It means that the Foreign Intelligence Surveillance Act is the only, the exclusive, means for conducting electronic surveillance inside the United States for foreign intelligence purposes.
The exclusivity language in this bill is identical in substance to the amendment I offered in February, which received 57 votes in this Senate. It is section 102 of this bill.
This language reiterates what FISA said in 1978, and it goes further. Here is what this bill says:
Never again will a President be able to say that his authority--or her authority, one day, I hope--as Commander in Chief can be used to violate a law duly enacted by Congress.
Never again can an Executive say that a law passed to do one thing--such as use military force against our enemies--also overrides a ban on warrantless surveillance. The administration has said that the resolution to authorize the use of military force gave this President the right to go around FISA.
Never again can the Government go to private companies for their assistance in conducting surveillance that violates the law.
Now, this administration has a very broad view of Executive authority. Quite simply, it believes that when it comes to these matters, the President is above the law. I reject that notion in the strongest terms.
I think it is important to review the recent history with this administration to demonstrate why FISA exclusivity is so important.
At the very beginning of the Terrorist Surveillance Program, John Yoo, at the Office of Legal Counsel, wrote in a legal opinion that:
.... [u]nless Congress made a clear statement in the Foreign Intelligence Surveillance Act that it sought to restrict presidential authority to conduct warrantless searches in the national security area--which it has not--then the statute must be construed to avoid [such] a reading.
That was the argument. I believe it is wrong. Congress wrote FISA in 1978 precisely in the field of national security; there are other, separate laws that govern wiretapping in the criminal context. In fact, the Department of Justice has repudiated Yoo's notion.
But if the Department admitted that FISA did apply, it found another excuse not to take the Terrorist Surveillance Program to the FISA Court.
The Department of Justice developed a new, convoluted argument that Congress had authorized the President to go around FISA by passing the authorization to use military force against al-Qaida and the Taliban.
This is as flimsy as the last argument.
There is nothing in the AUMF that talks about electronic surveillance or FISA, and I know of not one Member who believed we were suspending FISA when we authorized the President to go to war.
But that is another argument we lay to rest with this bill. Here is how we do it. We say in the language in this bill that FISA is exclusive. Now, here is the major part: Only a specific statutory grant of authority in future legislation can provide authority to the Chief Executive to conduct surveillance without a FISA warrant.
