Kit Bond

Mr. BOND

Mr. BOND. Mr. President, I strongly urge my colleagues to defeat amendment 3915. It creates a superexclusionary rule on the intelligence community. The Attorney General and the DNI have advised they will recommend a veto. It says: By requiring analysts to go back through relevant databases and exact certain information as well as to determine what other information is derived, this requirement places a tremendous burden, an unsurmountable operational burden on the intelligence community. I agree and yield the remainder of my time to the chairman.

Mr. BOND. Mr. President, I suggest the absence of a quorum.

Mr. BOND. Reserving the right to object, if I could ask the majority leader, I had talked with Senator Feingold and suggested we have 4 minutes equally divided on the next vote so he can have 2 minutes and the chairman and I may each have a minute.

Mr. BOND. Mr. President, I yield 1 minute on our side to the chairman of the committee.

Mr. BOND. Mr. President, there is an explicit bright-line prohibition against reverse targeting in the current bill. As the DNI said, it would be in violation of the fourth amendment. But Senator Feingold wants to replace this test with one that would make analysts engage in mental gymnastics, trying to figure out if ``a significant purpose'' is to target someone inside the United States. This significant purpose throws in an additional concern: The analysts who gather and examine intelligence need clear rules, not an ambiguous significant purpose standard. The adoption of this amendment is seriously detrimental to the operation of our analysts and the DNI and the Attorney General would recommend a veto if it is adopted. We worked hard, and we have a good bipartisan bill that significantly adds to the protections of civil liberties. We need to pass this bill. I join with my colleague from West Virginia, the chairman of the committee, in urging our colleagues to oppose the amendment. I yield the floor.

Mr. BOND. Mr. President, this amendment modifies a provision of the Protect America Act. I think, along with my colleague, the chairman of the committee, it makes a lot of sense. It lays out a process for the FISA Court to conduct a review of a petition from an electronic communication service provider challenging a directive from the Government in review of a petition by the Government to enforce compliance with its directive. Having the court conduct expedited reviews of these petitions, whether from the provider or from the Government, is in everyone's best interest. These questions are essential to be resolved one way or the other for the protection of the private partners, as well as the protection of our national security. As long as challenges of enforcement proceedings remain pending before the court, the intelligence community cannot intercept terrorist communications through that provider. Those are not unreasonable requirements. Rather, it reflects the judgment of this body and the other in the area of national security that important decisions that go to the heart of our intelligence production should be made on an expedited basis. The DNI and the Attorney General advised us they strongly support this amendment because it would ``ensure challenges to directives and petitions to compel compliance with directives are adjudicated in a manner that avoids undue delays in critical intelligence collection.'' We could not agree more. I hope we will be able to accept this amendment. I yield the floor to my distinguished chairman.

Mr. BOND. I move to reconsider the vote.

Mr. BOND. Mr. President, we have made some progress today. We have laid out, through the good work of the leadership of this body, with Senator Reid and Senator McConnell, a means of going forward on Tuesday. We have now had over 2 weeks of debate on FISA. I think not only the fact that everything that could be said pro and con of all the amendments has been said, but I believe we have given everybody a chance to say it. The good news is that when Tuesday comes around, we will have short time agreements and proceed to vote on these critically important amendments, and then we hope cloture and, if cloture is invoked, final passage, with everybody having an opportunity to express themselves. Again, I personally express my thanks to the leadership, to the members of the committee who stood with us and our staff, and I thank our colleagues for letting us come to this position where we see the end in sight.

Mr. BOND

Mr. BOND. Mr. President, reserving the right to object, I think our colleague is going to speak in morning business. But I will be happy to yield to the Senator from Texas.

Mr. BOND. If we can yield to the Senator from Texas for 10 minutes on the bill, the Senator from Idaho for morning business, and then go to a Member on the majority side of the aisle. I believe there is a consensus developing for the unanimous consent request I have proposed.

