[Congressional Record Volume 153, Number 192 (Friday, December 14, 2007)]
[Senate]
[Pages S15644-S15647]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        FOREIGN INTELLIGENCE SURVEILLANCE ACT--MOTION TO PROCEED

  Mr. REID. Madam President, as I have announced several times in the 
last few days, I am going to shortly move to proceed to S. 2248, the 
Foreign Intelligence Surveillance Act. This is such an important piece 
of legislation. I spoke briefly on this subject earlier, but I want to 
provide a more complete explanation of the process by which the Senate 
will consider this vital piece of legislation.
  Earlier this year, the Director of National Intelligence came to 
Congress and alerted us to what he described as a significant gap that 
had emerged in our Nation's foreign intelligence-gathering capacity. 
Members on both sides of the aisle and from all sides of this important 
debate became convinced that this problem was real and that we had an 
obligation to address it. Although many of us differ on the solution, 
all Senators without exception, both Democrats and Republicans, want to 
ensure that intelligence professionals have the tools they need to keep 
our country as safe as possible. We all worked in good faith with the 
administration through July and August to provide those tools in a way 
that protects the privacy and liberties of law-abiding Americans.
  Unfortunately, the bill signed by President Bush fell well short of 
that goal. I and many other Democrats opposed the so-called Protect 
America Act. That is why we made sure it had a 6-month sunset, so we 
could come back and do a better job of ensuring judicial and 
congressional oversight of these sensitive activities. As we all know, 
had the President been operating as we have always operated in the 
past, he would simply have come to the Intelligence Committee, the 
Judiciary Committee, and told them the changes that were necessary. But 
they didn't do that.

  As my colleagues know, the Senate Judiciary Committee and the 
Intelligence Committee share jurisdiction over the Foreign Intelligence 
Surveillance Act. As a result of the President not asking us to act in 
a timely fashion, we find ourselves in a difficult position. But in 
spite of that, both committees have worked diligently over the past few 
months. This hard work has resulted in two different versions of 
legislation to improve FISA, S. 2248, reported out of the committees.
  I consulted extensively with Chairmen Rockefeller and Leahy about the 
best way for the Senate to consider this delicate subject. I have 
determined that in this situation it would be wrong of me to simply 
choose one committee's bill over the other. I personally favor many of 
the additional protections included in the Judiciary Committee bill. I 
oppose the concept of retroactive immunity in the Intelligence bill. 
But I cannot ignore the fact that the Intelligence bill was reported 
favorably by a vote of 13 to 2, with most Democrats on the committee 
supporting that approach. I explored the possibility of laying before 
the Senate a bill that included elements of both committee bills. 
Earlier this week I used Senate rule XIV to place two bills on the 
calendar, first S. 2440, consisting of titles I and III of the 
Intelligence bill, but did not include title II on retroactive 
immunity. The second bill, S. 2441, consists of title I of the 
Judiciary bill and titles II and III of the Judiciary bill. Senator 
Leahy and I favor the second bill, S. 2441. But for me to override 
Senate precedent and rules in this case would be wrong and unfair. 
After consulting with Chairman Rockefeller and Chairman Leahy, we 
recognized--these two veteran legislators--that the best thing to do 
would be to follow regular order. It is the right thing to do. It is 
not right for me to pick and choose. After the committee structure has 
been established--and I believe in it--to simply say it doesn't matter 
in this case, it matters in every case. If it doesn't matter in one 
case, then it doesn't matter in any case. We have to follow the rules 
we have here; otherwise, it becomes very unfair, and it becomes a 
situation where I am the one picking and choosing. That isn't the way 
it should be. Both chairmen, with their experience, agreed that this 
was the right approach, even though, as I repeat, Senator Leahy and I 
would rather have the Judiciary Committee bill that we believe 
strengthens the position we had initially and not have to try to put 
them in at a subsequent time.

