| |
 |
| June 25th, 2008 |
|
Media Contact(s): Mark Eddington or Lindsey Stimpson, (202) 224-5251 |
|
Printable Version |
|
|
HATCH URGES SENATE TO PASS FISA AMENDMENTS ACT
|
| |
WASHINGTON – Sen. Orrin Hatch (R-Utah) today urged the Senate to pass the Foreign Intelligence Surveillance Act modernization, which has languished in Congress for 425 days.
Speaking on the Senate floor, Hatch said it is important to pass “this historic legislation, the most extensive rewrite of foreign intelligence surveillance laws in 30 years.”
Sen. Hatch’s complete remarks follow:
Congress has been working on FISA modernization language since April of 2007, over 425 days ago. It is simply amazing that it would take this long. As I've often said, the Constitution of the United States was written in about 115 days, and that included travel time on horseback for the founding fathers. We've spent plenty of time on this issue.
So why has it taken this long? Should this issue really be controversial?
I can only surmise that the delay is due to the ominous sounding Terrorist Surveillance Program. That is the program where the President had the audacity to allow the Intelligence Community to listen to international communications where at least one person was suspected to be a member of al-Qaeda.
The same al-Qaeda who killed nearly 3,000 innocent American civilians on September 11. The same al-Qaeda who since that day has committed attacks in Istanbul, Algiers, Karachi, Islamabad, Casablanca, London, Madrid, Mombasa, the Gulf of Aden, Riyadh, Tunisia, Amman, and Bali. The same al-Qaeda whose mission statement can be summed up in three words: “Death to America.”
This is the group that the President targeted. He wanted an early warning system to help prevent future attacks – a terrorist smoke detector, if you will.
We often are reminded that we are in against an unconventional enemy, one that has asymmetrical advantages against us. Al-Qaeda is not a nation state, and adheres to no treaties or principles on the conduct of war. They wear no uniforms, they hide in peace-loving societies and deliberately conduct mass attacks against unarmed civilians. But we also have asymmetrical advantages: As the most technologically sophisticated nation in history, we have huge advantages that derive from this expertise. We are also – and I certainly see this as an asymmetrical advantage over the barbarism that is al-Qaeda – a nation of laws. Finally, our surveillance laws are going to be modernized so that we can continue to use our own technological superiority to help prevent future attacks against our public and the publics of nations who have joined us in our fight to liquidate al-Qaeda.
This is what the President was always intent on doing. So he initiated the Terrorist Surveillance Program, and the administration provided appropriate briefings to the Chairs and Ranking Members of the Senate and House Intelligence Committees, and to the leaders of both parties of both chambers. When a new Member of Congress assumed one of those positions, they were given a similar briefing. Last year, the Senate Intelligence Committee — and numerous staff — conducted a full review of the TSP and found no wrongdoing.
So why has it taken us so long to get here? What is the concern that has caused the delay? That the President listened to the international communications of al-Qaeda after 9/11?
No President would ever engage in this type of activity . . . except, of course, President Woodrow Wilson, who authorized interceptions of communications between Europe and the U.S., and President Franklin Roosevelt, who in 1940 authorized the interception of all communications into and out of the US. I guess the Fourth Amendment and media’s outrage are more flexible under Democratic presidents.
But let’s leave these situations aside, and continue to focus on the program that one of my Democratic colleagues previously called “one of the worst abuses of executive power in our history.” With all due respect to my colleague, if listening to the international communications of al-Qaeda is one of the biggest power grabs in our country’s history, then our nation has lived a charmed existence worthy of envy throughout the world.
We should never forget the reasons for the creation of this program. It’s no accident that America has not been attacked since September 11 - and it’s more than luck. Did al-Qaeda take a hiatus from terrorist attacks? Given al-Qaeda’s numerous foreign attacks during this same time frame, I think the answer is clearly “no.” So something must be working. Perhaps the Terrorist Surveillance Program has played a role?
Warrantless Searches
But what about warrantless wiretapping? That phrase certainly means something illegal right? Not really .
As often as that phrase is repeated, what does it really mean? Does “warrantless wiretapping” automatically mean unconstitutional? That is certainly what we are led to believe by the hand-wringing blatteroons of the day.
But this simply is not true. The Fourth Amendment does not proscribe warrantless searches or surveillance; it proscribes unreasonable searches or surveillance. There are numerous warrantless searches that are performed every day:
I see that there are members of the public here in the gallery above — every last one of them went through a warrantless search just to get into this building.
