FISA Amendments Act Reauthorization Act of 2012

Floor Speech

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Mr. WYDEN. Mr. President, given the events of yesterday, this is the last opportunity for the next 5 years for the Congress to exercise a modest measure of real oversight over this intelligence surveillance law. Here is why. Colleagues, it is not real oversight when the Congress cannot get a yes or no answer to the question of whether an estimate currently exists as to whether law-abiding Americans have had their phone calls and e-mails swept up under the FISA law. That is the case today.

Colleagues, it is not real oversight when the Congress cannot get a yes or no answer to the question of whether wholly domestic communications between law-abiding Americans in this country have been warrantlessly intercepted under the law. That is the case today.

Colleagues, it is not real oversight when National Security Agency leadership states in a public forum that the Agency does not keep dossiers on millions of Americans and yet they will not give the Congress a yes or no answer as to whether the Agency collects any sort of data on millions of Americans. That is not the case today.

What this amendment does is it gives us the opportunity to do real oversight--real oversight--by getting yes or no answers to questions that have been asked repeatedly by members of the Intelligence Committee. The amendment, in order to ensure that national security is protected at an important time in our country's history, gives the President of the United States unfettered discretion to redact any information he believes is necessary in order to protect the country's national security. The amendment does not require any agency to do new work. We have heard cited repeatedly it would be impossible to do an estimate on projections that have been discussed in the past. So we have changed course and we have said all we are seeking is a yes or no answer to the question of whether an estimate has actually been done.

This is an important time for American security. It will always be an important time for American security. It is also an important time for American liberty, and this amendment ensures we can strike the appropriate balance between protecting our country's well-being and also protecting the individual liberties we all cherish.

I reserve the remainder of my time.

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Mr. WYDEN. Mr. President, I say this with the greatest respect to the distinguished chair of the committee--with whom I have worked cooperatively on so many issues--that when she said this amendment seeks to publish names, I would just like to say that is simply and factually incorrect. In no way, shape or form does this amendment seek to publish names, and I wish to tell colleagues that if anyone in connection with this program were to seek to publish names, I would vigorously oppose that effort. I simply just want to make sure the Record reflects that.

We have heard by the opponents of this amendment that the intelligence community has already provided the Congress with lots of information about the FISA Amendments Act. However, the reality is a lot more complicated than that. Much of that information is in highly classified documents that are difficult for most Members to review, and the reality is most Members literally have no staff who are cleared to read the documents which have been cited.

So the fact is most Members of Congress don't have staff to help them deal with these complicated issues so they are--in many particulars--in the dark about the program, and certainly the 300 million-plus Americans who expect us to strike that balance between security and liberty are also in the dark.

I have already noted that the amendment gives the executive branch unfettered authority to make redactions, and I just want to make sure every Senator hears the exact language because I think this is as broad a redaction proposal as I have seen in my service on the committee. The redaction proposal states: If the President believes that public disclosure of the report required by this section could cause significant harm to national security, the President may redact such information from the report made available to the public.

I hope colleagues who have asked about whether this would endanger our country and have heard on the floor of the Senate that somehow this amendment would seek to name names--particularly at a dangerous time--will see, No. 1, that is not the case; and No. 2, that the President, as outlined on page 6, has full and unfettered discretion to redact the report as he sees fit.

I also want to respond to this point that there would be no time for this to be considered by the other body if we add this modest measure of oversight. As I understand from the news reporting this morning, the other body will be meeting on Sunday, so they will be here this weekend. The other body is perfectly capable of passing an amended bill, getting it to the President by the end of the month. The distinguished vice chair and I both served in the other body. We know that when they are here--particularly on something that just involves a report--it would be very easy for the other body to pass this and send it to the President. In fact, the House passed the extension a few months ago with over 300 votes. So passing it Sunday when the other body is in session seems to not exactly be a difficult and arduous task.

What it comes down to is what we define robust congressional oversight in a program such as this to be. Again, I respectfully say that without basic information as to whether an estimate even exists--in response to colleagues--this is not talking about anybody going out and doing a lot of work. This is a question of either responding affirmatively or negatively to the question Senator Udall and I have been asking lo these several years: Does an estimate exist as to whether or not law-abiding Americans have had their communications swept up under this law?

There is a reason to be concerned about this because Senator Udall and I worked very hard to get at least a little bit of information on this, and we have been able to declassify that there has been a fourth amendment violation in the past.

I believe that without the information Senator Udall and I have sought that is behind this amendment--those who say there ought to be robust congressional oversight of this program ought to reflect on the fact that without this information which is so essential to do our work, oversight is not robust, it is toothless--it is toothless--if we cannot get an answer to the question as to whether an estimate exists for how many Americans have had their communications swept up.

So I close with this: This is, as the distinguished chair of the committee said earlier, a critically important time for American security. Those of us who serve on the committee--and the distinguished Presiding Officer is part of these briefings--go into the room, and the doors are locked, and we certainly get significant information about the threats and the well-being of this country. So it is an important time for American security. It is also an important time for American liberty.

To paraphrase Ben Franklin, as I did yesterday, those who give up their liberty in order to have security really don't deserve either. The two are not mutually exclusive. We can do both. That is what the constitutional teeter-totter has always been about--security and well-being of our country on the one hand and protecting our liberties on the other.

What Senator Udall and I contend this morning is that without access to information about critical questions such as whether an estimate even exists as to how many law-abiding Americans have had their communications swept up under FISA, we can't answer the question as to whether the constitutional teeter-totter is in balance. So I hope my colleagues will vote for this amendment given the events of yesterday.

I say to my colleagues that this will be the last opportunity--the last opportunity for 5 years--to exercise some modest measure of real oversight over this program. I hope my colleagues on a bipartisan basis will support this amendment.

I yield the floor.

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