[Senate Report 110-209]
[From the U.S. Government Printing Office]
Calendar No. 453
110th Congress Report
SENATE
1st Session 110-209
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FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AMENDMENTS ACT OF 2007
_______
October 26, 2007.--Ordered to be printed
_______
Mr. Rockefeller, from the Select Committee on Intelligence, submitted
the following
R E P O R T
together with
ADDITIONAL AND MINORITY VIEWS
[To accompany S. 2248]
The Select Committee on Intelligence, having considered an
original bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act and for other purposes, reports
favorably thereon and recommends that the bill do pass.
Background and Need for Legislation
The Committee, since its inception in 1976, has exercised
sustained oversight of the Executive branch's use of electronic
surveillance for foreign intelligence purposes. A central focus
of that oversight has been the implementation of the Foreign
Intelligence Surveillance Act of 1978 (``FISA'') by the
Executive branch and by the special court established by
Congress to provide judicial oversight of FISA, the Foreign
Intelligence Surveillance Court (``FISA Court'').
Since the President's acknowledgement of the existence of a
presidential program on December 17, 2005, which has been
publicly described as the Terrorist Surveillance Program, the
Committee has sought to inquire vigorously into the President's
authorization for the National Security Agency (``NSA'') to
conduct electronic surveillance within the United States
without FISA court orders. In the past year, the ability of the
full Committee to perform the Committee's oversight
responsibilities has been significantly augmented by improved
access to information about the program, as well as information
about the shift of activities under that presidential
authorization to activities in accordance with orders of the
FISA Court.
The Committee has also carefully reviewed the impact of
technological change on FISA collection to assess whether
amendments to FISA should be enacted. On March 23, 2007, the
Chairman and Vice Chairman notified the Attorney General of
their intention to focus on whether FISA should be modernized
and whether legislation should be enacted to address legal
consequences arising from the Terrorist Surveillance Program.
The Chairman and Vice Chairman also gave notice of their
intention to establish a public record on the question of FISA
modernization and requested that the Administration submit a
formal legislative request addressing the intelligence
challenges arising under FISA in a manner consistent with the
Constitution. The Director of National Intelligence (``DNI'')
submitted a proposal on April 12, 2007.
The Committee received the cooperation of many officials
from the intelligence community and the Department of Justice
in its oversight activities. The Committee held seven hearings
in 2007 on the issues, received many classified briefings,
propounded and received answers to many written questions, and
conducted extensive interviews with several attorneys in the
Executive branch who were involved in the review of the
President's program. In addition, the Committee received formal
testimony from companies alleged to have participated in the
program and reviewed correspondence that was provided to
private sector entities concerning the President's program. The
Committee secured Inspector General reports and the orders and
opinions issued by the FISA Court following the shift of
activities to the judicial supervision of the FISA Court. The
Committee invited statements from experts on national security
law and civil liberties and Committee staff met periodically
with them. The Committee has also examined the extensive
testimony given before other committees in the last several
years.
In one particular respect, the Committee's effort to secure
information pertaining to the program was more difficult than
it should have been. The Committee repeatedly requested to see
the text of the presidential authorizations for intelligence
collection outside of FISA and the legal opinions of the
Department of Justice that supported those authorizations.
Although the Committee had been learning about the substance of
these documents from witnesses, seeing the actual text was
important for obtaining a complete understanding of the
program. These documents were only made available to the
Committee for the first time on October 9, 2007. The Committee
believes it has been given access to all of the authorizations
and opinions it requested; however, its study of these
documents will continue following the filing of this report.
Based on its inquiry, the Committee has concluded that: (1)
the Protect America Act, enacted in early August, should be
revised; (2) FISA should be amended to provide an additional
procedure to facilitate the targeting of persons reasonably
believed to be outside the United States to acquire foreign
intelligence information; (3) additional protections should be
afforded to U.S. persons whose communications are targeted for
collection or collected incidentally; and (4) narrowly
circumscribed civil immunity should be afforded to companies
that may have participated in the President's program based on
written requests or directives that asserted the program was
determined to be lawful.
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
Created, in part, in response to the surveillance abuses
documented by the hearings in the mid 1970s of the Church and
Pike Committees, the Committee helped write the Foreign
Intelligence Surveillance Act of 1978. FISA, supported by
President Ford and signed into law by President Carter,
established an independent court to oversee and authorize
electronic surveillance as defined in the statute, special
procedures for the Executive branch to act in emergencies and
wartime, and reporting requirements to the Congress.
FISA offered the Executive branch the certainty of a legal
framework, and the affirmation of the Congress, for its
intelligence collection activities. While the Supreme Court had
expressly declined to address the issues related to
surveillance of foreign powers and agents of a foreign power in
its landmark 1972 decision known as the Keith case, the Court
had held that Section 2511(3) of the Omnibus Crime Control and
Safe Streets Act did not constitute a grant of power to the
President with respect to national security surveillances and
that electronic surveillance in domestic security matters
requires an appropriate prior warrant procedure. See United
States v. United States District Court, 407 U.S. 297 (1972).
Whatever the reasonable exercise of presidential power to
protect national security may have been in the 1970s, the
enactment of FISA clarified the validity of the use of
information collected under the statute as evidence in
subsequent court proceedings. The Act ensured that
telecommunication carriers that responded to a FISA court order
were given statutory protection against civil liability. Most
importantly, the Act represented a balancing by two branches of
the government of the security and civil liberties of the
American people. As President Carter noted in his signing
statement: ``It provides a basis for the trust of the American
people in the fact that the activities of their intelligence
agencies are both effective and lawful.''
The FISA process has assisted the Government in securing
valuable intelligence over almost 30 years. To ensure that it
continues to do so, the statute has been amended many times
with the assistance of the Committee to address changing
threats, technological challenges, and problems in its
implementation. In 1994, for example, FISA was amended to cover
physical searches conducted for foreign intelligence purposes.
After the terrorist attacks of September 11, 2001, in the USA
PATRIOT Act, Congress amended FISA, among other things, to
enhance communication and coordination between law enforcement
and intelligence personnel, authorize roving wiretaps for
foreign intelligence collection, and expand the range of
business records that could be obtained with a FISA order. In
other measures since the September 11th attacks, the
Administration has sought, and the Congress has passed,
amendments to FISA to assist the Government in its efforts to
detect and prevent terrorist attacks.
THE PRESIDENT'S PROGRAM
In December 2005, the American people, and almost all of
the Congress, learned for the first time that, shortly after
September 11, 2001, President Bush had authorized the NSA to
conduct surveillance activities in the United States to protect
the country from future terrorist attacks. The NSA program was
described by the Department of Justice in January 2006 as ``an
early warning system . . . to detect and prevent the next
terrorist attack . . . a program with a military nature that
requires speed and agility.''
After the attacks of September 11, 2001, Congress passed a
joint resolution on September 14, 2001, declaring that the
attacks ``continue to pose an unusual and extraordinary
threat'' to the country and calling on the President ``to use
all necessary and appropriate force against those nations,
organizations, or persons he determines planned, authorized,
committed, or aided the terrorist attacks that occurred on
September 11, 2001, or harbored such organizations or persons,
in order to prevent any further acts of international terrorism
against the United States . . . .''. Authorization for Use of
Military Force, Pub. L. No. 107-40, section 2(a), 115 Stat. 224
(2001). The President also declared a national emergency on
September 14, 2001, stating that there was ``a continuing and
immediate threat of further attacks on the United States.'' The
intelligence community assessed in October 2001 that additional
waves of al Qaeda attacks were imminent. This assessment was
manifested in the mobilization of 35,000 reservists and
National Guard troops for homeland defense; actions by the
Attorney General putting all federal and state law enforcement
officials and the U.S. business community on the ``highest
level of alert''; and the formal announcement of the FBI that
the Government had reason to believe that new terrorist attacks
might be launched in the United States over the next several
days. It was during this period that the President first
authorized the program.
Although the intelligence community assessed the threat to
be imminent in October 2001, its concerns have persisted to the
present day. The United Kingdom aviation plot of August 2006
and the bombing plots in Germany in 2007 are only two of the
most recent examples of the continuing threat.
The NSA's activities were reauthorized by the President on
a periodic basis through January 2007. Over time, the program
was modified to reflect new contingencies. Attorneys from the
Office of Legal Counsel of the Department of Justice generated
legal opinions throughout the duration of the program.
In a letter to the Congress on January 17, 2007, the
Attorney General announced that a judge of the Foreign
Intelligence Surveillance Court ``had issued orders authorizing
the government to target for collection international
communications where there is probable cause to believe one of
the communicants is a member or agent of al Qaeda or an
associated terrorist group. As a result of these orders, any
electronic surveillance that was occurring as part of the
Terrorist Surveillance Program will now be conducted subject to
the approval of the Foreign Intelligence Surveillance Court.''
THE FISA COURT ORDERS AND FISA MODERNIZATION
On April 12, 2007, the Director of National Intelligence
J.M. McConnell submitted to the Congress the Administration's
proposal to modernize the Foreign Intelligence Surveillance
Act. According to the DNI, the proposal was intended to bring
FISA ``up to date with the changes in communications
technology,'' preserve ``the privacy interests of persons in
the United States,'' and secure assistance from private
entities, in part by making certain ``they are protected from
liability for having assisted the government in its
counterterrorism efforts.'' The Committee held a hearing on the
proposal on May 1, 2007, with the DNI, the Director of the
National Security Agency, and the Assistant Attorney General
for National Security, with additional testimony solicited for
the record from a range of experts on national security law and
civil liberties.
The Administration's proposal for FISA modernization was
comprehensive, and had been coordinated within the Department
of Justice and the intelligence community. At the end of May
2007, however, attention was drawn to a ruling of the FISA
Court. When a second judge of the FISA Court considered renewal
of the January 2007 FISA orders, he issued a ruling that the
DNI later described as significantly diverting NSA analysts
from their counterterrorism mission to provide information to
the Court. In late July, the DNI informed Congress that the
decision of the second FISA Court judge had led to degraded
capabilities in the face of a heightened terrorist threat
environment. The DNI urged the Congress to act prior to the
August recess to eliminate the requirement of a court order to
collect foreign intelligence about foreign targets located
overseas.
THE PROTECT AMERICA ACT
During the final week of July, the House and Senate
considered several measures to meet the requirements of the
DNI. On August 3, 2007, the Senate adopted S. 1927, the Protect
America Act of 2007 (the PAA), and the House passed the bill on
August 4, 2007. Signed by the President on August 5, 2007, the
PAA authorized the Director of National Intelligence and the
Attorney General to acquire foreign intelligence information
``concerning'' persons outside the United States for one year,
if the acquisition involved the assistance of a communication
service provider, custodian or other person, and a significant
purpose of the collection was the acquisition of foreign
intelligence information. The Act was set to sunset after 180
days, on February 1, 2008.
The PAA sparked serious concerns about its reach and scope.
The Committee immediately began to review the Act's
implementation. The Committee also began a series of
consultations to draft a bipartisan proposal to replace the PAA
that would authorize the acquisition of foreign intelligence
information in light of the advances in technology since 1978
with improved protections for the privacy interests of
Americans whose communications might be targeted or
incidentally collected. Finally, recognizing the importance of
the private sector in assisting law enforcement and
intelligence officials in critical criminal justice and
national security activities, the Committee reviewed a range of
possible responses to pending civil litigation.
TITLE I OF THE FISA AMENDMENTS ACT OF 2007
In the FISA Amendments Act of 2007, the Committee's goal
has been to develop a sound legal framework for essential
intelligence activities in a manner consistent with the U.S.
Constitution. As in the Protect America Act, the Attorney
General and the Director of National Intelligence may authorize
the targeting of foreign terrorists and other foreign
intelligence targets reasonably believed to be located outside
the United States for the purpose of acquiring foreign
intelligence without obtaining individualized court orders from
the Foreign Intelligence Surveillance Court, but the bill also
significantly increases protections of the civil liberties of
U.S. persons located inside and outside the United States.
The FISA Amendments Act of 2007 contains both specific
limitations and explicit prohibitions with respect to the
collection of U.S. person information. The Protect America Act
authorized the acquisition of foreign intelligence information
``concerning'' persons outside the United States. The vagueness
of the word ``concerning'' created uncertainty as to whether
persons inside the United States could be targeted to obtain
information ``concerning'' persons outside the United States.
Under this bill, acquisition is permitted only if it
``targets'' persons who are reasonably believed to be located
outside the United States.
In addition, the bill prohibits reverse targeting:
conducting surveillance on someone outside the United States
for the purpose of targeting a particular known person in the
United States. The bill maintains the general requirement that
electronic surveillance of a person within the United States
for foreign intelligence purposes must be done in accordance
with an order from the FISA Court. The bill also requires the
Government to obtain an order from the Foreign Intelligence
Surveillance Court prior to targeting U.S. persons overseas
under the authority of the bill.
The FISA Amendments Act of 2007 increases the role of the
FISA Court with respect to targeting under the authority of the
Act. Unlike the Protect America Act, the FISA Amendments Act
mandates FISA Court review and approval of the minimization
procedures governing the protection of the identities and non-
public information about U.S. persons. The FISA Amendments Act
of 2007 also provides statutory rules for the use of
information acquired under the Act, something that was not
included in the Protect America Act. The new Title VII created
by this bill specifically provides that information from Title
VII acquisitions will be governed by the statutory rules that
are applicable to electronic surveillance.
