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Senator Feingold's Statement In Opposition To The FISA Legislation

Statement of U.S. Senator Russ Feingold
In Opposition to the Flawed FISA Bill
As Prepared for Delivery

December 17, 2007

Mr. President, I oppose cloture on the motion to proceed to S. 2248, as reported by the Senate Intelligence Committee. This bill is deeply flawed, and I am very disappointed by the decision to take it up on the Senate floor rather than the better bill reported out by the Judiciary Committee.

Before leaving town for the August recess, Congress bowed to pressure from the administration, and vastly expanded the government’s ability to eavesdrop without a court-approved warrant. That legislation, the so-called Protect America Act, was rushed through this chamber in a climate of fear – fear of terrorist attacks, and fear of not appearing sufficiently strong on national security. There was very little understanding of what the legislation actually did.

But there was one silver lining: The bill had a six-month sunset to force Congress to do its homework and reconsider the approach it took.

The Senate should be taking this opportunity to fix its mistakes and pass a new bill that gives the government all the tools it needs to spy on suspected terrorists but also protects Americans’ basic freedoms. This time around, the Senate should stand up to an Administration that time and again has employed fear-mongering and misleading statements to intimidate Congress.

Mr. President, the Intelligence Committee bill doesn’t fix those mistakes, and it is not the bill we should be considering on the Senate floor.

I do agree with the administration on one point -- Congress should make clear that when foreign terrorists are communicating with each other overseas, the U.S. government doesn’t need a warrant to listen in, even if the collection activity ends up taking place in this country because of the way modern communications are routed. Unfortunately, both the Protect America Act and the bill approved by the Senate Intelligence Committee go far beyond fixing that problem and also authorize widespread surveillance involving Americans – at home and abroad.

The bill we should be considering is the Judiciary Committee bill, which 14 Senators urged the Majority Leader to take up in a letter last week.

The Judiciary Committee made critical improvements to ensure independent judicial oversight of these sweeping new powers and to better protect innocent Americans. The Judiciary bill does not contain a new form of retroactive immunity for companies that allegedly cooperated with an illegal wiretapping program that lasted for more than five years. And, while the Intelligence Committee bill was drafted and debated behind closed doors and in close consultation with the Administration, the Judiciary bill was the product of an open process with the input of experts from a variety of perspectives.

The Judiciary Committee bill is not perfect. It needs further improvement. But it would be a vastly better starting point for Senate consideration than the bill that the Majority Leader has brought to the floor, which simply gives the Administration everything it was demanding, no questions asked.

Mr. President, the stakes are high. I want my colleagues to understand the impact that the Protect America Act and the Intelligence Committee bill could have on the privacy of Americans. These bills do not just authorize the unfettered surveillance of people outside the United States communicating with each other. They also permit the government to acquire those foreigners’ communications with Americans inside the United States, regardless of whether anyone involved in the communication is under any suspicion of wrongdoing.

There is no requirement that the foreign targets of this surveillance be terrorists, spies or other types of criminals. The only requirements are that the foreigners are outside the country, and that the purpose is to obtain foreign intelligence information, a term that has an extremely broad definition. No court reviews these targets individually. Only the executive branch decides who fits these criteria.

The result is that many law-abiding Americans who communicate with completely innocent people overseas will be swept up in this new form of surveillance, with virtually no judicial involvement. Even the Administration’s illegal warrantless wiretapping program, as described when it was publicly confirmed in 2005, at least focused on particular terrorists. What we are talking about now is a huge dragnet that will sweep up innocent Americans.

In America, we understand that if we happen to be talking to a criminal or terrorist suspect, our conversations might be overheard by the government. But I don’t think many Americans expect the government to be able to listen in to every single one of their international communications with people about whom there are no suspicions whatsoever.

These incredibly broad authorities are particularly troubling because we live in a world in which international communications are increasingly commonplace. Thirty years ago it was very expensive, and not very common, for most Americans to make an overseas call. Now, particularly with email, such communications are commonplace. Millions of ordinary, and innocent, Americans communicate with people overseas for entirely legitimate personal and business reasons. Parents or children call family members overseas. Students email friends they have met while studying abroad. Business people communicate with colleagues or clients overseas. Technological advancements combined with the ever more interconnected world economy have led to an explosion of international contacts.

