This is an e-mail that I received from Diane Feinstein in which she justifies the passage of this absolute intrusion on the freedoms that we used to take for granted !!!I ask that you read this letter, and then contact you senator, and let that senator know how you feel about this situation. My attitude is quite apparent, I hate this situation, since my life revolves around the internet. Whether you opinion agrees with me or not let your senator know, do not let this opportunity pass you by, or else you will lose what freedoms we have !!!!
A Directory of Senators is located
If you agree with me that our freedoms are too restricted already, and want top let your Senator that you oppose the Telecom Immunity, and FISA bill then register your opinionElectronic Frontier Foundation.
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Sent: Thu Jun 26 14:23
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Subject:
U.S. Senator Dianne Feinstein responding to your message
Type: Embeded HTML/Text
Alert:
Dear Mr. Leach:
I write this in response to your communication indicating your concerns on the
Foreign Intelligence Surveillance Act of 1978 (FISA) now before the Senate. This
bill has passed the House of Representatives.
This legislation contains multiple sections, including one that deals
specifically with liability for telecommunications companies. However, the
primary intent to this new bill is to modernize our intelligence gathering
capacity. The technology and communications industries have seen vast changes in
the past thirty years since FISA was first written in 1978. This has changed the
way surveillance is conducted, and the original law cannot adequately address
these procedures. This is precisely why FISA needs to be modernized.
It is important to understand the consequences if the Senate does not pass this
bill. We would either have to extend the temporary surveillance bill passed last
August – which should not happen – or allow surveillance on certain foreign
targets to expire, which would lay the Nation bare and decrease our ability to
identify and protect against terrorist threats. Neither of these options is
acceptable.
I strongly believe that this bill is substantially better than the version the
Senate passed in February 2008, which I opposed. It is also a major improvement
from the Protect America Act that passed in August 2007, which had few privacy
protections and was never intended to be a permanent solution. This bill:
oIncludes provisions I authored that make clear that FISA is the exclusive (or
only) authority for conducting surveillance inside the United States. This is
crucial as it requires that all future Presidents must act only within the law.
FISA would be the only legal authority for conducting surveillance on Americans
for intelligence purposes, and only legislation that specifically provides
wiretapping authority in the future would be an exception to FISA.
oRequires the government to obtain a warrant before surveillance can begin. This
applies to all Americans – anywhere in the world. The Protect America Act
allowed surveillance for up to six months before getting a warrant. This bill
ends all warrantless surveillance of U.S. persons. In this sense it is precedent
setting.
oBans reverse targeting, which was a concern under the Protect America Act.
Reverse targeting would allow the government to collect the contents of
telephone calls and e-mails of an American by conducting surveillance on the
people with whom they communicate. This is prohibited in this bill.
oRequires that the government implement procedures approved by the Court for
minimization. If an American’s communication is incidentally caught up in
electronic surveillance while the Government is targeting someone else,
minimization protects that person’s private information. This has been a
hallmark of FISA for 30 years, but court review and approval of minimization
procedures was not included in the Protect America Act. It is here.
oRequires the government to receive a warrant to conduct surveillance on an
American outside of the United States. This means that Americans’ privacy rights
are protected everywhere around the world. A court warrant has never been
required outside the United States before; this would be the strongest
protection ever.
I understand your concern regarding Title II of this bill, which creates a
process that may result in immunity for telecommunications companies that are
alleged to have provided assistance to the Government. I agree that this is not
the best approach to the current legal challenges to these companies. Earlier
this year, I pushed an amendment that would require court review of the legality
of these companies’ alleged actions. Under my proposal, cases against the
companies would only be dismissed if the Court found that they acted legally. I
continue to believe this is the right approach.
There may be amendments offered to the FISA legislation to strip or modify the
telecom immunity provisions. Know that I will support any that I believe improve
the current bill.