The Committee chose to repeal the operative provisions of
the Protect America Act in this bill. The Committee set the
duration of this Act at six years with the expectation that the
Congress would exercise continuing oversight of operations
carried out under its authority. The Committee established
transition procedures intended to set clear rules for the
treatment of orders, authorizations, and directives initiated
under the authority of the Foreign Intelligence Surveillance
Act both before and after the enactment of the Protect America
Act, and under this Act.
The Committee also reaffirmed the 1978 statement in FISA
that the Act and provisions of Title 18 are the exclusive means
by which electronic surveillance and the interception of
domestic communications may be conducted.
Background on Pending Litigation
CIVIL SUITS AGAINST ELECTRONIC COMMUNICATION SERVICE PROVIDERS
After the media reported the existence of a surveillance
program in December of 2005, lawsuits were filed against a
variety of electronic communication service providers for their
alleged participation in the program reported in the media. As
of the date of this Committee report, more than forty lawsuits
relating to that reported surveillance program had been
transferred to a district court in the Northern District of
California by the Judicial Panel on Multidistrict Litigation.
The lawsuits allege that electronic communication service
providers assisted the federal government in intercepting phone
and internet communications of people within the United States,
for the purpose of both analyzing the content of particular
communications and searching millions of communications for
patterns of interest. Some of the lawsuits against the
providers seek to enjoin the providers from furnishing records
to the intelligence community. Other suits seek damages for
alleged statutory and constitutional violations from the
alleged provision of records to the intelligence community.
Collectively, these suits seek hundreds of billions of dollars
in damages from electronic communication service providers.
The Government intervened in a number of these suits to
assert the state secrets privilege over particular facts,
including whether the companies being sued assisted the
Government. The Government also sought to dismiss the suits on
state secrets grounds, arguing that the very subject matter of
the lawsuits is a state secret. Ultimately, this Government
assertion of the state secrets privilege seeks to preclude
judicial review of whether, and pursuant to what authorities,
any particular provider assisted the Government.
Although the Government has sought to dismiss these suits,
the future outcome of this litigation is uncertain. Even if
these suits are ultimately dismissed on state secrets or other
grounds, litigation is likely to be protracted, with any
additional disclosures resulting in renewed applications to the
court to allow litigation to proceed.
STATE REGULATORY INVESTIGATIONS
In addition to the civil declaratory judgment and damages
suits, a number of state public utilities commissions have
opened investigations of electronic communication service
providers for their alleged provision of assistance to the
intelligence community. These public utilities commissions are
seeking to investigate whether the companies violated state
privacy rights by providing customer records to agencies of the
federal government.
The federal government filed suit seeking to enjoin state
officials in five states from further investigation of
electronic communication service providers for their alleged
disclosure of customer telephone records to the National
Security Agency. These cases were transferred by the Judicial
Panel on Multidistrict Litigation to the Northern District of
California in February 2007. In July 2007, the district court
found that these state investigations were not preempted by
either the Supremacy Clause or the foreign affairs power of the
federal government.
The Government may yet prevail in preventing state
regulatory investigations of whether particular providers
furnished customer records to the intelligence community. But,
like the civil suits filed against providers, the outcome of
this litigation is uncertain and will likely involve further
protracted proceedings.
SUITS AGAINST THE GOVERNMENT
In addition to the lawsuits involving telecommunications
providers, a small number of lawsuits were filed directly
against the Government challenging the President's surveillance
program. These suits allege that the President's program
violated the Constitution and numerous statutory provisions,
including the exclusivity provisions of the Foreign
Intelligence Surveillance Act. These cases are at a variety of
different stages of district court and appellate review.
Nothing in this bill is intended to affect these suits against
the Government or individual Government officials.
TITLE II OF THE FISA AMENDMENTS ACT OF 2007
Title II of this bill reflects the Committee's belief that
there is a strong national interest in addressing the extent to
which the burden of litigation over the legality of
surveillance should fall on private parties. Based on a review
of both current immunity provisions and historical information
on the President's program, the Committee identified three
issues relating to the exposure of electronic communication
service providers to liability that needed to be addressed in
this bill.
First, the Committee considered the exposure to liability
of providers who allegedly participated in the President's
surveillance program. Second, the Committee considered the
absence, in current law, of a procedural mechanism that would
give courts an appropriate role in assessing statutory immunity
provisions that would otherwise be subject to the state secrets
privilege. Third, the Committee sought to clarify the role of
state public utility commissions in regulating electronic
communication service providers' relationships with the
intelligence community. The Committee addressed these three
issues, respectively, in sections 202, 203, and 204 of the
bill.
RETROACTIVE IMMUNITY
Sections 201 and 202 of the bill provide focused
retroactive immunity for electronic communication service
providers that were alleged to have cooperated with the
intelligence community in implementing the President's
surveillance program. Only civil lawsuits against electronic
communication service providers alleged to have assisted the
Government are covered under the provision. The Committee does
not intend for this section to apply to, or in any way affect,
pending or future suits against the Government as to the
legality of the President's program.
Section 202 was narrowly drafted to apply only to a
specific intelligence program. Section 202 therefore provides
immunity for an intelligence activity involving communications
that was designed to detect or prevent a terrorist attack, or
activities in preparation for a terrorist attack, that was
authorized in the period between September 11, 2001 and January
17, 2007, and that was described in written requests to the
electronic communication service provider as authorized by the
President and determined to be lawful.
The extension of immunity in section 202 reflects the
Committee's determination that electronic communication service
providers acted on a good faith belief that the President's
program, and their assistance, was lawful. The Committee's
decision to include liability relief for providers was based in
significant part on its examination of the written
communications from U.S. Government officials to certain
providers. The Committee also considered the testimony of
relevant participants in the program.
The details of the President's program are highly
classified. As with other intelligence matters, the identities
of persons or entities who provide assistance to the U.S.
Government are protected as vital sources and methods of
intelligence. But it reveals no secrets to say--as the Foreign
Intelligence Surveillance Act, this bill, and Title 18 of the
U.S. Code all make clear--that electronic surveillance for law
enforcement and intelligence purposes depends in great part on
the cooperation of the private companies that operate the
Nation's telecommunication system.
It would be inappropriate to disclose the names of the
electronic communication service providers from which
assistance was sought, the activities in which the Government
was engaged or in which providers assisted, or the details
regarding any such assistance. The Committee can say, however,
that beginning soon after September 11, 2001, the Executive
branch provided written requests or directives to U.S.
electronic communication service providers to obtain their
assistance with communications intelligence activities that had
been authorized by the President.
The Committee has reviewed all of the relevant
correspondence. The letters were provided to electronic
communication service providers at regular intervals. All of
the letters stated that the activities had been authorized by
the President. All of the letters also stated that the
activities had been determined to be lawful by the Attorney
General, except for one letter that covered a period of less
than sixty days. That letter, which like all the others stated
that the activities had been authorized by the President,
stated that the activities had been determined to be lawful by
the Counsel to the President.
The historical context of requests or directives for
assistance was also relevant to the Committee's determination
that electronic communication service providers acted in good
faith. The Committee considered both the extraordinary nature
of the time period following the terrorist attacks of September
11, 2001, and the fact that the expressed purpose of the
program was to ``detect and prevent the next terrorist attack''
in making its assessment.
On the basis of the representations in the communications
to providers, the Committee concluded that the providers, in
the unique historical circumstances of the aftermath of
September 11, 2001, had a good faith basis for responding to
the requests for assistance they received. Section 202 makes no
assessment about the legality of the President's program. It
simply recognizes that, in the specific historical
circumstances here, if the private sector relied on written
representations that high-level Government officials had
assessed the program to be legal, they acted in good faith and
should be entitled to protection from civil suit.
The requirements of section 202 reflect the Committee's
determination that cases should only be dismissed when
providers acted in good faith. Section 202 applies only to
assistance provided by electronics communication service
providers pursuant to a ``written request or directive from the
Attorney General or the head of an element of the intelligence
community. . . that the program was authorized by the President
and determined to be lawful.''
Section 202 also preserves an important role for the
courts. Although the bill reflects the Committee's
determination that, if the requirements of section 202 are met,
the provider acted in good faith, the section allows judicial
review of whether the Attorney General has abused the
discretion provided by statute in certifying that a provider
either furnished no assistance or cooperated with the
Government under the terms referenced in the section.
In determining whether to provide retroactive immunity, the
Committee weighed the incentives such immunity would provide.
As described above, electronic communication service providers
play an important role in assisting intelligence officials in
national security activities. Indeed, the intelligence
community cannot obtain the intelligence it needs without
assistance from these companies. Given the scope of the civil
damages suits, and the current spotlight associated with
providing any assistance to the intelligence community, the
Committee was concerned that, without retroactive immunity, the
private sector might be unwilling to cooperate with lawful
Government requests in the future without unnecessary court
involvement and protracted litigation. The possible reduction
in intelligence that might result from this delay is simply
unacceptable for the safety of our Nation.
At the same time, the Committee recognized that providers
play an essential role in ensuring that the Government complies
with statutory requirements before collecting information that
may impact the privacy interests of U.S. citizens. Because the
Government necessarily seeks access to communications through
the private sector, providers have the unparalleled ability to
insist on receiving appropriate statutory documentation before
agreeing to provide any assistance to the Government.
The Committee sought to maintain the balance between these
factors by providing retroactive immunity that is limited in
scope. The provision of retroactive immunity was intended to
encourage electronic communication service providers who acted
in good faith in the particular set of circumstances at issue
to cooperate with the Government when provided with lawful
requests in the future. Restricting that immunity to discrete
past activities avoids disrupting the balance of incentives for
electronic communication service providers to require
compliance with statutory requirements in the future. Under
this bill and existing statutory provisions, providers will
only be entitled to protection from suit for their future
activities if they ensure that their assistance is conducted in
accordance with statutory requirements.
The Committee believes that adherence to precise, existing
statutory forms is greatly preferred. This preference is
reflected in section 203 of the bill, which establishes
procedures by which civil actions against those who assist the
Government shall be dismissed upon a certification by the
Attorney General that any assistance had been provided pursuant
to a court order or a statutorily-prescribed certification or
directive. The action the Committee proposes for claims arising
out of the President's program should be understood by the
Executive branch and providers as a one-time response to an
unparalleled national experience in the midst of which
representations were made that assistance to the Government was
authorized and lawful.
PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES
Section 203 of this bill provides a procedure that can be
used in the future to seek dismissal of a suit when a defendant
either provided assistance pursuant to a lawful statutory
requirement, or did not provide assistance. This section, a new
section 802 of FISA, reflects the Committee's recognition that
the identities of persons or entities who provide assistance to
the intelligence community are properly protected as sources
and methods of intelligence.
Under the existing statutory scheme, wire or electronic
communication providers are authorized to provide information
and assistance to persons with authority to conduct electronic
surveillance if the providers have been provided with (1) a
court order directing the assistance, or (2) a certification in
writing signed by the Attorney General or certain other
officers that ``no warrant or court order is required by law,
that all statutory requirements have been met, and that the
specific assistance is required.'' See 18 U.S.C.
Sec. 2511(2)(a)(ii). Current law therefore envisions that wire
and electronic communication service providers will play a
lawful role in the Government's conduct of electronic
surveillance.
Section 2511(2)(a)(ii) protects these providers from suit
as long as their actions are consistent with statutory
authorizations. Once electronic communication service providers
have a court order or certification, ``no cause of action shall
lie in any court against any provider of wire or electronic
communication service . . . for providing information,
facilities, or assistance in accordance with the terms of a
court order, statutory authorization, or certification under
this chapter.'' Id. The Protect America Act and Title I of this
bill provide similar protections from suit for providing
information or assistance in accordance with statutory
directives. All of these immunity provisions are designed to
ensure that wire and electronic communication service providers
assist the Government with electronic surveillance activities
when necessary, and recognize the good faith of those providers
who assist the Government in accordance with the statutory
scheme.
To the extent that any existing immunity provisions are
applicable, however, providers have not been able to benefit
from the provisions in the civil cases that are currently
pending. Because the Government has claimed the state secrets
privilege over the question of whether any particular provider
furnished assistance to the Government, an electronic
communication service provider who cooperated with the
Government pursuant to a valid court order or certification
cannot prove it is entitled to immunity under section
2511(2)(a)(ii) without disclosing the information deemed
privileged by the Executive branch. Thus, electronic
communication providers are prohibited from seeking immunity
under section 2511(2)(a)(ii) for any assistance they may have
provided to the intelligence community, with the approval of
the FISA Court, after January 17, 2007. Providers who did not
assist the Government are similarly unable to extract
themselves from ongoing litigation, because the assertion of
the state secrets privilege makes it impossible for them to
demonstrate their lack of involvement.
By addressing the situation in which an entity is
prohibited from taking advantage of existing immunity
provisions because of Government restrictions on disclosure of
the information, Section 203 seeks to ensure that existing
immunity provisions have their intended effect. The Committee
also intends to reassure providers that as long as their
assistance to the Government is conducted in accordance with
statutory requirements, they will be protected from civil
liability and the burden of further litigation.
