[Congressional Record Volume 154, Number 12 (Friday, January 25, 2008)]
[Senate]
[Pages S317-S320]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FISA AMENDMENTS ACT OF 2007--Continued
Mr. WHITEHOUSE. Madam President, I ask that the pending amendment be
set aside so I may call up amendment No. 3905.
The PRESIDING OFFICER. Is there objection?
Mr. BOND. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. WHITEHOUSE. Madam President, I guess I would like to start by
saying I appreciate very much the sentiments that were recently
expressed by the Senator from Tennessee and the Senator from Texas, who
is my friend who served with me as attorney general at the same time in
our respective States, Texas and Rhode Island. I ask them to let me
know when that new approach will begin because I am, frankly, not
seeing much of it in the Foreign Intelligence Surveillance Act
procedures we are going through on the floor. I confess, I am a new
Member of this body, and I do not understand why.
We heard Senator Dodd, the very distinguished Senator from
Connecticut, who has served in this body for 27 years, describe how
important this Chamber is and that it is the right of Senators to
debate matters, not for the sake of ventilating themselves but toward
actually getting a vote on a real amendment on a matter of real
significance.
We had one vote on a committee amendment. Not one Senator has
achieved getting a vote, and we are on a very short timeframe. I may be
new, but I will tell you that in the 1 year I have served, I have
presided a great
[[Page S318]]
deal. The Presiding Officer, the Senator from Minnesota, and I have
both spent a lot of time in that chair. It is a wonderful place to sit,
and you get a great view and a great education as to what goes on in
the Chamber.
I can recall over and over hearing my colleagues on the Republican
side of the aisle, as mad as they could be, complaining bitterly
because the majority had offered them only 10 amendments on a bill or
only 20 amendments on a bill. I cannot get one called up.
Let me first say, this is an important issue. On the one hand, we
have to deal with perhaps the greatest danger our country faces at this
moment, which is the threat that comes from international terrorism,
and we have at the same time to deal with one of the basic principles
of our Government--freedom, freedom from, among other things,
Government surveillance, unless it is done properly and by the law.
This is not some new idea. It goes back to the Bill of Rights, where
the very Founders of this country mandated that before the Government
could intrude into the persons, places, houses, and effects of
Americans, they had to get permission from a court.
The balance between freedom and security is an important one, a
historic one. So this is no minor issue on which to avoid real debate,
and the amendments are important ones. The amendments involve the
immunity issue about which Senator Dodd spoke so passionately. This is
a very important issue.
As I see it, we have some cleaning up to do in this body as a result
of a real mess the Bush administration left us. They could have gotten
a court order, and we know perfectly well that if a court order had
been obtained, there would be no issue of immunity for us to address. A
company following a court order is protected. End of story. They
couldn't be troubled to get a court order to protect these companies
they are so concerned about now. But you do not necessarily need a
court order. You can actually get a certification from the appropriate
Government official using language this Congress has provided, and it
will also provide protection to companies that cooperate in Government
surveillance, as long as they have been notified properly through the
certification process.
One would think the litigation would be over, if that certification
process had been complied with. It would be a slam dunk. Which raises
the logical conclusion that for some reason, the Government did not
comply with the certification process. I don't know why they did that.
I don't know if anybody else knows why they did that. It could be being
obtuse and stubborn and insisting it had to be done under the
President's unitary article II authority that they purposefully,
deliberately failed to follow the certification process to prove that
point they wanted to prove.
If that is the case, they have walked these phone companies into all
this concern we now have to address for no purpose whatsoever. But now
we do have to address the problem. No matter how they got into it, we
have this problem to address, and it is not an easy problem.
One side says: Well, blanket immunity. Well, that is fine, but you
are taking away rights and due process of people who are in court right
now. A judge has looked at this case and he didn't throw it out. There
is nothing to suggest that the litigation going on right now is not
entirely legitimate. So if we do that, we are taking away real rights
of real Americans that are currently in play right now before a court.
