[Congressional Record Volume 154, Number 19 (Wednesday, February 6, 2008)]
[Senate]
[Pages S688-S714]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2007

  The PRESIDING OFFICER. Under the previous order, the Senate will 
resume consideration of S. 2248, which the clerk will report.
  The bill 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.
       Feingold amendment No. 3913 (to amendment No. 3911), to 
     prohibit reverse targeting and protect the rights of 
     Americans who are communicating with people abroad.
       Feingold-Dodd amendment No. 3912 (to amendment No. 3911), 
     to modify the requirements for certifications made prior to 
     the initiation of certain acquisitions.
       Dodd amendment No. 3907 (to amendment No. 3911), to strike 
     the provisions providing immunity from civil liability to 
     electronic communication service providers for certain 
     assistance provided to the Government.
       Bond-Rockefeller modified amendment No. 3938 (to Amendment 
     No. 3911), to include prohibitions on the international 
     proliferation of weapons of mass destruction in the Foreign 
     Intelligence Surveillance Act of 1978.
       Bond-Rockefeller modified amendment No. 3941 (to Amendment 
     No. 3911), to expedite the review of challenges to directives 
     under the Foreign Intelligence Surveillance Act of 1978.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, I wish to make a few comments on the 
amendment of the Senator from Wisconsin and what he referred to as the 
``bulk collection'' amendment which he discussed yesterday and which is 
amendment No. 3912. I would ask that this time be taken from the 
opponents of the amendment, if that is all right with my vice chairman.
  The Senator from Wisconsin is offering an amendment that he argues 
will prevent what he calls ``bulk collection''. The amendment is 
intended, as described by the Senator from Wisconsin, to ensure that 
this bill is not used by the Government to collect the contents of all 
the international communications between the United States and the rest 
of the world. The Senator argues that the amendment will prevent ``bulk 
collection'' by requiring the Government to have some foreign 
intelligence interest in the overseas party to the communications it is 
collecting.
  I regret to say I must oppose this amendment strongly. I do not 
believe it is necessary. I do believe, as drafted, the amendment will 
interfere with legitimate intelligence operations that

[[Page S689]]

protect the national security of the lives of Americans.
  In considering amendments today, we need to consider whether an 
amendment would provide additional protections for U.S. persons and 
whether it would needlessly inhibit vital foreign intelligence 
collection. I do not believe the amendment, as drafted, provides 
additional protections. Furthermore, intelligence professionals have 
expressed their concern that this amendment would interfere with vital 
intelligence operations, and there are important classified reasons 
underlying that concern.
  Let us review why the amendment is unnecessary. First, bulk 
collection resulting in a dragnet of all the international 
communications of U.S. persons would probably be unreasonable under the 
fourth amendment. No bill passed by the Senate may authorize what the 
fourth amendment of the Constitution prohibits. What is more, the 
committee bill, in fact, explicitly provides that acquisitions 
authorized under the bill are to be conducted in a manner consistent 
with that same fourth amendment of the Constitution.
  Second, the committee bill stipulates that acquisitions under this 
authority cannot intentionally target any person known to be located in 
the United States. And to target a U.S. person outside the United 
States, the Government must get approval from the FISA Court.
  Third, the committee bill increases the role of the FISA Court 
overseeing the acquisition activities of the Government. The bill 
requires court approval of minimization procedures that protect U.S. 
persons' information. It maintains the prior requirement of court 
approval of targeting procedures.
  In the unlikely event the FISA Court would give its approval to 
targeting procedures and minimization procedures that allow the 
Government to engage in unconstitutional bulk collection, the committee 
bill also strengthens oversight mechanisms in the executive and 
legislative branches, such as requiring assessments by the inspectors 
general in the Department of Justice and relevant agencies. These 
mechanisms are intended to ensure that such activity is detected and 
prevented.
  The sponsor of the amendment says his amendment only requires the 
Government to certify to the FISA Court that it is collecting 
communications of targets for whom there is a foreign intelligence 
interest. But the committee already requires the Attorney General and 
the Director of National Intelligence to certify to the FISA Court that 
the acquisition authorized under the bill is targeted at persons 
outside the United States in order to obtain foreign intelligence 
information. Because the remedy does not improve upon the protections 
in the bill for Americans and places new burdens on the surveillance of 
foreign targets overseas, I thus oppose this amendment and urge that it 
be rejected.
  I yield the floor and reserve the remainder of the opponents' time.
  The PRESIDING OFFICER. The senior Senator from Missouri is 
recognized.
  Mr. BOND. Mr. President, I yield myself 6 minutes from the opposition 
to the amendment No. 3979, the Feingold-Webb sequestration.
  During yesterday's sessions and prior sessions, there have been, 
regrettably, a number of inaccurate statements about the amendments we 
debated. Several of these amendments go to the very heart and strike at 
the very heart of foreign targeting. It is not an understatement to say 
that if they are adopted, they could shut down our intelligence 
collection and cause irreparable damage to our national security. So I 
am compelled to set the record straight. Working with my colleague and 
good friend, the chairman of the committee, Senator Rockefeller, we 
want our colleagues to know what impact these amendments have.
  We have made great progress in the Senate Intelligence Committee on 
the FISA Amendments Act of 2008 in providing additional protections, 
but we did so working with the intelligence community to make sure the 
measures we put in the bill would actually work.
  Now, the first amendment we debated was amendment No. 3979, the 
sequestration amendment supported by and sponsored by Senators Feingold 
and Webb. In explaining this amendment, supporters claimed the Protect 
America Act was ``sold repeatedly'' as a way to collect foreign-to-
foreign communications without a court order and this amendment allows 
this collection. We saw from the House RESTORE Act, which the DNI has 
told us--the Director of National Intelligence, whom I will refer to as 
the DNI--and from the debate on the Protect America Act that the focus 
on foreign-to-foreign communications is misplaced. The Protect America 
Act was intended to allow foreign targeting, just like this bill and 
for good reason. We cannot tell if a foreign terrorist is going to be 
calling or communicating with another foreign terrorist whether in some 
other country or whether some of that communication may occasionally 
come to the United States, and there is no way to tell. So it does no 
good to give the intelligence community authority to collect only 
foreign-to-foreign communication. You can't tell. That means you can't 
collect on any without getting a FISA Court or a FISC order. That was 
an impossible burden that the FISC judges told us overwhelmed and shut 
down their operations and did not protect American citizens. Yet we 
were told yesterday this amendment will not damage or slow down 
collection.

  This amendment will not just slow down collection; it will stop it. 
It will stop it. In the words of one intelligence official, it would 
``devastate our operations.''
  Now, our bipartisan bill gives the intelligence community the ability 
to target terrorists, foreign terrorists overseas. That targeting is 
not, as has been suggested on the other side, ``dragnet surveillance.'' 
Rather, the intelligence community will be acquiring communications of 
foreign terrorists, spies, and others who seek to do us harm. That is 
not a dragnet; that is targeted. But if this amendment were to be 
adopted, its unreasonable limitations will prevent the intelligence 
community even from beginning the collection.
  Now, I argued yesterday this amendment would prevent the intelligence 
community from intercepting the communications of Osama bin Laden with 
somebody in the United States. The Senator from Wisconsin disagreed, 
calling my argument questionable and claiming the amendment in no way 
hampers the ability to fight al-Qaida. That is not true. I find it 
interesting because that is not what his amendment says. First, the 
intelligence community can't even start the collection because there is 
no way to know if a terrorist, including bin Laden, is going to call or 
be called by a person in the United States. Second, from the amendment, 
page 2, lines 10 to 16:

       Such communications may be acquired if there is reason to 
     believe that the communication concerns international 
     terrorist activities directed against the United States, or 
     activities in preparation therefor.

  That means if bin Laden were planning an attack against the United 
Kingdom or against our foreign military bases or our foreign embassies 
abroad and calls into the United States to talk with an associate, we 
could not capture that call and protect our troops, protect our 
citizens, protect our officers overseas, because under the terms of the 
amendment, it does not concern activities directed against the United 
States. Not only is the limitation dangerous, it is unwise, unhelpful, 
and could lead to significant intelligence shortfalls.

  Another dangerous aspect of the amendment is that it would foreclose 
the collection of foreign intelligence relating to nonterrorist 
threats. Our Nation faces daily threats, for example, from the 
proliferation of weapons of mass destruction. I have an amendment that 
deals with this issue specifically. What about North Korea, Iran, and 
Syria? Under this amendment, none of that information could be 
collected if the communication was to or from the United States. That 
is a limitation that should make all of us uncomfortable. There is no 
basis for it, it is unreasonable, and it could lead our country into 
severe jeopardy.
  The DNI and the Attorney General agree with my reading of the 
amendment. Yesterday, we received a letter from them expressing their 
views about these amendments. The DNI and Attorney General stated that 
if this amendment is part of the bill presented to the President, they 
would recommend a veto. They wrote this in their letter:

       This amendment would have a devastating impact on foreign 
     intelligence surveillance

[[Page S690]]

     operations; it is unsound as a matter of policy; its 
     provisions would be inordinately difficult to implement; and 
     thus it is unacceptable.

  Ironically, this amendment is being advertised as the best way to 
protect America's privacy. But a fundamental problem with the amendment 
is that we can never know ahead of time what a communication says. 
Let's think it through. In order to figure out whether the 
communication concerns international terrorism, for example, an analyst 
will have to review the content of it. That actually results in more of 
an invasion of privacy than would ever occur under the standard 
minimization procedures that NSA uses every day. That makes no sense if 
we are trying to protect privacy.
  Mr. President, it is news to me that the Intelligence Committee bill, 
as claimed on the other side, has no judicial involvement and no 
judicial oversight. I have said it before. This bill has more judicial 
oversight and involvement in foreign intelligence surveillance than 
ever before. There is court review and approval of the joint 
certification by the Attorney General and the DNI and of the targeting 
minimization procedures. If the court finds any deficiency in these 
documents, the Government must correct it or cease the acquisition. 
That is not an empty oversight.
  The Intelligence Committee bill doesn't stop there. We took 
tremendous care to make sure there were specific protections for 
Americans' privacy in the bill. I suggest all Members look closely at 
these protections: express prohibitions against reverse targeting, 
against targeting persons inside the United States without a court 
order, against conducting any acquisition that doesn't comply with the 
fourth amendment. This bill goes further than ever before in ensuring 
that there are protections for Americans in the area of foreign 
targeting.
  We heard the tired accusation that this bill will allow the 
intelligence community to intercept communications of anyone; that it 
gives ``unrestrained access to communications of every American.'' That 
is just plain wrong. Communications of U.S. persons will be intercepted 
only if those persons are talking to foreign terrorists or spies. And 
because of the minimization procedures, only those specific 
communications will be intercepted, and if they don't contain foreign 
intelligence value, then they will be minimized or suppressed.
  According to the Senator from Wisconsin, this amendment is necessary 
because the minimization procedures in FISA are ``quite weak'' and 
inadequate. I am sure the FISA Court judges who have reviewed and 
approved these procedures would appreciate the implication that they 
are doing a bad job of protecting the privacy of Americans. Ironically, 
it is that same court that, under the Senator's amendment, will control 
the Government's access and use of incidental communications.
  Mr. President, I reserve the remainder of our time and yield the 
floor.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, I will use some of my time on a couple 
of these amendments. I know it must be difficult for the Chair to 
figure out which time to apply to which amendments, but I will try to 
identify them.
  First, I will speak with regard to Feingold-Webb-Tester amendment No. 
3979, which the Senator from Missouri was addressing. He referred to 
our concern that the rights and privacy of Americans could be affected 
by this bill as a ``tired accusation.'' I object to that 
characterization. I think this is clearly the kind of thing we should 
be worried about. I will tell you what is a tired accusation: the 
notion that somehow our amendment would affect the ability of the 
Government to listen in on Osama bin Laden. That is a tired and false 
accusation. The Senator has said that if bin Laden or his No. 3 man--
whoever that is today, because we killed the last No. 3 man--calls 
somebody in the United States, we cannot listen in to that 
communication unless we have an independent means of verifying that it 
had some impact on threats to our security from a terrorist threat. 
That is what he claims, that we would not be able to listen in on that 
conversation. That is false.
  The Feingold-Webb-Tester amendment specifically does not require a 
FISA Court warrant to acquire and disseminate the communications of any 
foreigner overseas who is suspected of terrorism. Mr. President, there 
is no separate threat requirement. The amendment merely requires that 
the Government label terrorism-related communications that have one end 
in the United States so they are traceable for subsequent oversight. 
And it simply requires that when the Government accesses and 
disseminates terrorist-related communications that it has already 
acquired that the court just be informed with the brief certification. 
I don't know where the Senator gets this bizarre idea that somehow you 
cannot listen in on a conversation of Osama bin Laden. I don't think it 
is credible to anybody that that would be the case.
  Finally, he raises the concern that somehow we are insulting the FISA 
Court, saying they are not doing a good job. To the contrary, we are 
trying to give them the power to enforce their will. We are trying to 
give them the ability to say: Wait a minute. You guys are not doing 
what you said you were going to do. That is not an insult. That is 
essential for the court to be able to do its job. Let's worry less 
about the alleged and, frankly, false notions about the feelings of a 
secret court and worry more about the rights and privacy of perfectly 
innocent Americans.
  Mr. President, I turn now to amendment No. 3915, another amendment I 
offered known as the use limits amendment. As I explained earlier this 
week, my amendment simply gives the FISA Court the option of limiting 
the Government's use of information about information about U.S. 
persons that is collected under procedures the FISA Court later 
determines to be illegal. That is about as minimal a safeguard as you 
can get.
  It is unfortunate that some of those who oppose my amendment are 
mischaracterizing what it does. The Attorney General and the DNI sent 
the majority leader a letter yesterday in which they expressed their 
objections to this amendment. Twice in the letter, they stated that 
this amendment would place limits on the use of information that 
doesn't concern U.S. persons. That is flat-out false, Mr. President. 
The use limits proposed in this amendment specifically apply to 
``information concerning any United States person.'' That is what it 
says. Use limits in this amendment apply only under those 
circumstances. There is nothing ambiguous about this language. These 
patently false claims that the amendment applies to information about 
non-U.S. persons just show the lengths to which opponents of the 
amendment will go to generate opposition to this or any other 
reasonable amendment.
  We have also heard that the amendment would create a massive 
operational burden. Mr. President, that also just isn't true. The 
Government already does what is necessary to implement the use limits 
in the amendment.
  First, declassified Government responses to oversight questions of 
the Congressional Intelligence Committees reveal that the Government is 
already labeling communications obtained under the so-called Protect 
America Act. So the Government already tracks which communications are 
acquired under these particular authorities, which would be the first 
step here.
  Second, the Government already has to comply with minimization 
requirements that are supposed to protect information about U.S. 
persons. These requirements kick in whenever the Government wants to 
disseminate any acquired communications that include information about 
U.S. persons. That means intelligence analysts already have to 
determine, before any communications collected under these authorities 
can be used in any of the contexts we are talking about here, whether 
they contain any information about U.S. persons. Indeed, the 
administration constantly reminds us of this fact when claiming that 
minimization requirements do enough to protect Americans.
  Mr. President, given that the Government is already required and 
equipped to examine any communications it proposes to use in order to 
determine whether U.S. person information is present, the argument that 
the amendment somehow imposes a massive new burden is very difficult to 
understand.
  Perhaps the explanation lies in the administration's repeated 
statements

[[Page S691]]

that the amendment would put limits on the use of information about 
non-U.S. persons. If this were true, then it is conceivable that my 
amendment would create an additional operational burden. But those 
statements are completely and utterly false, as I have explained. The 
amendment explicitly states that the use limits apply to ``information 
concerning any United States person''--information that is already 
subject to minimization requirements.

  I want to also address the argument the chairman of the Intelligence 
Committee made that this amendment is somehow different than the 
existing use limits for emergency surveillance. The chairman argued 
that the amendment, unlike the emergency use limits, could affect 
``thousands'' of communications. As I pointed out yesterday, the 
amendment addresses that concern by creating a huge exception to the 
use limitations, an exception that is not present in the emergency use 
limits provision. Under the amendment, the FISA Court can allow the 
Government to use even information about U.S. persons that is obtained 
by unlawful procedures, as long as the Government fixes the problem 
with the procedures. So, in fact, this amendment is far less 
restrictive than the use limits for emergency surveillance, despite the 
claim of the chairman otherwise.
  Even more important, we have to remember what these thousands of 
communications are. The only information that would be subject to use 
limits is information about U.S. persons collected under illegal 
procedures--procedures that failed to reasonably target people 
overseas. The underlying bill prohibits the Government from collecting 
this information in the first place. My amendment gives this 
prohibition some teeth by limiting the use of information that has been 
illegally collected.
  The opponents of this amendment may argue that the government has no 
intention of doing anything that would be unreasonable under the law. 
My response is, if it does, there ought to be some enforcement. There 
ought to be a way to make sure that doesn't happen, not just the 
assurance of the chairman and vice chairman.
  Moreover, if the Government has collected thousands of communications 
illegally, isn't that all the more reason to try to contain the damage 
and limit the impact on innocent Americans? That is not hamstringing 
the Government; it is just requiring the Government to comply with the 
law that we are actually passing.
  My amendment simply provides an incentive for the administration to 
follow the law as it is written. If we pass a law that has no 
meaningful consequence for noncompliance with the law, I think we are 
taking a real gamble as to whether the administration will choose to 
comply. I am not personally willing to accept the odds on that one.
  Once again, I urge my colleagues to support this amendment, and I 
reserve the remainder of my time and yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, I ask my esteemed vice chairman if I 
might have 6 minutes to oppose Senator Feingold's reverse targeting 
amendment No. 3913.
  Mr. BOND. I am happy to yield that time to the chairman.
  Mr. ROCKEFELLER. The Senator from Wisconsin has an amendment that 
requires a FISA Court order if the Government is conducting 
surveillance of a person overseas, but a significant purpose of the 
surveillance is to collect the communications of a person inside the 
United States with whom the target is communicating.
  I share the Senator's goal in protecting the privacy interests of 
Americans, but I am afraid this amendment, as drafted, is unworkable 
and unnecessary.
  The amendment is described as a way to prevent reverse targeting--
circumstances in which the Government would target persons overseas 
when its actual target is a person within the United States with whom 
the overseas person is communicating.
  The fact is, reverse targeting is prohibited under FISA today. I 
repeat, it is prohibited under FISA today. If the person in the United 
States is the actual foreign intelligence target, the Government must 
seek a FISA order, and, in fact, the Government would have to have 
every incentive to do so in order to conduct comprehensive surveillance 
of such a person.
  What is more, the base bill, S. 2248, makes the prohibition on 
reverse targeting explicit. The Government cannot use the authorities 
in this legislation to target a person outside the United States if the 
purpose of such acquisition is to target for surveillance a person 
within the United States.
  In addition, the base bill, the Intelligence Committee bill, also 
strengthens the protection of U.S. person information that is collected 
in the targeting of foreign targets overseas by requiring that the FISA 
Court approve the minimization procedures that apply to this collection 
activity.
  The Feingold reverse targeting amendment, however, goes too far. The 
amendment would prohibit the Government from using the authorities of 
this act ``if a significant purpose'' of the acquisition is to 
``acquire the communications'' of a particular known person within the 
United States. In order to acquire such communications, the Government 
would be required to seek a regular FISA Court order.
  The problem is that we are revising the Foreign Intelligence 
Surveillance Act today in large measure precisely because we want the 
intelligence community to have the ability to detect and acquire the 
communications of terrorists who call into the United States. In other 
words, in order to detect and prevent terrorist attacks, finding out if 
a foreign terrorist overseas is in contact with associates in the 
United States is actually a significant purpose of this legislation, 
and it will always be a significant purpose of any targeting of a 
foreign terrorist target overseas by the intelligence community.
  As the Statement of Administration Policy--that is objections usually 
that come over from the White House--points out:

       A significant purpose of the intelligence community 
     activities is to detect communications that may provide 
     warning of homeland attacks and that may include 
     communication between a terrorist overseas who places a call 
     to associates within the United States. A provision that bars 
     the intelligence community from collecting those 
     communications is unacceptable.

  Who is to say that person from overseas is not a terrorist and he is 
contacting a person in the United States to discuss something which is 
not in the national interest or which has intelligence implications? 
You cannot in good conscience bar the intelligence community from 
collecting these communications. That is unacceptable.
  Again, reverse targeting is prohibited under current law. I think 
that is the third time I have said that. Reverse targeting is 
prohibited by the committee bill. The amendment is not needed to 
achieve its stated goals. It will harm vital intelligence collection. I 
urge the amendment be defeated.
  I reserve the remainder of our time.
  The PRESIDING OFFICER (Mr. Casey). Who yields time?
  The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I will speak with regard to amendment 
No. 3913, the one about which the chairman just spoke, the so-called 
reverse targeting amendment I have offered. Reverse targeting is what 
happens when the Government wiretaps persons overseas when what they 
are really interested in is the Americans with whom these foreigners 
are talking. I think most of my colleagues would agree that this bill 
should not open up a backdoor to get around the requirement in FISA for 
a warrant to listen in on Americans at home.
  The lack of any substantive arguments against my amendment is made 
clear by the letter the DNI sent on Tuesday. The arguments just offered 
by the chairman were almost identical to the arguments offered by the 
DNI and by the Attorney General. In fact, that letter, which severely 
mischaracterizes the amendment, actually underscores why the amendment 
is good both for civil liberties and for national security.
  First, the letter confirms that reverse targeting is not, in fact, 
prohibited by the underlying bill. We keep hearing the chairman and 
vice chairman say it is already prohibited. It is not. The DNI writes 
that the Intelligence Committee bill only prohibits warrantless 
collection when the American is ``the actual target.'' That cannot be 
read as a prohibition on reverse

[[Page S692]]

targeting. That is just a prohibition on direct targeting of an 
American at home, and it does nothing to protect Americans from what 
the DNI himself has said is unconstitutional.
  Second, the letter cites ``operational uncertainties and problems,'' 
but it does not bother to identify what those are. Yes, my amendment 
would require a new procedure, just like everything else in this bill, 
but the Government should already have procedures to protect the 
constitutional rights of Americans. If it does not, that is all the 
more reason to adopt the amendment.
  Third, the letter actually makes one of the strongest arguments in 
favor of my amendment when it warns of insufficient attention to the 
American end of an international terrorist communication. If a foreign 
terrorist is talking to an American inside the United States, the 
intelligence community should get a FISA warrant on that American so it 
can listen in on all his communications, and it certainly would have no 
problem getting that warrant. Without that warrant, the Government will 
never get the full picture of what that American is doing or plotting. 
Yet the DNI's letter seems to argue that the Government would not want 
to get a FISA Court warrant to listen in on all the communications, 
including the domestic communications, of a terrorist inside the United 
States. I do not believe this is a serious argument, but if it were, it 
would suggest that our Government is not doing everything it can do to 
track down terrorists.
  Finally, the letter seriously mischaracterizes the amendment. The 
amendment does not bar acquisition of communications between terrorists 
overseas and their associates in the United States. It does not in any 
way affect the Government's ability to discover and collect those 
communications. It does not apply to incidental collection of 
communications into the United States, and it does not even apply when 
the Government has identified a known individual with whom the foreign 
terrorist is communicating. Only when a significant purpose of the 
surveillance is to get information on a person inside the United States 
does the Government need to get a court warrant. That is not just 
required by the Constitution of the United States, it is how the 
Government can most efficiently and effectively protect us.
  I hope my colleagues will support this modest proposal to prevent 
these new powers from opening a huge loophole to the requirement in 
FISA that the Government get a court order to target Americans in the 
United States.

