[Congressional Record Volume 154, Number 22 (Monday, February 11, 2008)]
[Senate]
[Pages S827-S844]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                      FISA AMENDMENTS ACT OF 2007

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 2248, which the clerk will 
report.
  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. 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.
       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.

  Mr. KYL. Mr. President, today we are debating the amendments to the 
Foreign Intelligence Surveillance Act. I am going to say a few words 
about why Congress ought to provide legal relief to those private 
entities that have aided the United States in our war against al-Qaida 
and, in particular, one of the amendments that will be voted on 
tomorrow.
  I begin by quoting a passage in an opinion by Justice Cardozo, from 
the time when he was the chief judge of the New York Court of Appeals. 
In the 1928 decision Baggington v. Yellow Taxi Corp., this is what 
Justice Cardozo had to say about the legal immunities that should be 
provided to private parties that assist law enforcement efforts:

       The rule that private citizens acting in good faith to 
     assist law enforcement are immune from suit ensures that the 
     citizenry may be called upon to enforce the justice of the 
     State, not faintly and with lagging steps, but honestly and 
     bravely and with whatever implements and facilities are 
     convenient and at hand.

  We need to encourage citizen involvement in our efforts against al-
Qaida. We know that good intelligence is the best way to win the war 
against those terrorists, and if we want to monitor al-Qaida, we need 
access to the information which is available through the 
telecommunications companies.
  We asked them for help, and they provided that help at a critical 
time, after 9/11. We need to know, for example, whether al-Qaida 
terrorists are planning other attacks against us. When we ask parties 
to assist us, such as those telecommunications companies that assisted 
us after 9/11, we want them to reply not faintly and with lagging steps 
but, rather, in Justice Cardozo's words: We want them to answer the 
call honestly and bravely and with whatever implements and facilities 
are conveniently at hand.
  In today's technological world, what that means is that when we ask 
these telecommunications companies for their support, they provide the 
incredibly intricate and advanced technology at their disposal to 
assist us in understanding what communications al-Qaida is having with 
each other.
  Now, tomorrow we are going to be voting on some amendments which, in 
my view, weaken and in one case would actually strip the liability 
protections the Intelligence Committee bill provides to such private 
parties. I think these amendments are unwise.
  Certainly, I urge my colleagues to reject them. Let me focus on one 
of them today, one that relates to a subject called substitution. The 
idea is that while it would be unfair to hold these telecommunications 
companies responsible for coming to the aid of the Government in its 
time of need, that they should be immune from liability, that we should 
somehow substitute the U.S. Government in their place and that would 
somehow balance the equities here of having the matter litigated and 
yet protecting the telecommunication companies.
  There are several reasons why this simply does not work. In the first 
place, it would still be required to reveal the identity of the company 
involved. Part of this entire matter is protecting the identity of the 
company so it does not lose business around the world and so it is not 
subject to the kind of abuse that would otherwise occur.
  In addition to that, full discovery could be conducted. In other 
words, depositions could be taken, interrogatories could be served. In 
every respect, the company is not protected from the legal process, it 
is simply not liable at the end of the day; it would only be the 
Government that would be liable.
  But the individuals of the company and the company itself would still 
be subject to all the rigors of litigation which we are trying to 
protect them from. The litigation does not go away. In addition to 
that, a method has been set up to litigate this before the FISA Court, 
which misunderstands what the FISA Court is. The FISA Court is not like 
the Ninth Circuit Court of Appeals. The FISA Court is individual judges 
called upon primarily to issue warrants that permit the Government to 
engage in its intelligence operations.
  So you do not have a court sitting the way you do in a typical 
Federal district court or a circuit court. This FISA Court would 
presumably have to litigate whether the companies are entitled to 
substitution, so it is not a free substantiation but, rather, if they 
can prove that they are entitled to the substitution.
  Finally, the point of having this liability protection for the 
Government's purpose is first and foremost because of the need to 
protect its sources and methods of intelligence collection from the 
enemy or from the public at large. Of course, if you still have the 
litigation ongoing, if you still have the process, it is just that 
Party A is liable rather than Party B.
  You still have the threat that sources and methods could be 
compromised, information relating to the activity could be disclosed, 
as it has in the current debate. We should remind ourselves that what 
we are debating publicly is a system of collection that has been, to 
some extent, defined by public discussion of matters that were and 
should have been totally classified.
  We have given the enemy a great deal of information about how to 
avoid the kind of collection that is vital to our efforts. That is the 
kind of thing we are trying to prevent. So substitution, simply 
substituting the Government as a party for the phone companies does not 
solve that problem either. The bottom line is, that as with these other 
amendments, the so-called substitution amendment is not a good 
amendment, it should be rejected, and I hope at the end of the day we 
will have been able to vote it down.
  Let me conclude by repeating some of the things the Statement of 
Administrative Policy stated in quoting the Intelligence Committee's 
conclusions in its report.
  Al-Qaida has not ceased to exist in years since the September 11 
attacks. It still exists and it still seeks the wholesale murder of 
American civilians. We know how devastating such attacks can be. And we 
know that once an attack is underway--once a plane has been hijacked, 
or a bomb has been assembled--it is too late. We need to stop al-Qaida 
attacks before they are executed, before they are being carried out. We 
need to act at a time when such attacks are still being planned or when 
al-Qaida terrorists are still being prepared.
  To gather this type of intelligence--the intelligence needed to stop 
a terrorist attack--we will need the assistance of private parties. 
Information about al-Qaida's communications, its travel, and other 
activities often is in the hands of private parties. If we want to 
monitor al-Qaida we will need access to information. And when 
telecommunications companies or others are asked for their help in 
tracking, for example, an al-Qaida cell that may be operating in this 
country, we do not want those parties to reply ``faintly and with 
lagging steps.'' Rather, in

[[Page S828]]

Justice Cardozo's words, we want them to answer the call for assistance 
``honestly and bravely and with whatever implements and facilities are 
convenient at hand.''
  The Senate Intelligence Committee bill contains provisions that 
ensure that results that future requests for assistance will be met 
``honestly and bravely,'' rather than with fear of becoming embroiled 
in litigation. Tomorrow the Senate will be voting on amendments that 
seek to strip out or weaken the legal protections that the Intelligence 
Committee bill provides to private parties that assist antiterrorism 
investigations. These amendments are unwise, and I would strongly urge 
my colleagues to reject them.
  As the Statement of Administration Policy on the Judiciary Committee 
bill notes, the failure to provide strong legal protections to private 
parties would undermine U.S. efforts to respond to and stop al-Qaida in 
two ways: first, it allows the continuation of litigation that has 
already resulted in leaks that have done serious damage to U.S. 
counterterrorism efforts. This litigation is inherently and inevitably 
damaging to U.S. efforts to monitor al-Qaida's communications. As one 
Intelligence Committee aide aptly characterized the situation, allowing 
this litigation to go forward would be the equivalent of allowing the 
legality of the Enigma code-breaking system to be litigated during 
World War II.
  In addition, the failure to provide protection to third parties who 
have assisted the United States would undermine the willingness of such 
parties to cooperate with the Government in the future. And such 
cooperation is essential to U.S. efforts to track al-Qaida. As the SAP 
on this bill further explains:
  In contrast to the Senate Intelligence Committee bill, the Senate 
Judiciary Committee substitute would not protect electronic 
communication service providers who are alleged to have assisted the 
Government with communications intelligence activities in the aftermath 
of September 11th from potentially debilitating lawsuits. Providing 
liability protection to these companies is a just result. In its 
Conference Report, the Senate Intelligence Committee ``concluded that 
the providers . . . had a good faith basis for responding to the 
requests for assistance they received.''
  The Committee further recognized that ``the Intelligence Community 
cannot obtain the intelligence it needs without assistance from these 
companies.'' Companies in the future may be less willing to assist the 
Government if they face the threat of private lawsuits each time they 
are alleged to have provided assistance.
  The Senate Intelligence Committee concluded that: ``The possible 
reduction in intelligence that might result from this delay is simply 
unacceptable for the safety of our Nation.'' Allowing continued 
litigation also risks the disclosure of highly classified information 
regarding intelligence sources and methods. In addition to providing an 
advantage to our adversaries by revealing sources and methods during 
the course of litigation, the potential disclosure of classified 
information puts both the facilities and personnel of electronic 
communication service providers and our country's continued ability to 
protect our homeland at risk. It is imperative that Congress provide 
liability protection to those who cooperated with this country in its 
hour of need.

  The ramifications of the Judiciary Committee's decision to afford no 
relief to private parties that cooperated in good faith with the U.S. 
Government in the immediate aftermath of the attacks of September 11 
could extend well beyond the particular issues and activities that have 
been of primary interest and concern to the Committee. The Intelligence 
Community, as well as law enforcement and homeland security agencies, 
continue to rely on the voluntary cooperation and assistance of private 
parties. A decision by the Senate to abandon those who may have 
provided assistance after September 11 will invariably be noted by 
those who may someday be called upon again to help the Nation.
  Many members of the Senate Majority insist that there be stringent 
congressional oversight of these intelligence-collection programs. No 
one disputes that point. All agree that we need oversight over the 
intelligence agencies. That is why this Congress and previous 
Congresses have agreed on a bipartisan basis to create robust oversight 
of U.S. intelligence gathering, even when such intelligence gathering 
is directed at foreign targets. The agencies executing wiretaps and 
conducting other surveillance must report their activities to Congress 
and to others, so that opportunities for domestic political abuse of 
these authorities are eliminated.
  I conclude by asking: what is the Senate's goal? Do we want to allow 
our intelligence agencies to be able to obtain the assistance of 
telecommunications companies and other private parties when those 
agencies are investigating al-Qaida? If so, then we need to create a 
legal environment in which those companies will be willing to 
cooperate--an environment in which their patriotic desire to assist the 
United States does not conflict with their duties to their shareholders 
to avoid expensive litigation.
  We need to write the laws to ensure against the domestic political 
abuse of surveillance authority, and we have done that. The question 
now is whether we want to give our intelligence agents the tools that 
they need to track al-Qaida. We should do so, and in order to do so, we 
must defeat amendments that would weaken the bill's legal protections 
for private parties who assist the government's efforts against al-
Qaida.
  To conclude, we obviously want to write our laws to ensure that in 
intelligence collection, and any kind of this activity, the rights of 
American citizens are fully protected, that we protect against domestic 
political abuse of surveillance authority. We have done that.
  The question now is whether we want to give our intelligence agencies 
the tools they need to track al-Qaida and other terrorists. We should 
do so, and in order to do so, we have to defeat amendments that would 
weaken the Intelligence Committee bill, which lays out a good process 
for balancing the equities involved and ensuring that we have provided 
not only the Government agencies what they need to do the job we have 
asked them to do but also to protect the private parties whom the 
Government has asked to volunteer to help and which up to now they have 
been able to do because they felt that what they did would be protected 
from liability.
  Without that liability protection, the kind of negative results would 
occur which I have identified.
   So I hope that when this substantiation amendment comes before us, 
we will vote it down and that we will also reject the other amendments 
which are designed to weaken the Intelligence Committee FISA bill.
  Mr. HATCH. Would the Senator from California yield for a unanimous 
consent request?
  Mrs. FEINSTEIN. I will yield.
  Mr. HATCH. I ask unanimous consent that I be permitted to speak 
immediately following the Senator from California.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                           Amendment No. 3910

  Mrs. FEINSTEIN. Mr. President, I rise to speak on two of the 
amendments in the list of amendments to be voted on tomorrow. The first 
is amendment 3910. That relates to making the Foreign Intelligence 
Surveillance Act the exclusive authority for conducting electronic 
surveillance. This is cosponsored by Chairman Rockefeller, Chairman 
Leahy, by Senators Nelson of Florida, Whitehouse, Wyden, Hagel, 
Menendez, Snowe, Specter, Salazar, and I ask unanimous consent to add 
Senator Cantwell to that list.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mrs. FEINSTEIN. For the information of my colleagues, I do not intend 
to modify this amendment, and so I will be seeking a vote on the 
amendment as it is currently drafted.
  I voted in support of the FISA bill as a member of the Intelligence 
Committee. But I made clear in that committee, as well as in statements 
called additional views, which are attached to the report of the bill, 
that I coauthored with Senators Snowe and Hagel that changes were 
necessary.
  In the Judiciary Committee, we were able to secure improvements to 
the Intelligence Committee's bill that I believed were needed. Most 
importantly,

[[Page S829]]

the Judiciary Committee added strong exclusivity language similar to 
the amendment I have now before the Senate.
  Unfortunately, the Judiciary package was not adopted on the floor. So 
the amendments we present are designed to restore the exclusivity 
language I believe is vital to FISA and goes to the heart of the debate 
on this bill, which is whether this President or any other President 
must follow the law.
  With strong exclusivity language, which is what we try to add, we 
establish a legislative record that the language and the intent of the 
Congress compels a President now and in the future to conduct 
electronic surveillance of Americans for foreign intelligence purposes 
within the parameters and confines of this legislation.
  The amendment makes the following important changes to the bill:
  First, it reinforces the existing FISA exclusivity language in title 
18 of the U.S. Code by restating what has been true in the statute 
since 1978--that FISA is the exclusive means for conducting electronic 
surveillance, period. So legislative intent is clear.
  Second, the amendment answers the so-called AUMF; that is, the 
authorization to use military force loophole used by the President to 
circumvent FISA.
  What is that? The administration has argued that the authorization of 
military force against al-Qaida and the Taliban implicitly authorized 
warrantless electronic surveillance. This is an argument embroidered on 
fiction, made up from nothing.
  Nonetheless, the executive has chosen to use it.
  Under our amendment, it will be clear that only an express statutory 
authorization for electronic surveillance in future legislation shall 
constitute an additional authority outside of FISA. In other words, if 
you are going to conduct surveillance outside of FISA, there has to be 
a law that specifically enables you to do so. Otherwise, you stay 
within FISA.
  Third, the amendment makes a change to the penalty section of FISA. 
Currently, FISA says it is a criminal penalty to conduct electronic 
surveillance except as authorized by statute. This amendment specifies 
that it is a criminal penalty to conduct electronic surveillance except 
as authorized by FISA or another express statutory authorization. This 
means that future surveillance conducted under an AUMF or other general 
legislation would bring on a criminal penalty. So follow the law or 
else there is a criminal penalty.
  Fourth, the amendment requires more clarity in a certification the 
Government provides to a telecommunications company when it requests 
assistance for surveillance and there is no court order. Henceforth, 
the Government will be required to specify the specific statute upon 
which the authority rests for a request for assistance.
  I believe our amendment will strengthen the exclusivity of FISA. I 
believe it is critical. Without this strong language, we run the risk 
that there will be future violations of FISA, just as there have been 
present violations of FISA. History tells us that this is very 
possible.
  Let me go into the history for a minute because it is interesting how 
eerily similar events of the past were to events of today. Let me tell 
this body a little bit about something called Operation Shamrock.
  In its landmark 1976 report, the Church Committee disclosed, among 
other abuses, the existence of an Operation titled ``Shamrock.'' What 
was Shamrock? It was a program run by the NSA and its predecessor 
organizations from August of 1945 until May of 1975. That is, for 30 
years, the Government received copies of millions of international 
telegrams that were sent to, from, or transiting the United States. The 
telegrams were provided by major communications companies of the day--
RCA Global and ITT World Communications--without a warrant and in 
secret. A third company, Western Union International, provided a lower 
level of assistance as well.
  It is estimated that at the height of the program, approximately 
150,000 communications per month were reviewed by NSA analysts. So 
telegrams coming into the country and going out of the country all went 
through NSA.
  According to the Church Committee report, the companies agreed to 
participate in the program, despite warnings from their lawyers, 
provided they received the personal assurance of the Attorney General 
and later the President that they would be protected from lawsuit.
  The NSA analyzed the communications of Americans in these telegrams 
and disseminated intelligence from these communications in its 
reporting.
  If all of this history sounds eerily familiar, it should. The 
parallels between Shamrock and the Terrorist Surveillance Program are 
uncanny, especially when one considers that FISA was passed in 1978 as 
a direct result of the Church Committee's report. Yet here we are, same 
place, again today.
  Almost immediately after the Church Committee's report was unveiled, 
Congress went to work on what is now the Foreign Intelligence 
Surveillance Act to put an end to warrantless surveillance of 
Americans. FISA states that when you target surveillance on Americans, 
you need a court order, period.
  Some of my colleagues argue that FISA was not the exclusive authority 
since 1978 and that the President has inherent article II authorities 
to go around FISA.
  On the first point, the legislative history and congressional intent 
from 1978 is clear: Congress clearly intended for FISA to be the 
exclusive authority under which the executive branch may conduct 
electronic surveillance.
  Let me read what the Congress wrote in 1978 in report language 
accompanying the bill:

       [d]espite any inherent power of the President--

  That means despite any article II authority--

     to authorize warrantless electronic surveillance in the 
     absence of legislation, by this bill and chapter 119 of title 
     18, Congress will have legislated with regard to electronic 
     surveillance in the United States, that legislation with its 
     procedures and safeguards, prohibits the President, 
     notwithstanding any inherent powers, from violating the terms 
     of that legislation.

