[Congressional Record Volume 153, Number 127 (Friday, August 3, 2007)]
[Senate]
[Pages S10861-S10872]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      PROTECT AMERICA ACT OF 2007

  Mr. REID. Mr. President, I ask unanimous consent that the Senate now 
proceed to debate concurrently S. 2011, now at the desk, and S. 1927, 
as amended with the changes now at the desk; that there be 60 minutes 
of debate equally divided between the two leaders or their designees; 
that no amendments or motions be in order with respect to either bill; 
that at the conclusion or yielding back of time, the bills each be read 
a third time and the Senate vote on passage of S. 1927, as amended, to 
be followed by a vote on passage of S. 2011; that if either bill fails 
to achieve 60 votes, then the vote on passage be vitiated and the bill 
be placed on the calendar in the case of S. 2011 or returned to the 
calendar in the case of S. 1927, as amended.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       A bill (S. 2011) cited as the ``Protect America Act of 
     2007''.
       A bill (S. 1929) to amend the Foreign Intelligence 
     Surveillance Act of 1978 to provide additional procedures for 
     authorizing certain acquisitions of foreign intelligence 
     information and for other purposes.

  The amendment (No. 2649) to S. 1927 is as follows:

                (Purpose: To provide a sunset provision)

       At the end, add the following:
       (c) Sunset.--Except as provided in subsection (d), sections 
     2, 3, 4, and 5 of this Act, and the amendments made by this 
     Act, shall cease to have effect 180 days after the date of 
     the enactment of this Act.
       (d) Authorizations in Effect.--Authorizations for the 
     acquisition of foreign intelligence information pursuant to 
     the amendments made by this Act, and directives issued 
     pursuant to such authorizations, shall remain in effect until 
     their expiration. Such acquisitions shall be governed by the 
     applicable provisions of such amendments and shall not be 
     deemed to constitute electronic surveillance as that term is 
     defined in section 101(f) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801(f)).

  Mr. REID. Mr. President, I ask on our time that Senator Rockefeller 
be given 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I thank the distinguished majority 
leader and the distinguished Presiding Officer.
  Mr. President, the Rockefeller-Levin bill before the Senate will 
provide the Director of National Intelligence, Mike McConnell, the 
temporary authorities he needs to expand his ability to collect time-
sensitive intelligence against foreign targets as the Congress 
continues to work on a more lasting effort to reform the Foreign 
Intelligence Surveillance Act, or FISA, after 6 months has passed.
  I wish to make this very clear. The Rockefeller-Levin bill is the 
bill of the Director of National Intelligence, who was appointed by the 
President to be in charge and make all decisions with respect to this 
matter. In the statement DNI McConnell put out at 4:39 this evening, he 
said:

       I urge Members of Congress to support the legislation I 
     provided last evening to modify FISA and equip our 
     intelligence community with the tools we need to protect our 
     Nation.

  Mr. President, I ask unanimous consent to have printed in the Record 
the DNI's full statement at the conclusion of my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. ROCKEFELLER. He is talking about our bill, the bill I am now 
talking about. The Rockefeller-Levin bill is the bill the DNI is 
referring to in his statement. I am not shy about saying that; I am 
proud of it. The bill he provided to us last evening--that is our bill, 
not the other one, our bill--is not the Bond bill that was filed 2 days 
ago. It is our bill.
  Our bill takes the DNI's preferred bill and modifies it in a limited 
number of ways to make it stronger without in any way diminishing the 
fundamental intelligence authorities the DNI needs. Our bill includes a 
sunset provision of 6 months, the same sunset provision or period that 
is contained in the Bond bill, I might add, and we are told that the 
DNI accepted. In fact, he has told us specifically he accepts it.
  Our modified DNI bill--Director of National Intelligence--would allow 
our intelligence community to begin the surveillance of terrorist 
suspects, targets located overseas, immediately upon the signing of the 
bill, even if those targeted calls enter the United States. In other 
words, you start immediately in the collection. Why is this? Because 
the collection is not complete. We are not going in all

[[Page S10862]]

places we should be, and that is the national requirement because of 
various warnings that have been issued. So there is no delay--immediate 
collection--provided there has been a determination by the Attorney 
General and the DNI that the target is foreign.
  The only requirement in this bill on the collection is the 
requirement that the Foreign Intelligence Surveillance Court must be 
presented, for its review and approval, the Attorney General's 
guidelines on how the determination is to be made that targets of 
surveillance are overseas. So the Foreign Surveillance Intelligence 
Court remains very much a part of our bill, the bill the DNI prefers. 
This process of court review and authorization of procedures--not 
individual targeting determinations but a straightforward review that 
the procedures are reasonable--is at the heart of both the DNI's bill 
and ours.
  While the DNI proposal of last night sets forth a 90-day period 
during which this intelligence collection can take place before the 
court needs to issue another authorizing of the collection, our bill 
modifies the time involved in this process--we thought that was too 
long--which we believe will be relatively straightforward and 
noncontroversial, so that the application, including the guidelines, is 
submitted to the FISA Court within 10 days after surveillance begins 
and that the court must act within 30 days, which the court could then 
extend if additional time is, in fact, needed.
  All during this 30-day period of application submission and court 
review, the collection against foreign targets continues. I keep making 
that point because it was very hard for people to come to terms with 
that. This is not case-by-case review. Methods are established, 
authority is given, and collections can continue.
  Moreover, once the court approves the guidelines, the Attorney 
General is not required to return to the court for further approval for 
the remainder of the 6-month period of this legislation.
  This process provides minimal and yet essential oversight while not 
inhibiting or delaying the intelligence collection from proceeding. The 
Rockefeller-Levin bill accepts the DNI-requested authority to proceed 
during this FISA Court review.
  The Bond bill, on the other hand--and I greatly respect and have 
strong affection for my vice chairman, but we have competing bills, and 
let the difference be known. The Bond bill, on the other hand, provides 
a weak and practically nonexistent court review of the procedures for 
how to determine that a target is foreign and not American. The Bond 
bill would not require the Attorney General to submit the application 
and guidelines in the FISA Court until 4 months into the 6-month life 
of the bill, and then the Bond bill would not require court approval 
until 6 months has gone by.
  In other words, under the Bond bill, court approval of these simple 
and straightforward guidelines on how the Attorney General would 
determine whether a target is indeed foreign, guidelines that DNI has 
told me personally exist already--let me repeat, guidelines that he has 
said exist already--the guidelines that would have to exist before 
collection could begin in the first place for the surveillance to be 
legal under the Bond bill.
  These guidelines would not have to be submitted until 4 months into 
the 6-month life of the bill and would not have to be approved by the 
court until the last day that the law would be in effect.
  Is that meaningful court review over what is a straightforward matter 
of court review and can easily be handled within 30 days? It is, of 
course, not, and is, frankly, a farce.
  The Rockefeller-Levin modified DNI bill makes sure the Attorney 
General has guidelines in place to address the concerns of many, 
including our intelligence officials, that surveillance of foreign 
targets not inadvertently result in the reverse targeting of Americans 
and their communications based on innocent communications swept up 
between Americans and individuals overseas. Our modified DNI bill also 
states right up front that a court order is not required for the 
surveillance of foreign-to-foreign communications, even if the 
interception of the communication occurs in the United States.
  The DNI and others have made a huge point about keeping the 
surveillance of foreign-to-foreign communications outside the FISA 
process, and I agree. The Rockefeller-Bond bill made clear that this is 
the case.
  I could spend additional time explaining why the Bond bill falls 
short of the bill that the DNI asked us to pass, in public, earlier 
this evening. I could spend additional time explaining the merits and 
protections contained in our bill. But time has run out.
  Before us now is a very simple question, and I say this with some 
heat: Will the Senate pass a bill that the DNI wants, a bill that gives 
him the collection tool he needs for the next 6 months, and then we 
review the whole process again, a bill which both Republicans and 
Democrats can support and can rally around, to clearly demonstrate that 
we put national security above politics and that we are ready to break 
with the partisan gridlock of the past and produce results, results 
which give all Americans some comfort that we have our priorities 
straight? And we do.
  I urge my colleagues to support the Rockefeller-Levin modified DNI 
bill, and I close, with some lack of subtlety, with the words of the 
DNI earlier this day:

       I urge Members of Congress to support legislation I 
     provided last evening to modified FISA and equip our 
     intelligence community with the tools we need to protect our 
     Nation.

  That is our bill; not their bill--our bill. Passage of the 
Rockefeller-Levin bill--not the Bond amendment, our bill--would give 
the DNI the tools he needs with the necessary court review and 
oversight as we continue over the next 6 months on more legislation to 
reform FISA.

                               Exhibit 1


                            Director of National Intelligence,

                                   Washington, DC, August 2, 2007.

             Statement by Director of National Intelligence

     Subject: Modernization of the Foreign Intelligence 
         Surveillance Act (FISA)
       I greatly appreciate the significant time many Members of 
     the Senate and the House of Representatives have taken to 
     discuss with me the urgent need to modernize FISA. I also 
     appreciate the bipartisan support for ensuring the 
     Intelligence Community can effectively collect the necessary 
     intelligence to protect our country from attack. In view of 
     the significance of this issue, its impact on the 
     Intelligence Community's ability to be effective and the 
     continuing dialogue to come to closure on an effective bill, 
     it is important for me to discuss the essential provisions 
     needed by the Intelligence Community.
       We must urgently close the gap in our current ability to 
     effectively collect foreign intelligence. The current FISA 
     law does not allow us to be effective. Modernizing this law 
     is essential for the Intelligence Community to be able to 
     provide warning of threats to the country.


                        Critical Changes Needed

       First, the Intelligence Community should not be required to 
     obtain court orders to effectively collect foreign 
     intelligence from foreign targets located overseas. Simply 
     due to technology changes since 1978, court approval should 
     not now be required for gathering intelligence from 
     foreigners located overseas. This was not deemed appropriate 
     in 1978 and it is not appropriate today.
       Second, those who assist the Government in protecting us 
     from harm must be protected from liability. This includes 
     those who are alleged to have assisted the Government after 
     September 11, 2001 and have helped keep the country sate. I 
     understand the leadership in Congress is not able to address 
     before the August recess the issue of liability protection 
     for those who are alleged to have helped the country stay 
     safe after September 11, 2001. However, I appreciate the 
     commitment of the congressional leadership to address this 
     particular issue immediately upon the return of Congress in 
     September 2007.


