[Congressional Record Volume 154, Number 18 (Tuesday, February 5, 2008)]
[Senate]
[Pages S639-S655]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2007

  The PRESIDING OFFICER (Mr. Casey ). Under the previous order, the 
Senate will resume consideration of S. 2248, which the clerk will 
report by title.
  The assistant legislative clerk read as follows:

       A bill (S. 2248) 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.
       Whitehouse amendment No. 3920 (to amendment No. 3911), to 
     provide procedures for compliance reviews.
       Feingold amendment No. 3979 (to amendment No. 3911), to 
     provide safeguards for communications involving persons 
     inside the United States.
       Cardin amendment No. 3930 (to amendment No. 3911), to 
     modify the sunset provision.
       Feingold/Dodd amendment No. 3915 (to amendment No. 3911), 
     to place flexible limits on the use of information obtained 
     using unlawful procedures.


 =========================== NOTE =========================== 

  
  On page S639, February 5, 2008 the Record reads: Pending: 
Rockefeller/Bond amendment No. 3911, in the nature of a 
substitute.
  
  The online Record has been corrected to read: Pending: 
Rockefeller/Bond amendment No. 3911, in the nature of a 
substitute. Whitehouse amendment No. 3920 (to amendment No. 3911), 
to provide procedures for compliance reviews. Feingold amendment 
No. 3979 (to amendment No. 3911), to provide safeguards for 
communications involving persons inside the United States. Cardin 
amendment No. 3930 (to amendment No. 3911), to modify the sunset 
provision. Feingold/Dodd amendment No. 3915 (to amendment No. 
3911), to place flexible limits on the use of information obtained 
using unlawful procedures.


 ========================= END NOTE ========================= 


  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the pending

[[Page S640]]

amendment be set aside so that I may call up an amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 3913 to Amendment No. 3911

  Mr. FEINGOLD. Mr. President, I call up amendment No. 3913.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold], for himself, Mr. 
     Menendez, and Mr. Dodd, proposes an amendment numbered 3913.

  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the reading 
be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To prohibit reverse targeting and protect the rights of 
          Americans who are communicating with people abroad)

       On page 6, line 6, strike ``the purpose'' and all that 
     follows through line 9 and insert the following: ``a 
     significant purpose of such acquisition is to acquire the 
     communications of a particular, known person reasonably 
     believed to be located in the United States, except in 
     accordance with title I;''.
       On page 7, line 7, strike ``United States.'' and insert the 
     following: ``United States, and that an application is filed 
     under title I, if otherwise required, when a significant 
     purpose of an acquisition authorized under subsection (a) is 
     to acquire the communications of a particular, known person 
     reasonably believed to be located in the United States.''.
       On page 9, between lines 9 and 10, insert the following:
       ``(iii) the procedures referred to in clause (i) require 
     that an application is filed under title I, if otherwise 
     required, when a significant purpose of an acquisition 
     authorized under subsection (a) is to acquire the 
     communications of a particular, known person reasonably 
     believed to be located in the United States;
       On page 17, line 2, strike ``United States.'' and insert 
     the following: ``United States, and are reasonably designed 
     to ensure that an application is filed under title I, if 
     otherwise required, when a significant purpose of an 
     acquisition authorized under subsection (a) is to acquire the 
     communications of a particular, known person reasonably 
     believed to be located in the United States.''.

  Mr. FEINGOLD. Mr. President, this amendment, approved by the Senate 
Judiciary Committee, assures the new authorities contained in this bill 
will not be used to engage in what is known as ``reverse targeting of 
Americans.'' FISA requires the Government to get a court order when it 
is listening in on Americans on American soil. Reverse targeting refers 
to the possibility that the Government will try to get around this 
requirement by using these new authorities to wiretap someone overseas 
when what the Government really wants to do is listen to the American 
with whom that foreign person is communicating.
  The Director of National Intelligence has testified that reverse 
targeting is a violation of the fourth amendment. This amendment merely 
codifies that constitutional principle. Specifically, the amendment 
says the Government needs an individualized court order when a 
significant purpose of the surveillance is to acquire communications of 
a person inside the United States. Now, this language is critical if we 
are to protect the constitutional rights of Americans because the 
underlying bill merely requires a court order if the purpose of the 
acquisition is to target the American.
  A member of the Intelligence Committee, the Senator from Georgia, has 
said the underlying bill only prohibits surveillance when the 
Government is targeting a foreigner solely--solely--to listen to the 
American with whom that foreigner is communicating. Now, what does this 
mean? That means if the Government has any passing interest at all in 
the foreigner being wiretapped, it could intentionally conduct ongoing, 
long-term surveillance of an American inside the United States without 
a warrant. Now, the DNI says that would be unconstitutional, but it 
appears to be permissible under the current bill.
  Recently declassified exchanges between the administration and 
congressional intelligence committees demonstrate why the issue of 
reverse targeting is a very real problem.
  According to the administration, ``if valid collection of the foreign 
intelligence target indicates that the person in the United States is 
of intelligence interest,'' NSA would disseminate an intelligence 
report to the FBI, which can request the identity of that person and 
``which could''--I repeat, could--``seek a FISA court order to conduct 
electronic surveillance in the United States.''
  Mr. President, I ask unanimous consent to have printed in the Record 
the declassified documents to which I am referring.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       When NSA is acquiring the communications of a person in the 
     United States during its targeting of a foreigner overseas, 
     is it reasonable to impose a time limit on NSA's 
     determinations of whether to target the person in the United 
     States or drop that individual? It is not reasonable to 
     impose time limits on NSA's targeting determinations in this 
     manner. If frequent contacts occur between the foreign target 
     overseas and a person in the United States and if there is no 
     foreign intelligence to be obtained, analysts will------such 
     that the interception of the communications of the person in 
     the United States when targeting the foreigner overseas will 
     not occur. If valid collection of the foreign intelligence 
     target indicates that the person in the United States is of 
     intelligence interest, NSA would disseminate an intelligence 
     report with the identity masked to the FBI, which could seek 
     a FISA Court order to conduct electronic surveillance in the 
     United States. If valid foreign intelligence is expected to 
     be obtained by targeting the foreign selector, any 
     incidentally collected information about the person in the 
     United States would be handled in accordance with NSA's 
     minimization procedures.
       How many times has NSA obtained a FISA order to target a 
     person in the United States where the initial target was a 
     foreigner overseas and a U.S. communicant became of foreign 
     intelligence interest? How many cases have there been where 
     the target remains the foreigner overseas and there have been 
     multiple communications between that target and a person in 
     the United States such that NSA considered whether to obtain 
     a FISA order to conduct electronic surveillance against the 
     person in the United States? This is difficult to answer 
     because NSA routinely provides information to the FBI and it 
     decides whether to follow up by getting a FISA order to 
     conduct electronic surveillance in the United States. For 
     example, if an analyst reviews an intercept and finds 
     evidence that a party to the communication (not the target of 
     the surveillance) is a U.S. person, he would go through his 
     foreign intelligence calculus. That is, he determines whether 
     the communication contains foreign intelligence. If he 
     determines that it does contain foreign intelligence, he 
     would disseminate a foreign intelligence report. The report 
     would mask the U.S. person's identity as ``U.S. person'' 
     under NSA's minimization procedures. Upon receipt, a customer 
     (here probably the FBI) would likely request that person's 
     identity. Under NSA's minimization procedures, NSA would 
     provide it if the requester demonstrates that the request is 
     within the scope of its mission and knowing the U.S. person's 
     identity is necessary to understand or assess the foreign 
     intelligence in the report. In this case, the FBI would 
     likely meet that test and, upon receipt of the identity, can 
     decide whether or not to follow up. NSA surveillance against 
     the foreign target would continue.

  Mr. FEINGOLD. Mr. President, this confirms that when the Government 
has an interest in an American, it is entirely up to the discretion of 
the FBI to decide whether the Government will seek a warrant to listen 
to that American's communications. But the FBI may not seek a warrant 
for any number of reasons, including lack of resources, insufficient 
coordination with other elements of the Government, or simple 
incompetence. A recent Justice Department inspector general report 
finding that the FBI's court-approved surveillance was disrupted 
because the Bureau failed to pay the telecommunications company on time 
should give us cause for concern.
  In this case, this amendment would actually help us to stop 
terrorists by requiring that when a foreign terrorist talks to a person 
in the United States and that communication prompts a significant 
interest in the American, it can't just plain fall through the cracks.
  Now, of course, the FBI might also choose not to seek a warrant 
because it doesn't have a real case against the American or because the 
Government doesn't want to tell the FISA Court the real reason it is 
interested in that American. So if the FBI doesn't seek a court order, 
can the NSA just listen in indefinitely to the communications of 
Americans so long as they are communicating with a person overseas? I 
am afraid to say, Mr. President, the answer appears to be yes. 
According to the administration, the FBI, upon receipt of the identity 
of the American, ``can decide whether or not to follow up. NSA 
surveillance against the foreign target would continue.''

[[Page S641]]

  The Government's apparent authority to continue indefinitely its 
surveillance of the international communications of Americans is not 
limited to terrorism cases where the Government should at least have an 
incentive to seek warrants against an American. It applies to all 
foreign intelligence. That includes the communications of an American 
who is talking to a person overseas who is not a terrorist suspect, is 
not suspected of any wrongdoing, and is not even an agent of a foreign 
power. Yet, no matter how interested the Government is in what that 
innocent American has to say, if the FBI doesn't think it is worth its 
while to seek a court order or if the FBI knows it couldn't get the 
order, the surveillance continues nonetheless.
  This raises serious constitutional concerns, which is why the 
Rockefeller-Levin bill, the alternative to the Protect America Act that 
the Senate considered back in August, required procedures to seek a 
court order if electronic surveillance was ``of the nature or quantity 
as to infringe on the reasonable expectations of privacy of persons 
within the United States.'' Yet, in a recently released letter, the DNI 
complained about this requirement, saying it would take months to make 
this determination, that they couldn't determine in advance what such a 
procedure would say. In other words, even as the administration sought 
and obtained broad new authorities to collect communications of 
Americans, the administration refused to even consider when it might be 
violating the Constitution.
  If the administration can't assure us that they respect the 
Constitution, Congress needs to step in. For all their promises that 
reverse targeting is not occurring, the record is clear there is 
nothing to stop it, and the administration has resisted establishing 
procedures to protect the rights of Americans. At the same time, it has 
sought to remove the FISA Court's ability to protect those rights.
  This bill denies the FISA Court any role whatsoever in determining or 
monitoring why a person overseas has been wiretapped, which, of course, 
would help indicate whether the Government is conducting reverse 
targeting of an American. The bill denies the court the ability to 
monitor what becomes of the communications of Americans that are 
collected.
  Mr. President, it is clear this administration won't protect the 
constitutional rights of Americans, and unfortunately, in the PAA, 
Congress passed legislation denying the courts any oversight role. It 
is critical Congress act to remedy this great problem. We have a unique 
opportunity to protect the Constitution and stop abuses before they 
happen. I hope my colleagues will support this amendment.
  Mr. President, it appears there is no opposition to it, but 
nonetheless I will retain the remainder of my time.
  Mr. President, I ask unanimous consent that the pending amendment be 
set aside so that I may call up another amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 3912 to Amendment No. 3911

  Mr. FEINGOLD. Mr. President, I call up amendment No. 3912.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold], for himself, and 
     Mr. Dodd, proposes an amendment numbered 3912.

  The amendment is as follows:

 (Purpose: To modify the requirements for certifications made prior to 
                the initiation of certain acquisitions)

       On page 10 between lines 5 and 6, insert the following:
       ``(vii) the acquisition of the contents (as that term is 
     defined in section 2510(8) of title 18, United States Code)) 
     of any communication is limited to communications to which 
     any party is an individual target (which shall not be limited 
     to known or named individuals) who is reasonably believed to 
     be located outside of the United States, and a significant 
     purpose of the acquisition of the communications of the 
     target is to obtain foreign intelligence information; and

  Mr. FEINGOLD. Mr. President, this amendment ensures that in 
implementing the new authorities provided in this bill, the Government 
is acquiring the communications of targets in whom it has some foreign 
intelligence interest and is not conducting bulk collection of all 
communications between the United States and overseas. This amendment 
was also approved by the Judiciary Committee.
  This amendment is necessary because of the vast and overbroad 
authorities provided by the PAA and this bill. In public testimony, the 
DNI stated that the PAA would authorize the bulk collection of all 
communications between the United States and overseas. Now, that could 
cover every communication between Americans inside the United States 
and Europe or South America or the entire world. It could also include 
a communication between Americans overseas and their family and friends 
back home.
  This bill is understood to allow the warrantless targeting of a 
terrorist suspect overseas even when that person is communicating with 
an American at home. The bill does not simply apply to terrorist 
suspects, however. It permits warrantless collection of communications 
between law-abiding Americans and people overseas who are not suspected 
of doing anything wrong at all. That is a problem that needs to be 
addressed. But this bill does not just allow the targeting of 
conversations of people who are not suspected of any wrongdoing; this 
bill actually allows the Government to capture all international 
communications to or from the United States in bulk, for no good 
reason. I think it is safe to say no one in this country expects that 
all of their international communications can be collected by the 
Government. That kind of communications dragnet would offend anyone who 
has ever communicated with friends, family, or professional associates 
in other countries. It raises serious constitutional questions. It 
would completely overwhelm the already inadequate minimization 
procedures that are the only bump in the road to completely 
uncontrolled dissemination of information about Americans. And there 
would be no court oversight whatsoever.
  Bulk collection poses yet another serious constitutional danger. By 
collecting all international communications, the Government would be 
collecting communications between Americans overseas and their friends 
and family back home.
  Senators Wyden and, Whitehouse and I have fought hard to ensure that 
Americans overseas cannot be intentionally targeted without a warrant, 
but bulk collection is a backdoor way to conduct the same warrantless 
wiretapping. Imagine the number of Americans' communications, not with 
foreigners but with other Americans--with other Americans, Mr. 
President--that would be acquired by the Government through bulk 
collection of, say, communications between the United States and 
Britain. That means Americans studying and working abroad, tourists 
passing through, and even U.S. troops stationed there.
  Nothing--nothing--would prevent their communications from being 
collected and retained, and nothing would prevent those communications 
from being disseminated so long as the Government decided there was 
foreign intelligence value.
  I ask my colleagues: At what point do we draw the line? At what point 
does the Constitution mean something? I am sure some of my colleagues 
will say we should trust the Government not to do this, not to abuse 
this. Yet the DNI has testified that while bulk collection is not 
needed:

       It would certainly be desirable, if it was physically 
     possible to do so.

