Statement
of U.S. Senator Russ Feingold
In Opposition to the Final FISA Bill
February 12, 2008
Mr. President, I strongly
oppose S. 2248. This bill is deeply flawed in ways that will have a
direct impact on the privacy of Americans. Along with several other
members of this body, I have offered modest amendments that would have
permitted the government to obtain the intelligence it needs, while
providing the checks and balances required to safeguard our constitutional
rights. Unfortunately, under intense Administration pressure marked
by inaccurate and misleading scare tactics, the Senate has buckled.
And we are left with a very dangerous piece of legislation.
Mr. President, the railroading
of Congress began last summer, when the Administration rammed through
the so-called “Protect America Act,” vastly expanding the
government’s ability to eavesdrop without a court-approved warrant.
That legislation was rushed through this chamber in a climate of fear
– fear of terrorist attacks, and fear of not appearing sufficiently
strong on national security. There was very little understanding of
what the legislation actually did.
But there was one silver
lining: The bill had a six-month sunset to force Congress to do its
homework and reconsider the approach it took. Unfortunately, with far
too few exceptions, the damage has not been undone.
This new bill was intended
to ensure that the government can collect communications between persons
overseas without a warrant, and to ensure that the government can collect
the communications of terrorists, including their communications with
people in the United States. No one disagrees that the government should
have this authority. But this bill goes much further, authorizing widespread
surveillance involving innocent Americans – at home and abroad.
Proponents of the bill and
the Administration don’t want to talk about what this bill actually
authorizes. Instead, they repeatedly and inaccurately assert that efforts
to provide checks and balances will impede the government’s surveillance
of terrorists. They launched these attacks against the more balanced
bill that came out of the Judiciary Committee. And they have attacked
and mischaracterized amendments offered on the floor of this body. This
is fear-mongering, it is wrong, and it has obscured what is really going
on.
Mr. President, what does
this bill actually authorize? First, it permits the government to come
up with its own procedures for determining who is a target of surveillance.
It doesn’t need advance approval from the FISA Court to ensure
that the government’s targets are actually foreigners, and not
Americans here in the United States. And, if the Court subsequently
determines that the government’s procedures are not even reasonably
designed to wiretap foreigners, rather than Americans, there are no
meaningful consequences. All that illegally obtained information on
Americans can be retained and used.
Second, even if the government
is targeting foreigners outside the U.S., those foreigners need not
be terrorists. They need not be suspected of any wrongdoing. They need
not even be a member or agent of some foreign power. In fact, the government
can just collect international communications indiscriminately, so long
as there is a general foreign intelligence purpose, a meaningless qualification
that the DNI has testified permits the collection of all communications
between the United States and overseas. Under this bill, the government
can legally collect all communications – every last one -- between
Americans here at home and the rest of the world. Even the sponsor of
this bill, the Chairman of the Intelligence Committee, acknowledges
that this kind of bulk collection is probably unconstitutional, but
the DNI has said it would be not only authorized but “desirable”
if technically possible. Technology changes fast in this area. We have
been forewarned, yet the Senate failed to act.
Mr. President, one of the
few bright spots in this bill is the inclusion of an amendment, offered
by Senators Wyden, Whitehouse and myself in the Intelligence Committee,
to prohibit the intentional targeting of an American overseas without
a warrant. That is an important new protection. But that amendment does
not rule out the indiscriminate vacuuming up of all international communications,
which would allow the government to collect the communications of Americans
overseas, including with friends and family back home, without a warrant.
And those communications can be retained and used. Mr. President, even
the Administration’s illegal warrantless wiretapping program,
as described when it was publicly confirmed in 2005, at least focused
on the communications of particular terrorists. What we are talking
about now is potentially a huge dragnet that could sweep up the communications
of countless innocent Americans.
Third, the Senate failed
to prohibit the practice of reverse targeting – namely, wiretapping
a person overseas when what the government is really interested in is
an American here at home with whom the foreigner is communicating. The
underlying bill simply does not stop this practice and, if there was
any doubt, the DNI has publicly said that the bill merely “codifies”
the Administration’s view that surveillance of an American is
fine, so long as the government is technically wiretapping the foreigner.
Even the DNI has said this is unconstitutional, but there is nothing
in this bill to stop it.
Fourth, the Senate has failed
to protect the privacy of Americans whose communications will be collected
in vast new quantities. The Administration’s mantra has been:
“don’t worry, we have minimization procedures.” Mr.
President, minimization procedures are nothing more than unchecked executive
branch decisions about what information on Americans constitutes “foreign
intelligence.” As recently declassified documents have again confirmed,
the ability of government officials to find out the identity of Americans
and use that information is extremely broad. Moreover, even if the Administration
were correct that minimization procedures have worked in the past, they
are certainly inadequate as a check against the vast amounts of Americans’
private information that could be collected under these new authorities.
