FISA Amendments Act of 2007

Floor Speech

FISA AMENDMENTS ACT OF 2007 -- (Senate - February 11, 2008)

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Mrs. FEINSTEIN. Mr. President, I rise to speak on two of the amendments in the list of amendments to be voted on tomorrow. The first is amendment 3910. That relates to making the Foreign Intelligence Surveillance Act the exclusive authority for conducting electronic surveillance. This is cosponsored by Chairman Rockefeller, Chairman Leahy, by Senators Nelson of Florida, Whitehouse, Wyden, Hagel, Menendez, Snowe, Specter, Salazar, and I ask unanimous consent to add Senator Cantwell to that list.

The PRESIDING OFFICER. Without objection, it is so ordered.

Mrs. FEINSTEIN. For the information of my colleagues, I do not intend to modify this amendment, and so I will be seeking a vote on the amendment as it is currently drafted.

I voted in support of the FISA bill as a member of the Intelligence Committee. But I made clear in that committee, as well as in statements called additional views, which are attached to the report of the bill, that I coauthored with Senators Snowe and Hagel that changes were necessary.

In the Judiciary Committee, we were able to secure improvements to the Intelligence Committee's bill that I believed were needed. Most importantly, the Judiciary Committee added strong exclusivity language similar to the amendment I have now before the Senate.

Unfortunately, the Judiciary package was not adopted on the floor. So the amendments we present are designed to restore the exclusivity language I believe is vital to FISA and goes to the heart of the debate on this bill, which is whether this President or any other President must follow the law.

With strong exclusivity language, which is what we try to add, we establish a legislative record that the language and the intent of the Congress compels a President now and in the future to conduct electronic surveillance of Americans for foreign intelligence purposes within the parameters and confines of this legislation.

The amendment makes the following important changes to the bill:

First, it reinforces the existing FISA exclusivity language in title 18 of the U.S. Code by restating what has been true in the statute since 1978--that FISA is the exclusive means for conducting electronic surveillance, period. So legislative intent is clear.

Second, the amendment answers the so-called AUMF; that is, the authorization to use military force loophole used by the President to circumvent FISA.

What is that? The administration has argued that the authorization of military force against al-Qaida and the Taliban implicitly authorized warrantless electronic surveillance. This is an argument embroidered on fiction, made up from nothing.

Nonetheless, the executive has chosen to use it.

Under our amendment, it will be clear that only an express statutory authorization for electronic surveillance in future legislation shall constitute an additional authority outside of FISA. In other words, if you are going to conduct surveillance outside of FISA, there has to be a law that specifically enables you to do so. Otherwise, you stay within FISA.

Third, the amendment makes a change to the penalty section of FISA. Currently, FISA says it is a criminal penalty to conduct electronic surveillance except as authorized by statute. This amendment specifies that it is a criminal penalty to conduct electronic surveillance except as authorized by FISA or another express statutory authorization. This means that future surveillance conducted under an AUMF or other general legislation would bring on a criminal penalty. So follow the law or else there is a criminal penalty.

Fourth, the amendment requires more clarity in a certification the Government provides to a telecommunications company when it requests assistance for surveillance and there is no court order. Henceforth, the Government will be required to specify the specific statute upon which the authority rests for a request for assistance.

I believe our amendment will strengthen the exclusivity of FISA. I believe it is critical. Without this strong language, we run the risk that there will be future violations of FISA, just as there have been present violations of FISA. History tells us that this is very possible.

Let me go into the history for a minute because it is interesting how eerily similar events of the past were to events of today. Let me tell this body a little bit about something called Operation Shamrock.

In its landmark 1976 report, the Church Committee disclosed, among other abuses, the existence of an Operation titled ``Shamrock.'' What was Shamrock? It was a program run by the NSA and its predecessor organizations from August of 1945 until May of 1975. That is, for 30 years, the Government received copies of millions of international telegrams that were sent to, from, or transiting the United States. The telegrams were provided by major communications companies of the day--RCA Global and ITT World Communications--without a warrant and in secret. A third company, Western Union International, provided a lower level of assistance as well.

