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| January 24th, 2008 |
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Media Contact(s): Jared Whitley (202) 224-5251 |
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HATCH CONDEMNS PARTISANSHIP ON FISA
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Washington - In a speech on the Senate floor today, Sen. Orrin Hatch denounced partisan obstruction of a bill to modernize the Foreign Intelligence Surveillance Act (FISA), which empowers the government to monitor potential terrorist activity abroad. The Senate Intelligence Committee approved a bipartisan compromise on FISA by a vote of 13-2 in October 2007, but certain Democratic Senators have slowed the legislation’s progress.
Hatch's prepared remarks follow.
As the only Republican on both the Intelligence and Judiciary Committees, I have been very involved in the process of developing the FISA modernization bill. With this unique understanding of the journey this bill has taken through the Senate, I continue to express my full support for the bill as passed out of the Intelligence Committee and encourage my colleagues to reject the risky and problematic Judiciary substitute amendment.
The seeds of discontent with the Judiciary substitute were sown from the very beginning of that Committee’s consideration. Late in the afternoon the day before the markup, a Judiciary substitute amendment was circulated that replaced the entire first title of the Intelligence Committee reported bill. This substitute included 10 Democratic amendments, no Republican amendments, and was eventually adopted on a party line vote. Unfortunately, the careful bipartisan balance crafted by the Intelligence Committee was irrevocably altered and effectively nullified by partisan maneuvering.
The Judiciary Committee was not able to coalesce to advance a compromise bill, as evidenced by the consistent 10-9 party line votes on amendments and final passage. These votes typified the approach the Committee undertook.
We know that this bill, like all national security legislation, needs bipartisan support to pass, and it simply doesn’t have it.
I also want to remind my colleagues that on November 14, 2007, Attorney General Mukasey and the Director of National Intelligence McConnell sent a letter to the Chairman and Ranking Member of the Judiciary Committee stating, “If the [Judiciary] substitute is part of a bill that is presented to the President, we and the President’s other senior advisers will recommend that he veto the bill.” In addition, on December 17, 2007, a Statement of Administration Policy was distributed for S. 2248 which stated, “If the Judiciary Committee’s substitute amendment is part of a bill that is presented to the President, the Director of National Intelligence, the Attorney General, and the President’s other senior advisors will recommend that he veto the bill.” Both of these letters illustrate extensive problems with provisions included in the Judiciary substitute, and in very specific terms. These warnings from the very people in the government who are asked to protect us from terrorist threats should be headed. We disregard these warnings at our own peril. I ask unanimous consent that both of these letters are placed in the record.
On numerous occasions, I have voiced very specific concerns with the Judiciary substitute. I want to again list some reasons that illustrate why I oppose this measure.
One phrase that has been expressed on the floor of the Senate is that the Judiciary substitute supposedly “strengthens” oversight. That might sound like a good talking point, but what does it really mean? Does it mean that the Intelligence Committee’s version is weak on oversight? Based on their previous statements, some of my colleagues seem to believe this.
One of my colleagues described the Intelligence Committee’s bill as “a bill of token oversight and weak protections for innocent Americans.” This same colleague also stated that “It really reduces court oversight nearly to the point of symbolism.” Another colleague stated the bill will allow the government to “review more Americans’ communications with less court supervision than ever before.”
The truth is actually much different. The Intelligence Committee’s bill contains extensive new oversight provisions for the FISC and Congress. Let me spell out some provisions that reflect without a shadow of a doubt the expansion of judicial authority in this bill. Although there are many provisions relating to oversight, I want to draw attention to five specific provisions.
I think it should be perfectly clear that it is a fallacy to claim that the Intelligence Committee’s bill does not have adequate oversight. On the contrary, it has a level of oversight that is unprecedented and quite possibly provides the most comprehensive oversight of any historical bill relating to foreign intelligence gathering.
Now we’ve also heard the contention that this bill will provide broad new surveillance authorities. Since I’ve discussed the expanded oversight, I’d like to put up some charts which illustrate a massive expansion of surveillance authority. The problem is that expansion is not in the bill. It doesn’t exist. Despite the phrase being repeated over and over, this bill simply contains no new broad and unprecedented surveillance authorities.
This bill simply accounts for the technological change in international communications from over the air to cables. It’s the bare minimum, but it gives them what they need.
Given the amount of opposition to the Judiciary substitute, I’d like to highlight one of the controversial provisions added in the Judiciary Committee relating to “reverse targeting”.
