[Congressional Record Volume 154, Number 23 (Tuesday, February 12, 2008)]
[Senate]
[Pages S880-S891]
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 legislative clerk read as follows:

       A bill (S. 2248) to amend the Foreign Intelligence 
     Surveillance Act of 1978, to modernize and streamline the 
     provisions of that act, and for other purposes.

  Pending:

       Rockefeller/Bond amendment No. 3911, in the nature of a 
     substitute.
       Whitehouse amendment No. 3920 (to amendment No. 3911), to 
     provide procedures for compliance reviews.
       Feingold amendment No. 3979 (to amendment No. 3911), to 
     provide safeguards for communications involving persons 
     inside the United States.
       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. ROCKEFELLER. I say to the Presiding Officer, it is my 
understanding that the first amendment is minimization compliance 
review by Senator Whitehouse.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, first of all, we thank all our colleagues 
for coming to this point where we can have votes and finally get this 
bill out, which we started in December. It is a very important bill. We 
have worked together on a bipartisan basis and resolved almost all 
issues.
  The amendment offered by our colleague from Rhode Island has been 
modified in a way that I believe improves it, makes it effective, makes 
it work for the intelligence community, and achieves the very important 
goals that the Senator from Rhode Island has sought to achieve.
  I ask that I be added as a cosponsor to this modified amendment. I 
believe, Mr. President, we can accept it by voice vote.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I simply would also like to be added 
as a cosponsor, and I congratulate Senator Whitehouse, Senator Bond, 
and others for doing an outstanding piece of work in resolving the 
differences on this extremely important enforcement mechanism.


                    Amendment No. 3920, as Modified

  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I have at the desk a modification to 
amendment No. 3920.

[[Page S881]]

  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered. The amendment is so modified.
  The amendment, as modified, is as follows:

       On page 69, after line 23, add the following:
       (d) Authority of Foreign Intelligence Surveillance Court.--
     Section 103 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1803), as amended by this Act, is amended by 
     adding at the end the following:
       ``(h)(1) Nothing in this Act shall be considered to reduce 
     or contravene the inherent authority of the Foreign 
     Intelligence Surveillance Court to determine, or enforce, 
     compliance with an order or a rule of such Court or with a 
     procedure approved by such Court.
       ``(2) In this subsection, the terms `Foreign Intelligence 
     Surveillance Court' and `Court' mean the court established by 
     subsection (a).''.

  Mr. WHITEHOUSE. Mr. President, much of the FISA battle in which we 
have been engaged over the weeks that it has taken to resolve this 
issue has been over trying to do two things: one, to fit this program 
within the separation of powers principles of the American system of 
government and, two, to make the rights of Americans consistent with 
what they enjoy stateside in law enforcement investigations.
  This amendment is a valuable step in both of those directions, and it 
solves the minimization issue that had been in dispute.
  I appreciate very much the roles of Chairman Rockefeller, Vice 
Chairman Bond, FBI Director Mueller, and DNI counsel Powell in getting 
us to a voice vote on this bipartisan amendment.
  Mr. President, I ask unanimous consent that amendment No. 3920, as 
modified, be adopted by voice vote.
  The ACTING PRESIDENT pro tempore. Without objection it is so ordered. 
If there is no further debate, the question is on agreeing to amendment 
No. 3920, as modified.
  The amendment (No. 3920), as modified, was agreed to.
  Mr. ROCKEFELLER. I move to reconsider the vote.
  Mr. BOND. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3910