  Mr. President, I reserve the remainder of my time on this amendment, 
and I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Missouri.
  Mr. BOND. Mr. President, I yield myself 3 minutes on amendment No. 
3913.
  It is interesting to hear that the proponent of this amendment thinks 
the letter laying out the reasons against the amendment are reasons for 
it. That is a trick I have not learned, to say that when somebody says 
that the reverse targeting amendment would make it impossible when that 
person and those people really represent the agency responsible and the 
oversight body of the Department of Justice somehow makes their case.
  I also call the attention of my colleagues to a statement from the 
Civil Liberties and Privacy Office of the Office of the Director of 
National Intelligence. In that statement, the Civil Liberties and 
Privacy Office says:

       Concerns have been raised that the PAA could result in the 
     interception of U.S. person communications. As explained in 
     the Department of Justice September 14 letter, and in a 
     letter by the DNI's Civil Liberties Protection Officer dated 
     September 17, 2007, U.S. persons' privacy interests are 
     protected through ``minimization procedures,'' which must 
     meet FISA's statutory definition. In addition, ``reverse 
     targeting'' is implicitly prohibited under existing law.

  As a side note, Mr. President, this measure explicitly prohibits 
reverse targeting, but the Privacy Office goes on to say:

       The SSCI bill in addition requires review of minimization 
     procedures and explicitly prohibits reverse targeting. In 
     addition, the bill provides the FISA court with ongoing 
     access to compliance reports and information about U.S. 
     person disseminations and communications, and the explicit 
     authority to correct deficiencies in procedures. The bill 
     also requires annual reviews of U.S. person disseminations 
     and communications and extensive reports to Congress.

  This is a clear statutory framework. As a practical matter, if there 
was a desire to target someone in the United States, if that person was 
thought to have foreign intelligence information and acting as an agent 
of a foreign power, an officer, or employee, a FISA Court order is the 
simplest way to do it. Nobody has explained how you can target a 
foreign terrorist to get collections on a particular U.S. person unless 
that person is engaged in a terrorist activity, and you have to target 
an overseas person who has foreign intelligence information, and that 
is the legitimate reason for making the collection against the foreign 
target. No terrorist information. The information is minimized and not 
used.
  I yield the floor and reserve the remainder of the time.
  The PRESIDING OFFICER. Who yields time?
  Mr. BOND. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. 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.


                            Pending Nominees

  Mr. REID. Mr. President, I have a friend. I have known him for a long 
time. His name is Steve Walther. Steve Walther was a very prominent 
Nevada lawyer, a senior partner in a law firm, with qualifications that 
are unsurpassed. I have always liked Steve very much. And he made a 
comfortable living. I called him once and said: Steve, have you ever 
considered doing something different?
  A wonderful story about Steve, to show what a tremendously good guy 
he is. He has a little boy named Wyatt. Steve married a woman and he 
raised their children. They were his children once married, but he had 
never had his own child. His wife went to the doctor, and she was 
nearing 50 years old and was sick, and found out she was having a baby. 
So late in life they had this baby, and I will never forget what she 
said. She said: When I had my first two babies, time went by so slowly. 
But she said: Now I am older and understand, and I want everything to 
be fine, so I can't take enough time to make sure the baby is fine. And 
the baby is fine.
  Anyway, I said to Steve: You could afford to come back here. How 
would you like to be a member of the Federal Election Commission? He is 
not a Democrat; he is an Independent. He has done things for decades 
with the American Bar Association, held all kinds of prominent 
positions with the American Bar Association nationally. He said: OK, I 
think it would be a good idea. Wyatt can come back and spend some time 
in Washington. So he served for nearly two years on the Federal 
Election Commission. Everybody said he was outstanding, as I knew he 
would be.
  Also on that Federal Election Commission, prior to the first of the 
year, was another Democrat by the name of Bob Lenhard. He had served on 
the FEC with Steve. He and Steve worked well together. They worked well 
together with everybody on the Commission, and he and Steve did a good 
job.
  The Federal Election Commission is critically important because it 
enforces our Nation's campaign finance laws. Both these nominees lost 
their jobs at the end of last year because the Republicans refused to 
permit a vote on their nominations to the FEC. They said they would not 
allow an up-or-down vote on these nominations of Lenhard and Walther. 
Nothing about their qualifications. They were both outstanding members 
of the Federal Election Commission. The reason they would not allow a 
vote on them is they would not allow a vote on their own nominee, a man 
by the name of Hans von Spakovsky. They are filibustering their own 
nominee.
  I said: Let's vote on all of the FEC nominees, any order you want. We 
will vote on ours first, last, we don't care. Let's just have a vote on 
them. No. Unless we would guarantee von Spakovsky would pass, no. I 
don't know if Mr. Spakovsky would pass. I suspect the Republicans don't 
think so. But it seems fair to me that we should have votes on these 
nominees.

[[Page S693]]

  The record over the years is full of remarks by my Republican 
colleagues characterizing the up-or-down vote as the gold standard of 
reasonableness in Senate process. That is apparently not the view when 
it comes to one of their nominees, who would actually stand a chance of 
losing a vote. Republicans won't allow a vote on our Democrats unless 
we approve this person. That doesn't make sense.
  The reason these FEC nominees, including Steve Walther, have not been 
approved rests squarely with the White House and the Republicans.
  Mr. President, I ask unanimous consent to have printed in the Record 
two editorials.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, Jan. 31, 2008]

                  While the Election Watchdog Wanders

       The presidential campaign's heated fund-raising sweepstakes 
     finds lobbyists hurriedly ``bundling''--amassing additional 
     hundreds of thousands from donors to re-stake surviving 
     contenders for the next primary rounds. (Lobbyists reportedly 
     bundled $300,000 for Senator John McCain in one night in 
     Washington after his stock revived on the campaign trail.)
       In packaging political influence by superlarge chunks, 
     money bundlers are at least as crucial to understanding where 
     candidates stand as their campaign vows. Fortunately for 
     voters, a new election law mandates the disclosure of the 
     names of lobbyists and other bundlers working the high-roller 
     realm of donations of $15,000 or more. Unfortunately for the 
     same voters, this vital law cannot yet be implemented.
       A partisan standoff blocks the Senate from filling four 
     existing vacancies on the Federal Election Commission. The 
     six-member panel is powerless to form a quorum and write the 
     regulations needed to shed sunlight on bundling. Senator 
     Mitch McConnell, the Republican minority leader, is refusing 
     to allow individual up-or-down majority votes on nominees for 
     the commission. Mr. McConnell threatens a filibuster unless 
     they are voted on as a single package--an obstructionist 
     tactic to protect a highly unqualified Republican nominee, 
     Hans von Spakovsky, from rejection in a fair vote.
       Mr. von Spakovsky is a notorious partisan who previously 
     served the Bush administration as an aggressive party hack at 
     the Justice Department. There, he defended G.O.P. stratagems 
     to boost Republican redistricting and mandate photo ID's in 
     Georgia--a device to crimp the power of minorities and the 
     poor who might favor Democrats at the ballot.
       President Bush refuses to withdraw the von Spakovsky 
     nomination, while the Democrats demand he be considered on 
     his individual record, not yoked to three less controversial 
     nominees. We urge the Senate majority leader, Harry Reid, to 
     highlight this blot on democracy by moving the von Spakovsky 
     nomination as a separate measure and demanding a cloture 
     vote. Force the Republicans to either filibuster against 
     their own unqualified partisan or dare to vote for him in 
     broad daylight.
                                  ____


               [From the Washington Post, Jan. 28, 2008]

                               Up or Down

       ``We need to get him to the floor for an up-or-down vote as 
     soon as possible,'' Sen. Mitch McConnell (R-Ky.) said of 
     Michael B. Mukasey, then the nominee for attorney general. 
     John R. Bolton ``deserves an up-or-down vote so that he can 
     continue to protect our national interests at the U.N.,'' Mr. 
     McConnell said of the nominee to be United Nations 
     ambassador. ``Let's get back to the way the Senate operated 
     for over 200 years, up-or-down votes on the president's 
     nominee, no matter who the president is, no matter who's in 
     control of the Senate,'' he said during the dispute over 
     judicial filibusters.
       Mr. McConnell's devotion to the principle of up-or-down 
     votes for nominees, it turns out, has limits: Apparently 
     fearing defeat if a simple majority vote were allowed, the 
     minority leader has refused to accept Senate Democrats' offer 
     for such a vote on President Bush's choice for a Republican 
     seat on the Federal Election Commission. The consequence is 
     that, as the country begins an election year, the agency 
     entrusted with overseeing enforcement of the federal election 
     laws is all but paralyzed: Only two commissioners are in 
     place, meaning that the agency, six members when it is at 
     full strength, cannot initiate enforcement actions, 
     promulgate rules or issue advisory opinions.
       The standoff involves Hans A. von Spakovsky, a former 
     official in the Justice Department's civil rights division 
     who had been serving as an FEC commissioner until his recess 
     appointment expired last month. Democrats and civil rights 
     groups argue, with some justification, that Mr. von 
     Spakovsky's tenure at Justice was so troubling that he does 
     not deserve confirmation to the FEC post. Some Democrats had 
     threatened to filibuster the nomination, but Senate Majority 
     Leader Harry M. Reid (D-Nev.) managed to offer an up-or-down 
     vote on each of the four pending nominations to the agency, 
     two Republicans and two Democrats. But Mr. McConnell and 
     fellow Republicans have insisted that the nominees must be 
     dealt with as a package, with no separate votes allowed. To 
     be fair to Mr. McConnell, the practice has been to vote on 
     FEC nominees as a package to ensure that the politically 
     sensitive agency remains evenly divided between the two 
     parties. But that has not been an absolute rule; indeed, the 
     last nominee who generated this much controversy, Republican 
     Bradley A. Smith, had a separate roll call vote and was 
     confirmed 64 to 35 in 2000. But Senate Democrats could commit 
     to a quick vote on a replacement nominee, if they were able 
     to muster the votes to defeat Mr. von Spakovsky.
       We have suggested previously that it is more important to 
     have a functioning FEC than to keep Mr. von Spakovsky from 
     being confirmed. But Mr. McConnell ought to explain why the 
     up-or-down vote he deemed so critical in the case of Mr. 
     Mukasey, Mr. Bolton or appellate court nominee Miguel A. 
     Estrada is so unacceptable when it comes to Mr. von 
     Spakovsky.

  Mr. REID. Mr. President, I can gather one thing from the President's 
unwillingness to resolve the Federal Election Commission problem. That 
is that they would rather have no election watchdog in place during an 
election year.
  The background on the FEC makes the call from Mr. Walther 
particularly remarkable. Listen to this, now. It even gets better.
  Steve Walther called to tell me he had been invited to the White 
House by the President to push for his nomination. I got calls from 
other people whom I had placed in the works to get approved by the 
Senate. They were all invited to the White House tomorrow morning. All 
nominees that the President has pending were invited to the White 
House, Democrats and all. Why? To complain about the Democrats not 
approving them.
  This leads me to tell you a little experience I have had, and we have 
all had, with this President. The President is in fact hoping to have 
breakfast with all the nominees, Democrats and Republicans, now pending 
in the Senate, in an effort to force the Senate to confirm all these 
people. They must live in some alternative universe. I talked yesterday 
about the Orwellian nature of this White House, and this is it. He has 
invited people to the White House to complain about our not approving 
them when they--the President and the White House--are the reason we 
are not approving many of them.
  He invited Mr. Walther, Mr. Lenhard and other Democratic nominees to 
the White House, along with all his Republican nominees, to get them to 
be a backstop, a picture, so he can come out and give one of his 
Orwellian speeches that these people are not being approved because of 
the terrible Democrats in the Senate. Actually, we are waiting for him 
to allow us to have votes on a number of these nominees.
  The President's breakfast only needed one attendee. Only one. That is 
because only one nominee matters to this President. It should be an 
intimate breakfast between President Bush and a man by the name of 
Steven Bradbury. Why do I say that? I say that because of all the 
nominees the President will profess to care about at this breakfast, 
Steven Bradbury stands head and shoulders above all the others in the 
President's esteem. I am not guessing; I was told so by the White 
House.
  Right before the Christmas recess, I called the President's Chief of 
Staff, Mr. Bolten. A wonderful man; I like him; easy to talk to and 
easy to deal with. I said: I tell you what, Josh. We are going to go 
into recess, and why don't we have an agreement on who the President 
wants to have recess appointed and, in fact, I will give you some 
suggestions. You can have a member of the Federal Reserve Board of 
Governors, you can have a Federal Aviation Agency, and you can have a 
couple of other Chemical Safety Board members. I said: Not only that, 
there are 84 other Republican nominees we will approve. There are 8 
Democrats, 84 Republicans. Pretty good deal. He said: Let me check.
  He called me back and he said: Well, what we want is to have a recess 
appointment of Steven Bradbury. I said: Josh, I didn't recall the name. 
Let me check. I checked with Chairman Leahy, I checked with Senator 
Durbin, who is a member of that committee, I checked with Senator 
Schumer, who is on that committee, and they and others said: You have 
to be kidding. This is a man who has written memos approving torture, 
and that is only the beginning.

[[Page S694]]

  Senator Durbin--I don't know if he has time today--will lay that out 
in more detail.
  I called Josh back and I said: Josh, that man will never get 
approved. He has no credibility. He said: Well, let me check with the 
President. He called back and said: It is Bradbury or nobody. I said: 
You are willing to not allow 84 of your people to get approved because 
of this guy? He said: Yes, that is what the President wants.
  Now there are 84 nominees, and among them somebody Secretary Chertoff 
wanted badly. Secretary Chertoff called me personally on someone and he 
said: You have to give us this person. We have important things to do 
here. If I don't get her, they will send me somebody from OMB, and that 
will be a person who doesn't know anything from anything. You have to 
help me with this.
  The head of Alcohol, Tobacco and Firearms, four Department of Defense 
assistant secretaries, the Deputy Director of the National Drug Control 
Policy, the Director of the Violence Against Women's Office, Assistant 
Attorney General, Under Secretary of Commerce for International Trade, 
Director of the Census, Solicitor for the Department of Labor--these 
are only a handful of the jobs of the 84.
  Now, these jobs, all Republicans, all names given up to us by the 
President, are jobs these people have sought for their whole lives. 
Head of the Census, head of the National Drug Control Policy, Director 
of Violence Against Women's Office, Solicitor for the Department of 
Labor. Nope, they are not going to have a job.
  I thought about that. That was a decision the President made, willing 
to throw 84 people under the bus, run over them, for one person he knew 
he couldn't get. That is 84 plus the 4 he could recess appoint. So what 
we did, we stayed in session during the entire holiday recess. But 
before we went out, I thought to myself, I don't know these 84 people. 
Some of them I have met, but these are jobs that are important to our 
country, jobs that are important to these individuals and their 
families. I made the decision that because the President is willing to 
do what I think is so unfair, so unreasonable, that doesn't mean I am 
going to be unfair and unreasonable. So I called Secretary Chertoff and 
others and said: Just because your boss is unreasonable and unfair, I 
am not going to be that way. So I am going to walk out on the floor and 
approve every one of them, which we did. So for him to have that 
meeting tomorrow takes about as much gall as I can even imagine, to 
have a meeting where he brings in all the people who have not been 
approved. And had I not been, in my own words, generous, he would have 
had 84 more people he would have had to invite down there.
  I can't imagine how he could invite Democrats down to the White 
House. Several of them are being blocked in this body by Republicans. 
Same goes for a number of Republican nominees. Democrats are willing to 
approve them and Republicans stand in the way. Why would he invite them 
down there also? But he did, because there is an Orwellian thought 
process that goes on down there saying Democrats aren't allowing these 
people to get approved, which is the direct opposite of the truth.
  All for one person it appears, Mr. Bradbury. Whatever the White House 
wants, Bradbury would give it to them in a legal opinion. We are not 
going to accept that. What the President is trying to do with this show 
tomorrow is so unreasonable, so unfair, and so out of step with 
reality--as is the budget he gave us on Monday--that I hope the 
American people understand what is going on in this country.
  It is too bad we have a situation where the President of the United 
States would have a meeting in the White House and invite everybody to 
say: I am sorry you are not going to be approved, it is their fault, 
when the truth is, it is his fault.
  Now, here are the people we confirmed. They are right here. Everybody 
can see them. We confirmed all of them. And had it been up to the 
President, not a single one would have been confirmed.
  The PRESIDING OFFICER. The assistant majority leader.
  Mr. DURBIN. Mr. President, I am glad the majority leader has come to 
speak about this issue. It is hard to imagine what is going through the 
mind of the President that he believes he can make an argument tomorrow 
with the meeting at the White House, that we have been unreasonable in 
dealing with his nominations.
  Senator Reid spelled out what happened. We tried, in many ways, to 
get some balance in nominations. That is done all the time so 
Republicans and Democrats will be appointed. It is done by both 
parties. I have seen it in the years I have been around the Senate. 
When Senator Reid made that offer in December, the White House said: 
No, they would not do it unless they could have this one nomination, 
Mr. Bradbury. And I will have to say I think Senator Reid went that 
extra mile, an extra 84 miles, as a matter of fact, and he basically 
said 84 of those Bush nominees would be confirmed.
  The majority leader recounted several phone calls he received this 
week from Democratic nominees to bipartisan commissions. I heard from 
my friend, Tom Carper, not the Senator from Delaware but a friend of 
mine from McComb, IL, who has been nominated to serve on the board of 
directors of Amtrak.
  Tom has been working on passenger rail issues for 20 years, 12 years 
as mayor of the city of McComb, IL, which is served by Amtrak. As 
mayor, he served as the chairman of the Amtrak Mayor's Advisory 
Council. He received national recognition for his leadership on Amtrak 
issues.
  He saw firsthand the enormous potential that passenger rail service 
can have for towns, such as McComb, small towns that might be 
overlooked otherwise. He helped to make the potential of Amtrak service 
a reality. We have such a success story of Amtrak in Illinois in the 
last year or two, with dramatic increases in ridership. Tom saw this 
coming and was a real leader. He convinced the State of Illinois to 
double its State investment in Amtrak. He worked with a broad coalition 
of passenger, business, labor groups, and elected officials to increase 
Amtrak service across our State.
  We are experiencing a renaissance in terms of passenger rail in our 
State in a short period of time. Senator Reid was given an opportunity 
to fill a vacancy on the Amtrak board. I asked him to consider former 
Mayor Tom Carper of McComb, IL. He was kind enough to recommend him. 
There are seven voting members on the Amtrak bipartisan board--three 
Republicans, three Democrats, and the Secretary of Transportation. 
Currently, there are four vacancies on the board, which means the board 
does not have enough members for a quorum, and it forces the board to 
conduct business via an ``Executive committee.''
  On our last day of session in December, Senator Reid, I think through 
great effort and courtesy, rose above the President's refusal to 
cooperate on nominations and worked to confirm more than 80 nominations 
in a single day. But we could have--and should have--confirmed at least 
two more. Senator Reid and I worked together and offered to confirm two 
nominees to the Amtrak board--one Democrat, Tom Carper, and one 
Republican, both of whom had been favorably reported by the Commerce 
Committee.
  The Republicans objected. They insisted that we confirm one Democrat 
and two Republicans or none at all. Now, this ``all-or-nothing'' 
approach is not new. We have seen this before when it comes to 
nominations.
  As the majority leader described, I think the most glaring example of 
this is the nomination of Steven Bradbury to be Assistant Attorney 
General. The majority leader was willing to allow additional 
confirmations--and even recess appointments--for a number of 
nominations.
  I can tell you, having dealt with Senator Reid, he bends over 
backward to be balanced in this approach. That is the way it has to be 
in the Senate. That is the way the institution operates. But the White 
House turned down his offer. They turned down his offer because of one 
nomination, the nomination of Steven Bradbury.
  It was clear this request, Mr. Bradbury, was going to be rejected. 
Mr. Bradbury's nomination has been returned to the White House four 
times since he was first nominated for the job in June 2005. What part 
of ``no'' does the White House fail to understand?
  Why does the President care so much about this one nominee that he is 
willing to sacrifice all these other nominees? He is going to fill the 
White

[[Page S695]]

House with people who are going to have this fine White House china in 
front of them, sipping coffee and tea and eating little cookies and 
complaining that somehow or another the Democrats in the Senate are 
ignoring their need to serve our Government.
  We are not ignoring it. Senator Reid has offered repeatedly to 
confirm these nominees on a balanced basis, even giving the President 
84 nominees without this balance. They have said: No deal unless we get 
Steven Bradbury. He is the only appointment, clearly, who is important 
to this administration. Why? What is it about this man? What would 
possibly be in his background or his potential for future service that 
would be so important?
  Well, this is worth talking about for a minute. Steven Bradbury is 
the head of the Office of Legal Counsel, also known as OLC. OLC is a 
small office and most people have never heard of it, but it has a great 
deal of power, especially in this administration. The Office of Legal 
Counsel issues legal opinions that are binding on the executive branch 
of Government.
  In the Bush administration, OLC has become a rubberstamp for torture 
policies that are inconsistent with American values and laws. In August 
of 2002, the Office of Legal Counsel issued the infamous torture memo. 
This memo sought to redefine torture, narrowing it to a limited 
situation of abuse that causes pain equivalent to organ failure or 
death. These words meant the United States was preparing to abandon 
generations of commitment to outlawing and prohibiting torture. This 
memo also concluded the President has the right to ignore the torture 
statute, which makes torture a crime. This memo was official Bush 
administration policy for years, until it was finally leaked to the 
media, and the administration was forced to repudiate it.