We often hear from those who want to give the government new powers that we just have to bring FISA up to date with new technology. But changes in technology should also cause us to take a close look at the need for greater protections of the privacy of our citizens. If we are going to give the government broad new powers that will lead to the collection of much more information on innocent Americans, we have a duty to protect their privacy as much as we possibly can. And we can do that without sacrificing our ability to collect information that will help protect our national security.

To take one example, a critical difference between the Intelligence and Judiciary bills is the role of the court. The Judiciary bill gives the secret FISA court more authority to operate as an independent check on the executive branch. It gives the court authority to assess the government’s compliance with its wiretapping procedures, to place limits on the use of information that was acquired through unlawful procedures, and to enforce its own orders.

The Judiciary bill also does a better job of protecting Americans from widespread warrantless wiretapping. It prohibits so-called bulk collection – or vacuuming up all communications between the U.S. and overseas -- which the DNI admitted is legal under the PAA. And it ensures that if the government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating – what is called reverse targeting -- it has to get a court order on that American. None of these changes hinders the government’s ability to protect national security.

The process by which the Judiciary Committee considered, drafted, amended and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, the results of this open process should be accorded great weight, especially in light of the Judiciary Committee’s unique role and expertise in protecting those rights.

I am certain that over the course of this week, we will hear a number of arguments about why the Judiciary bill will hamper the fight against terrorism. Let me say now to my colleagues: Do not believe everything you hear. Last week I sat with many of you in the secure room in the Capitol, S-407, and listened to arguments made by the Director of National Intelligence and the Attorney General. And I can tell you with absolute certainty that several of the examples they gave were simply wrong. I am happy to have a classified meeting with anyone in this body who wishes to discuss this.

This is not about whether we will be effective in combating terrorism. Both bills allow that. This is about whether the court should have an independent oversight role, and whether Americans deserve more privacy protections than foreigners overseas.

All of this should sound familiar to those who have followed previous debates about fighting terrorism while protecting Americans’ civil liberties in the post-9/11 world: The administration says: “Trust us. We don’t need judicial oversight. The courts will just get in our way. You never know when they might tell us that what we’re doing is unconstitutional, and we would prefer to make that decision on our own.”

Time and again, that has proven to be a foolish and counter-productive attitude. And sadly, despite the objections of many of us in this chamber, too many times Congress has gone along. We don’t have to make that same mistake again.

Mr. President, in this case, we have a factual record to help us evaluate whether we should simply trust the administration or whether we should write protections into law. The Protect America Act has only been in law for four and a half months, and we are still missing key information about it. But the Intelligence Committee has recently been provided some basic information about its implementation.

Based on what I have learned, I have very serious questions about the way that the Administration is interpreting and implementing the Protect America Act, including its effect on the privacy of Americans. I will shortly be sending the Director of National Intelligence a classified letter detailing my concerns, which are directly relevant to the legislation we are now considering. I regret this information is classified, so I cannot discuss it here, and I regret that more of my colleagues have not been privy to this information prior to this floor debate. But I would be happy to share a copy of my letter, in an appropriate classified setting, with any Senator who wishes to review it.

Mr. President, I have been speaking for some time now about my strong opposition to the Intelligence Committee bill, and I haven’t even addressed one of the most outrageous elements of that bill: the granting of retroactive immunity to companies that allegedly participated in an illegal wiretapping program that lasted for more than five years.

Mr. President, this grant of automatic immunity is simply unjustified. There is already an immunity provision in current law that has been there since FISA was negotiated – with the participation of the telecommunications industry – in the late 1970s. The law is clear. Companies already have immunity from civil liability when they cooperate with a government request for assistance – as long as they receive a court order, or the Attorney General certifies that a court order is not required and all statutory requirements have been met.

This is not about whether the companies had good intentions or acted in good faith. It is about whether they complied with this statutory immunity provision, which has applied to them for 30 years. If the companies followed that law, they should get immunity. If they did not follow that law, they should not get immunity. A court should make that decision, not Congress. It’s that simple.

Congress passed a law laying out when telecom companies get immunity and when they don’t for a reason. These companies have access to our most private communications, so Congress has subjected them to very precise rules about when they can provide that information to the government. If the companies did not follow the law Congress passed, they should not be granted a “get out of jail free card” after the fact.

We have heard a lot of arguments about needing the cooperation of carriers in the future. We do need that cooperation. But we also need to make sure that carriers don’t cooperate with illegitimate requests. We already have a law that tells companies when they should and when they shouldn’t cooperate, so they are not placed in the position of having to evaluate independently whether the government’s request for help is legitimate.

