Leahy Outlines Strengths Of Judiciary Committee Substitute Language

WASHINGTON (Thursday, Jan. 24, 2008) – Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) Wednesday afternoon took to the Senate floor to discuss the important work of the Judiciary Committee in crafting legislation to amend the country’s critical surveillance laws.  The Judiciary Committee in November passed an improved version of the Intelligence Committee’s Foreign Intelligence Surveillance Act (FISA) Amendments Act, including measures to strengthen checks and balances to protect the privacy and civil liberties of all Americans.  Notably, the Judiciary Committee amendment would strike a provision giving retroactive immunity to telephone companies that would eliminate the courts’ ability to examine the legality or illegality of the administration’s warrantless wiretapping program.  The Senate is scheduled to begin debate today on the legislation.

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Statement Of Senator Patrick Leahy (D-Vt.),

Chairman, Senate Committee On The Judiciary

On The FISA Amendments Act Of 2007, S.2248

January 23, 2008

Mr. President, the Senator from North Dakota is absolutely right.  Having managed a number of bills, I know that sometimes it is hard to get people with amendments to come forth.  I hope they do.  Once this bill is finished, we will go to the Foreign Intelligence Surveillance Act or, as we know it here, FISA.  It is intended to protect both our national security and also the privacy and civil liberties of all Americans.  We are considering amendments to that important act that will provide new flexibility to our intelligence community.  We all support surveillance authority.  With terrorists plotting against us and talking about it, we want to be able to use all the various electronic and other means to find out what they are saying.  Unlike some in the administration who say we are dealing with an antiquated law, we have updated this act many times, probably 30 or more times since its historic passage after intelligence abuses of earlier decades. 

I came here 34 years ago.  I well remember that this Nation was still reeling from the excesses of the COINTEL Program when people were being spied on by their Government simply because they disagreed with what the Government was doing; in this case, the war in Vietnam.  We enacted FISA so we could do the legitimate thing of actually spying on people who wanted to do harm to the United States at the time of the Cold War, when we had adversaries all over the world.  We also wanted to make sure that Americans who were minding their own business, not doing anything illegal, wouldn't be spied upon. 

We rushed the so-called Protect America Act through the Senate just before the August recess and with it were a number of excesses.  They came about because the administration broke agreements it had reached with congressional leaders.  The bill was hurriedly passed under intense partisan pressure from the administration.  In fact, the pressure was so strong, they made it very clear why they were willing to break agreements with those Republicans and Democrats who had been working together to try to craft a bill that would protect America's interests but also protect the privacy of individual Americans. 

So we passed a bill that provides sweeping new powers to the Government to engage in surveillance, without a warrant, of international calls to and from the United States involving Americans, and it provided no meaningful protection for the privacy and civil liberties of the Americans who were on those calls.  It could be an American calling a member of their family studying overseas.  It could be a business person who, as they travel around to various companies they represent, ends up having their telephone calls intercepted. 

But before that flawed bill passed – the one that came about because of the broken agreements by the administration – Senator Rockefeller and I and several others in the House and Senate worked hard, in good faith with the administration, to craft legislation that solved an identified problem but, as I said, protected America's privacy and liberties.

Just before the August recess the administration decided instead to ram through its version of the Protect America Act with excessive grants of Government authority and without any accountability or checks and balances.  They did this after 6 years of breaking the law through secret warrantless wiretapping programs.  It was one of the most egregious things I have seen in my 34 years in the Senate.  First they violate the law, and then instead of being held accountable, they ram through a law designed to allow them to continue those actions.  Some of us saw it for what it was and voted against it.  Both Senators from Vermont voted against it.  We are from a State that borders a foreign country.  We are concerned about our security, but we are also concerned about our liberties and our privacy. 

We did manage to include 6-month sunset in the Protect America Act so we would have a chance to revisit this matter and do it right.  The Senate Judiciary Committee and the Intelligence Committee, as well as our House counterparts, have spent the past month considering changes.  In the Senate Judiciary Committee we held open hearings.  We had more briefings than I can even count and meetings with the administration, with people in the intelligence service, with people at the CIA, NSA, and others.  We considered legislative language in a number of open business meetings where Senators from across the political spectrum could be heard.  Then we reported a good bill to the Senate before Thanksgiving. 

The bill we are now considering will permit the Government, while targeting overseas, to review more Americans' communications with less court supervision than ever before.  I support surveillance of those who might do us harm, but we also have to protect Americans' liberties.  Attorney General Mukasey said at his nomination hearing that "protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security."  Let me repeat what the new Attorney General said, “Protecting civil liberties, and people's confidence that those liberties are protected, is a part of protecting national security.” 

