FISA Amendment Act of 2007

Floor Speech

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Mr. CARDIN. Mr. President, first let me thank my colleagues for their patience. We are trying to get through a series of amendments on the FISA legislation.

The amendment I am offering is one that was approved by the Judiciary Committee, one that I think is very important to this legislation moving forward, and one which would establish a 4-year sunset for congressional review. I am proud that my cosponsors of this amendment include Senator Leahy, Senator Rockefeller, Senator Mikulski, and Senator Salazar, and I thank the distinguished chairman of the Intelligence Committee, Mr. Rockefeller, for his leadership and for his help in regard to the amendment I am bringing forward.

I wish to go back a little in time to when the original FISA statute was passed. During that period of time, we had recently come out of Watergate. There were certainly indications of warrantless surveillance done on Americans because of their disagreement with the administration in power, there were indications of warrantless surveillance of individuals because they happened to disagree with U.S. policy in Vietnam, and there was genuine concern that we had not balanced properly the Government's need to obtain information in order to keep us safe and the protections of the civil liberties of the people who live in our own country. So we tried to enact a statute that would provide balance in 1978. There was the Church committee report, and in 1978 Congress passed the FISA statute.

I want to start by quoting from one of our colleagues, Senator Kennedy, and what he said in 1978 about the original passage of the FISA statute--the Foreign Intelligence Surveillance Act of 1978. He said:

The complexity of the problem must not be underestimated. Electronic surveillance can be a useful tool for the government's gathering of certain kinds of information; yet, if abused, it can also constitute a particularly indiscriminate and penetrating invasion of the privacy of our citizens. My objective over the past 6 years has been to reach some kind of fair balance that will protect the security of the United States without infringing on our citizens' human liberties and rights.

The Attorney General at that time for the Carter administration was Griffin Bell. Attorney General Bell said:

I believe this bill is remarkable not only in the way it has been developed, but also in the fact that for the first time in our society the clandestine intelligence activities of our government shall be subject to the regulation and receive the positive authority of a public law for all to inspect. President Carter stated it very well in announcing this bill when he said that ``one of the most difficult tasks in a free society like our own is the correlation between adequate intelligence to guarantee our Nation's security on the one hand, and the preservation of basic human rights on the other.'' It is a very delicate balance to strike, but one which is necessary in our society, and a balance which cannot be achieved by sacrificing either our Nation's security or our civil liberties.

A lot has happened since 1978 when that law was passed. We know that technology has changed and the law has been amended over its life, but we still have the same problem: how to balance our need to get information, which is important for the protection of our Nation, and the civil liberties of our citizens.

I am proud to represent the people of Maryland. I am proud of the work done by NSA--the National Security Agency--which is located in Maryland. I have visited the National Security Agency on many occasions. These men and women, dedicated to a mission of protecting our country by getting lawful information which is important to preserve the security of America, do their job with great distinction and great dedication to our country.

But we have seen in recent years the difficulty in complying with the FISA statute. Information obtained from foreign sources, because some communications come through America with the new technologies and the way in which communications are now handled today, is different than it was back in the 1970s. So we need to pass this statute. I think everyone here is prepared and understands the need for us to modernize the FISA statute, but we have to get it right.

Let me mention one debate that has been taking place on this floor that the chairman and the Republican leader on the Intelligence Committee have talked frequently about, as has the leadership on the Judiciary Committee, and that is the minimization rules. We think we have it right now, but we are still concerned about the minimization rules. It is interesting to go back in history and look at what the Senate Judiciary Committee said in 1978 about the concerns of Americans being caught in the web but not being the main focus of our target for surveillance. The Senate Judiciary Committee observed:

Also formidable, although incalculable, is the chilling effect which warrantless electronic surveillance may have on the constitutional rights of those who were not targets of surveillance, but who perceived themselves, whether reasonably or unreasonably, as potential targets. Our Bill of Rights is concerned not only with direct infringements on constitutional rights, but also with Government activities which effectively inhibit exercise of these rights. The exercise of political freedom depends in large measure on citizens' understanding that they will be able to be publicly active and dissent from official policy within lawful limits, without having to sacrifice the expectation of privacy that they rightfully hold. Warrantless electronic surveillance can violate that understanding and impair that public confidence so necessary to an uninhibited political life.

