[Congressional Record Volume 154, Number 13 (Monday, January 28, 2008)]
[Senate]
[Pages S375-S388]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2007

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 2248, which the clerk will 
report by title.
  The bill clerk read as follows:

       A bill (S. 2448) to amend the Foreign Intelligence 
     Surveillance Act of 1978, to modernize and streamline the 
     provisions of that Act, and for other purposes.

  Pending:

       Rockefeller/Bond amendment No. 3911, in the nature of a 
     substitute.
       Feingold/Dodd amendment No. 3909 (to amendment No. 3911), 
     to require that certain records be submitted to Congress.
       Bond amendment No. 3916 (to amendment No. 3909), of a 
     perfecting nature.
       Reid amendment No. 3918 (to the language proposed to be 
     stricken by Rockefeller/Bond amendment No. 3911), relative to 
     the extension of the Protect America Act of 2007.

  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 4:40 shall be equally divided and controlled between the two 
leaders or their designees with the final 20 minutes equally divided 
between the two leaders, with the majority leader controlling the final 
10 minutes.
  Mr. HATCH. Mr. President, I ask unanimous consent that I have at 
least 10 minutes to give my remarks on FISA.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. HATCH. Mr. President, I have been to this floor on numerous 
occasions to aggressively support the immunity provisions of the FISA 
modernization bill. I cannot understate my

[[Page S376]]

passion for this issue. I am of the firm belief that the lawsuits 
facing the telecom providers constitute a grave threat to national 
security. The potential risks from inadvertent disclosure of classified 
information cannot be understated. The potential damage to our 
intelligence sources and methods from allowing these lawsuits to go 
forward is substantial. Unfortunately, the more we delay this 
legislation, the more likely it is that our sensitive intelligence 
methods will be exposed, and not just exposed to the American people 
but to al-Qaida and thousands of other terrorists and enemies around 
the world. Remember, the very point of these lawsuits is to prove 
plaintiffs' claims by disclosing classified information through the 
discovery process.
  Let's think about this. Do we really want any person to be able to 
make accusations that are utter hearsay and then be given the ability 
to jeopardize the intelligence community's sources and methods by 
demanding discovery during frivolous litigation?
  We simply cannot do this. We should never reveal our intelligence 
agencies' technical capabilities, who they work with, who they target, 
or what their strengths and weaknesses are. We on the Intelligence 
Committees have that assignment because we are expected to honor the 
classified nature of those matters. The reasons should be obvious to 
all of us.
  Here is an example that illustrates this point: If criminals are 
running drugs northbound along I-95, they may have an idea that they 
will encounter police checkpoints. But they need to transport the 
drugs, so they will balance this risk. But what if they know for sure 
there is a checkpoint in a specific State? What if they then find out 
the checkpoint is at a specific mile marker? Will they change their 
routes and methods? You better believe they will. They are not stupid 
and neither is al-Qaida. Does it really make sense for us to broadcast 
across the globe, over the Internet, how we work? Do we want to replace 
the uncertainty of how we track terrorists with established fact?
  Confirmations or denials of the allegations in the lawsuits will 
certainly reveal certain intelligence agencies' sources and methods. 
Even when the proceedings are in camera or ex parte, this risk is still 
apparent. I cannot stress this point enough: The identity of any 
company that may or may not have cooperated with the Government with 
the terrorist surveillance program is highly classified. Accusations 
and hearsay do not confirm any relationship. The very activities these 
cases seek to disclose could reveal whether a company has or hasn't 
assisted the Government. In addition, any verdict in the case would 
likely provide the same type of information, and replacing the 
Government for these companies in the litigation does not solve the 
problem.
  Our enemies have tough decisions to make regarding how they 
communicate. They cannot stay silent forever, and they have to weigh 
the need to communicate against the chances that their communications 
are intercepted. We know they are carefully watching us and following 
every proceeding to see how our Government collects information. If 
they think they see a weakness in our collection capabilities, they 
will certainly try to take advantage of it. Make no mistake, al-Qaida 
and the other terrorist organizations would benefit tremendously from 
learning the identity of any company that assisted the Government 
following the attacks of 9/11.
  A few of my colleagues and many in the outside media have highlighted 
accusations from a former telecom employee. His name is Mark Klein. Mr. 
Klein claims he has proof that computers diverted domestic electronic 
communications from a phone company directly to the NSA, the National 
Security Agency. In fact, his accusations play a major role in one of 
the lawsuits currently facing a telecom provider.
  It is important to note the Government chose not to classify Klein's 
declarations or exhibits in one of the lawsuits. The Government could 
have, but it didn't. So Klein's court documents are public. Due to the 
ongoing litigation, I do not want to speak directly to his claims, but 
I will highlight a statement that was made by an official representing 
the Government during a court proceeding in one of the lawsuits against 
a telecom provider. This statement was from the Assistant Attorney 
General on June 23, 2006, in front of Judge Vaughn Walker. Here is what 
was said about the decision not to classify Klein's declarations. This 
is the Government statement regarding Mark Klein:

       We have not asserted a privilege over the Klein 
     declarations or exhibits. Mr. Klein and Marcus never had 
     access to any of the relevant classified information here, 
     and with all respect to them, through no fault or failure of 
     their own, they don't know anything.

  I cannot understate the importance of this quote as it has never been 
mentioned during this debate. No further commentary on it is needed, 
but I think its meaning is extremely important when Senators and the 
public weigh the relevancy and reliability of Klein's accusations. I am 
particularly hopeful that three of my distinguished colleagues who have 
highlighted Klein's claims on this floor are aware of these statements 
from the Government. I hope we all realize Klein's accusations 
highlight only one side of the story.

  I also want to draw attention to another claim repeatedly made on 
this floor: the false declaration that the immunity provision in this 
bill will ``close the courthouse door.'' These claims seek to convey 
the false impression that the immunity provision in this bill will halt 
all litigation relating to the terrorist surveillance program, or TSP.
  This is absolutely false. There are no fewer than seven lawsuits 
currently pending against Government officials that are related to the 
TSP. The immunity provision in this bill will not--I repeat that, will 
not--affect any of those cases. These cases are completely unaffected 
by the immunity provision in this bill.
  Here are the cases. Al-Haramain Islamic Foundation, Inc. v. George W. 
Bush; ACLU v. National Security Agency; Center for Constitutional 
Rights v. George W. Bush; Guzzi v. George W. Bush; Henderson v. Keith 
Alexander; Shubert v. George W. Bush; Tooley v. George W. Bush.
  Finally, it is imperative for us to understand national security is 
greatly dependent on the cooperation of telecom providers. We cannot do 
it by ourselves. Yet many foreign governments are in quite the opposite 
situation, one which gives them an advantage in certain electronic 
interceptions. Many foreign telecoms are run by the respective host 
government. Many others have government officials with controlling 
authority. These countries do not have to worry about telecom 
cooperation. They can simply force the telecoms to comply.
  We have chosen not to have that system in our great Nation. Rather, 
we rely on the voluntary assistance of telecommunication providers. 
When these companies are asked to assist the intelligence community 
based on a program authorized by the President and based on assurances 
from the highest levels of Government that the program has been 
determined to be lawful, they should be able to rely on these 
representations.
  For those who argue we need a compromise, let me be clear: We already 
have a compromise. The Government wanted more than what is represented 
in this bill, and they did not get it. The chairman of the Senate 
Select Committee on Intelligence stated the following in the 
Intelligence Committee report:

       The [Intelligence] Committee did not endorse the immunity 
     provision lightly. It was the informed judgment of the 
     Committee after months in which we carefully reviewed the 
     facts in the matter. The Committee reached the conclusion 
     that the immunity remedy was appropriate in this case after 
     holding numerous hearings and briefings on the subject and 
     conducting thorough examination of the letters sent by the 
     U.S. Government to the telecommunications companies.

  The immunity provisions in this bill are limited in scope. Not 
everyone is going to be happy with them, and that is the whole point. 
I, for one, wanted to see more protection for companies and Government 
officials in this bill, but I am willing to accept the compromise, and 
my colleagues should be willing to do the same. We are not all getting 
what we want. We are getting what the public has to have--what the 
public needs.
  We have been working on legislation to modernize FISA since at least 
April