[[Page S15645]]

  Under regular order, under the rules of the Senate governing 
sequential referral, I will move to proceed to S. 2248, the bill 
reported by each committee. When that motion to proceed is adopted, the 
work of both committees will be before the Senate, all elements of both 
pieces of legislation. All Senators will then be involved in the 
process. That is how it should be--all members of the Intelligence 
Committee, all members of the Judiciary Committee, and all Members of 
the Senate, Democrats and Republicans.
  Because of the order in which they considered the bill, the 
Intelligence Committee version will be the base text. The Judiciary 
Committee version will be automatically pending as a substitute 
amendment.
  I admire and respect the work done by these two committees on a 
bipartisan basis. Senators Leahy and Specter work extremely well 
together. Senators Rockefeller and Bond work extremely well together. 
These are the two committees that will have matters before this Senate. 
In the weeks since the two committees acted, Senators Rockefeller and 
Leahy have been working very hard to narrow the differences between 
their two versions of the bill. The ranking Republicans, Senators Bond 
and Specter, have been included in these conversations and 
deliberations. I expect that when we begin debate on the bill there 
will be amendments to incorporate many of the Judiciary Committee 
provisions into the Intelligence Committee text. In my view, that will 
make the final product stronger.
  There is one issue that cannot be resolved through formal 
negotiation. As some are aware, the Intelligence Committee bill 
provides the telephone companies with retroactive immunity for lawsuits 
filed by customers for privacy violations and other aspects of the law. 
For me and many Members, there is a belief that such a grant of 
immunity is not wise. Others disagree. We saw what happened in the 
Intelligence Committee. That is a committee that the Republican leader 
and I worked very hard to get people on that committee who are going to 
work long hours. No committee in the Congress works longer hours than 
the Intelligence Committee. They work in anonymity. They don't have 
public hearings very often. Most of the time they are secluded in the 
Hart Building in that confidential space they have alone. The press 
doesn't know what is going on there. Staff, except for a few exclusive 
staff members, have no idea what is going on in there. These people on 
the Intelligence Committee work very hard and out of the purview of the 
public. That is the way it has to be. I expect there will be full 
debate on this subject of immunity next week as there should be.
  Senators Specter, Feinstein, Whitehouse, Wyden, and others are 
working to craft a compromise that might give the phone companies some 
relief but would allow the lawsuits to go forward in a manner that 
would preserve accountability. In one way or another, we must ensure 
that President Bush is held accountable for his actions. Some people 
believe his actions were unwise and misdirected. It is important for 
the Senate to complete work on this bill next week to allow time for 
the Senate and House to produce a final product in conference. Our 
ultimate goal is a bill that commands broad bipartisan support in the 
Congress and in the country. The process I have outlined offers us the 
best opportunity to do so. It is going to be difficult, it is going to 
be time consuming, and it is going to be important. It is for the 
safety and security of our Nation.