I agree with him.  That is what the Judiciary Committee bill does.  I commend the House of Representatives for passing a bill, the RESTORE Act, that takes a balanced approach to these issues and allows the intelligence community great flexibility to conduct surveillance of overseas targets but also provides oversight and protection for Americans' civil liberties.  The Senate Select Committee on Intelligence has also worked hard.  I know Chairman Rockefeller was as disappointed as I at the administration's partisan maneuvering just before the August recess.  After being here through six administrations, it has always been my experience, with Republican or Democratic administrations at certain points, when you are negotiating a key piece of legislation with the administration, you have to rely on them to keep their word and be honest with you, as they have to rely on you to keep your word and be honest with them. Through six administrations, 34 years, I can never remember a time where an administration was less truthful or flatly broke their word in the way this one did. 

I commended the efforts of Senator Rockefeller and those working with him.  I do so again now.  I believe both he and I want surveillance but we want surveillance with oversight and accountability within the law.  I also want to praise our joint members.  In the Judiciary Committee we have, by practice, a certain number of members who serve on both Judiciary and Intelligence for obvious reasons.  The ranking member of Judiciary and I, of course, have access to a great deal of intelligence whenever we have requested it, but that is on an ongoing basis.  Senators Feinstein, Feingold, and Whitehouse contributed so much to the work of the Judiciary Committee.  They worked with me to author many of the additional protections we adopted and reported.  They had worked on the bill in the Intelligence Committee and then worked with us.  These Senators and others on the Judiciary Committee worked hard to craft amendments that will preserve the basic structure and authority proposed in the bill reported by the Select Committee on Intelligence, but then they added those crucial protections for Americans, the part the Judiciary Committee, because of our oversight of courts, worries about.

I believe we need to do more than the bill initially reported by the Senate Select Committee on Intelligence does to protect the rights of Americans.  I know the chairman of that committee joins with me to support many of the Judiciary Committee's improvements. 

Let me cite briefly what they are.  The Judiciary bill, for example, makes clear that the Government cannot claim authority to operate outside the law – outside of FISA – by alluding to other legislative measures never intended to provide that authority. 

I will give you an example of what happened.  The House and the Senate passed an authorization for the use of military force.  We did this right after September 11.  It was authorization to go in and capture Osama bin Laden – the man who engineered 9/11, is still loose, and taunts us periodically.  But what happened?  The administration was so hell-bent on getting into Iraq that when they had Osama bin Laden cornered, they withdrew their forces and let him get away so they could invade Iraq – a country that had absolutely nothing to do with 9/11.  Now they say that authorization allowed them to wiretap Americans without a warrant.  I have heard some strange, convoluted, cockamamie arguments before in my life.  This one takes the cake. 

I introduced a resolution on this in the last Congress when we first heard this canard.  We authorized going after Osama bin Laden, but the Senate did not authorize – explicitly or implicitly – the warrantless wiretapping of Americans.  By their logic, they could also say we authorized the warrantless search of the distinguished Presiding Officer's home or my home.  This body did no such thing, but the administration still is clinging to their phony legal argument. 

The Judiciary bill would prevent that dangerous contention with strong language that reaffirms that the Foreign Intelligence Surveillance Act is the exclusive means for conducting electronic surveillance for foreign intelligence purposes.

The Judiciary Committee’s amendment would also provide a more meaningful role for the FISA court to oversee this new surveillance authority.  The FISA court is a critical independent check on Government excess in the sensitive area of electronic surveillance.  The administration claims that of course the Foreign Intelligence Surveillance court can look at what they are doing, they just don’t want the court to be able to do anything about it.  No.  The Judiciary Committee says the court should be able to look at what they are doing and should be able to stop them if they are breaking the law.

In this Nation we fought a revolution over 200 years ago to have that right. 

With the authority of a majority of the Judiciary Committee members, I am going to offer a revised version of the Committee's amendment that makes some changes to address technical issues and also to address some of the claims the administration has made about our substitute. 

For example, in response to concerns raised by the administration in its Statement of Administration Policy, we have revised the exclusivity provision to ensure that we are not overextending the scope of FISA.  We have also revised the provision concerning stay of decisions of the FISA Court pending appeal, the provision clarifying that the bill does not permit bulk collection of communications into or out of the United States, and a few other provisions. 

I believe these revisions make the Judiciary Committee's product even stronger, and I urge my colleagues to support it. 

Now, in the bill we have a title I, a title II.  Title II in the Intelligence bill talks about retroactive immunity.  We do not address that in the Judiciary Committee's bill, but I do strongly oppose the bill reported by the Senate Select Committee on Intelligence in that area.  Their bill would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year.  This surveillance was contrary to FISA and violated the privacy rights of Americans. 

The administration violated FISA for more than 5 years.  They got caught.  If they had not gotten caught, they probably would still be doing it.  But 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.  It is not that they are worried about the telephone companies.  They are not as concerned about the telephone companies as they are about insulating themselves from accountability.

This is an administration that does not want us to ask them anything, and they do not want to tell us anything.  Interesting policy.  If you do ask them, they are not going to tell you.  If they do tell you, it appears oftentimes they do not tell you the truth.  Now, the rule of law is fundamental to our system.  It has helped us maintain the greatest democracy we have ever seen in our lifetimes.  But in conducting warrantless surveillance, the administration showed flagrant disrespect for the rule of law.  It is like the King of France, who once said:  "L'Etat, c'est moi."  "The state is me."  They are saying: What we want to do is what we will do.  And if we want to do it, the law is irrelevant. 

