Statement Of Senator Patrick Leahy (D-Vt.),
Chairman, Senate Judiciary Committee,
In Support Of Amendment 3915,
To Limit The Use Of Unlawfully Obtained Information
February 11, 2008
The authorities and procedures in S.2248 would permit the FISA Court to
review government targeting and minimization procedures. If, however,
the Court finds certain aspects of those procedures to be inadequate –
even grossly inadequate – S. 2248 provides no authority to restrict the
use of information already collected using those procedures. That means
that the government would be free to access, use, and share information
about private communications that was collected in violation of the
law.
Senator Feingold’s amendment would ensure that the Court has the
authority to stop a continuation, and perhaps escalation, of the harm
caused by the government’s use of illegal procedures. This provision
would limit the government’s use and dissemination of illegally obtained
information if the FISA Court later determines that the procedures were
not reasonably designed to target people outside of the United States or
to adequately minimize the use of information about U.S. persons. It is
important to note that, under this provision, if the government acts to
address the Court’s concerns and correct these procedures it would then
be free to use and disseminate the information it acquired.
This is not a novel application of law under FISA. FISA’s existing
emergency provision holds that if the government begins emergency
surveillance without a warrant, and the FISA Court then determines the
surveillance to be unlawful, the government cannot use and disseminate
the information it acquired except under very limited circumstances.
Senator Feingold’s amendment simply applies these reasonable safeguards
to the new and broadly expanded authority we are now giving to the
government. This provision represents a crucial safeguard for the
protection of Americans’ privacy rights.
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