03.13.08

House Consideration Of FISA Legislation

I commend the House of Representatives for debating its Amendment to the Senate’s FISA Amendments Act of 2007.  This is a step forward and a good bill.

The Foreign Intelligence Surveillance Act is intended to protect both our national security and the privacy and civil liberties of Americans.  This law was passed to protect the rights of Americans after the excesses of an earlier time. 

The FISA Amendments Act of 2007 that passed the Senate had a number of serious failings and did not adequately protect the privacy and civil liberties of Americans with this sweeping new surveillance.  I had hoped that the Senate would incorporate improvements that had been reported by the Senate Judiciary Committee and that I and other Senators offered as amendments on the floor.  It did not.  Instead, having gotten exactly the bill they wanted from the Intelligence Committee, the administration threatened a presidential veto if any further improvements were made.  The Senate bill was flawed.

The House leadership understood that under our constitutional system of government, Congress gets a say in legislation.  For the last month the House has worked with Senators and sought to work with congressional Republicans and the administration, to fashion a reasonable compromise between its earlier legislation, the RESTORE Act, which passed last fall, and the Senate’s bill.  Unfortunately, congressional Republicans and the administration have refused to engage in meaningful discussions or negotiations about the legislation.  It has been their position that the Senate’s bill must be the end of all discussions, and the House must simply accept it.  I commend the House leadership for upholding our legislative tradition and allowing Congress to act as a separate and equal branch of the Federal Government.  The Constitution provides in Article I for Congress to write the laws and in Article II for the executive to faithfully execute them—not the other way around.  

The administration has engaged in all of its usual scare tactics to try to bully the House into accepting the Senate bill.  First, they refused to allow an extension of the Protect America Act, thereby allowing it to expire.  Then, they tried to convince the American people that the expiration put Americans at risk – and somehow that was the Democrats’ fault.  It was not true, of course, the expiration of the Protect America Act put nobody at risk because the orders entered under that Act remain in force for a year.  And it is the White House and congressional Republicans who have repeatedly refused to extend the Protect America Act.  And they have ensured delay by refusing to allow the appointment of conferees so work on the bill can move forward.  These are just more in a long line of administration attempts to politicize national security in order to shield itself from accountability. 

 

Despite the failure of the administration and the Republican members of Congress to discuss the bills, the House engaged in intensive, productive bicameral discussions and produced a compromise bill that improves on both the Senate bill and their earlier efforts.  It adds to Title I of the bill several protections that I urged in the Senate.  Very importantly, it includes a requirement that Inspectors General, including the Department of Justice Inspector General, conduct a thorough review of the so-called Terrorist Surveillance Program and report back to the Congress and, to the greatest degree possible, the American people.  This is a key measure to finally require accountability from this administration.  We have not yet had anything close to a comprehensive examination of what happened and how it happened.  We cannot expect to learn from mistakes if we refuse to allow them to be examined.  As an additional accountability mechanism, the House bill would establish a bipartisan national commission to investigate and report on the administration’s warrantless surveillance activities.

 

The House bill also strengthens the exclusivity provision from the Senate bill by mandating that, absent specific statutory authorization, FISA is the exclusive means to conduct electronic surveillance.  This provision makes clear that the Government cannot claim authority to operate outside the law -- outside of FISA -- from legislative measures that were never intended to provide such exceptional authority.  This administration argues that the Authorization for the Use of Military Force (AUMF), passed after September 11, justified conducting warrantless surveillance of Americans for more than five years.  That is not what was intended.  With enactment of this strengthened exclusivity provision, we should not see similar arguments of circumvention in the future.

 

The House bill would also clarify that the Government may not use this new authority to target Americans indirectly when it cannot do so directly.  The administration says it will not do that, but the Senate bill does nothing to prevent it. 

 

Finally, and critically, the House bill would not grant blanket retroactive immunity.  This administration violated FISA by conducting warrantless surveillance for more than five years.  They got caught, and if they had not, they would probably still be doing it.  When the public found out about the President’s illegal surveillance of Americans, the administration and the telephone companies were sued by citizens who believe their privacy and their rights were violated.  Now, the administration is trying to get this Congress to terminate those lawsuits in order to insulate itself from accountability. 

 

The House bill does, however, address the concerns of the carriers who are defendants in those lawsuits that they are prevented from defending themselves because the administration is asserting the State Secrets privilege over the subject matter of the litigation.  The bill provides mechanism for the companies to present their defenses in secure proceedings in the district court.  I think this is a fair provision. 

 

I have been very disappointed by the failure of the administration and congressional Republicans to participate in important discussions about this bill.  I applaud the House for its significant efforts.  It has passed a good bill. 

 

Republicans in Congress and the administration now have a choice:  If they are concerned with a delay in authority, they should help the House, and in turn the Senate, pass the improvements to FISA that the House Amendment contains, and replace the expired Protect American Act provisions and do so immediately.  Having rejected the extension of the Protect America Act and allowed it to expire before the last congressional recess, I hope that they will join in supporting the House Amendment to restore the additional tools this measure would provide without further delay. 

 

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