Kennedy on FISA Modernization Legislation

Press Release

KENNEDY ON THE FISA MODERNIZATION LEGISLATION

Mr./Madam President, there is general agreement on both sides of the aisle that we have a foreign intelligence surveillance problem that should be addressed. The difference between us is that on this side of the aisle we have consistently been willing to work cooperatively to solve the problem.

There is a model. In 1976, we faced a similar problem. The Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, known as the Church Committee, had found disturbing abuses of electronic surveillance. Congress and the Administration set out to pass a law to prevent such abuses in the future, while still protecting our national security.

In 1976, I was the principal sponsor of the original bill that became FISA. When we first introduced the bill, we had a Democratic Congress, a Republican President, Gerald Ford, and a Republican Attorney General, Ed Levi. Attorney General Levi understood the need for Congress and the Executive Branch to work together. Members of the Judiciary Committee went down to the Justice Department at least four times to meet on the bill. There were discussions with Henry Kissinger, Don Rumsfeld, Brent Scowcroft and George Bush among others.

We worked responsibly and cooperatively to develop legislation to protect our civil liberties and ensure that the nation could use necessary surveillance. In the end, Attorney General Levi praised the bipartisan spirit of cooperation that characterized the negotiations and produced a good bill. That Administration recognized the importance of working with Congress. The final bill was passed by the Senate by a vote of 95 to 1.

As this history demonstrates, our nation is strongest when we work together for our national security. Unfortunately, the current Administration has chosen a very different course. President Bush has refused all along to consult Congress on the development and implementation of its surveillance program, and now we find that it violated the law.

This is not an argument for granting expanded discretion to the Administration. There is simply no basis for trusting this Administration to respect the privacy of the American people. Nor do we have any confidence in the Administration's competence to adopt a lawful and effective program.

When Attorney General Gonzales appeared before the Judiciary Committee in February 2006, I questioned him about FISA and the recently revealed warrantless eavesdropping program. I offered to work with him then. In fact, I asked him why he had not approached Congress sooner, given Attorney General Levi's success and given the cost of getting it wrong. He answered, "We did not think we needed to, quite frankly."

Well, we now know that wasn't true. I pointed out to the Attorney General at the time the benefit of having consensus on this issue and the importance of fostering a cooperative atmosphere. His answer to me was, "I do not think that we are wrong on this." But they were wrong, which is why we are debating this issue at the eleventh hour today.

I told him then that the Administration was sending the wrong message to the courts, that they were jeopardizing our ability to convict terrorists by using these illegal intelligence methods. The Attorney General said, "That is the last thing we want to do. We believe this program is lawful." He was wrong again. The program is not lawful and the Administration needs Congress to fix it.

I did not stand alone on these issues. I had the support of many of my colleagues on the committee on both sides of the aisle. Yet, the record is clear that the Attorney General repeatedly rebuffed our efforts to work with the Administration to get this legislation right the first time.

Instead, the Attorney General and the President have consistently rejected Congressional input and oversight. They have repeatedly demanded that Congress rubber-stamp their decisions and trust their discretion. We have seen where that leads, and we owe the nation a better approach.

We should pass legislation today that closes the gap in current law, and preserves the critical role of the Foreign Intelligence Surveillance Court in protecting our civil liberties.

Unfortunately, some of our colleagues, instead of using this opportunity to work together to safeguard the nation, would prefer to pass yet another partisan assault on the rule of law and American civil liberties. They insist on diminishing the role of the FISA court and increasing the unsupervised discretion of the Attorney General and the Director of National Intelligence. They want to trust Alberto Gonzales to ensure that the government does not listen to the phone calls and read the e-mails of Americans without justification. We need to modernize FISA, not undermine it. Their proposal clearly contradicts the fundamental purpose of the initial legislation.

We should remember how we reached this point. For four straight years, the Bush Administration recklessly conducted warrantless surveillance in violation of FISA. The President acknowledged this surveillance only after it was reported in the press. Until January of this year, the Administration refused to bring its surveillance program under the oversight of the FISA Court, despite the clear statutory requirement to do so.

The FISA Court has now reviewed the surveillance and has issued a ruling. It has declared that a significant aspect of the President's warantless surveillance program, in operation for four years without any oversight, violates the law and cannot continue. Without bipartisan Congressional pressure to force that review, these and other despicable violations of the rule of law would have gone on and on. Even today, the Attorney General continues to mislead Congress on basic information about the program, and he refuses to provide the legal justifications on which he relied.

Now, after the FISA Court's clear ruling, the Administration is urgently demanding that we correct their mistake. We can do that. We can reach the appropriate balance between modernizing the legislation to protect our national security, and maintaining its basic protection of civil liberties. If the Administration and its allies are serious about effectively protecting the country from terrorist threats, and doing so under the rule of law, they should support such legislation.

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