[Congressional Record Volume 153, Number 184 (Tuesday, December 4, 2007)]
[Senate]
[Pages S14710-S14713]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                        DOING THE SENATE'S WORK

  Mr. BOND. Mr. President, I thank the Chair, and I thank our minority 
leader, Senator McConnell, for outlining the importance of the Peru 
Free Trade Agreement and the other trade agreements. We have 3 short 
weeks to get to work and do the work we have not done so far this year. 
I wanted to address three aspects of it.
  First, for the intelligence community, we must act, and we must act 
now, to assure that the community has the ability and the tools they 
need to fight terrorists.
  Over the last 30 years, the world has experienced a technological 
revolution, and our laws governing terrorist surveillance have not kept 
pace. The old 1978 Foreign Intelligence Surveillance Act that I will 
refer to as FISA was drafted to deal specifically with the technology 
in use at the time. This spring, a court ruled that because of the 
change in technology, the old FISA law severely limited our ability to 
collect intelligence. Essentially, it made us deaf to collection of 
vitally needed information.
  Following that ruling, the Director of National Intelligence, Admiral 
McConnell, told Congress the United States was unable to conduct the 
critical surveillance of foreign terrorists planning to conduct attacks 
inside our country because of the outdated law. It not only affected 
our ability to protect the United States, but it also threatened the 
safety and lives of our troops abroad.

[[Page S14711]]

  In May I heard that directly from the commander of our Joint Special 
Operations in Iraq, who told me the limitations in the old law 
prevented him from capturing key information needed to protect our 
troops in theater. He could kill or capture a top al-Qaida leader, but 
he was not able to collect signals intelligence on them. The bottom 
line is that terrorists were able to use technology and our own 
outdated laws to stay a step ahead of us.
  Congress acted. On August 3 and 4, fortunately, we were able to pass 
the Protect America Act. I was proud to be the lead sponsor of it 
because passage of this temporary law essentially put our national 
security forces back in the business of collecting the information they 
needed.
  But this is only a stopgap measure and expires in February. It did 
not include all of the reforms we wanted.
  I hope this week the Senate will move to pass a permanent fix, or at 
least a longer term fix, to our intelligence surveillance law. It is 
critical we act before we leave for the holidays to make sure that our 
intelligence laws will be up to date and we will not run into a 
deadline when we come back in January and have to rush through a bill 
at the end or leave our intelligence community deaf to the new 
collections they need.
  We have two bills before us. Unfortunately, the Senate Judiciary 
Committee took the bill that came out of the Intelligence Committee and 
changed it so much that it would gut our intelligence surveillance 
ability. The committee ignored significant concerns expressed by the 
working level officials in the Department of Justice and the 
intelligence community, the very operators who know how the system 
works.
  The Senate Judiciary Committee ignored the concerns of its own 
minority members. The bill was voted out on a straight party line. The 
good news is there is another option. Earlier this year, the Senate 
Intelligence Committee voted out a bipartisan bill to update FISA. 
After the members of our committee had months and months to study this 
program, most of our committee members went out to the agency to see 
how it worked, to see the layers of protection built in to make sure it 
stayed within the law. We put together, Chairman Rockefeller and I, a 
bipartisan agreement which added more protections to the constitutional 
rights and the privacy rights of American citizens. We worked with the 
intelligence community representatives and the Department of Justice 
lawyers to make sure it would work.
  This bill we reported out of the Intelligence Committee gives our 
intelligence operators and law enforcement officials the tools they 
need to collect surveillance on foreign terrorists in foreign countries 
planning to conduct attacks inside the United States or against our 
troops, our allies. It is the balance we need to protect our civil 
liberties without handcuffing our intelligence agencies. I hope we can 
do the right thing and bring that bill to the floor.
  Now while we are working together to get our intelligence community 
the tools they need, our military needs Congress to provide the funds 
to get them the equipment, supplies, and fuels they need in the field. 
We have got men and women fighting for security in Iraq, in 
Afghanistan, and our own security. Regrettably, the Democratic 
leadership in Congress wants to hold these funds hostage to a far-left 
agenda which does not represent anything more than a sliver of popular 
opinion in this country. There is no excuse for stalling much-needed 
funds for American troops. These are American troops fighting in the 
field, and we are not giving them funds.
  By kowtowing to the far left moveon.org and the Code Pink 
constituency, some of the leaders of the Democratic Party in Congress 
who have control of it are playing a dangerous game with the safety of 
our troops in the field and the readiness and morale of our troops here 
at home.
  The latest partisan move comes despite the good news out of Iraq. 
Even the media, who has been opposed to our involvement in Iraq, is 
recognizing that as a result of the new Petraeus strategy, a surge on 
the counterinsurgency, working with the Iraqi security forces, our 
forces together with the Iraqis have been successful in eliminating key 
terrorist safe havens and hampering the enemy's ability to conduct 
coordinated attacks. There has been a consistent and steady trend of 
progress over the last 6 months.
  There are positive stories describing Baghdad's marketplace coming 
back to life. All over the place violent attacks in Iraq are falling. 
Even some of the war's loudest and strongest opponents in the House 
have acknowledged the signs of progress. But despite this, the 
leadership has failed to give us the opportunity to improve the funds 
our troops need in the field.
  With only a few legislative days left, our soldiers, sailors, our 
airmen, and marines cannot afford more of the partisan delay. We have 
got men and women risking their lives, and we are denying the funds 
they need for support. That is unthinkable. That is unthinkable. We 
have got to abandon the far left's strategies of retreat and defeat and 
allow our troops to do their jobs.