  Jay Bybee, who was then the head of the Office of Legal Counsel, 
signed that memo. Unfortunately, Mr. Bybee was confirmed to a lifetime 
appointment on the Federal bench in the Ninth Circuit before Congress 
and the American people learned about his complicity in the creation of 
this infamous torture memo, a memo that was repudiated by the Bush 
administration once it became public.
  Jack Goldsmith succeeded Jay Bybee as head of the Office of Legal 
Counsel. Mr. Goldsmith is a very conservative Republican, but even he 
was disturbed when he heard what was happening at the Office of Legal 
Counsel.
  As head of that office, he revoked the misguided OLC opinions dealing 
with warrantless surveillance and torture. He decided those opinions 
went too far.
  Deputy Attorney General Jim Comey supported Mr. Goldsmith's actions. 
Let me say a word about Mr. Comey. My colleague and friend for years, 
Senator Schumer, first told me about Jim Comey when he was chosen to be 
the Deputy Attorney General under Attorney General Ashcroft. Senator 
Schumer told me Jim Comey was a straight shooter, an honest man who 
would not compromise his principles in public service. He said I could 
trust Jim Comey. During the period Jim Comey served in our Government, 
Chuck Schumer was right. Jim Comey enjoys that reputation because he 
earned it.
  We now know what happened because it has come to light that there was 
an infamous showdown at the bedside of Attorney General John Ashcroft, 
who was hospitalized in an intensive care unit, where White House Chief 
of Staff Andrew Card and former Attorney General Alberto Gonzales tried 
to pressure a then-ailing John Ashcroft into overruling Jack Goldsmith 
and his acts in the Office of Legal Counsel. It is hard to imagine that 
they would go into a hospital wing, with the acting Attorney General 
and with the President's Chief of Staff, to a man in an intensive care 
unit and try to persuade him to sign a document to overrule Jack 
Goldsmith.
  Fortunately, Attorney General John Ashcroft, to his credit, refused. 
When Jack Goldsmith finally left the Justice Department, the 
administration realized they did not need any more trouble from the 
Office of Legal Counsel, they needed someone in that office who would 
not rock the boat, would not question their opinions, someone who would 
rubberstamp their policies.
  So, in June 2005, President Bush nominated Steven Bradbury to succeed 
Jack Goldsmith--Steven Bradbury, the person who has now become the 
centerpiece of the entire appointment agenda of the Bush 
administration. Although Mr. Bradbury has never been confirmed in this 
position, he has effectively been head of OLC for 2\1/2\ years.
  In 2005, Mr. Bradbury reportedly signed two OLC legal opinions 
approving the legality of abusive interrogation techniques. One 
opinion, on so-called ``combined effects,'' authorized the CIA to use 
multiple abusive interrogation techniques in combination.
  According to the New York Times, then-Attorney General Alberto 
Gonzales approved this opinion of Mr. Bradbury over the objections of 
then Deputy Attorney General Jim Comey, who said the Justice Department 
would be ashamed if the memo became public.
  Mr. Bradbury also authored and Alberto Gonzales approved another 
Office of Legal Counsel opinion, concluding that abusive interrogation 
techniques, such as waterboarding, do not constitute cruel, inhumane or 
degrading treatment. This opinion was apparently designed to circumvent 
the McCain torture amendment. I was proud to cosponsor John McCain's 
torture amendment. We are in the midst of a Presidential campaign, and 
I suppose you have to be careful as a Democrat saying anything positive 
about a man who may be the Republican nominee.
  But I could not think of another Senator who could speak with more 
authority on interrogation and torture than John McCain, who spent over 
5 years in a Vietnam prison camp. He came to this floor and made an 
impassioned plea for us to make it clear that torture would not be part 
of American policy.
  In the end, he won that amendment by a vote of 90 to 9, an amendment 
which absolutely prohibits cruel, inhumane or degrading treatment. 
Steven Bradbury, now infamous for his role in memo after memo relating 
to torture, felt he found a way, through an opinion, for the 
administration to avoid the impact of the law the President signed, the 
McCain torture amendment.
  That is what this is about. This is not a casual situation where I 
find Mr. Bradbury personally offensive. We are going to the heart of a 
question as to whether this man can serve this country in this critical 
position in the White House based on what we have seen over and over 
again: his complicity in some of the most embarrassing chapters in this 
administration, including some that have been publicly repudiated.
  Last fall, while the Senate was considering the nomination of Judge 
Michael Mukasey to be Attorney General, the judge pledged to me in 
writing that he would personally review all of the Office of Legal 
Counsel's opinions dealing with torture. He said he would determine 
whether each of these opinions can be provided to Congress and whether 
he agreed with the legal conclusions of each of these opinions. This 
promise made by Attorney General Mukasey to me, to the Judiciary 
Committee, and to the Senate is a matter of public record.
  Last week, Attorney General Mukasey appeared before the same 
Judiciary Committee for the first time since he was confirmed. I asked 
him point-blank whether, as he had promised, he had reviewed all of the 
OLC torture opinions. I specifically asked him about Steven Bradbury's 
``combined effects'' opinion, which Jim Comey said would shame the 
Justice Department if it became public. Sadly, the Attorney General 
said he had not reviewed those opinions. He realized that he had made a 
promise to me that he would, and we left it at that. He did acknowledge 
in the course of his testimony how much he respected Jim Comey, how he 
had turned to him for advice and believed he was an honorable man. I 
feel the same. I trust that Attorney General Mukasey is also an 
honorable man who will keep his word.
  In the meantime, while all of this continues, Steven Bradbury remains 
as the effective head of the Office of Legal Counsel, even though it 
has been 2\1/2\ years since he was nominated and he has never been 
confirmed. Legislation known as the Vacancies Reform Act prohibits a 
nominee from serving for this long without confirmation. It makes a 
mockery of the confirmation process that Mr. Bradbury assumes a role he 
has never been given under the law. Apparently, he is so important to

[[Page S696]]

the Bush administration, they are willing to violate this law to keep 
him in his position, and they are prepared to toss overboard scores of 
nominations which could be approved by this bipartisan Senate if they 
would only relent on this nominee, who is obviously not going to be 
approved. The fact that Mr. Bradbury continues to serve as the 
effective head of the Office of Legal Counsel appears to be an attempt 
to circumvent the confirmation process in order to install this 
controversial nominee in a key Justice Department post in the closing 
days of this administration.
  Ironically, the Vacancies Reform Act to which I referred was passed 
by the Republican-controlled Congress in 1998 to limit the ability of 
then-President Clinton's nominees to continue to serve in an acting 
capacity. The legislation was specifically targeted at Bill Lann Lee, 
the first-ever Asian-American head of the Civil Rights Division. 
Apparently, the Bush administration is ignoring the very law which a 
Republican Congress passed to make it clear that the President does not 
have the authority to appoint people like Steven Bradbury in an acting 
capacity without confirmation.
  Why has Mr. Bradbury not been confirmed? For years, the Justice 
Department has refused to provide Congress with copies of the opinions 
Mr. Bradbury authored on torture. Mr. Bradbury has refused to answer 
straightforward questions from myself and other members the Judiciary 
Committee regarding his role in this.
  Here is what I said in November 2005 about Mr. Bradbury's nomination:

       Since the Justice Department refuses to provide us with OLC 
     opinions on interrogation techniques, we do not know enough 
     about where Mr. Bradbury stands on the issue of torture. What 
     we do know is troubling. Mr. Bradbury refuses to repudiate 
     un-American and inhumane tactics such as waterboarding.

  As I have said before, I believe that at the end of the day, when the 
history is written of this era, there will be chapters that will not be 
friendly to this administration.
  In past wars, Presidents of both political parties have been guilty 
of excessive conduct, in their own view, as part of national security. 
One can remember the suspension of habeas corpus by President Lincoln 
during the Civil War, the Alien and Sedition Act of World War I, and 
the Japanese internment camps of World War II. All of these examples, 
as we reflect on them in history, do not reflect well on this country. 
Decisions were made which many wish could be undone. The same is likely 
to be true when it comes to the issue of torture and the war on 
terrorism under the Bush administration; this issue of warrantless 
surveillance, where for years, literally, this administration went 
beyond the law and attempted to intercept communications when they 
could have come to Congress and received bipartisan support for an 
approach which would have kept America and our Constitution safe.
  Yesterday, we learned why Steven Bradbury is so important to the 
White House. We also learned why he refuses to condemn waterboarding. 
It was Super Tuesday, so a lot of political minds were focused on other 
places and other things. Unfortunately, it didn't get a lot of 
attention, but every American should know what happened yesterday on 
Capitol Hill.
  In testimony before the Senate Select Intelligence Committee, CIA 
Director Michael Hayden acknowledged that the United States of America 
has used waterboarding, a form of torture, on three detainees. 
Waterboarding, or simulated drowning, is a torture technique that has 
been used since at least the Spanish Inquisition. It has been used by 
repressive regimes around the world.
  Every year, the State Department issues a report card on human rights 
in which we are critical of other countries that engage in what we 
consider to be basic violations of human rights. Included in those 
basic violations is torture of prisoners. Included in that torture is 
waterboarding. So once a year we stand in judgment of the world and 
condemn them for engaging in waterboarding and torture techniques on 
their prisoners. Yet it is clear from the testimony yesterday of 
General Hayden that we have engaged in some of those techniques.
  Following World War II, the United States prosecuted Japanese 
military personnel as war criminals for waterboarding American 
servicemen. The Judge Advocate Generals, the highest ranking military 
lawyers in each of the U.S. military's four branches, have stated 
publicly and unequivocally that waterboarding is illegal.
  Now the United States of America has acknowledged engaging in conduct 
that we once prosecuted as a war crime. This is unacceptable.
  Yesterday, I sent the Attorney General a letter. I wanted to spell 
out clearly for him, so there is no misunderstanding, why it is 
important that he respond to several requests which I have made for 
information. At the heart of it is a good man, a judge named Mark 
Filip, who serves in the Northern District of Illinois, a man whom I 
supported for his confirmation as a Federal judge and who has received 
positive reviews for his service on the bench.
  Attorney General Mukasey would like Judge Filip to be his Deputy 
Attorney General. That is a good choice. But I have said to the 
Attorney General, there is only one thing between my enthusiastic vote 
for Mark Filip and his remaining on the calendar: The Attorney General 
has to respond to inquiries I have made, some of which were made months 
ago, on this critical issue of torture. I wanted to make certain that 
there was real clarity in my request. So I sent a letter to the 
Attorney General yesterday and said: Here is exactly what I am looking 
for, the letters we have sent, the questions we have asked, and I want 
you to respond to them. I hope I receive that response by the end of 
the day. If I receive that response and it is a good-faith response, 
even if I disagree with it, if it is a good-faith response, then Judge 
Filip can move forward. I hope he will. It is now in the hands of 
Attorney General Mukasey.
  Let me highlight two of the questions I am asking: First, does 
Attorney General Mukasey agree with the legal conclusions of the Office 
of Legal Counsel torture memos written by Steven Bradbury, that Jim 
Comey believes the Justice Department would be ashamed of if they were 
made public? Second, will the Justice Department investigate the 
administration's use of waterboarding to determine whether any laws 
were violated? I didn't call for prosecution but simply for an honest 
investigation.
  I recognize the Bush administration wants to confirm Steven Bradbury, 
to ensure they have a firewall to protect their torture policies. But 
what is at stake here is more important than this one nominee. This is 
about who we are as a country. This is about the United States, our 
values, our standards of conduct. This is about whether the United 
States can, with a straight face, be critical of regimes and countries 
around the world that engage in abusive interrogation techniques. This 
is about whether we protect American soldiers and American citizens 
from torture by unequivocally condemning those forms of interrogation. 
The United States cannot be a country that defends a practice which the 
civilized world has considered torture for over five centuries.
  Democrats are willing to work with the President, in a bipartisan 
manner, to confirm nominations. But the President's response to the 
majority leader's work in confirming more than 80 nominations in 
December by renominating Steven Bradbury last month is not encouraging. 
If the President truly wants to confirm his nominations, he should not 
be pouring coffee and tea at the White House.
  He ought to have his Chief of Staff, Mr. Bolten, pick up the phone 
and say: Let's get down to business. There are important Democrats and 
Republicans who can be appointed tomorrow if the President will 
understand that the entire fate and future of his administration should 
not hang on this one nominee, Steven Bradbury, who has been implicated 
in some of the most questionable practices of this administration. I 
hope the President and his Chief of Staff, after they have had their 
coffee with these potential nominees, will pick up the phone and work 
with us for the right result.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Menendez). The Senator from Alabama.

[[Page S697]]

  Mr. SESSIONS. Mr. President, I would like to share some thoughts on 
the FISA legislation. It is critically important, and we need to pass 
the Intelligence Committee bill.
  I will first say, in response to my able colleague from Illinois, 
that General Hayden's comments in which he indicated three people had 
been subjected to waterboard torture are something we ought to think 
about. First, I am glad, as he said and has been repeated, 
waterboarding was only used three times early on after 9/11 against 
some of the most dangerous people we have ever dealt with.
  As a result of the debate and discussion about that, we had an 
amendment on the floor of the Senate, which Senator Kennedy offered to 
the Military Commissions Act in 2006, to prohibit waterboarding. It 
failed 46 to 53. We have a statute that does prohibit torture--Congress 
passed it overwhelmingly and it was supported by Senators Kennedy, 
Leahy, Biden, and others--that defined torture as infliction of severe 
physical or mental pain or suffering. I am glad we are no longer 
utilizing waterboarding. I hope we never have to do it again.
  I just want to say to my colleagues, be careful how you portray the 
United States around the world.
  Mr. Goldsmith, who has been quoted here and previously testified 
before our committee, has written a book. He said this war on terror 
has been the most lawyered war in the history of the Republic. Lawyers 
have been involved in everything. Great care has been given to ensure 
the law was followed. To compare waterboarding of 3 individuals to what 
was done to American prisoners by the Japanese in World War II is just 
unthinkable. To date, not a single prisoner whom we have captured in 
the War on Terror has died, to my knowledge, in American custody--maybe 
or one or two from some disease, but certainly not from abuse.
  I just finished reading the book ``Hells Guest'' by Mr. Glenn Frazier 
from Alabama, a Bataan Death March survivor. About 90 percent of those 
prisoners died. They starved to death. They were beaten on a regular 
basis and abused in the most horrible way.
  To even compare what was done to American soldiers wearing a uniform 
lawfully being a combatant to what has been done to a few people 
without any physical or permanent injuries is not fair. It is part of a 
rhetoric designed for political consumption at home that has 
embarrassed our country around the world and led decent people around 
the world to believe our military is out of control and we are 
systematically abusing and torturing prisoners when it is not so. We 
ought to be ashamed of ourselves to go on again and again about it.
  We continue to be confused. Our country faces very real dangers. 
Terrorists are determined to damage this country. It is not just talk. 
We know it is true. They have done it before. They have attacked us 
around the world. They attacked us repeatedly before 9/11, and they 
desire to destroy our country.
  Our administration made a decision after 9/11 that we could not treat 
these kinds of military attacks, designed to destroy our country by 
organized foreign forces, as normal law enforcement. I was a former 
Federal prosecutor. In a criminal prosecution, you try to catch people 
after they have committed the crime. But these acts are so horrible 
that the nature of them is such that they are acts of warfare and not 
crimes, and they need to be treated in that fashion. We remain somewhat 
confused about it. So the old policy meant you would investigate after 
the crime was committed. It was basically a stated or implicit policy 
of the Clinton administration. We cannot return to that kind of 
strategy.
  One of the most important legal powers and authorities we have to 
defend America is the Foreign Intelligence Surveillance Act. It has 
played a key role in preventing subsequent attacks on U.S. soil for the 
last 6 years. We are dealing with very real, very imminent threats, and 
we must continue to assist the fabulous military and intelligence 
personnel who are working this very moment long hours to protect our 
Nation.
  I have visited our National Security Agency and met with the people 
who gather the intelligence under this act. They love America. These 
are not people who are trying to harm our country and deny us our 
liberties. They are sterling individuals who carefully follow the rules 
we give them. They follow the rules. They say they cannot continue 
effectively to do their job unless we pass this legislation. They 
cannot continue to do what they need to do.
  The terrorists waging war against our country do not fight according 
to the rules of warfare, international law, moral standards, or basic 
humanity. They have even, in recent days, apparently used mentally ill 
women as suicide bombers, setting off bombs that have resulted in the 
deaths of other people, as well as the poor people who had the bombs 
strapped to them.
  So, historically, we have provided the protections of the Geneva 
Conventions only to those whose conduct falls within the rules of war, 
those who fight under a flag of a nation, who wear uniforms against 
other organized military units. However, under a twisted rationale, 
predicated on the belief by some that we are not fighting a real war, 
we have given more rights to these individuals, who flatly reject any 
rule of war, than we have provided to legitimate prisoners of war who 
have followed the rules of war. We have done that in a number of 
different instances--it is sort of amazing to me--including providing 
them with habeas corpus relief to go to Federal court. These are not 
traditional prisoners of war, but prisoners who are unlawful enemy 
combatants. So we have endangered, sometimes I really believe, not only 
our troops, who put themselves in harm's way--and are in harm's way 
right now--to carry out the policies we gave them, but innocent 
Americans here at home.
  We have to keep this threat in the forefront of our minds. These are 
individuals dead set on the destruction of our country at any cost. 
There is nothing they will not do.
  Let me state that the FISA law should be made permanent. It should 
not merely be extended with another sunset provision. It is a 
fallacious argument to claim we cannot revisit a law unless there is 
some sunset when it ends. As Members of this Congress, it is incumbent 
upon us to continually review legislation we pass to ensure that the 
laws are accomplishing the goals set forth and that no unintended 
consequences occur. There is no sound reason to pass critical 
legislation such as the Protect America Act and slap an expiration date 
on it.
  Fighting the war on terror is a long-term enterprise that requires 
long-term institutional changes. As the Vice President said in a recent 
speech:

       The challenge to the country has not expired over the last 
     six months. It won't expire any time soon, and we should not 
     write laws that pretend otherwise.

  The Intelligence Committee bill is a collaborative, bipartisan 
compromise that was crafted in consultation with members of the 
Intelligence Committee, the Director of National Intelligence, the 
Department of Justice, and the intelligence community after months of 
negotiation and review of highly sensitive information, most of which 
was classified, secret, about the current surveillance procedures and 
how they were being used by the Government to obtain critical national 
security information. We cannot overstress that the committee most 
intimately involved with this process and the electronic measures being 
utilized voted their bill out by an overwhelmingly bipartisan 13-to-2 
vote.
  Remember, it has been over 6 years 4 months since the terrible 
attacks of September 11, and we may be most thankful that not one 
attack has been carried out on our soil since that day. As we move 
further from that dreadful day, I fear our memories have begun to fade. 
Otherwise, there is no sound justification for doing anything other 
than reauthorizing the Protect America Act, which would allow the 
intelligence community to simply continue, uninterrupted, their work 
which has been protecting this Nation and can continue to protect it in 
the future.
  After the intelligence Committee passed a bill, the Senate Judiciary 
Committee, of which I am a member, got involved and produced a partisan 
bill. We already voted to table the partisan Judiciary substitute, and 
we debating the bipartisan Intelligence Committee bill. Let me point 
out, however, something that happened in the Judiciary Committee. The 
bill produced by

[[Page S698]]

the committee was given very little process during one committee 
meeting where 10 Democratic amendments were accepted along a strict 
party-line vote, and the bill itself, ultimately, was voted out with 
only Democratic support. No Republican voted for it. It was a purely 
partisan bill.

