[Congressional Record (Bound Edition), Volume 154 (2008), Part 1] [Senate] [Pages 1017-1019] [From the U.S. Government Publishing Office, www.gpo.gov]FISA Mr. CHAMBLISS. Mr. President, I come to the floor this afternoon to talk for a minute about the pending FISA legislation. As a member of the Senate Intelligence Committee, I have been very pleased to be a part of the bipartisan process in which Chairman Rockefeller and Vice Chairman Bond have crafted a very delicate, a very sensitive, yet important piece of legislation. Probably the most important piece of legislation that the Intelligence Committee has dealt with over the last several months or even years. Certainly, it is one of the most important pieces of legislation to come to the floor of this body this year. This FISA legislation gives tools to our intelligence community which allow our brave men and women--who stand at the forefront today of the war on terrorism in every part of the world--to gather information from those who are plotting, planning, and scheming to kill and harm Americans. The tools with which the intelligence community seeks to get in this particular instance deal with their ability to gather information, primarily through what we refer to as electronic surveillance, from terrorists, or bad guys, who are overseas communicating to other individuals who are also overseas. There is no question that in order for our intelligence or law enforcement officials to be able to gather information from communications of persons located within the United States, it is necessary that they first obtain a court order. Let's make that very clear. We must first obtain a court order to conduct surveillance against individuals located within the United States. What we are seeking to do in this legislation is to give our intelligence community the ability to collect information without a court order from people who are planning attacks against the United States and located outside the United States. It is those individuals whom we seek to gather information from and prohibit from having the capability to kill and harm Americans. This legislation is a crucial piece in the puzzle to enable the intelligence community to gather information from these individuals. This particular piece of legislation has been debated in the Intelligence Committee for 10 months and was voted out of the Intelligence Committee on a very bipartisan vote of 13 to 2. I actually voted against several of the amendments offered in the Intelligence Committee. But at the end of the day, even though some of the amendments I voted against were accepted and were included in the bill, I believed it was such an important piece of legislation and put such necessary power and authority into the hands of the intelligence community that I voted to support it. I commend my vice chairman, Senator Bond, who is on the floor with me now, for his leadership. I would simply ask the vice chairman: We started debate on this bill on the Senate floor in December, have been debating this bill this week, as well as last week. Where are we? What is the holdup in passing this critical legislation? What is the problem? Why can't the Senate give our intelligence community the tools they need to protect Americans? The PRESIDING OFFICER. The Senator from Missouri is recognized. Mr. BOND. Mr. President, if I may respond to my colleague from Georgia, who is a very valuable member of the Intelligence Committee and who brings expertise from the other body and who has been a valuable contributor, when we passed the FISA bill in what is called the Protect America Act in August, everybody agreed that it should be 60 votes because this is a very important but very controversial bill that has to be adopted by 60 votes. Thus, we have asked that amendments to this bill be considered under a 60-vote rule. It is very common in this Senate to demand 60 votes to be sure it is a nonpartisan bill. So far, we have not been able--although we have provided several alternatives to our friends on the other side--to get a clear way of going forward. So that is why we are stuck, waiting to find a reasonable manner of proceeding. I would ask my colleague if, in fact, he feels we had adequate contact with, interaction, and advice from the intelligence community and whether it is important to have the advice and assistance of those who are experts in and know the operations of electronic surveillance, to have a role in our drafting of the legislation. Mr. CHAMBLISS. Mr. President, I would respond to the vice chairman, the Senator from Missouri, that without question, under his leadership and the leadership of Senator Rockefeller, the chairman, we have received important input and had dialogue with the intelligence community throughout the drafting stages of this legislation. We not only had the top leadership, including the DNI, the Director of the NSA, the head of the CIA, and folks from the FBI in to testify before the Intelligence Committee, but also every member of the Senate Intelligence Committee has had the opportunity to visit these agencies and see firsthand where and how this information is gathered. We have had the opportunity to see firsthand