  That is the report language written in 1978.
  The congressional debate also took on the Supreme Court's decision in 
the Keith case in which the Court ruled that since Congress hadn't 
enacted legislation in this area at that time, then it simply left 
the Presidential powers where it found them. Right? Wrong. In response 
to the Court's decision, the 1978 congressional report stated the 
following:

       The Foreign Intelligence Surveillance Act, however, does 
     not simply leave Presidential powers where it finds them. To 
     the contrary, this bill would substitute a clear legislative 
     authorization pursuant to statutory, not constitutional, 
     standards.

  Clear. Distinct. Definitive.
  It is important that the record here today clearly reiterates that in 
1978 there was an unambiguous position that FISA was the exclusive 
authority under which electronic surveillance of Americans could be 
conducted. This was in the bill language and the report language as 
passed by the 95th Congress.
  But FISA's exclusivity was recognized not just by the Congress. The 
executive branch also agreed that FISA was controlling and that any and 
all electronic surveillance would be conducted under the law.
  President Carter at the time issued a signing statement to the bill. 
This wasn't a signing statement like we see today. It was not used to 
express the President's disagreement with the law or his intent not to 
follow part of the law. Rather, President Carter used his statement to 
explain his understanding of what the law meant.
  Here it is in direct quote:

       The bill requires, for the first time, a prior judicial 
     warrant for all electronic surveillance for foreign 
     intelligence or counterintelligence purposes in the United 
     States in which communications of U.S. persons might be 
     intercepted.

  Again, clear, distinct, definitive.
  By issuing this statement, President Carter and the executive branch 
affirmed not only Congress's intent to limit when the executive branch 
could conduct surveillance, but it ratified that Congress had the power 
to define the parameters of executive authority in this area.
  So there was an abuse--Operation Shamrock--similar to this incident 
with the telecoms today, followed by a clear act of Congress in passing 
FISA,

[[Page S830]]

followed by a clear statement of the executive affirming the meaning of 
FISA. Together, these acts were taken to end the exercise of unchecked 
executive authority. Here we are, back in 1978 today.
  Despite the 1978 language and Congress's clear willingness to amend 
FISA to make it apply to the new war against terrorism early in its 
tenure, the Bush administration decided that it would act outside the 
law. This was a conscious decision. Not one part of FISA was ever tried 
to be put under the auspices of the FISA law and the Foreign 
Intelligence Surveillance Court. That was both wrong and unnecessary.
  To justify this mistake, the Department of Justice developed a new 
convoluted argument that Congress had authorized the President to go 
around FISA by passing the authorization for use of military force 
against al-Qaida and the Taliban. Can anybody really believe that? 
This, too, was wrong. I was there. I sat in most meetings. I defy 
anybody in this body to come forward and tell me privately or publicly 
that going around FISA was ever contemplated by the AUMF. In fact, it 
was not. It was never even considered.
  Apparently not confident of its AUMF argument, the administration 
decided to also assert a broad theory of Executive power, premised on 
Article II of the Constitution. These are the powers of the President.
  Under this argument, the Bush administration asserted that despite 
congressional action, the President has the authority to act 
unilaterally and outside of the law if he so chooses, simply by virtue 
of his role as Commander in Chief. While Presidents throughout history 
all tried to expand their power, this new twist would place the 
President of the United States outside the law. Taken to its logical 
conclusion, if the Congress cannot enact statutes that the President 
must follow, then he is above the law. I disagree with that position. I 
do not believe anyone can be above the rule of law. But I am not the 
only one.
  Justice Jackson described it best in his Youngstown opinion. In 1952, 
against the backdrop of the Korean war, the Supreme Court addressed the 
issue of when congressional and executive authorities collide in the 
Youngstown Sheet and Tube Company v. Sawyer. The question presented in 
Youngstown was whether President Truman was acting within his 
constitutional powers when he issued an order directing the Secretary 
of Commerce to take possession of and operate most of the Nation's 
steel mills. In other words, the Government was going to take over the 
steel mills.
  The Truman administration argued that the President was acting within 
his inherent power as Commander in Chief in seizing the steel mills, 
since a proposed strike by steelworkers would have limited the Nation's 
ability to produce the weapons needed for the Korean war.
  The Bush administration today is making the very same argument. It is 
asserting that the President's constitutional authorities as Commander 
in Chief trump the law. However, in a 6-to-3 decision in Youngstown, 
the Supreme Court held that President Truman exceeded his 
constitutional authority. Justice Jackson authored the famous 
concurring opinion, setting forth the three zones into which 
Presidential actions fall.

  The first zone: When the President acts consistently with the will of 
Congress, the President's power is at its greatest.
  Two: When the President acts in an area in which Congress has not 
expressed itself, there is an open question as to the scope of 
congressional and Presidential authority. So we know the first two.
  The third zone: When the President acts in contravention of the will 
of Congress, Presidential power is at its lowest.
  That is where we are right now. Clearly, President Bush acted outside 
of the scope of the law. According to Youngstown, his power is at its 
lowest. The only way to test that is to bring a case before the Supreme 
Court again. But the fact the Court ruled against Truman in a situation 
of war--in a situation where a strike would have shut down the steel 
mills, when Truman tried to use his commander in chief authority to 
seize the steel mills, the Court said: You cannot do that, and then it 
went on to define the different zones of Presidential authority. It is 
a big opinion, and it is one which is often quoted in our judicial 
hearings on Supreme Court nominees.
  Justice Jackson also wrote:

       When the President takes measures incompatible with the 
     expressed or implied will of Congress--

  Which is this case--

     his power is at its lowest ebb, for then he can rely only on 
     his constitutional powers, minus any constitutional powers of 
     Congress over the matter.

  Now, this is key, this last part: Although Justice Jackson's opinion 
was not binding at the time, the Supreme Court has since adopted it as 
a touchstone for understanding the dimensions of Presidential power. 
The Youngstown case is as important today as it was then.
  That is why I am proposing this amendment. I want to make it crystal 
clear, and my cosponsors want to make it crystal clear, that Congress 
has acted to prohibit electronic surveillance on U.S. persons for 
foreign intelligence purposes outside of FISA, and this amendment does 
that.
  One day this issue is going to be before the Court, and on that day I 
want the Justices to be able to go back and see the legislative intent; 
the legislative intent as it was in the Judiciary Committee, the 
legislative intent as it is here on the floor, and the legislative 
intent of this amendment to strengthen the exclusivity parts of FISA.
  What we have here is a case of history repeating itself: abuse 
followed by a clear statement from Congress, then another abuse with 
the Terrorist Surveillance Program. It too should be followed by a 
clear statement from Congress.
  Now is the time for the Congress of the United States to reassert its 
constitutional authorities and pass a law that clearly and 
unambiguously prohibits warrantless surveillance outside of FISA. Now 
is the time to say that no President, now or in the future, can operate 
outside of this law.
  I mentioned that in 2001 the President chose to go outside of FISA. 
In January of 2007, after the Intelligence Committee learned about the 
full dimensions of the law, guess what. The executive branch brought it 
to the Court and bit by bit put the program under the Foreign 
Intelligence Surveillance Court. Today, the entire program is within 
the parameters of the Foreign Intelligence Surveillance Court.
  What I am saying to this body is it was a terrible misjudgment not to 
do so in 2001, because I believe the Foreign Intelligence Surveillance 
Court would have given permission to the program. So I believe this 
amendment is absolutely crucial, and I very much hope it will pass 
tomorrow.
  Now, if I may, I wish to speak in support of my amendment to replace 
the full immunity in the underlying bill with a system of FISA Court 
review. This is amendment No. 3919. I am joined in this amendment by 
Senators Bill Nelson, Ben Cardin, and Ken Salazar. I ask unanimous 
consent to add Senator Whitehouse as a cosponsor, and I know that 
Senator Whitehouse wishes to come to the floor to speak to this 
amendment.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mrs. FEINSTEIN. This amendment is about allowing a court to review 
the request for immunity for the telecommunications companies, but in a 
way that is carefully tailored to meet this unique set of suits. It 
allows for the good faith defense if the companies reasonably believed 
the assistance they provided the Government was legal.
  As Members know, the FISA Court comprises 11 Federal district court 
judges appointed by the Chief Justice. It has heard thousands of 
applications for FISA warrants and has recently made determinations on 
the executive's procedures under the Protect America Act. In January of 
2007, the Court put the entire Terrorist Surveillance Program under its 
jurisdiction. Its judges and its staff are experts in surveillance law, 
and the Court protects national security secrets.
  Let me describe the amendment briefly. Under this amendment, the FISA 
Court is directed to conduct a tailored, three-part review.
  Part one: The FISA Court will determine whether a telecommunications 
company actually provided the assistance to the Federal Government as

[[Page S831]]

part of the Terrorist Surveillance Program. If not, those cases are 
dismissed. So if you didn't give help and you have litigation pending, 
the case is dismissed, period.
  Second: If assistance was provided, the Court would review the 
request letters sent from the Government to the companies every 30 to 
45 days. The FISA Court would then have to determine whether these 
letters, in fact, met the requirements of the applicable law. There is 
law on this. It is part of FISA. It is 18 U.S.C. 2511. If they met the 
requirements, the cases against the companies are dismissed.
  Now, let me tell my colleagues what the law says. Sections 
2511(2)(a)(ii)(A) and (ii)(B) state that companies are allowed to 
provide assistance to the Government if they receive a certification in 
writing by a specified person (usually the Attorney General or a law 
enforcement officer specifically designated by the Attorney General).
  The certification is required to state that no warrant or court order 
is required by law, that all statutory requirements have been met, and 
that the specified assistance is required by the Government. Now that 
is what the law says. It is short, it is succinct, it is to the point.
  The question is: Do the specifics of the actual documents requesting 
assistance meet the letter of this law with respect to contents and 
timing. If they did, the companies would be shielded from lawsuits. 
Why? Because that is the law. That is what the law says. No one would 
want us not to follow the law.
  Finally, in any case where the defendant company did provide 
assistance but did not have a certification that complied with the 
requirements I have read, the FISA Court would assess whether the 
company acted in good faith, as has been provided under common law.
  There are several cases of common law that describe what is called 
the good faith defense--the U.S. v. Barker, Smith v. Nixon, Halperin v. 
Kissinger, and Jacobson v. Bell Telephone. So there is common law on 
the subject.
  There would be at least three lines of defense for defendant 
companies in this situation. They could argue that the assistance was 
lawful under the statutes other than 18 U.S.C. 2511--the law I have 
cited; that they believed, perhaps wrongly, that the letters from the 
Government were lawful certifications; or that complying with the 
request for assistance was lawful because the President had article II 
authority to conduct this surveillance. They could make their 
arguments, and the plaintiffs, against the defendant companies, could 
make their arguments.

  In this case, the FISA Court would then determine whether the company 
acted in good faith and whether it had an objectively reasonable belief 
that compliance with the Government's written request or directives for 
assistance were lawful. If the Court finds that the company met this 
standard, the lawsuits would be dismissed.
  I believe this very narrow three-part test strikes the right balance 
between the competing interests in the immunity debate. This amendment 
neither dismisses the cases wholesale, nor does it allow the cases to 
proceed if the companies had an objectively reasonable belief that 
their compliance was lawful.
  Let me point out for a moment some of the history relevant to this 
issue.
  First: Requests for assistance from the Government to the telecoms 
came about 1 month following the worst terrorist attack against our 
Nation. That is fact. There was an ongoing acute national threat. That 
is a fact. The administration was warning that more attacks might be 
imminent. That was fact. And we now know that there was a plot to 
launch a second wave of attacks against the west coast.
  Two: Certain telecom companies received letters every 30 to 45 days 
from very senior Government officials. That is fact. I have read them. 
The letters said the President had authorized their assistance. That is 
fact. They also said the Attorney General had confirmed the legality of 
the program. That is fact. These assurances were from the highest 
levels of the Government.
  Third: Only a very small number of people in these companies had the 
security clearances to be allowed to read the letters, and they could 
not consult others with respect to their legal responsibility, nor are 
these telecommunication company executives expert in separation of 
powers law--either article II legal arguments or the flawed AUMF 
argument.
  Fourth: As I mentioned, common law has historically provided that if 
the Government asks a private party for help and makes such assurances 
that help is legal, the person or company should be allowed to provide 
assistance without fear of being held liable. That is true. Common law 
does this. One would think this would be especially true in the case of 
protecting our Nation's security.
  Fifth, taking no legislative action on the pending cases ignores the 
fact that these companies face serious, potentially extraordinarily 
costly litigation but are unable at the present time to defend 
themselves in court. The Government has invoked the state secrets 
defense.
  Now, this is a sort of insidious defense. It places the companies in 
a fundamentally unfair place. Individuals and groups have made 
allegations to which companies cannot respond. They cannot answer 
charges, nor can they respond to what they believe are misstatements of 
fact and untruths.
  Bottom line, they cannot correct false allegations or misstatements, 
they cannot give testimony before the court, and they cannot defend 
themselves in public or in private.
  While I have concerns about striking immunity altogether or 
substituting the Government for the companies, I don't believe full 
immunity is the best option without having a court review the 
certification and the good-faith defense.
  Currently, under FISA there is a procedure that allows the Government 
to receive assistance from telecommunications companies. As I have 
already described, title 18 of the U.S. Code, section 2511, states that 
the Government must provide a court order or a certification in writing 
that states:

       No warrant or court order is required by law, that all 
     statutory requirements have been met, and that the specified 
     assistance is required, setting forth the period of time 
     during which the provision of the information, facilities, or 
     technical assistance is authorized and specifying the 
     information, facilities, or technical assistance required. . 
     . .

