Issues > FISA Reauthorization
The Foreign Intelligence Surveillance Act [FISA] of 1978 was enacted in response both to the Committee to Study Government Operations with Respect to Intelligence Activities [otherwise known as "the Church Committee"] revelations regarding past abuses of electronic surveillance for national security purposes and to the somewhat uncertain state of the law on the subject. The law provided a statutory framework for collection of foreign intelligence information through the use of electronic surveillance of communications of foreign powers or agents of foreign powers, as those terms were defined in the act. FISA has been amended repeatedly in the intervening years in an effort to address changing circumstances. Then, as now, the Congress sought to strike a balance between national security interests and civil liberties.
I have been a longstanding supporter of efforts to provide our intelligence and law enforcement agencies with all the necessary tools they need to monitor potential enemies, both foreign and domestic, with terrorist intentions against the United States. While we must improve and modernize FISA to ensure our intelligence services are provided with the necessary surveillance authority to protect our nation, we must also protect our citizens’ most basic expectation of privacy and fundamental civil liberties that are guaranteed by our constitution. Specifically, the Fourth Amendment to the U.S. Constitution states plainly:
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The current level of complexity and sophistication of global communications technology can provide both increased opportunities for lawful private communications and public debate, and increased means for communications between those engaged in criminal wrongdoing or plans for actions which pose a threat to U.S. national security. Electronic surveillance can provide vital information needed to identify those who are acting or preparing to act against U.S. interests for the benefit of foreign powers, including those engaged in espionage, sabotage, or terrorist acts or who otherwise pose a threat to our nation or citizens, and to uncover their plans or activities. This investigative technique, by its nature, however, can intrude into the privacy of both the target of the surveillance and those with whom the target communicates. It also has the potential of chilling political discussion and lawful dissent.
The congressional leadership spent many months in 2007 negotiating a reauthorization of the FISA law with the Bush Administration and Admiral Michael McConnell, Director of National Intelligence [DNI]. Both Democrats and Republicans agree that we need to update the FISA law to incorporate new technologies, such as cell phones and email, which did not exist when the original FISA law was written. During negotiations, Director McConnell told the congressional leadership that he supported several technical changes to the draft reauthorization that: allowed foreign targets to be added to a "basket warrant" after the warrant was approved; expanded the application of the bill from only intelligence "relating to terrorism" to "all foreign intelligence," and; eliminated the requirement that the FISA court adjudicate how recurring communications into the United States from foreign targets would be handled.
Following these improvements to the draft bill, Admiral McConnell told congressional leadership that with these changes, he could support the bill because it would "significantly enhance America’s security." I voted for the final version of this legislation, H.R. 3356, the Improving Foreign Intelligence Surveillance to Defend the Nation and the Constitution Act of 2007. Even though a majority supported H.R. 3356 by a vote of 218-207, the bill did not pass as it was considered under suspension of the rules [2/3 vote to approve required].
The Senate passed a much different version of FISA legislation, S. 1927, the Protect America Act [PAA] sponsored by Senators Mitch McConnell and Kit Bond. This legislation greatly exceeded what the Bush Administration requested in legislation, providing a virtual blank check for intelligence agencies to eavesdrop, including on the conversations of U.S. citizens, with essentially no oversight by the FISA court or Congress. PAA allows the U.S. Attorney General to decide when to eavesdrop on any e-mail message or phone call without a warrant, so long as the one of the people communicating is "reasonably believed" to be outside the country. Proponents of S. 1927 pointed out that the bill would expire 180 days after enactment. This sunset is artificial, however, as the orders in effect at the end of the 180 days could last for up to an additional year with no oversight. For these reasons, I voted against S. 1927 when the House considered the measure on August 4, 2007. The House approved the legislation by a vote of 227-183, and the President signed it into law on August 5, 2007.
In preparation for the expiration of the PAA, Chairmen John Conyers and Silvestre Reyes introduced H.R. 3773, the Responsible Electronic Surveillance That is Overseen, Reviewed, and Effective [RESTORE] Act, on October 9, 2007. The House Judiciary Committee and House Select Intelligence Committee both approved the legislation a few days later. This bill, which the House approved with my support by a vote of 227 - 189, updates FISA to provide meaningful and flexible surveillance tools for the intelligence community, while protecting the constitutional rights of Americans whose communications may be intercepted in the process. It is also important to note that the RESTORE Act would not provide any retroactive telecommunications immunity.
The Senate was also working on legislation to amend and reauthorize FISA, including S. 2248, the FISA Amendment Act, which was approved by the Senate Select Committee on Intelligence on October 25, 2007, and passed by the Senate on February 12, 2008, by a vote of 68 - 29. This bill, known as the "Rockefeller-Bond" bill, is supported by the Bush Administration and includes a retroactive telecommunications immunity provision.
On January 28, 2008, I signed a letter sponsored by Rep. Leonard Boswell [D-IA] to Speaker Nancy Pelosi expressing my support for the Rockefeller-Bond FISA legislation, which would:
- Require individualized warrants for surveillance of U.S. citizens living or traveling abroad;
- Provide enhanced oversight by Congress of surveillance laws and procedures;
- Mandates review by FISA Court of minimization procedures; and
- Provide targeted immunity for carriers that participated in anti-terrorism surveillance programs.
