S8384 CONGRESSIONAL RECORD — SENATE December 27, 2012 New Year’s Day. That is the average. Let them take our bill. That bill was FISA AMENDMENTS ACT Some would go up more, some less, of brought up and it was defeated. REAUTHORIZATION ACT OF 2012 course. I repeat, the American people do not The ACTING PRESIDENT pro tem- Speaker BOEHNER should call Mem- agree with the Republicans in the pore. Under the previous order, the bers back to Washington today. He House and Republicans over here. The Senate will proceed to consideration of should not have let them go, in fact. way to avoid the fiscal cliff has been H.R. 5949, which the clerk will report. They are not here. JOHN BOEHNER right in the face of the Republican The legislative clerk read as follows: seems to care more about keeping his leaders, both MCCONNELL and BOEHNER, speakership than about keeping the A bill (H.R. 5949) to extend the FISA for days and days, going into weeks Amendments Act of 2008 for five years. Nation on a firm financial footing. It is and months, and it is the only option obvious what is going on around here. The ACTING PRESIDENT pro tem- that is a viable escape route and that is pore. Under the previous order, the He is waiting until January 3 to get re- the Senate-passed bill. It would not be elected as Speaker before he gets seri- Senator from Oregon, Mr. WYDEN, is hard to pass. I have talked about that recognized. ous with negotiations because he has at some length. Every Democrat in the so many people over there who will not Mr. WYDEN. Mr. President, I thank House would vote for it, a handful of Leader REID for the honor of being able follow what he wants. That is obvious Republicans would vote for it, and that from the debacle that took place last to open this morning’s debate. I also is all that would be needed. But Grover wish to particularly identify with a week, and it was a debacle. Norquist is standing in the way of He made an offer to the President. point the leader made. There is an old this—not the rich people but Grover The President came back—they are saying that most of life is just showing Norquist, the man who says what the just a little bit apart—and he walked up. I think what the American people Republicans can do. I say to the Speak- away from that and went to Plan B. All want—I heard this at checkout lines in er: Take the escape hatch we have left that did is whack people who need help our local stores, for example, this you. Put the economic fate of the Na- the most—poor people. He could not week—they want everybody back in tion ahead of your own fate as Speaker even pass that. Remember, he is not Washington and going to work on this of the House. Millions of middle-class letting the House of Representatives issue, just as the leader suggested. families are nervously watching and vote. He is letting the Republicans I think Senators know I am a charter waiting and counting down the mo- vote. It was so bad, and he was in such member of what I guess you could call ment until their taxes go up. Nothing difficult shape there he would not even the optimist caucus in the Senate. As can move forward in regard to our let a vote take place with his Repub- improbable as some of these talking budget crisis unless Speaker BOEHNER licans because he knew he would lose. heads say on TV that it is, I still think and Leader MCCONNELL are willing to For months, he has allowed House Re- we ought to be here, just as the leader participate in coming up with a bipar- publicans to hold middle-class tax- said, working on this issue because of tisan plan. payers hostage to protect the richest 2 the consequences. percent, and the funny thing about Speaker BOEHNER is unwilling to ne- Mr. REID. Mr. President, will my that is the 2 percent do not want to be gotiate, we have not heard a word from friend yield for a question? protected. The majority of people in Leader MCCONNELL, and nothing is hap- Mr. WYDEN. I would be happy to our great country are willing to pay pening. Democrats cannot put forward yield to the majority leader. more. The only people who disagree a plan of their own. Without the par- Mr. REID. The distinguished Senator with that are Republicans who work in ticipation of Leader MCCONNELL and from Oregon and I served together in this building. Speaker BOEHNER, nothing can happen the House of Representatives. Does the The Speaker just has a few days left on the fiscal cliff and so far they are Senator remember the days when the to change his mind, but I have to be radio silent. House voted not as a majority but as a very honest; I don’t know, timewise, We are going to work in the next cou- body to come up with how legislation how it can happen now. Everyone ple of days to get the most important should be given to the American peo- knows we cannot bring up anything legislation done on FISA. There should ple? Does my friend remember that? here unless we do it by unanimous con- be a good debate. We have people who Mr. WYDEN. I do. The leader is being sent because the rules have been so are interested in changing what we logical, and Heaven forbid that some- worked the last few years that we can- have on the floor. There have been a se- times logic break out on some of these not do anything without 60 votes. ries of amendments on trying to matters. I remember when we started There are 53 of us. After the first of the change FISA—the espionage legisla- out—and I joked that I had a full head year, there will be 55 of us. tion that guides this country. It should of hair and rugged good looks—the ma- I hope the Speaker and the Repub- be a good debate. jority leader and I used to work with lican leader in the Senate would come people on both sides of the aisle. We to us and say here is what we think We have to finish the supplemental would try to show up early, go home will work. Let’s find out what that appropriations bill that is so important late, and, as the leader said, focus on could be because the Speaker cannot for the people in the Northeast. We getting some results. I thank the lead- pass, it seems, much of anything over have a lot to do. There could be as er for his point and again for the honor there. On the Sunday shows they had many as 28 votes in the next few days. of being able to start this discussion. Republican Senators and they were We are in Washington working while As I indicated, what I heard at home asked on the FOX network—pretty the Members of the House of Rep- is that we are supposed to be here and conservative, and that is probably a resentatives are out watching movies, try to find some common ground. I gross understatement—would you fili- watching their kids play soccer and know the talking heads on TV say this buster the President’s bill? They re- basketball and doing all kinds of is impossible and it cannot be done. fused to answer. We don’t make that things. They should be here. They First of all, as the majority leader said, decision. We can’t answer that. A fili- should be here urging the Speaker: this has been done in the past. When buster is over all our heads. Let’s bring up the $250,000 bill. Let’s there are big issues and big challenges, That is why we have to look seri- not have middle-class Americans and historically the Congress will come to- ously next year at changing the rules small businesses get hurt. gether and deal with it. around here. The bill that has passed What is the business? I am particularly concerned about the Senate protects 98 percent of fami- some of the effects going over the cliff lies and 97 percent of small businesses. f will have on vulnerable senior citizens. They passed a bill in the House, that As the Presiding Officer knows, that is we defeated, that extends the tax cuts RESERVATION OF LEADER TIME my background. We have often talked for everybody. That was voted down about health care and seniors. My over here. The President said he would The ACTING PRESIDENT pro tem- background was serving as codirector veto it. So this happy talk—the Repub- pore. Under the previous order, the of the Oregon Gray Panthers. If the re- lican House leadership said yesterday: leadership time is reserved. imbursement system for Medicare, in

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Basically, gov- issue and backing our country away do day in and day out. They work hard ernment officials were allowed to say from the fiscal cliff is hugely impor- to gather intelligence, and I commend they were looking for smuggled goods tant and crucial to the well-being of them for it as we begin this discussion. and then would search any house they our country. I just wanted to start The job of those who work in the in- were interested in to see if the house with those remarks. telligence community is to follow had some of those smuggled goods. Also crucial to our country is the whatever laws Congress lays down as An English authority’s goal is to find legislation before the Senate right those hard-working men and women smuggled goods. Letting constables now. Its name is a real mouthful. collect intelligence. Our job here in the and customs officers search any house Mr. President, I think you will recall Congress is to make sure the laws we or building is a pretty effective way to this legislation from your days serving pass are in line with the vision of the go out and find something. If they keep on the Senate Select Committee on In- Founding Fathers, which was to pro- searching enough houses, eventually telligence. The name of this is the For- tect national security as well as the they will find some smuggled goods in eign Intelligence Surveillance Act rights of individual Americans. one of them and seize those goods and Amendments Act. It also expires in a We all remember the wonderful com- arrest whoever lives in that house for few days. Our job is to find a way to ment by Ben Franklin. I will para- smuggling. Of course, the problem is strike the best possible balance be- phrase it, but essentially Ben Franklin that if government officials can search tween protecting our country from said: If you give up your liberty to any house they want, they are going to threats from overseas and safeguarding have security, you really don’t deserve search through the houses of a lot of the individual liberties of the law-abid- either. We owe it to the hard-working people who have not broken any laws. ing Americans we have cherished in men and women in the intelligence Mr. President, it is almost as if you this country for literally hundreds of community to work closely with them. decided you were going to search ev- years. This task of balancing security We need to find the balance Ben Frank- erybody in your State of Rhode Island. and liberty was one of the most impor- lin was talking about, and we can help You could go in and turn them all up- tant tasks defined by the Founding Fa- them by conducting robust oversight side down, shake them, and see if any- thers years and years ago, and it is no over the work that is being done there thing fell out. Obviously, you would less important for the Congress today. so members of the public can have con- find some people who had some things As I indicated earlier, the majority fidence in the men and women of the in their possession that they should leader, Leader REID, has accorded me intelligence community. This will give not have, but that is not the way we do the honor of beginning this debate. I the public the confidence to know that it in America. In America, there has to will open with a very short explanation as we protect our security at a dan- be probable cause in order to do some- of what the FISA Amendments Act is gerous time, we are also protecting the thing like that. all about. Of course, this is an exten- individual liberties of our people. The American colonists had a huge sion of the law that was passed in 2008. The story with respect to this debate problem with the idea that everybody’s It is a major surveillance law, and it is really begins in early America when house was going to be checked for the successor to the warrantless wire- the colonists were famously subjected smuggled goods on the prospect that tapping program that operated under to a lot of taxes by the British Govern- maybe somebody somewhere had en- the Bush administration, which gave ment. The American colonists thought gaged in smuggling. The colonists said the government new authorities to col- this was unfair because they were not it is not OK to go around invading peo- lect the communications of foreigners represented in the British Parliament. ple’s privacy unless there is some spe- outside the United States. The bill be- They argued that if they were not al- cific evidence that they have done fore the Senate today would extend lowed to vote for their own govern- something wrong. That is how people this law for another 5 years. ment, then they should not have to pay in Rhode Island and Oregon feel today. There is going to be a discussion of taxes. One cannot just go out and check ev- various issues, but all of them go to We all remember the renowned ral- erybody in sight on the prospect that what I call the constitutional teeter- lying cry of the colonists. It was ‘‘no maybe there is someone who has done totter, which is basically balancing se- taxation without representation.’’ something wrong. curity, protecting our country at a Early revolutionaries engaged in pro- Back in the colonists’ time, the law dangerous time, and the individual lib- tests against these taxes all over the said that these writs of assistance were erties that are so important to all of country. Of course, the most famous of good until the King died. So when King us. I expect there will be amendments these protests was the Boston Tea George II died and the authorities had to strengthen protections for the pri- Party in which colonists threw ship- to get new writs, many colonists tried vacy of law-abiding Americans. loads of tea into the Boston Harbor in to challenge them in court. I want to say to my colleagues and protest of the tax on tea. In Boston, James Otis denounced this those who are listening that this is As we recall from our history books, mass invasion of privacy by reminding likely to be the only floor debate the there were a lot of taxes on items such the court that—and we remember this Senate has on this law encompassing as tea, sugar, paint, and paper. Because wonderful comment—a man’s house is literally a 9-year period—from 2008 to so many colonists believed these taxes his castle. Mr. Otis described the writs 2017. So if we are talking about surveil- were unjust, there was a lot of smug- of assistance as the power that places lance authority that essentially looks gling going on in the American Colo- the liberty of every man in the hands to a 9-year period, we ought to have an nies. People would import things, such of every petty officer. Unfortunately, important discussion about it, and that as sugar, and simply avoid paying the the court ruled that these general or- is why I am grateful to the majority tax on them. ders permitting mass searches without leader for making today’s discussion We all remember that the King of individual suspicion were legal, and possible. England didn’t like this very much. He English authorities continued to use I have served on the Senate Intel- wanted the colonists to pay taxes them. The fact that English officials ligence Committee for 12 years now, whether they were allowed to vote or went around invading people’s privacy and I can tell every Member of this not. So the English authority began without any specific evidence against body that those who work in the intel- issuing what were essentially general them was one of the fundamental com- ligence community are hard-working warrants. They were called writs of as- plaints the American colonists had and patriotic men and women. They sistance, and they authorized govern- against the British Government. So give up an awful lot of evenings, week- ment officials to enter into any house naturally our Founding Fathers, with

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They conferred, as against the Government, the right to be The Bill of Rights ensures that would not apply. let alone—the most comprehensive of rights, strong protections of individual free- Now, Justice Louis Brandeis wrote and the right most valued by civilized men. dom would be included within our Con- what has come to be seen in history as To protect that right, every unjustifiable in- stitution itself, and the Founding Fa- an extraordinary dissent, a brilliant trusion by the Government on the privacy of thers included strong protections for dissent, and he argued that this was all the individual, whatever the means em- personal privacy in the fourth amend- wrong; that the fourth amendment was ployed, must be deemed a violation of the ment. The fourth amendment states: about preventing the government from Fourth Amendment. The right of the people to be secure in invading Americans’ privacy regardless Because I have outlined Justice their persons, houses, papers, and effects of how the government did it. Brandeis’s dissent on several issues, I against unreasonable searches and seizures I am just going to spend a couple of want to make sure those last two sen- shall not be violated and no warrant shall minutes making sure people see how tences are clear. issue but upon probable cause, supported by brilliant and farsighted Justice Bran- Justice Brandeis said that the right oath or affirmation, and particularly de- deis was in how his principles—the of the people to be left alone by their scribing the place to be searched and the per- government is ‘‘the most comprehen- son or things to be searched. principles he talked about in 1928—are as valid now as they were then. sive of rights’’—the most comprehen- This was a direct rejection of the au- Justice Brandeis said: sive of rights, said Justice Brandeis— thority the British had claimed to have When the Fourth and Fifth Amendments and, he said, ‘‘the right most valued by when they ruled the American Colo- were adopted . . . force and violence were civilized men.’’ And the Justice said nies. then the only means known to man by which that intrusions on individual privacy, The Founding Fathers said our gov- a Government could directly effect self-in- ‘‘whatever the means employed, must ernment does not have the right to crimination. . . . Subtler and more far-reach- be deemed a violation of the Fourth search any house that government offi- ing means of invading privacy have [in ef- Amendment.’’ cials want to search even if it helps fect] now become available to the Govern- The reason I have outlined Justice them to do their job. Government offi- ment. Discovery and invention have made it Brandeis’s views on this issue is that cials may only search someone’s house possible for the Government . . . to obtain disclosure in court of what is whispered in Justice Brandeis’s views didn’t prevail if they have evidence that someone is the closet. in 1928. Back in 1928 they thought they breaking the law and they show the were dealing with high-tech surveil- Justice Brandeis goes on to say: evidence to a judge to get an individual lance. But suffice it to say that his warrant. In the application of a Constitution, our views were eventually adopted by the For more than 200 years, this funda- contemplation cannot be only of what has been but of what may be. The progress of full Supreme Court. That is why I be- mental principle has protected Ameri- science in furnishing the Government with lieve it is so important that as we look cans’ privacy while still allowing our means of espionage is not likely to stop with to today’s debate—really an oppor- government to enforce the law and to wiretapping. Ways may someday be devel- tunity to update the way in which that protect public safety. oped by which the Government, without re- careful balance, the constitutional tee- As time passed and we entered the moving papers from secret drawers, can re- ter-totter: security, well-being of all of 20th century, advances in technology— produce them in court, and by which it will us on this side and individual liberties a whole host of technologies—gave gov- be enabled to expose to a jury the most inti- on this side—it is so important to rec- ernment officials the power to invade mate occurrences of the home. ‘‘That places the liberty of every man in the hands of ognize what Justice Brandeis said individual privacy in a whole host of every petty officer’’ was said by James Otis about the value of getting it right new ways—new ways the Founding Fa- of much less intrusions than these. when it comes to liberty, when it thers never dreamed of—and all Justice Brandeis goes on to say: comes to individual freedom. through those days, the Congress and One of the reasons there are amend- The principles— the courts struggled to keep up. ments being offered by Senators to this Time and time again Congress and The principles, literally— legislation at a time when we are deal- the courts were most successful when [behind the Fourth Amendment] affect the ing with these crucial issues about the they returned to the fundamental prin- very essence of constitutional liberty and se- fiscal cliff, the question of the budget, ciples of the fourth amendment. It is curity. They . . . apply to all invasions on taxes, and, as I mentioned, senior citi- striking. If we look at a lot of the de- the part of the Government and its employ- ees of the sanctities of a man’s home and the zens being able to see a doctor—those bates we are having today about the privacies of life. It is not the breaking of his are crucial issues, but this legislation, Internet—and the Presiding Officer has doors, and the rummaging of his drawers the FISA Amendments Act, is also a a great interest in this; we have talked that constitutes the essence of the offense; crucial piece of legislation, and that is often about it—certainly the Founding but it is the invasion of his indefeasible right why Senators will be offering amend- Fathers could never have envisioned of personal security, personal liberty and ments in order to strike the best pos- tweeting and Twitter and the Internet private property, where the right has never sible balance between security and lib- and all of these extraordinary tech- been forfeited by his conviction of some pub- erty. nologies. But what we have seen as lic offense. When the Foreign Intelligence Sur- technology has continued to bring us Justice Brandeis closes this remark- veillance Act, which is often known as this treasure trove of information with able dissent saying: FISA—Senators and those listening all of these spectacular opportunities . . . The evil incident to invasion of the will hear that discussion almost inter- the Founding Fathers never envisioned privacy of the telephone is far greater than changeably; the abbreviated name is is that time and time again the Con- that involved with tampering with the mails. FISA—when it was written in 1978, gress and the courts were most success- . . . As a means of espionage, writs of assist- Congress applied Justice Brandeis’s ance and general warrants are but puny in- ful when they returned to the funda- struments of tyranny and oppression when principles to intelligence gathering. mental principles of the fourth amend- compared with wiretapping. The Congress, when they wrote the ment. The protection guaranteed by the original FISA legislation in 1978, really For example, in 1928 the Supreme amendments Justice Brandeis was re- said that Justice Brandeis got it right Court considered a famous case about ferring to—the fourth and fifth amend- with respect to how we ought to gather whether the fourth amendment made it ments—is broad in scope. intelligence. So the original FISA stat- illegal for the government to listen to ute stated that if the government an individual’s phone conversations The makers of our Constitution undertook wants to collect an American’s commu- to secure conditions favorable to the pursuit without a warrant. Once again, dating of happiness. They recognized the signifi- nications for intelligence purposes, the almost to the precedent about the colo- cance of man’s spiritual nature, of his feel- government must go to a court, show nists and smuggling, the 1928 case was ings, and of his intellect. They knew that evidence that the American is a ter- about smuggling—specifically, boot- only a part of the pain, pleasure and satisfac- rorist or a spy, and get an individual

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For this reason, totter—our job: balance the need of the ciple enshrined in the Bill of Rights, section 702 of the FISA law contains government to collect information, and it said that government officials language that is specifically intended particularly with respect to what can are not allowed to invade Americans’ to limit the government’s ability to be threats coming from overseas, with privacy unless they have specific evi- use these new authorities to spy on the right of individual Americans to be dence and an individual warrant. Americans. left alone. It is that balance we are dis- After 9/11, the Bush administration Let me emphasize that because that cussing. If the Congress finds it is un- decided it would seek additional sur- is crucial to this discussion and the balanced, the Congress has a responsi- veillance authorities beyond what was amendments that will be offered. It is bility to step up and figure out how to in the original Foreign Intelligence never OK—never OK—for government make the appropriate changes in the Surveillance Act statute. To our great officials to use a general warrant to de- law to ensure that both security and regret, instead of asking the Congress liberately invade the privacy of a law- privacy are being protected simulta- to change the law, the Bush adminis- abiding American. It was not OK for neously. tration developed a warrantless wire- constables and Customs officials to do Unfortunately, the Congress and the tapping program—let me repeat that, a it in colonial days, and it is not OK for public—the American people—do not warrantless wiretapping program—that the National Security Agency to do it currently have enough information to operated in secret for a number of today. So if the government is going to adequately evaluate the impact of the years. When this became public—as I use general warrants to collect people’s law we are debating on Americans’ pri- have said on this floor before, these phone calls and e-mails, it is extremely vacy. There are a host of important matters always do become public at important to ensure that this author- issues about the law’s impact that in- some point—when it became clear that ity is only used against foreigners telligence officials have simply refused the Bush administration had developed overseas and not against law-abiding to answer publicly. this warrantless wiretapping program, Americans. I am going to now spend a few min- there was a huge uproar across the Despite what the Acting President utes outlining the big questions I be- land. I remember how angry many of pro tempore and the Senate may have lieve Americans deserve answers to. my constituents were when they heard, this law does not actually pro- Certainly, the Congress has to have an- learned about the warrantless wire- hibit the government from collecting swers to these questions in order to do tapping program, and I and a lot of Americans’ phone calls and e-mails our job—our job of doing robust over- other Senators were very angry as without a warrant. The FISA Amend- sight over this law and over intel- well. ments Act states—and I wish to quote ligence, which, as I said a bit ago, is ex- As has the Presiding Officer, I have because there have been a lot of inac- actly what the hard-working men and been on the Intelligence Committee, curacies and misrepresentations on women in the intelligence community and I have been a member for 12 years, this—the FISA Amendments Act states need and deserve in order to do their but the first time I heard about the that acquisitions made under section job in a way that will generate con- warrantless wiretapping program—the 702 may not ‘‘intentionally target’’ a fidence among the American people. first time I heard about it—was when I specific American and may not ‘‘inten- First, if we want to know what kind read about it in the newspapers. It was tionally acquire’’ communications that of impact this law has had on Ameri- in the New York Times before I, as a are ‘‘known at the time of acquisition’’ cans’ privacy, we probably want to member of the Senate Select Com- to be wholly domestic. know roughly how many phone calls mittee on Intelligence, knew about it. But the problem with that is, it still and e-mails that are to and from Amer- There was a very heated debate. Con- leaves a lot of room for circumstances icans have been swept up by the gov- gress passed the FISA Amendments under which Americans’ phone calls ernment under this authority. Senator Act of 2008, and that was to replace the and e-mails—including purely domestic MARK UDALL, our distinguished col- warrantless wiretapping program with phone calls and e-mails—could be league from Colorado and a great addi- new authorities for the government to swept up and reviewed without a war- tion to the Intelligence Committee—he collect the phone calls and e-mails of rant. This can happen if the govern- and I began the task of trying to ferret those believed to be foreigners outside ment did not know someone is Amer- out this information some time ago. the United States. ican or if the government made a tech- Over a year and a half ago, Senator The centerpiece of the FISA Amend- nical error or if the American was talk- MARK UDALL and I asked the Director ments Act is a provision that is now ing to a foreigner, even if that con- of National Intelligence how many section 702 of the FISA statute. Sec- versation was entirely legitimate. Americans have had their communica- tion 702 is the provision that gave the I am not talking about some hypo- tions collected under this law; in ef- government new authorities to collect thetical situation. The FISA Court, in fect, swept up by the government under the communications of people who are response to a concern I and others have these authorities. believed to be foreigners outside the had, has already ruled at least once The response was it is ‘‘not reason- United States. This was different than that collection carried out by the gov- ably possible to identify the number of the original FISA statute. Unlike the ernment under the FISA Amendments people located in the United States traditional FISA authorities and un- Act violated the fourth amendment to whose communications may have been like law enforcement wiretapping au- the Constitution. Senate rules regard- reviewed under the authority of the’’ thorities, section 702 of the FISA ing classified information prevent me FISA Amendments Act. That is how Amendments Act does not involve ob- from discussing the details of that rul- the government responded to Senator taining individual warrants. Instead, it ing or how many Americans were af- UDALL and me. allows the government to get what is fected, over what period of time, but If you are a person who does not like called a programmatic warrant. It lasts this fact alone clearly demonstrates the idea of government officials se- for an entire year and authorizes the the impact of this law on Americans’ cretly reviewing your phone calls and government to collect a potentially privacy has been real and it is not hy- e-mails, you probably do not find that large number of phone calls and e- pothetical. answer particularly reassuring. But mails, with no requirement that the When the Congress passed the FISA suffice it to say, the situation got senders or recipients be connected to Amendments Act 4 years ago, it in- worse from there. terrorism, espionage—the threats we cluded an expiration date. The point of In July of this year, I and a are concerned about. the expiration date was to ensure that tripartisan group of 12 other Senators, If that sounds familiar, it certainly Congress could review these authori- including Senator MARK UDALL, our should. General warrants that allowed ties closely and the Congress could de- colleague from Utah, Senator MIKE government officials to decide whose cide whether protections for Ameri- LEE, Senator DURBIN—I am pleased to privacy to invade were the exact sort cans’ privacy are adequate or whether be joined by Senator MERKLEY, who has of abuse that the American colonists they need to be modified. been vital in this coalition, this