  This is not a short-term piece of legislation. It is not reassuring 
that the intelligence community cannot currently collect all 
international communication. This bill does not sunset for years. What 
is technically possible in this area changes rapidly. Given the 
potential impact on the privacy and constitutional rights of Americans 
posed by bulk collection, Congress needs to act now. The DNI has put us 
on notice that bulk collection is both authorized and, in his words, 
desirable. Legislative silence on this issue is consent. This body must 
take a position on this issue. Should the Government be able to sweep 
up all international communications involving Americans at home and 
abroad? We cannot avoid that question. The bill, combined with the 
DNI's comments, places it squarely before us.
  The amendment I have offered here is extremely modest. It merely 
requires the Government to certify to the court

[[Page S642]]

that in using these broad new authorities to conduct warrantless 
surveillance, it is collecting the communications of foreign targets 
from whom it expects to obtain foreign intelligence information. The 
Government does not have to explain its foreign intelligence interests 
to the Court; it does not even have to identify its target. It merely 
has to say that an interest exists, and the court cannot challenge this 
certification. Because this amendment is so modest, opponents have 
raised an absurd hypothetical argument against it, and this is what it 
is: that it would somehow prevent the collection of communications into 
or out of an enemy-occupied city that the U.S. military is about to 
invade.
  This argument is plain silly. My amendment requires that there be a 
foreign intelligence purpose for collection. This hypothetical posited 
by opponents of the amendment--and all individuals in a city our troops 
are about to invade would clearly have foreign intelligence value. That 
is what distinguished this case, in which the Government can easily 
make the certification required by the amendment and, on the other 
hand, the bulk collection of all communications between, say, the 
United States and Europe.
  The reason absurd scenarios such as this have been raised as 
``unforeseen consequences'' is that opponents of this amendment do not 
want to address the consequences of not passing it, the consequences of 
the Government collecting all communications between the United States 
and Canada or Europe or South America, the consequences of millions of 
innocent Americans' communications being collected, the consequences of 
already inadequate minimization procedures being overwhelmed by the 
collection.
  These are not even unforeseen consequences. The DNI testified that if 
this were physically possible, bulk collection would certainly be 
desirable. The DNI envisions a country where the Government, if it were 
technologically feasible, would listen in on every international phone 
call made by its citizens and read every international e-mail. That is 
a police state, not the United States of America.
  This amendment will help put to rest another concern that has been 
expressed about this legislation. In August, after the enactment of the 
PAA, the DNI stated:

       Now, there is a sense that we are doing massive data 
     mining. In fact, what we are doing is surgical. A telephone 
     number is surgical. So if you know what the number is, you 
     can select it out.

  And the DNI then added:

       We have got a lot of territory to make up with people 
     believing that we are doing things that we are not doing.

  The best way to assure Americans that the Government is not doing 
massive data mining of their international communications is not to 
authorize the massive collection of their international communications. 
The DNI cannot have it both ways. He cannot complain that people 
believe the Government is doing things it is not doing, and then oppose 
amendments to the law that would prohibit the Government from doing 
those very same things, especially when he has also said that bulk 
collection would be ``desirable'' if it were physically possible.
  Finally, my amendment would help resolve a serious constitutional 
question surrounding this bill. When Americans are on the line, the 
constitutionality of the surveillance depends in part on how it is 
conducted. Bulk collection of millions of Americans' communications of 
which the Government has no interest in the person on the other end of 
the line could very well be unreasonable under the fourth amendment. We 
can eliminate this particular constitutional problem with the adoption 
of this very modest amendment.
  I challenge anyone who opposes this amendment to stand up on this 
floor and explain to the American people why the Government should have 
the authority to engage in bulk collection of their private 
communications. Let's tell the American people the truth for once. Do 
not rely on hypothetical, unintended consequences that are easily 
answered. Explain why this very modest protection of the privacy of our 
citizens cannot be granted.
  I believe this amendment brings this bill into line with its actual 
intent. It gives Congress a say in how far these vast new authorities 
will be taken, and it protects the civil liberties of Americans.
  I urge my colleagues to support it.
  I yield the floor and I reserve the remainder of my time.
  The PRESIDING OFFICER (Mr. Salazar.) The Senator from Missouri.
  Mr. BOND. Mr. President, I am sorry I was not here for all of my 
colleague's descriptions of his two amendments. But let me make one 
thing clear. What he is laying out is a scenario that does not exist. 
He is raising all kinds of concerns that are dealt with in the 
underlying bill. They are dealt with by the Constitution of the United 
States. They were dealt with by the Protect America Act.
  I can assure the American public that we are not collecting all of 
the communications they send overseas and reading them and listening to 
them and using them in some way that violates the fourth amendment or 
the provisions of these two measures.
  Before we actually have a vote on these measures, we will talk about 
them more in detail. I think he raised the reverse targeting amendment 
first. Let me be clear and explain that you cannot target a person 
inside the United States without a court order. All acquisitions must 
comply with the fourth amendment.
  Last week we agreed to an amendment offered by Senator Kennedy which 
ensures that the authorities in this bill will not be used to acquire 
communications where the sender and all intended recipients are known 
to be in the United States. That has to be with a FISA Court order if 
you are targeting somebody in the United States. This is an explicit, 
bright-line prohibition against reverse targeting in the current bill. 
If one would look at page 6 of the statute, section 703(b)(2), I will 
read it for you. It says:

       An acquisition authorized under subsection (a) may not 
     intentionally target a person reasonably believed to be 
     located outside the United States if the purpose of such 
     acquisition is to target a particular known person reasonably 
     believed to be in the United States except in accordance with 
     title I or title III.

  It does not get much clearer than that. So if the purpose in 
targeting someone outside the United States is actually to target a 
person inside the United States, you cannot use the authorities under 
this bill. It is clear. That is what the DNI stated his purpose was; 
that is what the bill provides. You have to get a FISA Court order if 
you are targeting somebody. You cannot do it by the back door.
  Now, I heard yesterday some far-out explanations that a family whose 
child goes overseas to go to school, we would be listening in on those 
conversations. That is absolutely nonsense. If that is a United States 
person, we could not even target that United States person abroad, and 
we certainly do not target someone in the United States without a court 
order. We have provisions to assure that the United States person who 
goes overseas cannot be targeted without an application to the FISA 
Court. Quite simply put, that does not happen.
  Now, if somebody is calling a suspected terrorist overseas, one on 
whom we have initiated collection because of intelligence sources 
certified by the Attorney General and the Director of National 
Intelligence, this person has significant terrorist information, 
significant intelligence information, foreign intelligence information, 
if one were to call that number, then it is possible, it is likely, and 
we would expect that they would find out what is in that call.
  If it is an innocent call, if it has nothing to do with terrorist 
activity, it is immediately suppressed; ``minimized'' is the term. They 
do not even record the name of the United States person.
  But when calls come from outside the United States into the United 
States from a person, a known terrorist abroad, or when they initiate 
the call, someone from the United States does, then what we must do is 
find out if they are talking about planned terrorist activity in the 
United States. That is the most important collection we can make. We 
have lots of important information targeting foreign terrorists, 
suspected terrorists, foreign intelligence targets overseas that is 
useful to our allies in protecting their countries. There are lots of 
instances where we have done that or when they

[[Page S643]]

are--and that does not require minimization, and it should not. But the 
information that is used is only that information which applies to a 
direct threat, a terrorist threat, or other significant foreign 
intelligence value. If a United States person is involved in that, if 
there is an involvement of the terror plot in the United States or 
elsewhere, then that information would be accepted, and if it is 
necessary to collect further against that American citizen or United 
States person, then they have to go through the normal procedure. 
Probably the FBI would get their normal search warrant and go after 
that person and determine what role, if any, he or she has in carrying 
out terrorist activity. So in addition to the bright-line test, there 
is clear oversight authority. There is oversight exercised by the 
supervisors at NSA, by the inspector general, by the Department of 
Justice, whose lawyers oversee it, and by our Intelligence Committee to 
make sure that the prohibitions on reverse targeting are being 
observed.
  If this proposal were to be accepted, the uncertainty, the 
operational uncertainty of determining what a purpose is in reverse 
targeting would make this an impossible situation for an analyst to 
observe and to make that determination. There is a clear prohibition 
against reverse targeting.
  The other amendment which he brought up, 3912, is on bulk collection. 
The bipartisan Intelligence bill contains numerous provisions to ensure 
that acquisitions targeting foreign terrorists overseas--that is 
foreign terrorists overseas--comply with the fourth amendment and 
follow court-approved targeting. It gives clear protection, as I said 
earlier, against reverse targeting.
  The amendment that has been proposed under 3912 has some very 
negative consequences for protecting our troops abroad. This amendment, 
for example, would prevent the intelligence community from targeting a 
particular group of buildings or geographic area where, for example, 
terrorist activity is known to be occurring, and preventing them from 
collecting signals intelligence prior to operations by our Armed 
Forces.
  If there is an area which has significant terrorist activity, to say 
we cannot collect all of the communications coming out of that area to 
identify who the terrorists might be, whether there are innocent 
persons involved before our military goes in, does not make any sense, 
because if we send our military in, they are going in and probably 
going to be using significant lethal force. Had this bulk collection 
provision been in place, it would have prevented our troops from 
conducting surveillance in Fallujah, for example, prior to their 
military operations.

  The details on this are classified. We can provide more information 
in a secure setting. But this amendment, according to the Director of 
National Intelligence and the Attorney General, ``could have serious 
consequences on our ability to collect necessary foreign intelligence 
information, including information vital to conducting military 
operations abroad and protecting the lives of our servicemembers, and 
it is unacceptable.'' I agree with them because I have had the 
opportunity to learn how the system operates. My colleague from 
Wisconsin has. I believe it is very clear from the information we have 
received and the knowledge we have about it that the evils which he 
purports to address are evils that do not exist. I strongly urge my 
colleagues to oppose both amendments.
  I reserve my time.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. It is sort of odd that we are debating these two 
amendments together. But there is one advantage. Under our system of 
government, the way we make sure that abuses don't occur is by passing 
laws to make it absolutely clear that abuses aren't occurring and can't 
occur. We are supposed to accept the say-so of one Senator who says we 
are not doing these things. We are not conducting bulk collection. We 
are not doing reverse targeting so don't worry. Yet he resists two 
amendments that simply make it clear you can't do these things. What is 
the objection on the merits to these two amendments? They would apply 
to an administration that initiated an illegal wiretapping program in 
disregard of the statutes. We have reason to believe that maybe they 
would do things we don't know about and don't like and don't think are 
legal, but we are supposed to simply take the word of one Senator 
instead of passing a law to clearly protect the American people.
  With regard to reverse targeting, the Senator asserts that somehow 
having a provision that says ``the'' purpose would have to be targeting 
an American before a court order is required is going to protect us. 
But that doesn't protect us. That language would mean that any 
incidental reason for targeting a foreign person when the government 
wants to listen to the American would be a sufficient basis for ongoing 
warrantless surveillance of the American. In fact, the Senator from 
Georgia has indicated that what this means is that the sole purpose of 
the collection would have to be to obtain information on the American 
before a court order is required. If that is true, then it would be 
very easy for the government to bootstrap any incidental interest in a 
foreign target so that they can listen in on an American.
  The DNI has said that reverse targeting is unconstitutional. What is 
the legitimate objection to making it absolutely clear that this can't 
be done in this statute? There is no substantive objection. The same 
thing goes for bulk collection. Again, one Senator assures the American 
people that the government is not doing bulk collection. That might be 
right. We may not be doing it now. But the DNI has said it would be 
desirable. He would love to do it. Yet the Senator will not permit a 
simple amendment that says that something that the DNI has also said is 
not actually needed but would raise serious constitutional problems, 
should be prohibited.
  This is an amazing moment. Instead of legislating, we are supposed to 
trust. With regard to all of our international communication, we are 
supposed to simply trust one Senator's assurance that there is nothing 
to worry about. I suggest the American people deserve better than that.
  To show the complete lack of content to these arguments, I addressed 
what the Senator, who was not out here at the time, has called the 
Fallujah example. He keeps saying that under this provision, you 
couldn't get information about what was going on in Fallujah when we 
were attacking al-Qaida and others there. That is absolutely false. I 
laid it out. As long as the Government says there is a foreign 
intelligence information purpose, of course they can do it. If there is 
a terrorist hotbed, they can do it. They just have to assert that. This 
argument that somehow this would interfere with that collection flies 
directly in the face of the bill and the amendment. There is no truth 
to that argument at all. The amendment is absolutely clear in cases of 
conflict, where the government merely needs to assert that it has a 
foreign intelligence purpose for conducting surveillance in that area. 
In that situation, the purpose is clear.
  Because of the floor situation, the arguments related to these two 
amendments have merged, but it sort of works in a way because both of 
them are such straightforward, simple protections that a majority of 
the Judiciary Committee agreed had to be included in this bill to 
protect the rights of the American people.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, there are quite a few things I disagree with 
that my colleague from Wisconsin has brought up. No. 1, he said the 
administration instituted an illegal wiretapping program. That is not 
true. That is wrong. I reviewed the documents on which they based it--
article II, and the authorization for use of military force. That was 
not an illegal effort. But that is a debate for another time. The 
administration did advise the leaders of Congress what they were going 
to do. The big eight were advised, and they did not deem any 
legislation advisable at the time.
  Secondly, he gives me too much credit in saying it is only the word 
of one Senator that his amendments are unworkable and unnecessary. This 
was brought up and debated in the Intelligence Committee. We spend our 
time overseeing intelligence collection. It was not adopted there. It 
was withdrawn.
  If my colleague has any evidence that there are any violations in 
reverse

[[Page S644]]

targeting or bulk collection of the fourth amendment of the 
Constitution or other violation of privacy rights, then I suggest he 
bring them up in our Intelligence Committee in closed session where we 
can debate all the activities that are going on. I assume he has been 
out to NSA to see how it operates. He has been in and had the 
opportunity to question leaders of the intelligence community. He says 
there is a total lack of substance. I have to say there is a total lack 
of substance to the allegations he makes. There are legitimate concerns 
which we address in this bill by specifically prohibiting reverse 
targeting. It is specifically prohibited in this bill. I have to say 
the people who run the program are the ones who have told us the 
additional bells and whistles he wants to put on for no reason or even 
reasonable prospect of violations would make it impossible to carry out 
the business of collection on foreign terrorists with potential 
activities in the United States.
  Again, there will be others who will discuss this. But it is not the 
word of one Senator. It is the word of a majority of the Intelligence 
Committee, and it is the word of the intelligence community itself, 
backed up by the Attorney General, that this is unwise, unnecessary, 
that these amendments would significantly hamper the ability of the 
intelligence community to conduct its operations.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Briefly, Mr. President, it is important to put in the 
Record that the Judiciary Committee, after carefully considering this 
not just in the context of intelligence--and I do serve on the 
Intelligence Committee as well--but in the context of the relationship 
between intelligence and civil liberties, came to the opposite 
conclusion on both reverse targeting and bulk collection and voted by a 
majority to adopt the very sort of amendments I am proposing. With 
regard to the vice chairman's assertion that I had not put forward any 
concerns about the impact of these authorities on the civil liberties 
of Americans, I, in fact, sent a classified letter to the DNI in 
December expressing serious concerns about the implementation of the 
Protect America Act and its effect on the rights of Americans. I can't 
discuss classified specifics here. But the fact is, these aren't merely 
theoretical concerns.
  One final point: The thrust of our concern about reverse targeting 
and bulk collection doesn't have to do necessarily with what has 
already occurred but what could occur, what abuses could occur if we do 
not clarify in the law that they should not be done. This is especially 
important in light of the fact that, as I have indicated, the Director 
of National Intelligence has said it would be desirable to do this bulk 
collection. If the DNI says that, wouldn't that be a reason to be a 
little concerned and to make sure it is clearly prohibited?
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Connecticut.