the methods our intelligence community uses and the professionalism they exhibit. All of this is very highly classified. Our committee deals with all of this information in a very sensitive and classified manner. But the fact is, we have had testimony and firsthand accounts from top to bottom--from the individuals who physically gather the information all the way to the top leadership. Members of the committee on both sides of the aisle have asked tough questions to the individuals who have presented testimony before the committee. Everybody had the opportunity to have a free and open dialog and debate with those individuals. [[Page 1018]] Again, based upon what our intelligence experts had to say, this legislation was crafted and debated within the committee. Without question, there was ample opportunity for every member to inquire of all of those in the intelligence community of why we need this legislation, why it is so critically important, where we would be without it, and why we need it to make sure we are able to stop those individuals who seek to do harm to Americans around the world. Mr. BOND. Mr. President, I would ask the Senator from Georgia further why it is so important to have the intelligence community operatives and lawyers involved in drafting the measure. We had several good ideas offered in the committee that turned out not to be workable. I would ask my colleague why he thinks it is important to have the direct involvement by the intelligence community experts as to how to craft not only the legislation but amendments to it. Mr. CHAMBLISS. Mr. President, I would respond to the distinguished Senator from Missouri that without question, it is necessary, from a legal standpoint and from a practical standpoint, to get testimony and advice from the legal experts and our operators in the intelligence community to make sure there are no unintended consequences that come out of the final product from the Intelligence Committee. As the Senator will recall, we had some very heated debates on a couple of amendments within the committee. Very good debate on both sides of the issues. Sometimes, there were Democrats arguing with Democrats, other times Republicans were arguing with Republicans, but that is the nature of the Intelligence Committee. It operates in a bipartisan fashion to make sure we look at every aspect--legal, technical, as well as practical--to make sure we get it right. As the vice chairman knows and has been working to correct, some of the amendments adopted in committee were well intentioned but harmful to our collectors. With the input of the intelligence community the manager's amendment has been able to correct those unintended consequences while preserving the intent of the amendments. In this instance, I think we did get it right through engaging with our intelligence experts. Mr. BOND. Mr. President, would the Senator from Georgia say that this bill not only enables the intelligence community to move forward, but it provides additional protections for Americans, for their privacy and constitutional rights? I would ask him if he thinks those amendments have been incorporated in the legislation before us and what he thinks the final product of the Intelligence Committee is as a result. Mr. CHAMBLISS. Mr. President, I thank the Senator for his question. I would simply say that, again, there is just no doubt this legislation goes beyond the Protect America Act and the current FISA statute to protect American's privacy and constitutional rights. After all the discussion, after all the testimony that was presented, after all the debate that took place within the confines of the Senate Intelligence Committee, we found that for 25 years, the members of the intelligence community have been able to conduct surveillance against Americans overseas without a court order. I would point out that they did this in a professional manner and reduced the risk of compromising American's privacy through established minimization procedures. Since FISA's original enactment, the intelligence community has used minimization procedures to ensure that the information being gathered from Americans was necessary foreign intelligence information and from individuals who are foreign agents. This legislation subjects this type of surveillance to a court order, providing new protections for Americans. One purpose of FISA reform was to ensure that the ultimate and final language we came up with would provide additional privacy protections to American citizens, both inside the United States as well as outside the United States. Mr. BOND. Mr. President, I would ask, isn't this the first time any of the FISA bills--even the predecessor FISA bill or the Protect America Act--have included privacy protections for Americans overseas? Mr. CHAMBLISS. Mr. President, I would respond to the distinguished Senator from Missouri that this is the first time these protections have been enacted. This bill also prohibits reverse targeting. This is the first time in the history of our intelligence community that a FISA court order for U.S. persons is required regardless of where that individual is located. So if a U.S. citizen who goes abroad