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Senator Russ Feingold on the Different FISA Amendments Acts

There are actually two versions of the FISA Amendments Act. One, passed out of the Intelligence committee, is before the Senate today. The other, passed out of the Judiciary committee, needs a supermajority approval to be even considered as a substitute bill. What’s happening on the Senate floor right now is debate before a vote at 2 pm to substitute the Judiciary committee bill for the Intelligence committee bill, which much more strongly constricts American freedom and much more strongly enables big government to wield its power over you without restriction.

Senator Russell Feingold gave a speech a little while ago on the Senate floor which talked about some of the differences between the two bills, and why the Judiciary Committee bill is a better starting point for consideration even though it, too, does not provide enough protection for Americans’ constitutional rights. The following is a direct transcription of excerpts of his speech from the live video feed of the Senate:

Let’s be clear: these are extraordinary powers that both bills give to the executive branch, and there is no difference between the two bills in terms of the intelligence they permit the government to acquire. No difference between the bills as regards the effort to go after those who may be trying to do us harm in this respect. Rather, the difference between these two bills comes in the form of critically important checks and balances on those powers. The Judiciary bill contains a number of important changes to improve our court oversight of these broad new executive branch authorities and protect the privacy of law-abiding Americans. The Intelligence bill, on the other hand, just leaves it up to the executive branch to police itself, an approach that is all too often proven to be a bad idea throughout American history, particularly under this administration.

Mr. President, let me state as clearly as I can: the differences between these two bills have nothing to do with our ability to combat terrorism. They have everything to do with ensuring that the executive branch follows the rule of law, and doesn’t unnecessarily listen in on the private communications of Americans who are doing absolutely nothing wrong. This debate is about whether the courts should have an independent oversight role, and what protections should apply to the communications of Americans that somehow get swept up in these broad new surveillance powers. Do you believe the courts should have a meaningful oversight role with regard to government surveillance? Then you should support the Judiciary bill. And if you believe that Congress should safeguard the communications of Americans here at home that could be swept up in a broad new surveillance program that is supposed to be focused on foreigners overseas, then you should support the Judiciary bill. It’s as simple as that.

That said, the Judiciary committee bill is not perfect. More still needs to be done to protect the privacy of Americans. That is why it should be an easy decision to support the Judiciary committee bill as our starting point out here on the floor of the Senate as we work on this legislation….

Mr. President, exactly what are the differences between these two bills? First, the Judiciary bill gives the secret FISA court more authority to operate as an independent check on the executive branch. For example, one provision in the Judiciary bill fixes an enormous problem with the intelligence committee bill, and that is the complete lack of incentives for the government to target people overseas rather than to target people in the United States. The Judiciary bill solves this problem by giving the discretion to limit the use of information concerning Americans when that information is obtained through procedures that the FISA court ultimately finds are not reasonably designed to target persons overseas.

Another provision of the Judiciary bill ensures that the FISA court has the authority to oversee compliance with what are called minimization procedures. Minimization procedures have been held up as the primary protection in the Intelligence committee bill for the privacy of Americans whose communications get swept up in this new surveillance authority. Now, I don’t think current minimization procedures are strong enough to do the job. But to the extent that minimization can help protect Americans’ privacy, its implementation surely needs to be overseen by the court. So that means giving the court the authority to review whether the government is complying with minimization rules, and to ask for the information it needs to make that assessment. Now, without this provision from the Judiciary bill, Mr. President, the government’s dissemination and use of information on innocent, law-abiding Americans will occur without any checks and balances whatsoever. No checks and balances at all. Once again, “Trust us!” will have to do. Now I believe in this case, as in so many others, “Trust us!” is not enough….

Mr. President, the Judiciary bill also does a better job of protecting Americans from widespread warrantless wiretapping. First, it provides real protection against what’s called reverse targeting. So it ensures that if government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating, it has to get a court order on the American. Specifically, the Judiciary bill says the government needs an individualized court order when a significant purpose of its surveillance is in fact listening to an American at home. Now the Director of National Intelligence himself said that reverse targeting violates the 4th Amendment! All this provision that I’m raising here does is simply codify that principle. The administration continues to oppose this provision. And I have a simple question: Why? Why is it opposed to a provision that prohibits a practice that its own Director of National Intelligence says is unconstitutional?

Mr. President, the Judiciary bill also prohibits something called bulk collection. Now, this is the sweeping up of all communications between the United States and overseas. The DNI said in public testimony that this type of massive bulk collection would be permitted by the Protect America Act that is currently in effect but he has also said that what the government is seeking to do with these authorities is something very different. It is, he said, and I am quoting here, “surgical. A telephone number is surgical. So if you know that number you can select it out.” So if the DNI has said he doesn’t need broader authority there should be no objection to this modest provision which again simply holds the DNI to his word. The prohibition against bulk collection, Mr. President, ensures that the government has some foreign intelligence interest in the communications that it is collecting, and not just vacuuming up every last communication between Americans and their friends and business colleagues overseas….

The Judiciary committee bill makes clear, once and for all, that the president must follow the law. Mr. President, for all of these reasons, the Senate should support the Judiciary committee’s product. Let me repeat what I said at the outset: the differences between these two bills have nothing to do with our ability to combat terrorism. Nothing. They have everything to do with insuring that the executive branch adheres to the rule of law, and doesn’t necessarily listen in on the private communications of Americans. The fact that the administration is so strongly resisting these common-sense protections really says a lot, and gives pause to those who are considering opposing it. It is time for Congress to stop being an enabler when it comes to this administration’s indifference to the rule of law and instead start being a protector of the rights and freedoms of our citizens.

Of course, the news media aren’t covering Senator Feingold’s remarks. Nothing whatsoever. They’re too busy carrying on into Day 3 of Dead Heath Ledger Watch, a story which isn’t going to liven up until the Second Coming.

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