Foreign Intelligence Surveillance Act

FOREIGN INTELLIGENCE SURVEILLANCE ACT

Mr. SCHUMER. Mr. President, first, I thank my colleague, Senator Kyl from Arizona, for his great work on this and many other issues.
    
We live in a new world. It is a post-September 11 world. We have to adjust to those realities. I believe we can do both, have security and liberty, the great concern of our Founding Fathers. I think this bill, in a careful and thoughtful way, readjusts that balance.
    
My colleague from Arizona has been a leader on these issues. We do not always agree, but we often do. It is a pleasure to work with him. His persistence and dedication to making this country secure and maintaining its freedom at the same time is something I share and I respect.
    
As I mentioned, the age-old debate between security and freedom is at the nub of the Constitution. It was probably debated more by the Founding Fathers than any other issue. They realized that in times of crisis, in times of war, in times of attack, the pendulum could swing more to the security side and at other times to the freedom side. They realized, as Benjamin Franklin said, that giving up even an ounce of precious freedom is a very serious thing to do.
    
FISA is a debate about that. While I certainly believe, as I think most of my colleagues do, given the fact that what we have learned since September 11, that terrorists can strike in our heartland, that small groups of people empowered by technology can do the kind of damage we have never seen before, which my city suffered on September 11. We remember the losses every day. We do have to reexamine this, particularly when there has been one law for people overseas and one law for people in this country because the walls have changed.
    
That is a general debate on FISA. I know some of my colleagues have wanted to do that today. My colleague from Wisconsin says the law has shifted too far one way. My colleague from Utah thinks it has shifted the other way. Senator Kyl and I are not debating that. We do not give up any liberty in this bill. The very standards that are now in the law with FISA remain, standards of what must be done to get a FISA warrant. Those do not change. The only change is our recognition that in these new post-9/11 years, technology has allowed small groups unknown before, or even lone wolf individuals, to commit terrorism, and if they are doing the same thing as established terrorist groups or established terrorist nations, there seems to be no reason why they shouldn't be susceptible to the same type of surveillance of other groups. That is at the nub of this issue.
    
We are informed by history. Again, those who say don't do anything to change don't look at history, in my judgment. We learned from the disclosures regarding Zacarias Moussaoui, the so-called 20th hijacker, that the FBI had abundant reason to be suspicious of him before 9/11, but they did not act, they did not do what Agent Rowley wanted them to do. She, of course, has been heralded as a great leader and a great American for what she has done, and I join in that. But they didn't want to do what she wanted, which was pursue a warrant to dig up evidence that may have been the thread which, if pulled, would have unraveled the terrorists' plans.
    
The anguish she felt then, and so many of us feel afterwards, that this might have been stopped but wasn't because of a provision in the FISA law that quickly became archaic as terrorists advanced and we learned that small groups could do such damage, is what motivates this legislation.
    
One reason we have been given—and Agent Rowley agrees with this, I believe—why the FBI did not seek the warrant is the bar for getting those warrants when it came to those not affiliated with known terrorist groups or known terrorist countries was set too high.
    
That is why Senator Kyl and I introduced this amendment to FISA. We intend to make it easier for law enforcement to get warrants against non-U.S. citizens—this does not affect a single U.S. citizen—who are suspected of preparing to commit acts of terrorism.
    
As I mentioned, we leave two of the standards in place, the ones that measure the bar. Right now, the FBI is required to show three things before they can get a warrant: They must show the target is engaging in or preparing to engage in international terrorism. We keep that requirement. It does not change. They must show a significant purpose of the surveillance is foreign-intelligence gathering. We are keeping that requirement, too, that foreign-intelligence gathering is a significant purpose.
    
Here is the problem. They also must show under present law that the target is an agent of a foreign power, such as Iraq, or a known foreign terrorist group, such as Hamas or al-Qaida. That is the hurdle we are removing. If that requirement had not been in place, there is no question the FBI could have gotten a warrant to do electronic surveillance on Zacarias Moussaoui and, who knows, not certainly but perhaps, 9/11 might not have occurred.
    
That is the anguish we all face. Right now we know there may be terrorists plotting on American soil. We may have all kinds of reasons to believe they are preparing to commit acts of terrorism. But we cannot do the surveillance we need if we cannot tie them to a foreign power or an international terrorist group. It is a catch-22. We need the surveillance to get the information we need to be able to do the surveillance. It makes no sense. The simple fact is, it should not matter whether we can tie someone to a foreign power. Whether our intelligence is just not good enough or whether the terrorist is acting as a lone wolf or it is a new group of 10 people who have not been affiliated with any known terrorist group, should not affect whether we can do surveillance, should not affect whether they are a danger to the United States, should not affect whether they are preparing to do terrorism. Engaging in international terrorism should be enough for our intelligence experts to start surveillance.
    
It is important to note if we remove this last requirement now it will immeasurably aid law enforcement without exposing American citizens or those who hold green cards to the slightest additional surveillance. Let me repeat, because I know we get some who write that this is the unraveling of the Constitution and it befuddles me because it is not, it does not affect a single American citizen or those who have green cards.
    
It is fair. It is reasonable. It is a smart fix to a serious problem. It passed out of the Judiciary Committee with unanimous support. It is supported by the administration as well.
    
One final word. This is about an amendment from my good friend, a colleague from California, Senator Feinstein, which we will debate. She is introducing an amendment that would allow some gray into the law, rather than making it black or white. Her amendment would leave the decision whether or not to grant the FBI a FISA warrant against a lone wolf, she would leave that up to a particular judge.
    
I do not believe we can afford any more uncertainty. We saw what uncertainty did when the Zacarias Moussaoui case occurred. The FBI, so worried that they might overstep, said no. We need clarity in the law when it comes to fighting terrorism.
    
Therefore, I urge my colleagues to oppose the Feinstein amendment and support the bipartisan bill which is before us today.
    
Mr. President, I yield the floor and I suggest the absence of a quorum.