Statement
of U.S. Senator Russ Feingold
In Support of the Senate Judiciary Committee FISA Legislation
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January 24, 2008
Mr. President,
I strongly support Senator Leahy in his effort to replace the Senate
Intelligence Committee bill with the version passed by the Senate Judiciary
Committee. As a member of both committees, I have been deeply involved
in this process, and I urge my colleagues to support the Judiciary Committee
version of this legislation.
Indeed, I had hoped
very much that the Senate would take up that bill to begin with, rather
than the flawed Intelligence Committee bill. In December, I, along with
thirteen other Senators, urged the Majority Leader to make the Judiciary
Committee bill the base bill on the Senate floor. Unfortunately, our
request was denied. So it is disappointing that we are now forced to
face the uphill battle of offering the Judiciary bill as an amendment.
Mr. President,
I’d like to lay out the reasons that the Senate should support
the Judiciary Committee bill rather than the Intelligence Committee
bill. One obvious reason is that the Judiciary Committee bill, unlike
the Intelligence Committee bill, does not contain unjustified retroactive
immunity for companies alleged to have participated in an illegal wiretapping
program. I don’t want to spend a lot of time on this today because
there will be an opportunity to debate this issue as the Senate’s
consideration of this legislation moves forward. But I will say that
having spent the last year and a half studying what happened at the
NSA from 2001 to 2006, I strongly oppose immunity. Under current law,
telecom companies already get immunity, as long as they follow certain
requirements spelled out clearly in the law, and I see no reason for
Congress to change the rules this late in the game.
But today I would
like to focus on the other significant part of these bills, the part
contained in Title I of each bill that contains sweeping new changes
to the FISA law for years to come.
Let me start by
pointing out that there are a number of similarities between Title I
of the Intelligence Committee bill and Title I of the Judiciary Committee
bill. Their basic structure is the same. Title I of both bills authorizes
the government to conduct surveillance of individuals reasonably believed
to be overseas without court approval for individual warrants. And both
bills authorize the government to develop and implement procedures to
govern this new type of surveillance, and provide the procedures to
the FISA Court for review after they have gone into effect. These are
extraordinary powers that both bills give to the executive branch, and
there is no difference between these two bills in terms of the intelligence
they permit the government to acquire.
Rather, the differences
between these two bills come in the form of critically important checks
and balances on those powers. The Judiciary Committee bill contains
a number of important changes to improve court oversight of these broad
new executive branch authorities, and to protect the privacy of law-abiding
Americans. The Intelligence Committee bill, on the other hand, leaves
it up to the executive branch to police itself – an approach that
has all too often proven to be a bad idea.
Mr. President,
let me state it as clearly as I can: The differences between these two
bills have nothing to do with our ability to combat terrorism. They
have everything to do with ensuring that the executive branch follows
the rule of law and doesn’t unnecessarily listen in on the private
communications of Americans.
This debate is
about whether the courts should have an independent oversight role,
and what protections should apply to the communications of Americans
that get swept up in these broad new surveillance powers.
If you believe
that courts should have a meaningful oversight role with respect to
government surveillance, then you should support the Judiciary bill.
And if you believe that Congress should safeguard the communications
of Americans here at home that could be swept up in a broad new surveillance
program that is supposed to be focused on foreigners overseas, then
you should support the Judiciary bill. It’s that simple.
That said, the
Judiciary Committee bill is not perfect. More still needs to be done
to protect the privacy of Americans. But that is why it should be such
an easy decision to support the Judiciary Committee bill as a starting
point.
Let me also remind
my colleagues that the process by which the Judiciary Committee considered,
drafted, amended and reported out its bill was an open one, allowing
outside experts and the public at large the opportunity to review and
comment. With regard to legislation so directly connected to the constitutional
rights of Americans, the results of this open process should be accorded
great weight, especially in light of the Judiciary Committee’s
unique role and expertise in protecting those rights.
I also want to
point out that several of the Administration’s criticisms of the
Judiciary Committee bill have been based on technical drafting concerns.
But in the version that Chairman Leahy has brought to the floor, he
has made the changes necessary to address those technical concerns.
So I hope we do not hear any arguments during this floor debate about
these issues that have already been addressed.
So what, exactly,
are the differences between the two bills?
First, the Judiciary
bill gives the secret FISA court more authority to operate as an independent
check on the executive branch.
For example, one
provision in the Judiciary bill fixes an enormous problem with the Intelligence
Committee bill – the complete lack of incentives for the government
to target people overseas rather than people here in America. The Judiciary
bill solves this problem by giving the FISA Court the discretion to
limit the use of information concerning Americans when that information
is obtained through procedures the FISA Court ultimately finds are not
reasonably designed to target persons overseas.
