I have the great pleasure to work with over 100,000 dedicated public servants at the Department of Justice. I admire their dedication to the pursuit of justice for all Americans. The Department’s many accomplishments are, in reality, their accomplishments. As Attorney General, I have worked with these fine men and women to keep our country safe from terrorists, our neighborhoods free from violent crime and, our children safe from predators.
As my written statement explains in more detail, when it comes to keeping our neighborhoods safe and protecting our children the Department has made great progress. In my brief remarks this morning, I want to focus on the Department’s number one priority—keeping our country safe from terrorists—and the urgent need for more help from Congress in this fight. As the recent National Intelligence Estimate as well as the attempted car bombings in London and Scotland demonstrate, the threat posed to America and its allies by Al Qaeda and other terrorist groups remains very strong.
To respond effectively to this threat, it is imperative that Congress modernize the Foreign Intelligence Surveillance Act of 1978, known as FISA. Doing so is critically important to intelligence-gathering and makes plain sense. When Congress drafted FISA in 1978, it defined the statute’s key provisions in terms of telecommunications technologies that existed at that time. As we all know, there have been sweeping changes in the way we communicate since FISA became law, and these changes have had unintended consequences on FISA’s operation. For example, without any change in FISA, technological advancements have actually made it more difficult to conduct surveillance on suspected terrorists and other subjects of foreign intelligence surveillance overseas.
In April, at the request of the Senate Select Committee on Intelligence, the Director of National Intelligence transmitted a comprehensive FISA modernization proposal to Congress. The proposal builds upon thoughtful bills introduced during the last Congress. The bill would accomplish several key objectives.
Most importantly, the Administration’s proposal restores FISA’s original focus on protecting the privacy of U.S. persons in the United States. FISA generally should apply when conducting surveillance on those in the United States, but it should not apply when our Intelligence Community targets persons overseas. Indeed, it was advancements in technology and not any policy decision of Congress that resulted in wide-scale application of FISA and its requirement to go to court to overseas targets. This unintended consequence clogs the FISA process and thereby hurts national security and civil liberties. As amended, FISA’s scope would focus on the subject of the surveillance and the subject’s location, rather than on the means by which the subject transmits a communication, or the location where the Government intercepts the communication. FISA would become “technology neutral;” its scope would no longer be affected by changes in communications technologies.
The bill would also fill a gap in current law by permitting the Government to direct communications companies to assist in the conduct of lawful communications intelligence activities that do not constitute “electronic surveillance” under FISA. This is a critical provision that is a necessary companion to any change in FISA’s scope. Importantly, the Administration’s proposal would provide a robust process of judicial review for companies that wish to challenge these directives.
The Administration’s proposal would also provide protections from liability to companies that are alleged to have assisted the Government in the wake of the September 11 terrorist attacks.
The bill also streamlines the FISA application process to make FISA more efficient, while at the same time ensuring that the FISA Court has the information it needs to make the probable cause finding required.
Finally, the Administration’s proposal would amend the statutory definition of “agent of a foreign power” to ensure that it includes groups who are engaged in the international proliferation of weapons of mass destruction or who possess or are expected to transmit or receive foreign intelligence information while in the United States.
FISA modernization is critically important and we urge the Senate to reform this critical statute as soon as possible. I am hopeful that this is an area where we can work together with the Congress and this Committee. I think we can find common ground on the central principles underpinning the Administration’s proposal—and, in particular, on the fact that we should not extend FISA’s protections to terrorist suspects located overseas.
We already have had several helpful sessions with the Intelligence Committees in the Senate and House on this issue. We look forward to continue to work with the Senate and this Committee on this important endeavor.