Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?

                                                       Calendar No. 512
110th Congress                                                   Report
                                 SENATE
 2d Session                                                     110-258
=====================================================================
 
  FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 1978 AMENDMENTS ACT OF 2007

                                _______
                                

 January 22 (legislative day, January 3), 2008.--Ordered to be printed

                                _______
                                

  Mr. Leahy, from the Committee on Judiciary, submitted the following

                              R E P O R T

                             together with

                     ADDITIONAL AND MINORITY VIEWS

                         [To accompany S. 2248]

      [Including cost estimate of the Congressional Budget Office]

    The Senate Committee on the Judiciary, to which was 
referred the bill (S. 2248), to modernize and streamline the 
provisions of the Foreign Intelligence Surveillance Act of 1978 
and for other purposes, having considered the same, reports 
favorably thereon with a substitute amendment, and recommends 
the bill, as amended, do pass.

                                CONTENTS

                                                                   Page
  I. Purpose of the Legislation.......................................2
 II. Background and Need for the Legislation..........................2
III. Scope of Committee Review........................................4
 IV. Recommended Changes to Title I of S. 2248........................5
  V. Committee Action................................................12
 VI. Congressional Budget Office Cost Estimate.......................14
VII. Regulatory Impact Evaluation....................................17
VIII.Conclusion......................................................18

 IX. Additional and Minority Views...................................19
  X. Changes to Existing Law Made by the Bill, as Reported...........43

                     I. Purpose of the Legislation

    The Foreign Intelligence Surveillance Act of 1978 
Amendments Act of 2007, S. 2248, would create additional 
procedures for targeting communications of persons outside the 
United States that would significantly enhance the Government's 
surveillance authority. It moderates the new authorities that 
Congress granted on a short-term basis in the Protect America 
Act (PAA), but the bill as reported by the Senate Select 
Committee on Intelligence would go further than the PAA by 
providing retroactive immunity for civil lawsuits against 
electronic communication service providers that were alleged to 
have cooperated with the Government in surveilling Americans' 
communications between 2001 and 2007, contrary to law.
    The Senate Intelligence Committee reported S. 2248 on 
October 26, 2007, and the bill was referred sequentially to the 
Senate Committee on the Judiciary on November 1, 2007, in 
accordance with section 3(b) of Senate Resolution 400, 94th 
Congress, as amended by S. Res. 445, 108th Congress, for a 
period not to exceed 10 days of session.

              II. Background and Need for the Legislation

    Congress enacted the Foreign Intelligence Surveillance Act 
of 1978 as a direct consequence of extensive investigations by 
Senate Committees into the legality of secret domestic 
surveillance activities, including Project Minaret, Project 
Shamrock and the Watergate scandal.\1\ These episodes, which 
involved the United States Government spying on its own 
citizens, shook the faith of the American people in their 
Government.
---------------------------------------------------------------------------
    \1\ 1 Project Shamrock was a clandestine Government-run initiative 
lasting into the 1960s that involved the accumulation by the National 
Security Agency (NSA) of all telegraphic data entering into or 
originating from the United States. Project Minaret was a sister 
program that operated in the 1960s and 1970s that involving the use of 
``watch lists'' to oversee ``subversive'' domestic activities. Both 
programs were terminated once congressional investigations exposed 
their full scope.
---------------------------------------------------------------------------
    Congress passed FISA to protect the rights of Americans 
against abusive Government conduct. It mandated that a newly-
created independent court must decide whether the Government 
may conduct electronic surveillance of Americans' 
communications for foreign intelligence purposes. The FISA 
court was designed to ensure that a second branch of Government 
approve or reject the Executive's request to surveil Americans, 
and the statute erected a legal framework within which the 
Government, and those private companies the Government relies 
upon to effectuate electronic surveillance, must operate.
    In the years since its passage, FISA has been amended 
numerous times to accommodate assertions by the Executive that 
the legislation must keep pace with national security needs as 
well as technological advancements. For example, in the wake of 
the 9/11 terrorist attacks, Congress amended FISA to improve 
communication and coordination between law enforcement and the 
intelligence community, among other reforms.
    In December 2005, the American public learned for the first 
time that shortly after 9/11 the President had authorized the 
NSA to conduct secret surveillance activities inside the United 
States completely outside of FISA, and without congressional 
consent. Shortly after the press exposed the existence of this 
extra-statutory program, the Administration attempted to 
justify its operation on the basis of congressional passage of 
the Authorization for Use of Military Force (AUMF), Pub. L. No. 
107-40, section 2(a), 115 Stat. 224 (2001) following the 9/11 
attacks. The AUMF, however, made no reference to electronic 
surveillance, and no legislative history associated with that 
authorization indicates that it was intended to supersede FISA 
in any way. Nevertheless, surveillance under this program, 
commonly referred to as the Terrorist Surveillance Program, or 
TSP, continued until January 2007, at which time the Attorney 
General announced that the program would finally be placed 
under the jurisdiction of the FISA court.
    In April 2007, the Director of National Intelligence (DNI), 
J.M. McConnell, submitted to Congress a proposal to amend FISA 
in order to make it easier for the Government to target foreign 
interests overseas. In August 2007, Congress adopted the PAA, 
which eased restrictions on surveillance of foreigners where 
one party (or both parties) to the communication are located 
overseas. Under the PAA, communications that begin or end in a 
foreign country may be monitored by the Government without FISA 
court supervision. The PAA was ultimately approved as only a 
temporary measure with a six-month sunset. Although there was 
broad support for providing the intelligence community greater 
flexibility for overseas surveillance, the PAA raised 
significant concerns because of its lack of any protection for 
or oversight of communications involving United States persons.
    In October 2007, the Senate Intelligence Committee reported 
a bill, S. 2248, to constitute more permanent legislation 
supplanting the PAA. The Senate Intelligence bill preserved the 
general framework of the PAA, but struck or modified some of 
the PAA's provisions that would have given the Government 
nearly unfettered authority to collect Americans' 
communications so long as the Government sought information 
``concerning'' persons outside the United States. The Senate 
Intelligence bill also included new oversight provisions, but 
left open several loopholes that could permit the same kinds of 
extra-statutory surveillance that took place in the years 
following 9/11. In addition, the Senate Intelligence bill added 
provisions not formerly included in the PAA that would 
retroactively immunize those private sector companies that may 
have cooperated with the Government's surveillance activities 
conducted outside of FISA in the years following 9/11.\2\
---------------------------------------------------------------------------
    \2\ For additional information on the specific provisions of S. 
2248, see S. Rept. 110–209.
---------------------------------------------------------------------------
    The PAA is set to expire on February 1, 2008. In the 
Committee's view, as more fully explained below, the Senate 
Intelligence bill, like the PAA, does not contain adequate 
protections to guard against the kind of Executive abuse that 
occurred with the TSP and related programs. Congress is 
prepared to grant the Administration the authority it needs to 
surveil targets overseas. But the unilateral decision by the 
Executive in the years following 9/11 to surveil Americans' 
communications contrary to FISA illustrates the need for 
Congress to provide clear statutory protections for 
surveillance that impacts Americans' privacy rights. Both the 
Intelligence Committee's bill and the Judiciary Committee's 
proposed amendments would permit the Government, when targeting 
overseas, to review more Americans' communications with less 
court supervision than ever before. While the Senate 
Intelligence bill's provisions governing the Government's 
ability to conduct electronic surveillance improve upon the 
PAA, they do not afford adequate protections for the rights of 
Americans.
    Additional protections are of critical importance. The 
rules governing electronic surveillance affect every American 
and remain the only buffer between the freedom of Americans to 
make private communications and the ability of the Government 
to listen in on those communications. In our ``Information 
Age,'' FISA provides Americans a fundamental bulwark against 
Government abuse. In the Committee's view, the improvements 
contained in the Senate Intelligence bill do not go far enough 
in ensuring that Americans' privacy rights are safeguarded. 
Additional protections can be added without interfering with 
the flexibility the Government needs to conduct overseas 
surveillance.

                     III. Scope of Committee Review

    The Judiciary Committee has concurrent jurisdiction over 
the Foreign Intelligence Surveillance Act and all amendments to 
that Act. The Committee reported S. 2248 favorably, as proposed 
to be amended by a complete substitute, on November 16, 2007. 
The complete substitute makes significant improvements to the 
Senate Intelligence bill by adding several key protections for 
Americans to title I of the bill that do not compromise the 
Government's ability to conduct foreign intelligence 
surveillance. These improvements include: (1) increased 
oversight by Congress and the FISA court where the Government 
is conducting warrantless surveillance of targets overseas that 
will invariably capture Americans' communications; (2) 
unequivocal new language that FISA is the exclusive means for 
conducting foreign intelligence wiretaps; (3) improved 
protections to ensure that Americans who travel overseas do not 
forfeit their constitutional rights; and (4) appropriate and 
common sense restrictions against bulk collection and reverse-
targeting of Americans' communications to prevent the abuse of 
the significant new Government powers by this administration or 
any future administration.
    On the key question of immunity, the proposed amendments to 
the bill preserve prospective immunity for those electronic 
communications service providers who comply with the law 
pursuant to title 18, United States Code, section 2511.\3\ But 
the bill as reported does not include the blanket retroactive 
immunity contained in title II of S. 2248, and legislative 
termination of litigation efforts by those whose privacy rights 
may have been violated where private companies, acting together 
with the Government, arguably ignored the clear statutory 
guidelines spelled out in FISA and the United States Criminal 
Code.
---------------------------------------------------------------------------
    \3\ Title 18, United States Code, section 2511(2)(a)(ii)(A) and (B) 
provide, in pertinent part, that providers of wire or electronic 
communication service are authorized to provide assistance to the 
Government so long as those providers receive a court order or a 
certification in writing by the Attorney General or other statutorily 
designated official stating that no warrant or court order is required 
by law, that all statutory requirements have been met, and that the 
specified assistance is required.
---------------------------------------------------------------------------
    Certain of the Committee's proposed changes to S. 2248's 
title I were initially approved pursuant to a substitute 
amendment adopted at the beginning of the November 15th 
executive session. Other proposed changes to title I were 
adopted by the Committee as individual amendments later in the 
session. All Committee changes were approved as part of the 
complete substitute amendment to S. 2248 that the Committee 
ultimately adopted on November 16, 2007. For clarity, this 
report breaks out below each of the individual proposed changes 
contained in the complete substitute, and describes each 
individually.