  That is it. Under the law, these are the circumstances under which a 
telecommunications company may provide information and services to the 
Government. Unfortunately, the administration chose not to go to the 
FISA Court in the fall of 2001 for a warrant. I will never understand 
why. Instead, it asserted that Article II of the Constitution allowed 
the President to act outside of FISA.
  However, as I said, by January of 2007--more than 5 years later--the 
entire Terrorist Surveillance Program was, in fact, brought under the 
FISA Court's jurisdiction. So, ultimately, the administration agreed 
that the program can and should be conducted under the law.
  Senators Nelson, Cardin, Salazar, Whitehouse, and I believe the 
question of whether telecommunications companies should receive 
immunity should hinge on whether the letters the Government sent to 
these companies met the requirements of 18 U.S.C. 2511 or, if not, if 
the companies had an objectionably reasonable belief their assistance 
was lawful, and what that objective belief was.
  In other words, we should not grant immunity if companies were 
willingly and knowingly violating the law.
  So the best way to answer this question is to allow an independent 
court, skilled in intelligence matters, to review the applicable law 
and determine whether the requirements of the law or the common law 
principle were, in fact, met. If they were, the companies would receive 
immunity; if not, they would not. But a court would make that decision, 
not a body, some of whom have seen the letters but most of whom have 
not. But it would be a court that is skilled in this particular kind of 
law.
  I want to briefly comment on procedure. I very much regret that this 
amendment faces a 60-vote threshold when the other two amendments 
relating to telecom immunity face majority votes. Clearly, someone was 
afraid this might get a majority vote and, therefore, they put on a 60-
vote requirement.
  This, I believe, is prejudicial, and it places a higher burden on 
this amendment. And the irony is, this amendment could be an acceptable 
solution

[[Page S832]]

for the other House, which has passed a bill that doesn't contain any 
provisions for immunity and has said they would not provide any 
provision for immunity. This is the way to handle that particular 
issue.
  I, therefore, urge my colleagues to support this amendment both on 
the merits and so that we can finish the FISA legislation. I hope the 
conferees will take a strong vote on this amendment--whether it reaches 
60 Senators to vote aye or not--as a signal that it is a good solution 
when the legislation goes to conference.
  Mr. President, I ask for the yeas and nays on both of these 
amendments.
  The ACTING PRESIDENT pro tempore. Is there objection to asking for 
the yeas and nays on the two amendments at this time?
  Without objection, it is so ordered.
  Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The ACTING PRESIDENT pro tempore. The Senator from Utah is 
recognized.
  Mr. HATCH. Mr. President, for the last 6 months I have come to the 
floor on numerous occasions to offer my support of the limited immunity 
provisions in the Rockefeller-Bond bill.
  In addition to my views on this subject, there are countless 
Americans who have expressed their support for the immunity provision.
  In fact, I ask unanimous consent to have printed in the Record a 
letter sent to the Senate leadership last month, which is signed by 21 
State attorneys general, which expresses their strong support for the 
immunity provision included in this bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                December 11, 2007.
     RE FISA Amendments Act of 2007 (S. 2248).

     Hon. Harry Reid,
     Senate Majority Leader,
     Washington, DC.
     Hon. Mitch McConnell,
     Senate Minority Leader,
     Washington, DC.
       Dear Majority Leader Reid and Minority Leader McConnell: We 
     understand that the Senate will soon consider S. 2248, the 
     FISA Amendments Act of 2007, as recently reported by the 
     Senate Select Committee on Intelligence. Among other things, 
     the bill would directly address the extensive litigation that 
     communications carriers face based on allegations that they 
     responded to requests from the government regarding certain 
     intelligence-gathering programs. For a number of reasons, we 
     support these carefully crafted provisions of the bill that 
     the Intelligence Committee adopted on a bi-partisan basis.
       First, protecting carriers from this unprecedented legal 
     exposure is essential to domestic and national security. 
     State, local and federal law enforcement and intelligence 
     agencies rely heavily on timely and responsive assistance 
     from communications providers and other private parties; 
     indeed, this assistance is utterly essential to the agencies' 
     functions. If carriers and other private parties run the risk 
     of facing massive litigation every time they assist the 
     government or law enforcement, they will lack incentives to 
     cooperate, with potentially devastating consequences for 
     public safety.
       Second, the provisions of the bill are consistent with 
     existing, long-standing law and policy. Congress has long 
     provided legal immunity for carriers when, in reliance on 
     government assurances of legality or otherwise in good faith, 
     they cooperate with law enforcement and intelligence 
     agencies. But because the government has invoked the ``state 
     secrets privilege'' with respect to the subject matter of the 
     cases, the carriers are disabled from mounting an effective 
     defense, they are not permitted to invoke the very immunities 
     written into the law for their benefit, and they cannot rebut 
     the media storm that has damaged the companies' reputations 
     and customer relationships. The immunity provisions of S. 
     2248 would overcome this paradox, but not simply by 
     dismissing the pending cases outright. Instead, they would 
     establish a thoughtful, multi-step process involving 
     independent review by the Attorney General and the courts 
     that, only when completed, would lead to dismissal of the 
     claims.
       Third, cases against the carriers are neither proper nor 
     necessary avenues to assess the legality of the government's 
     intelligence-gathering programs. Government entities or 
     officials are already parties in over a dozen suits 
     challenging the legality of the alleged programs, and the 
     immunity provisions in S. 2248 would have no impact on these 
     claims. In short, Congress should not, in a rush to hold the 
     government accountable for alleged wrongdoing, burden these 
     carriers with the substantial reputational damage and 
     potentially ruinous liability that could flow from these 
     suits. If these alleged programs were legally infirm, the 
     government, not private actors who acted in good faith and 
     for patriotic reasons, should answer for them.
       For these reasons, we urge that any FISA-reform legislation 
     adopted by the Senate include the carrier-immunity provisions 
     currently contained in S. 2248.
         Hon. W.A. Drew Edmondson, Attorney General of Oklahoma; 
           Hon. J.B. Van Hollen, Attorney General of Wisconsin; 
           Hon. John Suthers, Attorney General of Colorado; Hon. 
           Patrick Lynch, Attorney General of Rhode Island; Hon. 
           Bill McCollum, Attorney General of Florida; Troy King, 
           Attorney General of Alabama; Hon. Dustin McDaniel, 
           Attorney General of Arkansas; Hon. Thurbert E. Baker, 
           Attorney General of Georgia; Hon. Paul Morrison, 
           Attorney General of Kansas; Hon. Kelly Ayotte, Attorney 
           General of New Hampshire.
         Hon. Jon Bruning, Attorney General of Nebraska; Hon. 
           Wayne Stenehjem, Attorney General of North Dakota; Hon. 
           Roy Cooper, Attorney General of North Carolina; Hon. 
           Henry McMaster, Attorney General of South Carolina; 
           Hon. Tom Corbett, Attorney General of Pennsylvania; 
           Hon. Greg Abbott, Attorney General of Texas; Hon. Larry 
           Long, Attorney General of South Dakota; Hon. Bob 
           McDonnell, Attorney General of Virginia; Hon. Mark 
           Shurtleff, Attorney General of Utah; Hon. Darrell 
           McGraw, Attorney General of West Virginia; Hon. Bob 
           McKenna, Attorney General of Washington.

  Mr. HATCH. Mr. President, here is the list of the attorneys general 
who signed this letter endorsing the immunity provision in the original 
Rockefeller-Bond bill. They are attorneys general from the States of 
Wisconsin, Rhode Island, Oklahoma, Colorado, Florida, Alabama, 
Arkansas, Georgia, Kansas, Utah, Texas, New Hampshire, Virginia, North 
Dakota, North Carolina, South Carolina, Pennsylvania, South Dakota, 
Nebraska, West Virginia, and Washington.
  In addition, I ask unanimous consent to have printed in the Record 
four letters sent from law enforcement organizations, all in support of 
the immunity provision of the bill.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               National Sheriff's Association,

                                Alexandria, VA, November 13, 2007.
     Hon. Patrick J. Leahy
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Specter: On behalf 
     of the National Sheriffs' Association (NSA), I am writing to 
     urge you to support Section 202 of the FISA Amendments Act of 
     2007 (S. 2448). This extension of retroactive immunity under 
     the terms referenced in this section would have a significant 
     impact on the cooperative relationship between the government 
     and the private companies to safeguard public safety.
       As you know, the electronic surveillance for law 
     enforcement and intelligence functions depends in great part 
     on the cooperation of the private companies that operate the 
     nation's telecommunication system. Section 202 would provide 
     much needed liability relief to electronic communication 
     service providers that assisted the intelligence community to 
     implement the President's surveillance program in the 
     aftermath of September 11, 2001. The provision of retroactive 
     immunity would help ensure that these providers who acted in 
     good faith to cooperate with the government when provided 
     with lawful requests in the future.
       The nation's sheriffs recognize the critical role that 
     electronic communication service providers play in assisting 
     intelligence officials in national security activities. 
     However, given the scope of the current civil damages suits, 
     we are gravely concerned that, without retroactive immunity, 
     the private sector might be unwilling to cooperate with 
     lawful government requests in the future. The possible 
     reduction in intelligence that might result from protracted 
     litigation is unacceptable for the security of our citizens.
       As the Senate considers the FISA Amendments Act of 2007, we 
     strongly urge you to help preserve the cooperative 
     relationship between law enforcement and the private sector 
     by supporting Section 202.
           Sincerely,
                                              Sheriff Craig Webre,
     President.
                                  ____



                              The National Troopers Coalition,

                                Washington, DC, November 12, 2007.
     Hon. Patrick J. Leahy,
     Chairman, Senate Judiciary Committee, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Senate Judiciary Committee, Washington, DC.
       Dear Chairman Leahy and Ranking Member Specter: As the 
     Senate Judiciary Committee gets set to consider legislation 
     that would update the Foreign Intelligence Surveillance Act 
     (FISA), the National Troopers Coalition wishes to express its 
     support for Section 202 of the FISA Amendments Act of 2007. 
     This section is of particular importance to the NTC and law 
     enforcement in general

[[Page S833]]

     because it will have a significant impact on the cooperative 
     relationship between government and the private sector in 
     relation to public safety.
       Section 202 provides much needed relief from mass tort 
     litigation relief to telecommunications companies that helped 
     protect our nation after the horrific attacks of September 
     11, 2001. Should this narrow provision not be adopted, we 
     believe that all levels of law enforcement will suffer by 
     losing the cooperation of vital allies in our ongoing fight 
     againt crime. The chilling effect will be that businesses may 
     feel compelled to avoid the risk of litigation by declining 
     to cooperate with law enforcement even though they have every 
     reason to believe the request is lawful.
       In the weeks following the 9/11 attacks, some 
     telecommunications companies were apparently asked by the 
     President for their assistance with intelligence activities, 
     aimed at preventing similar attacks in the future. These 
     companies were assured that their compliance was necessary 
     and deemed lawful by the Attorney General. Upon complying 
     with the government's request, and providing information that 
     would keep the American people safe, these companies now face 
     the prospect of years of litigation, even though they cannot 
     defend themselves in court due to the highly classified 
     nature of the governmental program they were assured was 
     legal. This is disheartening, to say the least.
       The nation's State Troopers understand the vital role that 
     private businesses play in emergency situations and criminal 
     investigations, and we are concerned that if these companies 
     continue to be dragged through costly litigation for having 
     responded in these circumstances, it will deter their 
     voluntary cooperation with law enforcement authorities in the 
     future. When it comes to protecting the public from 
     terrorists, sophisticated international gangs and on-line 
     predators, government counts on its private sector partners 
     for help. We cannot afford to send the message that if you 
     cooperate with law enforcement you will be sued.
       As the Senate considers this legislation, we strongly urge 
     you to help preserve the cooperative relationship between law 
     enforcement and private businesses by supporting Section 202.
           Sincerely,
                                                Dennis J. Hallion,
     Chairman.
                                  ____

                                       National Narcotic Officers'


                                      Association's Coalition,

                               West Covina, CA, November 14, 2007.
     Re Support for Section 202 of the FISA Amendments Act of 2007

     Hon. Patrick Leahy,
     Chairman, Senate Committee on the Judiciary, Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Senate Committee on the Judiciary, 
         Washington, DC.
       Dear Chairman Leahy and Ranking Member Spector: I am 
     writing on behalf of the forty-four state narcotic officers' 
     associations and the more than 69,000 law enforcement 
     officers represented by the National Narcotic Officers' 
     Associations' Coalition (NNOAC) to encourage your strong 
     support for Section 202 of the FISA Amendments Act of 2007.
       Section 202 provides much-needed relief from mass tort 
     litigation towards telecommunications companies that helped 
     protect our nation after the horrific attacks of September 
     11, 2001. Should this provision not be adopted, we believe 
     that federal, state and local law enforcement will suffer by 
     losing important voluntary cooperation of allies in our 
     national fight against crime. Private corporations and 
     business may decide to avoid the risk of litigation by 
     declining to cooperate with law enforcement--even if they 
     have every reason to believe the request for their help is 
     lawful and just.
       The NNOAC understands and appreciates the vital role that 
     private businesses play in emergency situations and criminal 
     investigations. Our membership is very concerned that if 
     these corporate entities continue to be dragged through 
     costly litigation for having responded during dire 
     circumstances--like the terrorist attacks occurring on 
     September 11, 2001--it will have a chilling effect on the 
     private sector's voluntary cooperation with law enforcement 
     in the future. The United States government cannot afford to 
     send the message to corporate America that if you cooperate 
     with law enforcement and the office of the United States 
     Attorney General, you will get sued.
       Thank you for your consideration of this important 
     provision and your continued support towards law enforcement. 
     I am happy to discuss this issue further.
           Sincerely,
                                                 Ronald E. Brooks,
     President.
                                  ____

                                         International Association


                                          of Chiefs of Police,

                                Alexandria, VA, November 15, 2007.
     Hon. Patrick Leahy,
     Chair, Committee on the Judiciary, U.S. Senate, Washington, 
         DC.
       Dear Chairman Leahy: As President of the International 
     Association of Chiefs of Police (IACP), I am writing to 
     express my support for Section 202 of the FISA Amendments Act 
     of 2007. This section is of particular importance to law 
     enforcement because it will have a significant impact on the 
     vital cooperative relationship between government and the 
     private sector that is necessary to promote and protect 
     public safety.
       As you know, Section 202 provides relief from litigation to 
     telecommunications companies that responded to the 
     government's request for assistance following the horrific 
     attacks of September 11, 2001. It is my belief that failure 
     to adopt this provision could jeopardize the cooperation of 
     vital allies in our ongoing fight against crime and 
     terrorism. Businesses often feel compelled to avoid the risk 
     of litigation by declining to cooperate with law enforcement 
     even though they have every reason to believe the request is 
     lawful.
       Police chiefs understand the vital role that private 
     businesses often play in emergency situations and criminal 
     investigations, and we are concerned that if these companies 
     are faced with the threat of litigation for responding in 
     these circumstances, it will have a chilling effect on their 
     voluntary cooperation with law enforcement authorities in the 
     future.
       At this critical time in history, when federal, state, 
     tribal and local law enforcement agencies are striving to 
     protect the public from terrorists, sophisticated 
     international gangs, online predators, and other violent 
     criminals, it is extremely important that we be able to rely 
     on the private sector for much needed assistance.
       Therefore, as the Senate considers this legislation, I urge 
     you to help preserve the cooperative relationship between law 
     enforcement and private businesses by supporting Section 202.
       Thank you for your attention to this important matter and 
     for your efforts on behalf of law enforcement.
           Sincerely,
                                                Ronald C. Ruecker,
                                                        President.