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of 2007. I am extremely proud of the bipartisan efforts that led to 
this bill in the Intelligence Committee where all of the investigations 
were made, where the intelligence was protected. We found a balance. 
Let's show the confidence and resolve to vote on this compromise, not 
back away from it.
  I will support cloture on the Rockefeller-Bond substitute amendment, 
and I urge my colleagues to do the same.
  In that regard, I pray that my colleagues will listen to the 
distinguished ranking member of the Intelligence Committee, Senator 
Bond, who has played a significantly proper and important role in 
helping to get this bill through the committee and to the Senate floor. 
This is a major bill of protection for our country, and I attribute 
much of the success of it to Senator Rockefeller, the chairman of the 
committee, and Senator Bond, the ranking member, both of whom have been 
sterling leaders on this issue. I hope it is not true that anybody in 
this body will support some of the amendments that may be brought to 
the Senate floor because we have looked at this issue frontwards, 
backwards, all over the place. We have examined it. We spent many 
months on this subject in the Intelligence Committee. That should not 
be ignored. It passed the Intelligence Committee 13 to 2 compared to 
the substitute we defeated with cloture that was 10 to 9 in the 
Judiciary Committee.
  Mr. President, I ask that we support cloture on this bill.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, I believe our time on this side has expired. 
I thank my colleague from Utah, who is a valued member of the 
Intelligence Committee and the Judiciary Committee, truly a real 
authority in this area. When he speaks, he speaks from not only a great 
deal of knowledge but study. We are grateful for his assistance. He is 
a tremendous asset to this body in many ways but none more so than on 
the Intelligence Committee.
  The ACTING PRESIDENT pro tempore. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I rise to oppose the vote to invoke 
cloture on the FISA bill. I have no choice but to vote against cloture 
in order to preserve the rights of my colleagues to have their 
amendments to this landmark legislation considered.
  It has been a very weird process. The FISA legislation before the 
Senate has been taken, in effect, hostage. In a transparent attempt to 
score political points off of national security issues, the White House 
has decided, once again, that scaring the American people with 
unfounded and manipulative claims is in order.
  The President's decision to use the FISA bill in a game of chicken 
represents a new low, even by Washington standards.
  The administration's practice of placing politics above national 
security when it serves the poll-driven agenda of its advisers has 
become an addiction in this White House. Even when the Senate is on the 
verge of producing much needed national security legislation that the 
President supports and wants, the addictive political cravings that 
have coursed through the administration's body for the past 7 years 
kick in once again.
  As is often the case, addictions produce behavior that is both 
irrational, and in this case more, unfortunately, self-destructive. In 
this case, the White House has misguidedly calculated that it is worth 
jeopardizing passage of a bill which they support, which strengthens 
the collection of foreign intelligence, in order to obtain a short-term 
political objective.
  The White House is gambling with the safety of Americans and the 
continued cooperation of companies that we rely on to aid in our 
efforts to protect our country. It is time for the Senate to take a 
stand and reject these reprehensible tactics.
  The Senate Intelligence Committee took enormous care to craft 
legislation that would give our intelligence community greater latitude 
to conduct surveillance of foreign targets while not compromising the 
constitutional and statutory protections afforded to Americans both 
here and overseas.
  Senator Kit Bond and I worked extremely closely on that, as we did, 
as I will explain, with many others. This was a painstaking process. It 
went over many months, but it ultimately produced this balanced 
legislation that the vice chairman and the committee and I sought.
  It is a solid bill. And I believe with some limited changes it can be 
a better bill; limited changes, I might add, that will in no way impede 
or in any way intrude into the collection of the intelligence we need.
  Every step of the way during the process of producing this bill gave 
me great satisfaction. We worked in a consultive way with the 
administration. These discussions have always been in good faith. We 
have talked as professionals, trying to work out a hard problem to 
which most people do not pay a lot of attention but which has enormous 
consequences for our country, and we have done it in good faith, the 
very good faith that the actions of the White House now threaten to 
unravel.
  From when the Intelligence Committee called on the administration to 
propose a FISA modernization bill last spring--the vice chairman and I 
did that--to the many committee hearings that followed, to section-by-
section, line-by-line, word-by-word consultations too numerous to count 
that we had with the lawyers and intelligence experts in the Justice 
Department, from the National Security Agency, from the Office of the 
Director of National Intelligence to outside experts, we have worked in 
good faith with the administration to achieve, against, frankly, 
considerable odds, the unthinkable, to wit: a bipartisan bill dealing 
with the issues of profound complexity that has the endorsement of not 
only the President but also of the intelligence community professionals 
who will be the ones who carry out this surveillance. They want this 
bill.
  The committee included in its FISA bill a narrowly crafted provision 
that would provide immunity for telecommunications companies that 
participated in the President's warrantless surveillance program after 
September 11 and until the program was placed under court authorization 
last January.
  We rejected the administration's proposed open-ended language in 
defining very tailored immunity language. We rejected their open-ended 
language to extend immunity to Government officials. That was taken 
out. So if there was wrongdoing somewhere, do not make the assumption 
automatically, without thinking this thing through deeply, that it came 
from a private sector entity as opposed to public officials.
  I realize this is a controversial matter with many of my colleagues, 
particularly on my side of the aisle, but I reject the games that are 
being played on both sides: by those Senators who are prepared to 
filibuster the bill due to their opposition to narrow immunity, and the 
administration's wishes to prevent the Senate from considering any 
alternative amendments to the immunity provision.
  We should debate the liability issue fully, and the Senate should be 
allowed to consider alternative amendments. And I say this, and I think 
the vice chairman would agree with me, out of an abundance of 
confidence that the committee position will ultimately be sustained by 
the Senate in the end.
  The majority leader has made prompt passage of the FISA bill the top 
priority for the Senate. He pushed off other subjects so that it could 
be conferenced with the House and eventually be placed on the 
President's desk for his signature. If allowed, the Senate can complete 
action on the FISA bill in a matter of a few days. Unlike many bills 
the Senate considers where the number of amendments that can be 
disposed of can approach or exceed 100 or 150 or 175, passage of the 
FISA bill will probably involve relatively modest numbers of amendments 
and a very manageable number of amendments.
  I estimate that number would be somewhere in the 12-to-15 amendment 
range, probably fewer. Some of these amendments I would support as 
needed as improvements to the bill of the committee, the Intelligence 
Committee. Many I would oppose because of my concern that it would undo 
the careful balance we achieved in the underlying Committee bill. This 
is a stitched piece of work between collection of intelligence for the 
national security and

[[Page S378]]

the rights and privacy of individuals. I will oppose anything that 
undoes that balance.

  The amendments that are likely to pass with a majority vote, at least 
in my view, such as the Feinstein exclusivity and Cardin sunset 
amendments, are further refinements of provisions already in the 
Intelligence Committee bill, and they in no way bear on the collection 
of intelligence authorities sought and provided by our bill. Those that 
would undercut these authorities to be able to do collection, I am 
confident, would go down to defeat.
  But the Republican leadership, under orders from the White House, 
objected to these amendments being considered and voted on, and the 
bill passed before the February 1 expiration of the temporary and 
flawed Protect America Act passed last August. So that is where we are 
going to be unless we can resolve this in the Senate, which we could do 
by the end of the week.
  Why? Why has the White House used obstructionist tactics to prevent 
the Senate from passing a FISA bill that it wants, that it has declared 
acceptable?
  The President says he wants the Intelligence Committee bill passed as 
soon as possible. He said as recently as last Friday that he 
understands there may be some limited number of changes that will be 
needed to make the bill stronger. Others, including Minority Leader 
McConnell and Vice Chairman Bond, also have acknowledged the reality 
that amendments will have to be brought up and voted on before the 
Senate can pass the bill. That is, after all, the way of the Senate.
  Why, then, are they preventing the Senate from voting on the limited 
number of amendments before us and passing the bill, a bill that they 
want? Why? A bill that has everything to do with the future of our 
country, our national security, and a bill which we will not soon come 
to again if we don't achieve success in the coming days.
  The majority leader has repeatedly offered the proposal to extend the 
February 1 expiration date in the current stopgap law 30 days to allow 
sufficient time to complete our work on the legislation. But each time 
this 30-day extension consent request was sought, it was killed by the 
Republican leadership under orders from the White House.
  Why in the world would a temporary extension be objectionable to a 
President who is on record as saying he doesn't want the current law to 
expire without a more lasting FISA modernization bill in place? Yet, in 
one of the most astounding ``Alice in Wonderland'' moments I have ever 
witnessed in my time in the Senate, the White House announced last week 
that the President would veto a 30-day extension of the current foreign 
collection authorities passed by Congress.
  So let's recap. The President wants the FISA bill passed by the 
Senate, but he has sent the decree down to the Republican leadership 
that they are to prevent its prompt passage. Well, prompt passage we 
have to have. The President does not want the current 6-month Protect 
America Act to expire this Friday. He does not want that to happen. But 
he has stated he will veto any extension and thereby ensure that it 
will expire. What more evidence is needed to demonstrate the irrational 
and self-destructive political addiction that drives this White House? 
Doesn't drive the vice chairman of the Intelligence Committee, I 
guarantee that.
  Under the tortured logic of protecting America against terrorism, the 
White House has decided to exercise, frankly, its own form of political 
terrorism and has taken the FISA bill hostage.
  From the beginning, the administration has demonstrated a deep-seated 
contempt for the role of Congress in authorizing and monitoring 
intelligence activities.
  Whether it is the National Security Agency's warrantless surveillance 
program or the Central Intelligence Agency's secret detention and 
interrogation program, the White House for over 5 years walled off the 
Congress and the courts from conducting the sort of meaningful 
oversight and checks and balances that are essential to making sure our 
intelligence programs are on sound legal operational footing.
  To make matters worse, the administration has successfully used 
objections and delaying tactics over the past 3 years to keep the 
intelligence authorization bill from being passed and signed into law. 
It is this flawed policy of Executive Branch unilateralism that has 
created the mess we are now dealing with.
  There is no possible way I can overstate the importance of this bill. 
But it is hard to explain. Everybody can grasp on to the immunity 
issue, leap to one side or the other, often without sufficient thought. 
But the bill as a whole, meshed together as a whole like an Appalachian 
quilt, is a thing of beauty, can be improved, and should be passed.
  Nevertheless, I urge my colleagues to oppose the Republican cloture 
motion on the FISA bill so that we can reassert something called the 
role of Congress that we must play on these and other important 
national security matters. Oversight is what we do. We don't write a 
lot of bills in the Intelligence Committee, but we do oversight. But it 
is not welcome in the current atmosphere.
  I urge my colleagues to oppose the Republican cloture motion so that 
we can consider on their merits the limited, manageable number of 
amendments to the bill and, in the process, push bipartisan FISA reform 
across the finish line.
  I know Vice Chairman Bond and others are ready to get back to 
business and start disposing of amendments. I feel confident that he 
and I, as managers of this bill, will work closely, as we have in the 
committee, to ensure that we do no unintended harm to this bill in the 
matters of collection of intelligence or any other unbalancing of this 
Appalachian craftwork.
  There is still time for the Senate to work its way on the FISA bill 
and pass it before the week's end. I hope we do so.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, it is my understanding that this side has 40 
minutes of debate; is that correct?
  The ACTING PRESIDENT pro tempore. The Senator's side has 46 minutes.
  Mr. BOND. Mr. President, I ask unanimous consent that that be 
divided; that I be allocated 15 minutes and that I be notified when my 
15 minutes is up; that at the appropriate time, the Senator from Texas 
be recognized for 15 minutes; and then, after intervening discussion 
from the other side, the Senator from Georgia, Mr. Chambliss, be 
recognized for 5 minutes. I would reserve the remainder of the time for 
closing argument.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BOND. I thank the Chair.
  Mr. President, we began consideration of this bill on December 17, 
the FISA Amendments Act of 2007. As my friend the chairman said, it was 
passed by the Senate Intelligence Committee with overwhelming 
bipartisan support. It has garnered the support of the Director of 
National Intelligence, and I believe it is the way forward.
  I was a bit amused to hear my friend say that the FISA bill was being 
taken hostage; they were scoring political points. I haven't heard from 
the White House anything other than they want to have this bill passed.
  We have sought to protect the rights of Republican Members on the 
minority side. We have suggested that this bill is so controversial, as 
all intelligence bills are, that amendments be subjected to a 60-vote 
majority. The simple fact is, we could pass perhaps a number of 
amendments that could destroy the structure of the bill we have 
presented and put us in the position where it would not get the 60 
votes needed to pass.
  My suggestion is that we move forward accepting some amendments. 
There are amendments on both sides, I agree with the chairman, that can 
be accepted. Maybe we could even accept them without a vote or accept 
votes on others at a simple majority, a 51-vote majority, and then on 
certain controversial ones, we may have to have 60 votes. But we are 
ready to move forward. We are not the ones who have held up this bill. 
Very briefly, in April, the Director of National Intelligence, Admiral 
McConnell--and I will refer to him as the DNI--sent a bill to the 
Senate Intelligence Committee and said FISA is out of date. It has to 
be updated. He came before us and testified in May. I asked him to do 
something.

