SENATOR HUTCHISON DISCUSSES THE FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2007

I hope very much that we will be able to start voting on amendments, because we now have an agreement for voting on amendments, and I hope we can clear the FISA bill in due course and in short order. It is important because there is a deadline.

We are going to see the capability for our law enforcement officials and our intelligence officials, to monitor calls between known terrorists and suspected terrorists, whether it is into our country, or out of our country from foreign countries, we need to have this capability continue.

We have it right now. The Senate passed a good bill about 6 months ago. It has now been extended. But we do have a deadline, and the deadline is on us in the middle of this month. So we do need to pass this bill. We need to make sure the technology of the day is covered by the foreign intelligence surveillance act and subject to the security needs of our country.

There are amendments that would take away the immunity for telecommunications companies that allegedly cooperated with intelligence officials.

One amendment, No. 3907, would strip the immunity from the bill completely. The Intelligence Committee is the key committee that has looked at all of the information and assessed the need for the ability to survey known terrorists and suspected terrorist helpers in our country and in foreign countries. It is important that we allow our intelligence agents to go to telecommunications companies and get the help they need to do this kind of surveillance. Amendment No. 3907 would take away immunization for companies that may have cooperated with government requests.

The telecommunications companies allegedly assisted the intelligence community because of the need to assure that plots against our country and our citizens were uncovered before they are implemented. Now we have the potential for catastrophic liability from a number of lawsuits, and some of my colleagues want the country to turn away from providing protection for these companies. We will not allow these companies the freedom to provide the evidence in court because the intelligence community says the evidence is too sensitive to be allowed in court. We put the telecommunications companies in a situation in which they cooperate. They are sued. But they don't have the ability to defend themselves in court because they cannot produce the evidence. It is untenable, and I hope we will reject such an amendment.

There is another amendment that would allow the Government to be substituted for the telecommunications companies as the defendant when they are sued. The problem with this amendment is that the companies would still have to spend thousands of hours and millions of dollars on these lawsuits. They would have to subject their employees to depositions. They would need to participate in evidence gathering and the discovery process, which will drain their resources in an unnecessary lawsuit in which they would be peripheral.

There is yet another amendment that would grant the immunity after review by the FISA Court. While certainly well intentioned, there are some problems with giving this to a court that doesn't have the capability to process this kind of request. They don't have statutory procedures. They don't have the administrative capacity to receive witnesses, to hear evidence, or to carry out the major provisions of the amendment.

Furthermore, it is unclear that there is appellate authority from the immunity related rulings of the FISA Court this amendment creates. The FISA Court has operated in secret and has been more of an administrative court processing warrants. So this would put the court in a whole new administrative mode for which there are no precedent or appropriate regulations. There does not appear to be an appellate process from the FISA Court once it decides whether or not to grant a company immunity.

I respect the work of my colleagues. They are trying to find good-faith compromises. However, I put my faith in the Intelligence Committee. This is a committee that passed this bill, with immunity provisions in it, out of committee by a vote of 13 to 2. It was bipartisan. This is the committee that had the hearings, heard all of the evidence, and knows more about the processes than people who are not on the committee. They have spent a considerable amount of time reviewing the materials in these cases, including the Government's legal justifications for the program. We need to respect the judgment and expertise of our committees, particularly the intelligence committee. This is a committee that has done a very good job on a bipartisan basis to assure that we continue to protect our intelligence capabilities and to shield the companies necessary to gathering intelligence information from unfounded lawsuits.

I hope my colleagues will vote for the bill the Intelligence Committee produced. Protecting the American people is our ultimate responsibility. This bill is absolutely essential for that responsibility to be implemented. We must protect the American people. We must protect the companies that have helped our law enforcement and intelligence-gathering agencies. We must make sure we proceed with a vision of foreign surveillance that would protect the American people from future attack.

It is not an accident that we have not been attacked since 9/11. All of us know that our country was not prepared for this kind of warfare. But our country's eyes have been opened. We have been a sleeping giant in many ways, as was said about us before World War II. But we have now been awakened, and we are going to take the measures necessary within the framework of our Constitution, which this bill provides, to assure that we protect the American people from future attack.

I yield the floor.

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