         Provisions that Harm Intelligence Community Operations

       The Intelligence Community should not be restricted to 
     effective collection of only certain categories of foreign 
     intelligence when the targets are located overseas. We must 
     ensure that the Intelligence Community can be effective 
     against all who seek to do us harm.
       The bill must not require court approval before urgently 
     needed intelligence collection can begin against a foreign 
     target located overseas. The delays of a court process that 
     requires judicial determinations in advance to gather vital 
     intelligence from foreign targets overseas can in some cases 
     prevent the rapid gathering of intelligence necessary to 
     provide warning of threats to the country. This process would 
     also require in practice that we continue to divert scarce 
     intelligence experts to compiling these court submissions. 
     Similarly, critical intelligence gathering on foreign targets 
     should not be halted while court review is pending.
       However, to acknowledge the interests of all, I could agree 
     to a procedure that provides for court review--after needed 
     collection has begun--of our procedures for gathering foreign 
     intelligence through classified

[[Page S10863]]

     methods directed at foreigners located overseas. While I 
     would strongly prefer not to engage in such a process, I am 
     prepared to take these additional steps to keep the 
     confidence of Members of Congress and the American people 
     that our processes have been subject to court review and 
     approval.
       I appreciate the President's and the congressional 
     leadership's commitment to provide the Intelligence Community 
     the necessary tools to protect our country and keep us safe 
     from those who seek us harm. My most solemn duty is to 
     protect America, provide warning, and ensure that our 
     Intelligence Community acts within our Constitution and laws.

  The PRESIDING OFFICER. Who yields time? The majority leader.
  Mr. REID. Mr. President, before my distinguished friend leaves the 
floor, I just spoke with Senator Leahy. He does not want his name as a 
sponsor. He is supportive of the deal, but he thinks it should be 
Rockefeller-Levin.
  I yield.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I yield myself 5 minutes. First, before my 
good friend, the chairman of the Intelligence Committee leaves the 
floor, through the Chair, may I address the chairman of the 
Intelligence Committee. The Director of National Intelligence is 
sitting right off the floor here, and he has not seen--he has just seen 
your bill. He does not support it. I ask if the chairman of the Intel 
Committee would step outside and talk to the Director of National 
Intelligence to see whether, in fact, he does or does not support the 
Rockefeller bill or the bill that we introduced on behalf of the DNI, 
which is now pending as amendment No. 1927.
  Mr. ROCKEFELLER. Has the distinguished vice chairman asked me a 
question?
  Mr. BOND. Yes. Would you be willing to step off the floor to ask the 
DNI?
  Mr. ROCKEFELLER. I don't need to. The head of National Intelligence 
has made it very clear and has issued a public statement that he 
supports our bill. He says:

       I reviewed the proposal that the House of Representatives 
     is expected to vote on this afternoon to modify the Foreign 
     Intelligence [et cetera]. The House proposal is unacceptable, 
     and I strongly oppose it. [et cetera] I urge Members of the 
     Senate to support. . . .

  Mr. BOND. I, at this time, reclaim my time and thank the chairman for 
his answer. Let me tell you, none of us have seen this bill that is a 
total new draft of the measure until just a few minutes ago, and we are 
absolutely stunned that this bill adds new burdens to the already 
overburdened process of collecting against foreign targets. This bill 
says it can only apply to communications between foreign persons 
without a court order. You can't tell if it is a communication between 
foreign persons when you target a foreign source because you don't know 
with whom that person is communicating. That is why there are so many 
burdens now on the FISA Court.
  The DNI has said explicitly--he has told us that he opposes the 
Rockefeller-Levin bill. The DNI has stated that the bill that Senator 
McConnell and I offered, S. 1927, which we filed on Wednesday night, is 
the bill that he supports.
  Any one of my colleagues who wants to, I invite them to step out this 
northeast door and talk directly with Admiral McConnell because I think 
it is extremely important that you find out what his position truly is.
  Let me be clear: The bill that was introduced by Senator McConnell 
and me was the bill that Admiral McConnell had modified after having 
comments to which he listened from several Democratic chairmen on 
Tuesday evening. He added the provisions for court review--they are 
court reviews within 120 days, 4 months--that would be adapted to the 
new requirements in FISA that did not exist before that will take some 
time to get together. And it also included a provision that there would 
be, in addition to that--that there would be the DNI who would be one 
of the people making the certifications--two things that were 
requested.
  There is one other modification that I will ask unanimous consent to 
make, or offer an amendment to make, when we prepare to debate on the 
bills, and that is to include a 6-month sunset so we will have the 
opportunity to review this bill.
  With that, I will have more to say about that later, but the DNI 
explicitly will tell anybody who steps outside that he does not support 
this bill.
  It is in the bill, excuse me.
  I thank the distinguished majority leader. But with that, I will 
yield the floor and allow other Members to communicate.
  Mr. ROCKEFELLER. Does the vice chairman yield?
  The PRESIDING OFFICER. Who yields time?
  Mr. BOND. I reserve the remainder of my time.
  Mr. LEAHY. May I make a parliamentary inquiry?
  The PRESIDING OFFICER. The Senator will state his inquiry.
  Mr. LEAHY. Mr. President, we have before us two pieces of 
legislation; am I correct?
  The PRESIDING OFFICER. That is correct.
  Mr. LEAHY. Would the Chair please state who the sponsors are of the 
two individual pieces of legislation?
  The PRESIDING OFFICER. S. 2011 is sponsored by Senator Levin and 
Senator Rockefeller; S. 1927 is sponsored by Senator McConnell and 
Senator Bond.
  Mr. LEAHY. I thank the Chair.
  Mr. REID. Is Senator Levin ready to speak? Is Senator Feingold ready 
to speak? No.
  Mr. BOND. Mr. President, I yield 4 minutes to the distinguished 
Senator from Virginia.
  Mr. WARNER. Mr. President, I want to add a dimension to this debate, 
and that is that I have had the privilege of knowing Admiral McConnell 
for some years. He does not have a scintilla of politics. He left a 
very lucrative position in the private sector to once again join and 
serve as a public servant. Thus far, I think all of us would say he has 
handled this challenging new office, Director of National Intelligence, 
with great distinction.
  How well I remember just a week or so ago, I say to my distinguished 
colleague from Missouri, when he came up in S-407 and spoke to some 30 
or so--more than that, close to 40 Senators, bipartisan--and Senator 
after Senator got up and complimented him on his very straightforward 
manner of delivery. Without hesitation he called the situations that 
were before him in question as he saw them. He communicated publicly 
with the Senate, expressing on the second of August his views of what 
he believed should be in those revisions that should be made by the 
Congress.
  I find this procedure very disturbing. It is essential for the United 
States of America to continue to obtain the intelligence under this 
program. There is every desire to make sure that we will comply with 
the law, but the law does need some revision. It is incumbent upon this 
body and, hopefully, the House of Representatives to resolve this 
situation before we go into the August recess, because it is our own 
security that will suffer unless we follow the advice of this very 
distinguished public servant who only wishes to do what is best in the 
interests of the United States and the people of our country and our 
troops serving abroad, our troops serving wherever they are in the 
world.

  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I appreciate everyone's hard work. It has 
been a very difficult time to get here. I especially wish to extend my 
appreciation to Senators Rockefeller, Levin, Leahy, Feingold, Durbin, 
Mikulski, Feinstein, Nelson, and I am sure I have missed some people, 
but those are the ones whom I have heard from recently--and certainly 
Sheldon Whitehouse, who put in the graveyard shifts.
  I wish to say, before I turn to my prepared remarks, I too have the 
greatest admiration for Admiral McConnell, but I have to say, I am 
concerned that we have Admiral McConnell here checking on us. I mean, 
he should not be--``do you want to go ask him how he feels about this 
legislation?''
  I can't appreciate that. I think it is wrong that this man whom we 
put in this very important position is here roaming the halls finding 
out how we are going to vote, sending Senators out to find out how he 
feels about it?
  Mr. BOND. Will the distinguished Senator yield for a question?
  Mr. REID. I will in a minute.
  Because he supports the legislation offered by my friends Senators 
McConnell and Bond and does not support

[[Page S10864]]