It is estimated that at the height of the program, approximately 150,000 communications per month were reviewed by NSA analysts. So telegrams coming into the country and going out of the country all went through NSA.

According to the Church Committee report, the companies agreed to participate in the program, despite warnings from their lawyers, provided they received the personal assurance of the Attorney General and later the President that they would be protected from lawsuit.

The NSA analyzed the communications of Americans in these telegrams and disseminated intelligence from these communications in its reporting.

If all of this history sounds eerily familiar, it should. The parallels between Shamrock and the Terrorist Surveillance Program are uncanny, especially when one considers that FISA was passed in 1978 as a direct result of the Church Committee's report. Yet here we are, same place, again today.

Almost immediately after the Church Committee's report was unveiled, Congress went to work on what is now the Foreign Intelligence Surveillance Act to put an end to warrantless surveillance of Americans. FISA states that when you target surveillance on Americans, you need a court order, period.

Some of my colleagues argue that FISA was not the exclusive authority since 1978 and that the President has inherent article II authorities to go around FISA.

On the first point, the legislative history and congressional intent from 1978 is clear: Congress clearly intended for FISA to be the exclusive authority under which the executive branch may conduct electronic surveillance.

Let me read what the Congress wrote in 1978 in report language accompanying the bill:

[d]espite any inherent power of the President--

That means despite any article II authority-- to authorize warrantless electronic surveillance in the absence of legislation, by this bill and chapter 119 of title 18, Congress will have legislated with regard to electronic surveillance in the United States, that legislation with its procedures and safeguards, prohibits the President, notwithstanding any inherent powers, from violating the terms of that legislation.

That is the report language written in 1978.

The congressional debate also took on the Supreme Court's decision in the Keith case in which the Court ruled that since Congress hadn't enacted legislation in this area at that time, then it simply left the

Presidential powers where it found them. Right? Wrong. In response to the Court's decision, the 1978 congressional report stated the following:

The Foreign Intelligence Surveillance Act, however, does not simply leave Presidential powers where it finds them. To the contrary, this bill would substitute a clear legislative authorization pursuant to statutory, not constitutional, standards.

Clear. Distinct. Definitive.

It is important that the record here today clearly reiterates that in 1978 there was an unambiguous position that FISA was the exclusive authority under which electronic surveillance of Americans could be conducted. This was in the bill language and the report language as passed by the 95th Congress.

But FISA's exclusivity was recognized not just by the Congress. The executive branch also agreed that FISA was controlling and that any and all electronic surveillance would be conducted under the law.

President Carter at the time issued a signing statement to the bill. This wasn't a signing statement like we see today. It was not used to express the President's disagreement with the law or his intent not to follow part of the law. Rather, President Carter used his statement to explain his understanding of what the law meant.

Here it is in direct quote:

The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted.

Again, clear, distinct, definitive.

By issuing this statement, President Carter and the executive branch affirmed not only Congress's intent to limit when the executive branch could conduct surveillance, but it ratified that Congress had the power to define the parameters of executive authority in this area.

So there was an abuse--Operation Shamrock--similar to this incident with the telecoms today, followed by a clear act of Congress in passing FISA, followed by a clear statement of the executive affirming the meaning of FISA. Together, these acts were taken to end the exercise of unchecked executive authority. Here we are, back in 1978 today.

Despite the 1978 language and Congress's clear willingness to amend FISA to make it apply to the new war against terrorism early in its tenure, the Bush administration decided that it would act outside the law. This was a conscious decision. Not one part of FISA was ever tried to be put under the auspices of the FISA law and the Foreign Intelligence Surveillance Court. That was both wrong and unnecessary.

To justify this mistake, the Department of Justice developed a new convoluted argument that Congress had authorized the President to go around FISA by passing the authorization for use of military force against al-Qaida and the Taliban. Can anybody really believe that? This, too, was wrong. I was there. I sat in most meetings. I defy anybody in this body to come forward and tell me privately or publicly that going around FISA was ever contemplated by the AUMF. In fact, it was not. It was never even considered.

