FISA Amendments Act of 2007

Floor Speech

FISA AMENDMENTS ACT OF 2007 -- (Senate - January 24, 2008)

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Mr. WHITEHOUSE. Madam President, first, let me thank the Senator from Oregon for his very kind words, probably too kind words, but that is one of the glorious conventions of this body.

I salute his leadership in this area because perhaps the most significant thing that has been accomplished so far in this FISA dispute, that has been accomplished in a bipartisan fashion, in a manner in which great credit reflects on Vice Chairman Bond who is here on the Senate floor, is consensus has been reached that when an American travels overseas, the rights they believe they enjoy here in these United States, the rights the Constitution guarantees them here in these United States, travel with them and cannot be overruled at the whim of the very same branch of Government that seeks the surveillance. And the reason that was able to take place is because the Senator from Oregon had the foresight to put together the amendment that he and Senator Feingold and I argued for in the Intelligence Committee.

I express my personal appreciation to him for his wisdom in that regard.

I ask unanimous consent that the pending amendment be set aside in order that I might call up amendment No. 3908.

Mr. BOND. Madam President, I must object to that. I do commend the Senator from Rhode Island and the Senator from Oregon for their leadership on the issues which they have addressed. They have made a strong push, and they worked with us through the 20-plus pages of construction to get a workable means of achieving the goal they so eloquently champion. We will continue to work with them on those efforts dealing with the items the Senator from Oregon addressed. However, I must object to setting aside the pending amendment.

The PRESIDING OFFICER. Objection is heard.

Mr. WHITEHOUSE. Madam President, I am disappointed to hear that. The Senator, of course, clearly has that right. As everyone in this body knows, we are facing a deadline of February 1 to conclude this legislation. There is considerable other business related to the stimulus package, given our economic concerns in this country, and I would hope now that the FISA bill has been called up, that we are on this bill here on the floor, that amendments to the title I provisions we are working on now could be called up and considered. It would certainly move things along in the process if they could be called up and debated so that when it came time for a vote, we could move more expeditiously through the process. I hope very much this is not a signal that it is anyone's intention to slow down this process.

We saw in August how unfortunate the result can be when this body's time to give a major issue such as this significant attention is compressed. Indeed, I refer to that unfortunate August situation as ``the August stampede.'' I don't think we reflected great credit on this institution when we did what we did back then.

The effort we are undertaking now is an effort, in fact, to remedy some of those concerns. There has been significant bipartisan effort to get us to this point. While there are clearly remaining points of disagreement, I would think it would be in everyone's interest to work through those issues and to give these different amendments a chance to be voted on. For instance, the amendment I had hoped to call up is one that is supported not only by myself but Chairman Rockefeller, the distinguished chairman of the Intelligence Committee. It is supported by Chairman Leahy, the distinguished chairman of the Judiciary Committee. It is supported by Senator Schumer, the distinguished Senator from New York. It is supported by Senator Feingold, the distinguished Senator from Wisconsin who serves, like myself, on both the Intelligence and Judiciary Committees. It addresses a very important issue to this body which is the terms on which we will allow this administration to spy on Americans.

It is an amendment that a lot of work has gone into. It reflects a convergence of ideas that was developed by Senator Schumer and Senator Feingold in the Judiciary Committee, that we developed in the Intelligence Committee, again, through an often bipartisan process. Senator Feingold played a critical role in both committees in advancing this issue. We have worked very carefully with the Department of Justice to incorporate changes that they have recommended as technical assistance. It is a meaningful, worthy, well-thought-out amendment that merits consideration and discussion on the floor. It relates to an issue that is a fairly simple one but in order to understand it, you have to have a basic understanding, at least, of wiretap surveillance.

As United States Attorney and as Rhode Island's Attorney General, I oversaw wiretap and surveillance investigations, and I am familiar with the procedures. With any electronic surveillance, whether it is in a domestic law enforcement context or intelligence gathering on international terrorism, what you find is that information about Americans is intercepted incidentally. You have, as all the prosecutors in this body well know, including the distinguished Presiding Officer, the target of your investigation. The target has certain rights; a warrant requirement under the Constitution, for instance. But what you find is that once you have surveillance up on your target, they obviously talk to other people. Those other people who are incidentally intercepted in the surveillance also have rights as well.

