FISA Amendments Act Reauthorization Act of 2012

Floor Speech

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Mr. GRASSLEY. Mr. President, the reauthorization of the Foreign Intelligence Surveillance Act Amendments Act, also known as the FISA Amendments Act, is a crucial authority for the U.S. Intelligence Community. Unless we act to pass this legislation, the law will expire in just a few days from now. It must be reauthorized immediately for a 5-year period.

I am familiar with the FISA Amendments Act, FAA, through my role as ranking member of the Judiciary Committee, which along with the Select Committee on Intelligence, has jurisdiction over this legislation and oversight of the intelligence operations conducted by the Department of Justice and Federal Bureau of Investigation. During the last year, my staff and I have engaged in extensive consultation with the intelligence community and the Department of Justice to understand how the FAA has been used. The committee held a closed hearing with witness testimony and questions from Senators as well.

We debated this legislation in committee where I opposed the version produced by the Judiciary Committee which is now the basis of the Leahy amendment. I opposed it because I have learned a great deal both about the value of the intelligence collected under the FAA and about the lengths that the intelligence community goes to protect the rights of U.S. citizens when collecting that intelligence. Given the congressional oversight of this legislation, coupled with the built-in protections and oversight from the executive branch, the value of the intelligence gathered by this important legislation warrants reauthorization without the changes made by the Leahy amendment.

The most important portion of the FAA is Section 702. It authorizes, with approval of the Foreign Intelligence Surveillance Court, FISC, an 11-member panel of Article III judges appointed by the Supreme Court, electronic surveillance of non-U.S. persons located overseas, but without the need for individualized orders for every target of the surveillance, as is required for surveillance of anyone inside the United States. The law specifically prohibits targeting U.S. persons, acquiring wholly domestic communications, or targeting someone outside the U.S. with the intent to collect information on a target inside the U.S. known as ``reverse-targeting''.

It is possible that the communications of some U.S. citizens may be captured during the conduct of authorized surveillance. But that is only incidentally. The only way that a U.S. person's communication would be picked up would be if that person were in communication with a non-U.S. person overseas who had been targeted under the FAA.

Some people think that a U.S. person has a constitutional right not to have his communications with a foreign target eavesdropped by the U.S. government without a warrant. But that's not how the fourth amendment works. It protects the rights of the person who is being targeted, not anyone in contact with him. For example, if the government legally taps the phone of a mafia godfather in the United States, it can listen to his conversation with anyone who calls him. It doesn't need a court-issued warrant for the person calling, only for the godfather himself. He is the one who has a reasonable expectation of privacy in his telephone.

In the same way, when the government legally intercepts the communications of a terrorist living overseas, it can listen to his conversation with anyone who contacts him, even if the other party is in the United States. What matters is whether the government has the legal authority to intercept the communications of the terrorist in the first place. That's what the FAA provides. It is important to point out that no warrant is required because the target is not a U.S. citizen and is located overseas. So, the fourth amendment doesn't apply to him.

Instead, under Section 702, the FISC approves annual certifications from the attorney general and director of National Intelligence about collection of information on categories of foreign intelligence targets, what procedures the intelligence community will use to accomplish this surveillance, how they will target subjects for surveillance, and how the IC will use the information. The government must also demonstrate to the court that it has special procedures to weed out intentional collection of communications of anyone located inside the United States and to minimize the use of any incidentally collected information.

In addition, there is significant oversight of the program to protect U.S. citizens' rights. The law requires that the Attorney General and director of National Intelligence conduct semi-annual assessments of the surveillance activities. Furthermore, it authorizes the inspector general of the Department of Justice to review the program at any time. Both houses of Congress are provided the semi-annual reports and IG audits, as well as significant decisions of the FISC. These are on file with the Senate security office and any Senator and appropriately cleared staff can review them.

This process works. Our oversight of the implementation of the statute has found no evidence that it has been intentionally misused in order to eavesdrop on Americans. Senator Feinstein, chair of the Senate Select Committee on Intelligence, and even Senator Leahy, chairman of the Judiciary Committee, have stated that no such misconduct has been discovered.

For these reasons, we should reauthorize the statute without any changes, as the House has done. The only adjustment to the existing statute in the House bill is replacing the expiration date of December 31, 2012 with December 31, 2017, a 5-year period. That is also what the administration supports and what the intelligence committee passed this summer. A 5-year period would allow the intelligence community to continue utilizing these valuable tools against potential terrorists or other intelligence targets without interruption or delay. It will provide the intelligence community with much needed certainty and stability in a program that works to save American lives.

The combination of the statutory limitations on collection, targeting and minimization procedures, and acquisition guidelines, court review of those procedures and guidelines, and compliance oversight by the administration and Congress, ensure that the rights of U.S. persons are sufficiently protected when their communications are incidentally collected in the course of targeting non-U.S. persons located abroad.

I urge my colleagues to support the House passed version of the FAA reauthorization so we can ensure that there is no interruption in one of our most vital national security tools.

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