  Mr. WYDEN. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. WYDEN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WYDEN. Madam President, for nearly 30 years, the Foreign 
Intelligence Surveillance Act, FISA, as it has come to be known, has 
represented the ultimate balance between our country's need to fight 
terrorism ferociously and to protect the constitutional rights of the 
American people.
  I intend to outline several of the key issues in this debate this 
afternoon. First, though, I want to say a word about the process which 
the distinguished Senate majority leader has just touched on.
  I was one of two in the Senate Intelligence Committee to oppose the 
Intelligence Committee's version of the legislation. I am strongly 
opposed to granting telecommunications companies total retroactive 
immunity when they have been accused of wrongdoing in the President's 
warrantless wiretapping program. The Intelligence Committee legislation 
includes such a grant of immunity, and it was the major reason I 
opposed the legislation.
  I do, however, respect Senator Reid's decision to hold the debate on 
this legislation under the regular Senate rules. Certainly, the 
distinguished majority leader has been under a lot of pressure from all 
sides to change the rules that in one way might favor one side or the 
other, but I think the majority leader has made the right decision by 
insisting that this debate go by the book.
  I have had the chance now to work with the distinguished majority 
leader for more than a quarter century. I know how much respect he has 
for the Senate and for this institution. He firmly believes in the 
committee process. He firmly believes in the Senate's rules and 
traditions, and he worked to carry those beliefs out as both the 
minority whip and the minority leader. So we will have a chance, as 
Senator Reid noted, to try to work a compromise on several of these key 
issues.
  I have said on a number of occasions, it may well be appropriate that 
the phone companies deserve some measure of protection with respect to 
their role in this surveillance program. But at a time when there are 
scores of lawsuits, the idea of complete and retroactive immunity seems 
to me to be over the line.
  It would be my intention, if we cannot reach a compromise on this 
issue--and it is my hope we will--it would be my intention, once again, 
to oppose legislation that grants total and complete immunity for the 
companies.
  Now, when the Senate Intelligence Committee picked up on its work 
this fall, coming back after the recess period, once again, we had a 
chance to meet with the director of the intelligence community, Mr. 
McConnell. As usual, he laid out a thoughtful case on a key issue, and 
that is that in some respects the Foreign Intelligence Surveillance Act 
has not kept up with the times.
  Clearly, there are threats overseas, when one foreigner communicates 
with another foreigner, where it is important that our intelligence 
officials are in a position to protect the interests of the American 
people and run surveillance with respect to those conversations.
  I and others said to the administration repeatedly that we would be 
supportive of that effort, and we would be supportive of that effort 
even when on an incidental basis it might pick up the conversations of 
innocent Americans. It was an effort to try to reach common ground with 
the administration and, in particular, to acknowledge that Admiral 
McConnell had a very valid point.
  But, unfortunately, the administration would not take yes for an 
answer. I and others said--Chairman Rockefeller, Senator Bond. I have 
had the chance to work closely with both of them. Both of them have 
been supportive of a number of initiatives I have felt strongly about 
with respect to accountability, holding the intelligence community to 
its word with respect to disclosure, declassification.
  I have the view that when Chairman Rockefeller and Senator Bond have 
a chance to work with a number of us on the committee, we can find 
common ground on a lot of these key issues. We can find common ground 
on the issue that the administration said for months and months was 
their principal concern; and that was to be able to pick up on the 
conversations of individuals overseas who represented a real threat to 
the security and well-being of the American people.
  But, as I indicated, that was not enough for the administration. They 
would not accept yes for an answer. At that point, they then began to 
push very hard for this idea of complete and retroactive immunity for 
the telecommunications companies. This

[[Page S15646]]

came, of course, after years and years of the administration saying 
this program was lawful. I have had some difficulty squaring the fact 
that the administration said for so long--for literally years--that the 
program was lawful and now, in the face of all these lawsuits, despite 
the assertion that the program was so lawful, there should be this 
blanket grant of immunity. So that alone raised concerns on my part. I 
decided to dig even more deeply into this issue.

  There are a number of Department of Justice legal opinions that 
relate to this program. The President has refused to make these 
opinions public or even share them with most Members of Congress. Our 
committee has reviewed the Department of Justice legal opinions related 
to the President's warrantless wiretapping program, and I have read 
these opinions myself. In my judgment, the legal reasoning in these 
opinions is shaky at best, and in some areas it is exceptionally weak.
  I think most Americans would be surprised and dismayed to learn that 
their President had ordered the NSA to conduct this program based on 
such flimsy legal justification. Nothing in any of these opinions has 
convinced me that the President's warrantless wiretapping program was 
legal. Now that the existence of the warrantless wiretapping program 
has been confirmed, I see no national security reason to classify most 
of these opinions. As far as I can tell, these opinions are being kept 
classified in order to protect the President's political security, not 
our national security.
  Our committee has also reviewed written correspondence sent to 
certain telecommunications companies by the Government, and I have read 
this correspondence as well. I cannot reveal the details of this 
correspondence, but I can say that I remain unconvinced that the 
Congress should grant total immunity to the companies.
  For years, there have been a number of laws on the books, such as the 
Wiretap Act, the Electronic Communications Privacy Act, and, of course, 
the Foreign Intelligence Surveillance Act, that together make it very 
clear that participating in a warrantless wiretapping program is 
against the law.
  Now, a number of our colleagues have argued that any companies that 
were asked to provide assistance after September 11 should be granted 
leniency since they acted during a time of national panic and 
understandable confusion. I think this argument has some merit, but the 
bill that was reported by our committee would not just grant immunity 
for 6 months or a year after September 11, it would grant immunity for 
actions taken up to 5 years after our country was attacked. I think 
that is far too long, and I will explain why.