[[Page S379]]

Nothing happened. He came before the full Senate, actually, in closed 
session, all Senators invited; that was in June. He explained how 
urgent it was and how we were being left deaf and blind to 
communications of terrorists. Nothing happened.
  It was at the end of that session, going into the August recess, that 
he proposed a temporary shortened version of FISA which became the 
Protect America Act. I was pleased to support that in the Senate. It 
passed the House and was signed.
  We came back in September, knowing we had to work together on a 
bipartisan basis, and the Senate Intelligence Committee and staff 
worked very hard on a bipartisan basis to produce a bill, a very good 
bill. It was the ultimate compromise. There were some on both sides who 
were sullen but not rebellious. But we got the job done. We provided 
the tools the intelligence community needed and significantly expanded 
the protection of American civil liberties and privacy rights.
  The bill sat on the floor in October. It finally came to the floor 
December 17. A number on the majority side spoke out against the civil 
liability protection afforded providers who allegedly assisted the 
Government with the President's terrorist surveillance program, or TSP. 
They criticized various provisions in the Intelligence Committee bill. 
They spoke in favor of what regrettably was a partisan Judiciary 
Committee substitute.
  Debate is good for democracy but only if it is based on facts. 
Unfortunately, during the December filibuster, we heard a number of 
allegations, accusations, and even misrepresentation about the 
committee's bill and the TSP. Some of those comments will be repeated 
today.
  Our intelligence community professionals must have the tools they 
need to protect us. This is not the time to pass legislation that will 
make people feel good or will score political points. We must pass a 
bill the DNI will support and, thus, the President will sign. That 
should be our goal. Distorting the truth will not help us get there.
  The record must be set straight, and these are some of the myths we 
have heard. What are the facts? We were told that a ``new and 
aggressive'' interpretation of article II authority was used to justify 
the TSP. There is nothing new or aggressive about relying on the 
President's article II authority in the context of foreign intelligence 
surveillance.
  Courts, including the FISA Court of Review in the 2002 In re: Sealed 
Case decision and the Fourth Circuit in the Truong case, have long 
recognized distinctions between domestic and foreign surveillance and 
the President's constitutional authority to conduct foreign 
intelligence surveillance. Nor is it ``an invitation to lawlessness'' 
to argue that the President has inherent constitutional authority to 
wiretap without a court order. The Constitution is the highest law of 
the land and trumps any statute.
  In 1978, when Congress recognized the tension between FISA and the 
President's inherent authority under article II, they noted that 
warrantless surveillance for foreign intelligence gathering has been an 
integral part of our Nation's foreign intelligence. During World War 
II, our warrantless surveillance of the German and Japanese militaries 
and the breaking of their codes preserved our democracy. More recently, 
the Clinton administration conducted a warrantless search of the 
residence of convicted spy Aldrich Ames.

  The Intelligence Committee conducted a comprehensive, bipartisan 
review of the TSP. There is no evidence to substantiate the claims that 
the administration began its warrantless surveillance before September 
11 or that the TSP covered domestic calls between neighbors, friends, 
and loved ones. As the President has stated, the TSP collected 
international calls involving members of al-Qaida.
  For many months, critics have argued that TSP could have been 
conducted under FISA. That argument needs to be laid to rest. A 
decision by a FISA court last spring proved that the TSP could not have 
been done under FISA as it existed. The court decision resulted in 
significant intelligence gaps which led to the passage of the Protect 
America Act.
  I was not there, but I understand this matter was discussed by the 
President with the top leaders of this body and the other body, as well 
as the Intelligence Committee, and was told at the time it would not be 
possible to redraft and change the old FISA law in time to collect the 
critical information they hoped to gather before attacks occurred 
immediately following September 11.
  The liability protection for those carriers who allegedly assisted 
the Government with the TSP lies at the heart of this legislation. The 
President did what he had to do under article II, and our country was 
safer for it, and our country was safer because some of the carriers 
alleged to have participated acted in reliance and good faith on orders 
of the Attorney General, transmitting the President's order--and the 
intelligence community.
  In his original FISA modernization request in April of 2007, the DNI 
asked for full liability protection for all those allegedly involved. 
Some Members have attacked DNI McConnell's integrity, calling him ``an 
accidental truth teller'' and accusing him of backing out of an 
agreement made under the PAA. These comments are not only unjustified, 
unwarranted, and unfair, they are counterproductive. Throughout this 
debate, the DNI and other intelligence professionals have given us 
unbiased advice and technical assistance. They have assisted Democrats 
and Republicans. We need to focus on the task at hand, not engage in 
personal attacks against a man who has served his country honorably in 
the military and the intelligence community, and continues to do so as 
head of the community.
  Some of the Members have downplayed the need for liability 
protection. They argue that carriers already have statutory immunity 
and that continued litigation will not harm providers or our 
intelligence efforts. These statements reflect a startling lack of 
knowledge about our intelligence collection, which is dangerous to the 
continued operation of our gathering.
  First, the companies cannot prove they are entitled to statutory 
immunity because the Government must assert state secrets to protect 
their intelligence collection methods. Second, while it is true that 
the existence of the TSP has been revealed, there are still, 
fortunately, a few details about the program that have not. Each day 
the lawsuits continue--with the prospect of civil discovery--there come 
new risks that sensitive details about our intelligence sources and 
methods will be revealed. As General Hayden stated a year and a half 
ago: The disclosure of the TSP has had a significant impact on 
intelligence gathering of terrorists. We are applying the Darwinian 
theory. We are only capturing the dumb ones. We should not give 
terrorists additional insight through continued TSP litigation.
  Further, our intelligence and law enforcement agencies rely on the 
willingness of providers to cooperate--in emergencies, as with the 
kidnapping of a child, or when court orders are not required. Yet some 
carriers have already told us if they do not get liability protection, 
they will not be able to risk their business, their reputation, by 
continuing to help without court orders. That would be devastating to 
our intelligence collection.
  Our committee weighed all these arguments for and against liability 
protection. We concluded by a 12-to-3 bipartisan vote that civil 
liability protection for providers--and only providers, not Government 
officials--was not only fair, it was the only way to safeguard our 
intelligence sources and methods, and to ensure the continued 
cooperation of the providers.
  Substitution is not a solution since it would allow civil discovery 
to proceed against providers, still leaving them open to disclosure and 
exceedingly serious competitive and reputational harm, perhaps even 
physical retaliation by radicals who oppose our intelligence gathering. 
The intelligence community advised us through testimony and gave us 
documents that these companies acted in good faith, and we in the 
committee agreed with them. The providers who may have participated 
relied upon representations from the highest levels of Government.
  There is no need to create a statutory mechanism for a court, whether 
it be the FISA Court or any other, to second-guess this determination. 
Allowing

[[Page S380]]

a court to do so would throw uncertainty into an area where the 
committee's intent is clear: The ongoing civil litigation against 
providers must end. On this last point, the term ``amnesty'' was tossed 
around in December. But that incorrectly assumes that alleged carriers 
did something illegal. These carriers do not need amnesty. They did 
nothing wrong. They deserve liability protection.
  As I mentioned earlier, the DNI said he will support the Intelligence 
Committee's bill with two revisions. Yet some Members insist there are 
fatal flaws. We heard, No. 1, that there are no consequences if the 
FISC rejects the targeting/minimization procedures; No. 2, the bill 
does not contain a ``reverse targeting'' prohibition; and, No. 3, it 
allows warrantless interception of purely domestic communications. A 
plain reading of our bill shows that each one of these arguments is 
false.
  The bill that came out of our committee goes farther than ever before 
in providing a meaningful role for the courts and Congress in 
overseeing acquisitions of foreign intelligence. The FISA Court will 
review the targeting and minimization procedures to ensure they comply 
with the law. If the court finds any deficiency, it can order the 
Government to correct the deficiency or cease the acquisition.
  There is nothing--I repeat, nothing--in this bill that will allow 
warrantless wiretapping of Americans in violation of title III criminal 
wiretaps or FISA. There are explicit prohibitions against ``reverse 
targeting'' and the targeting of the person inside the United States 
without a court order. Americans abroad are given new FISA Court 
protections. The acquisitions must also comply with the fourth 
amendment. These are major new protections for Americans. Yet in spite 
of these measures--protections we have never seen before in the world 
of foreign targeting--we have been told the intelligence community will 
still target innocent Americans, listening to calls between parents and 
children overseas, between students and their friends studying abroad. 
That is absolute nonsense. The Intelligence Committee's bill only 
allows targeting of persons outside the United States to obtain foreign 
intelligence information. This is not a dragnet of surveillance. We are 
not listening to, quote, completely innocent people overseas, unquote, 
as some have claimed. The targets must be foreign targets--suspected 
terrorists or terrorist group members--and the Attorney General and the 
DNI must certify that a significant purpose of the acquisition is to 
obtain foreign intelligence information.