                           Amendment No. 3907

  Mr. DODD. Mr. President, I want to inquire as to how we are to 
proceed. I was asked to offer my amendment on behalf of myself and 
Senator Feingold regarding striking the language dealing with immunity 
in the bill. I don't want to interrupt the debate. I don't know how we 
ought to proceed. Is this debate concluded? I will check with the 
author.
  Mr. President, I ask unanimous consent to set aside the pending 
amendment so I may offer the Dodd-Feingold amendment dealing with 
retroactive immunity.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Let me inform my colleagues that what I intend to do is not 
to speak at length. I know under the previous time agreement, there are 
2 hours allocated to this amendment. My intention this evening is to 
use probably 10 or 15 minutes of debate on this amendment. I see my 
colleague from Washington. I don't know if she has an intention to 
address the Senate on this matter or something else. I am going to take 
10 or 15 minutes to talk about the amendment and then reserve the 
remainder of my time for tomorrow. There are other Members who would 
like to be heard on this amendment. I don't want to consume too much of 
the time to deny others the opportunity to be heard. I presume my 
colleague from Wisconsin tomorrow may want some time. I will take a 
brief amount of time this evening and then reserve the balance until 
later. Then my colleague from Washington can certainly be heard or 
anyone else for that matter.
  I send to the desk an amendment offered by myself and Senator 
Feingold, and Senators Leahy, Kennedy, Harkin, Wyden, Sanders, Obama, 
Biden, and Clinton and ask for its consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Connecticut [Mr. Dodd], for himself, Mr. 
     Feingold, Mr. Leahy, Mr. Kennedy, Mr. Harkin, Mr. Wyden, Mr. 
     Sanders, Mr. Obama, Mr. Biden, and Mrs. Clinton, proposes an 
     amendment numbered 3907.

  Mr. DODD. I ask unanimous consent that reading of the amendment be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

   (Purpose: To strike the provisions providing immunity from civil 
  liability to electronic communication service providers for certain 
                 assistance provided to the Government)

       Strike title II.

  Mr. DODD. Mr. President, this amendment we have talked about at 
length over the last number of weeks going back into December. This is 
a striking amendment to strike the language in the bill out of the 
Intelligence Committee that would provide for retroactive immunity to 
the telecom industry. It has been debated at length. This amendment 
strikes that language in the bill, conforms it to what has been adopted 
by the other body in its legislation dealing with the Foreign 
Intelligence Surveillance Act suggestions and recommendations, and 
conforms it to what has been included in the Senate Judiciary Committee 
bill. So while there have been three different committees that have 
reported their suggestions to the Congress on this issue, the 
committees in the House of Representatives and one committee here have 
reached different conclusions than that of the Intelligence Committee, 
where they have recommended that retroactive immunity be granted to the 
telecom industry for having kept over the last 5 years sort of a 
vacuum-cleaner approach to telephone conversations, faxes, e-mails that 
have been engaged in by Americans across the board.
  This goes back immediately to after 9/11. As I said, had this been a 
temporary deviation from the norm, particularly in the wake of 9/11, I 
would not be standing here asking that retroactive immunity not be 
granted. But this program went on for 5 years. It only came to an end 
because of a revelation by whistleblowers and others that the program 
stop. This was 5 years of collecting data and information on U.S. 
citizens without a court order.
  The FISA Court was established back in 1978 specifically to provide 
for warrants and court orders when such information was being solicited 
and needed to provide for the security of our country. I think these 
amendments that we need to update the FISA legislation are critically 
important, and I certainly want to see them adopted. But I believe it 
is going way beyond the pale in the midst of all this to extend 
retroactive immunity back to a group of companies that decided this was 
an appropriate request and they were going to comply with it. I would 
point out to my colleagues that not all companies did. If every single 
company complied with this, you might make the case that there was 
something going on that required, or certainly warranted, their 
decision to agree to this invasion of privacy without a court order. 
There were companies that said: No, we will not comply with that 
request absent a court order. That court order was never forthcoming 
and those companies did not engage, to the best of our knowledge, in 
the collection of this data and information.

  Now I am not drawing the conclusion--but I have my opinions about 
this--as to whether what the companies did was legal or illegal. That 
is not a matter for 51 of us here by a majority vote to decide. That is 
a matter for which the courts exist in this country. It is not a matter 
for the executive branch to decide. It is why we have three coequal 
branches of Government.

[[Page S645]]

When matters such as this arise, raising the legality of certain 
actions, then that matter ought to be appropriately decided by that 
third coequal branch of Government, as the Framers intended, in exactly 
these kinds of cases; that is, the matter to determine whether those 
who are suggesting that these telephone companies did exactly what they 
should have done under the circumstances. There are many here and 
elsewhere who believe otherwise, and while short of reaching a 
determination as to legality, believe that the courts ought to make 
that determination.
  There are some 40 cases now pending before the courts on this very 
matter. If we take the action adopted by the Intelligence Committee, we 
will never, ever know whether these actions were legal, whether the 
privacy of millions and millions of Americans were invaded. Once we 
have set the precedent of allowing this retroactive immunity to go 
forward, why not then in other areas outside of the case of 
telecommunications? What about medical records? What about financial 
records? The Congress will have voted that it is all right to grant 
retroactive immunity. The next time an American President asks these 
companies or other companies to engage in similar activities, why not 
use the precedent established by the telecommunications industry to 
comply with that request absent a court order?
  These are critical moments involving the rule of law--the rule of 
law--not the whim of a President, any President. Given the pattern of 
behavior of this administration over the last 6 or 7 years, in example 
after example where there has been a disregard, in my view, of the rule 
of law and the Constitution of the United States, what more does this 
body need to understand in this matter than to once again grant this 
administration a pass and in effect say to those companies: It doesn't 
make any difference. We don't know whether what you did was legal, but 
you get a pass on this right now. I think nothing could be more 
dangerous than to allow that precedent to go forward without us 
insisting that the courts be allowed to exercise their judgment in 
these matters.
  There are arguments that have been raised on why we shouldn't let 
this happen. One: It might hurt these companies financially. That 
argument is so offensive I hesitate to make it even on behalf of those 
who would argue it. The idea that some financial injury is far more 
important than the rule of law ought to be offensive to every American, 
whether you agree or disagree with whether these companies did the 
right thing, or somehow that these companies had no idea what they were 
doing; they went along with this because an American President asked 
for it.
  I would point out that in 1978, during the drafting of the FISA 
legislation, many of these companies were directly involved in the 
drafting of that legislation. They knew exactly what the law is in this 
area. I would further point out that it has been reported to the press 
that there have been more than 18,000 requests of FISA Courts over the 
last 30 years when it has come to these kinds of inquiries. In all but 
5 cases, out of the more than 18,000 requests, the FISA Courts have 
complied with executive branch requests for warrants to invade or to 
engage in surveillance activities. Only in 5 cases were they rejected, 
out of more than 18,000 requests. That is better than 99.9 percent of 
the cases. Why not in this one? Why were the courts not solicited to 
provide the kind of approval for the court orders that would have 
allowed for this surveillance to go forward? It is not a minor point. 
It is a huge point.
  I would further point out that the administration, of course, 
originally requested that immunity be granted not only to the 
telecommunications industry but everyone involved in this matter. 
Thanks to the wisdom of Senator Rockefeller and Senator Bond, that 
broad request was rejected, and I thank them for it. But it is 
important that our colleagues understand that that is what they wanted 
to do; They wanted total immunity for everyone involved in this 5-year 
plan. But the committee wisely rejected that request and narrowed the 
immunity only to the telecommunications industry. But nonetheless, I 
think all of us understand the net effect. If we grant retroactive 
immunity as requested by this legislation, then we will never get to 
the bottom of what occurred here, and once again, opening the door to 
possible future violations.
  It is being suggested by some: Well, this is just a bunch of 
Democrats going after a Republican administration. I will tell my 
colleagues that if this were a Democratic administration, I would be 
standing here with as much passion as I am today. This is not about 
Republicans or Democrats, liberals or conservatives; it is about the 
rule of law. It is about the Constitution of the United States. All of 
us here, regardless of political ideology or what party we affiliate 
with, this is a matter that transcends all of that. We ought to--as we 
have sworn to do when we raised our right hand in the well of this 
body, as each one of us has here as Members of this institution--
protect and defend the Constitution of the United States. Nothing less 
than that is being asked of us when we vote on this matter: to strike 
this provision and allow the courts to do their work; to determine 
whether, as those who are advocating for retroactive immunity assert, 
that this was an appropriate and proper response by these companies, or 
to draw the different conclusion that it was not and that it was 
inappropriate, illegal, and improper for them to do what they have 
done; and that all other bodies in this country, private or otherwise, 
need to understand when this administration or any administration makes 
a similar request in the future, the Congress has spoken on this 
matter, so that they do so only when they receive those kinds of court 
orders and then provide that kind of immunity which, in every single 
case in the past, they have when the court order has been approved by 
the FISA Courts. That is the sum and substance of this debate.

  There are various other arguments for immunity, including the 
argument that somehow you can't protect private information. As one 
Federal judge has already pointed out--I might point out a Republican 
appointee to the bench--what are we all hiding from? We all know this 
went on. This is not some secret. We all know that for 5 years or more, 
this information was being vacuumed up. That is no longer a secret. 
What is potentially a secret is how this was done--methods and means--
and I appreciate those who want to make sure that we don't allow for 
the revelation of that kind of information. But there are ample 
examples of how the Federal courts have handled these matters in the 
past, acting in a way that protects this kind of information. The 
suggestion that this is too dangerous to allow these matters to go 
forward I don't think is a valid argument, particularly when you are 
going to sweep across retroactive immunity. There are plenty of 
examples. In fact, I would note that the Presiding Officer--I don't 
know this, but I presume in his previous life as an attorney general--
faced matters in his own State where certain private information had to 
be kept private and secret and there were matters before the courts 
before which he operated where that was exactly the case. I have 
listened to other attorneys general cite examples where there was 
privacy and other information that did not belong in the public domain 
and was protected. So the argument that somehow we can't run the risk 
of allowing the Federal courts to handle these matters given the 
revelation of information that otherwise shouldn't be in the public 
domain--I don't buy that argument either. But those are the arguments 
for having retroactive immunity on this legislation.
  I have spoken at great length about this in the past and I appreciate 
the indulgence of the chairman and others to listen to me over and over 
again on this subject matter. But this is a matter I care deeply about 
and I know others do too. This is not a Democrat standing up here 
trying to cause trouble for a Republican administration. That is an 
offensive argument. I think we know each other well enough to respect 
and understand that these are serious debates and serious arguments. 
The tension that has existed for the life of our great Republic is this 
debate today, how do we protect the rights and liberties of our 
American citizens and simultaneously protect our people from those who 
would do us great harm and injury. It is not an easy debate; I 
understand that. But it is one that is as old as our Republic, to make 
sure

[[Page S646]]

