Statement Of Sen. Patrick
Leahy (D-Vt.),
Chairman, Senate Judiciary
Committee,
On The Feingold Amendment (Am.
3909),
To The FISA Amendments Act Of 2007, S. 2248
January 24, 2008
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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