FISA Amendments Act of 2007

Floor Speech

Mr. BOND. Mr. President, I am sorry I was not here for all of my colleague's descriptions of his two amendments. But let me make one thing clear. What he is laying out is a scenario that does not exist. He is raising all kinds of concerns that are dealt with in the underlying bill. They are dealt with by the Constitution of the United States. They were dealt with by the Protect America Act.

I can assure the American public that we are not collecting all of the communications they send overseas and reading them and listening to them and using them in some way that violates the fourth amendment or the provisions of these two measures.

Before we actually have a vote on these measures, we will talk about them more in detail. I think he raised the reverse targeting amendment first. Let me be clear and explain that you cannot target a person inside the United States without a court order. All acquisitions must comply with the fourth amendment.

Last week we agreed to an amendment offered by Senator Kennedy which ensures that the authorities in this bill will not be used to acquire communications where the sender and all intended recipients are known to be in the United States. That has to be with a FISA Court order if you are targeting somebody in the United States. This is an explicit, bright-line prohibition against reverse targeting in the current bill. If one would look at page 6 of the statute, section 703(b)(2), I will read it for you. It says:

An acquisition authorized under subsection (a) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular known person reasonably believed to be in the United States except in accordance with title I or title III.

It does not get much clearer than that. So if the purpose in targeting someone outside the United States is actually to target a person inside the United States, you cannot use the authorities under this bill. It is clear. That is what the DNI stated his purpose was; that is what the bill provides. You have to get a FISA Court order if you are targeting somebody. You cannot do it by the back door.

Now, I heard yesterday some far-out explanations that a family whose child goes overseas to go to school, we would be listening in on those conversations. That is absolutely nonsense. If that is a United States person, we could not even target that United States person abroad, and we certainly do not target someone in the United States without a court order. We have provisions to assure that the United States person who goes overseas cannot be targeted without an application to the FISA Court. Quite simply put, that does not happen.

Now, if somebody is calling a suspected terrorist overseas, one on whom we have initiated collection because of intelligence sources certified by the Attorney General and the Director of National Intelligence, this person has significant terrorist information, significant intelligence information, foreign intelligence information, if one were to call that number, then it is possible, it is likely, and we would expect that they would find out what is in that call.

If it is an innocent call, if it has nothing to do with terrorist activity, it is immediately suppressed; ``minimized'' is the term. They do not even record the name of the United States person.

But when calls come from outside the United States into the United States from a person, a known terrorist abroad, or when they initiate the call, someone from the United States does, then what we must do is find out if they are talking about planned terrorist activity in the United States. That is the most important collection we can make. We have lots of important information targeting foreign terrorists, suspected terrorists, foreign intelligence targets overseas that is useful to our allies in protecting their countries. There are lots of instances where we have done that or when they are--and that does not require minimization, and it should not. But the information that is used is only that information which applies to a direct threat, a terrorist threat, or other significant foreign intelligence value. If a United States person is involved in that, if there is an involvement of the terror plot in the United States or elsewhere, then that information would be accepted, and if it is necessary to collect further against that American citizen or United States person, then they have to go through the normal procedure. Probably the FBI would get their normal search warrant and go after that person and determine what role, if any, he or she has in carrying out terrorist activity. So in addition to the bright-line test, there is clear oversight authority. There is oversight exercised by the supervisors at NSA, by the inspector general, by the Department of Justice, whose lawyers oversee it, and by our Intelligence Committee to make sure that the prohibitions on reverse targeting are being observed.

If this proposal were to be accepted, the uncertainty, the operational uncertainty of determining what a purpose is in reverse targeting would make this an impossible situation for an analyst to observe and to make that determination. There is a clear prohibition against reverse targeting.

The other amendment which he brought up, 3912, is on bulk collection. The bipartisan Intelligence bill contains numerous provisions to ensure that acquisitions targeting foreign terrorists overseas--that is foreign terrorists overseas--comply with the fourth amendment and follow court-approved targeting. It gives clear protection, as I said earlier, against reverse targeting.

The amendment that has been proposed under 3912 has some very negative consequences for protecting our troops abroad. This amendment, for example, would prevent the intelligence community from targeting a particular group of buildings or geographic area where, for example, terrorist activity is known to be occurring, and preventing them from collecting signals intelligence prior to operations by our Armed Forces.

If there is an area which has significant terrorist activity, to say we cannot collect all of the communications coming out of that area to identify who the terrorists might be, whether there are innocent persons involved before our military goes in, does not make any sense, because if we send our military in, they are going in and probably going to be using significant lethal force.