that we maintain those rights and liberties while simultaneously 
fulfilling that obligation to protect our citizens from those who would 
do us great harm. I believe the tension is such that I don't believe we 
want to give up these rights, these important systems we put in place. 
In fact, the very FISA Courts as they exist were designed to 
specifically address that balance more than 30 years ago, and I believe 
on some 30 different occasions over the years we have amended the FISA 
legislation to allow us to stay current with technologies that could be 
used against us as well as allowing those technologies that allow us 
greater opportunity to learn about those who would do us harm. So over 
the years we have made those recommendations. Almost unanimously--and I 
believe I am correct in that assessment--previous Congresses have 
adopted those recommendations and suggestions. To suggest, as was done 
here, that because of Senator Feingold's amendments dealing with 
reverse targeting and bulk collections, that somehow we are violating 
that history, I think is wrong. I think those suggestions are 
worthwhile and warranted, and it can improve not only what we are doing 
technologically in this bill, but also fulfilling the second part of 
that obligation, and that is to protect the rights of our citizenry.
  It is truly a false dichotomy to suggest that we can only become more 
secure by giving up rights. I think that is a very dangerous argument 
to make. Too many in this country are subscribing to it today. That is 
exactly the opposite of what the case ought to be: that we become more 
secure when we insist upon those rights and liberties. That has been 
the history of our great country. In every single example I can think 
of when we have allowed our rights to be shortchanged to the argument 
of security, we look back historically and regret those moments. When 
we think about the internment of Japanese Americans during World War II 
and other examples, I think all of us look back and regret those 
moments, if we did anything but give our country more security. We have 
had great moments when we stood up for the rights and liberties of our 
fellow citizens in the face of arguments that our security was in 
jeopardy if we didn't somehow tailor those rights and liberties to give 
us additional security. I think that is the same argument today. I 
think we will be a proud body by rejecting this piece of the bill 
before us, allowing the courts to do their job as the Framers intended 
them to do, to determine the legality of the actions taken by these 
companies at the request of this administration, to allow them to make 
that decision, not by some vote in this body that would allow these 
matters to be swept aside for all of history without ever knowing 
whether we did great damage to the rights and liberties of our fellow 
citizens.
  I will make additional arguments here tomorrow, but I want to reserve 
time because here we are on Super Tuesday and a lot of people are not 
here who want to engage in this debate. So I will reserve the remainder 
of my time so that others can be heard on this matter when it comes up 
either tomorrow or whenever the matter comes back to the floor. But I 
appreciate the managers of this legislation giving me a few minutes to 
make my case on this issue. I have said so many times before, and I 
will say again, Jay Rockefeller and Kit Bond are very good friends of 
mine. I have great admiration for these men. We have served a long time 
together here. They don't have an easy job. This is a very difficult 
committee to have to work on, given the difficult matters they are 
faced with. I am sure they understand that my objections are not about 
our friendship or my respect for the work they do, but about a 
fundamental disagreement. I admire what they are trying to do, I 
respect the job they have been asked to do, and I thank them for it.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I thank my good friend from Connecticut for 
the kind words. We are delighted to have him back, although some would 
wish that he were otherwise occupied tonight. But we welcome him back 
and welcome him to the debate. I express my appreciation for the kind 
words he said about me in Iowa. It didn't do much good in Iowa, but I 
always appreciate them.
  On this debate, however, I respectfully say that my good friend, with 
whom I have worked on many measures and intend to work with on many 
more, is dead wrong. He is correct that the FISA law was passed in 
1978, but the problem is it has been superseded by technological 
changes. The technology of transmission of signals changed 
significantly. He probably was not here when I mentioned it earlier, 
but when the terrorists struck on 9/11, there was a question of how we 
could prevent further attacks that were planned and some of them were 
under way. The appropriate intelligence community officials recommended 
electronic surveillance and noted that since the laws had not changed, 
but technology had changed, it was quite likely that FISA, as it 
existed from 1978, even with minor tweaks, would not accommodate the 
collection that was needed. The intelligence community leaders and the 
administration leaders addressed this with the Gang of 8, the leaders 
of both parties, both Houses, and both sides of leadership on the 
Intelligence Committees, and they concluded that there was not time to 
change the law, so the President went ahead, using his article II 
powers as enhanced by the authorization for the use of military force. 
The President issued orders and, for the most part, the Attorney 
General signed off on it when he was available. The Director of 
National Intelligence issued them, and companies, understanding the 
urgency of providing collection against foreign terrorists--this was 
directed against foreign terrorists calling into the United States--
complied.
  Now, the fact that one or two may not have complied speaks no praise 
for those companies, because if they failed to comply with what I have 
reviewed and believe to be valid orders of the Federal Government, and 
as a result, communications that might have tipped off an imminent 
attack on the United States of America were missed, then it would be a 
great shame for those companies.
  Now, I cannot speak for the other body. I do say that the Judiciary 
Committee, which has broad jurisdiction over many important things--and 
I respect the leadership of that Committee--doesn't spend the time that 
we in the Intelligence Committee do on intelligence matters--going out 
to NSA, having people come before us, being briefed, going through 
laboriously technical operations that allow these searches and 
surveillance, and going through and listening and observing the means 
of assuring that these functions are carried out in compliance not only 
with constitutional directions but the regulations and the statutes of 
the United States is very important. We have seen the oversight. There 
is the supervisor and the inspector general who act as an independent 
check; the Department of Justice lawyers who come and review it from 
their standpoint; but also the Intelligence Committees in both Houses, 
which have not only the right but the responsibility to oversee this.
  Based on that, our committee determined and reported out a measure 
saying it was absolutely essential for the continued security of this 
country to eliminate lawsuits that had been filed against a number of 
carriers alleging that they may have participated in this activity.
  Now, why is that a problem? Well, today, we had open hearings 
involving the DNI, the Director of the FBI, the Director of the CIA, 
the Director of the Defense Intelligence Agency, and the Deputy 
Secretary of State for the INR Division. We asked all of them why it 
was essential that they provide retroactive liability protection.
  The first and most important concern raised was that allowing these 
lawsuits to continue against the company--my colleague from Connecticut 
is right. We permit cases to go forward against the Government or 
Government officials. We are just protecting private companies. It is 
the pleadings, the discovery, and the testimony that would inevitably 
tell us, and the terrorists, much more about the operations of the 
program than the terrorists ought to know. In May of 2006, after the 
disclosures of this terrorist surveillance, GEN Mike Hayden came before 
our committee for confirmation. I asked him: What impact has the 
disclosure of our terrorist surveillance

[[Page S647]]

program had on the collection of intelligence from foreign terrorists 
and suspected terrorists? He smiled and said, ruefully: We are applying 
the Darwinian theory to terrorists. We are only collecting the dumb 
ones.
  I can assure you the people we want to listen in to are the very 
clever, very witty, very diabolical, murderous heads of al-Qaida and 
other terrorist organizations who want to do great bodily harm to the 
United States. They think, what we can do to tell them more about it, 
which would tell them how to evade even the means of collection that we 
have left available, that would leave our intelligence community deaf 
and blind to threats not only to this country, which is most important 
to all of us but to our allies and our troops overseas.
  All the heads of the intelligence agencies I mentioned said one of 
the most important things we can do is provide this retroactive 
liability protection because, without it, then the private carriers--
the telecom companies--will no longer participate voluntarily to 
requests from Government entities. We have many areas where the 
telecommunications companies work with the Federal Government--whether 
it is tracking a missing child, tracking down a sex offender or, on 
another level, breaking up a drug cartel or, on another level, 
protecting against cyber attacks from other countries. If litigation is 
allowed to proceed against these companies, not only will it likely 
describe in detail the means that our intelligence community uses to 
collect information, it will put the companies in such dire straits in 
terms of business reputation here and abroad that it will be a very 
serious blow to the shareholders, to the pension funds that own the 
companies, and it will lead the counsel for those companies to say: 
never participate with the Federal Government again.
  This could be a disaster for effective collection. I believe it was 
the consensus of those present at our hearing today--the Director of 
the FBI, the Director of CIA, the general in charge of the Defense 
Intelligence Agency, Under Secretary in charge of INR, and Admiral 
McConnell, the DNI--that retroactive liability protection for any 
carriers that may have participated, as well as carriers that are 
getting sued that didn't participate, that cannot exercise the state 
secrets to protect them, it will ensure that we don't get protection, 
don't get the cooperation from these telecommunications carriers when 
we need it.
  We have worked hard on this measure. After reviewing all the 
information available to us, including opinions and authorizations that 
we reviewed in the executive office, the committee determined, on a 
strong bipartisan basis, that the providers acted in good faith 
pursuant to representations from the highest level of the Government, 
that the TSP was lawful.
  We worked hard to fashion a limited liability protection provision 
that serves the dual purpose of ending the litigation against the 
providers while allowing the cases against the Government to continue. 
Go ahead and attack the Government. There is no shortage of that in 
this body. I have heard it previously earlier today. That is part of 
our role on a partisan basis. We exchange criticism of the other party 
and particularly the administration when it is of the other party. We 
can make our best arguments. But we need to stop investigations, for 
example, by State public utility commissions of the providers' conduct 
under the TSP.
  These investigations involve very sensitive, classified information 
that no public service commission or public utility commission is 
competent to handle, maintaining the secrecy, the confidentiality we 
need of our collection methods. We know this program has inflicted no 
harm on our citizenry and has protected us from harm.
  I invite my colleagues, once again, to go to the fourth floor 
confidential classified hearing room or come to the Intelligence 
Committee's offices in Hart, if they want to see, from the Director of 
National Intelligence, a list of things that have been accomplished 
under the Protect America Act because collecting this electronic 
information is vitally important. It is right up there with 
interviewing detainees--high-value detainees--in providing us our most 
valuable information. To strike this provision of retroactive liability 
protection from the bill would significantly lessen our ability to 
collect intelligence and will make our country much less safe.
  I ask that my colleagues vote against it. I will shortly yield time 
to my colleague and the chairman of the committee. At this point, I ask 
unanimous consent that the pending amendment be temporarily set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.


               Amendments Nos. 3938 and 3941, as modified

  Mr. BOND. Mr. President, I call up amendments numbers 3938 and 3941 
and ask unanimous consent that they both be modified with the changes 
at the desk.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Missouri [Mr. Bond] proposes amendments 
     numbered 3938 and 3941, en bloc.

  Mr. BOND. I ask unanimous consent that reading of the amendments be 
dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendments are as follows:


         Amendment No. 3938, As Modified, to Amendment No. 3911

       On page 70, strike line 1 and insert the following:

     SEC. 110. WEAPONS OF MASS DESTRUCTION.

       (a) Definitions.--
       (1) Foreign power.--Subsection (a)(4) of section 101 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801(a)(4)) is amended by inserting ``, the international 
     proliferation of weapons of mass destruction,'' after 
     ``international terrorism''.
       (2) Agent of a foreign power.--Subsection (b)(1) of such 
     section 101 is amended--
       (A) in subparagraph (B), by striking ``or'' at the end
       (B) in subparagraph (C), by striking ``or'' at the end; and
       (C) by adding at the end the following new subparagraphs:
       ``(D) engages in the international proliferation of weapons 
     of mass destruction, or activities in preparation therefor; 
     or
       ``(E) engages in the international proliferation of weapons 
     of mass destruction, or activities in preparation therefor, 
     for or on behalf of a foreign power; or''.
       (3) Foreign intelligence information.--Subsection (e)(1)(B) 
     of such section 101 is amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (4) Weapon of mass destruction.--Such section 101 is 
     amended by inserting after subsection (o) the following:
       ``(p) `Weapon of mass destruction' means--
       ``(1) any destructive device described in section 
     921(a)(4)(A) of title 18, United States Code, that is 
     intended or has the capability to cause death or serious 
     bodily injury to a significant number of people;
       ``(2) any weapon that is designed or intended to cause 
     death or serious bodily injury through the release, 
     dissemination, or impact of toxic or poisonous chemicals or 
     their precursors;
       ``(3) any weapon involving a biological agent, toxin, or 
     vector (as such terms are defined in section 178 of title 18, 
     United States Code); or
       ``(4) any weapon that is designed to release radiation or 
     radioactivity at a level dangerous to human life.''.
       (b) Use of Information.--
       (1) In general.--Section 106(k)(1)(B) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1806(k)(1)(B)) is amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (2) Physical searches.--Section 305(k)(1)(B) of such Act 
     (50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage 
     or international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (c) Technical and Conforming Amendment.--Section 301(1) of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1821(1)) is amended by inserting `` `weapon of mass 
     destruction','' after `` `person',''.

     SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.

       On page 84, line 12, strike ``and 109'' and insert ``109, 
     and 110''.
       On page 87, line 12, strike ``and 109'' and insert ``109, 
     and 110''.
       On page 87, line 21, strike ``and 109'' and insert ``109, 
     and 110''.
       On page 88, line 10, strike ``and 109'' and insert ``109, 
     and 110''.


         Amendment No. 3941, As Modified, to amendment No. 3911

       On page 13, strike lines 3 through 13, and insert the 
     following:
       ``(C) Standards for review.--A judge considering a petition 
     to modify or set aside a directive may grant such petition 
     only if the judge finds that the directive does not meet the 
     requirements of this section, or is otherwise unlawful.

[[Page S648]]

       ``(D) Procedures for initial review.--A judge shall conduct 
     an initial review not later than 5 days after being assigned 
     a petition described in subparagraph (C). If the judge 
     determines that the petition consists of claims, defenses, or 
     other legal contentions that are not warranted by existing 
     law or by a nonfrivolous argument for extending, modifying, 
     or reversing existing law or for establishing new law, the 
     judge shall immediately deny the petition and affirm the 
     directive or any part of the directive that is the subject of 
     the petition and order the recipient to comply with the 
     directive or any part of it. Upon making such a determination 
     or promptly thereafter, the judge shall provide a written 
     statement for the record of the reasons for a determination 
     under this subparagraph.
       ``(E) Procedures for plenary review.--If a judge determines 
     that a petition described in subparagraph (C) requires 
     plenary review, the judge shall affirm, modify, or set aside 
     the directive that is the subject of that petition not later 
     than 30 days after being assigned the petition, unless the 
     judge, by order for reasons stated, extends that time as 
     necessary to comport with the due process clause of the fifth 
     amendment to the Constitution of the United States. Unless 
     the judge sets aside the directive, the judge shall 
     immediately affirm or affirm with modifications the 
     directive, and order the recipient to comply with the 
     directive in its entirety or as modified. The judge shall 
     provide a written statement for the records of the reasons 
     for a determination under this subparagraph.
       On page 13, line 14, strike ``(D)'' and insert ``(F)''.
       On page 13, line 17, strike ``(E)'' and insert ``(G)''.
       On page 14, strike lines 10 through 19, and insert the 
     following:
       ``(C) Standards for review.--A judge considering a petition 
     filed under subparagraph (A) shall issue an order requiring 
     the electronic communication service provider to comply with 
     the directive or any part of it, as issued or as modified, if 
     the judge finds that the directive meets the requirements of 
     this section, and is otherwise lawful.
       ``(D) Procedures for review.--The judge shall render a 
     determination not later than 30 days after being assigned a 
     petition filed under subparagraph (A), unless the judge, by 
     order for reasons stated, extends that time if necessary to 
     comport with the due process clause of the fifth amendment to 
     the Constitution of the United States. The judge shall 
     provide a written statement for the record of the reasons for 
     a determination under this paragraph.
       On page 14, line 20, strike ``(D)'' and insert ``(E)''.
       On page 14, line 24, strike ``(E)'' and insert ``(F)''.

  Mr. ROCKEFELLER. If the Senator will yield, it is very important for 
a particular person on this floor to be able to, within the next 15 
minutes--and for a particular reason--say some things that are very 
important to her, not on either of our pending amendments, the two 
amendments you and I are about to offer. The Senator has already 
approached the Parliamentarian in this matter. I ask if the Senator 
from Missouri would be willing to allow the Senator from Washington to 
speak on a different subject for 15 minutes for a very good reason.
  Mr. BOND. Mr. President, I have no intention of continuing this 
discussion.
  These are amendments, I hope, will be accepted. Chairman Rockefeller 
and I will describe them later. I ask that our time be reserved, and I 
defer to Members on the other side who may wish to go into morning 
business.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, understanding whatever it is that the 
Senator from Arizona decides he wants to do, there is a particular 
reason and a particular time constraint that the Senator from 
Washington has to speak now. That is why I asked that she be allowed to 
speak in morning business. She will make that request, and I hope there 
will be no objection to it.
  Mr. KYL. Mr. President, I have no objection to that. But I would like 
to add that when the Senator from Washington has concluded her remarks, 
I be recognized for my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Washington is recognized.
  Ms. CANTWELL. Mr. President, I ask unanimous consent to speak as in 
morning business for up to 15 minutes and that the time not be counted 
against the debate on the FISA legislation.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                            Stimulus Package

  Ms. CANTWELL. Mr. President, I rise today to speak about clean energy 
production tax credits, investment tax credits, and the energy 
efficiency provisions in the pending stimulus package, which I think 
are critical to restoring economic growth in America and continuing 
what is a burgeoning industry that is helping us create jobs and 
economic stimulus across our country. We are talking about tax credits 
that are a proven stimulus and business investment. They give 
consumers, in this case, energy efficiency credits of up to $500 to 
make energy efficiency improvements to their homes, which could save 
homeowners as much as $800 per year in avoided energy costs. We are 
talking about $20 billion of stimulus and 116,000 jobs that could be 
impacted.
  The bottom line is the renewable energy industry generated over $40 
billion of revenue in 2006 and accounted for 450,000 direct and 
indirect jobs last year. So we know that clean energy is one of the 
fastest growing sectors of our economy. But by failing to act when we 
didn't pass these critical tax incentives last year, we caused 
turbulence in what is a very new and growing industry. And if the 
Senate rejects these incentives now, we could put this industry in a 
tailspin by not giving them predictability on their tax credits. That 
is why it is so important we pass the stimulus package tomorrow.
  Let's talk about what we are hearing from some of those in the 
industry who know this sector very well. The Alliance to Save Energy, a 
group of business, government, and consumer leaders, committed to 
seeing this country take advantage of cost savings from efficiency have 
said:

       Energy efficiency tax incentives put money into the economy 
     by encouraging the purchase of energy efficient products and 
     services.

