2/13/2008 — 

MR. REED: Madam President, we have had a lengthy debate, and in the end I decided to vote against final passage of S. 2248, the FISA Amendments Act of 2007.

First, I commend Senators Rockefeller and Bond for recognizing immediately that the Protect America Act, passed in August, needed modifications. S. 2248 does improve FISA procedures. The bill increases the role of the FISA Court with respect to targeting. It mandates FISA Court review and approval of the minimization procedures governing the protection of identities and nonpublic information about U.S. persons. This bill also provides statutory rules for the use of information acquired under it.

However, when S. 2248 came before the full Senate for debate, I, and many of my colleagues, believed that additional protections and clarifications could and should be added. But it soon became clear that all such measures would be defeated.

I was particularly disappointed that Senator Feinstein's amendment on exclusivity did not pass. I believe it is very important to reiterate that FISA is the exclusive means for conducting surveillance on Americans for foreign intelligence purposes. I would have thought that every member of the Senate would have been interested in clarifying what the administration was authorized to do under the laws that Congress passes rather than allowing the administration to boldly and erroneously assert authorities from the Authorization for the Use of Military Force against al-Qaida and the Taliban. But unfortunately I was wrong.

I also admit that I had serious concerns about granting retroactive immunity to telecommunications companies for actions they may or may not have taken in response to administration requests that may or may not have been legal. One of my concerns is regarding the accessibility of information.

First, my colleagues on the Judiciary Committee and Intelligence Committee were allowed to read the necessary documents only after extensive negotiations with the administration. I, and the rest of my Senate colleagues who are not on those committees, were denied access to those documents.

In addition, the telecommunications companies who have been named in several lawsuits have been prohibited by the Government from providing any information regarding this issue to the courts, to the plaintiffs, to Members of Congress, or to the public. Yet we were asked to blindly vote for retroactive immunity, which is something I simply could not do. Therefore I supported Senator Dodd's amendment to strike immunity, but it did not pass.

I was then willing to consider some compromise approaches, such as the Specter and Whitehouse amendment, which would have substituted the Government for the telecommunications companies in civil suits, or Senator Feinstein's amendment, which would have provided for the FISA Court's review of the telecommunications companies to determine if immunity should apply. However, neither of these amendments was able to secure enough votes to pass. At the end of day, retroactive immunity remained in the bill, setting what I believe could be a dangerous precedent.

S. 2248 is indeed an improvement over the Protect America Act. But in my judgment, it still did not provide enough protections to American citizens and did not provide ample justification for retroactive immunity for telecommunications companies. I therefore voted to oppose the bill. I hope to continue to work with my colleagues to pass the modifications I believe are needed.