is an agent of a foreign power or a terrorist seeking to communicate, our intelligence community must first get a court order before they can conduct any electronic surveillance, irrespective of whether that person is inside the United States or outside. For the first time in the history of our intelligence operations, this will be the case. So the added protections of the fourth amendment, which normally are not needed for a person located outside the United States, are applied in this particular piece of legislation. Mr. BOND. Mr. President, my colleague mentioned reverse targeting. I would ask him, after debate on both sides and suggestions from both sides, did we not also include an express prohibition of reverse targeting, as well as providing court review, as he has stated, of minimization, acquisition, and certification procedures? I would ask him if reverse targeting is prohibited and what reverse targeting really means. Mr. CHAMBLISS. Again, I thank the vice chairman for his question. The issue of reverse targeting is directly addressed in the bill--it is prohibited explicitly. Reverse targeting refers to the hypothetical situation where our intelligence community targets a foreigner overseas solely to get a U.S. persons' communications between that foreign person and a U.S. person. The targeting of the foreign person is allowed without a court order. The targeting of a person located in the U.S. is not allowed unless a court order is first obtained. So if someone in the intelligence community targeted a foreigner with the intent to listen in on the U.S. citizen, that is reverse targeting. This is prohibited in this legislation. Again, this is the first time we have seen that protection put in the statute. So as a lawyer still recovering from practicing law sometimes, I think, it is the first time that I can remember in all of my years since my days of constitutional law at law school where the United States applies fourth amendment rights to individuals who are outside of the United States. Mr. BOND. Mr. President, I would ask my colleague--he just talked about the new protections for U.S. persons overseas: Prohibition of reverse targeting, court review of acquisition, minimization, and certification procedures. Now, some have said we just ought to extend the Protect America Act. As a sponsor of the Protect America Act, I thought it was pretty good. But if we were simply to extend the Protect America Act, would that not eliminate or at least delay any of the additional protections against reverse targeting, providing court review, and preventing reverse targeting of U.S. persons? Mr. CHAMBLISS. Again, Mr. President, I respond to the vice chairman that reverse targeting is not prohibited under the Protect America Act. It is a procedure that some allege could occur under the Protect America Act, but which is clearly prohibited under this act. Anybody who is concerned about extending and protecting the rights of individuals ought to be a lot more concerned about getting this bill enacted into law than they should be about extending the Protect America Act. So this is one of those situations where it is totally unexplainable to me for someone to say: I don't think we ought to pass this law because it doesn't go far enough, when it goes further than current law and the Protect America Act which we already have voted for. Now there is an attempt being made to [[Page 1019]] extend the Protect America Act for an additional period of time. Mr. BOND. Mr. President, I ask my colleague why it has taken so long to get us to this point when the Protect America Act expires on February 1? Mr. CHAMBLISS. As the Senator has said on the floor over the last several days, we are ready to pass this bill tonight if our friends on the other side of the aisle will simply get together with us and let us vote it up or down. When it comes to the issue of 60 votes, I have only been in this body for 5 years, but I cannot think of one single major piece of legislation that I have seen on the floor of the Senate during those 5 years that didn't require 60 votes for all major amendments. I was the manager of the farm bill recently. That is a long way away from this sophisticated piece of legislation, but every major amendment we had required 60 votes. That was the most recent, large piece of legislation we have had on the floor. So every time we have a major bill, a 60-vote requirement is reasonable and is going to be called for. I think for us not to have it in this particular situation would be extremely unusual. Mr. BOND. Mr. President, I might ask, isn't there a danger that if there is an amendment not subject to the 60-vote point of order, it is possible, with various Senators absent, that we could adopt, perhaps, on a 47-to-46 vote, an amendment that would make it impossible for the intelligence collection required by the intelligence community to go forward, and if such were adopted, what would happen to the legislation? Mr. CHAMBLISS. Mr. President, if I may respond, the Senator is exactly right. If we did not have a 60-vote requirement on amendments, or dealing with any issue in this bill, then it is possible that we could adopt