I don't know of a time the Congress has ever done that. As a former
prosecutor, like the Presiding Officer, the very notion that it is the
legislature's job to go into ongoing legitimate litigation and make
decisions about who should win and who should lose seems to me a
spectacular trespass over the doctrine of separation of powers. I hope
my colleagues in this body who are in the Federalist Society would be
concerned about this separation of powers.
On the other hand, we could strip the legislation of its immunity
entirely and leave the companies in the litigation. That is not a great
solution either. There is a problem with that solution. The problem
with that solution is that the Bush administration has bound and gagged
the company defendants--instructed them they may not defend themselves.
So here you have legitimate American corporations in legitimate
litigation being told by the Government that they may not speak, they
may not answer, they may not defend themselves. That doesn't seem like
a great outcome either.
Well, an amendment I wish to offer, the one I just tried to call up,
proposes a potential solution. If the Government is going to tell them
they can't defend themselves, then in all decency shouldn't the
Government step in for them and say: OK, we are going to bind you and
we are going to gag you in this ring of litigation combat, but we are
going to step in for you and not leave you unable to defend yourself?
Isn't that the most decent, basic thing you could expect the Government
to do? That is what this amendment would do. It would substitute the
Government for the defendant corporations that the Government has bound
and gagged in this litigation--muzzled.
It would do another thing: It would make sure that a court decided
that these companies had in fact acted in good faith before they were
given that relief. They have told us they have acted in good faith, but
we are a legislature. Good faith is a finding the courts make. We are
not judges. We haven't heard from all sides. We haven't had hearings,
such as a court would have to get to the bottom of this.
There is an easy way to do it. You let the FISA Court, which has the
secrecy necessary to get to the bottom of this, make the determination,
the fundamental determination: Did these companies, in fact, act in
good faith? That is a basic point of entry. We have all assumed it to
be true, but it is not our job as Members of Congress to decide on the
good faith of an individual litigant in a matter that is before a
court.
I think this is a very legitimate amendment. It may not be germane
postcloture. It may never come up as a result of this. Maybe it is just
the new Senator. Poor kid, all this work on these bills. Doesn't he
know the merits don't matter around here? Maybe it is a situation
related to me not knowing my way around here yet. But I don't think so.
Because Senator Feinstein, who has been here for a very long time, who
is very distinguished, who is one of the most bipartisan Senators in
this Chamber, if not the most bipartisan Senator in this Chamber, has a
very similar piece of legislation. She has taken the good faith test in
the Foreign Intelligence Surveillance Court and picked it out as a
separate, solitary piece of legislation, and she is pursuing that. That
amendment can't be called up either.
You could say: Well, maybe it is because I am a Democrat; they are
shutting down all the Democrats. But my amendment is cosponsored by
Arlen Specter, the very distinguished Senator from Pennsylvania, who
has been the chairman of the Judiciary Committee. It is the Specter-
Whitehouse amendment. I don't see how you could have a better
credential, a better bipartisan credential than to have the Republican
chairman of the Judiciary Committee as the cosponsor of the amendment.
And yet we can't call it up, and because of the cloture motion that has
been filed, it may never be called up.
I think we are doing serious work, and I think we should get votes on
these amendments. I know some of my colleagues have said: Well, you
should defer to the committee bill. The committee bill was so good, it
was bipartisan, it passed 13 to 2. Well, I was in that committee. Yes,
it passed 13 to 2, but an awful lot of us said in our remarks on that
bill that we passed it out of that committee in order to work on it
further in the Judiciary Committee and in order to move amendments on
the floor. It did not pass with a 13-to-2 vote of Senators saying this
is ready to go to the President; this is ready to clear the Senate. It
passed on a 13-to-2 vote of Senators who knew that the bill was going
to the Judiciary Committee and who knew that the bill was going to the
floor and had reason to expect the ordinary courtesies of this body to
be able to offer amendments would be honored.
