Senator Kennedy Applauds Passage Of Amendment To Protect American's Domestic Communications

(As Entered into the Record)

February 6, 2008 -- Mr. President, the amendment that I’ve offered with Senators Kerry and Menendez addresses a serious problem with the FISA bill that we are now considering, and I am very pleased that it has been incorporated into the bill by unanimous consent.

The amendment clarifies that under the new authority provided in this legislation, the government may not intentionally acquire a communication when it knows ahead of time that the sender and all of the intended recipients are located in the United States. When the government knows ahead of time that both the person making the call and the person receiving the call are located inside the United States, it will have to get a court order before it can listen in on that call. This is the way FISA has always worked, and my amendment makes sure that the law stays that way.

There’s broad agreement that communications known ahead of time to be purely domestic should continue to be governed by the standard FISA rules. Indeed, the Bush Administration has repeatedly stated that it does not intend to use the new authority granted under the Protect America Act or this legislation to acquire communications that are purely domestic, without obtaining a court order first. The Administration acknowledges that when the government knows that all the parties to a conversation are in the U.S., a specific court order should be needed to intercept that conversation.

I haven’t heard a single Member of Congress disagree with this point. But without this amendment, the FISA bill’s new authority could be used to acquire purely domestic communications without a court order.

The bill requires the government’s “targeting procedures” to be designed “to ensure that any acquisition . . . is limited to targeting persons reasonably believed to be located outside the United States.” The problem arises because sometimes the “target” of the surveillance may be abroad, but the communications that the government wants to acquire may occur entirely inside the United States, because the subject matter concerns the target who is abroad. The term “target” is not defined in FISA, but the legislative history states that the “target” is the person or entity “about whom or from whom information is sought.” That broad definition is capable of being interpreted to allow surveillance of people other than a “target.”

For example, the government might believe that two Americans in the U.S.—let’s call them Tom and Mary—will discuss a third party who is located outside the country. Under this bill, that third party can be a group, not just an individual, and the government can obtain a blanket warrant that allows it to spy on everything that group does in the future. Although the authors of the bill have stated this should not occur, the concern is that when Tom and Mary talk to each other, the government might claim the third party is the “target” who provides the legal basis for the surveillance—with the practical result being that the government could listen in on the conversation without making any showing to any court about Tom and Mary.

My amendment protects innocent Americans by clarifying that traditional FISA rules still govern for communications known to be occurring within the country. The government could still spy on Tom and Mary—but it would have to obtain a warrant first, with the usual exception for emergencies.

According to the Administration, the law already requires this. The Administration has said flat-out that it will not wiretap purely domestic communications without first obtaining a court order.

But these kinds of statements are no answer when Americans’ basic liberties are at stake. “Trust us” is not enough.

FISA experts such as David Kris, a highly respected former lawyer at the Justice Department and the author of the leading treatise on FISA law, believe that the legislation is not clear right now. And if the law is unclear, there will be tremendous pressure on the Intelligence Community to apply it as aggressively as possible, because it is their duty to do everything they can within the boundaries of law.

As Mr. Kris recently stated, even though the Intelligence Committee bill prohibits the targeting of persons known to be in the United States, it “does not, however, foreclose all surveillance of [purely] domestic communications . . . because surveillance can ‘target’ an international terrorist group located abroad, but still be directed at a domestic telephone number or other domestic communications facility.”

Mr. Kris has said that his “principal concern about [this bill] . . . is that it resembles the Protect America Act in allowing surveillance of domestic communications” without a warrant. This is a radical change to a FISA system that has protected Americans for three decades. If put to a vote, I have no doubt that Americans would reject it.

This concern can’t be waved away by the Administration telling us that it takes a different legal view. When one of the top FISA experts in the country says that the law is not clear, we should listen.

Promises about how the government will interpret the law in the future are not enough. If we all agree about a specific policy goal—and everyone should agree that in purely domestic-to-domestic situations, the traditional FISA rules should apply—then we should be very clear about that goal in the legislation we write. Any FISA law that Congress passes may set the rules on surveillance for years to come, and different Administrations may interpret ambiguous language in different ways.

My amendment makes clear that the traditional FISA rules apply when the government knows ahead of time that the communication is purely domestic. The amendment does not add any substantive changes to the law; it adds clarity and certainly where now there is ambiguity and confusion.

Americans deserve to feel confident when they are talking with their friends, neighbors, and loved ones inside the U.S. that they will not be spied on without a warrant. Bringing clarity to this area of the law is good for Americans’ liberties, and it is good for national security. I congratulate my colleagues for adopting this amendment.

Source: Senator Ted Kennedy

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