Remarks
of U.S. Senator Russ Feingold
Opposing H.R. 6304, FISA Amendments Act of 2008
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June 25, 2008
Mr. President, I strongly
oppose H.R. 6304, the FISA Amendments Act of 2008.
This legislation has been
billed as a compromise between Republicans and Democrats. We are asked
to support it because it is a supposedly reasonable accommodation of
opposing views. Let me respond as clearly as possible: This bill is
not a compromise. It is a capitulation.
This bill will effectively
and unjustifiably grant immunity to companies that allegedly participated
in an illegal wiretapping program – a program that more than 70
members of this body still know virtually nothing about. And this bill
will grant the Bush Administration – the same administration that
developed and operated this illegal program for more than five years
– expansive new authorities to spy on Americans’ international
communications.
If you don’t believe
me, here is what Senator Bond had to say about the bill: “I think
the White House got a better deal than even they had hoped to get.”
And House Minority Whip Roy Blunt said this: “The lawsuits will
be dismissed.”
There is simply no question
that Democrats who had previously stood strong against immunity and
in support of civil liberties were on the losing end of this backroom
deal.
Mr. President, the railroading
of Congress began last summer, when the Administration rammed through
the so-called “Protect America Act,” or PAA, 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 the silver lining was
that the law had a six-month sunset. So Congress quickly started working
to fix the legislation. The House passed a bill last fall, and the Senate
passed its bill – one that I believe was deeply flawed –
in February. As the PAA’s six-month sunset approached in late
February, the House faced enormous political pressure simply to pass
the Senate bill before the sunset date. But the reality was that no
orders under the PAA were going to expire in February, and the House
stood firm in its resolve not to pass the Senate bill with its unjustified
immunity provision. The House deserved great credit for not buckling
in the face of the President’s attempts to intimidate them. Ultimately
the House passed new legislation in March, setting up the negotiations
that have led us here today.
I think it’s safe to
say that even many who voted for the Protect America Act last year came
to believe it was a mistake to pass that legislation. And while the
House deserves credit for refusing to pass the Senate bill in February,
and for securing the changes that are in this new bill, this bill is
also a serious mistake.
Mr. President, the immunity
provision is a key reason for that. It is a key reason for my opposition
to this legislation and for that of so many of my colleagues and so
many Americans. No one should be fooled about the effect of this bill.
Under its terms, the companies that allegedly participated in the illegal
wiretapping program will walk away from these lawsuits with immunity.
There is simply no question about it, and anyone who says that this
bill preserves a meaningful role for the courts to play in deciding
these cases is wrong.
But I’m concerned that
the focus on immunity has diverted attention away from the other very
important issues at stake in this legislation. In the long run, I don’t
believe this will be remembered as the ‘immunity’ bill.
This legislation is going to be remembered as the legislation in which
Congress granted the executive branch the power to sweep up all of our
international communications with very few controls or oversight.
Mr. President, I’m
talking about Title I of the bill, the title that makes substantive
changes to the FISA statute. I’d like to explain why I am so concerned
about the new surveillance powers granted in this part of the bill,
and why the modest improvements made to this part of the bill don’t
go far enough.
This part of the bill has
been sold to us as necessary 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.
First, the FISA Amendments
Act, like the Protect America Act, would authorize the government to
collect all communications between the U.S. and the rest of the world.
That could mean millions upon millions of communications between innocent
Americans and their friends, families, or business associates overseas
could legally be collected. Parents calling their kids studying abroad,
emails to friends serving in Iraq – all of these communications
could be collected, with absolutely no suspicion of any wrongdoing,
under this legislation. In fact, the DNI even testified that this type
of ‘bulk collection’ would be ‘desirable.’
The bill’s supporters
like to say that the government needs additional powers to target terrorists
overseas. But under this bill, the government is not limited to targeting
foreigners outside the U.S. who are terrorists, or who are suspected
of some wrongdoing, or who are members or agents of some foreign government
or organization. In fact, the government does not even need a specific
purpose for wiretapping anyone overseas. All it needs to have is a general
“foreign intelligence” purpose, which is a standard so broad
that it covers all international communications. That’s not just
my opinion -- the DNI has testified that, under the PAA, and presumably
this bill, the government could legally collect all communications between
the United States and overseas. Let me repeat that: under this bill,
the government can legally collect all communications – every
last one – between Americans here at home and the rest of the
world.
Mr. President, I should note
that one of the few bright spots in this bill is the inclusion of a
provision from the Senate bill to prohibit the intentional targeting
of an American overseas without a warrant. That is an important new
protection. But that amendment does not prevent 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.