             IV. Recommended Changes to Title I of S. 2248


 1. STRENGTHENED ASSERTION THAT THE PRESIDENT MUST COMPLY WITH STATUTES

    The Committee proposes an amendment to strengthen the 
exclusivity language contained in S. 2248 to make absolutely 
clear that FISA is the sole means by which the Government may 
intercept Americans' communications for foreign intelligence 
purposes. The actions and public arguments of the Executive in 
conducting and later defending the TSP have underscored the 
importance of inserting an exclusivity provision directly into 
FISA. The proposed amendment would make clear that the 
Government cannot claim authority to operate outside of FISA by 
alluding to legislative measures that were never intended to 
provide such authority.
    The bill as reported by the Senate Intelligence Committee 
adds a new section to FISA, section 112, which restates the 
original 1978 language that FISA is the exclusive means by 
which electronic surveillance will be conducted for foreign 
intelligence purposes. See FISA Amendments Act of 2007, S. 
2248, 110th Cong. (2007) [hereinafter ``S. 2248''] Sec. 112. 
The Committee has revised S. 2248's section 112(a) to address 
intelligence activities intended to collect the 
``communications or communications information'' of United 
States persons inside or outside the United States. S. Comm. on 
the Judiciary, complete substitute to S. 2248 (2007) 
[hereinafter ``Judiciary complete substitute''] Sec. 112(a). 
This language is not restricted to ``electronic surveillance'' 
because that collection is addressed by subsection (b). The 
term ``communications information'' in this section is intended 
to apply to non-content information relevant to a communication 
that may be acquired through surveillance. The intent of this 
subsection is to prevent the targeting of the communications of 
U.S. persons by means other than those defined to be 
``electronic surveillance'' in section 101 of FISA.\4\ However, 
it is not intended to bring into FISA acquisition procedures or 
techniques that are lawfully used outside of FISA, including 
those specifically permitted by other statutes.
---------------------------------------------------------------------------
    \4\ The exclusivity language contained S. 2248 has also been 
modified in subsection (b) of the complete substitute to take into 
account the striking of the redefinition of ``electronic surveillance'' 
in section 701.
---------------------------------------------------------------------------
    The Committee's bill also proposes a new subsection (c) to 
section 112 that makes clear that no future law should be 
interpreted as having authorized electronic surveillance or 
overriding FISA unless it does so explicitly. This provision is 
intended to foreclose any argument, as was made by the 
Department of Justice in its January 2006 White Paper, that the 
AUMF constituted a separate authority for surveillance outside 
of FISA.
    In its conforming amendments, the Committee's bill proposes 
the addition of clarifying language to title 18, United States 
Code, section 2511, which is the provision allowing the 
Executive Branch to use a certification to request assistance 
from electronic communication service providers to conduct 
surveillance. The current certification language only calls for 
a declaration that no warrant or order is required, that all 
statutory requirements have been met, and that the assistance 
is required. The proposed amendment would mandate that each 
certification be specific as to why a court order is not 
required by referencing the applicable statutory provision on 
which the authority is premised. See Judiciary complete 
substitute Sec. 102(b). This could include, for example, the 
provisions in FISA waiving the warrant requirement following a 
declaration of war.
    Ed Black, the President and CEO of the Computer and 
Communications Industry Association, emphasized the providers' 
need for clarity in testimony before this Committee. He noted 
that the providers ``must be free to insist on constitutionally 
solid procedures that are clear and transparent, so that they 
are not reduced to guesswork about the applicability of 
immunity under the FISA statute.'' ``Strengthening FISA: Does 
the Protect America Act Protect Americans' Civil Liberties and 
Enhance Security?'', Hearing before the S. Comm. on the 
Judiciary, 110th Cong. (2007). If the Government is requesting 
that an electronic services communications provider assist it 
in conducting electronic surveillance of Americans, it is 
entirely reasonable that the Government cite the specific basis 
for its authority.
    Finally, the Committee proposes an amendment that narrows 
the current language of section 109(a) of FISA, which provides 
for penalties against anyone who engages in electronic 
surveillance, or uses or discloses information resulting from 
electronic surveillance, except as authorized by law. To be 
consistent with subsection (c), this bill replaces the text 
``authorized by law'' with ``authorized by this title or 
chapter 119, 121, or 206 of title 18, United States Code'' in 
both places that such term appears in section 109(a). Judiciary 
complete substitute Sec. 102(c).
    The Committee believes the involvement of the FISA court is 
an important protection for U.S. persons' privacy rights, 
either through the issuance of an order under title I, or 
through the provisions for the targeting of U.S. persons 
overseas in section 702. The Committee's intent is to assert 
the full authorities of Congress under Article I of the 
Constitution to require that FISA's procedures be followed in 
all cases where FISA applies.

                   2. INCREASED OVERSIGHT BY CONGRESS

a. Audit of the President's Warrantless Surveillance Program

    The Committee proposes an audit of the TSP and any 
previous, subsequent or related versions or elements of that 
program, to be conducted jointly by the Department of Justice 
Office of Inspector General and the Inspectors General of 
relevant elements of the intelligence community. Following the 
completion of the audit, a joint report would then be submitted 
to the Intelligence and Judiciary Committees in the House and 
Senate in unclassified form, but with a classified annex, if 
necessary. See Judiciary complete substitute Sec. 110.
    While certain members of Congress can provide a measure of 
oversight by familiarizing themselves with classified documents 
pertaining to the President's warrantless surveillance program, 
it is important that the relevant Offices of Inspectors General 
collectively conduct an inquiry to assimilate the key facts 
and, among other inquiries, to investigate the procedures by 
which the Department of Justice approved warrantless 
surveillance of Americans outside of FISA. This is a critical 
provision for ensuring a full understanding of the actions of 
the Government in conducting electronic surveillance outside of 
FISA for several years after 9/11.
    The Committee used broad language to describe the scope of 
the proposed audit for two reasons. First, the Committee was 
careful not to describe the program beyond what has been 
discussed publicly to ensure that classified information is not 
disclosed. Second, the Committee wanted to ensure that the 
audit covers the full scope of intelligence activities 
authorized by the President. In a letter to Senator Specter 
dated July 31, 2007, the DNI acknowledged that the President 
authorized ``various intelligence activities'' shortly after 9/
11, and that ``[a] number of these intelligence activities were 
authorized in one order.'' He stated that the ``Terrorist 
Surveillance Program'' was ``[o]ne particular aspect of these 
activities, and nothing more. * * *'' The letter went on to say 
that the TSP was ``the only aspect of the NSA activities that 
can be discussed publicly, because it is the only aspect of 
those various activities whose existence has been officially 
acknowledged.'' The broad language used by the Committee seeks 
to make clear that all of these activities should be included 
in the audit, and that it not be limited to the ``Terrorist 
Surveillance Program'' that the President and others have 
described previously, and can therefore be discussed.

b. Congressional access to FISA court orders

    The bill as reported by the Senate Select Committee on 
Intelligence, would require that Congress be provided with the 
orders, decisions and opinions of the FISA court that include 
significant interpretations of law within 45 days after they 
are issued. This fills two existing loopholes. First, current 
law excludes FISA court orders from congressional reporting 
requirements even though many significant interpretations of 
law are contained in those orders. Second, semi-annual 
reporting requirements allow the Government to wait up to a 
year before informing the Congress about important 
interpretations of law made by the FISA court. Section 103 
requires more timely notification. See S. 2248 Sec. 103(c)(1).
    The Committee's proposed amendment would also require that 
Congress be provided the relevant pleadings that may be 
necessary to understanding the reasoning behind a particular 
judicial interpretation of the law. See Judiciary complete 
substitute Sec. 103(c)(1). And it would require that 
significant interpretations of law by the FISA court that were 
not provided to Congress over the past five years now be 
provided. See Judiciary complete substitute Sec. 103(c)(2). 
Access to past jurisprudence, as well as current decisions, is 
critical to Congress's understanding of how FISA is being 
interpreted and implemented.

     3. IMPROVEMENTS TO WARRANT REQUIREMENT FOR AMERICANS OVERSEAS

    The Committee proposes certain changes to the provisions 
contained in S. 2248 relating to Government surveillance of 
U.S. persons overseas.
    The Committee believes that the core features of section 
702(c), as passed by the Senate Intelligence Committee, provide 
important protections for Americans overseas and should be 
maintained in any final legislation. The Committee's proposed 
amendment includes further revisions from the language 
contained in S. 2248 to include an emergency provision that 
enables the Government to respond to our national security 
needs immediately, but requires the Government to seek FISA 
court authorization no later than 72 hours after such 
surveillance is authorized. See Judiciary complete substitute 
Sec. 702(c)(2)(D). The Committee's proposed amendment also 
revises the language contained in S. 2248 to provide for a 
smooth transition from the existing surveillance authorizations 
conducted under the President's Executive Order 12,333 to the 
new framework.
    Subsection 702(c)(3) requires that the Attorney General 
submit to the FISA court procedures for determining whether a 
person outside the United States is in fact a U.S. person. The 
Court must review these procedures to determine whether they 
are reasonably designed to determine whether a person outside 
the United States is a U.S. person.

                               4. SUNSET

    The Committee proposes an amendment to shorten the sunset 
provision in S. 2248 from six years to four years. In view of 
the broad new authorities Congress is prepared to approve, four 
years is a sufficient length of time to revisit whether this 
increased authority is being exercised appropriately and, 
conversely, to ensure that the Government has the tools it 
needs to effectively conduct foreign surveillance. See 
Judiciary complete substitute Sec. 703(c). A four-year sunset 
will also give the next Administration nearly three years of 
experience under these new authorities before any 
reauthorization process.

        5. INCREASED OVERSIGHT AND DISCRETION BY THE FISA COURT

    The Committee passed three proposed amendments to S. 2248 
that would provide for increased judicial oversight over the 
new authorities contained in S. 2248, and enhance FISA court 
discretion.\5\
---------------------------------------------------------------------------
    \5\  In his minority views, Senator Hatch asserts that the 
Judiciary complete substitute is ``deficient to accomplish the purpose 
of protecting our nation for a myriad of reasons.'' But he never 
explains what those ``reasons'' are. Instead, he questions only the 
need for additional oversight by the FISA court, maintaining that there 
are already sufficient oversight provisions in S. 2248. Senator Hatch 
writes that the ``jurisdiction of the [FISA court] is to grant orders 
for electronic surveillance,'' suggesting that he may view the FISA 
court as nothing more than a rubber-stamp of the Executive will. The 
Committee does not share this view of the court's role.
---------------------------------------------------------------------------

a. Use restrictions

    The bill as reported by the Senate Intelligence Committee 
provides that the FISA court's review of the Government's 
targeting procedures, minimization procedures, and 
certifications is not required until after the Government has 
already implemented those procedures and certifications. See S. 
2248 Sec. 702(g).
    The Committee's proposed amendment states that if the FISA 
court determines that the Government has been using deficient 
procedures or certifications to acquire information, its use of 
the acquired information will be limited in the same way that 
FISA traditionally limits the use of information acquired under 
its title I emergency exception if the Government is later 
turned down for a court order. See Judiciary complete 
substitute Sec. 702(i)(5)(B)(ii)(I). In the Committee's view, 
there should be at least the potential for consequences if the 
Executive collects communications using deficient procedures. 
To prevent the wholesale exclusion of such information in 
appropriate circumstances, however, the new provision provides 
increased flexibility by giving the FISA court the authority to 
allow the continued use of the information under certain 
circumstances. See Judiciary complete substitute 
Sec. 702(i)(5)(b)(B)(II). In the Committee's view, the FISA 
court should have the discretion to permit or to exclude the 
use of communications obtained pursuant to deficient 
procedures.

b. Continued oversight of Government procedures

    Minimization procedures provide a measure of protection for 
the privacy of U.S. persons. Judicial oversight of how these 
safeguards are working is a critical element in protecting the 
privacy of U.S. persons in the area of foreign intelligence 
surveillance.
    The Committee proposes that the FISA court be granted the 
additional authority to review whether the Government is 
complying with minimization rules, and be empowered to ask for 
additional information that is necessary to make its 
assessment. A new subsection 702(i)(7) would provide the FISA 
court with explicit authority to review and assess the 
Government's compliance with the minimization procedures, which 
are submitted in semiannual reports by the Attorney General and 
the DNI (and submitted to the FISA court pursuant to section 
702(l)(1)). In conducting its review, the court may require the 
Government to provide additional information regarding the 
acquisition, retention or dissemination of information 
concerning U.S. persons during the course of an acquisition.
    The Committee also proposes granting the FISA court 
explicit authority to take remedial action to enforce its 
orders with regard to minimization compliance and targeting 
procedures. See Judiciary complete substitute Sec. 702(i)(8). 
Although the FISA court already has this general enforcement 
authority, given the court's reduced role in up-front court 
approval of minimization and targeting procedures, this 
provision reinforces that enforcement authority with regard to 
the new procedures in this new title.

c. FISA Court Discretion to Stay Decisions Pending Appeal

    The bill as reported by the Senate Intelligence Committee, 
mandates that if the FISA court finds that the Government has 
relied on deficient procedures for conducting surveillance 
under its new authorities, the Government is entitled, in every 
case, to continue to use those deficient procedures while it is 
appealing the FISA court's decision to the en banc FISA court 
and to the FISA court of review. See S. 2248 Sec. 702(i)(6).
    In the Committee's view, it is unnecessary and unwise to 
cabin the FISA court's discretion by imposing a standard 
mandating that all orders finding Government surveillance 
procedures to be deficient must be stayed pending en banc and 
appellate review. The Committee has, therefore, proposed an 
amendment restoring discretion to the FISA court. Under this 
provision the Government may move for a stay pending appeal of 
a FISA court's order to the en banc FISA court or the FISA 
court of review. See Judiciary complete substitute 
Sec. 702(i)(6).

     6. ELIMINATION OF RE-DEFINITION OF ``ELECTRONIC SURVEILLANCE''

    The Committee proposes an amendment to eliminate the 
redefinition of the critical term on which FISA is structured: 
``electronic surveillance.'' The PAA and the Senate 
Intelligence bill both redefine this key term, yet no logical 
explanation has been offered for why this redefinition is 
necessary.
    This redefinition should be eliminated because it is 
unnecessary to accomplish the goals of the bill, and it could 
lead to a variety of unintended consequences. For example, 
redefining electronic surveillance could potentially nullify 
FISA's civil and criminal liability provisions for purposes of 
the new authorities contained in the bill as those provisions 
are triggered only by unauthorized interception of ``electronic 
surveillance.'' See 50 U.S.C. Sec. Sec. 1809, 1810. Suzanne E. 
Spaulding, a national security expert with 20 years of 
experience at the CIA and in Congress, echoed this concern in 
testimony before this Committee when she noted that ``[b]y 
defining out of FISA the acquisition of any communication when 
it is directed at someone reasonably believed to be outside the 
United States, you remove any statutory protection that FISA 
might otherwise provide for Americans whose communications 
might fall into this category.'' ``Strengthening FISA: Does the 
Protect America Act Protect Americans' Civil Liberties and 
Enhance Security?'', Hearing before the S. Comm. on the 
Judiciary, 110th Cong. (2007).
    To avoid redefining this key term, the Committee's proposed 
amendment would affirmatively grant the Government the 
additional authority it needs to target persons outside the 
United States in order to acquire foreign intelligence 
information without an individualized warrant. Judiciary 
complete substitute Sec. 702(a). This common-sense change 
explicitly grants the Government the authority it says it needs 
while avoiding the unintended consequences that may flow from 
redefining a key term in FISA.