So the question becomes whether a warrantless search or surveillance of international communications involving al-Qaeda is reasonable? Or to put it another way, whether signals intelligence against a declared enemy of the United States is reasonable. In my opinion, it certainly is.
Let’s also look at what the Foreign Intelligence Surveillance Court of Review, the highest court to consider this issue, has said:
“The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information … We take for granted that the President does have the authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.”
While the phrase warrantless wiretapping has been cited incessantly, there is another phrase that is mentioned nearly as often: domestic spying.
In order to better evaluate this phrase, let’s look at what the President said in a December 17, 2005, radio address that described the TSP:
“In the weeks following the terrorist attacks on our nation, I authorized the National Security Agency, consistent with U.S. law and the Constitution, to intercept the international communications of people with known links to al-Qaeda and related terrorist organizations. Before we intercept these communications, the government must have information that establishes a clear link to these terrorist networks.”
I don’t see anything in this statement about domestic spying. I thought the definition of the word domestic was pretty clear. If the program intercepted communications in which at least one party was overseas, not to mention a member of al-Qaeda, then it seems fairly obvious that those calls were not domestic.
Is this really such a hard concept? Last time I flew overseas, I didn’t fly on a domestic flight. I flew on an international flight. And my last phone bill showed that there is a big difference between domestic calls and international calls. Domestic spying may sound catchy and mysterious, but it’s a completely inaccurate – even misleading – way to describe the TSP or FISA modernization. Why don’t we describe them as international spying? Isn’t that a more accurate description? But I imagine international spying wouldn’t raise the same level of fear and distrust in our government that some on the left try to foster.
Civil Liability Provision
So while I regret the political machination that has turned this seemingly straightforward issue on its head, I am hopeful that the time for debate is over. And yet some have suggested that Congress should not pass a bill modernizing FISA. Even after such a prolonged period and extensive debate on the issue, they would prefer that we do nothing or change substantially this delicate compromise.
We are now hearing about efforts to strike or amend the immunity provisions in the compromise bill so that Members may express their views.
Is this really necessary? Did the multiple times that the Senate has considered and rejected similar efforts mean nothing? The Senate has affirmed telecom civil liability protection in six separate votes.
The civil liability provision in the Senate bill, which has been tweaked in this compromise, is supported by a bipartisan majority of the House and Senate. In addition, let us not forget the opinions of the State Attorneys General who previously wrote to Congress to express their support for civil liability protection.
Role of the FISA Court
Another complaint that has been mentioned is that this bill does not have adequate oversight. We’ve heard allegations that “the government can still sweep up and keep the international communications of innocent Americans in the U.S. with no connection to suspected terrorists, with very few safeguards to protect against abuse of this power."
We’ve heard other allegations that this bill does not provide adequate protections for innocent Americans. Make no mistake. The role of the Federal Judiciary into the realm of foreign intelligence gathering is greatly expanded by this legislation.
So when we hear the incessant claims that this legislation lacks meaningful review, I want people to be absolutely crystal clear on the staggering amount of oversight in this bill.
The Foreign Intelligence Surveillance Court was created by the 1978 FISA law for solely one purpose: “to hear applications for and grant orders approving electronic surveillance.”
Let’s think about this. It’s America in 1978. The Church Committee has published information about known abuses by the government involving surveillance against American citizens. The public wanted action. So what did the 95th Congress do?
Did it create a Court with the authority to review and approve the intelligence community's foreign targeting techniques? No. Did it create a Court with the ability to review and approve the techniques used to minimize incidental interceptions involving Americans? No. Did it mandate the intelligence community to get a warrant when targeting United States persons overseas? No. But the 110th Congress will mandate each and every one of those things by passing this bill.
For the first time, the FISC will review and approve targeting procedures to ensure that authorized acquisitions are limited to persons outside of the United States. For the first time, the FISC will review and approve minimization techniques. For the first time, the FISC will ensure that the foreign targeting procedures are consistent with the Fourth Amendment.
So given the staggering amount of oversight, there must be some sweeping new surveillance authority that would necessitate these changes, right? Wrong.
