AMERICAN HOUSING RESCUE AND FORECLOSURE PREVENTION ACT OF 2008 -- (Senate - June 25, 2008)
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Mr. CHAMBLISS. Mr. President, I wish to speak about H.R. 6304, the Foreign Intelligence Surveillance Act Amendments Act.
Before I do that, I wish to make a couple comments relative to the comments made by my colleague from California regarding the TSP or terrorist surveillance program implemented by the President within days after September 11, and make sure Americans are very clear about two points: First of all, Congress did know about this program. Members of Congress were briefed throughout the duration of this program. Members of Congress were briefed on a regular basis. That doesn't mean every Member of Congress but the leadership knew exactly what was going on, exactly what the President was doing. They were kept very informed.
Secondly, the targets of the terrorist surveillance program were not Americans; the program targeted the communications of al-Qaida, that we knew--not guessed but that the intelligence community knew were used by al-Qaida. Today, al-Qaida gets up every morning, just as they did before and after September 11, and they think of ways to kill and harm Americans. Our intelligence community, without getting into the details of it, suffice it to say, has done a magnanimous job since then in protecting Americans.
The fact that we have not suffered another attack on domestic soil since then indicates the terrific job that members of the intelligence community have done. The terrorist surveillance program that was implemented by the administration immediately after September 11 is a major factor in why we have not suffered another act of terrorism on domestic soil. Information gathered from the terrorist surveillance program was used rightly to disrupt terrorist activity, both domestically as well as abroad. Some of the instances where the terrorist surveillance program has stopped attacks and saved lives are very public right now.
Again, I rise to comment on H.R. 6304. This critical legislation has been the subject of many negotiations and, although the legislation is not perfect, I am pleased with the bipartisan nature of this compromise bill. I commend Vice Chairman Bond, Congressman Hoyer, and Congressman Blunt on their work.
I am satisfied that this legislation will provide our intelligence agencies with the legal tools necessary to perform their jobs, the flexibility they require, and the capability to protect Americans' civil liberties. However, I am perplexed it has taken Congress this long to adopt meaningful legislation necessary to protect our country; legislation which Congress knew, at least since last August, needed to be enacted expeditiously. Normally, Congress is accused of being guided by expediency rather than principle but not usually in national security matters. Intelligence is bipartisan. Securing our Nation is bipartisan. It is in every American's interest that Congress act quickly to protect our Nation from terrorist attack, espionage, or any other harm. Yet the bill before us now is substantially the same as S. 2248, which was drafted in a bipartisan nature by Senators Rockefeller and Bond and passed the Senate over 4 months ago, on February 12, 2008, with a supermajority vote of 68 in favor and only 29 in opposition.
Last summer, our intelligence community officials informed us that, as a result of a decision by the FISA Court and changes in technology, they had lost the ability to collect intelligence on terrorists around the world who wish to harm the United States. Congress responded to these pleas from our intelligence community and passed the Protect America Act, which temporarily fixed this problem, but we knew then we had to have a more permanent solution. Despite this knowledge and despite the hard work of the Senate Intelligence Committee for the previous 10 months, Congress failed to fix FISA in February. The House leadership refused to consider the Senate-passed bill, despite stated support from a majority of that body's members. I can only surmise that there were political, rather than substantive, reasons that prevented this legislation from passing months ago. Some may say this is the nature of one of the political branches of Government. What no one talks about is the harm this has caused.
But, as a result of the Protect America Act's expiration, our collection efforts have been degraded. The public likely is not aware, nor may be many Members of this Chamber, but the members on the Senate Select Committee on Intelligence have heard regularly about the disruptions and legal obstacles that have occurred as a result of our inaction. The week after the Protect America Act expired, the Director of National Intelligence told us that ``we have lost intelligence information this past week as a direct result of the uncertainty created by Congress' failure to act.'' Gaps in our intelligence collection began to resurface, and it has had a real and negative impact on our national security.
Our intelligence collection relies on the assistance of U.S. telecommunications carriers. These communication providers are facing multimillion dollar lawsuits for their alleged assistance to the Government after September 11, 2001. After the expiration of the Protect America Act, many providers began to delay or refuse further assistance. Losing the cooperation of just one provider could mean losing thousands of pieces of intelligence on a daily basis. According to the Director of National Intelligence, uncertainty about potential liability caused many carriers to question whether they could continue to provide assistance after the expiration of the Protect America Act.
In just 1 week after its expiration, we lost significant amounts of intelligence forever. We will never be able to recover those lost communications, nor will we ever know what we missed.
For this reason, it is crucial that any FISA legislation include retrospective, as well as prospective, immunity for telecommunications providers who assist the Government in securing our national security. Title II of this bill, just as title II of S. 2248, provides the minimum protections needed for our electronic service providers. In a civil suit against a communications provider, the Government may submit a certification that any assistance provided was pursuant to a Presidential authorization and at the time determined to be lawful. The district courts may review this certification, and if it finds that it is supported by substantial evidence, the court must dismiss the case. This is not a commentary on, or a court sanction of, the President's alleged terrorist surveillance program. It is the right thing to do.
