FISA Amendments Act of 2008--Motion to Proceed
Floor Speech
FISA AMENDMENTS ACT OF 2008--MOTION TO PROCEED -- (Senate - June 26, 2008)
BREAK IN TRANSCRIPT
Mr. WHITEHOUSE. Madam President, before I discuss for a moment the Foreign Intelligence Surveillance Act, I applaud my colleague, the distinguished Senator from Pennsylvania, for his remarks. In the year and a half we have served together in this body, he has stood out as a powerful advocate for consumers, particularly Pennsylvania consumers. He has always had a very thoughtful, helpful, and productive approach to the solutions he has put forward and espoused. It is an honor for me to follow him on the Senate floor here.
On the question of the Foreign Intelligence Surveillance Act, I will talk about the immunity question for telecoms at another time. It is not yet clear what amendment will be allowed to be offered. I thought I would talk about two other issues at this point. The first is the process that has got us here. I do wish to pay particular tribute to the chairman of the Senate Select Committee on Intelligence, JAY ROCKEFELLER, for how steadfast he has been in pushing through this process.
We in the Senate have also been done a great service by our colleagues in the House of Representatives, who stood fast against the Bush administration efforts to stampede this legislation through without proper negotiation and without the basic process of back and forth that ordinarily improves legislation. It has made for a better piece of legislation. It also makes for a notable contrast with what happened a year ago, when we first took up this legislation.
I wish to talk for a minute about that because it was a very disappointing episode, I believe, in the Senate's history, and it is one I wish to make sure we chronicle because it should not be repeated.
In order to understand what I am going to say, it will be important to remember the schedule at the time. I have just replicated July of 2007, and the early days of August here. The first time the big sort of stampede push began, for me at least, was when the Director of National Intelligence, Admiral McConnell, met with me on July 11 in the secure confines of the Senate Intelligence Committee to tell me what he wanted. There had been a big FISA bill that had everything but the kitchen sink in it. It was clearly going no place. He realized he would have to focus on what he wanted, and he said three things. These are from my notes of that meeting.
No. 1, we need to compel the telecoms to help us; No. 2, we need to get foreign-to-foreign conversations, not Americans, foreign-to-foreign conversations without having to go to the FISA Court; and No. 3, we need a warrant if we are going to wiretap Americans. We accept that.
So I said to him: That is fine, but you do not have any legislation. We are suspicious of what is going to be in this legislation when it shows up, so the sooner you can get it written and the sooner you can get it to us the better, because the devil is going to be in the details and we need a chance to look it over. That was on July 11.
The draft legislation was circulated on July 27. It was circulated, at least to me, by mail, so I didn't get it on July 27. I got it over the weekend, the following Monday, on July 30. The Friday from Monday delivery stunt is one we have seen before. But what concerned me was that once that legislation was delivered, the Bush administration began to whip up everything they could do to try to panic Americans about what was going on.
On July 28, that Saturday, President Bush gave a radio address, saying:
Our intelligence community warns that under the current statute we are missing a significant amount of foreign intelligence that we should be collecting to protect our country. Congress needs to act immediately to pass this bill so that our national security professionals can close intelligence gaps and provide critical warning time for our country.
He asked us to work together to pass FISA modernization now, before we leave town, and said our national security depends on it. That is what he said here.
The Senate promptly picked up the chorus with one of my colleagues saying we would be deaf during August to discussions of threats being carried on by al-Qaida and others seeking to do us harm if we did not pass the legislation.
Another colleague said:
This is a time when the Director of National Intelligence and the Secretary of the Department of Homeland Security have said it is a high threat month and it is imperative for national security that we adopt this now.
Another one of our colleagues said:
Make no mistake, inaction on our part needlessly subjects every American to increased danger. We need to act.
Those are just several high points of a real campaign to try to drive this issue by public fear.
Well, here is what concerned me. If, when the President spoke on July 28, national security was that vitally affected by the speed of this legislation; if every day that went by we were missing intelligence, because of an intelligence gap, of al-Qaida plots that were being developed then and there to attack us; if that were true also on the 3rd, why wasn't it true back here on July 11 and 12 and 13, 14, 15, and all the way through here when they circulated the draft on July 27?
Here is what they sent us. This. It is 12 pages. That is it. Double spaced. I could write 12 pages of legislation double spaced in 17 hours if our national security depended upon it. It would not take me 17 days. So when it takes them 17 days to write 12 pages of legislation and then deliver it on the Monday before we recess and suddenly there is an explosion of concern about immediate al-Qaida attacks that are being planned that we need to get into, something does not add up. I believe the result was what I call the August stampede, and as a result we passed, bluntly, a very poor piece of legislation, the so-called Protect America Act.
This piece of legislation does a number of very good things to repair some of the damage in the Protect America Act.
The first is protection for Americans when we travel abroad. Americans travel a lot now. They travel on business, they travel on vacation. It is a lot more expensive now given the Bush administration's oil prices, but people still travel a lot. The rule had been, under the Protect America Act, that if you were traveling abroad, you had no statutory or judicial protection of your privacy, none whatsoever. They could listen to your telephone calls, they could take your BlackBerrys, e-mails, anything--it was open season. There were no statutory or judicial protections for Americans once they set foot outside of the country. The only protection was an executive order, 12333, which said that if the Attorney General determined that you as an American were an agent of a foreign power, then they could listen, then they could surveil, then they could intercept, but only if the Attorney General made that determination. So there was a protection, but it was only an executive order--nothing statutory, nothing judicial. Then we looked into the opinions that underlie the Bush warrantless wiretapping program, and here is what I found.
