Kennedy on FISA

KENNEDY ON FISA

This is an important mark-up. The Foreign Intelligence Surveillance Act is one of our landmark statutes. For nearly 30 years, it has regulated government surveillance in a way that protects both our national security and our civil liberties and prevents the government from abusing its powers. It is because FISA enhances both security and liberty that it has won such broad support over the years from presidents, members of Congress, and the public alike.

FISA was able to strike the right balance because of the way it was enacted and implemented. The Administration worked with Congress in a genuine partnership. It was an open, thorough, and collaborative process that took several years to get right.

The original FISA legislation was the product of collaboration between the Attorney General and members of Congress on both sides of the aisle. A Democratic Congress worked with a Republican Administration to develop a wiretapping program we could all support, and it has served America well. That's why it's so troubling that the Bush Administration has consistently pursued a different path.

Unlike every previous administration, it decided that FISA was an inconvenience. With the help of phone companies, the Bush Administration launched a warrantless surveillance program that secretly spied on Americans for years, without any court orders or oversight. They never told Congress what they were doing, and they never told the FISA court what they were doing. Office of Legal Counsel head Jack Goldsmith testified that it was "the biggest legal mess [he] had ever encountered."

When the Administration finally reached out to Congress earlier this year, it did so not in the spirit of partnership, but to bully us into obeying its wishes. The Protect America Act was negotiated in secret at the last minute, with the Administration issuing dire threats that failure to enact a bill before the August recess could lead to disaster. Few, if any, knew what the language would actually do. Before and after the Act was passed, the Director of National Intelligence made the outrageous claims that Congress was putting American lives at risk merely by debating how to make FISA more effective. The result of this flawed process was flawed legislation, which virtually everyone now acknowledges must be substantially revised.

Since the Protect America Act, the Administration has begun to work with Congress in a more effective manner. But only just started. Until very recently, for example, the Administration refused to turn over any documents on its warrantless eavesdropping program, despite congressional subpoenas. It has now shared documents with the Senate Select Committee on Intelligence and with this Committee, but it still refuses to share these documents with the House. This kind of selective information-sharing raises the obvious suspicion that the White House is willing to work only with lawmakers who agree with its position.

This Committee is now called upon to consider the "FISA Amendments Act of 2007," reported last month by the Senate Select Committee on Intelligence. Members of that committee worked hard on this bill, and I commend them for their diligent efforts. Their bill contains notable improvements over the Protect America Act, but it also has a number of defects that trouble me greatly. For example:

* The bill redefines "electronic surveillance," a central term in the FISA structure, in a way that is unnecessary and may have unintended consequences.

* The bill does not fully close the loophole left open by the Protect America Act, allowing warrantless interception of purely domestic communications.

* The bill does not require an independent review and report on the Administration's warrantless eavesdropping program, as does the House bill. Only through such a process will we ever learn what happened and achieve accountability and closure on this episode.

* The bill purports to eliminate the "reverse targeting" of Americans, but does not actually contain language to do so. For instance, it has nothing analogous to the House bill's provision on reverse targeting, which prohibits use of the authorities if "a significant purpose" is targeting someone in the United States.

* Court review occurs only after-the-fact, with no consequences if the court rejects the government's targeting or minimization procedures.

* The bill is not entirely clear that FISA and the criminal wiretap law are the sole legal means by which the government may conduct electronic surveillance.

* The bill's sunset provision is December 31, 2013. For legislation as complicated, important, and novel as this, Congress should reevaluate its work much sooner.

* The bill grants retroactive immunity to telecommunications companies that went along with the Administration's warrantless eavesdropping program. Amnesty for the telecommunication companies may help the Administration cover up its illegal spying, but it will not help our national security. It will further undermine the rule of law.

I'm encouraged that some of these concerns are already addressed in the substitute bill now before us. There is still much more to be done, however, and I expect to offer several amendments. I'm hopeful that working together, we can produce a bill that protects both our national security and our civil liberties in the best tradition of the longstanding FISA law.

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