VerDate Mar 15 2010 02:51 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00005 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.006 S27DEPT1 smartinez on DSK6TPTVN1PROD with S8388 CONGRESSIONAL RECORD — SENATE December 27, 2012 tripartisan coalition to get the best ing about one person in the United calls, they are supposed to show evi- possible balance between security and States talking to another person who dence to a judge and get an individual liberty—he was a signer of the letter; is also in the United States. This law warrant. But this loophole in the law Senator PAUL of Kentucky, who has contains a number of safeguards that allowed government officials to make also been an outspoken advocate of many people thought would prevent an end run around traditional warrant striking a better balance between pri- the warrantless collection of wholly requirements and conduct backdoor vacy and liberty was a signer; Senator domestic U.S. communications, and I searches for American’s communica- COONS, Senator BEGICH, Senator BINGA- think the Congress ought to know tions. MAN, Senator TESTER, Senator SAND- whether these safeguards are working. Now, let me be clear. If the govern- ERS, Senator TOM UDALL, Senator So our tripartisan group of Senators ment has clear evidence that an Amer- CANTWELL—all of us joined in writing dug into this issue as well, and we ican is engaged in terrorism, espio- another letter to the Director of Na- asked the Director back in July if he nage—serious crimes—I think the gov- tional Intelligence asking additional knew whether any wholly domestic ernment ought to be able to read that questions about the impact of this law U.S. communications had been col- person’s e-mails and listen to that per- on Americans’ privacy. lected under the FISA Amendments son’s phone calls. I believe and have We asked the Director if he could Act. So here we are talking about long felt that is an essential part of give us even a rough estimate—just a wholly domestic communications from protecting public safety. But govern- rough estimate—in other words, there one American, for example, in Rhode ment officials ought to be required to has been discussion both in the press Island, to another American in the get a warrant. As the Presiding Officer and in the intelligence community: home State of Senator MERKLEY and knows, there are even emergency pro- This group of Senators is asking for myself. I am disappointed to say the visions—and I support these strongly something impossible. This group of Director declined to answer this ques- as well—that allow for an emergency Senators is asking for an exact count tion as well. authorization before you get the war- of how many Americans are being Let’s contemplate that for a mo- rant, in order to protect the well-being swept up under this FISA authority, ment. A tripartisan group of Sen- of the American people. their calls and e-mails reviewed. I wish ators—Democrats, Republicans, Inde- So what we want to know at this to emphasize we just said, as a pendents—asked if the government point, if you are trying to decide tripartisan group of Senators: We knew whether any wholly domestic whether the constitutional teeter-tot- would just like a rough estimate—use communications had been collected ter is being properly balanced or is out any approach they want in terms of under the FISA law, and the head of of whack, you want to know whether giving us an assessment of how many the intelligence community declined to the government has ever taken advan- Americans’ communications have been publicly provide a simple yes or no re- tage of this backdoor search loophole swept up in this way. Is it hundreds? Is sponse to that question. and conducted a warrantless search for it hundreds of thousands? Is it mil- That means the FISA Amendments the phone calls or e-mails of specific lions? Act involves the government going to a Americans. So when the tripartisan The tripartisan group of Senators ba- secret court on a yearly basis and get- group wrote to the Director of National sically was just asking for a report, the ting programmatic warrants to collect Intelligence, we asked him to state kind of information that is a pre- people’s phone calls and e-mails, with whether the intelligence community requisite to doing good oversight. no requirement that these communica- has ever deliberately conducted a Frankly, I think when we talk about tions actually belong to people in- warrantless search of this nature. The oversight and we cannot even get a volved with terrorism or espionage. Director declined to respond to this as rough estimate of how many law-abid- This authority is not supposed to be well—declined to respond to a ing Americans have had their commu- used against Americans, but, in fact, tripartisan group of Senators simply nications swept up under this law, if intelligence officials say they do not asking: Has the intelligence commu- they do not have that kind of informa- even know how many American com- nity ever deliberately conducted a tion, oversight—the idea of robust munications they are actually col- warrantless search of this nature? oversight—it ought to be called tooth- lecting. The fact is, once the govern- If anybody is kind of keeping score less oversight if they do not have that ment has this pile of communications, on this, you will notice that the Direc- kind of information. which contains an unknown but poten- tor refused to publicly answer any of The Director declined to publicly an- tially very large number of Americans’ the questions that were asked in our swer this question. So our tripartisan phone calls and e-mails, there are sur- letter. So if you are looking for reas- group and others continued. We asked prisingly few rules about what can be surance that the law is being carried the Director if anyone else has already done with it. out in a way that respects the privacy done such an estimate. We did not ask For example, there is nothing in the of law-abiding American citizens, you about doing anything new. The intel- law that prevents government officials will not find it in his response. ligence community said: Oh, my good- from going to that pile of communica- I should note that the Director did ness. It will be so hard to give even a tions and deliberately searching for the provide additional responses in a high- rough estimate. So we said: OK. Just phone calls or e-mails of a specific ly classified attachment to his letter. tell us if anyone else has already done American, even if they do not have any This attachment was so highly classi- such an estimate. The Director de- actual evidence that the American is fied that I think of the 13 Senators who clined to publicly answer this question involved in some kind of wrongdoing, signed the letter of the tripartisan as well. some kind of nefarious activity. group, 11 of those 13 Senators do not Right at the heart of this discussion Again, if it sounds familiar, it ought even have staff who have the requisite is, if we are serious about doing over- to because that is how I began this dis- security clearance to read it. So natu- sight, the Congress ought to be able to cussion, talking about these sorts of rally that makes it hard for those Sen- get a straightforward answer to the general warrants that so upset the ators, let alone the public, to gain a question: Have any estimates been colonists. General warrants allowing better understanding of the privacy im- done already as to whether law-abiding government officials to deliberately in- pact of the law. Americans have had their communica- trude on the privacy of individual Several Senators sent the Director a tions swept up under the FISA author- Americans at their discretion was, as I followup letter last month again urg- ity? have outlined this morning, the abuse ing him to provide public answers to Second, if we want to understand this that led America’s Founding Fathers what we felt were straightforward law’s impact on Americans’ privacy, we to rise up against the British. They are questions—really sort of a minimum probably want to know whether any exactly what the fourth amendment set of responses that the Congress wholly domestic communications have was written to prevent. needs to do oversight. The Director re- been collected under the FISA authori- If government officials wanted to fused that as well. ties. When we are talking about wholly search an American’s house or read Intelligence officials do not deny the domestic communications, we are talk- their e-mails or listen to their phone facts I have outlined this morning.

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So when the courts upheld Court had ruled that collection carried tions carried out under this program those writs of assistance, ordinary peo- out by the government under the FISA are constitutional. ple could read about the decisions, and Amendments Act violated the fourth To respond to those arguments, I people such as James Otis and John amendment to the Constitution. I would note that under the FISA Adams could publicly debate whether think that is an important point to re- Amendments Act, the government does the law was adequately protecting the member when you hear people saying not have to get the permission of the privacy of law-abiding individuals. But the law is adequately protecting Amer- FISA Court to read particular e-mails if the FISA Court were to uphold some- icans’ privacy. or listen to particular phone calls. The thing like that today, in the age of dig- I would also note that on this point, law simply requires the court to review ital communications and electronic partially declassified internal reviews the government’s collection and han- surveillance, it could conceivably pass of the FISA amendments collection act dling procedures on an annual basis. entirely unnoticed by the public, even have noted that certain types of com- There is no requirement in the law for by those people whose privacy was pliance issues continue to occur—con- the court to approve the collection and being invaded. tinue to occur. review of individual communications Since 2008 other Senators and I have I have two last points. Beyond the even if government officials set out to urged the Department of Justice and fact that the programmatic warrants deliberately read the e-mails of an the intelligence community to estab- authorized by the FISA Amendments American citizen. Act are approved by a secret court, the Even when the court reviews the gov- lish a regular process for reviewing, re- other thing that intelligence officials ernment’s collection and handling pro- dacting, and releasing the opinions of cite is that there are ‘‘minimization’’ cedures, it is important to note that the FISA Court that contain signifi- procedures to deal with the issues that the FISA Court’s ruling are made en- cant interpretation of the law so that those of us who are concerned about tirely in secret. It may seem hard to members of the public have the oppor- believe, but the court’s rulings that in- tunity to understand what their gov- privacy rights have raised. This is an terpret major surveillance law and ernment thinks their law and their odd term, but it simply refers to rules even the U.S. Constitution in signifi- Constitution actually mean. I am not for dealing with information about cant ways—these are important judg- talking about a need to release every Americans. ments—the public has absolutely no single routine decision made by the Intelligence officials will tell you idea what the court is actually saying. court. Obviously, most of the cases that these are pretty much taking care What that means is that our country is that come before the court contain sen- of everything, and if there are not in effect developing a secret body of sitive information about intelligence enough privacy protections in the law law so that most Americans have no sources and methods that are appro- itself, minimization procedures provide way of finding out how their laws and priate to keep secret. all of the privacy protections any rea- their Constitution are being inter- I do not take a backseat to any Mem- sonable person could ever want or need. preted. That is a big problem. Ameri- ber of this body in terms of protecting These minimization procedures are cans do not expect to know the details the sources and methods of those in the classified, so most people are never of how government agencies collect in- intelligence community doing their going to know what they say. As some- formation, but Americans do expect important work, but the law itself one who has access to the minimiza- those agencies to operate within the should never be secret. What Federal tion procedures, I will make it clear boundaries of publicly understood law. courts think the law and the fourth that I think they are certainly better Americans need and have a right to amendment to the Constitution actu- than nothing, but there is no way, col- know how those laws and the Constitu- ally mean should never be a secret leagues, these minimization procedures tion are interpreted so they can ratify from the American people, the way it ought to be a substitute for having the decisions that elected officials is today. strong privacy protections written into make on their behalf. To put it another I am going to wrap up. I see Senator the law. way, I think we understand that Amer- MERKLEY and Senator FEINSTEIN here. I I will close with the reason I feel so icans know that intelligence agencies have a couple of additional points. strongly about this, which is that sen- sometimes have to conduct secret oper- I was encouraged in 2009 when the ior intelligence officials have some- ations, but the American people do not Obama administration wrote to Sen- times described these handling proce- expect these agencies to rely on secret ator ROCKEFELLER and myself to in- dures in misleading ways and make law. form us that they would be setting up protections for Americans’ privacy I think we understand that the work a process for redacting and releasing sound stronger than they actually are. of the intelligence community is so ex- those FISA Court opinions that con- I was particularly disappointed when traordinarily important. I see the dis- tained significant interpretations of the Director of NSA did this recently tinguished chair of the committee law. Unfortunately, over 3 years later, at a large technology conference. here. Every member of our com- this process has produced literally zero In response to a question about the mittee—every member—feels that it is results. Not a single redacted opinion National Security Agency’s surveil- absolutely critical to protect the or summary of FISA Court rulings has lance of Americans, General Alexander sources and methods by which the been released. I cannot even tell if the referenced the FISA Amendments Act work of the intelligence community is administration still intends to fulfill and talked in particular about the being done. But we do not expect the this promise. I often get the feeling minimization procedures that applied public to, in effect, just accept secret they are hoping people will go away to the collection of U.S. communica- law. and forget that the promise was made tions. Understand that this was at a When you go to your laptop and you in the first place. big, open technology conference. Gen- look up a law, it is public. It is public. I should note, in fairness, that while eral Alexander said that when the NSA But what I have described is a growing the administration has so far failed to sweeps up communications from a pattern of secret law that makes it fulfill this promise, the intelligence ‘‘good guy,’’ which I think we all as- harder for the American people to community has sometimes been willing sume is a law-abiding American, the make judgments about the decisions to declassify specific information NSA has ‘‘requirements from the FISA that are being made by those in the in- about the FISA Court’s rulings in re- court and the Attorney General to telligence community. I think that can sponse to requests from myself and minimize that, which means nobody undermine the confidence the public other Senators. For example, in re- else can see it unless there is a crime has in the important work being done sponse to a request I made this past that is being committed.’’ Now, any- by the intelligence community. summer, the intelligence community body who hears that phrase says: That

VerDate Mar 15 2010 02:51 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00007 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.009 S27DEPT1 smartinez on DSK6TPTVN1PROD with S8390 CONGRESSIONAL RECORD — SENATE December 27, 2012 is pretty good. I imagine that is what I have been on the Senate Intel- they are obviously relevant to under- people in that technology meeting and ligence Committee for 12 years, and I standing the scope of the law’s impact the conference call wanted to hear. The don’t know what the term ‘‘dossier’’ on privacy. only problem is that it is not true. It is means in that context. The report would address General Al- not true at all. The privacy protections So in October, Senator UDALL, a exander’s confusing statements by re- provided by these minimization proce- member of the committee, and I asked quiring the intelligence community to dures are simply not as strong as Gen- the Director to clarify that statement. simply state whether the NSA has col- eral Alexander made them out to be. We asked: lected any personally identifiable data In October, a few months after Gen- Does the NSA collect any type of data at on more than 1 million Americans. The eral Alexander made the comments, all on ‘millions or hundreds of millions of Congress and the country deserve an Senator UDALL and I wrote him a letter Americans’? answer to this question as well. asking him to please correct the I think that is a pretty straight- The amendment does not force the record. The first paragraphs of the let- forward question. If we are asking declassification of any information. ter were: whether the NSA is doing a good job The amendment gives the President Dear General Alexander: protecting Americans’ privacy, it is full discretion to redact as much infor- You spoke recently at a technology con- one of the most basic questions of all. mation from the public version of the vention in Nevada, at which you were asked If General Alexander saw fit, and he report as he deems appropriate, as long a question about NSA collection of informa- tion about American citizens. In your re- was the one who said they don’t keep as he tells the Congress why. sponse, you focused in particular on section millions of dossiers, General Alexander To repeat, the amendment doesn’t re- 702 of the FISA Amendments Act of 2008, could have answered our question quire the intelligence community to which the Senate will debate later this year. about whether they were keeping these conduct a new estimate, and the Presi- In describing the NSA’s collection of com- dossiers with a simple yes or no. dent would have full discretion to de- munications under the FISA Amendments Instead, the Director of the NSA re- cide whether any information should Act, you discussed rules for handling the plied that while he appreciated our de- be made public. communications of U.S. persons. sire to have responses to the questions I offer this amendment because I be- General Alexander said: on the public record, he would not pro- lieve every Member of Congress ought We may, incidentally, in targeting a bad vide a public answer. to have the answers to these questions. guy hit on somebody [sic] from a good guy, Again, the Director of the NSA said: If your constituents are similar to because there’s a discussion there. We have requirements from the FISA Court and the ‘‘The story that we [the NSA] have mine and Senator MERKLEY’s, they ex- Attorney General to minimize that, which millions or hundreds of millions of dos- pect us to give government agencies means nobody else can see it unless there’s a siers on people is absolutely false.’’ the authority to protect our country crime that’s been committed. So two members of the committee and to gather intelligence on impor- Senator UDALL and I wrote: asked: ‘‘Does the NSA collect any type tant topics, but they also expect us to We believe that this statement incorrectly of data at all on ‘millions or hundreds conduct vigorous oversight on what characterized the minimization require- of millions of Americans,’ ’’ and the Di- those agencies are doing. ments that apply to the NSA’s FISA Amend- rector refused to respond. It is, I guess, a temptation to say: I ments Act collection, and portrayed privacy At this point, I close by way of say- don’t know what is going on, so I will protections for Americans’ communications ing I believe the FISA Amendments let somebody else look at the privacy as being stronger than they actually are. We Act has enabled the government to col- issues and go from there. I don’t think urge you to correct this statement, so that Congress and the public can have a debate lect useful intelligence information, that is good oversight. over the renewal of this law that is informed and my goal is to reform the legisla- To me, at a minimum, if we don’t by at least some accurate information about tion. The two specific things I want to pass a requirement that we get a rough the impact it has had on Americans’ privacy. do are, first, require the intelligence accounting of whether there has even General Alexander wrote us back a community to provide more informa- been an estimate done with respect to few weeks later and said that, of tion about the impact of the FISA how many law-abiding Americans have course, that is not exactly how mini- Amendments Act on Americans’ pri- been swept up under these FISA au- mization procedures work and, of vacy and, second, to make improve- thorities, my view is that oversight be- course, the privacy protections aren’t ments to privacy protections so we can comes toothless, and that is not what as strong as that. readily see where they are most need- our obligation over these issues is all If anyone would like to read his let- ed. about. ter, I put it up on my Web site. I don’t So there will be several amendments There will be other important know why General Alexander described that will be offered. The amendment I amendments as well. Senator MERKLEY the minimization procedures the way will be offering is sponsored by 15 Mem- has one that I think is particularly im- he did. It is possible he misspoke. It is bers of the Senate. It simply says the portant because it goes to this question possible he was mistaken. But I cer- Director of the National Intelligence of secret laws. Senator LEAHY seeks to tainly would be more sympathetic to Agency should submit a report to the promote additional accountability as these arguments that all these privacy Congress on the privacy impact of the well with his important amendment. protections are being taken care of if it FISA Amendments Act. My colleague Senator PAUL will be of- hadn’t taken Senator UDALL and I This amendment would require the fering an amendment, an important making a push to get the NSA to cor- report to state whether any estimate amendment as well, with respect to rect the record with respect to these has been done, how many U.S. commu- reasonable searches and seizures under minimization procedures. Frankly, I nications have been collected under the the fourth amendment. am not sure, if there hadn’t been a big authority, and to provide any esti- We obviously have crucial work to do push by Senators who had questions mates that exist. I wish to emphasize with respect to the fiscal cliff issue in about what was said at that technology this amendment would not require any the next few days. We talked earlier conference, I am not sure the NSA entity to actually conduct such an es- when the majority leader was here would have ever corrected what they timate. The Director would be required about the impact of the budget and originally said about minimization. only to provide any estimates that taxes, senior citizens not being able to So minimization procedures are not a have already been done and, if no esti- see doctors. It is crucial work, and I bad idea, but the suggestion that we mates exist, the Director could say so. continue to be part of that optimists don’t need privacy protections written Additionally, the amendment would caucus in the Senate, believing we can into the law because of them is a bad require the report to state whether any still find some common ground in these idea. wholly domestic communications have last few days on the fiscal cliff and Finally, at that conference, General been collected under the FISA Amend- avoid going over the fiscal cliff. Alexander stated: ‘‘The story that we ments Act and whether any govern- That is crucial work, but striking the [the NSA] have millions or hundreds of ment agencies have ever conducted any right balance between protecting our millions of dossiers on people is abso- warrantless, backdoor searches. These country and protecting our individual lutely false.’’ are straightforward questions, and liberties is also important work. For