Bottom line: this FISA legislation, while not perfect, would bring intelligence
activities back under U.S. law. It provides significant improvement in oversight
and accountability of our intelligence collection programs while still giving
the intelligence community the tools needed to keep our Nation safe. And, it
provides the strongest privacy protections to U.S. persons in history.
In conclusion, I have served on the Intelligence Committee for seven years and I
take the responsibility extremely seriously. If there is no bill, our Nation
goes bare in mid-August, unless the Protect America Act, which does not offer,
even remotely, the privacy protections for U.S. persons that are included in
this bill, is extended. Additionally, the President – any President – cannot
enact a program outside of this law in the future.
I hope this helps you understand my concerns. Attached to this letter, you will
find my statement on the Senate floor from June 25, 2008.
Statement of Senator Dianne Feinstein
FISA Amendments Act of 2008
June 25, 2008
Mrs. FEINSTEIN. Thank you very much, Mr. President.
Mr. President, I begin my remarks by thanking the chairman of the Intelligence
Committee, Senator Rockefeller, and the vice chairman of the Intelligence
Committee, Senator Bond, the House Speaker, and the House leadership for their
distinguished work on this piece of legislation. This has not been easy. It is
certainly not without controversy. There are some major challenges to work
through.
I want to begin by putting my remarks, at least, in context.
There is no more important requirement for national security than obtaining
accurate, actionable intelligence. At the same time, there have to be strong
safeguards in place to ensure that the Government does not infringe on
Americans’ constitutional rights.
Yet if Congress does not act and pass this bill, as it was passed overwhelmingly
in the House, both of these goals, I believe, are in jeopardy. Here is why. If
this bill does not pass, our Nation would likely be forced to either extend the
Protect America Act or leave the Nation bare until a new bill can be written.
Neither of these are good options.
As I will describe, the Protect America Act does not adequately protect
Americans’ constitutional rights. It was written to be a temporary measure for 6
months, and it expired on February 5.
What many people do not understand is that surveillance conducted under the
Protect America Act will cease by the middle of August. It will be impossible to
write a new bill, to get it past both Houses, to have it signed by the President
in time to meet this deadline.
If that bill expires without this Congress passing new legislation, we will be
unable to conduct electronic surveillance on a large number of foreign targets.
In other words, our intelligence apparatus will be laid bare and the Nation will
go into greater jeopardy. I truly believe that.
The FISA legislation of 1978 cannot accommodate this number of targets. It is
simply inadequate for this new task due to changes in technology and the
communications industry. That is precisely why FISA needs to be modernized.
So taking no action means we will be opening ourselves, in my view, to the
possibility of major attack. This is unacceptable.
So as I see it, our choice is a clear one: We either pass this legislation or we
extend the Protect America Act. For me, this legislation is much the better
option.
This bill, in some respects, improves even on the base bill, the 1978 Foreign
Intelligence Surveillance Act. It provides clear protections for U.S. persons
both at home and abroad. It ensures that the Government cannot conduct
electronic surveillance on an American anywhere in the world without a warrant.
No legislation has done that up to this point.
I think the improvements in this bill over the Protect America Act and the 1978
legislation are important to understand, and I wish to list a few.
First, prior court review. This bill ensures that there will be no more
warrantless surveillance. Now, why do I say this? Under the Protect America Act-
-which is expiring, but we are still collecting surveillance under it for now–
the intelligence community was authorized to conduct electronic surveillance for
a period of 4 months before submitting an application for a warrant to the FISA
Court. Surveillance could actually proceed for 6 months before there was a
warrant.
Under this bill, the Government must submit an application and receive a warrant
from the FISA Court before surveillance begins. No more warrantless
surveillance. This is, in fact, a major point.
In emergency cases, there can be a short period of collection–up to 7 days–as
the application is prepared. There has been a provision for emergency cases
under FISA for some 30 years now. So that is prior court review for a U.S.
person anywhere in the world if content is collected.
