Madam President, in this dangerous world we have an obligation to give our intelligence community the tools and the resources that they need to keep us safe. But we also have a fundamental obligation just as great, I believe, to protect the civil liberties of law-abiding American citizens.
A right to private communications, free from the prying eyes and ears of the government, should be the rule, not the exception for American citizens on American soil, whom law enforcement has no reason to suspect of wrongdoing.
And yet, the legislation that we debate on this Senate floor today, the FISA Amendments Act, or the Foreign Intelligence Surveillance Act Amendments Act would reauthorize surveillance authority that most Americans, most of the Delawareans whom I represent, would be shocked to learn that the government has in the first place.
Under section 702, FISA permits the government to wiretap communications in the United States without a warrant if it reasonably believes the target of the wiretap to be outside of the country and has a significant purpose of acquiring foreign intelligence information.
Of course communications are by definition between two or more people. So even if one participant is outside our country, the person they’re talking to may be here in the United States, and they may well be an American citizen. Under this legislation, the government is permitted to collect and store their communications but without clear legal limits on what can be done with this information.
They can keep it for an indefinite period of time. They can search within these communications and use them in civilian criminal investigations. And perhaps most concerning of all to me, they can search information obtained under this act for the communications of a specific individual U.S. citizen without judicial oversight and for any reason. If these are all true, and this is the case, then I am gravely concerned.
What is at issue today is the scope of the government’s power to conduct surveillance without getting a warrant. The warrant requirement is enshrined in our legal system from the very founding of our nation, because we believe in judicial checks and balances. If the government suspects wrongdoing by a U.S. citizen, it must convince a judge to approve a warrant.
Warrants are issued each and every day in courts across the United States for investigation of potential offenses across the whole spectrum of criminal activity, including crimes affecting national security.
In contrast, surveillance under this act is not required to meet this standard, leaving American citizens vulnerable to potentially very real violations of their privacy.
Madam President, the balance between privacy and security is an essential test for any government, but it is a vital test for our government and for this country.
This law in its current form does contain some checks that I want to review that are supposed to protect our privacy. It requires that the government surveillance program must be “reasonably designed” to target foreigners abroad and not intentionally acquire wholly domestic communications.
The law requires that a wiretap be turned off when the government knows it is listening in on a conversation between two U.S. individuals, and it forbids the government from targeting a foreigner as a pretext for obtaining the communications of a U.S. national. All three of these are important privacy protections currently in the law.
The problem is we here in the United States Senate, and so the citizens we represent don’t know how well any of these safeguards actually work. We don’t know how courts construe the law’s requirement that surveillance be, as I mentioned, “reasonably designed,” not to obtain any purely domestic information. The law doesn’t forbid purely domestic information from being collected.
We know that at least one FISA court has ruled that a surveillance program violated the law. Why? Those who know can’t say and average Americans can’t know. We can suspect that U.S. communications occasionally do get swept up in this kind of surveillance, but the intelligence community has not — in fact, they say they cannot, offer us any reasonable estimate of the number or frequency with which this has happened.
The government also won’t state publicly whether any wholly domestic communications have been obtained under this authority.
And the government won’t state publicly whether it has ever searched this surveillance, this body of communications, for the communications of a specific American without a warrant. For me, this lack of information, this lack of understanding, this lack of detail about exactly how the protections in this act have worked is of, as I said, grave concern.
Too often this body finds itself in the position of having to give rushed consideration to the extension of expiring surveillance authorities. The intelligence community tells us these surveillance tools are indispensable to the fight against terrorism and foreign spies, just as they did during the PATRIOT Act reauthorization debate last year.
Also, as in the case of the PATRIOT reauthorization, the expiration of these authorities, we were told, the impending expiration of these authorities would throw ongoing surveillance operations into a legal limbo, would cause investigations to collapse or harm our ability to track terrorists or prevent crimes. All of these are profound and legitimate concerns.
It is precisely because this legislation is so important that it is all the more deserving of the Senate’s careful, timely and deliberate attention. This kind of serious consideration requires more declassified information on the public record than we have available now.
That’s why I am supporting the amendments reported by the Judiciary Committee, on which I serve, which would help to shine a light on exactly how this surveillance authority is used. It would direct the Intelligence Community Inspector
General to issue a public report explaining whether and how the FISA Amendments Act respects the privacy interests of Americans.
This amendment would also give us another chance to amend this FAA after we receive this report by adjusting the sunset not to 2017 but to 2015. This new expiration date would align the sunset of the FISA Amendments Act with those in the PATRIOT Act, allowing for more comprehensive review of both surveillance authorizations.
Concerns about privacy rights of law-abiding American citizens, as well as the striking lack of current public information, are also why I support Senator Merkley’s amendment to direct the administration to establish a framework for declassifying FISA court opinions about the FAA.
Secure sources and methods vital to the success of our intelligence community must be protected, and I agree with that, and this amendment would do that, but the default, the default position here ought to be that the legal analysis about the government’s use of warrantless surveillance in this country is public rather than hidden from view.
I also strongly support Senator Wyden’s amendment to force the intelligence community to provide Congress and the public as appropriate with specifics on just how much domestic communication has been captured under the FAA and what the intelligence community does with that information. This amendment simply asks for the most basic information about the practical consequences of the use of the powerful surveillance authorities in this act. To what extent are these authorities being used to discover the content of private conversations by U.S. citizens? What is the order of magnitude? We don’t know.
To me, this amendment is simply common sense. The Delawareans for whom I work, the nation for whom we work expects that the government cannot listen in on their phone calls or read their emails unless a judge has signed a warrant.
If there is a reason why this requirement is not consistent with national security, then I say let the intelligence community make that case and allow us to debate that and consider it in public. It is to me simply not acceptable for the intelligence community to ask us to surrender our civil liberties and then refuse to tell us with any specificity why we must do so, the context and the scale of the exercise of this surveillance authority. In my view, America’s first principles demand better.
So I thank Senator Wyden for his leadership on this issue and I thank Majority Leader Reid for assuring we have the opportunity to debate and consider these amendments and the very important issues that they reflect here today. I urge all of my colleagues to consider carefully and then support these amendments to the FAA.
We cannot let the impending deadline distract us from the important opportunity to conduct oversight and implement responsible reforms. To simply be rushed to passage when we have known the deadline was approaching for years strikes me as an abrogation of our fundamental oversight responsibility. In my view, this chamber deserves a full and informed debate about our intelligence-gathering procedures and their potentially very real impact on Americans’ privacy rights, and we need it sooner rather than later. These amendments would allow us to have that conversation and to work together on a path that strikes the essential balance between privacy and security for the citizens of these United States.