  If a phone company executive was asked to participate in warrantless 
wiretapping in the weeks after September 11, it is understandable that 
he or she might not take the time to question assertions from the 
Government that the wiretapping was legal, but this should not give a 
free pass to participate in warrantless wiretapping forever. At some 
point over the following months and years, this phone company executive 
has an obligation to think about whether they are complying with the 
law, and as soon as you realize that you are breaking the law, you have 
an obligation to stop. In the months and years following September 11, 
it should have been increasingly obvious to any phone company that was 
participating in this program that it might not be following the law.
  For starters, in the weeks after September 11, Congress and the 
President got together to review the Foreign Intelligence Surveillance 
Act, including the wiretapping provisions. But Congress did not change 
the sections of the Foreign Intelligence Surveillance Act that state 
warrantless wiretapping is illegal. This should have been a giant red 
flag to any phone company that participated in the program.
  Next, in the summer of 2002, the Director of the NSA, General Hayden, 
appeared before our committee in open session and testified about the 
need to get warrants when someone was inside the United States. I am 
sure General Hayden would argue he was parsing his words carefully, but 
at a minimum it was clear, at this point, most of the Congress, and 
certainly the American people, believes warrantless wiretapping was 
illegal. The President has argued he authorized this program under his 
authority as Commander in Chief, but in the spring of 2004, the Supreme 
Court issued multiple rulings clearly rejecting the idea that the 
President can do whatever he wishes because the country is at war. 
These rulings should have also been a giant red flag for any phone 
company engaged in warrantless wiretapping.
  Finally, as the Intelligence Committee's recent report noted, most of 
the letters requesting assistance stated the Attorney General believed 
the program was legal, but as our report points out, one of the letters 
did not even say the Attorney General had approved. I have read this 
letter, and I believe it should have set off loud alarm bells in the 
ears of anyone who received it. In my view, as the years rolled by, it 
became increasingly unreasonable for any phone company to accept the 
Government's claim that warrantless wiretapping was legal. By 2004, at 
the very latest, any companies involved in the program should have 
recognized the President was asking them to do things that appeared to 
be against the law. The former CEO of Qwest has said publicly he 
refused requests to participate in warrantless surveillance because he 
believed it violated privacy laws. I cannot comment on the accuracy of 
this claim, but I encourage my colleagues to stop and think about its 
implications.
  I also encourage my colleagues to go read the letters that were sent 
to telecommunications companies. I think these letters seriously 
undermine the case for blanket retroactive immunity. The bill that 
passed the Intelligence Committee would grant immunity long past the 
point at which it was reasonable for phone companies to believe the 
President's assertions. It would even grant immunity stretching past 
the point at which the program became public. By the beginning of 2006, 
the program was public and all the legal arguments for and against 
warrantless wiretapping were subject to open debate. Clearly, any 
companies that participated in this program in 2006 did so with the 
full knowledge of the possible consequences. I see no reason at all why 
retroactive immunity should cover this time period. When the Senate 
Intelligence Committee voted to grant total retroactive immunity, I 
voted no because I thought it was necessary to take more time to study 
the relevant legal opinions as well as the letters that were sent to 
the communications companies.
  Now that I have had a chance to study these documents, I am convinced 
that granting 6 years of total retroactive immunity is not warranted. I 
would very much like to support this important legislation because 
certainly there are many good provisions and they have been put 
together under the work of Chairman Rockefeller and Senator Bond. It is 
my hope, as Senator Reid noted earlier, we will be able to find a 
compromise with respect to this issue. As I have said, it may well be 
clear at some point down the road that the phone companies deserve some 
measure of protection. We certainly want law-abiding citizens and 
companies to be supportive of our country in times of danger, and that 
is why I have made the point that if we were talking about a relatively 
short period after 9/11, it would be one thing, but it is quite another 
when you are talking about year after year after year, when there were 
red warning flags going up.
  So I look forward to working with Chairman Rockefeller and Senator 
Bond, both of whom have great expertise in this field and have always 
been very fair, and I hope we can find a way to address the question of 
the communications companies in a fair way.
  I would also like to say, before I wrap up--I know it is late in the 
day--a quick word about an amendment I offered in the committee that 
has been included in both versions of the legislation that the Senate 
Intelligence Committee wrote and that was written in the Judiciary 
Committee. Many Americans may not realize the original FISA law only 
provided protections for our people inside the United States and it 
does not cover Americans who travel overseas. If the Government wants 
to deliberately tap the phone calls of a businesswoman in Minneapolis, 
MN, or an armed services member in Roseburg, OR, the Government has to 
go to a judge and get a warrant. But if that

