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FISA Amendments Act Reauthorization Act of 2012

Floor Speech

Location: Washington, DC


Mr. MERKLEY. Mr. President, I rise this morning to talk about the Foreign Intelligence Surveillance Act and the concerns I and many of my colleagues have.

Earlier this morning, Senator Wyden, the senior Senator from Oregon, was discussing at length the importance of the fourth amendment, the importance of Americans knowing the boundaries and the rules under which our government collects intelligence and to know their rights to privacy are protected.

Under this Foreign Intelligence Surveillance Act, there are a variety of ways in which that assurance is compromised, and Senator Wyden did a very good job of laying those out. I wish to emphasize that same message; that our country was founded on the principles of privacy and liberty, of protection from an overreaching central government.

During the founding, we set out and said we are going to be a new kind of nation; one that will not permit an overbearing, intrusive government spying on citizens or meddling in their private affairs. This belief was enshrined in our fourth amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I think that is an extraordinarily complete description saying that the government is bound--bound--by having to demonstrate before a court probable cause a case that is put forward and backed up by oath or affirmation, a case that is put forward with great detail about the places to be searched and the persons or things to be seized.

So the concept is laid out very clearly about what constitutes unreasonable searches and seizures. It is certainly not that the government can't collect information, just they have to show probable cause of a crime in order to create that boundary that says the information we have in our daily lives. I don't know how much broader it can be than houses, papers, and effects. It pretty much covers the entire parameter.

One of the problems we have is that sometimes lawyers start looking for loopholes, and we can address those loopholes if they are discussed in a public setting, if we can get our hands around them. But if they are loopholes created in secrecy, then indeed it is very hard to have a debate on the floor of the Senate about whether those loopholes or interpretations are right or whether we should change the law in order to address them.

Of course, our laws have had to be updated and changed over time to adapt to new technology and changing threats, and one of those developments was the creation of the Foreign Intelligence Surveillance Act in the 1970s.

In 1972, the Supreme Court held the fourth amendment does not permit warrantless surveillance for intelligence investigations within our country. One may wonder how this even took a Supreme Court decision since the fourth amendment is so absolutely clear on this point.

In 1978, Congress enacted FISA--Foreign Intelligence Surveillance Act--to regulate government surveillance within our country that is conducted for foreign intelligence purposes. Under FISA, the government had to obtain an order from a special court called the FISA Court in order to spy on Americans. This is certainly an appropriate boundary to implement. The order required the government to obtain a warrant and show probable cause. These are the same basic, commonsense protections we have had in place for other types of searches. This development required individualized and particular orders from the FISA Court to collect communications.

But now let's fast forward to 2001. President Bush decided in secret to authorize the National Security Agency to start a new program of warrantless surveillance inside the United States. This is in complete contravention of the fourth amendment and in complete contravention of the law at that time. As I am sure many of my colleagues will certainly recall, this was revealed to the American people 4 years later when it was reported in the New York Times in 2005. In response, after years of back and forth contentious debate, Congress passed the FISA Amendments Act--the bill we are considering on this floor today. We are considering a reauthorization.

This law gave the government new surveillance authority but also included a sunset provision to ensure that Congress examines where the law is working and the way it was intended.

The debate we are having right now on this floor is that reexamination. I will note that I think it is unfortunate that we are doing this at the last second. We have known that this intelligence law is going to expire for years. It was laid out for a multiyear span. Certainly, it is irresponsible for this Chamber to be debating this bill under a falsely created pressure that it needs to be done without any amendments in order to match the bill from the House. That is a way of suppressing debate on critical issues here in America.

If you care about the fourth amendment, if you care about privacy, you should be arguing that we should either create a very short-term extension in order to have this debate fully or that we should have had this debate months ago so it could have been done in a full and responsible manner, with no pressure to vote against amendments in order to falsely address the issue of partnering with the House bill.

