FISA -- (Senate - January 29, 2008)
Mr. COBURN. Mr. President, at the end of this week, Americans may find themselves at greater risk of a terrorist attack when the Protect America Act expires on February 1. On that date, we will be forced to revert to the antiquated 1978 Foreign Intelligence Surveillance Act, or FISA, to monitor the communications of suspected terrorists, unless this Congress moves quickly to make permanent changes to that law. It is therefore critical for Congress to enact permanent modernizations to FISA so that our intelligence officials will have every tool they need to monitor the communications of terrorists who seek to destroy the United States.
The consequences of allowing the Protect America Act to lapse could be deadly. The PAA was passed last August to modernize FISA so that the statute could do in practice what it was always intended to do--govern certain foreign intelligence surveillance activities directed at persons in the United States, without inadvertently burdening those activities directed at persons overseas. FISA, however, has not kept up with technological advances that have been made since 1978. As a result, prior to the PAA, intelligence officers were often forced to obtain a court order before beginning surveillance against a terrorist or other foreign target located in another country. This unnecessary and burdensome requirement caused U.S. intelligence agencies to lose about two-thirds of their ability to collect communications intelligence against al-Qaida.
Thankfully, the Protect America Act helped to close the inexcusable gap that left this country blind to the plans our enemies were making against us. As Director of National Intelligence Michael McConnell said, the PAA has ``allowed us to obtain significant insight into terrorist planning.'' To allow such a vital antiterror tool to lapse at this time would be the ultimate dereliction of duty.
The United States must remain vigilant against a terror threat that is real and constant. The National Intelligence Estimate on ``The Terrorist Threat to the US Homeland,'' released just 6 months ago, concluded that this country will face a ``persistent and evolving'' terrorist threat over the next 3 years, particularly from Islamic terrorist groups and cells like al-Qaida. No person in America is unfamiliar with the capabilities and determination of such terrorist groups, and Americans trust us to make the right decisions to protect them and their children. Without making permanent changes to FISA to ensure the fast and effective intercept of foreign intelligence information, little else we do will matter.
Retroactive immunity is in the best interest of this Nation's security and must be included in FISA modernization, as it was in the Intelligence Committee bill. Following the attacks of September 11, 2001, President Bush authorized the National Security Agency to intercept international communications into and out of the United States of persons linked to al-Qaida or related terrorist organizations. The administration's obvious and stated purpose of this authorization was to ``establish an early warning system to detect and prevent another catastrophic terrorist attack on the United States.'' Therefore, the administration made requests for telecom companies to cooperate with its intelligence activities. The companies complied with the government's request for help, relying on written assurance from the executive branch that their actions were both necessary and legal.
Now these companies face multibillion dollar lawsuits challenging their actions. Such lawsuits not only create potentially staggering liability for the companies, they also create the risk that sensitive details about our intelligence sources and methods will be revealed through discovery. Moreover, failing to protect those who cooperate with the Government to thwart terrorist activity will undermine the willingness of others to cooperate in the future. A powerful op-ed authored last October by former Attorneys General Benjamin Civiletti, Dick Thornburgh, and William Webster, said it best:
The government alone cannot protect us from the threats we face today. We must have the help of all our citizens. There will be times when the lives of thousands of Americans will depend on whether corporations such as airlines or banks are willing to lend assistance. If we do not treat companies fairly when they respond to assurances from the highest levels of the government that their help is legal and essential for saving lives, then we will be radically reducing our society's capacity to defend itself.
Recognizing the gravity of the situation, the bipartisan Senate Intelligence Committee voted 13 to 2 to include retroactive immunity in its bill. This overwhelming vote came after the committee reviewed the classified documents on which these companies relied. The committee ultimately concluded that the Government ``cannot obtain the intelligence it needs without assistance from [telecommunications] companies.''
Protecting the corporate good citizens who answered the call to assist our intelligence community during a time of great danger to this country is the right thing to do. Anything short of full immunity for those companies that, at the Government's request, on the written assurance that such action had been authorized by the President and deemed lawful, would undermine the security of the United States is simply unacceptable.
The carefully crafted, bipartisan Senate Intelligence Committee bill protects privacy interests without undermining our intelligence community's ability to do its vitally important job. The bill was approved by a vote of 13 to 2 after careful consideration of complicated issues and classified documents. It will allow our intelligence professionals to continue collecting foreign intelligence against foreign targets located outside the United States without requiring prior court approval. This is consistent with the intent of the legislators who enacted FISA in 1978 and represents no change in the way that the NSA has always conducted foreign surveillance.
In so doing, the bill will also continue to protect the civil liberties of Americans in this country, surveillance of whom has always required prior court approval. Nothing we are considering in the Senate today would alter that. In the event that communication from a U.S. person is inadvertently intercepted, the intelligence community uses ``minimization procedures'' to suppress the data. The result is that the communication is never used or shared. These procedures have been used effectively for 30 years and will remain in place after permanent FISA changes are enacted.
Enacting permanent modernizations to FISA is one of the most important duties the Senate will undertake this year. We have known for 6 months that the Protect America Act would expire on February 1 and have no excuse for not getting this done correctly before that date. The stakes in this debate could not be higher. Although the details can be complicated, the basic issue is pretty simple. As Andy McCarthy said in a recent piece for the National Review Online, ``Osama bin Laden doesn't need to apply to a sharia court before blowing up an American embassy; the president shouldn't need to apply to a federal court to try to stop him.''
Unfortunately, I was unable to make it back to town in time for the two cloture votes that were held yesterday. Had I been here, I would have voted for cloture on Rockefeller amendment No. 3911, the Intelligence Committee's FISA bill, and against cloture on Reid amendment No. 3918, to temporarily extend the Protect America Act.
I suggest the absence of a quorum.