The procedure in section 203 allows a court to review a
certification as to whether an individual either assisted the
Government pursuant to a lawful statutory requirement or did
not assist the Government, even when public disclosure of such
facts would harm the national security. Because an assertion of
state secrets over the same facts would likely prevent all
judicial review over whether, and under what authorities, an
individual assisted the Government, this provision serves to
expand judicial review to an area that may have been previously
non-justiciable. In addition, the statute explicitly allows the
court to review for abuse of discretion the Attorney General's
certification that a person either did not assist the
Government or cooperated with the Government pursuant to
statutory requirements.
PREEMPTION
Section 204 of the bill preempts state investigations or
required disclosure of information about the relationship
between individual electronic communication service providers
and the intelligence community. The provision reflects the
Committee's view that, although states play an important role
in regulating electronic communication service providers, they
should not be involved in regulating the relationship between
electronic communication service providers and the intelligence
community.
Section-by-Section Analysis and Explanation
OVERALL ORGANIZATION OF BILL
The FISA Amendments Act of 2007 contains three titles.
Title I includes, in section 101, a new Title VII of FISA
entitled ``Additional Procedures for Targeting Communications
of Certain Persons Outside the United States.'' This new title
of FISA (which will sunset in six years) is a successor to the
Protect America Act with amendments. Sections 102 through 109
contain a number of amendments to FISA apart from the
collection issues addressed in the new Title VII of FISA. These
include a provision reaffirming that FISA is the exclusive
means for electronic surveillance and important streamlining
provisions.
Title II addresses, in accordance with its title,
``Protections for Electronic Communication Service Providers.''
Section 202 establishes a procedure with precise boundaries for
liability relief for electronic communication service providers
in civil cases involving an intelligence activity authorized by
the President between September 11, 2001, and January 17, 2007.
Title II also includes, in sections 203 and 204, a new
Title VIII of FISA entitled ``Protection of Persons Assisting
the Government.'' This new title establishes long-term
procedures for two matters. One, in section 203, is the manner
in which the Government may implement statutory defenses and
obtain the dismissal of civil cases against persons,
principally electronic communication service providers, who
assist elements of the intelligence community in accordance
with defined legal documents, namely, orders of the FISA Court
or certifications or directives provided for and defined by
statute. The other, in section 204, provides for the
protection, by way of preemption, of the federal government's
ability to conduct intelligence activities without interference
by state investigations.
Title III contains important transition procedures for the
transition from the Protect America Act to the new Title VII of
FISA, as well as authority for the Government to continue to
apply to the FISA Court for orders under Title I of FISA in
accordance with the law as it stood, in the main, before the
Protect America Act. It also contains provisions on the
continuation of authorizations, directives, and orders under
Title VII that are in effect at the time of the December 21,
2013 sunset, until their expiration within the year following
the sunset.
TITLE I. FOREIGN INTELLIGENCE SURVEILLANCE
Section 101. Targeting the communications of persons outside the United
States
Section 101(a) of this bill establishes a new Title VII of
FISA. Entitled ``Additional Procedures for Targeting
Communications of Certain Persons Outside the United States,''
the new title includes, with important modifications, the
authority that had been enacted by the Protect America Act as
sections 105A, 105B, and 105C of FISA. Those Protect America
Act provisions, which will be repealed by section 302(b)(1) of
this bill (or expire on February 1, 2008 in accordance with
that Act's 180-day sunset), had been placed within FISA's Title
I on electronic surveillance. Moving the amended authority to a
title of its own is appropriate because the authority involves
not only the acquisition of communications as they are being
carried, the province of Title I, but also while they are
stored by electronic communication service providers, a form of
acquisition akin to physical searches under Title III.
Section 701. Limitation on definition of electronic
surveillance
Section 701, as added by Title I of this bill, limits the
definition of the term ``electronic surveillance,'' as that
term is defined in Title I of FISA. Two sections added by this
bill--section 704 in Title VII on the use of information
obtained under Title VII and section 112 in Title I on FISA as
the exclusive means for electronic surveillance--negate that
limitation for the matters covered by those sections.
The origin of section 701 is section 105A, as added for six
months to FISA by the Protect America Act. Described in its
heading as a ``clarification'' applicable to the electronic
surveillance of persons outside the United States, section 105A
provides that ``Nothing in the definition of electronic
surveillance under section 101(f) shall be construed to
encompass surveillance directed at a person reasonably believed
to be located outside of the United States.''
Section 701 substitutes the phrase ``limitation on
definition'' for the term ``clarification'' in order to
characterize the provision more accurately.
Section 701 modifies section 105A by explicitly providing
that the limitation on the definition of electronic
surveillance applies to surveillance that is ``targeted in
accordance with this title.'' In other words, the limitation on
the Title I definition of electronic surveillance is no broader
than the authority under Title VII for electronic surveillance
targeted at persons reasonably believed to be outside the
United States.
Section 702. Definitions
Section 702 incorporates into Title VII the definition of
ten terms that are defined in Title I of FISA and used in Title
VII: ``agent of a foreign power,'' ``Attorney General,''
``contents,'' ``electronic surveillance,'' ``foreign
intelligence information,'' ``foreign power,'' ``minimization
procedures,'' ``United States,'' ``United States person,'' and
``person.'' It defines the two courts established in Title I
that are assigned responsibilities under Title VII: The Foreign
Intelligence Surveillance Court and the Foreign Intelligence
Surveillance Court of Review. It also defines ``element of the
intelligence community'' as found in the National Security Act
of 1947. Finally, it also defines a term, not previously
defined in FISA, that has an important role in setting the
parameters of Title VII: ``electronic communication service
provider.''
Section 703. Procedures for acquiring the communications of
certain persons outside the United States
Subsection 703(a) sets forth the basic authorization in
Title VII, replacing section 105B of the Protect America Act.
As had been provided by section 105B, the collection authority
in subsection 703(a) is vested in the Attorney General and the
Director of National Intelligence, acting jointly, whose
authorization shall be for a period of up to one year.
Section 105B and subsection 703(a) differ in an important
respect. Section 105B authorized the acquisition of foreign
intelligence information ``concerning'' persons reasonably
believed to be outside the United States. To make clear that
all collection under Title VII must be targeted at persons who
are reasonably believed to be outside the United States,
subsection 703(a) eliminates the word ``concerning'' and
instead authorizes ``the targeting of persons reasonably
believed to be located outside the United States to collect
foreign intelligence information.''
Subsection 703(b) establishes three related limitations on
the authorization in subsection 703(a). One is a specific
prohibition on using this authority to target intentionally any
person within the United States. The second is that the
authority may not be used to conduct ``reverse targeting,'' the
intentional targeting of a person reasonably believed to be
outside the United States if the purpose of the acquisition is
to target for surveillance a person reasonably believed to be
in the United States. If that is so, the acquisition must be
conducted in accordance with Title I of FISA. The third is an
overarching mandate that the authorization in subsection 703(a)
shall be used in a manner consistent with the Fourth Amendment
to the U.S. Constitution, which provides for ``the right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures.''
Subsection 703(c) addresses United States persons located
outside the United States. Subsection 703(c)(1), under the
heading of ``Acquisition Inside the United States of United
States Persons Outside the United States,'' provides that an
acquisition authorized under subsection 703(a) that occurs
inside the United States may not target a United States person
except in accordance with Title I of FISA.
Subsection 703(c)(2), under the heading of ``Acquisition
Outside the United States of United States Persons Outside the
United States,'' provides that a U.S. person who is reasonably
believed to be outside the United States may not be
intentionally targeted if a warrant would be required if the
surveillance technique were used in the United States, unless
the procedures of the subsection are followed. There are two
principal requirements. First, the Attorney General must submit
to the FISA Court an application with facts showing there is
probable cause that the target is a foreign power or an agent
of one, and the court must determine that there is probable
cause. Second, the Attorney General must submit to the FISA
Court procedures for determining whether a person outside the
United States is a U.S. person, the court must approve those
procedures, and the procedures must be used.
Subsection 703(d) provides that acquisitions authorized
under subsection 703(a) may only be conducted pursuant to a
certification of the Attorney General and DNI and in accordance
with targeting and minimization procedures that are then
subject to judicial review.
Subsection 703(e) provides, in a manner essentially
identical to the Protect America Act, for the establishment by
the Attorney General, in consultation with the Director of
National Intelligence, of targeting procedures that are
reasonably designed to ensure that collection is limited to the
communications of persons reasonably believed to be outside the
United States. As provided in the Protect America Act, the
targeting procedures are subject to judicial review.
Subsection 703(f) provides that the Attorney General, in
consultation with the Director of National Intelligence shall
establish, for acquisitions authorized by subsection 703(a),
minimization procedures that are consistent with section
101(h). Section 101(h) is the provision that establishes FISA's
minimization requirements for electronic surveillance and
physical searches. Subsection 703(f)(2) provides that the
minimization procedures, which are essential to the protection
of United States citizens and permanent residents, shall be
subject to judicial review. This corrects an omission in the
Protect America Act which had not provided for judicial review
of the adherence of minimization procedures to statutory
requirements.
Subsection 703(g) sets forth the elements that must be
included in the certification of the Attorney General and the
DNI, which include that the targeting and minimization
procedures have been approved by the FISA Court or will
promptly be submitted to it and that the procedures are
consistent with the Fourth Amendment, that a significant
purpose of the acquisition is to obtain foreign intelligence
information, and that the acquisition involves obtaining that
information from or with the assistance of an electronic
communication service provider. As with the Protect America
Act, the certification is not required to identify the specific
facilities, places, premises, or property at which the
acquisition under subsection 703(a) will be directed or
conducted. The certification shall be submitted to the FISA
Court as soon as possible but no later than five days after it
is made and be subject to judicial review. The Committee
believes that, given that the certification has already been
prepared, it should be given promptly to the court.
Subsection 703(h) authorizes the Attorney General and the
DNI to direct, in writing with respect to an authorization
under subsection 703(a), an electronic communication service
provider to provide the Government with all information,
facilities, or assistance necessary to accomplish the
acquisition. It requires compensation for this assistance and
provides that no cause of action shall lie in any court against
an electronic communication service provider for its assistance
in accordance with a directive. Subsection 703(h) also
establishes procedures in the FISA Court for a provider to
challenge the legality of a directive or the Government to
enforce it. In either case, the question for the court is
whether the directive meets the requirements of section 703 and
is otherwise lawful.
Subsection 703(i) provides for judicial review of any
certification required by subsection 703(d) and the targeting
and minimization procedures adopted pursuant to subsections
703(e) and (f). The court shall review certifications to
determine whether they contain all the required elements. It
shall review targeting procedures to assess whether they are
reasonably designed to ensure that the acquisition activity is
limited to the targeting of persons reasonably believed to be
located outside the United States. The Protect America Act had
limited the review of targeting procedures to a ``clearly
erroneous'' standard; subsection 703(i) omits that limitation.
With respect to minimization procedures, subsection 703(i)
provides that the court shall review them to assess whether
they meet the statutory requirement.
If the FISA Court finds that the certification contains all
the required elements and that the targeting and minimization
procedures are consistent with the requirements of subsections
703(e) and (f) and with the Fourth Amendment, the court shall
enter an order approving their continued use for the
acquisition authorized by subsection 703(a). If the court does
not so find, it shall order the Government, at its election, to
correct any deficiencies or cease the acquisition. Acquisitions
shall continue during the pendency of any rehearing en banc or
appeal to the Foreign Intelligence Surveillance Court of
Review.
Subsection 703(j) provides that judicial proceedings under
section 703 shall be conducted as expeditiously as possible.
Subsection 703(k) requires that records of proceedings
under section 703 shall be maintained under security measures
adopted by the Chief Justice in consultation with the Attorney
General and the DNI, for the filing of petitions under seal and
for review by the FISA Court ex parte and in camera of any
Government submission or portions of one that may include
classified information, and for retention of directives or
orders for not less than 10 years.
Subsection 703(l) provides for oversight of the
implementation of Title VII. It has four parts. First, the
Attorney General and the DNI shall assess semiannually under
subsection 703(l)(1) compliance with the targeting and
minimization procedures and submit the assessment to the FISA
Court and the congressional intelligence committees. Second,
under subsection 703(l)(2), the Inspectors General of the
Department of Justice and of any intelligence community element
authorized to acquire foreign intelligence under subsection
703(a) are authorized to review compliance of their agency or
element with the targeting and minimization procedures.
Subsection 703(l)(2)(B) and (C) mandate several numbers that
the Inspectors General shall review with respect to United
States persons. Their reports shall be submitted to the
Attorney General, the DNI, and the intelligence committees.
Third, under subsection 703(l)(3), the head of an intelligence
community element that conducts a subsection 703(a) acquisition
shall review annually whether there is reason to believe that
foreign intelligence information has been or will be obtained
from the acquisition. The annual review is to be submitted to
the FISA Court and to the Intelligence Committees. Finally,
under subsection 703(l)(4), the Attorney General is to ``fully
inform'' the congressional Intelligence and Judiciary
Committees about implementation of the Act at least
semiannually.