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This is just an accounting of how lawful permanent residents and who my colleagues have expressed about many law-abiding Americans had their are located outside the United States. this legislation, which is the effect this communications swept up under this Under current law, the Attorney Gen- one provision—Section 702—may have law. That work is crucial too. eral and the Director of National Intel- on the privacy and civil liberties of For that reason, I hope that on a bi- ligence may submit an application to U.S. persons. And let me say that 13 partisan basis, the amendments will be the FISA Court. I call this a program members of the Intelligence Com- viewed favorably by the Senate when warrant. It identifies the category of mittee who have voted in favor of the we begin voting. Thank you for your foreign persons against whom the gov- extension of the FISA Amendments indulgence for being part of this discus- ernment seeks to conduct surveillance. Act—and against previous amendments sion, presiding in the chair, and with This application is accompanied by from Senator WYDEN—do not believe special thanks to the distinguished ma- targeting and minimization procedures privacy is being eliminated under the jority leader who gave me the oppor- that establish how the government will law this bill would reauthorize. tunity to open this discussion about determine that someone targeted for As I have discussed, section 702 estab- FISA this morning. surveillance is located outside the lishes a framework for the government I yield the floor. United States; and, secondly, how it is to acquire foreign intelligence by con- The ACTING PRESIDENT pro tem- going to minimize the acquisition and ducting electronic surveillance on non- pore. The Senator from California. retention of any information con- U.S. persons who are reasonably be- Mrs. FEINSTEIN. Mr. President, I cerning U.S. persons who are acciden- lieved to be located outside of the would like to make an opening state- tally caught up in this. United States under a program that is ment, as the committee chair, on the If the FISA Court finds the proce- annually approved by the court. The bill that is before the Senate. dures to be consistent with both law privacy concerns stem from the poten- This bill is a simple bill. This is a and the fourth amendment, they enter tial for intelligence collection directed House bill that extends, reauthorizes an order authorizing this kind of sur- at non-U.S. persons located abroad to the FISA Amendments Act. FISA is veillance for 1 year—and the judges on result in the incidental collection of or the Foreign Intelligence Surveillance the FISA Court have found both—and concerning communications of U.S. Act. The House bill reauthorizes the they have authorized the program to persons. I understand these concerns, FISA Amendments Act for 5 years, continue. and I would like to explain why I be- until December 31, 2017. That is all it The process that follows allows the lieve the existing provisions are ade- does. intelligence community to collect the quate to address them. Without Senate action, these au- communications of international ter- First, this section is narrowly tai- thorities to collect intelligence expire rorists and other non-U.S. persons who lored to ensure that it may only be in 4 days. That is the reason it is the are located outside the country by, for used to target non-U.S. persons located House bill before us, and that is the example, acquiring electronic commu- abroad. It includes specific prohibi- reason I urge this body to vote no on nications such as phone calls and e- tions on targeting U.S. persons or per- all amendments and send this reau- mails sent to or from a phone number sons inside the United States and pro- thorization to the President where it or an e-mail address known to be used hibitions on engaging in so-called re- will be signed. If it goes past the 31st, by the person under surveillance. verse-targeting, which means targeting the program will be interrupted. Without this authority, the intel- This is important. Reauthorization of ligence community would need to re- a non-U.S. person abroad when the real the FISA Amendments Act has the turn to the process of going to the purpose is to obtain their communica- support of the Director of National Se- FISA Court in every individual case in- tions with a person inside the United curity, Jim Clapper; the Attorney Gen- volving collection directed at a non- States. That is prohibited. eral, Eric Holder; and other national U.S. person and to prove in each case Anytime the intelligence community security officials who have made clear there is probable cause to believe the is seeking to collect the communica- the importance of this legislation. individual is part of or working for a tions of an American, it has to dem- Following my remarks, I would like foreign power or a terrorist group. onstrate that it has probable cause and to enter letters into the RECORD from Now, here is the question: Can the get an individual FISA Court order. the Attorney General and the Director government use section 702 of FISA to Second, Congress recognized at the of National Intelligence, saying this re- target a U.S. person? The answer to time this amendments act was enacted authorization is the highest legislative that is no. The law specifically pro- that it is simply not possible to collect priority of the Intelligence Commu- hibits the use of section 702 authorities intelligence on the communications of nity. to direct collection against—that a person of interest without also col- Let me explain what the expiring means target—U.S. persons. So no one lecting information about the people provisions of the FISA Amendments should think the targets are U.S. per- with whom and about whom that per- Act do. I assume that is agreeable with sons. son communicates, including, in some the President that these letters go into This prohibition is codified in section cases, non-targeted U.S. persons. The the RECORD following my remarks. 702(b), which states that surveillance concern was addressed when the FAA The ACTING PRESIDENT pro tem- authorities may not be used—and let was originally drafted. Specifically, in pore. Without objection, it is so or- me quote the law—‘‘to intentionally order to protect the privacy and civil dered. target any person known at the time of liberty of U.S. persons, Congress man- (See exhibit 1.) acquisition to be located in the United dated that for collection conducted Mrs. FEINSTEIN. Let me describe States or to intentionally target a under 702, the Attorney General adopt what these provisions do and why they United States person reasonably be- and the FISA Court review and approve are necessary to reauthorize. lieved to be located outside the United procedures that minimize the acquisi- What will expire on December 31 is States.’’ tion, retention, and dissemination of title VII of FISA, which is called the Now, if the government wants to en- nonpublic information concerning FAA, the FISA Amendments Act. This gage in electronic surveillance tar- unconsenting U.S. persons. authorizes the executive branch of the geting a U.S. person for foreign intel- Third, numerous reports and assess- government to go to the FISA Court, ligence purposes, it must go back to ments from the executive branch that I which is a special court—and most peo- the FISA Court and it must get a spe- will describe in a moment provide the ple don’t know this—of 11 Federal Dis- cific order from that court. In an emer- committee with extensive visibility

VerDate Mar 15 2010 02:51 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00009 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.012 S27DEPT1 smartinez on DSK6TPTVN1PROD with S8392 CONGRESSIONAL RECORD — SENATE December 27, 2012 into how these minimization proce- to which acquisitions under 702 acquire that were later determined to be located in dures work and enable both the Intel- communications of U.S. persons, and the United States and, to the extent pos- ligence and the Judiciary Committees the results of any such assessment. sible, whether communications of such tar- to see how these procedures are effec- So you see, the reporting require- gets were reviewed.’’ Section 702(l)(2)(B), (C) [50 U.S.C. 1881a(l)(2)(B), (C)]. tive in protecting the privacy and civil ments go on and on. Finally, the IGs are required to provide liberties of U.S. persons. Then there is a semiannual report. copies of such reviews to the AG, DNI, and Oversight by the legislative, judicial, Every 6 months, the AG is required to the congressional intelligence and judiciary and executive branch of the govern- fully inform the congressional Intel- committees. Section 702(l)(2)(D) [50 U.S.C. ment over the past 4 years has been ligence and Judiciary Committees con- 1881a(l)(2)(D)]. very thorough. There are procedures cerning the implementation of Title Annual Reviews by Agency Heads of Sec- and requirements in place under cur- VII of FISA, and there is a whole list of tion 702. The head of each element of the in- rent law that provide protection for telligence community ‘‘conducting an acqui- things that must be reviewed and re- sition authorized under [Section 702]’’ (e.g., the privacy and civil liberties of U.S. counted. Then there is a semiannual the Director of NSA) are required to conduct persons. Those entrusted with the re- Attorney General review on FISA. annual reviews to ‘‘determine whether there sponsibility to collect the oversight, There is also the provision for docu- is reason to believe that foreign intelligence the committees of jurisdiction, the ments from the FISA Court relating to information has been or will be obtained FISA Court, and the executive branch significant construction or interpreta- from the acquisition.’’ Among other things, agencies together remain vigilant and tion of FISA. the annual review must include: continue to review the operations of Mr. President, I ask unanimous con- (1) ‘‘an accounting of the number of dis- seminated intelligence reports containing a these agencies. sent to have printed in the RECORD this reference to a United States-person iden- Let me give a quick summary of the list. tity;’’ 702 reporting requirements under cur- There being no objection, the mate- (2) ‘‘an accounting of the number of United rent law. rial was ordered to be printed in the States-person identities subsequently dis- They include a semiannual assess- RECORD, as follows: seminated by that element in response to re- ment by the Attorney General and the SUMMARY OF SECTION 702 REPORTING quests for identities that were not referred DNI. Every 6 months the AG and the REQUIREMENTS to by name or title in the original report- DNI are required to assess compliance ing;’’ Background: The surveillance authorities (3) ‘‘the number of targets that were later with the targeting and minimization added to the Foreign Intelligence Surveil- determined to be located in the United procedures and the acquisition guide- lance Act (‘‘FISA’’) by FISA Amendments States and, to the extent possible, whether lines adopted under Section 702. They Act (‘‘FAA’’) enable the government to con- communications of such targets were re- are both further required to submit duct intelligence collection targeting per- viewed;’’ and each assessment to the FISA Court and sons located outside the United States. The (4) ‘‘a description of any procedures devel- FAA provision that receives the most atten- the congressional Intelligence and Ju- oped by the head of such element of the in- tion is known as ‘‘Section 702,’’ which au- telligence community and approved by the diciary Committees. thorizes the government to engage in certain The inspector general of the Depart- Director of National Intelligence to assess forms of intelligence collection targeting . . . the extent to which the acquisitions au- ment of Justice and the inspector gen- non-U.S. persons located overseas for foreign thorized under [Section 702] acquire the com- eral of each element of the intelligence intelligence purposes with the assistance of munications of United States persons, and community are also authorized review U.S.-based electronic communication service the results of any such assessment.’’ compliance with Section 702. The IGs providers. This Section 702 collection is ap- The head of each element of the intel- are required to provide copies of such proved by the FISA Court on a pro- ligence community that conducts an annual reviews to the Attorney General, to the grammatic basis, without the need for indi- review is also required to use the review to vidualized court orders. Instead, the Director ‘‘evaluate the adequacy of the minimization Director of National Intelligence, and of National Intelligence (DNI) and Attorney the congressional Intelligence and Ju- procedures utilized by such element.’’ General (AG) submit annual certifications to Finally, the head of each element of the in- diciary Committees. So we have the the Court for review and approval, which telligence community that conducts an an- AG reviewing, we have the IGs review- identify categories of non-U.S. person tar- nual review is required to provide a copy of ing, and then we have separate reviews gets located overseas. each review to the FISA Court, AG, DNI, and by the agency heads. Reporting Requirements Relating to Sec- the congressional intelligence and judiciary The head of each element of the in- tion 702: FISA imposes a series reporting re- committees. Section 702(l)(3) [50 U.S.C. telligence community must conduct an quirements on the AG, DNI, and agencies 1881a(l)(3)]. within the Intelligence Community (IC) that Semiannual AG Report on Title VII. Every annual review which includes the fol- utilize Section 702 authorities. These in- lowing: 6 months, the AG is required to ‘‘fully in- clude, with respect to section 702: form’’ the congressional intelligence and ju- First, an accounting of the number of Semiannual AG/DNI Assessments of Sec- diciary committees ‘‘concerning the imple- disseminated intelligence reports con- tion 702. Every six months, the AG and DNI mentation’’ of Title VII. This reporting re- taining a reference to the U.S. person’s are required to assess compliance with the quirement is in addition the semiannual as- identity. As a matter of fact, Members targeting and minimization procedures and sessment performed under Section 702 and can go into a classified room at the of- the acquisition guidelines adopted under encompasses Section 703 and 704 of Title VII, fices of the Senate Intelligence Com- Section 702. The AG and DNI are further re- as well as Section 702. Among other things, quired to submit each assessment to the each report is required to include: mittee and review these reports. Any FISA Court and the congressional intel- Member has access to that review. (1) certifications submitted in accordance ligence and judiciary committees. Section with Section 702; Second, an accounting of the number 702(l)(1) [50 U.S.C. 1881a(l)(1)]. (2) justification for any exercise of the of U.S. person identities subsequently IG Assessments of Section 702. The Inspec- emergency authority contained in Section disseminated by that element in re- tor General of the Department of Justice and 702; sponse to requests for identities that the Inspector General of each element of the (3) directives issued under Section 702; were not referred to by name or title in intelligence community ‘‘authorized to ac- (4) ‘‘a description of the judicial review the original reporting. Members can re- quire foreign intelligence information under during the reporting period . . . including a [Section 702]’’ (e.g., the NSA IG) are ‘‘author- copy of an order or pleading in connection view that. ized’’ to review compliance with the Section Third, the number of targets who with such review that contains a significant 702 targeting and minimization procedures legal interpretation of the provisions of [Sec- were later determined to be located in and the acquisition guidelines. Section tion 702];’’ the United States and, to the extent 702(l)(2)(A) [50 U.S.C. 1881a(l)(2)(A)] (emphasis (5) actions taken to challenge or enforce a possible, whether communications of added). directive under Section 702; such targets were reviewed. Members In addition, the IGs are required to review (6) compliance reviews of acquisitions au- can go in the Intelligence Committee ‘‘the number of disseminated intelligence re- thorized under Section 702; offices and review that. ports containing a reference to a United (7) a description of any incidents of non- Fourth, a description of any proce- States-person identity and the number of compliance with directives, procedures, or United States-person identities subsequently guidelines issued under Section 702; and dures developed by the head of such disseminated by the element concerned in (8) the total number of applications made element of the intelligence community response to requests for identities that were for orders under Sections 703 and 704, as well and approved by the Director of Na- not referred to by name or title in the origi- as the total number of such orders granted, tional Intelligence to assess the extent nal reporting’’ and ‘‘the number of targets modified; and denied; and the number of AG-

VerDate Mar 15 2010 23:42 Dec 27, 2012 Jkt 029060 PO 00000 Frm 00010 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.013 S27DEPT1 smartinez on DSK6TPTVN1PROD with December 27, 2012 CONGRESSIONAL RECORD — SENATE S8393 authorized emergency acquisitions under surveillance operations, the lawyers support. Arrested were Ralph Deleon, these sections. Section 707 [50 U.S.C. 1881f]. who review these operations, and, im- Miguel Alejandro Santana Vidriales Semiannual AG Report on FISA. Every 6 portantly, the inspectors general who and Arifeen David Gojali. These three months, the AG is required to submit a re- carry out oversight of the program and men were planning to travel to Afghan- port to the congressional intelligence and ju- diciary committees concerning the imple- have written reports and letters to the istan to attend terrorist training and mentation of FISA. This reporting require- Congress with the results of that re- commit violent jihad; third, was a plot ment comes in addition to both the Section port. to bomb the New York Federal Reserve 702 semiannual assessment and the Title VII The intelligence committee’s review Bank; fourth, a plot to bomb a down- semiannual report and encompasses all the of these FAA surveillance authorities town Chicago bar; fifth, a conspiracy to provisions of the Act. In addition to require- has included the receipt and examina- provide material support to the Islamic ments that pertain to Titles I–V of FISA, the tion of dozens of reports concerning the Jihad Union; sixth, a plot to carry out report must include a ‘‘summary of signifi- implementation of these authorities a suicide bomb attack against the U.S. cant legal interpretations’’ involving mat- over the past 4 years, which the execu- ters before the FISA Court and copies of all Capitol in February of 2012; seventh, a decisions, orders, or opinions of the FISA tive branch is required to provide by plot to bomb locations in Tampa, FL; Court that include ‘‘significant construction law. We have received and scrutinized eighth, a plot to bomb New York City or interpretation’’ of any provision of FISA, all the classified opinions of the court targets and troops returning from com- including Section 702. Section 601(a) [50 that interpret the law in a significant bat overseas; ninth, a plot to assas- U.S.C. 1871(a)]. way. sinate the Saudi Ambassador to the Provision of Documents Relating to Sig- Finally, our staff has held countless United States; and it goes on and on nificant Construction or Interpretation of briefings with officials from the NSA, and on. FISA. Within 45 days of any decision, order, the DOJ, the Office of the DNI, and the or opinion issued by the FISA Court that So I believe the FISA Amendments ‘‘includes significant construction or inter- FISA Court itself, including the FBI. Act is important and these cases show pretation of any provision of [FISA]’’ (in- Collectively, these assessments, re- the program has worked. As the years cluding Section 702), the AG is required to ports, and other information obtained go on, I believe good intelligence is the submit to the congressional intelligence and by the Intelligence Committee dem- most important way to prevent these judiciary committees ‘‘a copy of the deci- onstrate that the government imple- attacks. sion, order, or opinion’’ and any ‘‘pleadings, ments the FAA surveillance authori- Information gained through pro- applications, or memoranda of law associ- ties in a responsible manner, with rel- grams such as this one—and through ated with such decision, order, or opinion.’’ atively few incidents of noncompli- Section 601(c) [50 U.S.C. 1871(c)]. other sources as well—is able to be ance. used to prevent future attacks. So, in Mrs. FEINSTEIN. So, Mr. President, Let me say this. Where such inci- the past 4 years, there have been 100 ar- it is not a question of this oversight dents of noncompliance have arisen, rests to prevent something from hap- not being done. I must respectfully dis- they have been inadvertent. They have pening in the United States, some of agree with the Senator from Oregon on not been intentional. They have been these plots have been thwarted because that point. There is clearly rigorous the result of human error or technical of this program. I think it is a vital oversight, and we have done hearing defect, and they have been promptly program. We are doing our level best to after hearing, we have looked at report reported and remedied. That is impor- conduct good oversight and keep after report, and any Member of this tant. Through 4 years of oversight, abreast of the details of the program body who so wishes can go and review from all these reports, from all the and to see that these reports come in. this material in the offices of the Intel- meetings, from all the hearings, we I have tried to satisfy Senator WYDEN ligence Committee. have not identified a single case in but apparently have been unable to do Now, let me talk about a protection which a government official engaged in so. that does exist for privacy, but will ex- a willful effort to circumvent or vio- I am hopeful the Senate Intelligence pire if this bill is not passed. That is late the law. Committee’s 13-to-2 vote to reauthorize section 704. Under this section, the in- Keep in mind the oversight per- this important legislation will be con- telligence community is required to formed by Congress—that is, both sidered by all Members. get a specific judicial order before con- Houses—and the FISA court comes in I ask unanimous consent to have ducting surveillance on a U.S. person addition to the extensive internal over- printed in the RECORD the Statement located outside the United States. sight of the implementation that is of Administrative Policy on the House Before this provision was enacted in performed by the Department of Jus- bill. 2008 as the product of Senators who tice, the Director of National Intel- There being no objection, the mate- were concerned—and they were lis- ligence, and multiple IGs. rial was ordered to be printed in the tened to, and this was enacted—the in- There is a view by some that this RECORD, as follows: telligence community could conduct country no longer needs to fear attack. intelligence collection on U.S. persons I don’t share that view, and I have STATEMENT OF ADMINISTRATION POLICY outside the country with only the ap- asked the intelligence committee staff H.R. 5949—FISA AMENDMENTS ACT proval of the Attorney General but to compile arrests that have been made REAUTHORIZATION ACT OF 2012 without a requirement of independent in the last 4 years in America on ter- (Rep. Smith, R–TX, and 5 cosponsors, Sept. judicial review. Section 704 provides rorist plots that have been stopped. 10, 2012) that judicial review by the special For- There are 100 arrests that have been The Administration strongly supports H.R. eign Intelligence Surveillance Court. 5949. The bill would reauthorize Title VII of made between 2009 and 2012. There have the Foreign Intelligence Surveillance Act This will only be preserved if title VII been 16 individuals arrested just this (FISA), which expires at the end of this year. of this act is reauthorized. If it isn’t, year alone. Let me quickly review Title VII of FISA allows the Intelligence the privacy provision goes down with some of these plots. Some of these may Community to collect vital foreign intel- it. arrests come about as a result of this ligence information about international ter- Now, let me talk a bit more about program. Again, if Members want to rorists and other important targets overseas, the oversight that we have done. If you see the specific cases where FISA while providing protection for the civil lib- listen to some, there has been little Amendments Act authorities were erties and privacy of Americans. Intelligence oversight, but that is not the case. We collection under Title VII has produced and used, they can go and look at the clas- continues to produce significant information have held numerous hearings with Di- sified background of these cases. that is vital to defend the Nation against rectors of National Intelligence Dennis First, in November, 1 month ago, two international terrorism and other threats. Blair and Jim Clapper; with the head of arrests for conspiracy to provide mate- The Administration looks forward to work- the NSA, General Alexander; and with rial support to terrorists and use a ing with the Congress to ensure the contin- Bob Mueller at the FBI. We have had weapon of mass destruction. That was ued availability of this critical intelligence Eric Holder appear before the com- Raees Alam Qazi and Sheheryar Alam capability. mittee to discuss this, and we have Qazi. They were arrested by the FBI in Mrs. FEINSTEIN. It states that the heard from intelligence community Fort Lauderdale, FL. The next case is administration strongly supports H.R. professionals involved in carrying out another conspiracy to provide material 5949, and it goes on to say what the bill

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I am enclosing a classified re- go directly to the President for signa- U.S. Senate. sponse that addresses your questions in de- ture. Hon. JON TESTER, tail. U.S. Senate. I yield the floor. (U) That said, there is a point in your let- Hon. TOM UDALL, ter I would like to address directly. I strong- U.S. Senate. EXHIBIT 1 ly take exception to the suggestion that Hon. MARIA CANTWELL, INSPECTOR GENERAL OF THE U.S. Senate. there is a ‘‘loophole’’ in the current law con- INTELLIGENCE COMMUNITY, Hon. MARK UDALL, cerning access to communications collected Washington, DC, June 15, 2012. U.S. Senate. under section 702 of the FAA. While our col- Hon. RON WYDEN, Hon. JEFF MERKLEY, lection methods are classified, the basic Senate Select Committee on Intelligence, U.S. U.S. Senate. standards for that collection are a matter of Senate, Washington, DC. Hon. CHRIS COONS, public law: Hon. MARK UDALL, U.S. Senate. Section 702 only permits targeting of non- Senate Select Committee on Intelligence, U.S. Hon. JEFF BINGAMAN, Senate, Washington, DC. U.S. Senate. U.S. persons reasonably believed to be lo- DEAR SENATOR WYDEN AND SENATOR Hon. BERNARD SANDERS, cated outside of the United States. It does UDALL: Thank you for your 4 May 2012 letter U.S. Senate. not permit targeting of U.S. persons any- requesting that my office and the National Hon. DICK DURBIN, where in the world, or of any person inside Security Agency (NSA) Inspector General U.S. Senate. the United States. DEAR SENATORS: (U) Thank you for your (IG) determine the feasibility of estimating Section 702 prohibits so-called ‘‘reverse July 26, 2012 letter on the FISA Amendments ‘‘how many people inside the United States Act (FAA). As you noted, reauthorization of targeting’’—targeting a person located out- have had their communications collected or FAA is an extremely high priority for the side the United States as a pretext when the reviewed under the authorities granted by Administration. The FAA authorities have real goal is to target a person inside the section 702’’ of the FISA Amendment Act proved to be an invaluable asset in our effort United States. (FAA). On 21 May 2012, I informed you that to detect and prevent threats to our nation Section 702 prohibits the intentional acqui- and our allies. the NSA Inspector General, George Ellard, sition of any communication when all com- would be taking the lead on the requested The members of the Intelligence Commu- nity and I appreciate the need for Congress municants are known at the time of acquisi- feasibility assessment, as his office could to be fully informed about this statute as it tion to be within the United States. provide an expedited response to this impor- considers reauthorization. We have repeat- (U) In enacting these standards for collec- tant inquiry. edly reported to the Intelligence and Judici- tion, Congress understood that some commu- ary committees of both the House and Sen- The NSA IG provided a classified response nications of U.S. persons would be inciden- ate how we have implemented the statute, on 6 June 2012. I defer to his conclusion that tally acquired, and the statute therefore obtaining such an estimate was beyond the the operational value it has afforded, and the extensive measures we take to ensure that specifies minimization procedures that re- capacity of his office and dedicating suffi- the Government’s use of these authorities strict that acquisition, retention, and dis- cient additional resources would likely im- comports with the Constitution and the laws semination of any information about U.S. pede the NSA’s mission. He further stated of the United States. Our record of trans- persons. The Foreign Intelligence Surveil- that his office and NSA leadership agreed parency with the Congress includes many lance Court is required by statute to ensure that an IG review of the sort suggested formal briefings and hearings, numerous that those procedures are both reasonably would itself violate the privacy of U.S. per- written notifications and reports, and count- designed to ensure compliance with the less hours that our legal, operational, and sons. above limitations and consistent with the compliance experts have spent in detailed As I stated in my confirmation hearing and discussions, briefings, and demonstrations Fourth Amendment. In addition, components as we have specifically discussed, I firmly be- with committee staff and counsel. In addi- of the Executive Branch, including both my lieve that oversight of intelligence collection tion, we have provided classified and unclas- office and the Department of Justice, regu- is a proper function of an Inspector General. sified white papers, available to any Member larly assess compliance with the targeting I will continue to work with you and the of Congress, detailing how the law is imple- and minimization procedures. Finally, the Committee to identify ways that we can en- mented, the robust oversight involved, and Intelligence Committees have been fully hance our ability to conduct effective over- the nature and value of the resulting collec- briefed on both the law and how the govern- sight. If you have any questions concerning tion. ment collects and uses information under (U) This extensive history of interaction section 702. In short, there is no loophole in this response, please contact me. with Congress has included discussions, Sincerely, within the past several months, of the issues the law. I. CHARLES MCCULLOUGH, III, raised in your letter of July 26. We have met (U) As the legislation comes up for floor Inspector General of the Intelligence at length with committee staff and counsel consideration, we would welcome the oppor- Community. to discuss the legal and operational param- tunity to meet with any Senator or appro- eters associated with use of FAA 702. With priately cleared staff member to address the benefit of this information, the commit- these issues in a classified setting. I have tees have reported FAA reauthorization leg- asked Kathleen Turner, Director of my Of- islation. We urge that it be brought to the floor of the Senate and House, and enacted fice of Legislative Affairs, to contact your without amendment as proposed by the Ad- offices to try to schedule a briefing. ministration at the earliest possible date. (U) I appreciate your taking the time to This degree of transparency with Congress share your views with me, and I look forward has been possible because these hearings, to working with you to ensure that Congress briefings, reports, and discussion have gen- has a full understanding of these and any erally been classified. The issues you have raised cannot be accurately and thoroughly other concerns you may have as the Senate addressed in an unclassified setting without considers legislation to reauthorize the FAA revealing intelligence sources and methods, this fall. which would defeat the very purpose for Sincerely, which the laws were enacted. It remains vi- JAMES R. CLAPPER. tally important to avoid public disclosure of Enclosure. sources and methods with respect to section 702 in order to protect the efficacy of this UNCLASSIFIED upon removal of Enclo- important provision for collecting foreign in- sure. telligence information.

