Foreign Intelligence Surveillance Act--Motion to Proceed --
Floor Speech
FOREIGN INTELLIGENCE SURVEILLANCE ACT--MOTION TO PROCEED -- (Senate - December 17, 2007)
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Mr. CORNYN. Mr. President, I congratulate the distinguished chairman and vice chairman of the Senate Select Committee on Intelligence for what I think is an outstanding product--a bipartisan product. I can't think of an area that is more important for us to act in the interests of our national security in a bipartisan manner than the subject before us today. We should resist with all of our might any impulse or tug that we might feel to emphasize partisan differences, but instead we ought to pull together to try to do what is necessary to keep our eyes open and our ears to the ground when it comes to the collection of foreign intelligence.
Of course, the Foreign Intelligence Surveillance Act was passed in 1978 to ensure that Americans' civil liberties were being protected. At the same time, we made sure we were able to listen to our enemies, which has become even more important today with terrorists taking advantage of the Internet, cellular phones, and other means of communications, and it is critical that we continue to take advantage of every opportunity to detect and deter future terrorists attacks on our own soil.
We were told last August by the Director of National Intelligence--this has been widely published since--that because of some of the archaic provisions in the FISA law, the Foreign Intelligence Surveillance Act, and because it had not kept up with changes in modern technology, that we were being blocked from receiving as many as two-thirds of the communications of one foreign terrorist to another foreign terrorist because of the way these calls were being routed. We were told time and time again that the burdensome requirement of getting the paperwork necessary in order to get a FISA authorization in cases where the Congress never intended to require that sort of authorization, which was required because of these changes in technology, that it was actually causing delays in our ability to get timely information in a way to protect our country and our men and women in uniform serving in places such as Afghanistan and Iraq.
We know the ability to obtain the right information at the right time is of critical importance in our struggle against radical Islamic terrorists who hide among civilian populations and who don't abide by the Geneva Conventions. They don't wear a uniform. They don't recognize a chain of command or the laws of war. They hide among civilian populations and quietly plot deadly attacks against civilians--innocent men, women, and children--as they did on September 11, 2001.
I serve on the Judiciary Committee, so I am very much aware of some of the arguments made during the time we considered this bill on a serial referral against providing immunity to the telephone companies that have cooperated with the President of the United States, the Attorney General, and the intelligence community in facilitating the collection of this actual intelligence.
Mr. President, I think the Intelligence Committee version got it about right. Why in the world would we want to do anything to discourage private citizens, whether they be individuals or corporate citizens, from cooperating in the security interests of our country? This is perhaps analogous to a police officer who knocks on your window and says, I need your car to go capture a dangerous criminal before they do harm to somebody else. Well, if an individual were worried that they would be sued as a result of their being a good volunteer and a good member of the community in allowing a law enforcement officer the use of their car to capture a dangerous criminal, do you think they would be more inclined or less inclined to cooperate with the lawful authorities? I think it is pretty clear that they would be far less inclined.
If we don't do everything in our power--and it is within our power--to encourage individual and corporate citizens to cooperate in the security interests of our country, then shame on us. To tell them that you are going to have to endure ruinous litigation costs, that you are not even going to be able to defend yourself because some of the evidence is the subject of a State secrets privilege, and you are not even going to be able to explain what you did, while at the same time suffering the reputation damage that they could very well suffer if their participation was known in other parts of the world, is not fair. It is not fair to them and, even more importantly, it is not fair to us because to fail to give them the immunity for their cooperation with the lawful request of the President of the United States, after the Attorney General, the country's chief law enforcement officer, has said this is a lawful request, to fail to give them immunity and protection against that ruinous litigation and damage to their reputation is less than responsible.
I think the thing more likely to protect our security from this point forward is to show citizens who cooperate with the lawful authorities of the U.S. Government to help keep us safe that they are going to be protected against litigation and the vast costs that could be associated with it--not to mention the potential that classified information might become public and be known to our enemies. It makes absolutely no sense not to give that immunity to these individuals and these corporations.
The Protect America Act, which is scheduled to sunset in February, moved our intelligence capabilities in the right direction. But now we need to make those tools permanent. Changes in technology, combined with a court ruling that hampered the intelligence community, required that the Foreign Intelligence Surveillance Act be updated. That is what the Protect America Act was, although it was a temporary patch of about 6 months. Now we need to make those provisions permanent and take this opportunity to further expand and enhance the Foreign Intelligence Surveillance Act to make sure it works in the security interests of the American people, while taking the appropriate protections on American citizens here at home.
In the period between the court ruling that required the Government to obtain FISA orders for foreign intelligence that happened to pass through the infrastructure in the United States and the passage of the Protect America Act, collection of foreign intelligence information decreased by two-thirds. That is what prompted Congress to act in August without further delay, the likelihood that being blind to two out of every three communications between terrorists would likely make us less safe and would make it more likely that they would be successful in killing innocent Americans and our allies. Common sense informs us that this great drop in the percentage of intelligence collection harms our national security efforts.