Had this bulk collection provision been in place, it would have prevented our troops from conducting surveillance in Fallujah, for example, prior to their military operations.

The details on this are classified. We can provide more information in a secure setting. But this amendment, according to the Director of National Intelligence and the Attorney General, ``could have serious consequences on our ability to collect necessary foreign intelligence information, including information vital to conducting military operations abroad and protecting the lives of our servicemembers, and it is unacceptable.'' I agree with them because I have had the opportunity to learn how the system operates. My colleague from Wisconsin has. I believe it is very clear from the information we have received and the knowledge we have about it that the evils which he purports to address are evils that do not exist. I strongly urge my colleagues to oppose both amendments.

I reserve my time.

BREAK IN TRANSCRIPT

Mr. BOND. Mr. President, there are quite a few things I disagree with that my colleague from Wisconsin has brought up. No. 1, he said the administration instituted an illegal wiretapping program. That is not true. That is wrong. I reviewed the documents on which they based it--article II, and the authorization for use of military force. That was not an illegal effort. But that is a debate for another time. The administration did advise the leaders of Congress what they were going to do. The big eight were advised, and they did not deem any legislation advisable at the time.

Secondly, he gives me too much credit in saying it is only the word of one Senator that his amendments are unworkable and unnecessary. This was brought up and debated in the Intelligence Committee. We spend our time overseeing intelligence collection. It was not adopted there. It was withdrawn.

If my colleague has any evidence that there are any violations in reverse targeting or bulk collection of the fourth amendment of the Constitution or other violation of privacy rights, then I suggest he bring them up in our Intelligence Committee in closed session where we can debate all the activities that are going on. I assume he has been out to NSA to see how it operates. He has been in and had the opportunity to question leaders of the intelligence community. He says there is a total lack of substance. I have to say there is a total lack of substance to the allegations he makes. There are legitimate concerns which we address in this bill by specifically prohibiting reverse targeting. It is specifically prohibited in this bill. I have to say the people who run the program are the ones who have told us the additional bells and whistles he wants to put on for no reason or even reasonable prospect of violations would make it impossible to carry out the business of collection on foreign terrorists with potential activities in the United States.

Again, there will be others who will discuss this. But it is not the word of one Senator. It is the word of a majority of the Intelligence Committee, and it is the word of the intelligence community itself, backed up by the Attorney General, that this is unwise, unnecessary, that these amendments would significantly hamper the ability of the intelligence community to conduct its operations.

I reserve the remainder of my time.

BREAK IN TRANSCRIPT

Mr. BOND. Mr. President, I thank my good friend from Connecticut for the kind words. We are delighted to have him back, although some would wish that he were otherwise occupied tonight. But we welcome him back and welcome him to the debate. I express my appreciation for the kind words he said about me in Iowa. It didn't do much good in Iowa, but I always appreciate them.

On this debate, however, I respectfully say that my good friend, with whom I have worked on many measures and intend to work with on many more, is dead wrong. He is correct that the FISA law was passed in 1978, but the problem is it has been superseded by technological changes. The technology of transmission of signals changed significantly. He probably was not here when I mentioned it earlier, but when the terrorists struck on 9/11, there was a question of how we could prevent further attacks that were planned and some of them were under way. The appropriate intelligence community officials recommended electronic surveillance and noted that since the laws had not changed, but technology had changed, it was quite likely that FISA, as it existed from 1978, even with minor tweaks, would not accommodate the collection that was needed. The intelligence community leaders and the administration leaders addressed this with the Gang of 8, the leaders of both parties, both Houses, and both sides of leadership on the Intelligence Committees, and they concluded that there was not time to change the law, so the President went ahead, using his article II powers as enhanced by the authorization for the use of military force. The President issued orders and, for the most part, the Attorney General signed off on it when he was available. The Director of National Intelligence issued them, and companies, understanding the urgency of providing collection against foreign terrorists--this was directed against foreign terrorists calling into the United States--complied.

Now, the fact that one or two may not have complied speaks no praise for those companies, because if they failed to comply with what I have reviewed and believe to be valid orders of the Federal Government, and as a result, communications that might have tipped off an imminent attack on the United States of America were missed, then it would be a great shame for those companies.

Now, I cannot speak for the other body. I do say that the Judiciary Committee, which has broad jurisdiction over many important things--and I respect the leadership of that Committee--doesn't spend the time that we in the Intelligence Committee do on intelligence matters--going out to NSA, having people come before us, being briefed, going through laboriously technical operations that allow these searches and surveillance, and going through and listening and observing the means of assuring that these functions are carried out in compliance not only with constitutional directions but the regulations and the statutes of the United States is very important. We have seen the oversight. There is the supervisor and the inspector general who act as an independent check; the Department of Justice lawyers who come and review it from their standpoint; but also the Intelligence Committees in both Houses, which have not only the right but the responsibility to oversee this.