                   7. PROHIBITION ON BULK COLLECTION

    The Director of National Intelligence acknowledged at a 
Senate Judiciary Committee hearing on September 25, 2007 that 
the Protect America Act would permit ``bulk collection'' of all 
international communications into and out of the United States 
if the Government had the technological capacity to acquire 
those communications. See ``Does the Protect America Act 
Protect Americans'' Civil Liberties and Enhance Security?'', 
Hearing before the S. Comm. on the Judiciary, 110th Cong., at 
82 (2007). Such broad authority goes far beyond what the 
Government has said it needs and could mean that millions of 
communications of innocent Americans end up in Government 
databases.
    The Committee proposes that S. 2248 be amended to 
explicitly forbid bulk collection. Its proposed amendment would 
require the Government to include in its certification to the 
FISA court a statement that: ``The acquisition is limited to 
communications to which at least 1 party is a specific 
individual target who is reasonably believed to be located 
outside of the United States, and a significant purpose of the 
acquisition of the communications of any target is to obtain 
foreign intelligence information.'' Judiciary complete 
substitute Sec. 702(g)(2)(vii).
    This provision does not require the Government to either 
identify its individual targets or to explain its interest in 
the targets to the FISA court. It merely has to make a general 
certification that there is such an interest and that there are 
individual targets. In addition, the target need not be named 
individuals. The target could be, for instance, a phone number, 
or, if the target is a person, the Government need not know the 
identity of that person. The Committee also wants to make clear 
that in an active or projected zone of military combat, the 
acquisition of communications of any target, known or unknown, 
would be deemed to have a foreign intelligence purpose by 
virtue of geographic location if such acquisition is tailored 
to support such military operations.
    The Administration has said that it will use the new 
authorization granted by FISA for targeted surveillance, not 
bulk collection. Indeed, warrantless bulk collection of 
millions of Americans' communications where the Government has 
no specific interest in the individuals communicating may be 
unreasonable under the Fourth Amendment. Consistent with the 
way the Administration has said it plans to use this new 
authority, this amendment would dispel any concern that this 
authorization would permit such mass collection and would 
preserve the Government's ability to target persons overseas.

            8. STRENGTHENED PROHIBITION ON REVERSE TARGETING

    Reverse-targeting is the prohibited practice of bypassing 
the FISA court-order requirement by targeting someone overseas 
in order to mask the Government's actual interest in the U.S. 
person with whom that foreign target is communicating.
    The bill as reported by the Senate Intelligence Committee 
contains reverse-targeting language requiring a court order 
when ``the purpose'' of the surveillance is targeting a person 
inside the U.S. This language, however, would allow the 
Government to conduct ongoing, long-term surveillance of an 
American's communications, without an individualized court 
order, simply by relying on the fact that the Government is 
really ``targeting'' the person overseas with whom the American 
is communicating.
    To ensure that the broad new authorities contained in S. 
2248 may not be used to engage in reverse-targeting of 
Americans, the proposed amendment would require an 
individualized FISA court order when ``a significant purpose of 
such acquisition is to acquire the communications of a specific 
person reasonably believed to be located in the United 
States.'' Judiciary complete substitute Sec. 702(b)(2) 
(emphasis added). This prohibition affirms the fundamental and 
long-standing proposition underpinning title I of FISA that 
when the Government's interest is in the communications of a 
person in the U.S., the Government must conduct this 
surveillance with a court order based on probable cause.

             9. FBI DEPUTY DIRECTOR AS CERTIFYING OFFICIAL

    The bill as reported by the Senate Select Committee on 
Intelligence, would have permitted, without restriction, the 
Deputy Director of the FBI to be the certifying official on 
FISA warrants. See S. 2248 Sec. Sec. 104(1)(D)(ii), 
107(a)(1)(E)(ii). The Committee has proposed an amendment that 
this additional delegated authority be used only when the FBI 
Director is unavailable. See Judiciary complete substitute 
Sec. Sec. 104(1)(D)(ii), 107(a)(1)(E)(ii).
    This proposed amendment is not meant to unduly burden the 
delegation of this function to the Deputy Director of the FBI. 
It is simply meant to clarify that the certifying official for 
FISA applications should be, whenever feasible, a politically 
accountable official who has been appointed by the President 
and confirmed by the Senate.

                          V. Committee Action

    On November 15, 2007, by vote of 10 ayes and 9 noes, the 
Committee agreed to adopt a substitute amendment offered by 
Chairman Leahy and Senators Feinstein, Durbin, Schumer and 
Whitehouse, which contained several recommended changes to 
Title I of S. 2248. The votes in person or by proxy were as 
follows: Chairman Leahy--aye, Senator Kennedy--aye; Senator 
Biden--aye; Senator Kohl--aye; Senator Feinstein--aye; Senator 
Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; Senator 
Whitehouse--aye; Senator Specter--no; Senator Hatch--no; 
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no; 
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no; 
Senator Coburn--no.
    Later that morning, by vote of 9 ayes and 10 noes, the 
Committee rejected an amendment by Senator Specter that would 
have automatically stayed a FISA judge's order that the 
Government was using deficient procedures in acquiring 
communications. The votes in person or by proxy were as 
follows: Chairman Leahy--no, Senator Kennedy--no; Senator 
Biden--no; Senator Kohl--no; Senator Feinstein--no; Senator 
Feingold--no; Senator Schumer--no; Senator Durbin--no; Senator 
Cardin--no; Senator Whitehouse--no; Senator Specter--aye; 
Senator Hatch--aye; Senator Grassley--aye; Senator Kyl--aye; 
Senator Sessions--aye; Senator Graham--aye; Senator Cornyn--
aye; Senator Brownback--aye; Senator Coburn--aye.
    Later that morning, by vote of 10 ayes and 9 noes, the 
Committee agreed to an amendment by Senator Cardin that would 
reduce the sunset for S. 2248 from 6 years to 4 years. The 
votes in person or by proxy were as follows: Chairman Leahy--
aye, Senator Kennedy--aye; Senator Biden--aye; Senator Kohl--
aye; Senator Feinstein--aye; Senator Feingold--aye; Senator 
Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; Senator 
Whitehouse--aye; Senator Specter--no; Senator Hatch--no; 
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no; 
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no; 
Senator Coburn--no.
    Later that morning, by vote of 9 ayes and 10 noes, the 
Committee rejected an amendment by Senator Specter that would 
have modified his earlier amendment concerning stays of FISA 
court orders. The vote in person or by proxy were as follows: 
Chairman Leahy--no, Senator Kennedy--no; Senator Biden--no; 
Senator Kohl--no; Senator Feinstein--no; Senator Feingold--no; 
Senator Schumer--no; Senator Durbin--no; Senator Cardin--no; 
Senator Whitehouse--no; Senator Specter--aye; Senator Hatch--
aye; Senator Grassley--aye; Senator Kyl--aye; Senator 
Sessions--aye; Senator Graham--aye; Senator Cornyn--aye; 
Senator Brownback--aye; Senator Coburn--aye.
    Later that morning, by vote of 10 ayes and 9 noes, the 
Committee accepted an amendment by Senator Feingold to clarify 
that bulk collection of data is not permissible. The votes in 
person or by proxy were as follows: Chairman Leahy--aye, 
Senator Kennedy--aye; Senator Biden--aye; Senator Kohl--aye; 
Senator Feinstein--aye; Senator Feingold--aye; Senator 
Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; Senator 
Whitehouse--aye; Senator Specter--no; Senator Hatch--no; 
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no; 
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no; 
Senator Coburn--no.
    Later that morning, by vote of 8 ayes and 11 noes, the 
Committee rejected an amendment by Senator Kyl that would have 
created a carve-out for overseas warrants where no warrant 
would have been required in a criminal investigation. The votes 
in person or by proxy were as follows: Chairman Leahy--no, 
Senator Kennedy--no; Senator Biden--no; Senator Kohl--no; 
Senator Feinstein--no; Senator Feingold--no; Senator Schumer--
no; Senator Durbin--no; Senator Cardin--no; Senator 
Whitehouse--no; Senator Specter--no; Senator Hatch--aye; 
Senator Grassley--aye; Senator Kyl--aye; Senator Sessions--aye; 
Senator Graham--aye; Senator Cornyn--aye; Senator Brownback--
aye; Senator Coburn--aye.
    That afternoon, by vote of 10 ayes and 9 noes, the 
Committee accepted an amendment by Senator Feingold that would 
require a FISA court order when a significant purpose of 
targeting someone abroad is to acquire the communications of 
someone reasonably believed to be in the U.S. The votes in 
person or by proxy were as follows: Chairman Leahy--aye, 
Senator Kennedy--aye; Senator Biden--aye; Senator Kohl--aye; 
Senator Feinstein--aye; Senator Feingold--aye; Senator 
Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; Senator 
Whitehouse--aye; Senator Specter--no; Senator Hatch--no; 
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no; 
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no; 
Senator Coburn--no.
    That afternoon, by vote of 8 ayes, 10 noes and 1 pass, the 
Committee rejected an amendment by Senator Kyl that would have 
created a carve-out for overseas warrants where no warrant 
would have been required in the U.S. The votes in person or by 
proxy were as follows: Chairman Leahy--no, Senator Kennedy--no; 
Senator Biden--no; Senator Kohl--no; Senator Feinstein--no; 
Senator Feingold--no; Senator Schumer--no; Senator Durbin--no; 
Senator Cardin--no; Senator Whitehouse--no; Senator Specter--
pass; Senator Hatch--aye; Senator Grassley--aye; Senator Kyl--
aye; Senator Sessions--aye; Senator Graham--aye; Senator 
Cornyn--aye; Senator Brownback--aye; Senator Coburn--aye.
    That afternoon, by vote of 7 ayes and 12 noes, the 
Committee rejected an amendment by Senator Feingold that would 
strike the retroactivity immunity provisions from S. 2248. 
Chairman Leahy--aye, Senator Kennedy--aye; Senator Biden--aye; 
Senator Kohl--no; Senator Feinstein--no; Senator Feingold--aye; 
Senator Schumer--aye; Senator Durbin--aye; Senator Cardin--aye; 
Senator Whitehouse--no; Senator Specter--no; Senator Hatch--no; 
Senator Grassley--no; Senator Kyl--no; Senator Sessions--no; 
Senator Graham--no; Senator Cornyn--no; Senator Brownback--no; 
Senator Coburn--no.
    That afternoon, by vote of 10 ayes and 9 noes, the 
Committee accepted the substitute amendment to Title I, as 
amended. The votes in person or by proxy were as follows: 
Chairman Leahy--aye, Senator Kennedy--aye; Senator Biden--aye; 
Senator Kohl--aye; Senator Feinstein--aye; Senator Feingold--
aye; Senator Schumer--aye; Senator Durbin--aye; Senator 
Cardin--aye; Senator Whitehouse--aye; Senator Specter--no; 
Senator Hatch--no; Senator Grassley--no; Senator Kyl--no; 
Senator Sessions--no; Senator Graham--no; Senator Cornyn--no; 
Senator Brownback--no; Senator Coburn--no.
    That afternoon, by vote of 10 ayes and 9 noes, the 
Committee accepted a complete substitute amendment to S. 2248, 
which included Title I and the changes made to that title in 
Committee, but struck Titles II and III. The votes in person or 
by proxy were as follows: Chairman Leahy--aye, Senator 
Kennedy--aye; Senator Biden--aye; Senator Kohl--aye; Senator 
Feinstein--aye; Senator Feingold--aye; Senator Schumer--aye; 
Senator Durbin--aye; Senator Cardin--aye; Senator Whitehouse--
aye; Senator Specter--no; Senator Hatch--no; Senator Grassley--
no; Senator Kyl--no; Senator Sessions--no; Senator Graham--no; 
Senator Cornyn--no; Senator Brownback--no; Senator Coburn--no.
    The next morning, the Committee reconvened and ratified by 
voice vote its adoption of a complete substitute amendment to 
S. 2248, and its decision to report the bill, with the proposed 
amendment, favorably. The Committee proceeded by voice vote to 
report favorably S. 2248, with the complete substitute as a 
recommended amendment.

