from a senator from Texas

Dear Mr. Evans:

Thank you for contacting me with your concerns about amendments to the Foreign Intelligence Surveillance Act of 1978 (FISA). As you know, FISA passed the Senate on July 9, 2008, and I appreciate having the benefit of your comments.

Gathering communications intelligence is one of America’s front lines of defense in the war on terror. As you may know, Congress passed the Protect America Act in August 2007, modernizing FISA to give intelligence professionals the tools they urgently need to gather information, while still protecting the civil liberties of Americans. Senator John Rockefeller introduced the FISA Amendments Act of 2007 (S. 2248) on October 26, 2007, to continue this vital work. S. 2248 creates an expanded role for the Foreign Intelligence Surveillance Court, empowering the court to have more scrutiny over surveillance procedures and acquisitions. Additionally, this legislation increases congressional oversight by strengthening reporting and auditing requirements by the Inspector General.

The changes to FISA under S. 2248 also provide civil immunity for communications carriers that assisted the government with surveillance in the past, as well as creating civil immunity for future assistance. Communications carriers are currently facing billions of dollars in lawsuits for their role in assisting the National Security Agency’s Terrorist Surveillance Program instituted after the September 11, 2001, terrorist attacks. This program worked to thwart future terrorist attacks by intercepting communications between suspected terrorists overseas and potential operatives within the United States. Though acting without a court warrant, the program was conducted under the President’s broad authority to protect and defend the nation. Communications carriers provided invaluable assistance, relying on official assurances about legality. While the process of litigation is integral to our system of laws, I believe it is unfair to punish the communications companies for patriotic compliance with the government’s war on terror.

Providing prospective civil immunity for communications carriers that assist government surveillance in the future is important to ensuring effective collection of intelligence. Communications technology has become so complex that our country needs the voluntary cooperation of carriers. Without it, our intelligence efforts will be severely debilitated. Providing immunity guarantees the needed cooperation of communications carriers who can rely on official assurances about necessity and legality. It is important to note that S. 2248 does not grant immunity to government officials.

S. 2248 overwhelmingly passed in the Senate Intelligence Committee, by a bipartisan vote of 13–2, and was passed by the Senate on February 12, 2008, by a bipartisan vote of 68–29. Unfortunately, this bipartisan Senate compromise was rejected by the House of Representatives, allowing FISA to expire on February 16, 2008, and leaving our nation’s intelligence community in the dark for a critical period of time.

In June 2008, the House of Representatives passed the FISA Amendments Act of 2008 (H.R. 6304), and on July 9, 2008, the Senate approved H.R. 6304 by a bipartisan vote of 69–28. I was pleased to see that members of Congress can work together in a bipartisan manner to improve our national security. H.R. 6304 currently awaits further consideration by President George W. Bush.

As a member of both the Senate Armed Services and Judiciary Committees, I am committed to ensuring that we appropriately balance our national security needs and the protection of our civil liberties. I believe that the amended FISA bill, including the immunity provision for communications carriers, strikes this much needed balance. I appreciate the opportunity to represent the interests of Texans in the United States Senate, and am thankful for your comments about this important legislation.

Sincerely,

(Senator X, we'll call him)