  This group has representatives of this body as part of that alliance. 
Their job is to advocate for policies to help this industry grow. What 
are we hearing from particular industries? I like this chart 
particularly because so many of my colleagues--I do it, and so many on 
the other side, and even the President of the United States speaks at 
these various clean energy industry plant sites and advocate and are 
excited about the jobs they create. But sometimes it stops there and 
after the ribbon cutting they fail to support the necessary 
policies. That is why recently a particular solar company CEO made this 
statement:

       The Senate can ensure that we keep the economic engine 
     moving forward and extend the solar tax credits as part of 
     the economic stimulus bill.

  That is directly from the solar industry that we politicians like to 
stand in front of and talk about jobs being created. Here is somebody 
who was the prop behind one of these events in the last week, and they 
are telling us to pass this tax credit in the stimulus package.
  What are we hearing from a consortium of those in the industry? We 
are hearing from one consolidated report of the renewable industry that 
said:

       Over 116,000 U.S. jobs, and nearly $19 billion--

  This is just on solar, wind, and other renewable electricity 
sources--

     nearly $19 billion in U.S. investment could be lost in one 
     year if renewable energy tax credits are not renewed by 
     Congress.

  That report came out earlier this week.
  The reason why people are so concerned about this is because what we 
have seen traditionally--and we can see on this chart that in 2000, 
2002, and 2004 where we did not give predictability to this industry by 
saying we are going to continue the tax credit policy--what happened is 
a 93-percent drop in investment; in 2000. In 2002, a 73-percent drop in 
investment; and again in 2003, another 77-percent drop in investment.
  Here is where this industry is now in 2007. It is a growing industry. 
As I said, in 2006, it was $40 billion in revenue and over 450,000 
direct and indirect jobs. And we are about to kill this level of 
investment and put it into a tailspin by not continuing this tax 
policy.
  In fact, that is exactly what this solar industry CEO, who had the 
pleasure of standing there with Governor Schwarzenegger and others, 
said. He said Federal tax credits for solar energy are about to expire. 
They are about to expire and it will send the solar industry into a 
tailspin.
  It doesn't have to get any clearer than that: CEOs of companies that 
are the backdrop of great press events telling us we are about to send 
their industries into a tailspin. I suggest we instead pass these tax 
incentives and get

[[Page S649]]

on with what could be certainty in tax policy.
  What I like about wind is the fact that it is happening in lots of 
places across this country, but it is also giving farmers a second 
crop. Almost 200 members of the American Wind Energy Association have 
sent us a letter saying that ``companies in our industry are already 
reporting a decrease in investment as a result of the uncertainty 
surrounding tax policy.'' They are saying they are already seeing 
people starting to cancel projects.
  We want to help our economy grow, and there is stimulus in these tax 
incentives, but I ask my colleagues to consider what is going to happen 
when they do not renew them. They are actually going to cause more 
damage to the economy because people are going to start canceling 
projects.
  Let me explain. This same report by Navigant came out earlier this 
week and got very specific as to which States had significant 
investment by renewable companies and exactly what was going to happen 
both in the loss of opportunity for new jobs and in actually having 
jobs cut when there is not predictability.
  Texas, one of the biggest investors from a wind production side, 
could lose a future opportunity and existing jobs of upwards of 23,000; 
Colorado, 10,000; Illinois, 8,000; Oregon, 7,000; Minnesota, 6,000 
plus; Washington State, nearly 5,000 jobs are at stake. The list goes 
on to other States that have made incredible progress in renewable 
energies that are creating jobs, and all these jobs are at stake for 
the future and some of them represent jobs where people are getting a 
paycheck today. Instead, they will take our rebate check, if we pass 
the House bill, and they will receive a pink slip because their jobs 
are not going to be there anymore. That is why we have to pass this 
package.
  In fact, I want to give examples of two specifics where people will 
actually lose jobs.
  Noble Environmental Power is developing projects for wind in New York 
and Texas, and they plan to construct two parks in New York State and 
two in Texas. If the production tax credit is not extended, these 
projects will not be built which will eliminate 1,200 full-time 
construction jobs. That is 600 jobs in each State.
  In addition, the company in its head count will be cut from 220 to 
120 because they will also cut other jobs related to planning. In fact, 
if we do not give them this predictability this year, in 2008, $200 
million in orders for equipment will be canceled. That is stimulus, $20 
million that will not be made because they do not have certainty and 
they are going to cancel their plans for equipment.
  Additionally, $18 million in engineering services are going to be 
canceled because they do not have predictability in this Tax Code.
  Again, if the production tax credit is not extended, 600 full-time 
construction jobs will be eliminated in each State, New York and Texas.
  Another example. Safeway, which is a major grocery store chain, is 
planning on retrofitting additional stores with solar panels. Why are 
they doing that? Because they know they can get offset rising energy 
costs out of those solar panels. They are looking at 15 additional 
stores with solar panels and injecting an additional $30 million into 
the economy if the solar investment credit is extended. If it is not 
extended, these jobs are going to be in jeopardy.
  Here are companies trying to help us stimulate the economy, create 
jobs, lower energy costs, and I am sure that helps with the bottom line 
of food costs in America, and yet we are not giving them 
predictability.

  We also saw in my home State of Washington a company, Wellons, a 
leader in wood-fired energy systems, say they are going to mothball up 
to 20 projects unless they get the production tax credit. That means 
that some of the 500 people in this particular company will be laid 
off.
  I think the Arizona Republic said it best. In fact, they had an 
editorial this week that said:

       The economic stimulus package from Congress . . . should 
     include an extension of tax credits for renewable energy 
     sources. For Arizona--

  And I think this is similar for many other States, but Arizona is a 
leader in this area--

       the continued development of our solar industry is at 
     stake.

  That is why we need these credits. We had today the Los Angeles Times 
say:

       Investors won't pump money into clean power if there is a 
     danger of losing their tax incentives . . . green technology 
     is an extremely promising growth industry that could help 
     make up for the loss of manufacturing jobs.

  That is another editorial from today.
  We know this, and yet we somehow want to pretend that the elimination 
of these tax credits does not matter. I know it matters to Governors 
because we have heard from the Governors of Iowa, Illinois, Indiana, 
Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, South 
Dakota, and Wisconsin:

       We know that uncertainty of the future of a wind production 
     tax credit must be avoided if this burgeoning industry is 
     going to thrive in the years ahead.

  So we are hearing from our Governors who are on the ground wanting to 
approve these projects knowing how much they mean to their local 
economies, and yet we are ignoring that.
  We also heard from a growing industry partner, the American Corn 
Growers Association. They said:

       If President Bush will agree with the inclusion of the 
     production tax credit in the stimulus package, he will be 
     adding numerous jobs to our economy.

  Why is that? Because this industry sees that this is a good partner. 
It is actually helping them with additional revenue, and it is helping 
those Midwest economies continue to grow.
  What about the National Farmers Union, another organization, which 
said:

       Encourage your support including important renewable energy 
     tax incentives in the economic stimulus package currently 
     being considered by Congress.

  The Farmers Union obviously knows this means jobs in their local 
economy. But for them, it also means that instead of paying the high 
prices of natural gas and not having any product compete with it, that 
having renewable energy generate an additional 6,000 megawatts of power 
can actually get alternative sources of electricity in the market and 
lower the demand on natural gas and thereby lowering the price. That 
helps lower the cost of fertilizer. It is critically important.
  This past week, we had 41 Senators sign a letter, including 14 of my 
colleagues on the other side of the aisle, who agree that:

       Extending these expiring clean energy tax credits will help 
     ensure a stronger, more stable environment for new 
     investments and ensure continued robust growth in a bright 
     spot in an otherwise slowing economy.

  I ask unanimous consent to have printed in the Record this letter of 
bipartisan support.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                 Washington, DC, January 25, 2008.
     Hon. Harry Reid,
     Senate Majority Leader,
     Washington, DC.
     Hon. Max Baucus,
     Chairman, Senate Committee on Finance, Washington, DC.
     Hon. Mitch McConnell,
     Senate Republican Leader,
     Washington, DC.
     Hon. Charles Grassley,
     Ranking Member, Senate Committee on Finance, Washington, DC.
       Dear Senators Reid, McConnell, Baucus, and Grassley: We 
     strongly support current bipartisan efforts to mitigate an 
     economic downturn by providing direct financial relief to 
     American families. At the same time, we believe that we must 
     be cognizant that energy prices have been a leading cause of 
     our current economic environment. Accordingly, we strongly 
     believe that we must provide a timely long-term extension of 
     clean energy and energy efficiency tax incentives that expire 
     at the end of this year. Given record energy prices and 
     growing demand, postponing action on these critical energy 
     incentives will only exacerbate the problems afflicting our 
     economy. In fact, these renewable energy and energy 
     efficiency investments have a verifiable record of 
     stimulating capital outlays and promoting job growth. We must 
     ensure that this impressive record is maintained in 2008 and 
     extend these tax credits expeditiously.
       Over one hundred thousand Americans could be put to work in 
     2008 if clean energy production tax credits were extended in 
     the first quarter of this year according to industry 
     estimates. However, because the incentives are set to expire 
     this year. renewable energy companies are already reporting a 
     precipitous decrease in investment due to uncertainly. 
     Projects currently underway

[[Page S650]]

     may soon he mothballed. Clean energy incentives for energy 
     efficient buildings. appliances and other technologies, as 
     well as additional funding for weatherizing homes. would 
     similarly serve to stimulate 2008 economic consumption, lower 
     residential energy costs, and generate new manufacturing and 
     construction jobs.
       Failing to act on these crucial incentives could choke off 
     promising business investment in 2008 and miss an opportunity 
     to address high energy costs. a critical contributor to 
     sinking consumer confidence and our nation's long-term 
     economic challenges. Extending these expiring clean energy 
     tax credits will help ensure a stronger, more stable 
     environment for new investments and ensure continued robust 
     growth in a bright spot in an otherwise slowing economy. To 
     that end we look forward to working with you to extend these 
     critical tax incentives in context of encouraging economic 
     growth and vitality.
           Sincerely,
         Maria Cantwell; Olympia Snowe; Ron Wyden; Gordon Smith; 
           Amy Klobuchar; John F. Kerry; Ken Salazar; Debbie 
           Stabenow; Elizabeth Dole; Bernard Sanders; John E. 
           Sununu; Barbara Boxer; Wayne Allard; Robert Menendez; 
           Susan M. Collins; Tim Johnson; Byron L. Dorgan; Sam 
           Brownback; Russell Feingold; Arlen Specter; Barbara A. 
           Mikulski; Evan Bayh; Barack Obama; Patty Murray; 
           Hillary Rodham Clinton; Carl Levin; John Cornyn; 
           Sherrod Brown; Chris Dodd; Dianne Feinstein; Lisa 
           Murkowski; Norm Coleman; Chuck Schumer; Ted Stevens; 
           Frank R. Lautenberg; Patrick Leahy; Herb Kohl; Daniel 
           K. Akaka; Pat Roberts; Richard Burr; Ben Cardin.

  Ms. CANTWELL. Mr. President, we also received letters from 13 
different organizations that also support the inclusion of these 
provisions in the tax package.
  This is truly an opportunity for us to continue to stimulate the 
economy in a key growth area, but my colleagues should not be fooled. 
This is probably the only opportunity to do extend these credits before 
they expire. We have had a dispute between the House and the White 
House and Members of the Senate about how to move forward on these tax 
credits. Some want them paid for while taking money from oil revenues. 
Others, such as the White House, don't want them paid for at all.
  This is an opportunity for us if we are going to do $150 billion 
worth of investment in what we think is an economic opportunity to get 
one of the best returns on investment in this stimulus package; that 
is, to invest about $5 billion and see over $20 billion in new energy 
investment in this country.
  I hope my colleagues will consider this tomorrow and consider how 
much we truly need these budding clean energy industries to grow and 
thrive in our home States. Anyone who supports this industry has to 
vote for the Senate Finance bill or we could very well miss a key 
opportunity to stimulate our economy.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Arizona.
  Mr. KYL. Mr. President, I wish to speak to the amendment offered by 
the Senator from Connecticut to the FISA bill, the Foreign Intelligence 
Surveillance Act, the amendment that would strike provisions from the 
bill that provide liability protection to those telecommunications 
companies that were asked by our Government to assist us in a dire time 
of need.
  I begin by asking unanimous consent to have printed in the Record at 
the conclusion of my remarks a letter to Senator Reid, dated February 
5, 2008, and signed by Attorney General Mukasey and Director of 
National Intelligence Admiral McConnell.
  (See exhibit 1.)
  Mr. KYL. Mr. President, next, I would like to quote a few passages 
from this letter that relate specifically to this issue of liability 
protection. They begin by noting:

       Liability protection is the just result for companies who 
     answered their Government's call for assistance. Further, it 
     will ensure that the Government can continue to rely upon the 
     assistance of the private sector that is so necessary to 
     protect the Nation and enforce its laws.

  The point of beginning with this reference is to note the fact that 
what happened was that the U.S. Government, in the aftermath of 9/11, 
went to certain kinds of telecommunications and asked for their 
assistance in tracking down foreign terrorists, in providing 
intelligence-gathering services to the U.S. Government. These companies 
did not have a legal obligation to provide that support, but they 
certainly, as good citizens of the United States, undertook to provide 
the support, some of them in that capacity. The question is whether, 
having done that in good faith, they should now be protected from 
private lawsuits that have been filed against them or whether, as is 
the historic tradition in such circumstances, they would be immune from 
such lawsuits for volunteering to help the Government.

  Here is a little bit of what Attorney General Mukasey and Admiral 
McConnell wrote in the letter.

       In its report on S. 2248, the Intelligence Committee 
     recognized that ``without retroactive immunity, the private 
     sector might be unwilling to cooperate with lawful government 
     requests in the future without unnecessary court involvement 
     and protracted litigation. The possible reduction in 
     intelligence that might result from this delay is simply 
     unacceptable for our Nation.''

