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Public Statements

FISA Amendments Act

Floor Speech

Location: Washington, DC

FISA Amendments Act


Mr. KERRY. Madam President, I believe the FISA bill that passed the Senate yesterday could have and should have been a better bill. There is no charitable explanation for why the U.S. Senate failed to pass a bill that demonstrates at once that we can protect our national security and protect the Constitution of the United States and the rights of law-abiding American citizens at the same time.

September 11 was a wakeup call for millions about a global struggle against extremism--and the need to modernize our Government to win that struggle. September 11 also began a debate in our country over how we can win the struggle against extremists without losing sight of who we are and what we value as Americans. Former Supreme Court Justice Sandra Day O'Connor described the challenge best:

We must preserve our commitment at home to the principles for which we fight abroad.

Congress has a duty to protect the American people--and to protect the Constitution. That is the oath we take. It is a solemn pledge. That is why this debate, and this vote in the Senate is so disappointing: This latest FISA law does not live up to the words we speak when we take that oath in the Senate. Instead, rather than produce a bill that made us stronger in the fight against extremism, colleagues on the other side of the aisle summarily rejected every effort this week to give the President of the United States the added flexibility needed to hunt down and capture terrorists while protecting the rights of law-abiding Americans.

More than 6 years after 9/11, we are still searching to strike this proper balance. Once again, in the latest rushed effort in the face of partisan fear-mongering, the world's greatest deliberate body missed an opportunity to get it right.

Make no mistake, today's bill is a marked improvement over the Protect America Act. But this issue is far too critical to settle for half-measures and insufficient improvements. This bill doesn't do enough to protect independent judicial oversight by the Foreign Intelligence Surveillance Court, FISC, of sweeping Government powers. It doesn't provide the FISC the authority to assess the Government's ongoing compliance with its wiretapping procedures, and doesn't set limits on the way the Government uses information acquired about Americans.

Instead, this bill leaves Americans vulnerable to continued overreaching by the executive branch. It allows the President to rely on other statutory authorities to circumvent the will of the people and conduct warrantless foreign intelligence surveillance, permits limitless ``fishing expeditions''--so-called bulk collection of all communications between the United States and overseas--and lets the government eavesdrop on Americans under the guise of targeting foreigners--what is known as ``reverse targeting.'' If we have learned anything from over 7 years of the Bush administration, it is that we cannot simply hand them a blank check and trust that they will not abuse it.

The Judiciary Committee's FISA bill recognized the need for this type of robust judicial and congressional oversight in the face of ever-expanding Executive power. It systematically sought to create all of the aforementioned safeguards on liberty, while making sure to give the President the expanded set of tools required to fight terrorism in the digital age. That is the bill we should have passed.

Most importantly, unlike the FISA bill that passed the Senate yesterday, the Judiciary Committee's version did not grant amnesty to telecommunications providers that were complicit in the Administration's warrantless spying program. The administration may well be deliberately stonewalling to avoid a judgment day in court. Yet, today, the Senate rewarded the President's obstructionism, providing him cover to seek political security under the guise of national security. That is wrong. It is also a slap in the face to telecommunications providers like QWEST, which in the difficult days after 9/11, courageously refused to aid the administration's warrantless wiretapping efforts and questioned their legality.

Americans, who are deeply concerned about the secrecy and abuses of power that have marked this administration's years in office, and who are tired of learning information after the fact in our newspapers when whistleblowers leak it, deserve much better. This bill shreds the bipartisan principle that Americans should have their day in court--that accountability should be preserved to adjudicate competing claims and at last shed light on the administration's secret surveillance program. It is for these reasons, after all, that Senator Specter, the ranking member of the Judiciary Committee, refused to grant blanket amnesty and, as he put it, ``undercut[] a major avenue of redress.'' If these lawsuits are shielded by Congress, the courts may never rule on whether the administration's surveillance activities were lawful.

An impartial court of law insulated from political pressure is the most appropriate setting in which to receive a fair hearing. That is a far cry from the U.S. Senate wiping the slate clean for the Bush administration. Everyone agrees, if the telecoms followed the law, they should get immunity, as Congress explicitly provided under the original FISA law. But our courts should decide, not Congress--and that is a matter of principle protected in the House's FISA bill.

There is today, as divided as we are, very much that we agree upon: We all want to prevent terrorist attacks, we all want to gather effectively as much intelligence as possible, and we all want to bring those who would attack us to justice before they strike us. But we undermine--not strengthen--our cause when we subvert our Constitution, throw away our system of checks and balances, and disregard human dignity. We also accept a false choice between security and liberty. There is no need to. That is why, yesterday, I stood up for the belief that the rule of law isn't just compatible with--but essential to--keeping our homeland safe. We owe Americans a better FISA bill.

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