Thank you for your letter regarding civil liberties
and my commitment to upholding the Constitution. I
appreciate you taking the time to write and I welcome
the opportunity to respond.
I agree with you that we need to protect the
constitutional rights of Americans. I have been a
strong advocate of civil liberties. At the same time,
and in light of the September 11 tragedy, I believe we
need to give our law enforcement and intelligence
agencies the tools they need to prevent and respond to
future terrorist attacks. I continue to work hard to
maintain this delicate balance.
You may be interested to know that, on October 18, the
Senate Intelligence Committee, of which I am a member,
favorably reported a bill that substantially
strengthens the role of the FISA Court in approving
the procedures governing electronic surveillance. This
legislation also would require, for the first time
ever, that there be court review any time a U.S.
citizen is targeted for surveillance anywhere in the
world. I believe these two measures significantly
strengthen the privacy protections in the Foreign
Intelligence Surveillance Act (FISA). I also believe
that additional protections are warranted, as I noted
in my additional views to that Committee's report- a
copy of which I have attached. I am pleased to note
that one of these suggestions - that stronger language
stating that FISA should be the exclusive means of
conducting electronic surveillance - was later added
to the FISA bill when it was considered by the Senate
Judiciary Committee, on which I also serve. I will
continue to work to preserve these protections when
the FISA bill is considered on the Senate floor.
Like you, I support closing the detention facilities
at Guantanamo Bay, Cuba. To achieve this goal, I have
introduced S. 1249, which would require the President
to close the Department of Defense detention facility
at Guantanamo Bay within a year. Additionally, I am a
cosponsor of S. 185, which would support habeas corpus
by repealing provisions of the Military Commissions
Act of 2006 that eliminated the jurisdiction of any
court to hear or consider applications for writ of
habeas corpus filed by individuals determined by the
U.S. to be enemy combatants.
Additionally, I have sponsored a measure in the
Intelligence Authorization Conference Report that
would apply the Army Field Manual's established
interrogation standards to all interrogations
conducted by the U.S. Intelligence Community and eight
specific techniques, including waterboarding, would be
prohibited. This is an important piece of legislation
that would end the national debate over torture and
the President should sign this bill into law
immediately.
Again, thank you for writing. Please know that I will
keep your thoughts in mind when issues regarding civil
liberties come before me in the United States
Congress. I hope you will continue to write on matters
of importance to you. Best regards.
ADDITIONAL VIEWS OF SENATORS FEINSTEIN, SNOWE, AND
HAGEL
Chairman Rockefeller and Vice Chairman Bond are to be
commended for producing a bipartisan bill that the
Director of National Intelligence and Department of
Justice support. They and their staff have worked
together to produce this bill. It is a signal
accomplishment, and we commend them.
We believe this legislation is a strong bipartisan
bill that will next be reviewed by the Senate
Judiciary Committee. We hope that the bill can be
further improved, particularly with respect to the
issue of FISA's exclusivity, as discussed below.
IMPROVEMENTS IN THIS LEGISLATION
The Committee's bill makes necessary improvements to
current law, the Protect America Act that was enacted
in August.
Notably, for the first time ever, this legislation
would require court review any time the Intelligence
Community targets a U.S. citizen for surveillance,
regardless of location. Under present law and
regulation, the Attorney General can approve
surveillance of Americans outside of the country with
no judicial review.
This legislation puts the central question before the
FISA Court: whether there is probable cause to believe
that a U.S. person is an agent of a foreign power.
This is a determination that FISA Court judges have
made in thousands of instances since 1978, and one to
which it is well suited.
In addition, this bill:
?Greatly increases the role of the FISA Court in
conducting up-front review and approvals of the
targeting and minimization of communications;
?Corrects the concern arising from the Protect
America Act that surveillance information could be
used in an overly broad manner. Instead, this bill
uses FISA's existing limitations on use:
oDisseminated information must be minimized;
oInformation can only be shared only for appropriate
intelligence and law enforcement purposes; and
oInadvertently collected intelligence must be
destroyed;
? "Streamlines" the FISA application and order
process in order to reduce the pending application
backlog and the significant amount of time it takes to
write and review and application. Specifically, the
bill:
oAllows the government to present a summary, rather
than a full description, of how the surveillance will
be effected and what intelligence is sought; and
oExtends the existing FISA "emergency period" from
three to seven days during which surveillance may be
conducted under the Attorney General's direction prior
to a Court order being obtained;
?Provides for strong internal and external oversight
by:
oRequiring the Intelligence Community to conduct an
annual review of whether new surveillance authorities
are being properly applied;
oRequiring the Attorney General to provide detailed
semi-annual reports to the Senate and House
Intelligence and Judiciary committees concerning
collections authorized in the bill -- including
instances of non-compliance; and
oAuthorizing the Inspectors General of the Department
of Justice and elements of the Intelligence Community
to conduct independent reviews of agency compliance
with the court-approved acquisition and minimization
procedures.
?Clearly prohibits warrantless surveillance against
persons inside the United States.
Legislation amending the Foreign Intelligence
Surveillance Act of 1978, and the Protect America Act
that was passed in August of this year, will only
succeed if it is bipartisan. In this area, it is our
belief that any partisan bill will not pass.