Instead of allowing the courts to apply that law to the facts – instead of allowing judges to decide whether the companies deserve immunity for acting appropriately -- the Intelligence Committee bill sends the message that companies need not worry about complying with questionable government requests in the future because they will be bailed out.

This is outrageous. Even more outrageous is that fact that if these lawsuits are dismissed, the courts may never rule on the NSA wiretapping program. This is an ideal outcome for an administration that believes it should be able to interpret laws alone, without worrying about how Congress wrote them or what a judge thinks. For those of us who believe in three independent and co-equal branches of government, it is a disaster.

Mr. President, for all of these reasons I oppose cloture on the motion to proceed to the Intelligence Committee bill. I fear we are about to make the same mistake that we made with the Patriot Act. We passed that law without taking the time to consider its implications, and we didn’t do enough during the reauthorization process to fix it. As a result, three federal courts have struck down provisions of the Patriot Act as unconstitutional. And that is right back where we are going to end up if we don’t do our jobs and fix the Protect America Act. I urge my colleagues to vote No on cloture.

I yield the floor.

 # # #



To some, Rex Ryan hasn't put himself inside of a really favourable light together with his personalization in the very last couple game titles... calling out Colts quarterback, Peyton Manning, and later on Patriots coach, Bill Bilichik. That in alone seemed ridiculous to quite a few, since Manning is just doing what he gets paid an incredible number of dollars to accomplish: acquire game titles....and he does it perfectly. Unless of course there was a behind-closed-doors accessoire between the 2, it really is doubtful Manning ever before felt anything at all private towards an apposing team's coach. At the very least, not until finally that video game

Feeling like that versus a different coach is usually a very little much more understandable, in particular due to the fact Ryan and Bilichik know each other properly. But his comments have been not with out regard. He produced it crystal clear that he acknowledges the achievements of all those he is speaking of, and particularly Belichik, who he described as possibly the best NFL coach of all time. Ryan just aimed for being the very best coach that day.

The words of Antonio Cromartie might are actually far more heartfelt, dropping the f-bomb in conjunction with additional colorful language in regard to Tom Brady. Certainly, Cromartie plays specifically in opposition to Brady, and private feelings amongst them may be understandable too, and also the trash talk between people is popular. Ryan, on the other hand, did not back again from Cromartie's words, and essentially supported them... reiterating that you're not intended to like your opponents, specially this time of year.Bilichik

The Patriots, have definitely caused many particular feelings for many NFL enthusiasts. But supporters are not the coaches of other NFL teams that happen to be about to perform the Patriots within the second spherical of the playoffs, and earning all those feelings manifeste.

Then I started to think about that maybe Rex Ryan isn't really very as crazy as he seems to be by choosing fights using a very few from the greatest the NFL has had at what they do. It could merely be considered a far more aggressive technique of enthusiasm for his youthful quarterback as well as the relaxation of his staff. An athlete seldom plays more durable than when own feelings are involved. The Jets gamers definitely enjoy their coach, which is better still than his people only respecting him. He is taken lots of bullets for his players, and it is an excellent illustration in the "player's-coach." If it's particular to Rex Ryan, it is going to be personal to his crew. Besides, though Mark Sanchez is just a second year quarterback, he has by now beaten the Patriots previous to.

To start with, it pretty much appeared which the Jets ended up handing this recreation to the Patriots using a bow on it. They shot by themselves from the foot the whole way for the duration of their second drive in the game. Sanchez tripping Shonn Green immediately after the handoff on first down; LaDainian Tomlinson currently being blocked by his personal lineman; then, right after salvaging the generate, Nick Folk missed the 14 property kick that would have place them up 3 points. However, the Jets protection maintained their resolve, handing Brady his first interception in pretty much four hundred game titles, and later forcing the Patriots to settle for only a area goal.

The Jets' protection continued to play havoc with Tom Brady, and following forcing another punt with under 13 minutes left in the second quarter, the Jets' offense commenced finding at ease. Just after a brief TD toss to Tomlinson to go up 7-3 on the 10:thirty mark, they forced a different few Patriot punts to get the ball again yet again with two minutes to go from the fifty percent. With 33 seconds left, Sanchez transformed amongst the biggest third-down plays in his vocation for the touchdown move to Braylon Edwards.