Another provision
of the Judiciary bill ensures that the FISA Court has the authority
to oversee compliance with minimization procedures. Minimization procedures
have been held up as the primary protection in the Intelligence Committee
bill for the privacy of Americans whose communications get swept up
in this new surveillance authority.
I don’t think
current minimization procedures are strong enough to do the job. But
to the extent that minimization can help protect Americans’ privacy,
its implementation needs to be overseen by the Court. That means giving
the Court the authority to review whether the government is complying
with minimization rules and to ask for the information it needs to make
that assessment. Without this provision from the Judiciary bill, the
government’s dissemination and use of information on innocent,
law-abiding Americans will occur without any checks and balances whatsoever.
Once again, “trust us” will have to do. I believe in this
case, as in so many others, “trust us” is not enough.
The Judiciary bill
furthers other types of oversight, as well. For one thing, it requires
relevant Inspectors General to conduct a complete review of the President’s
illegal wiretapping program, which is long overdue.
And it improves
congressional access to FISA Court orders. The Intelligence Committee
bill requires that Congress be provided with orders, decisions and opinions
of the FISA Court that include significant interpretations of law within
45 days after they are issued. That is good as far as it goes, but the
Judiciary bill adds that Congress should be provided with pleadings
associated with opinions that contain significant interpretations of
law. At times, the Court’s opinions merely reference and approve
the arguments made in the government’s pleadings, so the pleadings
may be critical to understanding the reasoning behind any particular
decision. It also requires that significant interpretations of law not
previously provided to Congress over the past five years be provided.
Congress needs to have the full story of how the law has been interpreted
in the past in order to make the right decisions on what changes in
the law should be made in the future.
The Judiciary bill
also does a better job of protecting Americans from widespread warrantless
wiretapping.
First, it provides
real protection against reverse targeting. It ensures that if the government
is wiretapping a foreigner overseas in order to collect the communications
of the American with whom that foreign target is communicating, it has
to get a court order on the American. Specifically, the Judiciary bill
says that the government needs an individualized court order when a
significant purpose of its surveillance is listening to an American
at home. The DNI himself said that reverse targeting violates the Fourth
Amendment; this provision simply codifies that principle. The administration
continues to oppose this provision, and I have a simple question: “Why?”
Why is it opposed to a provision that prohibits a practice that its
own Director of National Intelligence says is unconstitutional?
The Judiciary bill
also prohibits bulk collection – that is, the sweeping up of all
communications between the United States and overseas. The DNI said
in public testimony that this type of massive bulk collection would
be permitted by the Protect America Act that is currently in effect.
But he has also said that what the government is seeking to do with
these authorities is something very different. It is, he said, and I
am quoting him here: “surgical. A telephone number is surgical.
So, if you know that number, you can select it out.” If the DNI
has said he doesn’t need broader authorities, there should be
no objection to this modest provision, which simply holds the DNI to
his word.
This prohibition
against bulk collection ensures that the government has some foreign
intelligence interest in the communications that it is collecting, and
is not just vacuuming up every last communication between Americans
and their friends and business colleagues overseas. Targets do not need
to be known or named individuals; they can be phone numbers, which is
how the DNI has described how the government collects. And the government
does not have to identify or explain its interest in the targets to
the FISA Court; it merely has to make a general certification that individual
targets exist.
The Judiciary bill
also has a sunset of four years rather than six years, ensuring that
Congress will reevaluate this law at least once before the end of the
next presidential term. And, critically, it contains a strong statement
that Congress intends for FISA to be the exclusive means by which foreign
intelligence surveillance is conducted. It also closes purported statutory
loopholes that the Justice Department relied on to make its tortured
arguments that the congressional authorization for use of force in Afghanistan
somehow authorized the President’s illegal wiretapping program.
The Judiciary bill makes clear, once and for all, that the President
must follow the law.
Mr. President,
for all of these reasons, the Senate should support the Judiciary Committee’s
product. Let me repeat what I said at the outset: The differences between
these two bills have nothing to do with our ability to combat terrorism.
They have everything to do with ensuring that the executive branch adheres
to the rule of law and doesn’t unnecessarily listen in on the
private communications of Americans. The fact that the administration
is so strongly resisting these commonsense protections says a lot. And
it ought to give pause to those who are considering opposing it. It
is time for Congress to stop being an enabler when it comes to this
administration’s indifference to the rule of law, and instead
start being a protector of the rights and freedoms of citizens.
I urge my colleagues
to support the Judiciary Committee bill, and I yield the floor. |
