[Congressional Record Volume 154, Number 20 (Thursday, February 7, 2008)]
[Senate]
[Pages S775-S778]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  FISA AMENDMENTS ACT OF 2007--Resumed

  The PRESIDING OFFICER. The clerk will report the bill.
  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.
       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.
       Feinstein amendment No. 3910 (to amendment No. 3911), to 
     provide a statement of the exclusive means by which 
     electronic surveillance and interception of certain 
     communications may be conducted.
       Feinstein amendment No. 3919 (to amendment No. 3911), to 
     provide for the review of certifications by the Foreign 
     Intelligence Surveillance Court.
       Specter-Whitehouse amendment No. 3927 (to amendment No. 
     3911), to provide for the substitution of the United States 
     in certain civil actions.

  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.


                           amendment no. 3915

  Mr. FEINGOLD. Mr. President, this is the amendment we call Use Limits 
Amendment, amendment No. 3915.
  This amendment gives the FISA Court the option of preventing the 
Government from using information on U.S. persons that it has collected 
using targeting or minimization procedures that are later found to be 
illegal.
  As the legislation now stands, if the Government uses procedures that 
are later declared unlawful, there is nothing to stop it from using the 
information it collected illegally. This does not make any sense, and 
it takes away any incentive for the Government to develop lawful 
procedures the first time around. It is also not consistent with the 
approach FISA takes with other illegally collected information.
  If the Government conducts emergency surveillance that is later found 
to be improper, FISA already prohibits the Government from using that 
information. Importantly, under my amendment, information about 
foreigners or information that indicates a threat of death or bodily 
harm could always be used by the Government, even if it were collected 
under illegal procedures. The FISA Court also has the discretion to 
allow the Government to use illegally collected information about U.S. 
persons.
  So it is an extremely modest safeguard, a very reasonable amendment. 
I urge my colleagues to support it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I strongly urge my colleagues to defeat 
amendment 3915. It creates a superexclusionary rule on the intelligence 
community. The Attorney General and the DNI have advised they will 
recommend a veto.
  It says: By requiring analysts to go back through relevant databases 
and exact certain information as well as to determine what other 
information is derived, this requirement places a tremendous burden, an 
unsurmountable operational burden on the intelligence community. I 
agree and yield the remainder of my time to the chairman.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I would say to the Presiding Officer 
that this amendment would prevent disclosure or dissemination of any 
collected information by U.S. persons if the FISA Court finds there are 
deficiencies in the Government's targeting or minimization procedures 
under the new authority.
  There is no need to add another 
penalty to ensure compliance with the requirement of the statute. The 
amendment gives the court very little discretion to determine whether 
nondisclosure is the appropriate remedy. Nondisclosure could be 
required even if the information is particularly significant foreign 
intelligence information, or if there is only a minor deficiency in the 
procedure that cannot be corrected within 30 days.
  It is a very short way of saying that I oppose this amendment 
strongly.
  Mr. BOND. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. REID. I ask unanimous consent that the Senate now resume 
consideration of the following Feingold amendments, Nos. 3915 and 3913, 
and that the time until 5:25 p.m. be for debate with respect to these 
amendments en bloc;

[[Page S776]]

that upon the use or yielding back of time, the Senate proceed to vote 
in relation to the amendments in the order listed above; that there be 
2 minutes of debate prior to the second vote, with all time equally 
divided and controlled in the usual form, and the second vote 10 
minutes in duration; that when the Senate resumes S. 2248 on Friday, 
February 8, and on Monday, February 11, all remaining amendments be 
debated and all time used; that on Tuesday, February 12, at a time to 
be determined, the Senate then proceed to vote in relation to the 
amendments in an order specified later, with 2 minutes of debate prior 
to the votes, equally divided and controlled in the usual form, and any 
succeeding votes in the sequence be limited to 10 minutes; that no 
further amendments be in order Tuesday; and that upon disposition of 
all amendments, the Senate vote on the motion to invoke cloture on S. 
2248; and that if cloture is invoked on the bill, Senator Dodd be 
recognized to speak for up to 4 hours, Senator Feingold for up to 15 
minutes; that upon the conclusion of these remarks and the recognition 
of the managers for up to 10 minutes each, the Senate then proceed to 
vote on passage of the bill, and any other provisions of the previous 
order remain in effect.
  The PRESIDING OFFICER. Is there objection?
  Mr. BOND. Reserving the right to object, if I could ask the majority 
leader, I had talked with Senator Feingold and suggested we have 4 
minutes equally divided on the next vote so he can have 2 minutes and 
the chairman and I may each have a minute.
  Mr. REID. I accept the modification.
  The PRESIDING OFFICER. Is there objection to the request as so 
modified?
  Without objection, it is so ordered.