[[Page S15647]]

Minnesota businesswoman or Oregon serviceman is sent overseas, the 
Attorney General can personally approve a surveillance by making his 
own unilateral determination of probable cause.
  It is my view that in the digital age, it makes no sense for 
Americans' rights and freedoms to be limited by physical geography. So 
when the Intelligence Committee was writing its legislation, I offered 
an amendment that would require the Government to get a warrant before 
deliberately surveilling Americans who happen to be outside the 
country. That amendment establishing these ``rights that travel,'' so 
to speak, was cosponsored by Senators Feingold and Whitehouse, and it 
was approved in the Senate Intelligence Committee on a bipartisan vote. 
The White House, regrettably, called this amendment troublesome, and I 
will only say I am prepared to work with colleagues on this issue. Just 
as I indicated I will be working with our Vice Chairman, Senator Bond, 
on the issue of telecommunications immunity, I am prepared to work with 
him and the chairman of the committee, Senator Rockefeller, on my 
amendment to make sure there are no unintended consequences with 
respect to the amendment I authored that is in the Intelligence 
Committee legislation and that is also in the Judiciary Committee 
print.
  I am not prepared to agree that Americans who step outside the 
country should have fewer rights than they do here at home. I am going 
to fight for that amendment that ensures Americans in the digital age 
have their individual liberties, have their constitutional rights 
wherever they travel, and I am going to fight for it even if the 
administration continues to oppose it.
  I yield the floor, and I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                             Cloture Motion

  Mr. REID. Madam President, I now move to proceed to Calendar No. 512, 
S. 2248, and I send a cloture motion to the desk.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to S. 2248, FISA.
         Harry Reid, Patrick Leahy, Ken Salazar, Daniel K. Inouye, 
           Robert P. Casey, Jr., Frank R. Lautenberg, Debbie 
           Stabenow, Richard J. Durbin, Tom Carper, John Kerry, E. 
           Benjamin Nelson, Evan Bayh, Kent Conrad, Carl Levin, 
           Mark Pryor, Charles Schumer, Jay Rockefeller, S. 
           Whitehouse, Bill Nelson.

  Mr. REID. Madam President, I ask unanimous consent that the mandatory 
quorum be waived that is required under rule XXII and that the cloture 
vote occur at 12 noon, Monday, December 17.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Madam President, I now withdraw the motion.
  The PRESIDING OFFICER. The motion is withdrawn.

                          ____________________