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Public Statements

FISA Amendments Act of 2008 - Motion to Proceed

Floor Speech

Location: Washington, DC

FISA AMENDMENTS ACT OF 2008--MOTION TO PROCEED -- (Senate - June 26, 2008)


Mr. GRAHAM. Mr. President, the Senate is taking up a matter that I think is very important to the American people and our national security, and that is to pass the compromise reached by the House and the administration regarding the FISA program.

I want to briefly lay out my view of how the law works in this area. The initial approach by the Bush administration that there was no requirement to comply with the FISA statute, the Foreign Intelligence Surveillance Act, because of inherent authority of the Executive in a time of war I didn't agree with, quite frankly. The idea that an American would be travailed by an agency of our Government if that American citizen was suspected of being involved with the enemy--a fifth column movement, for lack of a better term--and there would be no court review was unacceptable to me.

If an American citizen is suspected of collaborating with the enemy, I think there is a requirement for the Government to have its homework checked, have a judge authorize further surveillance in a kind of balanced approach. Once there is a reasonable belief that an American citizen may be involved with enemy forces, that becomes a crime of treason, potentially.

I do think it is appropriate for Congress to pass a statute that would say when an American citizen is suspected of being involved with an enemy force, taking up arms against the United States--uniformed or not--the FISA statute applies. The inherent authority of the Executive to conduct surveillance in a time of war is limited, or can be limited by the other branches of Government.

Having said that, this idea that at a time of war you need a warrant to surveil the enemy, when no American citizen is involved, is crazy. We have never in any other war gone to a judge and said: We are listening to enemy forces--for instance, two suspected members of al-Qaida, non-American citizens--and we need a warrant. You don't need that. That is inherent in the ability to conduct military operations, to monitor the enemy.

Those who want to basically criminalize the war, I disagree in equal measure. We are at war, and there is an effort by our intelligence agencies out there to monitor phone calls and other electronic communications of a very vicious enemy that is intent on attacking us again. That program has been shut down because of this dispute.

We have finally found a compromise which would allow the program to move forward, protecting American citizens who may be suspected of being involved with enemy forces, and also allowing the Commander in Chief and our military intelligence community to aggressively monitor networks out there that wish us harm. In this global world in which we live, the technology that is available to the enemy is different than it was in 1978. So we have modernized FISA and made it possible for our intelligence community to be able to keep up with the different technologies that enemy forces may be using to communicate.

I can assure the American people that this program has been of enormous benefit, the terrorist surveillance program. It has allowed us to stay ahead of enemy activity, and with terrorism you do not deter them by threatening them with death. That is something they welcome. Other enemies in the past have been deterred from attacking America because they know an overwhelming response will come their way. In the Cold War, it was called mutually assured destruction. With terrorist organizations that would gladly forfeit the lives of mentally handicapped young people, and others, you have no idea what they are up to, and you just try to isolate them the best you can. Finding out what they are up to and following their movements is essential because you have to preempt them before they are able to attack.

We have a compromise that has come from the House to the Senate that I can live with. The sticking point was the role our telecommunications companies played in the terrorist surveillance program. It is my understanding that the Attorney General--the chief law enforcement officer of the land--and the Department of Justice gave a letter to the telecom companies involved, saying: Your cooperation with our intelligence communities and military surveillance program is legal and appropriate, and we need your help because a phone call made in Afghanistan, because of the global economy in which we live, may be routed through an American system here, and the two people talking are not citizens, but there may be a telecommunications involvement in terms of routing of the phone call, and we need assistance from the telecom companies to be able to track the technology that exists today that is being used by the enemies of the country.

The idea that somebody would want to sue them because they broke the law, after they have been told by the Department of Justice and the Attorney General their help was needed and it was lawful for them to help, misses the point.

What are we trying to do as a country? Are we trying to avoid the fact that we are at war by talking about lawsuits that undermine the ability of our country to protect itself? I am very much for civil liberties. I don't want any American, as I said before, to be followed by an agency of our Government, suspecting they are cooperating with al-Qaida or another terrorist group, and not have the Government's work looked at by a judge. I would not want that to happen to anybody. If you think anybody who is an American citizen is helping the enemy, you ought to be able to go to a judge and get a warrant. But this idea of having the American telecommunications companies, which were cooperating with the Government in a fashion to help our forces and our intelligence community stay ahead of an enemy, be subject to a civil lawsuit is riduculous. That is not the appropriate remedy.