amendments, by less than a majority of the Members of the Senate, which could hamper our intelligence community. And on this critical, sensitive, most important piece of legislation, for us to pass an amendment without a 60-vote requirement really makes no sense at all. I think all of us would certainly be remiss and derelict in our duties if we didn't insist on a 60-vote requirement. Mr. DURBIN. Will the Senator yield for a question? Mr. BOND. Of course. Mr. DURBIN. Mr. President, is the Senator proposing to change the Senate rules that all amendments will now take 60 votes? Is that the proposal before the Senate? Mr. BOND. Mr. President, if I may respond, as my friend from Georgia pointed out, in order to pass very important legislation such as this, it has been the practice in this body to require 60 votes, and as my colleague from Georgia just said, the farm bill passed with 60 votes on the amendments. When we passed the Protect America Act, we had to get 60 votes. This bill could be enacted into law and will undoubtedly have to have 60 votes to be signed by the President. I say to my distinguished colleague from Illinois, if there are changes made with less than a 60- vote margin, if they destroy the ability of the intelligence community to operate the collection system as we have prescribed, then that bill will never be signed into law. We would have to start all over again, and we would thus be leaving our intelligence community without the tools to protect us. We are not saying we are changing the rules of procedure. We are following the practice that has been adopted in this Senate. Mr. DURBIN. If the Senator will further yield, I am new here; I have only been here 11 years. So I am trying to learn a little about how this works. I recall that somehow the Republic survived and the Nation did well, we kept our armies in the field and built our highways and passed our bills, and we did that for a long period of time without requiring 60 votes on every amendment. Then there came this age of the filibuster, where the Republican minority last year had 62 filibusters, breaking a record in the Senate. Well, to stop the filibuster, you need 60 votes. So now I assume what the Senator is suggesting is that we are in a new age in the Senate, and it is going to take 60 votes for everything. If that is the proposal, I suggest a rules change. Let's get on with it and find out if there are enough votes here to make that the rule. If it is going to be the age of filibusters again this year, the public won't like it much. We were in the minority not that long ago. But if that is your goal, if you want to make this a 60-vote requirement, it is a different Senate, and it will be, unfortunately, adding to the frustration many people have when they look at Washington and say: Why don't you pass something, or why don't you do something about health care or about other issues? We will have to tell them we don't have 60 votes. Mr. BOND. Mr. President, if that was a question--and I assume it was a question--let me say that requiring 60 votes is something which has occurred frequently in previous years, when this side had the majority and the other side was in the minority. We found that it was very difficult to pass legislation without 60 votes. Thus, we have seen that practice before. But this is not an ordinary piece of legislation. Had we dealt with this in a timely fashion, this could have been handled on a different basis. But the Director of National Intelligence, whom I will refer to as the DNI, submitted to the Intelligence Committee, in April, a measure that he felt was necessary to modernize FISA. That bill was not brought up. The DNI testified in person before the committee in open hearing in May. Despite my request, no legislation was developed in the committee. The DNI came before the Senate in closed session, in a confidential room, in July of this year, to say how important it was. No bill came out of the Intelligence Committee. So the DNI proposed a short-term fix, which I brought to the floor on his behalf at the end of July, the first of August, and we were able to pass the bill, but we had to pass on a 60-vote basis. When there are very important pieces of legislation, with strong feelings on both sides--as my colleague from Georgia has pointed out, he handled a very important and difficult farm bill--those measures had to have 60 votes. Now, the fact is, we could have a bunch of simple majority votes, and there are many we can take on a simple majority. But if there are amendments which, if adopted, would prevent the bill from being passed and signed into law, as a practical matter, it makes sense to have a 60-vote margin. We are waiting for a response to the offers we have made to the other side because, frankly, February 1 is coming. I hope we will agree on it. I understand the House is sending us a 15-day extension. I say to my friend from Illinois that I hope we can adopt the 15-day extension and a collaborative agreement between the two sides on how we are going to proceed to finish this bill. I see the distinguished assistant majority leader has some information. I am happy to yield to him for that. ____________________