Apparently not confident of its AUMF argument, the administration decided to also assert a broad theory of Executive power, premised on Article II of the Constitution. These are the powers of the President.

Under this argument, the Bush administration asserted that despite congressional action, the President has the authority to act unilaterally and outside of the law if he so chooses, simply by virtue of his role as Commander in Chief. While Presidents throughout history all tried to expand their power, this new twist would place the President of the United States outside the law. Taken to its logical conclusion, if the Congress cannot enact statutes that the President must follow, then he is above the law. I disagree with that position. I do not believe anyone can be above the rule of law. But I am not the only one.

Justice Jackson described it best in his Youngstown opinion. In 1952, against the backdrop of the Korean war, the Supreme Court addressed the issue of when congressional and executive authorities collide in the Youngstown Sheet and Tube Company v. Sawyer. The question presented in Youngstown was whether President Truman was acting within his constitutional powers when he issued an order directing the Secretary of Commerce to take possession of and operate most of the Nation's steel mills. In other words, the Government was going to take over the steel mills.

The Truman administration argued that the President was acting within his inherent power as Commander in Chief in seizing the steel mills, since a proposed strike by steelworkers would have limited the Nation's ability to produce the weapons needed for the Korean war.

The Bush administration today is making the very same argument. It is asserting that the President's constitutional authorities as Commander in Chief trump the law. However, in a 6-to-3 decision in Youngstown, the Supreme Court held that President Truman exceeded his constitutional authority.

Justice Jackson authored the famous concurring opinion, setting forth the three zones into which Presidential actions fall.

The first zone: When the President acts consistently with the will of Congress, the President's power is at its greatest.

Two: When the President acts in an area in which Congress has not expressed itself, there is an open question as to the scope of congressional and Presidential authority. So we know the first two.

The third zone: When the President acts in contravention of the will of Congress, Presidential power is at its lowest.

That is where we are right now. Clearly, President Bush acted outside of the scope of the law. According to Youngstown, his power is at its lowest. The only way to test that is to bring a case before the Supreme Court again. But the fact the Court ruled against Truman in a situation of war--in a situation where a strike would have shut down the steel mills, when Truman tried to use his commander in chief authority to seize the steel mills, the Court said: You cannot do that, and then it went on to define the different zones of Presidential authority. It is a big opinion, and it is one which is often quoted in our judicial hearings on Supreme Court nominees.

Justice Jackson also wrote:

When the President takes measures incompatible with the expressed or implied will of Congress--

Which is this case--

his power is at its lowest ebb, for then he can rely only on his constitutional powers, minus any constitutional powers of Congress over the matter.

Now, this is key, this last part: Although Justice Jackson's opinion was not binding at the time, the Supreme Court has since adopted it as a touchstone for understanding the dimensions of Presidential power. The Youngstown case is as important today as it was then.

That is why I am proposing this amendment. I want to make it crystal clear, and my cosponsors want to make it crystal clear, that Congress has acted to prohibit electronic surveillance on U.S. persons for foreign intelligence purposes outside of FISA, and this amendment does that.

One day this issue is going to be before the Court, and on that day I want the Justices to be able to go back and see the legislative intent; the legislative intent as it was in the Judiciary Committee, the legislative intent as it is here on the floor, and the legislative intent of this amendment to strengthen the exclusivity parts of FISA.

What we have here is a case of history repeating itself: abuse followed by a clear statement from Congress, then another abuse with the Terrorist Surveillance Program. It too should be followed by a clear statement from Congress.

Now is the time for the Congress of the United States to reassert its constitutional authorities and pass a law that clearly and unambiguously prohibits warrantless surveillance outside of FISA. Now is the time to say that no President, now or in the future, can operate outside of this law.

I mentioned that in 2001 the President chose to go outside of FISA. In January of 2007, after the Intelligence Committee learned about the full dimensions of the law, guess what. The executive branch brought it to the Court and bit by bit put the program under the Foreign Intelligence Surveillance Court. Today, the entire program is within the parameters of the Foreign Intelligence Surveillance Court.