this does not mean this is bad legislation.
  I will be happy to respond to a question. If you can use your time, 
that would be great.
  Mr. BOND. Very quickly. Does the distinguished majority leader know 
that Admiral McConnell is here because three of his members 
specifically asked that he come over and comment on these bills, and at 
their request we invited him to come here to respond to their 
questions?
  Mr. REID. I appreciate that. I misunderstood. I thought he was 
waiting in the hall to answer questions. You asked one Senator if he 
wanted to go ask him how he felt about the legislation. I think that is 
inappropriate.
  Mr. LEAHY. Would the Senator yield for another question? I also note 
in here S. 1927 basically gives a great deal----
  Mr. REID. I have the greatest respect for my friend. I wish to get my 
statement out while I have time. We are on a very limited timeframe. I 
know the Senator knows the details of it, but I have a few things I 
wish to say.
  Mr. FEINGOLD. Mr. President, if I could I wish to make one comment 
about the issue the Senator raised about Admiral McConnell.
  The last time we checked, there are 100 Senators elected to enact 
public policy. The notion that somebody who was confirmed by the Senate 
to execute these policies is a person who should be able to veto what 
we do here on the basis that he has a distinguished background is 
somewhat questionable.
  That discounts the qualities of every Member of this body, that 
discounts the qualities of every hard-working staff member who knows 
the law and has good ideas about what this public policy should be.
  I voted for Admiral McConnell. I respect him. The day we start 
deferring to someone who is not an elected Member of this body, or 
hiding behind him when you do not have the arguments to justify your 
position is a sad day for the Senate. We make the policy, not the 
executive branch.
  Mr. REID. Mr. President, I may have to use a little bit of leader 
time because our time is fast ending. So I will do that as quickly as I 
can.
  Mr. President, as we know from the briefings we have received from 
the Director of National Intelligence, the FISA law needs to be 
updated. But I underscore and certainly want to be made part of the 
statements made by my friend, the Senator from Wisconsin, Mr. Feingold.
  Our intelligence community professionals are currently lacking, we 
are told, critical information and tools they need to protect this 
Nation from terrorism.
  My goal, when I learned about the intelligence communities' concerns, 
was to pass the legislation that addresses DNI's legitimate concerns, 
asserts our oversight responsibility, protects the rights of American 
citizens, and is temporary in duration.
  I believe the legislation offered by Senators Rockefeller and Levin 
achieves each of these goals, gives the communities all the tools they 
need, but at the same time it makes the independent FISA Court, not the 
Attorney General, the overseer of the methods and procedures used for 
collecting foreign intelligence.
  Democrats and Republicans want to aggressively pursue al-Qaida and 
other terrorist organizations and other terrorists. This bill does 
that, but not at the cost of targeting American citizens without court 
authorization. We have had many conversations in the last several days 
with Admiral McConnell. I can say with great confidence that this 
legislation provides him with everything he asked for in these 
discussions, everything.
  He told us he wanted the tool to collect foreign-to-foreign 
intelligence communications without a warrant. He got it. He told us he 
wanted the ability to compel compliance from communications providers 
with liability protection. He got it.
  He told us he wanted the ability to collect all foreign intelligence 
information, not just intelligence related to terrorism. He got it. He 
told us he wanted the ability to temporarily begin the collection of 
intelligence without seeking a court order. He even got that.
  In fact, the legislation was provided by the administration to 
Admiral McConnell, and that legislation, he said in a statement today, 
he strongly supports--which we have heard--served as the starting point 
for the Levin-Rockefeller legislation. That is what we have before us; 
it is a modified McConnell amendment.
  What we have before us tonight, with very modest edits, is Admiral 
McConnell's proposal, what he told us he wanted, and what he gave us in 
writing.
  I would hope it receives the broad support of the Senate. The Bond 
legislation, on the other hand, is not something I can support. It 
authorizes, in my opinion, warrantless searches of Americans' phone 
calls, e-mails, homes, offices and personal records and for however 
long it is appealed to the court of review and the Supreme Court takes. 
This process could take months or indeed years.

  Even worse, the search does not have to be directed abroad, just 
concerning a person abroad, any search, any search inside the United 
States, the Government can claim to be concerning al-Qaida is 
authorized. I do not believe that is the right way, the strong way or 
the Constitutional way to fight the war on terrorism. I urge all 
Members to support the Rockefeller-Levin bill.
  It does everything that Admiral McConnell has requested. It strikes 
the right balance between protecting the American people from terrorism 
and preserving their Constitutional fundamental rights.
  Let the record be clear: Every Senator here tonight is patriotic and 
wants to get rid of these bad people and find out everything they are 
talking about, in a way that is in keeping with our Constitution. I 
appreciate the service of my friend from Missouri. He has been a 
valiant member of that committee and does a good job.
  So let's not question tonight, and I hope I have not done that, 
anyone's patriotism or what they are trying to do. What we are trying 
to do is the right thing. But I believe the best way to go is by 
supporting the second vote, which will be Levin-Rockefeller.
  The PRESIDING OFFICER. Who yields time?
  Mr. REID. How much time do we have on our side?
  The PRESIDING OFFICER. Fifteen minutes.
  Mr. REID. I yield 7 minutes to Senator Levin, 5 minutes for Senator 
Feingold.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, I wish to read the key section of our bill. 
It says that:

       A court order is not required for the acquisition of the 
     contents of any communication between persons that are not 
     located in the United States, for the purpose of collecting 
     foreign intelligence information without respect to whether 
     the communication passes through the United States, or the 
     surveillance device is located within the United States.

  That is the heart of the matter. That is what Admiral McConnell has 
requested. That is what both bills provide, both bills cure the problem 
that exists. There is a problem. We have to cure it. Our bill, in 
addition to the Bond bill, both bills do that.
  Now, what are the major differences between the bills? What Admiral 
McConnell has indicated to us in a statement:

       The intelligence community should not be required to obtain 
     court orders to effectively collect foreign intelligence, 
     from foreign targets, located overseas.

  That is in both bills. Except our bill is limited to foreign targets 
limited overseas, unlike the Bond bill, which does not have that key 
limitation and which, it seems to me, very clearly applies to U.S. 
citizens overseas. Our bill does not.
  Now, if there is an incidental access to U.S. citizens, we obviously 
will permit that. That is not the problem. It is called minimization. 
We do not try to affect that. But the key difference between the 
Rockefeller-Levin bill and the Bond bill is that we carry out what 
Admiral McConnell has said repeatedly, not just in the statement I read 
but also in newspaper articles that he has written in the Washington 
Post.
  What does he say there? He says that: In a significant number of 
cases, our intelligence agencies must obtain a court order to monitor 
the communications of foreigners suspected of terrorist activities who 
are physically located in foreign countries.
  Now, our bill does that. But what does the Bond bill do? The Bond 
bill

[[Page S10865]]

goes beyond that. In its first section it says:

       Nothing in the definition of electronic surveillance under 
     section 101(f) shall be construed to encompass surveillance 
     directed at a person reasonably believed to be located 
     outside of the United States.

  Any person. Does not say a foreign person. Admiral McConnell has been 
very precise. We have all heard him over and over again. He has been 
precise in his written statements, he has been precise orally. They 
want access, and we have to give them access.
  When foreign persons communicate with foreign persons, even though, 
as our bill says, the communications might be routed through the United 
States, that is the problem that must be cured. It is cured in both 
bills. But we avoid doing, in our bill, what the Bond bill does, which 
is to say, as it very explicitly does: That if surveillance is directed 
at a person, which means any person--it could be a U.S. person, 
reasonably believed to be located outside of the United States--then it 
is permitted, it is authorized, in that first section of the Bond bill, 
105(a). That is one of the critical differences, the most important 
difference, between Rockefeller-Levin, which does what the Admiral says 
we must do, find a way with the new technology where calls may be 
routed through the United States, to get to those communications by 
foreign persons to foreign persons.
  We must do that to defend the country. We must do it. We do it. But 
we avoid doing what Admiral McConnell says he does not want to do, 
which is to get to the communications of Americans.
  There you have to go for a warrant. That is what he says we should 
continue to do. He says it eloquently, in writing and orally. We 
protect that very vital interest.
  There are a number of other differences. To give you one: What the 
Bond bill does is it says that: In terms of reviewing and auditing, the 
way this works, the audit will be carried out by the Attorney General 
of the United States, in effect auditing his own work, reviewing his 
own work.
  On a semiannual basis, it says in section 4, the Attorney General 
shall inform the Select Committee, et cetera. The Attorney General 
shall give us a report concerning acquisitions--that is the 
intercepts--during the previous 6-month period. Each report shall 
include--then it describes all of the reports--a description of any 
incidents of noncompliance with a directive issued by the Attorney 
General and the Director of National Intelligence; incidents of 
noncompliance by a specified person to whom the Attorney General and 
Director of National Intelligence--so the Attorney General, under the 
Bond provision, is reporting to Congress about his own activities. What 
kind of an independent report is that?
  So in the Rockefeller-Levin bill, we do not say to the Attorney 
General: Report on your own activities. We say to the inspector 
generals, three of them, they all have access here and all have a role: 
We want the independent assessment from you. We want a report to 
Congress not by an Attorney General reporting on his own activities but 
by the inspectors general who have that independence, which is so 
critically important.
  I understand my time is up.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. BOND. Mr. President, I yield 5 minutes to the distinguished 
Senator from Connecticut.
  Mr. LIEBERMAN. I thank the Chair, and I thank the Senator from 
Missouri.
  May I say first that I regret this debate is happening at all. I 
regret the news coverage of this discussion. I wish this had been able 
to be settled among Members of both parties in both Houses and the 
executive branch. If not, I wish we were debating this in executive 
session. Why do I regret this debate is occurring? Because we are at 
war. We were attacked on September 11, 2001 by a brutal, inhumane enemy 
who killed 3,000 Americans and intends to do so again. They tell us 
repeatedly. This is about gathering intelligence on that enemy.
  I regret we are having this debate. I regret all the publicity, 
because I fear they will learn something indirectly about the methods 
of intelligence we have. But here we are.
  I want to explain why I will vote for the McConnell-Bond proposal. I 
am because we are at war. I am because it has been publicly suggested 
there is increased terrorist activity. We have seen the Web site of 
threats against the United States, suggesting even threats against the 
Capitol, the citadel of our democracy, by these extremist Islamist 
terrorists. Admiral McConnell, whom everyone says they respect--I 
respect him; I trust him--says to us--and I will be as vague as I need 
to be and want to be--he is missing for a reason a tool he needs to 
adequately gather intelligence on the terrorist threat. He has told us 
what he needs to close that gap. I think we are beyond the point of 
debating what might be a better way to do this. I feel that 
particularly because Senator Bond has added the 6-month sunset.
  We have a crisis. We are at war. The enemy is plotting to attack us. 
This proposal will allow us to gather intelligence information on that 
enemy we otherwise would not gather. This is not the time for striving 
for legislative perfection. We have the 6 months after this is adopted 
to work together to try to do something everyone believes is more 
appropriate. Concerns have been expressed about American citizens, 
again being as vague as we all ought to be. The fact is, we have been 
told authoritatively that these acts of surveillance will only touch 
American citizens coincidentally, and an infinitesimally small number. 
So you have to balance. What are your concerns about that, a program 
run by Admiral McConnell and an extraordinary staff at the NSA who work 
for us? These are our soldiers in the war against terrorism. I want to 
give them the power and authority they need to find out what our enemy 
is doing so we can stop them before they attack us.
  With all respect to my colleagues, I plead with everyone, let us not 
strive for perfection. Let us put national security first. Let us 
understand if this passes, as I pray it will, and the President signs 
it, as I know he will if it passes both Houses, we are going to have 6 
months to reason together to find something better. If we leave 
Washington for August recess without closing this gap in our Nation's 
intelligence capabilities at a time of war, it will be quite simply a 
dereliction of duty by this Congress. It will be a failure to uphold 
our constitutional responsibility to provide for the common defense.
  I appeal to my friends on both sides of the aisle, let's do what we 
need to do now. Let's do what Admiral Mike McConnell, the Director of 
National Intelligence, tells us he needs to provide intelligence to our 
Government to enable our Government to protect us from terrorists.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. REID. I yield the Senator from Wisconsin 5 minutes.
  The PRESIDING OFFICER. The Senator was yielded 5 minutes. You have 8 
minutes left.
  Mr. REID. Would you mind going next, Senator Bond? You have 16 
minutes and we have 8.
  Mr. BOND. I yield to the Senator from California 2 minutes.
  Mr. REID. I will yield her 1 minute.
  The PRESIDING OFFICER. The Senator from Wisconsin has the floor.
  Mr. FEINGOLD. Let me respond to what the Senator from Connecticut 
indicated. In times of war, we don't give up our responsibility in the 
Senate to review and make laws. The notion that we simply defer this to 
the Director of National Intelligence and whatever he says is an 
abdication of our duties, especially in times of war. In fact, let's 
remember why this is here. The Senator regrets we are debating this and 
some of these very important matters that are generally kept secret are 
being discussed. I agree. But why are they secret? Because the 
administration was conducting an illegal wiretapping program and 
somebody inappropriately blew the lid on that. That wasn't the doing of 
anybody in this body. That was due to the incompetence and 
inappropriate conduct of this administration in the first place. That 
is why we are here with this kind of debate, not because of anything 
anybody did here.
  By the way, this horrible conflict we have with those who attacked us 
on 9/11, this conflict is something we all