I tried to address this issue
of “bulk collection” when the bill was on the floor in February
by offering an amendment that would have required that there be some
foreign intelligence purpose for the collection of communications to
or from particular targets. The vast majority of Democrats supported
this effort, but unfortunately it was defeated. And the bill we are
considering today does not address this problem.
Second, like the earlier
Senate version, this bill fails to effectively prohibit the practice
of reverse targeting – namely, wiretapping a person overseas when
what the government is really interested in is listening to an American
here at home with whom the foreigner is communicating. The bill does
have a provision that purports to address this issue. The bill prohibits
intentionally targeting a person outside the U.S. without an individualized
court order if, quote, “the purpose” is to target someone
reasonably believed to be in the U.S. But this language would permit
intentional and possibly unconstitutional warrantless surveillance of
an American so long as the government has any interest in the person
overseas with whom the American is communicating. And, if there was
any doubt, the DNI has publicly said that the Senate bill – which
contained identical language as the current bill – merely “codifies”
the administration’s position, which is that the government can
wiretap a person overseas indefinitely without a warrant, no matter
how interested it may really be in the American with whom that person
overseas is communicating.
Supporters of this bill also
will argue that it requires the executive branch to establish guidelines
for implementing this new reverse targeting requirement. But the guidelines
are not subject to judicial review. And requiring guidelines to implement
an ineffective limitation is not a particularly comforting safeguard.
When the Senate considered
the FISA bill earlier this year, I offered an amendment – one
that had been approved by the Senate Judiciary Committee – to
make the prohibition on reverse targeting meaningful. My amendment,
which again had the support of the vast majority of the Democratic caucus
and was included in the bill passed by the House in March, would have
required the government to obtain a court order whenever a significant
purpose of the surveillance is to acquire the communications of an American
in the U.S. This would have done a far better job of protecting the
privacy of the international communications of innocent Americans. Unfortunately,
it is not in this bill.
Third, the bill before us
imposes no meaningful consequences if the government initiates surveillance
using procedures that have not been approved by the FISA Court, and
the FISA Court later finds that those procedures were unlawful. Say
for example, that the FISA Court determines that the procedures were
not even reasonably designed to wiretap foreigners rather than Americans.
Under the bill, all that illegally obtained information on Americans
can be retained and used. Once again, there are no consequences for
illegal behavior.
Now, unlike the Senate bill,
this new bill does generally provide for FISA Court review of surveillance
procedures before surveillance begins. But it also says that if the
Attorney General and Director of National Intelligence certify that
they don’t have time to get a court order and that intelligence
important to national security may be lost or not timely acquired, then
they can go forward without judicial approval. This is a far cry from
allowing an exception to FISA Court review in a true emergency because
arguably all intelligence is important to national security and any
delay at all might cause some intelligence to be lost. So I am concerned
that this ‘exigency’ exception could very well swallow the
rule and undermine any presumption of prior judicial approval.
But whether the exception
is applied broadly or narrowly, if the government invokes it and ultimately
engages in illegal surveillance, the court should be given some flexibility
after the fact to determine whether the government should be allowed
to keep the results of that illegal surveillance if it involves Americans.
That is what another one of my amendments on the Senate floor would
have done, an amendment that garnered 40 votes, yet this issue goes
unaddressed in the so-called compromise.
Fourth, this bill doesn’t
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 this bill. That is
why on the Senate floor, I joined with Senator Webb and Senator Tester
to offer an amendment to provide real protections for the privacy of
Americans, while also giving the government the flexibility it needs
to wiretap terrorists overseas. But this bill, like the Senate bill,
relies solely on these inadequate minimization procedures.
Mr. President, the broad
surveillance powers involving international communications that are
contained in this legislation 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 happen all the time. 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.
Supporters of the bill like
to say 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. This supposed compromise,
unfortunately, fails that test.
Mr. President, I don’t
mean to suggest that this bill does not contain some improvements over
the bill that the Senate passed early this year. Clearly it does, and
I appreciate that. Certainly, it is a good thing that this bill includes
language making clear, once and for all, that Congress considers FISA
and the criminal wiretap laws to be the exclusive means by which electronic
surveillance can be conducted in this country – a provision that
Senator Feinstein fought so hard for. And it is a good thing that Congress
is directing the relevant Inspectors General to do a comprehensive report
on the President’s illegal wiretapping program – a report
whose contents I hope will be made public to the greatest degree possible.
And it is a good thing that the bill no longer redefines the critical
FISA term “electronic surveillance,” which could have led
to a great deal of confusion and unintended consequences.