That is what we are concerned about here. We want to make sure we get this right, and we know that over time we have seen abuses of the statute. We are now concerned about what happens when an American is targeted. They didn't think about that before, about someone traveling abroad. I congratulate the committee for bringing forward a bill that does protect Americans who are traveling abroad and are a target of surveillance by requiring cause be shown. That is how it should be.

I am very concerned about the debate we are having in this body concerning the exclusivity in the statute we are going to pass. There has been a long history of debate as to how much article II power the President has in regard to warrantless surveillance. This is not a new subject. But I must tell you, I think this administration took that issue to a new level. I believe the courts agree that the President went too far. So it is our responsibility to try to get this right so that we have the rule of law behind what the administration does, rather than trying to use article II power, which in fact can very easily be abused.

There is another issue I want to comment on briefly--and I will come back to the sunset provisions as to why I think the 4 years is so particularly important in this legislation--and that is the immunity issue and the retroactive immunity. Retroactive immunity concerns me. I would hope it would concern every Member of the Senate. It concerns me not just as it affects the telephone companies in their cooperation with this administration--because there has been clear evidence that they operated under the authority that the administration had this power and that they were helping their country--but what concerns me about granting them retroactive immunity is the impact it will have on the courts' oversight of the abuse of privacy by the administration or private companies.

We need the courts actively involved here. We don't get this right all the time, and certainly the administration doesn't get it right all the time. We need the courts involved in these issues. If we grant retroactive immunity, we are saying we reserve the right to take away the third branch of Government--the judicial branch of Government--for making determinations as to whether an individual's right of privacy is violated. I don't think that is something we want as a legacy of this Congress. That is why many of us are concerned about using retroactive immunity.

There are other options that are out there. I see my distinguished colleague from Pennsylvania, Senator Specter, is here. He has a proposal that I think would take care of the concerns of the telephone companies yet protect the integrity of the courts. I congratulate him for that recommendation, and I think he has now refined it to the point that I hope it will garner the type of support necessary for approval by this body.

Senator Feinstein has a proposal that, rather than just giving immunity, would at least have the courts make the determination as to whether the telephone companies are entitled to this relief; whether they acted in good faith. So at least we have the courts involved in this decision rather than taking away their authority. I think either of those recommendations would be a major improvement over giving retroactive immunity to telecommunication companies.

But let me get to the specifics of the amendment I have offered, which is the 4-year sunset on the provisions. Again I am pleased to be joined by several of our colleagues. It is interesting to point out that sunsets have been part of the FISA statute for a long time. When the USA PATRIOT Act was passed, it contained a 4-year sunset. Now why did we put a 4-year sunset in? We were worried about whether we got it all right. This is something that required the continued attention of the Congress and the administration. In fact, we reauthorized it with significant changes and then put in another 3-year sunset, in this case for one of the most controversial provisions. So this is something we have done in the past.

The Protect America Act is a major departure from the PATRIOT Act. It was passed hurriedly, and no one denies that. It was passed hurriedly last August, and we weren't comfortable with what we did. The proof is the bill now before us is a much better bill. Thank goodness we had the sunset. The committee recognized the need for a sunset because they put a 6-year sunset in.

Why do I think it is so important to change that 6 years to 4 years?

Let me tell you why: I think it is in our national interest that the next administration taking office in January of 2009 be focused on this issue, this vital issue of getting the intelligence information that is critical to protect the safety of the people of this Nation but also to protect the civil liberties of Americans.

I think it is vital that the next administration look at those opinions that came out of the Attorney General's Office and the White House and give a fresh look to it and try to figure out if there is not even a better way to accomplish both the collection of information and the protection of civil liberties.