What I am saying to this body is it was a terrible misjudgment not to do so in 2001, because I believe the Foreign Intelligence Surveillance Court would have given permission to the program. So I believe this amendment is absolutely crucial, and I very much hope it will pass tomorrow.

Now, if I may, I wish to speak in support of my amendment to replace the full immunity in the underlying bill with a system of FISA Court review. This is amendment No. 3919. I am joined in this amendment by Senators Bill Nelson, Ben Cardin, and Ken Salazar. I ask unanimous consent to add Senator Whitehouse as a cosponsor, and I know that Senator Whitehouse wishes to come to the floor to speak to this amendment.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

Mrs. FEINSTEIN. This amendment is about allowing a court to review the request for immunity for the telecommunications companies, but in a way that is carefully tailored to meet this unique set of suits. It allows for the good faith defense if the companies reasonably believed the assistance they provided the Government was legal.

As Members know, the FISA Court comprises 11 Federal district court judges appointed by the Chief Justice. It has heard thousands of applications for FISA warrants and has recently made determinations on the executive's procedures under the Protect America Act. In January of 2007, the Court put the entire Terrorist Surveillance Program under its jurisdiction. Its judges and its staff are experts in surveillance law, and the Court protects national security secrets.

Let me describe the amendment briefly. Under this amendment, the FISA Court is directed to conduct a tailored, three-part review.

Part one: The FISA Court will determine whether a telecommunications company actually provided the assistance to the Federal Government as part of the Terrorist Surveillance Program. If not, those cases are dismissed. So if you didn't give help and you have litigation pending, the case is dismissed, period.

Second: If assistance was provided, the Court would review the request letters sent from the Government to the companies every 30 to 45 days. The FISA Court would then have to determine whether these letters, in fact, met the requirements of the applicable law. There is law on this. It is part of FISA. It is 18 U.S.C. 2511. If they met the requirements, the cases against the companies are dismissed.

Now, let me tell my colleagues what the law says. Sections 2511(2)(a)(ii)(A) and (ii)(B) state that companies are allowed to provide assistance to the Government if they receive a certification in writing by a specified person (usually the Attorney General or a law enforcement officer specifically designated by the Attorney General).

The certification is required to state that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required by the Government. Now that is what the law says. It is short, it is succinct, it is to the point.

The question is: Do the specifics of the actual documents requesting assistance meet the letter of this law with respect to contents and timing. If they did, the companies would be shielded from lawsuits. Why? Because that is the law. That is what the law says. No one would want us not to follow the law.

Finally, in any case where the defendant company did provide assistance but did not have a certification that complied with the requirements I have read, the FISA Court would assess whether the company acted in good faith, as has been provided under common law.

There are several cases of common law that describe what is called the good faith defense--the U.S. v. Barker, Smith v. Nixon, Halperin v. Kissinger, and Jacobson v. Bell Telephone. So there is common law on the subject.

There would be at least three lines of defense for defendant companies in this situation. They could argue that the assistance was lawful under the statutes other than 18 U.S.C. 2511--the law I have cited; that they believed, perhaps wrongly, that the letters from the Government were lawful certifications; or that complying with the request for assistance was lawful because the President had article II authority to conduct this surveillance. They could make their arguments, and the plaintiffs, against the defendant companies, could make their arguments.

In this case, the FISA Court would then determine whether the company acted in good faith and whether it had an objectively reasonable belief that compliance with the Government's written request or directives for assistance were lawful. If the Court finds that the company met this standard, the lawsuits would be dismissed.

I believe this very narrow three-part test strikes the right balance between the competing interests in the immunity debate. This amendment neither dismisses the cases wholesale, nor does it allow the cases to proceed if the companies had an objectively reasonable belief that their compliance was lawful.

Let me point out for a moment some of the history relevant to this issue.