  Strikingly, the one vote that garnered bipartisan consideration was 
against an amendment that was offered by Senator Feingold to strip the 
retroactive liability protections found in section 2 of the 
Intelligence bill.
  We had a discussion and vote on whether the liability protections to 
keep the companies that helped us and responded to Government 
requests--whether they should be sued for doing so--should be stripped 
from the bill. We voted in the Judiciary Committee, 12 to 7, to follow 
the recommendation of the Intelligence Committee bill that they passed 
13 to 2, and keep the limited liability protections. So it was a 12-to-
7 vote to defeat the Feingold amendment that would have removed those 
liability protections.
  Directly after that vote, however--it was curious how it all 
happened--but directly after that vote, Chairman Leahy moved to report 
only Title I of the Judiciary substitute bill out of Committee. When 
that passed, that effectively stripped the liability protection 
provisions the committee had just voted to keep.
  The point is that the Democratic-controlled Judiciary Committee, when 
voting directly on removing retroactive liability, voted 12 to 7 to 
keep it. But by the time we passed out the Judiciary Committee's 
version of the bill, we had taken it out. I'm not sure people fully 
understand how that occurred, but it certainly was an odd thing that it 
passed out of committee without liability protection, when we 
specifically voted to keep that language in the overall bill.
  Now, the main area of disagreement is over this important question 
that will be coming up, I understand, in the amendment offered by 
Senator Dodd, amendment No. 3907--and a Specter-Whitehouse amendment 
that will allow substitution--which will, in effect, allow litigation 
to continue against telecom companies that responded to the requests of 
the Attorney General of the United States, certified by the President. 
So our disagreement is whether we should provide these good corporate 
citizens who cooperated with a formal written request by the Attorney 
General of the United States, certified by the duly-elected President 
of the United States, to provide information for a surveillance program 
implemented shortly after the attacks on September 11--and at that 
point in time, we did not know how many terrorist cells there were in 
the country and what plans they may have had.
  Now, the nature of the program is highly classified, but after an 
uproar of complaints, the procedures were studied carefully by 
Congress, and we reacted by giving approval to the program in passing 
the Protect America Act overwhelmingly last August. I did not want to 
be too lighthearted about it, but I remember all the brouhaha that this 
program was somehow wrong and had to be eliminated, and people made all 
these unsubstantiated allegations. But after we went in great depth, we 
found, as Mr. Goldsmith said, that the lawyers have been on top of this 
since day one. It was a carefully constructed program. A court opinion 
issues last spring caused us to not be able to continue the way it was 
being done, and the Intelligence community asked us for legislation so 
it could continue. The Congress passed the Protect America Act this 
summer, but it was a short-term bill that lasted only 6 months.
  All I would want to say is, nobody apologized to President Bush or 
the Attorney General of the United States or the people at the National 
Security Agency for all the bad things they said about them. After 
having studied what they did, we concluded it is constitutional and 
legal and proper and necessary, and we actually passed a law to 
authorize it to continue.
  But still, there have been over 30 lawsuits now filed against telecom 
providers for their alleged participation in the terrorist surveillance 
program--30 lawsuits. Analysis of these lawsuits leads only to the 
conclusion that the plaintiffs are substituting speculation and a 
fevered brow for fact and are ignoring the dangerous consequences these 
lawsuits can have on our national security.
  I do not know who is actually filing these lawsuits. I will just say 
this, parenthetically: Last October, before the last election, Lancet 
magazine produced a report--a medical magazine in England--that said 
500,000 to 700,000 Iraqis were killed by the American military in Iraq. 
And ABC, CBS, and our Democratic colleagues all raised cane that, 
unbelievably, we would kill this many people. After the election was 
over--and by the way, the guy who wrote the report said he wanted to be 
sure it came out before the election--we learned some things about it.
  In a fabulous article in the National Journal, an unbiased magazine, 
they detailed the fraudulence of that article, and pointed out that 
even an antiwar group said, at most, it was 50,000, not 500,000 or 
700,000. And where did they find out the money for the Lancet article 
came from? George Soros, and the MoveOn.Org crowd. The ``blame America 
first'' crowd. Well, I don't know who is actually funding these 
lawsuits. We ought to ask some questions about it. Certainly there is 
no indication that anybody's liberties have been impacted adversely.

  If these suits are allowed to continue, we face a number of problems. 
The sources and methods relied on by our intelligence community to 
conduct surveillance are highly classified, and if these lawsuits are 
allowed to proceed, even allowing for the Government to be substituted 
for the telecom companies, we run the risk of exposing the things our 
enemies really want: classified national security information. Make no 
mistake, if forced to defend themselves against lawsuits brought about 
because they cooperated with a government request certified to be 
legal, companies will certainly hesitate or refuse outright to 
cooperate in the future. Even where substitution by the Government is 
an option, we would be putting national security decisions in the hands 
of corporate counsels in the future whose duties--and their first 
responsibilities--extend to the stockholders of their company, and not 
the national security.
  If we ask a company to help us, do we want all the lawyers in that 
company to say: Wait a minute. The last time we worked with you 
government we got sued, and we are going to review all of this because 
some court may hold this--or George Soros may fund some lawsuit and tie 
us up in court. We don't think we want to help. I think they would 
naturally take that tack in the future to resist cooperation.
  During floor debate in December, the distinguished chairman of the 
Intelligence Committee, our Democratic colleague Senator Rockefeller, 
said this. This is what he said about the matter:

       Our collective judgment--

  and he is talking about the Intel Committee members--

       Our collective judgment on the Intelligence Committee is 
     that the burden of the debate about the President's authority 
     should not fall on the telecommunications companies--

  In other words, the debate about whether the President had authority 
to do this shouldn't fall on the telecommunications counsels--

     because they responded to the representations by Government 
     officials at the highest levels that the program had been 
     authorized by the President and determined to be lawful and 
     received requests, compulsions to carry it out. Companies 
     participated at great risk of exposure and financial ruin for 
     one reason, and one reason only: in order to help identify 
     terrorists and prevent follow-on terrorist attacks. They 
     should not be penalized for their willingness to heed the 
     call during a time of national emergency.

  Senator Rockefeller said that.
  The ranking member of the Judiciary Committee who favors substitution 
has stated this, flat out:

       The telephone companies have acted as good citizens.

  Certainly they have. In many instances, the Government must seek 
assistance from the private sector and private individuals to help 
protect our national security and even local security in our 
communities. In order for this practice to continue, we must allow them 
to rely on assurances that the assistance they provide is not only 
legal but essential to protect our national security without fear that 
they will have their names dragged through

[[Page S699]]

the mud by protracted litigation initiated by the ``blame America 
first'' crowd which subscribes to wild theories about Government 
conspiracies to deny people their liberty. They are forgetting the 
safety of America, and they are ignoring sound legal precedent.
  Some in this body sincerely believe that liability protection is not 
needed if these companies did nothing wrong, they say. Well, this is 
faulty reasoning since either allowing the lawsuits to proceed or 
substituting the Government will still force them to be a party to 
lawsuits that run the risk of exposing national security information or 
doing irreversible financial and reputational damage to companies 
innocent of any wrongdoing. We are putting these companies in harm's 
way when they, bound by a sense of patriotism and civic responsibility, 
participate in a government program that was certified to be legal by 
the Attorney General of the United States and the President of the 
United States.
  If the Government is substituted--in accordance with one of the 
theories that has been offered--in the place of a particular company, 
it will most certainly assert the state secrets privilege, leaving, in 
effect, the company virtually impotent when it comes to mounting a 
defense and showing what their legitimate actions were. Due to the 
nature of this state secrets privilege, a company will be forbidden 
from making their case and will be left without the ability to even 
confirm or deny their participation in the program. We should applaud 
the actions of these citizens, not stab them in the back by suing them 
for their actions.
  To refresh everyone's memory, the Intelligence Committee, after 
months of negotiation in highly classified settings, rejected an 
amendment to strip liability protection from the bill for these 
companies by a vote of 12 to 3. It then passed the bill out in toto by 
a bipartisan vote of 13 to 2, protecting these companies from lawsuits.
  The Judiciary Committee, on the other hand, had one markup after less 
than 2 weeks of reviewing the Intelligence Committee's legislation, and 
rejected an amendment specifically that would have denied liability 
protection by a vote of 12 to 7. So we voted not to allow them to be 
sued either. Furthermore, the Judiciary Committee rejected an amendment 
to allow the Government to be substituted for the plaintiffs by a vote 
of 13 to 5. We rejected substitution too, although the liability 
protections were ultimately removed from the bill the Judiciary 
Committee passed.
  Even if the Government is substituted, plaintiffs in litigation will 
seek discovery, they will file depositions and ask for interrogatories 
and motions to produce. They will seek trade secrets and highly 
classified technologies. Companies would still face many litigation 
burdens. They would be--we would be subjecting them to harm, not only 
from consumer backlash, but their international business partners will 
be pressured around the world.
  Under the limited liability protections incorporated in the Intel 
bill, plaintiffs seeking to question the Government will have their day 
in court as it only protects good corporate citizens from civil suit. 
So the liability protections in this bill do not preclude lawsuits 
against the Federal Government from going forward. In fact, there are 
at least seven lawsuits currently pending against the Government that 
will proceed against the Government or Government officials. This was 
accepted by the Intelligence Committee. Some wanted to say you couldn't 
sue the Government for these activities also, but the Intel Committee 
reached an agreement, an overwhelmingly bipartisan agreement, that 
would allow those lawsuits to proceed.
  The companies that helped the Government did so to help protect us 
from further attack, and valuable information has been gathered with 
their help. I have been out to the National Security Agency. I have 
talked with the people. I know they scrupulously follow the rules we 
give them, and I know they have gained great, valuable information 
through this program, and I know they lost very valuable information 
when the program had to be stopped. This information has saved 
undoubtedly countless American lives by enabling our intelligence 
community to thwart attacks.
  Some have said this amounts to amnesty, but that couldn't be further 
from the truth. Amnesty is an act of forgiveness for criminal offenses, 
such as granting citizenship to people who broke the law to come into 
our country illegally. The companies were operating under a 
certification of legality in a time of national danger doing what they 
could as Americans to follow the law and prevent future attacks. At no 
point during their participation were their actions illegal. For 
Heaven's sake. To grant liability protection is to adhere to that great 
Anglo-American legal tradition for hundreds of years that when called 
upon by a law officer, with apparent legal authority, wearing a 
uniform, out on the street, a citizen is not to be held legally liable 
if, in responding to the officer, the officer was wrong. That is all we 
are talking about. That is a fundamental, historical, legal principle. 
The only question--the legal question has always been simply this: 
whether the citizen was responding to a legitimate request by a 
government law officer, a police officer to chase a bad guy. Was the 
citizen acting reasonably in believing this was a legitimate law 
enforcement request and he was helping by being a good citizen. That is 
the test. If he participated knowingly with somebody acting illegally, 
then that citizen could be liable. Certainly certification by the 
Attorney General and the President of the United States in written 
documents suffices as a legitimate request.
  The bottom line is, we do not need to pass legislation that panders 
to the extreme interest groups in America who find fault in everything 
our people do, our law enforcement and intelligence officers, and that 
fosters a fundamental mistrust of those officials who are working daily 
to serve all of us. The burden should not fall on the shoulders of good 
corporate citizens who are acting patriotically to help save lives and 
protect our country.
  I urge my colleagues to vote to support the Intel Committee bill, a 
carefully crafted, carefully studied, bipartisan bill. I also urge my 
colleagues to support the liability protections in the Intelligence 
Committee legislation and a vote against any amendments that attempt to 
strip these provisions or in any way alter the carefully structured, 
limited provisions of the bill.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Who yields time?
  The Senator from Georgia is recognized.
  Mr. CHAMBLISS. Mr. President, I rise today to discuss Senate 
amendment No. 3907 offered by Senators Dodd and Feingold to the 
Intelligence Committee's FISA legislation. I compliment my friend from 
Alabama for some very strong, very pointed remarks on this issue as 
well as the other issues he addressed.
  I am pleased the leaders of the Intelligence Committee were able to 
come up with an agreement on how to proceed on this important 
legislation. I look forward to the debate on many of these amendments.
  A couple of the amendments have been offered relating to title II of 
the bill which provides immunity to those telecommunication carriers 
that currently face lawsuits for their alleged assistance to the 
Government after September 11 and their participation in what is known 
as the terrorist surveillance program, or TSP. Senators Dodd and 
Feingold have offered an amendment striking this section. Senators 
Specter and Whitehouse have offered an amendment which would substitute 
the Government as a defendant for the telecommunication providers 
currently being sued for their alleged support to the President's TSP 
program. I do not support either of these amendments.
  As a member of the Select Committee on Intelligence, I had access to 
classified documents, intelligence, and legal memoranda, and heard 
testimony related to the President's TSP program. After careful review, 
as stated in the committee report accompanying this legislation, the 
committee determined:

       That electronic communication service providers acted on a 
     good faith belief that the President's program, and their 
     assistance, was lawful.

  The committee reviewed the correspondence sent to the electronic 
communications service providers stating that the activities requested 
were authorized by the President and determined by the Attorney General 
to be

[[Page S700]]

lawful, with the exception of one letter covering a period of less than 
60 days in which the counsel to the President certified the program's 
lawfulness. The committee concluded that granting liability relief to 
the telecommunications providers was not only warranted but required to 
maintain the regular assistance our intelligence and law enforcement 
professionals seek from them.
  Although I believe the President's program was lawful and necessary, 
this bill makes no such determination. This is not a review or 
commentary on the President's program; rather, it is a statement about 
how important this assistance by the electronic communication providers 
is to our Government.
  I cannot understate the importance of this assistance--not only for 
intelligence purposes but for law enforcement purposes also. The 
Director of National Intelligence and the Attorney General stated:

       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.

  There is too much at stake for us to strike title II and substitution 
is not an acceptable alternative. This week, we have been alternating 
between legislation geared to helping our taxpayers and FISA. Yet 
substituting the Government in these lawsuits will force the American 
taxpayer to front the heavy legal bills associated with this 
legislation.
  Substitution would allow these trials to continue and could risk 
exposure of classified sources and methods through the discovery 
process in the litigation. As a defendant in these frivolous lawsuits, 
the Government may be required to expose some of our most sensitive 
intelligence sources and methods. Let me emphasize the committee 
already found that these communication providers acted in good faith 
under assertions from the highest levels of our Government that the 
program was lawful. If an individual alleges he or she has a claim due 
to this program, that claim can be brought against the Government and 
should not be brought against the providers. The Intelligence Committee 
bill left open the option for Americans to sue the Government. An 
aggrieved individual may sue the Government and attempt to prove 
standing and a cause of action. However, substituting the Government 
doesn't shield our American business partners from these cases, nor 
does it relieve them of the liability to their stockholders they may 
unjustly face and which may be borne out in our economy. Substitution 
only increases the risk of leaks, and these potential revelations only 
make our enemies better informed on the tools we have to conduct 
electronic surveillance.
  Some of my colleagues have complained about access to the documents 
regarding the President's program. It is true many Members of Congress 
have not had access, nor have they had an opportunity to review these 
documents. There is a good reason for that. These documents are highly 
classified and represent details about intelligence sources and 
methods. I worry that expanding the number of people who have access to 
these documents will increase the likelihood that intelligence will get 
leaked into the public. It is more appropriate that the oversight 
committee review and report back to the Senate on the various 
intelligence activities of the United States. That is why the Senate 
has an Intelligence Committee. As a member, I am familiar with handling 
classified material and receiving classified briefings. I have made 
commitments to safeguard the information I learn behind closed doors 
within the Intelligence Committee. Given the wide array of information 
I have heard on the Intelligence Committee, I question the benefits a 
Member would gain from such a limited, yet specific, review of the 
operations of our intelligence community. Rather, I urge my colleagues 
to support the determination of the Intelligence Committee, which is 
charged with regularly reviewing the intelligence activities of the 
United States and oppose the amendments offered by Senator Dodd and 
Senator Feingold. Providing our telecommunications carriers with 
liability relief is the necessary and responsible action for Congress 
to take. The Government often needs assistance from the private sector 
in order to protect our national security and, in return, they should 
be able to rely on the Government's assurances that the assistance they 
provide is lawful and necessary for our national security. As a result 
of this assistance, America's telecommunications carriers should not be 
subjected to costly legal battles.
  With that, I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ISAKSON. 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. ISAKSON. Mr. President, I ask unanimous consent that I be allowed 
to address the Senate as in morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           ECONOMIC STIMULUS

  Mr. ISAKSON. Mr. President, we are on a very important piece of 
legislation, and I thank Senator Bond for all his hard work, and other 
members of the Intelligence Committee. I hope we can very soon pass a 
good FISA bill on the floor.
  I want to deviate from that debate for a second to talk about a 
headline many of my colleagues read yesterday, and that we are all 
reading repeatedly around the United States, and that is the rapid 
increase in the number of houses going into foreclosure. I want to 
address that in the context of the economic stimulus package and in the 
context of a possible recessionary tendency in the economy, and also 
from a historical perspective, in that we have been down this road 
before, and suggest there is an action the Senate and the Congress 
could take, and the White House could endorse, that could avoid an 
awful lot of foreclosures, improve the housing market, reverse the 
tendencies toward recession, and be a private sector solution to a 
problem that is going to be a tremendous burden if we don't act.
  I understand the short-term surgical benefits of the stimulus that 
was passed by the House, the other benefits that the Finance Committee 
passed. We will work ourselves through that in the next few weeks, and 
shortly thereafter the American people will more than likely be 
receiving a check of $300 or more with which to infuse some energy into 
the economy. But while that is going on, these numbers of a 200-percent 
and 300-percent increase of houses going into foreclosures are going to 
materialize into houses in foreclosure.
  When we get into the second quarter of this year and the middle of 
the summer, we are going to find ourselves in a difficult situation 
where the following has happened: a tremendous number of houses 
foreclosed on, the banks and lenders taking back inventory--and there 
is a term called REO, real estate owned--and the regulators coming in, 
looking at their books and telling them to get rid of that inventory. 
The lenders are going to then write them down, take them to the 
marketplace with deep discounts, and sell them.
  Now what that is going to do to your homeowners Jim Weichert sells to 
in New Jersey, mine in Georgia Harry Norman sells to, and those from 
all around the country, is those people who are in houses making 
payments and they are in good shape, their value is going to plummet 
because of the number of foreclosures that is flooding the market. What 
happens is the equity, the difference between their existing mortgage 
and the value of the house, decreases because the value of the house 
goes down. If they are like 87 percent of the American people who have 
an equity line of credit, where they use the equity in their house as a 
line of credit, if you will, their available credit is going to be 
squeezed.
  You know what is going to happen then? They are going to stop 
spending. When that happens, we will have the full pressure of the 
economy in a downward spiral, and it begins to feed upon itself. That 
is precisely what happened in 1975.
  In 1973 and early 1974, there was a great housing boom in the United 
States, like we have had over most of

[[Page S701]]

the last decade. And like what happened over most of the last decade 
with subprime loans and underwriting, back in 1974, money got awfully 
loose. Banks made loans with very little underwriting criteria, and we 
had a plethora of new homes built all over the United States by 
newfound homebuilders who had a hammer, a pickup truck, and easy 
credit. We found ourselves at the beginning of 1975 with a 3-year 
supply of vacant housing on the market in the United States. A viable 
real estate market is a 6-month supply. So you had six times the volume 
of houses that would be considered a balanced market, and we went into 
a deep recessionary spiral.
  A Democratic Congress and a Republican President passed a $6,000 tax 
credit available to any family who purchased a standing vacant house in 
inventory, and that allowed them to collect that credit over 3 years--
the 3 succeeding tax years after the year of their purchase. The only 
thing they had to do, other than qualify for their loan, and qualify 
under good qualifying standards, is they had to occupy the home as 
their residence. In a 1-year period of time, we absorbed a 2-year 
supply of housing and returned the housing market to balance and the 
economy stabilized. Although we had the impacts of the oil embargo, 
which was causing problems with inflation, the economy returned to a 
relatively stable time period.
  I, along with a number of Members of the Senate, have introduced 
legislation--Senate bill 2566--which takes that model from 1975 and 
applies it to our problem in 2008. What it very simply does is, it 
offers a tax credit of $15,000 for the purchase of any house that falls 
in the following category: a new house permitted before September 1 of 
last year that is standing and vacant; a house owned by a lender that 
was foreclosed on in the last 12 months from an owner occupant; and any 
house pending foreclosure owned by an owner occupant who is willing to 
sell. That is where all this inventory that is beginning to flood our 
market comes from. The tax credit would be available if the purchase 
was made between March 1 of this year and February 28 of next year. So 
there is a 1-year window to incentivize those who may be reluctant to 
go in the marketplace to do so.