  The ACTING PRESIDENT pro tempore. The question is now on amendment 
No. 3910 offered by the Senator from California.
  The Senator from California.
  Mrs. FEINSTEIN. Mr. President, it is my understanding that there is 2 
minutes evenly divided; is that correct?
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mrs. FEINSTEIN. Mr. President, the purpose of this amendment is to 
strengthen the legal requirement that FISA is the exclusive authority 
for the electronic surveillance of Americans. When FISA was written in 
1978, it followed 30 years of warrantless surveillance of 
communications and telegrams of hundreds of thousands of Americans 
sending messages outside the country. This would stress that FISA is 
the legal way for the collection of electronic surveillance against 
Americans.
  In 2001, the administration decided they would not take the Terrorist 
Surveillance Program to the FISA Court, that they would perform this 
program outside of FISA, and it took until January of 2007 to bring 
this within the confines of FISA where it is to this day.
  I think we need to make a strong statement in this bill that FISA is 
the exclusive authority for the electronic surveillance of all 
Americans, and this amendment aims to do that. It provides penalties 
for moving outside of the law, and I believe it would strengthen the 
opportunity to prevent the Chief Executive, either now or in the 
future, from moving outside of this law.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, the bill before us, S. 2248, already has an 
exclusive means provision that simply restates the congressional intent 
back in 1978 when FISA was enacted to place the President at his lowest 
ebb of authority under the Constitution, which gives him power over 
foreign intelligence. Unfortunately, this amendment is a significant 
change of the bipartisan provision in the Intelligence Committee bill, 
and therefore I would urge my colleagues to oppose it.
  During the next attack on our country or in the face of an imminent 
threat, Congress may not be in a position to legislate an 
authorization. Yet the bottom line is, we just don't know what tomorrow 
will bring. This provision would raise unnecessary legal concerns that 
might impede the effective action of our intelligence community to 
protect this country.
  Further, because this amendment does not address warrantless 
surveillance in times of war and national emergency following an attack 
on our country, it does not provide enough flexibility for intelligence 
collectors. I am concerned this will cause operational problems.
  Mr. President, I urge the defeat of this amendment.
  The ACTING PRESIDENT pro tempore. The question is on agreeing to the 
amendment. The yeas and nays have been ordered.
  The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent to speak on 
this amendment.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ROCKEFELLER. Mr. President, I strongly support this amendment. I 
think it has very good delineation between how decisions are made. The 
FISA Court needs to be a part of this. I urge my colleagues to support 
the amendment.
  I thank the senior Senator from California for offering this 
amendment, and for all of her work on ensuring that we have an 
appropriately drafted exclusivity provision. Senator Feinstein's 
amendment is critical to both our work on this bill and to our 
oversight of the intelligence community.
  To understand the importance of the Feinstein amendment, we must look 
at both existing statutes and recent events.
  There is already an exclusivity provision in the United States Code. 
It was enacted as part of the original Foreign Intelligence 
Surveillance Act in 1978 and placed, where it exists now, in title 18, 
the criminal law title of the United States Code.
  That provision makes the Foreign Intelligence Surveillance Act and 
certain criminal wiretapping provisions the ``exclusive means by which 
electronic surveillance . . . and the interception of domestic wire, 
oral and electronic communications may be conducted.'' Although the 
intent of Congress is clear from this language, recent history raises 
concerns about the adequacy of this provision.
  In December of 2005, the American people and most of Congress learned 
for the first time that, shortly after the terrorist attacks of 
September 11, 2007, the President had authorized the National Security 
Agency to conduct certain surveillance activities within the United 
States.
  In publicly justifying the legality of this program, the White House 
asserted that Congress had authorized the President's program by 
enacting an authorization for use of military force after September 11.
  The authorization passed on September 14, 2001, did not mention 
electronic surveillance. Nor did it mention any domestic intelligence 
activities. Given the nature of both the authorization and the time in 
which it was passed, it is very unlikely that it occurred to anyone in 
Congress that the President might use this authorization to justify his 
position that the existing statute making FISA the exclusive means for 
conducting electronic surveillance no longer applied.
  I have expressed my dismay in the past about the legal arguments that 
the President used to justify the surveillance program. We are still 
working through the many problems caused by the President's decision to 
go forward without input from Congress or the courts.
  But no matter what the President should have done at the time, 
Congress now has an obligation to act to prevent this misuse of 
legislation. Having finally made the right decision in early 2007 to 
bring his entire program under the FISA Court, the President is no 
longer using the 2001 Authorization for the Use of military force as a 
justification to disregard FISA. But we must ensure that neither this 
President nor a future one resurrects the discredited argument that the 
2001 authorization for the use of military force is a blank check for 
such lawlessness.

