FISA Amendments Act Reauthroization Act of 2012 - Continued

Floor Speech

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Mr. UDALL of Colorado. Madam President, I rise, as many have today, to talk about the Foreign Intelligence Surveillance Act. Before I get to the substance of my remarks, I wish to acknowledge the great leadership and work that both the chairwoman and the vice chairman provide for the committee. We would not be here today without their focus and their commitment to maintaining the best intelligence community, I believe, in the world. I also want to thank my colleague Senator Wyden and the others who have spoken today on the floor about the authorities under the FISA Amendments Act.

I would suggest that most Americans likely do not recognize the name of the bill, but I am certain they have heard about what this bill addresses; that is, government surveillance of communications. This is an issue that is critical to get right because if it is done wrong, it can strike at the core of our constitutional freedoms. So I wanted to thank our Senate leadership today for providing us time to discuss what is a very important issue. I might suggest that the topic at hand is important enough to require multiple days of debate, but given the gravity and the number of other issues we must confront before the end of the year, I am grateful for this debate and the discussion we are having for most of this day.

Some observers may even question why we are taking even this limited amount of time to debate a bill we here in the Senate expect to pass easily. The truth is that even though many Senators are likely to vote for this bill, it is incomplete and it needs reforms. In fact, part of the reason this debate is so important is because I believe Congress and the public do not have an adequate understanding of the effect this law has had and could have on the privacy of law-abiding American citizens.

This is an important subject. It is an important question. That is why a number of us have taken to the floor today to spend some time highlighting the issues at hand in the hopes our colleagues will join us in striking the right balance, one that preserves foundational values and constitutional liberties while still allowing us to effectively and forcefully prosecute our war on terror.

I was a Member of the House in 2008 when the FISA Amendments Act passed Congress and was signed into law. I voted for it then, along with most of my Democratic colleagues in the House.

In March 2008 many of us in the House viewed the FISA Amendments Act--or the FAA, in shorthand--as an improvement over the status quo. Why was that so? It was because it put a legal framework around President Bush's warrantless wiretapping program and it updated the Foreign Intelligence Surveillance Act--or FISA, as it is known in shorthand--to respond to changes in technology and to hold that administration accountable.

As I noted 4 years ago during that debate, the bill also included important provisions that for the first time required intelligence agencies to seek a judge's permission before monitoring the communications of Americans overseas. That meant the Federal Government could no longer monitor the e-mail or phone calls of Americans overseas without a warrant.

In my remarks, I am going to talk on a number of occasions about warrants and the check they provide on government overreach. That was an important part of that debate in 2008. Back in that year, back in 2008, it was Senator Wyden, who is here on the floor today, who was instrumental in including that particular provision in the final FISA Amendments Act legislation. From the perspective of a House Member at that time, I was pleased, glad, and appreciated that we had Senator Wyden's leadership right here in the Senate.

I now have the great privilege to serve on the Senate Intelligence Committee with Senator Wyden. I have to admit that from the position I now have, I am viewing the FISA Amendments Act through a different lens. As a member of that committee, I learned a great deal more about our post-9/11 surveillance laws and how they have been implemented. In the course of my 2 years on the committee, I have determined that there are reforms that need to be made to the FISA Amendments Act before we renew it into law.

As we prepare to renew the FISA Amendments Act for the first time since 2008, it is important that we take this opportunity to address several flaws that have become apparent to me and a number of our colleagues. Fortunately, the sunset provision in the original bill effectively provides us with that opportunity so that today we can ensure that the statute still tracks with our foreign intelligence requirements and the interests of the American people. In addition, to remain an effective law, the sunset provision helps ensure that the FISA Amendments Act's authorities keep up with today's state of technology.

Let me be clear that I strongly believe that for our national security, the Federal Government needs ways in which to monitor communications to ensure that we remain a step ahead of our enemies and terrorists. I also strongly believe we need to balance the civil liberties embodied in our Constitution with our ongoing fight against terrorists.

We need only look to recent history to understand why Congress needs to keep a tight rein on these surveillance efforts. It was in the months after 9/11, just shortly after 9/11 that President Bush first authorized what we now refer to as the secret warrantless wiretapping program. Many legitimate concerns were raised about that program, and Congress wisely went back and put some limits on it in that 2008 law. But we have an opportunity to discuss today whether those limits went far enough and whether the circumstances that prompted the creation of the program in 2001 and its passage into law in 2008 still justify its existence today.

I am a member of both the Armed Services and Intelligence Committees, and I will be the first to say that terrorism remains a serious threat to the United States, and we must be as diligent as ever in protecting our fellow American citizens. I can also say with confidence that the FISA Amendments Act has been beneficial to the protection of our national security.

In the Senate Intelligence Committee, I receive regular briefings on our efforts to combat terrorism abroad and here at home in the United States, including the benefits and accomplishments of the FISA Amendments Act. I think the threats--I should say I not only think, I know the threats we still face today do justify the extension of these authorities. I don't question the value of the foreign intelligence the FAA provides. But my question to my colleagues and the administration is whether a 5-year straight extension of these authorities, without any changes, is the best way forward. In my view, it is not.