First: Requests for assistance from the Government to the telecoms came about 1 month following the worst terrorist attack against our Nation. That is fact. There was an ongoing acute national threat. That is a fact. The administration was warning that more attacks might be imminent. That was fact. And we now know that there was a plot to launch a second wave of attacks against the west coast.

Two: Certain telecom companies received letters every 30 to 45 days from very senior Government officials. That is fact. I have read them. The letters said the President had authorized their assistance. That is fact. They also said the Attorney General had confirmed the legality of the program. That is fact. These assurances were from the highest levels of the Government.

Third: Only a very small number of people in these companies had the security clearances to be allowed to read the letters, and they could not consult others with respect to their legal responsibility, nor are these telecommunication company executives expert in separation of powers law--either article II legal arguments or the flawed AUMF argument.

Fourth: As I mentioned, common law has historically provided that if the Government asks a private party for help and makes such assurances that help is legal, the person or company should be allowed to provide assistance without fear of being held liable. That is true. Common law does this. One would think this would be especially true in the case of protecting our Nation's security.

Fifth, taking no legislative action on the pending cases ignores the fact that these companies face serious, potentially extraordinarily costly litigation but are unable at the present time to defend themselves in court. The Government has invoked the state secrets defense.

Now, this is a sort of insidious defense. It places the companies in a fundamentally unfair place. Individuals and groups have made allegations to which companies cannot respond. They cannot answer charges, nor can they respond to what they believe are misstatements of fact and untruths.

Bottom line, they cannot correct false allegations or misstatements, they cannot give testimony before the court, and they cannot defend themselves in public or in private.

While I have concerns about striking immunity altogether or substituting the Government for the companies, I don't believe full immunity is the best option without having a court review the certification and the good-faith defense.

Currently, under FISA there is a procedure that allows the Government to receive assistance from telecommunications companies. As I have already described, title 18 of the U.S. Code, section 2511, states that the Government must provide a court order or a certification in writing that states:

No warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required, setting forth the period of time during which the provision of the information, facilities, or technical assistance is authorized and specifying the information, facilities, or technical assistance required. .....

That is it. Under the law, these are the circumstances under which a telecommunications company may provide information and services to the Government. Unfortunately, the administration chose not to go to the FISA Court in the fall of 2001 for a warrant. I will never understand why. Instead, it asserted that Article II of the Constitution allowed the President to act outside of FISA.

However, as I said, by January of 2007--more than 5 years later--the entire Terrorist Surveillance Program was, in fact, brought under the FISA Court's jurisdiction. So, ultimately, the administration agreed that the program can and should be conducted under the law.

Senators Nelson, Cardin, Salazar, Whitehouse, and I believe the question of whether telecommunications companies should receive immunity should hinge on whether the letters the Government sent to these companies met the requirements of 18 U.S.C. 2511 or, if not, if the companies had an objectionably reasonable belief their assistance was lawful, and what that objective belief was.

In other words, we should not grant immunity if companies were willingly and knowingly violating the law.

So the best way to answer this question is to allow an independent court, skilled in intelligence matters, to review the applicable law and determine whether the requirements of the law or the common law principle were, in fact, met. If they were, the companies would receive immunity; if not, they would not. But a court would make that decision, not a body, some of whom have seen the letters but most of whom have not. But it would be a court that is skilled in this particular kind of law.

I want to briefly comment on procedure. I very much regret that this amendment faces a 60-vote threshold when the other two amendments relating to telecom immunity face majority votes. Clearly, someone was afraid this might get a majority vote and, therefore, they put on a 60-vote requirement.

This, I believe, is prejudicial, and it places a higher burden on this amendment. And the irony is, this amendment could be an acceptable solution for the other House, which has passed a bill that doesn't contain any provisions for immunity and has said they would not provide any provision for immunity. This is the way to handle that particular issue.

I, therefore, urge my colleagues to support this amendment both on the merits and so that we can finish the FISA legislation. I hope the conferees will take a strong vote on this amendment--whether it reaches 60 Senators to vote aye or not--as a signal that it is a good solution when the legislation goes to conference.

Mr. President, I ask for the yeas and nays on both of these amendments.

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