[[Page S882]]

  Section 102 of the Intelligence Committee bill prevents that abuse. 
Section 102 enacts an exclusivity provision as a new section 112 of 
FISA, and lists all statutes now in effect that constitute authority 
for electronic surveillance. This list is a clear statement of 
congressional intent: Congress did not intend any other presently-
existing statutes to constitute an exception to FISA.
  Conspicuously absent from the exclusive list is the 2001 
authorization for the use of military force. The omission of the 2001 
authorization from the complete list that will now be enacted in 2008 
is a conclusive statement that the 2001 authorization may never again 
be used to circumvent FISA.
  Senator Feinstein's amendment takes exclusivity one important step 
further. It is designed to ensure that no future President interprets a 
statute that does not explicitly mention electronic surveillance as an 
exception to the FISA exclusivity requirement. This would be an 
absolutely incorrect interpretation of existing law. Senator 
Feinstein's amendment ensures that no President will again make this 
mistake.
  Senator Feinstein's amendment addresses the possible impact of future 
statutes by adding language to the exclusivity section that states that 
only an express statutory authorization for electronic surveillance 
will constitute an additional exclusive means for electronic 
surveillance.
  By requiring ``express statutory authorization,'' Congress 
anticipates that a statute will only constitute an exception to FISA if 
it explicitly discusses electronic surveillance. Only those statutes 
listed in the FISA exclusivity section of the Intelligence Committee 
bill currently meet that standard.
  The amendment therefore ensures that general statutes enacted in the 
future do not become the basis for exceptions to the FISA exclusivity 
provision. It also applies criminal and civil penalties for any 
electronic surveillance done outside of the list of authorized 
statutes.
  The Feinstein amendment being offered today also resolves the 
operational concerns raised by the Director of National Intelligence 
about the exclusivity provision in the Judiciary Committee's amendment 
to the bill. Senator Feinstein's amendment does not include the 
undefined term ``communications information'' and therefore does not 
bar the acquisition of information that is currently authorized under 
other statutes.
  Existing statutes as well as the current bill provide the 
intelligence community with mechanisms to obtain the intelligence the 
country needs in a legal manner, with the oversight of the courts. 
There is no need for this President, or any future President, to set 
aside the lawful, well-overseen procedures of FISA in favor of a secret 
intelligence program.
  Both the Intelligence and Judiciary Committees have done a 
significant amount of work, on a bipartisan basis, to draft a bill that 
allows the collection of needed intelligence while still protecting the 
civil liberties of U.S. persons. Senator Feinstein's amendment helps to 
make sure that this work will not simply be ignored by this President 
or any future President.
  Mr. BOND. Mr. President, I would note that the Intelligence Committee 
debated this and accepted a return to the original FISA exclusive means 
provision, which I think we should maintain, and I urge opposition.
  S. 2248 already has an exclusive means provision that is identical to 
the first part of this 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 exclusive mean provision in S. 2248 was acceptable to all 
sides because it maintains the status quo with respect to the dispute 
over the President's constitutional authority to authorize warrantless 
surveillance.
  Unfortunately, this amendment is a significant expansion of the 
bipartisan provision in the Intelligence Committee's bill.
  It 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 artic1e II authority to issue warrantless electronic 
surveillance directives.
  It also would require that future authorizations for the use of 
military force, AUMFs, expressly state that they authorize the use of 
additional electronic surveillance.
  I am concerned that this amendment would tie the President's hands 
following a national emergency or imminent threat of attack on our 
country--and prevent actions or intelligence collection that may be 
necessary for our safety and survival.
   While FISA currently has provisions that allow the President to 
conduct electronic surveillance, physical searches, or install pen 
register/trap and trace devices for 15 days following a declaration of 
war, these authorities are simply insufficient against the current 
terrorist threats our country faces.
  Let's think this through for a minute. 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 not be in a position to formally declare war against an 
unknown enemy.
  What if there is intelligence information about an imminent threat of 
attack, but Congress is in a lengthy recess, over a holiday? What if 
there are simultaneous terrorist attacks across the country, impeding 
air travel so that Members cannot return to Washington, DC?
  The bottom line is, we just don't know what tomorrow will bring. Yet 
this provision would raise unnecessary legal concerns that might impede 
effective action by the executive branch to protect this country.
  I have the utmost respect for Senator Feinstein. She has played a key 
role in this FISA modernization process.
   While our views on the President's constitutional authority may 
differ, she did convince me that a bipartisan FISA bill should restate 
the exclusive means concept in the originally enacted FISA statute.
   And over the past several weeks, Senator Feinstein and I tried to 
come up with a further compromise, one that would expand this simple 
restatement but would also allow the President to act in the event of a 
national emergency, or following an AUMF or declaration of war.
  Unfortunately, we could not reach an agreement. I believe that if we 
are going to declare that the President should follow the current FISA 
framework, then we need to make sure that that framework is flexible 
enough to address the grave threats of terrorism that threaten our 
country--and that means giving the President the ability to conduct 
warrantless electronic surveillance, physical searches, or installing 
pen register/trap and trace devices, for a reasonable period of time. 
This amendment does not provide this flexibility.
  I have other concerns with this amendment. It would 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. Also, it is likely these criminal penalties would apply to any 
service provider who assisted the government in conducting such 
electronic surveillance.
  I don't care what the skeptics and critics have said about the 
President's Terrorist Surveillance Program; the Constitution trumps the 
FISA statute.
  If a government employee--or a provider--acts under the color of the 
President's lawful exercise of his constitutional authority, that 
employee should not be subject to criminal penalty.
  In my opinion, the current restatement of exclusive means is fair and 
keeps the playing field level.
  Ultimately, the Supreme Court will 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 ACTING PRESIDENT pro tempore. The question is on agreeing to