[[Page S10866]]

agree on. Not a single Senator doesn't think we should be able to get 
at these foreign calls. Not a single Senator doesn't want to give the 
admiral what he has asked for that is reasonable. We simply want 
protection for the civil liberties of people who have done absolutely 
nothing wrong.
  Let's be sure what this debate is about. I thank the majority leader 
and Senator Rockefeller, Senator Levin, Senator Leahy, and especially 
Senator Whitehouse, who put tremendous effort into this, for trying to 
make this as good as possible.
  I am going to vote for the Rockefeller-Leahy-Levin bill. I am 
concerned we are moving too fast and that we have not necessarily come 
up with the right answer to the problem we all recognize exists. But I 
am prepared to vote for this because I think it is at least a 
reasonable approach for addressing legitimate problems without unduly 
compromising the civil liberties of Americans. I do so with great 
reluctance, with the expectation that this is an experiment with a 
short expiration date, an experiment we can assess and modify as we 
move forward.
  But we cannot pass the Bond-McConnell proposal. This bill would go 
way too far. It would permit the Government, with no court oversight 
whatsoever, to intercept the communications of calls to and from the 
United States, as long as it is directed at a person--any person, not a 
suspected terrorist--reasonably believed to be outside the United 
States. That means giving free rein to the Government to wiretap 
anyone, including U.S. citizens who live overseas, servicemembers such 
as those in Iraq, journalists reporting from overseas, or even Members 
of Congress who are overseas and can call home to the United States. 
This is without any court oversight whatsoever. That is unacceptable.
  It goes far beyond the identified problem of foreign-to-foreign 
communications that we all agree on. It goes far, far beyond the public 
descriptions of the President's warrantless wiretapping program. What 
little judicial review the bill does provide is essentially 
meaningless. The FISA Court would decide only whether the Government 
certification that it has put reasonable procedures in place to direct 
surveillance against people reasonably believed to be abroad is 
``clearly erroneous.'' That is basically a standard that is nothing 
more than a rubberstamp. It ignores the real issue which is protecting 
the rights of Americans who may be calling or e-mailing friends, 
family, or business partners overseas and who have done absolutely 
nothing wrong.
  Let me point out that the so-called court review in the Bond bill 
will never happen, because the court only has to rule within 180 days 
of enactment, and there is now a sunset on the bill after 180 days.
  A 6-month sunset does not justify voting for this bad version of the 
bill. We can't just suspend the Constitution for 6 months.
  I strongly oppose the Bond bill, and I urge my colleagues to oppose 
it.
  Mr. KENNEDY. Mr. President, there is general agreement on both sides 
of the aisle that we have a foreign intelligence surveillance problem 
that should be addressed. The difference between us is that on this 
side of the aisle we have consistently been willing to work 
cooperatively to solve the problem.
  There is a model. In 1976, we faced a similar problem. The Senate 
Select Committee to Study Governmental Operations with Respect to 
Intelligence Activities, known as the Church Committee, had found 
disturbing abuses of electronic surveillance. Congress and the 
administration set out to pass a law to prevent such abuses in the 
future, while still protecting our national security.
  In 1976, I was the principal sponsor of the original bill that became 
FISA. When my colleagues and I first introduced the bill, we had a 
Democratic Congress, a Republican President, Gerald Ford, and a 
Republican Attorney General, Ed Levi. Attorney General Levi understood 
the need for Congress and the executive branch to work together. 
Members of the Judiciary Committee went down to the Justice Department 
at least four times to meet on the bill. There were discussions with 
Henry Kissinger, Don Rumsfeld, Brent Scowcroft, and George Bush among 
others.
  We worked responsibly and cooperatively to develop legislation to 
protect our civil liberties and ensure that the Nation could use 
necessary surveillance. In the end, Attorney General Levi praised the 
bipartisan spirit of cooperation that characterized the negotiations 
and produced a good bill. That administration recognized the importance 
of working with Congress. The final bill was passed by the Senate by a 
vote of 95 to 1.
  As this history demonstrates, our Nation is strongest when we work 
together for our national security. Unfortunately, the current 
administration has chosen a very different course. President Bush has 
refused all along to consult Congress on the development and 
implementation of its surveillance program, and now we find that it 
violated the law.
  This is not an argument for granting expanded discretion to the 
administration. There is simply no basis for trusting this 
administration to respect the privacy of the American people. Nor do we 
have any confidence in the administration's competence to adopt a 
lawful and effective program.
  When Attorney General Gonzales appeared before the Judiciary 
Committee in February 2006, I questioned him about FISA and the 
recently revealed warrantless eavesdropping program. I offered to work 
with him then. In fact, I asked him why he had not approached Congress 
sooner, given Attorney General Levi's success and given the cost of 
getting it wrong. He answered: ``We did not think we needed to, quite 
frankly.''
  Well, we now know that wasn't true. I pointed out to the Attorney 
General at the time the benefit of having consensus on this issue and 
the importance of fostering a cooperative atmosphere. His answer to me 
was: ``I do not think that we are wrong on this.'' But they were wrong, 
which is why we are debating this issue at the eleventh hour today.
  I told him then that the administration was sending the wrong message 
to the courts, that they were jeopardizing our ability to convict 
terrorists by using these illegal intelligence methods. The Attorney 
General said:
  That is the last thing we want to do. We believe this program is 
lawful.
  He was wrong again. The program is not lawful and administration 
needs Congress to fix it.
  I did not stand alone on these issues. I had the support of many of 
my colleagues on the committee on both sides of the aisle. Yet the 
record is clear that the Attorney General repeatedly rebuffed our 
efforts to work with the Administration to get this legislation right 
the first time.
  Instead, the Attorney General and the President have consistently 
rejected congressional input and oversight. They have repeatedly 
demanded that Congress rubberstamp their decisions and trust their 
discretion. We have seen where that leads, and we owe the Nation a 
better approach.
  We should pass legislation today that closes the gap in current law 
and preserves the critical role of the Foreign Intelligence 
Surveillance Court in protecting our civil liberties.
  Unfortunately, some of our colleagues, instead of using this 
opportunity to work together to safeguard the Nation, would prefer to 
pass yet another partisan assault on the rule of law and American civil 
liberties. They insist on diminishing the role of the FISA Court and 
increasing the unsupervised discretion of the Attorney General and the 
Director of National Intelligence. They want to trust Alberto Gonzales 
to ensure that the Government does not listen to the phone calls and 
read the e-mails of Americans without justification. We need to 
modernize FISA, not undermine it. Their proposal clearly contradicts 
the fundamental purpose of the initial legislation.
  This administration railroaded us into war in Iraq, railroaded us 
into passing the PATRIOT Act and the Military Commissions Act and now 
it wants to railroad us into amending FISA without the time or 
information to consider the need properly.
  We take a backseat to no one in wanting to keep our America safe. We 
know that our families, our friends, and our communities are at stake. 
We want to give our intelligence agencies the tools they need, but 
there is a right

[[Page S10867]]

way and a wrong way to do it. This eleventh-hour grandstanding by 
administration is the wrong way to do it.
  We should remember how we reached this point. For 4 straight years, 
the Bush administration recklessly conducted warrantless surveillance 
in violation of FISA. The President acknowledged this surveillance only 
after it was reported in the press. Until January of this year, the 
administration refused to bring its surveillance program under the 
oversight of the FISA Court, despite the clear statutory requirement to 
do so.
  The FISA Court has now reviewed the surveillance and has issued a 
ruling. It has declared that a significant aspect of the President's 
warantless surveillance program, in operation for 4 years without any 
oversight, violates the law and cannot continue. Without bipartisan 
congressional pressure to force that review, these and other despicable 
violations of the rule of law would have gone on and on. Even today, 
the Attorney General continues to mislead Congress on basic information 
about the program, and he refuses to provide the legal justifications 
on which he relied.
  Now, after the FISA Court's clear ruling, the administration is 
urgently demanding that we correct their mistake. We can do that. We 
can reach the appropriate balance between modernizing the legislation 
to protect our national security and maintaining its basic protection 
of civil liberties. If the administration and its allies are serious 
about effectively protecting the country from terrorist threats, and 
doing so under the rule of law, they should support such legislation.


 =========================== NOTE =========================== 

  
  On page S10867, August 3, 2007 the Record reads: . . . demanding 
that we correct their . . .
  
  The online Record has been corrected to read: . . . demanding 
that we correct their mistake. We can do that. We can reach the 
appropriate balance between modernizing the legislation to protect 
our national security and maintaining its basic protection of 
civil liberties. If the administration and its allies are serious 
about effectively protecting the country from terrorist threats, 
and doing so under the rule of law, they should support such 
legislation.