If we continue the 6-year sunset, there will be no requirement for the next administration to take a look at this statute. With a 4-year sunset, it will come under the watch of the next administration.

It is very interesting that one of my colleagues talked about the opportunity to review documents, and I believe the distinguished chairman of the Intelligence Committee would agree with me--from the fact that we had a sunset on the bill we passed in August, we got a lot more attention from the administration on getting material. They brought a lot of material into our office so we could review it. They cooperated with us because they knew we had to act. If we include a 6-year sunset, there will be no requirement for the next administration to engage Congress on this issue. I want the next administration to engage Congress on this issue.

We have seen the change in technology since we passed this bill in 1976, and technology is changing more rapidly than ever before. We do not know the next way in which terrorists are going to be using it in order to try to circumvent our detection as well as our laws. We do not know that. So it is important for us to stay engaged so that we can have the most effective tools in place, not using the article II power of the President but having Congress engaged and making sure we have the statutes correct.

It is another reason I think it is very important to have a 4-year sunset. I know I am not telling you something you do not already know, but the FISA statute gives the administration extraordinary powers and very sensitive powers as it relates to the privacy of people here in America and an issue on which we have to make sure we protect the rights of our citizens.

So for all of those reasons, we want to stay engaged on this subject. Again, I want to emphasize this is not a question of no sunset versus a 6-year sunset. I understand the administration wants no sunset. I can understand that. The President probably would want no Congress. But the Framers of our Constitution understood the importance of the legislative branch of Government. It is rated as No. 1, article I.

I urge my colleagues to support this amendment. It is an amendment that is offered in good faith. I would encourage my colleagues to support the amendment.

I reserve the reminder of my time.

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Mr. CARDIN. Mr. President, first, let me thank the distinguished chairman of the Intelligence Committee for his support for this amendment. He has helped in bringing it forward. Let me respond, if I might, to Senator Bond's points.

First, let me point out that the cooperation we receive from the executive branch is very much enhanced when they know we have to pass a statute. All we need to look at is the cooperation we have received over the last several years from this administration to know that when we get to a point where Congress needs to act, we get the help of the administration in bringing us on board.

As to the comments by the Republican leader on the committee that the terrorists don't have sunsets, they also don't have a legislature. They don't have democracy. They don't have any process that is open. They have no respect for civil liberties. We fight for this Nation because of what this Nation stands for. We know there are abuses of power, and we have a responsibility to take action on them. Sunsets have worked on the FISA statute.

My colleague from Missouri has supported sunsets at different times during the process. We had it in the PATRIOT Act, and in the renewal of the PATRIOT Act we still have sunsets. We had sunsets on the original Protect America Act, and the bill that came out of the Intelligence Committee has a sunset in it.

I understand the administration is against sunsets. I understand that. I don't agree with the administration's view and the way they use the power that was given to them--that they thought was given to them. I think they have abused it at times. Thank goodness we had oversight to try to rein that in, and thank goodness we had the courts looking at what they were doing.

So the point is whether it should be 6 years or 4 years. I think it is critically important that the next administration work with this Congress to take a look at how this administration used the power and take a look at the legal opinions that were written so we have a comfort level between Congress and the next administration on protecting the security of America and protecting the civil liberties of the people who live in this Nation. That is why I believe the 4-year sunset is so important.

I respect the view of my colleague from Missouri as to the predictability of statutes. We are not going to let the authorities expire. We are going to carry out our responsibility. We know that. There is not a person who is a Member of this body who disagrees with giving the appropriate tools to the intelligence community.

As I said earlier, I am very proud of the work that is done at NSA in the State of Maryland by dedicated men and women. They can't send out press releases when they do things that are very important to our country in protecting our security. They do a great job. We owe them the type of support that includes a statute that is definitive and makes sense and that we pass; also, that we continue to be their partners and continue the oversight with the change in technology and continue to work with the executive branch to make sure we get it right.

I urge my colleagues to support the amendment. I reserve the remainder of my time.

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