[Congressional Record Volume 154, Number 16 (Thursday, January 31, 2008)]
[Senate]
[Pages S535-S537]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2007

  The PRESIDING OFFICER. The Senator will resume consideration of the 
bill S. 2248.
  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.

[[Page S536]]

       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.

  Mr. REID. Mr. President, I ask unanimous consent that all pending 
amendments be withdrawn, except the substitute and the Feingold 
amendment No. 3909; that it be modified with the changes at the desk 
and then agreed to; and the motion to reconsider be laid upon the 
table; further, that the following be the only first-degree amendments 
remaining in order to the bill, with no second-degree amendments prior 
to a vote, except as specified in this agreement; that any time for 
debate with respect to amendments be equally divided and controlled in 
the usual form; that the following two amendments be modified with the 
changes that are at the desk, and then agreed to, as modified, and the 
motion to reconsider be laid upon the table, en bloc:
  Whitehouse amendment No. 3932; Kennedy amendment No. 3960; and that 
the Bond amendment No. 3945 be agreed to, without modification; 
further, that the following eight amendments be subject to a majority 
vote threshold, with a motion to table any of these eight amendments in 
order:
  Bond amendment No. 3941, with a modification, 20 minutes; Bond 
amendment No. 3938, with a modification, 20 minutes; Feingold amendment 
No. 3907, 2 hours; Specter-Whitehouse amendment No. 3927, 2 hours; 
Feingold amendment No. 3913, 40 minutes; Feingold amendment No. 3912, 
40 minutes; Feingold amendment No. 3915, 40 minutes; Feingold-Webb 
amendment regarding sequestration, 90 minutes; provided further, that 
the next 3 amendments listed be subject to a 60-affirmative vote 
threshold, and that if it does not achieve that threshold, then the 
amendment be withdrawn: Feinstein amendment No. 3919, 2 hours; Cardin 
amendment No. 3930, 60 minutes; Whitehouse amendment No. 3920, 60 
minutes; finally, that the Feinstein amendment No. 3910 also be in 
order, without any debate limitation; provided further, that a 
managers' amendment be in order if cleared by the managers and the 
leaders; that upon disposition of all amendments, the substitute 
amendment, as amended, be agreed to, and the bill be read the third 
time; that the Senate then vote on the motion to invoke cloture on the 
bill; that upon passage of the bill, the Senate proceed to Calendar No. 
517, H.R. 3773, and all after the enacting clause be stricken and the 
text of S. 2248, as amended, be inserted in lieu thereof, the bill be 
advanced to third reading, passed, and the motion to reconsider be laid 
upon the table; that passage of S. 2248 be vitiated and then returned 
to the calendar.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendments (No. 3909, as modified, No. 3932, as modified, No. 
3960, as modified, and No. 3945) were agreed to, as follows:


                    AMENDMENT NO. 3909, As Modified

       On page 56, strike line 14 and all that follows through 
     page 57, line 14, and insert the following:
       (b) Reports by Attorney General on Certain Other Orders.--
     Such section 601 is further amended by adding at the end the 
     following:
       ``(c) Submissions to Congress.--The Attorney General shall 
     submit to the committees of Congress referred to in 
     subsection (a)--
       ``(1) a copy of any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of any provision 
     of this Act, and any pleadings, applications, or memoranda of 
     law associated with such decision, order, or opinion, not 
     later than 45 days after such decision, order, or opinion is 
     issued; and
       ``(2) a copy of any such decision, order, or opinion, and 
     any pleadings, applications, or memoranda of law associated 
     with such decision, order, or opinion, that was issued during 
     the 5-year period ending on the date of the enactment of the 
     FISA Amendments Act of 2008 and not previously submitted in a 
     report under subsection (a).
       ``(d) Protection of National Security.--The Attorney 
     General, in consultation with the Director of National 
     Intelligence, may authorize redactions of materials described 
     in subsection (c) that are provided to the committees of 
     Congress referred to in subsection (a), if such redactions 
     are necessary to protect the national security of the United 
     States and are limited to sensitive sources and methods 
     information or the identities of targets.''.
       (c) Definitions.--Such section 601, as amended by 
     subsections (a) and (b), is further amended by adding at the 
     end the following:
       ``(e) Definitions.--In this section:
       ``(1) Foreign intelligence surveillance court; court.--The 
     term `Foreign Intelligence Surveillance Court' means the 
     court established by section 103(a).
       ``(2) Foreign intelligence surveillance court of review; 
     court of review.--The term `Foreign Intelligence Surveillance 
     Court of Review' means the court established by section 
     103(b).''.