One of the basic requirements of any FISA modernization proposal is that we shouldn’t have any provisions which could be interpreted as requiring warrants to target a foreign terrorist overseas.
Quite simply, foreign terrorists living overseas should never receive protections provided by the Fourth Amendment to the Constitution.
Reverse targeting refers to the possibility alleged by critics of lawful government surveillance that the government could target a foreign person when the real intention is to target a US Person, thus circumventing the need to get a warrant for the US Person. Reverse targeting has always been unlawful, in order to protect the communications of US Persons.
Now contrary to what most people believe, the legal definition of “US Person” is not limited to US Citizens.
From an intelligence gathering standpoint, reverse targeting makes no sense. From an efficiency standpoint, if the government was interested in targeting an American, it would apply for a warrant to listen to ALL of the American’s conversations, not just his conversations with the terrorist overseas. But let’s not let logic get in the way of a good conspiracy theory.
Even though reverse targeting is already considered unlawful, a provision is included in the Intelligence bill which makes it explicit. This provision is clearly written, and universally supported.
However, the Judiciary Committee passed an amendment by a 10-9 party line vote which altered the clear language of this provision.
Where before the provision said you can’t target a foreign person if the “purpose” is to target a US Person, the new language adds the ambiguous term “significant purpose”.
If this amendment became law, an analyst would now have to ask himself the following question when targeting a terrorist overseas:
Is a “significant purpose” of why I’m targeting this foreign terrorist overseas the fact that the terrorist may call (a) an airline in America to make flight reservations? or (b) a terrorist with a green card living in the USA?
If the answer is yes, then the language in this amendment would require a warrant to listen to that Foreign Terrorist Overseas!
Do foreign terrorists overseas deserve protections from courts in the United States? Of course not.
The ambiguous and unnecessary text of this amendment should not be left up to judicial interpretation. Enactment of this amendment could lead to our analysts seeking warrants when targeting any foreign terrorists, since the analyst may be afraid he or she is otherwise breaking our new law.
Now we should remember that the intelligence committee spent months working on a bipartisan compromise bill. This amendment I’ve been talking about was not in the intelligence bill. So people should assume that the Judiciary Committee spent a great deal of time debating this amendment, right? Wrong! The Judiciary Committee spent 7 minutes debating this amendment before it was adopted on a 10-9 party line vote. Let me repeat that number, 7 minutes!
Now the inclusion of this amendment alone would cause me to vote against this Judiciary substitute. But there are many more provisions that were added via party line vote which I strongly oppose.
The Judiciary committee also adopted an amendment to reduce the sunset from the Intelligence Committee’s bill. There are a few quick things we should realize when talking about sunsets.
It takes a great deal of time to ensure that all of our intelligence agencies and personnel are fully trained in any 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 can tell you clearly what I want, and that’s for our analysts to use lawful tools to keep our families safe! I don’t want to see them unnecessarily diverting their attention by burying their heads in administrative manuals whenever the political winds blow.
After all of the efforts to finally write a bill that provides a legal regime that governs 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 this body has done in the past when amending FISA. Remembering that FISA itself had no sunset, let’s look at how Congress has previously legislated in this area:
Now these statistics speak for themselves. What is so different about this bill? I do realize that it contains massive new oversight 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!
The fact that the Judiciary Committee reduced an already unnecessary sunset is yet another example of why I will oppose the Judiciary substitute amendment.
We all realize that the Judiciary Committee’s bill also removed the bipartisan immunity provision. I have come to this floor on numerous occasions to articulate why this provision is so vital and necessary. I will do so again when we debate the misguided amendment to strike this bipartisan compromise provision.
We are enacting National Security Legislation, and it’s our responsibility to ensure that this bill does not lead to unintended consequences which provide protections to terrorists. I have no doubt that provisions in the Judiciary Committee substitute could significantly harm national security. I’m not willing to take that chance. I’m not willing to support a bill which raises operational hurdles that impede collection of foreign intelligence. I’m not willing to support initiatives that would allow our collections to go dark during the appeal of a ruling from one judge. I’m not willing to support a bill which handcuffs our intelligence agencies. I’m not willing to support a bill which provides excessive and obtrusive oversight that placates fringe political groups at the possible expense of national security.
The stakes are too high. The damage that can be done if we get this wrong is too great.
I will never apologize for voting in favor of provisions which protect national security and civil liberties. During the remainder of this debate, I will continue to support initiatives that properly protect the lives and liberty of Americans. I am hopeful that my colleagues will do the same.
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