Up 14 to 3, they nevertheless had to give the ball back again to the Patriots for 33 seconds. But then, Brady needs to take care of that protection again. No dilemma.... The Jets' defense held the Patriots deep within their own territory, with annoyance beginning to mount as lineman Logan Mankings got flagged for needless roughness with 18 seconds to go. Brady set his knee down on 3rd and 5 to settle for people three points heading into halftime.

Holding the Patriot's Welker to some simple catch, keeping the Patriots to these 3 details was an achievement in itself, but sustaining that momentum in opposition to that crew within the second half could well be even tougher... particularly versus Tom Brady... right?

Not so quick... The moment once again, the Jets compelled the Patriots' to punt on their opening drive, since the Jets also had to do on their subsequent drive. With 9 minutes left inside the third quarter, the protection arrived up large with a further in the vicinity of turnover from Brady, causing what was tantamount to some twelve-yard sack when it appeared that the Patriots' offense was starting to click on.

However, it genuinely was only a make a difference of time previous to Brady would locate a approach to get it in the long run zone. With thirteen seconds left within the 3rd, he threw to Alge Crumpler for the touchdown. Then, Sammy Morris jumped in front of Brady to get the snap on the two-point conversion and operate from the line into the conclude zone. That acquired The Patriots in selection to tie using a industry goal, if not consider a four-point lead, requiring the Jets to score a touchdown to receive the lead back again.

One more blockbuster play to begin the fourth quarter occurred on second down when Sanchez dumped the ball to Jerricho Cotchery, who ran it to a 58 yard achieve, hurdling defenders along the w

That generate ended with Sanchez passing to Santonio Holmes, who hauled in an unbelievable catch diving out of the finish zone for a touchdown. The lead went up to 10 details... 21 - 11. Could this controversial technique of motivation be operating? Towards the Patriots? In New England??

The protection continued to perform well, leading to a couple of misfires, however the Patriots offense was moving. With runs and outside the house screen passes, they labored their way into Jet territory with fewer than 7 minutes left. Usually, this is actually the stage in the close video game when Brady really lights it up, but having a sack and ideal coverage causing an incompletion around the following perform, they uncovered by themselves in a different fourth down predicament, which they failed to transform.

But he Patriots' protection arrived to play at the same time, leading to the Jets to own to punt the ball back to Brady with above 3 minutes to go, 10 details down. A tall task for some, to be sure, but what number of hearts has Brady ripped out underneath these conditions?

The Jets' protection uncovered by themselves at their own 18-yard line, but managed to hold the Patriots to a industry intention. The Jets obtained the ball back again with two minutes to go, up 7 points, against the Patriots in New England.

An on-side kick, on the other hand, didn't work out extremely nicely for that Patriots. Immediately after the ball squirted out of a pile of blue and white jerseys, Antonio Cromartie scooped the ball up and ran it back again for the Patriot twenty five yard line, with yet another 5 tacked on for an encroachment call on Patriot lineman, Dane Fletcher. Two plays later on, Green ran it into the conclude zone to successfully put the sport absent. This was followed by a 50-yard operate by Rex Ryan himself, who failed to even appear to care that Green was flagged for abnormal celebration, employing the ball being a pillow and mockingly taking a nap ultimately zone

A minute-long drive, which resulted in the touchdown, built the score a bit nearer for your Patriots, but Eric Smith with the Jets, sealing the sport, recovered the on-side kick that followed.

In the long run, Rex Ryan showed that it was not really as private as he created it out for being, admitting that he felt Bilichik won the coaching battle, and handed the many credit to his people. A couple of days in the past, I used to be pretty much sensation sorry for Ryan, wondering how the coach of a expert soccer crew could potentially last very very long by taking an already-stressful occupation so personally. At this time, I'm applauding his genius in coming up with what I now feel was a calculated system of inspiration to push his crew over the very best, possibly into a Super Bowl.

There could have even been a particular level of understanding between Ryan and Bilichik, and maybe even Manning previous week that he was gonna be working his mouth, rather than to take it personally. Judging with the embrace amongst the 2 coaches at midfield on the conclusion with the recreation, it definitely wasn't.

To carry on together with the concept of the New york Post, Obi Wan Ryan and also the young Jedi Sanchez went to the Demise Star and handed Darth Vader a devastating playoff loss. Now it's off to one more tough job: taking to the Pittsburgh Steelers in Pittsburgh for the correct to head over to the Super Bowl.