                     AMENDMENT NO. 3932, As Modified

       On page 19, strike lines 10 through 12 and insert the 
     following:
       ``(ii) if the Government appeals an order under this 
     section, until the Court of Review enters an order under 
     subparagraph (C).
       ``(C) Implementation pending appeal.--Not later than 60 
     days after the filing of an appeal of an order under 
     paragraph (5)(B) directing the correction of a deficiency, 
     the Court of Review shall determine, and enter a 
     corresponding order regarding, whether all or any part of the 
     correction order, as issued or modified, shall be implemented 
     during the pendency of the appeal.
       On page 19, line 13, strike ``(C)'' and insert ``(D)''.


                    AMENDMENT NO. 3960, As Modified

       On page 6, line 13, strike ``and'' and all that follows 
     through page 10, line 5, and insert the following:
       ``(4) shall not intentionally acquire any communication as 
     to which the sender and all intended recipients are known at 
     the time of the acquisition to be located in the United 
     States; and
       ``(5) shall be conducted in a manner consistent with the 
     fourth amendment to the Constitution of the United States.
       ``(c) Conduct of Acquisition.--An acquisition authorized 
     under subsection (a) may be conducted only in accordance 
     with--
       ``(1) a certification made by the Attorney General and the 
     Director of National Intelligence pursuant to subsection (f); 
     and
       ``(2) the targeting and minimization procedures required 
     pursuant to subsections (d) and (e).
       ``(d) Targeting Procedures.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt targeting procedures that are reasonably designed 
     to ensure that any acquisition authorized under subsection 
     (a) is limited to targeting persons reasonably believed to be 
     located outside the United States and does not result in the 
     intentional acquisition of any communication as to which the 
     sender and all intended recipients are known at the time of 
     the acquisition to be located in the United States.
       ``(2) Judicial review.--The procedures referred to in 
     paragraph (1) shall be subject to judicial review pursuant to 
     subsection (h).
       ``(e) Minimization Procedures.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt, consistent with the requirements of section 
     101(h) or section 301(4), minimization procedures for 
     acquisitions authorized under subsection (a).
       ``(2) Judicial review.--The minimization procedures 
     required by this subsection shall be subject to judicial 
     review pursuant to subsection (h).
       ``(f) Certification.--
       ``(1) In general.--
       ``(A) Requirement.--Subject to subparagraph (B), prior to 
     the initiation of an acquisition authorized under subsection 
     (a), the Attorney General and the Director of National 
     Intelligence shall provide, under oath, a written 
     certification, as described in this subsection.
       ``(B) Exception.--If the Attorney General and the Director 
     of National Intelligence determine that immediate action by 
     the Government is required and time does not permit the 
     preparation of a certification under this subsection prior to 
     the initiation of an acquisition, the Attorney General and 
     the Director of National Intelligence shall prepare such 
     certification, including such determination, as soon as 
     possible but in no event more than 168 hours after such 
     determination is made.
       ``(2) Requirements.--A certification made under this 
     subsection shall--
       ``(A) attest that--
       ``(i) there are reasonable procedures in place for 
     determining that the acquisition authorized under subsection 
     (a) is targeted at persons reasonably believed to be located 
     outside the United States and that such procedures have been 
     approved by, or will be submitted in not more than 5 days for 
     approval by, the Foreign Intelligence Surveillance Court 
     pursuant to subsection (h);
       ``(ii) there are reasonable procedures in place for 
     determining that the acquisition authorized under subsection 
     (a) does not result in the intentional acquisition of any 
     communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States, and that such procedures have 
     been approved by, or will be submitted in not more than 5 
     days for approval by, the Foreign Intelligence Surveillance 
     Court pursuant to subsection (h);
       ``(iii) the procedures referred to in clauses (i) and (ii) 
     are consistent with the requirements of the fourth amendment 
     to the Constitution of the United States and do not