In fact, the amendment I tried to offer yesterday that was objected
to, that I can't call up, I raised in the Intelligence Committee. I was
told by the executive branch officials there--and I should say that
throughout this process I hope nobody would challenge how
[[Page S319]]
carefully my office has worked with the administration to get these
things right, to get technical language worked through properly--I was
told by the executive branch officials that the way I had written the
amendment caused technical difficulties. So I didn't pursue it in the
Intelligence Committee. I withdrew it, noting that we would work
through the technical difficulties and then bring it up again later on.
Nobody said then, oh, Senator Whitehouse, there is going to be no
later on; the committee vote is all you will get. Nobody said that.
Because that would violate the history and traditions of the Senate,
because it would be wrong, and because it wasn't the program. It wasn't
the plan at the time. I feel it has been represented to me that these
amendments would be voted on, and I feel that representation has been
dishonored by the procedure we are in right now.
I want to read something. I prepared remarks in the event that this
amendment was going to go in. Of course, I thought it was going to go
in. I had the Republican former chairman of the Judiciary Committee as
a cosponsor and it addresses the biggest question in this legislation.
It provides a potential resolution of the conflict between the two
arguments. Why on Earth would it not be something that I would be able
to exercise my traditional right to raise on the floor? So I planned
ahead and I wrote remarks for that occasion. Here is what I wrote at
the very end of the remarks.
Madam President, whether this amendment passes or fails, I
would like to say that it is the product of a truly
commendable process. Everybody here knows the old saw that
the making of law is like the making of sausage. You might
like the results, but you don't want to see what goes into
making it. Not so here. This amendment and Senator
Feinstein's are the results of many hours of thoughtful,
bipartisan consideration, hard work by Senators and their
staffs, reasoned and respectful committee debate, and what I
am sure will be thorough debate on the floor.
Those are the remarks I wrote. And I have to say right now, those
words taste like ashes in my mouth. I hope the spirit that Senator
Alexander and Senator Cornyn brought to the floor a moment ago will
begin to animate the FISA debate, and that legitimate--and I believe my
Republican colleagues will concede these are legitimate--and sincere--
and I believe my Republican colleagues will concede these are sincere--
and important amendments have a chance to be raised and debated and
voted on here on the floor of the Senate.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Madam President, first, I express my admiration for the
Senator from Rhode Island. The hard work he has put in on the Senate
Intelligence Committee and the experience he brings to that committee
is very important. We have worked with him on many issues that we were
able to accomplish in the committee. I agree with his assertion that we
need to balance freedom and security. That is one of the heavy
responsibilities we have in the Senate Intelligence Committee.
He talks about an amendment he has presented on a bipartisan basis,
and he and his Republican cosponsor feel very strongly about it. I
would be happy at the appropriate time to have debate and a vote on
this very important measure. But I also happen to agree with the Senate
majority leader, who said back in December that the issues before us on
this FISA bill are so important that we must ensure they have a 60-vote
margin for passage, the same vote that would have to occur if we were
to overcome a filibuster. That will ensure that there will be no
filibuster of the bill.
We filed cloture to make sure we could go forward with the bill. We
are waiting to see how that works out. But the measures, as I have
stated earlier--and the proponent of this amendment had the distinct
misfortune to be in the chair when I addressed this earlier today--but
for my colleagues, I would say that we have before us a very carefully
crafted bipartisan compromise to improve the FISA, Foreign Intelligence
Surveillance Act, significantly and to ensure that it can work to keep
our country safe.
Passing these measures on a 60-vote margin is nothing new. When I
brought the Protect America Act to the floor on August 3, I brought it
on an agreement that we had to have 60 votes to pass it, because it is
a very important bill. And I assume that this bill, which I hope will
pass, will have to pass with 60 votes.
I think it is a reasonable proposition to say that a 60-vote
threshold must be achieved to ensure there is bipartisan agreement on
something that is this important to our security and our freedom.
Now, my colleague raised the question about why the immediate
interception of foreign intelligence did not go forward right after 9/
11, when the President determined there must be interception of
telephone and other electronic transmissions coming from foreign
terrorists abroad into the United States.