  The Joint Tax Committee has scored this, and guess what the score 
is--$9.1 billion over 5 years. Put that in the context of the stimulus 
package that is before us of $150 billion to $160 billion. It is a 
relatively small inducement to provide a private sector solution to 
what is about to become a huge burden to the taxpayers of the United 
States and this Government.
  I come to the floor at this time in hopes that some of our colleagues 
who have not found an interest in this legislation yet will take a look 
at it. As the author, it is not original thought. I happened to have 
been a real estate broker in 1975 trying to hang on and make a living 
to educate my three children, and I saw my Government come to the 
rescue of the housing economy through energizing people to go in and 
purchase houses that were in trouble, rather than bail them out 
somewhere down the line, and it worked. The cost to the Government was 
infinitesimal, yet the benefit to the public was astronomical.
  I hope, as we finish talking about a surgical, strategic, short-term 
stimulus to get the consumer buying, which is what we are talking about 
in terms of either the Senate Finance Committee bill or the House bill, 
we take a look at what is coming. Because, believe me, in July of this 
year, if we do nothing, we are going to be dealing with a housing 
supply in this country bigger than it has ever been, with vacant houses 
by the thousands in neighborhoods, declining values on the value of 
housing, and people who are in good shape are not going to be able to 
either have their equity line of credit work or be able to move their 
house in the marketplace because of the tremendous inventory available.
  History is a great teacher both in terms of things you should never 
repeat but also in terms of things that work and you should repeat 
again. I would submit the tax credit to qualified individuals to 
purchase and occupy a troubled house in this economy is an incentive 
that worked not only for the betterment of the market but for the 
betterment of our economy and in the best interest of the United 
States. Senate bill 2566 is an opportunity for us to join together to 
do something good and right for the American people.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           ECONOMIC STIMULUS

  Mr. REED. Mr. President, across the Nation, millions of Americans are 
struggling to make ends meet as our economy has slowed dramatically. In 
December, I spoke on this floor about how President Bush has presided 
over a period of divided prosperity in the United States, where a 
privileged few have done remarkably well but the rest of us have been 
trying to get by. For most working people, the trademark of the Bush 
administration and their economy is wage stagnation. Indeed, in my home 
State, real median wages have not increased since 2000.
  Rhode Islanders are coping not only with flat wages but increasing 
prices in critical commodities they must consume. Energy, education, 
and health care have all gone up. In January, in Rhode Island, gas was 
$3.11 cents a gallon; heating oil costs in the Northeast are projected 
to be at least $2,000 this year, which is about a $400 increase from 
last year. These price increases would be difficult to manage even in 
good times, but again paychecks for most working families have not kept 
up. In fact, they have been flat.
  With prices accelerating, wages flat, and a huge gap in the capacity 
of middle-income working Americans to keep up and try to get ahead, the 
subprime crisis is real. This housing crisis is having huge and 
devastating effects. Two years ago, most of our constituents, the vast 
majority of them, were sitting around the table thinking: Well, when my 
daughter is ready to go to college in 2008, we will go ahead and borrow 
from the house to provide the extra income she will need to go ahead 
and make it through college. A lot of those families now are 
recognizing they can't do that. They are more concerned about a health 
care incident, because, unlike a few months ago, there is no reservoir 
in the value of their house to cushion the blow of unexpected expenses.
  So this housing crisis, together with this wage stagnation, together 
with increased prices for energy and health care and education, and so 
many other things, is putting middle-class Americans in a vise and 
squeezing them.
  We have to do much better. The Joint Economic Committee and others 
have estimated some of the costs already in terms of this mortgage-
related foreclosure crisis. In my home State, they think $670 million 
will be lost to the family incomes of Rhode Island from 2007 through 
the end of 2009.
  These economic conditions are being felt across the country. They are 
not localized warnings. The weakness in housing has spread to all parts 
of our Nation and across our economy. Growth in the fourth quarter of 
last year was .6 percent compared to a 4.9-percent increase in the 
third quarter.
  We are slowing down, moving into a recession. Yesterday the market, 
Wall Street, went down over 300 points, largely due to a very weak 
report of a survey on the service sector. We have known for many months 
now that the manufacturing economy was having difficult times, but the 
service sector was holding up a bit.
  Yesterday, there was a chilling indication the service sector has 
also contracted. The market took the news very badly. The market also 
took the news very badly a few days ago, when we showed a loss of 
17,000 jobs, the first time we have actually lost jobs in more than 4 
years.
  Again, the administration's performance in terms of creating jobs has 
been less than stellar, barely keeping up with the new entrants into 
the labor market on a monthly basis. Now, for the first time in more 
than 4 years, we have lost jobs.
  Furthermore, the average length of unemployment is increasing from 
16.6 weeks in December to 17.5 weeks in January. More people are losing 
jobs and it is harder to find a new job.
  Yesterday, the Federal Reserve released a survey of senior bank loan 
officers who indicated that the credit

[[Page S702]]

crunch is spreading from consumer loans into the commercial and 
industrial loan sectors and that foreign banks are tightening their 
lending terms, in fact, even more so than some U.S. financial 
institutions.
  Taken together, it clearly shows Wall Street is going into what one 
analyst called a recession panic mode and many economists are seeing 
signs that weaknesses in our economy are spreading internationally. In 
fact, one investment banker today, in a speech reported on the 
Internet, suggested that in the credit markets fear has overtaken 
greed, creating a situation of near panic in many respects.
  So there is no doubt we have to act quickly on this stimulus package, 
not only to inject needed spending power into the economy to try to 
revive our consumer sector but also to signal to the American public we 
will act decisively to try to moderate, if not head off, the effects of 
a pending recession.
  We have, I think, a lot to be grateful for in the work of Senator 
Baucus and Majority Leader Reid and Senator Grassley in terms of taking 
a House proposal and increasing it with important provisions, such as 
expanding the eligibility criteria for income tax rebates, including 20 
million seniors and 250,000 disabled veterans.
  The package we are considering also includes $10 billion for a 
temporary extension of unemployment insurance and $1 billion of 
emergency funding for the Low-Income Home Energy Assistance Program, 
the LIHEAP program. Both of these initiatives are targeted to families, 
seniors and low-income households, and they would help jump-start the 
economy.
  Economists agree these programs among others are a good use of 
taxpayer money. Last week before the Budget Committee, Alan Blinder 
from Princeton University and Mark Zandi of Moody's Economy.com both 
recommended that unemployment insurance and LIHEAP be included in the 
stimulus package. They also included other elements, but at least these 
elements are part of the list they feel will provide a bang for the 
bucks we are going to invest in the economy.
  They meet the three T test--timely, targeted, and temporary.
  Now, Friday's disappointing jobs report showed that the ranks of the 
unemployed are unfortunately growing. Nonfarm payrolls actually 
decreased, as I said, by 17,000 workers last month. In fact, even 
President Bush acknowledged ``troubling signs in the economy.''
  So given these facts, I was surprised to hear Treasury Secretary 
Paulson say yesterday, in testimony before the Finance Committee, that 
he does not support including unemployment benefits in the stimulus 
package because national unemployment is only 4.9 percent, which is not 
historically high.
  What we want to do is take preemptive action to prevent the situation 
from further deterioration. We want to move now so we do not see 
unemployment rates climb, so we do not see the duration of unemployment 
continue to grow, so that we give Americans a real chance to get back 
to work; and if they are not back to work, then at least we provide 
something to sustain them in these difficult moments.
  In Rhode Island, my home State, we have reached a very high 
unemployment rate, 5.5 percent. Many other States are creeping up there 
too. We should, I think, move quickly, move decisively and support the 
Senate Finance package.
  We are also beginning to see that unemployment insurance provides a 
very good return on the investment. Mark Zandi, the economist I 
mentioned before, indicated that for every dollar the Government spends 
on unemployment insurance, it adds $1.64 to the national GDP. In other 
words, it leverages the investments we are making.
  So contrary to what some have talked about as excessive spending, 
this is exactly the targeted, temporary, timely spending that will 
accelerate, not decelerate, the economy.
  The stimulative effects of unemployment insurance will get more money 
into the hands of people who will spend it right away in their local 
communities, which is generally the whole purpose of our stimulus 
approach.
  Moreover, providing these benefits to these individuals will give 
them not just some dollars but a sense, I hope, of hope, that their 
Government is responding to their concerns and that we will respond in 
the future, if necessary.

  Making the long-term unemployed eligible for a temporary extension of 
an additional 13 weeks at this time also makes good sense and is the 
right thing to do. Two weeks ago, I wrote a letter to the majority and 
Republican leaders asking that they include unemployment insurance in 
the stimulus package, and 26 other Senators joined me.
  Senators Durbin and Kennedy have long led the fight on this issue. I 
commend them for their efforts. I hope unemployment insurance is part 
of the final package we are able to vote out of this body.
  Now, there is another aspect of the package we will consider later 
today, I hope; that is the LIHEAP support. We have seen a huge increase 
in energy costs. On average, Americans are spending about 11 percent 
more to heat their homes this winter. For Rhode Islanders who rely on 
heating oil, that is about 39 percent higher than last year in terms of 
their heating oil expenses.
  We know that the timely, targeted, and temporary aspects of stimulus 
have to be met. LIHEAP will do this. It is timely because it will be 
delivered very quickly. We have a delivery mechanism in place. It is 
also something that will fund families, low-income families, who 
desperately need this money.
  I do not have to belabor the point that today, around the kitchen 
table, people are figuring things out. They are thinking, first of all, 
they probably need to take off sending their first born or their second 
or third child to the expensive school; that may be off the table for a 
few years. But they are also talking very basically about which bills 
to pay this month? Do we pay our mortgage? Do we pay the energy bill? 
Do we pay the credit cards which we are using to buy food at the 
supermarket these days?
  I mean, these are the debates American families are having. They are 
not talking in terms that we are here, such as what is the best 
macroeconomic policy or how we can delay these expenditures, they are 
talking in terms of a real crisis in the family. We have to respond. 
One way we can respond quite clearly is with this LIHEAP money because 
that will go to one of their major concerns: How do we keep the heat on 
in the Northeast for the next several weeks and month; and in the 
Southwest, in anticipation of the grueling temperatures down there in 
the summertime, too. This additional money will provide an advance 
payment on cooling problems in the Southeast and the South, parts of 
the country that will soon encounter warm temperatures, not cold 
temperatures, which cause their energy costs to rise.
  Again, these are the households who need LIHEAP. And so we know we 
have a program that works in LIHEAP. If we can deliver additional 
resources, it will get to the families who need it, particularly 
seniors, it will get out immediately. It will add to the stimulus 
effect because as the economists--both Mr. Blinder and Mr. Zandi--
pointed out, it will leverage our investment in the economy.
  So with the escalating costs for energy I would urge my colleagues 
that we go ahead and accept this amendment, particularly the funds for 
LIHEAP. I urge us all to support the Senate Finance Committee package, 
a package that provides for greater coverage to seniors and disabled 
American veterans and also provides unemployment insurance for those 
who desperately need it and heating assistance for, again, the families 
who desperately need it.
  I hope that today, not only good sense, good economic sense, but a 
sense of our obligations to the most vulnerable in this country will 
persuade us to support this package strongly.
  The Senator from Texas.
  Mrs. HUTCHISON. Mr. President, I ask unanimous consent to speak for 
up to 10 minutes and then for Senator Crapo to have up to 10 amendments 
to speak on the FISA bill.
  The PRESIDING OFFICER. Is there objection?
  Mr. BOND. Mr. President, reserving the right to object, I think our 
colleague is going to speak in morning business. But I will be happy to 
yield to the Senator from Texas.
  The PRESIDING OFFICER. Is there objection?

[[Page S703]]

  Mrs. HUTCHISON. Was there an amendment?
  Mr. BOND. If we can yield to the Senator from Texas for 10 minutes on 
the bill, the Senator from Idaho for morning business, and then go to a 
Member on the majority side of the aisle.
  I believe there is a consensus developing for the unanimous consent 
request I have proposed.
  The PRESIDING OFFICER. Would the Senator repeat his unanimous consent 
request.
  Mr. BOND. Ten minutes to the Senator from Texas on the FISA bill, 10 
minutes in morning business for the Senator from Idaho, and then a 
member of the majority side will be recognized for whatever he or she 
wishes to do.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Texas is recognized.
  Mrs. HUTCHISON. Mr. President, I do rise to speak on the FISA bill, 
which I certainly support, and also to oppose some of the amendments 
that will be coming forward.
  I hope very much that we will be able to start voting on amendments, 
because we now have an agreement for voting on amendments, and I hope 
we can clear the FISA bill in due course and in short order. It is 
important because there is a deadline.
  We are going to see the capability for our law enforcement officials 
and our intelligence officials, to monitor calls between known 
terrorists and suspected terrorists, whether it is into our country, or 
out of our country from foreign countries, we need to have this 
capability continue.
  We have it right now. The Senate passed a good bill about 6 months 
ago. It has now been extended. But we do have a deadline, and the 
deadline is on us in the middle of this month. So we do need to pass 
this bill. We need to make sure the technology of the day is covered by 
the foreign intelligence surveillance act and subject to the security 
needs of our country.
  There are amendments that would take away the immunity for 
telecommunications companies that allegedly cooperated with 
intelligence officials.
  One amendment, No. 3907, would strip the immunity from the bill 
completely. The Intelligence Committee is the key committee that has 
looked at all of the information and assessed the need for the ability 
to survey known terrorists and suspected terrorist helpers in our 
country and in foreign countries. It is important that we allow our 
intelligence agents to go to telecommunications companies and get the 
help they need to do this kind of surveillance. Amendment No. 3907 
would take away immunization for companies that may have cooperated 
with government requests.
  The telecommunications companies allegedly assisted the intelligence 
community because of the need to assure that plots against our country 
and our citizens were uncovered before they are implemented. Now we 
have the potential for catastrophic liability from a number of 
lawsuits, and some of my colleagues want the country to turn away from 
providing protection for these companies. We will not allow these 
companies the freedom to provide the evidence in court because the 
intelligence community says the evidence is too sensitive to be allowed 
in court. We put the telecommunications companies in a situation in 
which they cooperate. They are sued. But they don't have the ability to 
defend themselves in court because they cannot produce the evidence. It 
is untenable, and I hope we will reject such an amendment.
  There is another amendment that would allow the Government to be 
substituted for the telecommunications companies as the defendant when 
they are sued. The problem with this amendment is that the companies 
would still have to spend thousands of hours and millions of dollars on 
these lawsuits. They would have to subject their employees to 
depositions. They would need to participate in evidence gathering and 
the discovery process, which will drain their resources in an 
unnecessary lawsuit in which they would be peripheral.
  There is yet another amendment that would grant the immunity after 
review by the FISA Court. While certainly well intentioned, there are 
some problems with giving this to a court that doesn't have the 
capability to process this kind of request. They don't have statutory 
procedures. They don't have the administrative capacity to receive 
witnesses, to hear evidence, or to carry out the major provisions of 
the amendment.
  Furthermore, it is unclear that there is appellate authority from the 
immunity related rulings of the FISA Court this amendment creates. The 
FISA Court has operated in secret and has been more of an 
administrative court processing warrants. So this would put the court 
in a whole new administrative mode for which there are no precedent or 
appropriate regulations. There does not appear to be an appellate 
process from the FISA Court once it decides whether or not to grant a 
company immunity.
  I respect the work of my colleagues. They are trying to find good-
faith compromises. However, I put my faith in the Intelligence 
Committee. This is a committee that passed this bill, with immunity 
provisions in it, out of committee by a vote of 13 to 2. It was 
bipartisan. This is the committee that had the hearings, heard all of 
the evidence, and knows more about the processes than people who are 
not on the committee. They have spent a considerable amount of time 
reviewing the materials in these cases, including the Government's 
legal justifications for the program. We need to respect the judgment 
and expertise of our committees, particularly the intelligence 
committee. This is a committee that has done a very good job on a 
bipartisan basis to assure that we continue to protect our intelligence 
capabilities and to shield the companies necessary to gathering 
intelligence information from unfounded lawsuits.
  I hope my colleagues will vote for the bill the Intelligence 
Committee produced. Protecting the American people is our ultimate 
responsibility. This bill is absolutely essential for that 
responsibility to be implemented. We must protect the American people. 
We must protect the companies that have helped our law enforcement and 
intelligence-gathering agencies. We must make sure we proceed with a 
vision of foreign surveillance that would protect the American people 
from future attack.
  It is not an accident that we have not been attacked since 9/11. All 
of us know that our country was not prepared for this kind of warfare. 
But our country's eyes have been opened. We have been a sleeping giant 
in many ways, as was said about us before World War II. But we have now 
been awakened, and we are going to take the measures necessary within 
the framework of our Constitution, which this bill provides, to assure 
that we protect the American people from future attack.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator from Idaho is recognized for 10 minutes as in morning business.


       Secure Rural Schools and Community Self-Determination Act

  Mr. CRAPO. I thank the Senator from Texas and my colleagues on both 
sides for allowing me this few minutes to have a break in the debate on 
the FISA bill to discuss a very important issue to the people of Idaho 
and, frankly, to the people in rural communities throughout the 
country. I rise to talk about the need to reauthorize the Secure Rural 
Schools and Communities Self-Determination Act of 2000 and to fully 
fund the payments in lieu of taxes, or the PILT payments, which we call 
them in Congress. I encourage my colleagues to make this overdue 
extension and funding a top priority for Congress in the coming days.
  This year marks the 100-year anniversary of the passage of the act 
requiring the U.S. Forest Service to return 25 percent of its gross 
receipts to the States to assist counties that are home to our national 
forests and other Federal lands with school and road services. This 
program was put into place to compensate local governments for the tax-
exempt status of national forests which we all enjoy. Otherwise, many 
rural communities that neighbor these beautiful national treasures are 
unable to fully meet the school and road needs of their communities.
  One hundred years ago, the impact of large Federal forest reserves on 
neighboring local economies was discussed and debated on the floor of 
the Senate, as former Idaho Senators Weldon B.

[[Page S704]]

Hayburn and William Edgar Borah joined their Senate colleagues in 
debating this issue which remains an issue today. However, the 
unfortunate reality of today is that in recent years, timber receipts 
have eroded to the point that the Federal obligation to our local 
communities is simply not being met. The receipts are not adequate for 
the needs of the communities and have been dropping off dramatically. 
Congress has acted in recognition of this to ensure that communities 
have the necessary assistance.
  In the year 2000, I joined with my colleagues, Senators Larry Craig, 
Ron Wyden, Gordon Smith of Oregon, and many others to support and 
secure enactment of the Secure Rural Schools and Communities Self-
Determination Act of 2000. This law provided the necessary assistance 
known as county payments to communities where regular Forest Service 
and Bureau of Land Management receipts-sharing payments had declined so 
significantly. The assistance has prevented the loss of essential 
school and road infrastructure needs in our local rural communities. 
The law also enabled very significant forest improvement projects.
  The best solutions to natural resource challenges are achieved 
through local collaboration, and the more than 70 Resource Advisory 
Committees--or RACs, as we call them--provided for in this law have 
created valuable partnerships in carrying out projects to address a 
wide variety of improvements on public lands. These projects include 
habitat and watershed restoration, reforestation, fuels reduction, road 
maintenance, campground and trail enhancements, and noxious weed 
eradication. At a time when increased public demands are being placed 
on our Nation's natural resources, the RACs have provided the necessary 
cooperation to help resolve natural resource challenges throughout 
these local rural communities.
  Additionally, payments in lieu of taxes, known as PILT payments, have 
augmented county payments to provide local governments with the means 
of offsetting a part of the tax revenues they lose because of the tax-
exempt status of these Federal lands in their jurisdictions. PILT 
payments have supported community services such as firefighting and 
police protection in rural communities. Through PILT, the Federal 
Government partners with counties to provide public lands the 
stewardship and community services they need. Unfortunately, PILT 
funding is also not meeting this obligation, and we need to work 
together in Congress to achieve full and adequate PILT funding.

  I am proud of the largely bipartisan effort in the 110th Congress to 
extend the Secure Rural Schools and Community Self-Determination Act 
and to fully fund PILT. Progress has been made but more needs to be 
done to achieve the Federal Government's commitment to these 
communities.
  In March of 2007, the Senate overwhelmingly passed an amendment which 
I cosponsored to the fiscal year 2007 emergency supplemental 
appropriations act to reauthorize county payments for 5 years with 
offsets. However, this language was replaced with a 1-year extension, 
with the final payments made at the end of December 2007.
  In December last year, Senators McCaskill, Craig, Smith, Dole, 
Murkowski, Stevens, and Bennett joined me in urging the Senate 
leadership to attach a reauthorization of county payments and PILT 
funding to any legislative vehicles expected to be enacted before 
Congress concluded its work last year. Unfortunately, the 
reauthorization was attached only to the energy package which also 
would have increased taxes on domestic oil and gas producers to pay for 
incentives for renewable power, energy efficiency, electric vehicles, 
and other technologies.
  I support incentives for alternative energy resources and the 
extension of county payments, but I am opposed to paying for those 
incentives by increasing taxes on our domestic oil and gas production. 
We are facing real and increasing constraints on our energy supply, 
resulting in higher energy costs daily. We simply cannot meet those 
needs by decreasing conventional energy production in the United 
States, which would further our dependency on foreign energy supplies 
and dramatically increase the cost for gasoline and electricity. This 
would negatively impact communities across the Nation, not just the 
rural communities we are seeking to help.
  We need to again turn our attention to focusing on the 
reauthorization of the Secure Rural Schools legislation and increasing 
and achieving full and adequate PILT funding. It is unfortunate that 
the county payments extension was dropped from the enacted Energy bill 
and was not included in other legislative vehicles before the end of 
last year. However, today is another day. As we embark on the second 
session of this Congress, we have every opportunity to work together to 
extend and fund county payments and fully pay for PILT payments for 
students in rural areas. We must do this to prevent the closure of 
numerous isolated schools and to enable rural county road districts to 
address severe maintenance backlogs.

  Time is of the essence for many rural communities across the Nation, 
and this important legislation impacts millions of students and their 
families in more than 4,000 school districts and more than 7,000 
counties. I am hearing from Idaho communities that, absent an 
extension, personnel layoffs as a result of program closures are 
expected soon. Communities in more than 40 States are facing similar 
pressures.
  Just as the economic impact of Federal land ownership on neighboring 
rural communities has not been worn away by time, neither has this 
Nation's responsibility to the States worn away. It is my hope that 
others will join me in working to meet this Federal responsibility by 
reauthorizing the Secure Rural Schools Act and providing the full 
funding for PILT. This must be achieved in a timely manner that 
prevents the cutoff of needed services in rural communities nationwide 
and provides some long-term certainty to those rural communities.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I ask that I be given unanimous 
consent to speak on the underlying bill.
  The ACTING PRESIDENT pro tempore. Without objection, the Senator is 
recognized.
  Mr. ROCKEFELLER. Mr. President, I say to the Presiding Officer that 
far and away the most contentious issue in this FISA debate is whether 
private companies that assisted the Government in implementing the 
President's warrantless surveillance program should be provided 
liability protection.
  Three amendments will be offered that relate directly to this issue.
  First, Senators Dodd and Feingold have an amendment that would strike 
all of title II of the underlying bill--that is, S. 2248--on liability 
protection as reported by the Intelligence Committee.
  Second, Senator Specter will offer an amendment--I think at 3:30--
that provides for a different remedy; namely, the substitution of the 
U.S. Government itself for the carriers in the lawsuits that have been 
filed against the carriers.
  Third, Senator Feinstein has prepared an amendment that would keep 
the basic structure of title II--to wit, liability immunity--but would 
have the courts, rather than the Congress, determine whether carriers 
relied in good faith on the representation made to them by the 
executive branch of our National Government.
  I will address the particulars of each amendment as it is offered, 
but first I would like to describe the background behind the 
Intelligence Committee's approach to this whole issue of immunity.
  Critics have suggested that providing liability protection for 
telecommunications companies is akin to congressional endorsement of 
the President's warrantless surveillance program. I understand the 
passion stirred by this issue. Rather than consulting with Congress or 
the courts, the President created a secret surveillance program--no 
question about that--based on very dubious legal reasoning. That was 
unnecessary, that was unwise, that would, therefore, cause passions and 
suspicions.
  But anger over the President's program should not prevent us as a 
deliberative body from addressing the real problems the President has 
created.