 ========================= END NOTE ========================= 

  Mr. LEAHY. Mr. President, the Rockefeller-Levin bill might not be 
precisely the bill I would have written to fix the problem, but it is a 
responsible and targeted fix to the Foreign Intelligence Surveillance 
Act, FISA, problem that has been identified. It is an appropriate 
response to the need expressed by Director of National Intelligence 
McConnell regarding our foreign intelligence collection overseas. In 
addition, it tries to preserve some balance and some protections for 
the civil liberties of Americans by keeping the FISA Court involved 
when there are significant communications to and from the United 
States.
  I have been briefed by the DNI and his staff and met with him several 
times recently about a problem that our intelligence agencies are 
having in collecting information from overseas. I have said that I am 
willing to fix this problem, and I am. I have proposed ways to fix this 
identified problem. It might not be everything he would like, his wish 
list, but it solves his problem. The Congress has shown that it is 
willing and able to reform FISA when changes are needed. We have done 
so many times since FISA was first passed in 1978 and at least half a 
dozen times since September 11, 2001. I believe such a targeted, 
responsible fix is justified.
  To achieve that fix, I would vote for Rockefeller-Levin. We could 
enact the needed change immediately. As I have indicated, it is not 
everything that I would have wanted or drafted precisely as I would 
have written it. But it does the job and achieves a better balance than 
any viable alternative. I have worked with Senator Rockefeller for 
weeks on this matter and appreciate his leadership on this matter, as 
well as that of Senator Levin.
  The problem our intelligence agencies are having is with targeting 
communications overseas. We want them to be able to intercept calls 
between two people overseas with a minimum of difficulty. Obviously, 
the situation is complicated when people overseas might be talking to 
people here in the United States. These calls could be innocent 
conversations of businesspeople, tourists, our troops overseas to their 
families, or to other friends or family in the United States. We should 
want to give the Government great flexibility to listen to foreign-to-
foreign calls, while still protecting privacy of innocent Americans by 
making sure the Government gets warrants when they are involved.
  The Rockefeller-Levin bill accomplishes both of these things. It 
provides a very flexible standard up front for the Government--it is 
only required to go to the court for approval of procedures for how it 
will know that the targets are, in fact, overseas. There is no case-by-
case application and approval of warrants for these overseas targets. 
There is even an initial emergency provision that would allow the 
Government to start these interceptions before the court has done 
anything.
  To protect Americans, the House bill requires the Government to have 
guidelines--and show them to the Congress--for how it will determine 
when a target is having regular communications with the United States. 
Then they need to go back to the regular FISA procedures and show 
probable cause. Also, the Department of Justice inspector general must 
do an audit of the conduct under this bill to see how much information 
about people in the United States is being collected and must provide 
that audit to the court and Congress. Because this process has been so 
expedited and the issues involved are so significant, the bill would 
sunset in 180 days, so the Congress and the administration will have an 
opportunity to review it and act in a more deliberative way on these 
important issues.
  Some things were added here that I might not have done. It now 
applies to all foreign intelligence targets, not just those involving 
international terrorism. It also does not require the court to 
review and approve the guidelines for handling significant 
communications with the United States, only the Congress sees this. 
These aspects trouble me. They are significant. The Director of 
National Intelligence has said that with these changes, the bill solves 
his problems and would significantly enhance our national security. 
This bill should resolve the matter, but this administration does not 
know how to take ``yes'' for an answer.

  Regrettably, what has come over from the administration and has been 
introduced here by Senator Bond and Senator McConnell goes far beyond 
what the DNI said he needs and I fear would be very harmful to the 
civil liberties of Americans. The bill the administration has proposed 
is a vast rewrite of the FISA law that undercuts the purposes of that 
act in significant ways. What the administration has done is leverage a 
fixable problem into passage of a wish list of ways to give the 
Attorney General and through him the White House virtual unfettered 
authority to conduct surveillance. It would take away any meaningful 
role for the FISA Court for calls between overseas and the United 
States. In fact, because it is not restricted to terrorism but involves 
any foreign intelligence, the administration's bill gives them far 
greater authority than they had claimed in their secret, warrantless 
surveillance program.
  This bill allows Attorney General Gonzales to order surveillance. 
This Attorney General is in charge of decisions about when to conduct 
surveillance and can instruct the court to enforce those decisions. In 
effect, the only role for the court under this bill is as an 
enforcement agent--it is to rubberstamp the Attorney General's 
decisions and use its authority to order telephone companies to comply. 
The court would be stripped of its authority to serve as a check and to 
protect the privacy of people within the United States. Their bill 
likewise requires no review or audit by the Justice Department or 
anyone else about the number of U.S. communications that are being 
gathered by these orders.
  I believe it is important to solve the problem our intelligence 
agencies are having right now. It is also essential to preserve the 
critical role of the FISA Court in protecting civil liberties of 
Americans. The House bill will do both of these things better than its 
alternatives.
  Mrs. BOXER. Mr. President, I believe we need a short-term and long-
term fix for FISA. It is important to extend the program now and then 
finish the job in the weeks and months ahead. Updating FISA has to be 
done in a meticulous way. The real work will come in the near future 
when there is time to debate how to update this important tool that we 
need to protect the American people
 Mrs. MURRAY. Mr. President, today, Senate Democrats offered 
the Bush administration the tools needed to fight international 
terrorism while upholding the very liberties that our enemies seek to 
destroy. That is why I support S. 2011, the Rockefeller-Levin Protect 
America Act.
  The Rockefeller-Levin bill strengthens our ability to protect 
Americans, while ensuring this authority doesn't undermine our 
freedoms. Rockefeller-Levin gives the Director of National Intelligence 
the authority to obtain all essential intelligence information while 
preserving a role for the independent FISA Court to oversee his methods 
and protect our constitutional liberties.

[[Page S10868]]

  To simply legitimize the Bush administration's warrantless wiretap 
program and provide unchecked authority to invade the personal privacy 
of all Americans is the wrong message to send to our citizens and the 
world.
  Our Constitution provides for a separation of powers to protect our 
Nation and our way of life, and I, for one, do not believe we can 
undermine the liberty our troops have fought for generations to 
ensure.
  Mr. LAUTENBERG. Mr. President, I rise to speak directly to the 
American people to tell them that this Senator understands the risks 
that our country faces and I will do everything in my power to protect 
them from a terrorist attack.
  We have a President whose words do not match his actions and who 
continues to accuse Democrats of being weak on terrorism and unwilling 
to do what it takes to secure our nation.
  Nothing could be further from the truth.
  New Jersey was hit on September 11th we lost 700 people on that 
fateful day. Not a day goes by when I don't think about it. And it is 
largely that day that brought me back to this Chamber.
  My State is ripe with targets for terrorists, from its ports to its 
chemical plants and it has the most dangerous 2 miles for terrorism 
within it borders. So President Bush please don't lecture me on 
terrorism.
  Instead of rhetoric, the Senate has been acting to defend our 
homeland. Just last month we passed a bill to fund our homeland 
security needs next year. It would put $38 billion into making our 
homeland safer and more secure.
  What does the President do? He says he will veto it. Why? Because he 
thinks it costs too much. It costs too much? How do you measure the 
cost of protecting us from terror?
  And President Bush is accusing others of being weak on homeland 
security?
  The President is upset because Congress plans to put $2 billion more 
into homeland security than he thinks we should do. That is less money 
for a year of homeland security than we spend in one week in Iraq. This 
is a critical bill, and the President should have his pen ready to sign 
it, not continue to shortcut security for millions of people within our 
borders and within our homeland.
  On Wednesday night, we saw a terrible incident when a bridge 
collapsed in Minnesota, causing fear, death, and injury. It brought to 
light the serious infrastructure needs of our country. What does 
President Bush do the next morning? He played raw politics and accused 
Congress of not working hard enough to fund our transportation needs. 
Again, nothing could be further from the truth.
  The Senate Appropriations Committee has passed a transportation bill 
that is ready to go the Senate floor. It includes $5 billion for bridge 
replacement and rehabilitation across the Nation a full $1 billion 
increase over last year's amount. Guess what. The President is 
threatening to veto that one as well. Why? Again he thinks it costs too 
much to protect people domestically.
  And now the administration is telling us there are gaps in our 
ability to gather intelligence about terrorists. So we are trying to 
make changes to the law dealing with the surveillance of emails and 
phone calls to make sure we protect the American people. And we must 
make those necessary changes, even if we stay here through the month of 
August to do so. But we must do so in a way that balances our national 
security with our fundamental civil rights.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. REID. When she completes her statement, we have 2 or 3 minutes 
left; is that right?
  The PRESIDING OFFICER. That is correct.
  The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I remember well the day I saw the 
letter from Admiral McConnell. I believe the day was July 24. That is 
not a long time ago. But it was a kind of wake-up call to us. Because 
what that letter says in essence is he believes the United States is 
vulnerable, and he believes we need to move quickly to change FISA.
  From an intelligence point of view, many of us believe the chatter is 
up. It is not necessarily well defined, but during the 9/11 period, 
this is clearly a period of heightened vulnerability. Therefore, what 
Admiral McConnell wants to do is be able to better collect foreign 
intelligence. I very much respect what has happened. I respect the bill 
that was put together on the Democratic side, and I respect the bill 
that was put together on the Republican side, which is the McConnell 
bill on that side.
  The Senator from Wisconsin might be interested to know that some of 
us just met with Admiral McConnell, particularly to discuss Senator 
Feingold's concern. There is a different point of view. A U.S. citizen 
in Europe is, in fact, covered. A U.S. citizen in Europe, the 
minimization under certain specific laws, not FISA, but precisely 12333 
point something, which I cannot remember at the present time, comes 
into play. That U.S. citizen is subject to a warrant from the court.
  This is a temporary bill. It is to fill a gap. The court has done 
something which has said that what has existed for decades with respect 
to the collection of foreign intelligence now cannot exist under the 
present law, and we need to change that law.
  It is my intention to vote for both bills. The reason I will vote for 
both bills is to see that some bill acquires the 60 votes to get passed 
tonight. We are going out of session. There is no time. I think this is 
unfortunate. I received the Democratic bill about 20 minutes ago. I 
went into the leader's office, tried to sit down and get briefed. Up to 
this point I still don't understand it. I spent all afternoon on the 
McConnell bill. I am just beginning to understand the subtleties in it 
and the other laws that come into play.
  This is not going to be an easy vote for anyone. But what we have to 
think of right now is, on a temporary basis, how do we best protect the 
people of the United States against a terrible attack.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. BOND. Mr. President, I yield 3 minutes to the Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, I know Members are working in good faith 
to try and resolve this controversy. I decided to go directly to the 
source, the Director of National Intelligence, right off the floor here 
tonight monitoring the debates. I asked him what the difference was 
between the Rockefeller-Levin proposal and the Bond-McConnell proposal. 
He said to me the Rockefeller-Levin proposal has, in his view, 
unrealistic timelines. It creates situations of delay, and it creates 
other structural problems with regard to monitoring foreign-to-foreign 
communications which should not be the subject of lengthy court 
proceedings that are otherwise necessary to monitor domestic 
communications. The Director of National Intelligence, who is 
nonpartisan, an individual experienced in military matters and 
intelligence-gathering matters--I don't know any better source to go to 
who would give me an objective rendition of the differences between 
these two bills.
  I hope colleagues will support the McConnell-Bond alternative as one 
that would be superior to the Rockefeller-Levin proposal and one more 
likely to protect the American people against terrorist attacks by 
those who want to do us harm.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Whitehouse). Who yields time?
  Mr. BOND. Mr. President, how much time remains on this side?
  The PRESIDING OFFICER. Twelve minutes.
  Mr. BOND. All right. Mr. President, first, I want to make a point 
clear. I had referred earlier to comments made by my good friend, the 
distinguished chairman of the Intelligence Committee, who thought the 
bill they introduced was a bill that Admiral McConnell had supported. 
Admiral McConnell has just released a statement saying that he 
appreciates the efforts to address critical gaps in our current 
intelligence capabilities: I cannot support the proposal. It creates 
significant uncertainty in an area where certainty is paramount in 
order to protect the country. I must have certainty