  Mr. HATCH. Mr. President, The first letter is from the National 
Sheriffs Association on behalf of 20,000 nationwide sheriffs. It states 
in part:

       The Nation's sheriffs recognize the critical role that 
     electronic communication service providers play in assisting 
     intelligence officials on national security activities. We 
     are gravely concerned that, without retroactive immunity, the 
     private sector might be unwilling to cooperate with lawful 
     Government requests in the future. The possible reduction in 
     intelligence that might result from protracted litigation is 
     unacceptable to the security of our citizens. We strongly 
     urge you to help preserve the cooperative relationship 
     between law enforcement and the private sector by supporting 
     the immunity provision of this bill.

  The other letters include one from the National Troopers Coalition, 
on behalf of its 40,000 members, one from the International Association 
of Chiefs of Police, on behalf of its 21,000 members, and one from the 
National Narcotics Officers' Association's Coalition on behalf of its 
69,000 members. All of these letters support the retroactive immunity 
provision.
  I have to tell you, when 150,000 law enforcement personnel with 
tremendous experience and expertise say they support telecom 
retroactive immunity, we should be listening and we should be giving 
this great weight. They know firsthand the dangers we face and they 
know what is at stake.
  Let me talk a little about the Feinstein amendment No. 3910 on 
exclusive means. S. 2248 already has an exclusive means provision that 
is identical to the first part of the distinguished Senator's 
amendment. That provision simply restates Congress's intent back in 
1978, when FISA was enacted, to place the President at his lowest ebb 
of authority in conducting warrantless foreign intelligence 
surveillance.
  The current provision in S. 2248 was acceptable to all sides in the 
Intelligence Committee because it maintains the status quo with respect 
to the dispute over the President's constitutional authority to 
authorize warrantless surveillance.
  Unfortunately, the amendment of the distinguished Senator from 
California is a significant expansion of the bipartisan provision that 
we enacted in the Intelligence Committee bill. Her amendment goes 
further by stating that only an express statutory authorization for 
electronic surveillance, other than FISA or the criminal wiretap 
statutes, shall constitute additional exclusive means.
  This attempts to prohibit the President's exercise of his judicially 
recognized article II authority to issue warrantless electronic 
surveillance directives.
  During the next attack on our country or in the face of an imminent 
threat, the Congress may not be in a position to legislate an express 
authorization of additional means. We may get intelligence information 
about an imminent threat during a lengthy recess, over a holiday. Air 
travel may be inhibited.
  The bottom line is, we don't know what tomorrow will bring. Yet this

[[Page S834]]

provision of the distinguished Senator from California would raise 
unnecessary legal concerns that might impede effective action by the 
executive branch to protect this country.
  This amendment would also make members of the intelligence community 
who conduct electronic surveillance at the direction of the President 
subject to the FISA criminal penalty provisions of a $10,000 fine and 
imprisonment for not more than 5 years.
  Virtually all of these people are not partisan people. They are 
people who continue on regardless of what administration is involved. 
They are there to do the job to protect us. They are not partisans. We 
should not treat them as such, and certainly we should not be saying 
that if they make a mistake, they are subject to a criminal provision 
of a $10,000 fine or imprisonment of not more than 5 years. Also, it is 
likely these criminal penalties would apply to any service provider who 
assisted the Government in conducting such electronic surveillance. 
That makes it even tougher to get their cooperation. Up until now they 
have been willing to cooperate because they realize how important this 
work is, and they have the request of high-level officials in the 
Government. That should be enough to protect them. They are doing it 
patriotically, to protect our country. They should not be hampered nor 
should their general counsels have to make a decision that the U.S. 
Government will have to go to court, with all of the delays involved in 
that, in order to do what it takes to protect the people in this 
country.
  Regardless of what the skeptics and critics have said about the 
President's Terrorist Surveillance Program, the Constitution trumps the 
FISA statute. If a Government employee acts under the color of the 
President's lawful exercise of his constitutional authority, that 
employee should not be subject to a criminal penalty.
  In my opinion, the current restatement of exclusive means is fair and 
keeps the playing field level, and it is enough. Ultimately, the 
Supreme Court may decide whether Congress has the authority to limit 
the President's authority to intercept enemy communications. Until 
then, it is my hope that we don't try to tilt the balance in a way that 
we may someday come to regret.
  I urge my colleagues to vote against this exclusive means amendment.
  The next Feinstein amendment is No. 3919. This amendment alters the 
immunity provision of the Rockefeller-Bond bill. I will oppose this 
amendment.
  As has been said countless times, the immunity provision in this 
legislation was created after months of extensive debate and 
negotiation between the Congress and the intelligence community.
  I cannot emphasize enough the painstaking work that the Intelligence 
Committee undertook in order to create this immunity provision. The 
chairman of the Senate Select Committee on Intelligence stated the 
following in the Intelligence Committee report:

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

  The administration wanted more than what is in this bill, and they 
did not get it. In a bipartisan way, we came together to come up with 
this bill, and it should not be tampered with now on the floor.
  Let's look at what this means in relation to ongoing litigation. 
Since this immunity compromise provides no immunity for Government 
agencies or officials, the following seven cases will continue to be 
unaffected by this legislation. The immunity provision of the Senate 
Select Committee on Intelligence bill still allows TSP challenges in 
the al-Haramain Islamic Foundation, Inc. v. George W. Bush case, the 
ACLU v. National Security Agency case, the Center for Constitutional 
Rights v. George W. Bush case, the Guzzi v. George W. Bush case, the 
Henderson v. Keith Alexander case, the Shubert v. George W. Bush case, 
and the Tooley v. George W. Bush case.
  I wish to draw attention to the first case. The al-Haramain Islamic 
Foundation has been designated by the Department of the Treasury as a 
``specially designated global terrorist'' for providing support to al-
Qaida and was similarly designated by the United Nations Security 
Council. If there ever was a case that should be dismissed, this is 
it--a terrorist organization providing support to al-Qaida sues the 
President for listening to their terrorist conversations. Unbelievable. 
And yet since the immunity provision in this bill is silent on the 
issue, the case will go on.
  I highlight this case to remind people the provision in the bill 
already represents a compromise. The provision in the original bill 
passed by a 13-to-2 bipartisan vote out of the Intelligence Committee 
on which I serve. Despite repeated attempts to tweak this compromise, 
it remains the most appropriate and just mechanism for the resolution 
of this issue.
  Just like the faulty ideas of Government indemnification and 
Government substitution, the Foreign Intelligence Surveillance Court 
review of certifications is yet another alternative that fails to 
improve on the original bipartisan immunity compromise we have in the 
bill before us.
  I will oppose any provisions which weaken the immunity compromise. 
This amendment we are debating will do exactly that. Rather than rely 
on the carefully crafted language, this amendment introduces radically 
new ideas which completely change the dynamics of the immunity 
provision of the bipartisan bill. Rather than allowing the presiding 
district judge to review the Attorney's General certification called 
for in this bill, this amendment unnecessarily expands the Foreign 
Intelligence Surveillance Court jurisdiction into areas unheard of when 
this court was created nearly 30 years ago and equally unheard of in 
the year 2008.
  Let's remember what it is that the Foreign Intelligence Surveillance 
Court was created to do:

       A court which shall have jurisdiction to hear applications 
     for and grant orders approving electronic surveillance.

  That is the mission of the FISC. So the FISC hears applications for 
and grants orders approving electronic surveillance. That is it. That 
is all they were created to do and rightly so. These are judges from 
all over the country who serve on the FISC at special times and do read 
these briefs, do read these legal matters that come before them, and 
then do exactly that, ``a court which shall have jurisdiction to hear 
applications for and grant orders approving electronic surveillance.''
  Yet this legislation will completely alter the nature of this court 
by transforming it into a trial court for adversarial litigation. This 
completely alters the intention of FISA from 1978 which carefully 
created this court. The role of the FISC, or Federal Intelligence 
Surveillance Court, has been greatly misunderstood during this debate.
  I suggest we pay close attention to the recent opinion from the FISC, 
which is only the third public opinion in the history of the FISC, and 
that is over a 30-year period. The importance of this quote has been 
emphasized many times by Senator Bond, and this is what the FISC said:

       Although the FISC handles a great deal of classified 
     material, FISC judges do not make classification decisions 
     and are not intended to become national security experts. 
     Furthermore, even if a typical FISC judge had more expertise 
     in national security matters than a typical district court 
     judge, that expertise would not be equal to that of the 
     executive branch which is constitutionally entrusted with 
     protecting the national security.

  I understand there are certain Senators in this body who dislike 
President Bush. That is their right. But on the other hand, there may 
come a time when a President of their party may have to protect our 
country. They ought to think it through because they are taking away 
the tools that are necessary to protect our country in a zeal to go 
beyond what the FISC was ever designated to do.
  Going beyond the fact this amendment would turn the role of the FISA 
Court on its head, let's look at what the FISC is asked to do in this 
amendment. According to the language, liability protection would only 
occur in three limited instances: One, the statutory defense in 18 
U.S.C. 2511(2)(a)(ii)

[[Page S835]]

has been met. Two, the assistance of electronic surveillance service 
providers was undertaken on good faith and pursuant to an ``objectively 
reasonable belief'' that compliance with the Government's directive was 
lawful. And three, assistance was not provided.
  Regarding the first instance in which litigation would be dismissed, 
we need to realize 18 U.S.C. 2511 is not the only statute that allows 
the Government to receive information from telecommunications 
companies. There are numerous statutes which authorize the Government 
to receive information from private businesses. Here is a list not 
meant to include all such statutes. Look at this list:

  18 U.S.C. 2516; 18 U.S.C. 2518, 18 U.S.C. 2512(2)(a)(ii), 18 U.S.C. 
2511(3)(b)(iv), 50 U.S.C. 1802(a), 50 U.S.C. 1804, 50 U.S.C. 1805, 50 
U.S.C. 1811, 50 U.S.C. 1861, 18 U.S.C. 2702(b)(5), 18 U.S.C. 
2702(c)(5), 18 U.S.C. 2702(b)(8), 18 U.S.C. 2702(c)(4), 18 U.S.C. 
2703(a), 18 U.S.C. 2709, 50 U.S.C. 1842, 18 U.S.C. 3127, 50 U.S.C. 
1843, and 50 U.S.C. 1844, to mention a few.
  Regarding the second narrow instance of dismissal of litigation, the 
phrase ``objectively reasonable belief'' is not defined in the 
legislation. What does this mean? How can it not be given a definition 
if the court is supposed to rely on it? Are we going to turn it over to 
the court to define it? Again, that is not the mission of the court. 
The court is not skilled in intelligence matters, except to the extent 
they have to know about it to be able to approve the various requests 
that are made of them, and there is no way it is going to be as skilled 
as the intelligence community.
  So this amendment would grant the FISC new jurisdiction to review 
past conduct of private businesses utilizing a standard which did not 
exist at the time of the supposed activity and a standard which is not 
even defined in the legislation which creates it. Wow.
  In addition, this amendment would allow plaintiffs and defendants to 
appear before the Federal Intelligence Surveillance Court. But we 
should know the FISC is not a trial court. It has never had plaintiffs 
in ongoing civil litigation appear before it in its nearly 30 years of 
existence.
  There are approximately 40 civil cases which are ongoing out of this 
matter. Would all these plaintiffs appear before FISC? How would 
classified information, therefore, be protected? This amendment would 
create an entirely new role for the FISC, thus abandoning the very 
formula by which the FISC was created in the first place. Remember, the 
FISC was created to be a specialized court. Yet the expansion of FISC 
jurisdiction and duty required by this amendment brings us down a road 
where the FISC could be transformed from a specialized court to an 
appendage of the Federal district court. That precedent set by this 
amendment could forever alter the role of the FISC.
  Quite simply, the FISC is not a trial court, nor should it be. Quite 
simply, the FISC is not a forum for adversarial litigation, nor should 
it be.
  This amendment extends the rationale that the answer to any question 
during this debate is ``have the FISC look at it.'' The role of the 
FISC is vitally important, but the FISC is not the answer to every 
question during this debate. Misguided attempts to expand the FISC to 
be the purported solution to any alleged problem with terrorist 
tracking are impractical, imperceptive, and inappropriate.
  We are long past the time for guesswork, and we need to support the 
tried-and-true bipartisan immunity provision as appropriate remedy to a 
critical problem. I reiterate my strenuous objection to this amendment, 
and I urge my colleagues not to support an amendment which introduces 
far too many unanswered questions into a debate which needs none.


                           Amendment No. 3912

  With regard to amendment No. 3912 regarding bulk collection, this 
amendment did pass out of the Judiciary Committee, but it passed on a 
10-to-9 party-line vote after only four minutes of discussion. This 
Judiciary substitute was tabled by the full Senate by a 60-to-36 vote, 
and this amendment is one of the reasons it was.
  There is confusion about the need for this amendment. Does it 
preclude bulk collection or not? The text of the amendment seems to 
indicate that no bulk collection is permitted. Yet the author of the 
amendment states there is an exception for military operations. I have 
read the amendment, and I don't see any exception listed. Perhaps he is 
referencing comments in the Judiciary Committee report. But committee 
reports are not law.
  The Attorney General and Director of National Intelligence have 
carefully reviewed this amendment, and they have stated that if this 
amendment is in a bill which is presented to the President, they will 
recommend that the President veto the bill, and I agree with that 
recommendation.