                       Peru Free Trade Agreement

  While we are talking about winning the war, there is also the war 
that is the soft war, the war of economic progress and opportunity. 
That is why, as Leader McConnell said, the free trade agreements are so 
important. We have the opportunity to help countries that are less 
developed get the free markets, the economic opportunity, the 
democratic chances to influence their government that we treasure and 
that have helped make our country successful.
  One of the most important things we can do is adopt the free trade 
agreements. We have four agreements pending. If enacted, these four 
pending FTAs would expand market opportunities between the United 
States and countries that have nearly 126 million consumers.
  Today's vote on the Peru FTA is very important. I urge us to support 
that. This will generate U.S. exports, create jobs, enhance the well-
being of farming communities such as those I represent in Missouri. Ask 
these farmers and the small businesses how important these agreements 
are. Opening these markets would boost U.S. farm exports by $1.5 
billion. Under the Peru FTA, more than two-thirds of current U.S. farm 
exports will become duty free. Tariffs on all farm products would be 
eliminated in 17 years.
  The FTAs are vitally important. When FTAs are defeated, it is bad 
news for progressive government supporting the United States. In 
particular, it would be a blow to President Uribe in Colombia, who has 
been successfully fighting the leftist FARC terrorists, curbing illicit 
drug production. He is the most important counterweight to the anti-
American vitriol of Hugo Chavez in Venezuela.
  Chavez was rebuffed by students in his own country. We have an 
opportunity to establish good working relationships with Peru, with 
Colombia, with Panama, to show the leaders of the opposition in 
Venezuela that there is a better way than Hugo Chavez and his blind 
adherence to the Castro model in Cuba.
  Every President since World War II, Republican and Democrat, has 
fought to reduce the kind of trade barriers that triggered the Great 
Depression of the 1930s. This administration has followed that example. 
I hope that in addition to Peru, the leadership of Congress will seek 
approval of free trade agreements and pass them for South Korea, 
Panama, and Colombia. It is vitally important not only for free trade 
between those countries but for our standing in leading for security, 
peace, and freedom in Latin America.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mr. CORNYN. Mr. President, the last 2 weeks we have been back in our 
States visiting with our constituents and reporting to them on the work 
of the Congress. I did the same. I was in Texas traveling across our 
State. People would ask me almost everywhere I went what is happening 
in the Congress, and specifically the Senate. I am sorry to say I had 
to tell them: Not much is happening. Here we are, 2 months into a new 
fiscal year and we have yet to pass 11 out of the 12 appropriations 
bills that literally keep the lights on and instead are working on a 
continuing resolution, or on auto pilot based on last year's budget and 
appropriations bills.
  I guess I was a little embarrassed to tell them that the approval 
ratings