  For example, if a foreign target is believed to be an agent or member 
of al-Qaida, then all communications will be intercepted. Only 
Americans who communicate with that target will have those specific 
conversations monitored. If those same conversations turn out to be 
purely innocent, they will be ``minimized,'' or suppressed. Even if the 
communication contains foreign intelligence information, it is likely, 
in many instances, the identity of any U.S. person will be masked--or 
protected--in any intelligence reporting. Americans' privacy rights are 
protected up to the point where they are actually engaging in a 
terrorist operation.
  Mr. President, I see my time is running out. I will reserve the 
remainder of my time. I will give the rest of my remarks at a later 
time.
  Thank you.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. ROCKEFELLER. Mr. President, I yield 7 minutes to the Senator from 
Wisconsin.
  The ACTING PRESIDENT pro tempore. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I thank the chairman of the Intelligence 
Committee.
  The Senate should not be having a cloture vote on this legislation 
today. What we should be doing is considering and voting on the 
amendments that I and my colleagues tried to bring up last week, and 
other amendments that have been proposed to improve this badly flawed 
bill. But the minority does not think we should have the right to 
actually legislate here. They expect this body to rubberstamp that 
bill.
  I am afraid I have to say the conduct of the minority has been very 
disturbing on this. They insisted for weeks that it is absolutely 
critical to finish the FISA legislation by February 1, even going so 
far as to object repeatedly to efforts by the majority leader to extend 
for only 1 month the Protect America Act--a law they rammed through 
this Chamber in August--and they still don't want to give us another 
month so the Senate can carefully consider changes to it.
  So the majority leader brought to the floor the Intelligence 
Committee bill, the legislation that the minority wanted to consider 
and urged the Senate to stay in session through the weekend to complete 
work on it. I criticized the majority leader for bringing the 
Intelligence Committee bill to the floor because I thought the Senate 
should be working from the much better bill reported by the Judiciary 
Committee, on which I also serve, but I would have thought the minority 
would be pleased by the majority leader's decision.
  So what have they done in response? They have obstructed all efforts 
to actually work on this bill. They will not allow me to get a vote on 
the one amendment I have offered--an amendment cosponsored by Senator 
Hagel--and they will not allow me or anyone else to offer any other 
amendments. They filed for cloture the day this Senate began working on 
the bill, after allowing only a single amendment to be called up. They 
have effectively halted Senate consideration of this bill, despite the 
fact they are the ones--they are the ones--who are arguing that the 
February deadline is so critical. They seem to think that scare tactics 
peddled by administration officials, such as the Vice President, will 
be enough to pressure the Senate into letting them have their way. I 
certainly hope they are wrong.
  Mr. President, as you well know, this legislation is in serious need 
of fixing. It authorizes widespread surveillance involving Americans at 
home and abroad. Yes, it does. Despite what the Senator from Missouri 
said, it certainly does do that. I have a number of amendments I want 
to offer, both to ensure that the FISA Court has more authority to 
oversee these authorities, and to guarantee Americans their fourth 
amendment rights. But I cannot even get a vote on the one, simple, 
straightforward, and extremely modest amendment I offered last week. 
This demonstrates how brazen these tactics are. This bipartisan 
amendment would merely require that the Government provide copies of 
important FISA Court orders and pleadings for review to the committees 
of jurisdiction in a classified setting, so that Members of Congress 
can understand how FISA has been interpreted and is being applied. You 
would think this amendment would be, as they say, a no-brainer, and yet 
the minority will not even consent to a vote on that.
  But at least that one amendment is pending, and we will get a vote 
eventually. If the Republicans succeed in cutting off debate on this 
legislation, the Senate will not be able to vote on any other 
amendments, including the amendment Senator Dodd and I wish to offer to 
deny retroactive immunity to telecom companies that allegedly 
cooperated with the administration's illegal wiretapping program. It is 
unconscionable to think that the Senate should have to make a final 
decision on this legislation without even having an opportunity to 
debate and vote on whether to grant retroactive immunity to companies 
that allegedly cooperated with an illegal program.
  And why are we in this situation? Because the minority and the 
administration think they are entitled to ram the deeply flawed 
Intelligence Committee bill through the Senate without any changes. It 
seems they are worried the Senate might actually pass some of the very 
reasonable amendments I and others would like to offer if they give us 
a chance to do so or perhaps they are trying to sabotage the bill and 
then figure out a way to blame that outcome on Democrats.

  No Senator--no Senator--should go along with these cynical, strong-
arm tactics. We have to stand up to the administration and stand up for 
our rights.
  I strongly urge my colleagues to oppose cloture. Invoking cloture on 
this bill would be an abdication of our responsibility to consider 
legislation that will have a huge impact on the

[[Page S381]]

American people for years to come. I hope even those who support the 
Intelligence Committee bill will think twice before voting to make this 
body a rubberstamp.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Texas is 
recognized.
  Mr. CORNYN. Mr. President, I don't know why any Member of the Senate 
would object to procedures we would employ within the bounds of the law 
to listen to communications of terrorists in order to detect and deter 
further terrorist attacks on our own soil or against Americans or our 
allies. That is what this legislation does. Unfortunately, I think we 
are beginning to see a dangerous trend on the part of the Senate: Never 
failing to put off until tomorrow what we could and should do today.
  This legislation has been considered for an awfully long time, as we 
all know, in a bipartisan vote of the Senate Intelligence Committee, 13 
to 2. In October, this legislation was voted out of the Intelligence 
Committee in a carefully crafted attempt to consult with the Director 
of National Intelligence, the head of the Central Intelligence Agency, 
and all other intelligence community members who might be impacted by 
this legislation. There has been opportunity after opportunity for 
input into this legislation by Members of the Senate. Yet we hear today 
there are those on the floor of the Senate who are saying: Well, let's 
not vote on this legislation now. Let's kick the ball down the road 
another month so we can have the same debate, the same discussion we 
have been having for all those many months leading up to this point. 
The only reason we are where we are today is because we were unable to 
get a lengthy extension of the Foreign Intelligence Surveillance Act in 
August. Because of objections by those on the other side who are 
complaining about this legislation again today, we were only able to 
pass this legislation until December and then another extension was 
granted until February 1, when this Protect America Act expires of its 
own terms. I would hope this body would continue to act in a strong 
bipartisan manner in which the Intelligence Committee has voted this 
bill out of the Intelligence Committee by a vote of 13 to 2.
  I appreciate the fact that this body tabled the Judiciary Committee's 
partisan substitute and sent a signal that bipartisanship and consensus 
may once again become ascendant in matters of national security in the 
Senate. I think we would see that as a welcome development. At a time 
when we are talking about an economic stimulus package and seeing 
cooperation from the Speaker and the minority leader in the House and 
the President of the United States on matters affecting the economy, 
why can't we get that same sort of bipartisan cooperation on matters 
affecting national security?
  Today, the Senate is poised to move this critical national security 
legislation one step closer to the President's desk. Today's vote will 
tell us much more about whether this Senate is ready to set aside 
partisanship and willing to get the job done.
  Members of this body will remember that in December we had to pass an 
Omnibus appropriations bill that affected all discretionary spending of 
the U.S. Federal Government because we had been unable to pass 11 out 
of the 12 appropriations bills that it was our responsibility to pass. 
Unfortunately, this Senate has an unfortunate recent tendency to put 
off things until tomorrow what we should and could be doing today, and 
we should not let that happen. We need to finish this legislation to 
give Members a chance to debate and then to vote.
  I don't favor each and every provision included in the bipartisan 
compromise that is sponsored by Chairman Rockefeller and Vice Chairman 
Bond, but I do appreciate the fact that it is a carefully crafted 
compromise. It is a bipartisan compromise. It is the product of 
extensive consultation and negotiation with the experts in our 
intelligence and defense communities.
  In other words, this legislation reflects the valuable and necessary 
input of the very men and women who are currently intercepting phone 
calls, text messages, and e-mails between al-Qaida and their 
operatives--those who wish to do America and America's interests harm.
  The Senate has two choices today as the deadline for action rapidly 
approaches on February 1. On the one hand, we can show the American 
people that at least when it comes to matters of national security, it 
is possible to put partisanship aside and to get the job done in a 
bipartisan way. The other choice, which the majority leader has 
proposed, is we ask the American people for an extension, that we kick 
the can down the road for another month, only to find ourselves back in 
precisely the same posture we are in today: With no issues resolved and 
with the same old debates to be rehashed when we ought to finish the 
job today and follow the path of maximum responsibility.
  I ask my colleagues: What excuse could there possibly be to put the 
tough choices off for another month? What justifies asking the American 
people for more time to get the job done when we know what the choices 
are and we have simply to make those choices by our vote today. We have 
had 6 months since the Protect America Act was passed in August of last 
year to get the job done. In that time, this legislation has been 
subjected to scrutiny by two Senate committees, and there has been 
significant time debating this legislation on the floor.

  The fact is there is no acceptable excuse for failing to do our duty 
and our job. The excuses offered for delay are as compelling as the old 
school house claim that my dog ate my homework, I couldn't get it done.
  I say no more excuses, no more extensions. It is time for Congress to 
come together in a bipartisan fashion in the national security 
interests of the United States.
  It is specious to say there is no consequence to another extension, 
and it is the height of irresponsibility to argue that delay is the 
only responsible choice. As America's elected leaders, we have a 
responsibility to keep America safe. We cannot simply close our eyes 
and wish away the terrorist threat. It is easy this many years after 
September 11 to be lulled into a false sense of security as time takes 
us further away from that terrible attack on American soil. But it is 
undeniable that the threat from al-Qaida and Islamic extremists 
remains.
  In the face of the very real threat of radical Islamic terror, 
Congress must be resolute and we must eschew attempts to split along 
partisan lines, and we must embrace bipartisan solutions to our very 
real national security problem. That is what a vote on the Senate 
Intelligence Committee bill would reflect: a bipartisan solution to a 
national security challenge.
  That is why it defies credibility to argue that the responsible thing 
to do is to put the job off for another month. The majority leader's 
plea for an extension implies that the only two choices we have are, on 
the one hand, an extension for 1 month and, on the other hand, no bill 
at all. Neither of those is a responsible choice.
  In fact, there is a third option, and that option is for the Senate 
to pass a consensus bill that has the bipartisan support of the 
chairman and vice chairman of the Intelligence Committee and a 
bipartisan majority of the Senate, experts in the intelligence 
community, and the President of the United States.
  Let's be clear about what an extension means. An extension means 
further delay. It means putting off tough choices. It means not only to 
do so in a time of war but in a time of economic fragility, when we 
have other work we need to be doing on the floor of the Senate that is 
being taken up unnecessarily by repeating the same arguments over and 
over without any conclusion. It also means Congress has lacked the 
courage to relieve some of America's leading companies from the burdens 
and costs of litigation arising from their cooperation in the war on 
terror.
  Let us remember the telecommunications companies that may have 
cooperated with our Government at the request of our President, and 
upon the certification of the Attorney General, the chief law 
enforcement officer, that what they were being asked to do was within 
the law. To continue to subject them to litigation for doing their 
civic duty, to incur ongoing expense and inconvenience and to risk 
information that is sensitive to our security coming out during the 
process is simply not a responsible option.

