FISA Amendments Act of 2007

Floor Speech

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

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Mr. WYDEN. Mr. President, I wish to commend the distinguished chairman of the committee and the distinguished vice chairman because they have worked with me many hours on this issue. It is an extraordinarily important issue as it relates to the rights of Americans in the digital age, and I appreciate the involvement the chairman and vice chairman have had with me on this matter.

What this debate is all about, and I know it is very hard to follow the complicated legal language that is associated with this discussion, is the proposition that Americans ought to have the same rights overseas that they have inside the United States. Now, the chairman and the vice chairman have worked with me through the last few weeks to ensure that we can embed this basic proposition in this FISA legislation and do it in a way that is not going to have any unintended consequences or any impact on our national security.

I have long felt, literally for decades, that the FISA law has represented the ultimate balance between America's need to fight terrorism ferociously and to protect the constitutional rights of our people, and it is a balance that should not be eliminated because an American leaves U.S. soil. It ought to always mean something to be an American, and that ought to apply even outside the United States. Now, under current law, before conducting surveillance on an American citizen within the United States, the Government must establish probable cause before a criminal court for law enforcement cases or before the FISA Court for intelligence cases.

So what this means is the U.S. Government needs a court-approved warrant to deliberately tap the phone conversations of a person living in Medford, OR; or Kansas City, MO; or Arlington, VA; or anywhere else. This protection, however, is not extended to Americans who are outside the United States. So if the U.S. Government wants to deliberately tap the phone conversations of the same Americans on business in India or serving their country in Iraq, the Attorney General can personally approve the surveillance by making his own unilateral determination of probable cause.

During the Senate Intelligence Committee's consideration of legislation that would revise FISA, I offered the amendment that has been discussed by the distinguished chairman and the vice chairman to require the Government to secure a warrant from the FISA Court before targeting an American overseas.

This amendment was cosponsored by our colleagues, the Senator from Wisconsin, Mr. Feingold, and the Senator from Rhode Island, Mr. Whitehouse. It was, as the chairman of the committee has noted, approved on a bipartisan basis. It has largely been incorporated into the Senate Judiciary Committee approach as well.

Since then the administration has raised concerns about this issue. There have been concerns raised by several others. And we have sought to address those through many hours of negotiations so that we can make sure in the digital age, when Americans travel so frequently, we are not seeing their rights go in the trash can when they travel outside U.S. soil.

We have almost reached a final agreement on this important issue, but I wanted to take just a minute. I see the distinguished chairman on the Senate floor and the distinguished vice chairman. I would like to just outline very briefly for them what my remaining concern is because my hope is we can work this out.

I would also like to say that throughout this day the Justice Department, as we have been looking at it, has been talking to our staffs as well. I think they have been very cooperative also.

The issue that is outstanding, I would say to my colleagues, is the managers' amendment does not require the Government to specify what facilities it is targeting, even in situations where the Government has historically been required to do so. So one automatically thinks of a hypothetical kind of situation that goes something like this: Under current law, the Government has to specify, for example, that it is going to do surveillance on an apartment dweller on a military base overseas. That is something that has to be approved with specificity, and that is required under current law.

What I am troubled about is the hypothetical possibility. That is what we are dealing with now, hypothetical possibilities. And if the language is not written carefully with respect to facilities--and my concern is that it has not yet been dealt with adequately--the Government could, in effect, do surveillance on that military base for all of the apartment dwellers in the building or conceivably all of the people on the military base at large.

Now, my friend, the distinguished vice chairman of the committee, clearly does not want to see that happen, nor does the chairman of the full committee. So what I have been trying to do, and had some discussion with the Justice Department about, is to try to persuade the Justice Department to take the precise language they have found acceptable in title I and move it over to the title VII that we have all been working on in a cooperative kind of fashion. It deals with what is called the after acquisition issue, to again make sure we are able to stay on top of the serious threats our country faces but not at the same time overreach and sweep all kinds of individuals like, say, an apartment dweller on a military base oversees into a surveillance program.

