The Administration-supported bill would also abandon the individual warrant approach that has been the hallmark of FISA for more than 25 years.
I have said on several occasions that I think this is a mistake.
I am confident, after being briefed, that the NSA’s program can be and should be carried out with individual warrants.
Instead of individual warrants, the new bill would authorize ‘program’ warrants for content collection, which means listening to Americans’ phone conversations – not just monitoring who someone called, but actually listening to what is said.
'Program' warrants have never been tried – and we have no idea how many phones or individuals could be wiretapped with a single ‘program’ warrant. This means that if the Administration gets one ‘program’ warrant, it might allow them to wiretap 10 phones, 100 phones, or 1000 phones. Nobody really knows.
In short, we don’t even know what this bill would be authorizing.
Several of our witnesses last week discussed this issue. Generals Alexander and Hayden both suggested that FISA’s individualized warrant process could be preserved, and would be manageable, for U.S. persons in the U.S., at least if we exempted out foreign targets from FISA’s requirements.
I have no problem exempting out from FISA any foreign-foreign communications that pass through U.S. switches, and will offer an amendment to make that clear.
In addition, I understand the Generals believe that other changes may be necessary. However, I am unable to evaluate their proposals without fully discussing the operational details of the program – which are classified.
Therefore, I intend to examine further, in a classified setting before the Intelligence Committee, whether “hot pursuit” of a known foreign target’s communications with U.S. person #1, #2, etc. can be adequately handled by the emergency warrant process available under FISA.
But I think one thing is now clear: There no longer is any doubt that securing an individual warrant for U.S. persons targeted for wiretapping on U.S. soil is feasible.
I believe we ought to preserve FISA’s individual warrant process – the core of FISA for more than two decades. I believe we ought to reaffirm the privacy rights of ordinary American citizens. The new Specter bill goes too far. It is now clear we don’t need to broaden the scope of FISA to such a degree. And we shouldn’t.
More Categories of People to Be Wiretapped
Finally, I am concerned that the new bill also appears to authorize more categories of people to be wiretapped without FISA warrants, and for longer periods of time than the NSA program now in place.
For example, the Administration has publicly said that the current NSA program is limited to international calls involving associates of al Qaeda or affiliated terrorist organizations. The new Specter bill allows far more.
The Administration also tell us that the President reviews the NSA programs every 45 days. Under the new Specter bill, however, a program warrant lasts for 90 days, and then can be reauthorized without any specific time limit placed on its duration – it could be reauthorized for months, years, or even indefinitely.
The President has said that his program only targets a specific suspected affiliate of al Qaeda, but the new bill would apply when it is not possible to specify a target.
The new Specter bill also changes the definitions of many key terms of FISA, in ways not yet fully explained, and that may fundamentally change the scope of FISA. For example, the definition of 'electronic surveillance' itself is completely rewritten, so that it would now include only conversations in which Americans are targeted. In other words, so long as the surveillance is "directed at" a non-U.S. person, the government could intercept the international calls of U.S. persons without a court order.
I am concerned about making such significant changes when it has not yet been established that these modifications are necessary or appropriate.
As I have mentioned in previous markups, rarely does Congress face an issue like this, in which the stakes are so high on both sides – we are considering legislation that impacts national security on one hand, and the core privacy rights of innocent Americans on the other. It is so important that we get this balance right.
Congress was able to strike the balance appropriately more than 25 years ago when it enacted FISA, and I am confident that, if we work together on a bipartisan basis, we can do it again today.
I urge my colleagues to oppose the Administration-supported version of S.2453."