[[Page S382]]

  Some in Congress apparently think these companies should have second-
guessed the legal representations made by the President and the 
Attorney General in the days and weeks and months following the 9/11 
attacks. Some in Congress have argued that the companies had a duty not 
to cooperate, a duty to refuse to assist this Nation's intelligence 
community with tracking terrorists during wartime. That is, 
unfortunately, how far we have come in this debate and how off the mark 
some have come.
  These companies, as every good citizen who cooperates with their 
Government to try to keep America secure in good faith, deserve the 
protection we are being asked to give them in this legislation. These 
costly lawsuits have not only put in jeopardy the future cooperation of 
these firms but also the critical national security concerns 
potentially exposed to the discovery process in civil litigation. It 
may be popular in some quarters to bash corporate America, but that 
rhetoric is sorely misplaced in this debate. The men and women who 
manage these companies made a good-faith decision to do their patriotic 
duty--to help their Government to track terrorists and to save American 
lives, and they should not be punished for it. They should be thanked 
for their cooperation.
  For Congress to allow these burdensome lawsuits to continue this long 
is unfortunate and unjust indeed, but for Congress to continue to put 
off the tough choices and leave these companies in legal limbo is not 
only unfortunate and unjust, it is also irresponsible. Now is the time 
for Congress to decide the question--no more excuses, no more delays, 
no more extensions. Today, the Senate can choose a path forward, a 
bipartisan path on critical national security measures, and I urge all 
my colleagues on both sides of the aisle to work together to move this 
bipartisan bill forward by voting for cloture at 4:30.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Georgia is 
recognized.
  Mr. CHAMBLISS. Mr. President, I rise today in support of cloture on 
S. 2248, the Foreign Intelligence Surveillance Amendments Act, or FISA 
Amendments Act. Time is running out on congressional action to fix 
FISA. The Protect America Act, which Congress passed in August to close 
gaps in our foreign intelligence collection, expires this Friday, 
February 1, 2008.
  Prior to congressional action in August, our intelligence community 
was unable to collect vital foreign intelligence without the prior 
approval of a court. And I emphasize in that ``foreign'' intelligence. 
This will be the case again if we do not make permanent these changes. 
Before August, if our intelligence community wanted to direct 
surveillance at an al-Qaida member located in Pakistan who was 
communicating with an operative terrorist in Germany, they would have 
to first petition the FISA Court for approval. In August of this year, 
our intelligence community told us that without updating FISA, they 
were not just handicapped, but they were hamstrung.
  The Protect America Act temporarily fixed the intelligence community 
legal gaps. The Director of National Intelligence highlighted some of 
the critical intelligence gained under the Protect America Act, 
including: insight and understanding leading to disruption of planned 
terrorist attacks; efforts of an individual to become a suicide 
operative; instructions to a foreign terrorist associate about entering 
the United States; efforts by terrorists to obtain guns and ammunition; 
terrorist facilitator plans to travel to Europe; identifying 
information regarding foreign terrorist operatives; plans for future 
terrorist attacks; and movements of key extremists to abate a risk. 
With the Protect America Act set to expire, Congress must act swiftly 
before our core collectors are faced with losing this kind of valuable 
intelligence as a result of inaction by Congress.
  Although the Protect America Act enabled the intelligence community 
to continue its important work, Congress would be derelict in its 
duties to merely extend the expiration of this act.
  The Senate Intelligence Committee has been reviewing and drafting 
FISA legislation since April of last year. Last fall, the committee 
considered and passed the bill that is now before us. In December, the 
bill came to the Senate floor for consideration, but some of my 
colleagues on the other side of the aisle delayed its consideration. We 
are now faced, after almost 10 months of thorough consideration, with 
the ability to pass legislation which will improve our intelligence 
collection and which contains safeguards for U.S. citizens' privacy 
rights that the Protect America Act does not contain.
  The FISA Amendments Act contains a clear prohibition against 
intentionally targeting persons located inside the United States and a 
prohibition on reverse targeting of U.S. persons, which the Protect 
America Act does not. The FISA Amendments Act makes clear that the FISA 
Court approval is required for intentionally targeting U.S. persons 
abroad and requires that any collection be consistent with the fourth 
amendment. Most important, the FISA Amendments Act contains 
retrospective immunity for our telecommunications carriers that may 
have assisted the Government in protecting American lives.
  Extending the Protect America Act does not ensure the continued and 
necessary cooperation of those who may have assisted the Government 
with the terrorist surveillance program after September 11.
  The Government often needs assistance from the private sector in 
order to protect our national security. Telecommunications carriers may 
provide the Government access to communication contents and records 
pursuant to many Federal processes, including judicial warrants, 
subpoenas, title III orders, FISA orders, attorney general 
certifications, administrative subpoenas, national security letters, 
and other statutory authorizations. In return, they should be able to 
rely on the Government's assurances that the assistance they provide is 
lawful and necessary for our national security.
  In Smith v. Nixon, the U.S. Court of Appeals for the District of 
Columbia suggested that the Government's request to wiretap a home 
telephone was illegal. Yet they dismissed the telephone company from 
any liability because of the assurances they received from the 
Government, the reasonable expectation of legality, and their limited 
technical role in assisting the Government in surveillance initiated by 
the Government.
  As precedence suggests, America's telecommunications carriers should 
not be subjected to costly legal battles and potentially frivolous 
cases, yet ones which could expose intelligence sources and methods, 
harming our national security, merely for their good-faith assistance 
to the Government. It is necessary and responsible for Congress to 
provide telecommunications carriers with liability relief.
  I urge my colleagues to support cloture on the Rockefeller-Bond 
substitute amendment and oppose a simple extension of the Protect 
America Act. Senators Rockefeller and Bond have worked hard and long 
hours to make sure we got it right in this bill that came out of the 
Intelligence Committee. After many hours of negotiating, debate, and 
hard work, it would a shame to see this bill not come to fruition and 
pass this body at this point in time. Our intelligence community needs 
the tools and additional safeguards provided in the FISA Amendments Act 
to keep our people safe, and Congress needs to act quickly before the 
Protect America Act expires and these tools are taken away.
  Mr. BIDEN. Mr. President, I rise today in opposition to the 
Intelligence Committee's version of the Foreign Intelligence 
Surveillance Amendments Act of 2007. It is without question that I 
support giving the administration the surveillance tools it needs to 
keep us safe. But Congress has both a duty to keep the American people 
safe and uphold the Constitution.
  It is therefore incumbent upon us in the Senate to craft clear 
legislation that protects both our national security and our civil 
liberties. We can do that by passing the Judiciary Committee 
substitute, which gives the administration the tools it needs to 
collect foreign intelligence and protects innocent Americans by 
ensuring that the FISA Court, and not the Attorney General, decides 
whether surveillance of a U.S. person is proper.

[[Page S383]]

  One of the defining challenges of our age is to combat international 
terrorism while maintaining our national values and our commitment to 
the rule of law and individual rights. These two obligations are not 
mutually exclusive. Indeed, they reinforce one another. Unfortunately, 
the President's national security policies have operated at the expense 
of our civil liberties. The examples are legion, but the issue that 
prompted the legislation before us today is one of the most notorious--
his secret program of eavesdropping on Americans without congressional 
authorization or a judge's approval.
  After insisting for a year that the President was not bound by the 
Foreign Intelligence Surveillance Act's clear prohibition on 
warrantless surveillance of Americans, the administration subjected its 
surveillance program to FISA Court review in January of last year.
  Then, last August, citing operational difficulties and heightened 
threats that required changes to FISA, the administration passed the 
Protect America Act--over my objection and that of many of my 
colleagues. The Protect America Act, which sunsets at the end of this 
month, amended FISA to allow warrantless surveillance, even when that 
surveillance intercepts the communications of innocent American 
citizens inside the United States.
  The administration identified two problems it faced in conducting 
electronic surveillance under FISA. First, the administration wanted 
clarification that it did not need to obtain a FISA warrant in order to 
conduct surveillance of calls between two parties when both of those 
parties are overseas. Because of the way global communications are now 
transmitted, many communications between people all of whom are 
overseas are nonetheless routed through switching stations inside the 
United States. In other words, when someone in Islamabad, Pakistan, 
calls someone in London, that call is likely to be routed through 
communications switching stations right here in the United States. 
Congress did not intend FISA to apply to such calls, and I support a 
legislative fix to clarify that point.
  The second problem the administration identified is more difficult. 
Even assuming that the government does not need a FISA warrant to tap 
into switching stations here in the United States in order to intercept 
calls between two people who are abroad--between Pakistan and England, 
for example--if the target in Pakistan calls someone inside the United 
States, FISA requires the government to get a warrant, even though the 
government is ``targeting'' the caller in Pakistan.
  The administration wants the flexibility to begin electronic 
surveillance of a ``target'' abroad without having to get a FISA 
warrant to account for the possibility that the ``foreign target'' 
might contact someone in the United States. I agree with the 
administration's assessment of the problem, but I don't support its 
solution.
  The administration's proposal, which is reflected in the Intelligence 
Committee's version of the FISA Amendments Act, would significantly 
expand the scope of surveillance permitted under FISA by exempting 
entirely any calls to or from the United States, as long as the 
government is ``targeting'' someone reasonably believed to be located 
outside the United States.
  The government could acquire these communications regardless of 
whether either party is suspected of any wrongdoing. The Attorney 
General and the Director of National Intelligence would make the 
determination about whom to target on their own, and they would merely 
certify, after-the-fact, to the FISA Court that they had reason to 
believe the target was outside the United States, regardless of how 
many calls to innocent American citizens inside the United States were 
intercepted in the process.
  This Intelligence Committee bill authorizes surveillance that is 
broader than what is necessary to protect national security and that is 
why I oppose it.
  The Intelligence Committee bill offers no protection for the innocent 
Americans who communicate with overseas relatives, business partners, 
or friends. Indeed, it allows the government unfettered access to these 
innocent Americans' communications. And once the government collects 
these communications, it can share them with other agencies throughout 
the government.
  The Judiciary Committee substitute--which authorizes much broader 
surveillance powers than the government had under FISA before the 
Protect America Act became law--offers several significant protections. 
I will mention a few: First, the Judiciary Substitute protects against 
the ``bulk collection'' of communications by requiring the government 
to target a specific person or phone number abroad, rather than 
allowing the acquisition in bulk the millions of communications going 
into and out of the United States. Second, it requires the government 
to obtain an individualized warrant from the FISA Court if the 
government's acquisition of a person inside the United States becomes a 
significant purpose of its surveillance of the foreign target. Third, 
it provides for much more robust and meaningful congressional 
oversight. And fourth, it does not provide retroactive immunity for the 
telecommunications carriers.
  I oppose granting retroactive immunity because if the carriers 
violated clearly stated Federal law, they should be held accountable. 
Cases against the carriers are already making their way through the 
courts. Retroactive immunity would undermine the judiciary's role as an 
independent branch of government. Furthermore, the provision that holds 
carrier liable for violations of the act is an important enforcement 
mechanism. It is fundamental to securing the privacy rights that FISA 
was meant to protect.
  When the Senate passed FISA, after extensive hearings, 30 years ago 
by a strong bipartisan vote of 95 to 1, I stated that it ``was a 
reaffirmation of the principle that it is possible to protect national 
security and at the same time the Bill of Rights.'' I still believe 
that's possible, but not if we enact the Intelligence Committee bill.
  Mr. President, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER (Mr. Cardin). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the time 
for the quorum we will go into be equally divided between Senators Bond 
and Rockefeller.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CHAMBLISS. 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. BOND. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. Mr. President, how much time is remaining on our side?
  The PRESIDING OFFICER. Twelve and a half minutes.
  Mr. BOND. Mr. President, while we are waiting for Members of the 
other side to come forward, I will make a few remarks, and we will see 
if we have some others join us.
  I was talking about some of the proposed amendments and questions 
that have arisen about this bill. There are some who would demand that 
a court order be obtained any time a call involved a U.S. citizen. But 
anybody who understands FISA or intelligence collection knows that is 
operationally impossible.
  For 30 years, the intelligence community has used minimization 
procedures when inadvertently intercepted calls come to or from 
nontargeted U.S. persons. So far, we are totally unaware of any abuses 
of this system. The minimization procedures have worked well. They 
worked well when information was being collected by radio, without a 
FISA Court order, and they continue to work well because the well-
trained people who run the NSA operations are overseen by multiple 
layers of supervisors and inspectors general and attorneys from the 
Department of Justice.
  There is no way to know, when a terror suspect places a call from a 
location in the Middle East, whether that