So I am going to continue, and I want to make this clear to the vice chairman who is on the Senate floor, and the chairman who has had to leave the floor for a few minutes, that I want to continue to work with them. This is an important issue. In the digital age, it makes no sense for Americans' rights and freedoms to be limited by physical geography. That is what we got bipartisan support for in the Intelligence Committee. Suffice it to say, there is a history of support for this kind of approach. During the initial consideration of the first FISA Act back in 1978, many Members of Congress argued for the inclusion of protections for Americans overseas.

All of the committees that debated the bill noted the significance of the issue. But at that time there was a judgment made that it was best to deal with this matter by separate legislation.

For example, the Senate Intelligence Committee in the 1978 report on FISA stated:

Further legislation may be necessary to protect the rights of Americans abroad from the improper electronic surveillance by their Government.

It seems to me, 30 years later, it is time to take action. So we are going to continue these discussions. I want to express my appreciation to the vice chairman of the Intelligence Committee and his staff. They have put many hours into this matter working with us and clearly have sought to make sure that we can modernize this particular part of the FISA statute, and do it without what all of us have said are the unintended consequences or potential impact on national security.

I think we are there once we deal with this remaining issue. I think it would be very hard for any of us to explain how it is that current law has to specify what facilities are being targeted and then, now, in the name of the so-called reform approach, adopt something that hypothetically--again, I talk only hypothetically about it--might sweep some, for example, soldiers on a military base overseas into a surveillance program. I do not want that. The distinguished vice chairman of our committee, Senator Bond, does not want that.

So we are going to keep working on this matter. I see my friend from Missouri has indicated his desire to speak. As always, I am anxious to hear his thoughts on it and to work with him.

I ask unanimous consent to have a few, perhaps up to 10 additional minutes after the vice chairman has had a chance to address us.

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Mr. WYDEN. Madam President, I will be very brief in terms of responding to the distinguished vice chair. I also note the person we look to for counsel on these matters, Senator Whitehouse, is here. I want to express my appreciation to him for all of his assistance. If anyone is capable of, once again, stepping in and bringing together all of the parties--Senator Bond, the Bush administration, Senator Rockefeller, myself--Senator Whitehouse is that person. He has done it repeatedly, and we thank him for all of his help.

On the one remaining issue, just to be very brief in terms of responding to the vice chairman, the vice chairman is spot on with respect to the fact that in most respects, the language of our joint efforts does seek to zero in only on the legitimate targets. And that is all to the good.

What we are concerned about, and again, steering clear of anything classified, is some of the technical issues with respect to the definition of ``facilities,'' which lead us to be concerned that others could be swept in. That is what we still need to resolve.

So let's do this. The distinguished Senator from Rhode Island wants to have a chance to speak on this issue. This is not going to be the last word on the subject. But I would say this is an opportunity, after months and months of discussion, to get it right in terms of modernizing the Foreign Intelligence Surveillance Act.

Thirty years ago, it was a big issue. It is an even bigger issue today. I think a business person, for example, in Kansas City, MO, or Portland, OR, or anywhere else, when they travel the globe and are doing business, speaking to loved ones, they have an expectation that their rights are not thrown into the trash can when they leave the soil of the United States.

We have taken steps to ensure, under the efforts of Senator Rockefeller, Senator Bond, myself and others, we have gone a long way to extending the overseas protections for our people that they have here. We are not quite there yet. We have one issue left to deal with, and it is an important issue.

We are going to continue to have these discussions, and they will certainly be good-faith discussions. I hope we can persuade all parties, and particularly those in the administration, to support our efforts to deal with this one remaining matter, which literally is a question--we have staff on the floor--of importing language that the administration says works in other parts of this legislation, into this area which we think is substantially the same.

I yield the floor.

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