Statement Of Sen. Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,

On Senate Consideration Of S. 2248,
The FISA Amendments Act Of 2007

December 17, 2007

 

The Foreign Intelligence Surveillance Act – FISA – is intended to protect both our national security and the privacy and civil liberties of Americans.  We are considering amendments to that important Act that will provide new flexibility to our Intelligence Community.  I think we all support surveillance authority and we have joined together to update FISA dozens of times since its historic passage after the intelligence abuses of earlier decades.  I thank the Majority Leader for his efforts in bringing this matter before the Senate.  He has consulted with me and with Chairman Rockefeller and is proceeding by regular order to bring this legislation before the Senate in a manner that allows deliberation of the many protections of Americans’ rights added to the bill during consideration by the Senate Judiciary Committee.

 

It is vitally important that we correct the excesses of the so-called Protect America Act that was rushed through the Senate in an atmosphere of fear and intimidation just before the August recess after the Administration reneged on agreements reached with congressional leaders.  That bill was hurriedly passed under intense, partisan pressure from the Administration.  It provided 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 are on those calls.

 

Before that flawed bill passed, Senator Rockefeller and I, and several others in the House and the Senate, worked hard and in good faith with the Administration to craft legislation that solved an identified problem, but also protected Americans’ privacy and liberties.  Just before the August recess the Administration decided, instead, to ram through its version of the so-called Protect America Act with excessive grants of government authority and without accountability or checks and balances.  After almost six years of violating FISA through secret warrantless wiretapping programs, that was wrong.  A number of us supported the better balanced alternative and voted against the Protect America Act as drafted by the Administration. 

 

Fortunately, because the Protect America Act has a 6-month sunset, we have a chance to revisit this matter and do it right.  The Judiciary Committees and Intelligence Committees in the Senate and the House have spent the past months considering changes to FISA.  In the Senate Judiciary Committee, we held open hearings and countless briefings and meetings to consider new surveillance legislation.  We considered legislative language in a number of open business meetings of the Committee and reported a good bill to the Senate before Thanksgiving.  

 

The bill we are considering will permit the government, while targeting overseas, to review more Americans’ communications with less court supervision than ever before.  I support this surveillance, but we must also take care 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.” On that I agree with him.  That is what the Senate Judiciary bill does.

 

I commend the House of Representatives for passing a bill, the “RESTORE Act,” that takes a balanced approach to these issues.  It allows our Intelligence community great flexibility to conduct surveillance on overseas targets, while providing oversight and protection for Americans’ civil liberties.  The Senate Select Committee on Intelligence has also worked hard.  I know that Chairman Rockefeller was as disappointed as I at the Administration’s partisan maneuvering just before the August recess.  I commended his efforts this summer and do so, again, now.  I believe that he and I both want surveillance with oversight and accountability.

 

I also want to praise our joint members, Senators Feinstein, Feingold, and Whitehouse, who as members of both the Judiciary Committee and the Select Committee on Intelligence contributed so much to the work of the Judiciary Committee and who worked with me to author many of the additional protections that we adopted and reported.  These Senators and others on the Judiciary Committee worked hard to craft amendments that preserve the basic structure and authority proposed in the bill reported by the Select Committee on Intelligence, while adding crucial protections for Americans. 

 

In my view, and I think the view of many Senators, we need to do more than the bill initially reported by the Senate Select Committee on Intelligence to protect the rights of Americans.  Indeed, Senator Rockefeller joins with me to support many of the Judiciary Committee’s improvements. 

 

The Judiciary bill, for example, makes clear that the government cannot claim authority to operate outside the law -- outside of FISA -- by alluding to legislative measures that were never intended to provide such exceptional authority.  This Administration has come to argue 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.  I introduced a resolution on this in the last Congress, when we first heard this canard.  When we authorized going after Osama bin Laden, the Senate did not authorize – explicitly or implicitly – warrantless wiretapping of Americans.  Yet this Administration still clings to this phony legal argument.   The Judiciary bill would prevent that dangerous contention with strong language reaffirming that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes.

 

The Judiciary bill would also provide a more meaningful role for the FISA Court in this new surveillance.  The Court is a critical independent check on government excess in the very sensitive area of electronic surveillance.  The fundamental purpose of many of the Judiciary Committee changes is to assure that this important, independent check remains meaningful. 

 

On one important issue, I strongly oppose the bill reported by the Senate Select Committee on Intelligence.  That bill includes one provision that goes beyond even the so-called Protect America Act.  It would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year contrary to FISA and in violation of the privacy rights of Americans.     

 

This Administration violated FISA by conducting warrantless surveillance for more than five years.  They got caught, and if they hadn’t, 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.  We should not allow this to happen. 

 

The rule of law is fundamentally important in our system, and so is protecting the rights of Americans from unlawful surveillance.  I do not believe that Congress can or should seek to take those rights and those claims from those already harmed.  Instead, I will continue to work with Senator Specter, as well as with Senators Feinstein and Whitehouse, to try to craft a more effective alternative to retroactive immunity.  We are working with the legal concept of substitution to place the government in the shoes of the private defendants that acted at its behest and to let it assume full responsibility for the illegal conduct.  

 

I voted for cloture on the motion to proceed to the measure, just as I would have supported proceeding to the House-passed bill, because I believe it is important that we correct the excesses of the so-called Protect America Act.  The Judiciary Committee has done good work in reporting protective measures to the Senate to add balance to the surveillance powers of the Government and to better ensure the rights of Americans.  I strongly oppose retroactive immunity in favor of accountability.  

 

As we debate these issues, let us keep in mind the reason we have FISA in the first place.  Not so long ago, we painfully learned the hard 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.  I hope this debate will provide us an opportunity to show the American people what we stand for, that we will do all we can to secure our future while protecting their cherished rights and freedoms.

 

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