  The letter goes on to say:

       The committee's measured judgment reflects the principle 
     that private citizens who respond in good faith to a request 
     for assistance by public officials should not be held liable 
     for their actions.

  And that, in fact, has always been the common law rule in the United 
States of America. The concern is not only to protect those who were 
good enough to assist the Government in the past but also to ensure 
that in the future companies can rely upon this type of protection 
because of all of the situations in which they find themselves. It is 
very difficult for people to do business with them if they believe they 
might be hauled into court and all of the resultant effects of 
litigation would extend to them.
  In the letter that Attorney General Mukasey and Admiral McConnell 
wrote to our leadership, they point out their objection to several 
amendments and one of those amendments is specifically the one offered 
by the Senator from Connecticut, striking the immunity provisions, No. 
3907. They begin by discussing it in this way:

       Extending liability protection to such companies is 
     imperative; failure to do so could limit future cooperation 
     by such companies and put critical intelligence operations at 
     risk. Moreover, litigation against companies believed to have 
     assisted the government risks the disclosure of highly 
     classified information regarding extremely sensitive 
     intelligence sources and methods. If any of these 
     amendments--

  And they specifically refer to this amendment--

        . . . are part of the bill . . . we, as well as the 
     President's other senior advisors, will recommend that he 
     veto the bill.

  We know we need a bill to become law. We know what the President will 
accept, and we know it would be unacceptable to strike the immunity 
provisions as amendment No. 3907 would do. But let me continue to quote 
from this letter, because the authors note something in addition to the 
problem I identified, and I will state from it precisely:

       This amendment also would strike the important provisions 
     in the bill that would establish procedures for implementing 
     existing statutory defenses in the future and that would 
     preempt State investigations of assistance provided by any 
     electronic communication service provider to an element of 
     the intelligence community. Those provisions are important to 
     ensuring that electronic communication service providers can 
     take full advantage of existing immunity provisions and to 
     protecting highly classified information.

  In other words, this amendment doesn't simply strike the immunity 
provisions but would also have this deleterious effect.
  I want to quote from three other paragraphs of the bill, but I don't 
want to exceed 10 minutes. Therefore, I would ask how much time I have 
consumed.
  The PRESIDING OFFICER. Five minutes has been consumed.
  Mr. KYL. I thank the Chair.
  Let me quote from three other paragraphs of the letter relating to 
this amendment. The authors are referring to the Intelligence 
Committee's extensive work on this particular aspect of the problem, 
and they say:

       After reviewing the relevant documents, the Intelligence 
     Committee determined that providers had acted in response to 
     written requests or directives stating that the activities 
     had been authorized by the President and had been determined 
     to be lawful.

  The letter goes on to note:

       In its Conference Report, the committee ``concluded that 
     the providers had a good faith basis'' for responding to the 
     requests

[[Page S651]]

     for assistance they received. The Senate Intelligence 
     Committee ultimately agreed to necessary immunity protections 
     on a nearly unanimous bipartisan 13-2 vote. Twelve members of 
     the committee subsequently rejected a motion to strike this 
     provision.

  The authors go on to note:

       The immunity offered in S. 2248 applies only in a narrow 
     set of circumstances.

  They note, for example:

       A court must review this certification before an action may 
     be dismissed. This immunity provision does not extend to the 
     government or government officials.

  In other words, they can still be sued.

       And it does not immunize any criminal conduct.

  This is critical to understand what the amendment does not do.
  Let me quote from the final paragraph relating to this particular 
amendment. Attorney General Mukasey and Admiral McConnell say:

       Providing this liability protection is critical to the 
     national security. As the Intelligence Committee recognized, 
     ``the intelligence community cannot obtain the intelligence 
     it needs without assistance from these companies.'' That 
     committee also recognized that companies in the future may be 
     less willing to assist the government if they face the threat 
     of private lawsuits each time they are alleged to have 
     provided assistance. The committee concluded that: ``The 
     possible reduction in intelligence that might result from 
     this delay is simply unacceptable for the safety of our 
     Nation.''

  The authors then conclude:

       Allowing continued litigation also risks the disclosure of 
     highly classified information regarding intelligence sources 
     and methods. In addition to providing an advantage to our 
     adversaries, the potential disclosure of classified 
     information puts the facilities and personnel of electronic 
     communication service providers at risk. For these reasons, 
     we, as well as the President's other senior advisers, will 
     recommend that he veto any bill that does not afford 
     liability protection to these companies.

  This is, I guess one could say, the definitive word of what the 
President is recommending and is willing to accept from the Congress. 
It comes from the two individuals in our Government who have the chief 
responsibility for our safety with respect to not only the protection 
of American civil liberties but also the gathering of foreign 
intelligence, and it extensively quotes from the report of the 
committee itself, the Intelligence Committee, which it notes acted in a 
bipartisan 13-to-2 vote to provide for this liability protection.
  That is why it is so critical that when we have an opportunity to 
vote, I gather tomorrow or whenever we have an opportunity to vote on 
the amendment of the Senator from Connecticut, we reject that amendment 
on the grounds that it is contrary to the Intelligence Committee's 
actions, to the recommendations of the Attorney General and the 
Director of National Intelligence, and to the President with respect to 
the liability protection for these entities.
  There is much we cannot discuss, because so much of this program is 
of a classified nature. But I think everybody understands the 
fundamental principle involved here, and that is: When citizens of the 
United States are asked by their Government to assist, and they agree 
to do that in good faith for the protection of citizens of the United 
States of America, they should be protected from lawsuits that have 
been filed. That is what the amendment of the Senator from Connecticut 
would do is to eliminate that protection, and it is why the amendment 
should be defeated.
  I hope my colleagues are recognizing the seriousness of what these 
two authors of this letter have said when they recognize the 
seriousness of the potential consequences from failing to provide this 
kind of liability protection and that we will support the Intelligence 
Committee, we will support the intelligence community, and we will 
reject the amendment of the Senator from Connecticut.

                               Exhibit 1

                                                 February 5, 2008.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Washington, DC.
       Dear Senator Reid: This letter presents the views of the 
     Administration on various amendments to the Foreign 
     Intelligence Surveillance Act of 1978 (FISA) Amendments Act 
     of 2008 (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.'' The letter 
     also addresses why it is critical that the authorities 
     contained in the Protect America Act not be allowed to 
     expire. We have appreciated the willingness of Congress to 
     address the need to modernize FISA and to work with the 
     Administration to allow the intelligence community to collect 
     the foreign intelligence information necessary to protect the 
     Nation while protecting the civil liberties of Americans. We 
     commend Congress for the comprehensive approach that it has 
     taken in considering these authorities and are grateful for 
     the opportunity to engage with Congress as it conducts an in-
     depth analysis of the relevant issues.
       In August, Congress took an important step toward 
     modernizing FISA by enacting the Protect America Act of 2007. 
     That Act has allowed us temporarily to close intelligence 
     gaps by enabling our intelligence professionals to collect, 
     without a court order, foreign intelligence information from 
     targets overseas. The intelligence community has implemented 
     the Protect America Act in a responsible way, subject to 
     extensive executive branch, congressional, and judicial 
     oversight, to meet the country's foreign intelligence needs 
     while protecting civil liberties. Indeed, the Foreign 
     Intelligence Surveillance Court (FISA Court) recently 
     approved the procedures used by the Government under the 
     Protect America Act to determine that targets are located 
     overseas, not in the United States.
       The Protect America Act was scheduled to expire on February 
     1, 2008, but Congress has extended that Act for fifteen days, 
     through February 16, 2008. In the face of the continued 
     threats to our Nation from terrorists and other foreign 
     intelligence targets, it is vital that Congress not allow the 
     core authorities of the Protect America Act to expire, but 
     instead pass long-term FISA modernization legislation that 
     both includes the collection authority conferred by the 
     Protect America Act and provides protection from private 
     lawsuits against companies that are believed to have assisted 
     the Government in the aftermath of the September 11th 
     terrorist attacks on America. Liability protection is the 
     just result for companies who answered their Government's 
     call for assistance. Further, it will ensure that the 
     Government can continue to rely upon the assistance of the 
     private sector that is so necessary to protect the Nation and 
     enforce its laws.
       S. 2248, reported by the Senate Select Committee on 
     Intelligence, would satisfy both of these imperatives. That 
     bill was reported out of committee on a nearly unanimous 13-2 
     vote. Although it is not perfect, it contains many important 
     provisions, and was developed through a thoughtful process 
     that resulted in a bill that helps ensure that both the lives 
     and the civil liberties of Americans will be safeguarded. 
     First, it would establish a firm, long-term foundation for 
     our intelligence community's efforts to track terrorists and 
     other foreign intelligence targets located overseas. Second, 
     S. 2248 would afford retroactive liability protection to 
     communication service providers that are believed to have 
     assisted the Government with intelligence activities in the 
     aftermath of September 11th. In its report on S. 2248, the 
     Intelligence Committee recognized that ``without retroactive 
     immunity, the private sector might be unwilling to cooperate 
     with lawful Government requests in the future without 
     unnecessary court involvement and protracted litigation. The 
     possible reduction in intelligence that might result from 
     this delay is simply unacceptable for the safety of our 
     Nation.'' The committee's measured judgment reflects the 
     principle that private citizens who respond in good faith to 
     a request for assistance by public basic legal role officials 
     should not be held liable for their actions. Thus, with the 
     inclusion of the proposed manager's amendment, which would 
     make necessary technical changes to the bill, we strongly 
     support passage of S. 2248.
       For reasons elaborated below, the Administration also 
     strongly favors two other proposed amendments to the 
     Intelligence Committee's bill. One would strengthen S. 2248 
     by expanding FISA to permit court-authorized surveillance of 
     international proliferators of weapons of mass destruction. 
     The other would ensure the timely resolution of any 
     challenges to government directives issued in support of 
     foreign intelligence collection efforts.
       Certain other amendments have been offered to S. 2248, 
     however, that would undermine significantly the core 
     authorities and immunity provisions of that bill. After 
     careful study, we have determined that those amendments would 
     result in a final bill that would not provide the 
     intelligence community with the tools it needs to collect 
     effectively foreign intelligence information vital for the 
     security of the Nation. If the President is sent a bill that 
     does not provide the U.S. intelligence agencies the tools 
     they need to protect the nation, the President will veto the 
     bill.


        I. Limitations on the Collection of Foreign Intelligence

       Several proposed amendments to S. 2248 would have a direct, 
     adverse impact on our ability to collect effectively the 
     foreign intelligence information necessary to protect the 
     Nation. We note that three of these amendments were part of 
     the Senate Judiciary Committee substitute, which has already 
     been rejected by the Senate on a 60-34 vote. We explained why 
     those three amendments were unacceptable in our November 14, 
     2007, letter to Senator Leahy regarding the Senate Judiciary 
     Committee substitute, and the Administration reiterated these 
     concerns in a Statement of Administration Policy (SAP) issued 
     on December 17, 2007. A copy of that letter and the SAP are 
     attached for your reference.

[[Page S652]]