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OFFICE OF THE DIRECTOR OF NA- to working with you to ensure the speedy en- power, and to obtain an order from the FISC TIONAL INTELLIGENCE, AND UNITED actment of legislation reauthorizing Title approving the surveillance on this basis. In STATES DEPARTMENT OF JUSTICE VII, without amendment, to avoid any inter- effect, the Intelligence Community treated Washington, DC, Feb. 8, 2012. ruption in our use of these authorities to non-U.S. persons located overseas like per- Hon. JOHN BOEHNER, protect the American people. sons in the United States, even though for- Speaker, United States House of Representa- Sincerely, eigners outside the United States generally tives, Washington, DC JAMES R. CLAPPER, are not entitled to the protections of the Hon. HARRY REID, Director of National Fourth Amendment. Although FISA’s origi- Majority Leader, U.S. Senate, Washington, DC. Intelligence. nal procedures are proper for electronic sur- Hon. NANCY PELOSIm ERIC H. HOLDER, JR., veillance of persons inside this country, such Democratic Leader, United States House of Rep- Attorney General. a process for surveillance of terrorist sus- resentatives, Washington, DC. pects overseas can slow, or even prevent, the Hon. MITCH MCCONNELL, BACKGROUND PAPER ON TITLE VII OF FISA Government’s acquisition of vital informa- Republican Leader, U.S. Senate, Washington, PREPARED BY THE DEPARTMENT OF JUSTICE tion, without enhancing the privacy inter- DC. AND THE OFFICE OF DIRECTOR OF NATIONAL ests of Americans. Since its enactment in DEAR SPEAKER BOEHNER AND LEADERS INTELLIGENCE (ODNI) 2008, section 702 has significantly increased REID, PELOSI, AND MCCONNELL: we are writ- This paper describes the provisions of Title the Government’s ability to act quickly. ing to urge that the Congress reauthorize VII of the Foreign Intelligence Surveillance Under section 702, instead of issuing indi- Title VII of the Foreign Intelligence Surveil- Act (FISA) that were added by the FISA vidual court orders, the FISC approves an- lance Act (FISA) enacted by the FISA Amendments Act of 2008 (FAA). Title VII has nual certifications submitted by the Attor- Amendments Act of 2008 (FAA), which is set proven to be an extremely valuable author- ney General and the DNI that identify cat- to expire at the end of this year. Title VII of ity in protecting our nation from terrorism egories of foreign intelligence targets. The FISA allows the Intelligence Community to and other national security threats. Title provision contains a number of important protections for U.S. persons and others in collect vital information about international VII is set to expire at the end of this year, the United States. First, the Attorney Gen- terrorists and other important targets over- and its reauthorization is the top legislative eral and the DNI must certify that a signifi- seas. Reauthorizing this authority is the top priority of the Intelligence Community. legislative priority of the Intelligence Com- The FAA added a new section 702 to FISA, cant purpose of the acquisition is to obtain munity. permitting the Foreign Intelligence Surveil- foreign intelligence information. Second, an One provision, section 702, authorizes sur- lance Court (FISC) to approve surveillance of acquisition may not intentionally target a U.S. person. Third, it may not intentionally veillance directed at non-U.S. persons lo- terrorist suspects and other foreign intel- target any person known at the time of ac- cated overseas who are of foreign intel- ligence targets who are non-U.S. persons quisition to be in the United States. Fourth, ligence importance. At the same time, it pro- outside the United States, without the need it may not target someone outside the vides a comprehensive regime of oversight for individualized court orders. Section 702 United States for the purpose of targeting a by all three branches of Government to pro- includes a series of protections and oversight particular, known person in this country. tect the privacy and civil liberties of U.S. measures to safeguard the privacy and civil persons. Under section 702, the Attorney Fifth, section 702 prohibits the intentional liberties interests of U.S. persons. FISA con- General and the Director of National Intel- acquisition of ‘‘any communication as to tinues to include its original electronic sur- ligence may authorize annually, with the ap- which the sender and all intended recipients veillance provisions, meaning that, in most proval of the Foreign Intelligence Surveil- are known at the time of the acquisition’’ to cases, an individualized court order, based on lance Court (FISC), intelligence collection be in the United States. Finally, it requires probable cause that the target is a foreign targeting categories of non-U.S. persons that any acquisition be consistent with the power or an agent of a foreign power, is still abroad, without the need for a court order Fourth Amendment. required to conduct electronic surveillance for each individual target. Within this To implement these provisions, section 702 of targets inside the United States. Indeed, framework, no acquisition may intentionally requires targeting procedures, minimization other provisions of Title VII extend these target a U.S. person, here or abroad, or any procedures, and acquisition guidelines. The protections to U.S. persons overseas. The ex- other person known to be in the United targeting procedures are designed to ensure tensive oversight measures used to imple- States. The law requires special procedures that an acquisition only targets persons out- ment these authorities demonstrate that the designed to ensure that all such acquisitions side the United States, and that it complies Government has used this capability in the target only non-U.S. persons outside the with the restriction on acquiring wholly do- manner contemplated by Congress, taking United States, and to protect the privacy of mestic communications. The minimization great care to protect privacy and civil lib- U.S. persons whose nonpublic information procedures protect the identities of U.S. per- erties interests. sons, and any nonpublic information con- may be incidentally acquired. The Depart- This paper begins by describing how sec- cerning them that may be incidentally ac- ment of Justice and the Office of the Direc- tion 702 works, its importance to the Intel- quired. The acquisition guidelines seek to tor of National Intelligence conduct exten- ligence Community, and its extensive over- ensure compliance with all of the limitations sive oversight reviews of section 702 activi- sight provisions. Next, it turns briefly to the of section 702 described above, and to ensure ties at least once every sixty days, and Title other changes made to FISA by the FAA, in- that the Government files an application VII requires us to report to the Congress on cluding section 704, which requires an order implementation and compliance twice a with the FISC when required by FISA. from the FISC before the Government may The FISC reviews the targeting and mini- year. engage in surveillance targeted at U.S. per- A separate provision of Title VII requires mization procedures for compliance with the sons overseas. Third, this paper describes the that surveillance directed at U.S. persons requirements of both the statute and the reporting to Congress that the Executive overseas be approved by the FISC in each in- Fourth Amendment. Although the FISC does Branch has done under Title VII of FISA. Fi- dividual case, based on a finding that there not approve the acquisition guidelines, it re- nally, this paper explains why the Adminis- is probable cause to believe that the target is ceives them, as do the appropriate congres- tration believes it is essential that Congress a foreign power or an agent, officer, or em- sional committees. By approving the certifi- reauthorize Title VII. ployee of a foreign power. Before the enact- cations submitted by the Attorney General ment of the FAA, the Attorney General 1. SECTION 702 PROVIDES VALUABLE FOREIGN IN- and the DNI as well as by approving the tar- could authorize such collection without TELLIGENCE INFORMATION ABOUT TERRORISTS geting and minimization procedures, the court approval. This provision thus increases AND OTHER TARGETS OVERSEAS, WHILE PRO- FISC plays a major role in ensuring that ac- the protection given to U.S. persons. TECTING THE PRIVACY AND CIVIL LIBERTIES quisitions under section 702 are conducted in The attached background paper provides OF AMERICANS a lawful and appropriate manner. additional unclassified information on the Section 702 permits the FISC to approve Section 702 is vital in keeping the nation structure, operation and oversight of Title surveillance of terrorist suspects and other safe. It provides information about the plans VII of FISA. targets who are non-U.S. persons outside the and identities of terrorists, allowing us to Intelligence collection under Title VII has United States, without the need for individ- glimpse inside terrorist organizations and produced and continues to produce signifi- ualized court orders. The FISC may approve obtain information about how those groups cant intelligence that is vital to protect the surveillance of these kinds of targets when function and receive support. In addition, it nation against international terrorism and the Government needs the assistance of an lets us collect information about the inten- other threats. We welcome the opportunity electronic communications service provider. tions and capabilities of weapons to provide additional information to mem- Before the enactment of the FAA and its proliferators and other foreign adversaries bers concerning these authorities in a classi- predecessor legislation, in order to conduct who threaten the United States. Failure to fied setting. We are always considering the kind of surveillance authorized by sec- reauthorize section 702 would result in a loss whether there are changes that could be tion 702, FISA was interpreted to require of significant intelligence and impede the made to improve the law in a manner con- that the Government show on an individual- ability of the Intelligence Community to re- sistent with the privacy and civil liberties ized basis, with respect to all non-U.S. per- spond quickly to new threats and intel- interests of Americans. Our first priority, son targets located overseas, that there was ligence opportunities. Although this unclas- however, is reauthorization of these authori- probable cause to believe that the target was sified paper cannot discuss more specifically ties in their current form. We look forward a foreign power or an agent of a foreign the nature of the information acquired under

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section 702 or its significance, the Intel- 2. OTHER IMPORTANT PROVISIONS OF TITLE VII under section 702; reported, in detail, on the ligence Community is prepared to provide OF FISA ALSO SHOULD BE REAUTHORIZED results of the reviews and on compliance in- Members of Congress with detailed classified In contrast to section 702, which focuses on cidents and remedial efforts; made all writ- briefings as appropriate. foreign targets, section 704 provides height- ten reports on these reviews available to the The Executive Branch is committed to en- ened protection for collection activities con- Committees; and provided summaries of sig- suring that its use of section 702 is con- ducted overseas and directed against U.S. nificant interpretations of FISA, as well as sistent with the law, the FISC’s orders, and persons located outside the United States. copies of relevant judicial opinions and the privacy and civil liberties interests of Section 704 requires an order from the FISC pleadings. U.S. persons. The Intelligence Community, in circumstances in which the target has ‘‘a 4. IT IS ESSENTIAL THAT TITLE VII OF FISA BE the Department of Justice, and the FISC all reasonable expectation of privacy and a war- REAUTHORIZED WELL IN ADVANCE OF ITS EX- oversee the use of section 702. In addition, rant would be required if the acquisition PIRATION congressional committees conduct essential were conducted inside the United States for The Administration strongly supports the oversight, which is discussed in section 3 law enforcement purposes.’’ It also requires a reauthorization of Title VII of FISA. It was below. showing of probable cause that the targeted enacted after many months of bipartisan ef- Oversight of activities conducted under U.S. person is ‘‘a foreign power, an agent of fort and extensive debate. Since its enact- section 702 begins with components in the in- a foreign power, or an officer or employee of ment, Executive Branch officials have pro- telligence agencies themselves, including a foreign power.’’ Previously, these activities vided extensive information to Congress on their Inspectors General. The targeting pro- were outside the scope of FISA and governed the Government’s use of Title VII, including cedures, described above, seek to ensure that exclusively by section 2.5 of Executive Order reports, testimony, and numerous briefings an acquisition targets only persons outside 12333. By requiring the approval of the FISC, for Members and their staffs. This extensive the United States and that it complies with section 704 enhanced the civil liberties of record demonstrates the proven value of section 702’s restriction on acquiring wholly U.S. persons. these authorities, and the commitment of domestic communications. For example, the The FAA also added several other provi- the Government to their lawful and respon- targeting procedures for the National Secu- sions to FISA. Section 703 complements sec- sible use. rity Agency (NSA) require training of agency tion 704 and permits the FISC to authorize Reauthorization will ensure continued cer- analysts, and audits of the databases they an application targeting a U.S. person out- tainty with the rules used by Government use. NSA’s Signals Intelligence Directorate side the United States to acquire foreign in- employees and our private partners. The In- also conducts other oversight activities, in- telligence information, if the acquisition telligence Community has invested signifi- cluding spot checks of targeting decisions. constitutes electronic surveillance or the ac- cant human and financial resources to en- With the strong support of Congress, NSA quisition of stored electronic communica- able its personnel and technological systems has established a compliance office, which is tions or data, and is conducted in the United to acquire and review vital data quickly and responsible for developing, implementing, States. Because the target is a U.S. person, lawfully. Our adversaries, of course, seek to and monitoring a comprehensive mission section 703 requires an individualized court hide the most important information from compliance program. order and a showing of probable cause that us. It is at best inefficient and at worst un- the target is a foreign power, an agent of a workable for agencies to develop new tech- Agencies using section 702 authority must foreign power, or an officer or employee of a report promptly to the Department of Jus- nologies and procedures and train employees, foreign power. Other sections of Title VII only to have a statutory framework subject tice and ODNI incidents of noncompliance allow the Government to obtain various au- with the targeting or minimization proce- to wholesale revision. This is particularly thorities simultaneously, govern the use of true at a time of limited resources. It is es- dures or the acquisition guidelines. Attor- information in litigation, and provide for neys in the National Security Division (NSD) sential that these authorities remain in congressional oversight. Section 708 clarifies place without interruption—and without the of the Department routinely review the that nothing in Title VII is intended to limit agencies’ targeting decisions. At least once threat of interruption—so that those who the Government’s ability to obtain author- have been entrusted with their use can con- every 60 days, NSD and ODNI conduct over- izations under other parts of FISA. sight of the agencies’ activities under sec- tinue to protect our nation from its enemies. 3. CONGRESS HAS BEEN KEPT FULLY INFORMED, tion 702. These reviews are normally con- Mr. GRASSLEY. Mr. President, the AND CONDUCTS VIGOROUS OVERSIGHT, OF ducted on-site by a joint team from NSD and reauthorization of the Foreign Intel- TITLE VII’S IMPLEMENTATION ODNI. The team evaluates and, where appro- ligence Surveillance Act Amendments priate, investigates each potential incident FISA imposes substantial reporting re- quirements on the Government to ensure ef- Act, also known as the FISA Amend- of noncompliance, and conducts a detailed ments Act, is a crucial authority for review of agencies’ targeting and minimiza- fective congressional oversight of these au- tion decisions. thorities. Twice a year, the Attorney Gen- the U.S. Intelligence Community. Un- eral must ‘‘fully inform, in a manner con- less we act to pass this legislation, the Using the reviews by Department of Jus- sistent with national security,’’ the Intel- tice and ODNI personnel, the Attorney Gen- law will expire in just a few days from ligence and Judiciary Committees about the now. It must be reauthorized imme- eral and the DNI conduct a semi-annual as- implementation of Title VII. With respect to sessment, as required by section 702, of com- diately for a 5-year period. section 702, this semi-annual report must in- I am familiar with the FISA Amend- pliance with the targeting and minimization clude copies of certifications and significant procedures and the acquisition guidelines. FISC pleadings and orders. It also must de- ments Act, FAA, through my role as The assessments have found that agencies scribe any compliance incidents, any use of ranking member of the Judiciary Com- have ‘‘continued to implement the proce- emergency authorities, and the FISC’s re- mittee, which along with the Select dures and follow the guidelines in a manner view of the Government’s pleadings. With re- Committee on Intelligence, has juris- that reflects a focused and concerted effort spect to sections 703 and 704, the report must diction over this legislation and over- by agency personnel to comply with the re- include the number of applications made, quirements of Section 702.’’ The reviews have sight of the intelligence operations and the number granted, modified, or denied conducted by the Department of Jus- not found ‘‘any intentional attempt to cir- by the FISC. cumvent or violate’’ legal requirements. Section 702 requires the Government to tice and Federal Bureau of Investiga- Rather, agency personnel ‘‘are appropriately provide to the Intelligence and Judiciary tion. During the last year, my staff and focused on directing their efforts at non- Committees its assessment of compliance I have engaged in extensive consulta- United States persons reasonably believed to with the targeting and minimization proce- tion with the intelligence community be located outside the United States.’’ dures and the acquisition guidelines. In addi- and the Department of Justice to un- Section 702 thus enables the Government tion, Title VI of FISA requires a summary of derstand how the FAA has been used. to collect information effectively and effi- significant legal interpretations of FISA in The committee held a closed hearing ciently about foreign targets overseas and in matters before the FISC or the Foreign In- with witness testimony and questions a manner that protects the privacy and civil telligence Surveillance Court of Review. The liberties of Americans. Through rigorous requirement extends to interpretations pre- from Senators as well. oversight, the Government is able to evalu- sented in applications or pleadings filed with We debated this legislation in com- ate whether changes are needed to the proce- either court by the Department of Justice. mittee where I opposed the version pro- dures or guidelines, and what other steps In addition to the summary, the Department duced by the Judiciary Committee may be appropriate to safeguard the privacy must provide copies of judicial decisions that which is now the basis of the Leahy of personal information. In addition, the De- include significant interpretations of FISA amendment. I opposed it because I have partment of Justice provides the joint as- within 45 days. learned a great deal both about the sessments and other reports to the FISC. The Government has complied with the value of the intelligence collected The FISC has been actively involved in the substantial reporting requirements imposed review of section 702 collection. Together, all by FISA to ensure effective congressional under the FAA and about the lengths of these mechanisms ensure thorough and oversight of these authorities. The Govern- that the intelligence community goes continuous oversight of section 702 activi- ment has informed the Intelligence and Judi- to protect the rights of U.S. citizens ties. ciary Committees of acquisitions authorized when collecting that intelligence.