                           Amendment No. 3915

  Mr. FEINGOLD. How much time do I have?
  The PRESIDING OFFICER. The Senator from Wisconsin has 2 minutes.
  Mr. FEINGOLD. Mr. President, I wish to respond to the argument of the 
Senator from West Virginia that this amendment would somehow impose a 
burden because it would require the Government to identify information 
about U.S. persons. I wish to be clear, these use limits kick in only 
if the Government proposes to disseminate and use the information, in 
which case the bill's minimization procedures already require the 
Government to identify information about U.S. persons. So I can't for 
the life of me figure out what the Senator is referring to when he 
refers to new burdens. My amendment imposes no additional burden at 
all.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. Who yields time in opposition?
  Mr. ROCKEFELLER. I have already spoken on this amendment.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, we have made our point that it makes no 
sense to exclude the use of information simply because there is a 
deficiency, any deficiency in the certification and procedures used to 
target foreign terrorists overseas.
  I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays were ordered.
  Mr. ROCKEFELLER. I suggest the absence of a quorum.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ROCKEFELLER. I ask unanimous consent that the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The question is on agreeing to amendment No. 3915.
  The yeas and nays have been ordered. The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from New York (Mr. Nelson), and the Senator from Illinois 
(Mr. Obama) are necessarily absent.
  Mr. KYL. The following Senator is necessarily absent. 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 40, nays 56, as follows:

                      [Rollcall Vote No. 11 Leg.]

                                YEAS--40

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Casey
     Conrad
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Harkin
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Salazar
     Sanders
     Schumer
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                                NAYS--56

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

                             NOT VOTING--4

     Clinton
     McCain
     Nelson (NE)
     Obama
  The amendment (No. 3915) was rejected.
  Mr. REID. Mr. President, I move to reconsider the vote, and I move to 
lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. REID. Mr. President, I ask unanimous consent that Senators Leahy 
and Specter, managers on the part of the Judiciary Committee, be 
recognized for up to 20 minutes on Tuesday, February 12, postcloture.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  There is now 4 minutes equally divided before the next vote.
  Who yields time?
  The Senator from Wisconsin is recognized.


                           Amendment No. 3913

  Mr. FEINGOLD. Mr. President, the reverse targeting amendment No. 3913 
was approved by the Senate Judiciary Committee and is cosponsored by 
several of my colleagues. It simply ensures that the new authorities 
contained in this bill are not used to engage in what is known as 
reverse targeting of Americans here at home. FISA requires the 
Government to get a court order when it is wiretapping Americans on 
American soil. Reverse targeting refers to the possibility that the 
Government will try to get around this requirement by using these new 
authorities to wiretap someone overseas, when what the Government is 
trying to do and is interested in is the American with whom that 
foreign person is communicating.
  The bill pretends to ban reverse targeting, but this ban is so weak 
as to be meaningless. It would allow reverse targeting as long as the 
Government can claim it has some interest, however minor, in the 
foreigner it is wiretapping. The amendment says the Government needs an 
individualized court order when a significant purpose of the 
surveillance is to acquire communications of a person inside the United 
States.
  The Director of National Intelligence has testified that this 
practice, reverse targeting, is a violation of the fourth amendment. 
That is what the DNI says. This amendment merely codifies that 
constitutional principle.
  I strongly urge my colleagues to support this important amendment.
  Mr. BOND. Mr. President, I yield 1 minute on our side to the chairman 
of the committee.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, this turns the bill on its head. This 
says if we are targeting folks overseas, that in effect we have to get 
a FISA Court approval for each and every time that happens.
  Let me say the amendment causes enormous operational problems for 
intelligence professionals. They are very serious about it. The DNI and 
the Attorney General say it will hamper U.S. intelligence 
authorizations currently authorized because every single person would 
have to have a court order, and

[[Page S777]]

when you are collecting overseas, that becomes kind of a burden.
  While the technical details concerning such intelligence operations 
are classified, the concern is that the restriction would prevent the 
Government from doing intelligence collection against a foreign city, 
or a neighborhood in a foreign city, in advance of a military operation 
or perhaps in pursuit of a terrorist cell.
  The amendment is unnecessary, and I urge its defeat.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, there is an explicit bright-line prohibition 
against reverse targeting in the current bill. As the DNI said, it 
would be in violation of the fourth amendment. But Senator Feingold 
wants to replace this test with one that would make analysts engage in 
mental gymnastics, trying to figure out if ``a significant purpose'' is 
to target someone inside the United States. This significant purpose 
throws in an additional concern: The analysts who gather and examine 
intelligence need clear rules, not an ambiguous significant purpose 
standard.
  The adoption of this amendment is seriously detrimental to the 
operation of our analysts and the DNI and the Attorney General would 
recommend a veto if it is adopted.
  We worked hard, and we have a good bipartisan bill that significantly 
adds to the protections of civil liberties. We need to pass this bill. 
I join with my colleague from West Virginia, the chairman of the 
committee, in urging our colleagues to oppose the amendment.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, we have made progress on FISA. We have more 
progress to make. It appears to me that this will be the last recorded 
vote. We have a number of other measures we are going to try to dispose 
of on this bill. I know we have at least one of Senator Bond's 
amendments that will be disposed of by voice vote. We have an agreement 
that we will move this bill forward for passage on Tuesday.
  On Tuesday, everyone, there will be no morning business. We will come 
in at 10 o'clock on Tuesday and start right on FISA, and hope by that 
time to have all of the debate completed on this legislation.
  Again, this will be the last vote today. I appreciate everyone's 
good, hard work this week and look forward to next week.
  Mr. FEINGOLD. Mr. President, I ask for the yeas and nays.
  The PRESIDING OFFICER. If all time is yielded back, the question is 
on agreeing to the amendment. The yeas and nays are ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton), 
the Senator from Nebraska (Mr. Nelson), the Senator from Illinois (Mr. 
Obama), and the Senator from North Dakota (Mr. Dorgan) are necessarily 
absent.
  Mr. KYL. The following Senator is necessarily absent. The Senator 
from Arizona, (Mr. McCain).
  The PRESIDING OFFICER (Mr. Casey). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 38, nays 57, as follows:

