Washington, D.C. -- I would like to take a few minutes today to explain why I joined the majority of my colleagues in both the House and Senate in supporting the Foreign Intelligence Surveillance Act (FISA). The measure passed the House of Representatives by a vote of 293-129 on June 20 and the Senate by a vote of 69-28 on July 9. The bill was signed into law by the President on July 10.

FISA was created in 1978 to establish a process for obtaining a court order to conduct foreign intelligence surveillance in the United States. Over time, dramatic changes in telecommunications technology reduced the effectiveness of the law, causing our intelligence community to miss a significant amount of foreign intelligence that we should have been collecting in order to protect our country. Rather than asking the Congress to modify the law to restore its effectiveness and better balance the need to protect our country and the safety of our citizens with the need to preserve our civil liberties, the Bush administration essentially chose to ignore the law in the days following the attacks of 9-11.

Almost immediately after those attacks occurred, the Administration reached out to a number of America’s major telephone companies and asked them to help intercept communications between sources in our country and terrorist suspects located overseas without approval of the FISA court. When those companies questioned the legality of doing so, they received written directives from our government’s senior national security and law enforcement officials that their cooperation was vital, as well as lawful and constitutionally sound. As a result, most of the telephone companies who had been contacted agreed to help.

In December 2005, the New York Times reported on the existence of the National Security Agency’s “terrorist surveillance program.” Partly as a result of the public disclosure of the program, in January 2007, the program was placed under the supervision of the FISA court.  After the warrantless surveillance program was publicly disclosed at the end of 2005, many of the telephone companies that may have participated in the program were sued by civil liberties groups and other individuals who argue that the phone companies violated the privacy rights of millions of Americans by turning over private information to the federal government.  It is estimated that close to 40 such lawsuits have been filed.

Because national security laws prohibit individuals and companies from revealing details related to secret national security programs, these telephone firms are not legally permitted to produce documentation showing that their participation in this surveillance program was authorized.  Effectively, these companies are unable to fully defend themselves in court. In addition, the defendant phone companies are concerned that they will face costly financial liabilities if these lawsuits are successful. Finally, significant concerns have been raised about the chilling effect on lawful voluntary cooperation in the future on the part of U.S. companies in the fight against terrorism if these suits prove successful. I believe that those concerns are legitimate.

For the better part of the last year, we have debated in Congress and with the Administration about whether to allow these lawsuits to go forward. In the end, a majority of us in the Congress concluded that it was not fair to allow the companies, who agreed to cooperate after being reassured by senior law enforcement officials that their cooperation was both lawful and constitutionally sound, to be sued if the following conditions are met. Under the terms of the final compromise FISA bill that has been adopted, a federal district court hearing a case against a phone company will decide whether the Attorney General’s certification attesting that the liability protection standard has been met and is supported by “substantial evidence.” In making that determination, the court will have the opportunity to examine the highly classified letters to the providers that indicated the President had authorized the activity and that it had been determined to be lawful. The plaintiffs and defendants will have the opportunity to file public briefs on legal issues and the court should include in any public order a description of the legal standards that govern the order. My legal counsel has advised me that most phone companies that participated in the warrantless wiretapping program after 9-11 will likely be able to obtain retroactive immunity under this compromise. Time will tell.

With that said, however, I believe that the issue of immunity has taken on a significance that goes beyond its actual importance. This is not to suggest that immunity is unimportant, but that a number of more critical aspects of this FISA bill seem to have been overlooked. In my view, those portions of the bill matter much more.

Rather than looking backward, at immunity, I feel that our real focus now should be on what this FISA legislation accomplishes going forward.  I believe that this legislation comes very close to striking the right balance in providing our intelligence networks with the tools they need to protect our country without diminishing our civil liberties. The Administration has overreached on this front before. That is why the FISA legislation recently enacted is a significant improvement over current law and will help ensure that neither this Administration – nor the next one – will overreach again.

Specifically, the new FISA law contains a number of improvements that strengthen civil liberties and will help prevent any future abuse of executive authority. First, the new law makes it crystal clear that FISA is the “exclusive” means to conduct surveillance, ensuring that neither this President nor our next President can go around the law. The inclusion of this provision is a major improvement over the old FISA law, since it will prevent any recurrence of the warrantless wiretapping program that has been the main concern of those who oppose retroactive immunity for phone companies.

Second, under the new FISA law, the special FISA court must approve all surveillance and targeting procedures involving domestic surveillance before any surveillance can actually begin, to ensure that they are consistent both with the Fourth Amendment and with the law. The new law requires an individualized, FISA court-approved warrant to conduct surveillance targeted at communications between Americans and those overseas. The new law expands existing FISA protections to also protect Americans abroad. These provisions mark a significant improvement over earlier versions of this legislation, which limited the FISA Court to after-the-fact review of surveillance that was already ordered by the Attorney General and the Director of National Intelligence.

Third, the new law expressly prohibits “reverse targeting.” Reverse targeting occurs when the NSA uses the authority granted under FISA to intercept foreign communications without an individual warrant if the true purpose is to spy on a particular person in the United States.  I supported Senator Russ Feingold (D-WI) and others’ efforts to make sure that a prohibition on reverse targeting was included in the final version of the compromise FISA legislation.

Fourth, the new FISA legislation enhances oversight by Congress. The inspectors general of the Justice Department, the Department of Defense, and our intelligence agencies are required, under the new law, to conduct comprehensive reviews and issue reports that will provide the relevant congressional committees with the information that they will need to conduct needed oversight going forward.

Fifth, the new law permits emergency surveillance only if the Attorney General and the Director of National Intelligence make a determination that exigent circumstances exist because “without immediate implementation of an authorization, intelligence important to the national security of the United States may be lost or not timely acquired.”

Sixth and finally, the new FISA law establishes a shorter sunset of four and a half years—instead of six years, as was originally proposed. This will give Congress and the American people the opportunity to review how the new FISA law is working, and it will give us the opportunity to make any necessary changes within a few years.

For all of these reasons, which – to me at least – deserve greater focus than the retroactive immunity issue, I chose to support this legislation, although I realize that it is not perfect.  Instead, in my view, it is the best bill that we can agree to at this time, and I believe that it reflects a reasonable middle ground between the genuine needs of our intelligence agencies and the legitimate privacy interests of every American citizen.  This legislation is much more desirable than the alternative: a return to the obsolete provisions of the original, 1978 version of FISA that provided the Bush Administration the opportunity to conduct warrantless wiretapping in the first place.  I believe that this compromise represents the best chance we have today to protect both our national security and our civil liberties.

I pledge to work with my colleagues in the next Congress and with the next administration to make additional improvements to this legislation that our country and our citizens may need and deserve.