Based on that, our committee determined and reported out a measure saying it was absolutely essential for the continued security of this country to eliminate lawsuits that had been filed against a number of carriers alleging that they may have participated in this activity.

Now, why is that a problem? Well, today, we had open hearings involving the DNI, the Director of the FBI, the Director of the CIA, the Director of the Defense Intelligence Agency, and the Deputy Secretary of State for the INR Division. We asked all of them why it was essential that they provide retroactive liability protection.

The first and most important concern raised was that allowing these lawsuits to continue against the company--my colleague from Connecticut is right. We permit cases to go forward against the Government or Government officials. We are just protecting private companies. It is the pleadings, the discovery, and the testimony that would inevitably tell us, and the terrorists, much more about the operations of the program than the terrorists ought to know. In May of 2006, after the disclosures of this terrorist surveillance, GEN Mike Hayden came before our committee for confirmation. I asked him: What impact has the disclosure of our terrorist surveillance program had on the collection of intelligence from foreign terrorists and suspected terrorists? He smiled and said, ruefully: We are applying the Darwinian theory to terrorists. We are only collecting the dumb ones.

I can assure you the people we want to listen in to are the very clever, very witty, very diabolical, murderous heads of al-Qaida and other terrorist organizations who want to do great bodily harm to the United States. They think, what we can do to tell them more about it, which would tell them how to evade even the means of collection that we have left available, that would leave our intelligence community deaf and blind to threats not only to this country, which is most important to all of us but to our allies and our troops overseas.

All the heads of the intelligence agencies I mentioned said one of the most important things we can do is provide this retroactive liability protection because, without it, then the private carriers--the telecom companies--will no longer participate voluntarily to requests from Government entities. We have many areas where the telecommunications companies work with the Federal Government--whether it is tracking a missing child, tracking down a sex offender or, on another level, breaking up a drug cartel or, on another level, protecting against cyber attacks from other countries. If litigation is allowed to proceed against these companies, not only will it likely describe in detail the means that our intelligence community uses to collect information, it will put the companies in such dire straits in terms of business reputation here and abroad that it will be a very serious blow to the shareholders, to the pension funds that own the companies, and it will lead the counsel for those companies to say: never participate with the Federal Government again.

This could be a disaster for effective collection. I believe it was the consensus of those present at our hearing today--the Director of the FBI, the Director of CIA, the general in charge of the Defense Intelligence Agency, Under Secretary in charge of INR, and Admiral McConnell, the DNI--that retroactive liability protection for any carriers that may have participated, as well as carriers that are getting sued that didn't participate, that cannot exercise the state secrets to protect them, it will ensure that we don't get protection, don't get the cooperation from these telecommunications carriers when we need it.

We have worked hard on this measure. After reviewing all the information available to us, including opinions and authorizations that we reviewed in the executive office, the committee determined, on a strong bipartisan basis, that the providers acted in good faith pursuant to representations from the highest level of the Government, that the TSP was lawful.

We worked hard to fashion a limited liability protection provision that serves the dual purpose of ending the litigation against the providers while allowing the cases against the Government to continue. Go ahead and attack the Government. There is no shortage of that in this body. I have heard it previously earlier today. That is part of our role on a partisan basis. We exchange criticism of the other party and particularly the administration when it is of the other party. We can make our best arguments. But we need to stop investigations, for example, by State public utility commissions of the providers' conduct under the TSP.

These investigations involve very sensitive, classified information that no public service commission or public utility commission is competent to handle, maintaining the secrecy, the confidentiality we need of our collection methods. We know this program has inflicted no harm on our citizenry and has protected us from harm.

I invite my colleagues, once again, to go to the fourth floor confidential classified hearing room or come to the Intelligence Committee's offices in Hart, if they want to see, from the Director of National Intelligence, a list of things that have been accomplished under the Protect America Act because collecting this electronic information is vitally important. It is right up there with interviewing detainees--high-value detainees--in providing us our most valuable information. To strike this provision of retroactive liability protection from the bill would significantly lessen our ability to collect intelligence and will make our country much less safe.

I ask that my colleagues vote against it. I will shortly yield time to my colleague and the chairman of the committee. At this point, I ask unanimous consent that the pending amendment be temporarily set aside.

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