[[Page S384]]

person is going to call someone in his country or a neighboring country 
or the United States. So if you say you cannot intercept that call if 
it goes to a U.S. person, what, in effect, you are saying is you cannot 
intercept that call because you don't know where the call is going. So 
it means there will have to be an order for every foreign terrorist 
surveillance conducted by the NSA, and that is totally unworkable. We 
have seen that before. That shut the system down. It is unsound policy 
to require a FISA Court order if a terrorist target abroad calls a U.S. 
person. That may be the most important call to intercept in order to 
protect us from a terrorist attack at any time, and time matters. Do we 
really mean that the call cannot be intercepted until a court filing is 
prepared and reviewed by Government lawyers and that the FISA Court 
must review the application and supporting amendments? I hope not. Our 
enemies are not stupid. They would figure out very quickly that they 
can slow us down and bring our intelligence community to a halt simply 
by placing periodic calls to the United States.
  Some believe that the FISA framework in place is enough to keep us 
safe and that we don't need the Intelligence Committee bill. I find 
that comment disturbing. It is the FISA framework that created 
significant intelligence gaps threatening the security of our Nation. 
It is only because we passed the Protect America Act that those gaps 
were closed.
  I have already spoken about the problems with the Judiciary Committee 
bill. I wish to address some concerns and some ideas raised about the 
Foreign Intelligence Surveillance Court, the FISA Court.
  I think our bill out of the Intelligence Committee strikes the 
appropriate balance between providing tools needed to collect 
intelligence and a meaningful oversight role for Congress and the FISA 
Court.
  There are a lot of misperceptions about the FISA Court. As mentioned 
previously, for example, there are those who suggest the court should 
have decided whether providers acted in good faith before immunity is 
granted. We were told this makes sense because the court ``sits 24/7 
and this is all they do. They would act en banc.'' That is not 
accurate. The FISA Court does not sit 24 hours a day, 7 days a week. It 
is composed of U.S. judges from U.S. district courts throughout the 
country who have their own full caseloads and come to Washington, DC, 
on a rotating basis simply, as the enabling legislation says, to issue 
FISA Court orders. As a result, it would be difficult to get them to 
sit together.
  Given the court's facilities, it is not set up to preside over 
litigation. We were told that this is why the FISA Court was set up, 
but the legislative history and the measures----
  The PRESIDING OFFICER. The Chair advises the Senator that he is going 
into the time reserved for the Republican leader.
  Mr. BOND. Mr. President, I will then close and urge that our 
colleagues adopt cloture so that we may move forward on this very 
important bill.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, how much time remains on our side?
  The PRESIDING OFFICER. Nineteen and a half minutes, with 10 minutes 
reserved for the leader.
  Mr. ROCKEFELLER. I yield 9\1/2\ minutes to the Senator from 
Connecticut.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I thank the manager of the legislation, 
Senator Rockefeller. Once again, I will say that I have great 
admiration for the work done by the committee. It is not an easy 
matter. The Intelligence Committee has serious work to do. Much of what 
they have done, I agree with. My objections here this afternoon are 
focused on one aspect of the legislation rather than the cumulative 
effort the committee has made.
  Let me address the issue we will be voting on, and that is cloture. 
That is a critical issue for all of us.
  Aside from the question of whether I agree or disagree with various 
amendments, or even the bill, we find ourselves in the midst of a 
parliamentary nightmare. We have been in this position since late last 
year, going back to December.
  So much hinges on this bill. It will set America's terrorist 
surveillance policy well into the next Presidential term and beyond if 
a period of 6 years is adopted or even the 4 years suggested by Senator 
Cardin and others. Depending on the outcome of the debate, this 
legislation has the power to bring that surveillance under the rule of 
law or to confirm the President's urge to be a law of his own. It has 
the power to bring the facts of warrantless spying to light and to 
public scrutiny, or to lock down those facts as the property of only 
the powerful.

  It has the power, obviously, to declare the same law applies to all 
of us regardless of economic circumstances, well connected or not, or 
to set the precedent that some corporations are far too rich, far too 
affluent to be sued, that immunity can effectively not be brought 
against them.
  Wherever you come down on these choices--and I know there are those 
of us who have different opinions--you certainly cannot be neutral, in 
my view. None of us can be neutral on a matter such as this. This is 
one of the most important and contentious pieces of legislation we will 
debate in this session, and I argue any session of Congress, and yet 
the Senate is frozen today.
  I objected passionately to retroactive immunity, but I did not shut 
out debate. Republicans have frozen this body since debate began, not 
only last week but going back further, and they unwittingly created a 
perfect microcosm of retroactive immunity right here in this body. 
Because both flow from the same impulse: shutting down the organs of 
Government--in this case, the legislation, the courts, and now, because 
of the procedural nightmare we find ourselves in, the Senate--when you 
are afraid, of course, you will not get your way. That is why President 
Bush wants his favored corporations saved from lawsuits, it appears. 
That is why the minority party wants this bill saved from any and all 
amendments, saved from serious and thoughtful discussion.
  As a committee chairman myself, as I pointed out the other day, I 
wish I had the privilege being requested by the minority. I sometimes 
wished the bills we passed out of committee would have swept out of 
this body when I came to the Senate floor without a single amendment. 
That is not how this body works. It was never intended to work that 
way. It is certainly not the way the Founders intended it to work.
  Amendments are not entitled to pass, but they are entitled to a fair 
hearing, a fair debate, and a fair vote. The minority can object as 
strenuously as it wants, but it must do so fairly. I accept that 
principle, even when it does not go my way; even on immunity itself, I 
understand a minority cannot stand forever. Is it too much for 
Republicans to extend the same courtesy?
  On a bill as important as this one, it would be ridiculous to curtail 
debate, shut out new ideas, or rush to a conclusion without even 
extending the Protect America Act for a month to give us the time we 
need. Whether you agree with them or not--and some I disagree with 
myself--the amendments offered by my Democratic colleagues are serious 
proposals and deserving of serious consideration.
  Shouldn't we debate whether this new surveillance regime ought to 
stay inflexible through the next Presidential term and into the one 
after that?
  Shouldn't we debate whether we are going to categorically outlaw 
unconstitutional reverse targeting or indiscriminate vacuum cleaner 
bulk collection?
  Shouldn't we debate whether Congress even gets to see the secret 
rulings of the FISA Court?
  Those are some of a few of the well-intentioned proposals we need to 
consider before we vote on this bill. But across the board, the 
Republican answer to those questions is absolutely not, in every single 
instance: No debate, no votes. I disagree, and I will vote against 
cloture because we haven't done our job yet.
  I will also vote against cloture because I cannot support the bill as 
it now stands, as my colleagues know. First, the legislation still 
contains some egregious provisions for corporate immunity. I already 
made my objection to immunity many times

[[Page S385]]

over the last number of days. It puts the President's chosen few above 
the law, in my view; it endorses possibly illegal spying on Americans; 
and it strikes a harsh blow against the rule of law. I will continue to 
fight retroactive immunity with all the strength any one Senator can 
muster.
  But I also strongly object to many of the intelligence-gathering 
portions of the bill, as well as supporting many of them that have been 
included. This bill reduces court oversight of spying nearly to the 
point of symbolism. It would allow the targeting of Americans on false 
pretenses. It opens up new twisted rationales for warrantless 
wiretapping, which is exactly what it ought to prevent. It could allow 
bulk collection of communications of millions of Americans as soon as 
an administration, whether this one or future one, has the wherewithal 
to build such an enormous dragnet, and it sets all of these deeply 
flawed provisions in stone for 6 years, depriving us of the flexibility 
we need to fight terrorism.
  For all of those reasons, as well, I will vote against cloture later 
this afternoon.
  Tonight, the President will come to Congress to speak to us and to 
the American people about the state of our Union. I hope he will use 
that opportunity to realize the Senate needs more time to do its 
constitutional duty to debate and consider this important legislation. 
However, I am concerned that he will instead continue to threaten to 
veto this legislation unless it includes retroactive immunity for the 
telecommunications industry.
  The President has said this bill is essential to ``protecting the 
American people from enemies who attacked our country.'' That is a 
quotation. So why is he trying to stop it? Why is he promising to veto 
it? Why is he throwing it all away to protect a few corporations from 
lawsuits?
  I fear that if we give this President what he wants, we risk 
weakening the rule of law and placing the rights of some of the 
President's favored corporations over the rights of ordinary American 
citizens.
  I hope my colleagues will join with those of us who oppose cloture 
today on the substitute amendment to allow the Senate the time it needs 
to debate and improve the FISA Amendments Act. This issue is far too 
important for the security of our Nation and to our civil liberties to 
do otherwise.
  As we all know, as I have stated over and over, this is historic 
tension that dates back to the founding of our Republic, of keeping us 
safe from those who would do us harm, and protecting the rights and 
liberties of American citizens. It has been a tension that has been 
debated and argued for more than 200 years, and the adoption of the 
FISA legislation three decades ago created the means by which that 
balance could be struck, allowing us to do what is necessary to protect 
us against those who would do us harm while simultaneously guaranteeing 
those rights and liberties we enjoy as Americans would be protected in 
these circumstances.

