FISA Amendments Act of 2007

Floor Speech

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Mr. WHITEHOUSE. Mr. President, first let me express my appreciation to the distinguished vice chairman of the Senate Intelligence Committee for his very energetic dedication to moving this bill forward. We have not agreed on everything, but nobody can challenge his dedication to moving a bill and to making progress on this issue.

AMENDMENT NO. 3920 TO AMENDMENT NO. 3911

Mr. President, per the pending agreement, I call up amendment No. 3920, the Whitehouse amendment.

The ACTING PRESIDENT pro tempore. The clerk will report the amendment.

The legislative clerk read as follows:

The Senator from Rhode Island [Mr. Whitehouse], for himself, Mr. Rockefeller, and Mr. Leahy, proposes an amendment numbered 3920.

Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.

The ACTING PRESIDENT pro tempore. Without objection, it is so ordered.

The amendment is as follows:
(Purpose: To provide procedures for compliance reviews)

On page 19, between lines 20 and 21, insert the following:

(7) COMPLIANCE REVIEWS.--During the period that minimization procedures approved under paragraph (5)(A) are in effect, the Court may review and assess compliance with such procedures and shall have access to the assessments and reviews required by subsections (k)(1), (k)(2), and (k)(3) with respect to compliance with such procedures. In conducting a review under this paragraph, the Court may, to the extent necessary, require the Government to provide additional information regarding the acquisition, retention, or dissemination of information concerning United States persons during the course of an acquisition authorized under subsection (a). The Court may fashion remedies it determines necessary to enforce compliance.

Mr. WHITEHOUSE. Mr. President, in this debate about revising FISA and cleaning up the damage done by the President's warrantless wiretapping program, the administration has talked at length about the importance of our foreign intelligence activities. It expends all its rhetorical energy on a topic where we all agree, but it has largely ignored the issue that has been central to our debate: On what terms will this administration spy on Americans?

I rise today in support of an amendment offered by myself; by the distinguished chairman of the Senate Intelligence Committee, Chairman Rockefeller; the distinguished chairman of the Senate Judiciary Committee, Senator Leahy; Senator Schumer of New York; and Senator Feingold of Wisconsin, that addresses this issue: the privacy of Americans from Government surveillance.

Our amendment reflects the convergence of ideas Senator Schumer has been working on in the Judiciary Committee and I was working on in the Intelligence Committee and, similarly, Senator Feingold has played a critical role in advancing this issue in both committees. Both chairmen, Senator Leahy and Senator Rockefeller, have reviewed it and given it their blessing. It is carefully crafted to incorporate statutory language offered by the Department of Justice as technical assistance.

On this amendment, we have done our homework. What is this amendment about? As a former U.S. attorney and Rhode Island attorney general, I oversaw wiretaps and other surveillance procedures, and I learned that with any electronic surveillance, whether it is a domestic law enforcement investigation or intelligence gathering on international terrorism, information about Americans is intercepted incidentally--in other words, when they are not being targeted by our intelligence or law enforcement agencies but overheard because they are talking to or talking with or even being discussed by someone who is under surveillance. So minimization is the term of art. Minimization is the process for protecting the privacy of Americans who are caught up in surveillance without being the target of the surveillance.

The issue here is privacy rights of Americans, and in domestic law enforcement there are clear, established procedures for minimizing the collection or retention of this information to ensure that the privacy of innocent Americans is protected. In this pursuit, the prospect of judicial review--the prospect of judicial review--is an important part of our protection.

Under the Senate Intelligence bill before us, the court has the authority to approve minimization procedures. It has the authority to approve the procedures, but it is then told that it can't look fully into whether the procedures are being followed. Thus, there is no guarantee the procedures are actually being adhered to by the executive branch on the part of the overseeing court.

I have introduced this amendment to give the FISA Court the same discretionary authority to follow up on the implementation of all these minimization procedures that it has in every other context and that is common to all courts throughout the American system of justice. Chairman Rockefeller and Vice Chairman Bond have already agreed and put into the bill we will vote on that this authority already lies with the court where the target is an American, and I wish to thank Vice Chairman Bond in particular for working with me in bipartisan fashion on that point.

If the target of surveillance is an American inside the United States or if the target of the surveillance is an American overseas, then the court has the authority to review compliance through the minimization procedures. But as will often be the case, the target will be a person outside the United States, a person who is not in America, and then an American could just as easily be incidentally intercepted in these conversations, and they should still have rights, and they should still have protections.

Because minimization serves to protect the incidentally intercepted person, this protection should apply when the incidentally intercepted person is an American, and the court's authority to make sure the rules are being followed should apply there as well. It makes no sense to strip a court of its natural authority based on the identity of the target when the protection runs to the American who is not the target but who has been incidentally intercepted.

It, frankly, makes no sense as a general proposition to limit the court's authority to see whether rules it has approved are being followed. I found no place else in the law, no place at all where the authority of a court to approve an order, a rule, or a procedure is not accompanied by the concomitant authority to see if there is compliance. It is basic. Indeed, it may very well be, if there is litigation on this matter, a court will find that it is so basic to judicial authority that they will imply it. But we should put it in the bill and get it right; otherwise, we are creating in this bill a bizarre and unique quirk in American law, and there is no sensible justification offered for it.

To be clear, this amendment creates no mandates, no cumbersome procedures. Indeed, it may never be used at all. In my experience, as I said, the mere prospect--the mere prospect--of a judicial inquiry into compliance has a salutary effect--a healthy attention-getting, awakening, compliance-enhancing effect--on those who are charged with complying with the law. The opposite, I am afraid, is true as well. When executive officials are assured, as this law would do without this amendment, that the court that approves the minimization procedures is forbidden to police the compliance of those procedures, one can reasonably expect looser compliance in this enforcement holiday.

I know the Bush administration fears and despises judicial oversight, probably with very good reason, but that is no reason that we as a Senate should follow them down this wayward path. Both here, where the FISA bill creates an unheard of limitation on judicial power to examine compliance with its own approved rules, and in the immunity debate, where we are being led as a legislature into ongoing legislation to choose winners and losers, we embark into dangerous territory, outside the well-established traditions of the separated powers of our American system of government.

Particularly to my colleagues who are members of the Federalist Society, an organization with a declared interest in separation of powers, I hope you will take this occasion to defend those principles.

To quote the distinguished Justice Scalia from a Supreme Court opinion regarding a sense of sharp necessity about this separation of the legislative from the judicial power at the founding of our Government:

This sense of a sharp necessity ..... triumphed among the Framers of the new Federal Constitution.

And it did so, again quoting the decision:

..... prompted by the crescendo of legislative interference with private judgments of the courts.

Going back to a previous decision, United States versus Klein, the U.S. Supreme Court, in a holding that Congress may not establish the rule of decision in a particular case, said of the legislative and judicial powers:

It is of vital importance that the legislative and judicial powers be kept distinct. It is the intention of the Constitution that each of the great co-ordinate departments of the government--the legislative, executive and the judicial--shall be, in its sphere, independent of the others.

I submit that a court cannot be independent if it is stripped of the duty to determine whether rules and procedures it has the authority to approve are even being complied with.

I urge other Members to support this amendment. I am very gratified to see Senator Schumer from New York on the floor. I know he has worked hard on this issue in the Judiciary Committee. I am very grateful that somebody of his experience and distinction would cosponsor this amendment.

I yield to Senator Schumer.

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