[[Page S10869]]

in order to protect the Nation from attacks that are being planned 
today to inflict mass casualties.
  Really, there are a number of problems with the bill that has been 
presented on the other side. But the main problem is it says you do not 
need a court order to collect on communications between persons who are 
not located within the United States, and the rest of the collections 
are required to have a court order.
  Now, this morning, I read on the Senate floor a declassified summary 
of an order issued by the FISA Court saying this provision, this 
statute, FISA, must be amended because due to uncertainties and 
technological changes, they are spending so much time having to work on 
orders for collection involving the foreign targets--foreign targets 
whose impact on the privacy rights of Americans is minimal.
  Why is that a problem? The problem is, you do not know--if you are 
targeting a foreigner--whether that foreigner is going to call or 
communicate with another foreigner. If you do not, under the bill 
provided by Rockefeller and Levin, you would have to get a court order. 
You would have to get a court order if you could not prove the person 
they were communicating with was not in the United States. And you 
cannot do that. That is an impossibility. That is an impossibility. You 
cannot have an order that tells you they are going to be foreign 
communications only because you do not know until you intercept the 
communication to where it is going.
  Now, there are a number of other questions about the bill. I just 
have to say the concerns that have been raised--and they are legitimate 
privacy concerns--are addressed by minimalization procedures. Under 
what is called the McConnell-Bond bill--which was requested by Admiral 
McConnell, who modified his original proposal--under that bill, if an 
American citizen is caught in a communication from an al-Qaida target 
or another foreign target, then that person's participation is 
minimized. And if it is not foreign intelligence, that is completely 
dumped.
  Under our bill, like under the previous FISA provisions, you cannot 
target an American citizen or a U.S. person, including people here on 
green cards and here in the country, without getting a court order. 
That is what the FISA Court was set up to do--just to protect people in 
the United States.
  There are protections for the U.S. persons who are caught, 
incidentally, and they are minimized. Their names are not even 
identified unless there is evidence of terrorist activities.
  Now, the measure we have provided, the McConnell-Bond bill, S. 1927, 
is one which does meet the needs that were identified by the FISA Court 
and by Director McConnell to clear up the backlog because there is a 
huge backlog they cannot work through. The FISA Court is overburdened. 
They cannot work through and issue the orders because of the tremendous 
amount of paperwork.
  So we must do this now. We must do this tonight to give the 
intelligence communities the powers they need to collect information at 
a time when the threat is heightened. If we do not do that, we are in 
great danger.
  We have to do other things, and we will come back and revisit the 
other things, such as dealing with carrier liability and streamlining 
the process. Those we must do. That is why we included the sunset at a 
year.
  Mr. President, I yield 1 minute to the Senator from Florida.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, both bills in front of us allow 
foreign-to-foreign intelligence collection without a court order. What 
is going to surprise you is, neither bill protects an American citizen 
abroad from being collected upon. Neither bill does. That protection 
comes in the President's Executive order.
  What we are going to do, hopefully, is pass one of these bills 
tonight, which is a temporary measure that will get us past this 
problem of the increased traffic that is out there and the concern of 
an attack. Then, with cool deliberation, we are going to have to 
address the problem that is omitted in both bills.
  Mr. President, it is my intention because of that to vote for both of 
the bills this evening, hoping and praying that one will pass.
  The PRESIDING OFFICER (Mr. Durbin). Who yields time?
  The Senator from Missouri.
  Mr. BOND. Mr. President, I yield 2 minutes to the Senator from 
Georgia.
  The PRESIDING OFFICER. The Senator from Georgia is recognized for 2 
minutes.
  Mr. CHAMBLISS. Mr. President, I thank the ranking member and the 
minority leader for the introduction of this bill.
  It looks to me, Mr. President, like we have boiled this down to a 
specific issue of both bills saying they cover foreign-to-foreign 
surveillance. The problem is, when NSA has its eyes and its ears out on 
the wire, NSA does not know who an individual, who is in a foreign 
country, is calling--whether they are calling somebody foreign or 
whether they are calling somebody domestically.
  So if they know somebody is a foreign caller, it is imperative we 
provide our intelligence gatherers with the opportunity to discover the 
conversations that are taking place between that foreign caller and 
whomever they may be calling, if--and only if--it involves potential 
terrorist activity. And we are not going to be listening in to any 
foreign caller unless we know they are a member of al-Qaida under 
current law.
  So the clear difference in these two bills is this: The bill offered 
by Senator McConnell and Senator Bond says, very clearly, that NSA will 
have the tools necessary to listen to any conversation from a foreign 
al-Qaida member to a callee anywhere, whether it is foreign or 
domestic, versus the bill offered by the Democrats that may say you can 
have a foreign-to-foreign intercept, but the problem is there is no 
clarity in the Democratic proposal as to who the callee is.
  So it is pretty clear, if we are going to give the NSA the 
opportunity to protect Americans, we have to pass the bill of Senator 
McConnell and Senator Bond.
  I yield the floor.
  The PRESIDING OFFICER. The Senator's time has expired.
  Who yields time?
  The Senator from Missouri.
  Mr. BOND. Mr. President, I yield 2 minutes to the Senator from 
Pennsylvania.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, to state the obvious: This is a very 
troublesome way to legislate. We have been looking at this issue for 
more than a year. Senator Feinstein introduced legislation, and so did 
I. And it comes down to the last minute. We have waited in the Chamber 
all day.
  I have just talked to the Director of National Intelligence, Admiral 
McConnell, who says only the Bond bill is acceptable for our security 
interests. I heard it from him personally. The President is reportedly 
prepared to sign only the Bond bill.
  I have just had a hurried conversation with the senior Senator from 
Michigan, who has handled the negotiations on the Rockefeller bill. He 
has stipulated three points of concern which I think could be ironed 
out, Director McConnell says in the course of a couple of hours. But we 
are not having the couple of hours. Perhaps if both bills fail, we will 
be back to try this again tomorrow.
  But as I listened to what Senator Levin has had to say: It would be 
better if in one spot it said ``foreign persons''--but I believe that 
is the intent, although it is not really explicit--I think it would be 
preferable if the Attorney General was not making the certification--a 
point I have made repeatedly--and there is an element of delay.
  So to say it is not a perfect bill is again to state the obvious. But 
I think it is time we have to act and, therefore, I am going to support 
the Bond bill.
  The PRESIDING OFFICER. Who yields time?
  Mr. REID. Mr. President, I yield 1 minute to the Senator from 
Maryland, Ms. Mikulski, leaving me with 1 minute.
  The PRESIDING OFFICER. The Senator from Maryland is recognized for 1 
minute.
  Ms. MIKULSKI. Mr. President, our first goal as members of Congress is 
to protect and safeguard the American people against terrorist attacks. 
I take

[[Page S10870]]