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In addition, there is significant over- dered. The most important portion of the sight of the program to protect U.S. The amendment is as follows: FAA is Section 702. It authorizes, with citizens’ rights. The law requires that (Purpose: To require the Attorney General to approval of the Foreign Intelligence the Attorney General and director of disclose each decision, order, or opinion of a Foreign Intelligence Surveillance Court Surveillance Court, FISC, an 11-mem- National Intelligence conduct semi-an- that includes significant legal interpreta- ber panel of Article III judges ap- nual assessments of the surveillance tion of section 501 or 702 of the Foreign In- pointed by the Supreme Court, elec- activities. Furthermore, it authorizes telligence Surveillance Act of 1978 unless tronic surveillance of non-U.S. persons the inspector general of the Depart- such disclosure is not in the national secu- located overseas, but without the need ment of Justice to review the program rity interest of the United States) for individualized orders for every tar- at any time. Both houses of Congress At the appropriate place, insert the fol- get of the surveillance, as is required are provided the semi-annual reports lowing: for surveillance of anyone inside the and IG audits, as well as significant de- SEC. l. DISCLOSURE OF DECISIONS, ORDERS, AND OPINIONS OF THE FOREIGN IN- United States. The law specifically cisions of the FISC. These are on file TELLIGENCE SURVEILLANCE prohibits targeting U.S. persons, ac- with the Senate security office and any COURT. quiring wholly domestic communica- Senator and appropriately cleared staff (a) FINDINGS.—Congress finds the fol- tions, or targeting someone outside the can review them. lowing: U.S. with the intent to collect informa- This process works. Our oversight of (1) Secret law is inconsistent with demo- tion on a target inside the U.S. known the implementation of the statute has cratic governance. In order for the rule of as ‘‘reverse-targeting’’. found no evidence that it has been in- law to prevail, the requirements of the law must be publicly discoverable. It is possible that the communica- tentionally misused in order to eaves- (2) The United States Court of Appeals for tions of some U.S. citizens may be cap- drop on Americans. Senator FEINSTEIN, the Seventh Circuit stated in 1998 that the tured during the conduct of authorized chair of the Senate Select Committee ‘‘idea of secret laws is repugnant’’. surveillance. But that is only inciden- on Intelligence, and even Senator (3) The open publication of laws and direc- tally. The only way that a U.S. per- LEAHY, chairman of the Judiciary Com- tives is a defining characteristic of govern- son’s communication would be picked mittee, have stated that no such mis- ment of the United States. The first Con- up would be if that person were in com- conduct has been discovered. gress of the United States mandated that munication with a non-U.S. person For these reasons, we should reau- every ‘‘law, order, resolution, and vote thorize the statute without any [shall] be published in at least three of the overseas who had been targeted under public newspapers printed within the United the FAA. changes, as the House has done. The States’’. Some people think that a U.S. person only adjustment to the existing statute (4) The practice of withholding decisions of has a constitutional right not to have in the House bill is replacing the expi- the Foreign Intelligence Surveillance Court his communications with a foreign tar- ration date of December 31, 2012 with is at odds with the United States tradition of get eavesdropped by the U.S. govern- December 31, 2017, a 5-year period. That open publication of law. ment without a warrant. But that’s not is also what the administration sup- (5) The Foreign Intelligence Surveillance how the fourth amendment works. It ports and what the intelligence com- Court acknowledges that such Court has protects the rights of the person who is mittee passed this summer. A 5-year issued legally significant interpretations of the Foreign Intelligence Surveillance Act of being targeted, not anyone in contact period would allow the intelligence 1978 (50 U.S.C. 1801 et seq.) that are not ac- with him. For example, if the govern- community to continue utilizing these cessible to the public. ment legally taps the phone of a mafia valuable tools against potential terror- (6) The exercise of surveillance authorities godfather in the United States, it can ists or other intelligence targets with- under the Foreign Intelligence Surveillance listen to his conversation with anyone out interruption or delay. It will pro- Act of 1978 (50 U.S.C. 1801 et seq.), as inter- who calls him. It doesn’t need a court- vide the intelligence community with preted by secret court opinions, potentially issued warrant for the person calling, much needed certainty and stability in implicates the communications of United only for the godfather himself. He is a program that works to save Amer- States persons who are necessarily unaware of such surveillance. the one who has a reasonable expecta- ican lives. (7) Section 501 of the Foreign Intelligence tion of privacy in his telephone. The combination of the statutory Surveillance Act of 1978 (50 U.S.C. 1861), as In the same way, when the govern- limitations on collection, targeting amended by section 215 of the USA PATRIOT ment legally intercepts the commu- and minimization procedures, and ac- Act (Public Law 107–56; 115 Stat. 287), author- nications of a terrorist living overseas, quisition guidelines, court review of izes the Federal Bureau of Investigation to it can listen to his conversation with those procedures and guidelines, and require the production of ‘‘any tangible anyone who contacts him, even if the compliance oversight by the adminis- things’’ and the extent of such authority, as other party is in the United States. tration and Congress, ensure that the interpreted by secret court opinions, has What matters is whether the govern- been concealed from the knowledge and rights of U.S. persons are sufficiently awareness of the people of the United States. ment has the legal authority to inter- protected when their communications (8) In 2010, the Department of Justice and cept the communications of the ter- are incidentally collected in the course the Office of the Director of National Intel- rorist in the first place. That’s what of targeting non-U.S. persons located ligence established a process to review and the FAA provides. It is important to abroad. declassify opinions of the Foreign Intel- point out that no warrant is required I urge my colleagues to support the ligence Surveillance Court, but more than because the target is not a U.S. citizen House passed version of the FAA reau- two years later no declassifications have and is located overseas. So, the fourth thorization so we can ensure that there been made. (b) SENSE OF CONGRESS.—It is the sense of amendment doesn’t apply to him. is no interruption in one of our most Congress that each decision, order, or opin- Instead, under Section 702, the FISC vital national security tools. ion issued by the Foreign Intelligence Sur- approves annual certifications from The ACTING PRESIDENT pro tem- veillance Court or the Foreign Intelligence the attorney general and director of pore. The Senator from Oregon. Surveillance Court of Review that includes National Intelligence about collection AMENDMENT NO. 3435 significant construction or interpretation of of information on categories of foreign Mr. MERKLEY. Mr. President, I call section 501 or section 702 of the Foreign In- intelligence targets, what procedures telligence Surveillance Act of 1978 (50 U.S.C. up my amendment which is at the 1861 and 1881a) should be declassified in a the intelligence community will use to desk. manner consistent with the protection of na- accomplish this surveillance, how they The ACTING PRESIDENT pro tem- tional security, intelligence sources and will target subjects for surveillance, pore. The clerk will report. methods, and other properly classified and and how the IC will use the informa- The bill clerk read as follows: sensitive information.

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U.S.C. 1861) is amended by adding at the end eter. ‘‘(D) UNCLASSIFIED REPORT.—Notwith- One of the problems we have is that the following: standing subparagraphs (B) and (C), if the ‘‘(i) DISCLOSURE OF DECISIONS.— Attorney General makes a determination sometimes lawyers start looking for ‘‘(1) DECISION DEFINED.—In this subsection, that any decision may not be declassified loopholes, and we can address those the term ‘decision’ means any decision, under subparagraph (B) and an unclassified loopholes if they are discussed in a order, or opinion issued by the Foreign Intel- summary of such decision may not be made public setting, if we can get our hands ligence Surveillance Court or the Foreign In- available under subparagraph (C), the Attor- around them. But if they are loopholes telligence Surveillance Court of Review that ney General shall make available to the pub- created in secrecy, then indeed it is includes significant construction or interpre- lic an unclassified report on the status of the tation of this section. very hard to have a debate on the floor internal deliberations and process regarding of the Senate about whether those ‘‘(2) REQUIREMENT FOR DISCLOSURE.—Sub- the declassification by personnel of Execu- ject to paragraphs (3) and (4), the Attorney tive branch of such decisions. Such report loopholes or interpretations are right General shall declassify and make available shall include— or whether we should change the law in to the public— ‘‘(i) an estimate of the number of decisions order to address them. ‘‘(A) each decision that is required to be that will be declassified at the end of such Of course, our laws have had to be submitted to committees of Congress under deliberations; and updated and changed over time to section 601(c), not later than 45 days after ‘‘(ii) an estimate of the number of deci- adapt to new technology and changing such opinion is issued; and sions that, through a determination by the ‘‘(B) each decision issued prior to the date threats, and one of those developments Attorney General, shall remain classified to was the creation of the Foreign Intel- of the enactment of the llll Act that was protect the national security of the United required to be submitted to committees of States.’’. ligence Surveillance Act in the 1970s. Congress under section 601(c), not later than In 1972, the Supreme Court held the 180 days after such date of enactment. Mr. MERKLEY. Mr. President, I rise fourth amendment does not permit ‘‘(3) UNCLASSIFIED SUMMARIES.—Notwith- this morning to talk about the Foreign warrantless surveillance for intel- standing paragraph (2) and subject to para- Intelligence Surveillance Act and the ligence investigations within our coun- graph (4), if the Attorney General makes a concerns I and many of my colleagues determination that a decision may not be de- try. One may wonder how this even have. took a Supreme Court decision since classified and made available in a manner Earlier this morning, Senator that protects the national security of the the fourth amendment is so absolutely WYDEN, the senior Senator from Or- United States, including methods or sources clear on this point. related to national security, the Attorney egon, was discussing at length the im- In 1978, Congress enacted FISA—For- General shall release an unclassified sum- portance of the fourth amendment, the eign Intelligence Surveillance Act—to mary of such decision. importance of Americans knowing the regulate government surveillance with- ‘‘(4) UNCLASSIFIED REPORT.—Notwith- boundaries and the rules under which in our country that is conducted for standing paragraphs (2) and (3), if the Attor- our government collects intelligence foreign intelligence purposes. Under ney General makes a determination that any and to know their rights to privacy are decision may not be declassified under para- FISA, the government had to obtain an protected. order from a special court called the graph (2) and an unclassified summary of Under this Foreign Intelligence Sur- such decision may not be made available FISA Court in order to spy on Ameri- veillance Act, there are a variety of under paragraph (3), the Attorney General cans. This is certainly an appropriate ways in which that assurance is com- shall make available to the public an unclas- boundary to implement. The order re- promised, and Senator WYDEN did a sified report on the status of the internal de- quired the government to obtain a war- liberations and process regarding the declas- very good job of laying those out. I rant and show probable cause. These sification by personnel of Executive branch wish to emphasize that same message; are the same basic, commonsense pro- of such decisions. Such report shall include— that our country was founded on the tections we have had in place for other ‘‘(A) an estimate of the number of deci- principles of privacy and liberty, of sions that will be declassified at the end of types of searches. This development re- protection from an overreaching cen- such deliberations; and quired individualized and particular or- tral government. ‘‘(B) an estimate of the number of deci- ders from the FISA Court to collect During the founding, we set out and sions that, through a determination by the communications. said we are going to be a new kind of Attorney General, shall remain classified to But now let’s fast forward to 2001. protect the national security of the United nation; one that will not permit an President Bush decided in secret to au- States.’’. overbearing, intrusive government spy- thorize the National Security Agency (2) SECTION 702.—Section 702(l) of the For- ing on citizens or meddling in their pri- to start a new program of warrantless eign Intelligence Surveillance Act of 1978 (50 vate affairs. This belief was enshrined U.S.C. 1881a(l)) is amended by adding at the surveillance inside the United States. in our fourth amendment: end the following: This is in complete contravention of ‘‘(4) DISCLOSURE OF DECISIONS.— The right of the people to be secure in the fourth amendment and in complete ‘‘(A) DECISION DEFINED.—In this paragraph, their persons, houses, papers, and effects, against unreasonable searches and seizures, contravention of the law at that time. the term ‘decision’ means any decision, As I am sure many of my colleagues order, or opinion issued by the Foreign Intel- shall not be violated, and no Warrants shall ligence Surveillance Court or the Foreign In- issue, but upon probable cause, supported by will certainly recall, this was revealed telligence Surveillance Court of Review that Oath or affirmation, and particularly de- to the American people 4 years later includes significant construction or interpre- scribing the place to be searched, and the when it was reported in the New York tation of this section. persons or things to be seized. Times in 2005. In response, after years ‘‘(B) REQUIREMENT FOR DISCLOSURE.—Sub- I think that is an extraordinarily of back and forth contentious debate, ject to subparagraphs (C) and (D), the Attor- complete description saying that the Congress passed the FISA Amendments ney General shall declassify and make avail- government is bound—bound—by hav- Act—the bill we are considering on this able to the public— ing to demonstrate before a court prob- floor today. We are considering a reau- ‘‘(i) each decision that is required to be submitted to committees of Congress under able cause a case that is put forward thorization. This law gave the govern- section 601(c), not later than 45 days after and backed up by oath or affirmation, ment new surveillance authority but such opinion is issued; and a case that is put forward with great also included a sunset provision to en- ‘‘(ii) each decision issued prior to the date detail about the places to be searched sure that Congress examines where the of the enactment of the llll Act that was and the persons or things to be seized. law is working and the way it was in- required to be submitted to committees of So the concept is laid out very clear- tended. Congress under section 601(c), not later than ly about what constitutes unreasonable The debate we are having right now 180 days after such date of enactment. searches and seizures. It is certainly on this floor is that reexamination. I ‘‘(C) UNCLASSIFIED SUMMARIES.—Notwith- not that the government can’t collect will note that I think it is unfortunate standing subparagraph (B) and subject to subparagraph (D), if the Attorney General information, just they have to show that we are doing this at the last sec- makes a determination that a decision may probable cause of a crime in order to ond. We have known that this intel- not be declassified and made available in a create that boundary that says the in- ligence law is going to expire for years. manner that protects the national security formation we have in our daily lives. I It was laid out for a multiyear span.

VerDate Mar 15 2010 01:28 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00016 Fmt 4624 Sfmt 0634 E:\CR\FM\A27DE6.002 S27DEPT1 smartinez on DSK6TPTVN1PROD with December 27, 2012 CONGRESSIONAL RECORD — SENATE S8399 Certainly, it is irresponsible for this else of what we should know about this understood that Americans in a democ- Chamber to be debating this bill under law remains secret. In fact, we have ex- racy deserve to know what the words a falsely created pressure that it needs tremely few details about how the are being interpreted to mean. We have to be done without any amendments in courts have interpreted the statutes the Assistant Attorney General for Na- order to match the bill from the House. that have been declassified and re- tional Security during her hearings ex- That is a way of suppressing debate on leased to the public. This goes to the press that she supports significant in- critical issues here in America. issue of secret law my colleague from structions or interpretations being If you care about the fourth amend- Oregon was discussing earlier. If you made available to the public. But here ment, if you care about privacy, you have a phrase in the law and it has we are 2 years later since the 2010 ex- should be arguing that we should ei- been interpreted by a secret court and pressions and a year from the con- ther create a very short-term extension the interpretation is secret, then you firmation hearings for Lisa, and noth- in order to have this debate fully or really do not know what the law ing has been declassified—nothing. that we should have had this debate means. The amendment I am offering today months ago so it could have been done The FISA Court is a judicial body es- sets out a three-step process for send- in a full and responsible manner, with tablished by Congress to consider re- ing the message it is important Ameri- no pressure to vote against amend- quests for surveillance made under the cans know the interpretations of these ments in order to falsely address the FISA Amendments Act, but, almost laws. It does so in a fashion that is issue of partnering with the House bill. without exception, its decisions, in- carefully crafted to make sure there is This law included that sunset provi- cluding significant legal interpreta- no conflict with national security. sion. Now here we are looking at the tions of the statute, remain highly First you call upon the Attorney extension. It is a single-day debate, classified. They remain secret. General to declassify the FISA report crowded here into the holidays when I am going to put up this chart just in court of review opinions that include few Americans will be paying atten- to emphasize that this is a big deal. significant legal interpretations. If the tion. But I think it is important, none- Here in America, if the law makes a Attorney General makes a decision, theless, for those of us who are con- reference to what the boundary is, we however, that it cannot be declas- cerned about the boundaries of privacy should understand how the court inter- sified—those decisions—in a way that and believe the law could be strength- prets that boundary so it can be de- does not jeopardize national security, ened to make our case here in hopes bated. If the court reaches an interpre- then the amendment requires the ad- that at some point we will be able to tation with which Congress is uncom- ministration to declassify summaries have the real consideration these fortable, we should be able to change of their opinions. issues merit. that, but of course we cannot change So at the first point, you have the of- In my opinion, there are serious re- it, not knowing what the interpreta- ficial written court opinions. But pos- forms that need to be made before we tion is because the interpretation is se- sibly woven into those court opinions consider renewing this law. This law is cret. So we are certainly constrained are a variety of contexts about ways supposed to be about giving our gov- from having the type of debate that and manner of gathering intelligence ernment the tools it needs to collect our Nation was founded on—an open that pose national security problems. the communications of foreigners, out- discussion of issues. side of our country. If it is possible These are issues that can be ad- This amendment says: OK, if that is that our intelligence agencies are using dressed without in any way compro- the case, we certainly do not want to the law to collect and use the commu- mising the national security of the disclose sensitive information about nications of Americans without a war- United States. Understanding how cer- ways and means of collecting intel- rant, that is a problem. Of course, we tain words are interpreted tells us ligence, so declassify summaries. That cannot reach conclusions about that in where the line is drawn. But that line, way, we can understand the legal inter- this forum because this is an unclassi- wherever it is drawn, is, in fact, rel- pretation without adjoining informa- fied discussion. evant to whether the intent of Con- tion that might represent a national security problem. My colleagues Senator WYDEN and gress is being fulfilled and whether the Senator UDALL, who serve on Intel- protection of citizens under the fourth This amendment goes further. If the ligence, have discussed the loophole in amendment is indeed standing strong. Attorney General decides that not even the current law that allows the poten- An open and democratic society such a summary can be declassified without tial of backdoor searches. This could as ours should not be governed by se- compromising national security, then allow the government to effectively cret laws, and judicial interpretations the amendment requires the adminis- use warrantless searches for law-abid- are as much a part of the law as the tration to report to Congress regarding ing Americans. Senator WYDEN has an words that make up our statute. The the status of its process for declas- amendment that relates to closing that opinions of the FISA Court are control- sifying these opinions—a process the loophole. ling. They do matter. When a law is administration has already said it is Congress never intended the intel- kept secret, public debate, legislative undertaking. It just says: Tell us where ligence community to have a huge intent, and finding the right balance you are. database to sift through without first between security and privacy all suffer. It is probably very clear from my dis- getting a regular probable cause war- In 2010, due to concerns that were cussion that I would prefer that the rant, but because we do not have the raised by a number of Senators about opinions, the actual court opinions, be details of exactly how this proceeds the problem of classified FISA Court declassified and that perhaps, if they and we cannot debate in a public forum opinions, the Department of Justice are sensitive, the national security in- those details, then we are stuck with and the Office of the Director of Na- formation would be redacted. That is wrestling with the fact that we need to tional Intelligence said they would es- the normal process in which documents have the sorts of protections and ef- tablish a process to declassify opinions are declassified—you black out or re- forts to close loopholes that Senator of the FISA Court that contained im- move sections that are sensitive. But WYDEN has put forward. portant rulings of law. In 2011, prior to the amendment I am presenting goes What we do know is that this past her confirmation hearing, Lisa further on the side of protecting na- summer, the Director of National In- Monaco, who is our Assistant Attorney tional security, saying: You don’t have telligence said in a public forum that General for National Security, ex- to just redact court opinions, you can on at least one occasion the FISA pressed support for declassifying FISA do a summary that addresses signifi- Court has ruled that a data collection opinions that include ‘‘significant in- cant legal implications without ad- carried out by the government did vio- structions or interpretations of FISA.’’ dressing the ways and means that late the fourth amendment. We also So here we have the situation where might be embedded in a further court know that the FISA Court has ruled the Department of Justice and the Of- decision. Furthermore, Mr. Attorney that the Federal Government has cir- fice of the Director of National Intel- General, if you make a decision that cumvented the spirit of the law as well ligence said they would establish a not even that is possible, then update as the letter of the law. But too much process of declassifying opinions. They us on the process.

VerDate Mar 15 2010 01:28 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00017 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.020 S27DEPT1 smartinez on DSK6TPTVN1PROD with S8400 CONGRESSIONAL RECORD — SENATE December 27, 2012 But the key point is that it requires Let me show an example of a passage. spond to a couple points. I also wish to the Attorney General to make a deci- Here is a passage about what informa- commend my colleague Senator sion, a clear decision over the national tion can be collected: ‘‘ . . . reasonable MERKLEY from Oregon for his excellent security balance and provide what can grounds to believe that the tangible statement. He has been doing yeoman’s be done within the context, within the things sought are relevant to an au- work in terms of trying to promote ac- framework of not compromising our thorized investigation (other than a countability and transparency on this national security. threat assessment) conducted in ac- issue and the work he has done in the This is so straightforward that any- cordance with subsection (a)(2),’’ and Senate. I am going to correct a couple one bringing the argument to this floor so on. of misconceptions about what has been that we should not do it because it Let me stress these words: ‘‘relevant said and also talk on behalf of the good compromises national security really to an authorized investigation.’’ work Senator MERKLEY is doing. has no case to make—absolutely no There are ongoing investigations, With respect to this amendment I case to make. multitude investigations about the will be offering, I believe the Senate The ACTING PRESIDENT pro tem- conduct of individuals and groups cannot say we passed the smell test pore. The time of the Senator, under around this planet, and one could make with respect to doing vigorous over- the order, has expired. the argument that any information in sight if we don’t have some sense of Mr. MERKLEY. My understanding is the world helps frame an under- how many Americans in our country that 30 minutes was allocated? standing of what these foreign groups who are communicating with each The ACTING PRESIDENT pro tem- are doing. So certainly there has been other are being swept up under this pore. Thirty minutes equally divided. some FISA Court decision about what legislation. For purposes of the FISA Mr. WYDEN. Mr. President, par- ‘‘relevant to an authorized investiga- Amendments Act, I think we ought to liamentary inquiry: Can I yield to Sen- tion’’ means or what ‘‘tangible things’’ know, generally, how many Americans are being swept up under the legisla- ator MERKLEY time from general de- means. Is this a gateway that is thrown bate in order to let him complete his wide open to any level of spying on tion. Oversight essentially would be remarks? Americans or is it not? Is it tightly toothless without this kind of informa- The ACTING PRESIDENT pro tem- constrained in understanding what this tion. I wish to correct one misconception pore. With the unanimous consent of balance of the fourth amendment is? with respect to where we are on the the Senate. We do not know the answer to that. We language in the reporting amendment. Mr. WYDEN. I ask unanimous con- should be able to know. The distinguished chair of the com- sent. If we believe that an administration mittee urged Senators to visit the of- The ACTING PRESIDENT pro tem- and the secret court have gone in a di- fices of the Senate Select Committee pore. Without objection, it is so or- rection incompatible with our under- on Intelligence to see the documents dered. standing of what we were seeking to the chair has stated relate to intel- Mrs. FEINSTEIN. Well, wait a defend, then that would enable us to ligence officials who say it is impos- minute. have that debate here about whether sible for them to estimate the number The ACTING PRESIDENT pro tem- we tighten the language of the law in of law-abiding Americans who have had pore. Is there objection? accordance with such an interpreta- their communications swept up under Mrs. FEINSTEIN. I object, if it is tion. Again, is this an open gateway to the legislation. However, the fact is time on our side that will be used. any information anywhere in the that when colleagues read the amend- Mr. MERKLEY. Mr. President, if world, anytime, on anyone or is it a ment I will be offering, they will see I there is no one else waiting to speak, I very narrow gate? We do not know. am not requiring anyone to take on a ask unanimous consent to speak as in American citizens should have the abil- new task of preparing an estimate of morning business and will yield when ity to know, and certainly a Senator how many law-abiding Americans have someone is ready, prepared to speak to working to protect the fourth amend- been swept up in it. This is simply a re- the bill. ment should know that as well. We quest to the intelligence community, The ACTING PRESIDENT pro tem- have always struck a balance in this which states that if any estimate has pore. Is there objection? country between an overbearing gov- already been done, that estimate ought The Senator from California. ernment and the important pathway to to be provided. Mrs. FEINSTEIN. Mr. President, let obtaining information relevant to our When the distinguished chair of the me do something I do sometimes—cor- national security. committee says Senators should go rect myself. If the Senator is offering The amendment I am laying forth over to the committee’s offices and to use the time on his side, that is fine strikes that balance appropriately. It look at the documents which state that with me. As long as it is not using the urges the process to continue by pro- the intelligence community cannot do time for the bill on our side. viding an understanding of what the se- a new estimate, I want Senators to Mr. WYDEN. Mr. President, I think cret court interpretations are, which is know the language of my amendment this is acceptable, yes. very important to democracy. It pro- does not ask for a new estimate. In no Mrs. FEINSTEIN. I thank the Sen- vides the appropriate balance with na- way does it ask for a new estimate. It ator. tional security, gives clear decision- simply says: If an estimate has been Mr. MERKLEY. Mr. President, I making authority to the Attorney Gen- done, that estimate ought to be fur- thank my colleagues for setting out eral of this process, and in that sense it nished. If no estimate has been done, the parameters. I am going to wrap gives the best possible path that hon- the answer to that is simply no. We this up in fairly short order. ors national security concerns while will be very clear about it, and the I again wish to emphasize that if any demanding transparency and account- matter will have been clarified. If no of my colleagues would like to come ability for this issue of privacy and estimate has been done, then fine; the down and argue that this in any way protection of the fourth amendment. answer is no. compromises national security, I will The ACTING PRESIDENT pro tem- As I indicated earlier, the amend- be happy to have that debate because pore. The Senator from Oregon. ment also requires the intelligence this has been laid out very clearly so Mr. WYDEN. For purpose of general community to state whether any whol- the Attorney General has complete debate, how much time remains on our ly domestic communications have been control over any possible compromise side and how much time remains under collected. That again can be answered of information related to national se- the control of the distinguished chair with a yes or no. Finally, it requires a curity. Indeed, although I think it is of the committee? response as to whether the National important for this body to continue to The ACTING PRESIDENT pro tem- Security Agency has collected personal express that the spirit of what we do in pore. The opponents have 140 minutes information on millions of Americans, this Nation should be about citizens to remaining; the proponents have 183 and that too is a very straightforward the maximum extent possible having minutes remaining. answer. full and clear understanding of how the Mr. WYDEN. I thank the Chair. I will I think when we talk about this kind letter of the law is being interpreted. speak out of our time in order to re- of information, we ought to come back