[[Page S14712]]

which we have seen on the Rasmussen poll and others, the Gallup poll 
and others, appears to be well deserved. It is not a partisan matter. 
It is not that Republicans like what is happening and Democrats do not 
like what is happening, or vice versa, or independents like what we are 
doing. The fact is, no one seems to be satisfied. Given the 11 percent 
or so approval rating, I have to believe that in large part it is due 
to the fact that we simply have not taken care of our business.
  Nowhere in the rest of America could people fail to do as much as we 
have failed to do in the Senate and survive. Whether it is your family 
budget or it is the small business, you could not get away with it. 
Only Congress can get away with it, I guess, to the extent it has, the 
failures and inaction.
  There are two areas particularly I want to talk about in the next few 
minutes, where this has grave national security implications.
  First, as Secretary Gates, the Secretary of the Department of 
Defense, has told us, if they do not get emergency supplemental funding 
for our troops in Iraq and Afghanistan, they are going to have to begin 
to give people notices that they are going to run out of money in 
February. But they have to issue the notices 60 days in advance, which 
means by December 15 there are going to be lots of folks who are going 
to be getting pink slips just in time for Christmas because the Senate 
has failed to act on an emergency supplemental request to fund our 
troops.
  Frankly, I do not think we ought to be in that position. No. 1, it is 
completely inconsiderate of the families and the individual 
circumstances of those individuals who are doing their best to support 
our men and women in uniform.
  Secondly, it is completely unnecessary. If we would simply take care 
of our business and quit playing political games by tying deadlines to 
the appropriation of emergency funds to support our troops, we could 
fund our troops and continue to have the debates here in the Congress 
about what our policy ought to be.
  Those debates are important. I respect people with different opinions 
than mine. But we should not be doing it at the expense of our men and 
women in uniform or putting in jeopardy the jobs of people in civilian 
clothes who support our men and women in uniform, by tying the 
appropriation of this emergency funding to these deadlines to the 
emergency funding. I hope we will get this done and get it done 
quickly.
  Also, we have, in fact, a middle-class tax increase getting ready to 
come into full flower with the so-called alternative minimum tax. 
Unless we act, the 6 million people who currently pay this tax today 
will grow to 23 million next year. So that is another victim, those 
taxpayers are another victim of our inaction and failure to act in a 
responsible way when it comes to getting our work done.
  I want to join my colleague from Missouri, the ranking member of the 
Intelligence Committee, as well as my distinguished colleague from 
Arizona, and focus a little bit here in the next 5 minutes or so on the 
Foreign Intelligence Surveillance Act.
  As most Americans who have followed our debates here know, our 
ability to listen in on conversations between terrorists and to stop 
further terrorist attacks on our mainland and our homeland, as well as 
over in Iraq and Afghanistan, depends on a robust intelligence-
gathering capability.
  The Foreign Intelligence Surveillance Act was a law passed back in 
1978, back in a different era, which served our purpose then and made 
sure that no intelligence gathering, no wiretaps could occur against 
Americans. But the fact is that law has needed updating, has been 
updated from time to time. But we need to make clear that when it comes 
to monitoring communications between terrorists and foreign nations, it 
is not necessary to prepare a mound of paperwork and have an army of 
lawyers process it through a Foreign Intelligence Surveillance Court in 
order to get a permit to do so.
  We have, as we all know, passed a temporary measure which will expire 
in February. But we need to act on this permanently and not continue to 
jam all of our business into the last few weeks and put people in 
doubt, particularly in the intelligence community, of whether they will 
have the capability to detect and deter future terrorist attacks by 
employing this capability.
  Before we passed a temporary patch, I think, in August--or before we 
broke for the August recess--because of a ruling by a judge and because 
of changes in technology, it had been reported in the press that we had 
lost about two-thirds of our intelligence-gathering capability. 
Fortunately, we were able to fix that on a temporary basis.
  But there are also other important parts of this legislation such as 
how do we treat the telecommunications carriers that did what they were 
asked to do in the security interests of the American people and 
cooperated with the Federal Government? Are we going to provide them 
the legal protection they are entitled to under the law or are we going 
to hang them out to dry and make them liable for lawsuits and damages, 
perhaps, and jeopardize the intelligence that we have gained with their 
cooperation?
  That is the wrong way to treat these telecommunications carriers. We 
ought to not reward them but at least do our duty with regard to these 
citizens, corporate and individual alike, who cooperated with the U.S. 
Government in gathering intelligence and not punish them by hanging 
them out to dry and making them the subject of numerous lawsuits and 
litigation.
  Just one quick example: When Joseph Anzack was kidnapped by al-Qaida 
on May 12 while serving in Iraq and killed a few weeks later, you have 
to wonder if the paperwork that took roughly 10 hours to complete, 
along with a group of lawyers before an authorization to monitor 
communications which directly implicated his kidnappers would have 
saved his life. On that date, May 12, he and Alex Jimenez and Byron 
Fouty were kidnapped. But a 10-hour delay in getting the FISA paperwork 
done may have cost Joseph Anzack his life, and may have severely 
hampered the continuing efforts to find Alex Jimenez and Byron Fouty.
  While the Protect America Act that passed in August, as I said, 
provided a temporary fix to the problem, it will expire in February. I 
just ask our colleagues on the other side of the aisle, why are we 
delaying the passage of this important fix to this temporary act? Isn't 
it important enough to make sure we do everything possible not to 
hamper our intelligence-gathering capability? We are, in fact, a nation 
at war, and we ought to act like it. That means arming our intelligence 
community with the tools they need to detect terrorist communications 
and to deter future terrorist attacks.
  I know 9/11 seems like a long way off in the minds of many, and many 
have acted as if it never happened, but the fact is, unless we have 
robust intelligence-gathering capability, and unless the Senate acts 
promptly to permanently grant the power to our intelligence community 
to detect these communications, we are at grave risk, and we should not 
be as a result of Congress's inaction.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Arizona.
  Mr. KYL. Thank you, Mr. President. I thank my colleague from Texas 
for his comments about the Foreign Intelligence Surveillance Act and 
would like to expand on those a little bit more.
  The Foreign Intelligence Surveillance Act we sometimes refer to as 
FISA or the FISA law. It is important we understand why we need to 
update this FISA law. In a word, it has to do with the fact that 
technology has moved forward faster than our ability to change the law. 
As a result, as the Senator from Texas just noted, we lost about two-
thirds of the intelligence gathering on al-Qaida that we could have 
intercepted and were previously intercepting when it became clear we 
needed to change the law to keep pace with the advances in technology.
  In the Protect America Act we restored access to that information, 
and we are now back to collecting that information. But the Protect 
America Act expires on February 1. As a result, we are now back to 
reauthorizing that act in a permanent way. We need to do so because, 
again, if this authority lapses, we are back to where we were when we 
were losing two-thirds of the information that we should be gathering 
on al-Qaida.