Meaningful court review. This bill strengthens court review. Under the Protect
America Act, the Government submitted to the FISA Court its determination that
procedures were in place to ensure that only people outside the United States
would be targeted. The court could only reject an application for a warrant if
it found that determination to be “clearly erroneous.” This bill returns to
the traditional FISA standard, empowering the court to decide whether the
Government’s determination is “reasonable.” This is a higher standard of
review, so the court review under this bill is meaningful.
Next, minimization. These first two improvements ensure that the Government will
only be targeting people outside the country. That is good, but it is not
enough. There is always the possibility of someone outside the country talking
to a U.S. person inside the country. The bill addresses this with a process
known as minimization.
In 1978, Congress said that the Government could do surveillance on U.S. persons
under a court warrant, but required the Government to minimize the amount of
information on those Americans who get included in the intelligence reporting.
In practice, this actually means that the National Security Agency only includes
information about a U.S. person that is strictly necessary to convey the
intelligence. Most of the time, the person’s name is not included in the report.
That is the minimization process.
If an American’s communication is incidentally caught up in electronic
surveillance while the Government is targeting someone else, minimization
protects that person’s private information.
Now, the Protect America Act did not provide for court review over this
minimization process at all. But this bill requires the court in advance to
approve the Government’s minimization procedures prior to commencing with any
minimization program. That is good. That is the third improvement.
Fourth, reverse targeting. There is an explicit ban on reverse targeting. Now,
what is reverse targeting? That is the concern that the National Security Agency
could get around the warrant requirement. If the NSA wanted to get my
communications but did not want to go to the FISA Court, they might try to
figure out who I am talking with and collect the content of their calls to get
to me. This bill says you cannot do that. You cannot reverse target. It is
prohibited. This was a concern with the Protect America Act, and it is fixed in
this bill.
Those are four reasons–good reasons. Here is a fifth: U.S. person privacy
outside the United States. This bill does more than Congress has ever done
before to protect Americans’ privacy regardless of where they are, anywhere in
the world. Under this bill, the executive branch will be required to obtain a
warrant any time it seeks to direct surveillance at a U.S. person anywhere in
the world. So any U.S. person anywhere in the world is protected by the
requirement that a warrant must be received from the Foreign Intelligence
Surveillance Court before electronic surveillance can begin.
Previously, FISA only covered people inside the United States. The Protect
America Act did the same thing.
Now, also under this bill, there will be reviews of surveillance authorities by
the Director of National Intelligence, the Attorney General, the heads of all
relevant agencies, and the inspectors general of all relevant agencies on a
regular basis, and the FISA Court and the Congress will receive the results of
those reviews.
So there will be regular reporting from the professionals in the arena on how
this bill is being followed through on–how electronic surveillance is being
carried out worldwide. The Intelligence and Judiciary Committees will receive
those reports. That, too, is important.
Also, under this bill, there will be a retrospective review of the President’s
Terrorist Surveillance Program. That is the program that has stirred the furor.
The bill requires an unclassified report on the facts of the program, including
its limits, the legal justifications, and the role played by the FISA Court and
any private actors involved. This will provide needed accountability.
In summary, all intelligence collection under the Terrorist Surveillance Program
will be brought under court review and court orders.
Everything I have described brings this administration back under the law. There
is no more Terrorist Surveillance Program. There is only court-approved,
Congressionally reviewed collection.
But what is to keep this administration or any other administration from going
around the law again? The answer is one word, and it is called exclusivity.
It means that the Foreign Intelligence Surveillance Act is the only, the
exclusive, means for conducting electronic surveillance inside the United States
for foreign intelligence purposes.
The exclusivity language in this bill is identical in substance to the amendment
I offered in February, which received 57 votes in this Senate. It is section 102
of this bill.
This language reiterates what FISA said in 1978, and it goes further. Here is
what this bill says:
Never again will a President be able to say that his authority–or her
authority, one day, I hope–as Commander in Chief can be used to violate a law
duly enacted by Congress.