Mr. BOND. Ten minutes to the Senator from Texas on the FISA bill, 10 minutes in morning business for the Senator from Idaho, and then a member of the majority side will be recognized for whatever he or she wishes to do.

Mr. BOND. No.

Mr. BOND. Mr. President, I yield myself 6 minutes from the opposition to the amendment No. 3979, the Feingold-Webb sequestration. During yesterday's sessions and prior sessions, there have been, regrettably, a number of inaccurate statements about the amendments we debated. Several of these amendments go to the very heart and strike at the very heart of foreign targeting. It is not an understatement to say that if they are adopted, they could shut down our intelligence collection and cause irreparable damage to our national security. So I am compelled to set the record straight. Working with my colleague and good friend, the chairman of the committee, Senator Rockefeller, we want our colleagues to know what impact these amendments have. We have made great progress in the Senate Intelligence Committee on the FISA Amendments Act of 2008 in providing additional protections, but we did so working with the intelligence community to make sure the measures we put in the bill would actually work. Now, the first amendment we debated was amendment No. 3979, the sequestration amendment supported by and sponsored by Senators Feingold and Webb. In explaining this amendment, supporters claimed the Protect America Act was ``sold repeatedly'' as a way to collect foreign-to- foreign communications without a court order and this amendment allows this collection. We saw from the House RESTORE Act, which the DNI has told us--the Director of National Intelligence, whom I will refer to as the DNI--and from the debate on the Protect America Act that the focus on foreign-to-foreign communications is misplaced. The Protect America Act was intended to allow foreign targeting, just like this bill and for good reason. We cannot tell if a foreign terrorist is going to be calling or communicating with another foreign terrorist whether in some other country or whether some of that communication may occasionally come to the United States, and there is no way to tell. So it does no good to give the intelligence community authority to collect only foreign-to-foreign communication. You can't tell. That means you can't collect on any without getting a FISA Court or a FISC order. That was an impossible burden that the FISC judges told us overwhelmed and shut down their operations and did not protect American citizens. Yet we were told yesterday this amendment will not damage or slow down collection. This amendment will not just slow down collection; it will stop it. It will stop it. In the words of one intelligence official, it would ``devastate our operations.'' Now, our bipartisan bill gives the intelligence community the ability to target terrorists, foreign terrorists overseas. That targeting is not, as has been suggested on the other side, ``dragnet surveillance.'' Rather, the intelligence community will be acquiring communications of foreign terrorists, spies, and others who seek to do us harm. That is not a dragnet; that is targeted. But if this amendment were to be adopted, its unreasonable limitations will prevent the intelligence community even from beginning the collection. Now, I argued yesterday this amendment would prevent the intelligence community from intercepting the communications of Osama bin Laden with somebody in the United States. The Senator from Wisconsin disagreed, calling my argument questionable and claiming the amendment in no way hampers the ability to fight al-Qaida. That is not true. I find it interesting because that is not what his amendment says. First, the intelligence community can't even start the collection because there is no way to know if a terrorist, including bin Laden, is going to call or be called by a person in the United States. Second, from the amendment, page 2, lines 10 to 16: Such communications may be acquired if there is reason to believe that the communication concerns international terrorist activities directed against the United States, or activities in preparation therefor. That means if bin Laden were planning an attack against the United Kingdom or against our foreign military bases or our foreign embassies abroad and calls into the United States to talk with an associate, we could not capture that call and protect our troops, protect our citizens, protect our officers overseas, because under the terms of the amendment, it does not concern activities directed against the United States. Not only is the limitation dangerous, it is unwise, unhelpful, and could lead to significant intelligence shortfalls. Another dangerous aspect of the amendment is that it would foreclose the collection of foreign intelligence relating to nonterrorist threats. Our Nation faces daily threats, for example, from the proliferation of weapons of mass destruction. I have an amendment that deals with this issue specifically. What about North Korea, Iran, and Syria? Under this amendment, none of that information could be collected if the communication was to or from the United States. That is a limitation that should make all of us uncomfortable. There is no basis for it, it is unreasonable, and it could lead our country into severe jeopardy. The DNI and the Attorney General agree with my reading of the amendment. Yesterday, we received a letter from them expressing their views about these amendments. The DNI and Attorney General stated that if this amendment is part of the bill presented to the President, they would recommend a veto. They wrote this in their letter: This amendment would have a devastating impact on foreign intelligence surveillance operations; it is unsound as a matter of policy; its provisions would be inordinately difficult to implement; and thus it is unacceptable. Ironically, this amendment is being advertised as the best way to protect America's privacy. But a fundamental problem with the amendment is that we can never know ahead of time what a communication says. Let's think it through. In order to figure out whether the communication concerns international terrorism, for example, an analyst will have to review the content of it. That actually results in more of an invasion of privacy than would ever occur under the standard minimization procedures that NSA uses every day. That makes no sense if we are trying to protect privacy. Mr. President, it is news to me that the Intelligence Committee bill, as claimed on the other side, has no judicial involvement and no judicial oversight. I have said it before. This bill has more judicial oversight and involvement in foreign intelligence surveillance than ever before. There is court review and approval of the joint certification by the Attorney General and the DNI and of the targeting minimization procedures. If the court finds any deficiency in these documents, the Government must correct it or cease the acquisition. That is not an empty oversight. The Intelligence Committee bill doesn't stop there. We took tremendous care to make sure there were specific protections for Americans' privacy in the bill. I suggest all Members look closely at these protections: express prohibitions against reverse targeting, against targeting persons inside the United States without a court order, against conducting any acquisition that doesn't comply with the fourth amendment. This bill goes further than ever before in ensuring that there are protections for Americans in the area of foreign targeting. We heard the tired accusation that this bill will allow the intelligence community to intercept communications of anyone; that it gives ``unrestrained access to communications of every American.'' That is just plain wrong. Communications of U.S. persons will be intercepted only if those persons are talking to foreign terrorists or spies. And because of the minimization procedures, only those specific communications will be intercepted, and if they don't contain foreign intelligence value, then they will be minimized or suppressed. According to the Senator from Wisconsin, this amendment is necessary because the minimization procedures in FISA are ``quite weak'' and inadequate. I am sure the FISA Court judges who have reviewed and approved these procedures would appreciate the implication that they are doing a bad job of protecting the privacy of Americans. Ironically, it is that same court that, under the Senator's amendment, will control the Government's access and use of incidental communications. Mr. President, I reserve the remainder of our time and yield the floor.