             VI. Congressional Budget Office Cost Estimate

                                                  December 7, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 2248, the FISA 
Amendments Act of 2007.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Jason 
Wheelock.
            Sincerely,
                                                   Peter R. Orszag.
    Enclosure.

S. 2248--FISA Amendments Act of 2007

    Summary: The Foreign Intelligence Surveillance Act 
Amendments Act of 2007 would make several modifications to the 
Foreign Intelligence Surveillance Act (FISA) and repeal several 
sections added to FISA by the Protect America Act of 2007 
(Public Law 110-55).
    The bill would grant authority to the Attorney General and 
the Director of National Intelligence (DNI) to authorize 
surveillance of individuals or groups outside the United 
States. Such authorizations would permit the incidental 
acquisition of communications of individuals located within the 
United States so long as procedures are in place to minimize 
such acquisitions and to ensure that surveillance is targeted 
at individuals outside the United States. Under the bill, the 
Foreign Intelligence Surveillance Court (FISC) would be 
authorized to review those procedures and to order the 
government to modify them if the court finds they are 
inadequate or violate the Constitutional protections against 
unreasonable search and seizure.
    Section 101 of the bill would restrict the ability of the 
government to target U.S. persons located outside of the United 
States pursuant to authorizations by the Attorney General and 
DNI. Under the bill, if the government targets a U.S. person 
overseas but intends to acquire that individual's 
communications in the United States, the government must follow 
the traditional FISA warrant process for electronic 
surveillance. The bill would require the government to submit 
an application to the FISC in cases where the government wishes 
to target a U.S. person overseas intending to acquire that 
individual's communications outside the United States if that 
individual had a reasonable expectation of privacy and a 
warrant would normally be required in the United States. If the 
government can show that the target is a foreign power or an 
agent of a foreign power, the bill would authorize the FISC to 
approve the surveillance.
    Since this bill would require the Attorney General and DNI 
to forward certifications to the FISC regarding the 
authorization of surveillance of overseas targets and would 
require the court to review such certifications, the bill would 
increase discretionary costs associated with such oversight of 
surveillance programs. However, CBO does not have access to 
information regarding the amount of surveillance that would be 
affected by the bill or the current costs incurred by agencies 
involved with conducting and authorizing such surveillance. 
Thus, CBO cannot predict how implementing this bill might 
affect the budget. Any changes in federal spending under the 
bill would be subject to the appropriation of the necessary 
amounts. Enacting the bill would not affect direct spending or 
revenues.
    The Unfunded Mandates Reform Act (UMRA) excludes from the 
application of that act any legislative provisions that are 
necessary for national security. CBO has determined that the 
portions of sections 101, 105, and 107 of S. 2248 that would 
authorize certain electronic surveillance and physical searches 
without a court order in an emergency situation fall under that 
exclusion, and CBO has not reviewed those provisions for 
intergovernmental or private-sector mandates.
    Other provisions of the bill contain intergovernmental 
mandates as defined in UMRA, but CBO estimates that the costs 
of those mandates to state and local governments would not 
exceed the annual threshold established in UMRA ($66 million in 
2007, adjusted annually for inflation).
    S. 2248 also contains a private-sector mandate as defined 
in UMRA by requiring certain entities to assist the government 
with electronic surveillance. Because CBO has no information 
about the prevalence of electronic surveillance and the cost of 
compliance for entities assisting the government with 
electronic surveillance, CBO has no basis for estimating the 
costs of the mandate or whether the costs would exceed the 
annual threshold established by UMRA for private-sector 
mandates ($131 million in 2007, adjusted annually for 
inflation).
    Estimated cost to the Federal Government: Since CBO does 
not have access to information regarding the prevalence of 
surveillance that would be affected by the bill, or the current 
costs incurred by agencies involved with conducting and 
authorizing such surveillance, CBO cannot predict how 
implementing this bill might affect the budget. Any changes in 
federal spending under the bill would be subject to the 
appropriation of necessary amounts. Enacting the bill would not 
affect direct spending or revenues.
    Intergovernmental and private-sector impact: The Unfunded 
Mandates Reform Act excludes from the application of that act 
any legislative provisions that are necessary for national 
security. CBO has determined that the portions of sections 101, 
105, and 107 of S. 2248 that would authorize certain electronic 
surveillance and physical searches without a court order in an 
emergency situation fall under that exclusion, and CBO has not 
reviewed those provisions for intergovernmental or private-
sector mandates.

Estimated impact on state, local, and tribal governments

    Provisions of the bill contain intergovernmental mandates 
as defined in UMRA, but CBO estimates that the costs of those 
mandates to state and local governments would not exceed the 
annual threshold established in UMRA.
    If electronic communication service providers comply with 
certain federal requests for information, the bill would 
protect them from future liability. Therefore, the bill would 
preempt some state and local liability laws, and it would 
eliminate the ability of a public entity to pursue legal action 
against a service provider. The preemption and the elimination 
of a legal course of action would be intergovernmental 
mandates. Information about the nature of existing and 
potential claims is severely limited, but CBO assumes that few 
state, local, or tribal governments would act as plaintiffs in 
such cases. Consequently, we estimate that the costs of the 
mandates would be small.
    The bill also would allow federal law enforcement officers 
to compel communications service providers, including libraries 
and other public institutions, to provide information about 
their customers and users. Based on information from a recent 
survey of public libraries, CBO estimates that the number of 
requests and associated costs would likely be small. The bill 
also would direct the federal government to compensate entities 
for providing such information.

Estimated impact on the private sector

    S. 2248 contains a private-sector mandate as defined in 
UMRA by authorizing the Director of National Intelligence and 
the Attorney General to direct certain electronic communication 
service providers to provide the government with all 
information, facilities, and assistance necessary to conduct 
electronic surveillance and to acquire foreign intelligence. 
Because CBO has no information about how often such entities 
would be directed to provide assistance or the costs associated 
with providing assistance, CBO has no basis for estimating the 
costs of the mandate or whether the costs would exceed the 
annual threshold established by UMRA for private-sector 
mandates. The bill also would direct the government to provide 
compensation, at the prevailing rate, to persons providing 
information, facilities, or assistance.
    Previous CBO estimates: On October 26, 2007, CBO 
transmitted a cost estimate for the FISA Amendments Act of 
2007, as ordered reported by the Senate Select Committee on 
Intelligence. That version of the bill did not contain the 
provision found in section 110 of this bill requiring an audit 
of the ``Terrorist Surveillance Program,'' and authorizing 
additional personnel for that purpose. To the extent that 
section 110 would require additional funding for such 
personnel, the costs associated with implementing this 
legislation could exceed the costs associated with implementing 
the version reported by Senate Select Committee on 
Intelligence. In addition, while both the Intelligence and 
Judiciary Committees' legislation would protect communication 
service providers from future liability claims resulting from 
compliance with federal requests, the earlier version of the 
bill also included a retroactive liability exemption.
    On October 12, 2007, CBO transmitted cost estimates for 
H.R. 3773, the RESTORE Act of 2007, as ordered reported by the 
House Permanent Select Committee on Intelligence and the House 
Committee on the Judiciary on October 10, 2007. Both versions 
of H.R. 3773 would require the government to apply to the FISC 
for authorization to conduct surveillance on individuals 
overseas if such surveillance also would result in the 
government obtaining the communications of individuals located 
in the United States. In contrast, S. 2248 would allow the 
Attorney General and Director of National Intelligence to 
authorize such surveillance while providing certifications to 
the FISC that procedures have been put in place to ensure that 
individuals in the United States are not targeted for 
surveillance and that the acquisition of communications to or 
from individuals in the United States is minimized.
    Estimate prepared by: Federal Costs: Jason Wheelock; Impact 
on State, Local, and Tribal Governments: Neil Hood; Impact on 
the Private Sector: Victoria Liu.
    Estimate approved by: Peter H. Fontaine, Assistant Director 
for Budget Analysis.

                   VII. Regulatory Impact Evaluation

    In accordance with paragraph 11(b)(2) of rule XXVI of the 
Standing Rules of the Senate, the Committee deems it 
impractical to evaluate in this report the regulatory impact of 
provisions of this bill due to the classified nature of the 
operations conducted pursuant to this legislation.

                            VIII. Conclusion

    The Foreign Intelligence Surveillance Act of 1978 
Amendments Act of 2007, S. 2248, as amended by the Judiciary 
Complete substitute will strike an appropriate balance between 
Americans' privacy rights and national security prerogatives.