VerDate Mar 15 2010 02:06 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00018 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.021 S27DEPT1 smartinez on DSK6TPTVN1PROD with December 27, 2012 CONGRESSIONAL RECORD — SENATE S8401 to the fact that no sources and meth- The amendment I am talking about than the issue which has been raised by ods in the intelligence community with respect to basic information on the distinguished chair of the com- would be compromised. In no way the number of Americans who have had mittee. The amendment does not re- would the operations or the important their communications swept up under quire anyone to do an estimate. It sim- work of the intelligence community be FISA—whether Americans with respect ply says that if an estimate already ex- interrupted. What it would simply do is to wholly domestic communications ists, that estimate ought to be pro- provide us with what I think are the have been swept up under this law—in vided to the Congress. basics that this Senate needs to be able my view that information ought to be Let me also make some brief re- to say it is doing real oversight over a available to this body in documents marks on this issue of secret law that very broad area of surveillance law. Members can actually access. Frankly, touches on the point raised by my col- I hope Senators will ask themselves it ought to be available in a single doc- league from Oregon Senator MERKLEY, as we look at this: Do we in the Senate ument which Members can access. who I think has given a very good pres- know whether anyone has ever esti- In connection with the discussion entation on the floor and has a very mated how many U.S. phone calls and about these issues, we will also hear good amendment. When the laws are e-mails have been warrantless col- the answers to these questions should interpreted in secret, the results fre- lected under the statute? Does the Sen- not be made public. The amendment I quently fail to stand up to public scru- ate know whether any wholly domestic am going to be offering with respect to tiny. We have talked about this on the phone calls or e-mails have been col- getting a rough set of estimates as to floor and in the committee and it isn’t lected under this statute? Does the how many Americans are being swept that surprising when we think about it. Senate know whether the government up under these authorities—and wheth- The law-making process in our country has ever conducted any warrantless, er an estimate actually even exists— is often cumbersome, it is often frus- backdoor searches for Americans’ com- gives the President full authority to trating, and it is often contentious. munication? If not, this is the Senate’s redact whatever information he wishes But over the long run I think we know chance to answer that question. from the public version of the report. this process is the envy of the world be- When our constituents come forward Under the amendment I am pursuing, cause it gives us a chance to have a and ask us whether the government is real debate, generate support of most the executive branch would have full protecting our privacy rights as we Americans because then people see, discretion to decide whether it is ap- protect our security, the question is: when they have had a chance to be a propriate to make any of this informa- How does the Senator look their con- part of a discussion, that they are em- tion public. stituents in the eye and tell them they powered in our system of government. As we ensure more transparency and don’t know and are not in a position to On the other hand, when laws are se- more accountability with respect to get information that is essential to cretly interpreted behind closed doors this information and access to it, no pass the smell test when it comes to by a small number of government offi- sources or methods which have to be this body doing basic oversight over cials without public scrutiny or debate, protected—including important work what is certainly a broad and, for many we are much more likely to end up Americans, rather controversial sur- the intelligence committee is doing— with interpretations of the law that go veillance law. will be compromised in any way. The well beyond the boundaries of what the I assume—because we have already last word on this subject is the call of public accepts or supports. So let’s be heard some characterizations of my the President of the United States, who clear that when we are talking about amendment, which are simply and fac- has the full discretion to decide wheth- public scrutiny and having debates, tually incorrect—that we will have er it is appropriate to make any of this that is what allows the American peo- other responses to the reporting information public. ple to see that those of us who are hon- amendment in terms of objections. I Finally, we are undoubtedly going to ored to serve them are following their have already stated my first concern: hear that the law is about to expire will. The intelligence community stating and amendments will slow it down. Sometimes it is entirely legitimate that they cannot estimate how many First of all, I think many of us would for government agencies to keep cer- Americans’ communications are col- rather have had this debate earlier in tain information secret. In a demo- lected under key section 702 of FISA. this session of the Senate, and had cratic society, of course, citizens right- Again, my response is that when Sen- there been more dialog on many of ly expect their government will not ar- ators look at the text of the amend- these issues, that would have been pos- bitrarily keep information from them, ment, it does not require anybody to do sible. We are where we are, and I think and throughout our history our people an estimate. It simply says that if esti- all of us understand that. We under- have guarded their right to know. But mates do exist, they ought to be pro- stand this is a huge challenge. The fis- I think we also know our constituents vided to the Congress. When it comes cal cliff is vital in terms of our work acknowledge certain limited excep- to our oversight responsibilities, I do this week, but I continue to believe the tions exist in this principle of open- not think that request is excessive or other body is perfectly capable of pass- ness. For example, most Americans ac- unreasonable. ing this legislation before the end of knowledge that tax collectors need to Second, I think we will hear the the year. have access to some financial informa- House and Senate Intelligence Com- The amendments that are being of- tion, but the government does not have mittees already do oversight of FISA. fered all go to the issue of trans- the right to share this information Every Member of the Congress has to parency and accountability. Not one of openly. So we strike the appropriate vote on whether to renew the FISA those amendments would jeopardize balance on a whole host of these issues Amendments Act. Frankly, I think the ongoing issues and operations on a regular basis. every Member of this body ought to be which relate to the sources and meth- Another limited exception exists for able to get a basic understanding of ods of the intelligence community. The the protection of national security. how the law actually works, and that is Congress can make amendments to im- The U.S. Government has the inherent not available today. prove oversight and still keep this law responsibility to protect its citizens Next, we will hear that the intel- from expiring. from threats, and it can do this most ligence community has already pro- With respect to the reporting amend- effectively if it is sometimes allowed to vided the Congress with lots of infor- ment, I hope the argument made by the operate in secrecy. I don’t expect our mation about the FISA Amendments distinguished chair of the committee generals to publicly discuss the details Act. As the Presiding Officer knows that the intelligence community has of every troop movement in Afghani- from his service on the committee, said they cannot estimate how many stan any more than Americans ex- much of that information is in highly Americans’ communications have been pected George Washington to publish classified documents that are difficult collected under section 702—that Sen- his strategy for the Battle of York- for most Members to review. The re- ators go to the offices of the Intel- town. By the same token, American ality is most Members literally have no ligence Committee. When colleagues citizens recognize their government staff who have the requisite security look at the text of the amendment, the may sometimes rely on secret intel- clearance in order to read them. amendment does something different ligence collection methods in order to

VerDate Mar 15 2010 02:06 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00019 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.022 S27DEPT1 smartinez on DSK6TPTVN1PROD with S8402 CONGRESSIONAL RECORD — SENATE December 27, 2012 ensure national security, ensure public lic and government officials must not the KGB so Soviet agents wouldn’t safety, and they recognize these meth- be allowed to fall into the trap of se- know whether the FBI was allowed to ods often are more effective when the cretly reinterpreting the law in a way track them down. But American laws details—what are the operations and that creates a gap between what the and the American Constitution methods as we characterize them under public thinks the law says and what shouldn’t be public only when govern- intelligence principles—remain secret. the government is secretly claiming ment officials think it is convenient. But while Americans recognize govern- the law says. Any time that is being They ought to be public all the time. ment agencies will sometimes rely on done, it first violates the public trust, Americans ought to be able to find out secret sources and methods to collect and, second, I have long felt that allow- what their government thinks those intelligence information, Americans ing this kind of gap—a gap between the laws mean, and I think it is possible to expect these agencies will at all times government’s secret interpretation of do that while still ensuring that sen- operate within the boundaries of pub- the law and what the public thinks the sitive information—information about licly understood law. law is—undermines the confidence our sources and methods and the oper- I have had the honor to serve on the people are going to have in govern- ations of the intelligence community— Intelligence Committee now for over a ment. Also, by the way, it is pretty is appropriately kept secret. decade. I don’t take a backseat to any- shortsighted because history shows the My own view is the executive branch one when it comes to the importance of secret interpretations of the law are in the United States has so far failed to protecting genuine, sensitive details not likely to stay secret forever, and live up to their promises of greater about the work being done in the intel- when the public eventually finds out transparency in this area, greater com- ligence community, particularly their government agencies are rewriting mitment to ensuring the public sees sources and methods. However, the law these surveillance laws in secret, the how our laws are being interpreted. As itself should never be secret. The law result is invariably a backlash and an long as there is a gap between the way itself should never be secret because erosion of confidence in these impor- the government interprets these laws voters have a right to know what the tant government intelligence agencies and what the public sees when people law says and what their government and the important work, as I noted this are sitting at home and looking it up thinks the text of the law means so morning, our intelligence officials are on their laptops, I am going to do ev- they can make a judgment about doing. erything I can to reduce that gap and whether the law has been appropriately So this is a big problem. Our intel- to ensure our citizens, consistent with written, and they can then ratify or re- ligence and national security agencies our national security, have additional ject the decisions elected officials are staffed by exceptionally hard-work- information with respect to how our make on their behalf. ing and talented men and women, and laws are interpreted. We can do that When it comes to most government the work they do is extraordinarily im- while at the same time protecting the functions, the public can directly ob- portant. If the public loses confidence critical work being done by officials in serve the functions of government and in these agencies, it doesn’t just under- the intelligence community. the typical citizen can decide for him- cut morale, it makes it harder for With that, I am happy to yield to the self or herself whether they support or these agencies to do their jobs. If we distinguished chairwoman. agree with the things their government ask the head of any intelligence agen- The ACTING PRESIDENT pro tem- is doing. American citizens can visit cy, particularly an agency that is in- pore. The Senator from California. our national forests—we take par- volved in domestic surveillance in any Mrs. FEINSTEIN. Mr. President, I ticular pride in them in our part of the way, he or she will tell us that public wish to take a moment to clarify this country—and decide for themselves trust is a vital commodity and vol- question of secret law. This code book whether the forests are being appro- untary cooperation from law-abiding I am holding is the law. It is not secret. priately managed. When our citizens Americans is critical to the effective- This is all of the code provisions which drive on the interstate, they can decide ness of their agencies. If members of guarantees the legality of what the in- for themselves whether those highways the public lose confidence in these gov- telligence community does. There is a have been properly laid out and ade- ernment agencies because they think whole section on congressional over- quately maintained. If they see an indi- government officials are rewriting sur- sight. There is a whole section on addi- vidual is being punished, they can veillance laws in secret, those agencies tional procedures regarding persons in- make judgments for themselves wheth- are going to be less effective. I don’t side the United States and persons out- er that sentence is too harsh or too le- want to see that happen. On my watch, side the United States. This, in fact, is nient, but they generally can’t decide I don’t want to be a part of anything the law. We can change the law, and for themselves whether intelligence that makes our intelligence agencies Senator WYDEN had something to do agencies are operating within the law. less effective. with adding section 704. He did, in fact, That is why, as the U.S. intelligence Officials at these government agen- change the law to put additional pri- community evolved over the past sev- cies do not get up in the morning to do vacy protections in and those privacy eral decades, the Congress has set up a their work with malicious intent. They protections are up for reauthorization number of watchdog and oversight work very hard to protect intelligence in this bill before us. mechanisms to ensure intelligence sources and methods for good reasons. I wish to address, if I could, what agencies follow the law rather than Sometimes what happens is people lose Senator MERKLEY said in his com- violate it. That is why both the House sight of the difference between pro- ments. I listened carefully. What he is and the Senate have Select Intel- tecting sources and methods, which saying is opinions of the Foreign Intel- ligence Committees. It is also why the ought to be kept secret, and the law ligence Surveillance Court should, in Congress created the Foreign Intel- itself, which should not be kept secret. some way, shape or form, be made pub- ligence Surveillance Court, and it is Sometimes they even go so far as to lic, just as opinions of the Supreme why the Congress created a number of argue that keeping the interpretation Court or any court are made available statutory inspectors general to act as of the law secret is actually necessary to the public. To a great extent, I find independent watchdogs inside the in- because it prevents our Nation’s adver- myself in agreement with that. They telligence agencies themselves. All saries from figuring out what our intel- should be. Why can’t they be? Because these oversight entities—one of which I ligence agencies are allowed to do. My the law and the particular factual cir- am proud to serve on, the Senate Se- own view is this is ‘‘Alice in Wonder- cumstances are mixed together in the lect Committee on Intelligence—all of land’’ logic, but if the U.S. Government opinion, so the particular facts and cir- them were created, at least in part, to were to actually adopt it, then all our cumstances are possibly classified. ensure intelligence agencies carry out surveillance laws would be kept secret Hopefully the opinion can either be all their activities within the bound- because that would, I guess one could written in a certain way for public re- aries of publicly understood law. argue, be even more useful. When Con- lease or the Attorney General can be But I come back to my reason for gress passed the Foreign Intelligence required to prepare a summary of what bringing up this issue this afternoon. Surveillance Act in 1978, it would have that opinion said for release to the The law itself always ought to be pub- been useful to keep the law secret from public.

VerDate Mar 15 2010 02:06 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00020 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.024 S27DEPT1 smartinez on DSK6TPTVN1PROD with December 27, 2012 CONGRESSIONAL RECORD — SENATE S8403 There is one part of Senator now dealt with the issue in a fashion so If we can adopt the Senator’s amend- MERKLEY’s amendment which I think as to protect the first amendment and ment and then move on to the intel- we can work together on regarding the the public’s right to know, and I appre- ligence authorization bill, that will be FISA Court opinions, and that is on ciate the chair working with this Sen- a very constructive way to proceed, page 5, lines 3 to 11, where the amend- ator on it. very much in the public interest. The ment says: I think we have a good intelligence Senator is obviously making headway. . . . if the Attorney General makes a deter- authorization bill now for this year. I Mr. MERKLEY. Mr. President, if I mination that a decision may not be declas- think the chair’s suggestion that we could interject for a moment. sified and made available in a manner that look at dealing with this issue of secret Mr. WYDEN. Yes, of course. protects the national security of the United law—in addition, I hope, to adopting The ACTING PRESIDENT pro tem- States, including methods or sources related the Merkley amendment—that we deal pore. The Senator from Oregon. to national security, the Attorney General with it in the next intelligence author- Mr. MERKLEY. I thank my colleague shall release an unclassified summary of ization bill is constructive. I do want from Oregon for spearheading this such decision. to respond to one point on the merits whole conversation about privacy and I have talked to Senator MERKLEY with respect to comments made by the national security and how the two are about this, and I have offered my help distinguished chair on this issue. not at war with each other. We are in working to establish this. The prob- The distinguished chair of the com- simply looking for appropriate warrant lem is, we have 4 days, and this par- mittee essentially said the law is pub- processes, an assurance to the public ticular part of the law expires, the lic because the text of the statute is that the boundaries of privacy are FISA Amendments Act. I have offered public. That is true. That is not in dis- being respected. Certainly, a piece of to Senator MERKLEY to write a letter pute. It is true that the text of the law that is the secret law. I appreciate the requesting declassification of more is public. But the secret interpreta- comments of the chair of the Intel- FISA Court opinions. If the letter does tions of that law and the fourth amend- ligence Committee on this issue. I do not work, we will do another intel- ment from the FISA Court are not pub- feel that in a democracy, under- ligence authorization bill next year, lic. The administration pledged 3 years standing how a statute is interpreted is and we can discuss what can be added ago to do something about that. They essential to the conduct of our respon- to that bill on this issue. pledged it in writing in various kinds sibility in forging laws and ensuring that the constitutional vision is pro- I am concerned that what is hap- of communications, and that still has tected. pening is the term ‘‘secret law’’ is not been done. That is why this is an being confused with what the Foreign Mr. WYDEN. I thank my colleague. important issue with respect to trans- He is making an important point. I Intelligence Surveillance Court issues parency and accountability. have sat next to Senator FEINSTEIN in in the form of classified opinions based The distinguished chair of the com- the Intelligence Committee now for 12 on classified intelligence programs. As mittee is absolutely correct that the years, and I think all of us—and we I have made clear, the law is public and law is public. The text of the law is have had chairs on both sides of the when possible, the opinions of the For- public. Nobody disputes that. But the eign Intelligence Surveillance Court aisle—understand how important the secret interpretations of the law and work of the intelligence community is. should be made available to the public the fourth amendment—the interpreta- in declassified form. It can be done, and This is what prevents so many threats tions of the FISA Court are not public, to our country from actually becoming I think it should be done more often. and we have received pledges now for If the opinion cannot be made public, realities—tragic realities. years that this would change. What my friend and colleague from hopefully a summary of the opinion I remember—perhaps before the dis- Oregon has hammered home this after- can. And I have agreed with Senator tinguished chair of the committee was noon is that if a law is secret and there MERKLEY to work together on this in the Chamber—talking about how is a big gap between the secret inter- issue. Senator ROCKEFELLER and I got a letter pretation of a law and what the public I ask unanimous consent that all indicating that this was going to be thinks the law means—my friend and I quorum calls during debate on the changed and that we were very hopeful represent people who, for example, FISA bill be equally divided between we were going to again get more infor- could be using their laptop at home in the proponents and opponents. mation with respect to legal interpre- Coos Bay. If they look up a law and The ACTING PRESIDENT pro tem- tations, matters that ought to be pub- they see what the public interpretation pore. Without objection, it is so or- lic that do not threaten sources and is and they later find out that the pub- dered. methods and operations. We still have lic interpretation is real different than The Senator from Oregon. not gotten that. That is the reason why what the government secretly says it Mr. WYDEN. Mr. President, just to Senator MERKLEY’s work is so impor- is, when people learn that, they are respond to the points made by the dis- tant. going to be very unhappy. tinguished chair of the committee— I see my friend and colleague. I say I see my colleague would like some and, by the way, I think the chair’s ref- to Senator MERKLEY, the distinguished additional time to address this issue. I erence to being willing in the next in- chair of the committee has made the am happy to yield to him. telligence authorization bill to work point—I think while the Senator had to Mr. MERKLEY. I thank Senator with those of us—and Senator be out of the Chamber—that the law is WYDEN. MERKLEY has made good points this public because the text of it is public. The Senator mentioned an Oregonian afternoon to try to include language in But what the Senator has so elo- sitting in Coos Bay working on his or the next intelligence authorization bill quently described as being our concern her laptop and calling the Senator’s of- to deal with secret law—I think that is that the opinions of the FISA fice and saying: Hey, the law says the would be very constructive. I appre- Court—their opinions and views about government can collect tangible mate- ciate the chair making that sugges- the fourth amendment—are what has rial related to an investigation. Does tion. been secret, and the administration has that mean they can collect all of my Colleagues may know that under the said for years now they would do some- Web conversations—knowing that the leadership of the chair of the com- thing about it. Web circuits travel around the world mittee and the distinguished Senator So the Senator’s amendment seeks to multiple times and at some point they from Georgia, the vice chair of the give this the strongest possible push. I travel through a foreign space. They committee, Mr. CHAMBLISS, we were think that is why the Senator’s amend- ask this question in all sincerity be- able, late last week, to work out the ment is so important. The Senator is cause they care about the fourth disagreements with respect to the in- obviously making a lot of headway be- amendment and their privacy. telligence authorization bill this year. cause the distinguished chair of the How much ability do we have to give I wish to thank the chair for those ef- committee has also said this issue of them a definitive answer on that? forts. I think we have a good bill. I secret law is something that can be ad- Mr. WYDEN. Absent the information think all of us are against leaks. That dressed as well in the intelligence au- we are seeking to get under the amend- is what was at issue. I think we have thorization bill. ment I am going to offer, I do not

