Foreign Intelligence Surveillance Act

CONGRESSIONAL RECORD
SENATE
June 16, 2004
FOREIGN INTELLIGENCE SURVEILLANCE ACT

Mr. DeWINE. Mr. President, I rise today because, frankly, I am alarmed. I am alarmed by bottlenecks and barriers blocking the ability of our law enforcement and intelligence agents to fight terrorism. These bottlenecks and barriers are hampering our law enforcement's ability to use the Foreign Intelligence Surveillance Act, known as the FISA statute. In setting up surveillance against foreign powers working inside the United States, all Americans should be concerned. All Americans should be concerned, frankly, as the FISA statute is one of the most important weapons we have to fight terrorism.

Bottlenecks in the Justice Department's process of FISA applications could mean if there were a terrorist attack being planned against Americans today, we might not know about it. We would not know about it because a FISA request simply did not get processed.

We would not know it because the bureaucracy in Washington, DC, simply did not get to the application in time, did not have the time or the people or the resources to process an agent's request allowing him or her to gather that pivotal piece of intelligence, that vital piece of information that very well could be the key to preventing a terrorist attack at home. That scares me, and that should scare every Member of this Senate, and that should scare every American.

Although the FBI has been more aggressive in submitting FISA requests since the September 11 terrorist attacks, the Department of Justice has been unable to keep pace with the resulting surge in applications. Here is what the staff of the independent 9/11 Commission tells us:

The application process . . . continues to be long and slow.
That process is still subject to "bottlenecks."

I was very concerned about that. So on May 20, the last FBI oversight hearing held by the Judiciary Committee, I asked Director Mueller how well he thought the FISA statute was being utilized, and this is what Director Mueller said:

We still have concerns. There is still frustration out there in the field in certain areas where, because we have had to prioritize, we cannot get to certain requests for FISA as fast as perhaps we might have in the past.

What does this mean? Does that mean it is now taking longer post-9/11 to process certain FISA requests? If that is the case-and it is-that is a shocking statement and one that is certainly disconcerting and also downright frightening.

Later in a Judiciary Committee hearing just last week, Attorney General Ashcroft made equally troubling statements. I told him I felt it was dangerous to have to prioritize FISA requests because we can never know what kind of information we will get from these warrants. Even our best guess is still just a guess, and this is what the Attorney General said:

. . . we are prioritizing among FISA applications . . . so that at least the most promising of those applications are the ones that would be first attended to, but frankly, it is not easy always to know where you are going to get the best intelligence, and it is not a situation where I am confident in saying, "Oh, well, we do not have to worry about that one."

The Attorney General was very candid. He was very honest, and he said it very well. You never can be sure where a promising lead will take you or which lead will be the one lead that uncovers the information that will save many lives. They have to prioritize. To have to prioritize, to have to pick and choose among these leads, is very risky and dangerous business. It is almost this kind of Russian roulette. We should not be in that business. We should not have to do it.

The Justice Department should be able to look at each FISA request individually and do whatever is necessary to process that request, not prioritize it, not just put it higher up in the pile, but actually process it immediately so that the court can issue a warrant and agents can go about the business of catching terrorists.

This is a very real problem we have. So I say to the Justice Department, you have to put more resources into this. You have to do a better job. Of all that you do in the Justice Department, what could be more important? Do you need more FISA lawyers at Justice? Do you need more people in this unit? If you do, then put them there. Do you need more FISA training for agents?

Do you need more resources? How far behind are you in the FISA process? These are all questions that the Justice Department needs to answer right now. No excuses. Our national security is at stake.

I thank the Chair, and I yield the floor.