                   IX. ADDITIONAL AND MINORITY VIEWS

                              ----------                              


                  A. Additional Views of Senator Leahy

    I write separately to express my view that Congress should 
not grant retroactive immunity to the electronic communication 
service providers. I also write to express my support for 
substituting the United States as the party in interest in the 
on-going lawsuits against the providers as a possible 
alternative to retroactive immunity.
    I strongly oppose the blanket grant of immunity contained 
in title II of the Senate Intelligence Committee's bill. By its 
own acknowledgment, the Administration failed to follow the 
dictates in FISA by conducting warrantless surveillance of 
Americans for more than five years. The press uncovered this 
extra-statutory conduct in late 2005; had it not done so, this 
unauthorized surveillance may still be going on today. When the 
public found out that the Government had been spying on the 
American people outside of FISA for years, the Government and 
the providers were sued by citizens who believed that their 
privacy rights were violated. Now, the Administration is 
attempting to have Congress terminate those lawsuits, perhaps 
in order to insulate itself from liability. The Senate 
Intelligence bill would cut off all meaningful accountability 
by the courts, and would take away the plaintiffs' right to 
their day in court. We should not allow this to happen.
    In running its warrantless surveillance program, the 
Administration relied on legal opinions prepared in secret and 
shown only to a tiny group of like-minded officials. Jack 
Goldsmith, who briefly headed the Justice Department's Office 
of Legal Counsel, described the program as a ``legal mess''. 
This Administration does not want a court to get a chance to 
look at this ``mess,'' and to determine whether the providers 
were accomplices to illegal surveillance of their customers. 
Retroactive immunity would assure that the Administration gets 
its wish.
    Senator Rockefeller and I have fought hard to obtain access 
to the information that our members need to evaluate whether 
there is any justification for retroactive immunity. Senator 
Specter has also worked hard to ensure full disclosure. While 
these efforts have led to the disclosure of some documents to a 
limited number of Senators and staffers, it is past time for 
all other Senators and members of Congress to have access to 
the entire record in order to make informed judgments about 
whether to wipe out over 40 on-going lawsuits.
    Senator Rockefeller and I have been cleared to review 
certain documents about the TSP, but we have drawn very 
different conclusions about retroactive immunity. I agree with 
Senator Specter and many others that blanket retroactive 
immunity, which would end on-going lawsuits by legislative 
fiat, undermines accountability and the rule of law.
    The arguments in favor of full retroactive immunity do not 
withstand scrutiny. The Administration and its allies in 
Congress assert that the providers should be granted immunity 
based on the common law principle that a private citizen should 
cooperate when asked to do so by law enforcement. The 
fundamental flaw in this assertion is that Congress enacted 
FISA to make clear to the providers what they may and may not 
do in cooperation with the Government, and Congress already 
provided for immunity for the providers when they act in 
accordance with FISA. Given these clear statutory guidelines, 
the providers cannot now claim a common law defense. That is 
precisely what the federal district court judge overseeing the 
consolidated cases against the providers found as a matter of 
law.
    Those arguing for full retroactive immunity point to the 
possible release of classified information as a reason for 
short-circuiting the lawsuits. They ignore the fact that 
federal courts have long had procedures for dealing with 
classified information in a manner that protects national 
security. These procedures have been implemented by the federal 
judge in San Francisco who is handling the bulk of the cases 
against the providers, and there have been no reported leaks of 
classified information.
    Proponents of full retroactive immunity also argue that if 
Congress does not terminate the lawsuits against the providers, 
the providers will not cooperate with legitimate Government 
surveillance efforts in the future. But this bill would require 
such cooperation. Moreover, FISA, together with the United 
States Criminal Code, provide clear guidelines governing when 
the providers may lawfully cooperate with Government requests 
for assistance, and there is simply no reason why future 
providers would ignore these clear statutory guidelines.
    If anything, the greater risk is that granting full 
retroactive immunity will discourage future providers from 
questioning Government efforts to conduct extra-statutory 
surveillance because those providers will know that that their 
lawless conduct can ultimately be nullified by Congress. This 
would subvert the gatekeeping role that FISA contemplates for 
the providers. As Jim Dempsey, the Policy Director for the 
Center for Democracy & Technology, noted at a recent Committee 
hearing: ``[R]etroactive immunity would be inconsistent with 
the structure and purpose of FISA. FISA was intended to provide 
clarity to both communications companies and government 
officials. Retroactive immunity would undermine the role the 
communications carriers play in effectively checking unlawful 
surveillance. It would place all carriers in an impossible 
position during the next crisis. If the government approached 
them with a request for surveillance that did not meet the 
statutory requirements, they would be uncertain as to whether 
they should cooperate in the hope that they would later get 
immunity. A communications service provider should not have to 
guess whether cooperation with an apparently illegal request 
will be excused.''
    Finally, there is simply no good reason why Congress must 
act now to deal with the issue of the on-going lawsuits against 
providers. The claim that these lawsuits will somehow 
``bankrupt'' the providers is belied by the record 
demonstrating the financial health of these companies today 
despite the on-going litigation. Even the most alarmist critics 
of the lawsuits acknowledge that it will be years, and probably 
at least two trips to the U.S. Supreme Court, before there are 
any enforceable final judgments.
    While I believe no congressional action is necessary at 
this time, if there is a clear congressional will to act on 
this issue in 2008, I would urge members to consider carefully 
the proposals being developed by Senators Specter and 
Whitehouse that would substitute the United States for the 
providers in on-going litigation.
    Substitution is a mechanism by which the United States 
takes the place of private persons or entities in litigation 
and, in turn, defends the claims against those private parties 
itself, paying out any resulting monetary damages. Retroactive 
immunity would effectively quash all on-going cases against the 
providers. A substitution proposal tailored to these 
circumstances, however, could allow the plaintiffs to proceed 
with the essence of their claims against the providers as re-
pleaded claims against the United States. While under these 
unique circumstances plaintiffs may not be able to obtain all 
of the relief to which they may have been entitled with the 
providers as party-defendants--such as declaratory or 
injunctive relief--legal proceedings could move forward against 
the United States that would entitle the plaintiffs to obtain 
monetary damages and, importantly, would enable the courts to 
rule on the legality of the underlying program.
    Under classic substitution, the private parties are removed 
from the litigation entirely. Prior examples of substitution 
are the National Swine Flu Immunization Program of 1976, Pub. 
L. No. 94-380, which substituted the Government as defendant in 
all actions against Swine Flu vaccine manufacturers, and the 
Atomic Energy Act, Pub. L. No. 101-510, which did the same for 
claims of injury from exposure to radiation incurred in the 
course of atomic weapons testing by Government contractors. In 
these cases, the United States stepped into the shoes of the 
private parties to defend the tort-based damage claims, and 
assumed potential liability, because Congress viewed the 
Government as the true culpable party in litigation.
    The United States is immune from civil suit absent an 
explicit waiver of sovereign immunity. Historically, therefore, 
Congress has drafted statutes calling for substitution of the 
U.S. as a party in litigation by waiving sovereign immunity 
under the framework of the Federal Tort Claims Act (FTCA), 28 
U.S.C. Sec. 1346(b). The FTCA is a statutory regime that 
permits civil actions for money damages against the U.S. for 
injuries caused by the wrongful acts or omissions of a 
Government employee. The Government sometimes substitutes 
itself for the defendant and waives sovereign immunity where 
one of its employees may be liable for tort damages under state 
law, and the ensuing lawsuits proceed under the FTCA regime. 
Prior substitution legislation has used this framework because 
it provides a time-tested means of allowing tort-based private 
lawsuits to proceed against the Government, and it allows 
private parties to maintain the exact same claims against the 
Government that they had maintained against private interests.
    The plaintiffs in the lawsuits against the providers have 
advanced not only state-based tort claims, but also federal 
statutory claims that are specific to the providers and that 
may only be brought against private parties. The U.S. cannot, 
therefore, simply step into the shoes of the providers, as it 
would do in classic substitution. Rather, given the unique 
facts here, substitution proposals would have to permit 
plaintiffs to re-plead their claims so that they may be brought 
against the Government. The Specter and Whitehouse proposals 
are drafted to permit such re-pleading.
    The Specter and Whitehouse proposals contain an explicit 
waiver of sovereign immunity, which will allow the lawsuits to 
proceed against the United States. They also provide for a 
waiver of the discretionary function exception, which may 
otherwise exempt the U.S. from civil liability if the conduct 
of its employees fell within those employees' discretion. And 
they contain provisions that would make it easier for the 
plaintiffs to receive discovery from the providers even once 
those providers are no longer party-defendants.
    While I see no need to deal with the issue of lawsuits 
against the providers in this Congress, I believe that 
substitution is a fairer means of dealing with these lawsuits 
than full retroactive immunity, because it would give the 
plaintiffs their day in court, and it would allow for a measure 
of accountability for the Administration's actions in the years 
following 9/11.

                                                     Patrick Leahy.

                B. Additional Views of Senator Feingold

    Before leaving town for the August recess this year, 
Congress passed the Protect America Act (PAA), vastly expanding 
the government's ability to eavesdrop without a court-approved 
warrant. That legislation was rushed through without adequate 
consideration, but it contained a six-month sunset to force 
Congress to reconsider the approach taken in that bill.
    Congress should be taking this opportunity to pass a new 
bill that allows the government to wiretap suspected terrorists 
but also protects Americans' basic freedoms. I agree that there 
is a legislative problem that needs to be addressed. Congress 
needs to make clear that when foreign terrorists are 
communicating with each other overseas, the U.S. government 
does not need a warrant to listen in, even if the collection 
ends up taking place in this country because of the way modern 
communications are routed. This purpose can be achieved while 
protecting the rights and privacy of law-abiding Americans 
conducting international communications.
    S. 2248 as reported by the Senate Select Committee on 
Intelligence, on which I also serve, falls far short of that 
goal. In addition, it provides sweeping, unjustified 
retroactive immunity to those alleged to have cooperated with 
the President's warrantless wiretapping program. Fortunately, 
the Senate Judiciary Committee has considered S. 2248 on 
sequential referral and made significant improvements. While I 
still have concerns about the bill, I strongly support the 
changes made in the Judiciary Committee.
    The Judiciary Committee version of S. 2248 addresses a 
number of deficiencies in the Intelligence Committee product. 
First, I was pleased that the Judiciary Committee adopted an 
amendment that I offered to rectify a significant problem with 
the Intelligence Committee bill: it does not clearly prohibit 
the government from using this new authority to engage in the 
``bulk collection'' of international communications. Bulk 
collection is the acquisition of large quantities of 
communications beyond those of individual targets, and could 
involve the acquisition of all international communications 
between the U.S. and overseas. The Director of National 
Intelligence confirmed during the September 25, 2007, hearing 
of this Committee that the PAA, and presumably the Intelligence 
Committee bill as well, authorizes bulk collection.
    Americans understand that if they talk to a criminal 
suspect or a terrorist overseas, their conversations might be 
overheard by the government. What Americans do not expect is 
that all their international conversations could be wiretapped. 
Bulk collection goes far beyond the ``surgical'' approach the 
Administration has publicly stated that it takes with respect 
to foreign targeting. According to the Director of National 
Intelligence (DNI) in an interview with the El Paso Times this 
summer, ``Now there's a sense that we're doing massive data 
mining. In fact, what we're doing is surgical. A telephone 
number is surgical. So, if you know that number, you can select 
it out.''
    My amendment simply clarifies that the government must have 
specific targets when it conducts surveillance using these 
authorities. It need not specify those targets to the FISA 
Court, nor do the targets have to be known or named 
individuals. They can, for instance, be telephone numbers, as 
described by the DNI. Finally, the amendment does not limit 
collection in support of military operations. As the Committee 
Report states, ``in an active or projected zone of military 
combat the acquisition of communications of any target, known 
or unknown, would be deemed to have a foreign intelligence 
purpose by virtue of geographic location if such acquisition is 
tailored to support such military operations.''
    Second, the Judiciary Committee bill contains an additional 
protection for Americans included in an amendment that I 
offered. It ensures that the government cannot engage in 
``reverse targeting''--avoiding FISA's court order requirement 
by targeting an individual overseas in order to acquire the 
communications of a person in the U.S. with whom the foreign 
target is communicating. It requires that a FISA court order be 
obtained if ``a significant purpose'' of wiretapping an 
individual abroad is to acquire the communications of a person 
reasonably believed to be in the United States. The DNI has 
stated that reverse targeting, which he defined as wiretapping 
an individual overseas when the government really wants to 
listen to an American with whom the target is communicating, 
violates the Fourth Amendment. This amendment merely codifies 
this fundamental constitutional principle.
    The Judiciary Committee bill also provides a greater 
oversight role for the FISA Court in a number of respects. It 
allows the FISA Court to impose restrictions on the use and 
dissemination of information about Americans that was acquired 
through procedures the FISA Court later determines to be 
unlawful. It allows the FISA Court to assess on an ongoing 
basis the government's compliance with minimization procedures 
and to ask for additional information to make that assessment. 
And it makes explicit the FISA Court's authority to take 
remedial action to enforce its orders and to enforce compliance 
with those orders.
    These changes and others help put the bill on stronger 
constitutional footing. But troubling aspects of the 
Intelligence Committee bill remain. Most importantly, the bill 
does not adequately protect Americans whose communications are 
intercepted through the use of these new authorities against 
foreign targets. The scope of the new warrantless collection 
authorities provided by the Intelligence Committee bill goes 
far beyond what is commonly understood. The bill would allow 
the government to listen to communications between Americans in 
the United States and their friends and colleagues abroad 
without judicial oversight, even if no party to the 
communication has any connection to terrorism or any other 
criminal activity.
    While the government must be ``targeting'' an individual 
overseas to invoke these authorities, the overseas target need 
not be a terrorism suspect or be under any suspicion of 
wrongdoing. The only requirement is that the purpose of the 
acquisition be to gather ``foreign intelligence information,'' 
a term with an extremely broad definition that includes 
anything relating to foreign affairs. And this broad 
surveillance is permitted regardless of whether the target is 
speaking to individuals overseas or individuals in the United 
States. That means that the government could secretly monitor 
the communications of an American reporter talking to sources 
overseas, or an American e-mailing relatives or friends abroad, 
without a court order or any other any meaningful protections 
for those Americans. This is perhaps the most serious problem 
with the Intelligence Committee bill.
    It is also a very substantial problem. International 
communications are now an everyday experience for many 
Americans. Thirty years ago, when Congress was first 
considering FISA, 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 Americans communicate with people overseas for 
legitimate personal and business reasons. Students email 
friends they have met while studying abroad. Business people 
communicate with colleagues or clients overseas. Reporters have 
sources all over the world. Technological advancements combined 
with the ever more interconnected world economy have led to an 
explosion of international contacts.
    Those who want to give the government new powers often 
argue that FISA needs to be brought up to date with new 
technology. But changes in technology should also cause 
Congress 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 may very well lead to 
the collection of vast quantities of information on innocent 
Americans, we have a duty to protect their privacy as much as 
we possibly can. And I believe we can do that without 
sacrificing any of the efficacy of these new powers for 
collecting information that will help protect our national 
security. Unfortunately, neither the Intelligence Committee 
bill nor the Judiciary Committee bill adequately do so.
    In addition, in one very significant respect, the 
Intelligence Committee bill is far worse than the PAA. It 
provides retroactive immunity to companies that allegedly 
cooperated with the illegal warrantless wiretapping program set 
up secretly after 9/11--an illegal program that continued for 
more than five years.
    I am strongly opposed to this unjustified grant of 
immunity, which is why I offered an amendment in the Judiciary 
Committee to strike the retroactive immunity provisions of the 
bill. Granting retroactive immunity is unnecessary. Current law 
already provides immunity from lawsuits for companies that 
cooperate with the government's request for assistance, as long 
as they receive either a court order or a certification from 
the Attorney General that no court order is needed and the 
request meets all statutory requirements. This limited immunity 
already protects companies that act in good faith while also 
protecting the privacy of Americans' communications. There is 
no reason to grant companies that allegedly cooperated with the 
program a new form of retroactive immunity that undermines the 
law that applied during the course of this illegal program. It 
sends a message that Congress does not intend its laws to be 
followed. And it might very well prevent the courts from ruling 
on the warrantless wiretapping program. I was disappointed that 
my amendment to strip this provision failed, but heartened that 
six of my colleagues joined me in supporting it.
    Finally, I want to express my support for the open process 
that the Judiciary Committee used to consider this legislation, 
including an open markup and open hearings. There is no 
question that some of the Intelligence Committee's work must be 
conducted behind closed doors due to the sensitive nature of 
the information it handles on a regular basis. But there should 
be broader participation in the process of considering changes 
to this critically important law that has such serious 
implications for Americans' constitutional rights.
    In conclusion, I am pleased with the progress made in the 
Judiciary Committee. I voted to report the bill because of the 
improvements it made to the Intelligence Committee bill and 
because, in the end, the Committee elected not to address Title 
II of the Intelligence Committee bill, which included the 
immunity provision. However, I continue to believe that 
additional improvements are necessary.