Foreign Targeting Authority
The "broad new surveillance authority" that we hear so much about is directed at one thing: the government can target foreign citizens overseas after the FISC reviews and approves the targeting and minimization procedures. In layman's terms: the government can listen to foreign citizens overseas to collect foreign intelligence information. That doesn't sound like broad sweeping authority to me. In fact, it’s less authority than the government had before.
Let me enumerate some of the many restrictions on this authority:
1. The government can't intentionally target any person known to be in the US.
2. The government can't intentionally target a person outside the US if the purpose is to target a known person in the US (reverse targeting).
3. The government can't acquire domestic communications in the US.
4. The targeting has to be consistent with the Fourth Amendment to the Constitution.
And there’s more: The AG and DNI have to develop and adopt guidelines to ensure compliance with these limitations. These guidelines must be submitted to Congressional Intelligence and Judiciary Committees as well as the FISC.
The AG and DNI shall assess compliance with the targeting and minimization procedures at least every 6 months. This assessment must be submitted to the FISC, and the Intelligence and Judiciary committees of both chambers of Congress.
The Inspectors General of the DOJ and each element of the intelligence community may review compliance with the targeting and minimization procedures.
Finally, this bill authorizes a horde of inspectors general to conduct a full review of certain communications surveillance activities — a review that the Senate Intelligence Committee has already conducted on a bipartisan basis and found nothing wrong. Vice Chairman Bond and the other negotiators agreed to narrow the scope of this review so that there would be minimal or no operational impact on our intelligence analysts. It should come as no surprise that we want intelligence analysts to focus on analysis, not spend limited time and resources digging up documents for redundant IG reviews.
Oversight
So for those who criticize this bill as lacking oversight, I wonder if any level would be enough. I have no doubt that some would only be satisfied by specific individual warrants for each and every foreign terrorist overseas. This would complete the twisted logic that somehow giving complete constitutional protections to foreign terrorists leads to more protections for Americans. Do we really need to remind people that foreign citizens outside of our country, particularly members of terrorist organizations, enjoy no protections from our Constitution?
Make no mistake about the power the FISA Court will possess in foreign intelligence gathering following passage of this bill. If the court finds any deficiency in the certification submitted by the Attorney General or Director of National Intelligence, then the FISC can direct the government to cease or not initiate the foreign targeting. In other words, our collection would go dark. Fortunately, the government will be able to rightly begin acquisitions pending an appeal to the Foreign Intelligence Surveillance Court of Review.
This is surely an intimidating environment for our intelligence analysts. Essentially, any accident or mistake will be highlighted to Congress. Unforgiving is not the word. I wonder how many private citizens would enjoy having policies at their jobs where any inadvertent error would result in notification to and review by Congress?
I will suggest that the amount of oversight in this bill should be revisited in the future; not to increase it, but rather to mandate more realistic and appropriate levels of review.
The multiple oversight initiatives in this legislation are not fulfilled by magic. It takes a tremendous amount of time and resources by the very analysts whose primary job is to track terrorists. As great as our analysts are, they can't be two places at once. There are only so many of them, and they don't have unlimited resources. It’s worth noting what DNI McConnell said to Congress last September: “Prior to the Protect America Act, we were devoting substantial expert resources towards preparing applications that needed FISA Court approval. This was an intolerable situation, as substantive experts, particularly IC subject matter and language experts, were diverted from the job of analyzing collection results and finding new leads.”
The leaders of our intelligence community have to make wise choices when allocating the time and expertise of analysts, and their hands should not be unnecessarily tied by Congress. Analytic expertise on target is a finite resource, a finite resource which the public must understand is rendered against an enemy whose resources and capabilities remain obscured to us, while its intent remains deadly.
But I guess I shouldn't be surprised by the inclusion of these onerous oversight provisions, which no previous Congress felt the need to add. How many times have we heard claims that the Protect America Act would permit the government to spy on innocent American families overseas on their vacations? Or innocent American soldiers overseas serving our country? Or innocent students who are simply studying abroad?
Painting this type of picture only feeds the delusions of those who wear tinfoil hats around their house and think that 9/11 was an inside job.
Do we think so little of the fine men and women of our intelligence community that we assume they would rather target college kids in Europe than foreign terrorists bent on nihilistic violence?
The absurdity of these accusations cannot be understated and we should not tolerate them. We should never forget that our intelligence analysts are not political appointees. They serve regardless of which president is in office, or which political party is represented. They take an oath to defend the Constitution. And rather than respect and trust their judgment and integrity, we layer oversight mechanisms that treat them like 16-year-olds who just got their first job and have to be birdwatched for fear they are stealing money from the cash register.
