Statement Of Senator Patrick Leahy On H.R. 5949, Extension Of The FISA Amendments Act Of 2008

When Congress passed the FISA Amendments Act of 2008, it granted the Government sweeping new electronic surveillance powers which, if abused or misused, could impinge on the privacy rights of Americans.  Congress enacted these controversial authorities with the understanding that it would re-examine these provisions within four years, and determine whether to allow these authorities to continue.  While there is no question that the surveillance powers established in the FISA Amendments Act have proven to be extraordinarily important for our national security, it is equally clear to me that those broad powers must continue to come with rigorous oversight and strong privacy protections.  That is why the Senate should adopt the Senate substitute amendment that would allow the Government to continue using these authorities, but for period of time that ensures strong and independent oversight.  This amendment was considered and reported favorably by the Senate Judiciary Committee last July. I urge Senators to support this reasonable and commonsense measure.  I call on all Senators who talk about accountability and oversight to join with us to adopt this better approach to ensuring our security and our privacy.

Many of us will remember that the FISA Amendments Act was originally passed to clean up what one Bush administration lawyer called the “legal mess” of the warrantless wiretapping program, which undermined the privacy rights and civil liberties of countless Americans.  More than that, the warrantless wiretapping program undermined the public’s trust in our Government, and in the intelligence community’s ability to police itself. 

During the debate on the FISA Amendments Act in 2007 and 2008, I worked with others on the Judiciary Committee to ensure that important oversight, accountability, and privacy protections were put into place, including express prohibitions on the warrantless wiretapping of U.S. persons or any individual located here in the United States, as well as a prohibition against the practice of so-called “reverse targeting.”   

I am convinced that the oversight and accountability provisions that we included in the original legislation have helped to prevent the abuse of these surveillance tools.  Based on my review of information provided by the Government, and after a series of classified briefings, I have not seen evidence that the law has been abused, or that the communications of U.S. persons are being intentionally targeted.  But let’s be absolutely clear, my conclusion is based on the information I have seen to date, and current compliance does not guarantee future compliance.  We must not relax our oversight efforts, and I believe that there is more that can be done to protect against future abuse and misuse.

In June, after the Senate Intelligence Committee originated the Senate bill to reauthorize and extend FISA, Senator Grassley and I asked for a sequential referral, just as I did in 2008, to allow the Judiciary Committee to consider and improve this important legislation.  The bill that was approved by the Intelligence Committee provided for a general and unfettered extension of the expiring provisions until June 2017. 

I hoped that the Senate Judiciary Committee would improve on that, and we did.  I worked with Senator Feinstein, Chair of the Senate Intelligence Committee, to craft a compromise to shorten the sunset to 2015 and to add some accountability and oversight provisions.  I appreciated the Senator from California’s commitment to helping to improve this sensitive and important legislation and her strong words of support for the Senate Judiciary Committee bill.  The Senate Judiciary Committee adopted the substitute and reported the Senate bill to the Senate promptly last July.  That is the bill that I am offering, the Senate bill.  There is no reason for us to merely rubberstamp the House bill.  We have a better bill with better provisions and more accountability and oversight.  I am pleased that Senators Durbin, Franken, Shaheen, Akaka, and Coons have joined me as cosponsors of this amendment.      

The Senate bill that the Judiciary Committee adopted, and that I am offering to improve on the House bill that has been brought before us, provides for a shorter sunset of the expiring surveillance authorities.  The House bill’s sunset is longer than that adopted by the Senate Select Committee on Intelligence and unnecessarily extended.  The Senate bill I offer provides for extending FISA authorities, but would sunset them in June 2015.  This will allow the existing programs to continue but ensures that we revisit them in a timely fashion as more information becomes available.  It would also align with the June 2015 sunset of certain provisions of the USA PATRIOT Act, thereby enabling Congress to evaluate all of the expiring surveillance provisions of FISA together.  This is an approach that Chairman Feinstein and I both supported during the PATRIOT Act reauthorization debate in 2011, along with many members of the Judiciary and Intelligence Committees.  This is the position the intelligence community and the administration supported then and as recently as last year.  It is the right position and the right sunset, and that is why the Senate bill should include it and will if my amendment is adopted.

As we have seen through our experience with the USA PATRIOT Act, sunsets are important oversight tools.  Sunsets force Congress to re-examine carefully the surveillance powers that have been authorized, and they force the administration to provide full and accurate information to justify to Congress the reauthorization of significant authorities.  The last thing we want is for the NSA and the FBI to take for granted that they will have these powers, especially when the misuse or abuse of these powers could significantly impact the constitutional liberties of Americans.  Likewise, we must never take for granted our constitutional liberties, and we should not shy away from our duty as Senators to protect against any such misuse or abuse.