[[Page S705]]

Because of the lawsuits over the program and the damage to the 
telecommunications companies' reputations, companies that were once 
willing to help the Government, based on assurances of legality from 
the highest levels of Government, may now be questioning that 
assistance.
  Let's reflect on that for a moment. These are corporations. They have 
no names at the present time. They have to make money. The Government 
comes to them, as they have in the past on much smaller matters, and 
with the authority of the President saying, this is in the national 
interest; with the legal advice of the Attorney General saying, this is 
legal; and then the Director of the National Security Agency sending 
out letters that say, we require you, we compel you, we request to 
you--or other words--that you cooperate with us.
  People say: Well, they cooperated. Of course they cooperated right 
after 9/11. I think anybody who is in the intelligence business 
understands what I am saying. There is no difference between the day 
after 9/11 and this day in terms of the threat to our country or those 
who are planning, plotting to do us harm.
  The fact that no attacks have happened does not excuse the sense of 
relaxation on the whole subject--perhaps the congressional sense of 
relaxation on the whole subject. We need to continue this intelligence 
collection.
  What is it, I am wondering, that the telecommunications companies get 
from this? What prestige? What large amount of money? What praise? What 
do they get from this? Do they get good public relations? No. They get 
40 lawsuits, most of which are not based on anything to do with the TSP 
program. In other words, they are picked out of newspapers. People are 
dissatisfied, and class action suits arise.
  So maybe they have been sued $10 billion. Maybe they have been sued 
$40 billion. We will not speculate on that at the present time. But in 
that they are corporations and in that they have no reward at all for 
doing this service for their country--which we call patriotism, and 
then cast that aside because that must mask some evil intent--they go 
ahead and they do it. Then, since they are corporations, their 
shareholders get extremely unhappy about it, which could be happening 
at the present time, and then they decide that maybe they will be less 
willing to do this. Several have done that. Several at the beginning 
did that.
  Now, corporations are in business also to make a profit. The 
corporations that are involved in this are doing nothing but losing 
prestige, losing reputation, have angry shareholders. And I ask myself, 
what is it they get out of doing this, because people, particularly on 
my side of the aisle, are sometimes inclined to be suspicious of 
corporations, that they have some kind of a purpose behind all of this. 
Nothing could be further from the truth. They are losing. They are 
being criticized. They are being sued. It is costly. It takes away from 
their energy to carry out their other missions. It is not a situation 
in which a whole bunch of people are sitting around in these corporate 
headquarters discussing this, because only a very few people are 
allowed to know, and they have criminal sanctions against them if they 
tell anybody, should they have received any of these instructions from 
the Government.
  So we are not talking about people here trying to undo the safety of 
the United States or to gain some kind of advantage for themselves. If 
this intelligence collection stops, I say to the Presiding Officer, we 
will be in a very sorry situation. I do not know how to say that more 
sincerely, more deeply felt, more based upon exhaustive study, 
including numerous meetings in committee with these folks and other 
meetings outside.

  So they have been told it is legal, and by the National Security 
Agency Director they have been required, compelled, and in other words, 
some of which are quite strong, to do it. So they do start to do it, 
and they are paying one heck of a price for it.
  What price are we paying? We are paying no price because they are 
still doing it. What price might we pay should they stop--because they 
are corporations, and they are responsible to their shareholders--if 
they should stop this type of activity? The price we would pay would be 
overwhelming. Without the cooperation and assistance of private 
companies--not compliance forced by a court but true cooperation--this 
country's law enforcement and intelligence agencies cannot obtain the 
information they need to protect this country. It is a fairly heavy 
statement to make. I chair the committee. I am not naive on these 
matters. I make that statement again. Without the cooperation and 
assistance of private companies, this country's law enforcement and 
intelligence agencies cannot obtain the information they need to 
protect this country.
  Making the question of liability protection a proxy for disagreement 
with the President's program is, therefore, shortsighted, in this 
Senator's view, ignoring the reality that the Nation and future 
Presidents will depend on the assistance of these same companies for 
years to come.
  In analyzing the question of liability protection, the Intelligence 
Committee sought to weigh these very real concerns about future 
intelligence collection against the possible outcome of lawsuits. We 
discussed it at length. Understanding this issue requires some 
background on the lawsuits that have been filed.
  Currently, providers are subject to approximately, as I indicated, 40 
civil lawsuits, some of which are class actions, which seek billions of 
dollars of damages--and I have given you a range--for privacy 
violations based on the companies' alleged provision of assistance and 
information to the intelligence community. The suits are based--many of 
them--on media reports about all sorts of intelligence activities. Many 
of them are not limited to the warrantless surveillance program 
disclosed by the President. That is ironic, but it is a heavy burden 
for the companies. If suits are brought that have nothing to do with 
the warrantless surveillance program disclosed by the President, they 
are out of order. But, as I will proceed to explain, the companies can 
never explain to a court that they are out of order. Although these 
suits involve different types of legal claims that are in varying 
stages of litigation, they share a common reality: that the Government 
has refused to publicly reveal the classified documents and information 
that would allow them to proceed.

  The current fight in the courts is, therefore, not about whether 
damages should be awarded, whether the underlying program is legal or 
even whether any company participated in the President's program in 
good faith. Instead, the parties are fighting about access to 
classified information about the President's program. I have not heard 
that much discussed in this Chamber. This litigation could continue for 
years without a court ever addressing the underlying issues about the 
legality of the program. We seek wrongdoing whether, as some say, it is 
in the corporate boardroom or, as others would say--as I would say--in 
the halls of Government.
  I stress the point: No court is likely to resolve the question of 
whether the President or any private company violated the law in the 
near future.
  Some of my colleagues have argued that without these lawsuits, the 
public will never learn the details about the President's program. But 
litigation is highly unlikely to tell the story of what happened with 
the President's program. Too many of these facts dealing with 
intelligence sources and methods remain appropriately classified, and 
the executive branch is highly unlikely to agree to declassify 
additional information if it could affect the ongoing litigation.
  Thus, the litigation is unlikely to result in a ruling in the near 
future about the legality of the conduct of the President nor any 
private company, nor, for that matter, the public disclosure of any 
additional information about the President's program. Instead, it is 
possible the cases, as I indicated, will continue for years as the 
courts debate whether information must be disclosed.
  In the meantime, however, as I mentioned, the litigation poses a 
serious risk to U.S. intelligence collection. That is my job and that 
is the job of the committee I chair and the job of the chairman of the 
Intelligence Committee in the House. We are not about being courts, we 
are about trying to balance civil liberties as best as we can

[[Page S706]]

with the ability of this country to collect an entirely different kind 
of intelligence that we were so busy doing recently in the Cold War 
era. Without the assistance of telecommunications providers, our 
intelligence community simply cannot obtain the intelligence it needs.
  Is that a serious statement? Do Members of the Senate concern 
themselves with that? Is this just me, this Senator, standing up making 
a statement trying to win some votes? Or is there the possibility it 
could be true? If there is a possibility--and I think it is a 
probability it is true--then I don't understand why people can be 
confused on this subject because I think the choices are clear. 
Allowing companies to be dragged through the court system because of 
their alleged cooperation with the Government encourages them not to 
cooperate with any request, even those that are clearly legal without 
court compulsion. It also sends a message to all private companies: 
cooperate with the U.S. Government at your peril. Is that a bit of an 
overstatement? In the corporate boardrooms around this country, my 
guess is that is the discussion. Very few corporations have the 
capacity to help the Government in the way telecommunications companies 
do.
  Discouraging private sector cooperation with the Federal Government 
is not, in the feeling of this Senator, the right long-term result for 
either the intelligence community or the American people.
  Many have argued that providers who act unlawfully should be held 
accountable. I totally agree that all Americans, including corporate 
citizens, must follow the law and be held accountable for their 
failures. Companies that deliberately seek to evade privacy laws or 
legal restrictions on electronic surveillance can and should be subject 
to civil suit, but that is not the issue here, I would say to the 
Presiding Officer. That is not the issue.
  The Intelligence Committee spent a lot of time, as I have indicated, 
this year looking into what happened over the past 6 years. Before 
deciding to provide liability protection for the companies, the 
Intelligence Committee heard testimony from relevant witnesses and 
carefully reviewed the written communications provided to participants 
in the program.
  Participants were sent letters, all of which stated the relevant 
activities had been authorized by the President and all but one--and 
that was done by the legal counsel to the President--of which stated 
the activities had been determined to be lawful by the Attorney General 
of the United States. Shouldn't private companies be entitled to rely 
on the written representations of the highest levels of Government 
officials that their cooperation is necessary and has been determined 
to be lawful? Can you argue that if they get those notifications from 
the NSA Director and it has been approved by the Attorney General and 
has been declared essential for the national interest by the President, 
should they instead say: Oh, well, we don't care about that. That is 
not our business. We are not going to do that.
  And isn't it reasonable to assume that a U.S. citizen who has been 
told the Attorney General has found their cooperation to be lawful is 
acting in good faith? If they have been through this process and they 
proceed to act on it, why is it so easy to stipulate they are not 
acting in good faith? How does one show that? How does one imagine 
that?
  I have been through this, this whole question of what the companies 
get from it, and it is the thing that bothers me so much. They get 
nothing but grief. They get suits. They get costs. They get a 
diminished reputation. They begin to pull away. Their shareholders lose 
confidence. Do they get money? No. They get nothing. So why would they 
want to continue to cooperate would be my question.
  The answer to these questions are at the heart of the Intelligence 
Committee's determination that it is essential that Congress protect 
private companies that assisted the Government after the terrorist acts 
of 9/11.
  Mr. President, I will complete this part of my presentation and yield 
the floor. I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that at 3:05 
p.m. today the Senate return to the Cardin amendment No. 3930, with the 
time from 3:05 until 3:15 equally divided and controlled in the usual 
form; that the Senate then proceed to vote in relation to the 
amendment, with other provisions of the previous order remaining in 
effect.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. BOND. No.
  Mrs. FEINSTEIN. Mr. President, reserving the right to object, I wish 
to secure the ability, following this vote, to call up one of my 
amendments, if I might. My understanding is that maybe I can do it now.
  Mr. ROCKEFELLER. This is a total of 10 minutes or less amendment, but 
we will not start until 3:05. The Senator can call it up.
  Mrs. FEINSTEIN. All right.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Without objection, it is so ordered.
  The Senator from California is recognized.


                Amendment No. 3910 to Amendment No. 3911

  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the 
present amendment be set aside in order for me to call up amendment No. 
3910 on FISA exclusivity.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from California [Mrs. Feinstein], for herself, 
     Mr. Rockefeller, Mr. Leahy, Mr. Nelson of Florida, Mr. 
     Whitehouse, Mr. Wyden, Mr. Hagel, Mr. Menendez, Ms. Snowe, 
     and Mr. Specter, proposes an amendment numbered 3910.

  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that reading 
of the amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

   (Purpose: To provide a statement of the exclusive means by which 
electronic surveillance and interception of certain communications may 
                             be conducted)

       Strike section 102, and insert the following:

     SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC 
                   SURVEILLANCE AND INTERCEPTION OF CERTAIN 
                   COMMUNICATIONS MAY BE CONDUCTED.

       (a) Statement of Exclusive Means.--Title I of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) is amended by adding at the end the following new 
     section:


  ``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND 
        INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED

       ``Sec. 112.  (a) Except as provided in subsection (b), the 
     procedures of chapters 119, 121 and 206 of title 18, United 
     States Code, and this Act shall be the exclusive means by 
     which electronic surveillance (as defined in section 101(f), 
     regardless of the limitation of section 701) and the 
     interception of domestic wire, oral, or electronic 
     communications may be conducted.
       ``(b) Only an express statutory authorization for 
     electronic surveillance or the interception of domestic wire, 
     oral, or electronic communications, other than as an 
     amendment to this Act or chapters 119, 121, or 206 of title 
     18, United States Code, shall constitute an additional 
     exclusive means for the purpose of subsection (a).''.
       (b) Offense.--Section 109 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
       (1) in subsection (a), by striking ``authorized by 
     statute'' each place it appears in such section and inserting 
     ``authorized by this Act, chapter 119, 121, or 206 of title 
     18, United States Code, or any express statutory 
     authorization that is an additional exclusive means for 
     conducting electronic surveillance under section 112.''; and
       (2) by adding at the end the following:
       ``(e) Definition.--For the purpose of this section, the 
     term `electronic surveillance' means electronic surveillance 
     as defined in section 101(f) of this Act regardless of the 
     limitation of section 701 of this Act.''.
       (c) Conforming Amendments.--
       (1) Title 18, united states code.--Section 2511(2) of title 
     18, United States Code, is amended--
       (A) in paragraph (a), by adding at the end the following:
       ``(iii) If a certification under subparagraph (ii)(B) for 
     assistance to obtain foreign intelligence information is 
     based on statutory authority, the certification shall 
     identify the

[[Page S707]]

     specific statutory provision, and shall certify that the 
     statutory requirements have been met.''; and
       (B) in paragraph (f), by striking ``, as defined in section 
     101 of such Act,'' and inserting ``(as defined in section 
     101(f) of such Act regardless of the limitation of section 
     701 of such Act)''.
       (2) Table of contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.) is amended by adding after the item 
     relating to section 111, the following:

``Sec. 112. Statement of exclusive means by which electronic 
              surveillance and interception of certain communications 
              may be conducted.''.

  Mrs. FEINSTEIN. Mr. President, I voted for this FISA legislation in 
the Intelligence Committee. I indicated then that I had some concerns 
about it. I filed additional views with respect to the need for 
stronger exclusivity provisions. Then the Judiciary Committee reported 
out a bill that included its view with respect to strengthening the 
fact that the Foreign Intelligence Surveillance Act would be the 
exclusive manner in which electronic surveillance against Americans 
could be conducted.
  The Judiciary bill subsequently failed on the floor of the Senate. 
The amendment I have at the desk is essentially the exclusivity 
language from that Judiciary Committee amendment. It has several 
cosponsors: the chairman of the Intelligence Committee, Mr. 
Rockefeller; chairman of the Judiciary Committee, Mr. Leahy; Senator 
Nelson of Florida; Senator Whitehouse; Senator Wyden; Senator Hagel; 
Senator Menendez; Senator Snowe; and Senator Specter.
  As filed this is an amendment that only covers exclusivity. In the 
interim period, the vice chairman of the Intelligence Committee 
approached me about the possibility of a modification of the amendment 
that would allow the administration to be able to operate outside of 
FISA for a time.
  We have not been able to come to terms on that amendment. I could not 
agree to the length of time that Mr. Bond proposed, which was 45 days 
plus an additional 45 days, for a total of 3 months, enabling the 
administration to operate without a FISA warrant.
  The fact is, since January of 2007, the entire Terrorist Surveillance 
Program has operated within the confines of the Foreign Intelligence 
Surveillance Act and under orders from the Foreign Intelligence 
Surveillance Court. That is, I believe, as it should be.
  I have a modification to my exclusivity amendment that would limit 
the period of time outside of FISA following a declaration of war, an 
authorization for the use of military force, or a major attack against 
the nation to 30 days. The question is whether I would have unanimous 
consent from the vice chairman to be able to call up that modification 
of my amendment. But that has not been given to me yet.
  So at this time, I am going to rest my case on the exclusivity 
amendment, and I will have an opportunity, I hope, to argue it later.
  I would now like to call up my amendment, No. 3919.
  The PRESIDING OFFICER (Mr. Sanders). Amendment No. 3910 is pending.


                Amendment No. 3919 to Amendment No. 3911

  Mrs. FEINSTEIN. Mr. President, I wish to make another amendment 
pending, so I ask unanimous consent to set aside the pending amendment 
and call up amendment No. 3919. This is the FISA Court review of 
immunity amendment. This is my second amendment which is part of the 
unanimous consent agreement. I do this just to get it before the body.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The bill clerk read as follows:

       The Senator from California [Mrs. Feinstein], for herself, 
     Mr. Nelson of Florida, and Mr. Cardin, proposes an amendment 
     numbered 3919 to amendment No. 3911.

  The amendment is as follows:

 (Purpose: To provide for the review of certifications by the Foreign 
                    Intelligence Surveillance Court)

       On page 72, strike line 13 and all that follows through 
     page 73, line 25, and insert the following:
       (6) Foreign intelligence surveillance court.--The term 
     ``Foreign Intelligence Surveillance Court'' means the court 
     established under section 103(a) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1803(a)).
       (7) Foreign intelligence surveillance court of review.--The 
     term ``Foreign Intelligence Surveillance Court of Review'' 
     means the court of review established under section 103(b) of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803(b)).

     SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC 
                   COMMUNICATION SERVICE PROVIDERS.

       (a) Limitations.--
       (1) In general.--Notwithstanding any other provision of 
     law, and subject to paragraph (3), a covered civil action 
     shall not lie or be maintained in a Federal or State court, 
     and shall be promptly dismissed, if the Attorney General 
     certifies to the court that--
       (A) the assistance alleged to have been provided by the 
     electronic communication service provider was--
       (i) in connection with an intelligence activity involving 
     communications that was--

       (I) authorized by the President during the period beginning 
     on September 11, 2001, and ending on January 17, 2007; and
       (II) designed to detect or prevent a terrorist attack, or 
     activities in preparation for a terrorist attack, against the 
     United States; and

       (ii) described in a written request or directive from the 
     Attorney General or the head of an element of the 
     intelligence community (or the deputy of such person) to the 
     electronic communication service provider indicating that the 
     activity was--

       (I) authorized by the President; and
       (II) determined to be lawful; or

       (B) the electronic communication service provider did not 
     provide the alleged assistance.
       (2) Submission of certification.--If the Attorney General 
     submits a certification under paragraph (1), the court to 
     which that certification is submitted shall--
       (A) immediately transfer the matter to the Foreign 
     Intelligence Surveillance Court for a determination regarding 
     the questions described in paragraph (3)(A); and
       (B) stay further proceedings in the relevant litigation, 
     pending the determination of the Foreign Intelligence 
     Surveillance Court.
       (3) Determination.--
       (A) In general.--The dismissal of a covered civil action 
     under paragraph (1) shall proceed only if, after review, the 
     Foreign Intelligence Surveillance Court determines that--
       (i) the written request or directive from the Attorney 
     General or the head of an element of the intelligence 
     community (or the deputy of such person) to the electronic 
     communication service provider under paragraph (1)(A)(ii) 
     complied with section 2511(2)(a)(ii) of title 18, United 
     States Code, and the assistance alleged to have been provided 
     was provided in accordance with the terms of that written 
     request or directive;
       (ii) subject to subparagraph (C), the assistance alleged to 
     have been provided was undertaken based on the 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 
     compliance with the written request or directive was lawful; 
     or
       (iii) the electronic communication service provider did not 
     provide the alleged assistance.
       (B) Procedures.--
       (i) In general.--In reviewing certifications and making 
     determinations under subparagraph (A), the Foreign 
     Intelligence Surveillance Court shall--

       (I) review and make any such determination en banc; and
       (II) permit any plaintiff and any defendant in the 
     applicable covered civil action to appear before the Foreign 
     Intelligence Surveillance Court pursuant to section 103 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803).

       (ii) Appeal to foreign intelligence surveillance court of 
     review.--A party to a proceeding described in clause (i) may 
     appeal a determination under subparagraph (A) to the Foreign 
     Intelligence Surveillance Court of Review, which shall have 
     jurisdiction to review such determination.
       (iii) Certiorari to the supreme court.--A party to an 
     appeal under clause (ii) may file a petition for a writ of 
     certiorari for review of a decision of the Foreign 
     Intelligence Surveillance Court of Review issued under that 
     clause. The record for such review shall be transmitted under 
     seal to the Supreme Court of the United States, which shall 
     have jurisdiction to review such decision.
       (iv) State secrets.--The state secrets privilege shall not 
     apply in any proceeding under this paragraph.
       (C) Scope of good faith limitation.--The limitation on 
     covered civil actions based on good faith reliance under 
     subparagraph (A)(ii) shall only apply in a civil action 
     relating to alleged assistance provided on or before January 
     17, 2007.

  Mrs. FEINSTEIN. I ask that the amendment be set aside.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Maryland.