[[Page S537]]

     permit the intentional targeting of any person who is known 
     at the time of acquisition to be located in the United States 
     or the intentional acquisition of any communication as to 
     which the sender and all intended recipients are known at the 
     time of acquisition to be located in the United States;
       ``(iv) a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(v) the minimization procedures to be used with respect 
     to such acquisition--

       ``(I) meet the definition of minimization procedures under 
     section 101(h) or section 301(4); and
       ``(II) have been approved by, or will be submitted in not 
     more than 5 days for approval by, the Foreign Intelligence 
     Surveillance Court pursuant to subsection (h);

       ``(vi) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of an 
     electronic communication service provider; and
       ``(vii) the acquisition does not constitute electronic 
     surveillance, as limited by section 701; and
       On page 17, line 2, strike ``States.'' and insert ``States 
     and does not result in the intentional acquisition of any 
     communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States.''.


                           AMENDMENT NO. 3945

      (Purpose: To strike the time limitation for certain appeals)

       On page 15, beginning on line 10, strike ``not later than 7 
     days after the issuance of such decision''.

  Mr. REID. Mr. President, let me express on the record my appreciation 
for so many people.
  Specifically, I wish to mention Senator Rockefeller and Senator Bond. 
They and their staffs have spent days on this agreement. It is really 
good they have a relationship that allows them to be able to reach this 
agreement. But for that, it could not have been done.
  I am not going to talk about Republican Senators, but I am sure there 
are a lot of unsung heroes. I cannot talk about them. But the Presiding 
Officer, Senator Whitehouse, has done a remarkably good job as a member 
of the Intelligence and Judiciary Committees in helping us resolve this 
matter so we can proceed to finish it. As I add up all this time, it is 
about 11 hours of debate, plus the votes.
  Senator Kennedy is also always very easy to deal with. He believes 
fervently in what he believes, but he is always very understanding of 
my problems. I extend my appreciation to him.
  Senator Feingold is a brilliant man, and he is someone who is always 
looking at every bit of verbiage in any piece of legislation. He has 
been very good to work with, as he always is. I express my appreciation 
to him.
  Senator Cardin has been very patient in everything we have done.
  Finally, I wish to talk about two people.
  I spent a lot of time today with Senator Feinstein. She is a real 
believer as a member of that Intelligence Committee. She is the second 
ranking member on that committee. She spends days of her life in 
committee hearings, listening to what goes on and trying to figure out 
what is going on, which is not always easy. It is all done with all the 
Intelligence members away from the press. There is little recognition 
that members of the Intelligence Committees get, other than self- 
satisfaction that they are doing good things for the country and the 
world. I appreciate Senator Feinstein working with us so we could get 
to this final agreement.
  Even though his name does not appear in any of the consent agreements 
I read, Senator Leahy is a person who is going to accomplish what he 
believes should be accomplished in this bill, but he has done it in a 
typical way. I had one Senator tell me--in fact, it was Senator Kent 
Conrad. He said that in his entire public service, he has never known a 
better negotiator than Senator Leahy. I think he probably is one of the 
best. He got a lot out of this even though his name does not appear 
anyplace.
  We know the sincerity and the depth of feelings that Senator Dodd has 
on this legislation. He is somebody who has been heavily involved in 
everything we have done in this bill. I appreciate his willingness to 
work with us to a point here. He and I agree on what should happen in 
this legislation. Time will only tell whether we get what our druthers 
are, but at least we are joined to try to accomplish the same thing.
  I appreciate everyone working as they have with this legislation. It 
hasn't been easy to get where we are, but this is where we are, and I 
appreciate everyone's attention and help.

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