the Omnibus Crime Control and Safe Streets Act of 1968 and in FISA.

While debating FISA, Congress sought to protect the rights of U.S. persons from unwarranted Government intrusion while collecting foreign intelligence within the United States. The congressional report accompanying FISA states:

The purpose of the bill is to provide a statutory procedure authorizing the use of electronic surveillance in the United States for foreign intelligence purposes.

Regulating the collection of foreign intelligence, including the electronic surveillance of foreign communications made by terrorists, was neither contemplated during FISA nor by the courts after enactment of FISA. It has been long held that foreigners do not enjoy the protection of our Constitution unless they enter the territories of the United States, and even FISA provides an exception to that warrant requirement if it is unlikely that a U.S. person's communications would be intercepted. As an unfortunate consequence of the rapid advancements in technology since 1978 and post-Cold War threats, surveillance of some overseas communications were subjected to court orders.

It is now time for Congress to act to make permanent the fix to FISA so that our intelligence community has the tools they need to do their job in a very professional manner and gather the information necessary to protect our national security.

Let me be clear: These amendments to FISA would only apply to surveillance directed at individuals who are located outside the United States. This is not meant to intercept conversations between Americans or even between two terrorists who are located in the United States. The Government still would be required to seek the permission of the FISA Court for any surveillance done against people physically located within the United States, whether a citizen or not.

This is not good enough for some Members of Congress. They wish to extend the warrant requirement of the fourth amendment currently not bestowed under U.S. criminal law and procedure to American citizens overseas. The U.S. laws do not extend beyond our border, but the Supreme Court has held that certain fundamental rights such as those protected by the fifth and sixth amendments, as well as the reasonableness requirement of the fourth amendment, do extend to U.S. citizens outside the country. However, despite the opportunity, the Supreme Court has refused to hold that the warrant clause of the fourth amendment applies abroad for U.S. citizens. In a criminal prosecution, U.S. courts will accept evidence against U.S. citizens obtained by foreign governments without the probable cause demanded by U.S. law. U.S. courts recognize that the Bill of Rights does not protect Americans from the acts of foreign sovereigns, and excluding evidence obtained by them will not deter foreign governments from collecting it. Therefore, the evidence can be turned over to the United States and used in a criminal prosecution.

There was an amendment offered in the Intelligence Committee that requires that anytime a U.S. person is a target of surveillance, regardless of where the collection occurs, the Attorney General must seek approval under title I of FISA for that collection. The amendment fails to consider the intelligence community's adherence to current regulations which were drafted to comply with the reasonableness requirement of the fourth amendment.

Currently, under Executive Order 12333, section 2.5, the Attorney General may authorize the targeting of a U.S. person overseas upon finding probable cause to believe that the individual is a foreign power or agent of a foreign power. The intelligence community will now be required to obtain authorization from the FISA Court prior to conducting surveillance against terrorists or spies overseas who assist foreign governments merely because they are United States persons. It is my belief that the intelligence community has demonstrated to Congress how judicious, selective and careful they have been when it comes to protecting the very small number of U.S. citizens this applies to and does not necessarily need the court to approve their actions every step along the way. This complicates, and attempts to micromanage, the efforts of our intelligence community. Additionally, it prevents the intelligence community from acting quickly and with discretion in a process which has worked well to protect U.S. citizens for almost 30 years.

Some of my colleagues have expressed opposition to title II of the bill which provides that no civil actions may be brought against electronic communication providers if the Attorney General certifies that the assistance alleged was in connection with a lawful communication intelligence activity authorized by the President and designed to detect or prevent a terrorist attack against the United States. Providing our telecommunications carriers with liability relief is necessary and responsible. The Government often needs assistance from the private sector in order to protect our national security and, in return, they should be able to rely on the Government's assurances that the assistance they provide is lawful and necessary for our national security. As a result of this assistance, America's telecommunications carriers should not have to front heavy legal battles shrouded in secrecy on the Government's behalf.

The chairman and vice chairman of the Senate Select Committee on Intelligence introduced a carefully crafted, bipartisan piece of legislation. Although it was not a perfect bill, in committee I was willing to forgo offering amendments to support the bipartisan process and provide our intelligence community with the minimum requirements it needs in an environment with rapidly changing technology. I believe that the bill which was ultimately adopted by the committee, and with my support, contains troubling language which should be altered before enactment. Even so, this legislation is strides ahead of the partisan bill passed out of the Judiciary Committee and offered here as a substitute.

This is not, and should not, be a partisan issue by any means. The ability to collect the intelligence necessary to protect our country from foreign adversaries and terrorists should not be subjected to partisan politics in Congress. Protecting our national security is in the interest of all Americans, and Congress should seek to ensure that our Nation is protected fully. There are serious differences between the substitute bill voted out of the Judiciary Committee and the bill voted out of the Intelligence Committee. I urge my colleagues to reject the Judiciary Committee's substitute amendment and support the carefully crafted bipartisan bill passed out of the Intelligence Committee. However, differences of opinion exist and make it essential for Congress to examine and debate these issues on the floor. For these reasons I support cloture on the motion to proceed to FISA.

I yield the floor.

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