Of course, as I mentioned, in August we took a temporary patch to close these intelligence gaps and clarify that the intelligence community does have the authority to monitor communications of foreign individuals without receiving a court approval first.
Now is the time for us to make that authority permanent. It has never been required, in listening in to foreign subjects talking to other foreign subjects, to get a court order, and the Protect America Act made that temporary fix. We need to make that permanent.
Some have made arguments which, in the end, would hamper our intelligence capabilities, requiring procedures never before in place. Intelligence community resources--both funding and expertise--are scarce and should be focused in the manner that best protects our national security. Our intelligence analysts should not be distracted from the important job of listening in and using information to deter further attacks by having to fill out a bunch of paperwork, particularly in areas that Congress never intended that they would have to do so.
The Senate and House Democratic Judiciary Committee proposals, I am sorry to say, would greatly hamper our intelligence community. As I mentioned a moment ago, I serve on the Judiciary Committee, and proudly so. Unfortunately, in voting this alternative out of the Judiciary Committee--along strictly partisan lines--I think we failed to meet the standards that were set by the Intelligence Committee version of this bill. Although there are changes that I think need to be made, by and large, the bipartisan vote in the Intelligence Committee--their product was superior to the product out of the Judiciary Committee.
The House bill would require court orders for foreign targets in foreign lands--something that has never been required in the 30 years since FISA was enacted and would completely reverse the important reforms, albeit temporary, we made a few months ago.
Delays inherent in obtaining court approval could, in fact, put American security interests in jeopardy.
Here is a concrete example. This last summer, three American soldiers were thought to be kidnapped by al-Qaida in Iraq. Because of delays in obtaining emergency authorization under the Foreign Intelligence Surveillance Act, our intelligence community was unable to set into place surveillance that may have saved the lives of these soldiers on May 12, 2007. There was a 10-hour delay while the authorities did the paperwork necessary for them to listen in on communications they never should have been required to get a FISA order to listen to in the first place--clearly, foreign-to-foreign communications. Instead, PFC Joseph Anzack was found dead a few weeks later in the Euphrates River, and an al-Qaida subsidiary claims to have killed and buried SPC Alex Jiminez and PFC Byron Fouty. Those 10 hours of delay, I believe, contributed to the deaths of these 3 American soldiers. If they hadn't been required to wait 10 hours to do the paperwork, I think there was a better chance that they could have been found safely and returned to the arms of their loved ones.
One of the key lessons the 9/11 attacks taught us was that we have to do a better job of connecting the dots. Erecting more walls and barriers to the collection and sharing of intelligence material ignores this important lesson and gives our adversaries an unacceptable tactical advantage, needlessly placing Americans in greater danger of another attack instead of doing everything within our power to keep them safe.
Unlike members of the Senate Intelligence Committee, I am sorry to say that House Democrats refused to work with committee Republicans, or with the Director of National Intelligence and the Department of Justice. How the House committee--or for that matter, the Senate Judiciary Committee--could hope to fashion a sensible, workable product without consulting with either the Department of Justice or the Director of National Intelligence is beyond me. I congratulate the members of the Senate Intelligence Committee on working so carefully, over a long period of time, in consultation with the appropriate authorities, to come up with a bipartisan product--one that I concede is not perfect, but no legislation is perfect.
We are going to be talking about ways that I think we can improve even that bill. But the Senate, unfortunately--the Judiciary Committee--saw important suggestions from the Intelligence Community rejected, again, along partisan lines. No attempt was made to craft a bipartisan proposal. Instead, the committee chose to come up with a party-line vote that raised serious operational concerns.
By working with the intelligence community, the Senate Intelligence Committee was able to provide the intelligence community with more flexibility in gathering foreign intelligence. This Senate bill will allow the Attorney General to authorize targeting persons outside of the United States to acquire this necessary information. No longer will they be required to go to the FISA Court for an approval to target foreign terrorists and spies overseas. This will ensure that our intelligence community has the agility and the speed it needs to collect actionable intelligence at a time when it counts.
The Senate bill does not restrict the types of foreign intelligence that may be collected. It also streamlines the Foreign Intelligence Surveillance Act, providing for more efficient, timely processing of FISA applications.
These are only a few examples of the tools the authors of the Senate Select Committee on Intelligence learned that the intelligence community needs to make our country safer, simply by working together across the aisle in a way that protects the American people more. They are to be applauded and congratulated for that effort.
When the security of our country is at stake, we should consult the very people in the best position to know what they need to make sure that they have the tools necessary, without causing unintended negative consequences.
We should learn from the bipartisan lead of the Senate Intelligence Committee and work with them to craft a responsible, bipartisan bill that keeps our eyes and our ears open, allows us to listen to our enemies, and will help us protect Americans against future terrorist attacks on our own soil and in places where Americans are located around the world.
I yield the floor.
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