[[Page S883]]

amendment No. 3910. The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``nay.''
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 57, nays 41, as follows:

                      [Rollcall Vote No. 13 Leg.]

                                YEAS--57

     Akaka
     Baucus
     Bayh
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Carper
     Casey
     Collins
     Conrad
     Craig
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Hagel
     Harkin
     Inouye
     Johnson
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lincoln
     McCaskill
     Menendez
     Mikulski
     Murkowski
     Murray
     Nelson (FL)
     Obama
     Pryor
     Reed
     Reid
     Rockefeller
     Salazar
     Sanders
     Schumer
     Smith
     Snowe
     Specter
     Stabenow
     Sununu
     Tester
     Voinovich
     Webb
     Whitehouse
     Wyden

                                NAYS--41

     Alexander
     Allard
     Barrasso
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Chambliss
     Coburn
     Cochran
     Coleman
     Corker
     Cornyn
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Grassley
     Gregg
     Hatch
     Hutchison
     Inhofe
     Isakson
     Kyl
     Lieberman
     Lugar
     Martinez
     McCain
     McConnell
     Nelson (NE)
     Roberts
     Sessions
     Shelby
     Stevens
     Thune
     Vitter
     Warner
     Wicker

                             NOT VOTING--2

     Clinton
     Graham
  The ACTING PRESIDENT pro tempore. Under the previous order requiring 
60 votes for the adoption of this amendment, the amendment is 
withdrawn.