Section 704. Use of information acquired under Section 703
Section 704 fills a void that has existed under the Protect
America Act which had contained no provision governing the use
of acquired intelligence. Section 704 provides that information
acquired from an acquisition conducted under section 703 shall
be deemed to be information acquired from an electronic
surveillance pursuant to Title I for the purposes of section
106, which is the provision of Title I that governs public
disclosure or use in criminal proceedings. The one exception is
for subsection (j) of section 106, as the notice provision in
that subsection, while manageable in individual Title I
proceedings, would present a difficult national security
question when applied to a Title VII acquisition.
Section 101(b). Table of contents
Section 101(b) of the bill amends the table of contents in
the first section of FISA.
Subsection 101(c). Sunset
Section 101(c) of the bill establishes the sunset of the
new Title VII of FISA on December 31, 2013.
Section 102. Exclusive means
Section 102 amends Title I of FISA by adding a new Section
112. Under the heading of ``Statement of Exclusive Means,'' the
new section states: ``Chapters 119 and 121 of Title 18, United
States Code, and this Act shall be the exclusive means by which
electronic surveillance (as defined in section 101(f),
regardless of the limitation of section 701) and the
interception of domestic wire, oral, or electronic
communication may be conducted.'' It is based on a provision
which Congress enacted in 1978 as part of the original FISA
that is codified in section 2511(2)(f) of Title 18, United
States Code.
Section 112 modifies the Title 18 language in one important
respect. To preserve the full application of the exclusive
means requirement to ``electronic surveillance'' as defined
from FISA's enactment until the ``clarification'' of the
Protect America Act and the related ``limitation'' that will be
added by this bill, Section 112 provides that the exclusive
means requirement applies ``regardless of the limitation of
section 701.''
In agreeing to include this exclusive means provision in
their joint mark, the Chairman and Vice Chairman also agreed
that the Committee, in this report, should adopt the
explanation of the exclusive means requirement that the
Conference Committee included in its 1978 report on FISA, H.R.
Conf. Rep. No. 95-1720, at 35 (1978). The 1978 conferees noted
that the Senate had proposed that FISA be the exclusive means
for conducting electronic surveillance, but that the House had
countered with an amendment that FISA should be the exclusive
``statutory means'' of conducting electronic surveillance
within the meaning of FISA. The 1978 conference substitute
adopted the Senate provision which omitted the word
``statutory,'' as does the present bill.
The 1978 conference report addressed the constitutional
implications of the legislation that it was reporting:
The conferees agree that the establishment by this
act of exclusive means by which the President may
conduct electronic surveillance does not foreclose a
different decision by the Supreme Court. The intent of
the conferees is to apply the standard set forth in
Justice Jackson's concurring opinion in the Steel
Seizure Case: ``When a President takes measures
incompatible with the express or implied will of
Congress, his power is at the lowest ebb, for then he
can rely only upon his own Constitutional power minus
any Constitutional power of Congress over the matter.''
Youngstown Sheet and Tube Co. v. Sawyer, 343 U.S. 579,
637 (1952).
The intent of this Committee is the same. While the exclusive
means test in Section 112 does not foreclose the Supreme Court
from reaching a different decision, the intent of Section 112
is to place any power of the President to disregard it ``at the
lowest ebb.''
Section 103. Significant interpretations of FISA
Section 6002 of the Intelligence Reform Act and Terrorism
Prevention Act of 2004 (Pub. L. 108-458), added a Title VI to
FISA that augments the semiannual reporting obligations of the
Attorney General to the House and Senate Intelligence and
Judiciary Committees. Under it, the Attorney General shall
report a summary of significant legal interpretations of FISA
in matters before the Foreign Intelligence Surveillance Court
or Court of Review. The requirement extends to interpretations
presented in applications or pleadings filed with either court
by the Department of Justice. In addition to the semiannual
summary, the Department of Justice is required to provide
copies of court decisions, but not orders, that include
significant interpretations of FISA. The importance of the
reporting requirement is that, because the two courts conduct
their business in secret, Congress needs the reports to know
how the law it has enacted is being interpreted.
Section 103 improves the Title VI reporting requirements in
two ways. First, as significant legal interpretations may be
included in orders as well as opinions, Section 103 requires
that orders also be provided to the committees. Second, as the
semiannual report often takes many months after the end of the
semiannual period to prepare, Section 103 accelerates provision
of information about significant legal interpretations by
requiring the submission of such decisions, orders, or opinions
within 45 days.
OVERVIEW OF SECTIONS 104 THROUGH SECTION 108. FISA STREAMLINING
Sections 104 through 108 amend various sections of FISA for
such purposes as reducing a paperwork requirement, modifying
time requirements, or providing additional flexibility in terms
of the range of Government officials who authorize FISA
actions. Collectively, these amendments are described as
streamlining amendments. In general, they are intended to
increase the efficiency of the FISA process without depriving
the Foreign Intelligence Surveillance Court of the information
it needs to make findings required under FISA.
Section 104. Applications for court orders under Section 104 of FISA
Section 104 of the bill strikes two of the eleven
paragraphs on standard information in an application for a
surveillance order under section 104 of FISA, either because
the information is provided elsewhere in the application
process or is not needed.
In various places, FISA has required the submission of
``detailed'' information, as in section 104 of FISA, ``a
detailed description of the nature of the information sought
and the type of communications or activities to be subjected to
the surveillance.'' The Director of National Intelligence's
legislative proposal asked that ``summary'' be substituted for
``detailed'' for this and other application requirements, in
order to reduce the length of FISA applications. In general,
the Committee's bill approaches this by eliminating the mandate
for ``detailed'' descriptions, leaving it to the FISA Court and
the Government to work out the level of specificity needed by
the Court to perform its statutory responsibilities. With
respect to one item of information, ``a statement of the means
by which the surveillance will be effected,'' the bill modifies
the requirement by allowing for ``a summary statement.''
In aid of flexibility, Section 104 increases the number of
individuals who may make FISA applications by allowing the
President to designate the Deputy Director of the Federal
Bureau of Investigation (FBI) as one of those individuals. This
should enable the Government to move more expeditiously to
obtain certifications when the Director of the FBI is away from
Washington or otherwise unavailable.
Subsection (b) of section 104 is eliminated as obsolete in
light of current applications. The Director of the Central
Intelligence Agency is added to the list of officials who may
make a written request to the Attorney General to personally
review a FISA application as the head of the CIA had this
authority prior to the establishment of the Office of the
Director of National Intelligence.
Section 105. Issuance of orders under Section 105 of FISA
Section 105 strikes from Section 105 of FISA several
unnecessary or obsolete provisions. Section 105 strikes
subsection (c)(1)(F) of Section 105 of FISA which requires
minimization procedures applicable to each surveillance device
employed because Section 105(c)(2)(A) requires each order
approving electronic surveillance to direct the minimization
procedures to be followed.
Subsection 6 reorganizes, in more readable form, the
emergency surveillance provision of Section 105(f), now
redesignated Section 105(e), with a substantive change of
extending from 3 to 7 days the time by which the Attorney
General must obtain a court order after authorizing an
emergency surveillance. The purpose of the change is to help
make emergency authority a more practical tool while keeping it
within the parameters of FISA.
Subsection 7 adds a new paragraph to Section 105 of FISA to
require the FISA Court, on the Government's request, when
granting an application for electronic surveillance, to
authorize at the same time the installation and use of pen
registers and trap and trace devices. This will save the
paperwork that had been involved in making two applications.
Section 106. Use of information under Section 106 of FISA
Section 106 amends subsection 106(i) of FISA with regard to
the limitations on the use of unintentionally acquired
information. Currently, subsection 106(i) provides that
unintentionally acquired radio communication between persons
located in the United States must be destroyed unless the
Attorney General determines that the contents of the
communications indicates a threat of death or serious bodily
harm to any person. Section 106 amends subsection 106(i) by
making it technology neutral on the principle that the same
rule for the use of information indicating threats of death or
serious harm should apply no matter how the communication is
transmitted.
Section 107. Amendments for physical searches
Section 107 makes changes to Title III of FISA: changing
applications and orders for physical searches to correspond to
changes in Sections 104 and 105 on reduction of some
application paperwork; providing the FBI with administrative
flexibility in enabling its Deputy Director to be a certifying
officer; and extending the time, from 3 days to 7 days, for
obtaining a court order after authorization of an emergency
search.
Subsection 303(a)(4)(C)--which will be redesignated
subsection 303(a)(3)(C)--requires that each application for
physical search authority state the applicant's belief that the
property is ``owned, used, possessed by, or is in transmit to
or from'' a foreign power or agent of one. In order to provide
needed flexibility and to make the provision consistent with
electronic surveillance provisions, subsection 107(a)(1)(D) of
the bill now being reported allows the FBI to apply for
authority to search property that also is ``about to be''
owned, used, or possessed by a foreign power or agent of one,
or in transit to or from one.
Section 108. Amendments for emergency pen registers and trap and trace
devices
Section 108 amends Section 403 of FISA to extend from 2
days to 7 days the time for obtaining a court order after an
emergency installation of a pen register or trap and trace
device. This change harmonizes among FISA's provisions for
electronic surveillance, search, and pen register/trap and
trace authority the time requirements that follow the Attorney
General's decision to take emergency action.
Section 109. Foreign Intelligence Surveillance Court
Section 109 contains three amendments to Section 103 of
FISA, which establishes the FISA Court and the Foreign
Intelligence Surveillance Court of Review.
Subsection 109(a) amends Section 103 to provide that judges
on the FISA Court shall be drawn from ``at least seven'' of the
United States judicial circuits. The current requirement--that
the eleven judges be drawn from seven judicial circuits (with
the number appearing to be a ceiling rather than a floor)--has
proven unnecessarily restrictive or complicated for the
designation of the judges to the FISA Court.
Subsection 109(b) amends Section 103 to allow the FISA
Court to hold a hearing or rehearing of a matter en banc, that
is by all the judges who constitute the FISA Court sitting
together. The court may determine to do this on its own
initiative, at the request of the Government in any proceeding
under FISA, or at the request of a party in the few proceedings
in which a private entity or person may be a party, i.e.,
challenges to document production orders under Title V, or
proceedings on the legality or enforcement of directives to
electronic communication service providers under Title VII.
Under the section 109(b) amendment, en banc review may be
ordered by a majority of the judges who constitute the FISA
Court upon a determination that it is necessary to secure or
maintain uniformity of the court's decisions or that a
particular proceeding involves a question of exceptional
importance. It is the intent of the Committee that en banc
proceedings should be rare and in the interest of the general
objective of fostering expeditious consideration of matters
before the FISA Court.
Subsection 109(c) provides authority for the entry of
stays, or the entry of orders modifying orders entered by the
FISA Court or the Court of Review, pending appeal or review in
the Supreme Court. This authority is supplemental to, and does
not supersede, the specific provision in section 703(i)(6)(B)
that acquisitions under Title VII may continue during the
pendency of any rehearing en banc and appeal to the Court of
Review.
Section 110. Technical and conforming amendments
This section conforms several provisions of Section 103(e)
of FISA in light of the repeal of the Protect America Act and
the enactment on the new Title VII.
TITLE II. PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
This title contains four substantive sections. Sections 201
and 202 address liability relief for electronic communication
service providers who have been alleged in various civil
actions to have assisted the U.S. Government between September
11, 2001, and January 17, 2007, when the Attorney General
announced the termination of the Terrorist Surveillance
Program. Relating as they do to a particular past matter, these
sections are not made a permanent part of FISA. Sections 203
and 204 will enact provisions of a new Title VIII of FISA. They
are intended to be permanent provisions for implementing
statutory defenses for electronic communication service
providers and others who assist the Government in accordance
with precise, existing legal requirements, and for providing
for federal preemption of state investigations.
Section 201. Definitions
Section 201 establishes definitions for Section 202.
Several are of particular importance.
The term ``assistance'' is defined to mean the provision
of, or the provision of access to, information, facilities, or
another form of assistance. The word ``information'' is itself
described in a parenthetical to include communication contents,
communication records, or other information relating to a
customer or communications. ``Contents'' is defined by
reference to its meaning in Title I of FISA. By that reference,
it includes any information concerning the identity of the
parties to a communication or the existence, substance,
purport, or meaning of it.
The term ``covered civil action'' has two key elements. It
is defined as a civil action filed in a federal or state court
which (1) alleges that an electronic communication service
provider furnished assistance to an element of the intelligence
community and (2) seeks monetary or other relief from the
electronic communication service provider related to the
provision of the assistance. Both elements must be present for
the lawsuit to be a covered civil action.
Section 202. Limitations on civil actions for electronic communication
service providers
Section 202 provides that, notwithstanding any other
provision of law, a covered civil action shall not lie or be
maintained in a federal or state court and shall promptly be
dismissed if the Attorney General makes a certification to the
court that sets forth the elements required by Section 202.
First, the Attorney General must certify that the
assistance alleged to have been provided by the electronic
communication service provider was in connection with an
intelligence activity involving communications that was (1)
authorized by the President between September 11, 2001 and
January 17, 2007 and (2) designed to detect or prevent a
terrorist attack or preparations for one against the United
States.
Second, the Attorney General must also certify that the
assistance was described in a written request or directive from
the Attorney General or the head (or deputy to the head) of an
element of the intelligence community to the electronic
communication service provider indicating that the activity was
(1) authorized by the President and (2) determined to be
lawful.