This law included that sunset provision. Now here we are looking at the extension. It is a single-day debate, crowded here into the holidays when few Americans will be paying attention. But I think it is important, nonetheless, for those of us who are concerned about the boundaries of privacy and believe the law could be strengthened to make our case here in hopes that at some point we will be able to have the real consideration these issues merit.

In my opinion, there are serious reforms that need to be made before we consider renewing this law. This law is supposed to be about giving our government the tools it needs to collect the communications of foreigners, outside of our country. If it is possible that our intelligence agencies are using the law to collect and use the communications of Americans without a warrant, that is a problem. Of course, we cannot reach conclusions about that in this forum because this is an unclassified discussion.

My colleagues Senator Wyden and Senator Udall, who serve on Intelligence, have discussed the loophole in the current law that allows the potential of backdoor searches. This could allow the government to effectively use warrantless searches for law-abiding Americans. Senator Wyden has an amendment that relates to closing that loophole.

Congress never intended the intelligence community to have a huge database to sift through without first getting a regular probable cause warrant, but because we do not have the details of exactly how this proceeds and we cannot debate in a public forum those details, then we are stuck with wrestling with the fact that we need to have the sorts of protections and efforts to close loopholes that Senator Wyden has put forward.

What we do know is that this past summer, the Director of National Intelligence said in a public forum that on at least one occasion the FISA Court has ruled that a data collection carried out by the government did violate the fourth amendment. We also know that the FISA Court has ruled that the Federal Government has circumvented the spirit of the law as well as the letter of the law. But too much else of what we should know about this law remains secret. In fact, we have extremely few details about how the courts have interpreted the statutes that have been declassified and released to the public. This goes to the issue of secret law my colleague from Oregon was discussing earlier. If you have a phrase in the law and it has been interpreted by a secret court and the interpretation is secret, then you really do not know what the law means.

The FISA Court is a judicial body established by Congress to consider requests for surveillance made under the FISA Amendments Act, but, almost without exception, its decisions, including significant legal interpretations of the statute, remain highly classified. They remain secret.

I am going to put up this chart just to emphasize that this is a big deal. Here in America, if the law makes a reference to what the boundary is, we should understand how the court interprets that boundary so it can be debated. If the court reaches an interpretation with which Congress is uncomfortable, we should be able to change that, but of course we cannot change it, not knowing what the interpretation is because the interpretation is secret. So we are certainly constrained from having the type of debate that our Nation was founded on--an open discussion of issues.

These are issues that can be addressed without in any way compromising the national security of the United States. Understanding how certain words are interpreted tells us where the line is drawn. But that line, wherever it is drawn, is, in fact, relevant to whether the intent of Congress is being fulfilled and whether the protection of citizens under the fourth amendment is indeed standing strong.

An open and democratic society such as ours should not be governed by secret laws, and judicial interpretations are as much a part of the law as the words that make up our statute. The opinions of the FISA Court are controlling. They do matter. When a law is kept secret, public debate, legislative intent, and finding the right balance between security and privacy all suffer.

In 2010, due to concerns that were raised by a number of Senators about the problem of classified FISA Court opinions, the Department of Justice and the Office of the Director of National Intelligence said they would establish a process to declassify opinions of the FISA Court that contained important rulings of law. In 2011, prior to her confirmation hearing, Lisa Monaco, who is our Assistant Attorney General for National Security, expressed support for declassifying FISA opinions that include ``significant instructions or interpretations of FISA.''

So here we have the situation where the Department of Justice and the Office of the Director of National Intelligence said they would establish a process of declassifying opinions. They understood that Americans in a democracy deserve to know what the words are being interpreted to mean. We have the Assistant Attorney General for National Security during her hearings express that she supports significant instructions or interpretations being made available to the public. But here we are 2 years later since the 2010 expressions and a year from the confirmation hearings for Lisa, and nothing has been declassified--nothing.

The amendment I am offering today sets out a three-step process for sending the message it is important Americans know the interpretations of these laws. It does so in a fashion that is carefully crafted to make sure there is no conflict with national security.