I acknowledge and appreciate those in the intelligence community who work very hard to ensure compliance with our laws and Constitution.  But it is also important to note that there has never been a comprehensive review of these authorities by an independent Inspector General that would provide a complete perspective on how these authorities are being used, and whether they are being used properly.  

The DOJ Inspector General recently completed a review of the FBI’s implementation of the FISA Amendments Act, but this was limited in scope – not only because it was just limited to the FBI, and not any other part of the intelligence community, but also because it was limited in scope to the period ending in early 2010.  Notably, this was the first report ever issued by the DOJ Inspector General regarding the FBI’s use of Section 702 authorities, and it was issued in September 2012 – after the Senate Intelligence and Judiciary Committees reported their bills, and after the House voted to pass its clean extension. 

Even more troubling is the fact that we still have not received a report from the NSA Inspector General that fully assesses the NSA’s compliance with its targeting and minimization procedures, or the limitations we put in place to protect the privacy of Americans.  I am told that a preliminary report on the adequacy of the management controls at the NSA is being finalized – but it is just that:  a preliminary report, and not an actual, final, comprehensive, or definitive assessment of whether NSA analysts are complying with the procedures and rules that they have put into place.  Indeed, the NSA Inspector General’s office has acknowledged that there is more work to be done, and that this review – once completed – will just be a first step.  Moreover, as with the DOJ Inspector General’s report, this review is limited just to a single agency, and does not incorporate any review or assessment of any information-sharing that might be taking place. 

To address the limitations faced by the IGs for individual agencies, our Senate bill as embodied in my substitute amendment adds some commonsense improvements to the oversight provisions in the FISA Amendments Act, including a comprehensive independent review by the Inspector General of the Intelligence Community.  The Office of the Inspector General of the Intelligence Community was established in 2010 and has the unique ability to provide a comprehensive assessment of the surveillance activities across the intelligence community, rather than just a limited view of a single agency.  An independent review by the Inspector General for the Intelligence Community could answer some remaining questions about the implementation of the FISA Amendments Act, particularly with respect to the protection of the privacy rights of U.S. persons.  I also believe that an unclassified summary of such an audit should be made public in order to provide increased accountability directly to the American people.

These are reasonable improvements to the law that I urge all Senators to support.  We often hear Senators speak about the need for vigorous and independent oversight of the Executive Branch, the need to support independent inspectors general who are not beholden to a particular agency, and the need for Congress to conduct its own independent reviews as a check on the power of the Executive.  So I ask those same Senators this question:  When Congress has authorized the use of expansive and powerful surveillance tools that have the potential to impact so significantly the constitutional rights of law-abiding Americans, isn’t this exactly the type of situation that calls for that sort of vigorous and independent oversight?  Put simply, someone needs to be watching the watchers – and watching them like a hawk.  I call upon all Senators, on both sides of the aisle, who talk about accountability and oversight to join with us to adopt this better approach to ensuring our security and our privacy by adopting the Senate bill as embodied in the substitute amendment.

No one can argue that shortening the sunset or adding oversight provisions somehow hampers the Government’s ability to fight terrorism or somehow harms national security.  That is not true.  All Senators should know that neither the 2015 sunset date nor the added oversight provisions have any operational impact on the work of the intelligence community.  No one – I repeat, no one from the administration has ever said to me that these provisions cause any operational problems for the intelligence community, and to suggest otherwise now is simply not accurate. 

In fact, when the Senate Select Committee on Intelligence reported its bill last year that bill had exactly the same sunset date of June 2015 that is in the substitute amendment.  I was encouraged that Senator Feinstein supported this 2015 sunset date when the Judiciary Committee approved this substitute amendment, and noted then that this substitute amendment does not cause any operational problems for the intelligence community.

So where does that leave us?  It leaves us with a simple choice.  We can enable the intelligence community to continue using these authorities until 2015, while adding commonsense improvements that will help us to conduct vigorous oversight.  Or the Senate can abdicate its responsibilities and rubberstamp the House bill that extends these powerful authorities for another five years, without a single improvement in oversight or accountability – even though we may not have all the information we need to make an informed determination.

As an American, and as a Vermonter, the choice is simple for me.  We have an obligation to ensure that these expansive surveillance authorities are accompanied by safeguards.  We can fulfill our duty to protect the privacy and civil liberties of the American public, while continuing to provide the intelligence community with tools to help keep America safe.  That is what the Senate bill as embodied in the substitute amendment accomplishes.  I urge Senators to choose this balanced, commonsense approach, and to support adopt the Senate substitute to the over-expansive House bill.

I ask unanimous consent that the text of my substitute amendment be printed in the Record.

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