Kit Bond

Mr. BOND

Mr. BOND. That is correct.

Mr. BOND. Mr. President, I say to my friend from Virginia, in April of 2007, the DNI submitted his request to modernize FISA to Congress, to our committee, and it included a request for full liability for all persons, including Government officials who had allegedly participated in the President's Terrorist Surveillance Program. As my colleague has stated, the committee passed this bill by a 13- to-2 bipartisan vote. It included civil liability protection for those providers that allegedly assisted with the TSP. The protection was not extended to Government officials or to criminal prosecution. We did not seal off all potential liability of anyone who may have acted criminally--that would be up to the Department of Justice to determine--or Government officials who are named, I believe, in seven pending lawsuits.

Mr. BOND. Mr. President, that is a very serious question because if those lawsuits should continue, either directly against carriers alleged to have participated or substitution or indemnification, No. 1, the identities of the providers could be revealed which would compromise our intelligence sources and methods. No. 2, the providers would be far less willing to cooperate with legitimate requests for assistance in the future, thus crippling our intelligence collection. Why is this? Quite frankly, because this would have a huge damage to their business reputations. They have already been accused falsely of all sorts of things that have raised questions that are reflected in damage to the value of the shareholders of the company and potentially bring great risk to the employees of those corporations and their facilities. These lawsuits would occur not only in the United States but even more likely they would occur overseas, and there could be real personal danger if the companies are confirmed as assisting the Government's fight against terrorism. Their facilities, their personnel could be at risk of terrorist targeting or other vigilante actions.

Mr. BOND. Mr. President, as I indicated, the dangers to the providers would be as great under substitution as if they were sued directly. While the providers might not be parties to the litigation, under the amendment offered by Senators Specter and Whitehouse, discovery would be allowed to proceed against the providers, and this puts them at the same risk of disclosure as allowing the litigation to proceed directly against them. That is one of the most sensitive intelligence programs in our history. The intelligence community has done a thorough bipartisan review of the providers' conduct, and we in the committee feel we cannot risk our intelligence sources and methods by allowing litigation to continue and by allowing the potential of significant damage to those companies and their shareholders who may be widows and orphans and certainly members whose pensions may be invested in shares of those companies.

Mr. BOND. Mr. President, that is why we have an Intelligence Committee. The Intelligence Committee concluded on a bipartisan basis that they acted in good faith. There is no need for the FISC to duplicate the work. The FISC was set up to issue orders on individual targets for domestic collection. We expanded their responsibilities. The court is not set up and was not set up for protected en banc litigation. The amendment offered by Senator Feinstein would allow parties to litigate the good-faith providers. I see my time has expired. I believe the Senator from Virginia has sought time, and I see one of my colleagues on the other side has sought time, so I will yield to them for their comments, and I ask unanimous consent that I be recognized at the end of the remarks of these two colleagues.

Mr. BOND

Mr. BOND. Madam President, I believe my distinguished colleague from Alabama has some comments and questions he wishes to raise, so I ask that he be recognized.

Mr. BOND

Mr. BOND. Madam President, to respond to my colleague, it would be a pleasure. Let's go through the record. In April of 2007, the Director of National Intelligence, or the DNI, submitted a request to update FISA, the Foreign Intelligence Surveillance, law to Congress. The draft legislation that he sent to Congress was not a political or partisan piece of legislation, it was absolutely essential because technology has changed and the old FISA law was prohibiting our agencies from having the ability to go up on a foreign target without getting an order of the FISA Court, which totally gridlocked that court. But what he sent up was the result of a year of negotiations and coordination among civil servants in the Department of Justice and our intelligence agencies that will actually have to implement the system the legislation will cover. So the people who are running it set up the recommendation. Soon after that, there was a court order issued that resulted in these significant gaps. That ruling brought important parts of the system we use to monitor terrorists overseas to a halt. It created dangerous gaps in our ability to collect. The need to pass a permanent legislative fix for FISA suddenly became much more urgent, and the DNI came before the Intelligence Committee in May of 2007 to explain why it was needed and to say how urgent it was.

Mr. BOND. That is correct. As the DNI explained to Congress in a closed-door briefing for all Senators in July of 2007, the FISC ruling came at a time of heightened concern in our intelligence agencies that terrorist attacks against the homelands of our allies might be in the works. The DNI explained in that briefing in no uncertain terms the urgent need to update FISA and close the intelligence gaps caused by the ruling so that our intelligence agencies would have the tools they need to detect terrorist plots against our homeland or our troops and allies overseas.