Mr. President, this legislation
is particularly troubling because we live in a world in which international
communications are increasingly commonplace. Thirty years ago it was
very expensive, and not very common, for most Americans to make an overseas
call. Now, particularly with email, such communications are commonplace.
Millions of ordinary, and innocent, Americans communicate with people
overseas for entirely legitimate personal and business reasons. Parents
or children call family members overseas. Students email friends they
have met while studying abroad. Business people communicate with colleagues
or clients overseas. Technological advancements combined with the ever
more interconnected world economy have led to an explosion of international
contacts.
We often hear from those
who want to give the government new powers that we just have to bring
FISA up to date with new technology. But changes in technology should
also cause us to take a close look at the need for greater protections
of the privacy of our citizens. If we are going to give the government
broad new powers that will lead to the collection of much more information
on innocent Americans, we have a duty to protect their privacy as much
as we possibly can. And we can do that without sacrificing our ability
to collect information that will help protect our national security.
But, Mr. President, the Senate
has once again fallen for Administration tactics that have become so
depressingly familiar. “Trust us,” they say. “We don’t
need judicial oversight. The courts will just get in our way. You never
know when they might tell us that what we’re doing is unconstitutional,
and we would prefer to make that decision on our own. Checks and balances,
judicial and congressional oversight, will impede our ability to fight
terrorism.” And, sadly, these grossly misleading efforts at intimidation
have apparently worked.
Mr. President, I have been
speaking for some time now about my strong opposition to this bill,
and I haven’t even addressed one of the most outrageous elements
of that bill: the granting of retroactive immunity to companies that
allegedly participated in an illegal wiretapping program that lasted
for more than five years.
Mr. President, this grant
of automatic immunity is simply unjustified. There is already an immunity
provision in current law that has been there since FISA was negotiated
– with the participation of the telecommunications industry –
in the late 1970s. The law is clear. Companies have immunity from civil
liability when they cooperate with a government request for assistance
– as long as they receive a court order, or the Attorney General
certifies that a court order is not required and all statutory requirements
have been met.
This is not about whether
companies had good intentions. It is about whether they complied with
this statutory immunity provision, which has applied to them for 30
years. If the companies followed that law, they should get immunity.
If they did not follow that law, they should not get immunity. And a
court should make that decision, not Congress. It’s that simple.
Congress passed a law laying
out when telecom companies get immunity and when they don’t for
a reason. These companies have access to our most private communications,
so Congress has subjected them to very precise rules about when they
can provide that information to the government. If the companies did
not follow the law Congress passed, they should not be granted a “get
out of jail free” card after the fact.
Mr. President, proponents
of retroactive immunity have said repeatedly that immunity is necessary
if the government is going to have the cooperation of carriers in the
future. We do need that cooperation. But we also need to make sure that
carriers don’t cooperate with illegitimate requests. We already
have a law that tells companies when they should and when they shouldn’t
cooperate, so they are not placed in the position of having to evaluate
independently whether the government’s request for help is legitimate.
Instead of allowing the courts
to apply that law to the facts – instead of allowing judges to
decide whether the companies deserve immunity for acting appropriately
-- this bill sends the message that companies need not worry about complying
with questionable government requests in the future because they will
be bailed out.
This is outrageous. Even
more outrageous is that fact that if these lawsuits are dismissed, the
courts may never rule on the NSA wiretapping program. This is an ideal
outcome for an administration that believes it should be able to interpret
laws alone, without worrying about how Congress wrote them or what a
judge thinks. For those of us who believe in three independent and co-equal
branches of government, it is a disaster.
Mr. President, in the 1970s,
Congress learned that the executive branch had been using its immense
powers and the advance of technology to spy on its citizens. By passing
FISA, Congress faced up to the fact that we can’t just trust the
executive branch, including the President of the United States, to do
the right thing, that judicial oversight of the power to spy was needed,
that checks and balances are the best way to ensure liberty, and security.
I have spent a great deal
of time on the floor over the past several weeks discussing the details
of the bill, offering amendments, and debating the possible effects
of the fine print of the statute. But this isn’t simply about
fine print. In the end, my opposition to this bill comes down to this:
This bill is a tragic retreat from the principles that have governed
government conduct in this sensitive area for 30 years. It needlessly
sacrifices court oversight and protection of the privacy of innocent
Americans. It is an abdication of this body’s duty to stand up
for the rule of law.
We know what’s wrong
with this legislation. We know that it authorizes unconstitutional surveillance
of Americans. Mr. President, we have been forewarned. I urge my colleagues
to vote No on final passage.
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