                                               Russell D. Feingold.

                  C. Minority Views of Senator Specter

    I agree strongly with the view that Congress must update 
the Foreign Intelligence Surveillance Act (``FISA'') to provide 
the Intelligence Community with the tools necessary to track 
foreign terrorists. We must craft a legal framework that 
provides the Government with the flexibility to respond quickly 
to emerging threats, while protecting the civil liberties of 
Americans at home and abroad.
    I write separately to express my hope that certain 
provisions of the Judiciary Committee substitute amendment will 
be improved and considered individually when the full Senate 
debates this legislation. I also write to underscore my support 
for a provision that would substitute the United States 
Government as the party defendant in place of the 
communications companies that have been sued for their alleged 
assistance with the Terrorist Surveillance Program, as an 
alternative to either retroactive immunity or congressional 
inaction.
The Judiciary Committee substitute amendment
    The Judiciary Committee substitute amendment was adopted on 
a party-line vote of 10 to 9. Nevertheless, I believe several 
individual provisions of the substitute amendment, especially 
if modified to address specific concerns articulated by the 
Administration and Members of the Minority, could attract 
bipartisan support in the full Senate. For example, the 
Committee substitute makes several changes to the so-called 
Wyden amendment, which requires a court order upon a showing of 
probable cause for electronic surveillance of United States 
persons overseas. These changes, including the addition of an 
emergency exception modeled on existing FISA procedures, should 
be a welcome improvement to the bill passed by the Select 
Committee on Intelligence. Likewise, although the substitute's 
current provision on the exclusivity of FISA may be overbroad, 
it includes a new subsection intended to clarify that future 
congressional enactments should not be interpreted as 
authorizing electronic surveillance or amending FISA unless 
they do so explicitly. This subsection is similar to language 
in a bipartisan bill I introduced with Senator Feinstein 
earlier this year, S. 1114, and should be embraced by those who 
do not believe the September 2001 Authorization for Use of 
Military Force (Pub. L. 107-40) constituted a separate 
authority for surveillance outside of FISA.
    It is my view that these and other provisions of the 
Judiciary Committee substitute, particularly those concerning 
enhanced congressional oversight and the ability of the 
Government to continue surveillance after an adverse ruling by 
a single FISA Court judge, could and should be modified so as 
to win broader support. I intend to work with Chairman Leahy 
before final passage of the FISA legislation to achieve this 
goal, because I believe that Congress must act in a bipartisan 
way on matters of national security.
Substitution of the Government for communications carriers in pending 
        litigation
    I regret that the Judiciary Committee substitute did not 
deal directly with the question of whether communications 
carriers alleged to have assisted the Government with the 
Terrorist Surveillance Program ought to receive some relief 
from liability. I circulated an amendment on this topic, but it 
was not considered during the Committee's consideration of FISA 
reform. Therefore, I subsequently modified and introduced the 
measure as a stand alone bill, S. 2402. With the agreement of 
Chairman Leahy, my bill was considered by the Judiciary 
Committee at the December 13, 2007 executive business meeting. 
The bill was not approved by the Committee. Nevertheless, I 
believe that, as my colleagues become more familiar with its 
provisions, it will gain wider acceptance by the Senate.
    The bill, S. 2402, proposes a responsible alternative to 
the retroactive immunity proposed in S. 2248. It would 
simultaneously protect the telecommunications providers who 
assisted the government, while not depriving litigants of their 
day in court.
    The bill substitutes the United States in place of any 
electronic communication service provider who provided 
assistance in connection with an intelligence activity that was 
(1) authorized by the President between September 11, 2001 and 
January 17, 2007, and (2) designed to detect or prevent a 
terrorist attack against the United States. For substitution to 
apply, the electronic communications service provider must have 
received a written request from the Attorney General or the 
head of an element of the intelligence community indicating 
that the activity was authorized by the President and 
determined to be lawful. The Government will also be 
substituted if the Attorney General certifies that the 
electronic communications service provider did not provide the 
alleged assistance. If, however, the provider assisted the 
Government beyond what was requested in writing, the bill would 
provide no relief for such assistance.
    At the constructive urging of Senator Whitehouse, the bill 
also requires, as a precondition for substitution, a 
determination by the FISA Court that the written request 
received by the carrier met the statutory standard in title 18, 
United States Code, section 2511, for surveillance without a 
court order or that the carrier's assistance was undertaken 
with a reasonable belief that it was lawful. Once substitution 
occurs, Federal and state courts are directed to dismiss the 
providers from the action.
    The bill protects the carriers against liability without 
damaging the litigation interests of legitimate plaintiffs. 
Specifically, S. 2402 provides that plaintiffs in these cases 
may continue to send third-party discovery requests to the 
communications providers after the providers have been 
dismissed. Moreover, the bill states that plaintiffs may deem 
provider admissions as Government admissions in their cases 
against the Government. This bill also establishes a limited 
waiver of sovereign immunity intended to ensure that the 
Government can only assert those defenses the communications 
companies may assert under current law. On the other hand, 
nothing in the bill is designed to increase or diminish the 
ability of the Government to assert the State Secrets 
privilege, which has already been asserted in the pending 
litigation. Again, it is my hope that my colleagues will 
familiarize themselves with this alternative to retroactive 
immunity before the full Senate considers FISA reform 
legislation.

                                                     Arlen Specter.

 D. Minority Views of Senators Kyl, Hatch, Grassley, Sessions, Graham, 
                     Cornyn, Coburn, and Brownback

          The [Fourth Circuit in the Truong case], as did all 
        the other courts to have decided the issue, held that 
        the President did have inherent authority to conduct 
        warrantless searches to obtain foreign intelligence 
        information. * * * We take for granted that the 
        President does have that authority and, assuming that 
        is so, FISA could not encroach on the President's 
        constitutional power.

--In re Sealed Cases, 310 F.3d 717, 742 (FISA Ct. of Review 
2002).

          [The rule that private citizens acting in good faith 
        to assist law enforcement are immune from suit ensures 
        that] the citizenry may be called upon to enforce the 
        justice of the State, not faintly and with lagging 
        steps, but honestly and bravely and with whatever 
        implements and facilities are convenient and at hand.

--Babbington v. Yellow Taxi Corp., 250 N.Y. 14, 17 (1928) 
(Cardozo, J.).

          Whatever has happened to this, someday someone will 
        die and, wall or not, the public will not understand 
        why we were not more effective in throwing every 
        resource we had at certain problems.

--Email from FBI Agent in New York Field Office to FBI 
Headquarters, August 2001, responding to Headquarters' refusal 
to allow criminal investigators to search for Khalid al-
Mihdhar, Nawaf al-Hazmi, and two other ``Bin Laden-related 
individuals'' known to be in the United States prior to the 
September 11 attacks, because of concerns about violating legal 
rules segregating intelligence and criminal investigations.
    The reason why Congress needs to enact a FISA bill is 
simple and straightforward: technology has outpaced the law. We 
are now able to collect intelligence in ways that were never 
understood or contemplated nearly 30 years ago when the FISA 
law was drafted. As a result, we need to change the law to 
accommodate that intelligence collection. Before we changed the 
law last year, U.S. intelligence agencies had lost about two-
thirds of their ability to collect communications intelligence 
against al-Qaida. Obviously, in this war, we cannot cede two-
thirds of the battlefield to the terrorists.
    When we enacted the Protect America Act last summer, we 
regained the capability to collect communications intelligence 
about al-Qaida by conforming the legal procedures to the 
technology that enables us to collect this material. Let there 
be no doubt that the collection of this information as a result 
of the PAA is critical to our nation's security. In a New York 
Times op-ed on December 10, Michael McConnell, the Director of 
National Intelligence, noted that ``[i]nformation obtained 
under this law has helped us develop a greater understanding of 
international Qaeda networks, and the law has allowed us to 
obtain significant insight into terrorist planning.'' 
Similarly, on October 31 of this year, Kenneth Wainstein, the 
Assistant Attorney General in charge of the Justice 
Department's National Security Division, testified before the 
Judiciary Committee that ``since the passage of the [Protect 
America] Act, the Intelligence Community has collected critical 
intelligence important to preventing terrorist actions and 
enhancing our national 
security.''
    Al-Qaida has not ceased to exist in years since the 
September 11 attacks and the fall of the Taliban. Al-Qaida 
still exists and still desires to carry out the same kinds of 
attacks against the United States and other countries that it 
executed on September 11, 2001. We know the incredible amount 
of damage that can be inflicted if we do not monitor and 
respond to this threat. We also know that the best way to deal 
with al-Qaida and the like is to collect intelligence so that 
we can prevent attacks from occurring in the first place, 
rather than trying to respond to them after they have occurred. 
That is why it is so important for Congress to ensure that 
under the law, the United States can engage in the kind of 
intelligence collection against al-Qaida that technology today 
allows.
    Many members of the Senate Majority insist that there be 
stringent congressional oversight of these intelligence-
collection programs. No one disputes that point. All agree that 
we need oversight over the intelligence agencies. That is why 
this Congress and previous Congresses have agreed on a 
bipartisan basis to create robust oversight of U.S. 
intelligence gathering, even when such intelligence gathering 
is directed at foreign targets. The agencies executing wiretaps 
and conducting other surveillance must report their activities 
to Congress and to others, so that opportunities for domestic 
political abuse of these authorities are eliminated.

The Intelligence Committee bill

    The Intelligence Committee worked hard to address the 
problems posed by changes in communications technology and, 
after numerous hearings and countless hours of internal 
deliberations, produced a serious effort to solve these 
problems. The strength of that committee's effort to work 
together to improve FISA is apparent in the 13-2 vote by which 
the committee was able to report a bill. That committee 
deserves to be commended for its efforts.
    Nevertheless, the Intelligence Committee bill is not 
perfect. To cite one example, the bill includes a provision, 
adopted via an amendment over the objection of both the 
Chairman and the Ranking Member, this has come to be called the 
Wyden amendment. This provision, as written, would require a 
warrant for any overseas surveillance that is conducted for 
foreign intelligence purposes and that targets a U.S. citizen 
or a foreign national who holds a U.S. green card.
    The Wyden amendment is unnecessary, it is overly broad, and 
it threatens to undermine overseas intelligence gathering. 
First, it is important to emphasize that we already have 
protocols in place to limit overseas surveillance that is 
targeted at U.S. persons and to minimize any potential abuses 
that might result from such surveillance. Section 2.5 of 
Executive Order 12333 permits surveillance targeting of a U.S. 
person overseas only if the U.S. Attorney General makes a 
finding that there is probable cause to believe that the person 
is an agent of a foreign terrorist organization or other 
foreign power. The advocates of the Wyden amendment have cited 
no evidence that this authority has ever been abused by the 
Intelligence Community.
    The Wyden amendment is also overly broad. Under current 
law, a warrant generally would not be required for overseas 
surveillance targeted at a U.S. person if the surveillance is 
conducted for purposes of a criminal investigation.\6\ The 
Wyden amendment thus creates the anomalous situation in which a 
warrant would be required in order to monitor an overseas 
terrorist group that includes some U.S. citizens or green-card 
holders, but no warrant would be required to monitor the very 
same people--or even a group composed exclusively of U.S. 
citizens--if that group were suspected of drug trafficking or 
money laundering. It should not be more burdensome to monitor 
al-Qaida than it is to monitor a drug cartel. Yet the Wyden 
provision literally would create a situation in which if an 
overseas group that includes U.S. persons is suspected of 
smuggling hashish, no warrant is required, but if the same 
overseas group is suspected of plotting to blow up New York 
City, then a warrant would be required. This is absurd.
---------------------------------------------------------------------------
    \6\ As Kenneth Wainstein noted in his October 31, 2007 testimony 
before this committee, ``[t]he Government is not required to obtain a 
warrant to collect evidence outside the United States when its purpose 
is to build a criminal case--where the expected end of the 
investigative process is often the criminal prosecution of that United 
States person.''
---------------------------------------------------------------------------
    The Wyden amendment is also likely to undermine overseas 
counterterrorism investigations by hindering cooperation with 
foreign intelligence services. In many cases, the best 
intelligence that the United States obtains about al-Qaida 
comes from foreign governments' intelligence agencies. 
Particularly in the Middle East, these governments frequently 
are afraid of al-Qaida or of radicalized elements of their own 
populations, and they are quite anxious to ensure that it not 
be made known that they are cooperating with the United States 
in the war with al-Qaida. Thus when these foreign governments 
share intelligence with the United States, they often demand 
strict assurances that the information will not be disseminated 
outside of the U.S. Intelligence Community.
    If U.S. agents conducting an overseas search in cooperation 
with a foreign intelligence service will now, as a result of 
the Wyden amendment, be required to disclose and justify the 
search to the FISA court, those agents will also need to inform 
their foreign counterparts that cooperation with the United 
States will be disclosed to a court. It is already anticipated 
that these foreign intelligence agencies will be unenthusiastic 
about working with the United States if the fact of such 
cooperation will be disclosed in judicial proceedings. It is 
inevitable that the Wyden requirement will cost the United 
States information and cooperation from foreign intelligence 
services--possibly including valuable information that is not 
available from any other source.
    Finally, the Wyden amendment raises the specter that U.S. 
agents will be required to prove to a U.S. court that overseas 
intelligence activities comply with foreign law. As Ken 
Wainstein noted in his October 31, 2007 Judiciary Committee 
testimony, by ``extending this new role to the FISA Court and 
requiring the court to approve acquisitions abroad [, the Wyden 
amendment] could cause that court to feel compelled to analyze 
questions of foreign law as they relate to [such overseas 
intelligence gathering].''
    The Wyden amendment is not only anomalous; it is bad 
policy. It is the very kind of thing that, if Congress were to 
permit it to be written in to law and another attack should 
occur, the next 9/11 Commission will be asking why Congress 
tied the intelligence agencies' hands in this way. Congress can 
prevent such an eventuality by rejecting or at least mitigating 
the effect of the Wyden amendment.
    One final criticism of the Intelligence Committee's bill: 
section 703(l) of that legislation requires intelligence 
agencies to annually report on ``the number of persons located 
in the United States whose communications were reviewed.'' As 
it is written, this provision would require, for example, that 
if U.S. intelligence agents come into possession of an email 
message that was sent from overseas, even if our agents quickly 
concluded that the message is unimportant and they decide not 
to analyze or even read the message, they would still be 
required to analyze whether any of the email addresses to which 
the message was directed belong to a person who is located 
inside the United States. As the Administration's formal policy 
statement regarding this bill notes, ``[t]his provision would 
likely be impossible to implement.'' Ken Wainstein concurred in 
this point in his October 31 testimony, noting that ``[g]iven 
the fragmentary nature of foreign intelligence collection and 
the limited amount of information available concerning any 
specific intercepted communication, I am informed that it would 
likely be impossible for intelligence agencies to comply with 
this requirement.''