                           Amendment No. 3930

  Mr. CARDIN. Mr. President, shortly we will be voting on the amendment 
I offered that provides for a 4-year sunset in the Foreign Intelligence 
Surveillance Act.
  I thank first Senator Rockefeller for his help, Senator Leahy, 
Senator

[[Page S708]]

Mikulski, Senator Kennedy, and others who have been instrumental in 
making sure that we have provisions in this bill so that we continue 
our congressional oversight.
  This amendment is not unusual. Every major change in the FISA law has 
been accompanied by a sunset. When we passed the PATRIOT Act, we had a 
4-year sunset on most of the provisions. When we revised it, we had a 
3-year sunset on the most controversial provisions. When we passed the 
Protect America Act, we had a very short sunset on it because we were 
not certain we were getting it right.
  This change is controversial. If my colleagues think it is not 
controversial, look at all the debate that has taken place on the floor 
of this body. We want to make sure that we get it right.
  It is interesting that as we get close to the time when Congress has 
to act, we seem to get a lot more cooperation from the executive branch 
of Government. The sunset will ensure that we get the type of 
cooperation we need to carry out our responsibilities, to get the 
documents we need to make sure we get it right.
  As I pointed out, technology is changing quickly. I think a 4-year 
period is reasonable for us to take a fresh look at this issue.
  This is not a question of whether we should have a sunset in the 
bill. There is a 6-year sunset in the bill. So why is it so important 
to have a 4-year sunset versus a 6-year sunset? The answer, quite 
frankly, is we want the next administration that is going to take 
office in January to focus on this issue and work with us so they can 
operate collectively with the authority of Congress and the laws we 
pass in the executive branch. It is important that the next 
administration focus on this issue, and that is why this amendment is 
particularly important.
  My friend from Missouri pointed out that this is an election year. 
No, it is not. The sunset provision would terminate in December of 
2011, so it is a year before the elections. I think it is the right 
time for a sunset.
  I know the administration does not want any sunset in this bill. I 
understand that. As I pointed out before, they don't want any 
congressional oversight. They don't even think they need congressional 
laws on this subject. They don't even think they need a Congress. But 
we have our responsibility, and I hope we would want this issue 
revisited during the next administration. I urge my colleagues to 
support the amendment.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, we have discussed this issue before on the 
floor. I urge my colleagues to vote against this amendment. As I have 
stated previously, the current bill, the Protect America Act, had a 6-
month sunset on it only because we were not able to bring a full, 
complete FISA modernization bill to the floor, given the failure of 
Congress to act. We had been requested in April, May, June, and July to 
change the law. This is a bill that should establish a permanent 
operating authority for the intelligence community and the private 
partners who work with it.
  As part of the compromise we reached in passing the bill, I did not 
believe we should have a sunset, but we agreed on a 6-year sunset. That 
was part of the deal. The 6-year sunset at least gives us certainty 
over the 6 years in time, that both the intelligence agencies, our 
private partners, and our allies abroad who depend upon us would have 
time to make this system work.
  The problem we face is that any sunset withholds from our 
intelligence professionals and the private partners the certainty and 
the permanence they need to protect Americans from terrorism and other 
threats to national security.
  Attorney General Mukasey has said there are no fatwahs with 
limitations by the terrorist leaders who seek to do us harm. They put 
out orders to keep trying to kill us, and these are not going to go 
away. There should be no sunset on this bill.
  I disagree very strongly with my friend from Maryland that Congress 
is an important part of this. We passed a good bill that adds far more 
protections than Americans have ever had in intelligence collection. 
This bill is a good bill, but I can assure him that we have a strong 
bipartisan committee and a strong staff that will continue to oversee, 
supervise, and watch the surveillance to make sure it works. If we find 
it does not work, we should not wait for a 4-year sunset or a 6-year 
sunset. We should make those changes when they are needed.
  We can see how long we have had to fight to get this authorization 
through. There was no action from the majority from April, May or June, 
until the very end of July. We put this bill out on the floor in 
October. We could not get the bill up in December because of 
filibusters. We had to get another 15-day extension so it would not 
expire.
  We can act on the bill any time we need, but we cannot deprive our 
partners, our intelligence community, and our allies the protection if 
Congress cannot work.
  I yield time to the distinguished chairman of the committee.
  Mr. ROCKEFELLER. I say to the Presiding Officer, I find myself in 
disagreement with my vice chairman. I originally wanted 4 years and we 
went to 6 years because of accommodations that yielded other results. 
In the wisdom of the joint Intelligence Committee and Judiciary 
Committee, settling on 4 years makes a lot of sense. I urge the 
adoption of the amendment.
  Mr. KENNEDY. Mr. President, the amendment that Senator Cardin has 
offered is very simple, but it is absolutely critical to this bill. The 
amendment would move up the bill's sunset date from 6 years to 4 years. 
Congress would need to revisit the law by the end of 2011 instead of 
2013.
  The amendment is good public policy. Whenever a significant new law 
is enacted, it is important to require Congress to revisit it at an 
earlier rather than a later date.
  The FISA bill we are considering is highly complicated legislation 
affecting Americans' security and liberty. It grants the executive 
branch vast new authority for electronic surveillance at a time of 
rapidly changing technology and rapidly changing threats. Even the 
country's leading national security experts cannot say for sure what 
our national security challenges will look like in 3 years, much less 
how this legislation will work out in practice.
  This is also highly controversial legislation. I don't need to remind 
anyone in this Chamber of the intense debate that has been taking place 
over many parts of this bill. The FISA rules on electronic surveillance 
affect every American. They are the only thing that stands between the 
freedom of Americans to make a private phone call, send a private e-
mail, or search the Internet, and the ability of the Government to 
listen in on the call, read the e-mail, and review the Internet search.
  In this information age, FISA gives Americans basic protection 
against Government tyranny and abuse, and we owe it to the American 
people to revisit it promptly to make sure its protections are 
effective.
  Congress also needs an earlier sunset because we need more 
information to assess how these new policies will work in practice. The 
ongoing confusion and controversy in this area mean that Congress does 
not have enough knowledge or confidence to be sure the legislation is 
adequate.
  With an early sunset, Congress will have to make an early assessment 
of how the legislation is being interpreted and implemented. We will be 
able to identify problems and abuses much sooner. If changes are made 
to the law in 2011, it will be because experience has shown that 
changes are needed.
  We passed this exact same amendment in the Judiciary Committee in the 
middle of November, and in the weeks since then, I have heard only two 
arguments against it, both from the White House. Neither of them holds 
up.
  The first objection is that there has already been sufficient 
consideration of these issues, so that Congress should be able to pass 
a permanent FISA reform right now. Everyone agrees that short sunsets 
are valuable when Congress has not had time to consider an issue 
thoroughly and develop a factual record. But the Bush administration 
claims there has already been a detailed and informed discussion of 
FISA modernization.

[[Page S709]]

  That objection is wrong on the facts. The administration has recently 
started to work with Congress more openly, but there is still a great 
deal we don't know about how it has been conducting its electronic 
surveillance. Much of what we have learned has come from leaks to the 
press.
  A few months ago, the White House decided to share with the Senate 
certain documents on the role of the telecommunications companies in an 
effort to obtain retroactive immunity for them. This was the first time 
the administration had ever shown Congress any documents on its 
warrantless surveillance. So far, however, the White House has shared 
only a small number of documents with a small number of Senators--and 
until late last month, not with any Members of the House of 
Representatives. Such selective disclosure is a pale shadow of the real 
disclosure Congress needs to enact good legislation.
  That objection is also wrong as a matter of policy. No matter how 
much discussion there may have been, this is highly complicated 
legislation that makes major, untested changes in our surveillance 
laws. It is impossible for Congress to analyze these issues in the 
abstract, without any track record to evaluate. With a law as complex, 
new, and important as this, a short sunset is responsible policy.
  The second objection I have heard is that a short sunset introduces 
too much uncertainty to the rules affecting our intelligence 
professionals. The administration says it is not efficient for agencies 
to develop new policies and procedures, only to have the law change 
within a brief period. They say the intelligence community operates 
more effectively when the rules governing intelligence professionals 
are well-established, and are not in doubt.
  This objection is more serious, but it too dissolves upon 
consideration. It is true that there may be a little extra uncertainty 
that comes with a short sunset. But the much more significant 
uncertainty is whether all of the changes made by this bill will be 
good for the country--and there is no way to be sure about this ahead 
of time.
  Intelligence professionals should not be locked into a surveillance 
system that doesn't work well for them, and Americans should not be 
locked into a system that fails to protect their security or their 
rights. The early sunset guarantees that Congress will review these 
extremely complicated, untested, and powerful new authorities and how 
they are actually being used by the executive branch.
  The administration's argument against a sunset is an argument against 
congressional oversight of FISA. The White House wants Congress to pass 
a new FISA law, and then to look the other way while the executive 
branch implements and interprets its new powers. They want Congress to 
trust them when they tell us how the law is working, rather than look 
into it ourselves.
  Given this administration's track record of warrantless illegal 
spying, ``trust us'' is not an acceptable way to proceed. Congress 
needs to stay on top of this issue to make sure that our surveillance 
laws are keeping Americans safe and protecting their freedom. That is 
what we have been elected to do, and that is what the Constitution 
requires us to do.
  As I said at the start, this amendment is very simple. It moves the 
sunset date up by 2 years. Yet it may well be the single most important 
thing Congress can do to ensure that we reform FISA in a responsible 
and effective way.
  This sunset amendment is a win-win for national security and civil 
liberties. It will ensure that Congress remains engaged on the crucial 
issues of electronic surveillance that affect all Americans. To make 
sure that our new FISA law actually gets the job done, I urge my 
colleagues to adopt this amendment.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Mr. President, let me briefly summarize the comments 
Senator Bond made. It is true that the terrorist groups do not have any 
types of restrictions on what they can do. They do not have any 
legislature. They do not have any courts. They do not have any 
constitution. They have no respect for human life. They have no civil 
liberties with which they have to deal. But that is what makes this 
Nation the great nation it is. It is our responsibility to make sure 
that we carry out what the people of our Nation expect us to do.
  Let me point out that the PATRIOT Act, when it was passed, had a 4-
year sunset. Then we reauthorized some of the provisions, but we kept a 
3-year sunset. We have used sunsets that have been shorter, and on 
controversial laws, a 4-year sunset is the minimum we should have.
  I urge my colleagues to understand that it is important that the next 
administration work with us so we never get back to where we are this 
year, where the executive branch is heading in one direction and we 
don't know what they are doing. Let's work together so we can keep 
Americans safe, having the administration work with us next year so we 
understand what they are doing, they have our support and, if 
necessary, we modify the laws to give them the tools they need to keep 
America safe.
  I urge my colleagues to support the amendment.
  Mr. BOND. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. There is 1 minute 10 seconds remaining.
  Mr. BOND. Mr. President, this is a great nation because we have kept 
our country safe. We have kept our country safe, and we are working 
very closely with the intelligence community. That is why we have a 
good bill. The intelligence community says we must have the certainty 
at least of 6 years. I wanted to see none. That is why we came to an 
agreement in the Intelligence Committee and a 13-to-2 vote said we 
should have this bill with a 6-year sunset.
  We have a solid bipartisan product addressing civil liberties 
concerns, while making sure the intelligence community has the tools 
and authorities it needs to keep us safe.
  As I said, this was an important part of our compromise to get the 
bill through. Our intelligence collectors and troops on the battlefield 
need certainty, not rules that will expire in 4 years. That is why both 
the Director of National Intelligence and the Attorney General strongly 
oppose shortening the 6-year sunset in the bill.
  I urge my colleagues to join me in opposing this amendment.
  The PRESIDING OFFICER. The Senator from Maryland.
  Mr. CARDIN. Mr. President, quickly, in closing, I thank the chairman 
of the Intelligence Committee for his support of this amendment. This 
amendment does nothing to jeopardize the bipartisan work of the 
Intelligence Committee. It preserves the appropriate role of the 
legislative branch of Government, and I would hope all my colleagues 
would want to support that change to make it clear that the next 
administration must come back to Congress.
  With that, Mr. President, I yield back the remainder of my time, and 
I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second.
  Mr. BOND. Mr. President, there is a 60-vote agreement on this.
  The PRESIDING OFFICER. That is correct.
  The question is on agreeing to amendment No. 3930. The clerk will 
call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
and the Senator from Connecticut (Mr.  Lieberman) are necessarily 
absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from North Carolina (Mr. Burr), the Senator from South Carolina (Mr. 
Graham), and the Senator from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 49, nays 46, as follows:

                       [Rollcall Vote No. 7 Leg.]

                                YEAS--49

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Inouye
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     McCaskill
     Menendez
     Mikulski

[[Page S710]]


     Murray
     Nelson (FL)
     Nelson (NE)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                                NAYS--46

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

                             NOT VOTING--5

     Burr
     Clinton
     Graham
     Lieberman
     McCain
  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for the adoption of this amendment, the amendment is withdrawn.
  The majority leader is recognized.
  Mr. REID. Mr. President, I move to reconsider the vote and table that 
motion.
  The motion to table was agreed to.


           Congratulating Senator Inouye on His 15,000th Vote

  Mr. REID. Mr. President, 2LT Daniel K. Inouye distinguished himself 
by extraordinary heroism in action on April 21, 1945, in the vicinity 
of San Terenzo, Italy.
  While attacking a defended ridge guarding an important road junction, 
Second Lieutenant Inouye skillfully directed his platoon through a hail 
of automatic weapons and small arms fire in a swift and enveloping 
movement that resulted in the capture of an artillery and mortar post 
and brought his men to within 40 yards of the hostile force.
  Emplaced in bunkers and rock formations, the enemy halted the advance 
with crossfire from three machine guns. With complete disregard for his 
personal safety, Lieutenant Inouye crawled up the treacherous slope to 
within 5 yards of the nearest machine gun and hurled two grenades, 
destroying the emplacement.
  Before the enemy could retaliate, he stood up and neutralized a 
second machine gun nest. Although wounded by a sniper's bullet, he 
continued to engage other hostile positions at close range until an 
exploding grenade shattered his right arm.
  Despite the intense pain, he refused evacuation and continued to 
direct his platoon until enemy resistance was broken and his men were 
again deployed in defensive positions.
  In the attack, 25 enemy soldiers were killed and 8 others were 
captured. By his gallant, aggressive tactics, and by his indomitable 
leadership, Lieutenant Inouye enabled his platoon to advance through 
formidable resistance and was instrumental in the capture of the ridge.
  Lieutenant Inouye's extraordinary heroism and devotion to duty are in 
keeping with the highest traditions of military service and reflect 
great credit on him, his unit, and the U.S. Army.
  Mr. President, Members of the Senate, these are the words that 
describe the actions of heroism of Senator Inouye, when, as a young 
man, he put his own safety aside for others. As a result of that he was 
awarded America's highest honor for gallantry and heroism, the Medal of 
Honor.
  The reason I bring this to everyone's attention today is that we have 
a lot of new Senators. I want every one of them to know this man Dan 
Inouye is a man who was born to be a hero. He never thinks of himself 
but of others. In my 25-plus years in Congress, that is how I have 
found him to be.
  I rise to express joy and honor for my friend and colleague Senator 
Inouye on the occasion of his 15,000th rollcall vote, which was just 
completed.
  Dan Inouye was born to Japanese-American immigrants in Honolulu, the 
eldest of four children. Did he ever set an example--he sure did--for 
his siblings. On the day of the Pearl Harbor attack, with chaos 
reigning, and being only 17 years old, he volunteered to provide 
medical help to the injured, and there were a lot of injured. After 
high school, he wanted to become a medical doctor. At the time the U.S. 
Army banned Japanese Americans from becoming soldiers. The war broke 
out, but this ban was dropped, and as a teenager, Dan Inouye 
immediately put his medical ambition aside and signed up to serve his 
country in the military. Perhaps it was fate that Dan Inouye joined the 
legendary 442nd regimental combat team which in no small part, thanks 
to his bravery, became the most highly decorated unit in the history of 
the U.S. Army.
  I can't improve the words of praise this great man earned upon 
receiving the Medal of Honor for his courageous service. I read that. 
But I think we all here recognize we serve with a very extraordinary 
human being. While he was recovering from his injuries--and it was more 
than his arm; his whole body was hurt and, as a result he spent years 
in a military hospital--in the military hospital, he met another 
wounded warrior, a man named Bob Dole. They recuperated together, both 
having severe arm injuries, among other things. The only injuries you 
could see with Senator Dole and Senator Inouye were the arms. But, of 
course, their injuries were much more severe than that. While there, 
Senator Dole told Senator Inouye, both to be Senators: I am going to 
run for Congress. Senator Inouye beat him there by a few years. That 
chance encounter began a lifetime of friendship that took these two 
wounded warriors from hospital beds in Battle Creek, MI, to seats in 
the Senate. The friendship and close working relationship they have 
shared is emblematic of Senator Inouye's lifelong commitment to 
bipartisanship in the pursuit of progress.
  In his decades of public service, Senator Inouye has been a leader on 
issue after issue of concern to the American people. As chairman of the 
Subcommittee on Defense Appropriations, he is the leading expert and 
national advocate for national security, strengthening the military, 
and honoring our troops and veterans.
  As the first person of Japanese descent to serve in the Senate, Dan 
Inouye is a soft-spoken trailblazer.
  On a personal level, I was a very new Senator and he had made a 
commitment to do a fundraiser for me in Florida. He didn't know at the 
time he made this commitment that there would be other things that 
would be in the way of that. There was a little thing in the way, his 
wife's birthday. She understood. He understood. And he, because he had 
made a commitment, made the personal sacrifice and came down there. I 
have never forgotten that. That is why when he sought a leadership 
position in the Senate, I was the first to stand in line to support 
Senator Inouye. His heroism and extraordinary lifetime of public 
service are an inspiration to us all.
  But on a personal note, Landra and I, and all my colleagues, are so 
happy and pleased to hear the recent news that Dan and Irene will be 
married this May. All of us in the Senate family wish them happiness 
and joy.
  The PRESIDING OFFICER. The Republican leader.
  Mr. McCONNELL. Mr. President, the U.S. Senate has been conducting its 
business here in Washington for just over 200 years. For more than one-
fifth of that time, Senator Daniel Inouye of Hawaii has been casting 
rollcall votes. And just now, he cast his 15,000th, making him the 
fourth most prolific voter in Senate history.
  If Senator Inouye had anything to say about it, I have no doubt the 
moment would have passed without fanfare. Some Senators make their 
presence felt by talking a lot or by being flamboyant. Dan Inouye has 
always been another sort of Senator.
  He is one of only 107 Americans alive today to have received the 
Medal of Honor for combat bravery. He is the iconic political figure of 
the 50th State, the only original member of a congressional delegation 
still serving in Congress. And he has ensured through many years of 
diligent service on the Defense Appropriations Subcommittee that an 
entire generation of America's uniformed military has gone well 
prepared into battle and was well cared for when they returned.
  Despite all this, Dan's quiet demeanor and adherence to a code of 
honor and professionalism has made him a stranger to controversy and to 
the fleeting fame that often comes with it. He is a man who has every 
reason to call attention to himself but who never does. He is the kind 
of man, in short, that America has always been grateful to have, 
especially in her darkest hours, men who lead by example and who expect 
nothing in return.
  Historians tell us about one of those dark moments early in our 
Nation's

[[Page S711]]

history, just after the surrender at Yorktown. Hostilities with the 
British had ended, but America was on the brink of a military coup. 
Congress had promised to give officers and soldiers back pay, food, and 
clothing, and hadn't delivered. The situation grew so serious that U.S. 
officers threatened an armed revolt.
  In a meeting at Newburgh, George Washington urged patience. He 
assured the officers Congress would act justly. And then, with anger 
and impatience still in the air, he pulled a letter from his pocket 
from Congress. Staring at it for a few moments with a look of 
confusion, he reached into his pocket again and pulled out a pair of 
reading glasses that only his closest advisers had ever seen. ``You 
will permit me, gentlemen, to put on my spectacles,'' he said. ``For I 
have not only grown gray, but almost blind, in the service of my 
country.''
  Some of the officers wept with shame. One man's heroism was enough to 
dissolve whatever hostilities remained. Revolt was averted, peace 
preserved, and a roomful of men learned that day what it meant to be an 
American.
  More than a century and a half later, after another dark moment in 
our Nation's history, another roomful of men would learn a similar 
lesson. The year was 1959, the place was the U.S. Capitol, and a young 
man named Daniel Inouye was being sworn into office.
  The memory of a hard-fought war against the Japanese was fresh in 
many minds as the Speaker, Sam Rayburn, prepared to administer the 
oath--not only to the first Member from Hawaii, but to the first 
American of Japanese descent ever elected. Rayburn spoke: ``Raise your 
right hand and repeat after me . . .''
  Here's how another Congressman would later record what followed: 
``The hush deepened as the young Congressman raised not his right hand 
but his left and repeated the oath of office. There was no right hand. 
It had been lost in combat by that young American soldier in World War 
II. And who can deny that, at that moment, a ton of prejudice slipped 
quietly to the floor of the House of Representatives.''
  As a young boy growing up in Hawaii, Dan and his friends always 
thought of themselves as Americans. But after Pearl Harbor, they found 
themselves lumped together with the enemy. It was one of the reasons so 
many of them felt such an intense desire to serve. Their loyalty and 
patriotism had been questioned, and they were determined to show their 
patriotism beyond any doubt.
  At first they weren't allowed to volunteer. A committee of the Army, 
caving to prejudice, recommended against forming a combat unit of 
Japanese Americans. But they persisted, and on June 5, 1942, the policy 
changed.
  In reversing the previous order, President Roosevelt said, quote, 
``Americanism is a matter of the mind and heart. Americanism is not, 
and never was, a matter of race or ancestry.''
  The overwhelming response of Japanese Americans proved Roosevelt 
right. Eighty percent of the military-age men of Japanese descent who 
lived in Hawaii volunteered for the first-ever, all-Japanese-American 
combat team. And among the 2,686 accepted was an 18-year-old freshman 
at the University of Hawaii named Dan Inouye. 
  The 442nd Regimental Combat Team, the famous ``Go for Broke'' 
regiment, would become the most decorated military unit in American 
history. SGT Dan Inouye was one of its combat platoon leaders. He spent 
3 bloody months in the Rome Arno campaign and 2 brutal weeks rescuing a 
Texas battalion that was surrounded by German forces, an operation 
military historians often describe as one of the most significant 
military battles of the 20th century.
  After the rescue, Sargeant Inouye was sent back to Italy, where on 
April 21, 1945, he displayed ``extraordinary heroism,'' in leading his 
platoon through tough resistance to capture an important strategic 
ridge. Crawling within five yards of the nearest machine gun, he 
destroyed it with grenades, then stood up and destroyed several others 
machine gun nests at close range--even as a sniper's bullet shattered 
his arm. Despite the pain, he continued to direct his men until the 
enemy's retreat, and become one of the most decorated soldiers of the 
war.
  Dan would later spend nearly 2 years in an Army hospital in Battle 
Creek, MI, and it was there that he met a wounded soldier, as the 
majority leader mentioned, from Kansas. Dan had always wanted to be a 
surgeon, but that dream faded away on a ridge in Italy. He decided to 
ask his friend what he had in mind for a career. Politics was the 
reply. Dan was intrigued. And many years later, as a freshman in 
Congress, he wrote a note to Bob Dole, playfully taunting him for not 
making it here first.
  It is fitting that Dan owes his Senate career, in a sense, to a 
Republican. He has never let narrow party interests stand in the way of 
friendship or cooperation on matters of real national importance. His 
friendship with Senator Stevens is one of the most storied in all of 
Senate history. And I know I have never hesitated to call Dan when I 
thought something important was at stake. As Dan has always said, ``to 
have friends, you've got to be a friend.''
  It is a good principle, and it is one he has always lived up to. But 
it is just one of the remarkable traits that have made him one of 
America's great men.
  On the morning of his first day in the Army, Dan rode part of the way 
to the barracks on a bus with his dad. He later recalled that at one 
point his father grew somber, offered his first son some brief advice 
about the importance of having good morals, then said something about 
the country he would soon defend.
  ``America has been good to us,'' his father said. ``And now--I would 
never have chosen it to be this way--but it is you who must try to 
return the goodness of this country.''
  Dan Inouye would make his father very proud. He has more than repaid 
the goodness of this country. I know I speak for every other Senator 
who has served with him, the people of Hawaii, and anyone who respects 
this institution or loves this country, when I say thank you for the 
dignity, the grace, and the heroism with which you have lived your 
great American life. You are an example and an inspiration to all of 
us.
  I yield the floor.
  The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Hawaii.
  Mr. AKAKA. Madam President, in the year 1924, a child was born to a 
woman who was nurtured by a Hawaiian family. He was born in Hawaii as 
an American of Japanese ancestry. He was brought up in Hawaii and went 
to school there, graduated from McKinley High School in 1942, and 
decided to serve our country, as he did. You have heard others tell 
about his activities as an Army person. But he went on to finally 
receive the Medal of Honor from this country, which is the greatest 
medal anyone can receive. This is Senator Dan Inouye.
  When he finished his service, he used the GI bill, of which he was a 
recipient, to be educated. When he returned to Hawaii, he entered into 
politics and served in the State legislature.
  When Hawaii became a State in 1959, he was Hawaii's first U.S. House 
of Representatives Member. It was from there he did run for the Senate 
and was elected and has been here since that time. Dan Inouye has 
served our country well over these years, and he has served Hawaii 
well.
  So today I rise to mark a historic occasion, which is Senator 
Inouye's 15,000th vote. This historic milestone is compelling evidence 
of Senator Inouye's devotion to public service. The people of Hawaii 
have given him their trust, and in return he has fought relentlessly 
for our State and our country.
  Dan Inouye is an institution, without question, in the Senate, and I 
look forward to casting many more votes with my good friend and mentor 
and brother to benefit Hawaii and strengthen the United States.
  God bless you, Senator Inouye, and with much aloha.
  Thank you very much.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Madam President, I am deeply moved and most grateful for 
the generous and warm remarks of my colleagues. I shall do my very best 
to live up to their praise.
  I thank you very much.
  (Applause, Senators rising.)
  Mr. COCHRAN. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.