Mr. BOND. Mr. President, yes. I learned at the time why it was so essential, and I would say there is a letter from the DNI, a classified letter, which is available in our Intelligence Committee offices or in S-407 for Senators to read that says what the intelligence community was able to accomplish after the Protect America Act was passed on August 3, 4, and 5 of last year, which would not have been possible had we not changed the FISA law. So there are clear examples set forth in a classified letter that I invite all my colleagues to review. I would be happy to have them review it.

Mr. BOND. First, I am not a big fan of sunsets. If the Intelligence Committee does its job--and with Chairman Rockefeller leading and my role in it, I can assure you that we are looking at all of these laws, all of these practices, and authorizing legislation of the intelligence community to see if it is working, to see if it is working within proper bonds. But I believe that. And I believe the Attorney General was correct when he said we should not sunset these laws because there are no sunsets on our enemies' fatwas. That came from our Attorney General. But we did agree to a 6-month sunset because Senate Democrats assured me that 6 months was long enough to take a systematic look at the law and come up with a strong, permanent solution. They believed we needed additional protections that had not existed in the original FISA law. It did not include one of the key elements that the DNI requested in his original April 2007 request. We had to pass a shortened version because of the timeline. But given that we had that sunset, our Intelligence Committee worked very hard, after the passage of the PAA, until we were able to pass on a bipartisan basis, by 13 to 2, a strong bill that adds significant new protections for Americans and which permits the DNI to conduct the program as he thinks it needs to be conducted to assure that our country is safe.

Mr. BOND. That is kind of an obvious question that my colleague has asked. The following month, the Judiciary Committee of the Senate put out a bill on a straight party-line vote, a partisan substitute which was drafted without getting the effective input of the intelligence community, the Department of Justice. And the DNI said it absolutely would not work, so he couldn't support it. So a month after that, on December 17, the distinguished majority leader brought the bill to the Senate floor, thought it very timely to get it done in December, since we have a February 1 expiration date. But several members of the majority party filibustered the bill or actually they phoned in their objections, their filibusters, from campaign stops. And it could not go forward. Then the Senate didn't get around to taking up FISA again until over a month later, on January 23. We only returned to FISA after taking up the Indian health legislation. I don't diminish the importance of that measure, but it might have waited until after we finished FISA.

