[国会记录：2008年6月24日（参议院）] [第S6006-S6007] FISA修正法案2008 KYL先生。主席先生，我今天起立发言赞成2008年这个FISA修正法案的通过是一个规律，我们的国家需要。由待定[页S6007]法案所做的最重要的变化是允许的海外目标直接和实时监控，尽快为他们在智力外商调查的过程中变得明显。FISA从未打算阻碍这些目标的监视，但2007年FISA法院判决解释FISA适用于那些通过美国路由甚至是外国对国外通报。由于在技术和电信行业主导地位的美国的变化，从阿富汗甚至打电话给巴基斯坦可以通过美国进行路由。其结果是，可以要求FISA顺序可以监测在美国以外的两个疑似基地组织成员之间的通信之前。该系统由海外监管实际上是不可能在许多情况下，造成丢失有价值的情报。我们打击基地组织和其他恐怖分子最好的工具就是智慧;这绝对是至关重要的，我们收集情报的任何可用。在2007年的夏天，国会颁布的美国代理人与保护美国法案监视能力在6个月恢复。 Today-- over 4 months after the PAA expired--Congress finally acts to extend this surveillance authority for another 4\1/2\ years. I am heartened to note that the Attorney General and the Director of National Intelligence both strongly support this bill and believe that it provides them with the tools they need to gather intelligence about America's foreign enemies. Critically, this bill allows immediate and real-time surveillance of foreign targets located overseas whenever the Justice Department and the intelligence community find that, without immediate surveillance, ``intelligence important to the national security of the United States may be lost or not timely acquired and time does not permit the issuance'' of a court order prior to such surveillance. This provision, in a new section 702(c)(2) of FISA, addresses the exact problem that intelligence agencies faced in 2007. Congress expects our intelligence agents to use every tool that is technologically available to monitor al-Qaida and those associated with it. With this reform, we make such surveillance possible. I also think that it is important that, in new section 702(i), the FISA Amendments Act allows pending surveillance certifications to be immediately amended to allow surveillance of new targets related to or growing out of previous surveillance. This should help to reduce the paperwork burden of FISA, allowing our agents to focus more time on monitoring the enemy and less on filling out forms. Also, the judicial review authorized by this section is appropriately limited and recognizes the intelligence community's primary role in deciding what foreign targets to monitor. The court's role is limited to reviewing whether certifications are procedurally proper and are accompanied by reasonable procedures to limit potential impact on U.S. persons. Thus, courts could block any obviously bad faith or improper use of foreign surveillance that might affect U.S. persons, but courts will not be second-guessing intelligence judgments, and should not be imposing procedures or making demands that will consume intelligence resources and divert agents from their primary mission. This limited role should also allow the FISA Court to decide these cases very quickly, minimizing the burden on both the intelligence community and on those judges who are assigned to the FISA Court. I should also note that this bill contains important provisions that will allow all of the lawsuits against telecommunications companies to be dismissed upon certification by the Attorney General. Foreign intelligence surveillance is a matter that our Constitution entrusts to the executive in consultation with Congress, not to private litigants and the judiciary. These lawsuits all should have been dismissed immediately; this bill will finally produce that result. Title II is a critical part of this bill that should have been enacted long ago. Frankly, I find it odd that much of the early criticism of this bill has been directed at this of all provisions. Those who are opposed to the President's efforts to monitor al-Qaida's communications after 9/11 should take their argument to the President, not to the private companies that patriotically complied with government requests to help this country. Monitoring of al-Qaida's electronic communications cannot be conducted without the cooperation of private companies. The general rule that private citizens acting in good faith to assist law enforcement are immune from suit has deep roots and serves important public policies. As Justice Cardozo noted in the 1928 case of Babbington v. Yellow Taxi Corporation, the rule ensures that ``the citizenry may be called upon to enforce the justice of the State, not faintly and with lagging steps, but honestly and bravely and with whatever implements and facilities are convenient and at hand.'' Finally, I should note that this bill's so-called ``exclusive means'' provision, like the similar provision in the 1978 FISA, is hortatory verbiage that obviously yields the Constitutional authority of the President. The FISA Court of Review, in its 2002 decision in In re Sealed Cases, made the point: The [Fourth Circuit in the Truong case], as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. . . . We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. Indeed, every administration since FISA was enacted--including the Carter administration--has concluded that Congress cannot take away the President's power to monitor foreign enemies of the United States without a warrant, and that to the extent that FISA purports to do so, it is unconstitutional. The Constitution's framers vested the executive with primary responsibility and authority to protect the United States from foreign attack. Section 102 repeats FISA's ``exclusive-means'' claims, yet provides in the same section of the bill, at subsection (c), an amendment to the immunity provisions for electronic communications service providers in 18 U.S.C. 2511(2) to require that certifications conferring immunity identify the ``specific statutory provision'' that allows the surveillance, but only if the certification ``for assistance to obtain foreign intelligence information is based on statutory authority.'' This provision, in the same section making claims of exclusive means, acknowledges that not all surveillance is based on statutory authority, but may, instead, be based on the executive's constitutional authority. If this nation again finds itself under attack as it did on September 11, those in charge of our security should not conclude from the exclusive-means language in section 102 that they may not act in any constitutionally appropriate way to protect this country. Finally, the ``sunset'' provision in section 403, which will repeal the authorities in the bill at the end of 2012, is problematic. As the Attorney General and the Director of National Intelligence have said: ``[t]he Intelligence Community operates more effectively when the rules governing our intelligence professionals' ability to track our enemies are firmly established.'' The need to modernize FISA has been extensively debated since 2006, including numerous hearings, briefings, and floor debates that ``involved the discussion in open settings of extraordinary information dealing with sensitive intelligence operations.'' As the Attorney General and the Director of National Intelligence have pointed out, ``[e]very time we repeat this process it risks exposing our intelligence sources and methods to our adversaries.'' Despite these flaws, the bill before us is needed. It is very similar to the bill that the Senate passed earlier this Congress and on which the House refused to act. It has passed the House by a 3-to-1 margin, and I expect that we will see a similar margin in the Senate, as the bill already appears to have gained the support of some Senators who opposed last year's bill. I look forward to the passage of this bill. ____________________