       Prohibition on Collecting Vital Foreign Intelligence 
     Information (No amendment number available). This amendment 
     provides that ``no communication shall be acquired under 
     [Title VII of S. 2248] if the Government knows before or at 
     the time of acquisition that the communication is to or from 
     a person reasonably believed to be located in the United 
     States,'' except as authorized under Title I of FISA or 
     certain other exceptions. The amendment would require the 
     Government to ``segregate or specifically designate'' any 
     such communication and the Government could access such 
     communications only under the authorities in Title I of 
     FISA or under certain exceptions. Even for communications 
     falling under one of the limited exceptions or an 
     emergency exception, the Government still would be 
     required to submit a request to the FISA Court relating to 
     such communications. The procedural mechanisms it would 
     establish would diminish our ability swiftly to monitor a 
     communication from a terrorist overseas to a person in the 
     United States--precisely the communication that the 
     intelligence community may have to act on immediately. 
     Finally, the amendment would draw unnecessary and harmful 
     distinctions between types of foreign intelligence 
     information, allowing the Government to collect 
     communications under Title VII from or to the United 
     States that contain information relating to terrorism but 
     not other types of foreign intelligence information, such 
     as that relating to the national defense of the United 
     States or attacks, hostile actions, and clandestine 
     intelligence activities of a foreign power.
       This amendment would eviscerate critical core authorities 
     of the Protect America Act and S. 2248. Our prior letter and 
     the Statement of Administration Policy explained how this 
     type of amendment increases the danger to the Nation and 
     returns the intelligence community to a pre-September 11th 
     posture that was heavily criticized in congressional reviews. 
     It would have a devastating impact on foreign intelligence 
     surveillance operations; it is unsound as a matter of policy; 
     its provisions would be inordinately difficult to implement; 
     and thus it is unacceptable. The incidental collection of 
     U.S. person communications is not a new issue for the 
     intelligence community. For decades, the intelligence 
     community has utilized minimization procedures to ensure that 
     U.S. person information is properly handled and 
     ``minimized.'' It has never been the case that the mere fact 
     that a person overseas happens to communicate with an 
     American triggers a need for court approval. Indeed, if court 
     approval were mandated in such circumstances, there would be 
     grave operational consequences for the intelligence 
     community's efforts to collect foreign intelligence. 
     Accordingly, if this amendment is part of the bill that is 
     presented to the President, we, as well as the President's 
     other senior advisors, will recommend that he veto the bill.
       Imposition of a ``Significant Purpose'' Test (No. 3913). 
     This amendment, which was part of the Judiciary Committee 
     substitute, would require an order from the Foreign 
     Intelligence Surveillance Court (FISA Court) if a 
     ``significant purpose'' of an acquisition targeting a person 
     abroad is to acquire the communications of a specific person 
     reasonably believed to be in the United States. If the 
     concern driving this proposal is so-called ``reverse 
     targeting''--circumstances in which the Government would 
     conduct surveillance of a person overseas when the 
     Government's actual target is a person in the United States 
     with whom the person overseas is communicating--that 
     situation is already addressed in FISA today. If the person 
     in the United States is the actual target, an order from the 
     FISA Court is required. Indeed, S. 2248 codifies this 
     longstanding Executive Branch interpretation of FISA.
       The amendment would place an unnecessary and debilitating 
     burden on our intelligence community's ability to conduct 
     surveillance without enhancing the protection of the privacy 
     of Americans. The introduction of this ambiguous 
     ``significant purpose'' standard would raise unacceptable 
     operational uncertainties and problems, making it more 
     difficult to collect intelligence when a foreign terrorist 
     overseas is calling into the United States--which is 
     precisely the communication we generally care most about. 
     Part of the value of the Protect America Act, and any 
     subsequent legislation, is to enable the intelligence 
     community to collect expeditiously the communications of 
     terrorists in foreign countries who may contact an 
     associate in the United States. The intelligence community 
     was heavily criticized by numerous reviews after September 
     11, including by the Congressional Joint Inquiry into 
     September 11, regarding its insufficient attention to 
     detecting communications indicating homeland attack 
     plotting. To quote the Congressional Joint Inquiry:
       The Joint Inquiry has learned that one of the future 
     hijackers communicated with a known terrorist facility in the 
     Middle East while he was living in the United States. The 
     Intelligence Community did not identify the domestic origin 
     of those communications prior to September 11, 2001 so that 
     additional FBI investigative efforts could be coordinated. 
     Despite this country's substantial advantages, there was 
     insufficient focus on what many would have thought was among 
     the most critically important kinds of terrorist-related 
     communications, at least in terms of protecting the Homeland.
       In addition, the proposed amendment would create 
     uncertainty by focusing on whether the ``significant purpose 
     . . . is to acquire the communication'' of a person in the 
     United States, not just to target the person here. To be 
     clear, a ``significant purpose'' of intelligence community 
     activities that target individuals outside the United States 
     is to detect communications that may provide warning of 
     homeland attacks, including communications between a 
     terrorist overseas and associates in the United States. A 
     provision that bars the intelligence community from 
     collecting these communications is unacceptable. If this 
     amendment is part of the bill that is presented to the 
     President, we, as well as the President's other senior 
     advisors, will recommend that he veto the bill.
       Imposition of a ``Specific Individual Target'' Test (No. 
     3912). This amendment, which was part of the Judiciary 
     Committee substitute, would require the Attorney General and 
     the Director of National Intelligence to certify that any 
     acquisition ``is limited to communications to which any party 
     is a specific individual target (which shall not be limited 
     to known or named individuals) who is reasonably believed to 
     be located outside the United States.'' This provision could 
     hamper United States intelligence operations that currently 
     are authorized to be conducted overseas and that could be 
     conducted more effectively from the United States without 
     harming the privacy interests of United States persons. For 
     example, the intelligence community may wish to target all 
     communications in a particular neighborhood abroad before our 
     armed forces conduct an offensive. This amendment could 
     prevent the intelligence community from targeting a 
     particular group of buildings or a geographic area abroad to 
     collect foreign intelligence prior to such military 
     operations. This restriction could have serious consequences 
     on our ability to collect necessary foreign intelligence 
     information, including information vital to conducting 
     military operations abroad and protecting the lives of our 
     service members, and it is unacceptable. Imposing such 
     additional requirements to the carefully crafted framework 
     provided by S. 2248 would harm important intelligence 
     operations without appreciably enhancing the privacy 
     interests of Americans. If this amendment is part of the bill 
     that is presented to the President, we, as well as the 
     President's other senior advisors, will recommend that he 
     veto the bill.
       Limits Dissemination of Foreign Intelligence Information 
     (No. 3915). This amendment originally was offered in the 
     Senate Intelligence Committee, where it was rejected on a 10-
     5 vote. The full Senate then rejected the amendment as part 
     of its consideration of the Judiciary Committee amendment. 
     The proposed amendment would impose significant new 
     restrictions on the use of foreign intelligence information, 
     including information not concerning United States persons, 
     obtained or derived from acquisitions using targeting 
     procedures that the FISA Court later found to be 
     unsatisfactory for any reason. By requiring analysts to go 
     back to the relevant databases and extract certain 
     information, as well as to determine what other information 
     is derived from that information, this requirement would 
     place a difficult, and perhaps insurmountable, operational 
     burden on the intelligence community in implementing 
     authorities that target terrorists and other foreign 
     intelligence targets located overseas. The effect of this 
     burden would be to divert analysts and other resources from 
     their core mission-protecting the Nation-to search for 
     information, including information that does not concern 
     United States persons. This requirement also stands at odds 
     with the mandate of the September 11th Commission that the 
     intelligence community should find and link disparate pieces 
     of foreign intelligence information. Finally, the requirement 
     would actually degrade--rather than enhance--privacy 
     protections by requiring analysts to locate and examine 
     United States person information that would otherwise not be 
     reviewed. Accordingly, if this amendment is part of the bill 
     that is presented to the President, we, as well as the 
     President's other senior advisors, will recommend that he 
     veto the bill.


       II. Liability Protection for Telecommunications Companies

        Several amendments to S. 2248 would alter the carefully 
     crafted provisions in that bill that afford liability 
     protection to those companies believed to have assisted the 
     Government in the aftermath of the September 11th attacks. 
     Extending liability protection to such companies is 
     imperative; failure to do so could limit future cooperation 
     by such companies and put critical intelligence operations at 
     risk. Moreover, litigation against companies believed to have 
     assisted the Government risks the disclosure of highly 
     classified, information regarding extremely sensitive 
     intelligence sources and methds. If any of these amendments 
     is part of the bill that is presented to the President, we as 
     well as the President's other senior advisors, will recommend 
     that he veto the bill.
       Striking the Immunity Provisions (No. 3907). This amendment 
     would strike Title II of S. 2248, which affords liability 
     protection to telecommunications companies believed to have 
     assisted the Government following the September 11th attacks. 
     This amendment also would strike the important provisions in 
     the bill that would establish procedures for implementing 
     existing statutory defenses in the future and that would 
     preempt state investigations of assistance provided by any 
     electronic communication service provider to an element of 
     the intelligence

[[Page S653]]

     community. Those provisions are important to ensuring that 
     electronic communication service providers can take full 
     advantage of existing immunity provisions and to protecting 
     highly classified information.
       Affording liability protection to those companies believed 
     to have assisted the Government with communications 
     intelligence activities in the aftermath of September 11th is 
     a just result and is essential to ensuring that our 
     intelligence community is able to carry out its mission. 
     After reviewing the relevant documents, the Intelligence 
     Committee determined that providers had acted in response to 
     written requests or directives stating that the activities 
     had been authorized by the President and had been determined 
     to be lawful. In its Conference Report, the Committee 
     ``concluded that the providers . . . had a good faith basis'' 
     for responding to the requests for assistance they received. 
     The Senate Intelligence Committee ultimately agreed to 
     necessary immunity protections on a nearly-unanimous, 
     bipartisan, 13-2 vote. Twelve Members of the Committee 
     subsequently rejected a motion to strike this provision.
       The immunity offered in S. 2248 applies only in a narrow 
     set of circumstances. An action may be dismissed only if the 
     Attorney General certifies to the court that either: (i) the 
     electronic communications service provider did not provide 
     the assistance; or (ii) the assistance was provided in the 
     wake of the September 11th attacks, and was described in a 
     written request indicating that the activity was authorized 
     by the President and determined to be lawful. A court must 
     review this certification before an action may be dismissed. 
     This immunity provision does not extend to the Government or 
     Government officials, and it does not immunize any criminal 
     conduct.
       Providing this liability protection is critical to the 
     national security. As the Intelligence Committee recognized, 
     ``the intelligence community cannot obtain the intelligence 
     it needs without assistance from these companies.'' That 
     committee also recognized that companies in the future may be 
     less willing to assist the Government if they face the threat 
     of private lawsuits each time they are alleged to have 
     provided assistance. The committee concluded that: ``The 
     possible reduction in intelligence that might result from 
     this delay is simply unacceptable for the safety of our 
     Nation.'' Allowing continued litigation also risks the 
     disclosure of highly classified information regarding 
     intelligence sources and methods. In addition to providing an 
     advantage to our adversaries, the potential disclosure of 
     classified information puts the facilities and personnel of 
     electronic communication service providers at risk.
       For these reasons, we, as well as the President's other 
     senior advisors, will recommend that he veto any bill that 
     does not afford liability protection to these companies.
       Substituting the Government as the Defendant in Litigation 
     (No. 3927). This amendment would substitute the United States 
     as the party defendant for any covered civil action against a 
     telecommunications provider if certain conditions are met. 
     The Government would be substituted if the FISA Court 
     determined that the company received a written request that 
     complied with 18 U.S.C. Sec. 2511(2)(a)(ii)(B), an existing 
     statutory protection; the company acted in ``good faith . . . 
     pursuant to an objectively reasonable belief'' that 
     compliance with the written request was permitted by law; or 
     that the company did not participate.
       Substitution is not an acceptable alternative to immunity. 
     Substituting the Government would simply continue the 
     litigation at the expense of the American taxpayer. 
     Substitution does nothing to reduce the risk of the further 
     disclosure of highly classified information. The very point 
     of these lawsuits is to prove plaintiffs' claims by 
     disclosing classified information regarding the activities 
     alleged in the complaints, and this amendment would permit 
     plaintiffs to participate in proceedings before the FISA 
     Court regarding the conduct at issue. A judgment finding 
     that a particular company is a Government partner also 
     could result in the disclosure of highly classified 
     information regarding intelligence sources and methods and 
     hurt the company's reputation overseas. In addition, the 
     companies would still face many of the burdens of 
     litigation--including attorneys' fees and disruption to 
     their businesses from discovery--because their conduct 
     will be the key question in the litigation. Such 
     litigation could deter private sector entities from 
     providing assistance to the intelligence community in the 
     future, Finally, the lawsuits could result in the 
     expenditure of taxpayer resources, as the U.S. Treasury 
     would be responsible for the payment of an adverse 
     judgment. If this amendment is part of the bill that is 
     presented to the President, we, as well as the President's 
     other senior advisors, will recommend that he veto the 
     bill.
       FISA Court Involvement in Determining Immunity (No. 3919). 
     This amendment would require all judges of the FISA Court to 
     determine whether the written requests or directives from the 
     Government complied with 18 U.S.C. Sec. 2511(2)(a)(ii), an 
     existing statutory protection; whether companies acted in 
     ``good faith reliance of the electronic communication service 
     provider on the written request or directive under paragraph 
     (1)(A)(ii), such that the electronic communication service 
     provider had an objectively reasonable belief under the 
     circumstances that the written request or directive was 
     lawful''; or whether the companies did not participate in the 
     alleged intelligence activities.
       This amendment is not acceptable. It is for Congress, not 
     the courts, to make the public policy decision whether to 
     grant liability protection to telecommunications companies 
     who are being sued simply because they are alleged to have 
     assisted the Government in the aftermath of the September 
     11th attacks. The Senate Intelligence Committee has reviewed 
     the relevant documents and concluded that those who assisted 
     the Government acted in good faith and received written 
     assurances that the activities were lawful and being 
     conducted pursuant to a Presidential authorization. This 
     amendment effectively sends a message of no-confidence to the 
     companies who helped our Nation prevent terrorist attacks in 
     the aftermath of the deadliest foreign attacks on U.S. soil. 
     Transferring a policy decision critical to our national 
     security to the FISA Court, which would be limited in its 
     consideration to the particular matter before them (without 
     any consideration of the impact of immunity on our national 
     security), is unacceptable.
       In contrast to S. 2248, this amendment would not allow for 
     the expeditious dismissal of the relevant litigation. Rather, 
     this amendment would do little more than transfer the 
     existing litigation to the full FISA Court and would likely 
     result in protracted litigation. The standards in the 
     amendment also are ambiguous and would likely require fact-
     finding on the issue of good faith and whether the companies 
     ``had an objectively reasonable belief'' that assisting the 
     Government was lawful--even though the Senate Intelligence 
     Committee has already studied this issue and concluded such 
     companies did act in good faith. The companies being sued 
     would continue to be subjected to the burdens of the 
     litigation, and the continued litigation would increase the 
     risk of the disclosure of highly classified information.
       The procedures set forth under the amendment also present 
     insurmountable problems. First, the amendment would permit 
     plaintiffs to participate in the litigation before the 
     FISA Court. This poses a very serious risk of disclosure 
     to plaintiffs of classified facts over which the 
     Government has asserted the state secrets privilege and of 
     disclosure of these secrets to the public. The FISA Court 
     safeguards national security secrets precisely because the 
     proceedings are generally ex parte--only the Government 
     appears. The involvement of plaintiffs also is likely to 
     prolong the litigation. Second, assembling the FISA Court 
     for en banc hearings on these cases could cause delays in 
     the disposition of the cases. Third, the amendment would 
     purport to abrogate the state secrets privilege with 
     respect to proceedings in the FISA Court. This would pose 
     a serious risk of harm to the national security by 
     possibly allowing plaintiffs access to highly classified 
     information about sensitive intelligence activities, 
     sources, and methods. The conclusion of the FISA Court 
     also may reveal sensitive information to the public and 
     our adversaries. Beyond these serious policy 
     considerations, it also would raise very serious 
     constitutional questions about the authority of Congress 
     to abrogate the constitutionally-based privilege over 
     national security information within the Executive's 
     control. This is unnecessary, because classified 
     information may be shared with a court in camera and ex 
     parte even when the state secrets privilege is asserted. 
     Fourth, the amendment does not explicitly provide for 
     appeal of determinations by the FISA Court. Finally, 
     imposing a standard involving an ``objectively reasonable 
     belief'' is likely to cause companies in the future to 
     feel compelled to make an independent finding prior to 
     complying with a lawful Government request for assistance. 
     Those companies do not have access to information 
     necessary to make this judgment. Imposition of such a 
     standard could cause dangerous delays in critical 
     intelligence operations and put our national security at 
     risk. As the Intelligence Committee recognized in its 
     report on S. 2248, ``the intelligence community cannot 
     obtain the intelligence it needs without assistance from 
     these companies.'' For these reasons, existing law rightly 
     places no such obligation on telecommunications companies.
       If this amendment is part of the bill that is presented to 
     the President, we, as well as the President's other senior 
     advisors, will recommend that he veto the bill.