Mr. BOND

Mr. BOND. Mr. President, I thank my colleague from Georgia. I thought maybe, if anybody is still listening, we would talk a little bit about the intent of the Foreign Intelligence Surveillance Act. I hope maybe we can clarify some of the misunderstandings. First, I believe that when the distinguished Senator from California, a valued member of the committee, Mrs. Feinstein, spoke on the origins of FISA, she correctly noted that it was created, at least in part, in response to the disclosed abuses of domestic national security surveillance. However, as the legislative history makes clear, FISA was never intended to regulate the acquisition of the contents of international or foreign communications where the contents are acquired by intentionally targeting a particular known U.S. person who is in the United States. The legislative history states: This bill does not afford protections to U.S. persons who are abroad, nor does it regulate the acquisition of the contents of international communications of U.S. persons who are in the United States, where the contents are acquired unintentionally. The Committee does not believe this bill is the appropriate vehicle for addressing this area. The standards and procedures for overseas surveillance may have to be different than those provided in this bill for electronic surveillance within the United States, or targeted against U.S. persons who are in the United States. In essence, then, FISA, as originally drafted, was a domestic foreign intelligence surveillance act. Congress was concerned about targeting persons inside the United States with interceptions conducted inside the United States. The FISA Act amendments legislation we are considering today is a very different animal, and it could be better characterized as an international foreign intelligence surveillance act. The bill is concerned mainly with targeting persons outside the United States when interception might occur inside the United States. What do I mean by that? The legislation will regulate how the President may conduct electronic surveillance of foreign terrorists operating in foreign countries when their communications just happen to pass through the United States on wire communications networks. This strange interference with the intelligence community's and, indeed, the President's authority to conduct foreign intelligence activities appears to arise from an overabundant concern about the ``rights'' of persons in the United States whose communications are incidentally collected when they talk to terrorists overseas. It is odd that we are creating a new law in this area that departs from the original construct of FISA because in the international surveillance realm, there have been no significant abuses of the intelligence community's ability to collect overseas foreign intelligence. Unfortunately, two factors have compelled us to make these changes to FISA. First, we need to ensure that the critical intelligence gaps identified by the DNI last year do not reappear. The Protect America Act effectively closed those gaps last summer, but there was bipartisan agreement that we could improve on its provisions, especially in the area of carrier liability protection, and that is what our committee did. Second, this legislation is also required because we must address the practical reality that electronic communications service providers are now insisting on a formal process to compel cooperation in the foreign arena in order to obtain prospective liability protection similar to that enjoyed for domestic intelligence and criminal wiretaps. That is why the carrier liability protection and prospective liability protection provisions of this bill are so important. Another area where we are departing from the original intent of FISA is the targeting of U.S. persons abroad. FISA, as passed in 1978, left the targeting of American citizens abroad to the President's Executive order applicable to the intelligence community and the procedures approved by the Attorney General. In this legislation for the first time in history, we build into the FISA new laws that govern the targeting of U.S. persons overseas who are agents, officers or employees of foreign powers when a significant purpose of the acquisition is to obtain foreign intelligence information. These new procedures are sometimes referred to as 2.5 procedures because they are based in part upon section 2.5 of Executive Order 12333, which has long governed the electronic surveillance of U.S. persons overseas by requiring the approval of the Attorney General based upon a finding of probable cause that the target is a foreign power or agent of a foreign power. These 2.5 changes were part of the overall bipartisan compromise and now require prior court review by the Foreign Intelligence Surveillance Court of all surveillance conducted by the U.S. Government targeting U.S. persons overseas. Americans will still be on their own with respect to being surveilled by foreign governments overseas, but at least they can remain confident that if they are not working for a foreign power as a spy or terrorist, their own Government will not be listening to their conversations. The last area that merits discussion on the issue of FISA's original intent is the Foreign Intelligence Surveillance Court. We refer to it as the FISC. According to section 103 of FISA, the FISC was established as a special court with nationwide jurisdiction to ``hear applications for and grant orders approving electronic surveillance anywhere within the United States.'' That is it. As evidenced by the application and order requirements in FISA, each application is for a ``specific target'' for the significant purpose of obtaining foreign intelligence information. The court was originally structured so its seven judges would provide geographical diversity. The post-9/11 expansion of the FISC from 7 to 11 judges enhanced that diversity. Judges are nominated by the chief judge of their circuit to promote ideological balance on the FISC. It was clearly recognized that only one or two judges would be in Washington, DC, on a rotating basis at any given time. This was intended to discourage judge shopping and make it unlikely that an application for the extension of an order would be heard by the same judge who granted the original order. The FISC was never envisioned as a court that would or should handle protracted litigation. It possesses neither the staff nor the facilities to preside over such litigation. Moreover, it is very likely that such prolonged litigation would interfere with the main business of the FISC, which is to ensure the timely review and approval of individual operational FISA applications for court orders. We need to remember that the FISC was set up to review domestic electronic surveillance and later physical searches, an area that has numerous parallels to the similar reviews conducted by district court judges when they are asked to authorize criminal wiretaps. As I mentioned previously, even the FISC has acknowledged its lack of expertise in the foreign-targeting context, which is, they say, better left to the executive branch. The Court's recent opinion in the case of In re: Motion for Release of Court Records stated: . . . even if a typical FISA judge had more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security. We should be very hesitant to disregard the Court's own assessment of its competency in the overseas intelligence realm, especially given the original intent of FISA. I urge all my colleagues to be mindful of the Court's own words as we consider some of the proposed amendments, particularly those that would allow the court to assess compliance with minimization procedures used to target foreign terrorists. For example, amendment Nos. 3920 and 3908, and would require the court to determine the good faith of those providers who allegedly assisted the Government with the Terrorist Surveillance Program. As examples, amendment Nos. 3919 and 3858. In conclusion, I offer these observations mainly to ensure the record reflect the legislation departs from FISA's original intent in a deliberate and carefully tailored manner. While there are some practical considerations, including a desire for a strong bipartisan bill, that have driven the need for this legislation, we should be extremely careful about adding new or changing existing provisions in the bill that could negatively impact the operational effectiveness of our intelligence community or provide unwarranted protection to overseas terrorists and spies. Mr. President, I will not propound a unanimous consent request now, but I advise my colleagues that if we cannot reach agreement, I will ask unanimous consent that all amendments to the FISA bill be brought up and decided at a 60-vote threshold so we can move forward on this important legislation. I am not making that request now. I alert my colleagues on the other side of the aisle, I hope that will not be necessary, but we have not had a response to our proposal on how we move forward. We have been at this a week now, and we only have, at best, two full working weeks before we go on recess. We must get this bill done, sent to the House, conferenced, and passed before we leave for the President's Day recess. Failure to do so could leave our intelligence community without the tools they need and, thus, America without the protection it needs. I yield the floor.

