Statement of U.S. Senator Russ Feingold
In Opposition to the Flawed FISA Bill
As Prepared for Delivery
December 17, 2007
Mr. President, I oppose cloture on the motion to proceed to S. 2248,
as reported by the Senate Intelligence Committee. This bill is deeply
flawed, and I am very disappointed by the decision to take it up on
the Senate floor rather than the better bill reported out by the Judiciary
Committee.
Before leaving town for the August recess, Congress bowed to pressure
from the administration, and vastly expanded the government’s
ability to eavesdrop without a court-approved warrant. That legislation,
the so-called Protect America Act, 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.
The Senate should be taking this opportunity to fix its mistakes and
pass a new bill that gives the government all the tools it needs to
spy on suspected terrorists but also protects Americans’ basic
freedoms. This time around, the Senate should stand up to an Administration
that time and again has employed fear-mongering and misleading statements
to intimidate Congress.
Mr. President, the Intelligence Committee bill doesn’t fix those
mistakes, and it is not the bill we should be considering on the Senate
floor.
I do agree with the administration on one point -- Congress should
make clear that when foreign terrorists are communicating with each
other overseas, the U.S. government doesn’t need a warrant to
listen in, even if the collection activity ends up taking place in this
country because of the way modern communications are routed. Unfortunately,
both the Protect America Act and the bill approved by the Senate Intelligence
Committee go far beyond fixing that problem and also authorize widespread
surveillance involving Americans – at home and abroad.
The bill we should be considering is the Judiciary Committee bill,
which 14 Senators urged the Majority Leader to take up in a letter last
week.
The Judiciary Committee made critical improvements to ensure independent
judicial oversight of these sweeping new powers and to better protect
innocent Americans. The Judiciary bill does not contain a new form of
retroactive immunity for companies that allegedly cooperated with an
illegal wiretapping program that lasted for more than five years. And,
while the Intelligence Committee bill was drafted and debated behind
closed doors and in close consultation with the Administration, the
Judiciary bill was the product of an open process with the input of
experts from a variety of perspectives.
The Judiciary Committee bill is not perfect. It needs further improvement.
But it would be a vastly better starting point for Senate consideration
than the bill that the Majority Leader has brought to the floor, which
simply gives the Administration everything it was demanding, no questions
asked.
Mr. President, the stakes are high. I want my colleagues to understand
the impact that the Protect America Act and the Intelligence Committee
bill could have on the privacy of Americans. These bills do not just
authorize the unfettered surveillance of people outside the United States
communicating with each other. They also permit the government to acquire
those foreigners’ communications with Americans inside the United
States, regardless of whether anyone involved in the communication is
under any suspicion of wrongdoing.
There is no requirement that the foreign targets of this surveillance
be terrorists, spies or other types of criminals. The only requirements
are that the foreigners are outside the country, and that the purpose
is to obtain foreign intelligence information, a term that has an extremely
broad definition. No court reviews these targets individually. Only
the executive branch decides who fits these criteria.
The result is that many law-abiding Americans who communicate with
completely innocent people overseas will be swept up in this new form
of surveillance, with virtually no judicial involvement. Even the Administration’s
illegal warrantless wiretapping program, as described when it was publicly
confirmed in 2005, at least focused on particular terrorists. What we
are talking about now is a huge dragnet that will sweep up innocent
Americans.
In America, we understand that if we happen to be talking to a criminal
or terrorist suspect, our conversations might be overheard by the government.
But I don’t think many Americans expect the government to be able
to listen in to every single one of their international communications
with people about whom there are no suspicions whatsoever.
These incredibly broad authorities are 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.
To take one example, a critical difference between the Intelligence
and Judiciary bills is the role of the court. The Judiciary bill gives
the secret FISA court more authority to operate as an independent check
on the executive branch. It gives the court authority to assess the
government’s compliance with its wiretapping procedures, to place
limits on the use of information that was acquired through unlawful
procedures, and to enforce its own orders.
The Judiciary bill also does a better job of protecting Americans from
widespread warrantless wiretapping. It prohibits so-called bulk collection
– or vacuuming up all communications between the U.S. and overseas
-- which the DNI admitted is legal under the PAA. And 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 – what is called reverse targeting -- it has to
get a court order on that American. None of these changes hinders the
government’s ability to protect national security.
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 am certain that over the course of this week, we will hear a number
of arguments about why the Judiciary bill will hamper the fight against
terrorism. Let me say now to my colleagues: Do not believe everything
you hear. Last week I sat with many of you in the secure room in the
Capitol, S-407, and listened to arguments made by the Director of National
Intelligence and the Attorney General. And I can tell you with absolute
certainty that several of the examples they gave were simply wrong.
I am happy to have a classified meeting with anyone in this body who
wishes to discuss this.
This is not about whether we will be effective in combating terrorism.
Both bills allow that. This is about whether the court should have an
independent oversight role, and whether Americans deserve more privacy
protections than foreigners overseas.
All of this should sound familiar to those who have followed previous
debates about fighting terrorism while protecting Americans’ civil
liberties in the post-9/11 world: The administration says: “Trust
us. 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.”
Time and again, that has proven to be a foolish and counter-productive
attitude. And sadly, despite the objections of many of us in this chamber,
too many times Congress has gone along. We don’t have to make
that same mistake again.
Mr. President, in this case, we have a factual record to help us evaluate
whether we should simply trust the administration or whether we should
write protections into law. The Protect America Act has only been in
law for four and a half months, and we are still missing key information
about it. But the Intelligence Committee has recently been provided
some basic information about its implementation.
Based on what I have learned, I have very serious questions about the
way that the Administration is interpreting and implementing the Protect
America Act, including its effect on the privacy of Americans. I will
shortly be sending the Director of National Intelligence a classified
letter detailing my concerns, which are directly relevant to the legislation
we are now considering. I regret this information is classified, so
I cannot discuss it here, and I regret that more of my colleagues have
not been privy to this information prior to this floor debate. But I
would be happy to share a copy of my letter, in an appropriate classified
setting, with any Senator who wishes to review it.
Mr. President, I have been speaking for some time now about my strong
opposition to the Intelligence Committee 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 already 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 the companies had good intentions or acted
in good faith. 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. 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.
We have heard a lot of arguments about needing 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 -- the Intelligence Committee 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, for all of these reasons I oppose cloture on the motion
to proceed to the Intelligence Committee bill. I fear we are about to
make the same mistake that we made with the Patriot Act. We passed that
law without taking the time to consider its implications, and we didn’t
do enough during the reauthorization process to fix it. As a result,
three federal courts have struck down provisions of the Patriot Act
as unconstitutional. And that is right back where we are going to end
up if we don’t do our jobs and fix the Protect America Act. I
urge my colleagues to vote No on cloture.
I yield the floor.
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