Never again can an Executive say that a law passed to do one thing–such as use
military force against our enemies–also overrides a ban on warrantless
surveillance. The administration has said that the resolution to authorize the
use of military force gave this President the right to go around FISA.
Never again can the Government go to private companies for their assistance in
conducting surveillance that violates the law.
Now, this administration has a very broad view of Executive authority. Quite
simply, it believes that when it comes to these matters, the President is above
the law. I reject that notion in the strongest terms.
I think it is important to review the recent history with this administration to
demonstrate why FISA exclusivity is so important.
At the very beginning of the Terrorist Surveillance Program, John Yoo, at the
Office of Legal Counsel, wrote in a legal opinion that:
…. [u]nless Congress made a clear statement in the Foreign Intelligence
Surveillance Act that it sought to restrict presidential authority to conduct
warrantless searches in the national security area–which it has not–then the
statute must be construed to avoid [such] a reading.
That was the argument. I believe it is wrong. Congress wrote FISA in 1978
precisely in the field of national security; there are other, separate laws that
govern wiretapping in the criminal context. In fact, the Department of Justice
has repudiated Yoo’s notion.
But if the Department admitted that FISA did apply, it found another excuse not
to take the Terrorist Surveillance Program to the FISA Court.
The Department of Justice developed a new, convoluted argument that Congress had
authorized the President to go around FISA by passing the authorization to use
military force against al-Qaida and the Taliban.
This is as flimsy as the last argument.
There is nothing in the AUMF that talks about electronic surveillance or FISA,
and I know of not one Member who believed we were suspending FISA when we
authorized the President to go to war.
But that is another argument we lay to rest with this bill. Here is how we do
it. We say in the language in this bill that FISA is exclusive. Now, here is the
major part: Only a specific statutory grant of authority in future legislation
can provide authority to the Chief Executive to conduct surveillance without a
FISA warrant.
So we go a step further in exclusivity. We cover what Yoo was trying to argue
and what others might argue on behalf of a Chief Executive in the future, by
closing the loophole and saying: You need specific statutory authority by the
Congress of the United States to go outside the law and the Constitution.
The final argument the President has made is that even if FISA was intended to
apply, and even if the AUMF didn’t override FISA’s procedures, he still had the
authority as Commander in Chief to disregard the law.
Now, I have spoken on the floor before about how the President believes he is
above the law and the Youngstown Sheet and Tube Company v. Sawyer case. In that
case, Justice Jackson described how the President’s power is at the “lowest
ebb” when he is acting in contravention to the will of the Congress.
This bill, again, makes it clear that the will of Congress is that there will be
no electronic surveillance inside the United States without a warrant, and it
makes clear that any electronic surveillance that is conducted outside of FISA
or outside of another express statutory authorization for surveillance is a
criminal act. It is criminalized. This is the strongest statement of exclusivity
in history.
The reason I am describing all this is to build a case of legislative intent in
case this is ever litigated, and I suspect it may well be.
So, finally, I wish to read into the Record the comments on exclusivity from a
June 19, 2008, letter that Attorney General Mukasey and Director of National
Intelligence McConnell wrote to the Congress. The letter recognizes that the
exclusivity provision in this bill “goes beyond the exclusive means provision
that was passed as part of FISA [in 1978].”
So they essentially admit we are taking exclusivity to a new high. Nevertheless,
they acknowledge that the provision in this bill “would not restrict the
authority of the government to conduct necessary surveillance for intelligence
and law enforcement purposes in a way that would harm national security.”
I said in February I could not support a bill without exclusivity. This is what
keeps history from repeating itself and another President from going outside the
law. I believe that with this language we will prevent it from ever happening
again.
Now, a comment on title II of the bill, which is the telecom immunity section.
This bill also creates a legal process that may–and, in fact, is likely to–
result in immunity for telecommunications companies that are alleged to have
provided assistance to the Government.