All of those provisions are
positive developments, and I am glad that the ultimate product seemingly
destined to become law contains these improvements.
But I can’t pretend
that these improvements are enough. They are nowhere close. When I offered
my amendments on the Senate floor in February, the vast majority of
the Democratic caucus supported me. While I did not have the votes to
pass those amendments, I am confident that more and more members of
Congress will agree that changes to this legislation need to be made.
If we can’t make them this year, then Congress must return to
this issue – and it must do so as soon as a new President takes
office. These issues are far too important to wait until the sunset
date, especially now that it is set in this bill for 2012, another presidential
election year.
But Mr. President, let me
now turn to the grant of retroactive immunity that is contained in this
bill because on that issue there is no question that any differences
between this bill and the Senate bill are only cosmetic. Make no mistake:
This bill will result in immunity.
Under the terms of this bill,
a federal district court would evaluate whether there is substantial
evidence that a company received “a written request or directive
… from the Attorney General or the head of an element of the intelligence
community … indicating that the activity was authorized by the
President and determined to be lawful.”
But, Mr. President, we already
know from Senate Select Committee on Intelligence’s committee
report last fall that the companies received exactly these materials.
That is already public information. So under the terms of this proposal,
the court’s evaluation would essentially be predetermined.
Regardless of how much information
the court is permitted to review, what standard of review is employed,
how open the proceedings are, and what role the plaintiffs are permitted
to play, the court will essentially be required to grant immunity under
this bill.
Now, proponents will argue
that the plaintiffs in the lawsuits against the companies can participate
in briefing to the court. This is true, but they are allowed to participate
only to the extent it does not necessitate the disclosure of classified
information. Mr. President, the administration has restricted information
about this illegal program so much that more than 70 members of this
chamber don’t even have access to the basic facts about what happened.
So let’s not pretend that the plaintiffs will be able to participate
in any meaningful way. And even if they could participate fully, immunity
is a foregone conclusion under the bill.
This result is extremely
disappointing on many levels, perhaps most of all because granting retroactive
immunity is entirely unnecessary and unjustified. Doing this will profoundly
undermine the rule of law in this country.
For starters, current law
already provides immunity from lawsuits for companies that cooperate
with the government’s request for assistance, as long as they
receive either a court order or a certification from the Attorney General
that no court order is needed and the request meets all statutory requirements.
But if requests are not properly documented, FISA instructs the telephone
companies to refuse the government’s request, and subjects them
to liability if they instead decide to cooperate. This framework, which
has been in place for 30 years, protects companies that act at the request
of the government while also protecting the privacy of Americans’
communications.
Some supporters of retroactively
expanding this already existing immunity provision argue that the telephone
companies should not be penalized if they relied on a high-level government
assurance that the requested assistance was lawful. Mr. President, as
superficially appealing as that argument may sound, it utterly ignores
the history of FISA.
Telephone companies have
a long history of receiving requests for assistance from the government.
That’s because telephone companies have access to a wealth of
private information about Americans – information that can be
a very useful tool for law enforcement. But that very same access to
private communications means that telephone companies are in a unique
position of responsibility and public trust. And yet, before FISA, there
were basically no rules to help the phone companies resolve the tension
between the government’s requests for assistance in foreign intelligence
investigations and the companies’ responsibilities to their customers.
This legal vacuum resulted
in serious governmental abuse and overreaching. The abuses that took
place are well documented and quite shocking. With the willing cooperation
of the telephone companies, the FBI conducted surveillance of peaceful
anti-war protesters, journalists, steel company executives – and
even Martin Luther King Jr.
Congress decided to take
action. Based on the history of, and potential for, government abuses,
Congress decided that it was not appropriate for telephone companies
to simply assume that any government request for assistance to conduct
electronic surveillance was legal. Let me repeat that: a primary purpose
of FISA was to make clear, once and for all, that the telephone companies
should not blindly cooperate with government requests for assistance.
At the same time, however,
Congress did not want to saddle telephone companies with the responsibility
of determining whether the government’s request for assistance
was a lawful one. That approach would leave the companies in a permanent
state of legal uncertainty about their obligations.
So Congress devised a system
that would take the guesswork out of it completely. Under that system,
which was in place in 2001, and is still in place today, the companies’
legal obligations and liability depend entirely on whether the government
has presented the company with a court order or a certification stating
that certain basic requirements have been met. If the proper documentation
is submitted, the company must cooperate with the request and will be
immune from liability. If the proper documentation has not been submitted,
the company must refuse the government’s request, or be subject
to possible liability in the courts.