                           Amendment No. 3979

  With regard to the Feingold amendment No. 3979 on sequestration of 
U.S. person communications, I am very concerned about the substance of 
this amendment, as are many of my colleagues. In addition, the Attorney 
General and Director of National Intelligence have thoroughly reviewed 
this amendment, and they recently sent a letter to the Senate stating:

       This amendment would eviscerate critical core authorities 
     of the Protect America Act and S. 2248. Our prior letter and 
     Statement of Administration Policy explained how this type of 
     amendment increases the danger to the Nation and returns the 
     intelligence community to a pre-September 11th posture that 
     was heavily criticized in congressional reviews. It would 
     have a devastating impact on foreign intelligence 
     surveillance operations. It has never been the case that the 
     mere fact that a person overseas happens to communicate with 
     an American triggers a need for court approval. Indeed, if 
     court approval were mandated in such circumstances, there 
     would be grave consequences for the intelligence communities' 
     efforts to collect foreign intelligence.

  The last part of this has been underlined.

       Accordingly, if this amendment is part of a bill that is 
     presented to the President, we, as well as the President's 
     other senior advisors, will recommend that he veto the bill.

  Unlike many of the amendments we have debated here on the Senate 
floor, this amendment did not receive a vote in either the Intelligence 
or Judiciary Committees. Not that that is limiting, but the amendment 
itself is not a healthy one on its face. Yet this amendment is among 
the most drastic in terms of affecting the efficiency and effectiveness 
of our intelligence collection processes. This amendment imposes 
tremendous restrictions in which the intelligence community is limited 
in what information they can receive and how this information can be 
shared.
  That is what I think we were shocked to find when 9/11 occurred, that 
our various intelligence community organizations--FBI, CIA, et cetera--
were not sharing information. Now that we have solved that problem, why 
go back?
  The massive reorganization of our collection techniques which would 
be required by this amendment is certainly obvious. The author of the 
amendment has recognized this as well, previously stating:

       I do understand this amendment imposes a new framework that 
     may take some time to implement.

  We need to remember the purpose of this bill is, and always has been, 
to enable the intelligence community to target foreign terrorists and 
spies overseas. But in order to make sure we are not missing valuable 
intelligence, we need to get all of a target's communications, not only 
when that target is talking with other people overseas, and that may 
mean intercepting calls with people inside the United States. In fact, 
those may be the most important calls to try to prevent an attack in 
the United States.
  I understand there is concern about the impact of foreign targeting 
on U.S. persons. But we have a lot of protections built into this new 
bill that came out of the Intelligence Committee on a 13-to-2 
bipartisan vote. I have been to this floor on numerous occasions and 
highlighted how the Foreign Intelligence Surveillance Court's role in 
all aspects of foreign intelligence collection is being greatly 
expanded by this bill, far beyond the 1978 FISA statute.
  In addition, the Senate agreed to an amendment by Senator Kennedy 
that would make it clear you cannot use authorities in this bill to 
require communications where the sender and all intended recipients are 
known to be in the United States. We shouldn't go any farther.
  The intelligence community must use minimization procedures. Our 
analysts are familiar with these procedures. They have used them for a 
long

[[Page S836]]

time without any known abuses. Yet the scope of this amendment seems to 
represent no confidence in the minimization procedures used by the U.S. 
Government. Keep in mind, these minimization procedures were enacted 
over 30 years ago, and this bill will authorize the FISC to review and 
approve them for the first time.
  This bill goes farther than ever before in our history in striking a 
balance between intelligence collection and protection of civil 
liberties. Personally, I am proud of this bill. I think all in the 
Intelligence Committee should have stuck with it, and we should not be 
trying to amend it at this point, especially with amendments that 
aren't going to work and will diminish our ability to get the 
intelligence we need to protect our citizens. Now I believe that in 
this bill we are protecting the civil liberties of ordinary Americans, 
but we also need to make sure our intelligence community isn't blind to 
information which may ultimately prove to be critical.
  Section (a)(1) of this amendment would not allow the collection of 
certain communications if the Government knows before acquisition a 
communication is to or from a person reasonably believed to be in the 
United States. The Government knows when it targets foreign citizens in 
foreign countries that they might call or be called by U.S. persons. 
These are called ``incidental communications.'' Under the limitations 
in this amendment, the Government could not initiate the collection in 
the first place under many circumstances. This essentially undoes the 
authority granted in section 703 of this bill and will cause us to go 
deaf to our enemies.
  The Director of National Intelligence has told us before that speed 
and agility are essential in tracking terrorists and preventing 
terrorist attacks. Yet even if collection could somehow begin under the 
dangerous restrictions in this amendment, analysts would have to go 
through hoop after hoop after hoop to use information that has foreign 
intelligence value. Remember, if it doesn't have foreign intelligence 
value, any U.S. person information would already have been minimized.
  I do not understand why we would set up unnecessary roadblocks and 
slow this process down when we already have so many substantial 
protections in place. The Director of National Intelligence has stated 
this amendment would cause significant operational problems for the 
intelligence community that could lead to intelligence gaps. I affirm 
this statement. Knowing this, it would be irresponsible to handcuff our 
intelligence community with these additional restrictions.
  I urge my colleagues to join me in opposing this dangerous amendment.
  I emphasize again: We have brilliant, knowledgeable, well-trained, 
decent, honorable people who are here, no matter who is President, in 
the business of protecting our citizens from terrorist acts. And this 
bill, which passed 13 to 2 on a bipartisan vote out of the Intelligence 
Committee, provides more checks on these good people than the FISA Act 
of 1978 did, and that act has worked very well through all those years. 
The reason we are doing this bill is because we are in a new age, with 
new methods of communication that simply were not covered by the 1978 
act, to put it in simple terms.
  This is a complex thing, and I think we have to be very careful if we 
go beyond what the Intelligence Committee bill has said we should do. 
It was a bill worked out after months of hearings and work by the 
Intelligence Committee. I believe, in the Senate, I have probably been 
on the Intelligence Committee longer than anybody else, and I want to 
protect our people too. I want to protect them in a multiplicity of 
ways. But one of the most important ways we can protect them in this 
day of Islamic fascism is to give them the tools to do it and not 
restrict and hamper them from doing it--keeping in mind that they are 
honest, non-partisan citizens who are more interested in protecting 
Americans and getting the information we need to protect everybody than 
the partisans and sometimes uninformed people make them out to be.
  Yes, any administration can put the top-level people in, but it is 
those who collect this information on a daily basis, minimize this 
information when it needs to be minimized, and work to do it in an 
honorable fashion who do the work. We should not be tying their hands 
and hampering them from getting the work done in this day and age when 
we have so many problems, and it looks to me as if we are going to have 
them for many years to come.
  Mr. President, I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.


                           Amendment No. 3919

  Mr. WHITEHOUSE. Mr. President, I am glad to have had the occasion to 
be on the floor and hear the words of the very distinguished Senator 
from Utah, who has served with such distinction on the Intelligence 
Committee for so long, but I would respond to him first that this much-
touted 13-to-2 vote in the Intelligence Committee, as shown by the 
record of the additional views of the members of the Intelligence 
Committee, reflected the consensus of the Intelligence Committee that 
this was a work in progress; that it should go on to the Judiciary 
Committee, which was its next stop, and then to the floor. There was no 
sense that the work on the bill should stop at the time it left the 
Intelligence Committee.
  Indeed, in the 13-to-2 vote, there were 9 Senators who offered 
additional views suggesting changes or differences in the legislation. 
So I don't think it would be wise or appropriate for this body to take 
a look at what the Intelligence Committee did and say that because the 
number appears to be 13 to 2 on the surface that we are not going to do 
our job of continuing to work on this work in progress.
  In that spirit, I rise today to support amendment No. 3919, on good 
faith determinations, offered by Senators Feinstein and Nelson. In the 
divisive debate we are having over immunity, Senator Feinstein's 
amendment is a commendable effort to find middle ground, to which 
Senator Feinstein has brought great diligence and care. Senator Specter 
and I have offered a broader approach, but I also support the 
Feinstein-Nelson amendment.
  This amendment goes forward with the first half of Specter-
Whitehouse. It provides for an independent judicial review of the 
companies' good faith. Specter-Whitehouse then provides for 
substitution of the Government in place of the companies, which would 
protect plaintiffs' legitimate rights to continue legitimate 
litigation, including the right to conduct discovery.
  Substitution also avoids the problem of uncompensated congressional 
termination of ongoing litigation--a separation of powers problem. 
Senator Feinstein's alternative at least provides for the bare minimum 
of a judicial determination whether the defendant companies were acting 
in compliance with the law or with the reasonable good faith belief 
that they were in compliance. I would note this is probably the lowest 
possible standard. We don't even require companies to have been acting 
within the law. All we require in this amendment is that they have a 
reasonable and good faith belief they were acting within the law.
  As I have said before, both of the all-or-nothing approaches we are 
presented with here are flawed. Full immunity would strip the 
plaintiffs of their day in court and take away their due process rights 
without any judicial determination that the companies acted in good 
faith. That is not fair. Nothing suggests this isn't legitimate 
litigation, and it is wrong to take away a plaintiff's day in court 
without a chance to show why doing so may not be warranted.
  I hope in this Chamber we can all agree that if the companies did not 
act reasonably and in good faith they shouldn't get protection. If we 
agree on that, the question becomes where the good faith determination 
should be made. I think it should be in court, and that is where 
Senator Feinstein's amendment puts it--in this case, the FISA Court. 
First, it should not be here. We in Congress are not judges, and good 
faith is a judicial determination. We should leave this key 
determination to the judicial branch of Government. The companies have, 
of course, asserted that they acted in good faith. But we surely should 
not rely on one side's assertions in making a decision of this 
importance.
  Moreover, 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

[[Page S837]]

without access by most Members to the facts. So this is the wrong place 
to have it. 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. If we do not do this, we are simply acting by 
brute political force, and doing so in an area where there are 
significant constitutional issues. Congress cutting off the ongoing 
work of the judicial branch may well violate the boundary that keeps 
the legislative and judicial branches separate--a cornerstone of our 
Constitution.
  In an opinion written by Justice Scalia, the U.S. Supreme Court said 
that the Framers of the Federal Constitution had what they called ``the 
sense of a sharp necessity to separate the legislative from the 
judicial power, prompted by the crescendo''--was the word they used--
``of legislative interference with private judgments of the courts.''
  If there were ever a case of legislative interference with private 
judgment of the courts, this is it. On the other hand, consider the 
fact that the Government has forbidden these defendants to defend 
themselves. By invoking the state secrets privilege, the Government has 
gagged the companies. In my view, that is not fair either, particularly 
if the Government put these companies in this mess in the first place. 
So both of the all-or-nothing approaches are flawed.
  I think Senator Specter and I have come up with the best answer: 
substitution. But Senator Feinstein's amendment at least requires the 
FISA Court to make an initial determination that the companies either 
did not provide assistance to the Government--obviously, if they did 
not do anything, they should not be liable--or were actually complying 
with the law. Clearly, if they complied with the law, they should not 
be liable--or were at least acting with a reasonable good-faith belief 
that they were complying with the law--again, the lowest possible 
standard. If we cannot agree on this, then we have really taken our 
eyes off of our duties. The difference then becomes that once that 
good-faith determination is made, the Specter-Whitehouse amendment 
would lead to substitution, whereas the Feinstein-Nelson amendment 
would lead to a termination of the claims.
  Both of these approaches are better than the all-or-nothing 
alternative we otherwise face, and both share the same goal: to use 
existing procedures and existing rules and existing courts to unsnarl 
this litigation and move it toward a just and a proper conclusion.
  I urge my colleagues to support both the Specter-Whitehouse and the 
Feinstein-Nelson amendments.
  I make one final point. Senator Hatch pointed out that the people who 
serve us in our intelligence community are honorable, are well trained, 
are intelligent, are decent, and are trying to do the right thing. I do 
not challenge any of that.
  As the U.S. attorney, I worked with FBI agents day-in and day-out, 
Secret Service agents, Drug Enforcement Administration agents, Alcohol, 
Tobacco and Firearms agents--all decent, honorable, hard working, well 
trained, trying to do the right thing. In that environment, they are 
all very comfortable that the structure we have put in place for 
domestic surveillance, to protect American's rights, is a useful thing, 
it is important infrastructure of Government.
  I see what we are trying to do now not as a criticism of the people 
in the intelligence community but, rather, as being an attempt to build 
out the infrastructure, the infrastructure that balances freedom and 
security in this new area of international surveillance, in just the 
same way we put restrictions on our agents at home.
  As attorney general, I actually had to personally get the wiretaps 
for the State of Rhode Island from the presiding judge of the superior 
court. I would say the same thing about the Rhode Island State troopers 
with whom I worked in those cases.
  Agents and police officers who have this responsibility do not resent 
the fact that they are given a structure to work within. I doubt that 
the intelligence community would resent a sensible measure that would 
allow a judicial determination before an American company has a finding 
of good faith made about it.
  I yield the floor, and I suggest the absence of a quorum.
  The PRESIDING OFFICER (Ms. Klobuchar). The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. FEINGOLD. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3979

  Mr. FEINGOLD. Madam President, today I want to address several of the 
pending amendments to the FISA legislation, and I will indicate the 
amendment number of each one as I discuss it. First is what we call the 
Feingold-Webb-Tester amendment No. 3979. I wish to address some of the 
arguments that have been made in opposition to Feingold-Webb-Tester and 
to set the record straight about what the amendment does. The Senator 
from Missouri has suggested it would cut off all foreign intelligence 
collection because the Government would not be able to determine in 
advance whether communications are foreign to foreign. This is 
preposterous. The whole point of the amendment is to allow the 
Government to acquire all communications of foreign targets when it 
does not know in advance whether they are purely foreign or have one 
end in the United States.
  The administration also argues we should not pass the Feingold-Webb-
Tester amendment because it would be difficult and time consuming to 
implement. That is no reason to oppose the amendment. I understand the 
amendment imposes a new framework, and that is precisely why the 
amendment grants the Government up to a year before it goes into 
effect.
  I also wish to make clear that the amendment does not force the 
Government to determine the location of every person and every e-mail 
the Government acquires, contrary to what has been suggested. The 
amendment only requires that the Government determine whether one end 
of a communication is in the United States where reasonably 
practicable, based on procedures approved by the FISA Court. In some 
instances, that would be easy to do, while in others it would not be 
feasible at all. The court-approved procedures will take those 
differences into account.
  It is also not true that the amendment would harm our nonterrorism 
foreign intelligence operations. This amendment leaves intact the 
warrantless acquisition of any foreign-to-foreign communications and 
any communications where the Government doesn't know in advance whether 
they are to or from people in the United States. Even for 
communications where the Government knows they involve Americans in the 
United States, no court order is actually required for communications 
relating to terrorism or anyone's safety.
  This is much broader than the pre-Protect America Act law. None of 
this would have been possible 7 months ago. Let's not forget the 
justification for this legislation has always been about terrorism and 
foreign-to-foreign communications. Last month, the Vice President 
defended the Protect America Act by talking about ``one foreign citizen 
abroad making a telephone call to another foreign citizen abroad about 
terrorism.'' The Feingold-Webb-Tester amendment allows those calls to 
be monitored without a warrant.
  The Feingold-Webb-Tester amendment allows the Government to get the 
information it needs about terrorists and about purely foreign 
communications, while providing additional checks and balances for 
communications between people in the United States and their overseas 
family members, friends, and business colleagues. I urge my colleagues 
to support the Feingold-Webb-Tester amendment.
  Let me next turn to Amendment No. 3912, which has been referred to as 
the bulk collection amendment. I wish to again stress the importance of 
my amendment prohibiting the bulk collection of Americans' 
international communications. The bill we are debating is supposedly 
intended to permit monitoring of foreign-to-foreign communications and 
the tracking of terrorists overseas without a warrant. It is not 
supposed to allow the Government to collect all communications into or 
out of the United States, but