The flaw in the Protect America Act is that it contained no statutory, no judicial protections for Americans once they were traveling abroad and put them at the mercy of the executive branch of Government to be wiretapped at will, protected only by an Executive order. Our discovery, in the course of looking at the classified legal opinions that supported the warrantless wiretapping program, we discovered this rule that had been inserted by the Office of Legal Counsel:
An executive order cannot limit a President. There is no constitutional requirement for a President to issue a new executive order whenever he wishes to depart from the terms of a previous executive order. Rather than violate an executive order, the President has instead modified or waived it.
Well, as a theory, I think that is, frankly, deeply flawed legally.
In my examination of Attorney General nominee Mukasey, I asked him what the force of an Executive order was. He answered me saying:
Should an executive order apply to the President and he determines that the order be modified, the appropriate course would be for him to issue a new order, or amend the prior order.
I think that is not only the correct but the obvious solution. But we were left in a situation in which an American traveling abroad, without statutory protection, without judicial protection, and with the only protection from the executive being a protection that the President cannot be limited by and that he can ignore at will--frankly, that was no protection at all.
So we worked very hard in the committee--and it has persisted through the entire lengthy process we have been involved in--to make sure that an American, whether you are in the United States or traveling abroad, has the protection of a judicial order before your Government can wiretap you. And that has been achieved. That has been an important achievement.
A second achievement has been in the area of minimization. I know the Presiding Officer was a prosecutor in Minnesota. I have run wiretap investigations as a U.S. attorney, I have run wiretap investigations as an attorney general, and I have seen firsthand how important minimization is to a wiretap investigation.
Minimization is what happens when you have the authority to wiretap somebody, but because you have the authority to wiretap one person, they could be talking to somebody else who is not part of the criminal or national security activity involved, and if that proves to be the case, you have to minimize that to protect the rights of the third person they are talking to. In the old days, the FBI agents would literally sit there with their earmuffs on listening and flip the switch on and off to see whether the conversation was still an innocent conversation or related to some criminal matter.
Now it is more complex, but those minimization procedures did not previously have any judicial oversight. They only were required to be filed. Under this bill, the Attorney General shall adopt minimization procedures. It is mandatory. But more than that, the Foreign Intelligence Surveillance Court is given authority to review those minimization procedures; specifically, to determine whether those procedures meet the statutory standards we require for minimization procedures. So that is particularly important.
Finally, this statute for the first time recognizes ``the inherent authority of the FISA Court to determine or enforce compliance with an order or a rule of such court.'' So they not only get the minimization procedures, they get to approve the minimization procedures. If it is determined that the executive branch isn't following them, they can check for compliance, and they can enforce the procedure. That is a substantial, additional improvement that brings this in line with the traditions of wiretap surveillance within the United States.
Another significant improvement has been in the area of exclusivity. FISA has always said that ``it shall be the exclusive means by which electronic surveillance ..... and the interception of domestic wire, oral, and electric communications may be conducted.''
That was clearly the intent of Congress, as courts, including in the
Andonian decision, have agreed. However, we have a problem again with the Office of Legal Counsel. The Office of Legal Counsel said this:
Unless made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct wireless searches in the national security area--which it has not--then the statute must be construed to avoid a reading.
I don't know how you get ``which it has not'' out of the clear language of the Foreign Intelligence Surveillance Act saying this is the exclusive means. But once we found out that in these classified opinions the Office of Legal counsel had suggested this language right here either didn't exist or didn't mean anything, it had to be solved. Thanks to the leadership of Senator Feinstein, in particular, there has been great energy put into improving the exclusivity provision. I think it is now an exclusivity provision that would defeat this type of, frankly, improbable legal analysis and clearly define that it is Congress's intent in the FISA statute to take every possible avenue it can to limit executive surveillance activities to those that are performed within the statutory authority of this particular legislation.
The last thing is reverse targeting. There has been considerable concern about allowing the Government to identify a foreigner who is in touch with Americans regularly and target that foreigner with the reverse targeting purpose to actually pick up the conversations of the American and dodge the requirement for a warrant for judicial review vis-a-vis the American. There are strong provisions in here that require that regulations and procedures be developed to prevent that.
I hope to be able to discuss the statute further, as we get to the discussion about immunity. But I will conclude by summarizing that the process we went through to get to this piece of legislation, particularly article I of this bill, was a very proud moment for this Senate and for this caucus, for Chairman Rockefeller. It has been infinitely better than the degraded process we went through last August in the atmosphere of stampede. I think the quality of the underlying legislation shows it. I hope as we continue to work together in the Senate on other issues, we continue to follow the process that took place with respect to this iteration of the FISA bill, and we never go back to the kind of hectic, imprudent stampede we were put through last August. Second, the elements of article I are improved. This is, in article I, a bill we can we very proud of. We will have our dispute about the immunity provisions. I will have my thoughts on that for later. But there is much that has been accomplished and great credit is due particularly to Chairman Rockefeller for those accomplishments.
I yield the floor and suggest the absence of a quorum.
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