In domestic law enforcement, there are clear and established procedures for what is called minimizing the interception of the conversations to the extent that they touch on the incidentally intercepted person who is not the target of the surveillance. The minimization procedures govern the collection and the retention of this information to ensure that the privacy of innocent Americans is protected. These are sensible measures. I have been in the trailers with the FBI agents as they are switching on and off to honor the minimization procedures. But one of the key elements of these minimization procedures is the knowledge on the part of the surveilling agency that they are subject to court oversight. That is natural in the domestic law enforcement context. You are operating under a court order to begin with. In the domestic context, it happens as a simple consequence of there being a court order in the first place.

When you are dealing with Americans abroad and when they are swept up in international surveillance for national security purposes, the situation can be different. We have had to provide for these minimization procedures. Under the Senate Intelligence bill, the court, the Foreign Intelligence Surveillance Court, is now being given the authority to approve the minimization procedures when an American is listened to incidentally in surveillance that targets another individual. The court has the authority to approve the procedures. But what was missing is that the court did not have the authority to determine whether the procedures it has approved are actually being followed. You would think that would be obvious. If you are going to set it up so that the court can approve minimization procedures, should it not follow as a matter of simple logic that the court should have the authority to see whether the procedures the court approved are in fact being followed?

We have worked very carefully with Vice Chairman Bond, with Chairman Rockefeller, with the technical folks at the Director of National Intelligence Office, and at the Department of Justice. At present, we have a situation in which it has been agreed that the court will have the power to determine whether its rules are being followed if the target of the surveillance is an American in the United States. We have also reached agreement that the Foreign Intelligence Surveillance Court will have the authority to determine whether its rules are being followed if the target is an American overseas. The issue that remains involves those cases in which the target is a foreign person but they are in touch with a U.S. person, an American, who is being incidentally intercepted because they are in touch with a foreign target--because the foreign target has called them, because the foreign target is discussing them, because they have called the foreign target, whatever.

I cannot for the life of me understand why this is a difference that we are obliged to come to the Senate floor to decide. It would seem to me that when the purpose of the exercise is enforcing minimization procedures that benefit the U.S. person who is incidentally intercepted, it should not matter whether the target is an American in the United States or an American overseas or a foreign person. The person we are trying to protect is the U.S. person incidentally swept into the surveillance. So the purpose of this amendment, if I were to be permitted to call it up, would be to see to it that the court, which has the authority to determine the minimization procedures when there is a foreign target who talks to a United States person, should have what would seem to me obviously consequent authority to determine whether those rules it has approved are being followed.

It may even be that it is so inherent in the nature of a court that subsequent litigation would determine that in fact the court does have that right. It comes, in its very nature as an article III court, to have the authority to determine whether its rules and whether its orders are being followed. But rather than force it to that point, it would be better if we simply cleared up the matter here.

Again, I regret that merely calling up the amendment at this point is being objected to. I hope this is not a signal that we are trying to recreate, to put it mildly, the hectic atmosphere of the August stampede. I would like as quickly as possible to work through the amendments that relate to title I. There are a number of them. I expect we will be staying rather late if we can't start working through them now. But when the time comes, I will come back to the floor and again seek permission to call up this amendment; I hope at that time with more success.

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Mr. WHITEHOUSE. Mr. President, I thank the very distinguished vice chairman of the committee for his description of his views on this matter. I know they are honestly held and founded in his beliefs.

I do take some issue with his recollection of the travel of this in the Intelligence Committee. I thought I heard the distinguished vice chairman say this amendment had been voted down in the Intelligence Committee. It is my recollection that I withdrew it because there were technical concerns that were described by some of the officials from the Office of National Intelligence and from the Department of Justice who were present.

Indeed, it was that withdrawal and willingness to work to try to find a better amendment that resulted in the very commendable process by which the distinguished vice chairman agreed to allow the court to oversee compliance with its own rule in those two circumstances I mentioned earlier: where the target is an American, either overseas or at home.

Other than that, the only other point I would add is that I think it is probably a situation unique in the annals of American law that an American court would be provided the authority to approve a rule or make an order but denied the authority to determine whether it was complied with. I can certainly think of no situation in our law or in our history where that has ever been the case.

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