VerDate Mar 15 2010 02:06 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00021 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.029 S27DEPT1 smartinez on DSK6TPTVN1PROD with S8404 CONGRESSIONAL RECORD — SENATE December 27, 2012 think it is possible for a Senator to re- protections are not as strong as we sire to have responses to those ques- spond to the question. have been led to believe. He may have tions on the public record, there would The issue for an individual Senator misspoken and may have just been mis- not be a public response forthcoming. would be: Do you know whether anyone taken, but I am not sure the record So to go over the exchange again, the has ever estimated how many U.S. would be correct even now had not Sen- Director of National Security Agency phone calls and e-mails have been ator UDALL and I tried to make an ef- states that ‘‘ . . . the story that we warrantlessly collected under the stat- fort to follow it up. have millions or hundreds of millions ute? Do you know whether any wholly I can tell the Senator that at this of dossiers on people is absolutely domestic phone calls and e-mails have very large technology conference—this false.’’ Senator UDALL and I then been collected under this statute, was not something that was classi- asked: Does the NSA collect any type which I believe is the exact question fied—at a very large technology con- of data at all on millions or hundreds my colleague from Oregon has asked. ference recently in Nevada, what the of millions of Americans? The Agency I do not believe a Member of the Sen- head of the National Security Agency is unwilling to answer the question. ate can answer that question. Being said was taking place with respect to So that is what this debate is all unable to answer that question means protecting people, in response to my about, is reforming the FISA Amend- that oversight, which is so often colleague’s questions: Were their e- ments Act and, in particular, getting trumpeted on both sides of the aisle, is mails and phone calls protected, the enough information so that it is pos- toothless when it comes to the spe- general said to a big group: They are, sible for the Senate to say to our con- cifics. unless a crime has been committed. stituents: We are doing oversight over I hope that responds to my col- The real answer is that is not correct. this program. league’s question. Mr. MERKLEY. I thank my colleague I think right now, based on what we Mr. MERKLEY. Absolutely. I think from Oregon for being so deeply in- have outlined over the last 3 or more about other questions our constituents vested in the details of this over many hours, it is clear that on so many of might ask. They might ask if our spy years, utilizing a fierce advocacy in the central questions—the gap, for ex- agencies are collecting vast data from support of the fourth amendment and ample, between the secret interpreta- around the world and they become in- privacy to bring to these debates. I also tion of the law and the public interpre- terested in an American citizen, can thank the chair of the Intelligence tation of the law, our inability to find they search all that data without get- Committee for her comments earlier out whether Americans in their wholly ting a warrant—a warrant that is very today about secret laws and her own domestic communications have had specific to probable cause and an affir- concerns about that and her willing- their rights violated, how many law- mation. ness to help to work to have the ad- abiding Americans have had their e- Again, I suspect the answer we could ministration provide the type of infor- mails and phone calls swept up under give to the citizen would be that we mation that clarifies how these secret FISA authorities, responses to these cannot give a very precise evaluation opinions interpret statutes. My thanks questions that stem from public re- of that, not knowing how the concept go to the Senator from California, Mrs. marks made by intelligence officials at of information related to an investiga- FEINSTEIN. public conferences—the inability to get tion has been interpreted and laid out. The PRESIDING OFFICER (Mrs. answers to these questions means that Mr. WYDEN. My colleague is asking MCCASKILL.) The Senator from Oregon. this Senate cannot conduct the vig- a particularly important question be- Mr. WYDEN. I thank my friend. Just orous oversight that is our charge. cause the Director of the National Se- one last point with respect to this I expect we will have colleagues com- curity Agency, General Alexander, re- technology conference where so many ing in. With the weather, it is a special cently spoke at a large technology con- people walked away and thought their challenge to get here from our part of ference, and he said that with respect privacy was being protected by strong the country. to communications from a good guy, legal protections. General Alexander I have a parliamentary inquiry. The which we obviously interpret as a law- made additional confusing remarks distinguished chair of the committee abiding American, and someone over- that were in response to that same already, I believe, got unanimous con- seas, the NSA has ‘‘requirements from question with respect to the protec- sent that the time in quorum calls be the FISA Court and the Attorney Gen- tions of law-abiding people. allocated to both sides. That was my eral to minimize that’’—to find proce- General Alexander said, ‘‘ . . . the understanding. Is that correct? dures to protect the individual, the story that we [the NSA] have millions The PRESIDING OFFICER. That is law-abiding American’s rights, essen- or hundreds of millions of dossiers on correct. Mrs. FEINSTEIN. I suggest the ab- tially meaning, in the words of General people is absolutely false.’’ Now, I have indicated this morning sence of a quorum. Alexander, ‘‘nobody else can see it un- The PRESIDING OFFICER. The as well, having served on the Intel- less there’s a crime that’s been com- clerk will call the roll. mitted.’’ ligence Committee for a long time, I do The assistant legislative clerk pro- If people hear that answer to my col- not have the faintest idea of what any- ceeded to call the roll. league’s question—which, frankly, Gen- body is talking about with respect to a Mr. COONS. Madam President, I ask eral Alexander responded to directly— dossier. So Senator UDALL and I fol- unanimous consent that the order for they pretty much say that is what they lowed that up as well. We asked the Di- the quorum call be rescinded. were hoping to hear; that nobody is rector to clarify that statement. We The PRESIDING OFFICER. Without going to get access to their commu- asked, ‘‘Does the NSA collect any type objection, it is so ordered. nications unless a crime has been com- of data at all on millions or hundreds Mr. COONS. Madam President, I ask mitted. of millions of Americans?’’ So that, unanimous consent to speak in general The only problem, I would say to my too, is a pretty straightforward ques- debate as to H.R. 5949 and that my time friend, is Senator UDALL and I have tion. in so speaking be charged against Sen- found out that is not true. It is simply The question Senators have been ask- ator WYDEN. not true. The privacy protections pro- ing about this are not very com- The PRESIDING OFFICER. Without vided by this minimization approach plicated. If you are asking whether the objection, it is so ordered. are not as strong as General Alexander National Security Agency is addressing Mr. COONS. Madam President, in made them out to be. Senator UDALL these privacy issues, I think it is one of this dangerous world, we have an obli- and I wrote to General Alexander, and the most basic questions you can ask. gation to give our intelligence commu- he said—and I put this up on my Web Does the National Security Agency col- nity the tools and the resources they site so all Americans can see the re- lect any type of data at all on millions need to keep us safe. But we also have sponse—the general said: That is not or hundreds of millions of Americans? a fundamental obligation—just as really how the minimization proce- If the Agency saw fit, they could sim- great, I believe—to protect the civil dures work—these minimization proce- ply answer that with a yes or no. In- liberties of law-abiding American citi- dures that have been described in such stead, the Director of the Agency re- zens. A right to private communica- a glowing way—and that the privacy plied that while he appreciated our de- tions free from the prying eyes and

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Yet the legislation that two U.S. individuals, and it forbids the ests of Americans. we debate on this Senate floor today, government from targeting a foreigner This amendment would also give us the FISA Amendments Act, or the For- as a pretext for obtaining the commu- another chance to amend this FAA eign Intelligence Surveillance Act nications of a U.S. national. All three after we receive this report by adjust- Amendments Act, would reauthorize of these are important privacy protec- ing the sunset not to 2017 but to 2015. surveillance authority that most tions currently in the law. The new expiration date would align Americans, most of the Delawareans The problem is that we here in the the sunset of the FISA Amendments whom I represent, would be shocked to Senate—and so the citizens we rep- Act with those in the PATRIOT Act, learn the government has in the first resent—don’t know how well any of allowing for more comprehensive re- place. these safeguards actually work. We view of both surveillance authoriza- Under section 702, FISA permits the don’t know how courts construe the tions. government to wiretap communica- law’s requirements that surveillance Concerns about privacy rights of law- tions in the United States without a be, as I mentioned, reasonably designed abiding American citizens, as well as warrant if it reasonably believes the not to obtain any purely domestic in- the striking lack of current public in- target of the wiretap to be outside of formation. The law doesn’t forbid pure- formation, are also why I support the the country and has a significant pur- ly domestic information from being amendment of Senator MERKLEY to di- pose of acquiring foreign intelligence collected. rect the administration to establish a information. We know that at least one FISA framework for declassifying FISA Of course, communications are by Court has ruled that a surveillance pro- Court opinions about the FAA. Secure definition between two or more people, gram violated the law. Why? Those sources and methods vital to the suc- so even if one participant is outside our who know can’t say, and average cess of our intelligence community country, the person they are talking to Americans can’t know. We can suspect must be protected. I agree with that, may be here in the United States and that U.S. communications occasionally and this amendment would do that. they may well be an American citizen. do get swept up in this kind of surveil- But the default position here ought to Under this legislation, the govern- lance, but the intelligence community be that the legal analysis about the ment is permitted to collect and store has not—in fact, they say they cannot government’s use of warrantless sur- their communications but without offer us any reasonable estimate of the veillance in this country is public rath- clear legal limits on what can be done number or frequency with which this er than hidden from view. with this information. They can keep has happened. I also strongly support the amend- it for an indefinite period of time. They The government also won’t state ment of Senator WYDEN to force the in- can search within these communica- publicly whether any wholly domestic telligence community to provide Con- tions and use them in civilian criminal communications have been obtained gress and the public, as appropriate, investigations. Perhaps most con- under this authority, and the govern- with specifics on just how much domes- cerning of all to me, they can search ment won’t state publicly whether it tic communication has been captured information obtained under this act for has ever searched this surveillance, under the FAA and what the intel- the communications of a specific indi- this body of communications, for the ligence community does with that in- vidual U.S. citizen without judicial communications of a specific American formation. This amendment simply oversight and for any reason. If these without a warrant. asks for the most basic information are all true and this is the case, then I For me, this lack of information, this about the practical consequences of the am gravely concerned. lack of understanding, this lack of de- use of the powerful surveillance au- What is at issue today is the scope of tail about exactly how the protections thorities in this act. To what extent the government’s power to conduct in this act have worked is of, as I said, are these authorities being used to dis- surveillance without getting a warrant. grave concern. Too often, this body cover the content of private conversa- The warrant requirement is enshrined finds itself in the position of having to tions by U.S. citizens? What is the in our legal system from the very give rushed consideration to the exten- order of magnitude? We don’t know. founding of our Nation because we be- sion of expiring surveillance authori- This amendment is simply common lieve in judicial checks and balances. If ties. sense. The Delawareans for whom I the government suspects wrongdoing The intelligence communities tell us work and the Nation for whom we work by a U.S. citizen, it must convince a these surveillance tools are indispen- expect that the government cannot lis- judge to approve a warrant. Warrants sable to the fight against terrorism and ten in on their phone calls or read their are issued each and every day in courts foreign spies, just as they did during e-mails unless a judge has signed a across the United States for investiga- the PATRIOT Act reauthorization de- warrant. If there is a reason why this tion of potential offenses across the bate last year. Also as in the case of requirement is not consistent with na- whole spectrum of criminal activity, the PATRIOT reauthorization, the ex- tional security, then I say let the intel- including crimes affecting national se- piration of these authorities, we were ligence community make that case and curity. In contrast, surveillance under told, would throw ongoing surveillance allow us to debate that and consider it this act is not required to meet this operations into a legal limbo, that it in public. It is simply not acceptable standard, leaving American citizens could cause investigations to collapse for the intelligence community to ask vulnerable to potentially very real vio- or harm our ability to track terrorists us to surrender our civil liberties and lations of their privacy. and prevent crimes. All of these are then refuse to tell us with any speci- The balance between privacy and se- profound and legitimate concerns. It is ficity why we must do so, the context, curity is an essential test for any gov- precisely because this legislation is so and the scale of the exercise of this ernment, but it is a vital test for our important that it is all the more de- surveillance authority. In my view, government and for this country. serving of the Senate’s careful, timely, America’s first principles demand bet- This law, in my view, does not con- and deliberate attention. ter. tain some essential checks that are This kind of serious consideration re- I thank Senator WYDEN for his lead- supposed to protect our privacy. quires more declassified information ership on this issue, and I thank Major- This law in its current form does con- on the public record than we have ity Leader REID for ensuring that we tain some checks that I want to review available now. That is why I am sup- have the opportunity to debate and that are supposed to protect our pri- porting the amendments reported by consider these amendments and the vacy. It requires that the government the Judiciary Committee, on which I very important issues they reflect here surveillance program must be reason- serve, which would help to shine a light today. ably designed to target foreigners on exactly how this surveillance au- I urge all of my colleagues to con- abroad and not intentionally acquire thority is used. It would direct the in- sider carefully and then support these

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Do we really strikes me as an abrogation of our fun- quired to read mail, and since the Su- want to allow our government unfet- damental oversight responsibility. This preme Court’s decision in Katz v. the tered access to sift through millions of Chamber deserves a full and informed United States, a warrant has generally records without first obtaining a judi- debate about our intelligence-gath- been required to wiretap telephone con- cial warrant? ering procedures and their potentially versations. However, under current If we have people who are accused of very real impact on Americans’ privacy law, e-mail, text messages, and other committing a crime, we go before a rights, and we need it sooner rather communication content do not receive judge and get a warrant. It is not that than later. These amendments would this same level of protection.’’ Why is hard. I am not saying the government allow us to have that conversation and a phone call deserving of more protec- wouldn’t be allowed to look through to work together on a path that strikes tion than our e-mail or texts? records. I am saying that the mass of the essential balance between privacy In U.S. v. Jones, the recent Supreme ordinary, innocent citizens should not and security for the citizens of these Court case that says the government have their records rifled through by a United States. can’t put a GPS tracking device on a government that does not first have to Madam President, I yield the floor, car without a warrant, Justice ask a judge for a warrant before they and I suggest the absence of a quorum. Sotomayor said this: look at personal records. The PRESIDING OFFICER. The I for one doubt that people would accept We have examples in the past of clerk will call the roll. without complaint the warrantless disclo- abuses by our own country. During the The assistant legislative clerk pro- sure to the government of a list of every Web civil rights era, the government ceeded to call the roll. site they have visited in the last week, or snooped on activists. During the Viet- Mr. PAUL. Madam President, I ask month, or year. . . . I would not assume that nam era, the government snooped on all information voluntarily disclosed to unanimous consent that the order for some member of the public for a limited pur- antiwar protesters. In a digital age, the quorum call be rescinded. pose is, for that reason alone, disentitled to where computers can process billions of The PRESIDING OFFICER. Without the Fourth Amendment protection. bits of information, do we want the objection, it is so ordered. Justices Marshall and Brennan, dis- government to have unfettered access Mr. PAUL. Madam President, I rise senting in Smith v. Maryland, empha- to every detail of our lives? From a today in support of the Fourth Amend- sized the danger of giving up fourth Visa statement, the government can ment Protection Act. The fourth amendment protections. They wrote: determine what diseases one may or amendment guarantees the right of the The prospect of government monitoring may not have; whether one is impo- people to be secure in their persons, will undoubtedly prove disturbing even to tent, manic, depressed; whether some- their houses, their papers, and their ef- those with nothing illicit to hide. Many indi- one is a gun owner and whether he or fects against unreasonable searches viduals, including members of unpopular po- she buys ammunition; whether one is and seizures. litical organizations or journalists with con- an animal rights activist, an environ- John Adams considered the fight fidential sources, may legitimately wish to mental activist; what books we order, against general warrants—or what they avoid disclosure of their personal contacts. what blogs we read, and what stores or called in those days writs of assist- In Miller and in Smith, the Supreme Internet sites we look at. Do we really ance—to be when ‘‘the child Independ- Court held that the fourth amendment want our government to have free and ence was born.’’ Our independence and did not protect records held by third unlimited access to everything we do the fourth amendment go hand in parties. Sotomayor wrote in the Jones on our computers? hand. They emerge together. To dis- case that it may be time to reconsider The fourth amendment was written count or to dilute the fourth amend- these cases, reconsider how they were in a different time and a different age, ment would be to deny really what con- decided; that their approach is, in her but its necessity and its truth are stitutes our very Republic. words, ‘‘ill-suited to the digital age, in timeless. The right to privacy and, for But somehow, along the way, we which people reveal a great deal of in- that matter, the right to private prop- have become lazy and haphazard in our formation about themselves to third erty are not explicitly mentioned in vigilance. We have allowed Congress parties in the course of carrying out the Constitution, but the ninth amend- and the courts to diminish our fourth mundane tasks.’’ ment says that the rights not stated amendment protections, particularly Today, this amendment that I will are not to be disparaged or denied. when we give our papers to a third present, the Fourth Amendment Pro- James Otis—arguably the father of party—once information is given to an tection Act, does precisely that. This the fourth amendment—put it best Internet provider or to a bank. Once we amendment would restore the fourth when he said: allowed our papers to be held by third amendment protection to third-party One of the most essential branches of parties, such as telephone companies or records. This amendment would simply English liberty is the freedom of one’s house. Internet providers, the courts deter- apply the fourth amendment to modern A man’s house is his castle; and whilst he is mined we no longer had a legally recog- means of communications. E-mailing quiet, he is as well guarded as a prince in his nized expectation of privacy. and text messaging would be given the castle. There have been some dissents over same protections we currently give to Today’s castle may be an apartment, time. Justice Marshall dissented in the telephone conversations. and who knows where the information California Bankers Association v. Some may ask, well, why go to such is coming from. It may be paper in Schulz case, and he wrote these words: great lengths to protect records? Isn’t one’s apartment or it may be bits of The fact that one has disclosed private pa- the government just interested in the data stored who knows where, but the pers to a bank for a limited purpose within records of bad people? concept that government should be re- the context of a confidential customer-bank To answer this question, one must strained from invading a sphere of pri- relationship does not mean that one has imagine their Visa statement and what vacy is a timeless concept. waived all right to the privacy of the papers. information is on that Visa statement. Over the past few decades, our right But privacy and the fourth amend- From our Visa statement, the govern- to privacy has been eroded. The Fourth ment have steadily lost ground over ment may be able to ascertain what Amendment Protection Act would go a the past century. From the California magazines we read; whether we drink long way toward restoring this cher- Bankers Association case, to Smith v. and how much; whether we gamble and ished and necessary right. I hope my Maryland, to U.S. v. Miller, the major- how much; whether we are a conserv- colleagues will consider supporting, de- ity has ruled that records, once they ative, a liberal, a libertarian; whom we fending, and enhancing the fourth are held by a third party, don’t deserve contribute to; what our preferred polit- amendment, bringing it into a modern

VerDate Mar 15 2010 02:06 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00024 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.027 S27DEPT1 smartinez on DSK6TPTVN1PROD with December 27, 2012 CONGRESSIONAL RECORD — SENATE S8407 age where modern electronic and com- mation, and particularly describing the any general expectation that the numbers puter information and communications place to be searched, and the persons or they dial will remain secret. . . . This Court are once again protected by the fourth things to be seized. consistently has held that a person has no le- The PRESIDING OFFICER. The Sen- gitimate expectation of privacy in informa- amendment. tion he voluntarily turns over to third par- Madam President, I reserve the re- ator from California. ties. Mrs. FEINSTEIN. Madam President, mainder of my time. More recently, in the Court’s 2012 de- I rise in opposition to this amendment. Mrs. FEINSTEIN. Madam President, cision in U.S. v. Jones, some Justices This amendment is extraordinarily is the Senator going to call up his have questioned whether the time has broad. It is much broader than FISA, amendment? come to revisit Miller and Smith in and in the course of my remarks, I AMENDMENT NO. 3436 some form. Now, perhaps they are Mr. PAUL. Madam President, I ask would hope to address how broad it is. right, but this amendment isn’t the unanimous consent to call up my It essentially bars Federal, State, and form they had in mind. And this isn’t amendment, which is at the desk. local governments from obtaining any the time to do so. The PRESIDING OFFICER. Without information relating to an individual This amendment is so broad that the objection, the clerk will report. that is held by a third party unless the police could not use cell phone data to The assistant legislative clerk read government first obtains either a war- find a missing or kidnapped child with- as follows: rant or consent from the individual. out a warrant or the consent of the This is also not germane to FISA. It The Senator from Kentucky [Mr. PAUL], missing child—impossible to get. Simi- has not been reviewed by the Judiciary for himself and Mr. LEE, proposes an amend- larly, they could not ask the phone ment numbered 3436. Committee, which would have jurisdic- company to provide the home address tion over this matter. For that reason Mr. PAUL. Madam President, I ask of a terrorist, drug dealer, or other alone, I would vote against it. Also, it unanimous consent that the reading of criminal without consent or warrant. impedes the timely reauthorization of the amendment be dispensed with. They could not ask a bank if such the FISA Amendments Act. The PRESIDING OFFICER. Without criminals had recently deposited large I also oppose the substance of the sums of money. In fact, as written, this objection, it is so ordered. amendment. The amendment is titled amendment would prohibit law en- The amendment is as follows: the ‘‘Fourth Amendment Preservation forcement from looking up the name, (Purpose: To ensure adequate protection of and Protection Act.’’ In reality, it address, and phone number of a crimi- the rights under the Fourth Amendment to nal suspect, witness, or any other per- the Constitution of the United States) seeks to reverse over 30 years of Su- preme Court precedent interpreting the son online unless they obtained a war- At the appropriate place, insert the fol- rant or the consent of the criminal sus- lowing: fourth amendment. In 1967 the Supreme Court estab- pect. As you can see, the amendment is SEC. lll. FOURTH AMENDMENT PRESERVA- TION AND PROTECTION ACT OF 2012. lished its reasonable expectation of pri- too broad. As I have already stated, the FAA au- (a) SHORT TITLE.—This section may be vacy test under the fourth amendment, cited as the ’’Fourth Amendment Preserva- in the case of Katz v. United States. thorities expire in 4 days. If those au- tion and Protection Act of 2012’’. Nine years later, in a case known as thorities are allowed to lapse, our in- (b) FINDINGS.—Congress finds that the U.S. v. Miller, the Supreme Court held: telligence agencies will be deprived of a critical tool that enables those agen- right under the Fourth Amendment to the [T]he Fourth Amendment does not prohibit Constitution of the United States of the peo- the obtaining of information revealed to a cies to acquire vital information about ple to be secure in their persons, houses, pa- third party and conveyed by him to Govern- international terrorists and other im- pers, and effects against unreasonable ment authorities. portant targets overseas, plus what searches and seizures is violated when the So already you have a Supreme Court they may be plotting in the United Federal Government or a State or local gov- States. It is imperative that we pass a ernment acquires information voluntarily case saying that the fourth amendment clean reauthorization of these authori- relinquished by a person to another party for does not prohibit the use of this kind of a limited business purpose without the ex- information by the government. ties without amendments that will press informed consent of the person to the The Miller case involved the govern- hamper passage in the House. I urge my colleagues to oppose this specific request by the Federal Government ment obtaining account records from a amendment. or a State or local government or a warrant, bank. But in 1979, just 3 years after upon probable cause, supported by oath or The PRESIDING OFFICER. The Sen- affirmation, and particularly describing the Miller, the Supreme Court took up the ator from Vermont. issue of third-party collection in a case place to be searched, and the persons or AMENDMENT NO. 3437 things to be seized. involving the installation and use of Mr. LEAHY. Madam President, I ask ‘‘(c) DEFINITION.—In this section, the term pen registers, which are electronic de- unanimous consent to set aside the ’’system of records’’ means any group of vices that enable law enforcement to pending amendments and call up my records from which information is retrieved collect telephone numbers dialed from by the name of the individual or by some amendment, which is at the desk. a particular phone line without listen- The PRESIDING OFFICER. Without identifying number, symbol, or other identi- ing to the content of those calls. The fying particular associated with the indi- objection, it is so ordered. vidual. 1973 case is known as Smith v. Mary- The clerk will report. (d) PROHIBITION.— land, and in it the Court held: The assistant legislative clerk read (1) IN GENERAL.—Except as provided in [W]e doubt that people in general entertain as follows: paragraph (2), the Federal Government and a any actual expectation of privacy in the The Senator from Vermont [Mr. LEAHY] for State or local government is prohibited from numbers they dial. All telephone users real- himself, Mr. DURBIN, Mr. FRANKEN, Mrs. SHA- obtaining or seeking to obtain information ize that they must ‘‘convey’’ phone numbers HEEN, Mr. AKAKA, and Mr. COONS, proposes an relating to an individual or group of individ- to the telephone company, since it is amendment numbered 3437. uals held by a third-party in a system of through telephone company switching equip- Mr. LEAHY. I ask unanimous con- records, and no such information shall be ad- ment that their calls are completed. All sub- sent that reading of the amendment be missible in a criminal prosecution in a court scribers realize, moreover, that the phone of law. company has facilities for making perma- dispensed with. (2) EXCEPTION.—The Federal Government nent records of the numbers they dial, for The PRESIDING OFFICER. Without or a State or local government may obtain, they see a list of their long-distance (toll) objection, it is so ordered. and a court may admit, information relating calls on their monthly bills. . . . Telephone The amendment is as follows: to an individual held by a third-party in a users . . . typically know that they must (Purpose: In the nature of a substitute) system of records if— convey numerical information to the phone Strike all after the enacting clause and in- (A) the individual whose name or identi- company; that the phone company has facili- sert the following: fication information the Federal Govern- ties for recording this information; and that SECTION 1. SHORT TITLE. ment or State or local government is using the phone company does in fact record this This Act may be cited as the ‘‘FAA Sun- to access the information provides express information for a variety of legitimate busi- sets Extension Act of 2012’’. and informed consent to the search; or ness purposes. Although subjective expecta- SEC. 2. EXTENSION OF FISA AMENDMENTS ACT (B) the Federal Government or State or tions cannot be scientifically gauged, it is OF 2008 SUNSET. local government obtains a warrant, upon too much to believe that telephone sub- (a) EXTENSION.—Section 403(b)(1) of the probable cause, supported by oath or affir- scribers, under these circumstances, harbor FISA Amendments Act of 2008 (Public Law

