FISA Amendments Act Reauthorization Act of 2012 - Continued
Floor Speech
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Mr. DURBIN. Mr. President, I think all of us understand the gravity of the challenge we face. This so-called fiscal cliff has been subject to parody and comedy routines, but it is very serious. If Congress fails to act, enacting a measure to be signed by the President, the taxes will go up on every single income-tax-paying American--every one of them; not just the wealthy but everyone. What it means, frankly, is whether one lives in Connecticut, such as the Presiding Officer, or Illinois, such as myself, every family is going to see several things happen automatically. Taxes will go up, the payroll tax cut that has helped this economy is going to disappear, unemployment benefits are going to disappear for millions of Americans who are searching for work, and many other changes will take place, none of which will be favorable in terms of an economic recovery.
I think we ought to stop and reflect for a moment on lessons learned. Here is what I have learned. If we are going to solve this problem, we need to do two things. We need to be prepared on both sides of the table to give. That is a hard thing for many people to acknowledge, but we do; we have to be willing to give on both sides of the table. I remember Senator Reid receiving a letter after the supercommittee was hard at work coming up with a bipartisan proposal. It was signed by virtually every Senator on the other side of the aisle and it said: Do not include a penny of revenue.
That was the end of the supercommittee. There was no place to go at that point. They have to be willing to give on revenue, and we have to be willing to give on our side, particularly in the area of entitlements. That is painful. I am one of those who believes, frankly--I have said it over and over--Social Security should be taken from the table and put aside for a separate commission, a separate debate. I do not believe it adds a penny to the deficit, and it should not be a victim of deficit reduction when it has nothing to do with the current deficit.
Second, I understand the importance of Medicaid to those who are young, single moms, the disabled, the elderly, those suffering from mental illness. Medicaid is critically important, and we cannot let that be devastated, particularly in a struggling economy when so many people are out of work or working at jobs without health insurance.
Third, Medicare. In 12 years Medicare will go bankrupt. It will be insolvent. We have to sit down and honestly deal with entitlement reform that saves the programs; doesn't lose them to the Paul Ryan budget approach but saves the programs in a fiscally responsible way.
That is the first thing we should agree on. Both sides have to come together and be prepared to give.
The second thing is it takes both sides. What Speaker Boehner proved to us last week is if they try to do so-called Plan B in the Republican caucus: No hope. But if they take a measure to the floor of the House and invite Democratic and Republican support for it, they can pass it. I believe they can, as we can in the Senate.
That is what needs to be done. We need to have some grassroots efforts in the House and the Senate, of Senators from both sides of the aisle who are prepared to work on a bipartisan basis to solve this problem.
To say we should have done this long ago is to overlook the obvious. Until November 6, we didn't know who the President would be for this new administration, and now we do. It would have been a much different debate with a different outcome if the American voters had not chosen President Obama to be reelected. So we had to wait until November 6, honestly, before we could seriously take on the important and difficult issues involved in this debate, but that time has passed.
The President has stepped forward and has made a proposal. He has made concessions on his proposal and he continues to be here. He flew back from a family vacation that I know is as important to him as it is to all our families over the holidays to be here in Washington and to be part of the conversation and dialog.
I hope Speaker Boehner will bring back the House of Representatives. We cannot do this alone. We must do this with their leadership and their cooperation. The point which has been made by Senator Reid over and over is that this is an issue and a challenge which we can successfully resolve and we must before we go over the cliff.
Mr. President, the pending business is amendments to the FISA reauthorization bill. I rise to speak about that legislation, which the Senate will vote on in a little over an hour.
As chairman of the Constitution Subcommittee on the Senate Judiciary Committee, I have some concerns about this law known as the FISA Amendments Act. It does not have adequate checks and balances to protect the constitutional rights of innocent American citizens. Although this legislation is supposed to target foreign intelligence, it gives our government broad authority to spy on Americans in the United States without adequate oversight by the courts or by Congress.
It is worth taking a moment to review the history that led to the enactment of the FISA Amendments Act. After 9/11, President George W. Bush asked Congress to pass the PATRIOT Act. Many of us were concerned that the legislation might go too far, but it was a time of national crisis and we wanted to make sure the President had the authority to fight terrorism. We did not know then that shortly after we passed the PATRIOT Act, the Bush administration began spying on American citizens in the United States without the judicial approval otherwise required by law and without authorization from Congress.
Years later, the Judiciary Committee on which I serve heard dramatic testimony from former Deputy Attorney General Jim Comey about the efforts of Andrew Card and White House counsel Alberto Gonzales to pressure Attorney General John Ashcroft into reauthorizing this surveillance of American citizens while Ashcroft was in the hospital.
After the New York Times revealed the existence of the warrantless surveillance program, the Bush administration demanded that Congress pass legislation authorizing the program. This led to enactment of the FISA Amendments Act in 2008. In short, this legislation was born in original sin.
Congress added some oversight requirements and civil liberties protections to the Bush administration's warrantless surveillance program, but they did not go far enough. That is why I opposed the original FISA Amendments Act, along with the majority of Democratic Senators. I supported an earlier version offered by Senator Leahy, chairman of our Judiciary Committee, which would have authorized broad surveillance powers but included civil liberties protections.
In 2008, the Bush administration accused opponents of this legislation of not understanding the threat of terrorism. Vice President Cheney went so far as to say: ``The lessons of September 11th have become dimmer and dimmer in some people's minds.''
