FISA Amendments Act of 2007

Floor Speech

FISA AMENDMENTS ACT OF 2007 -- (Senate - February 06, 2008)

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Mr. KENNEDY. Mr. President, the amendment that Senator Cardin has offered is very simple, but it is absolutely critical to this bill. The amendment would move up the bill's sunset date from 6 years to 4 years. Congress would need to revisit the law by the end of 2011 instead of 2013.

The amendment is good public policy. Whenever a significant new law is enacted, it is important to require Congress to revisit it at an earlier rather than a later date.

The FISA bill we are considering is highly complicated legislation affecting Americans' security and liberty. It grants the executive branch vast new authority for electronic surveillance at a time of rapidly changing technology and rapidly changing threats. Even the country's leading national security experts cannot say for sure what our national security challenges will look like in 3 years, much less how this legislation will work out in practice.

This is also highly controversial legislation. I don't need to remind anyone in this Chamber of the intense debate that has been taking place over many parts of this bill. The FISA rules on electronic surveillance affect every American. They are the only thing that stands between the freedom of Americans to make a private phone call, send a private e-mail, or search the Internet, and the ability of the Government to listen in on the call, read the e-mail, and review the Internet search.

In this information age, FISA gives Americans basic protection against Government tyranny and abuse, and we owe it to the American people to revisit it promptly to make sure its protections are effective.

Congress also needs an earlier sunset because we need more information to assess how these new policies will work in practice. The ongoing confusion and controversy in this area mean that Congress does not have enough knowledge or confidence to be sure the legislation is adequate.

With an early sunset, Congress will have to make an early assessment of how the legislation is being interpreted and implemented. We will be able to identify problems and abuses much sooner. If changes are made to the law in 2011, it will be because experience has shown that changes are needed.

We passed this exact same amendment in the Judiciary Committee in the middle of November, and in the weeks since then, I have heard only two arguments against it, both from the White House. Neither of them holds up.

The first objection is that there has already been sufficient consideration of these issues, so that Congress should be able to pass a permanent FISA reform right now. Everyone agrees that short sunsets are valuable when Congress has not had time to consider an issue thoroughly and develop a factual record. But the Bush administration claims there has already been a detailed and informed discussion of FISA modernization.

That objection is wrong on the facts. The administration has recently started to work with Congress more openly, but there is still a great deal we don't know about how it has been conducting its electronic surveillance. Much of what we have learned has come from leaks to the press.

A few months ago, the White House decided to share with the Senate certain documents on the role of the telecommunications companies in an effort to obtain retroactive immunity for them. This was the first time the administration had ever shown Congress any documents on its warrantless surveillance. So far, however, the White House has shared only a small number of documents with a small number of Senators--and until late last month, not with any Members of the House of Representatives. Such selective disclosure is a pale shadow of the real disclosure Congress needs to enact good legislation.

That objection is also wrong as a matter of policy. No matter how much discussion there may have been, this is highly complicated legislation that makes major, untested changes in our surveillance laws. It is impossible for Congress to analyze these issues in the abstract, without any track record to evaluate. With a law as complex, new, and important as this, a short sunset is responsible policy.

The second objection I have heard is that a short sunset introduces too much uncertainty to the rules affecting our intelligence professionals. The administration says it is not efficient for agencies to develop new policies and procedures, only to have the law change within a brief period. They say the intelligence community operates more effectively when the rules governing intelligence professionals are well-established, and are not in doubt.

This objection is more serious, but it too dissolves upon consideration. It is true that there may be a little extra uncertainty that comes with a short sunset. But the much more significant uncertainty is whether all of the changes made by this bill will be good for the country--and there is no way to be sure about this ahead of time.

Intelligence professionals should not be locked into a surveillance system that doesn't work well for them, and Americans should not be locked into a system that fails to protect their security or their rights. The early sunset guarantees that Congress will review these extremely complicated, untested, and powerful new authorities and how they are actually being used by the executive branch.

The administration's argument against a sunset is an argument against congressional oversight of FISA. The White House wants Congress to pass a new FISA law, and then to look the other way while the executive branch implements and interprets its new powers. They want Congress to trust them when they tell us how the law is working, rather than look into it ourselves.

Given this administration's track record of warrantless illegal spying, ``trust us'' is not an acceptable way to proceed. Congress needs to stay on top of this issue to make sure that our surveillance laws are keeping Americans safe and protecting their freedom. That is what we have been elected to do, and that is what the Constitution requires us to do.

As I said at the start, this amendment is very simple. It moves the sunset date up by 2 years. Yet it may well be the single most important thing Congress can do to ensure that we reform FISA in a responsible and effective way.