The Judiciary Committee bill

    Some of those reading this statement may wonder why this 
Judiciary Committee Minority Report principally addresses the 
Intelligence Committee bill and devotes relatively little 
attention to the Judiciary Committee bill. The explanation is 
that at the point in time when this report is being prepared--
when the legislation is already under consideration on the 
Senate floor--it is generally expected that the Senate will 
only act on the Intelligence Committee bill, and that the 
Judiciary Committee substitute amendment will not survive a 
cloture vote and will thereby fall off the bill. It has been 
made clear that the Director of National Intelligence, the 
Attorney General, and other senior intelligence advisors would 
recommend to the President that he veto the Judiciary Committee 
bill should it reach his desk. Nevertheless, the Judiciary 
Committee bill merits a few words.
    The Judiciary Committee bill includes an ``exclusive 
means'' provision that could (and probably would) undermine 
intelligence gathering directed at foreign terrorist 
organizations. The provision not only uses vague terms whose 
meaning is unclear, it also appears to preclude use of other 
intelligence-gathering tools that have already proven to be a 
valuable source of intelligence about al-Qaida. As the official 
Statement of Administration Policy for this bill notes:

          Consistent with current law, the exclusive means 
        provision in the SSCI's bill addresses only 
        ``electronic surveillance'' and ``the interception of 
        domestic wire, oral, and electronic communications.'' 
        But the exclusive means provision in the Judiciary 
        Committee substitute goes much further and would 
        dramatically expand the scope of activities covered by 
        that provision. The Judiciary Committee substitute 
        makes FISA the exclusive means for acquiring 
        ``communications information'' for foreign intelligence 
        purposes. The term communications information'' is not 
        defined and potentially covers a vast array of 
        information--and effectively bars the acquisition of 
        much of this information that is currently authorized 
        under other statues such as the National Security Act 
        of 1947, as amended. It is unprecedented to require 
        specific statutory authorization for every activity 
        undertaken worldwide by the Intelligence Community. In 
        addition, the exclusivity provision in the Judiciary 
        Committee substitute ignores FISA's complexity and its 
        interrelationship with other federal laws and, as a 
        result, could operate to preclude the Intelligence 
        Community from using current tools and authorities, or 
        preclude Congress from acting quickly to give the 
        Intelligence Community the tools it may need in the 
        aftermath of a terrorist attack in the United States or 
        in response to a grave threat to the national security. 
        In short, the Judiciary Committee's exclusive means 
        provision would radically reshape the intelligence 
        collection framework and is unacceptable.

    To cite just one example of the damage that the Judiciary 
Committee's ``exclusive means'' provision could do, it is 
unclear whether intelligence about terrorist organizations 
could still be gathered under that provision through the use of 
grand-jury subpoenas. The ``exclusive means'' provision 
requires that foreign-intelligence-gathering tools have 
``specific statutory authorization.'' Grand-jury subpoenas are 
authorized by the Federal Rule of Evidence. Arguably, the 
Federal Rules themselves are authorized by statute, and thus 
so, too, are grand-jury subpoenas. (Though is such derivative 
authorization ``specific?'') Grand-jury subpoenas have proven a 
very valuable tool in counterterrorism investigations; they 
were the source of some of the United States's first 
intelligence about al-Qaida, intelligence that was gathered in 
the course of the 1993 Trade Center bombing trial and 
investigations of al-Qaida attacks during the 1990s. The fact 
that the Judiciary Committee bill even creates a question as to 
whether antiterrorism investigators could continue to employ 
grand-jury subpoenas to track al-Qaida strongly suggests that 
this legislation is poorly thought out.
    Another fatal flaw in the Judiciary Committee bill is its 
failure to provide protection to private parties who have 
assisted the government in past terrorism investigations--and 
whose assistance the United States will need in future 
investigations. As the SAP on the Judiciary Committee bill 
notes, the failure to provide such protection undermines U.S. 
efforts to respond to and stop al-Qaida in two ways: first, it 
allows the continuation of litigation that has already resulted 
in leaks that have done serious damage to U.S. counterterrorism 
efforts. This litigation is inherently and inevitably damaging 
to U.S. efforts to monitor al-Qaida's communications. As one 
Intelligence Committee staffer aptly characterized the 
situation, allowing this litigation to go forward is the 
equivalent of allowing the legality of the enigma code-breaking 
system to be litigated during World War II.
    In addition, the failure to provide protection to third 
parties who have assisted the United States will undermine the 
willingness of such parties to cooperate with the government in 
the future. And such cooperation is essential to U.S. efforts 
to track al-Qaida. As the SAP on the bill explains:

          In contrast to the Senate Intelligence Committee 
        bill, the Senate Judiciary Committee substitute would 
        not protect electronic communication service providers 
        who are alleged to have assisted the Government with 
        communications intelligence activities in the aftermath 
        of September 11th from potentially debilitating 
        lawsuits. Providing liability protection to these 
        companies is a just result. In its Conference Report, 
        the Senate Intelligence Committee ``concluded that the 
        providers * * * had a good faith basis for responding 
        to the requests for assistance they received.'' The 
        Committee further recognized that ``the Intelligence 
        Community cannot obtain the intelligence it needs 
        without assistance from these companies.'' Companies in 
        the future may be less willing to assist the Government 
        if they face the threat of private lawsuits each time 
        they are alleged to have provided assistance. The 
        Senate Intelligence Committee concluded that: ``The 
        possible reduction in intelligence that might result 
        from this delay is simply unacceptable for the safety 
        of our Nation.'' Allowing continued litigation also 
        risks the disclosure of highly classified information 
        regarding intelligence sources and methods. In addition 
        to providing an advantage to our adversaries by 
        revealing sources and methods during the course of 
        litigation, the potential disclosure of classified 
        information puts both the facilities and personnel of 
        electronic communication service providers and our 
        country's continued ability to protect our homeland at 
        risk. It is imperative that Congress provide liability 
        protection to those who cooperated with this country in 
        its hour of need.
          The ramifications of the Judiciary Committee's 
        decision to afford no relief to private parties that 
        cooperated in good faith with the U.S. Government in 
        the immediate aftermath of the attacks of September 11 
        could extend well beyond the particular issues and 
        activities that have been of primary interest and 
        concern to the Committee. The Intelligence Community, 
        as well as law enforcement and homeland security 
        agencies, continue to rely on the voluntary cooperation 
        and assistance of private parties. A decision by the 
        Senate to abandon those who may have provided 
        assistance after September 11 will invariably be noted 
        by those who may someday be called upon again to help 
        the Nation.

    The Judiciary Committee bill also includes a provision that 
would limit FISA overseas intelligence gathering to 
``communications to which at least 1 party is a specific 
individual target who is reasonably believed outside of the 
United States.'' One implication of this provision is that if 
the U.S. military were planning to enter and occupy an enemy-
occupied city in Iraq, and the night before the invasion the 
commanding officer asked that all communications into or out of 
the city be monitored, FISA would bar such surveillance. The 
enemy forces inside the city, unless identified as including at 
least one ``specific individual target,'' would have privacy 
rights against the United State Army, courtesy of the U.S. 
Congress.
    The Majority Report for this bill, at subsection 6, 
attempts to back away from the implications of this provision. 
The Report states: ``The Committee also wants to make clear 
that in an active or projected zone of military combat the 
acquisition of communications of any target, known or unknown, 
would be deemed to have a foreign intelligence purpose by 
virtue of geographic location if such acquisition is tailored 
to support such military operations.''
    The text of the Judiciary Committee bill, of course, 
contains no such ``military zone'' exception. Committee reports 
can explain legislative language but they cannot amend it. We 
nevertheless take comfort in this statement in the Majority 
Report, as it suggests that even the Committee Majority has 
concluded that the natural and obvious implications of this 
provision of the Judiciary Committee bill are indefensible.
    Finally, we would note in passing that the first paragraph 
of the Majority Report's explanation of the purpose of this 
bill asserts that telecommunications companies' assistance to 
the United States--and, by implication, the entire program of 
post-September 11 warrantless surveillance of al-Qaida 
communications--was ``contrary to law.'' Yet as the quotation 
from the FISA Court of Review at the beginning of this dissent 
notes, every court that has considered the question has 
concluded that the President does have inherent authority under 
the Constitution to gather information about foreign enemies of 
the United States without a warrant. The Majority Report cites 
no authority to the contrary, and there is no such authority. 
Indeed, every Administration since FISA was enacted--including 
the Carter Administration--has concluded that Congress cannot 
take away the President's power to monitor foreign enemies of 
the United States without a warrant, and that to the extent 
that FISA purports to do so, it is unconstitutional. The 
Constitution's framers vested the executive with primary 
responsibility and authority to protect the United States from 
foreign attack. The severe flaws in the Judiciary Committee 
bill, noted here and elsewhere, tend to confirm the wisdom of 
this approach.

Why this matters

    Many of those defending various legal limits on 
counterterrorism investigations assume or even explicitly 
assert that these limits are simply procedural--that such 
limits only require intelligence agencies to jump through a few 
extra hoops, and that in the end the job will still get done.
    One pre-September 11 investigation in particular offers a 
cautionary tale as to why we should not assume that arbitrary 
legal barriers will not fatally compromise a critical 
antiterrorism investigation. The investigation in question 
involved Khalid al-Mihdhar. Al-Mihdhar was one of the eventual 
suicide hijackers of American Airlines Flight 77, which was 
crashed into the Pentagon, killing 58 passengers and crew and 
125 people on the ground.
    An account of a pre-September 11 investigation of al-
Mihdhar is provided in the 9/11 Commission's Staff Statement 
No. 10. That statement notes as follows:

          During the summer of 2001 a CIA agent asked an FBI 
        official * * * to review all of the materials from an 
        al Qaeda meeting in Kuala Lumpur, Malaysia one more 
        time. * * * The FBI official began her work on July 24 
        of 2001. That day she found the cable reporting that 
        Khalid Al-Mihdhar had a visa to the United States. A 
        week later she found the cable reporting that Mihdhar's 
        visa application--what was later discovered to be his 
        first application--listed New York as his destination. 
        * * * The FBI official grasped the significance of this 
        information.
          The FBI official and an FBI analyst working the case 
        promptly met with an INS representative at FBI 
        Headquarters. On August 22 INS told them that Mihdhar 
        had entered the United States on January 15, 2000, and 
        again on July 4, 2001. * * * The FBI agents decided 
        that if Mihdhar was in the United States, he should be 
        found.