[[Page S14713]]

  It is not as if we do not understand this is a serious problem. Al-
Qaida still exists. It has not been destroyed. We know what it has 
done. We know what it would like to do. We know they continue to plot. 
It is critical for us not to ignore the threat. Of course, the first 
step in dealing with it is to do the best possible job we can in 
monitoring communications between people who would do us harm.
  We all agree that congressional oversight is important to the effort, 
and all of the legislation we have adopted has enhanced congressional 
oversight. That is a good thing. That is not in question. But you do 
not have congressional oversight so oppressive that the intelligence 
folks cannot collect the information they need to collect. We need to 
be careful that in redrafting FISA we do not actually impede our 
intelligence collection in the name of congressional oversight.
  There are some problems with legislation that came out of our 
committee, the Judiciary Committee--some big problems--much less so 
with the bill that passed out of the Intelligence Committee. Even 
Members who objected earlier agreed, and I think have agreed, we can 
provide the necessary statutory authorization for the President to act, 
and I think most would agree we have to have such authorization in 
place to deal with groups such as al-Qaida. But their concern was we 
simply wanted to have congressional authority for it, and that is what 
the act has done.
  We have to be careful that in granting the authority we do not attach 
so many conditions to it that, once again, it is impossible for the 
intelligence agencies to do the job we have mandated they do. As I 
said, the bill reported out of the Judiciary Committee, and to some 
extent even the bill from the Intelligence Committee, does tie down our 
intelligence agencies with too many limits on how they can monitor 
foreign intelligence organizations.
  What we are really looking at is some of my colleagues' efforts to 
take away core responsibilities and authority that the President has to 
protect our Nation in gathering foreign intelligence.