Mr. BOND. I am happy to yield that time to the chairman.

Mr. BOND. Mr. President, I yield myself 3 minutes on amendment No. 3913. It is interesting to hear that the proponent of this amendment thinks the letter laying out the reasons against the amendment are reasons for it. That is a trick I have not learned, to say that when somebody says that the reverse targeting amendment would make it impossible when that person and those people really represent the agency responsible and the oversight body of the Department of Justice somehow makes their case. I also call the attention of my colleagues to a statement from the Civil Liberties and Privacy Office of the Office of the Director of National Intelligence. In that statement, the Civil Liberties and Privacy Office says: Concerns have been raised that the PAA could result in the interception of U.S. person communications. As explained in the Department of Justice September 14 letter, and in a letter by the DNI's Civil Liberties Protection Officer dated September 17, 2007, U.S. persons' privacy interests are protected through ``minimization procedures,'' which must meet FISA's statutory definition. In addition, ``reverse targeting'' is implicitly prohibited under existing law. As a side note, Mr. President, this measure explicitly prohibits reverse targeting, but the Privacy Office goes on to say: The SSCI bill in addition requires review of minimization procedures and explicitly prohibits reverse targeting. In addition, the bill provides the FISA court with ongoing access to compliance reports and information about U.S. person disseminations and communications, and the explicit authority to correct deficiencies in procedures. The bill also requires annual reviews of U.S. person disseminations and communications and extensive reports to Congress. This is a clear statutory framework. As a practical matter, if there was a desire to target someone in the United States, if that person was thought to have foreign intelligence information and acting as an agent of a foreign power, an officer, or employee, a FISA Court order is the simplest way to do it. Nobody has explained how you can target a foreign terrorist to get collections on a particular U.S. person unless that person is engaged in a terrorist activity, and you have to target an overseas person who has foreign intelligence information, and that is the legitimate reason for making the collection against the foreign target. No terrorist information. The information is minimized and not used. I yield the floor and reserve the remainder of the time.

