Other documented arguments in favor Senate Intelligence Committee FISA bill and Telecom Immunity
Quotes directly from the Statement of Administration Policy submitted to record during Senate FISA bill deliberations.
Arguments in favor of the Protect American Act of 2007 (PAA)
1. greatly improved the Intelligence Community's ability to protect the Nation from terrorist attacks and other national security threats.
2. The PAA has allowed us to close intelligence gaps, and it has enabled our intelligence professionals to collect foreign intelligence information from targets overseas more efficiently and effectively.
3. The Intelligence Community has implemented the PAA under a robust oversight regime that has protected the civil liberties and privacy rights of Americans.
Arguments in favor of the Intelligence Committee bill
4. establish[es] a sound foundation for our Intelligence Community's efforts to target terrorists and other foreign intelligence targets located overseas.
5. [It] represents a bipartisan compromise that will ensure that the Intelligence Community retains the authorities it needs to protect the Nation.
6. Judiciary Committee reported an amendment to the SSCI bill that would have devastating consequences to the Intelligence Community's ability to detect and prevent terrorist attacks and to protect the Nation from other national security threats.
7. The Judiciary Committee's amendment would impose unacceptable and potentially crippling burdens on the collection of foreign intelligence information by expanding FISA to restrict facets of foreign intelligence collection never intended to be covered under the statute.
8. provide[s] a sound legal framework for essential foreign intelligence collection in a manner consistent with the Fourth Amendment.
9 The SSCI drafted its bill in extensive coordination with Intelligence Community and national security professionals—those who are most familiar with the needs of the Intelligence Community and the complexities of our intelligence laws.
10. The SSCI also heard testimony from privacy experts in order to craft a balanced approach.
11. Although the Administration would strongly prefer that the provisions of the PAA be made permanent without modification, the Administration engaged in extensive consultation in the interest of achieving permanent legislation in a bipartisan manner.
12.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
13. 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.
14.The Judiciary Committee substitute would require the Attorney General and the Director of National Intelligence to certify for certain acquisitions that they are "limited to communications to which at least one party is a specific individual target who is reasonably believed to be located outside the United States." This provision is unacceptable because it could hamper U.S. intelligence operations that are currently authorized to be conducted overseas and that could be conducted more effectively from the United States without harming U.S. privacy rights.
15. The Judiciary Committee substitute would require a FISA court order if a "significant purpose" of an acquisition targeting a person abroad is to acquire the communications of a specific person reasonably believed to be in the United States. If the concern driving this proposal is so-called "reverse targeting"—circumstances in which the Government would conduct surveillance of a person overseas when the Government's actual target is a person in the United States with whom the person overseas is communicating—that situation is already addressed in FISA today: If the person in the United States is the target, a significant purpose of the acquisition must be to collect foreign intelligence information, and an order from the FISA court is required.
16. The Intelligence Community was heavily criticized by numerous reviews after September 11, including by the Congressional Joint Inquiry into September 11, regarding its insufficient attention to detecting communications indicating homeland attack plotting.
17. The requirement to collect and disseminate this wide range of highly classified documents—including all those "relevant" to activities "closely related" to the Terrorist Surveillance Program—unnecessarily risks the disclosure of extremely sensitive information about our intelligence activities, as does the audit requirement itself.
18.The Judiciary Committee substitute would delete an important provision in the SSCI bill that enables the Intelligence Community to collect foreign intelligence from overseas terrorists and other foreign intelligence targets during an appeal. Without that provision, we could lose vital intelligence necessary to protect the Nation because of the views of one judge.
19. By requiring analysts to go back to the databases and pull out certain information, as well as to determine what other information is derived from that information, this requirement would place a difficult, and perhaps insurmountable, burden on the Intelligence Community. Moreover, this provision would degrade privacy protections, as it would require analysts to locate and examine U.S. person information that would otherwise not be reviewed.
20. The Judiciary Committee substitute potentially requires the FISA Court to approve "[a]ny targeting of persons reasonably believed to be located outside the United States." Although we assume that the Committee did not intend to require these procedures to govern all "targeting" done of any person in the world for any purpose—whether it is to gather human intelligence, communications intelligence, or for other reasons—the text as passed by the Committee contains no limitation. Such a requirement would bring within the FISA Court a vast range of overseas intelligence activities with little or no connection to civil liberties and privacy rights of Americans.
21. The Judiciary Committee substitute also would require the Government to retrieve historical documents of this nature from the last 5 years. As drafted, this provision could impose significant burdens on Department of Justice staff assigned to support national security operational and oversight missions.
22. Any sunset provision, but particularly one as short as contemplated in the Judiciary Committee substitute, would adversely impact the Intelligence Community's ability to conduct its mission efficiently and effectively by introducing uncertainty and requiring re-training of all intelligence professionals on new policies and procedures implementing ever-changing authorities.
23. To repeat this process in several years will unnecessarily highlight our intelligence sources and methods to our adversaries.
24. Unlike the SSCI bill, the Judiciary Committee bill contains no procedures designed to ensure a smooth transition from the PAA to new legislation, and for a potential transition resulting from an expiration of the new legislation. This omission could result in uncertainty regarding the continuing validity of authorizations and directives under the Protect America Act that are in effect on the date of enactment of this legislation.
25. The Judiciary Committee substitute, unlike the SSCI bill, lacks a severability provision.
Arguments in favor of Telecom immunity
26. Providing liability protection to these companies is a just result.
27. Allowing continued litigation also risks the disclosure of highly classified information regarding intelligence sources and methods.
28. 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.
29. 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.
30. The Intelligence Community, as well as law enforcement and homeland security agencies, continue to rely on the voluntary cooperation and assistance of private parties.
31. 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.
32. The Judiciary Committee substitute fails to include the important provisions in the SSCI bill that would establish procedures for implementing existing statutory defenses and that would preempt state investigations of assistance allegedly provided by an electronic communication service provider to an element of the Intelligence Community. These provisions are important to ensure that electronic communication service providers can take full advantage of existing liability protection and to protect highly classified information.