  It is a critical point to maintain that balance. My fear is this 
legislation, particularly with retroactive immunity, upsets that 
balance significantly.
  As I said before, and I will repeat in closing, had this been a few 
months, even a year in the wake of 9/11, had this administration had a 
record of by and large supporting the rule of law, I would not stand 
here and demand that we not include retroactive immunity under those 
circumstances. But there has been a pattern of behavior by this 
administration from the very outset. We now know these warrantless 
wiretaps began in January or February of 2001, not in the wake of 9/11. 
So even prior to the tragic events of September 11, 2001, this 
administration had begun a pattern of seeking warrantless wiretaps on 
average American citizens without the court orders provided for under 
the Foreign Intelligence Surveillance Act. Of course, it went on for 5 
years and would still be ongoing were it not for a whistleblower in a 
report in a major American newspaper uncovering this program.
  This went on for 5 long years amidst a pattern of behavior by this 
administration. I do not think I need to necessarily enumerate the 
examples of that pattern, beginning with Abu Ghraib, secret prisons and 
rendition, habeas corpus, the U.S. Attorney's Office, and the list goes 
on and on. I cannot undo those mistakes, but they are more than just 
mistakes. They are tragic examples of this administration's trampling 
all over the rule of law. What we can do this evening and what we can 
do in the coming days, collectively, Democrats and Republicans, is pass 
a FISA bill, much of which is included in the work of Senator 
Rockefeller and Senator Bond. There will be some objections, obviously, 
to some amendments that will be offered, but to get our work done, pass 
this legislation, and move on to other business. The issues are far too 
important to leave them otherwise.
  I thank, again, Senator Rockefeller for giving me some time and urge 
our colleagues to vote against the cloture motion when that moment 
occurs.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from West 
Virginia.
  Mr. ROCKEFELLER. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, we are now only a few days away from 
the expiration of the Protect America Act, days away from a situation 
in which the intelligence community will be unable to freely monitor 
new terrorist targets overseas. We are flirting with disaster, and the 
American people deserve to know how we got in this predicament. So let 
me review it.
  Ten months ago, the Director of National Intelligence asked us to 
reform the Foreign Intelligence Surveillance Act. Our friends on the 
other side waited until July to take up a bill that agreed with his 
recommendations. It was not until August that Congress finally answered 
his pleas by authorizing for 6 months the overseas surveillance of 
foreign terrorist targets with the Protect America Act.
  When our friends on the other side got back from the August break, 
they vowed to quickly address what they decried as the shortcomings of 
the Protect America Act.
  The Senate Intelligence Committee, under the leadership of Senator 
Rockefeller and Senator Bond, took up the task. Reforming FISA was 
complicated and demanding work, but the committee members came 
together, as they were intended to, along with the executive branch, 
which, of course, was necessary.
  Everyone involved acted with determination, deliberation, and 
considerable skill. The process lasted 4 months. It involved numerous 
hearings, briefings, and negotiation sessions. The final product was a 
model of bipartisanship and accommodation across the Senate aisle and 
with the White House. The committee vote was not 15 to 0, but around 
here 13 to 2 is almost as impressive.
  But what was perhaps even more impressive is the fact that such a 
broad coalition of players had come together to meet the minimum 
standards required of any legislation that replaces the Protect America 
Act, something that allows the intelligence community to operate 
without unreasonable and counterproductive restrictions, which protect 
phone carriers from frivolous lawsuits for helping the Government hunt 
for terrorists, and which is guaranteed to be signed into law. All of 
those things are contained in the Bond-Rockefeller, Rockefeller-Bond 
proposal.
  Unfortunately, it was not until just before the Christmas break that 
our friends decided to even turn back to this vital issue, and even 
then we had to listen to a filibuster against FISA reform. Then when we 
began this session, our Democratic colleagues delayed consideration of 
FISA reform again by moving to the Indian health care bill instead.
  So here we are, once again, pushed up against a looming deadline. 
During last week's consideration of the FISA reauthorization, the 
majority said it would not consider a 60-vote threshold for votes. It 
did not offer time agreements, nor did it make any effort to limit the 
number of amendments.

  In short, the Senate faces a legislative logjam that ensures that we 
will

[[Page S386]]

let the February 1 deadline come and go without making a reasonable 
effort to enact a law.
  It should not have turned out this way. The administration negotiated 
in good faith with the Democratic majority on the committee that has 
the technical, operational expertise to handle the subject. And in the 
course of painstaking negotiations, the administration made tough 
concessions to our Democratic colleagues. It did this in order to 
arrive at a fair, bipartisan result that would allow it to continue to 
protect the homeland. Now that work is being brushed aside.
  The menu of amendments to the Intelligence Committee bill is little 
more than an effort to renegotiate this hard-won deal, an effort to 
deconstruct the bipartisan Intelligence Committee bill, and 
reconstruct, amendment by amendment, the divisive Judiciary Committee 
bill that was tabled by a strong bipartisan majority. That bill will 
not--I repeat, will not--become law.
  Reconstructing the Judiciary Committee bill is a pointless exercise. 
And with only 5 days until the Protect America Act expires, it is an 
exercise in which we do not have the luxury to engage.
  We can get serious and pass the bipartisan Intelligence Committee 
product or we can waste time on voting for poison pill amendments that 
weaken the bill and that will prevent it from becoming law.
  I urge our colleagues to make the right choice, to vote for cloture 
so that we can continue to protect the homeland and against cloture on 
the 30-day extension. We cannot delay this important legislation for 
another month. Of course, the President will not sign a 30-day 
extension.
  That said, if we cannot complete this bill, Republicans will not 
allow this critical program to expire and will offer a short-term 
extension, if necessary.
  To be perfectly clear, I urge that there be a ``yes'' vote on cloture 
on the bill, a ``no'' vote on cloture on the 30-day extension, an 
amendment to the bill which actually would not achieve a 30-day 
extension anyway but I think is a place that we do not want to go on 
record as having supported because the President will not sign that 
anyway. And in the next few days, we will consider what kind of short-
term options might be appropriate to let us get back to this very 
important legislation so painstakingly put together by the expert 
leadership of Senator Rockefeller and Senator Bond.
  I yield the floor.
  Mr. ROCKEFELLER. Mr. President, I suggest the absence of a quorum, 
and I ask that the time involved be divided between the two sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. Mr. President, I apologize to my friends for keeping 
everyone waiting. It hasn't been long--a matter of a minute or so.
  In a few hours, President Bush will stand across the way in the House 
Chamber and deliver his final State of the Union Address. This will be 
his eighth State of the Union Address. From what I have heard earlier 
today in my meetings with the press who met with him, it is a fair bet 
in this speech that he will continue the drumbeat started by Vice 
President Cheney last week by trying to scare the American people into 
believing that if he does not get his way on the FISA bill now before 
us, America's national security will be gravely jeopardized.
  I have said on more than one occasion in recent days we face a 
faltering economy here at home and a failing foreign policy abroad. So 
I call upon all of us, Democrats and Republicans, to rise above 
partisanship. I have also said on more than one occasion that we extend 
our hand to the President and congressional Republicans and ask them to 
join with us in a genuine spirit of bipartisanship. In my nearly 26 
years, I have never seen anything quite as cynical and 
counterproductive as the Republican approach to FISA.
  I gave the example in my last statement that it was a Catch-22 the 
President has put us in. The American people deserve to know when 
President Bush talks about the foreign intelligence legislation tonight 
that he is doing little more than shooting for cheap political points, 
and we should reject any statements he makes about this. Members of 
Congress from both parties have legitimate policy disagreements on 
FISA--both parties. Some of us believe that history proves the need for 
more protections against Government abuse. Others support the law the 
way it stands. Now, that is appropriate; people have different views 
and opinions on an important part of our legislation and our laws in 
the country. But all of us, Members of Congress, Democrats and 
Republicans, want to wage an effective fight against terror. All of us, 
Democrats and Republicans, want to give our intelligence professionals 
the tools they need to win this fight against terror.
  We will be taking two votes. The first is on whether to invoke 
cloture on the Bond-Rockefeller substitute to the FISA bill we have on 
the floor. The second is a substitute, on whether to extend the 
authorities of the Protect America Act for another 30 days while 
Congress works to pass a new FISA bill.
  I will oppose cloture on the substitute and support cloture on the 
extension. The extension will give the Congress time to debate and pass 
a long-term bill that protects America without compromising the privacy 
of law-abiding Americans. Both the Intelligence Committee bill and the 
Judiciary Committee bill authorize the same surveillance tools our 
intelligence community needs. Democrats and Republicans stand together 
in all the terrorism fighting components of this bill. Some Democrats, 
including me, support the additional privacy protections in the 
Judiciary Committee bill. Others are satisfied with the protections in 
the Intelligence Committee bill.
  Again, people are entitled to their opinions, but all of us believe 
the Senate should have an opportunity to vote on these important 
questions.
  There was a nice piece written in one of the op-eds today talking 
about how the Republicans have talked a long time about all we want is 
an up-or-down vote. Well, if there were ever a time they should follow 
their own advice it is now--an up-or-down vote.
  Many Democrats, including Chairman Rockefeller, who has worked so 
hard, are going to oppose cloture on the substitute because they 
object--we object--to the heavy-handed tactics we saw with this 
legislation this past week. The Republican leader filed cloture on this 
bill after we had been on the floor for a few hours. Cloture was filed 
after Republicans blocked every amendment--every amendment--from being 
offered and blocked all amendments from getting votes. In simple terms, 
this means the Republicans were filibustering their own bill--their own 
legislation. Let me repeat that. The Republicans were filibustering 
their own legislation. In my time in the Senate, I can't remember this 
taking place.
  Meanwhile, at the other end of Pennsylvania Avenue, President Bush 
has actually threatened to veto a temporary extension. Talk about 
trying to figure out what is in the mind of someone who is talking that 
way. Let us remember, a temporary extension would guarantee that all 
the terrorism fighting tools remain in effect. There is absolutely no 
policy or security problem with an extension. All it would do is give 
us more time to work this out on an uninterrupted basis. There is no 
reason to vote against an extension or for the President to veto one, 
except for political posturing.
  None of us want the current law to expire. None of us want that to 
expire, except Cheney and Bush. But if it does expire because of 
Republican tactics, surveillance will not end. Even if they stop us 
from extending the bill, it would not end. Surveillance would not end. 
All surveillance orders issued under the law we passed last August--the 
Protect America Act--are effective for a year, so they will continue 
until at least August of 2008--August of this year.
  Even in a last resort--if the current law expires--our intelligence 
professionals can get surveillance orders under the FISA law as it has 
existed

[[Page S387]]

for decades, before we passed the Protect America Act last August. FISA 
includes provisions for emergency warrantless surveillance, and it 
always has. Again, no one is arguing the law should be allowed to 
expire. Doing so would send the wrong message. But it still is going to 
allow the collection of this information. The safeguards in place 
ensure that our war on terror will not be adversely affected, and 
anyone who says otherwise--from the President on down--is not being 
truthful.
  Why do Democrats seek an extension? We believe bipartisanship is 
appropriate when possible. The economic stimulus package shows us that 
when circumstances are difficult, we can work together. The Republican 
leadership's actions in this FISA debate have not given us reason for 
confidence that they are interested in working with us, but we owe it 
to the American people to give them every opportunity to do so.
  We have requested a 30-day extension repeatedly--I have done it 
repeatedly--and each time the Republicans have said no. Compromise is a 
two-way street. Bipartisanship is a two-way street. As I said last 
week, we are willing to pass an extension of current law for 2 weeks, 
30 days, 18 months, 14 months, 15 months or whatever our colleagues 
want, but we need to pass an extension now if we are to ensure the law 
doesn't expire. I have explained if it expires what happens.

