Mrs. FEINSTEIN. Madam President, this bill does not include language I authored to strengthen the exclusivity provisions of FISA. It has been reviewed by the chairman of the Intelligence Committee, the chairman of the Judiciary Committee, and they are both cosponsors, as well as an additional cosponsor in Senator Bill Nelson of Florida, who is also a member of the Intelligence Committee. Basically, what this amendment does is strengthen FISA as the only and exclusive authority for gathering intelligence through electronic surveillance. It specifically closes the AUMF loophole I mentioned earlier, whereby the administration contends it does not need FISA approval.
Second, it provides that only another statute, specific statute can constitute an additional exclusive means of electronic surveillance.
Third, it strengthens the requirements for certifications. The administration must identify the specific provision of the law on which the certification is based.
The exclusivity amendment I have submitted is intended to reinforce the legislative intent of the bill. In 1978, when the bill was passed, the court was to be absolute when conducting electronic surveillance against Americans [Page: S15733] for foreign intelligence purposes. Unfortunately, despite the 1978 language, the Bush administration decided it could go outside the law. That was both wrong and unnecessary.
To make matters worse, the administration made up an argument that Congress had authorized it to go around FISA by some passing the authorization for use of military force against al-Qaida and the Taliban. Does anyone here actually
believe that? I do not know one Member of Congress who has stated publicly that they believed they were authorizing the terrorist surveillance program when they voted to go to war against bin Laden. In fact, to the contrary, it was never considered and to the best of my knowledge it was never thought of. When the Department of Justice came to the Congress in September 2001, outlining the changes it needed in FISA to wage this war, it did not mention anything about surveillance efforts such as those the TSP program addressed.
Congressional intent from 1978 is clear. Congress clearly intended for FISA to be the exclusive authority under which the executive branch may conduct electronic surveillance. Let me briefly review the history, because it is important.
Congress wrote, in 1978, in report language accompanying FISA:
Despite any inherent power by the President to authorize warrantless electronic surveillance in the absence of legislation, by this bill and chapter 119 of title 18, Congress will have legislated with regard to electronic surveillance in the United States, that legislation, with its procedures and safeguards prohibit the President, notwithstanding any inherent powers, notwithstanding any inherent powers--
Which means AUMF, article II of the Constitution
--from violating the terms of that legislation.
That is a quote. The legislative history continues by describing the Supreme Court's decision in the Keith case, in which the Court ruled at that time Congress hadn't ruled in this field, and simply left the Presidential powers where it found them.
But at this point the legislative history turns. The 1978 language responded to the Keith case and said this:
The Foreign Intelligence Surveillance Act, however, does not simply leave Presidential powers where it finds them. To the contrary, this bill would substitute a clear legislative authorization pursuant to statutory, not constitutional, standards.
I want the record to show here the clear understanding in 1978 that FISA was the exclusive authority. That was the report language accompanying H.R. 7138 as it passed the 95th Congress.
President Carter signed the bill. His signing statement said this:
This bill requires, for the first time, a prior judicial warrant from all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted.
That is pretty clear, on the part of the President who signed the bill, and the House and the Senate that passed that bill, what the intention was.
The Intelligence Committee bill before us reiterates the 1978 exclusivity language, but I believe this needs to be strengthened in light of the article II and the AUMF arguments that this administration has been making. I am going to introduce this amendment at this time.
This language closes loopholes that this Department of Justice squeezed through, to claim that the AUMF was an authorized exception to the FISA. It clearly was not. The amendment does this by tightening language in FISA, and in title 18 of the criminal code, making clear that future Presidents should not try to read between the lines in future legislation for authorization to go outside of the Foreign Intelligence Surveillance Act.
It also provides more specificity in what must be included in written requests or directives to telecommunications authorities for them to legally provide assistance. It is clear from the recent history that this is necessary. In fact, the whole issue of whether telecom immunity is needed is because past certifications have not been clear.
I couldn't support a bill that did not clearly reestablish the primacy of FISA. I tried to do it in committee. I thought it was done in committee. It was not included in the base bill. The Republican side would not go along with it. I once again submit it. To me it is vital, and my vote on the bill was, at least 50 percent, based on this exclusivity provision.
Now, if I may, may I mention telecom immunity and submit an amendment? I voted for telecom immunity in the committee. I am not inclined to vote for it, to be candid with you, unless this amendment is adopted. So let me begin by talking about the immunity provision of the bill. It is not as expansive as some would make it sound. The language would only cover cases where the Attorney General certifies that the defendant companies received written requests or directives from top levels of the Government for their assistance.
In other words, the Government, in writing, I stress in writing, assured those companies that the program was legal, the President had authorized the program, and that its legality has been approved by the Attorney General.
The legislation does not provide immunity for criminal wrongdoing, nor does the legislation provide liability relief for any Government official such as that the Director of National Intelligence had requested in April. No individual immunity of anyone in the government is included in this bill.
There are approximately 40 cases pending in the Ninth Circuit. The companies in these cases are prevented from making their own defense. I do not know if Members understand the full importance of this. They are prevented from responding to inaccurate news articles, inaccurate press releases, they cannot come before the Congress and testify in public, they cannot respond to anything that is said in the public sector, and they are prevented from defending themselves in court.