First you call upon the Attorney General to declassify the FISA report in court of review opinions that include significant legal interpretations. If the Attorney General makes a decision, however, that it cannot be declassified--those decisions--in a way that does not jeopardize national security, then the amendment requires the administration to declassify summaries of their opinions.

So at the first point, you have the official written court opinions. But possibly woven into those court opinions are a variety of contexts about ways and manner of gathering intelligence that pose national security problems. This amendment says: OK, if that is the case, we certainly do not want to disclose sensitive information about ways and means of collecting intelligence, so declassify summaries. That way, we can understand the legal interpretation without adjoining information that might represent a national security problem.

This amendment goes further. If the Attorney General decides that not even a summary can be declassified without compromising national security, then the amendment requires the administration to report to Congress regarding the status of its process for declassifying these opinions--a process the administration has already said it is undertaking. It just says: Tell us where you are.

It is probably very clear from my discussion that I would prefer that the opinions, the actual court opinions, be declassified and that perhaps, if they are sensitive, the national security information would be redacted. That is the normal process in which documents are declassified--you black out or remove sections that are sensitive. But the amendment I am presenting goes further on the side of protecting national security, saying: You don't have to just redact court opinions, you can do a summary that addresses significant legal implications without addressing the ways and means that might be embedded in a further court decision. Furthermore, Mr. Attorney General, if you make a decision that not even that is possible, then update us on the process.

But the key point is that it requires the Attorney General to make a decision, a clear decision over the national security balance and provide what can be done within the context, within the framework of not compromising our national security.

This is so straightforward that anyone bringing the argument to this floor that we should not do it because it compromises national security really has no case to make--absolutely no case to make.


Mr. MERKLEY. Mr. President, I thank my colleagues for setting out the parameters. I am going to wrap this up in fairly short order.

I again wish to emphasize that if any of my colleagues would like to come down and argue that this in any way compromises national security, I will be happy to have that debate because this has been laid out very clearly so the Attorney General has complete control over any possible compromise of information related to national security. Indeed, although I think it is important for this body to continue to express that the spirit of what we do in this Nation should be about citizens to the maximum extent possible having full and clear understanding of how the letter of the law is being interpreted.

Let me show an example of a passage. Here is a passage about what information can be collected: `` ..... reasonable grounds to believe that the tangible things sought are relevant to an authorized investigation (other than a threat assessment) conducted in accordance with subsection (a)(2),'' and so on.

Let me stress these words: ``relevant to an authorized investigation.''

There are ongoing investigations, multitude investigations about the conduct of individuals and groups around this planet, and one could make the argument that any information in the world helps frame an understanding of what these foreign groups are doing. So certainly there has been some FISA Court decision about what ``relevant to an authorized investigation'' means or what ``tangible things'' means. Is this a gateway that is thrown wide open to any level of spying on Americans or is it not? Is it tightly constrained in understanding what this balance of the fourth amendment is? We do not know the answer to that. We should be able to know.

If we believe that an administration and the secret court have gone in a direction incompatible with our understanding of what we were seeking to defend, then that would enable us to have that debate here about whether we tighten the language of the law in accordance with such an interpretation. Again, is this an open gateway to any information anywhere in the world, anytime, on anyone or is it a very narrow gate? We do not know.

American citizens should have the ability to know, and certainly a Senator working to protect the fourth amendment should know that as well. We have always struck a balance in this country between an overbearing government and the important pathway to obtaining information relevant to our national security.

The amendment I am laying forth strikes that balance appropriately. It urges the process to continue by providing an understanding of what the secret court interpretations are, which is very important to democracy. It provides the appropriate balance with national security, gives clear decisionmaking authority to the Attorney General of this process, and in that sense it gives the best possible path that honors national security concerns while demanding transparency and accountability for this issue of privacy and protection of the fourth amendment.


