Ben Cardin - Senator for Maryland

S. 2248, FOREIGN INTELLIGENCE SURVEILLANCE ACT AMENDMENTS

Print E-Mail

Mr. CARDIN. Madam President, I wish to take this time to talk a little bit about the FISA bill we are considering today. I heard my friend from Alabama talk about the work that is being done at the National Security Agency. I have also taken the opportunity to visit with NSA to see firsthand the work they are doing. It wasn't my first visit. NSA, as my colleagues know, is located in Maryland. I have been there on numerous occasions. I had an opportunity to observe the manner in which our security intelligence agencies operate, and I must tell my colleagues these men and women are dedicated public servants doing a great job on behalf of their country and trying to get it done right. They are trying to do it the way it is supposed to be done and complying with laws, but they need the right legal basis, and it is our responsibility in Congress to get the statutes right to allow them to obtain the information they need in order to keep us safe. There is a right way of doing it. Congress needs to get this bill done right.

We passed this bill in a hurry in August. We didn't have an opportunity at that time to review the classified information about the advice that was given in regard to the collection of data. Since that time, some of us have had that opportunity. I regret all of us have not had that opportunity. I have taken advantage of that opportunity as a member of the Judiciary Committee, and I have seen the information. I have seen the opinions of counsel. I have seen the information the telecommunications companies operated under. I have had a chance to review that information. It makes it a lot easier for me now to evaluate what we should do.

I will tell my colleagues I wish to get this bill done. I think it is important that our intelligence community have the legal authority to be able to intercept communications that are foreign to foreign. That was the basic reason why they asked for us to modify the FISA law, because technology changed and we had a lot of foreign-to-foreign communications. But it was through facilities that were located within the jurisdiction of the United States; therefore, the FISA laws applied. The administration thought originally they didn't apply, but then the court said: Hey, wait a minute. Read the statute. It does apply. You have to come to Congress and get it done right. That is why they came to us. They wouldn't have come to us if the courts didn't demand they come to us. Now it is our responsibility to get the statute right.

I wish to thank Senator Rockefeller and Senator Bond for the work they did in the Intelligence Committee. I serve on the Judiciary Committee. I can tell my colleagues, Senator Leahy, Senator Specter, and every member of our committee has taken our responsibility very seriously to try to understand the circumstances. But I can tell my colleagues it is important we modify the bill that has come out of the Intelligence Committee. I call my colleagues' attention to the work of the Judiciary Committee because we wanted to make sure the bill we recommended gives the intelligence community the tools they need, particularly as it relates to foreign-to-foreign communications but also protects the constitutional rights of the citizens of our own country, and it will be defensible before our courts. That is our responsibility. I think we got it right.

So we are going to see some differences between these two bills, besides the big difference which is the immunity. I am going to get to the retroactive immunity in a moment. However, there are other differences which are very important, including exclusivity, to make it clear this statute controls so the administration can't say: Well, we have additional authority and we are going to do it our way, regardless of what the Congress says. That is an important provision. It is in the Senate bill. We need to make sure it is in the final bill that is sent to the President.

There are other provisions that are important that are in the Senate bill but not in the House bill: Changes in minimization rules; changes in how--when we target an American overseas--we do, in fact, get appropriate court authorization to do it. I thank Senator Whitehouse for his contributions in that regard. These might be technical changes, but they are important to make sure they get into the bill that is finally passed and sent to the President.

Let me talk for a moment, if I might, about the retroactive immunity because there has been a lot of conversation about retroactive immunity. I oppose retroactive immunity. I think it is the wrong way to help the carriers. Retroactive immunity, to me, violates our responsibility to respect each branch of Government. I want the courts to be able to look at what the executive branch is doing. I want the courts to protect individual rights. I think that when we start looking at retroactive immunity, we start violating the basic separation of powers.

I must tell my colleagues that the telecommunications carriers that cooperated with the Government, believing that the authority was there and operating in good faith, are entitled to relief. But they shouldn't be given retroactive immunity.

There are other suggestions which have been made. I hope my colleagues will listen to some of the amendments that are being offered. Senator Specter has an amendment that I call to the attention of my colleagues. Because if you believe that Government is responsible--and I have heard many of my colleagues say this--that if the Government was wrong, let them be sued and held accountable. That is exactly what Senator Specter's amendment does. It substitutes the Government for the carriers in the same position that the carriers would be so we can get the protection of the courts and the carriers get the protection they need, and the Government can control the case for national security purposes. It seems to be a compromise that if, in fact, the carriers were operating in good faith, then let the Government be there to take its responsibility in this matter.

I call my colleagues' attention to another amendment offered by Senator Feinstein. I think it is a good amendment on this issue. It may be able to help us in trying to find common ground. Her amendment says: Look, the bill we passed that is supported by the Intelligence Committee--the bill we passed last August, now amended by the Intelligence Committee, would say: OK, we are going to grant retroactive immunity, and guess who is going to make the decision as to whether the carrier operated in good faith according to law. It is going to be the Attorney General, the administration. Well, to me, that doesn't sound quite objective. After all, we know it was the Attorney General who gave the advice. So at least let's have an objective review. The Feinstein amendment says: Let the FISA Court, which was set up for this purpose and which has the expertise in this area, make the judgment as to whether the carriers followed the law in good faith. Because I tell my colleagues, if they did, I believe they are entitled to relief. I do. But I don't think we should strip the court of its jurisdiction in solving that problem. I think there are better ways to do it. I urge my colleagues to look at the work of the Judiciary Committee because I think they will find some help in a product that will be submitted vis-a-vis amendments as we consider this legislation.

I wish to mention one additional item I am going to bring to the attention of my colleagues, and that is an amendment I offered in the Judiciary Committee that was approved and one I hope will have bipartisan support: A 4-year sunset on the legislation. Why do I want to see this sunset in 4 years? The Intelligence bill has 6 years. I want the next administration to focus on this issue. I want them to come to Congress and cooperate with us on how they are using this power. It is interesting we have gotten tremendous cooperation, since August, from the administration because they knew they had to come back here in February, so we got their cooperation. We got the information we needed. But I don't know if we are going to see any information from the next administration. When they know they have the authority during the entire time, they don't have to come back to us.

So I hope this 4-year sunset provision will be agreed to by all of us, so this Congress can exercise its appropriate oversight as to how this administration and the next administration use this extraordinary power.

FISA is extraordinary power. These are secret courts. These aren't courts that issue written opinions that people can attend. These are secret courts, in order to protect the security of America but also the rights of the people of our Nation. They should at least have the ability for Congress to exercise appropriate oversight responsibility. A 4-year sunset will give us that opportunity in the next administration, and I hope that will be improved.

So this is an important bill. This is a bill I hope will reach the President's desk and will be signed into law. But let's make sure we get it right. Let's make sure it is legislation we are proud of to protect the safety of the people of America and our civil liberties and legislation that can withstand the review of our courts as to constitutionality.

I yield the floor.

Newsletter Sign-up