Unlike many countries which regularly suppress an individual's speech or violate an individual's right to privacy, a cornerstone of our democratic and free society is a limited Government--one that doesn't sanction Government intrusion on an individual's private life. The Government cannot infringe upon an individual's rights without due process. But, in order to preserve those rights, Americans rely upon the Government to provide that freedom and security to protect them from harm, whether it be from a criminal on the streets or from an international terrorist.
Under U.S. criminal law, the U.S. frequently requests the assistance of private citizens and companies in order to combat crime. These companies provide assistance, usually pursuant to a court order--but not always--to help keep Americans safe. When assistance is needed to combat terrorism overseas, patriotic U.S. companies step up to the plate and help their country. At a minimum, these companies rely upon Government assurances that their assistance is lawful. When sued in a court, they are sometimes unable to supply a defense for their actions without exposing Government secrets or jeopardizing Government investigations. Instead, they rely on the Government to come to their defense and assert Government sanction. In the case of the President's terrorist surveillance program--which despite leaks in the press, remains highly classified and secret--these companies are defenseless. If the Government can show a court its assurances--still classified--that the assistance was lawful, and the court determines upon substantial evidence that the company acted pursuant to a Presidential authorization or other lawful means, then our American companies should not be liable.
If any constitutional or privacy violation occurred, an aggrieved individual may still sue the Government. This bill, however, assures America's corporations that their good-faith assistance will not subject them to frivolous lawsuits from individuals who really are alleging a claim against the Government, not those who assist it. Ordinarily, Americans should be protected against Government intrusion, but it should not be at the cost of higher phone and Internet access bills for customers just so these corporations can defend themselves against frivolous lawsuits.
This legislation preserves liability protection for Americans, and I am pleased to see that our bipartisan, bicameral negotiators sustained this provision. Title II of this legislation is largely the same as what was in the Senate-passed bill. I commend the House for passing legislation including this provision and the Senate for now taking much-needed action.
One thing that came out of the debate on this particular aspect of the bill within the Intelligence Committee was the fact that in this situation it is pretty obvious that the Government was in a crisis situation just following September 11. We had just been attacked by terrorists. We needed the assistance of private corporations in America. When we asked for their assistance, they stepped up to the plate. We know it is going to happen again. It may not be a terrorist attack next time; it may be some other crisis that is inflicted upon America. At that point in time, we are going to need the assistance of the private sector in America again. If we don't tell the private sector, in this particular case, that we are going to protect them and make sure they suffer no loss as a result of stepping up to help protect Americans following September 11, then should we expect the private sector to step up next time, whatever the crisis may be? The answer to that is obvious, and, in a very bipartisan way within the Intelligence Committee, there was general agreement that is the way we should proceed.
The only real and meaningful differences between this bill and the Senate-passed bill are more judicial involvement in the President's constitutional duty to conduct foreign affairs and protect our Nation. Our intelligence agencies will be allowed to collect intelligence against individuals located outside the United States, without having to first seek individual court orders in each instance.
Rather than having to seek numerous court orders and losing time and valuable collection opportunities, this legislation will require a reasonable belief that the target is outside the United States, so our intelligence analysts have the ability to assess and task new collection in real time; that is, before the bad guys get away, switch phones, and continue their planning. Unlike the Senate-passed bill, this legislation requires prior court review and approval of the targeting and minimization procedures submitted by the Attorney General, our chief law enforcement and legal advisor, and the Director of National Intelligence, our primary national security adviser.
I wish to state in the record that the exigent circumstances provision included in this legislation is not meant to be limited. Rather, it is a provision necessary to allow the retention of intelligence gathered in those situations where prior court approval was not practical.
Under no circumstance is it acceptable for intelligence gathered under an exigent circumstance, and later found to be acceptable by the court, to be discharged. Intelligence does not wait for court orders, and it must be collected timely. The intelligence community should not have to wait for a court order to continue collection against those who seek to harm America. If the court later determines that the targeting and certifications were lawful, then our intelligence officials should be allowed to review that which was collected.
It is now time for us to make more permanent changes to FISA to ensure we have the ability to obtain intelligence on terrorists and our adversaries. Although not a perfect bill, the FISA Amendments Act will fill the gaps identified by our intelligence officials and provide them with the tools and flexibility they need to collect intelligence from targets overseas, while at the same time providing significant safeguards for the civil liberties of Americans. This bill will ensure that we do not miss opportunities to target and collect foreign terrorist communications just because our operators had to get permission from a U.S. court first.
Let me be clear, these amendments to FISA would only apply to surveillance directed at individuals who are located outside of the United States. This is not meant to intercept conversations between Americans or even between two terrorists who are located within the United States. The Government still would be required to seek the permission of the FISA Court for any surveillance done against people physically located within the United States, whether a citizen or not.
In fact, this legislation will provide new protections for U.S. citizens under our law. Under this bill, for the first time, a court order must be obtained to conduct electronic surveillance for foreign intelligence purposes against an American who is located outside the United States. It also includes a prohibition on reverse targeting; that is, our intelligence agencies will not be allowed to target an individual overseas with the intent and purpose of obtaining a U.S. person's communications.
I am satisfied that the FISA Amendments Act will close gaps in our intelligence collection as well as provide some legal certainty to those patriotic companies that assist us. I urge my colleagues to support this bill and give our professional intelligence officials the confidence they need to secure our Nation.
Mr. President, I yield the floor.
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