If we allow these companies who have been asked by their Government, through the chief law enforcement officer of the land, to participate in the program--if we ask them to participate and then sue them, who is going to help us in the future? This is pretty basic stuff for me. If we do not protect these companies from lawsuits that are existing out there, when they were willing to help the Government--if we don't give them protection, nobody in the future is going to come and help us. We need all the help we can get. We need help from banks, telecommunications companies, and we need help from all kinds of different corners of the private sector to beat this enemy. We are all in it together.

The terrorists use banks to funnel money. Well, the banks can help us if we suspect that an account exists that is being used by a terrorist organization. We should be able to track that down. We are all in this together.

The private sector plays a role in the war on terrorism. Every citizen can play a role in the war on terrorism by being vigilant. We finally reached a deal that would allow the program to be reauthorized, protecting civil liberty and telling the telecommunications companies that helped us: You are not going to get sued.

To my dear friend, Senator Specter--his solution is to let the lawsuits come forward but shield the companies by having the Government take legal responsibility and be subject to being sued. That is not the right answer either. Our Government wasn't doing a bad thing. Our Government was doing a good thing. Our Government was trying to find out what enemies of this Nation were up to before it was too late.

We have had a lot of warnings in the past that were ignored. How many times do we have to deal with this terrorist problem through the law enforcement model to only wake up and find out that we were wrong? The law enforcement model will not work. The law enforcement model punishes people after they commit the crime. We are at war. Our goal is to keep them from attacking us. The military model is the one we should pursue. In every other war, the private sector itself has helped the Government defeat the enemies of this country.

When Senator Obama says he would like this provision taken out of the bill--protection for telecommunications companies from lawsuits--that he would like that taken out of the bill, what he is telling the Senate, the House, and the country is that this deal will fall apart. If we took this provision out, there would be no deal. People like me would not allow this process to go forward--and we had to give some. There was a give on the part of the administration and people like myself. There are some programs that I think are inherent to fighting the war that now have to be reviewed by the court. But that was a compromise.

So for Senator Obama to come and say that he would take this provision out is saying that he does not believe in a bipartisan deal on the subject matter in question. The left has gone nuts over there--the hard left. They think this is totally unacceptable. So, apparently, he is going to tell them: I don't support this. I am sure that is what they want to hear. But I say to my colleague, deals require giving and taking. It requires sometimes telling your friends what they don't want to hear. This is an example, in my opinion, of trying to tell your friends what they want to hear and positioning yourself in a way to look good with the public in general.

That is not leadership. Leadership requires the common good to trump special interests. It requires political leaders to turn to their allies at times and say: No, your suggestion cannot win the day because if I give you what you are insisting on having, there will be no movement forward.

Senator Obama is willing to give the left what they want. The consequence of that would be that the deal would fall apart because many people like me believe if you allow these companies to be sued for helping their country, then nobody will come forward in the future to help their country from the private sector.

In this war, we are going to need support from the private sector, not only in telecommunications but in banking and other areas. So I hope the amendment to strike the retroactive immunity for telecommunications companies will be defeated because, if it is passed, the deal fails, the movement forward stops, and America is harmed. I am here to support the deal.

Understand that I didn't get all I wanted, but America will be safer if we can get this program reauthorized. Our civil liberties will be better protected, and the ability to understand what our enemies are up to will be greatly enhanced. Every day that we move forward as a nation with this program being compromised is a day that the enemy has an advantage over us. We know what happens if this enemy is not dealt with firmly and quickly. They are lethal, they are committed, and they will do anything to harm our way of life.

We have an opportunity to come together as Republicans and Democrats and move forward on a surveillance program that is vital to our national security, and those who want to undo this deal because of special interest pressure are not exercising the leadership the American people need in a time of war.

With that, I yield the floor.


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