Senator Salazar's Explanation of His Recent "YES" Vote on FISA

Thank you for contacting me with regard to S.2248, the Foreign Intelligence Surveillance Act (FISA) Amendments Act of 2007. I appreciate hearing from you.

As a U.S. Senator, my primary responsibilities are to uphold the Constitution and protect the American people. These responsibilities have guided me during the recent Senate debate on reforming and modernizing the rules governing America’s surveillance and intelligence-gathering system.

As you know, S.2248 passed the Senate on February 12, 2008 by a vote of 68-29. While I was disappointed the Senate did not adopt several amendments that would have gone further in strengthening civil liberties protections, I ultimately supported final passage of the bill.

I believe S.2248 gives intelligence officials the tools they need to pursue foreign threats, and, furthermore, institutes stronger oversight mechanisms to preserve the privacy rights of American citizens. Specifically, S.2248:

· Declares that the FISA court is the sole authority for the approval of electronic surveillance procedures, in response to the Bush administration’s five-year warrantless surveillance program outside of FISA

· Implements a six-year sunset of the program to allow Congress to evaluate how the new authorities are carried out

· Requires FISA court approval of foreign targeting procedures for determining that the target of the surveillance is reasonably believed to be outside the United States

· Grants the FISA court oversight of the “minimization” procedures governing the protection of the identities and private information of U.S. citizens incidentally collected during the monitoring of a foreign target

· Requires FISA court approval, on an individual basis, of the targeting of Americans overseas based on the court’s review of whether there is probable cause to believe that the person is an agent of a foreign power

· Requires the FISA court to provide Congress with judicial opinions and interpretations pertaining to the new surveillance program

· Requires the Attorney General and the Director of National Intelligence to assess overall compliance with targeting and minimization procedures and submit their findings every six months to the FISA court, as well as the House and Senate Intelligence Committees.

Taken together, these reforms represent a significant improvement over previous FISA laws in terms of oversight and accountability.

During the debate, the Senate also addressed the issue of retroactive immunity for telecommunications companies. As you may know, in the wake of the September 11th attacks, it is alleged that a number of telecommunications companies in the United States were asked by the National Security Agency (NSA) to turn over the personal data of their American customers for examination without a warrant. Subsequently, a number of Americans have filed lawsuits against these companies for violating their Fourth Amendment right to privacy.

S.2248 as reported to the full Senate provides narrowly circumscribed, retroactive immunity to the telecommunications companies in question. In response to this, I cosponsored Senate Amendment 3858, which would have referred the lawsuits to the FISA Court for review. Under this approach, if the court determined that the companies acted in good faith and had a reasonable belief they were abiding by the law when they complied with the government’s requests, the lawsuits would have been thrown out of court; if not, they would have proceeded as planned. Unfortunately, this amendment did not garner enough support to be included in the final Senate bill.

S.2248 now awaits action in a House-Senate conference committee. Please rest assured that I will keep your thoughts in mind as my colleagues and I continue work on this legislation.

Again, thank you for taking the time to share your views.

Sincerely,

Ken Salazar
United States Senator