Alternatively, the Attorney General may certify that the
electronic communication service provider did not provide the
alleged assistance.
The Attorney General's certification is subject to judicial
review for abuse of discretion.
If the Attorney General files a declaration that disclosure
of a certification would harm national security, the court
shall review the declaration in camera and ex parte, which
means with only the Government present. A public order
following that review shall not disclose whether the
certification was based on a written request or directive to
the electronic communication service provider for assistance or
on the ground that the electronic communication service
provider furnished no assistance. The purpose of this
requirement is to protect the classified national security
information involved in the identification of providers who
assist the Government.
Section 203. Procedures for implementing statutory defenses
Section 203 adds two sections of a new Title VIII of FISA.
Section 801 provides for definitions. One, the definition
of ``assistance,'' is the same as in Section 201. Another, a
definition of ``person'' (the universe of those protected by
Section 802) is necessarily broader than only the definition of
electronic communication service provider. This is so because
Title VIII applies to all who may be ordered to provide
assistance under FISA, such as custodians of records who may be
directed to produce records by the FISA Court under Title V of
FISA or landlords who may be required to provide access under
Title I or III of FISA, not just to electronic communication
service providers.
Section 802 establishes procedures for implementing
statutory defenses. Notwithstanding any other provision of law,
no civil action may lie or be maintained in a federal or state
court for assistance to an element of the intelligence
community, and shall be promptly dismissed, if the Attorney
General makes a certification to the court. The certification
must state either that the assistance was not provided or if it
was furnished, that it was provided pursuant to a specific
existing statutory requirement. The underlying statutory
requirements are themselves specifically stated in Section 802:
an order of the FISA Court directing assistance, a
certification in writing under sections 2511(2)(a)(ii)(B) or
2709(b) of Title 18, or directives to electronic communication
service providers under particular sections of FISA or the
Protect America Act.
As under Section 202, the Attorney General's certification
is subject to judicial review for abuse of discretion. Also, if
the Attorney General files a declaration that disclosure of a
certification would harm national security, the court shall
review it in camera and ex parte. A public order shall not
disclose whether the certification was based on an order,
certification, or directive, or on the ground that the
electronic communication service provider furnished no
assistance.
Section 204. Preemption of state investigations
Section 204 adds a Section 803 to the new Title VIII. It
addresses investigations that a number of state regulatory
commissions have or might begin to investigate cooperation by
state regulated carriers with U.S. intelligence agencies.
Section 803 preempts these state investigations by prohibiting
them and authorizing the United States to bring suit to enforce
the prohibition.
Section 205. Technical amendments
Section 205 amends the table of contents of the first
section of FISA.
TITLE III. OTHER PROVISIONS
Section 301. Severability
Section 301 provides that if any provision of this Act or
its application is held invalid, the validity of the remainder
of the Act and its application to other persons and
circumstances are unaffected.
Section 302. Effective date; Repeal; Transition procedures
Subsection 302(a) provides that except as provided in the
transition procedures, the amendments made by the Act shall
take effect immediately.
Subsection 302(b) provides for the repeal of the Protect
America Act, except (as provided in subsection 303(c)(1) in the
transition procedures) for the immunity established in that Act
for the provision of assistance pursuant to a directive under
that Act.
Subsection 303(c) establishes five transition procedures in
addition to the continuation of immunity for assistance
provided under the Protect America Act.
Subsection 303(c)(2)(A) continues in effect orders issued
under FISA or under section 6(b) of the Protect America Act in
effect on the date of enactment on this new Act, and for their
reauthorization under the provisions of FISA in effect on the
day before the Protect America Act, except for the exclusive
means, reporting, streamlining, and other amendments added by
sections 102 through 109 of this new Act (which will be deemed
to be part of FISA for such purposes).
Subsection 303(c)(2)(B) provides that any order of the FISA
Court issued under Title VII in effect on December 31, 2013,
the sunset of Title VII, shall continue in effect until the
date of the expiration of such order.
Subsection 303(c)(3)(A) provides that any authorizations or
directives of the Attorney General and the Director of National
Intelligence in effect on the date of the enactment of this Act
issued pursuant to the Protect America Act or any amendment
made by that Act shall remain in effect until the date of the
expiration of the authorization or directive, and, except as
provided by subsection 303(c)(4) of this Act, any acquisition
pursuant to such authorization or directive shall be deemed not
to be electronic surveillance as that term is defined in 101(f)
of FISA, as construed in accordance with section 105A. However,
subsection 303(c)(4) establishes that information acquired from
an authorization conducted under the Protect America Act shall
be deemed to be information acquired from an electronic
surveillance pursuant to Title I of FISA for purposes of
section 106 of that Act, except for purposes of subsection (j)
of such section.
Subsection 303(c)(3)(B) provides similar treatment for any
authorizations or directives issued pursuant to this Act in
effect on December 31, 2013.
Subsection 303(c)( 5) enables the Government to continue to
obtain electronic surveillance orders under Title I as it
existed the day before the Protect America Act (except as
amended by the exclusive means, reporting, streamlining, and
other amendments added by sections 102 through 109 of this
Act). In other words, notwithstanding the amendments made by
the Protect America Act and this new Act to clarify or limit
the definition of electronic surveillance and establish a new
procedure (now to be in Title VII) for targeting persons
reasonably believed to be outside the United States, the
Government may continue to use Title I of FISA as if the
Protect America Act and the enactment of the new Title VII had
never occurred.
Committee Action
VOTE TO REPORT THE COMMITTEE BILL
On October 18, 2007, a quorum for reporting being present,
the Committee voted to report the bill favorably, by a vote of
13 ayes and 2 noes. The votes in person or by proxy were as
follows: Chairman Rockefeller--aye; Senator Feinstein--aye;
Senator Wyden--no; Senator Bayh--aye; Senator Mikulski--aye;
Senator Feingold--no; Senator Nelson--aye; Senator Whitehouse--
aye; Vice Chairman Bond--aye; Senator Warner--aye; Senator
Hagel--aye; Senator Chambliss--aye; Senator Hatch--aye; Senator
Snowe--aye; Senator Burr--aye.
VOTES ON AMENDMENTS TO COMMITTEE BILL AND THIS REPORT
On October 18, 2007, the Committee rejected an amendment
offered by Mr. Nelson to strike Title II, entitled
``Protections for Electronic Communications Service
Providers,'' from the bill, by a vote of 3 ayes and 12 noes.
The votes on the amendment in person or by proxy were as
follows: Chairman Rockefeller--no; Senator Feinstein--no;
Senator Wyden--aye; Senator Bayh--no; Senator Mikulski--no;
Senator Feingold--aye; Senator Nelson--aye; Senator
Whitehouse--no; Vice Chairman Bond--no; Senator Warner--no;
Senator Hagel--no; Senator Chambliss--no; Senator Hatch--no;
Senator Snowe--no; Senator Burr--no.
On October 18, 2007, the Committee agreed to an amendment
offered by Senator Feingold and Senator Wyden to require
additional oversight activities by the Inspectors General of
the Department of Justice and the intelligence community and
the provision of additional information in semi-annual reports
to the Congress, by a vote of 8 ayes to 7 noes. The votes on
the amendment in person or by proxy were as follows: Chairman
Rockefeller--no; Senator Feinstein--aye; Senator Wyden--aye;
Senator Bayh--aye; Senator Mikulski--no; Senator Feingold--aye;
Senator Nelson--aye; Senator Whitehouse--aye; Vice Chairman
Bond--no; Senator Warner--no; Senator Hagel--aye; Senator
Chambliss--no; Senator Hatch--no; Senator Snowe--aye; Senator
Burr--no.
On October 18, 2007, the Committee agreed to an amendment
offered by Senator Wyden, Senator Feingold and Senator
Whitehouse to amend the provisions of the bill governing the
targeting of U.S. persons overseas, by a vote of 9 ayes to 6
noes. The votes on the amendment in person or by proxy were as
follows: Chairman Rockefeller--no; Senator Feinstein--aye;
Senator Wyden--aye; Senator Bayh--aye; Senator Mikulski--aye;
Senator Feingold--aye; Senator Nelson--aye; Senator
Whitehouse--aye; Vice Chairman Bond--no; Senator Warner--no;
Senator Hagel--aye; Senator Chambliss--no; Senator Hatch--no;
Senator Snowe--aye; Senator Burr--no.
On October 18, 2007, by unanimous consent, the Committee
agreed to accept an amendment offered by Senator Feingold
concerning the submittal to Congress of certain FISA court
orders, as modified by the text of a similar provision of the
Intelligence Authorization Act for Fiscal Year 2008 approved by
the Senate.
On October 18, 2007, the Committee rejected an amendment
offered by Senator Feingold on minimization procedures, the
dissemination of foreign intelligence information, and
minimization procedures compliance reviews by a vote of 4 ayes
to 11 noes. The votes on the amendment in person or by proxy
were as follows: Chairman Rockefeller--no; Senator Feinstein--
aye; Senator Wyden--aye; Senator Bayh--no; Senator Mikulski--
no; Senator Feingold--aye; Senator Nelson--no; Senator
Whitehouse--aye; Vice Chairman Bond--no; Senator Warner--no;
Senator Hagel--no; Senator Chambliss--no; Senator Hatch--no;
Senator Snowe--no; Senator Burr--no.
On October 18, 2007, the Committee rejected an amendment
offered by Senator Feingold to change the date applicable to
the sunset of the bill from December 31, 2013 to December 31,
2009, by a vote of 3 ayes to 12 noes. The votes on the
amendment in person or by proxy were as follows: Chairman
Rockefeller--no; Senator Feinstein--no; Senator Wyden--aye;
Senator Bayh--no; Senator Mikulski--no; Senator Feingold--aye;
Senator Nelson--no; Senator Whitehouse--aye; Vice Chairman
Bond--no; Senator Warner--no; Senator Hagel--no; Senator
Chambliss--no; Senator Hatch--no; Senator Snowe--no; Senator
Burr--no.
On October 18, 2007, the Committee rejected an amendment
offered by Senator Feingold to limit the use of U.S.
information obtained through targeting procedures that the FISA
Court determines are not reasonably designed to target persons
reasonably believed to be overseas, by a vote of 5 ayes to 10
noes. The votes on the amendment in person or by proxy were as
follows: Chairman Rockefeller--no; Senator Feinstein--aye;
Senator Wyden--aye; Senator Bayh--no; Senator Mikulski--no;
Senator Feingold--aye; Senator Nelson--no; Senator Whitehouse--
aye; Vice Chairman Bond--no; Senator Warner--no; Senator
Hagel--aye; Senator Chambliss--no; Senator Hatch--no; Senator
Snowe--no; Senator Burr--no.
Estimate of Costs
Pursuant to paragraph 11(a)(3) of rule XXVI of the Standing
Rules of the Senate, the Committee deems it impractical to
include an estimate of the costs incurred in carrying out the
provisions of this report due to the classified nature of the
operations conducted pursuant to this legislation. On October
26, 2007, the Committee transmitted this bill to the
Congressional Budget Office and requested it to conduct an
estimate of the costs incurred in carrying out its provisions,
to the extent not involving classified matters.
Evaluation of Regulatory Impact
In accordance with paragraph 11(b)(2) of rule XXVI of the
Standing Rules of the Senate, the Committee deems it
impractical to evaluate in this report the regulatory impact of
provisions of this bill due to the classified nature of the
operations conducted pursuant to this legislation.
Changes in Existing Laws
In the opinion of the Committee, it is necessary to
dispense with the requirements of paragraph 12 of rule XXVI of
the Standing Rules of the Senate in order to expedite the
business of the Senate.
ADDITIONAL VIEWS OF CHAIRMAN ROCKEFELLER
President Bush issued a secret order after September 11th,
2001, authorizing the Intelligence Community to collect without
a court order phone and email communications going into and out
of the United States where there were reasonable grounds to
believe that one party was a member of a terrorist
organization.
The expressed purpose of the President's order was to
collect intelligence that might help identify terrorists and
disrupt their plots before they could be carried out. The
President's order, however, also prevented both the judicial
and legislative branches of government from carrying out
statutorily required oversight of electronic surveillance
programs.
The President had a chance to work with Congress in the
aftermath of 9/11 to craft a balanced revision to the Foreign
Intelligence Surveillance Act (FISA) that would have eliminated
the archaic hurdles of targeting foreign agents that had
evolved over time while maintaining the essential role the
judiciary performs in ensuring the constitutional privacy
rights of Americans are not violated in the process.
The President squandered the chance at a critical moment in
our Nation's history to unify our efforts in combating the
threat of terrorism and instead chose an imperious, go-it-alone
approach to governance. In doing so, the Bush Administration
sowed the seeds of the program's eventual demise and created a
statutory turmoil that Congress is now attempting to resolve.
The President's decision to circumvent the Foreign
Intelligence Surveillance Court in carrying out the broad
electronic surveillance program and to limit knowledge of the
program's existence to only a handful of congressional
officials was misguided and undermined the legitimacy and
effectiveness of the program.
Ultimately, the Administration was forced to seek and
obtain in January 2007 court approval for the collection of
electronic communications previously carried out without an
order. Efforts by the four congressional oversight committees
to fully understand the surveillance program's scope, legal
basis, and operational effectiveness have been continually
frustrated over many years by an impenetrable cloak of secrecy
and a Bush Administration mantra that falsely equates
congressional oversight as anathema to national security.