Mr. BOND. Mr. President, I suggest the absence of a quorum.

Mr. BOND. Mr. President, we have discussed this issue before on the floor. I urge my colleagues to vote against this amendment. As I have stated previously, the current bill, the Protect America Act, had a 6- month sunset on it only because we were not able to bring a full, complete FISA modernization bill to the floor, given the failure of Congress to act. We had been requested in April, May, June, and July to change the law. This is a bill that should establish a permanent operating authority for the intelligence community and the private partners who work with it. As part of the compromise we reached in passing the bill, I did not believe we should have a sunset, but we agreed on a 6-year sunset. That was part of the deal. The 6-year sunset at least gives us certainty over the 6 years in time, that both the intelligence agencies, our private partners, and our allies abroad who depend upon us would have time to make this system work. The problem we face is that any sunset withholds from our intelligence professionals and the private partners the certainty and the permanence they need to protect Americans from terrorism and other threats to national security. Attorney General Mukasey has said there are no fatwahs with limitations by the terrorist leaders who seek to do us harm. They put out orders to keep trying to kill us, and these are not going to go away. There should be no sunset on this bill. I disagree very strongly with my friend from Maryland that Congress is an important part of this. We passed a good bill that adds far more protections than Americans have ever had in intelligence collection. This bill is a good bill, but I can assure him that we have a strong bipartisan committee and a strong staff that will continue to oversee, supervise, and watch the surveillance to make sure it works. If we find it does not work, we should not wait for a 4-year sunset or a 6-year sunset. We should make those changes when they are needed. We can see how long we have had to fight to get this authorization through. There was no action from the majority from April, May or June, until the very end of July. We put this bill out on the floor in October. We could not get the bill up in December because of filibusters. We had to get another 15-day extension so it would not expire. We can act on the bill any time we need, but we cannot deprive our partners, our intelligence community, and our allies the protection if Congress cannot work. I yield time to the distinguished chairman of the committee.

Mr. BOND. Mr. President, how much time do I have remaining?

Mr. BOND. Mr. President, this is a great nation because we have kept our country safe. We have kept our country safe, and we are working very closely with the intelligence community. That is why we have a good bill. The intelligence community says we must have the certainty at least of 6 years. I wanted to see none. That is why we came to an agreement in the Intelligence Committee and a 13-to-2 vote said we should have this bill with a 6-year sunset. We have a solid bipartisan product addressing civil liberties concerns, while making sure the intelligence community has the tools and authorities it needs to keep us safe. As I said, this was an important part of our compromise to get the bill through. Our intelligence collectors and troops on the battlefield need certainty, not rules that will expire in 4 years. That is why both the Director of National Intelligence and the Attorney General strongly oppose shortening the 6-year sunset in the bill. I urge my colleagues to join me in opposing this amendment.

Mr. BOND. Mr. President, there is a 60-vote agreement on this.

Mr. BOND. Madam President, with the time so graciously allowed us by the proponents of this measure--and I know it was not intentional--I will only say a couple of quick things. No. 1, the courts are not precluded. The underlying bill, the bipartisan bill, permits lawsuits to go forward against the Government and the Government employees. No. 2, there was notification of the Big Eight--the ranking members and chairmen of the Intelligence Committees and the leaders--when this program was started. No. 3, article 2 does give the President the power to exercise foreign intelligence collections. I would say to my colleague who has been on the Intelligence Committee, if he doesn't think Congress has been effective in overseeing programs, he has not seen the committee that is chaired by Senator Rockefeller and on which I ride shotgun with him. The Judiciary Committee--if it was not advised, the Judiciary Committee's primary responsibility is not intelligence. That is the Intelligence Committee. We get the sensitive information. We spend a great deal of time. We have reviewed it. We believe it is a disaster for our intelligence collection to have substitution because we would see our most sensitive means of collection exposed. The private parties that might have participated would be put through tremendous economic and commercial harm and subjected potentially to harassment, and perhaps even terrorist attacks, for having worked with us. Therefore, I strongly urge that our colleagues defeat amendment No. 3927, the Specter-Whitehouse substitution amendment.