The letter also stated that we should not "pass a long-term extension of the Protect America Act", which I voted against in August 2007. I strongly believe the PAA needs to be improved to ensure U.S. citizens’ civil liberties enumerated in the Constitution are fully protected.
The PAA was originally set to expire on February 1, 2008, so on January 29, 2008, both the House and the Senate approved H.R. 5104, a 15-day extension to the PAA sunset to allow further time to consider, pass, and go to conference on proposed legislation to amend FISA, while ensuring that the intelligence community would have the authority it needed in the intervening period. The President signed the 15-day extension into law on January 31, 2008.
On February 13, 2008, the House rejected H.R. 5349, which would have extended the sunset provision an additional 21 days. I supported the 21-day extension to give the House and the Senate additional time to work out the differences between their two approaches - the RESTORE Act and the Rockefeller-Bond FISA bill, respectively. I was disappointed that President Bush issued a veto threat on the short-term extension with claims that Congress somehow had sufficient time to negotiate a final legislative FISA update.
Even though the Protect America Act technically expired on February 16, 2008, due to opposition from the Administration, our intelligence community will not "go dark" as some have suggested. The authorizations issued under the PAA remain in effect for up to one full year upon enactment. Additionally, the intelligence community, including the NSA and the FBI, can still use its authority under Executive Order 12333 to conduct surveillance abroad of any known or suspected terrorist. This surveillance can begin immediately. There is no requirement for a warrant. There is no requirement for probable cause. Most of NSA’s collection occurs under this authority.
On March 14, 2008, the House considered a new version of H.R. 3773, renamed the FISA Amendments Act [FAA]. The House leadership made several concessions on provisions in the RESTORE Act, and these amendments made to the Senate-approved version of H.R. 3773 were approved by the House by a vote of 213-197. More work needs to be done, but I voted in favor of this new FISA legislation because it is a step in the right direction towards a final compromise FISA bill. The House-approved FAA strikes a good balance between authorizing the necessary intelligence capabilities and protecting Americans’ civil liberties. It is disappointing that the Bush Administration and the congressional Republican leadership has refused to participate in negotiations, but I am hopeful that this new House-approved FISA legislation will lead to a final compromise that will provide our intelligence and law enforcement agencies with the tools required to monitor potential agents with terrorist intentions against the United States.
As a co-equal branch of government, it is necessary that Congress fully understand how the Bush Administration executes intelligence activities in order to exercise proper oversight. I look forward to working with my colleagues in Congress to ensure that law enforcement agencies have strong, flexible tools to intercept the communications of terrorists, while at the same time protect our citizens’ civil liberties from unwarranted government probing.
Many have expressed concerns about including retroactive immunity protections in any FISA update for telecommunications companies that assisted the federal government after September 11, 2001. It is important to note, however, that current U.S. law [18 U.S.C. § 2511(2)(a)] bars suit in any court against any provider of wire or electronic communication service, its officers, employees, or agents, landlord, custodian, or other specified person for providing information, facilities, or assistance in accordance with the terms of a court order, statutory authorization, or a certification in writing by the Attorney General or a person specified under 18 U.S.C. § 2518(7) that no warrant or court order is required by law, that all statutory requirements have been met, and that the specified assistance is required.
Proponents of retroactive immunity argue that the cooperation of such providers is critical to the government's capacity to pursue electronic surveillance to gather foreign intelligence information, and is also essential for collection of communications records for pattern analysis. If the telecommunication providers who responded to the government's requests or demands for assistance did so in good faith reliance upon assertions by the government that the demand was lawful and that a court order was not required, it may be argued that the providers should be immunized from ill effects flowing from such good faith reliance. Some have argued that the unique factual context militates in favor of such relief from liability, to the extent those who responded to the government's requests for assistance in the wake of 9/11 did so in response to government assertions that their cooperation was necessary to protect against further attacks.
Key members of the 9/11 Commission have voiced their support for retroactive immunity. 9/11 Commission Co-Chair and former Congressman Lee Hamilton wrote that: "To the extent that companies helped the government, they were acting out of a sense of patriotic duty and in the belief that their actions were legal. Dragging them through litigation would set a bad precedent. It would deter companies and private citizens from helping in future emergencies . . . ." 9/11 Commissioner and former Senator Bob Kerrey affirmed that sentiment when he stated: "We wrote in the 9/11 Commission report that ‘unity of purpose and unity of effort are the way that we will defeat this enemy and make America safer for our children and our grandchildren.’ We cannot hope to achieve such unity of effort if on the one hand we call upon private industry to aid us in this fight, and on the other allow them to be sued for their good-faith efforts to help."
During the Senate’s consideration of S. 2248, Senator Arlen Specter [R-PA] offered an amendment that would have substituted the federal government as the defendant in lawsuits against telecommunications companies alleged to have participated in the NSA’s warrantless surveillance program. I support Specter’s effort to balance the position the Bush Administration put the telecommunications industry in with alleged demands for immediate cooperation shortly after 9/11 against the civil liberties protected by our Constitution. If any citizen’s civil liberties were infringed by a warrantless surveillance program authorized by the President, the federal government agents should be held responsible and not companies assisting the government in a time of great uncertainty and fear of possible additional terrorist attacks like 9/11. I was disappointed that Senator Specter’s amendment failed by a vote of 30-68.
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