Mr. MERKLEY. I thank my colleague from Oregon for spearheading this whole conversation about privacy and national security and how the two are not at war with each other. We are simply looking for appropriate warrant processes, an assurance to the public that the boundaries of privacy are being respected. Certainly, a piece of that is the secret law. I appreciate the comments of the chair of the Intelligence Committee on this issue. I do feel that in a democracy, understanding how a statute is interpreted is essential to the conduct of our responsibility in forging laws and ensuring that the constitutional vision is protected.


Mr. MERKLEY. I thank Senator Wyden.

The Senator mentioned an Oregonian sitting in Coos Bay working on his or her laptop and calling the Senator's office and saying: Hey, the law says the government can collect tangible material related to an investigation. Does that mean they can collect all of my Web conversations--knowing that the Web circuits travel around the world multiple times and at some point they travel through a foreign space. They ask this question in all sincerity because they care about the fourth amendment and their privacy.

How much ability do we have to give them a definitive answer on that?


Mr. WYDEN. Absent the information we are seeking to get under the amendment I am going to offer, I do not think it is possible for a Senator to respond to the question.

The issue for an individual Senator would be: Do you know whether anyone has ever estimated how many U.S. phone calls and e-mails have been warrantlessly collected under the statute? Do you know whether any wholly domestic phone calls and e-mails have been collected under this statute, which I believe is the exact question my colleague from Oregon has asked.

I do not believe a Member of the Senate can answer that question. Being unable to answer that question means that oversight, which is so often trumpeted on both sides of the aisle, is toothless when it comes to the specifics.

I hope that responds to my colleague's question.

Mr. MERKLEY. Absolutely. I think about other questions our constituents might ask. They might ask if our spy agencies are collecting vast data from around the world and they become interested in an American citizen, can they search all that data without getting a warrant--a warrant that is very specific to probable cause and an affirmation.

Again, I suspect the answer we could give to the citizen would be that we cannot give a very precise evaluation of that, not knowing how the concept of information related to an investigation has been interpreted and laid out.

Mr. WYDEN. My colleague is asking a particularly important question because the Director of the National Security Agency, General Alexander, recently spoke at a large technology conference, and he said that with respect to communications from a good guy, which we obviously interpret as a law-abiding American, and someone overseas, the NSA has ``requirements from the FISA Court and the Attorney General to minimize that''--to find procedures to protect the individual, the law-abiding American's rights, essentially meaning, in the words of General Alexander, ``nobody else can see it unless there's a crime that's been committed.''

If people hear that answer to my colleague's question--which, frankly, General Alexander responded to directly--they pretty much say that is what they were hoping to hear; that nobody is going to get access to their communications unless a crime has been committed.

The only problem, I would say to my friend, is Senator Udall and I have found out that is not true. It is simply not true. The privacy protections provided by this minimization approach are not as strong as General Alexander made them out to be. Senator Udall and I wrote to General Alexander, and he said--and I put this up on my Web site so all Americans can see the response--the general said: That is not really how the minimization procedures work--these minimization procedures that have been described in such a glowing way--and that the privacy protections are not as strong as we have been led to believe. He may have misspoken and may have just been mistaken, but I am not sure the record would be correct even now had not Senator Udall and I tried to make an effort to follow it up.

I can tell the Senator that at this very large technology conference--this was not something that was classified--at a very large technology conference recently in Nevada, what the head of the National Security Agency said was taking place with respect to protecting people, in response to my colleague's questions: Were their e-mails and phone calls protected, the general said to a big group: They are, unless a crime has been committed. The real answer is that is not correct.

Mr. MERKLEY. I thank my colleague from Oregon for being so deeply invested in the details of this over many years, utilizing a fierce advocacy in support of the fourth amendment and privacy to bring to these debates. I also thank the chair of the Intelligence Committee for her comments earlier today about secret laws and her own concerns about that and her willingness to help to work to have the administration provide the type of information that clarifies how these secret opinions interpret statutes. My thanks go to the Senator from California, Mrs. Feinstein.


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