This sunset amendment is a win-win for national security and civil liberties. It will ensure that Congress remains engaged on the crucial issues of electronic surveillance that affect all Americans. To make sure that our new FISA law actually gets the job done, I urge my colleagues to adopt this amendment.

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Mr. KENNEDY. Madam President, the amendment that I have offered with Senators KERRY and MENENDEZ addresses a serious problem with the FISA bill that we are now considering, and I am very pleased that it has been incorporated into the bill by unanimous consent.

The amendment clarifies that under the new authority provided in this legislation, the Government may not intentionally acquire a communication when it knows ahead of time that the sender and all of the intended recipients are located in the United States. When the Government knows ahead of time that both the person making the call and the person receiving the call are located inside the United States, it will have to get a court order before it can listen in on that call. This is the way FISA has always worked, and my amendment makes sure that the law stays that way.

There is broad agreement that communications known ahead of time to be purely domestic should continue to be governed by the standard FISA rules. Indeed, the Bush administration has repeatedly stated that it does not intend to use the new authority granted under the Protect America Act or this legislation to acquire communications that are purely domestic, without obtaining a court order first. The administration acknowledges that when the Government knows that all the parties to a conversation are in the United States, a specific court order should be needed to intercept that conversation.

I haven't heard a single Member of Congress disagree with this point. But without this amendment, the FISA bill's new authority could be used to acquire purely domestic communications without a court order.

The bill requires the Government's ``targeting procedures'' to be designed ``to ensure that any acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States.'' The problem arises because sometimes the ``target'' of the surveillance may be abroad, but the communications that the Government wants to acquire may occur entirely inside the United States, because the subject matter concerns the target who is abroad. The term ``target'' is not defined in FISA, but the legislative history states that the ``target'' is the person or entity ``about whom or from whom information is sought.'' That broad definition is capable of being interpreted to allow surveillance of people other than a ``target.''

For example, the Government might believe that two Americans in the United States--let's call them Tom and Mary--will discuss a third party who is located outside the country. Under this bill, that third party can be a group, not just an individual, and the Government can obtain a blanket warrant that allows it to spy on everything that group does in the future. Although the authors of the bill have stated this should not occur, the concern is that when Tom and Mary talk to each other, the Government might claim the third party is the ``target'' who provides the legal basis for the surveillance--with the practical result being that the Government could listen in on the conversation without making any showing to any court about Tom and Mary.

My amendment protects innocent Americans by clarifying that traditional FISA rules still govern for communications known to be occurring within the country. The Government could still spy on Tom and Mary--but it would have to obtain a warrant first, with the usual exception for emergencies.

According to the administration, the law already requires this. The administration has said flat out that it will not wiretap purely domestic communications without first obtaining a court order.

But these kinds of statements are no answer when Americans' basic liberties are at stake. ``Trust us'' is not enough.

FISA experts such as David Kris, a highly respected former lawyer at the Justice Department and the author of the leading treatise on FISA law, believe that the legislation is not clear right now. And if the law is unclear, there will be tremendous pressure on the intelligence community to apply it as aggressively as possible, because it is their duty to do everything they can within the boundaries of law.

As Mr. Kris recently stated, even though the Intelligence Committee bill prohibits the targeting of persons known to be in the United States, it ``does not, however, foreclose all surveillance of [purely] domestic communications . . . because surveillance can 'target' an international terrorist group located abroad, but still be directed at a domestic telephone number or other domestic communications facility.''

Mr. Kris has said that his ``principal concern about [this bill] . . . is that it resembles the Protect America Act in allowing surveillance of domestic communications'' without a warrant. This is a radical change to a FISA system that has protected Americans for three decades. If put to a vote, I have no doubt that Americans would reject it.

This concern can't be waved away by the administration telling us that it takes a different legal view. When one of the top FISA experts in the country says that the law is not clear, we should listen.

Promises about how the Government will interpret the law in the future are not enough. If we all agree about a specific policy goal--and everyone should agree that in purely domestic-to-domestic situations, the traditional FISA rules should apply--then we should be very clear about that goal in the legislation we write. Any FISA law that Congress passes may set the rules on surveillance for years to come, and different administrations may interpret ambiguous language in different ways.

My amendment makes clear that the traditional FISA rules apply when the Government knows ahead of time that the communication is purely domestic. The amendment does not add any substantive changes to the law; it adds clarity and certainly where now there is ambiguity and confusion.

Americans deserve to feel confident when they are talking with their friends, neighbors, and loved ones inside the United States that they will not be spied on without a warrant. Bringing clarity to this area of the law is good for Americans' liberties, and it is good for national security. I congratulate my colleagues for adopting this amendment.

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