Even now, six years after the warrantless surveillance
program was initiated, the Administration continues to withhold
from Congress without justification the documents and
information it needs to have a full accounting of what happened
under the program. The Administration's unwillingness to
provide a complete disclosure of these facts is short-sighted
and untenable.
Only after the program was disclosed publicly nearly two
years ago did the Bush Administration reluctantly agree to
brief the entire membership of the Senate and House
intelligence committees. At first, the briefings provided were
not complete or accurate representations of the program's
historical and contemporaneous scope. Glossed over in these
delayed briefings as well were the legal concerns within the
Administration about the program's operations. As this and
other relevant information was being withheld from the
Committee, high-ranking officials of the Bush Administration
were selectively declassifying and releasing information about
the program and falsely assuring the American people that no
concerns about the program's legality had been voiced within
the Administration.
The Committee will not be dissuaded from completing its
review of the President's program. In addition, the reluctance
on the part of the Bush Administration to trust and cooperate
with Congress unnecessarily alienates those legislators in both
parties who wish to work to make our laws stronger and our
intelligence capabilities directed at terrorists more robust.
Despite the Bush Administration's distrust of Congress and
its inherent resistance to the concept of accountability, the
Committee recognized early this year the need to undertake a
careful and deliberate review of intelligence collection
authorities embodied in the 1978 FISA law.
My goal in undertaking this effort was for the Committee to
produce a bipartisan bill that would strengthen our national
security, protect the civil liberties and privacy rights of all
Americans, and ensure that the unchecked wiretapping policies
of the Bush Administration are a thing of the past. The
Committee has reported legislation that meets this goal.
The bill, passed on a 13-2 vote, adds the necessary and
appropriate court and congressional oversight of surveillance
activities that is absent in the flawed Protect America Act
hastily passed and signed into law in August. Furthermore, the
Committee bill requires that Americans located overseas cannot
be targeted for surveillance without court approval, a notable
privacy protection not currently in the law.
The bill also includes a narrowly-focused liability
provision that protects telecommunications companies from being
sued for alleged participation in the surveillance program from
9/11 until it was placed under FISC authorization in January of
this year. This immunity provision is not the broad and vague
immunity sought by the Administration. The bill does not
provide retrospective immunity for government officials for
their actions or to companies outside the specified time frame.
Nor does the bill extend to criminal proceedings.
The Committee did not endorse the immunity provision
lightly. It was the informed judgment of the Committee after
months in which we carefully reviewed the facts in the matter.
The Committee reached the conclusion that the immunity remedy
was appropriate in this case after holding numerous hearings
and briefings on the subject and conducting a thorough
examination of the letters sent by the U.S. Government to the
telecommunications companies.
The Committee determined that telecommunications companies
are often asked to be partners in law enforcement and national
security efforts, and that their participation was based on
what they believed to be lawful directives and representations
of the President and the Attorney General.
The assistance of companies is invaluable in carrying out
programs that provide for our national security and protect
American lives. It is important that this assistance continue
and not be extinguished under a deluge of lawsuits.
I believe it is the Bush Administration, not the companies,
who must be accountable for the mishandling of the warrantless
surveillance program. The internal debate within the
Administration over the program was kept from those who
participated in the program as well as from the Congress. The
Committee, especially now that it finally has access to the
President's authorization orders and Department of Justice
opinions, will continue its examination of the activities
authorized by the President and report its findings. Whatever
the conclusions of the Committee may be, the burden of any
debate about the conduct of Government officials should not
fall on the telecommunications providers who responded to
representations made to them after September 11th that the
program was legal and that their assistance was required to
protect American lives.
John D. Rockefeller IV.
ADDITIONAL VIEWS OF SENATORS BOND, CHAMBLISS, HATCH, AND WARNER
In 1978, Congress passed and the President signed into law
the Foreign Intelligence Surveillance Act (FISA). The Act was
the result of lengthy debates on the need to strike an
appropriate balance between protecting the civil liberties of
Americans and using all necessary and appropriate tools to
defend the national security of the United States.
FISA served us well for almost thirty years, and, in many
ways, it continues to do so. Due to changes in technology,
however, FISA began to inhibit vital foreign intelligence
collection in ways that Congress never intended. The impact on
our intelligence agencies and our troops on the battlefield was
profound. Congress acted to correct this problem through the
Protect America Act (PAA), which the President signed into law
in August 2007. The PAA was enacted as a temporary solution to
a serious legal problem that was causing significant
intelligence gaps. The PAA is not perfect, but it has done the
job it was intended to do. Because the PAA expires in February
2008, it is imperative that Congress pass more permanent
changes to FISA.
The FISA Amendments Act is a vitally important piece of
legislation that makes long-term improvements and restores much
of the original intent of FISA: maintaining the requirement for
Foreign Intelligence Surveillance Court (FISC) approval for the
electronic surveillance of persons within the United States,
while allowing the acquisition of foreign communications
without such approval. In addition, the FISA Amendments Act
adds new privacy protections for American citizens.
Chairman Rockefeller and I, along with the Director of
National Intelligence (DNI), the Department of Justice, and the
members of the Senate Intelligence Committee, worked closely
together over the past several months to produce this
responsible, bipartisan legislation. All of the parties
involved had to make significant compromises, but the result is
a bill that protects Americans' privacy and civil liberties
without unnecessarily hindering the ability of our intelligence
agencies to intercept the communications of terrorists and
other threats to our national security.
The Senate Intelligence Committee was in a unique position
to weigh and assess the many highly classified aspects of our
foreign intelligence surveillance operations and to discuss and
debate those sensitive issues before we wrote this legislation.
The Committee was also entrusted with special access to
sensitive national security documents related to this
legislation per the Committee's unique jurisdiction over
sensitive matters. The resulting Committee bill will work for
the Intelligence Community, will work for national security,
and will work to protect Americans' privacy interests.
The bill allows the Intelligence Community, through a joint
Attorney General and DNI certification, to target the
communications of foreign targets outside the U.S. without
prior court approval. This provides the speed and agility the
Intelligence Community needs and keeps foreign intelligence
targets outside of the direct purview of the FISA court, which
is what Congress intended when it drafted the FISA bill in
1978. This ensures that foreign collection can continue and
that the FISA Court is not bogged down with reviewing numerous
foreign collections outside of its purview.
The FISA Amendments Act also ensures the protection of
Americans' civil liberties by providing that acquisition may be
conducted only in accordance with targeting and minimization
procedures adopted by the Attorney General and reviewed by the
FISC. Targeting must be consistent with the Fourth Amendment
and reverse-targeting of Americans is specifically prohibited.
There are also several provisions in the bill that enhance
oversight by Congress, the Attorney General, the DNI, and
Inspectors General.
One of the most important provisions in this bill is
retroactive liability protection for those telecommunication
carriers alleged to have assisted the government with the
President's Terrorist Surveillance Program (TSP). We believe,
without any doubt, that the President properly used his
authority under Article II of the Constitution to protect this
country in the wake of the 9/11 terrorist attacks. We believe
that the TSP was legal, necessary, and most likely prevented
another terrorist attack against the homeland.
Those who constantly harp on the misleading assertion that
the TSP was illegal conveniently ignore the federal case law
that recognizes the President's Article II authority to engage
in warrantless surveillance in the context of gathering foreign
intelligence. Instead, they assert that the TSP violated FISA.
The last time we checked, the Constitution always trumps any
statute passed by Congress, including FISA. Even at his lowest
ebb, the President still possesses significant authority vis-a-
vis Congress in the area of intercepting enemy communications.
I have reviewed the Department of Justice legal opinions
and the Presidential authorizations which critics of the TSP
had declared would hold the smoking gun that the program was
illegal. I have found no smoking gun, and those of us who have
seen these documents have found nothing in them that would
support the conclusion that the government's actions were
illegal. While others may disagree, there should be no doubt
that those carriers who are alleged to have participated in the
program acted legally and believed that what they were doing
was patriotic and in the best interest of the country. These
companies deserve to be protected from these costly and
frivolous lawsuits. Those who ask why the companies need such
protection if they did nothing illegal are missing the
fundamental point that the government's invocation of the
states secrets privilege precludes these companies from
asserting valid defenses and providing the court with any
factual evidence confirming or denying their involvement in the
program. As a result, these companies cannot defend themselves
even if they never participated in the program.
Some have suggested that indemnification of these companies
is a better solution. In reality, this is not a suitable fix
for the companies, the American taxpayer, or our Intelligence
Community. First, lawsuits can be extremely costly to a company
in terms of damage to business reputation and stock prices even
if that company is ultimately found not liable or if the
government pays the legal bills. Second, the American taxpayers
have a large enough tax burden and should not be forced to
shoulder an additional burden to finance these frivolous
lawsuits, filed by parties with no standing or actual damages.
We should not use taxpayer funds to line the pockets of trial
lawyers seeking to graymail the government into settling these
lawsuits to avoid the public disclosure of classified
information. Third, the irresponsible and criminal leaks of the
TSP and other intelligence programs have been costly to our
Intelligence Community. Continuing to litigate these cases
against the carriers will risk unnecessary further disclosure
of our intelligence sources and methods.
Our enemies are not stupid. They pay attention to our laws
and legal proceedings, sometimes better than we do. We have no
doubt that they have followed each disclosure or leak of
intelligence information with interest. If a person believes
that the government has violated his rights, then that
individual should pursue legal action against the government.
Anyone who wants to pursue legal claims against the government
is free to do so under this legislation, but, if we allow these
companies to suffer for helping us in the war on terror, could
we really blame a company for not wanting to help the next time
it is called upon to assist in defending our country?
Unfortunately, the bill contains one very problematic
provision, added by amendment, which, if not modified, will
make it difficult to get our bill out of the Senate and may
make it impossible to get the support of the President who must
ultimately sign the bill. This provision prohibits surveillance
of U.S. persons who are overseas without a court order. Those
in favor of this amendment argue that we should not be
conducting surveillance or searches of Americans without a
court order. The Fourth Amendment, however, does not always
require a warrant. Rather, warrantless surveillances and
searches are routinely upheld by courts if they satisfy the
reasonableness requirement of the Fourth Amendment. Thus, in
the criminal law context, courts have recognized that no
warrant is required to conduct a border search, an inventory
search, consensual monitoring, certain vehicle searches, etc.
Similarly, under Executive Order 12333, section 2.5, signed
by President Reagan in 1981, the Attorney General may authorize
surveillances or searches of U.S. persons inside and outside
the United States upon a finding of probable cause to believe
that that person is a foreign power or an agent of a foreign
power. Section 2.5 authority has worked well and without any
known abuses. Congress chose in 1978 to leave this authority
outside of FISA due to the court's lack of jurisdiction
overseas and other complicating intelligence matters.
Nevertheless, we support the intent of the amendment: any time
a U.S. person is the target of surveillance, the government
should get an appropriate judicial ruling. However, since
significant technical and legal problems with the provision's
language have unintended consequences that would cause the
Intelligence Community to lose valuable intelligence on certain
U.S. persons who are spying for a foreign power or supporting
terrorism, we remain hopeful that we will be able to reach a
compromise on this issue when we get to the floor.
As this U.S. person surveillance provision is discussed in
the weeks ahead, I want to make sure that all Americans are
clear about what individuals would be subject to this
provision. The Intelligence Community is not targeting American
businessmen traveling overseas on a trip or students studying
abroad. It is not targeting ordinary tourists or our soldiers.
Instead, they are targeting those few individuals on whom the
Intelligence Community seeks to gather foreign intelligence
information only after the Attorney General has found probable
cause that these U.S. persons are foreign powers or agents of a
foreign power. The men and women of our Intelligence Community
are honorable people who have taken an oath to protect and
defend the Constitution of the United States, and they
understand their legal and operational boundaries. It is
unfortunate that some are using scare tactics to confuse
Americans into thinking that they might be monitored by the
U.S. government when traveling overseas. Unless they are spying
for a foreign country or supporting terrorism, our government
has no foreign intelligence interest in them. Frankly, despite
budget increases since 9/11, our Intelligence Community has
enough work on its hands tracking terrorists and spies intent
on harming us without wasting precious time and resources
surveilling innocent Americans.
Christopher S. Bond.
Saxby Chambliss.
Orrin G. Hatch.
John Warner.
ADDITIONAL VIEWS OF SAXBY CHAMBLISS
When Congress first considered enacting the Foreign
Intelligence Surveillance Act (FISA) it was after some of the
most serious intrusions into Americans' lives by the U.S.
Intelligence Community were exposed by the Congress. Since
1978, Congress has provided rigorous oversight of our
Intelligence Community and enacted valuable legislation, such
as FISA, in order to guide our collectors. Congress, and the
Intelligence Community, have taken measures to ensure that U.S.
citizens are protected from unnecessary government intrusions
into their private lives while at the same time balancing the
government's need to collect vital intelligence necessary to
ward off terrorist attacks or the spies of our enemies. The
post 9/11 environment in which Congress must now consider
amending FISA is much different from the Cold War era. The
threat to the homeland is real and our enemies communicate
through more sophisticated means and in a more security
conscious manner than in 1978. These evolving threats must be
considered by Congress during the debate on FISA modernization.