I recognize that even after Osama bin Laden's death, we still face numerous threats. Make no mistake about it, terrorism is a serious threat to our homeland and to American lives, and terrorism has also forced us to have a conversation about our civil liberties and the balance between our privacy and the need to confront threats to our Nation. I strongly believe our commitment to protect the American people should not force us to abandon the foundational principles that make us a beacon for the rest of the world. This is a false choice. We must, as the Federal Government and the protectors of our Constitution, protect the constitutional liberties of the American people and live up to the standard of transparency our democracy demands.

As I mentioned, I am the only Senator on our side of the aisle who serves on both the Intelligence Committee and the Armed Services Committee, and I believe I have a unique perspective when evaluating the critical balance between protecting our national security and the rights of American citizens. It is the responsibility of Congress to find that balance between the will of the many and the rights of the few, the security of the country and the freedom of its citizens. In times of war and crisis, finding this balance--and it is a delicate balance--can be even more challenging, and there are unfortunate times in our Nation's history when we have lost sight of our principles and what the United States represents as a nation.

I understand that the law requires the intelligence community to conduct oversight of FAA implementation, that the Foreign Intelligence Surveillance Court reviews the legality of the procedures, and that the congressional Intelligence Committees conduct our oversight of FISA programs. But nearly all of this oversight is conducted in secret. I know my constituents trust me to conduct this oversight, but I believe the people too have a role in keeping a watchful eye on the government.

As Senators Rockefeller and Wyden wrote in a letter to the Bush administration officials in 2008, ``secrecy comes with a cost'' which can--and I want to quote these two valued and wise Senators--``make it challenging for Members of Congress and the public to determine whether the law adequately protects both national security and the privacy rights of law-abiding Americans.''

With that general overview, I wish to talk about some of the specifics in this particular bill we are considering today. I would like to get to the core of my concerns.

As my colleagues know, section 702 of the FISA Amendments Act established a legal framework for the government to acquire foreign intelligence by targeting non-U.S. persons who are reasonably believed to be located outside the United States under a program approved by FISA and the FISA Court, I should add. Because section 702 does not involve obtaining individual warrants, it contains language specifically intended to limit the government's ability to use these new authorities to deliberately spy on American citizens.

Earlier this year Senator Wyden and I opposed the bill reported out of the Senate Intelligence Committee extending the expiration date of the FISA Amendments Act of 2008 from December 2012 to June 2017. We opposed this long-term extension because we believe Congress does not have an adequate understanding of the effect this law has had on the privacy of law-abiding citizens. In our view, it is important for Members of Congress and the public to have a better understanding of the foreign intelligence surveillance conducted under the FAA so that Congress can consider whether the law should be modified rather than simply extended without changes.

This has been a longstanding quest for a number of us. In fact, while I have been outspoken on this issue, the effort to better understand the FAA's implementation precedes my time on the Senate Intelligence Committee. Senator Wyden and others have been pressing the intelligence agencies for years to provide more information to Congress and the public about the effect of this law on Americans' privacy.

I think Senator Wyden and the others would agree with me that to his credit, the Director of National Intelligence in July 2012 agreed to declassify some facts about how the secret FISA Court has ruled on this law. So what did we learn from that declassification? Well, specifically, it is now public information that on at least one occasion, the FISA Court has ruled that some collection carried out by the government under the FISA Amendments Act violated the fourth amendment. The court has also ruled that the government has circumvented the spirit of the law.

So much about this law's impact remains secret. What do I mean by that? Well, for example, Senator Wyden, I, and others have been trying to get a rough estimate of how many Americans have had their phone calls or e-mails collected and reviewed under these authorities. The Office of the Director of National Intelligence told us in July 2011 that ``it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed'' under the FISA Amendments Act.

We are prepared to accept that it might be difficult to come up with an exact count of this number, but it is hard for us to believe that the Director of National Intelligence and the whole of the intelligence community cannot come up with at least a ballpark estimate. This is disconcerting. Our concern about numbers is this: If no one has even estimated how many Americans have had their communications collected under the FISA Amendments Act, then it is possible that this number could be quite large.

So how did we respond? Well, during a markup in our committee, we offered an amendment that would have directed the inspectors general of the intelligence community and the Department of Justice to produce a rough estimate of how many Americans have had their communications collected under section 702. Our amendment did not pass, but we will continue our efforts to obtain this information because the American people deserve to know.

There are those who are satisfied with the law's current privacy protections, and they point out that classified minimization procedures guide how government officials handle information on Americans' communications. But I don't believe those procedures are a substitute for strong privacy protections incorporated into the law itself. Do we really want accountability for those protections to be secret? Do we really want to be dependent upon the good will of future administrations to keep faith with the so-called minimization procedures?

That is why I believe the FISA Amendments Act extension should include clear rules prohibiting the government from searching through the incidental or accidental collection of these communications unless the government has obtained a warrant or emergency authorization permitting surveillance of that American. Our founding principles demand no less.