These defendants have to sit by and listen to what they consider to be misrepresentations, and they cannot respond to these misrepresentations. So, in effect, they are handcuffed and gagged by the administration's claim of state secrets. This is a matter of fairness. These companies have no financial motives in providing assistance to the Government. In fact, they incurred a substantial risk in doing so. They were given written requests, legal assurances in the weeks after September 11. The letters went out within 5 weeks of September 11, when we all feared this Nation might suffer additional attacks.
In fact, evidence has come to light to indicate the second wave of attacks involving the West Coast was being planned. It was this administration, not the companies, that made a flawed legal determination. It was this administration that withheld its activities from the Congress for 4 long years. It was this administration that decided not to go to the FISA Court. They could have gone to the FISA Court. They could have asked for a program warrant, which they subsequently got.
They could have put this program under FISA coverage, which it now is, which they did not at the time.
It has been pointed out that there is a longstanding common law provision that allows citizens to rely on the assumption that the Government acted legally when it asks a private citizen or a company to assist it for the common good. All that is required is that the citizen act in good faith.
So the question is whether the small number of people, and it was a small number of people, who were actually cleared in a classified sense, to deal with this, of these companies, were acting in good faith and whether it was reasonable for them to determine that the assistance, in fact, it provided was legal.
A small number of telecom officials were acting under the cloak of secrecy and a directive not to disclose the Government's request. They are not experts on article II of the Constitution. The amendment I am going to submit would put before the FISA Court the question of whether the telecommunications companies should, in fact, receive immunity based on the law.
The FISA Court would be required to act, en banc, and how this is, is 15 judges, Federal judges, appointed by the Chief Justice, they sit 24/7, and this is all they do, they would act en banc. They would look at the following: Did the letters sent to the carriers which were repeated virtually every 35 to 45 days over the last 4 to 5 years, did the letters sent to the carriers meet the conditions of law. [Page: S15734]
Section 2511 of title 18 clearly states that a certification from the Government is required in cases where there is no court order. That is the only two ways that FISA allows this to proceed, by written certification or by court order.
The Government has to certify in writing that all statutory requirements for the company's assistance have been met. So the FISA Court would first look at whether the letter sent to the companies met the terms of this law. The court would then look at, if the companies provided assistance, was it done in good faith and pursuant to a belief that the compliance was legal.
Finally, the FISA Court would ask: Did the defendants actually provide assistance? If the FISA Court finds that defendant did not provide any assistance to the Government or that the assistance either met the legal requirements of the law or was reasonably and in good faith, the immunity provision would apply.
If the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies. I think the merit of this approach is it preserves judicial review, the method we look at in order to decide questions of legality.
Now, the bulk of the Members of this body, probably 90 percent of them, have not been able to see the written certification, so you do not know what was there. What we ask in this amendment is: FISA Court, you take a look at these letters, and you make a ruling as to whether they essentially meet the certification requirements of the FISA law.
Therefore, there is judicial review to determine whether, under existing law, this immunity should be forthcoming. It is a narrowing of the immunity provisions of the Intelligence bill. I think it makes sense. I read the letters. I am a layperson, I am not a lawyer. I cannot say whether they met the immunity provisions. Others can say that.
But it should be up to a court to make that decision. It seems to me that if the FISA Court finds that none of these requirements were met, immunity would not apply to the defendant companies.
The FISA Court of Review stated in 2002 that the President has article II authorities to conduct surveillance. The article II authority is the big rub in all this. The collection under this program was directed overwhelmingly at foreign targets.
But no court has addressed this issue since FISA was enacted in 1978. And, candidly, I think the time has come to see whether the President's article II authority--and the FISA Court would be the first judge of this--in fact, supersedes the article II authority based on the reading that I had given you of FISA Court passage in 1978.
So essentially that is the amendment I would like to send to the desk at this time which narrows the immunity provision of the FISA law. I thank the clerk for receiving the amendment.
In sum, I have tried to pay a great deal of attention to this. I tried to do my due diligence, both as a member of the Judiciary Committee and the Intelligence Committee. I truly do believe electronic surveillance is vital in the war against terror.
I believe it is the most likely way we learn what is being planned for the future and have an opportunity to prevent it from happening. I truly believe there are people who would do this Nation grievous injury and harm if they are given the opportunity to do it, and I think the telecom communities did depend on the good faith of the head of the National Security Agency and the Attorney General and the requests from the highest levels of Government.
The question is, Did they comply with the law? And so the amendment I have suggested would give the FISA Court the opportunity to make a ruling as to whether, in fact, they did comply with the law.
The second amendment would strengthen the exclusivity provisions of the FISA law so we never again, hopefully, will find ourselves in the same situation.
I look for a vote on both those amendments, and I thank the Chairman of the Intelligence Committee, the Judiciary Committee and Senator Nelson for supporting my amendment on exclusivity.
I ask unanimous consent that Senator Nelson of Florida be added as a cosponsor of the FISA Court evaluation on the immunity question amendment.
The PRESIDING OFFICER (Mr. Webb.) Without objection, it is so ordered.