my oath to do so very seriously. That is why I support reform of the 
Foreign Intelligence Surveillance Act. As we approach the anniversary 
of September 11, this is a time for more intense vigilance. Real 
threats to our country remain.
  As a member of the Senate Intelligence Committee, every day I see how 
terrorists want to harm the American people. Terrorists still have a 
predatory intent to harm the United States. Reforming FISA today 
provides the intelligence community the tools it needs to disrupt 
ongoing terrorist operations against the United States.
  We have two proposals to consider tonight. Both are temporary ways 
ahead. Each proposal takes important steps to secure the safety of our 
country by reforming this important law. The Rockefeller-Levin proposal 
is desirable, while the McConnell proposal is acceptable.
  Each proposal provides the intelligence community the key tools it 
needs to disrupt terrorist plans and intentions, while retaining the 
legal safeguards that protect the rights of every American.
  These proposals are consistent with the principles that the Director 
of National Intelligence requested to improve the FISA process: enhance 
intelligence collection against terrorist operatives communicating to 
each other overseas--foreign to foreign; provide legal safeguards to 
protect the rights of American citizens--consistent with law, a warrant 
is still required to monitor communications of American citizens inside 
the United States--provide prospective liability protection to private-
sector companies assisting our efforts in keeping this country safe.
  These proposals are time limited. A more comprehensive and permanent 
solution is necessary. As a member of the Intelligence Committee, I 
will work with my colleagues on a more comprehensive and permanent 
solution to reforming FISA.
  Al-Qaida continues to want to inflict damage on our country. This 
proposal gives important tools to the intelligence community to disrupt 
the terrorists' plans and intentions, while safeguarding the rights and 
civil liberties of American citizens.
  When it comes to protecting America, we don't belong to a political 
party) we belong to the red, white, and blue party. We are Americans 
first.
  Mr. President, I am a member of the Intelligence Committee, and like 
all Members, I take my oath to defend this country against all enemies, 
foreign and domestic, very seriously. Real threats to our country 
remain. As we approach the anniversary of September 11, this is a time 
for more vigilance.
  We have two proposals tonight. The Rockefeller-Levin proposal is the 
most desirable, while the McConnell proposal is also acceptable. These 
proposals are consistent with the principles that the DNI requested to 
improve the FISA process.
  It enhances intel collection against terrorist operatives 
communicating overseas foreign to foreign. At the same time, it does 
provide legal safeguards to protect the rights of Americans, consistent 
with law. A warrant is still required. I think it is time to vote. I 
think it is time to protect America.
  Mr. REID. Mr. President, I yield Senator Whitehouse 1 minute.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized 
for 1 minute.
  Mr. WHITEHOUSE. Mr. President, the question we face fundamentally 
here is, are we a nation under the rule of law? A nation of laws or a 
nation of men? We have heard wonderful things said about Admiral 
McConnell tonight, and I share this body's admiration for Admiral 
McConnell. But we are not here judging him, we are here judging a piece 
of legislation.
  The piece of legislation that we are asked to judge puts exclusive 
rights in the Presidency to determine what gets collected against 
Americans overseas and what gets collected against Americans in this 
country who have communications from overseas that are intercepted. And 
it allows that determination to be made, as was just said, pursuant to 
a Presidential Executive order.
  We are a nation of separated powers. We established the FISA Court to 
have this authority. The court should oversee those processes. That is 
what this is about.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Missouri.
  Mr. BOND. Mr. President, I yield the remaining time on this side to 
the distinguished minority leader.
  Mr. McCONNELL. Mr. President, there is one thing I think virtually 
everybody in the room will agree with, and that is that we can't leave 
here without a bill signed into law by the President of the United 
States. There is only one of these proposals before us that he will 
sign. He indicated earlier today that he will only sign a bill that 
Admiral McConnell, whom we all profess to greatly respect, believes 
will get the job done, at least for the next 6 months. There is one 
proposal which does that, and only one.
  So if we don't want to be back here tomorrow and next week still 
dealing with this problem--and I think we certainly agree we cannot 
leave town without addressing it--there is only one way to get a 
Presidential signature, and that is for the Bond-McConnell proposal, 
upon which we will vote in a moment, to get 60 votes. That is the only 
way to get the job done. There may be merit in both proposals, but that 
is not the way Admiral McConnell sees it. He enjoys widespread respect 
throughout this body. If we want to get the job done and get the 
President's signature, the Bond-McConnell proposal is the one that 
should be supported.
  I yield the floor.
  Mr. REID. I yield back any remaining time.
  Mr. McCONNELL. Is there any time remaining on this side?
  The PRESIDING OFFICER (Mr. Whitehouse). There is no time remaining.
  The question is on the engrossment and third reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. McCONNELL. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill pass?
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from North Dakota (Mr. Dorgan), the Senator from Iowa (Mr. 
Harkin), the Senator from South Dakota (Mr. Johnson), the Senator from 
Massachusetts (Mr. Kerry), and the Senator from Washington (Mrs. 
Murray), are necessarily absent.
  I further announce that, if present and voting, the Senator from Iowa 
(Mr. Harkin) would vote ``no.''
  Mr. McCONNELL. The following Senators are necessarily absent: the 
Senator from Tennessee (Mr. Alexander), the Senator from Kentucky (Mr. 
Bunning), the Senator from New Hampshire (Mr. Gregg), the Senator from 
Mississippi (Mr. Lott), the Senator from Indiana (Mr. Lugar), and the 
Senator from Arizona (Mr. McCain).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) and the Senator from Kentucky (Mr. Bunning) would have voted 
``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 60, nays 28, as follows:

                      [Rollcall Vote No. 309 Leg.]

                                YEAS--60

     Allard
     Barrasso
     Bayh
     Bennett
     Bond
     Brownback
     Burr
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Graham
     Grassley
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Klobuchar
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Martinez
     McCaskill
     McConnell
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Salazar
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner
     Webb

                                NAYS--28

     Akaka
     Baucus
     Biden
     Bingaman
     Brown
     Byrd
     Cantwell
     Cardin
     Clinton
     Dodd
     Durbin
     Feingold

[[Page S10871]]


     Kennedy
     Kohl
     Lautenberg
     Leahy
     Levin
     Menendez
     Obama
     Reed
     Reid
     Rockefeller
     Sanders
     Schumer
     Stabenow
     Tester
     Whitehouse
     Wyden

                             NOT VOTING--12

     Alexander
     Boxer
     Bunning
     Dorgan
     Gregg
     Harkin
     Johnson
     Kerry
     Lott
     Lugar
     McCain
     Murray
  The PRESIDING OFFICER.
  Under the previous order, 60 Senators having voted in the 
affirmative, the bill, as amended, is passed.
  The bill (S. 1927), as amended, is as follows:

                                S. 1927

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Protect America Act of 
     2007''.

     SEC. 2. ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN 
                   ACQUISITIONS OF FOREIGN INTELLIGENCE 
                   INFORMATION.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is amended by inserting after section 
     105 the following:


   ``CLARIFICATION OF ELECTRONIC SURVEILLANCE OF PERSONS OUTSIDE THE 
                             UNITED STATES

       ``Sec. 105A.  Nothing in the definition of electronic 
     surveillance under section 101(f) shall be construed to 
     encompass surveillance directed at a person reasonably 
     believed to be located outside of the United States.


``ADDITIONAL PROCEDURE FOR AUTHORIZING CERTAIN ACQUISITIONS CONCERNING 
               PERSONS LOCATED OUTSIDE THE UNITED STATES

       ``Sec. 105B.  (a) Notwithstanding any other law, the 
     Director of National Intelligence and the Attorney General, 
     may for periods of up to one year authorize the acquisition 
     of foreign intelligence information concerning persons 
     reasonably believed to be outside the United States if the 
     Director of National Intelligence and the Attorney General 
     determine, based on the information provided to them, that--
       ``(1) there are reasonable procedures in place for 
     determining that the acquisition of foreign intelligence 
     information under this section concerns persons reasonably 
     believed to be located outside the United States, and such 
     procedures will be subject to review of the Court pursuant to 
     section 105C of this Act;
       ``(2) the acquisition does not constitute electronic 
     surveillance;
       ``(3) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of a 
     communications service provider, custodian, or other person 
     (including any officer, employee, agent, or other specified 
     person of such service provider, custodian, or other person) 
     who has access to communications, either as they are 
     transmitted or while they are stored, or equipment that is 
     being or may be used to transmit or store such 
     communications;
       ``(4) a significant purpose of the acquisition is to obtain 
     foreign intelligence information; and
       ``(5) the minimization procedures to be used with respect 
     to such acquisition activity meet the definition of 
     minimization procedures under section 101(h).
       ``This determination shall be in the form of a written 
     certification, under oath, supported as appropriate by 
     affidavit of appropriate officials in the national security 
     field occupying positions appointed by the President, by and 
     with the consent of the Senate, or the Head of any Agency of 
     the Intelligence Community, unless immediate action by the 
     Government is required and time does not permit the 
     preparation of a certification. In such a case, the 
     determination of the Director of National Intelligence and 
     the Attorney General shall be reduced to a certification as 
     soon as possible but in no event more than 72 hours after the 
     determination is made.
       ``(b) A certification under subsection (a) is not required 
     to identify the specific facilities, places, premises, or 
     property at which the acquisition of foreign intelligence 
     information will be directed.
       ``(c) The Attorney General shall transmit as soon as 
     practicable under seal to the court established under section 
     103(a) a copy of a certification made under subsection (a). 
     Such certification shall be maintained under security 
     measures established by the Chief Justice of the United 
     States and the Attorney General, in consultation with the 
     Director of National Intelligence, and shall remain sealed 
     unless the certification is necessary to determine the 
     legality of the acquisition under section 105B.
       ``(d) An acquisition under this section may be conducted 
     only in accordance with the certification of the Director of 
     National Intelligence and the Attorney General, or their oral 
     instructions if time does not permit the preparation of a 
     certification, and the minimization procedures adopted by the 
     Attorney General. The Director of National Intelligence and 
     the Attorney General shall assess compliance with such 
     procedures and shall report such assessments to the Permanent 
     Select Committee on Intelligence of the House of 
     Representatives and the Select Committee on Intelligence of 
     the Senate under section 108(a).
       ``(e) With respect to an authorization of an acquisition 
     under section 105B, the Director of National Intelligence and 
     Attorney General may direct a person to--
       ``(1) immediately provide the Government with all 
     information, facilities, and assistance necessary to 
     accomplish the acquisition in such a manner as will protect 
     the secrecy of the acquisition and produce a minimum of 
     interference with the services that such person is providing 
     to the target; and
       ``(2) maintain under security procedures approved by the 
     Attorney General and the Director of National Intelligence 
     any records concerning the acquisition or the aid furnished 
     that such person wishes to maintain.
       ``(f) The Government shall compensate, at the prevailing 
     rate, a person for providing information, facilities, or 
     assistance pursuant to subsection (e).
       ``(g) In the case of a failure to comply with a directive 
     issued pursuant to subsection (e), the Attorney General may 
     invoke the aid of the court established under section 103(a) 
     to compel compliance with the directive. The court shall 
     issue an order requiring the person to comply with the 
     directive if it finds that the directive was issued in 
     accordance with subsection (e) and is otherwise lawful. 
     Failure to obey an order of the court may be punished by the 
     court as contempt of court. Any process under this section 
     may be served in any judicial district in which the person 
     may be found.
       ``(h)(1)(A) A person receiving a directive issued pursuant 
     to subsection (e) may challenge the legality of that 
     directive by filing a petition with the pool established 
     under section 103(e)(1).
       ``(B) The presiding judge designated pursuant to section 
     103(b) shall assign a petition filed under subparagraph (A) 
     to one of the judges serving in the pool established by 
     section 103(e)(1). Not later than 48 hours after the 
     assignment of such petition, the assigned judge shall conduct 
     an initial review of the directive. If the assigned judge 
     determines that the petition is frivolous, the assigned judge 
     shall immediately deny the petition and affirm the directive 
     or any part of the directive that is the subject of the 
     petition. If the assigned judge determines the petition is 
     not frivolous, the assigned judge shall, within 72 hours, 
     consider the petition in accordance with the procedures 
     established under section 103(e)(2) and provide a written 
     statement for the record of the reasons for any determination 
     under this subsection.
       ``(2) A judge considering a petition to modify or set aside 
     a directive may grant such petition only if the judge finds 
     that such directive does not meet the requirements of this 
     section or is otherwise unlawful. If the judge does not 
     modify or set aside the directive, the judge shall 
     immediately affirm such directive, and order the recipient to 
     comply with such directive.
       ``(3) Any directive not explicitly modified or set aside 
     under this subsection shall remain in full effect.
       ``(i) The Government or a person receiving a directive 
     reviewed pursuant to subsection (h) may file a petition with 
     the Court of Review established under section 103(b) for 
     review of the decision issued pursuant to subsection (h) not 
     later than 7 days after the issuance of such decision. Such 
     court of review shall have jurisdiction to consider such 
     petitions and shall provide for the record a written 
     statement of the reasons for its decision. On petition for a 
     writ of certiorari by the Government or any person receiving 
     such directive, the record shall be transmitted under seal to 
     the Supreme Court, which shall have jurisdiction to review 
     such decision.
       ``(j) Judicial proceedings under this section shall be 
     concluded as expeditiously as possible. The record of 
     proceedings, including petitions filed, orders granted, and 
     statements of reasons for decision, shall be maintained under 
     security measures established by the Chief Justice of the 
     United States, in consultation with the Attorney General and 
     the Director of National Intelligence.
       ``(k) All petitions under this section shall be filed under 
     seal. In any proceedings under this section, the court shall, 
     upon request of the Government, review ex parte and in camera 
     any Government submission, or portions of a submission, which 
     may include classified information.
       ``(l) Notwithstanding any other law, no cause of action 
     shall lie in any court against any person for providing any 
     information, facilities, or assistance in accordance with a 
     directive under this section.
       ``(m) A directive made or an order granted under this 
     section shall be retained for a period of not less than 10 
     years from the date on which such directive or such order is 
     made.''.

