Illinois Senator Richard Durbin's Thoughts on FISA Amendments Act of 2008

June 25, 2008






*Edited out my full name and address*




Thank you for your message regarding the surveillance of American citizens by the National Security Agency (NSA). I appreciate hearing from you on this important issue and share your concerns.



Protecting both the security and the freedom of the American people is among my highest priorities. We must ensure that the federal government defends the people of the United States from external threats while preserving the civil liberties that have helped make the United States the greatest and most enduring democracy in the world.



President Bush authorized the NSA to conduct warrantless electronic surveillance of communications made by American citizens living within the United States. At the time of the President's authorization, the Foreign Intelligence Surveillance Act (FISA) required the government to seek a warrant from a special court in order to conduct electronic surveillance of communications between American citizens and anyone outside the country. The NSA did not obtain approval from the FISA court or from any other court before initiating its domestic surveillance program.



For most of its existence, the NSA's program has operated without meaningful oversight. Few members of Congress were briefed about the program until its existence was revealed by the media, and those members who were aware were sworn to secrecy. The majority of the members of Congress still have not been fully briefed about the program's operational details. The Administration also has shut down its own Justice Department investigation into the NSA's program. In essence, the Administration has attempted to operate this program without any supervision or oversight. The lack of a mechanism for correcting potential abuses in the program undermines our Constitutional system of checks and balances and raises serious concerns about the possibility of excessive intrusion.



Congress has tried to work with Administration officials to update FISA in light of technological advances in communications. Too often, however, the Administration has taken advantage of the program's secrecy in its negotiations with Congress. In August 2007, the Administration proposed amending FISA through legislation known as the Protect America Act. I voted against the measure because I believed the bill provided too much opportunity for abuse by the NSA and other intelligence officials. Nonetheless, Congress passed the bill and the President signed it into law.



Congress currently is engaged in a debate about the appropriate scope of FISA. At the center of this debate is the issue of whether telecommunications companies that assisted in illegal surveillance should receive retroactive immunity from prosecution.



I oppose retroactive immunity for these companies and supported an amendment to the FISA Amendments Act of 2008 (S. 2248) that would have prevented them from obtaining retroactive immunity. This amendment, however, was unsuccessful. After the amendment failed, I voted against the bill, but it passed by a vote of 68-29.



The House of Representatives has refused to support any similar bill containing a retroactive immunity provision, and negotiations on this matter are continuing. Any legislation amending FISA should hold telecommunications companies responsible for their unlawful actions. The legislation should bring to light the role telecommunications companies played in the Administration's unlawful attempts to listen in on the communications of American citizens.



When the President and his Administration order surveillance of American citizens, these actions must be conducted in a manner consistent with the rule of law and the Constitution's commitment to civil liberties. I am deeply concerned about the manner in which the Executive Branch has initiated and conducted the NSA surveillance programs. I will keep your thoughts in mind as Congress continues to debate this issue.



Thank you again for contacting me. Please feel free to keep in touch.


Sincerely,




Richard J. Durbin

United States Senator



RJD/td