The FISA Amendments Act of 2007 provides much needed updates to
FISA, but I am concerned that Congress may not reach this
delicate balance without further amending the bill.
The Chairman and Vice Chairman introduced a carefully
crafted, bi-partisan piece of legislation. Although it was not
a perfect bill, I was willing to forego offering amendments to
support the bi-partisan process and provide our Intelligence
Community with the minimum requirements it needs in an
environment with rapidly changing technology. I believe that
the bill which was ultimately adopted by the Committee, and
with my support, contains troubling language which should be
altered before enactment. I had filed three amendments prior to
the Committee's consideration of the FISA Amendments Act of
2007. Although I did not offer any of them, I believe these
issues should be addressed by Congress.
My first amendment would change the definition of
``electronic surveillance'' to make it target-oriented and
technology neutral. Rather than carving out an exception to
``electronic surveillance'' for communications where the target
is reasonably believed to be overseas, I believe it would be
prudent for the Committee to craft a new definition which
focuses on the core question of who is the subject of the
surveillance rather than on how or where the communication is
intercepted.
When FISA was enacted in 1978, Congress used language that
was technology-dependent and related specifically to the
telecommunications systems that existed at that time (such as
``wire and radio communications''). As a result of revolutions
in communications technology since 1978, and not any considered
judgment of Congress, the current definition of ``electronic
surveillance'' sweeps in surveillance activities that Congress
intended to exclude from FISA's scope. For example, in 1978,
most foreign communications went through the air rather than
over a wire and most domestic communications were on a wire.
Today, most domestic communications, such as cell phone
communications, travel through the air and most international
communications travel over a wire. The FISA Amendments Act of
2007 seeks to fix this major problem identified by the Director
of National Intelligence as a result from this outdated
definition, but does so by excluding, or carving out, foreign
to foreign communications from the definition of ``electronic
surveillance'' rather than fixing the underlying problem.
Although the problem of foreign targeting may be fixed, it is
difficult to foresee what additional problems the current
technology-based definition may cause in the future. I believe
that amending the definition of ``electronic surveillance'' is
the best and most comprehensive solution.
My second amendment would have been a minor technical
change deleting the definition of ``wire communication.'' If
the definition of ``electronic surveillance'' is changed, there
would no longer be a need to have a definition for ``wire
communication'' since the statute would be technology neutral.
My final amendment sought to strike a provision in the FISA
Amendments Act which would require the Foreign Intelligence
Surveillance Court (FISC) to review the Attorney General's
probable cause determination when the target of surveillance is
a known U.S. person overseas and there is probable cause to
determine that the individual is a foreign power, agent of a
foreign power, or an officer or employee of a foreign power.
Instead, Senator Wyden introduced, and the Committee adopted,
an amendment requiring that any time a U.S. person is the
target of surveillance, regardless of where the collection
occurs, the Attorney General must seek FISC approval for that
collection.
I am concerned that Senator Wyden's amendment is an attempt
by Congress to micromanage the Intelligence Community.
Currently, under Executive Order 12333, Section 2.5, the
Attorney General may authorize the targeting of a U.S. person
overseas upon finding probable cause to believe that the
individual is a foreign power or agent of a foreign power.
Senator Wyden's amendment seeks to prevent the Intelligence
Community from acting quickly and with discretion in a process
which has worked well to protect U.S. persons for almost thirty
years. The Intelligence Community will now be required to
obtain authorization from the FISC prior to conducting
surveillance against terrorists or spies overseas who assist
foreign governments merely because they are United States
persons. It is my belief that the Intelligence Community has
demonstrated to Congress how judicious, selective and careful
they have been when it comes to protecting the very small
number of U.S. citizens this applies to and does not
necessarily need the FISC to approve their actions every step
along the way.
The Congress considered legislative proposals throughout
two Congresses prior to enacting FISA in 1978 and explicitly
did not address the issue of U.S. persons overseas because they
felt it demanded further consideration. I am concerned that
Congress is acting hastily on this subject and moving away from
the original intent of FISA. Allowing FISC judges to review the
President's constitutional powers to conduct foreign policy and
defend the nation is a gross expansion of judicial power from
the 1978 FISA law, which was intended to apply solely to
domestic surveillance of U.S. persons. Instead of granting
oversight of the Executive Branch to judges, Congress should
exercise due diligence and reconsider these points after
careful examination of the current authorities governing
surveillance of U.S. persons overseas. Judges are not elected
officials held accountable to the American people like the
President and the Congress and it should not be within their
jurisdiction to provide after the fact approval or disapproval
to the procedures the Executive believes are necessary for our
national security.
Finally, I am pleased to see the Committee take responsible
action by providing our telecommunications carriers with
liability relief. The FISA Amendments Act of 2007 provides that
no civil actions may be brought against electronic
communication providers if the Attorney General certifies: (1)
the assistance alleged was in connection with a communication
intelligence activity that was authorized by the President
between September 11, 2001 and January 17, 2007, designed to
detect or prevent a terrorist attack against the U.S. and
described in writing to the provider that it was authorized by
the President and lawful; or (2) the communication provider did
not provide any of the alleged assistance. It also removes any
claims from state courts to the Federal court and preempts any
state from conducting an investigation into an electronic
communication provider's alleged assistance to the government.
The government often needs assistance from the private sector
in order to protect our national security and in return they
should be able to rely on the government's assurances.
America's telecommunication carriers should not have to front
heavy legal battles shrouded in secrecy on the government's
behalf.
Overall, I support the efforts of the Chairman and Vice
Chairman to draft bi-partisan legislation. Whatever form the
legislation takes before being presented to the President for
his signature, Congress should seek the Director of National
Intelligence's comments and advice in order to avoid any
unintended consequences from well-intentioned amendments. It is
critical that Congress enact FISA legislation, with the input
of our core collectors, to ensure that our Intelligence
Community has the tools and the legal framework necessary to
protect our country from terrorist attacks and to collect vital
foreign intelligence information.
Saxby Chambliss.
ADDITIONAL VIEWS OF SENATORS FEINSTEIN, SNOWE, AND HAGEL
Chairman Rockefeller and Vice Chairman Bond are to be
commended for producing a bipartisan bill that the Director of
National Intelligence and Department of Justice support. They
and their staff have worked together to produce this bill. It
is a signal accomplishment, and we commend them.
We believe this legislation is a strong bipartisan bill
that will next be reviewed by the Senate Judiciary Committee.
We hope that the bill can be further improved, particularly
with respect to the issue of FISA's exclusivity, as discussed
below.
IMPROVEMENTS IN THIS LEGISLATION
The Committee's bill makes necessary improvements to
current law, the Protect America Act that was enacted in
August.
Notably, for the first time ever, this legislation would
require court review any time the Intelligence Community
targets a U.S. citizen for surveillance, regardless of
location. Under present law and regulation, the Attorney
General can approve surveillance of Americans outside of the
country with no judicial review.
This legislation puts the central question before the FISA
Court: whether there is probable cause to believe that a U.S.
person is an agent of a foreign power. This is a determination
that FISA Court judges have made in thousands of instances
since 1978, and one to which it is well suited.
In addition, this bill:
Greatly increases the role of the FISA Court
in conducting up-front review and approvals of the
targeting and minimization of communications;
Corrects the concern arising from the
Protect America Act that surveillance information could
be used in an overly broad manner. Instead, this bill
uses FISA's existing limitations on use:
Disseminated information must be
minimized;
Information can only be shared only
for appropriate intelligence and law
enforcement purposes; and
Inadvertently collected intelligence
must be destroyed;
``Streamlines'' the FISA application and
order process in order to reduce the pending
application backlog and the significant amount of time
it takes to write and review an application.
Specifically, the bill:
Allows the government to present a
summary, rather than a full description, of how
the surveillance will be effected and what
intelligence is sought; and
Extends the existing FISA
``emergency period'' from three to seven days
during which surveillance may be conducted
under the Attorney General's direction prior to
a Court order being obtained;
Provides for strong internal and external
oversight by:
Requiring the Intelligence Community
to conduct an annual review of whether new
surveillance authorities are being properly
applied;
Requiring the Attorney General to
provide detailed semi-annual reports to the
Senate and House Intelligence and Judiciary
committees concerning collections authorized in
the bill--including instances of non-
compliance; and
Authorizing the Inspectors General
of the Department of Justice and elements of
the Intelligence Community to conduct
independent reviews of agency compliance with
the court-approved acquisition and minimization
procedures.
Clearly prohibits warrantless surveillance
against persons inside the United States.
Legislation amending the Foreign Intelligence Surveillance
Act of 1978, and the Protect America Act that was passed in
August of this year, will only succeed if it is bipartisan. In
this area, it is our belief that any partisan bill will not
pass.
That outcome is likely to result in one of two unacceptable
options:
A rushed process to extend the Protect
America Act, which contains fewer statutory protections
of privacy rights than the Committee's bill, or
A lapse in legislation, which will prevent
the Intelligence Community from conducting much-needed
surveillance on non-United States citizens outside of
the country.
Clearly, passing meaningful reforms should be a top
priority of the U.S. Congress.
EXCLUSIVITY OF FISA
The legislation includes language on the exclusivity of
FISA that requires further examination. Section 102 of the
Intelligence Committee bill states that the Foreign
Intelligence Surveillance Act and relevant portions of Title 18
of the U.S. Code are the ``exclusive means'' by which
``electronic surveillance'' may be conducted.
The definition of the term ``electronic surveillance,''
however, was written in 1978 and has been the subject of
exemptions and limitations since then.
It is essential that the Committee determine whether there
are any intelligence techniques that fall within this
legislation's scope for which the Executive Branch may not
follow the bill's procedures. This is a necessarily classified
topic, but we intend to conduct careful review of these
techniques before this legislation is enacted.
It is our view that the Foreign Intelligence Surveillance
Act, as amended, should be the only legal way of acquiring the
communications of people inside the United States, and U.S.
persons outside the United States in certain circumstances, for
foreign intelligence purposes.
There is a history to this provision that makes a strong
congressional re-affirmation even more important.
The legislative history from when FISA was originally
enacted in 1978 is quite clear. It states:
[d]espite any inherent power of the President to
authorize warrantless electronic surveillance in the
absence of legislation, by this bill and chapter 119 of
title 18, Congress will have legislated with regard to
electronic surveillance in the United States, that
legislation with its procedures and safeguards prohibit
the President, notwithstanding any inherent powers,
from violating the terms of that legislation. (emphasis
added)
The legislative history continued by describing the Supreme
Court's decision in the Keith case, in which the Court ruled
that at that time, Congress hadn't ruled in this field and
``simply left the presidential powers where it found them.''
But at this point, the legislative history turns. It said:
The Foreign Intelligence Surveillance Act, however,
does not simply leave Presidential powers where it
finds them. To the contrary, this bill would substitute
a clear legislative authorization pursuant to
statutory, not constitutional, standards. (emphasis
added)
This was the statement accompanying H.R. 7138 as it passed
the 95th Congress. It is clear that Congress enacted the 1978
legislation with the specific intent that it would be the only
authority under which foreign intelligence could be obtained
from electronic surveillance.
It is also clear that President Carter was aware of this
intent when he signed the bill into law. President Carter's
signing statement noted that:
The bill requires, for the first time, a prior
judicial warrant for all electronic surveillance for
foreign intelligence or counterintelligence purposes in
the United States in which communications of U.S.
persons might be intercepted. It clarifies the
Executive's authority to gather foreign intelligence by
electronic surveillance in the United States. It will
remove any doubt about the legality of those
surveillances which are conducted to protect our
country against espionage and international terrorism .
. . . (emphasis in original)
This intent, and FISA practice for more than 20 years, was
cast in doubt after September 11, 2001. At that time, the
Executive Branch concluded that it was not bound by FISA's
procedures, and proceeded with the Terrorist Surveillance
Program (TSP) without requesting amendments to FISA.
As explained in the Department of Justice's 2006 White
Paper on the legality of the TSP, the Administration cited the
Authorization for the Use of Military Force (AUMF) against al
Qaeda and its supporters as an alternative authority. The
Department pointed to language in FISA that it was exclusive
except as authorized by other statute.
Congress intended for the ``other statute'' to be the laws
governing criminal wiretaps, not a broad and undefined
exception.
We do not believe that the AUMF provided this
authorization. We have seen no evidence that Congress intended
the AUMF to authorize a widespread effort to collect the
content of Americans' phone and email communications, nor does
the AUMF refer to the subject.
Furthermore, FISA already contained a provision that
clearly governed surveillance actions in a wartime situation--a
15-day authorization for warrantless surveillance following a
declaration of war. So this was not an uncontemplated question
following September 11 and the passage of the AUMF.
More troubling, however, is the Administration's claim that
the Constitution would not allow FISA to limit the President's
ability to conduct surveillance and other activities covered by
that legislation in any way he sees fit. The Department of
Justice argues that Congress has not, and cannot, so limit the
Executive's power.
For these reasons, we continue to believe that Congress
must write strong language to ensure that FISA is the exclusive
means that the Intelligence Community may intercept, analyze,
and disseminate the phone and electronic communications of any
American for intelligence purposes.
We will work to strengthen the exclusivity language as the
bill progresses.