  Let me cite a couple of examples. The Judiciary Committee bill makes 
FISA the ``exclusive means''--that is the language--of gathering 
foreign intelligence absent express statutory authority. That is too 
narrow. In other words, what it is saying is, if another intelligence-
gathering tool is not actually authorized by a statute, then it cannot 
be used to gather intelligence on a group such as al-Qaida.
  One obvious example of this is grand jury subpoenas. They are 
authorized by rules of evidence, not by a Federal statute. The way the 
Judiciary Committee bill appears to be written, the United States could 
not even use grand jury subpoenas to gather information about al-Qaida. 
Obviously, that is not an intended result--at least I would hope not--
but it is one of the things that would have to be fixed if we were to 
consider the Judiciary Committee bill.
  Another provision is in both bills, and it has been referred to as 
the Wyden amendment, named after my good friend and colleague from the 
State of Oregon. But as that provision is written, a warrant would be 
required for any overseas surveillance that is conducted for foreign 
intelligence purposes and is targeted against a U.S. person.
  Under current law, however, a warrant would not be required for 
overseas surveillance targeted at a U.S. person if that surveillance is 
conducted strictly for a criminal investigation. So you have the 
anomaly where a much lesser standard exists for mere criminal 
investigations and the tough standard for the intelligence community to 
try to meet exists for gathering foreign intelligence against 
terrorists, when you want to be able to gather that intelligence and 
may need to do so in a very quick fashion in order to prevent an 
attack.
  So the Wyden amendment would create the anomaly whereby U.S. overseas 
surveillance in the course of, say, drug trafficking or money 
laundering does not require a warrant, but foreign surveillance against 
a terrorist does. That is not a wise way to write the statute. It 
should not be more burdensome to monitor al-Qaida than it is to monitor 
a drug cartel. So that, obviously, would need to be fixed.
  Moreover, many foreign terrorist organizations engage in both 
terrorism and ordinary criminal behavior such as drug smuggling or 
money laundering. This provision, unfortunately, creates the perverse 
incentive for U.S. agents to monitor a group for its criminal 
activities rather than on account of its terrorist activities. The 
provision literally makes it easier to monitor a group on account of 
its smuggling of marijuana than on account of the fact that it is a 
foreign terrorist organization. These kinds of artificial distinctions, 
obviously, make no sense and overly complicate the mission that is very 
difficult to begin with that we have asked our intelligence community 
to engage in.
  In another area the Judiciary Committee stripped provisions from the 
Intelligence Committee bill that protect from lawsuits those 
telecommunications companies that have assisted U.S. intelligence 
agencies. This is very wrong. These companies were asked by the United 
States to help monitor al-Qaida after the September 11 attacks. Being 
patriotic Americans who wanted to help the United States in responding 
to the threat, the phone companies agreed to provide the help, and now 
they are being punished with lawsuits that damage these companies' 
reputations and are very expensive for them to respond. These companies 
helped us after September 11. They are not going to help again if we do 
not protect them from these types of lawsuits. The Intelligence 
Committee bill included a provision in the bill to do exactly that. Yet 
that provision was stripped, as I said, in the Judiciary Committee. It 
took away the protection for those who helped monitor al-Qaida. We need 
to restore that protection for these folks who helped us.
  The bottom line is, what is our goal? Do we want to allow our 
intelligence agencies to be able to use every legal tool at their 
disposal to track al-Qaida communications or do we want to again tie up 
our intelligence agencies in restrictions and procedures and then have 
some future 9/11 Commission--after, God help us, perhaps another 
terrorist attack--say Congress balled this up and included so many 
restrictions on intelligence gathering that they were not able to find 
out this attack was about to occur?
  We have to enable our intelligence agencies, not unduly restrict 
them. Obviously, we need oversight to prevent abuses. That is included 
in the statutory language, and that is fine. But it does not make sense 
to impose other restrictions that primarily serve only the purpose of 
preventing us from collecting good intelligence. There is no excuse, in 
effect, for making the same mistake twice.
  So, in summary, we are going to be dealing with the FISA reform on 
the floor of the Senate very soon. We need to. The authorization that 
currently exists expires on February 1. We need to have something in 
place before that occurs. The bill that came out of the Intelligence 
Committee by and large will provide the intelligence collection 
authority that is needed, although there are some problems with it as 
well. But the provisions that came out of the Judiciary Committee will 
not work. They will not allow our intelligence collection agencies to 
do their job properly and, as I said, create the anomalous situation 
where it is easier to go after intelligence on a criminal enterprise 
than it is against a terrorist organization. That cannot be.
  So I hope my colleagues, when we bring this bill to the Senate floor, 
will consider the future, the threat of groups such as al-Qaida, and 
understand it is up to us to ensure our Nation can be protected and not 
make the same mistake we made before of unduly restricting our 
intelligence-gathering agencies in fulfilling the mission--the so very 
important mission--we have asked them to perform.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont.
  (The remarks of Mr. Sanders pertaining to the introduction of S. 2405 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  The ACTING PRESIDENT pro tempore. The Senator from Ohio is 
recognized.

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