FISA Amendments Act of 2007

Floor Speech

FISA AMENDMENTS ACT OF 2007 -- (Senate - January 28, 2008)

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Mr. BIDEN. Mr. President, I rise today in opposition to the Intelligence Committee's version of the Foreign Intelligence Surveillance Amendments Act of 2007. It is without question that I support giving the administration the surveillance tools it needs to keep us safe. But Congress has both a duty to keep the American people safe and uphold the Constitution.

It is therefore incumbent upon us in the Senate to craft clear legislation that protects both our national security and our civil liberties. We can do that by passing the Judiciary Committee substitute, which gives the administration the tools it needs to collect foreign intelligence and protects innocent Americans by ensuring that the FISA Court, and not the Attorney General, decides whether surveillance of a U.S. person is proper.

One of the defining challenges of our age is to combat international terrorism while maintaining our national values and our commitment to the rule of law and individual rights. These two obligations are not mutually exclusive. Indeed, they reinforce one another. Unfortunately, the President's national security policies have operated at the expense of our civil liberties. The examples are legion, but the issue that prompted the legislation before us today is one of the most notorious--his secret program of eavesdropping on Americans without congressional authorization or a judge's approval.

After insisting for a year that the President was not bound by the Foreign Intelligence Surveillance Act's clear prohibition on warrantless surveillance of Americans, the administration subjected its surveillance program to FISA Court review in January of last year.

Then, last August, citing operational difficulties and heightened threats that required changes to FISA, the administration passed the Protect America Act--over my objection and that of many of my colleagues. The Protect America Act, which sunsets at the end of this month, amended FISA to allow warrantless surveillance, even when that surveillance intercepts the communications of innocent American citizens inside the United States.

The administration identified two problems it faced in conducting electronic surveillance under FISA. First, the administration wanted clarification that it did not need to obtain a FISA warrant in order to conduct surveillance of calls between two parties when both of those parties are overseas. Because of the way global communications are now transmitted, many communications between people all of whom are overseas are nonetheless routed through switching stations inside the United States. In other words, when someone in Islamabad, Pakistan, calls someone in London, that call is likely to be routed through communications switching stations right here in the United States. Congress did not intend FISA to apply to such calls, and I support a legislative fix to clarify that point.

The second problem the administration identified is more difficult. Even assuming that the government does not need a FISA warrant to tap into switching stations here in the United States in order to intercept calls between two people who are abroad--between Pakistan and England, for example--if the target in Pakistan calls someone inside the United States, FISA requires the government to get a warrant, even though the government is ``targeting'' the caller in Pakistan.

The administration wants the flexibility to begin electronic surveillance of a ``target'' abroad without having to get a FISA warrant to account for the possibility that the ``foreign target'' might contact someone in the United States. I agree with the administration's assessment of the problem, but I don't support its solution.

The administration's proposal, which is reflected in the Intelligence Committee's version of the FISA Amendments Act, would significantly expand the scope of surveillance permitted under FISA by exempting entirely any calls to or from the United States, as long as the government is ``targeting'' someone reasonably believed to be located outside the United States.

The government could acquire these communications regardless of whether either party is suspected of any wrongdoing. The Attorney General and the Director of National Intelligence would make the determination about whom to target on their own, and they would merely certify, after-the-fact, to the FISA Court that they had reason to believe the target was outside the United States, regardless of how many calls to innocent American citizens inside the United States were intercepted in the process.

This Intelligence Committee bill authorizes surveillance that is broader than what is necessary to protect national security and that is why I oppose it.

The Intelligence Committee bill offers no protection for the innocent Americans who communicate with overseas relatives, business partners, or friends. Indeed, it allows the government unfettered access to these innocent Americans' communications. And once the government collects these communications, it can share them with other agencies throughout the government.

The Judiciary Committee substitute--which authorizes much broader surveillance powers than the government had under FISA before the Protect America Act became law--offers several significant protections. I will mention a few: First, the Judiciary Substitute protects against the ``bulk collection'' of communications by requiring the government to target a specific person or phone number abroad, rather than allowing the acquisition in bulk the millions of communications going into and out of the United States. Second, it requires the government to obtain an individualized warrant from the FISA Court if the government's acquisition of a person inside the United States becomes a significant purpose of its surveillance of the foreign target. Third, it provides for much more robust and meaningful congressional oversight. And fourth, it does not provide retroactive immunity for the telecommunications carriers.

I oppose granting retroactive immunity because if the carriers violated clearly stated Federal law, they should be held accountable. Cases against the carriers are already making their way through the courts. Retroactive immunity would undermine the judiciary's role as an independent branch of government. Furthermore, the provision that holds carrier liable for violations of the act is an important enforcement mechanism. It is fundamental to securing the privacy rights that FISA was meant to protect.

When the Senate passed FISA, after extensive hearings, 30 years ago by a strong bipartisan vote of 95 to 1, I stated that it ``was a reaffirmation of the principle that it is possible to protect national security and at the same time the Bill of Rights.'' I still believe that's possible, but not if we enact the Intelligence Committee bill.

Mr. President, I yield the floor and suggest the absence of a quorum.

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