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Washington, D.C. –  Inserting a statement in today’s Congressional Record, U.S. Senator Ron Wyden (D-Ore.) a senior member of the Senate Select Committee on Intelligence, announced that he will object to any request to pass the recently reported Intelligence Authorization bill by unanimous consent due to the legislation’s inclusion of a three year extension of FISA Amendments Act (FAA) surveillance authorities.  

“As most of my colleagues remember, Congress passed the FISA Amendments Act in 2008 in an effort to give the government new authorities to conduct surveillance of foreigners outside the United States.  The bill contained an expiration date of December 2012, and the purpose of this expiration date was to force members of Congress to come back in a few years and examine whether these new authorities had been interpreted and implemented as intended,” Wyden wrote.  “I believe that Congress has not yet adequately examined this issue, and that there are important questions that need to be answered before the FISA Amendments Act is given a long-term extension.”

Among those important questions Wyden cited is the number of Americans whose communications have been secretly reviewed under the FAA.  Wyden and U.S. Senator Mark Udall (Col.) posed that question to the Director of National Intelligence earlier this month and were last week told that “it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority.”  Wyden and Udall offered an amendment during last week’s committee mark-up that would have required the Inspector General of the U.S. Department of Justice to review the implementation of the FISA Amendments Act in an attempt to estimate how many people inside the U.S. have had their private communication monitored by the Federal Government.  The Wyden-Udall amendment failed by a voted of 7-8.

“I regret that the amendment that Senator Udall of Colorado and I offered was not adopted, but I obviously plan to keep trying to get more information about the effects of this law,” wrote Wyden.  “I hope that I will find out that no law-abiding Americans, or at least very few, have had their communications reviewed by government agencies as a result of this law, but I believe that I have a responsibility to get concrete facts rather than just hope that this is not the case.  And I believe that it would be not be responsible for the Senate to pass a multi-year extension of the FISA Amendments Act until I and others who have concerns have had our questions answered.”  

As a matter of policy, Wyden publicly announces any formal objection he lodges with regard to nominees or legislation in a formal statement in the Congressional Record.  The text of Senator Wyden’s statement is below:

Statement of Senator Ron Wyden on Inclusion of FISA Amendments Act Extension in FY2012 Intelligence Authorization Bill
August 2, 2011 

M. President, I would like to briefly address S. 1458 the intelligence authorization bill for fiscal year 2012, which has now been reported by the Select Committee on Intelligence.  I know that the Chair and Vice Chair of the committee, Senator Feinstein and Senator Chambliss, along with their respective staff, have worked hard on this bill, and I support nearly every provision in it.  However, I strongly disagree with the decision to include a three-year extension of the FISA Amendments Act of 2008 in this bill, and it is my intention to object to any request to pass this bill by unanimous consent.  Consistent with my own policy and Senate rules, I am announcing my intention to object by placing a notice in the Congressional Record.
 
As most of my colleagues remember, Congress passed the FISA Amendments Act in 2008 in an effort to give the government new authorities to conduct surveillance of foreigners outside the United States.  The bill contained an expiration date of December 2012, and the purpose of this expiration date was to force members of Congress to come back in a few years and examine whether these new authorities had been interpreted and implemented as intended.

I believe that Congress has not yet adequately examined this issue, and that there are important questions that need to be answered before the FISA Amendments Act is given a long-term extension.  

The central section of the FISA Amendments Act, the part that is now section 702 of the Foreign Intelligence Surveillance Act itself, specifically stated that it was intended to address foreigners outside the United States, and it even required the Attorney General to develop procedures designed to make sure that any individuals targeted with this new authority are believed to be outside the United States.  So one of the central questions that Congress needs to ask is, are these procedures working as intended?  Are they keeping the communications of law-abiding Americans from being swept up under this authority that was designed to apply to foreigners?
 
I wanted to know the answer to this question, so Senator Udall of Colorado and I wrote to the Director of National Intelligence if it was possible to count or estimate the number of people inside the United States whose communications had been reviewed under section 702 of the FISA Amendments Act.  The response we got was prompt and candid.  The response said “it is not reasonably possible to identify the number of people located in the United States whose communications may have been reviewed under the authority” of the FISA Amendments Act.

 
I should be clear that I do not plan to accept this response as a final answer.  I understand that it may be difficult to come up with an exact count of the number of people in the United States whose communications have been reviewed, but I believe that Congress at least needs to obtain an estimate of this number, so that people can understand the actual impact of the FISA Amendments Act on the privacy of law-abiding Americans.
 
During the markup of the intelligence authorization bill, Senator Udall of Colorado and I proposed an amendment that would have directed the Inspector General of the Department of Justice to review the implementation of the FISA Amendments Act and attempt to estimate how many people inside the US have had their communications reviewed under this law since it was passed three years ago.  Our amendment also would have directed the Inspector General to examine other important aspects of the FISA Amendments Act, including the problem of recurring compliance violations, and report back to Congress within one year.
 
I regret that the amendment that Senator Udall of Colorado and I offered was not adopted, but I obviously plan to keep trying to get more information about the effects of this law.  I hope that I will find out that no law-abiding Americans, or at least very few, have had their communications reviewed by government agencies as a result of this law, but I believe that I have a responsibility to get concrete facts rather than just hope that this is not the case.  And I believe that it would be not be responsible for the Senate to pass a multi-year extension of the FISA Amendments Act until I and others who have concerns have had our questions answered.
 
I look forward to working with my colleagues to amend this bill, and I am hopeful that they will be willing to modify it address the concerns I have raised.  In the meantime, I should be clear that it is my intention to object to any request to pass the current version of S. 1458 by unanimous consent.