[[Page S838]]

that is exactly what the Government could seek to do with these 
authorities, which is why this amendment is critical. I have yet to 
hear any real arguments against it.
  The DNI's recent letter opposing the amendment fails to come up with 
any substantive arguments. Instead, it describes hypothetical 
situations that clearly wouldn't be affected by the amendment. In order 
to protect the international communications of innocent Americans at 
home, the amendment simply requires that the Government is seeking 
foreign intelligence information from its targets. In the only examples 
cited in the letter--a neighborhood or group of buildings or geographic 
area that the U.S. military is about to invade--clearly, the Government 
has that purpose. The notion that the Government could not make a good-
faith certification to the court that it is seeking foreign 
intelligence, which is all this amendment requires, is simply 
ludicrous. What is telling about the DNI's letter, besides that it 
includes no real arguments against the amendment, is what it does not 
say. It does not refute the danger this amendment is intended to 
address: the bulk collection of all communications between the United 
States and Europe or Canada or South America or, indeed, the world.
  The DNI has testified that the PAA would authorize that kind of 
massive, indiscriminate collection of Americans' communications, and 
the administration has never denied that this bill could, too, unless 
we pass this amendment. In fact, this letter does nothing to reassure 
the American people the Government could not and would not collect all 
their international communications. Worse, the letter argues that a 
prohibition on that kind of massive collection would not ``appreciably 
enhanc[e] the privacy interests of Americans.'' If the DNI does not 
think the privacy interests of Americans would be affected by the 
collection of all their international communications, potentially 
vacuuming up their communications not just with foreigners overseas but 
with Americans overseas as well, then that is all the more reason to be 
concerned.
  Serious constitutional issues are at stake. The administration is 
effectively telling us it intends to ignore them.

  Let me also respond to a statement by the chairman of the 
Intelligence Committee last week that a dragnet of all international 
communications of Americans would probably violate the fourth 
amendment. I am pleased to hear the chairman acknowledge that the 
surveillance the administration would like to conduct would violate the 
constitutional rights of Americans, but how could we possibly expect 
this administration--an administration that has already demonstrated 
indifference to Americans' privacy and has already said that bulk 
collection would be ``desirable''--to hold back. Nor should we rely on 
the FISA Court to stop this, as the chairman has suggested. If Congress 
believes something is unconstitutional, we have absolutely no business 
authorizing it. We have been warned, and now we need to act by passing 
my modest bulk collection amendment.
  I reserve the remainder of my time on amendment No. 3902.
  As to the Dodd-Feingold immunity amendment No. 3907, I am pleased to 
join my colleague in offering this amendment to strike the immunity 
provision. I ask unanimous consent that I be yielded 15 minutes to 
speak on the Dodd amendment and that the time be charged to the 
proponents of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. FEINGOLD. I thank the Senator from Connecticut.


                           Amendment No. 3907

  I strongly support Senator Dodd's amendment to strike the immunity 
provision from this bill. I thank him for his leadership on the issue. 
I offered a similar amendment in the Judiciary Committee, and I 
supported a similar amendment in the Intelligence Committee when it was 
offered by the Senator from Florida, Mr. Nelson. Congress should not be 
giving automatic retroactive immunity to companies that allegedly 
cooperated with the President's illegal NSA wiretapping program. This 
provision of the bill is both unnecessary and unjustified, and it will 
undermine the rule of law. Retroactive immunity is unnecessary because 
current law already provides immunity from lawsuits for companies that 
cooperate with the Government's request for assistance, as long as they 
receive either a court order or a certification from the Attorney 
General that no court order is needed and the request meets all 
statutory requirements.
  Companies do not need to do their own analysis of the court order or 
the certification to determine whether the Government is, in fact, 
acting lawfully. But if requests are not properly documented, FISA 
instructs the telephone companies to refuse the Government's request 
and subjects them to liability if they instead decide to cooperate. 
This framework, which has been in place for 30 years, protects 
companies that act at the request of the Government, while also 
protecting the privacy of Americans' communications. Some supporters of 
retroactively expanding this provision argue that the telephone 
companies should not be penalized if they relied on high-level 
Government assurance that the requested assistance was lawful. As 
superficially appealing as that argument may sound, it utterly ignores 
the history of the FISA statute.
  Telephone companies have a long history of receiving requests for 
assistance from the Government. That is because telephone companies 
have access to a wealth of private information about Americans, 
information that can be a very useful tool for law enforcement. But 
that very same access to private communications means telephone 
companies are in a unique position of responsibility and public trust. 
Yet before FISA, there were basically no rules to help the phone 
companies resolve this tension, between the Government's request for 
assistance in foreign intelligence investigations and the companies' 
responsibilities to their customers. This legal vacuum resulted in 
serious Government abuse and overreaching.
  The Judiciary Committee has heard testimony about this system from 
Mort Halperin, a former Nixon administration official who was himself 
the subject of a warrantless wiretap and was involved in the drafting 
of the FISA law in the 1970s. He testified that before FISA:

       Government communication with the telephone company . . . 
     could not have been more casual. A designated official of the 
     FBI called a designated official of [the company] and passed 
     on the phone number. Within minutes all of the calls from 
     that number were being routed to the local FBI field office 
     and monitored.

  Not surprisingly, this casual ad hoc system failed to protect 
Americans' privacy. The abuses that took place are well documented and 
quite shocking. With the willing cooperation of the telephone 
companies, the FBI conducted surveillance of peaceful antiwar 
protesters, journalists, steel company executives, and even Martin 
Luther King, Jr., an American hero whose life we recently celebrated.
  So Congress decided to take action. Based on the history of and 
potential for Government abuses, Congress decided it was not 
appropriate for telephone companies to simply assume that any 
Government request for assistance to conduct electronic surveillance 
was legal.
  Let me repeat that. A primary purpose of FISA was to make clear once 
and for all that the telephone companies should not blindly cooperate 
with Government requests for assistance. At the same time, however, 
Congress did not want to saddle telephone companies with the 
responsibility of determining whether the Government's request for 
assistance was a lawful one. That approach would leave the companies in 
a permanent state of legal uncertainty about their obligations. So 
Congress devised a system that would take the guesswork out of it 
completely. Under that system, which is still in place today, the 
companies' legal obligations and liability depends entirely on whether 
the Government has presented the company with a court order or a 
certification stating that certain basic requirements have been met.

  If the proper documentation is submitted, the company must cooperate 
with the request and will be immune from liability. If the proper 
documentation has not been submitted, the

[[Page S839]]

company must refuse the Government's request or be subject to possible 
liability in the courts.
  AT&T, which was the only telephone company in existence at the time 
in the 1970s, was at the table when FISA was drafted. As Mr. Halperin 
described in his testimony, the company:

     received the clarity that it sought and deserved. The rule, 
     spelled out clearly in several places in the legislation and 
     well understood by all, was this: If [the phone company] 
     received a copy of a warrant or certification under the 
     statute, it was required to cooperate. If it did not receive 
     authorization by means outlined in the statute, it was to 
     refuse to cooperate and was to be subjected to state and 
     federal civil and criminal penalties for unlawful acquisition 
     of electronic communications.

  The telephone companies and the Government have been operating under 
this simple framework for 30 years. Companies have experienced, highly 
trained and highly compensated lawyers who know this law inside and 
out. In view of this history, it is inconceivable that any telephone 
companies that allegedly cooperated with the administration's 
warrantless wiretapping program did not know what their obligations 
were. It is just as implausible that those companies believed they were 
entitled to simply assume the lawfulness of a Government request for 
assistance. This whole effort to obtain retroactive immunity is based 
on an assumption that does not hold water.
  Quite frankly, the claim that any telephone company that cooperates 
with a Government request for assistance is simply acting out of the 
sense of patriotic duty doesn't fare much better. Recently, we learned 
that telecommunications companies actually have cut off wiretaps when 
the Government failed to promptly pay its bills.
  The Department of Justice Office of Inspector General released a 
report last month finding that ``late payments have resulted in 
telecommunications carriers actually disconnecting phone lines 
established to deliver surveillance to the FBI, resulting in lost 
evidence.'' Since when does patriotic duty come with a price tag? 
Evidently, assisting the Government's criminal intelligence 
investigation efforts fell somewhere below collecting a paycheck on the 
companies' lines of priorities.
  Some of my colleagues have argued the telephone companies alleged to 
have cooperated with the program had a good-faith belief their actions 
were in accordance with the law. But there is an entire statute in 
addition to the certification provision that already provides telephone 
companies with a precisely defined good-faith defense. Under this 
provision, which is found in section 2520 of title 18, if the company 
is relying in good faith on a court order or other statutory 
legislative authorization, they have a complete defense to liability. 
This is a generous defense, but as generous as it is, it is not 
unlimited. The court must find that the telephone company determined in 
good faith that there was a judicial, legislative, or statutory 
authorization for the requested assistance.

  I also wish to address the argument that retroactive immunity is 
necessary because the telephone companies can't defend themselves in 
court. When I hear this argument, I can't help but think that this 
administration has staged the perfect crime: enlist private companies 
to allegedly provide assistance in an illegal Government program, then 
prevent any judicial inquiry into the program by claiming a privilege--
the so-called state secrets privilege--that not only shields your own 
actions from scrutiny but enables the companies to evade judicial 
scrutiny as well by claiming that they are defenseless. All the 
administration needs to get away with this is Congress's blessing.
  That is exactly why immunity is the wrong solution. Think about what 
we would be doing. We would be saying that in matters of national 
security, you can break the law with impunity because the courts can't 
handle national security materials. This is outrageous. Do we really 
want to create a law-free zone for crimes that involve national 
security matters? If the Government's use of the state secrets 
privilege is interfering with holding companies accountable for alleged 
violations of the law, the solution isn't to shrug and just give up on 
accountability; the solution is to address the privilege head-on and 
make sure it doesn't become a license to evade the laws we have passed.
  In any event, the notion that the Federal courts can't handle 
national security matters is insulting to the judges this body has seen 
fit to confirm, and it is contrary to the facts. Cases involving 
classified information are decided routinely by the Federal courts. 
That is why we have a statute--the Classified Information Procedures 
Act--to govern how courts handle classified materials. Pursuant to that 
statute, courts have in place procedures that have successfully 
protected classified information for many years. There is no need to 
create a ``classified materials'' exception to our justice system.
  That brings me to another issue. I have been discussing why 
retroactive immunity is unnecessary and unjustified, but it goes beyond 
that. Granting companies that allegedly cooperated with an illegal 
program this new form of automatic retroactive immunity undermines the 
law that has been on the books for decades, a law that was designed to 
prevent exactly the type of actions that allegedly occurred here. 
Remember, telephone companies already have absolute immunity if they 
complied with the applicable law, and they have an affirmative defense 
if they believed in good faith that they were complying with that law. 
So the retroactive immunity provision we are debating here is necessary 
only if we want to extend immunity to companies that did not comply 
with the applicable law and did not even have a good-faith belief that 
they were complying with it. So much for the rule of law. Even worse, 
granting retroactive immunity under these circumstances will undermine 
any new laws we pass regarding Government surveillance. If we want 
companies to follow the law in the future, it certainly sends a 
terrible message, and sets a terrible precedent, to give them a ``get 
out of jail free'' card for allegedly ignoring the law in the past.
  I find it particularly troubling when some of my colleagues argue 
that we should grant immunity in order to encourage the telephone 
companies to cooperate with the Government in the future. Let's take a 
close look at that argument.
  Telephone companies are already legally obligated to cooperate with a 
court order, and as I have mentioned, they already have absolute 
immunity for cooperating with requests that are properly certified. So 
the only thing we would be encouraging by granting immunity here is 
cooperation with requests that violate the law. That is exactly the 
kind of cooperation FISA was supposed to prevent.
  Let's remember why: These companies have access to our most private 
conversations, and Americans depend on them to respect and defend the 
privacy of these communications unless there is clear legal authority 
for sharing them. They depend on us to make sure the companies are held 
accountable for betrayals of that public trust. Instead, this immunity 
provision would invite the telephone companies to betray that trust by 
encouraging cooperation with a legal Government program.
  Since 9/11, I have heard it said many times that what separates us 
from our enemies is respect for the rule of law. Unfortunately, the 
rule of law has taken it on the chin from this administration. Over and 
over, the President and his advisers have claimed the right to ignore 
the will of Congress if and when they see fit. Now they are claiming 
the same right for any entity that assists them in that effort. It is 
time for Congress to state clearly and unequivocally: When we pass a 
law, we mean what we say, and we except the law to be followed. That 
goes for the President, it goes for the Attorney General, and it goes 
for the telephone companies. The rule of law is not less important 
after 9/11. We can and we must defeat al-Qaida without breaking the law 
or sacrificing Americans' basic rights.
  We have a choice. The Senate can stand up for the rule of law and let 
these cases go forward in the courts or we can decide to give our 
blessing to an administration that broke the law and the companies that 
allegedly helped it, and we can signal that we stand ready to bail them 
out the next time they decide to ignore the law. I urge my colleagues 
not to take that step. Support the rule of law by voting in favor of 
the Dodd-Feingold amendment No. 3907.