I am sorry some supporters of this reauthorization legislation have repeated this claim of the Bush administration by suggesting that those of us who want to protect the privacy of innocent Americans believe the threat of terrorism has receded. That is not the case. The American people will never forget the lessons of 9/11, and I personally will not. We need to make sure our government has the authority it needs to detect and monitor terrorist communications, but we also need to ensure that we protect the constitutional rights of American citizens.
Earlier this year, I received a classified briefing on the FISA Amendments Act, and I am as concerned now as I was 4 years ago that the legislation does not include sufficient checks to protect the constitutional rights of innocent Americans.
The FISA Amendments Act is supposed to focus on foreign intelligence, but the reality is that this legislation permits targeting an innocent American in the United States as long as an additional purpose of the surveillance is targeting a person outside the United States. This is known as reversed targeting of American citizens.
The 2008 Judiciary Committee bill, which I supported, would have prevented reverse targeting by prohibiting warrantless surveillance if a significant purpose of the surveillance is targeting a person in the United States. We have a Constitution and a due process procedure spelled out when it comes to surveillance of American citizens. The FISA Amendments Act has found a way around it, and I think that is a fatal flaw.
The FISA Amendments Act permits the government to collect every single phone call and e-mail to and from the United States. This is known as bulk collection. The 2008 Judiciary Committee bill would have prohibited bulk collection of communications between innocent American citizens and their friends and families outside the United States.
The FISA Amendments Act also permits the government to search all the information it collects during this bulk collection. The government can even search for the phone calls or e-mails of innocent American citizens, and these searches can be conducted without a court order. This kind of backdoor warrantless surveillance of U.S. citizens should not be allowed. Both parties ought to stand for our Constitution.
Earlier in this year in the Judiciary Committee's markup of FISA Amendments Act reauthorization, Senator Mike Lee and I offered a bipartisan amendment to prohibit backdoor warrantless surveillance of Americans. Unfortunately, our amendment did not pass, so Americans will still be at risk for this kind of surveillance if the FISA Amendments Act is reauthorized.
I am pleased the Senate will consider a number of amendments that will at least add some transparency and oversight to the FISA Amendments Act so Congress and the American people will know about how the government is using this authority.
I wish to thank majority leader Senator Reid for ensuring that the Senate will have the opportunity to debate and vote on these amendments.
I am cosponsor of the Judiciary Committee chairman Pat Leahy's amendment which was reported by the committee. This amendment would shorten the reauthorization of the FISA Amendments Act from 5 years to 3 years and strengthen the authority of the inspector general.
I am also cosponsor of an important bipartisan amendment offered by Senator Ron Wyden, who is on the floor. Senator Wyden, together with Senator Mark Udall, Senator Lee, and myself, has joined an amendment which would require the director of National Intelligence to provide a report to Congress that includes, among other things, information on whether any intelligence agency has ever attempted to search the communications collected under this legislation to find the phone calls or e-mails of a specific American without a warrant. Isn't this the kind of information Congress and the American people should have?
Senator Wyden is a senior member of the Intelligence Committee. He is offering this amendment because he has been frustrated in his attempts to obtain basic information about the use of surveillance powers by our government authorized by the FISA Amendments Act.
Earlier this year, Senator Wyden and Senator Mark Udall asked the Office of the Director of National Intelligence a fundamental question: How many Americans have been subjected to surveillance under the FISA Amendments Act? The Office of the Director of National Intelligence claimed it is not possible to answer that question. At a minimum, before the Senate acts to extend the FISA Amendments Act, Senators should be given any information the intelligence community has about whether innocent Americans have had their private e-mails and phone conversations swept up by FISA Amendments Act collection.
I am pleased to be a cosponsor of the bipartisan amendment that has been offered by Senators Jeff Merkley and Mike Lee. The Foreign Intelligence Surveillance Act is interpreted by a secret court known as the Foreign Intelligence Surveillance Court. The Merkley-Lee amendment would require that significant legal interpretations of FISA by this secret court be declassified. The concept of secret law is anathema to a democracy. The American people have a right to know how the laws passed by their elected representatives are being interpreted and implemented.
I wish to thank Senators Merkley and Lee for taking up this cause. Back in 2003, I worked on a provision in the 9/11 intelligence reform bill that would have required the declassification of significant legal interpretations by the FISA Court. Unfortunately, that provision was removed from the final bill at the insistence of the Bush administration.
Former Senator Russ Feingold, my predecessor as chairman of the Constitution Subcommittee, was also an outspoken advocate of declassifying FISA Court opinions, and back in 2008 he held a hearing on the problem of secret law. This is an important issue, and I hope the Senate will approve the Merkley amendment.
I am not aware of any substantive objections to the Leahy, Wyden, and Merkley amendments. The only concern I have heard is that if the Senate approves one of these amendments, this bill will have to go back to the House for final approval. There are still 4 days before the end of the year, when the FISA Amendments Act expires, which is plenty of time for the House to vote on the bill the Senate passes.
Even with these amendments, I am concerned this reauthorization of the FISA Amendments Act does not include the checks and balances needed to preserve our basic freedoms and liberties. I believe we can be both safe and free. We can give the government the authority it needs to protect us from terrorism but place reasonable limits on government power to protect our constitutional rights.
I yield the floor.
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