FISA Amendments Act of 2008
Floor Speech
FISA Amendments Act of 2008
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Mr. VAN HOLLEN. Mr. Speaker, I rise in support of H.R. 3773. This bill reestablishes the role of the Court into foreign surveillance if and when a U.S. person becomes a target of such surveillance. H.R. 3773 also authorizes the FISA court to review the "minimization'' procedures used by intelligence agencies regarding the use of material that has been inadvertently intercepted. Moreover, this bill authorizes the FISA court to also review the "targeting'' procedures that involve U.S. persons. Finally, the bill creates a commission to review the President's previous warrantless surveillance program and to report to Congress. It is important to note that H.R. 3773 contains no retroactive immunity for the telephone companies for their past accommodation to intercept the communications of U.S. persons without a court order.
After the terrorist attack on September 11, 2001, our security agencies worked to improve their intelligence operations to ensure that such a plot could never again be executed on U.S. soil. However, this Administration, rather than assessing the need to make adjustments to surveillance authorities, embarked upon an unauthorized secret program authorized by nothing more than Executive fiat and clearly outside of the Foreign Intelligence Surveillance Act, FISA. The telecommunication industry was directed to comply with demands of the Administration with or without the requisite authority. Some telecommunications companies complied some did not.
Despite repeated requests from Democratic Members of Congress for the Administration to assess the limitations of the existing FISA law and to request necessary changes, the Administration refused to do so. Only after James Risen in 2006 exposed the fact that the Administration had been engaged in a massive domestic spying operation did the Administration begin to address the need to reconcile the program with some semblance of statutory authority. To that end, last summer the Administration identified a change in technology that warranted a change to the law. The change in the telecommunications industry has placed nodes and other technological backbones on U.S. soil regardless of the flow of information. Consequently, many foreign-to-foreign communications pass through the U.S. without involving U.S. persons. This technological "touch down'' under existing law would require a court order and needed to be changed.
From that request for a technical change, the Administration, with the assistance of the Republicans in Congress, launched an initiative to virtually remove court orders for the surveillance of American persons. Moreover, the Administration launched an additional initiative to provide blanket retroactive immunity for all the phone companies and ISPs that intercepted communications in the absence of a legal authorization. This immunity was demanded without the disclosure of the acts that would be subject to such immunization. Currently, there are almost 40 lawsuits pending that have challenged the legality of the President's unauthorized surveillance program.
All of these past cynical efforts to engage in an illicit surveillance program have now transformed into a campaign to engage in a widespread cover-up of past illegalities. The Republicans and the President cloak their surreptitious activity in a cloak of national security. However, the American people know better. We all want to stop terrorism. We all agree that foreign-to-foreign communications should be intercepted without needing a court order. We all agree that merely because such a communication is transported through a device that sits on U.S. soil, it should not impose any impediment to the surveillance of these communications. Where we disagree is in the need to carry on an illegal program, to defy any accountability and then come to Congress to seek legislation that is purely designed to conceal wrongdoing.
The bill before us today accomplishes the following:
Provides for surveillance of terrorist and other targets overseas who may be communicating with Americans.
Requires the FISA court to approve targeting and minimization procedures--to ensure that Americans are not targeted and that their inadvertently intercepted communications are not disseminated. These procedures must be approved prior to surveillance beginning--except in an emergency, in which case the government may begin surveillance immediately, and the procedures must be approved by the court within 30 days. (This may be extended if the court determines it needs more time to decide the matter.)
Provides prospective liability protection for telecommunications companies that provide lawful assistance to the government.
Requires a court order based on probable cause to conduct surveillance targeted at Americans, whether inside the United States or abroad.
Requires an Inspector General report on the President's warrantless surveillance program.
Prohibits "reverse targeting'' of Americans.
Explicitly establishes FISA Exclusivity--that FISA is the exclusive way to conduct foreign intelligence surveillance inside the U.S. Any other means requires an express statutory authorization.
Sunsets these authorities on December 31, 2009 (same as the PATRIOT Act sunset).
Moreover, this bill is as important for what it does not contain, i.e. retroactive immunity. This bill does provide telecom companies a way to present their defenses in secure proceedings in district court without the Administration using "state secrets'' to block those defenses. Finally, this bill also establishes a bipartisan, National Commission--with subpoena power--to investigate and report to the American people on the Administration's warrantless surveillance activities, and to recommend procedures and protections for the future.
We all want to prevent the acts of terrorism. However, some of us believe that we can protect our Nation without throwing away all of the rules that have been designed to protect the Constitutional rights of Americans. The scare tactics that have been used by this Administration to further cloak their illegal programs are reprehensible. What is more is that these tactics are not even marginally credible.
The President's national security programs by and large have been a failure, his misadventure into Iraq on a quest for nonexistent weapons of mass destruction have led us on a path of a substantial loss of life, resources and moral standing in the world. Moreover, it has diverted our attention from those who did attack us on 9/11, Al-Qaeda and its Taliban allies who are regrouping and strengthening, according to declassified U.S. intelligence estimates, along the Afghanistan-Pakistan border. In addition, the President's authorization to use torture on U.S. soil, as well as outsourcing it to foreign countries, by way of rendition, has compromised the security of our troops and diplomatic corps around the world. These practices have done much more to compromise our national security than to protect it. For these reasons, the President is not in a position to invoke national security on any grounds and certainly not to justify a warrantless domestic spying program and retroactive immunity for those who were complicit in this activity.
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