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Statement by Senator Edward M. Kennedy on FISA Legislation

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As a nation, we're much stronger on national security when all of us stand together. Cooperation between the Administration and Congress is vital to our national security and, across party lines, many of us stand ready to find a compromise that serves the country's best interests.

Five years ago, Congress was united in efforts to combat terrorism. We agreed on the need for law enforcement and intelligence officers to have strong powers to investigate terrorism, prevent future attacks, and improve information-sharing between federal, state and local law enforcement.

This week, as we somberly recall the fifth anniversary of the tragic terrorist attacks, we need to join together to protect America's national security. As we did with the PATRIOT Act, and recently with its reauthorization, we have an opportunity to work together to resolve our differences and establish tough laws to protect our national security, while adhering to our basic constitutional principles.

No one is above the law, not even the President. We can't let fear of terrorism be misused as an excuse to give unchecked power to the President. We're in danger of discarding three decades of well-established checks and balances - with very little understanding of the potential consequences.

The process doesn't have to be this way. Nearly thirty years ago, we took a different approach. After lengthy hearings and consultations, Congress enacted FISA with broad bipartisan support - only one vote against the bill in the Senate! The purpose of the law was clear - to limit power of the President to use wiretaps in the name of national security. Under the Foreign Intelligence Surveillance Act, we established the FISA court as the exclusive means by which electronic surveillance could be conducted in the United States for national security purposes. The law established a secret court to review wiretapping applications, and placed "national security" electronic surveillance under the rule of law.

Until the President's current program was disclosed in the press, we all thought that's how the system still worked. Now, with scant information to support such a momentous change, we are considering a proposal that would turn back the clock and reject the entire framework that has governed the monitoring of communications of Americans for the last thirty years.

With unnecessary haste and inadequate deliberation, we are heading down a path that could lead to many unintended consequences. Unfortunately, the Committee's agenda reflects a continuing effort to proceed without necessary answers or essential oversight. At a minimum, there should be a sunset on this new proposal - so that we can come back and see how it has been implemented and whether it has truly achieved the intent of its supporters.

It's true that we are at war and the terrorist threat is serious -I agree that we face a different threat today. But to provide the President with the means necessary to fight terrorism, we amended FISA in the 2001 Patriot Act to give the President even more ability to track terrorists, without undermining the liberties of the American people. We can improve our laws and our national security without handing the President a blank check.

The pending "compromise" is in stark contrast to the balanced bill enacted in 1978 and would fail to impose essential safeguards on collecting intelligence. On its own, the National Security Agency is deciding who is the target, where it is, how the call or e-mail will be intercepted and where the eavesdropping will take place.

We wonder what General Hayden means when he says that global telecommunications have given our nation a "tremendous home field advantage" - "the most important advantage that we have." How do we know that effective laws are in place to ensure that surveillance is properly limited? How can we ensure that there are adequate safeguards, with the sudden growth of new communications infrastructure, particularly in the United States? At a minimum, we should require the NSA to report to Congress on the legal standards for surveillance - such a requirement was imposed in 2000 with unanimous support from the House and Senate, and such a reporting requirement must be included in any new law.

I regret that the Committee is going ahead without a fuller inquiry into the Administration's massive electronic surveillance program. Congressional oversight hasn't been effective in guaranteeing that the constitutional checks and balances on executive power are working. All we've received are after-the-fact legal rationalizations for the program.

We've failed to meet the standard set by the bipartisan 9/11 Commission, which made clear that the Executive Branch has the burden of proof to justify why a particular government power should be retained, and that Congress has the responsibility to see that adequate guidelines are created and oversight is exercised.

There is a way to fight terrorism within the framework of the law. Nearly thirty years ago, the President and Congress worked together to create the Foreign Intelligence Surveillance Act. Now, ignoring that law, the Administration took a path filled with legal uncertainty, putting NSA employees at risk of criminal penalties and jeopardizing prosecutions of terrorists who can challenge the lawfulness of the evidence against them.

It is not too late for President Bush to choose a stronger and more certain course of cooperation with Congress. It's vital to our national security that he does. For the sake of the country, let's hope that he will.

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