Now I agree there are some instances in which we may want to target individuals studying abroad. I’m not necessarily talking about institutions of higher learning like the Sorbonne, but rather terrorist training camps spread through some hostile regions of foreign countries. These are the type of schools that our intelligence community is interested in. When it comes to these students, I want to know what they are up to.
Critique of Prior Court Review
After addressing some of the critiques of this bill by others, let me offer one of my own. This bill calls for prior court review and approval of certifications presented to the FISC before foreign intelligence collection can begin. As I’ve consistently stated throughout these FISA modernization discussions, I believe this principal is unjustified and unwise.
The idea that the executive branch of the government needs the explicit approval of the Judiciary branch before collecting foreign intelligence information from foreign citizens in foreign countries is simply wrongheaded and is contrary to our Constitutional principles. I don’t care if the President represents the Democratic Party, Republican Party, Green Party, Independent Party, or Whig Party; he shouldn’t need permission to track foreign terrorists.
With that said, I am encouraged that the bill includes a provision which would allow collection before court review of procedures if “exigent circumstances” exist. Even with this provision, I am troubled that one of my Democratic colleagues in the House made the following statement last week about this provision: “This is intended to be used rarely, if at all, and was included upon assurances from the administration that agrees that it shall not be used routinely.”
This begs the question, is tracking terrorists not an “exigent circumstance”? I urge the executive branch to utilize this provision appropriately and as often as necessary following the informed judgment of those with the appropriate acumen to make such decisions. The phrase “intelligence . . . may be lost” means what it says: If the executive branch determines that we may lose intelligence while waiting for the court to issue an order, then the Intelligence Community should do what our nation expects: it should act and act quickly. The executive branch should not hesitate to utilize this authority because of fear of reprisal from those who may seek to advance political agendas.
Conclusion
Finally, I want to highlight the extensive efforts of the negotiators of this bill in both chambers. I especially want to express my appreciation and gratitude to my friend and colleague Kit Bond, the dedicated vice chairman of the intelligence committee, who adeptly navigated and managed the tense and tedious negotiations to bring about the opportunity for passage of this historic legislation, the most extensive rewrite of foreign intelligence surveillance laws in 30 years.
As you can tell from the tone of my remarks, I am less than pleased at some of the compromises made in these negotiations. I don’t like the expansion of the judiciary branch into what I believe are activities rightly under the executive’s prerogative. But I came to the Senate to achieve improvements for the American people, not to be an ideologue. My entire career as a legislator has been in recognition that compromise gets more done for the public than obstruction. The people of Utah didn’t send me to the Senate to obstruct business, but to get business done. Nowhere is this more important than on matters where the Congress is enjoined by our citizens to improve the national security.
I am a pragmatist, and I am a realist. Part of being a realist, these days, is to recognize that there is a disturbing backlash against the national security policies of this administration. Fueled by dissatisfaction over mistakes in Iraq, over frustration that the fight there and in Afghanistan continues into its seventh year, and that al-Qaeda remains a credible and deadly threat, many people in the majority party have gone beyond criticism to denunciation, to condemnation and obstruction.
I am hoping that the general election before us will provide the opportunity for a truly grand debate on what we consider are threats, and how we believe we must continue to address them. But so far the debate has not been joined, and the rhetoric is becoming more poisonous. I have come to this floor and expressed my own criticisms of this administration, but I have never had reason to condemn them as operating in bad faith when it came to defending this nation. It is regrettable that the rhetoric around the terrorism surveillance program has devolved, too often, into fire, but no light. So while I am concerned about some of the compromises made in this bill, I am grateful for all of the work done to bring it to a vote this week.
I urge my colleagues to support this monumental and historic legislation. Our country continues to be both the envy of the world and the target of those who seek to advance their warped violent ideologies. We know the threats are out there. We don’t have to live our lives in fear, but we should acknowledge that the world changed on September 11 and we must remain vigilant. And let’s ensure that all of the dedicated and noble professionals who play a part in ensuring our liberty and safety are not hampered by partisan problems that we have the ability and responsibility to correct. The legislation before us makes an important and admirable attempt to do just this, and I urge my colleagues to support its passage.
|
| |
| ### |
| |
| |
| |
|
|