Mr. BOND

Mr. BOND. Reserving the right to object, I thank my colleague for his courtesy and for his attention and his interest in this subject. As I had previously stated, we have to get this bill done to replace the Protect America Act. I believe the House has passed or is considering passing a 15-day extension, which I think is long enough, and on behalf of our side, I must object to this unanimous consent request.

Mr. BOND

Mr. BOND. Mr. President, would the Senator entertain a question?

Mr. BOND. I would just ask my good friend if he doesn't agree the Intelligence Committee bills have to pass with 60 votes? I believe the Protect America Act passed with 60 votes. The leader said in December it made sense to have all votes at 60-vote margins, and would he not expect that the Senate Intelligence Committee bill, which I support, will have to get 60 votes? And if so, does it not make sense to have 60 votes to pass all amendments?

Mr. BOND

Mr. BOND. Mr. President, if I may respond to my colleague from Georgia, who is a very valuable member of the Intelligence Committee and who brings expertise from the other body and who has been a valuable contributor, when we passed the FISA bill in what is called the Protect America Act in August, everybody agreed that it should be 60 votes because this is a very important but very controversial bill that has to be adopted by 60 votes. Thus, we have asked that amendments to this bill be considered under a 60-vote rule. It is very common in this Senate to demand 60 votes to be sure it is a nonpartisan bill. So far, we have not been able--although we have provided several alternatives to our friends on the other side--to get a clear way of going forward. So that is why we are stuck, waiting to find a reasonable manner of proceeding. I would ask my colleague if, in fact, he feels we had adequate contact with, interaction, and advice from the intelligence community and whether it is important to have the advice and assistance of those who are experts in and know the operations of electronic surveillance, to have a role in our drafting of the legislation.

Mr. BOND. Mr. President, I would ask the Senator from Georgia further why it is so important to have the intelligence community operatives and lawyers involved in drafting the measure. We had several good ideas offered in the committee that turned out not to be workable. I would ask my colleague why he thinks it is important to have the direct involvement by the intelligence community experts as to how to craft not only the legislation but amendments to it.

Mr. BOND. Mr. President, would the Senator from Georgia say that this bill not only enables the intelligence community to move forward, but it provides additional protections for Americans, for their privacy and constitutional rights? I would ask him if he thinks those amendments have been incorporated in the legislation before us and what he thinks the final product of the Intelligence Committee is as a result.

Mr. BOND. Mr. President, I would ask, isn't this the first time any of the FISA bills--even the predecessor FISA bill or the Protect America Act--have included privacy protections for Americans overseas?

Mr. BOND. Mr. President, my colleague mentioned reverse targeting. I would ask him, after debate on both sides and suggestions from both sides, did we not also include an express prohibition of reverse targeting, as well as providing court review, as he has stated, of minimization, acquisition, and certification procedures? I would ask him if reverse targeting is prohibited and what reverse targeting really means.

Mr. BOND. Mr. President, I would ask my colleague--he just talked about the new protections for U.S. persons overseas: prohibition of reverse targeting, court review of acquisition, minimization, and certification procedures. Now, some have said we just ought to extend the Protect America Act. As a sponsor of the Protect America Act, I thought it was pretty good. But if we were simply to extend the Protect America Act, would that not eliminate or at least delay any of the additional protections against reverse targeting, providing court review, and preventing reverse targeting of U.S. persons?

Mr. BOND. Mr. President, I ask my colleague why it has taken so long to get us to this point when the Protect America Act expires on February 1?

Mr. BOND. Mr. President, I might ask, isn't there a danger that if there is an amendment not subject to the 60-vote point of order, it is possible, with various Senators absent, that we could adopt, perhaps, on a 47-to-46 vote, an amendment that would make it impossible for the intelligence collection required by the intelligence community to go forward, and if such were adopted, what would happen to the legislation?

Mr. BOND. Of course.

Mr. BOND. Mr. President, if I may respond, as my friend from Georgia pointed out, in order to pass very important legislation such as this, it has been the practice in this body to require 60 votes, and as my colleague from Georgia just said, the farm bill passed with 60 votes on the amendments. When we passed the Protect America Act, we had to get 60 votes. This bill could be enacted into law and will undoubtedly have to have 60 votes to be signed by the President. I say to my distinguished colleague from Illinois, if there are changes made with less than a 60- vote margin, if they destroy the ability of the intelligence community to operate the collection system as we have prescribed, then that bill will never be signed into law. We would have to start all over again, and we would thus be leaving our intelligence community without the tools to protect us. We are not saying we are changing the rules of procedure. We are following the practice that has been adopted in this Senate.