09.24.13

Leahy Delivers Keynote Address On Foreign Surveillance Oversight At Georgetown University Law Center

NOTE: Prepared remarks include Chairman Leahy’s announcement that he is working with members in the House and Senate on new legislation to reform and improve certain provisions of the USA PATRIOT Act and FISA Amendments Act. The Judiciary Committee will also meet next week to hear additional testimony on the issue. A webcast of the speech and panel discussion featuring former Vice President Walter Mondale and Senator Gary Hart can be viewed here.

REMARKS OF SENATOR PATRICK LEAHY
GEORGETOWN UNIVERSITY LAW CENTER
SURVEILLANCE AND FOREIGN INTELLIGENCE GATHERING
IN THE UNITED STATES
September 24, 2013

As Prepared For Delivery

Thank you, Dean Treanor.  It is great to be back at my alma mater, Georgetown Law, and to speak at such a timely event.  I am honored to be here with my friends, Vice President Mondale and Senator Hart. 

I entered the Senate in 1975.  The very first vote I cast as a United States Senator was in favor of the Senate resolution that created the Select Committee to Study Government Operations with Respect to Intelligence Activities and the Rights of Americans – that is, the Church Committee.

It was a watershed moment in history, and I remain proud of that first vote.

Through the work of the Church Committee, the American public learned of years of excesses and abuses that had occurred in the secretive and largely unchecked intelligence community.  These revelations made clear that change was needed. They led to the enactment of the Foreign Intelligence Surveilance Act in 1978, as well as the establishment of the congressional Intelligence Committees to provide ongoing, comprehensive oversight of our intelligence agencies.

Today, nearly 40 years later, we have arrived at another watershed moment.  And once again, it is time for change. 

This summer, many Americans learned for the first time that Section 215 of the USA PATRIOT Act has for years been secretly interpreted to authorize the collection of Americans’ phone records on an unprecedented scale.  And they learned that the NSA has engaged in repeated, substantial legal violations in its implementation of Section 215 and other surveillance authorities.

I do not condone the way that these and other highly classified programs have been disclosed.  I remain concerned about the potential damage to our intelligence-gathering capabilities and national security.  And we certainly have not seen evidence of anything so sinister as the secret campaign to smear Dr. Martin Luther King that the Church Committee revealed.  I credit the Church Committee with the oversight powers we now have and that Congress is now using to take a fresh look at what our government is doing under the guise of national security.

But new technology has led to the proliferation of data and surveillance on a scale not previously imaginable – and certainly not contemplated by Congress in the wake of the Church Committee findings.  Americans increasingly live online and create electronic records of their daily activities without even realizing it.  Americans communicate with each other much differently than they did 40 years ago, and virtually everything we do leaves a digital footprint.  Our laws and our oversight must keep pace with this changing technology.  That is why I authored bipartisan legislation to update our criminal laws regarding the privacy of our email content, and that is why I believe Congress must also take a hard look at the authorities we afford the intelligence community.

This rapid pace of technological change has dramatically affected the FISA Court’s role in conducting oversight.  It is no longer simply reviewing wiretap applications to make fact-based classified assessments about whether individualized surveillance requests satisfy a statutory standard.  Rather, these judges are now rendering complex constitutional decisions about massive surveillance programs that have major implications for Americans’ privacy.  They are conducting oversight of highly technical programs that even the agency running them apparently did not understand and certainly did not accurately explain to the Court.  And they are doing all of this entirely in secret and without the benefits of an adversarial process.

In fact, a whole body of secret law has developed, with considerable implications for our democracy.  Time and again, Congress has been asked to reauthorize surveillance authorities that affect our fundamental notions of privacy – but without the ability to discuss publicly those programs, or the legal and constitutional interpretations upon which the government relies.  Only recently, for example, has it become possible for us to challenge openly the government’s false assertion that it is necessary to collect the phone records of every single American in order to keep our nation safe.

I am convinced that the system set up in the 1970s to regulate the surveillance capabilities of our Intelligence Community is no longer working.  We must recalibrate. 

First, we must address the scope of the government’s national security surveillance powers, particularly when directed at Americans.  In my view, the Section 215 bulk collection of Americans’ phone records must end.  The government has not made its case that this is an effective counterterrorism tool, especially in light of the intrusion on Americans’ privacy rights.  I have introduced bipartisan legislation that would end bulk collection, while allowing the intelligence community to continue collection under Section 215 and other authorities if appropriately tailored and targeted.  As I am sure Vice President Mondale and Senator Hart will agree, Congress did not enact FISA in order to give the government dragnet surveillance powers that could sweep in the data of countless innocent Americans.

Second, we need to take a hard look at the existing oversight structure and what we are asking of the judges appointed to the FISA Court.  I do not question the integrity or dedication of these judges, and I do not agree with those who caricature the FISA Court as an unthinking rubber stamp for government surveillance requests.  But we must acknowledge that FISA Court judges have now assumed a regulatory role not envisioned in the original version of FISA, and that they often evaluate the adequacy of guidelines and procedures and the government’s compliance with them.  However, when senior officials at the NSA do not themselves understand the technical boundaries of the programs they manage or when they give inaccurate explanations to the court, how can we expect the Court to fulfill its role?  Other oversight mechanisms, including greater use of Inspectors General, need to be considered, as well as possible structural changes to the FISA Court process. 

The Senate Judiciary Committee will continue to play its key oversight role.  The Committee has a lengthy history of working on FISA, dating back to the 1970s, and its members have expertise on privacy and civil liberties and bring a vital perspective to the table.  That is why I am convening a classified briefing for committee members tomorrow, and will chair another open hearing next week, where Director of National Intelligence Clapper and National Security Agency Director Alexander will testify.  We must keep pressing for common sense reforms. 

To that end, I am working with Congressman Sensenbrenner, Chairman of the Crime and Terrorism Subcommittee in the House, as well as, Senator Lee on the Senate Judiciary Committee on a legislative solution.  I am also consulting with Chairman Goodlatte, and was encouraged by his comments last week.  This reflects how concerns about privacy and civil liberties span the full political spectrum. 

Finally, we must examine with a fresh eye the extent to which our domestic surveillance programs must remain classified.  I have no doubt that our national security has been harmed by the release of some of the information that has been in the news, particularly involving activities abroad.  But we must find a way to discuss publicly the outer bounds of government authority to surveil Americans.  Congress was able to do that in the 1970s when it developed FISA, and I am confident we can do it again. 

More than 38 years after I cast my first vote on the floor of the Senate, we continue our fight to ensure that the privacy rights and civil liberties of Americans are not swept aside in the name of national security.  Technology has brought with it new challenges, but as today’s event demonstrates, much of this is familiar territory.  I know how important it is to learn from our past experiences, and that is why this event is so valuable. We must never forget the lessons of the Church Committee, and we are fortunate to hear firsthand from those involved.  Thank you again.

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