FISA Amendments Act of 2008 - Continued

Floor Speech

FISA AMENDMENTS ACT OF 2008--Continued -- (Senate - July 09, 2008)

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Mr. BIDEN. Mr. President, I rise today in opposition to the Foreign Intelligence Surveillance Amendments Act of 2008. As one of the cosponsors of FISA in 1978, I am fully aware of the importance of giving the administration the surveillance tools it needs to keep us safe. This is a very difficult vote and I do not question the judgment of those who have chosen to support the bill. But because I am concerned that this bill authorizes surveillance that is broader than necessary to protect national security at the expense of civil liberties and because it gives blanket retroactive immunity to the telephone companies, I have decided not to support it.

One of the defining challenges of our age is to combat international terrorism while maintaining our national values and our commitment to the rule of law and individual rights. These two obligations are not mutually exclusive. Indeed, they reinforce one another. Unfortunately, the President's national security policies have operated at the expense of our civil liberties. The examples are legion, but the issue that prompted the legislation before us today is one of the most notorious--his secret program of eavesdropping on Americans without congressional authorization or a judge's approval.

After insisting for a year that the President was not bound by the Foreign Intelligence Surveillance Act's clear prohibition on warrantless surveillance of Americans, the administration subjected its surveillance program to FISA Court review in January of 2007.

Then, last August, citing operational difficulties and heightened threats that required changes to FISA, Congress passed the Protect America Act--over my objection and that of many of my colleagues. I am submitting with this statement the objections I made at that time.

The Protect America Act, which sunset last February, amended FISA to allow warrantless surveillance, even when that surveillance intercepted the communications of innocent American citizens inside the United States.

The administration identified two problems it faces in conducting electronic surveillance under FISA. First, the administration wanted clarification that it did not need to obtain a FISA warrant in order to conduct surveillance of calls between two parties when both of those parties are overseas. Because of the way global communications are now transmitted, many communications between people all of whom are overseas are nonetheless routed through switching stations inside the United States. In other words, when someone in Islamabad, Pakistan calls someone in London, that call is likely to be routed through communications switching stations right here in the United States. Congress did not intend FISA to apply to such calls, and I support a legislative fix to clarify that point.

The second problem the administration identified is more difficult. Even assuming that the Government does not need a FISA warrant to tap into switching stations here in the United States in order to intercept calls between two people who are abroad--between Pakistan and England, for example--if the target in Pakistan calls someone inside the United States, FISA requires the government to get a warrant, even though the government is ``targeting'' the caller in Pakistan.

The administration wants the flexibility to begin electronic surveillance of a ``target'' abroad without having to get a FISA warrant to account for the possibility that the ``foreign target'' might contact someone in the United States. I agree with the administration's assessment of the problem, but this bill would go far beyond what is necessary to meet these new technological challenges.

This bill's approach would significantly expand the scope of surveillance permitted under FISA by exempting entirely from the warrant requirement any calls to or from the United States, as long as the Government is ``targeting'' someone reasonably believed to be located outside the United States.

The Government could acquire these communications regardless of whether either party is suspected of any wrongdoing and regardless of how many calls to innocent American citizens inside the United States were intercepted in the process.

Although the bill gives the FISA Court a greater role than earlier bills did, it still fails to provide for a meaningful judicial check on the President's power. The FISA Court's role would be limited to reviewing the Government's targeting procedures and its minimization procedures--the procedures it uses to limit the retention and dissemination of information it has required. But it would be required to approve them as long as they met the general requirements of the statute, which is written broadly.

In addition, unlike the Judiciary Committee version of the bill I supported earlier this year, this bill neither limits the Government's use of information collected under procedures the FISA Court later deems inadequate, nor does it expressly give the FISA Court authority to enforce compliance with orders it issues.

I am concerned that because of the way this bill is drafted, it could be interpreted to preclude the FISA Court from ordering the Government to destroy all communications of innocent Americans that it incidentally collects during its surveillance. If I were certain that the FISA Court had the power to order the destruction of the communications of innocent Americans, it might tip the balance in favor of my supporting the bill, even though I oppose blanket retroactive immunity.

As for immunity, although I can understand why in the immediate aftermath of the attacks on September 11 the telephone companies would have cooperated with the Government, I believe it is inappropriate for Congress to grant blanket retroactive immunity without knowing what it is granting immunity for.

Furthermore, cases against the carriers are already making their way through the courts and I have every confidence in the court's ability to interpret and apply the law. Retroactive immunity would undermine the judiciary's role as an independent branch of government.