The telephone companies and
the government have been operating under this simple framework for 30
years. The companies have experienced, highly trained, and highly compensated
lawyers who know this law inside and out.
In view of this history,
it is inconceivable that any telephone companies that allegedly cooperated
with the administration’s warrantless wiretapping program did
not know what their obligations were. And it is just as implausible
that those companies believed they were entitled to simply assume the
lawfulness of a government request for assistance. This whole effort
to obtain retroactive immunity is based on an assumption that doesn’t
hold water.
That brings me to another
issue, Mr. President. I’ve been discussing why retroactive immunity
is unnecessary and unjustified, but it goes beyond that. Granting companies
that allegedly cooperated with an illegal program this new form of automatic,
retroactive immunity undermines the law that has been on the books for
decades – a law that was designed to prevent exactly the type
of actions that allegedly occurred here.
Remember, telephone companies
already have absolute immunity if they complied with the applicable
law. And they have an affirmative defense if they believed in good faith
that they were complying with that law. So the retroactive immunity
provision we’re debating here is necessary only if we want to
extend immunity to companies that did not comply with the applicable
law and did not even have a good faith belief that they were complying
with it. So much for the rule of law.
Even worse, granting retroactive
immunity under these circumstances will undermine any new laws that
we pass regarding government surveillance. If we want companies to follow
the law in the future, it sends a terrible message, and sets a terrible
precedent, to give them a “get out of jail free” card for
allegedly ignoring the law in the past.
I find it particularly troubling
when some of my colleagues argue that we should grant immunity in order
to encourage the telephone companies to cooperate with the government
in the future. They want Americans to think that not granting immunity
will damage our national security. But if you take a close look at the
argument, it doesn’t hold up. The telephone companies are already
legally obligated to cooperate with a court order, and as I’ve
mentioned, they already have absolute immunity for cooperating with
requests that are properly certified. So the only thing we’d be
encouraging by granting immunity here is cooperation with requests that
violate the law. Mr. President, that’s exactly the kind of cooperation
that FISA was supposed to prevent.
And let’s remember
why. These companies have access to our most private conversations,
and Americans depend on them to respect and defend the privacy of these
communications unless there is clear legal authority for sharing them.
They depend on us to make sure the companies are held accountable for
betrayals of that public trust. Instead, this immunity provision would
invite the telephone companies to betray that trust by encouraging cooperation
with illegal government programs.
But Mr. President, this immunity
provision doesn’t just allow telephone companies off the hook
for breaking the law. It also will make it that much harder to get to
the core issue that I’ve been raising since December 2005, which
is that the President ran an illegal program and should be held accountable.
When these lawsuits are dismissed, we will be that much further away
from an independent judicial review of this program.
Mr. President, since 9-11,
I’ve heard it said many times that what separates us from our
enemies is respect for the rule of law. Unfortunately, the rule of law
has taken it on the chin from this administration. Over and over, the
President and his advisers have claimed the right to ignore the will
of Congress and the laws on the books if and when they see fit. And
now they are claiming the same right for any entity that assists them
in that effort, no matter how unreasonable that assistance might have
been.
On top of all this, we are
considering granting immunity when more than 70 members of the Senate
still – still – have not been briefed on the President’s
wiretapping program. The majority of this body still does not even know
what we are being asked to grant immunity for.
In sum, Mr. President, I
cannot support this legislation. I appreciate that changes were made
to the Senate bill, but they are not enough. Nowhere near enough.
And Mr. President, we have
other alternatives. We have options. We do not have to pass this law
in the midst of a presidential election year, while George Bush remains
President, in the worst possible political climate for constructive
legislating in this area. If the concern is that orders issued under
the PAA could expire as early as August, we could extend the PAA for
another six months, nine months, even a year. We could put a one-year
sunset on this bill, rather than having it sunset in the next presidential
election year when partisan politics will once again be at their worst.
Or we could extend the effect of any current PAA orders for six months
or a year. All of these options would address any immediate national
security concerns.
What we do not have to do,
Mr. President, and what we should not do, is pass a law that will immunize
illegal behavior and fundamentally alter our surveillance laws for years
to come.
I have spent a great deal
of time over the past year – in the Senate Intelligence Committee,
in the Senate Judiciary Committee, and on the Senate floor – discussing
my concerns, offering amendments, and debating the possible effects
of the fine print of various bills. 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 the protection of the privacy of innocent Americans. And
it is an abdication of this body’s duty to stand up for the rule
of law. I will vote No.
I yield the floor.
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