Achieving the balance between necessary intelligence
collection and the protection of Americans' privacy rights is
perhaps nowhere as difficult as in the areas surrounding FISA.
It is not a field in which partisan politics should play a
part. Nor is it one where the Congress and the President should
be in conflict.
We thank again Chairman Rockefeller and Vice Chairman Bond
for their work on this legislation. It is a big step forward.
Dianne Feinstein.
Olympia J. Snowe.
Chuck Hagel.
ADDITIONAL VIEWS OF SENATOR NELSON
I strongly support the efforts of Chairman Rockefeller and
Vice-Chairman Bond to craft a compromise that a bipartisan
majority of the SSCI supported. This bill strikes the right
balance, protecting Americans' privacy while giving the
government the tools that it needs to stop terrorists.
During the committee's mark-up of the bill, I offered an
amendment that would have struck Title II from the bill. Title
II provides immunity to any telecommunications company that may
have provided assistance to the government under the
President's warrantless surveillance program between September
11, 2001 and January 17, 2007.
I am sympathetic to the notion that companies may have
acted in good faith to provide the government with assistance
during a national security crisis, but I believe it's premature
to grant them immunity. The committee received critical
documents only 48 hours before the vote. I believe we need more
time to gain a full understanding of the President's
warrantless surveillance program before deciding whether the
companies should receive retroactive immunity.
I voted to support the bill because legislation that
provides protections for Americans while enabling the
government to get the information it needs to stop terrorists
is necessary and immediate.
Bill Nelson.
ADDITIONAL VIEWS OF SENATOR WHITEHOUSE
With this legislation, the Senate takes an important step
forward to repair damage the Bush Administration has done to
the privacy and security of innocent American citizens. The
President's warrantless wiretapping program provoked dismay and
outrage not only in my home state of Rhode Island, but
throughout the nation. This outrage has continued largely
unabated as the President has delayed and circumscribed efforts
by the American people's representatives to determine what took
place under the secret program. This legislation moves the
Government toward a solution that gives the law enforcement and
intelligence communities the resources they need to keep us
secure, but also upholds the critical balance of law and
principle upon which that security depends.
I know such a solution exists. I saw it in action during my
years as a federal and state prosecutor. But rather than seek
that common-sense solution, this President chose to trample on
the rights of the very people he was sworn to protect, and left
millions of Americans wondering whether they can trust their
government.
In August, I voted against the Protect America Act, a
flawed law rushed through Congress under intense political
pressure from the Administration, because the law amended the
Foreign Intelligence Surveillance Act (FISA) in a way that did
not adequately protect the rights of American citizens who are
caught up in warrantless government surveillance. I voted for
the new bill in the Senate Select Committee on Intelligence
because it takes a significant step away from the flawed August
law and toward the protection of civil liberties. It is a
significant first step in the four-step process that I hope
will lead us to a bill that both protects Americans' privacy
rights and strengthens our ability to conduct essential foreign
intelligence surveillance.
Everyone agrees that United States intelligence agencies
should be able to wiretap foreign targets overseas without
judicial authorization. The problem we are obliged to address,
but failed to address adequately in the August law, emerges
when surveillance overseas implicates: (1) U.S. citizens who
happen to be abroad; or (2) U.S. citizens in America whose
communications are intercepted incidentally, for instance when
they communicate with a surveilled target.
There are simple touchstones for protecting Americans'
rights in this context: the principles that guide domestic law
enforcement surveillance. When I served as a United States
Attorney and as Rhode Island Attorney General, I sought,
obtained, and oversaw wiretaps in gang, narcotics, and public
corruption investigations. Two fundamental principles
prevailed. First, the government cannot target Americans for
surveillance without the approval of a judge. Second,
surveilling agents are required by the court to ``minimize''
the surveillance if it is not relevant to the investigation.
This helps protect innocent citizens who are not the target,
but who talk to the target.
I have worked closely with the Chairman and other members
of the Committee to strengthen protections for U.S. citizens in
the new bill, including by proposing and supporting a number of
amendments. The new bill ensures the involvement and oversight
of the Foreign Intelligence Surveillance Court when U.S.
citizens abroad are targeted. I cosponsored and strongly
supported an amendment, proposed by Senator Wyden, and approved
by the Committee, that requires the Government to obtain a
traditional warrant from the Foreign Intelligence Surveillance
Court (FISC) if the Government wants to collect, from a source
within the United States, against an American overseas. The
amendment also requires that, in order to collect surveillance
overseas on a U.S. citizen traveling or living overseas, the
Government obtain a determination from the FISC that the
targeted U.S. citizen is a foreign power or the agent of a
foreign power. Furthermore, the FISC must issue an ex parte
order approving this surveillance. These changes are critical
to ensuring that the new warrantless surveillance authority
enacted under the Protect America Act does not allow the
Government to intrude inappropriately upon the privacy of U.S.
citizens. Nonetheless, the Administration has already signaled
that this amendment may create certain challenges that need to
be resolved. If the Administration intends to propose an
alternative, it must preserve the Court's role in determining
whether there is probable cause to believe the U.S. citizen is
a foreign power or an agent of a foreign power. U.S. citizens
do not, and should not be expected to, leave their privacy
rights behind every time they leave the United States.
In protecting the privacy of Americans while conducting
surveillance, the critical element is judicial oversight. In
the August law, the FISC was authorized only to review the
Government's determination that its surveillance targets
persons ``reasonably believed to be outside the United
States''--and to intervene only if the Government's
determination is ``clearly erroneous.'' In contrast, under this
bill, the FISC will need to approve both the ``targeting''
determination and the ``minimization'' procedures that are
designed to protect U.S. citizens in America whose
communications are intercepted incidentally. This bill also
rejects the unduly permissive standard of review that the
August law had imposed.
While these changes are positive and significant, there
remains important work to be done to improve the bill. The FISC
should not be required to approve the minimization procedures
for warrantless surveillance of Americans and then forced to
ignore their implementation. I have drafted and introduced an
amendment that would clarify that the FISC has the same powers
to review the Government's compliance with minimization
procedures for warrantless surveillance as it does with the
minimization procedures used pursuant to traditional FISA
warrants. This change is not yet a part of the bill, but I will
continue to press for the Court's clear authority to check on
the implementation of these minimization procedures. U.S.
citizens whose communications are incidentally intercepted
should enjoy a two-stage protection: the minimization
procedures themselves, and the salutary prospect of judicial
review of compliance. Engaging more than one branch of
government is a traditional protection in our American system
of government. Here, those checks and balances can be exercised
in a way that is neither burdensome nor disruptive to
intelligence-gathering operations. As the bill continues to
move through the legislative process, I will seek to strengthen
the protections for U.S. citizens.
Finally, Congress is seeking to revise FISA in light of a
program that was conducted outside its framework. As it acts,
Congress must leave no shadow of a doubt that the Foreign
Intelligence Surveillance Act, as amended, is the exclusive
means for authorizing foreign intelligence surveillance. I will
stand as a strong supporter of Senator Feinstein's efforts to
prevent this Administration or future ones from acting outside
this law.
Sheldon Whitehouse.
MINORITY VIEWS OF SENATORS FEINGOLD AND WYDEN
As strong opponents of the Protect America Act, we have
been very concerned about the vast new authorities granted
under that legislation, as well as the possibility that its
vague language will be interpreted by the executive branch to
permit even broader surveillance than has already been
acknowledged publicly. We support the underlying purpose of
FISA reform: to permit the government to conduct surveillance
of foreign targets, particularly terrorist suspects, as they
communicate with other persons overseas, without having to
obtain a FISA court order. We believe that this purpose can be
achieved while protecting the rights and privacy of law-abiding
Americans conducting international communications. We believe
that the bill that passed the Senate Intelligence Committee
unfortunately falls short of that goal in some respects, and we
are also concerned that it also provides sweeping retroactive
immunity to those alleged to have cooperated with the
President's warrantless wiretapping program. We were therefore
disappointed with the bill and voted against it. We look
forward to the opportunity to debate further modifications to
this bill as it passes through the Judiciary Committee and onto
the Senate floor.
We were pleased, however, that three amendments we offered
passed. One amendment, which we offered along with Senator
Whitehouse, ensures that whenever the government wants to
target an American overseas, the FISA Court--and not just the
Attorney General--must determine that there is probable cause
that the American is an agent of a foreign power. Americans'
rights should not diminish when they cross the border, nor
should the extent of those rights be subject to the whim of the
executive branch without the checks and balances provided by
the court.
Another amendment adopted by the Committee ensures that the
Department of Justice Inspector General and other Inspectors
General have the information they need to review fully how the
new authorities are implemented. It also requires that the
Administration provide Congress with additional information--
including access to reports and documentation--so that Congress
can assess how the legislation is being used. For purposes of
oversight and possible reauthorization at the end of a sunset
period, this information is critical. In addition, an amendment
offered by Senator Feingold and accepted by the Committee
ensures that any FISA Court legal opinions related to the new
authorities will be provided, in a timely manner, to Congress.
Despite these improvements, the bill fails to protect the
privacy rights of Americans in critical areas addressed in
other amendments we either offered or filed. One such
amendment, filed by Senator Feingold, would have permitted
ongoing surveillance of persons overseas, but directed that if
the government knows that certain communications involved
persons in the United States, those communications with the
U.S. would have to be sequestered and would be accessible to
government agents only with the approval of the FISA Court or
in emergencies. This amendment would grant the flexibility the
administration has said it needs while providing protection to
law-abiding Americans making international calls. It also
recognizes that, given the broad new authorities provided by
the PAA and this new legislation, non-statutory, classified
minimization procedures do not provide the independent review
needed to protect the privacy of Americans. We were
disappointed that the Committee rejected an amendment offered
by Senator Feingold that would have provided for stronger, more
effective minimization procedures. The amendment would have
limited the types of U.S. person information that could be
disseminated to information necessary to protect against
terrorism and other threats to national security, ensured that
the FISA Court has sufficient information to assess compliance
with minimization procedures, and given the FISA Court the
authority to review and enforce that compliance. This amendment
was a limited alternative to a FISA Court order requirement,
and its defeat leaves in place what we believe are inadequate
mechanisms for protecting the privacy of Americans'
communications.
We are also concerned about the lack of incentives for the
government to target only those persons who are overseas in the
first place. The bill improves upon the PAA by removing a
``clearly erroneous'' standard for FISA court review of the
procedures the government uses to ensure that surveillance
targets are reasonably likely to be overseas. But there are no
consequences to the government if the court determines that the
government's procedures are not reasonably designed to target
persons reasonably believed to be overseas. The government
cannot use those procedures going forward, but it can retain
and share everything it learned through the use of the unlawful
procedures up until the point when the Court rejected them. We
therefore supported an amendment offered by Senator Feingold
that would have limited the use of U.S. person information
obtained through targeting procedures later rejected by the
court. The defeat of that amendment means that, even when the
court finds that the government's procedures are targeting
Americans in the United States without a warrant, the
government can continue to use the information obtained through
that surveillance however it sees fit. This loophole offers an
invitation to warrantless wiretapping.
Senator Wyden filed an amendment that would have limited
the scope of the authorities to foreign intelligence
information related to national security threats. The
Administration's stated purpose for the PAA, and the purported
emergency that drove the precipitous passage of that
legislation, was the terrorist threat to the United States. We
strongly support providing the government the authorities it
needs to detect terrorists and other national security threats
and believe that this can be done while protecting the rights
and privacy interests of Americans. We do not believe, however,
that broad new authorities related to any communications
involving any foreign intelligence (a term that is very broadly
defined) are justified, particularly in the absence of the
kinds of oversight and checks and balances needed to defend the
rights of Americans and protect against abuses.
Another amendment we filed would have required that a court
order be obtained when a ``significant purpose'' of the
wiretapping is to obtain information on an American talking to
a foreign target. The Director of National Intelligence has
stated publicly that ``reverse targeting'' is a violation of
the 4th Amendment to the United States Constitution and subject
to criminal prosecution. This amendment would have provided
some protection for this constitutional principle and would
have prevented the government from using its foreign targeting
authorities to obtain information on Americans. We are
concerned that the language that remains in the bill--
prohibiting only surveillance when the purpose of the
surveillance is to obtain information on an American--may not
protect against the government targeting a person overseas as a
fig leaf for surveillance of the American with whom the
overseas person is communicating.
We strongly supported Senator Nelson's amendment to strip
from the bill a provision providing blanket immunity to private
entities alleged to have cooperated with the Administration's
warrantless wiretapping program. The arrangements made by the
Administration the week of the mark-up to provide limited
access to certain documents related to the program were
unfortunately inadequate. More importantly, nothing in the
documents, or anything else that we have seen in the course of
our review of the program, has convinced us that a sweeping
grant of immunity for private entities should have been
included in this legislation.
Finally, we were extremely disappointed that a Feingold
amendment to shorten the six-year sunset to two years did not
pass. The vast new authorities provided under the PAA, the
ongoing confusion about how legislation in this area is and
will be interpreted, and ongoing changes in telecommunications
technology require that Congress conduct a near-term assessment
of how this legislation is being interpreted and implemented
and whether changes to the new authorities are needed. In our
view, Congress should not wait until 2013 to conduct this
thorough review.
Russell D. Feingold.
Ron Wyden.