I have spent a great deal of time reviewing this matter. I have read the legal
opinions written by the Office of Legal Counsel at the Department of Justice. I
have read the written requests to telecommunications companies. I have spoken to
officials inside and outside the Government, including several meetings with the
companies alleged to have participated in the program.
The companies were told after 9/11 that their assistance was needed to protect
against further terrorist acts. This actually happened within weeks of 9/11. I
think we can all understand and remember what the situation was in the 3 weeks
following 9/11.
The companies were told the surveillance program was authorized and that it was
legal, and they were prevented from doing their due diligence in reviewing the
Government’s request. In fact, very few people in these companies–these big
telecoms–are actually cleared to receive this information and discuss it. So
that creates a very limited universe of people who can do their due diligence
within the confines of a given telecommunications company.
For the record, let me also address what I have heard some of my colleagues say.
At the beginning of the Terrorist Surveillance Program, only four Senators were
briefed. The Intelligence Committee was not, other than the Chairman and Vice
Chairman.
I am one who believes it is right for the public and the private sector to
support the Government at a time of need. When it is a matter of national
security, it is all the more important.
I think the lion’s share of the fault rests with the administration, not with
the companies.
It was the administration who refused to go to the FISA Court to seek warrants.
They could have gone to the FISA Court to seek these warrants on a program
basis, and they have done so subsequently.
It was the administration who withheld this surveillance program from the vast
majority of Members of Congress, and it was the administration who developed the
legal theories to explain why it could, in fact, go around the law.
So I am pleased this bill includes independent reviews of the administration’s
actions to be conducted by the inspectors general of the relevant departments.
All of that said, when the legislation was before the Senate in February, I
stated my belief that immunity should only be provided if the defendant
companies acted legally, or if they acted in good faith with a reasonable belief
that their actions were legal. That is what the law calls for.
I moved an amendment to require the court to review the written requests to
companies to see whether they met the terms of the law. That law requires that a
specific person send a certification in writing to a telecommunications company.
That certification is required to state that no court order is required for the
surveillance, that all statutory requirements have been met, and that the
assistance is required by the Government.
Unfortunately, my amendment was not adopted, but I continue to believe it is the
appropriate standard.
Now, the pending legislation does not assess whether the request made by the
Government was, in fact, legal, nor whether the companies had a good-faith and
objective belief that the requests were legal. What this bill does provide is a
limited measure of court review. It is not as robust as my amendment would have
provided, but it does provide an opportunity for the plaintiffs to be heard in
court, and it provides an opportunity for the court to review these request
documents.
I believe the court should not grant immunity without looking into the legality
of the companies’ actions. So if there is an amendment that does support this, I
would intend to vote for it.
But I believe the Record should be clear in noting that if this bill does become
law, in my view, it does not mean the Congress has passed judgment on whether
any companies’ actions were or were not legal. Rather, it should be interpreted
as Congress recognizing the circumstances under which the companies were acting
and the reality that we desperately need the voluntary assistance of the private
sector to keep the Nation secure in the future.
I believe this bill balances security and privacy without sacrificing either. It
is certainly better than the Protect America Act in that regard, and makes
improvements over the 1978 FISA law.
As I said, if a new bill is not in place by mid-August, the Nation will be laid
bare and unable to collect intelligence.
This bill provides for meaningful and repeated court review of surveillance done
for intelligence purposes. It ends, once and for all, the practice of
warrantless surveillance, and it protects Americans’ constitutional rights both
at home and abroad. It provides the Government with the flexibility it needs
under the law to protect our Nation. It makes it crystal clear that this is the
law of the land and that this law must be obeyed.
I yield the floor.
Sincerely yours,
Dianne Feinstein United States Senator
Further information about my position on issues of concern to California and the
Nation are available at my website http://feinstein.senate.gov/public/. You can
also receive electronic e-mail updates by subscribing to my e-mail list at
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