[[Page S840]]

  I again thank my colleague from Connecticut for his tremendous 
leadership on this issue. It has been extremely helpful in this effort. 
I sincerely thank him.
  I ask unanimous consent that my remaining time be reserved.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Madam President, before our colleague from Wisconsin leaves 
the floor, let me thank him for his leadership on this issue, along 
with many others associated with this piece of legislation: the reverse 
targeting and the bulk collection issues which he has raised, which 
seem so obvious and so clear that you wonder why they even have to be a 
subject of debate. The clear reaction, in fact, from leading 
authorities, including those of the intelligence agencies, has been to 
state categorically that the very actions he wants to exclude from this 
legislation are prohibited under law. Reverse targeting is 
unconstitutional, and bulk collection is unattainable. But some in the 
administration have said: Were bulk collection possible, we believe we 
have the right to do it. The idea of bulk collection without following 
the rule of law should violate the sensibilities of every single Member 
of this body.
  This debate and this discussion are very important. This has gone on 
now since back in December--actually, before then. The Senator from 
Wisconsin sits on both the Judiciary Committee and the Intelligence 
Committee, and so he has been deeply involved in these issues for a 
long time.
  What I wish to state at the outset is that these amendments we are 
offering should not be the subject of some sort of political divide 
between Democrats, Republicans, liberals, conservatives, moderates, or 
whatever definitions one wants to apply to the people who serve here. 
This is about the rule of law. It is about the Constitution of the 
United States, and the idea that this issue and debate should somehow 
be divided along those lines ought to be offensive to every single 
Member of this body. Every single one of us, on the day we raise our 
right hand and take the oath of office, swear to uphold the 
Constitution of the United States. That is nothing less than what we 
are engaged in with this debate.
  We have been asked to subscribe to the false dichotomy that in order 
for us to be more secure as a nation, we must give up some of our 
rights. The Senator from Wisconsin and the Senator from Connecticut 
believe very firmly that quite the opposite is true: that if you begin 
to give up rights, you become less secure, as a people and as a nation. 
Our deep concern is that that is exactly the path we seem to be 
following these days with the refusal to adopt the Feingold amendments 
in dealing with reverse targeting and bulk collections. It is what I am 
fearful may be the case when we try to strike title II of the Foreign 
Intelligence Surveillance Act and prohibit the retroactive immunity 
being sought by the administration and by a handful of telephone 
companies.
  Let me remind our colleagues that when this proposal was first made 
to the Intelligence Committee, the proposal was to grant immunity to 
anyone involved in the collection of this information, including those 
who allegedly authorized it at the executive branch. So while I am 
critical of what is in the Intelligence Committee bill that has been 
brought to us by my friend from West Virginia and my friend from 
Missouri, Senator Rockefeller and Senator Bond, I wish to begin by 
thanking them for having rejected the administration's earlier request 
that there be broad-based immunity granted to everyone involved in 
warrantless wiretapping. But it is instructive to know what the 
administration wanted at the outset: complete immunity for everyone 
associated with this vacuum-cleaning operation, who eavesdropped on 
millions of phone conversations, e-mails, and faxes over the last 5 
years.
  Why were they seeking immunity for everyone involved in this? I think 
the answer becomes abundantly clear. There is a great concern that the 
courts may conclude that, in fact, what was done was illegal and that 
those who participated in it might be held liable.
  Again, I thank the Intelligence Committee for narrowing this request. 
However, title II of this bill would still provide telecommunications 
corporations retroactive immunity for their warrantless and possibly--
possibly--illegal spying on their very customers.
  Much more than a few companies and a few lawsuits are at stake. Equal 
justice is at stake--justice that does not place some corporations 
outside of the rule of law.
  Openness is at stake--an open debate on security and liberty, and an 
end to warrantless wiretapping of Americans.
  Senator Feingold laid out the history of FISA in eloquent terms this 
afternoon, going back to the 1970s and describing the genesis of this 
law that has been amended, I might add, many, many times over the last 
30 years. It has been amended periodically to conform to the emerging 
technologies, the emerging abilities of those who would do us harm, and 
the emerging strategies that would allow us to collect the information 
that would minimize their ability to do just that.
  So over the years, this body has been asked to modify that law. 
Almost without exception, I think it is important to point out, this 
body has amended that law almost unanimously, because all of us 
recognize that it is critically important that we have the ability to 
determine who would do us harm, how they would do that harm, and to 
stop it before it happens. There is not a single Member of this body 
who is not deeply committed to that goal. We all understand and are 
deeply committed to the idea that we ought to do everything we can to 
protect ourselves. But we also understand, and have since the 1970s, 
the importance not only of gathering the information from those who 
would do us injury but simultaneously doing that which is also critical 
for our survival as a nation; that is, protecting the liberties and 
rights of this country.
  They are what makes us unique as a nation. We were really the first 
Nation that insisted that we were a nation of laws and not men. It was 
a unique idea in the annals of recorded history; but at the founding of 
this great Republic, we declared that we were going to do things 
differently. In fact, many have argued over the years that if we were 
looking for pure efficiency, this is the last form of government we 
would have designed. But the Framers of our Constitution were 
interested in other things than just efficiency. Had efficiency been 
the goal, they certainly would have thought of a more streamlined 
system. But they set up a system that not only determined what we did 
but how we did things: establishing coequal branches of Government--an 
executive, legislative, and judicial branch--coequal branches of 
Government, and insisting that there be checks and balances, because 
the Framers had been through a system in which a king and a handful of 
people decided the fate of not only their own nation but the colonies 
they controlled. So they set up this cumbersome, less efficient system 
because they were deeply determined to protect the rule of law that 
never allowed one individual or a handful of individuals decide the 
fate of a nation.
  So it is important to understand the genesis of this tension which 
has existed in our country for more than 200 years: protecting our 
security and protecting our liberties. I am not suggesting that it is 
always easy to strike the perfect balance, but over the years we have 
tried as a nation, from one generation to the next, to try to keep that 
balance, that tension, in place so that not one side or the other would 
dominate. In our time, the challenge is to balance our need to gather 
information with the protection of privacy and the rights that all 
Americans seek, regardless of geography or ideology.

  That has been the tension that confronts us and that is what brings 
me to this debate, calling upon my colleagues to support the amendment 
Senator Feingold is offering to strike title II of this legislation.
  Retroactive immunity stands against the very principles Senator 
Feingold has outlined, which I have tried to describe. Under 
retroactive immunity, the law will forbid some of our fellow citizens 
from having their day in court.
  On what basis are we asked to pass retroactive immunity? On trust. 
There are classified documents, we are told, that prove the case beyond 
the shadow of a doubt; but, of course, we are in the allowed to see 
them. I have served in

[[Page S841]]

this body for 27 years. Yet I am not allowed to see these documents. 
Retroactive immunity allows the President to stand up and say: Trust 
me, I know what I am talking about, and you don't.
  There is only one way to settle the issue at stake today. Not simply 
on trust, not the opinion of a handful of individuals--as much as we 
may admire or like them--but in our courts. We are not judges. We are 
members of a legislative body.
  Real judges and juries--whose courts ought to be our pride, not our 
embarrassment--deserve to do their jobs and decide these cases. By 
striking this title of the bill, we would allow them to.
  That is all we are asking. Let's have the courts decide. We are not 
here to assign guilt or innocence. That is not our job as legislators. 
We are here to hold open the courthouse door, to ensure a fair hearing 
to American citizens seeking redress. I, for one, will accept whatever 
verdict results.
  This is not a Democratic or Republican issue; this is a rule-of-law 
issue. It is about striking the right balance between liberty and 
security. I have absolutely rejected, as I said a few moments ago, the 
false dichotomy that tells us to choose one over the other. And If a 
Democratic President were seeking to grant retroactive immunity, I 
would object as stridently and passionately as I am this afternoon. 
This should not be a partisan issue. We should all be in favor of 
allowing our courts to perform their constitutional responsibility to 
determine whether these companies should be held accountable.
  I believe that when surveillance is fully under the rule of law, 
Americans will only be more secure. To claim otherwise is an insult to 
our intelligence, our common sense, and our proud tradition of law.
  I don't know how many colleagues have seen the movie called ``A Man 
For All Seasons.'' It is the story of St. Thomas More, who was the only 
individual in history that I know of who achieved the trifecta of being 
a lawyer, a politician, and a saint--a rare combination in any 
generation. In the movie, St. Thomas More was asked if he would be 
willing to cut down every law in England to get his hands on the devil. 
More answered: Absolutely not. He said:

       When the last law was down, and the Devil turned 'round on 
     you, where would you hide, the laws all being flat? This 
     country is planted thick with laws, from coast to coast--
     Man's laws, not God's! And if you cut them down . . . do you 
     really think you could stand upright in the winds that would 
     blow then?

  Those laws know no secrecy, Madam President, they know no 
distinctions for power or wealth. They live, that is, in openness. And 
when that openness has been defended, when the facts are in light, 
where they belong, I welcome all my colleagues' ideas in the great and 
ongoing debate on security and liberty in this century--a debate in the 
open, and open to us all.
  It can begin by adopting this amendment striking retroactive 
immunity. We can allow the courts to do their jobs to determine whether 
what happened was legal.
  There are those who would argue the telecoms' actions were legal--but 
none of us know that for sure. If we don't adopt this amendment, we 
will never know. Whatever happened will be buried for all of history. 
We will have set the precedent that on the mere word or request of the 
administration--or any future administration--that telecommunications 
companies, or others who can collect millions of volumes of data about 
us, will be allowed to turn it over to the federal government. Maybe 
the next time it will be medical records or financial records that all 
of us would like to think are held private--maybe those records, under 
some argument, will be handed over.
  When does this stop? When do we say there is a legal means by which 
we do this? That has been what FISA has tried to establish for the last 
three decades--to strike that balance between liberty and security. If 
we set a precedent with the rejection of this amendment, we open the 
door, regretfully, for not only this administration but future ones to 
engage in the very practice that would deprive us of that balance 
between liberty and security.
  So when the vote occurs tomorrow on this amendment that Senator 
Feingold and I have offered, I urge my colleagues to step out of their 
partisan roles and consider the example we are setting.
  I am also deeply disappointed that the President suggested he would 
veto the FISA legislation if this amendment passes. The idea that an 
American President would suggest that we ought to put aside the Foreign 
Intelligence Surveillance Act merely to protect a handful of companies 
who seek immunity, and to deny us the opportunity to determine whether 
what they did was legal, seems to go far beyond what we need to be 
doing at this hour, where our security is at risk, as we all know.
  The best way to handle this, in my view, is to accept and adopt this 
amendment and send the FISA bill to the President for signature. I 
believe that despite his warnings to the contrary, he will sign this 
into law. I don't want to believe an American President would put us at 
risk and deny these courts the ability to grant warrants and court 
orders to gather the information we need to keep us secure, all to 
protect a few corporations from lawsuits.
  I have said this repeatedly over the past several months, but it 
deserves repeating. Not all the telephone companies complied with that 
request. If they all had, it might strengthen their arguments. But in 
the end, this is a Republic: the President cannot order us to break the 
law. And the argument that orders from on high excuse illegal behavior 
has been thoroughly debunked.
  Remember, when one telecom, Qwest, asked for a court order to justify 
cooperation with the President's surveillance program, it never 
received one. That ought to be instructive. Why wasn't the court order 
forthcoming? Why didn't the Administration go to the FISA Courts, which 
were created exactly for that purpose? Why did some companies say no 
when others said yes?
  For all of these reasons, and the ones eloquently posed by Senator 
Feingold, we urge our colleagues to accept this amendment. Let the 
courts do their work and determine the legality or illegality of these 
actions.
  If we are able to do that, I think we will strengthen our country and 
come closer to maintaining that balance between security and the rule 
of law that generations throughout our Nation's history have struggled 
with, doing their utmost to maintain that healthy balance.
  To reject this amendment, I think, destroys that balance, does great 
damage to it. I think we will regret that in the years to come.
  With that, I yield the floor to others who may want to be heard on 
this amendment. 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. LEVIN. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Ms. Stabenow). Without objection, it is so 
ordered.


                           Amendment No. 3927

  Mr. LEVIN. Madam President, one of the amendments before us is the 
Specter-Whitehouse amendment to title II of the FISA Amendments Act of 
2007. I urge our colleagues to support the Specter-Whitehouse amendment 
for the following reasons:
  Title II of the bill, as currently written, provides retroactive 
immunity for telecommunications providers who disclosed communications 
and other confidential information about their customers at the behest 
of administration officials. These provisions in the bill before the 
Senate require the immediate dismissal of any lawsuit against a 
telecommunications provider based on such disclosure if the Attorney 
General certifies that an appropriate Government official indicated in 
writing to the provider that the activity was, one, authorized by the 
President, and, two, determined to be lawful. It is the words 
``determined to be lawful'' that create the problem. Determined by 
whom?
  The way the bill is written, a determination of the Department of 
Justice or intelligence community officials is sufficient to ensure 
immunity even if the courts would conclude that the activity was 
illegal. Dismissal would be

[[Page S842]]

required even if a court would conclude that the disclosure violated 
the constitutional rights of individuals whose personal information was 
illegally disclosed. It would be required even if innocent American 
citizens were damaged by the disclosure or by the compromise of 
confidential personal information.
  The provision in the bill before us granting retroactive immunity is 
not necessary, it is not wise, and it is not fair. Retroactive immunity 
is not necessary to ensure the future cooperation of the 
telecommunications providers who receive legitimate requests for 
information from the intelligence community. In fact, Congress has 
already ensured such cooperation in the Protect America Act adopted 
last August which authorizes the Attorney General or the Director of 
National Intelligence to direct telecommunications providers to 
disclose certain information, and that law provides prospective 
immunity to telecommunications who cooperate with such directives.
  Title I of the bill before us appropriately continues to provide 
prospective immunity to telecommunications providers. Title I states:

       Notwithstanding any other law, no cause of action shall lie 
     in any court against any electronic communication service 
     provider for providing any information, facilities, or 
     assistance in accordance with a directive issued by the 
     Attorney General or the Director of National Intelligence 
     pursuant to the act.

  In light of this prospective immunity, which is appropriately in the 
bill, retroactive immunity is not necessary to ensure the future 
cooperation of telecommunications providers with legitimate requests 
for information from the intelligence community.
  A retroactive immunity is not wise either because it precludes any 
judicial review of these important issues. If private parties engaged 
in illegal activities at the request of senior executive branch 
officials, that may be an appropriate mitigating factor to be 
considered in the courts. But to simply grant immunity retroactively 
may encourage others to engage in illegal activities in the future. 
That is a bad precedent because it should never be an excuse in a free 
society that you acted illegally because Government officials asked you 
to do so.
  That leaves the question of equity for telecommunications providers 
who may have cooperated with administration officials in good faith 
with the assurance that such cooperation was legal and that they were 
helping to safeguard our national security.
  If one had to choose between a known equitable interest of the 
telecommunications providers who was prevailed upon in the aftermath of 
9/11 to assist the Government by disclosing private customer 
communications without first conforming with the clear requirement of 
the FISA law for a warrant approved by the FISA Court before doing so, 
if--if--one had to choose between that equitable interest and the 
perhaps uncertain claims of plaintiffs whose conversations may have 
been eavesdropped upon without their knowledge and with little, if any, 
provable damage, one might reach the conclusion that retroactive 
immunity was an appropriate remedy for the telephone companies.
  But we do not have to make that choice. We can recognize both the 
equitable interest of the companies and the possible claims of our 
citizens, and we can also avoid the terrible precedent of giving 
retroactive immunity to law violators. We can do that by adopting the 
Specter-Whitehouse amendment.
  How can we protect the telecommunications providers from legal 
liability if they acted in good faith at the request of the 
administration without taking the extraordinary step of retroactively 
eliminating any remedy for possible violations of the Constitution and 
the laws of the United States? The Specter-Whitehouse amendment before 
us would accomplish that by immunizing telecommunications providers who 
acted in good faith based on the assurances of appropriate 
administration officials from legal liability and at the same time 
substituting the United States for the telecommunications providers as 
the defendant in lawsuits based on the actions of those providers. That 
substitution would safeguard telecommunications providers from 
liability just as effectively as the retroactive immunity language in 
title II of the bill.
  But unlike the retroactive immunity language of title II the Specter-
Whitehouse amendment would not leave persons who can prove they were 
victims of unlawful or unconstitutional actions without a remedy. On 
the contrary, the Specter-Whitehouse amendment would ensure that any 
such innocent victims retain whatever legal rights they have under 
applicable law, except that the U.S. Government would be substituted 
for the telecommunications providers as the defendant in such lawsuits. 
And it is appropriate that the Government be liable rather than the 
telecommunications providers since the disclosures were allegedly made 
by the providers in these cases at the request of senior executive 
branch officials based on appeals to help safeguard U.S. security and 
assurances that the providers would be protected from liability 
regardless of the requirements of law.
  The argument has been made that we must provide retroactive immunity 
to the telecommunications providers to ensure the cases against them 
are immediately dismissed because if the cases are permitted to 
proceed, vital national security information will be disclosed. Some 
have even taken the position that the mere existence of this 
litigation, even without the disclosure of any information, will 
somehow help the terrorists. But the President has already disclosed 
the existence of the collection program at issue. It has been discussed 
in Congress and in the press. The Director of National Intelligence has 
publicly discussed the program.
  Nor will the continuation into the future of cases against 
telecommunications providers or the U.S. Government, should the 
Government be substituted as the Specter-Whitehouse amendment would 
provide as a defendant, that would not make public sensitive collection 
methods. That is because the courts have numerous tools at their 
disposal to safeguard sensitive classified information from disclosure 
during the course of a trial and courts have used these tools 
throughout our history. Federal courts utilize these tools without 
compromising the national security when our Government chooses to 
prosecute terrorists or spies.