That outcome is likely to result in one of two
unacceptable options:
?A rushed process to extend the Protect America Act,
which contains fewer statutory protections of privacy
rights than the Committee's bill, or
?A lapse in legislation, which will prevent the
Intelligence Community from conducting much-needed
surveillance on non-United States citizens outside of
the country.
Clearly, passing meaningful reforms should be a top
priority of the U.S. Congress.
EXCLUSIVITY OF FISA
The legislation includes language on the exclusivity
of FISA that requires further examination. Section 102
of the Intelligence Committee bill states that the
Foreign Intelligence Surveillance Act and relevant
portions of Title 18 of the U.S. Code are the
"exclusive means" by which "electronic surveillance"
may be conducted.
The definition of the term "electronic surveillance,"
however, was written in 1978 and has been the subject
of exemptions and limitations since then.
It is essential that the Committee determine whether
there are any intelligence techniques that fall within
this legislation's scope for which the Executive
Branch may not follow the bill's procedures. This is a
necessarily classified topic, but we intend to conduct
careful review of these techniques before this
legislation is enacted.
It is our view that the Foreign Intelligence
Surveillance Act, as amended, should be the only legal
way of acquiring the communications of people inside
the United States, and U.S. persons outside the United
States in certain circumstances, for foreign
intelligence purposes.
There is a history to this provision that makes a
strong congressional re-affirmation even more
important.
The legislative history from when FISA was originally
enacted in 1978 is quite clear. It states:
[d]espite any inherent power of the President to
authorize warrantless electronic surveillance in the
absence of legislation, by this bill and chapter 119
of title 18, Congress will have legislated with regard
to electronic surveillance in the United States, that
legislation with its procedures and safeguards
prohibit the President, notwithstanding any inherent
powers, from violating the terms of that legislation.
(emphasis added)
The legislative history continued by describing the
Supreme Court's decision in the Keith case, in which
the Court ruled that at that time, Congress hadn't
ruled in this field and "simply left the presidential
powers where it found them." But at this point, the
legislative history turns. It said:
The Foreign Intelligence Surveillance Act, however,
does not simply leave Presidential powers where it
finds them. To the contrary, this bill would
substitute a clear legislative authorization pursuant
to statutory, not constitutional, standards. (emphasis
added)
This was the statement accompanying H.R. 7138 as it
passed the 95th Congress. It is clear that Congress
enacted the 1978 legislation with the specific intent
that it would be the only authority under which
foreign intelligence could be obtained from electronic
surveillance.
It is also clear that President Carter was aware of
this intent when he signed the bill into law.
President Carter's signing statement noted that:
The bill requires, for the first time, a prior
judicial warrant for all electronic surveillance for
foreign intelligence or counterintelligence purposes
in the United States in which communications of U.S.
persons might be intercepted. It clarifies the
Executive's authority to gather foreign intelligence
by electronic surveillance in the United States. It
will remove any doubt about the legality of those
surveillances which are conducted to protect our
country against espionage and international
terrorism.. (emphasis in original)
This intent, and FISA practice for more than 20 years,
was cast in doubt after September 11, 2001. At that
time, the Executive Branch concluded that it was not
bound by FISA's procedures, and proceeded with the
Terrorist Surveillance Program (TSP) without
requesting amendments to FISA.
As explained in the Department of Justice's 2006 White
Paper on the legality of the TSP, the Administration
cited the Authorization for the Use of Military Force
(AUMF) against al Qaeda and its supporters as an
alternative authority. The Department pointed to
language in FISA that it was exclusive except as
authorized by other statute.
Congress intended for the "other statute" to be the
laws governing criminal wiretaps, not a broad and
undefined exception.
We do not believe that the AUMF provided this
authorization. We have seen no evidence that Congress
intended the AUMF to authorize a widespread effort to
collect the content of Americans' phone and email
communications, nor does the AUMF refer to the
subject.
Furthermore, FISA already contained a provision that
clearly governed surveillance actions in a wartime
situation - a 15-day authorization for warrantless
surveillance following a declaration of war. So this
was not an uncontemplated question following September
11 and the passage of the AUMF.
More troubling, however, is the Administration's claim
that the Constitution would not allow FISA to limit
the President's ability to conduct surveillance and
other activities covered by that legislation in any
way he sees fit. The Department of Justice argues that
Congress has not, and cannot, so limit the Executive's
power.
For these reasons, we continue to believe that
Congress must write strong language to ensure that
FISA is the exclusive means that the Intelligence
Community may intercept, analyze, and disseminate the
phone and electronic communications of any American
for intelligence purposes.
We will work to strengthen the exclusivity language as
the bill progresses.
Achieving the balance between necessary intelligence
collection and the protection of Americans' privacy
rights are perhaps nowhere as difficult as in the
areas surrounding FISA. It is not a field in which
partisan politics should play a part. Nor is it one
where the Congress and the President should be in
conflict.
We thank again Chairman Rockefeller and Vice Chairman
Bond for their work on this legislation. It is a big
step forward.
DIANNE FEINSTEIN
OLYMPIA J. SNOWE
CHUCK HAGEL
Sincerely yours,
Dianne Feinstein
United States Senator
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