                           Amendment No. 3979

  There will now be 2 minutes of debate equally divided on amendment 
No. 3979 offered by the Senator from Wisconsin, Mr. Feingold.
  Mr. FEINGOLD. Mr. President, the Feingold-Webb-Tester amendment lets 
the Government 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.
  It has the support of nine cosponsors. All this amendment does is 
require the Government to take extra steps to protect the privacy of 
Americans on U.S. soil when it knows it has collected their 
communications.
  This amendment in no way hampers our fight against al-Qaida and its 
affiliates. This is not about whether we will be effective in 
combatting terrorism. This is about whether Americans at home deserve 
more privacy protections than foreigners overseas.
  This is about separation of power, whether anyone outside the 
executive branch will oversee what the Government is doing with all the 
communications of Americans it collects inside the United States. I 
urge my colleagues to support the amendment.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, the purpose of this bill is to make sure we 
are able to get information when we target a foreign terrorist 
overseas.
  This applies a different standard to someone in the United States who 
may be picked up on one of those calls than we apply within our own 
country. If the FBI gets a warrant to listen in on a drug dealer and 
that drug dealer has lots of conversations, if the drug dealer is 
talking about a criminal operation, then the FBI acts on it. If it is 
innocent, the FBI, the interceptors minimize or suppress that evidence, 
they do not sequester it, they do not have to go through the hoops that 
are required for a recipient of a telephone call from a foreign 
terrorist overseas.
  There is no reason why, when we have no challenges and no question 
that minimization is adequate to protect innocent Americans, that they 
need a higher level of protection when they are talking to a foreign 
terrorist than when they are talking to a U.S. drug dealer.
  I urge the defeat of this amendment.
  Mr. ROCKEFELLER. Mr. President, I ask unanimous consent for 5 
minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ROCKEFELLER. Mr. President, I strongly oppose this amendment.
  This amendment would prohibit the Government from acquiring any 
communication under title VII of the bill if the Government knows 
before or at the time of acquisition that the communication is to or 
from a person reasonably believed to be located in the United States, 
unless the Government follows the sequestration procedures set forth in 
the legislation.
  I see a number of problems with this amendment and I strongly oppose 
it.
  I am afraid that the practical effect of this amendment would be to 
restrict the scope of the collection authority under the bill to 
international terrorism. Under the terms of this amendment, no other 
important foreign policy or national security target could be pursued 
unless the Government goes through a process that appears to be 
basically unworkable.
  Neither the Intelligence Committee nor the Judiciary Committee 
limited the scope of the authority in this bill to international 
terrorism. Both committees anticipated that the flexibility provided by 
this bill could be used against the gamut of foreign targets overseas 
with respect to proliferation, weapons development, the clandestine 
intelligence activities of our enemies, and other priorities. The full 
Senate should not limit the scope of this bill to one area of foreign 
intelligence.
  A second problem with this amendment is the new, cumbersome 
procedures it would impose involving the sequestration of information 
if the communication is to or from a person in the United States. The 
amendment seems to require that the Attorney General must make an 
application to the FISA Court to have access to this information for 
more than 7 days, even if the communication, for instance, concerns 
international terrorist activities directed against the United States.
  While I share the Senator's goal of protecting the privacy interests 
of Americans, I am afraid this amendment is unworkable.
  It bears repeating that what we are trying to do in S. 2248 is 
modernize the Foreign Intelligence Surveillance Act so that FISA Court 
orders are not required when the Government is targeting non-U.S. 
persons overseas to collect foreign intelligence information. And we 
are trying to do this in a way that protects the privacy interests of 
U.S. persons.
  We thus have included in S. 2248 numerous protections for U.S. 
persons--both when they are the specific targets of Government 
surveillance and when their communications are intercepted as the 
incidental result of the Government acquiring the communications of a 
foreign target.
  The Feingold sequestration amendment does not achieve the appropriate 
balance of privacy and national security. It appears to me that 
requirements already in S. 2248, including the requirement that 
minimization procedures for this collection activity be approved by the 
FISA Court, represent a much better approach for balancing the national 
security and the privacy interests of U.S. persons.
  I urge the amendment be defeated.
  The ACTING PRESIDENT pro tempore. The question is on agreeing to the 
amendment.
  Mr. FEINGOLD. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second?
  There appears to be a sufficient second. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``nay.''
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 35, nays 63, as follows:

[[Page S884]]

                      [Rollcall Vote No. 14 Leg.]