I am told the administration met with the Gang of 8, leaders of the
House and Senate and the House and Senate Intelligence Committees. They
were faced with the problems that arose when the court order occurred
in the spring of last year, saying the existing FISA law did not permit
interception of communications coming through the way--coming the way
by which they now come, through cable and wire.
Previously, collections occurred routinely against foreign sources by
radio wave. And there were minimization procedures. But the FISA Court
was not involved. Because of the change in technology, as the order of
the court indicated last spring, FISA applied to collection of most of
the foreign terrorist communications, whether they were coming into the
United States or into other areas.
We were advised by the commanding general, Special Operations Command
General McCrystal, that the limitations of FISA in April and May and
June and July prevented our intelligence authorities from collecting
vital signals information on communications among terrorists in the
battlefield, putting our troops at risk.
He begged and pleaded to get it done. Well, despite the begging and
pleading to get it done, you have seen how long it takes us to get FISA
changed. As I understand the conversations held in the aftermath of 9/
11, when we knew there were other attacks being planned and we needed
to get control of them, there was general agreement among the parties,
legislative and executive, that we could not afford to try to take the
time to try to change FISA, to make it work with the new electronic
signals means of communication in time to stop further terrorist
attacks.
How long has it taken to get FISA passed? Well, the Director of
National Intelligence sent up a bill in April pointing out that the old
FISA law did not permit collection of foreign signals intelligence from
known terrorist targets abroad. He sent it up in April. He testified
before our committee in May. He came to the Senate and had a hearing in
our classified room telling leaders of both parties how important and
how sensitive it was.
Another month passed. Nothing happened. He came back with a short-
term extension that had to have a 6-month sunset on it. We passed that.
We passed that with a 60-vote margin. That has become standard for any
controversial and important legislation coming before this body, which
is applied not only in FISA but many other circumstances.
So we got a 6-month extension. Now, we are still debating whether to
have a slightly longer extension of the FISA bill. We reported the bill
on a bipartisan 13-to-2 majority in October. It sat for 2 months. The
majority leader tried to bring it up, but he was filibustered from
bringing it up.
We are now at the end of January, when the Protect America Act
expires on February 1. We need to move forward to get this bill passed.
We need to move forward as promptly as we can. But we need to move
forward on the same ground rules by which other major legislation and
which the Protect America Act came to the floor; that is, a 60-vote
margin to ensure there is bipartisan agreement on something as
important as the freedom and security framed by the FISA debate.
Let me add a word or two about the FISA Court. I had thought the
distinguished Senator from Rhode Island was going to offer an amendment
on assessing compliance and toss that to the FISA Court. Well, the FISA
Court, or FISC as we call it, was created in 1978
[[Page S320]]
to issue orders for domestic surveillance on particular targets.
Congress specifically left foreign surveillance activities to the
executive branch and to the intelligence community. The FISA Court,
they are article III judges who are called in from time to time to make
the judgments of probable cause for issuing warrants. They have
expertise in issuing warrants for surveillance on a domestic basis.
The bill before us gives them that responsibility, as did the other
FISA, the old FISA, for issuing those orders for people or facilities
in the United States. The old one said ``facilities in the United
States.''
Well, that court is not set up to deal with foreign intelligence
surveillance. As I quoted yesterday, the court's own words said--and
this is the December 11, In re: Motion for Court Records. The court
stated that: The FISA Court judges are not expected to or desire to
become experts in foreign intelligence activities and do not make
substantive judgments on the propriety or need for a particular
surveillance. Even if a typical FISA judge has more expertise in
national security matters than a typical district court judge, that
expertise would still not equal that of the executive branch which is
constitutionally entrusted with protecting national security.
So I expect we will get to the point where we will be debating the
distinguished Senator's assessing compliance amendment. But he has
brought today the substitution amendment.
I have already explained why we could not get through signals
collection immediately after 9/11 if we had gone to the old FISA. How
many months would it have taken? Well, the leaders who apparently spoke
with the intelligence community and the White House said they did not
want to highlight the fact that we were going to be listening in and
they did not think it would work quickly.