                         III. Other Amendments

       Imposing a Short Sunset on the Legislation (No. 3930). This 
     amendment would shorten the existing sunset provision in S. 
     2248 from six years to four years. We strongly oppose it. S. 
     2248 should not have an expiration date at all. The threats 
     we face do not come with an expiration date, and our 
     authorities to counter those threats should be placed on a 
     permanent foundation. They should not be in a continual state 
     of doubt. Any sunset provision withholds from our 
     intelligence professionals and our private partners the 
     certainty and permanence they need to protect Americans from 
     terrorism and other threats to the national security. The 
     intelligence community operates much more effectively when 
     the rules governing our intelligence professionals' ability 
     to track our adversaries are established and are not changing 
     from year to year. Stability of law also allows the 
     intelligence community and our private partners to invest 
     resources appropriately. Nor is there any need for a sunset. 
     There has been extensive public discussion, debate, and 
     consideration of FISA modernization and there is now a 
     lengthy factual

[[Page S654]]

     record on the need for this legislation. Indeed, 
     Administration officials have been working with Congress 
     since at least the summer of 2006 on legislation to modernize 
     FISA. There also has been extensive congressional oversight 
     and reporting regarding the Government's use of the 
     authorities under the Protect America Act. In addition, S. 
     2248 includes substantial congressional oversight of the 
     Government's use of the authorities provided in the bill. 
     This oversight includes provision of various written 
     reports to the congressional intelligence committees, 
     including semiannual assessments by the Attorney General 
     and the Director of National Intelligence, assessments by 
     each relevant agency's Inspector General, and annual 
     reviews by the head of any agency conducting operations 
     under Title VII. Congress can, of course, revisit these 
     issues and amend a statute at whatever time it chooses. We 
     therefore urge Congress to provide a long-term solution to 
     an out-dated FISA and to resist attempts to impose a short 
     expiration date on this legislation. Although we believe 
     that any sunset is unwise and unnecessary, we support S. 
     2248 despite its six-year sunset because it meets our 
     operational needs to keep the country safe by providing 
     needed authorities and liability protection.
       Imposes Court Review of Compliance with Minimization 
     Procedures (No. 3920). This amendment, which was part of the 
     Judiciary Committee substitute, would allow the FISA Court to 
     review compliance with minimization procedures that are used 
     on a programmatic basis for the acquisition of foreign 
     intelligence information by targeting individuals reasonably 
     believed to be outside the United States. We strongly oppose 
     this amendment. It could place the FISA Court in a position 
     where it would conduct individualized review of the 
     intelligence community's foreign communications intelligence 
     activities. While conferring such authority on the court is 
     understandable in the context of traditional FISA collection, 
     it is anomalous in this context, where the court's role is in 
     approving generally applicable procedures for collection 
     targeting individuals outside the United States.
       Congress is aware of the substantial oversight of the use 
     of the authorities contained in the Protect America Act. As 
     noted above, S. 2248 significantly increases such oversight 
     by mandating semiannual assessments by the Attorney General 
     and the Director of National Intelligence, assessments by 
     each relevant agency's Inspector General, and annual reviews 
     by the head of any agency conducting operations under Title 
     VII, as well as extensive reporting to Congress and to the 
     FISA Court. The repeated layering of overlapping oversight 
     requirements on one aspect of intelligence community 
     operations is both unnecessary and not the best use of 
     limited resources and expertise.
       Expedited FISA Court Review of Challenges and Petitions to 
     Compel Compliance (No. 3941). This amendment would require 
     the FISA Court to make an initial ruling on the frivolousness 
     of a challenge to a directive issued under the bill within 
     five days, and to review any challenge that requires plenary 
     review within 30 days. The amendment also provides that if 
     the Constitution requires it, the court can take longer to 
     decide the issues before it. The amendment sets forth similar 
     procedures for the enforcement of directives (i.e., when the 
     Government seeks to compel an electronic communication 
     service provider to furnish assistance or information). This 
     amendment would ensure that challenges to directives and 
     petitions to compel compliance with directives are 
     adjudicated in a manner that avoids undue delays in critical 
     intelligence collection. This amendment would improve the 
     existing provisions in S. 2248 pertaining to challenges to 
     directives and petitions to compel cooperation by electronic 
     communication service providers, and we strongly support it.
       Proliferation of Weapons of Mass Destruction (No. 3938). 
     This amendment, which would apply to surveillance pursuant to 
     traditional FISA Court orders, would expand the definition 
     of ``foreign power'' to include groups engaged in the 
     international proliferation of weapons of mass 
     destruction. This amendment reflects the threat posed by 
     these catastrophic weapons and extends FISA to apply to 
     individuals and groups engaged in the international 
     proliferation of such weapons. To the extent that they are 
     not also engaged in international terrorism, FISA 
     currently does not cover those engaged in the 
     international proliferation of weapons of mass 
     destruction. The amendment would expand the definition of 
     ``agent of a foreign power'' to include non-U.S. persons 
     engaged in such activities, even if they cannot be 
     connected to a foreign power before the surveillance is 
     initiated. The amendment would close an existing gap in 
     FISA's coverage with respect to surveillance conducted 
     pursuant to traditional FISA Court orders, and we strongly 
     support it.
       Exclusive Means (No. 3910). We understand that the 
     amendment relating to the exclusive means provision in S. 
     2248 is undergoing additional revision. As a result, we are 
     withholding comment on this amendment and its text at this 
     time. We note, however, that we support the provision 
     currently contained in S. 2248 and to support its 
     modification, we would have to conclude that the amendment 
     provides for sufficient flexibility to permit the President 
     to protect the Nation adequately in times of national 
     emergency.


                             IV. Expiration

       While it is essential that any FISA modernization presented 
     to the President provide the intelligence community with the 
     tools it needs while safeguarding the civil liberties of 
     Americans, it is also vital that Congress not permit the 
     authorities of the Protect America Act not be allowed simply 
     to expire. As you are aware, the Protect America Act, which 
     allowed us temporarily to close gaps in our intelligence 
     collection, was to sunset on February 1, 2008. Because 
     Congress indicated that it was ``a legislative 
     impossibility'' to meet this deadline, it passed and the 
     President signed a fifteen-day extension. Failure to pass 
     long-term legislation during this period would degrade our 
     ability to obtain vital foreign intelligence information, 
     including the location, intentions, and capabilities of 
     terrorists and other foreign intelligence targets abroad.
       First, the expiration of the authorities in the Protect 
     America Act would plunge critical intelligence programs into 
     a state of uncertainty which could cause us to delay the 
     gathering of, or simply miss, critical foreign intelligence 
     information. Expiration would result in a degradation of 
     critical tools necessary to carry out our national security 
     mission. Without these authorities, there is significant 
     doubt surrounding the future of aspects of our operations. 
     For instance, expiration would create uncertainty concerning:
       The ability to modify certifications and procedures issued 
     under the Protect America Act to reflect operational needs 
     and the implementation of procedures to ensure that agencies 
     are fully integrated protecting the Nation;
       The continuing validity of liability protection for those 
     who assist us according to the procedures under the Protect 
     America Act;
       The continuing validity of the judicial mechanism for 
     compelling the assistance needed to protect our national 
     security;
       The ability to cover intelligence gaps created by new 
     communication paths or technologies. If the intelligence 
     community uncovers such new methods, it will need to act to 
     cover these intelligence gaps.
       All of these aspects of our operations are subject to great 
     uncertainty and delay if the authorities of the Protect 
     America Act expire. Indeed, some critical operations will 
     likely not be possible without the tools provided by the 
     Protect America Act. We will be forced to pursue intelligence 
     collection under FISA's outdated legal framework--a framework 
     that we already know leads to intelligence gaps. This 
     degradation of our intelligence capability will occur despite 
     the fact that, as the Department of Justice has notified 
     Congress, the FISA Court has approved our targeting 
     procedures pursuant to the Protect America Act.
       Second, expiration or continued short-term extensions of 
     the Protect America Act means that an issue of paramount 
     importance will not be addressed. This is the issue of 
     providing liability protection for those who provided vital 
     assistance to the Nation after September 11, 2001. Senior 
     leaders of the intelligence community have consistently 
     emphasized the critical need to address this issue since 
     2006. See, ``FISA for the 21st Century'' hearing before the 
     Senate Judiciary Committee with Director of the Central 
     Intelligence Agency and Director of the National Security 
     Agency; 2007 Annual Threat Assessment Hearing before the 
     Senate Select Committee on Intelligence with Director of 
     National Intelligence. Ever since the first Administration 
     proposal to modernize FISA in April 2007, the Administration 
     had noted that meeting the intelligence community's 
     operational needs had two critical components--modernizing 
     FISA's authorities and providing liability protection. The 
     Protect America Act updated FISA's legal framework, but it 
     did not address the need for liability protection.
       As we have discussed above, and the Senate Intelligence 
     Committee recognized, ``without retroactive immunity, the 
     private sector might be unwilling to cooperate with lawful 
     Government requests in the future without unnecessary court 
     involvement and protracted litigation.'' As it concluded, 
     ``[t]he possible reduction in intelligence that might result 
     from this delay is simply unacceptable for the safety of our 
     Nation.'' In short, if the absence of retroactive liability 
     protection leads to private partners not cooperating with 
     foreign intelligence activities, we can expect more 
     intelligence gaps.
       Questions surrounding the legality of the Government's 
     request for assistance following September 11th should not be 
     resolved in the context of suits against private parties. By 
     granting responsible liability protection, S. 2248 ``simply 
     recognizes that, in the specific historical circumstances 
     here, if the private sector relied on written representations 
     that high-level Government officials had assessed the [the 
     President's] program to be legal, they acted in good faith 
     and should be entitled to protection from civil suit.'' 
     Likewise, we do not believe that it is constructive--indeed, 
     it is destructive--to degrade the ability of the intelligence 
     community to protect the country by punishing our private 
     partners who are not part of the ongoing debate between the 
     branches over their respective powers.
       The Protect America Act's authorities expire in less than 
     two weeks. The Administration remains prepared to work with 
     Congress towards the passage of a FISA modernization bill 
     that would strengthen the Nation's intelligence capabilities 
     while respecting and protecting the constitutional rights of 
     Americans, so that the President can sign such a bill into 
     law. Passage of S. 2248 and rejection

[[Page S655]]

     of those amendments that would undermine it would be a 
     critical step in this direction. We look forward to 
     continuing to work with you and the Members of the Senate on 
     these important issues.
       Thank you for the opportunity to present our views. The 
     Office of Management and Budget has advised us that from the 
     perspective of the Administration's program, there is no 
     objection to the submission of this letter.
           Sincerely,
     Michael B. Mukasey,
       Attorney General.
     J.M. McConnell,
       Director of National Intelligence.

  Mr. KYL. Mr. President, I ask unanimous consent that during the 
quorum call, which I am about to invoke, we not have time counted 
against either side as it runs.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KYL. Mr. President, 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. BROWN. 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. BROWN. I ask unanimous consent to speak as in morning business 
and that the time I use not be counted against debate on the pending 
amendments.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           ECONOMIC STIMULUS

  Mr. BROWN. My home State of Ohio is deep into a foreclosure crisis. 
Gas prices are going up, and all energy prices and transportation costs 
are going up. More Americans are living paycheck to paycheck, hand to 
mouth, some not even that lucky. Congress is now working on an economic 
stimulus package, one that is desperately needed. Let me tell the story 
about something that happened last month in my home State of Ohio to 
illustrate how this recession, which has clearly already swept across 
my State, has had an impact on families, on middle-class families, on 
families who consider themselves middle class and sometimes do not--a 
couple of stories.
  One is from Tim in Cleveland. Tim told us that for some time, he and 
his wife had volunteered at a food bank. They donated money to this 
food bank. Over time, as his budget got tighter, his pay wasn't keeping 
up with the cost of gasoline, heating, the increasing cost of food, and 
he no longer contributed to the food bank, but he and his wife kept 
working there. More recently, Tim said that he began to go to the food 
bank for food. He said he was a bit embarrassed by that, which he 
should not have been, and said: I used to consider myself middle class. 
Now I do not. He has held the same job, worked the same long hours, but 
he is simply not able to keep up with an economy under the rules of 
globalization, where wages are stagnant and prices continue to go up.
  Perhaps a more tragic story, only because it involves a larger number 
of people, perhaps, than Tim: In Hocking County in Logan, OH, a 
community about halfway between Columbus, in the center of the State, 
the capital in Athens, the home of Howard University, a city on the 
Ohio River, a town of Logan in the County of Hocking, a county of about 
30,000 people, at 3:30 in the morning on a cold December night, the 
people began to line up at the United Methodist Church to go to a food 
pantry. The doors opened at 8. People in cars were snaked around the 
whole area in Logan, and by 1 in the afternoon, 2,000 people--7 percent 
of the population of Hocking County, an Appalachian county where people 
work hard, have raised their kids proudly, have taken care of 
themselves and their neighbors--2,000 people in this community of 
30,000 had visited this food bank, many of them driving 25 or 30 
minutes to get there.
  Congress, in response, is working on an economic stimulus package 
that is desperately needed. The Finance Committee has passed a proposal 
that puts cash in the hands of working Americans and doesn't turn its 
back on those in need.
  A stimulus package is two things: One, it is to stimulate the economy 
by putting money in the hands of people who will spend it. Second, it 
is helping those people most victimized, hardest hit by the recession. 
That is why the Finance Committee, better than the President's version 
and the House version, will do those two things. It will stimulate the 
economy better, and it will put money in the hands of those who have 
suffered, who have been hardest hit. I applaud the committee for taking 
the plight of every American, retirees and disabled veterans, into 
consideration.
  The Finance Committee package aims at jump-starting this stalled 
economy. For those who are facing in too many cases heat or eat, 
whether they can afford food or paying the heating bills, it will 
provide immediate assistance.
  Importantly, the Finance Committee package provides relief to 20 
million seniors and 250,000 disabled Americans who were left out of the 
other package under consideration, the package most of my Republican 
friends are supporting, the one without help for 250,000 disabled and 
20 million seniors. Some Republicans, those who are a bit more 
courageous and more willing to break with the President and their 
Senate leadership, are supporting the package that includes 20 million 
seniors and 250,000 disabled Americans.
  The Finance Committee package includes an extension of unemployment 
insurance, which is a crucial and commonsense response in an economic 
downturn. An awful lot of Ohioans, in Toledo and Lima and Dayton and 
Hamilton and Middletown, have seen their unemployment compensation run 
out. They have been unemployed for 26 weeks or longer--a situation they 
didn't ask to be in, a situation where they involuntarily were laid 
off. They haven't been able to find a job in this economy. Many of them 
now are in those food banks in Dayton and Cleveland and Toledo, and 
many of them are looking for help. That is why it is so important that 
we put money directly into the pockets of people, through seniors, 
disabled Americans, and with the extension of unemployment compensation 
benefits.
  About a week ago, I met with seven or eight religious leaders 
representing several Christian denominations, a rabbi and a leader in 
the Muslim community who came to my office to talk about what we need 
to do to answer the call for social justice, the call that preaches 
that regardless of one's faith, we have a responsibility, those who are 
more privileged, to those who are less privileged. This economic 
stimulus package does this. These leaders from the faith community who 
visited me last week spoke passionately about how, with the LIHEAP 
program, the program for the elderly indigent who can't afford their 
heating bills, with food banks and food stamps and the extension of 
unemployment benefits, what we need to do in this stimulus package, 
putting money in the pockets of middle-class Americans, including 20 
million seniors and 250,000 disabled, how that is so very important to 
celebrate American values. As these religious leaders were discussing 
with me, to celebrate our Nation's values and to celebrate our faith, 
it is particularly important that we pass a stimulus package that not 
just stimulates the economy but helps those people most in need who 
have most been hurt by this recession.
  I yield the floor and 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. 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.

                          ____________________