  Indeed, the recently enacted Military Commissions Act provides the 
same tools for the protection of classified information in cases 
brought against alleged terrorists in the military justice system. U.S. 
citizens who are allegedly damaged at the Government's behest surely 
should be given as much protection as alleged terrorists.
  The administration's willingness to utilize these procedures to 
safeguard sensitive classified information in the prosecution of 
alleged terrorists, but not in suits brought for the protection of the 
rights of American citizens, gives the appearance that retroactive 
immunity is being sought under this bill as it now stands, not to 
protect classified information but, rather, to protect the 
administration itself.
  The bottom line is we can protect telecommunications providers from 
liability for unlawful or unconstitutional disclosures made in good 
faith reliance on written assurances by high-ranking executive branch 
officials without retroactively depriving alleged victims of such 
disclosures of any remedy, if they can demonstrate they have been 
damaged by illegal practices. The Specter-Whitehouse amendment would 
enable us to deal fairly with both telecommunications providers and 
with persons who can prove they were damaged by illegal disclosures of 
their personal information. I urge our colleagues to support the 
Specter-Whitehouse amendment as the fair way of protecting both 
telecommunications providers but also protecting what should be a very 
basic principle of our Constitution--you cannot and should not 
needlessly remove a remedy from people who have been injured. To do 
that retroactively runs contrary to everything we believe in this 
Constitution about the rights of American citizens to be protected and 
to have remedies when they are wronged.


                           amendment no. 3941

  Mr. FEINGOLD. Madam President, last week the Senate adopted, by voice 
vote, amendment No. 3941 offered by the vice chairman of the 
Intelligence Committee, which would require the FISA Court to rule on 
challenges to the Government's directives within a specified timeframe. 
I opposed the

[[Page S843]]

amendment because it unnecessarily restricts the court's ability to 
consider important constitutional and statutory issues related to this 
legislation. The amendment limits the time for the court's 
consideration of challenges to directives issued under this law to a 
mere 30 days, unless ``necessary to comport with the due process clause 
of the Fifth Amendment.'' There would be no other basis for the court 
to extend its deliberations to a 31st day.
  This amendment could have serious unintended consequences. There may 
be many decisions that the court can, in fact, make in a relatively 
short period of time. But there may also be issues that the court will 
have to consider that could take longer. There have been many questions 
raised about the meaning of many of the provisions of this bill. The 
court will certainly be required to address some of these complex 
statutory interpretation issues. There have also been serious 
constitutional concerns raised about this bill that the court will need 
to consider.
  This is new legislation that radically changes how surveillance is 
conducted, and there are numerous complex issues that the court will be 
called on to resolve. And, unlike this body, the court will have to 
consider in detail the legality and constitutionality of the law as it 
is implemented, which could involve extensive factual development, as 
well as review of relevant precedent.
  There are many other reasons why the court would want to extend its 
deliberations that would not implicate fifth amendment due process 
rights. A party may seek more time to prepare its pleadings. The court 
may request more information. The Government may wish to prioritize 
other more pressing issues or may have a host of strategic reasons for 
seeking delay; or a crisis or national emergency could require the 
immediate attention of the intelligence personnel and lawyers assigned 
to present the Government's case to the court and could occupy the 
court's time and attention. Under those circumstances, we would surely 
want the court to focus its attention on the emergency at hand. But if 
there were also a pending challenge to a directive that the court must 
decide in just 30 days, it could be faced in a terrible dilemma. And 
only permitting the court to extend its consideration of a challenge if 
a refusal to do so rises to the level of a violation of the fifth 
amendment is far too restrictive.
  I would also think there might be some concern that if the court does 
not have enough time to decide whether to enforce a directive issued by 
the Government, it could very well simply decide not to.
  The Judicial Conference of the United States has made many of these 
same arguments in a letter sent today to Senators Reid and McConnell. 
The conference warns that the amendment could limit the court's ability 
to consider complex issues or could force the court to divert its 
attention from other pressing matters. Indeed, the letter warns that 
``the national security significance of the cases before the FISC means 
there is a chance this provision could force the FISC by statute to 
forego consideration of another matter of paramount importance.''
  This amendment could seriously shortchange the court's ability to 
determine whether the Government is acting legally or whether the bill 
is constitutional, on its face or as implemented in a particular 
situation. For that reason, I opposed this amendment.


                           amendment no. 3913

  Mr. LEAHY. Madam President, the bill we are now considering will 
provide an enormous expansion of the government's ability to conduct 
warrantless surveillance. I support providing our intelligence agencies 
with the flexibility they need to surveil foreign targets that may be 
intending us harm, but we must be similarly vigilant in making certain 
that this surveillance is limited to its intended scope.
  I commend Senator Feingold in crafting an amendment that would 
prohibit what is known as ``reverse targeting'' and would ensure that 
this new surveillance is directed only toward its overseas targets and 
not toward surveillance of innocent Americans without a court order. 
The Intelligence Committee's bill, S. 2248, requires the government to 
seek an order from the FISA Court only when ``the'' purpose of the 
government's acquisition is the targeting of Americans inside of the 
United States. I fear that the government will read into this language 
a loophole and it may justify eavesdropping on American's private 
communications, without any court order, as long as they have some 
interest in an overseas ``target,'' even if a significant purpose of 
the interception is to collect the communications of a person in the 
United States. Is this fear legitimate? I think so, given this 
administration's history of convoluted, disingenuous legal 
interpretation. We must be clear in our language, because we know what 
they will do if we are not.
  Senator Feingold's provision would clarify that if the government 
intercepts the communications of a person overseas but ``a significant 
purpose'' of the surveillance is to collect the communications of the 
U.S. person with whom the person overseas is communicating, the 
government must get a court order. This is an important distinction. In 
light of the sweeping powers we are granting to the government to 
conduct surveillance without up front court review, we must also cabin 
the scope of the government's power to eavesdrop on the communications 
of innocent Americans.


                           amendment no. 3915

   The authorities and procedures in S. 2248 would permit the FISA 
Court to review government targeting and minimization procedures. If, 
however, the Court finds certain aspects of those procedures to be 
inadequate--even grossly inadequate--S. 2248 provides no authority to 
restrict the use of information already collected using those 
procedures. That means that the government would be free to access, 
use, and share information about private communications that was 
collected in violation of the law.
  Senator Feingold's amendment would ensure that the Court has the 
authority to stop a continuation, and perhaps escalation, of the harm 
caused by the government's use of illegal procedures. This provision 
would limit the government's use and dissemination of illegally 
obtained information if the FISA Court later determines that the 
procedures were not reasonably designed to target people outside of the 
United States or to adequately minimize the use of information about 
U.S. persons. It is important to note that, under this provision, if 
the government acts to address the Court's concerns and correct these 
procedures it would then be free to use and disseminate the information 
it acquired.
  This is not a novel application of law under FISA. FISA's existing 
emergency provision holds that if the government begins emergency 
surveillance without a warrant, and the FISA Court then determines the 
surveillance to be unlawful, the government cannot use and disseminate 
the information it acquired except under very limited circumstances. 
Senator Feingold's amendment simply applies these reasonable safeguards 
to the new and broadly expanded authority we are now giving to the 
government. This provision represents a crucial safeguard for the 
protection of Americans' privacy rights.


                           amendment no. 3927

  I strongly oppose the blanket grant of retroactive immunity in the 
Intelligence Committee bill. This administration violated FISA by 
conducting warrantless surveillance for more than 5 years. They got 
caught. If they had not, they would probably still be doing it. In the 
wake of the public disclosure of the President's illegal surveillance 
of Americans, the administration and the telephone companies are being 
sued by citizens who believe their privacy and constitutional rights 
have been violated. Now, the administration is trying to force Congress 
to terminate those lawsuits in order to insulate itself from 
accountability. We should not allow this to happen.
  The administration knows that these lawsuits may be the only way that 
it will ever be called to account for its flagrant disrespect for the 
rule of law. In running its illegal program of warrantless 
surveillance, the administration, relying on legal opinions prepared in 
secret and shown to only a tiny group of like-minded officials, ensured 
the administration received the advice they wanted. Jack Goldsmith, who 
came in briefly to head the Justice Department's Office of Legal 
Counsel described the program as a ``legal

[[Page S844]]

mess.'' This administration does not want a court to have the chance to 
look at this legal mess. Retroactive immunity would assure that they 
get their wish.
  The Judiciary Committee and Intelligence Committee tried for well 
over a year and a half to obtain access to the information that our 
members needed to evaluate the administration's arguments for immunity. 
Indeed, over a year ago Chairman Specter was prepared to proceed to 
subpoena information from the telephone companies in light of the 
administration's stonewalling. It was only just before the Intelligence 
and Judiciary Committees' consideration of this bill that committee 
members finally obtained access to a limited number of these documents. 
Senators who have reviewed the information have drawn very different 
conclusions.
  Now this matter is before all Senators and it is well past time for 
all Members to have access to the information they need to make 
informed judgments about the provisions of these bills. The majority 
leader wrote to the administration stating that Members of the Senate 
need that access. We have had no response--the administration has 
ignored the request. It is clear that they do not want to allow 
Senators to appropriately evaluate these documents and draw their own 
conclusions.
  There are reports in the press that at least one telecommunications 
carrier refused to comply with the administration's request to 
cooperate with the warrantless wiretapping. All Senators should have 
the opportunity to know these facts, so they can make an informed 
judgment about whether there were legitimate legal concerns that other 
cooperating telecommunications companies should have raised. Indeed, if 
other carriers had been more careful in their legal analysis, and had 
raised these concerns, would the administration have had a greater 
incentive to come to the Congress and get the law changed? Would we 
have been spared five long years of illegal behavior by this 
administration?
  I have drawn very different conclusions than Senator Rockefeller 
about retroactive immunity. I agree with Senator Specter and many 
others that blanket retroactive immunity, which would end ongoing 
lawsuits by legislative fiat, undermines accountability. Senator 
Specter has been working diligently first as the chairman of the 
Judiciary Committee and now as its ranking member to obtain judicial 
review of the legality of the warrantless wiretapping of Americans from 
2001 into last year. The check and balance the judiciary provides in 
our constitutional democracy has an important role to play and should 
be protected. Judicial review can and should provide a measure of 
accountability.
  We hear from the administration and some of our colleagues that we 
must grant immunity or the telephone companies will no longer cooperate 
with the Government. Senators should understand that even if we do not 
grant retroactive immunity, telecommunications carriers will still have 
immunity for actions they take in the future. Their cooperation in the 
future will still be required by legal orders and they will not be 
subject to liability for doing what the law requires. If they follow 
the law, they have immunity.
  We have heard some people argue that the telephone companies should 
get immunity because they complied with the Government's requests to 
engage in warrantless surveillance out of patriotism. I do not doubt 
the patriotism of the executives and employees of these companies, but 
this month we learned that these companies cut off wiretaps, including 
wiretaps of terrorists, because the FBI failed to pay its telephone 
bills. How can this administration talk repeatedly, on the one hand, 
about the importance of FISA surveillance, and on the other hand, fail 
to pay its phone bills and jeopardize this critical surveillance. But 
beyond that, the fact that carriers were willing to cut off 
surveillance when they were not paid--presumably some of the same 
carriers that agreed to conduct warrantless surveillance--undercuts the 
argument about their patriotic motives.
  As one former FBI special agent has said, ``It sounds as though the 
telecoms believe it when the FBI says the warrant is in the mail, but 
not when they say the check is in the mail.''
  I believe the rule of law is important in protecting the rights of 
Americans from unlawful surveillance. I do not believe that Congress 
can or should seek to take those rights and those claims from those 
already harmed. Moreover, ending ongoing litigation eliminates perhaps 
the only viable avenue of accountability for the Government's illegal 
actions. Therefore, I say again: I oppose blanket retroactive immunity.
  I do support and will vote for the amendment that Senators Specter 
and Whitehouse will offer on ``substitution.'' This amendment would 
place the Government in the shoes of the private defendants that acted 
at its behest and let it assume full responsibility for illegal 
conduct. The Specter-Whitehouse amendment contains an explicit waiver 
of sovereign immunity, which will allow the lawsuits to proceed against 
the United States, and it makes other changes designed to assure that 
the Government does not have advantages as a defendant that the 
carriers would not have. While I see no need to deal with the issue of 
lawsuits against the providers in this Congress, I believe that 
substitution is a fairer means of dealing with these lawsuits than full 
retroactive immunity, because it would give the plaintiffs their day in 
court, and it would allow for a measure of accountability for the 
administration's actions in the years following 9/11.
  This administration violated FISA by conducting warrantless 
surveillance for more than 5 years. They got caught, and the 
telecommunications carriers got sued. Now, the administration insists 
that those lawsuits be terminated by Congress, so that it does not have 
to answer for its actions. Retroactive immunity does more than let the 
carriers off the hook. It shields this administration from any 
accountability for conducting surveillance outside of the law. It would 
stop dead in their tracks the lawsuits that are now working their way 
through the courts, and leave Americans whose privacy rights have been 
violated with no chance to be made whole. These lawsuits are perhaps 
the only avenue that exists for an outside review of the Government's 
actions. That kind of assessment is critical if our Government is to be 
held accountable. That is why I do not support legislation to terminate 
these legal challenges and I will vote to strike it.
  Madam President, I yield the floor, and 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 (Mr. Whitehouse). Without objection, it is so 
ordered.

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