    At this point, the investigation of Khalid al-Mihdhar came 
up against the infamous legal ``wall'' that separated criminal 
and intelligence investigations at the time. The Joint Inquiry 
Report of the House and Senate Intelligence Committees 
describes what happened next:

          Even in late August 2001, when the CIA told the FBI, 
        State, INS, and Customs that Khalid al-Mihdhar, Nawaf 
        al-Hazmi, and two other ``Bin Laden-related 
        individuals'' were in the United States, FBI 
        Headquarters refused to accede to the New York field 
        office recommendation that a criminal investigation be 
        opened, which might allow greater resources to be 
        dedicated to the search for the future hijackers. * * * 
        FBI attorneys took the position that criminal 
        investigators ``CAN NOT'' (emphasis original) be 
        involved and that criminal information discovered in 
        the intelligence case would be ``passed over the wall'' 
        according to proper procedures. An agent in the FBI's 
        New York field office responded by e-mail, saying: 
        ``Whatever has happened to this, someday someone will 
        die and, wall or not, the public will not understand 
        why we were not more effective in throwing every 
        resource we had at certain problems.''

    The 9/11 Commission has reached the following conclusion 
about the effect that the legal wall between criminal and 
intelligence investigations had on the pre-September 11 
investigation of Khalid al-Mihdhar:

          Many witnesses have suggested that even if Mihdhar 
        had been found, there was nothing the agents could have 
        done except follow him onto the planes. We believe this 
        is incorrect. Both Hazmi and Mihdhar could have been 
        held for immigration violations or as material 
        witnesses in the Cole bombing case. Investigation or 
        interrogation of these individuals, and their travel 
        and financial activities, also may have yielded 
        evidence of connections to other participants in the 9/
        11 plot. In any case, the opportunity did not arise.

    The USA Patriot Act later dismantled the legal wall between 
intelligence and criminal investigations. But were the Congress 
to enact the Judiciary Committee's FISA bill, or impose other 
arbitrary limits on overseas intelligence gathering, it would 
be erecting new walls that would unnecessarily burden 
counterterrorism investigations and compromise U.S. efforts in 
the war against al-Qaida. These types of bureaucratic barriers 
matter. They may have fatally undermined the best chance that 
the United States had of uncovering or at least disrupting the 
9/11 plot. We should learn from the mistakes of the past.

Conclusion

    We conclude by asking: what is the Congress's goal? Do we 
want to allow our intelligence agencies to use the most up-to-
date technology to track and prevent attacks by the most evil 
people in the world today, al-Qaida terrorists, or are we so 
concerned about some potential, theoretical situation in which 
an American citizen's communications might be temporarily 
intercepted, if they call an al-Qaida person or an al-Qaida 
person calls them, that we are not going to take advantage of 
these intelligence-collection techniques?
    We can write the law to ensure the protection of every U.S. 
person against surveillance abuses. We need to do that. But we 
should not restrict our intelligence agencies from collecting 
the available and accessible intelligence that might warn us of 
another terrorist attack.

                                   Jon Kyl.
                                   Orrin G. Hatch.
                                   Chuck Grassley.
                                   Jeff Sessions.
                                   Lindsey Graham.
                                   John Cornyn.
                                   Tom Coburn.
                                   Sam Brownback.

                   E. Minority Views of Senator Hatch

    As the only Republican Senator on both the Intelligence and 
Judiciary Committees, I have witnessed the evolution of this 
bill through both committees.
    The Judiciary substitute is deficient to accomplish the 
purpose of protecting our nation for a myriad of reasons, 
primarily for the fact that it contains numerous provisions 
which will harm national security. But to put it in one simple 
phrase, the Judiciary substitute lacks balance.
    The Judiciary Committee received a bipartisan bill which 
had been approved 13-2. However, after deliberations the final 
Judiciary Committee substitute included 13 substantive changes, 
all of which were approved by a party line 10-9 vote.
    Does that sound balanced? Does it sound like the Judiciary 
Committee exhibited a willingness to work together?
    Fueled by disappointment with the process in the committee, 
I joined seven other Republican Senators on the Judiciary 
Committee to send a letter to Senate Leadership expressing our 
support for the FISA bill as passed out of the Intelligence 
Committee to serve as the basis for floor debate. I can 
guarantee that the other Senators took no joy in recommending a 
bill from another committee over the one in which they serve, 
but the end product produced by the Judiciary Committee gave 
them no choice.
    Some have expressed support for the Judiciary Substitute 
because they think it has increased oversight.
    Are people aware of the extensive amount of oversight that 
is included in the bipartisan Intelligence Committee FISA 
modernization bill? Here are some provisions:
     Foreign Intelligence Surveillance Court (FISC) 
review of AG/DNI certifications.
     FISC review of targeting procedures.
     FISC review of minimization procedures.
     Statutorily required AG/DNI semiannual assessment 
of compliance with targeting and minimization procedures.
     Statutorily required Inspector General semiannual 
assessment of compliance with targeting and minimization 
procedures.
    The bill also includes:
     Annual reviews to be conducted by the head of each 
IC element conducting acquisitions.
     Statutorily required Attorney General semiannual 
report to Congress regarding implementation.
    Seeing this dramatic expansion in FISC jurisdiction, it's 
important to realize what it was created for. The jurisdiction 
of the FISC is to grant orders for electronic surveillance. 
That's it. Many of the oversight provisions represent a 
dramatic departure from the original intent of FISA, which was 
to apply oversight and protections to domestic surveillance. 
This bill is greatly expanding oversight of foreign 
surveillance.
    I believe this expansion of FISC jurisdiction is 
unnecessary. Since the creation of the National Security 
Agency, American intelligence analysts have had the authority 
and responsibility to conduct surveillance and abide by our 
laws. These analysts all pass an extensive background check to 
receive security clearances. They are not politically 
appointed, and they continue to serve regardless of who the 
current President may be, or which political party is in power. 
They all take an oath to defend the Constitution of the United 
States. Their integrity is beyond dispute, and yet we continue 
to push proposals that treat them as if they can't be trusted. 
These analysts don't need more oversight, they need us to give 
them the tools necessary to prevent the next terrorist attack.
    Despite my concerns with this issue, I am still fully 
supporting the Intelligence Committee FISA modernization bill 
over the Judiciary substitute. This is because I understand 
what it means to compromise. Do I wish there were additional 
changes? Absolutely. But I've served long enough to know that 
legislation, especially national security legislation, requires 
compromise to ensure passage.
    Personally seeing the transformation of the bill between 
the two committees has made my opinion crystal clear. I will 
support the bill which passed the intelligence committee 13-2, 
and will adamantly oppose the partisan Judiciary Substitute if 
it is offered as a substitute on the Senate floor.

                                                    Orrin G. Hatch.
                               ATTACHMENT

                                                  December 4, 2007.
Hon. Harry Reid,
Senate Majority Leader,
Washington, DC.
Hon. Mitch McConnell,
Senate Minority Leader,
Washington, DC.
    Dear Majority Leader Reid and Minority Leader McConnell: As 
the Senate prepares to debate Foreign Intelligence Surveillance 
Act (FISA) modernization legislation, we want to state our 
collective support for the bipartisan legislation (S. 2248), 
drafted by Chairman Rockefeller and Vice Chairman Bond and 
reported by the Senate Select Committee on Intelligence (SSCI), 
serving as the basis for floor debate.
    The Rockefeller-Bond bill represents a bipartisan attempt 
to craft legislation which would provide critical intelligence-
gathering authority to the Intelligence Community, while 
providing appropriate oversight by Congress, the Foreign 
Intelligence Surveillance Court, and the Executive Branch. The 
Rockefeller-Bond bill was drafted after careful and lengthy 
negotiations between Democratic and Republican staff on the 
Intelligence Committee. The legislation includes important 
input from the Director of National Intelligence, the 
Department of Justice, and the Intelligence Community as a 
whole. These efforts resulted in a balanced bill which was 
reported by the SSCI by an overwhelming 13-2 bipartisan vote.
    In stark contrast, the substitute bill reported by the 
Senate Judiciary Committee does not reflect the same bipartisan 
spirit. Following committee referral and during a Judiciary 
Executive Business Meeting, a substitute amendment offered by 
Senator Leahy was adopted after little debate by a slim 10-9 
party-line vote. The Leahy substitute replaced the entire 
Intelligence Committee bill and completely disregarded the 
delicate compromises contained in the bipartisan bill.
    The Leahy substitute, when narrowly approved by the 
Democrats on the Judiciary Committee, contained 10 separate 
Democratic amendments and no Republican amendments. The 
Intelligence Community expressed great concern before the 
Judiciary Committee's markup--and indeed continues to express 
such concern--with many of the amendments included in the 
Judiciary bill. These concerns prompted Attorney General 
Mukasey and Director of National Intelligence McConnell to send 
a joint letter to the Chairman and Ranking Member of the 
Judiciary Committee as well as the Chairman and Vice Chairman 
of the SSCI stating, ``If the substitute is part of a bill 
which is presented to the President, we and the President's 
other senior advisers will recommend that he veto the bill.'' 
While this letter reflected the views of the Intelligence 
Community on the earlier version of the Leahy substitute, most 
of these concerns still apply to the substitute as reported, 
which contains provisions that could limit intelligence 
collection and national security investigations.
    Furthermore, three additional Democratic amendments were 
adopted via party-line votes during the markup. Some of these 
amendments could lead to very serious unintended consequences 
for our Intelligence Community, hampering its ability to 
protect American citizens from terrorists. For example, one 
amendment would prevent the military from monitoring all 
electronic communications into and out of foreign cities or 
compounds prior to American military invasion. This presents a 
risk to the safety of our troops that is simply unacceptable.
    The Rockefeller-Bond legislation also contains important 
immunity provisions for those telecommunications carriers 
alleged to have assisted the U.S. Government after the 
September 11th terrorist attacks. During the Judiciary business 
meeting, an amendment to strike these immunity provisions was 
rejected by a 12-7 bipartisan vote. However, in a move which 
nullified the committee's 12-7 vote, Chairman Leahy called for 
a subsequent vote on favorably reporting only Title I of the 
Leahy substitute, thus striking titles II and III of the 
Rockefeller-Bond legislation. This motion passed on a party-
line 10-9 vote. This vote not only removed the retroactive 
immunity provisions, but also removed vital procedures for 
implementing future statutory defenses, a severability clause, 
and procedures for transitioning from the Protect America Act. 
This leaves the final bill reported by the Judiciary Committee 
with an amalgamation of unworkable and ill-defined procedures 
for the Intelligence Community to follow, combined with poor 
public policy which could cripple our nation's ability to 
effectively gather intelligence and protect our citizens from 
harm.
    As you know, in order for FISA legislation to successfully 
pass the Senate and be enacted into law, it will need 
bipartisan support and the backing of those trusted to protect 
U.S. interests in the Intelligence Community.
    We therefore reiterate our support for the Rockefeller-Bond 
legislation as passed by the SSCI. Such support, however, 
should not be construed as endorsement of every facet of the 
bill, as we recognize that there are significant concerns with 
a few provisions in the bill that will need to be addressed on 
the Senate floor. However, we remain confident that these 
issues can be resolved in a timely manner so that our nation's 
intelligence personnel can spend their time protecting 
Americans from the forces of evil around the world.
    In our opinion the Rockefeller-Bond legislation holds the 
greatest promise for bringing the Senate together and getting a 
FISA bill enacted swiftly. As you well know, we must act 
efficiently and responsibly to ensure that the dedicated men 
and women in the Intelligence Community have the tools and 
authority they need to effectively collect foreign intelligence 
information.
            Sincerely,
                                   Lindsey Graham.
                                   Tom Coburn.
                                   Sam Brownback.
                                   Jon Kyl.
                                   Orrin Hatch.
                                   Jeff Sessions.
                                   John Cornyn.
                                   Charles Grassley.

        X. Changes to Existing Law Made by the Bill, as Reported

    In the opinion of the Committee, it is necessary to 
dispense with the requirements of paragraph 12 of rule XXVI of 
the Standing Rules of the Senate in order to expedite the 
business of the Senate.