I cannot accept that. 

The administration relied on legal opinions that were prepared in secret and shown only to a tiny group of like-minded officials who made sure they got the advice they wanted -- advice that, when it saw the light of day, people said:  How could anybody possibly write a legal memorandum like that? 

Jack Goldsmith, who came in briefly to head the Justice Department's Office of Legal Counsel, described the program as a "legal mess."  He is a conservative Republican.  He looked at this and said:  It is a legal mess.  Now, the administration does not want a court to get a chance to look at this legal mess.  Retroactive immunity would assure that they get their wish and that nobody could ask how and why they broke the law. 

Frankly, I do not believe anybody is above the law.  I do not believe a President is, I do not believe a Senator is, I do not believe anybody is. 

I do not believe that Congress can or should seek to take rights and legal claims from those already harmed.  I support the efforts of Senators Specter and Whitehouse to use the legal concept of substitution to place the Government in the shoes of the private defendants who acted at its behest and to let it assume full responsibility for the illegal conduct.

Although my preference, of course, is to allow the lawsuits to go forward as they are, I believe the substitution alternative is effective.  It is far preferable to retroactive immunity, and it allows this country to find out what happened. 

Keep in mind why we have FISA.  Congress passed that law only after we discovered the abuses of J. Edgar Hoover’s FBI.  Through the COINTEL Program, Hoover spied on Americans who objected and spoke out against the war in Vietnam -- which pretty well involved 100 percent of the Vermont delegation in Congress. 

It is like the Department of Defense today that is going around videotaping Quakers protesting the war.  Quakers always protest the war.  But this administration seems to think, if you disagree with them, somehow you are an enemy of the country and they can justify spying on you. That is why we put these laws in place.  Is memory so short around here?  Is memory so short or are we so frightened by 9/11 that we are willing to throw away everything this country fought for and everything that has made this country survive as long as it has? 

We were told this building was targeted by terrorists.  I proudly come into this building every day to go to work.  It is the highlight of my life, other than my wife and my family.  But I come in here because I believe 100 Members of the Senate can be the conscience of the Nation.  We can protect Americans’ rights, we can protect those things that our forefathers fought a revolution for, that we fought a civil war to protect, that we fought two World Wars to protect.  Now we are going to throw it away because of a group of terrorists?  This is "Alice in Wonderland." 

So as we debate these issues, let's keep in mind the reason we have FISA in the first place.  As I said, back in the 1970s we learned the painful lesson that powerful surveillance tools, without adequate oversight or the checks and balances of judicial review, lead to abuses of the rights of the American people.

So I hope this debate will provide us with an opportunity to show the American people what we stand for.  We can show them that we will do all we can to secure their future, but at the same time protect their cherished rights and freedoms.  Those are the rights and freedoms that protected past generations and allowed us to have a future.  If we do not protect them, what will our children and grandchildren have? 

It is incumbent upon us to stand up for this country.  When you stand up for this country, it does not mean jingoism, it does not mean sloganeering.  It means protecting what is best for this country.  If we do that, the terrorists will not win.  The United States of America wins.  The people who rely on us around the world will win.  Our example will be one they will want to follow. 


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***For Background***

Provisions In The Senate Judiciary Committee
Passed Substitute Amendment
To The FISA Amendments Act Of 2007

·        Strong, new language reaffirming that FISA is the exclusive means for conducting foreign intelligence electronic surveillance. 

·        Meaningful oversight by the FISA Court by ensuring that the FISA court can conduct oversight of the government’s use of minimization procedures, the procedures used to safeguard against unnecessary intrusion on Americans’ communications and giving the FISA Court the discretion to impose restrictions on the use and dissemination of Americans’ information if the FISA court determines that the procedures used to acquire that information were deficient.

·        Prohibition of ‘bulk collection,’ clarifying that the government is prohibited from using the new authority in the legislation to collect contents of communications in bulk, and narrows the definition of ‘contents.’ 

·        Strengthened Prohibition on Reverse-Targeting by reducing the risk of reverse-targeting by requiring a FISA court order where a significant purpose of targeting a particular, known person abroad is to acquire the communications of a US person.

·        A fix to provisions governing the targeting of U.S. persons overseas as included in the Senate Intelligence bill.  The Intelligence Committee bill provides that the government must make a probable cause showing to the FISA court if it wants to target a US Person overseas, thereby protecting Americans who travel, live or work abroad.  The Judiciary bill maintains this important limitation, but adds an emergency requirement for situations where there is no time to seek a FISA court warrant.  This ensures that national security will not be jeopardized in time-sensitive investigations.

·        Increased oversight by Congress by mandating that the relevant Offices of Inspectors General jointly examine the legality of the Terrorist Surveillance Program and the process by which the program was authorized, and report back to Congress.

·        Shortened the sunset provision from six to four years.


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