Kennedy in Support of Judiciary Committee FISA Bill
Mr. President, I strongly urge my colleagues to support this substitute amendment and pass the FISA bill reported by the Judiciary Committee. Since I introduced the original FISA legislation over 30 years ago, I've worked to amend the FISA law many times, and I believe that only the bill reported by the Judiciary Committee is faithful to the traditional balance that FISA has struck. FISA remains an essential tool in our battle against America's enemies, and the bills introduced by both the Judiciary Committee and the Intelligence Committee give the Executive Branch vast new authority to conduct electronic surveillance that may involve Americans. But the Intelligence Committee bill lacks safeguards to provide oversight and prevent abuse. Americans deserve better.
The Foreign Intelligence Surveillance Act is one of our landmark statutes. For three decades, it has regulated government surveillance in a way that protects both our national security and our civil liberties and prevents the government from abusing its powers. It is because FISA enhances both security and liberty that it has won such broad support over the years from presidents, members of Congress, and the public alike. It is important to remember that before this Administration, no Administration had ever resisted FISA, much less systematically violated it.
When the Bush Administration finally came to Congress to amend FISA after its warrantless wiretapping program was exposed, it did so not in the spirit of partnership, but to bully us into obeying its wishes. The Protect America Act was negotiated in secret at the last minute. The Administration issued dire threats that failure to enact a bill before the August recess would lead to disaster. Few, if any, knew what the language would actually do. The result of this flawed process was flawed legislation, which virtually everyone now acknowledges must be substantially revised.
I commend the members of the Intelligence Committee for their diligent efforts to put together a new bill. They've taken their duties seriously, and they've made some notable improvements over the Protect America Act.
But their bill is deeply flawed, and I am strongly opposed to enacting it in its current form. This bill fails to protect Americans' constitutional rights and fundamental freedoms. It's not just that the Intelligence Committee bill gives retroactive immunity to the telecoms, which I strongly oppose. There are also many problems with Title I of the Intelligence Committee bill:
* It redefines "electronic surveillance," a key term in FISA, in a way that is unnecessary and may have unintended consequences. We have still not heard a single good argument for why this change is needed.
* Court review occurs only after-the-fact, with no consequences if the court rejects the government's targeting or minimization procedures. This is a far cry from the traditional role played by the FISA court.
* It's not as clear as it should be that FISA and the criminal wiretap law are the sole legal means by which the government may conduct electronic surveillance. This leaves open the possibility that future Administrations will claim they are not bound by FISA.
* Its sunset provision is December 31, 2013. For legislation as complicated, important, and controversial as this, Congress should reevaluate it much sooner. After all, the principal argument in support of reforming FISA is that technology has evolved rapidly and the law must change to take this into account. Because this legislation will make major, untested changes to the FISA system and the pace of technological change will only increase, we should evaluate it sooner rather than later.
* The bill purports to eliminate the "reverse targeting" of Americans, but does not actually contain language to do so. Reverse targeting can occur if the government wiretaps someone abroad because it wants to listen to a correspondent in the United States, thereby evading the traditional warrant requirement for domestic surveillance. The Intelligence Committee bill has nothing similar to the House bill's provision on reverse targeting, which prohibits use of the authorities if "a significant purpose" is targeting someone in the United States.
* It does not fully close the loophole left open by the Protect America Act, allowing warrantless interception of purely domestic communications. The Administration has acknowledged that when it knows ahead of time that both the person making the call and the person receiving the call are located inside the United States, it should have to get a court order before it can listen in on that call. But the language of the bill does not clearly require this.
* It does not require an independent review and report on the Administration's domestic warrantless eavesdropping program. Only through such a process will we ever learn what happened and achieve accountability and closure on this episode.
Add it all up, and the sum is clear: this bill is inconsistent with the way FISA was meant to work, and it's inconsistent with the way FISA has always worked.
Fortunately, the Judiciary Committee's FISA bill shows that there is a better wayone that is faithful to the traditional FISA balance. The Judiciary Committee bill shares the same basic structure, but it addresses all of the problems I listed above. The Judiciary bill was negotiated in public, which allowed outside groups and experts to give critical feedback. It was also negotiated later in time than the Intelligence bill, meaning we had the benefit of reviewing their work.
Like the Intelligence Committee's bill, the Judiciary Committee's version also gives the Executive Branch significantly greater authority to conduct electronic surveillance than it has ever had before. Make no mistake, it too grants substantial power to the intelligence community. But unlike the Intelligence Committee's bill, the Judiciary Committee's version sets reasonable limits that protect innocent Americans from being spied on by their government without justification.
No one should underestimate the importance of Title I of FISA. The rules governing electronic surveillance affect every American. They are the only thing that stands between the freedom of Americans to make a phone call, send an e-mail, and search the Internet, and the ability of the government to listen in on that call, read that e-mail, and review that Internet search.
In our information age, Title I of FISA provides Americans essential protections against government tyranny and abuse. We have a choice. We can adopt the Judiciary Committee bill and preserve those protections, or we can adopt the Intelligence Committee's version of Title I and abandon them.
As I've said before, I also strongly oppose Title II of the Intelligence Committee bill, which grants retroactive immunity to the phone companies. At the appropriate time, I will come back to the floor to explain why we must also strike Title II from the bill.