                                YEAS--35

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Casey
     Dodd
     Dorgan
     Durbin
     Feingold
     Harkin
     Kennedy
     Kerry
     Klobuchar
     Kohl
     Lautenberg
     Leahy
     McCaskill
     Menendez
     Murray
     Obama
     Reed
     Reid
     Salazar
     Sanders
     Schumer
     Stabenow
     Tester
     Webb
     Whitehouse
     Wyden

                                NAYS--63

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

                             NOT VOTING--2

     Clinton
     Graham
       
  The amendment (No. 3979) was rejected.
  Mr. BOND. I move to reconsider the vote.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3907

  The ACTING PRESIDENT pro tempore. The question is on agreeing to 
amendment No. 3907 offered by the Senator from Connecticut, Mr. Dodd. 
There are 2 minutes of debate time equally divided, and the time on the 
remaining amendments will be strictly enforced.
  The Senator from Connecticut.
  Mr. DODD. Mr. President, let me, first of all, thank my colleague 
from Wisconsin, Senator Feingold, for his cosponsorship of this 
amendment, along with a number of other Members of this body who have 
joined us in this effort.
  I thank the chairman and ranking member. My colleagues should know, 
initially the administration sought to grant immunity to all 
participants in this telecommunications surveillance program. The 
chairman and ranking member disagreed with that. However, they have 
provided retroactive immunity to some 16 phone companies. One of the 
phone companies refused, of course, to comply with this 5-year 
surveillance program that was granted without a warrant, without a 
court order.
  I believe it is dangerous in setting a precedent for us today to 
grant that retroactive immunity without insisting the courts--as they 
are designed to do--should determine the legality or illegality of this 
program.
  There are four committees of the U.S. Congress that have considered 
this issue. Three of the committees have rejected retroactive immunity. 
Only the Intelligence Committee of this body has decided to include it. 
I believe we ought to strike that provision and allow the court to do 
its job. That is what this amendment does, and I urge its adoption.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Missouri.
  Mr. BOND. Mr. President, this carrier liability provision is an 
essential part of this bill. If we permit lawsuits to go ahead against 
carriers alleged to have participated in the program, there will be 
more disclosures in discoveries and pleadings of the means of 
collecting information, disclosing our most vital methods of collecting 
information.
  Secondly, if we permit the carriers that may or may not have 
participated to be sued in court, then the most important partners the 
Government has--the private sector--will be discouraged from assisting 
us in the future.
  The Intelligence Committee--the one committee that has looked at 
this--reviewed it and said these companies acted in good faith and, 
therefore, we should give them retroactive immunity.
  I yield the remainder of my time to the distinguished chairman.
  The ACTING PRESIDENT pro tempore. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I strongly oppose this amendment. It 
is, of course, the whole shooting match. Substitution was brought up in 
the Judiciary Committee, and it was defeated. This, I believe, is the 
right way to go for the security of the Nation.
  Mr. President, Senators Dodd and Feingold have offered an amendment 
to strike title II of the Intelligence Committee bill.
   Title II addresses, in the narrowest way possible, a number of 
different underlying issues related to the past and future cooperation 
of providers. Any suggestion that it deals only with liability 
protection for providers related to the President's program fails to 
consider the title of the bill as a whole.
  Unlike the Government's initial immunity proposals, title II does not 
try to address all of the different kinds of problems in one sweeping 
immunity provision that might provide immunity in situations where it 
is not deserved. Instead, it addresses each problem individually.
   Let's look at the first problem. Under existing law, providers are 
entitled to protection from suit if they act pursuant to a FISA court 
order or if they receive a particular certification from the Attorney 
General. Senators Dodd and Feingold point to this existing immunity 
provision-- which may be based solely on the certification of the 
Attorney General--to suggest that no further immunity is needed. But 
this suggestion ignores the situation in the current lawsuits.
   The Government has not allowed the providers who have been sued to 
publicly disclose whether or not they assisted the Government. 
Providers, therefore, cannot reveal whether they are already entitled 
to immunity, or even whether they declined to cooperate with the 
intelligence community.
   In other words, even those providers who were not involved in the 
President's program or who acted only pursuant to a valid court order 
cannot extricate themselves from these lawsuits.
  Section 203 of the Intelligence Committee bill, therefore, creates a 
mechanism within FISA that allows courts to review whether providers 
should be entitled to immunity under existing law, without revealing 
whether or not the provider assisted the intelligence community. The 
Dodd-Feingold amendment to strike title II strikes this provision, 
which protects those providers who indisputably complied with existing 
law.
  There is a second problem that has not been widely discussed. 
Providers are currently subject to investigations by State public 
utilities commissions, which seek information about the relationship 
between the providers and Federal Government.
   These State investigations essentially seek to force disclosure of 
classified information about the nature and extent of the information 
obtained by the intelligence community from communication providers. 
This inquiry into the conduct of the Federal Government is not an 
appropriate area for State regulation.
   Section 204 of the Intelligence Committee bill, therefore, creates a 
new section of FISA that preempts State investigations that seek to 
force disclosure of classified information about the conduct of the 
Federal intelligence relationship between the provider and the 
intelligence community.
   Finally, section 202 provides retrospective immunity for the 
participation of telecommunication companies in the President's 
warrantless surveillance program. We need to be very clear on the 
parameters of this section. It does not simply clean the slate for the 
actions of communications providers in the aftermath of 9/11.
   In order for a provider to obtain liability protection, the Attorney 
General must certify that a company's actions were based on written 
assurances of legality, and were related to a communications 
intelligence activity authorized in the relevant time period.
   Because these certifications require the Attorney General to have 
determined that legal requirements have been met and that the program 
was designed to detect or prevent a terrorist attack, an area where 
assistance would clearly be required, they parallel existing statutory 
requirements for immunity. Before immunity can be granted, the bill 
also requires the court to conduct a case-by-case review to ensure that 
the Attorney General did not abuse his discretion.