[[Page S712]]

  The legislative clerk proceeded to call the roll.
  Mr. SPECTER. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 3927 To Amendment No. 3911

   (Purpose: To provide for the substitution of the United States in 
                         certain civil actions)

  Mr. SPECTER. Madam President, I now call up amendment No. 3927.
  The PRESIDING OFFICER. Without objection, the pending amendments are 
set aside.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter], for himself 
     and Mr. Whitehouse, proposes an amendment numbered 3927 to 
     amendment No. 3911.

  Mr. SPECTER. Madam President, I ask unanimous consent that further 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The amendment is printed in the Record of Friday, January 25, 2008, 
under ``Text of Amendments.'')
  Mr. SPECTER. Madam President, there are 2 hours set aside for this 
amendment. We have about 24 minutes between now and 4:30, when the 
Senate will move on to other business.
  I have just discussed with my distinguished colleague, Senator 
Whitehouse, and the managers--Chairman Rockefeller and Vice Chairman 
Bond--my intent to speak relatively briefly on an opening statement and 
then yield to Senator Whitehouse and give an opportunity for opponents 
of the amendment to speak because I think that will tell the Senators 
and staffs what this is about and perhaps generate more interest and 
more concern to follow, and then have additional debate at a later time 
on the remainder of our time.
  At the outset, I compliment my distinguished colleague, Senator 
Whitehouse, who is in his first term in the Senate. I thank him for the 
work he has done coordinately with me and others on this bill.
  Senator Whitehouse brings a very distinguished record to the U.S. 
Congress. He has served as U.S. attorney for Rhode Island. He served as 
Rhode Island's attorney general. And he has made quite a contribution 
to the Judiciary Committee on what is a very complex matter.
  Madam President, I ask unanimous consent that Senator Levin and 
Senator Cardin be added as cosponsors of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SPECTER. The essence of the pending amendment is to substitute 
the U.S. Government as a party defendant for the telephone companies, 
instead of having the current provision which provides for retroactive 
immunity to the telephone companies. The bill under consideration would 
give those companies retroactive immunity and foreclose litigation 
which is now pending in some 40 cases.
  This issue is at the heart of the balance of values between national 
security and constitutional rights. There is no doubt, at least on this 
state of the record--where we do not know all of the details as to what 
the telephone companies have been doing--but it is presumed, for 
purposes of this argument, and I think accurately so, that what the 
telephone companies are doing has produced very high-level intelligence 
for the U.S. Government.
  There is no doubt of the importance of high-level intelligence in our 
fight against terrorism. We sustained 9/11. We fight a deadly enemy 
around the world--al-Qaida. We want to protect the United States and 
its people and others, so that high-level intelligence is very 
important.
  At the same time, constitutional rights are very important. I believe 
the substitution which Senator Whitehouse and I are proposing 
accomplishes the objective of a continuation of getting this very vital 
intelligence information for national security and, at the same time, 
protects constitutional rights.

  The essence of the proposal is that the U.S. Government would step 
into the shoes of the telephone companies, have the same defenses, no 
more and no less. The Government could not assert governmental immunity 
because the telephone companies could not assert governmental immunity. 
The Government could assert the State Secrets Doctrine, just as the it 
has by intervening in the cases against the telephone companies.
  I believe it is vital that the courts remain open. I say that because 
on our delicate constitutional balance of separation of powers, the 
Congress has been totally ineffective on oversight and on restraining 
the expansion of executive authority. But the courts have the capacity, 
the will, and the effectiveness to maintain a balance.
  But we find that the President has asserted his constitutional 
authority under article II to disregard statutes, the law of the land 
passed by Congress and signed by the President.
  I start with the Foreign Intelligence Surveillance Act, which 
provides that the only way to wiretap is to have a court order. The 
Executive Branch initiated the Terrorist Surveillance Program in flat 
violation of that statute. Now, the President argues that he has 
constitutional authority which supersedes the statute. And if he does, 
the statute cannot modify the Constitution. Only a constitutional 
amendment can. But that program, initiated in 2001, is still being 
litigated in the courts. So we do not know on the balancing test 
whether the Executive has the asserted constitutional authority.
  But if you foreclose a judicial decision, the courts are cut off. 
Then the executive branch has violated the National Security Act of 
1947, which mandates that the Intelligence Committees of both the House 
and the Senate be informed of matters like the Terrorist Surveillance 
Program. I served as chairman of the Judiciary Committee in the 109th 
Congress. The chairman and the ranking member, under protocol and 
practice, ought to be notified about a program like that. But I was 
surprised to read about it in the newspapers one day, on the final day 
of argument on the PATRIOT Act Re-authorization. It was a long time, 
with a lot of pressure--really to get the confirmation of General 
Hayden as CIA Director--before the executive branch finally complied 
with the statute to notify the full Intelligence Committees. Now, on 
the other hand, the courts have been effective--and I will amplify this 
at a later time because I want to yield soon to Senator Whitehouse and 
give the opponents an opportunity to speak before 4:30. But in the 
Hamdan case, the Supreme Court held that the President does not have a 
blank check in the war on terror. Justices held that the President 
cannot establish military commissions unless Congress authorizes it. In 
Hamdi, the Supreme Court concluded due process required that a citizen 
held in the United States as an enemy combatant be given a meaningful 
opportunity to contest the factual basis for that contention. In Rasul 
v. Bush, the Supreme Court held that the Federal habeas corpus statute 
gave district courts jurisdiction to hear challenges by aliens held at 
Guantanamo Bay.

  Well, this is not Pakistan, where President Musharraf can suspend the 
Supreme Court Justices and hold the Chief Justice under House arrest. 
This is America. The balance is maintained only because the courts are 
open. I believe it would be a major mistake to close the courts on 
pending litigation when the courts have provided the only effective way 
to check expanded executive authority, which we have seen in many 
lives. I will amplify those later, on matters such as signing 
statements.
  But that is the essence of the argument. I am going to yield now to 
my distinguished colleague from Rhode Island because I think it is 
useful, as we move forward in the debate, to crystallize the issues. We 
know Senators and even staff don't pay a great deal of attention until 
the time for a vote is near, and when we see the essence of the two 
positions, I think we may create some more interest and have more 
people join this debate.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
  Mr. WHITEHOUSE. Madam President, I thank the distinguished Senator 
from Pennsylvania. I consider it a great personal honor to join him in 
sponsoring this important amendment. He has served with great 
distinction as a prosecuting attorney for Philadelphia for many years 
and then has served in this Senate for 27 years with great distinction, 
making him the longest serving Senator in Pennsylvania's history.

[[Page S713]]

He has chaired the Senate Judiciary Committee, and he has always shown 
great intelligence and independence. In addition to all that, I am the 
junior member of the Senate Judiciary Committee, and he also has shown 
exceptional courtesy and good will toward me, notwithstanding my junior 
status and notwithstanding my position on the other side of the aisle. 
So it is with considerable pride and also considerable affection that I 
join him in supporting this amendment.
  We face, as Senator Specter said, the critical balance between 
freedom and security, which will always be difficult to maintain as 
long as a threat of terrorism looms. As we all know, one of the many 
difficult issues that balance presents to us is the question of whether 
to grant immunity to telecommunications carriers who may have assisted 
the Government in this surveillance program.
  On the one hand, the administration has called for a blanket grant of 
immunity to these companies. On the other hand, others have proposed 
preserving the status quo. We are proposing a more sensible, practical, 
middle path that does less constitutional damage and still protects the 
essential equities involved.
  The choice is to give immunity, to stop the litigation, to end the 
claims against the companies, and take away the plaintiffs' case 
against them, which is not fair. Nothing yet suggests this is not 
completely legitimate litigation. The courts who are considering it 
haven't thrown it out, it is in process right now, and it is not fair 
to the plaintiffs to up and take away their day in court. Moreover, 
there is a huge separation of powers problem of a legislature intruding 
into ongoing litigation, now before a judge, and taking away active 
claims. We would be taking away plaintiffs' rights and claims, taking 
away their due process without even providing for the basic judicial 
finding that the defendant companies acted reasonably and in good 
faith. That damage suggests that blanket immunity is not a great 
solution and, indeed, it may even be unconstitutional.
  The other choice we have on the immunity question is to do nothing. 
But consider this: the Government has forbidden the telephone company 
defendants to defend themselves, claiming state secrets privilege. They 
have tied the companies' hands behind their backs in this litigation, 
muzzled them, forbidden them to offer any defense. In my view, that is 
also not fair, particularly if the Government put these companies into 
this mess in the first place. If the Government wants to forbid self-
defense by these companies, the decent thing for the Government to do 
would be to step into the lawsuit, and defend on their behalf. The 
Government should not leave legitimate American companies in the 
judicial arena, bound and muzzled, unable to defend themselves, and not 
itself be willing to step in the ring and take over. So it strikes me 
that doing nothing is not a great solution either.
  The solution that fits the problem we face is this Specter-Whitehouse 
amendment, and it has two very simple parts. One, a judicial 
determination, confidentially, in the FISA Court, whether these 
companies acted reasonably and in good faith. That is a very simple 
determination that can be made with a very small amount of testimony 
based in many respects simply on the record of what was provided to 
companies. Second, if they did act reasonably and in good faith, there 
is then a well-established procedure under rule 25 of the Federal Rules 
of Civil Procedure, rule 25(c) to be specific, that can substitute the 
Government for these companies in this litigation.

  First, let me talk about the good-faith determination. I hope we can 
all agree that if the companies did not act reasonably and in good 
faith, they shouldn't get protection. I hope we can agree on that. We 
establish a simple procedure for the good-faith question to be answered 
by the FISA Court. We in Congress should not be the judges of that. We 
are not judges. Good faith is a judicial determination. This is ongoing 
litigation. The companies have, of course, asserted to us that they 
acted in good faith, but that is no basis for us to conclude that, and 
we surely should not rely on one side's assertion in making a decision 
of this importance. Most Senators have not even been read into the 
classified materials that would allow them to reach a fair conclusion. 
This body is literally incapable of forming a fair opinion without 
access by most Members to the facts. So we need to provide a fair 
mechanism for a finding of good faith by a proper judicial body with 
the proper provisions for secrecy, which the FISA Court has.
  Second, substituting in the Government. Well, if it turns out the 
Government directed the companies to engage in conduct that broke the 
law, the Government is the proper authority. If the companies acted 
reasonably and in good faith but ended up somehow breaking the law 
because of what the Government directed them to do, the real actor is 
the Government. Lawyers in this body will understand this is analogous 
to a principal-agent relationship. The Government is in effect the 
principal, the company acting as directed is the Government's agent, 
and under principal-agency law, the principal is liable for the acts of 
the agent.
  So the simple solution contained in this amendment follows the law, 
it is founded in the Federal Rules of Civil Procedure, and it fits the 
problem we face. Consider: No one has legitimate rights and due process 
summarily taken away. This is, after all, the United States of America.
  Two, if the carriers acted reasonably and in good faith, the 
Government steps in for them. In fact, the carriers get a judgment in 
their favor dismissing them from the cases.
  Third, no one is forbidden to defend themselves in ongoing 
litigation. No one is bound and muzzled but forced to stay in a 
judicial fight.
  Fourth, there is no intrusion by Congress into ongoing adjudication, 
no separation of powers trespassed.
  Finally, if the companies acted reasonably and in good faith at the 
direction of the Government but ended up breaking the law, the 
Government truly is the morally proper party to the case. So this is 
not just sensible, but it is right. I hope my colleagues will support 
this amendment.
  I see time is a little short, but let me continue a little bit longer 
because I wish to expand a little bit on this concern that intrusion by 
Congress into ongoing adjudication presents a separation of powers 
problem. Let me go all the way back to why we set up the separation of 
powers in the first place. I quote U.S. Supreme Court Justice Scalia 
specifically who said:

       The sense of a sharp necessity to separate the legislative 
     from the judicial power triumphed among the Framers of the 
     new Constitution prompted by a crescendo of legislative 
     interference with private judgments of the courts.

  So the question of a legislature interfering with ongoing litigation 
was the live concern of the Founding Fathers when they separated the 
powers. In a case called the United States v. Klein, the U.S. Supreme 
Court threw out a congressional statute that purported to provide the 
rule of decision in a particular case, saying of this relationship 
between the legislative and judicial powers:

       It is of vital importance that the legislative and judicial 
     powers be kept distinct. It is the intention of the 
     Constitution that each of the great courts and departments of 
     the government--the legislative, the executive, and the 
     judicial--shall be in its sphere independent of the others.

  So I urge my colleagues who are considering this to consider the 
sensible merits of this amendment, to consider this is the morally 
right way to go forward, and further, to consider that it reduces 
considerably the risk that if we go ahead and give these companies this 
immunity, the companies end up with a lawsuit, they end up with a case 
and a statute that is thrown out because it is unconstitutional, and in 
effect we create a snarl rather than a solution for them.
  So with that said, I would again like to say how very much it means 
to me to be cosponsoring this amendment with the very distinguished 
Senator and former chairman of the Judiciary Committee, Senator Specter 
of Pennsylvania.
  I thank the Chair and I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Madam President, I am reluctant to ask, but I must, 
how much time remains before 4:30?
  The PRESIDING OFFICER. There is 2\1/2\ minutes before 4:30.
  Mr. ROCKEFELLER. Wonderful.

[[Page S714]]

  Madam President, I simply rise to say I will oppose this amendment 
and I will oppose it strongly and I think for a series of very good 
reasons. But in spite of my eloquence and the ability to talk very 
quickly, I simply cannot do the task in 1\1/2\ minutes. So I ask 
unanimous consent to reserve my right to speak further at the 
appropriate time before the vote.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Missouri is recognized.
  Mr. BOND. Madam President, with the time so graciously allowed us by 
the proponents of this measure--and I know it was not intentional--I 
will only say a couple of quick things. No. 1, the courts are not 
precluded. The underlying bill, the bipartisan bill, permits lawsuits 
to go forward against the Government and the Government employees. No. 
2, there was notification of the Big Eight--the ranking members and 
chairmen of the Intelligence Committees and the leaders--when this 
program was started. No. 3, article 2 does give the President the power 
to exercise foreign intelligence collections.
  I would say to my colleague who has been on the Intelligence 
Committee, if he doesn't think Congress has been effective in 
overseeing programs, he has not seen the committee that is chaired by 
Senator Rockefeller and on which I ride shotgun with him. The Judiciary 
Committee--if it was not advised, the Judiciary Committee's primary 
responsibility is not intelligence. That is the Intelligence Committee. 
We get the sensitive information. We spend a great deal of time. We 
have reviewed it. We believe it is a disaster for our intelligence 
collection to have substitution because we would see our most sensitive 
means of collection exposed. The private parties that might have 
participated would be put through tremendous economic and commercial 
harm and subjected potentially to harassment, and perhaps even 
terrorist attacks, for having worked with us.
  Therefore, I strongly urge that our colleagues defeat amendment No. 
3927, the Specter-Whitehouse substitution amendment.
  Mr. KENNEDY. Madam President, the amendment that I have offered with 
Senators Kerry and Menendez addresses a serious problem with the FISA 
bill that we are now considering, and I am very pleased that it has 
been incorporated into the bill by unanimous consent.
  The amendment clarifies that under the new authority provided in this 
legislation, the Government may not intentionally acquire a 
communication when it knows ahead of time that the sender and all of 
the intended recipients are located in the United States. When the 
Government knows ahead of time that both the person making the call and 
the person receiving the call are located inside the United States, it 
will have to get a court order before it can listen in on that call. 
This is the way FISA has always worked, and my amendment makes sure 
that the law stays that way.
  There is broad agreement that communications known ahead of time to 
be purely domestic should continue to be governed by the standard FISA 
rules. Indeed, the Bush administration has repeatedly stated that it 
does not intend to use the new authority granted under the Protect 
America Act or this legislation to acquire communications that are 
purely domestic, without obtaining a court order first. The 
administration acknowledges that when the Government knows that all the 
parties to a conversation are in the United States, a specific court 
order should be needed to intercept that conversation.
  I haven't heard a single Member of Congress disagree with this point. 
But without this amendment, the FISA bill's new authority could be used 
to acquire purely domestic communications without a court order.
  The bill requires the Government's ``targeting procedures'' to be 
designed ``to ensure that any acquisition . . . is limited to targeting 
persons reasonably believed to be located outside the United States.'' 
The problem arises because sometimes the ``target'' of the surveillance 
may be abroad, but the communications that the Government wants to 
acquire may occur entirely inside the United States, because the 
subject matter concerns the target who is abroad. The term ``target'' 
is not defined in FISA, but the legislative history states that the 
``target'' is the person or entity ``about whom or from whom 
information is sought.'' That broad definition is capable of being 
interpreted to allow surveillance of people other than a ``target.''
  For example, the Government might believe that two Americans in the 
United States--let's call them Tom and Mary--will discuss a third party 
who is located outside the country. Under this bill, that third party 
can be a group, not just an individual, and the Government can obtain a 
blanket warrant that allows it to spy on everything that group does in 
the future. Although the authors of the bill have stated this should 
not occur, the concern is that when Tom and Mary talk to each other, 
the Government might claim the third party is the ``target'' who 
provides the legal basis for the surveillance--with the practical 
result being that the Government could listen in on the conversation 
without making any showing to any court about Tom and Mary.
  My amendment protects innocent Americans by clarifying that 
traditional FISA rules still govern for communications known to be 
occurring within the country. The Government could still spy on Tom and 
Mary--but it would have to obtain a warrant first, with the usual 
exception for emergencies.
  According to the administration, the law already requires this. The 
administration has said flat out that it will not wiretap purely 
domestic communications without first obtaining a court order.
  But these kinds of statements are no answer when Americans' basic 
liberties are at stake. ``Trust us'' is not enough.
  FISA experts such as David Kris, a highly respected former lawyer at 
the Justice Department and the author of the leading treatise on FISA 
law, believe that the legislation is not clear right now. And if the 
law is unclear, there will be tremendous pressure on the intelligence 
community to apply it as aggressively as possible, because it is their 
duty to do everything they can within the boundaries of law.
  As Mr. Kris recently stated, even though the Intelligence Committee 
bill prohibits the targeting of persons known to be in the United 
States, it ``does not, however, foreclose all surveillance of [purely] 
domestic communications . . . because surveillance can 'target' an 
international terrorist group located abroad, but still be directed at 
a domestic telephone number or other domestic communications 
facility.''
  Mr. Kris has said that his ``principal concern about [this bill] . . 
. is that it resembles the Protect America Act in allowing surveillance 
of domestic communications'' without a warrant. This is a radical 
change to a FISA system that has protected Americans for three decades. 
If put to a vote, I have no doubt that Americans would reject it.
  This concern can't be waved away by the administration telling us 
that it takes a different legal view. When one of the top FISA experts 
in the country says that the law is not clear, we should listen.
  Promises about how the Government will interpret the law in the 
future are not enough. If we all agree about a specific policy goal--
and everyone should agree that in purely domestic-to-domestic 
situations, the traditional FISA rules should apply--then we should be 
very clear about that goal in the legislation we write. Any FISA law 
that Congress passes may set the rules on surveillance for years to 
come, and different administrations may interpret ambiguous language in 
different ways.
  My amendment makes clear that the traditional FISA rules apply when 
the Government knows ahead of time that the communication is purely 
domestic. The amendment does not add any substantive changes to the 
law; it adds clarity and certainly where now there is ambiguity and 
confusion.
  Americans deserve to feel confident when they are talking with their 
friends, neighbors, and loved ones inside the United States that they 
will not be spied on without a warrant. Bringing clarity to this area 
of the law is good for Americans' liberties, and it is good for 
national security. I congratulate my colleagues for adopting this 
amendment.




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