  The House is going out of session shortly. They have a retreat this 
week--after tomorrow. Already Democrats have introduced several 
amendments to strengthen the bill. Senator Feingold sought a vote on 
his amendment to provide FISA Court documents to the Senate 
Intelligence Committee. Republicans blocked that. Senator Whitehouse 
sought to offer an amendment to give the FISA Court authority to review 
compliance with minimization rules to protect the privacy of Americans 
whose communications are inadvertently intercepted. We were blocked 
from having that vote. Senator Cardin sought to offer an amendment to 
sunset the legislation in 4 years rather than 6 years. Even that was 
blocked from having a vote. Senator Kennedy offered an amendment--or I 
should say tried to offer one--providing for a report by the inspectors 
general of the relevant agencies to review the conduct of these 
programs in the past. No vote on that either. Senator Feinstein sought 
to offer an amendment making crystal clear that FISA is the exclusive 
means by which the executive branch may conduct surveillance. Blocked 
by the Republicans.
  Whether these amendments pass or not, we should be allowed to have 
votes on them. Senator Feingold wasn't saying he wanted to talk for 2 
hours. Senator Feinstein wasn't saying she wanted to talk a long time. 
No one was--a short debate and have a vote on them. We were prevented 
from doing that.
  So what does the Senate do? We take up bills all the time reported to 
us by committees. This is a little more complicated because we had two 
committees. It is not often we have concurrent jurisdiction, but there 
was here. But an eighth grade student could figure out what it is all 
about. It is not that difficult. Senators offer amendments to these 
bills and we let the Senate work its will. I don't understand how the 
Republicans can expect to block us from voting on any amendments and 
expect us to follow along. Senators are entitled to vote on their 
amendments.
  Now, if someone is stalling--and we all went through that--there 
comes a time when you shut off the debate. But there is none of that 
here. With the Republicans blocking the amendments I have talked about, 
we haven't gotten to the crucial issue of immunity.
  Mr. President, I will use my leader time now.
  Let us not forget: The question of retroactive immunity wouldn't be 
before us if President Bush hadn't ignored Congress and established his 
own process outside the law. But far from taking responsibility for his 
actions, the President bullies and threatens the Congress he is 
supposed to be working with. He is similar to the kid in the school 
yard, the bully who says: OK, you are not doing what I want to do, so I 
am taking my ball home and none of us will be able to play.
  When the President talks tonight about how important this program is 
and how it must continue, I say to him now that he must consider and 
reconsider his political posturing and ask his colleagues in the Senate 
to support an extension, especially when he is going to come and say 
how much he wants to work on a bipartisan basis.
  We are a deliberative body. It was set up that way by the Founding 
Fathers. Let us deliberate. I urge my colleagues to oppose cloture on 
the substitute so the Senate can return to considering this bill. We 
must pass a bill that gives our intelligence authorities the tools they 
need while protecting the privacy of all Americans. I urge my 
colleagues to support the extension so we can ensure current authority 
doesn't expire while Congress works to pass a new and stronger FISA 
bill.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, and pursuant to rule 
XXII, the Chair lays before the Senate the following cloture motion 
which the clerk will report.
  The assistant 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 pending 
     substitute amendment to S. 2248, Foreign Intelligence 
     Surveillance Act of 1978 Amendments Act of 2007.
         Mitch McConnell, Christopher S. Bond, Kay Bailey 
           Hutchison, Wayne Allard, Jon Kyl, Robert F. Bennett, 
           Sam Brownback, John Thune, Pat Roberts, John Barrasso, 
           Chuck Grassley, Johnny Isakson, Lamar Alexander, Gordon 
           H. Smith, Tom Coburn, Jim DeMint, Richard Burr.

  Mr. REID. Mr. President, I ask unanimous consent that the second vote 
be of 10 minutes duration.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  By unanimous consent, the mandatory quorum call has been waived.
  The question is, Is it the sense of the Senate that debate on 
amendment No. 3911, offered by the Senator from West Virginia, Mr. 
Rockefeller, and the Senator from Missouri, Mr. Bond, to S. 2248, a 
bill to amend the Foreign Intelligence Surveillance Act of 1978, to 
modernize and streamline the provisions of that Act, and for other 
purposes, shall be brought to a close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Iowa (Mr. Harkin), the 
Senator from Connecticut (Mr. Lieberman), and the Senator from Florida 
(Mr. Nelson) are necessarily absent.
  I further announce that, if present and voting, the Senator from Iowa 
(Mr. Harkin) would vote ``nay.''
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Oklahoma (Mr. Coburn), the Senator from North Carolina (Mrs. 
Dole), the Senator from Nevada (Mr. Ensign), and the Senator from 
Arizona (Mr. McCain).
  Further, if present and voting, the Senator from North Carolina (Mrs. 
Dole) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Sentors in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 48, nays 45, as follows:

                       [Rollcall Vote No. 3 Leg.]

                                YEAS--48

     Alexander
     Allard
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Cochran
     Coleman
     Collins
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Domenici
     Enzi
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Landrieu
     Lincoln
     Lugar
     Martinez
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner
     Wicker

                                NAYS--45

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Clinton
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Inouye
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     McCaskill
     Menendez
     Mikulski
     Murray
     Obama
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer

[[Page S388]]


     Specter
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                             NOT VOTING--7

     Coburn
     Dole
     Ensign
     Harkin
     Lieberman
     McCain
     Nelson (FL)
  The PRESIDING OFFICER. On this vote, the yeas are 48, the nays are 
45. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  The Republican leader.
  Mr. McCONNELL. Mr. President, I wanted to take a moment to explain 
the next vote. The President indicated over the weekend that he would 
veto a 30-day extension. We have been dealing with this issue for 
almost a year. We have in the Rockefeller-Bond proposal a bipartisan 
compromise that came out of Intelligence 13 to 2. There is no need for 
a 30-day extension. But even if there were, you wouldn't get a 30-day 
extension by adding it to this bill. It is extremely important to 
oppose the 30-day extension. We know it won't become law on this bill. 
It wouldn't become law if it were passed freestanding, because the 
President would veto it. We may be talking about a very short-term 
extension here in the next few days, but we are still on FISA after 
today. We will not get off FISA until we make some determination of how 
we are going to dispose of this important measure.
  I urge all my colleagues to vote against cloture on the 30-day 
extension amendment.
  The PRESIDING OFFICER. The Democratic leader.
  Mr. REID. Mr. President, we all acknowledge the Intelligence 
Committee did a good job on this piece of legislation. But the 
Intelligence Committee knew, everyone knew, there was concurrent 
referral of this legislation. It was always anticipated and believed, 
rightfully so, that the Judiciary Committee would take up this matter. 
And they did. They made some suggestions in the way of changes. We are 
entitled to vote on those. That is all we are asking. That isn't too 
unreasonable. For the President to not agree to any extension is 
unreasonable. The House is going to pass a 30-day extension in the 
morning. They are going to pass that. We are going to have the 
opportunity to vote on a 30-day extension. This would send an 
appropriate message to everyone that a 30-day extension is fair and 
reasonable. As I said in my remarks before the last vote, people are 
crying wolf a little too often. This legislation we have before us, if 
it doesn't pass, the work done by the Intelligence Committee and the 
Judiciary Committee will go for naught. But still, under the 
legislation we passed previously, the legislation will still be in 
effect. FISA is not gone. We all want to work to improve this. That is 
what this is all about. But we need some votes to do that. That is what 
we are asking.
  Everyone here should understand, if you are voting today not to 
extend this legislation for 30 days, you are going to have to vote on 
it in the near future because the House is sending us the exact same 
measure tomorrow.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, pursuant to rule 
XXII, the clerk will report the motion to invoke cloture.
  The assistant 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 Reid 
     amendment No. 3918 to S. 2248.
         John D. Rockefeller, IV, Dianne Feinstein, Jeff Bingaman, 
           Debbie Stabenow, Sheldon Whitehouse, Daniel K. Inouye, 
           Charles E. Schumer, Thomas R. Carper, Bill Nelson, E. 
           Benjamin Nelson, Frank R. Lautenberg, Richard Durbin, 
           Ken Salazar, Tom Harkin, Sherrod Brown, Harry Reid.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call is waived.
  The question is, is it the sense of the Senate that debate on 
amendment No. 3918, offered by the Senator from Nevada, Mr. Reid, to S. 
2248, a bill to amend the Foreign Intelligence Surveillance Act of 
1978, to modernize and streamline the provisions of that act, and for 
other purposes, shall be brought to a close.
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Iowa (Mr. Harkin), the 
Senator from Connecticut (Mr. Lieberman), and the Senator from Florida 
(Mr. Nelson) are necessarily absent.
  I further announce that, if present and voting, the Senator from Iowa 
(Mr. Harkin) would vote ``yea.''
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Oklahoma (Mr. Coburn), the Senator from North Carolina (Mrs. 
Dole), the Senator from Nevada (Mr. Ensign), and the Senator from 
Arizona (Mr. McCain).
  Further, if present and voting, the Senator from North Carolina (Mrs. 
Dole) would have voted ``nay.''
  The PRESIDING OFFICER (Mr. Pryor). Are there any other Senators in 
the Chamber desiring to vote?
  The yeas and nays resulted--yeas 48, nays 45, as follows:

                       [Rollcall Vote No. 4 Leg.]

                                YEAS--48

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

                                NAYS--45

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

                             NOT VOTING--7

     Coburn
     Dole
     Ensign
     Harkin
     Lieberman
     McCain
     Nelson (FL)
  The PRESIDING OFFICER. On this vote, the yeas are 48, the nays are 
45. Three-fifths of the Senators duly chosen and sworn not having voted 
in the affirmative, the motion is rejected.
  Mr. ROCKEFELLER. Mr. President, I move to reconsider the vote.
  Mr. BOND. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________