Senator Wyden and I offered an amendment during the committee's markup of this bill that would have clarified the law to prohibit such searches. Our amendment included exceptions for searches that involve a warrant or an emergency authorization, as well as for searches on phone calls or e-mails of the people who are believed to be in danger or who consent to the search, each of which is important.

Our amendment to close this backdoor search loophole did not pass in committee, but we remain concerned--I would say very concerned--that this loophole could allow the government to effectively conduct warrantless searches for Americans' communications. Especially since we do not know how many Americans may have had their phone calls and e-mails collected under this law, we believe it is particularly important to have strong rules in place to protect the privacy of our fellow Americans.

As the majority report noted when the Senate bill passed out of the committee: ``Congress recognized at the time the FISA Amendments Act was enacted that it is simply not possible to collect intelligence on the communications of a party of interest without also collecting information about the people with whom, and about whom, that party communicates, including in some cases nontargeted U.S. persons.''

Therefore, I understand that in scooping up large amounts of data, it may be impossible not to accidentally catch some Americans' communications along the way--seems logical. The language of the law--the collection of foreign intelligence of U.S. persons reasonably believed to be located outside the United States--anticipates that incidental or accidental collection of Americans' e-mails or phone calls would, in fact, occur. But under the FISA Amendments Act, as it is written, there is nothing to prohibit the intelligence community from searching through a pile of communications, which may have incidentally or accidentally been collected without a warrant, to deliberately search for the phone calls or e-mails of specific Americans.

Again, I understand--and I think I can speak for Senators WYDEN and others of us who have this concern--this could happen by accident. But I don't think the government should be doing this on purpose without getting a warrant or an emergency authorization regarding the American they are looking for.

I have noted that Senator Wyden and I call this the backdoor searches loophole. Understandably, the Intelligence Committee doesn't much like that term, arguing there is no loophole. But I think we are going to have to agree to disagree on the terminology. I don't believe, though, that Congress intended to authorize the searches when they voted for the FISA Amendments Act in 2008. I know I certainly didn't.

The intelligence agencies have not denied that section 702 gives the NSA the authority to conduct these searches, and it is a matter of public record the intelligence community has sought to preserve this authority. If it is not classified that intelligence agencies have this authority and it is not classified they would like to keep it, we think it is reasonable to tell the public whether and how it has ever been used. Yet when Senator Wyden and I and 11 other Senators asked whether intelligence agencies have already done this, we were told the answer was classified.

My concern is that this section 702 loophole could be used to circumvent traditional warrant protections and search for the communications of a potentially large number of American citizens. The Senate Intelligence Committee majority report argues there may be circumstances in which there is a legitimate foreign intelligence need to conduct queries on data already in its possession, including data from accidentally or incidentally collected communications of Americans. I would argue, if there is evidence that an American is a terrorist or spy or involved in a serious crime, the government should be permitted to search for the communications of that American by getting a warrant or an emergency authorization.

In that spirit, Senator Wyden and I have offered this backdoor searches loophole amendment once again to this bill, and we intend to continue to bring attention to this issue until our colleagues grasp what could be at stake should this loophole not be closed. We have also filed a second amendment which seeks to instill some transparency to surveillance conducted under FISA Amendments Act authorities.

What is included in this amendment? It requires the Director of National Intelligence to provide information to Congress that we have requested before but that we have not yet received, including a determination of whether any government entity has produced an estimate of the number of U.S. communications collected under the FISA Amendments Act; an estimate of such number, if any exists; an assessment of whether any wholly domestic U.S. communications have been collected under the FISA Amendments Act; a determination of whether any intelligence agency has ever attempted to search through communications collected under the FISA Amendments Act to find the phone calls or e-mails of a specific American without obtaining a warrant or emergency authorization to do so; and finally, a determination of whether the NSA has collected any type of personally identifiable information on more than 1 million Americans.

The amendment states the report produced by the Director of National Intelligence shall be made available to the public, but it gives the President the authority to make any redactions he believes are necessary to protect national security.

Colleagues, I am going to conclude by restating my belief that the American people need a better understanding of how the FISA Amendments Act, section 702, in particular, has affected the privacy of our fellow Americans. I also believe we need new protections against potential warrantless searches for Americans' communications. I believe without such reforms Congress should not simply extend the law for 5 years.

We need to strike a better balance between giving our national security and law enforcement officials the tools necessary to keep us safe but not damage the very constitution we have sworn to support and defend. National security and civil liberties can coexist. We do not need to choose between them.

In Federalist 51, James Madison stated--and I would like to quote that great American:

In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

The bill that is before us could come closer to that standard if we improve it through some of the amendments being offered by my colleagues and me, but it does not live up to that standard now. The American people deserve their privacy, they deserve to know how the intelligence community interprets and implements this law, and, frankly, they deserve better than the protections put before us today.

I urge my colleagues to consider the gravity of the issues at hand and seriously consider and contemplate the effect of another 5 years of unchanged FAA authorities.

I appreciate the attention of the Chair and the patience of my colleagues on this important matter. I yield the floor, and I suggest the absence of a quorum.

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