Amendment Number 537

AMENDMENT NO. 537

Mr. BIDEN. Mr. President, I am pleased to support final passage of S. 113, a bill to amend the Foreign Intelligence Surveillance Act, FISA, to provide needed tools to detect and combat terrorists bent on attacking this Nation and killing our citizens. First, let me commend my colleagues, Senators KYL and SCHUMER, for their relentless efforts in bringing this important issue to the floor of the U.S. Senate. Since the tragic events of September 11, all of us have tried to turn a critical eye toward our laws and the workings of government to discern how we might avert such a dreadful attack in the future. That attempt to fix what may be wrong with our existing system of intelligence-gathering and law enforcement is perhaps the greatest tribute we can offer to the victims of that fateful day and their families.

This bill, as amended, is a good example of how we can make basic, common-sense changes to existing law that will have a tremendous impact on our fight against terrorism. I was proud to be one of the authors of FISA in 1978. We worked long and hard to strike the right balance between protecting civil liberties on the one hand and deterring terrorist acts on the other. Since FISA permits the physical and electronic surveillance of suspected foreign agents, in some instances under a more generous standard than that allowed in Title III surveillances, an amendment to FISA should be carefully tailored to maintain its careful balance. I do not take lightly amending FISA, but believe that this bill does so in a manner that is both constitutional and narrowly tailored.

[Page S5926]
I want to thank the sponsors of this legislation for their willingness to work with me to improve their original bill. I proposed two amendments, both of which were accepted by Senators KYL and SCHUMER—and which the Judiciary Committee adopted without a dissenting vote on April 29, 2003. I believe my amendments improve S. 113 in three ways:
First, the original legislation—which would have amended FISA to expand the definition of "foreign power" under 50 U.S.C. A? 1801(a)(4) to include non-U.S. persons who are engaged in international terrorism—would have allowed the government to extend the initial surveillance order for a period up to 1 year. The 1-year period constitutes the maximum period allowed under the statute and is only invoked under certain circumstances typically limited to groups and entities. More commonly, an order to conduct surveillance of individuals is only extended for a period up to 90 days. Instead, the amendment we offered on April 29, 2003, amended the definition for "agent of a foreign power" by creating a new 50 U.S.C. A? 1801(b)(1)(C). This amendment would apply the default 90-day period to this new category of surveillance targets, which is far more sensible and consistent with the way we treat other individual targets, as opposed to groups, under the statute.

Second, by amending 50 U.S.C. A? 1801(a), the original legislation would have precluded individuals who are improperly subjected to surveillance or about whom surveillance information has been inappropriately disclosed from filing suit. My amendment, on the other hand, allowed aggrieved individuals who are improperly targeted under this new provision to seek redress in the courts and, where appropriate, recover damages. This modification to Senator KYL'S original bill is consistent with the typical and intended treatment of individuals under 18 U.S.C. A? 1801(b). See H.R. Rep. No. 95-1283, at pt. 1, 98 (1978) (noting that the only aggrieved persons "barred from the civil remedy will be primarily those persons who are themselves immune from criminal or civil liability because of their diplomatic status").

Third, my amendment added a sunset provision to the legislation, forcing Congress to re-visit this issue no later than December 31, 2005. The USA Patriot Act (which the Senate overwhelmingly passed a year and a half ago) includes a similar sunset provision for the FISA provisions contained therein. My amendment simply insures that this body will reevaluate the FISA measure on which we are voting today, in the context of its broader re-consideration of those other FISA provisions. Such a review is consistent with our oversight function and, plainly put, ensures that our actions are thoughtful and informed.

Again, I am pleased that Senators KYL and SCHUMER accepted these important revisions to the original text and, on that basis, am happy to support the amended bill that is before the Senate today.

I also would like to commend my colleague, Senator FEINSTEIN, for her efforts to engage this issue responsibly and thoughtfully. She has proposed an alternative, which makes an important contribution to the debate but with which I happen to disagree, for several reasons.

First, my good friend from California asserts that criminal prosecutors will abuse the FISA process by securing FISA surveillance—with its lower burdens of proof—against garden variety criminal targets, rather than pursuant to Title III. I am simply not persuaded that this will be the case. It should be noted that the new section created in this bill has a very high standard, higher indeed than that required by Title III. That is, the government must show probable cause that the FISA target has engaged in acts of "international terrorism," which the statute defines as acts which (i) are a violation of the criminal law under the laws of the United States or any state; (ii) appear intended to influence our government or intimidate our citizens; and (iii) which occur outside the United States or transcend national boundaries. Thus, I doubt that a prosecutor would ever be able to seek a FISA warrant under this section where he would not also be able to obtain a Title III warrant. Morever, I am not convinced that a prosecutor would seek a FISA warrant where their real interest is, not obtaining foreign intelligence information, but rather the eventual prosecution of the FISA target. Given the strict exclusionary rules FISA imposes, prosecutors would be loathe to ever seek a FISA warrant for a target they seek to prosecute out of fear that the judge would suppress the surveillance in a criminal prosecution which was improperly "boot-strapped" from a FISA investigation.

Second, the Feinstein amendment asserts that, under the Kyl-Schumer bill, a judge would be a mere "rubber-stamp" for a governmental request for a FISA warrant. The amendment presumes that judges do not now have discretion to refuse the government's request, which is not true. Under current law, the judge still must determine that probable cause exists that the individual is an agent of a foreign power engaged in, or in preparation for, acts of international terrorism. S. 113 does nothing to alter that existing requirement. Rather, it makes it clear that any non-U.S. citizen who engages in terrorism or is preparing to engage in terrorism would fall within the definition of an "agent of a foreign power." Nothing in this bill would curtail a judge's ability to second-guess, or look behind, the assertions advanced by the government in its application for a warrant. If there is no basis to believe that probable cause exists, the application would be properly denied. Indeed, we rely on judges for this very purpose—namely, to ascertain the veracity of the facts presented by the government.

As opposed to clarifying the definition of "agent of a foreign power," as the Kyl-Schumer bill does, the Feinstein amendment would allow—but not require—a judge to "presume" that an individual is such an agent, which in my view creates a difference without a real distinction. Rather than afford individual targets any added protections, the Feinstein amendment would inject a considerable amount of murkiness into an otherwise certain process and may result in inconsistent rulings by different judges. Likewise, FISA judges may simply decline to apply the presumption in cases where the government cannot show much, if any, link between the non-U.S. citizen and a foreign power. There has been considerable disagreement over whether the Federal Bureau of Investigation had sufficient evidence to show that Zacarias Moussaoui, the so-called "20th Hijacker," was an agent of a foreign power. Yet, I am concerned that a FISA judge might decline to exercise the "permissive presumption" in Senator FEINSTEIN's amendment, and hence deny a FISA warrant, in the case of a true "lone-wolf" terrorist who cannot be shown to have any links to a foreign power. As such, the FISA "loophole" S. 113 seeks to close would be left open. On that basis, I am forced to vote against the amendment.
That is not to say, however, that there is not much more work to be done in this area. We must search for creative ways to give investigators the tools they need to gather information and seek out terrorists living among us, while at the same time vigilantly protect important civil rights and liberties. Toward that end, I welcome the oversight hearings that my friend Senator HATCH, chairman of the Judiciary Committee, has pledged to convene on the implementation of FISA and offer my continued service.

It is my hope that the Senate's action today will assist our government in its effort to detect and root out foreign terrorists bent on violent acts against this great country. I support this bill and urge my colleagues to vote for it.