     SEC. 3. SUBMISSION TO COURT REVIEW AND ASSESSMENT OF 
                   PROCEDURES.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is amended by inserting after section 
     105B the following:


               ``SUBMISSION TO COURT REVIEW OF PROCEDURES

       ``Sec. 105C.  (a) No later than 120 days after the 
     effective date of this Act, the Attorney General shall submit 
     to the Court established under section 103(a), the procedures 
     by which the Government determines that acquisitions 
     conducted pursuant to section 105B do not constitute 
     electronic surveillance. The procedures submitted pursuant to 
     this section shall be updated and submitted to the Court on 
     an annual basis.
       ``(b) No later than 180 days after the effective date of 
     this Act, the court established under section 103(a) shall 
     assess the Government's determination under section 
     105B(a)(1) that those procedures are reasonably designed to 
     ensure that acquisitions

[[Page S10872]]

     conducted pursuant to section 105B do not constitute 
     electronic surveillance. The court's review shall be limited 
     to whether the Government's determination is clearly 
     erroneous.
       ``(c) If the court concludes that the determination is not 
     clearly erroneous, it shall enter an order approving the 
     continued use of such procedures. If the court concludes that 
     the determination is clearly erroneous, it shall issue an 
     order directing the Government to submit new procedures 
     within 30 days or cease any acquisitions under section 105B 
     that are implicated by the court's order.
       ``(d) The Government may appeal any order issued under 
     subsection (c) to the court established under section 103(b). 
     If such court determines that the order was properly entered, 
     the court shall immediately provide for the record a written 
     statement of each reason for its decision, and, on petition 
     of the United States for a writ of certiorari, the record 
     shall be transmitted under seal to the Supreme Court of the 
     United States, which shall have jurisdiction to review such 
     decision. Any acquisitions affected by the order issued under 
     subsection (c) of this section may continue during the 
     pendency of any appeal, the period during which a petition 
     for writ of certiorari may be pending, and any review by the 
     Supreme Court of the United States.''.

     SEC. 4. REPORTING TO CONGRESS.

       On a semi-annual basis the Attorney General shall inform 
     the Select Committee on Intelligence of the Senate, the 
     Permanent Select Committee on Intelligence of the House of 
     Representatives, the Committee on the Judiciary of the 
     Senate, and the Committee on the Judiciary of the House of 
     Representatives, concerning acquisitions under this section 
     during the previous 6-month period. Each report made under 
     this section shall include--
       (1) a description of any incidents of non-compliance with a 
     directive issued by the Attorney General and the Director of 
     National Intelligence under section 105B, to include--
       (A) incidents of non-compliance by an element of the 
     Intelligence Community with guidelines or procedures 
     established for determining that the acquisition of foreign 
     intelligence authorized by the Attorney General and Director 
     of National Intelligence concerns persons reasonably to be 
     outside the United States; and
       (B) incidents of noncompliance by a specified person to 
     whom the Attorney General and Director of National 
     Intelligence issue a directive under this section; and
       (2) the number of certifications and directives issued 
     during the reporting period.

     SEC. 5. TECHNICAL AMENDMENT AND CONFORMING AMENDMENTS.

       (a) In General.--Section 103(e) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1803(e)) is amended--
       (1) in paragraph (1), by striking ``501(f)(1)'' and 
     inserting ``105B(h) or 501(f)(1)''; and
       (2) in paragraph (2), by striking ``501(f)(1)'' and 
     inserting ``105B(h) or 501(f)(1)''.
       (b) Table of Contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.) is amended by inserting after the 
     item relating to section 105 the following:

``105A. Clarification of electronic surveillance of persons outside the 
              United States.
``105B. Additional procedure for authorizing certain acquisitions 
              concerning persons located outside the United States.
``105C. Submission to court review of procedures.''.

     SEC. 6. EFFECTIVE DATE; TRANSITION PROCEDURES.

       (a) Effective Date.--Except as otherwise provided, the 
     amendments made by this Act shall take effect immediately 
     after the date of the enactment of this Act.
       (b) Transition Procedures.--Notwithstanding any other 
     provision of this Act, any order in effect on the date of 
     enactment of this Act issued pursuant to the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) shall remain in effect until the date of expiration of 
     such order, and, at the request of the applicant, the court 
     established under section 103(a) of such Act (50 U.S.C. 
     1803(a)) shall reauthorize such order as long as the facts 
     and circumstances continue to justify issuance of such order 
     under the provisions of the Foreign Intelligence Surveillance 
     Act of 1978, as in effect on the day before the applicable 
     effective date of this Act. The Government also may file new 
     applications, and the court established under section 103(a) 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1803(a)) shall enter orders granting such applications 
     pursuant to such Act, as long as the application meets the 
     requirements set forth under the provisions of such Act as in 
     effect on the day before the effective date of this Act. At 
     the request of the applicant, the court established under 
     section 103(a) of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1803(a)), shall extinguish any extant 
     authorization to conduct electronic surveillance or physical 
     search entered pursuant to such Act. Any surveillance 
     conducted pursuant to an order entered under this subsection 
     shall be subject to the provisions of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.), as in effect on the day before the effective date of 
     this Act.
       (c) Sunset.--Except as provided in subsection (d), sections 
     2, 3, 4, and 5 of this Act, and the amendments made by this 
     Act, shall cease to have effect 180 days after the date of 
     the enactment of this Act.
       (d) Authorizations in Effect.--Authorizations for the 
     acquisition of foreign intelligence information pursuant to 
     the amendments made by this Act, and directives issued 
     pursuant to such authorizations, shall remain in effect until 
     their expiration. Such acquisitions shall be governed by the 
     applicable provisions of such amendments and shall not be 
     deemed to constitute electronic surveillance as that term is 
     defined in section 101(f) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801(f)).

  Mr. BOND. Mr. President, I move to reconsider the vote.
  Mrs. FEINSTEIN. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                            vote on s. 2011

  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.
  Mr. DURBIN. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There is a 
sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill pass?
  The clerk will call the roll.
  Mr. DURBIN. I announce that the Senator from California (Mrs. Boxer), 
the Senator from North Dakota (Mr. Dorgan), the Senator from Iowa (Mr. 
Harkin), the Senator from South Dakota (Mr. Johnson), the Senator from 
Massachusetts (Mr. Kerry), and the Senator from Washington (Mrs. 
Murray) are necessary absent.
  Mr. McCONNELL. The following Senators are necessarily absent: the 
Senator from Tennessee (Mr. Alexander), the Senator from Kentucky (Mr. 
Bunning), the Senator from New Hampshire (Mr. Gregg), the Senator from 
Mississippi (Mr. Lott), the Senator from Indiana (Mr. Lugar), and the 
Senator from Arizona (Mr. McCain).
  Further, if present and voting, the Senator from Tennessee (Mr. 
Alexander) and the Senator from Kentucky (Mr. Bunning) would have voted 
``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 43, nays 45, as follows:

                      [Rollcall Vote No. 310 Leg.]

                                YEAS--43

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Conrad
     Dodd
     Durbin
     Feingold
     Feinstein
     Inouye
     Kennedy
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Nelson (FL)
     Nelson (NE)
     Obama
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                                NAYS--45

     Allard
     Barrasso
     Bennett
     Bond
     Brownback
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Graham
     Grassley
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lieberman
     Martinez
     McConnell
     Murkowski
     Pryor
     Roberts
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner

                             NOT VOTING--12

     Alexander
     Boxer
     Bunning
     Dorgan
     Gregg
     Harkin
     Johnson
     Kerry
     Lott
     Lugar
     McCain
     Murray
  The PRESIDING OFFICER. Under the previous order, 60 Senators not 
having voted in the affirmative, the bill is placed on the calendar.
  The majority leader.
  Mr. REID. I move to reconsider the vote, and I move to lay that 
motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________