Mr. BOND

Mr. BOND. Mr. President, I have no intention of continuing this discussion. These are amendments, I hope, will be accepted. Chairman Rockefeller and I will describe them later. I ask that our time be reserved, and I defer to Members on the other side who may wish to go into morning business.

Mr. BOND. Mr. President, I am sorry I was not here for all of my colleague's descriptions of his two amendments. But let me make one thing clear. What he is laying out is a scenario that does not exist. He is raising all kinds of concerns that are dealt with in the underlying bill. They are dealt with by the Constitution of the United States. They were dealt with by the Protect America Act. I can assure the American public that we are not collecting all of the communications they send overseas and reading them and listening to them and using them in some way that violates the fourth amendment or the provisions of these two measures. Before we actually have a vote on these measures, we will talk about them more in detail. I think he raised the reverse targeting amendment first. Let me be clear and explain that you cannot target a person inside the United States without a court order. All acquisitions must comply with the fourth amendment. Last week we agreed to an amendment offered by Senator Kennedy which ensures that the authorities in this bill will not be used to acquire communications where the sender and all intended recipients are known to be in the United States. That has to be with a FISA Court order if you are targeting somebody in the United States. This is an explicit, bright-line prohibition against reverse targeting in the current bill. If one would look at page 6 of the statute, section 703(b)(2), I will read it for you. It says: An acquisition authorized under subsection (a) may not intentionally target a person reasonably believed to be located outside the United States if the purpose of such acquisition is to target a particular known person reasonably believed to be in the United States except in accordance with title I or title III. It does not get much clearer than that. So if the purpose in targeting someone outside the United States is actually to target a person inside the United States, you cannot use the authorities under this bill. It is clear. That is what the DNI stated his purpose was; that is what the bill provides. You have to get a FISA Court order if you are targeting somebody. You cannot do it by the back door. Now, I heard yesterday some far-out explanations that a family whose child goes overseas to go to school, we would be listening in on those conversations. That is absolutely nonsense. If that is a United States person, we could not even target that United States person abroad, and we certainly do not target someone in the United States without a court order. We have provisions to assure that the United States person who goes overseas cannot be targeted without an application to the FISA Court. Quite simply put, that does not happen. Now, if somebody is calling a suspected terrorist overseas, one on whom we have initiated collection because of intelligence sources certified by the Attorney General and the Director of National Intelligence, this person has significant terrorist information, significant intelligence information, foreign intelligence information, if one were to call that number, then it is possible, it is likely, and we would expect that they would find out what is in that call. If it is an innocent call, if it has nothing to do with terrorist activity, it is immediately suppressed; ``minimized'' is the term. They do not even record the name of the United States person. But when calls come from outside the United States into the United States from a person, a known terrorist abroad, or when they initiate the call, someone from the United States does, then what we must do is find out if they are talking about planned terrorist activity in the United States. That is the most important collection we can make. We have lots of important information targeting foreign terrorists, suspected terrorists, foreign intelligence targets overseas that is useful to our allies in protecting their countries. There are lots of instances where we have done that or when they are--and that does not require minimization, and it should not. But the information that is used is only that information which applies to a direct threat, a terrorist threat, or other significant foreign intelligence value. If a United States person is involved in that, if there is an involvement of the terror plot in the United States or elsewhere, then that information would be accepted, and if it is necessary to collect further against that American citizen or United States person, then they have to go through the normal procedure. Probably the FBI would get their normal search warrant and go after that person and determine what role, if any, he or she has in carrying out terrorist activity. So in addition to the bright-line test, there is clear oversight authority. There is oversight exercised by the supervisors at NSA, by the inspector general, by the Department of Justice, whose lawyers oversee it, and by our Intelligence Committee to make sure that the prohibitions on reverse targeting are being observed. If this proposal were to be accepted, the uncertainty, the operational uncertainty of determining what a purpose is in reverse targeting would make this an impossible situation for an analyst to observe and to make that determination. There is a clear prohibition against reverse targeting. The other amendment which he brought up, 3912, is on bulk collection. The bipartisan Intelligence bill contains numerous provisions to ensure that acquisitions targeting foreign terrorists overseas--that is foreign terrorists overseas--comply with the fourth amendment and follow court-approved targeting. It gives clear protection, as I said earlier, against reverse targeting. The amendment that has been proposed under 3912 has some very negative consequences for protecting our troops abroad. This amendment, for example, would prevent the intelligence community from targeting a particular group of buildings or geographic area where, for example, terrorist activity is known to be occurring, and preventing them from collecting signals intelligence prior to operations by our Armed Forces. If there is an area which has significant terrorist activity, to say we cannot collect all of the communications coming out of that area to identify who the terrorists might be, whether there are innocent persons involved before our military goes in, does not make any sense, because if we send our military in, they are going in and probably going to be using significant lethal force. Had this bulk collection provision been in place, it would have prevented our troops from conducting surveillance in Fallujah, for example, prior to their military operations. The details on this are classified. We can provide more information in a secure setting. But this amendment, according to the Director of National Intelligence and the Attorney General, ``could have serious consequences on our ability to collect necessary foreign intelligence information, including information vital to conducting military operations abroad and protecting the lives of our servicemembers, and it is unacceptable.'' I agree with them because I have had the opportunity to learn how the system operates. My colleague from Wisconsin has. I believe it is very clear from the information we have received and the knowledge we have about it that the evils which he purports to address are evils that do not exist. I strongly urge my colleagues to oppose both amendments. I reserve my time.

