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FISA Amendments Act Reauthorization Act of 2012 - Continued

Floor Speech

Location: Washington, DC


Mr. CHAMBLISS. Madam President, I rise today in support of H.R. 5949, the FISA Amendments Act Reauthorization Act of 2012. Before I speak on it as vice chairman of the Intelligence Committee, I wanted to say that this bill, along with many other products that have come out of the Intelligence Committee, has been put together in a strong bipartisan way under the leadership of our chairman Senator Feinstein, who has been a great advocate for the national security of the United States and a great advocate for our men and women in the intelligence community. I would be remiss if I did not say as we conclude this year, which is the second of the 2 years I have been vice chair, what a privilege and pleasure it has been to work with her. I thank her for her leadership and all of the issues we have worked on together.

This bill, which passed the House with broad bipartisan support, provides a clean extension of the FISA Amendments Act until December 31, 2017. Earlier this year, with strong bipartisan support, the Senate Intelligence Committee also reported the bill with a clean extension, although it had a slightly earlier sunset of June 1, 2017. So we have two bills--one from each Chamber--that recognize that the FAA must be reauthorized for the next 5 years. Both bills also confirm that there should be no substantive changes to the FAA itself. But time is running short before these vital authorities expire, as they expire on December 31. So it makes the most sense for the Senate to simply pass the House bill and send it to the President for his immediate signature so that we have no gap in collection on those who seek to do us harm, as they are out there every day seeking to do that.

As we debate the merits of passing a clean extension of the FAA, I think it is important to remember why the FAA is so necessary. The terrorist attacks by al-Qaida on September 11, 2001, highlighted a significant shortfall in our ability to collect foreign intelligence information against certain overseas targets. Our intelligence community took operational measures to address that shortfall but eventually realized that additional FISA authorities were needed to fully address the problem.

More than 5 years ago, after an adverse ruling from the Foreign Intelligence Surveillance Act Court, the Director of National Intelligence requested that Congress act immediately to stem the sudden and significant reduction in the intelligence community's capability to collect foreign intelligence information on overseas targets. So Congress responded--first with the Protect America Act of 2007 and then with the FISA Amendments Act of 2008. By providing a statutory framework for acquiring foreign intelligence information from overseas targets, the FAA has enabled the intelligence community to identify and neutralize terror networks before they harm us either at home or abroad.

While I cannot get into specific examples, I can say definitively that these authorities work extremely well. I encourage all of my colleagues to go to the Intelligence Committee's spaces and review the classified materials provided by the intelligence community. These materials give the classified examples that clearly demonstrate the FAA's success.

Let me briefly highlight what some of those authorities do. Under section 702, the government may target persons reasonably believed to be outside the United States for the purpose of acquiring foreign intelligence information. However, there are a number of important limitations on this authority that are designed to ensure that this section 702 collection cannot be used to intentionally target a U.S. person under what we call reverse-targeting within the community. These acquisitions are authorized jointly through a certification by the Attorney General and the Director of National Intelligence and are approved by the FISA Court.

The plain language and legislative history of section 702 makes clear that Congress understood there would be incidental collection of one-end domestic and U.S. person communications. There has to be. If we impose an upfront ban on the collection of such communications, we could never do the acquisition in the first place because it is often impossible to determine in advance whether an unknown target overseas is, in fact, a U.S. person. So we need the broad ``any person'' authority at the outset to ensure that the acquisition can occur in the first instance. Moreover, Congress also understood that this incidental collection would likely provide the crucial lead information necessary to thwart terrorists like the 9/11 hijackers who trained and launched their attacks from within the United States. But because of legitimate concerns about the privacy of U.S. persons, Congress also placed specific safeguards on section 702 collection, including review and approval by the FISA Court of the AG-DNI certification and targeting and minimization procedures, a requirement that all acquisitions be consistent with the fourth amendment, and explicit prohibitions against certain conduct, such as intentionally targeting a U.S. person.

Because there are instances, however, in which we may need to target U.S. persons overseas who have betrayed their country as terrorists or spies, the FAA does include specific ways to do this. Similar to the authorities in title I of FISA, sections 703 and 704 allow the FISA Court to authorize collection against certain U.S. persons overseas. Before the FAA, this type of collection was authorized by the Attorney General and not by a court. The FAA enhanced the protections for U.S. persons by requiring individual FISA Court orders based on probable cause that the U.S. person is a foreign person, agent of a foreign power, or an officer or employee of a foreign power. As I understand it, most of the objections to the FAA relate to section 702 and what we call incidental collection.

I recommend again that my colleagues review the unclassified FAA background paper that was sent by the AG and by the DNI to Congress last February. That document was earlier made a part of the Record at my request. This paper describes the FAA authorities in some detail, and it highlights the layers of oversight by all three branches of government. These multiple oversight mechanisms are there primarily to protect U.S. persons.

I can tell you firsthand from my work on the Intelligence Committee on both the House and the Senate side that it is vigorous oversight. Every aspect of the FAA gets looked at closely by the executive branch, from the dedicated personnel responsible for operating the system, up through the managerial chain of command to the relevant inspectors general and all of the lawyers at the National Security Division at the Department of Justice and at the agencies responsible for FAA implementation. Twice a year, Congress gets reports on its implementation on top of what we learn from hearings, oversight visits, briefings, and notifications, as well as other reports that are given to Congress. The judicial branch, the FISA Court, plays its own key role by reviewing the certifications and the targeting and minimization procedures and ensuring that all of those comply with the law.

I cannot say that the implementation of the FAA has been perfect. Certainly there have been a few mistakes along the way over the past several years. Sometimes technology does not always work the way it is supposed to, and sometimes there is a disconnect between the way a collection device actually works and the way it has been described by the lawyers. But I can tell you that on those few occasions where something has not been quite right with how these authorities have been used, the oversight mechanisms put in place by the FAA have worked exactly as intended by Congress. When a problem arises, the Justice Department knows about it, the FISA Court knows about it, and Congress knows about it. The collection related to the problem stops until the problem gets fixed.

In my experience, the FAA is one of the most tightly overseen activities within the intelligence community. I know some people believe more oversight is needed, but I do not think there is justification for that. I am concerned that if we add more IG reviews, for example, we run the risk of taking scarce resources away from actual analysis and operations. That is not the right course, especially when we know the existing oversight mechanisms are working so well. These FAA authorities are simply too important to lose.

We have a bill before us that has passed the House and can be sent straight from this body to the White House for signature by the President. The President has said he will sign the House bill as soon as he receives it from this body. I urge my colleagues to join me in voting for a clean extension of the FISA Amendments Act until December 31, 2017.

I yield the floor.


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