When the Senate passed FISA, after extensive hearings, thirty years ago by a strong bipartisan vote of 95 to 1, I stated that it ``was a reaffirmation of the principle that it is possible to protect national security and at the same time the Bill of Rights.'' I still believe that is possible, but not if we enact this bill.

Mr. President, I am in support of Senator ROCKEFELLER's proposal to address shortcomings in our intelligence collection authorities. I have studied Senator ROCKEFELLER's bill closely and believe that it is an appropriate, temporary fix that adequately protects both our national security and Americans' privacy and civil liberties. It includes important safeguards against executive abuse--safeguards that are essential for an administration that has demonstrated so frequently that it simply cannot be trusted.

The Rockefeller bill is narrowly tailored to address the two problems the administration has said it faces in conducting electronic surveillance under the Foreign Intelligence Surveillance Act, as that law is currently written.

First, the administration wants clarification that it does not need to obtain a FISA warrant in order to conduct surveillance of calls between two parties when both of those parties are overseas. Because of the way global communications are now transmitted, many communications that take place entirely overseas are nonetheless routed through switching stations inside the United States. In other words, when someone in Islamabad, Pakistan, calls someone in London, England, that call may well be routed through communications switching stations right here in the United States. FISA was never intended to apply to such calls, and I support a legislative fix to clarify that point.

The second problem the administration has identified is more difficult. Although neither FISA nor the Constitution requires the President to get a warrant if the target of surveillance is in Pakistan calling London, or anywhere else outside the United States, if the target in Pakistan calls someone in the United States, FISA requires the Government to get a warrant, even though the Government is ``targeting'' the caller in Pakistan.

Senator ROCKEFELLER's bill would give the Government great flexibility to conduct surveillance of targets abroad, with prior approval of the FISA Court, while protecting the privacy of innocent Americans in the United States.

Under this bill, the FISA Court would be required to issue a warrant upon a minimal showing that the targets of surveillance are overseas and not in the United States. The bill provides protection for innocent Americans in the United States--if the foreign target's communications began to involve a significant number of calls into the United States, the Government would be required to end surveillance pending receipt of a new FISA Court order that the target overseas was a suspected terrorist.

Senator ROCKEFELLER's approach also ensures robust oversight. Congress would get the actual FISA Court orders, and, every 60 days, Congress would receive the list of targets who turned out to be in the United States and the number of persons inside the United States whose communications were intercepted. This is more information than Congress receives today, and it would enable us to verify the administration's claim that they are targeting suspected terrorists without unnecessarily violating the privacy of law-abiding Americans.

Senator ROCKEFELLER's bill sunsets in 6 months, at which point Congress can, if necessary, craft a permanent, sensible, and Constitutional fix to FISA that ensures the American people are protected from terrorism and from encroachments on their civil liberties and individual freedoms. The President has asked that we go further, that we give him more unchecked power and discretion to eavesdrop on Americans' conversations without a warrant and without congressional oversight. His request raises many concerns, and Congress should deny it.

The President's proposal would significantly expand the scope of surveillance permitted under FISA by exempting entirely any calls to or from the United States, as long as the Government is directing its surveillance at someone reasonably believed to be located abroad. The Attorney General and the Director of National Intelligence would make this determination on their own, and they would merely certify, after-the-fact, to the FISA Court that they had reason to believe the target is outside the United States, regardless of how many calls to innocent American citizens inside the United States were intercepted in the process. This would be a breathtaking and unconstitutional expansion of the President's powers and it is wholly unnecessary to address the problems the administration has identified.

Furthermore, the administration would not even limit this unchecked surveillance to persons suspected of involvement in international terrorism--it would cover the collection of any foreign intelligence information, which can include the collection of trade secrets and other information unrelated to the threat posed by al-Qaida.

I have said before that one of the defining challenges of our age is to effectively combat international terrorism while maintaining our national values and our commitment to the rule of law, individual rights, and civil liberties. Unfortunately, the President has attempted to protect America by unnecessarily betraying our fundamental notions of constitutional governance and individual rights and liberties.

I will support giving the administration the tools it needs to track down terrorists, but I will not give the President unchecked authority to eavesdrop on whomever he wants in exchange for the vague and hollow assurance that he will protect the civil liberties of the American people. This administration has squandered the trust of Congress and the American people.

The administration's approach is constitutionally infirm and it is unnecessary to address the specific problems it has identified. The Rockefeller bill is a carefully calibrated approach that protects the American people from both terrorism and violations of their civil liberties.

I urge my colleagues to join me in supporting it.

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