The intelligence committee has carefully assessed the orders which
were given to the telecommunications carriers which may or may not have
participated in the Terrorist Surveillance Program. And they were
based, yes, they were based largely on article II.
The FISC has already indicated nothing Congress can do can extinguish
the President's authority under article II, but Congress also passed
the authorization for use of military force, which was a counterbalance
in the weighing of the constitutional arguments of article II with the
provisions of the FISA law.
I have reviewed the Attorney General's findings, the Department of
Justice findings. I have read the authorizations and the directives. It
is clear to me, and clear to others, most of the others who have
reviewed it, they were clearly acting under the color of law.
I happen to think they were right. You can make an argument that
maybe they were not right. But the carriers that may have participated
were not in a position to challenge those. They got a lawful order from
the head of the intelligence community, based on authorization from the
President, in a manner cleared by the Department of Justice. Under
those circumstances, I believe it would not only have been unpatriotic,
but it would have been willful for the carriers to refuse to
participate. Yet they are being sued.
I think the suits are designed to cripple our intelligence community.
There are not going to be significant judgments awarded no matter what
they say because anybody who was intercepted would have to come in to
court and say they were intercepted and prove harm. I really question
whether they can do that. But under the substitution argument, the
disaster to our intelligence operations is clear, as is the damage to
the reputation and the business of any carriers which may have
participated.
Back in 2006, right after the disclosure of this and the terrorist
finance tracking measure, when the newspapers carried it, television
carried it, terrorist leaders--very bright people--abroad learned of
it, communicated about it on their own communications, and those
communications, I was told in the field, went down significantly.
So I asked General Hayden, at his confirmation hearing to be head of
CIA, how badly these disclosures hurt us. And he said at the time that
we are applying the Darwinian theory to terrorists; we are only
capturing dummies. The more we disclose about the workings of our
intelligence intercept capabilities, the more those whom we would
target know how to avoid them. And they are taking steps; they know too
much about it. Any further disclosures would further complicate and
damage the collection capabilities of our intelligence community.
Moreover, the damage to the reputation of the carriers would be
significant. The damage would occur likely in exposing the carriers--
their employees and their facilities--to terrorist activities or
vigilante activities. It would destroy their business reputation, cause
untold harm in the United States, and probably effectively curtail
their ability to operate overseas. If they are put out of operation or
if they are limited in their operations, then the intelligence
community loses a substantial means of acquiring the intelligence we
need.
So when this bill comes up--I expect it will come up, but I believe
it must come up under a 60-vote rule or we are going to go through the
normal process of getting to 60 votes, and we will never get anywhere.
I think both sides of the aisle should recognize that. I will be happy
to make these arguments.
I know my colleague from Rhode Island is a very skilled lawyer, a
very effective debater. He will present his arguments, I will present
my arguments, and there will be others who will join with us. So while
I would love to get on with the debate and votes, we are not going to
go there until we resolve the question of whether there is a 60-vote
margin.
So I thank the Chair, and I thank my colleague from Rhode Island.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WHITEHOUSE. Madam President, I appreciate very much the arguments
made by the very distinguished Senator from Missouri, who is also the
vice chairman of the Intelligence Committee and possesses great
experience in this area. My point, though, is that all these arguments
are for naught if the simple courtesy of a Senator being allowed to
vote on his amendment is not honored.
This particular amendment being nongermane postcloture means it may
very well be squeezed out by the procedural devices the Republican
leader has applied. So my simple question is, if I may ask it through
the Chair to the distinguished Senator from Missouri, the Republican
manager of this bill, can we assure Senator Specter and myself that
this amendment will, at the appropriate time in this legislation,
receive a vote?
Mr. BOND. Madam President, I am happy to respond as soon as we go
back to the normal means of proceeding on FISA matters, establishing a
60-vote threshold, which is the standard I had to meet to bring the
Protect America Act to the floor. I would certainly expect that his
amendment would be brought up, fully discussed, and debated. This is
one of the major issues we have to decide. But we have to decide it on
a 60-vote point of order.
____________________