                      [Rollcall Vote No. 12 Leg.]

                                YEAS--38

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Conrad
     Dodd
     Durbin
     Feingold
     Harkin
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     Levin
     McCaskill
     Menendez
     Mikulski
     Murray
     Nelson (FL)
     Reed
     Reid
     Sanders
     Schumer
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                                NAYS--57

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

                             NOT VOTING--5

     Clinton
     Dorgan
     McCain
     Nelson (NE)
     Obama
  The amendment (No. 3913) was rejected.
  Mr. BENNETT. I move to reconsider the vote.
  Mr. SALAZAR. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. SALAZAR. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOND. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                    Amendment No. 3941, as Modified

  Mr. BOND. Mr. President, I call up amendment No. 3941, as modified, 
the Rockefeller-Bond amendment.
  The PRESIDING OFFICER. The amendment is pending.
  Mr. BOND. Mr. President, this amendment modifies a provision of the 
Protect America Act. I think, along with my colleague, the chairman of 
the committee, it makes a lot of sense. It lays out a process for the 
FISA Court to conduct a review of a petition from an electronic 
communication service provider challenging a directive from the 
Government in review of a petition by the Government to enforce 
compliance with its directive. Having the court conduct expedited 
reviews of these petitions, whether from the provider or from the 
Government, is in everyone's best interest.
  These questions are essential to be resolved one way or the other for 
the protection of the private partners, as well as the protection of 
our national security. As long as challenges of enforcement proceedings 
remain pending before the court, the intelligence community cannot 
intercept terrorist communications through that provider. Those are not 
unreasonable requirements. Rather, it reflects the judgment of this 
body and the other in the area of national security that important 
decisions that go to the heart of our intelligence production should be 
made on an expedited basis.
  The DNI and the Attorney General advised us they strongly support 
this amendment because it would ``ensure challenges to directives and 
petitions to compel compliance with directives are adjudicated in a 
manner that avoids undue delays in critical intelligence collection.'' 
We could not agree more.
  I hope we will be able to accept this amendment.
  I yield the floor to my distinguished chairman.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, my remarks are only to indicate 
strong support for this amendment. It is a wise modification. As far as 
I know, there are none who are in dissent. I hope it will be accepted.
  The PRESIDING OFFICER. All time is yielded back. The question is on 
agreeing to amendment No. 3941, as modified.
  The amendment (No. 3941), as modified, was agreed to.
  Mr. BOND. I move to reconsider the vote.
  Mr. BENNETT. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BOND. Mr. President, we have made some progress today. We have 
laid out, through the good work of the leadership of this body, with 
Senator Reid and Senator McConnell, a means of going forward on 
Tuesday. We have now had over 2 weeks of debate on FISA. I think not 
only the fact that everything that could be said pro and con of all the 
amendments has been said, but I believe we have given everybody a 
chance to say it.
  The good news is that when Tuesday comes around, we will have short 
time agreements and proceed to vote on these critically important 
amendments, and then we hope cloture and, if cloture is invoked, final 
passage, with everybody having an opportunity to express themselves.
  Again, I personally express my thanks to the leadership, to the 
members of the committee who stood with

[[Page S778]]

us and our staff, and I thank our colleagues for letting us come to 
this position where we see the end in sight.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, in every respect, I second the words 
of the vice chairman of the Senate Intelligence Committee. Speaking for 
this Senator, in the course of last year, this Senator has spent 6 
months working on the children's health insurance bill with staff who 
do so much work that they sleep 2 or 3 hours a night, including the 
weekends, and achieved nothing. We have had, in a sense, the same 
process on the FISA bill. It is very complicated because it is a very 
delicate subject and requires this very difficult balance between 
intelligence collection for the security of the Nation and civil 
liberties of the people.
  I am extremely proud of the way the vice chairman and others, 
particularly the majority leader and the minority leader, have 
conducted this affair. It took quite some time to get it going. I do 
believe I also see light at the end of the tunnel. I think if we do our 
work on Tuesday, we will have time to conference this bill with the 
House and send a bill to the President. In any event, I am grateful, 
particularly to the staff whose work is never mentioned enough.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. BENNETT. Mr. President, I ask unanimous consent that I might be 
allowed to proceed as in morning business for the next 5 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________