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| February 6th, 2008 |
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Media Contact(s): Jared Whitley (202) 224-5251 |
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WE DON’T NEED LEGISLATIVE ALARM CLOCKS TO ADDRESS NATIONAL SECURITY
Hatch Opposes FISA Amdt #3930 |
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Washington - Sen. Orrin G. Hatch today offered the following remarks in support of legislation to modernize the Foreign Intelligence Surveillance Act (FISA). Hatch opposes the partisan amendments that have been tacked onto the FISA bill as approved 13-2 by the Intelligence Committee in October 2007.
In October of last year, the Intelligence Committee passed a bipartisan compromise bill which modernizes our foreign intelligence surveillance activities. Unfortunately, this bipartisan bill contained a six year sunset provision which would automatically curtail our ability to protect our homeland unless Congress acted. Let me be clear, I am opposed to any sunset in this legislation. While I believe the inclusion of this sunset provision was not appropriate, it was a result of the bipartisan negotiations in the Intelligence Committee. This serves as yet another example that not all of us who support this bill are happy with every provision, and every Senator will need to make concessions to get this bill passed and signed into law.
Given my opposition to any sunset, I will oppose the Cardin Amendment #3930 which would change the sunset from 6 years to 4 years.
Proponents of this amendment have propounded several arguments, none of which justify this change. I am going to discuss three of those arguments today.
The most common argument cited is that this legislation is too technical and too complex to have a six year sunset. This is certainly a complex bill, but this isn’t the first time the 110th Congress has tackled complex issues. We have already waded through several difficult and complex bills such as immigration reform, ethics and lobbying legislation, and even a vast energy bill.
We’re not reinventing the wheel with surveillance law, as this is a FISA modernization bill. But it is important to note how Congress has previously legislated in this area.
The 1978 FISA law made dramatic changes to our surveillance laws and oversight mechanisms. While FISA has been discussed extensively, what hasn’t been stated nearly enough is that the 1978 FISA had no sunset! Given that FISA had no sunset, let’s look at how Congress has previously legislated FISA amendments in regards to sunsets:
[CHART] SUNSETS ARE NOT COMMON IN PREVIOUS LAWS AMENDING FISA. OTHER THAN THE PATRIOT ACT, AND THE PATRIOT ACT REAUTHORIZATION, SEVEN OF THE EIGHT PUBLIC LAWS AMENDING FISA HAVE NO SUNSETS ON FISA PROVISIONS. AND THE REMAINING PUBLIC LAW HAD A SUNSET ON ONLY ONE PROVISION.
Now this statistic speaks for itself. What is so different about this bill? I do realize that it contains massive new Congressional oversight provisions which could possibly hinder our collection efforts, and that we may need to revisit it for this reason. However, if this is the case, we obviously don’t need a sunset to do this. We can legislate in this area whenever we want!
A second reason I’ve heard that some support the Cardin Amendment is that this sunset will keep Congress more engaged. One of my colleagues previously stated that a sunset “gives Congress the ability to stay involved.” Congress shouldn’t need sunsets to stay involved. We don’t need legislative alarm clocks to go off in four years in order to address national security. I wake up everyday thinking about how to protect Americans. I certainly don’t need a sunsetting bill to remind me about national security and oversight, and neither should my colleagues.
The final reason I’ve heard for a 4 year sunset is the idea that the next Administration should be given an opportunity to address this issue and that a sunset fosters cooperation between Congress and the White House. Along these lines, one of my colleagues previously stated “Having a sunset gives us a much better chance to get cooperation….between the Congress and the White House.”
Once again, the next President can weigh in on this topic whenever and however they want. And regarding the idea that we should include a 4 year sunset to foster cooperation between two branches of government -- do we really need a statute to influence the separation of powers? I would say to my colleagues that the relationship between the branches of government should be fostered by the natural restrictions contained in the Constitution of the United States, not by an artificial sunset provision in an intelligence bill.
The very idea of a 4 year sunset understates the importance of timeline implementation of new legislation. It takes a great deal of time to ensure that all of our intelligence agencies and personnel are fully trained in new authorities and restrictions brought about by Congressional action. This is not something that happens overnight! We can’t just wave a magic wand and have our nation’s intelligence personnel instantaneously cognizant of every administrative alteration imposed by Congress. Like so many things in life, adjusting for these new mechanisms takes time and practice.
While certain modifications are necessary, do we want to make it a habit of consistently changing the rules? Don’t we want our analysts to spend their time actually tracking terrorists, or is their time better spent navigating administrative procedures that may constantly be in flux?
I know my preference is that our analysts be given time to use the lawful tools at their disposal to keep our families safe! I don’t want to see them spending all their time burying their heads in administrative manuals which change from day to day whenever the political winds blow.
After all of the efforts by many in this body to write a bill that provides a legal regime to govern contemporary technological capabilities, I am certainly not alone in my opposition to a sunset provision. In fact, my views are completely in line with what the Senate has done in the past when amending FISA. The Administration strongly opposes a sunset, and Attorney General Mukasey confirmed this opposition during last week’s oversight hearing here in the Senate.
The fact is that this Administration won’t be here to see this sunset occur. Why would they care if there is a sunset in the bill or not? Their opposition demonstrates that those who are in charge of protecting our country know that a sunset is a bad idea and their opposition is based in logic and practical application. The Administration knows that they won’t be here, but the intelligence analysts who protect our country will. These analysts are not politically appointed, and do their job regardless of who the President is or what party the President represents. They need the stability of our laws to effectuate long term operations to prevent terrorist attacks, not guesswork which could hinder this intelligence gathering practices.
We’ve already had a trial run with the 6 month sunset of the Protect America Act. Enough of the quick fixes, let’s have confidence in the work product created by the nearly 10 months we’ve spent on this issue. A shorter sunset gives us an excuse to not legislate with conviction, and this is an excuse we shouldn’t make.
The 95th Congress had the ability to decipher complex problems and pass FISA with no sunset, and the 110th Congress can certainly modernize it without second guessing our capabilities by approving the Cardin Amendment. I will oppose this amendment, and I urge my colleagues to do the same.
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