Mr. BOND. Mr. President, there are quite a few things I disagree with that my colleague from Wisconsin has brought up. No. 1, he said the administration instituted an illegal wiretapping program. That is not true. That is wrong. I reviewed the documents on which they based it-- article II, and the authorization for use of military force. That was not an illegal effort. But that is a debate for another time. The administration did advise the leaders of Congress what they were going to do. The big eight were advised, and they did not deem any legislation advisable at the time. Secondly, he gives me too much credit in saying it is only the word of one Senator that his amendments are unworkable and unnecessary. This was brought up and debated in the Intelligence Committee. We spend our time overseeing intelligence collection. It was not adopted there. It was withdrawn. If my colleague has any evidence that there are any violations in reverse targeting or bulk collection of the fourth amendment of the Constitution or other violation of privacy rights, then I suggest he bring them up in our Intelligence Committee in closed session where we can debate all the activities that are going on. I assume he has been out to NSA to see how it operates. He has been in and had the opportunity to question leaders of the intelligence community. He says there is a total lack of substance. I have to say there is a total lack of substance to the allegations he makes. There are legitimate concerns which we address in this bill by specifically prohibiting reverse targeting. It is specifically prohibited in this bill. I have to say the people who run the program are the ones who have told us the additional bells and whistles he wants to put on for no reason or even reasonable prospect of violations would make it impossible to carry out the business of collection on foreign terrorists with potential activities in the United States. Again, there will be others who will discuss this. But it is not the word of one Senator. It is the word of a majority of the Intelligence Committee, and it is the word of the intelligence community itself, backed up by the Attorney General, that this is unwise, unnecessary, that these amendments would significantly hamper the ability of the intelligence community to conduct its operations. I reserve the remainder of my time.

Mr. BOND. I ask unanimous consent that reading of the amendments be dispensed with.