The Obfuscation Report

Statement of U.S. Senator Russ Feingold
In Opposition to the Flawed FISA Bill

As Prepared for Delivery

December 17, 2007

Mr. President, I oppose cloture on the motion to proceed to S. 2248, as reported by the Senate Intelligence Committee. This bill is deeply flawed, and I am very disappointed by the decision to take it up on the Senate floor rather than the better bill reported out by the Judiciary Committee.

Before leaving town for the August recess, Congress bowed to pressure from the administration, and vastly expanded the government’s ability to eavesdrop without a court-approved warrant. That legislation, the so-called Protect America Act, was rushed through this chamber in a climate of fear – fear of terrorist attacks, and fear of not appearing sufficiently strong on national security. There was very little understanding of what the legislation actually did.

But there was one silver lining: The bill had a six-month sunset to force Congress to do its homework and reconsider the approach it took.

The Senate should be taking this opportunity to fix its mistakes and pass a new bill that gives the government all the tools it needs to spy on suspected terrorists but also protects Americans’ basic freedoms. This time around, the Senate should stand up to an Administration that time and again has employed fear-mongering and misleading statements to intimidate Congress.

Mr. President, the Intelligence Committee bill doesn’t fix those mistakes, and it is not the bill we should be considering on the Senate floor.

I do agree with the administration on one point -- Congress should make clear that when foreign terrorists are communicating with each other overseas, the U.S. government doesn’t need a warrant to listen in, even if the collection activity ends up taking place in this country because of the way modern communications are routed. Unfortunately, both the Protect America Act and the bill approved by the Senate Intelligence Committee go far beyond fixing that problem and also authorize widespread surveillance involving Americans – at home and abroad.

The bill we should be considering is the Judiciary Committee bill, which 14 Senators urged the Majority Leader to take up in a letter last week.

The Judiciary Committee made critical improvements to ensure independent judicial oversight of these sweeping new powers and to better protect innocent Americans. The Judiciary bill does not contain a new form of retroactive immunity for companies that allegedly cooperated with an illegal wiretapping program that lasted for more than five years. And, while the Intelligence Committee bill was drafted and debated behind closed doors and in close consultation with the Administration, the Judiciary bill was the product of an open process with the input of experts from a variety of perspectives.

The Judiciary Committee bill is not perfect. It needs further improvement. But it would be a vastly better starting point for Senate consideration than the bill that the Majority Leader has brought to the floor, which simply gives the Administration everything it was demanding, no questions asked.

Mr. President, the stakes are high. I want my colleagues to understand the impact that the Protect America Act and the Intelligence Committee bill could have on the privacy of Americans. These bills do not just authorize the unfettered surveillance of people outside the United States communicating with each other. They also permit the government to acquire those foreigners’ communications with Americans inside the United States, regardless of whether anyone involved in the communication is under any suspicion of wrongdoing.

There is no requirement that the foreign targets of this surveillance be terrorists, spies or other types of criminals. The only requirements are that the foreigners are outside the country, and that the purpose is to obtain foreign intelligence information, a term that has an extremely broad definition. No court reviews these targets individually. Only the executive branch decides who fits these criteria.

The result is that many law-abiding Americans who communicate with completely innocent people overseas will be swept up in this new form of surveillance, with virtually no judicial involvement. Even the Administration’s illegal warrantless wiretapping program, as described when it was publicly confirmed in 2005, at least focused on particular terrorists. What we are talking about now is a huge dragnet that will sweep up innocent Americans.

In America, we understand that if we happen to be talking to a criminal or terrorist suspect, our conversations might be overheard by the government. But I don’t think many Americans expect the government to be able to listen in to every single one of their international communications with people about whom there are no suspicions whatsoever.

These incredibly broad authorities are particularly troubling because we live in a world in which international communications are increasingly commonplace. Thirty years ago it was very expensive, and not very common, for most Americans to make an overseas call. Now, particularly with email, such communications are commonplace. Millions of ordinary, and innocent, Americans communicate with people overseas for entirely legitimate personal and business reasons. Parents or children call family members overseas. Students email friends they have met while studying abroad. Business people communicate with colleagues or clients overseas. Technological advancements combined with the ever more interconnected world economy have led to an explosion of international contacts.

We often hear from those who want to give the government new powers that we just have to bring FISA up to date with new technology. But changes in technology should also cause us to take a close look at the need for greater protections of the privacy of our citizens. If we are going to give the government broad new powers that will lead to the collection of much more information on innocent Americans, we have a duty to protect their privacy as much as we possibly can. And we can do that without sacrificing our ability to collect information that will help protect our national security.

To take one example, a critical difference between the Intelligence and Judiciary bills is the role of the court. The Judiciary bill gives the secret FISA court more authority to operate as an independent check on the executive branch. It gives the court authority to assess the government’s compliance with its wiretapping procedures, to place limits on the use of information that was acquired through unlawful procedures, and to enforce its own orders.