VerDate Mar 15 2010 02:06 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00025 Fmt 4624 Sfmt 0634 E:\CR\FM\G27DE6.028 S27DEPT1 smartinez on DSK6TPTVN1PROD with S8408 CONGRESSIONAL RECORD — SENATE December 27, 2012 110-261; 50 U.S.C. 1881 note) is amended by ligence Community shall submit a report re- mess’’ of the warrantless wiretapping striking ‘‘December 31, 2012’’ and inserting garding the reviews conducted under this program, which undermined the pri- ‘‘June 1, 2015’’. paragraph to— vacy rights and civil liberties of count- (b) TECHNICAL AND CONFORMING AMEND- ‘‘(i) the Attorney General; less Americans. More than that, the MENTS.—Section 403(b)(2) of such Act (Public ‘‘(ii) the Director of National Intelligence; warrantless wiretapping program un- Law 110-261; 122 Stat. 2474) is amended by and striking ‘‘December 31, 2012’’ and inserting ‘‘(iii) consistent with the Rules of the dermined the public’s trust in our Gov- ‘‘June 1, 2015’’. House of Representatives, the Standing ernment, and in the intelligence com- (c) ORDERS IN EFFECT.—Section 404(b)(1) of Rules of the Senate, and Senate Resolution munity’s ability to police itself. such Act (Public Law 110-261; 50 U.S.C. 1801 400 of the 94th Congress or any successor During the debate on the FISA note) is amended in the heading by striking Senate resolution— Amendments Act in 2007 and 2008, I ‘‘DECEMBER 31, 2012’’ and inserting ‘‘JUNE 1, ‘‘(I) the congressional intelligence commit- worked with others on the Judiciary 2015’’. tees; and Committee to ensure that important SEC. 3. INSPECTOR GENERAL REVIEWS. ‘‘(II) the Committees on the Judiciary of oversight, accountability, and privacy (a) AGENCY ASSESSMENTS.—Section 702(l)(2) the House of Representatives and the Senate. of the Foreign Intelligence Surveillance Act protections were put into place, includ- ‘‘(E) PUBLIC REPORTING OF FINDINGS AND of 1978 (50 U.S.C. 1881a(l)(2)) is amended— ing express prohibitions on the CONCLUSIONS.—In a manner consistent with (1) in the matter preceding subparagraph the protection of the national security of the warrantless wiretapping of U.S. per- (A), by striking ‘‘authorized to acquire for- United States, and in unclassified form, the sons or any individual located here in eign intelligence information under sub- Inspector General of the Intelligence Com- the United States, as well as a prohibi- section (a)’’ and inserting ‘‘with targeting or munity shall make publicly available a sum- tion against the practice of so-called minimization procedures approved under mary of the findings and conclusions of the ‘‘reverse targeting.’’ this section’’; review conducted under subparagraph (B).’’. I am convinced that the oversight (2) in subparagraph (C), by inserting ‘‘United States persons or’’ after ‘‘later de- SEC. 4. ANNUAL REVIEWS. and accountability provisions that we termined to be’’; and Section 702(l)(4)(A) of the Foreign Intel- included in the original legislation (3) in subparagraph (D)— ligence Surveillance Act of 1978 (50 U.S.C. have helped to prevent the abuse of (A) in the matter preceding clause (i), by 1881a(l)(4)(A)), as redesignated by section these surveillance tools. Based on my striking ‘‘such review’’ and inserting ‘‘review 3(b)(1), is amended— review of information provided by the conducted under this paragraph’’; (1) in the matter preceding clause (i)— Government, and after a series of clas- (B) in clause (ii), by striking ‘‘and’’ at the (A) in the first sentence— (i) by striking ‘‘conducting an acquisition sified briefings, I have not seen evi- end; dence that the law has been abused, or (C) by redesignating clause (iii) as clause authorized under subsection (a)’’ and insert- (iv); and ing ‘‘with targeting or minimization proce- that the communications of U.S. per- (D) by inserting after clause (ii), the fol- dures approved under this section’’; and sons are being intentionally targeted. lowing: (ii) by striking ‘‘the acquisition’’ and in- But let’s be absolutely clear, my con- ‘‘(iii) the Inspector General of the Intel- serting ‘‘acquisitions under subsection (a)’’; clusion is based on the information I ligence Community; and’’. and have seen to date, and current compli- (b) INSPECTOR GENERAL OF THE INTEL- (B) in the second sentence, by striking ance does not guarantee future compli- LIGENCE COMMUNITY REVIEW.—Section 702(l) ‘‘The annual review’’ and inserting ‘‘As ap- ance. We must not relax our oversight plicable, the annual review’’; and of the Foreign Intelligence Surveillance Act efforts, and I believe that there is more of 1978 (50 U.S.C. 1881a(l)) is amended— (2) in clause (iii), by inserting ‘‘United (1) by redesignating paragraph (3) as para- States persons or’’ after ‘‘later determined that can be done to protect against fu- graph (4); and to be’’. ture abuse and misuse. In June, after the Senate Intelligence (2) by inserting after paragraph (2) the fol- Mr. LEAHY. Madam President, when Committee originated the Senate bill lowing: Congress passed the FISA Amendments ‘‘(3) INSPECTOR GENERAL OF THE INTEL- to reauthorize and extend FISA, Sen- Act of 2008, it granted the Government LIGENCE COMMUNITY REVIEW.— ator GRASSLEY and I asked for a se- sweeping new electronic surveillance ‘‘(A) IN GENERAL.—The Inspector General quential referral, just as I did in 2008, powers which, if abused or misused, of the Intelligence Community is authorized to allow the Judiciary Committee to could impinge on the privacy rights of to review the acquisition, use, and dissemi- consider and improve this important nation of information acquired under sub- Americans. Congress enacted these legislation. The bill that was approved section (a) in order to review compliance controversial authorities with the un- with the targeting and minimization proce- by the Intelligence Committee pro- derstanding that it would re-examine vided for a general and unfettered ex- dures adopted in accordance with sub- these provisions within four years, and sections (d) and (e) and the guidelines adopt- tension of the expiring provisions until determine whether to allow these au- ed in accordance with subsection (f), and in June 2017. order to conduct the review required under thorities to continue. I hoped that the Senate Judiciary subparagraph (B). While there is no question that the Committee would improve on that, and ‘‘(B) MANDATORY REVIEW.—The Inspector surveillance powers established in the we did. I worked with Senator FEIN- General of the Intelligence Community shall FISA Amendments Act have proven to STEIN, Chair of the Senate Intelligence review the procedures and guidelines devel- be extraordinarily important for our Committee, to craft a compromise to oped by the intelligence community to im- national security, it is equally clear to plement this section, with respect to the pro- shorten the sunset to 2015 and to add me that those broad powers must con- some accountability and oversight pro- tection of the privacy rights of United States tinue to come with rigorous oversight persons, including— visions. I appreciated the Senator from ‘‘(i) an evaluation of the limitations out- and strong privacy protections. California’s commitment to helping to lined in subsection (b), the procedures ap- That is why the Senate should adopt improve this sensitive and important proved in accordance with subsections (d) the Senate substitute amendment that legislation and her strong words of sup- and (e), and the guidelines adopted in accord- would allow the government to con- port for the Senate Judiciary Com- ance with subsection (f), with respect to the tinue using these authorities, but for a mittee bill. The Senate Judiciary Com- protection of the privacy rights of United period of time that ensures strong and mittee adopted the substitute and re- States persons; and independent oversight. This amend- ported the Senate bill to the Senate ‘‘(ii) an evaluation of the circumstances ment was considered and reported fa- under which the contents of communications promptly last July. That is the bill acquired under subsection (a) may be vorably by the Senate Judiciary Com- that I am offering, the Senate bill. searched in order to review the communica- mittee last July. I urge Senators to There is no reason for us to merely tions of particular United States persons. support this reasonable and common- rubberstamp the House bill. We have a ‘‘(C) CONSIDERATION OF OTHER REVIEWS AND sense measure. I call on all Senators better bill with better provisions and ASSESSMENTS.—In conducting a review under who talk about accountability and more accountability and oversight. I subparagraph (B), the Inspector General of oversight to join with us to adopt this am pleased that Senators DURBIN, the Intelligence Community should take better approach to ensuring our secu- FRANKEN, SHAHEEN, AKAKA, and COONS into consideration, to the extent relevant rity and our privacy. and appropriate, any reviews or assessments have joined me as cosponsors of this that have been completed or are being under- Many of us will remember that the amendment. taken under this section. FISA Amendments Act was originally The Senate bill that the Judiciary ‘‘(D) REPORT.—Not later than December 31, passed to clean up what one Bush ad- Committee adopted, and that I am of- 2014, the Inspector General of the Intel- ministration lawyer called the ‘‘legal fering to improve on the House bill

VerDate Mar 15 2010 02:06 Dec 28, 2012 Jkt 029060 PO 00000 Frm 00026 Fmt 4624 Sfmt 0634 E:\CR\FM\A27DE6.009 S27DEPT1 smartinez on DSK6TPTVN1PROD with December 27, 2012 CONGRESSIONAL RECORD — SENATE S8409 that has been brought before us, pro- the first report ever issued by the DOJ rights of law-abiding Americans, isn’t vides for a shorter sunset of the expir- Inspector General regarding the FBI’s this exactly the type of situation that ing surveillance authorities. The House use of Section 702 authorities, and it calls for that sort of vigorous and inde- bill’s sunset is longer than that adopt- was issued in September 2012—after the pendent oversight? Put simply, some- ed by the Senate Select Committee on Senate Intelligence and Judiciary one needs to be watching the watch- Intelligence and unnecessarily ex- Committees reported their bills, and ers—and watching them like a hawk. I tended. The Senate bill I offer provides after the House voted to pass its clean call upon all Senators, on both sides of for extending FISA authorities, but extension. the aisle, who talk about account- would sunset them in June 2015. This Even more troubling is the fact that ability and oversight to join with us to will allow the existing programs to we still have not received a report from adopt this better approach to ensuring continue but ensures that we revisit the NSA Inspector General that fully our security and our privacy by adopt- them in a timely fashion as more infor- assesses the NSA’s compliance with its ing the Senate bill as embodied in the mation becomes available. It would targeting and minimization proce- substitute amendment. also align with the June 2015 sunset of dures, or the limitations we put in No one can argue that shortening the certain provisions of the USA PA- place to protect the privacy of Ameri- sunset or adding oversight provisions TRIOT Act, thereby enabling Congress cans. I am told that a preliminary re- somehow hampers the Government’s to evaluate all of the expiring surveil- port on the adequacy of the manage- ability to fight terrorism or somehow lance provisions of FISA together. This ment controls at the NSA is being fi- harms national security. That is not is an approach that Chairman FEIN- nalized—but it is just that: a prelimi- true. All Senators should know that STEIN and I both supported during the nary report, and not an actual, final, neither the 2015 sunset date nor the PATRIOT Act reauthorization debate comprehensive, or definitive assess- added oversight provisions have any in 2011, along with many members of ment of whether NSA analysts are operational impact on the work of the the Judiciary and Intelligence Com- complying with the procedures and intelligence community. No one—I re- mittees. This is the position the intel- rules that they have put into place. In- peat, no one from the administration ligence community and the adminis- deed, the NSA Inspector General’s of- has ever said to me that these provi- tration supported then and as recently fice has acknowledged that there is sions cause any operational problems as last year. It is the right position and more work to be done, and that this re- for the intelligence community, and to the right sunset, and that is why the view—once completed—will just be a suggest otherwise now is simply not Senate bill should include it and will if first step. Moreover, as with the DOJ accurate. my amendment is adopted. Inspector General’s report, this review In fact, when the Senate Select Com- As we have seen through our experi- is limited just to a single agency, and mittee on Intelligence reported its bill ence with the USA PATRIOT Act, sun- does not incorporate any review or as- last year that bill had exactly the same sets are important oversight tools. sessment of any information-sharing sunset date of June 2015 that is in the Sunsets force Congress to re-examine that might be taking place. substitute amendment. I was encour- carefully the surveillance powers that To address the limitations faced by aged that Senator FEINSTEIN supported have been authorized. If we know we the IGs for individual agencies, our this 2015 sunset date when the Judici- have to actually look at it because it is Senate bill as embodied in my sub- ary Committee approved this sub- going to run out, what happens is stitute amendment adds some com- stitute amendment, and noted then amazing—Senators in both parties ac- monsense improvements to the over- that this substitute amendment does tually look at it. More importantly, sight provisions in the FISA Amend- not cause any operational problems for sunsets force the administration to ments Act, including a comprehensive the intelligence community. provide full and accurate information independent review by the Inspector So where does that leave us? It leaves to justify to Congress the reauthoriza- General of the Intelligence Commu- us with a simple choice. We can enable tion of significant authorities. Any ad- nity. The Office of the Inspector Gen- the intelligence community to con- ministration is going to be willing to eral of the Intelligence Community tinue using these authorities until 2015, kick the ball down the road if they was established in 2010 and has the while adding commonsense improve- don’t have to do it; if they have a sun- unique ability to provide a comprehen- ments that will help us to conduct vig- set, they do. The last thing we want is sive assessment of the surveillance ac- orous oversight. Or the Senate can ab- for the NSA and the FBI to take for tivities across the intelligence commu- dicate its responsibilities and granted that they will have these pow- nity, rather than just a limited view of rubberstamp the House bill that ex- ers, especially when the misuse or a single agency. An independent review tends these powerful authorities for an- abuse of these powers could signifi- by the Inspector General for the Intel- other five years, without a single im- cantly impact the constitutional lib- ligence Community could answer some provement in oversight or account- erties of Americans. Likewise, we must remaining questions about the imple- ability—even though we may not have never take for granted our constitu- mentation of the FISA Amendments all the information we need to make an tional liberties, and we should not shy Act, particularly with respect to the informed determination. away from our duty as Senators to pro- protection of the privacy rights of U.S. As an American, and as a Vermonter, tect against any such misuse or abuse. persons. I also believe that an unclassi- the choice is simple for me. We have an I acknowledge and appreciate those fied summary of such an audit should obligation to ensure that these expan- in the intelligence community who be made public in order to provide in- sive surveillance authorities are ac- work very hard to ensure compliance creased accountability directly to the companied by safeguards. We can fulfill with our laws and Constitution. But it American people. our duty to protect the privacy and is also important to note that there These are reasonable improvements civil liberties of the American public, has never been a comprehensive review to the law that I urge all Senators to while continuing to provide the intel- of these authorities by an independent support. We often hear Senators speak ligence community with tools to help Inspector General that would provide a about the need for vigorous and inde- keep America safe. That is what the complete perspective on how these au- pendent oversight of the Executive Senate bill as embodied in the sub- thorities are being used, and whether Branch, the need to support inde- stitute amendment accomplishes. I they are being used properly. pendent inspectors general who are not urge Senators to choose this balanced, The DOJ Inspector General recently beholden to a particular agency, and commonsense approach, and to support completed a review of the FBI’s imple- the need for Congress to conduct its adopt the Senate substitute to the mentation of the FISA Amendments own independent reviews as a check on over-expansive House bill. Act, but this was limited in scope—not the power of the Executive. So I ask The PRESIDING OFFICER. The Sen- only because it was just limited to the those same Senators this question: ator from California. FBI, and not any other part of the in- When Congress has authorized the use Mrs. FEINSTEIN. Madam President, telligence community, but also because of expansive and powerful surveillance in listening to the distinguished chair- it was limited in scope to the period tools that have the potential to impact man of the Judiciary Committee and ending in early 2010. Notably, this was so significantly the constitutional also reading the amendment, I want to

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So, before us is the 5-year au- we might have had time to convince group of Senators asking yes or no thorization period which the House has the House to consider these changes to questions: Has there been an estimate? already passed. We have 4 days before current law. But here we are where we For example, how many law abiding the FISA Amendments Act essentially have a 5-year House bill in front of us Americans have had their communica- end. I cannot support that shorter time and only 4 days to extend the sunset. tions swept up into these FISA au- but I support the 5-year extension. As I am opposing all amendments, I thorities? Our inability to get that an- The part of the amendment of the would respectfully and, not quite sor- swer makes it clear that when one chairman of the Judiciary Committee rowfully but almost, have to oppose talks about robust oversight under this that I do agree with is the expanded your amendment with the caveat I legislation, the reality is that there is mission of the inspector general of the added, Mr. Chairman. enormous lack of specifics with respect Intelligence Community. Since the In deference to you and your chair- to how this legislation actually works. chairman is now becoming the Presi- manship of the Judiciary Committee, I would only say in response to the dent in rapid promotion, I will be the Intelligence Committee staff will amendment offered by the Presiding happy to address my remarks to him. work closely with yours to see if there Officer, Senator LEAHY, the chairman (The PRESIDENT pro tempore as- is anything that needs to be added to a of the Judiciary Committee, I think his sumed the Chair.) future intelligence authorization bill. amendment is very appropriate. Given Mr. President, Mr. Chairman, I want I thank you for that and I yield the how little is known, to me it is one of you to know we have spent large floor. the fundamental pillars of good over- amounts of time on the particular The PRESIDENT pro tempore. The sight that we do not grant open-ended issue of Section 702 reporting. For ex- Senator from Oregon. kind of authorizations when we lack so ample, the law requires semiannual At- Mr. WYDEN. Mr. President, first, I much fundamental information about torney General and DNI assessments of strongly support your amendment, how this program works, particularly section 702. Every 6 months they assess given how little most Members of Con- how it would affect law-abiding Ameri- compliance with the targeting and gress know about the actual impact of cans. minimization procedures. The law also the law. The shorter extension period With that, I yield back. requires the inspector general of Jus- as envisioned by the distinguished Mrs. FEINSTEIN. Mr. President, I tice and the IG of every element of the chairman of the Judiciary Committee suggest the absence of a quorum. intelligence community authorized to makes a lot of sense. I also think it The PRESIDENT pro tempore. The acquire foreign intelligence informa- makes sense to have the intelligence clerk will call the roll. tion to review compliance within Sec- community inspector general conduct The bill clerk proceeded to call the tion 702. In addition, the IGs are re- an audit on how FISA Amendment Act roll. quired to review the number of dis- authority has been used. The PRESIDENT pro tempore. The seminated intelligence reports con- Once again, we have had this discus- majority leader. taining a reference to a U.S.-person sion about how much everybody al- Mr. REID. Mr. President, I ask unan- identity and the number of U.S. person ready knows about how the FISA imous consent that the order for the identities subsequently disseminated. Amendments Act affects the operations quorum call be rescinded. The law also already requires annual of this program on law-abiding Ameri- The PRESIDENT pro tempore. With- reviews by agency heads of Section 702. cans. I would have to respectfully dis- out objection, it is so ordered. It also requires a semiannual Attorney agree. I asked Senators, as we touched f General report on Title VII every 6 on this in the course of the afternoon, months to fully inform the congres- whether they know if anyone has ever LETTER OF RESIGNATION sional Intelligence and Judiciary Com- estimated how many U.S. phone calls Mr. REID. Mr. President, I have in mittees. And there is another semi- and e-mails have been warrantlessly my hands a letter from Brian Schatz, annual report on FISA required for the collected under this statute? the Lieutenant Governor of the State Attorney General to submit a report to Senator UDALL and I have asked this of Hawaii, and that letter is a resigna- the committees. Finally, there are re- very simple question: Has there been tion letter. quirements for the provision of docu- an estimate—not whether there is I ask unanimous consent the resigna- ments relating to significant construc- going to be new work, whether they are tion letter be printed in the RECORD. tion or interpretation of FISA by the going to be difficult assignments. We There being no objection, the mate- FISA Court. have asked whether there has ever been rial was ordered to be printed in the So it is clear that there are many re- an estimate of how many U.S. phone RECORD, as follows: porting requirements on FISA and spe- calls have been warrantlessly collected DECEMBER 26, 2012. cifically section 702. I would also add under the statute. We were told in Re Resignation as Lieutenant Governor. that the Intelligence Committee has writing we were not going to be able to Hon. NEIL ABERCROMBIE, had hearings with the DNI, with Attor- get that information. Governor, State of Hawai‘i, State Capitol, ney General Holder, with Director of I think Senators ought to also ask Honolulu, Hawaii. FBI Mueller on how Section 702 is car- themselves whether they know if any DEAR GOVERNOR ABERCROMBIE: Thank you ried out. I will also tell you the Intel- domestic phone calls and e-mails, what for the confidence you have placed in me ligence Committee staff spends count- are wholly domestic communications, today by appointing me to represent Hawaii in the United States Senate by filling the va- less hours going over the reports in have been conducted under this stat- cancy in the Senate caused by the death of meetings with representatives of the ute. I think they will also find they do Senator Inouye. departments. However, I would say to not know the answer to this question. Because of the critical issues facing our Chairman LEAHY that what I would I think Senators also would want to nation, I will need to go to Washington, D.C. like to do is look at your amendment know whether the Government has immediately to assume the duties of the of- and see how it compares to what is cur- ever conducted any warrantless back- fice of United States Senator. In order to en- rently being done and possibly add door searches for Americans’ commu- sure that the duties and responsibilities of some parts of your amendment to our nications. the Lieutenant Governor are performed for So when we have the argument that the State of Hawai’i with as little interrup- authorization bill next year. tion as possible, I hereby tender my resigna- I would urge that we have your staff has now been advanced several times in tion as Lieutenant Governor, effective im- and the Intelligence Committee staff the course of the day that we already mediately. work together to see what we can do. know so much, we do not need all these Very truly yours, The real reason to oppose all of this at amendments, it is just going to delay BRIAN SCHATZ.

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