The Feingold Amendment (Am. 3909), To The FISA Amendments Act Of 2007, S. 2248

I support Senator Feingold’s amendment to provide Congress with additional materials from the FISA Court to enable Congress to conduct more effective oversight.  This amendment is one of the many improvements to the Senate Intelligence bill adopted by the Judiciary Committee and included in the Judiciary Committee’s substitute amendment.  Regrettably, that substitute was tabled by the full Senate earlier today.  But I urge Senators to reconsider their votes with respect to this simple but critically important reporting requirement.


Under current law, semi-annual reporting requirements allow the government to wait up to a year before informing the Congress about important interpretations of law made by the FISA Court.  The Senate Intelligence bill took a step in the right direction by requiring that Congress be provided with the orders, decisions and opinions of the FISA court that include significant interpretation of law within 45 days after they are issued.


Senator Feingold’s amendment would go a step further to ensure sound oversight by Congress of the activities of the FISA Court.  It would require that, when the FISA Court issues an opinion containing a significant legal interpretation, the government must provide Congress with the government’s pleadings related to the case.  This is critically important because, where the FISA Court simply adopts the government’s reasoning in one of its decision, Congress will have no way of knowing the true basis for the court’s ruling without access to the government’s pleadings.


The Feingold amendment would also require that Congress now be provided with any significant interpretations of law by the FISA Court that were not provided to Congress over the past five years.  Access to past jurisprudence, as well as current decisions, is critical to Congress’ understanding of how FISA is being interpreted and implemented.


Opponents of this amendment say that it may create additional “paperwork.”  But if Congress can be better informed about the workings of the FISA Court – a court Congress created – and can more effectively oversee the government’s advocacy in that Court, then any incremental additional paperwork is clearly in the best interests of the American public.  Opponents also say that the pleadings may reveal sources and methods, and therefore cannot be turned over to the Congress.  This is a red herring.  As Senator Feingold has stated repeatedly, this amendment is not intended to compel disclosure of this kind of information, and nothing in the amendment could be construed to change the time-tested practice of redacting information that could reveal sources and methods. 


I urge all Senators to support the Feingold amendment, and to reject any attempts to water down this important reporting requirement by way of second-degree amendments.


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