The Judiciary bill also does a better job of protecting Americans from widespread warrantless wiretapping. It prohibits so-called bulk collection – or vacuuming up all communications between the U.S. and overseas -- which the DNI admitted is legal under the PAA. And it ensures that if the government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating – what is called reverse targeting -- it has to get a court order on that American. None of these changes hinders the government’s ability to protect national security.

The process by which the Judiciary Committee considered, drafted, amended and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, the results of this open process should be accorded great weight, especially in light of the Judiciary Committee’s unique role and expertise in protecting those rights.

I am certain that over the course of this week, we will hear a number of arguments about why the Judiciary bill will hamper the fight against terrorism. Let me say now to my colleagues: Do not believe everything you hear. Last week I sat with many of you in the secure room in the Capitol, S-407, and listened to arguments made by the Director of National Intelligence and the Attorney General. And I can tell you with absolute certainty that several of the examples they gave were simply wrong. I am happy to have a classified meeting with anyone in this body who wishes to discuss this.

This is not about whether we will be effective in combating terrorism. Both bills allow that. This is about whether the court should have an independent oversight role, and whether Americans deserve more privacy protections than foreigners overseas.

All of this should sound familiar to those who have followed previous debates about fighting terrorism while protecting Americans’ civil liberties in the post-9/11 world: The administration says: “Trust us. We don’t need judicial oversight. The courts will just get in our way. You never know when they might tell us that what we’re doing is unconstitutional, and we would prefer to make that decision on our own.”

Time and again, that has proven to be a foolish and counter-productive attitude. And sadly, despite the objections of many of us in this chamber, too many times Congress has gone along. We don’t have to make that same mistake again.

Mr. President, in this case, we have a factual record to help us evaluate whether we should simply trust the administration or whether we should write protections into law. The Protect America Act has only been in law for four and a half months, and we are still missing key information about it. But the Intelligence Committee has recently been provided some basic information about its implementation.

Based on what I have learned, I have very serious questions about the way that the Administration is interpreting and implementing the Protect America Act, including its effect on the privacy of Americans. I will shortly be sending the Director of National Intelligence a classified letter detailing my concerns, which are directly relevant to the legislation we are now considering. I regret this information is classified, so I cannot discuss it here, and I regret that more of my colleagues have not been privy to this information prior to this floor debate. But I would be happy to share a copy of my letter, in an appropriate classified setting, with any Senator who wishes to review it.

Mr. President, I have been speaking for some time now about my strong opposition to the Intelligence Committee bill, and I haven’t even addressed one of the most outrageous elements of that bill: the granting of retroactive immunity to companies that allegedly participated in an illegal wiretapping program that lasted for more than five years.

Mr. President, this grant of automatic immunity is simply unjustified. There is already an immunity provision in current law that has been there since FISA was negotiated – with the participation of the telecommunications industry – in the late 1970s. The law is clear. Companies already have immunity from civil liability when they cooperate with a government request for assistance – as long as they receive a court order, or the Attorney General certifies that a court order is not required and all statutory requirements have been met.

This is not about whether the companies had good intentions or acted in good faith. It is about whether they complied with this statutory immunity provision, which has applied to them for 30 years. If the companies followed that law, they should get immunity. If they did not follow that law, they should not get immunity. A court should make that decision, not Congress. It’s that simple.

Congress passed a law laying out when telecom companies get immunity and when they don’t for a reason. These companies have access to our most private communications, so Congress has subjected them to very precise rules about when they can provide that information to the government. If the companies did not follow the law Congress passed, they should not be granted a “get out of jail free card” after the fact.

We have heard a lot of arguments about needing the cooperation of carriers in the future. We do need that cooperation. But we also need to make sure that carriers don’t cooperate with illegitimate requests. We already have a law that tells companies when they should and when they shouldn’t cooperate, so they are not placed in the position of having to evaluate independently whether the government’s request for help is legitimate.

Instead of allowing the courts to apply that law to the facts – instead of allowing judges to decide whether the companies deserve immunity for acting appropriately -- the Intelligence Committee bill sends the message that companies need not worry about complying with questionable government requests in the future because they will be bailed out.

This is outrageous. Even more outrageous is that fact that if these lawsuits are dismissed, the courts may never rule on the NSA wiretapping program. This is an ideal outcome for an administration that believes it should be able to interpret laws alone, without worrying about how Congress wrote them or what a judge thinks. For those of us who believe in three independent and co-equal branches of government, it is a disaster.

Mr. President, for all of these reasons I oppose cloture on the motion to proceed to the Intelligence Committee bill. I fear we are about to make the same mistake that we made with the Patriot Act. We passed that law without taking the time to consider its implications, and we didn’t do enough during the reauthorization process to fix it. As a result, three federal courts have struck down provisions of the Patriot Act as unconstitutional. And that is right back where we are going to end up if we don’t do our jobs and fix the Protect America Act. I urge my colleagues to vote No on cloture.

I yield the floor.