[[Page S885]]

   It is important to understand why the Intelligence Committee 
included this provision in our bill. After hearing from witnesses and 
reviewing documents, the committee concluded that the providers who 
assisted the Government acted in good faith, with a desire to help the 
country prevent another terrorist attack like those committed on 
September 11, 2001.
  Even more importantly, however, the committee recognized that, 
because of the ongoing lawsuits, providers have become increasingly 
reluctant to assist the Government in the future. Given the degree to 
which our law enforcement agencies and intelligence community need the 
cooperation of the private sector to obtain intelligence, this was 
simply an unacceptable outcome.
  Senators Dodd and Feingold have suggested that including the 
provision on liability protection as part of the bill is a sign of 
support for the President's program. It is not. It is simply a 
mechanism to ensure that accountability for the President's program 
lies with those who are truly responsible for it: The Government 
officials who represented to these companies that their actions were in 
accordance with the law. And it is a way to ensure that the 
intelligence community obtains the assistance it needs from the private 
sector to keep us safe.
  The question of whether the President's warrantless surveillance 
program was legal, or whether it violated constitutional rights, can 
and must be answered. Likewise, if administration officials improperly 
violated the privacy of innocent U.S. persons by conducting this 
warrantless surveillance, they should be held accountable.
  But suing private companies who may have cooperated with the 
Government is neither an appropriate accountability mechanism nor the 
best way to obtain answers to questions about the legality of the 
program, nor is it the appropriate way to encourage public disclosure 
of information about the program.
  The Intelligence Committee's bill does not prevent Congress from 
conducting its own oversight of these issues, or even from creating 
alternative mechanisms to seek those answers. It also allows suits 
against the Government to go forward.
  I encourage my colleagues to come up with appropriate alternatives 
for review of the President's program; alternatives that will ensure 
both that the story of the President's program is made available to the 
public in a manner consistent with the protection of national security 
information and that Government officials are held accountable for any 
wrongdoing in which they may have been involved.
  What we must not do, however, is to make companies that cooperated 
with the Government in good faith bear the brunt of our anger towards 
the President and other Government officials about the warrantless 
surveillance program; our intelligence community's future relationship 
with the private sector is simply too important.
  Protection from liability is simply a way to ensure that the next 
President has the cooperation of these companies both to obtain 
intelligence to protect the country and to protect the privacy 
interests of U.S. persons.
  I, therefore, urge you to oppose the Dodd-Feingold amendment.
  The ACTING PRESIDENT pro tempore. The question is on agreeing to the 
amendment.
  Mr. DODD. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
is a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``nay.''
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 31, nays 67, as follows:

                      [Rollcall Vote No. 15 Leg.]

                                YEAS--31

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Casey
     Dodd
     Dorgan
     Durbin
     Feingold
     Harkin
     Kennedy
     Kerry
     Klobuchar
     Lautenberg
     Leahy
     Levin
     Menendez
     Murray
     Obama
     Reed
     Reid
     Sanders
     Schumer
     Tester
     Whitehouse
     Wyden

                                NAYS--67

     Alexander
     Allard
     Barrasso
     Bayh
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Carper
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kohl
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McCaskill
     McConnell
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Salazar
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stabenow
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Wicker

                             NOT VOTING--2

     Clinton
     Graham
       
  The amendment (No. 3907) was rejected.
  Mr. ROCKEFELLER. Mr. President, I move to reconsider the vote, and I 
move to lay that motion on the table.
  The motion to table was agreed to.


                           Amendment No. 3912

  The ACTING PRESIDENT pro tempore. The question is on agreeing to 
amendment No. 3912, offered by Mr. Feingold of Wisconsin. There are 2 
minutes of debate evenly divided.
  The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, this amendment was approved by the 
Senate Judiciary Committee. It ensures that in implementing the new 
authorities provided in the bill, the Government is acquiring the 
communications of targets from whom it seeks to obtain foreign 
intelligence information and that it is not indiscriminately collecting 
all communications between the United States and overseas.
  This amendment is necessary because of the vast and overbroad 
authorities provided by the PAA in this bill. In public testimony, the 
DNI stated that the PAA could authorize this type of bulk collection 
and could cover every communication between Americans inside the United 
States, in Europe, in South America, or the entire world. He also said 
that the Government is not actually engaging in this type of broad bulk 
collection but that it would be ``desirable.''
  This amendment would not impede in any way collection in support of 
military operations, as the opponents continue to falsely assert. This 
extremely modest amendment would, however, oppose a massive bulk 
collection dragnet, which Chairman Rockefeller has even acknowledged 
would violate the Constitution.
  I urge support for the amendment.
  Mr. ROCKEFELLER. Mr. President, I oppose this amendment.
  The Senator from Wisconsin is offering an amendment that he argues 
will prevent what he calls ``bulk collection.'' The amendment is 
intended, as described by the Senator from Wisconsin, to ensure that 
this bill is not used by the Government to collect the contents of all 
the international communications between the United States and the rest 
of the world. The Senator argues that his amendment will prevent ``bulk 
collection'' by requiring the Government to have some foreign 
intelligence interest in the overseas party to the communications it is 
collecting.
  I regret to say that I must oppose this amendment. I do not believe 
it is necessary. I do believe as drafted the amendment will interfere 
with legitimate intelligence operations that protect the national 
security and the lives of Americans.
  In considering amendments today, we need to consider whether an 
amendment would provide additional protections for U.S. persons and 
whether it would needlessly inhibit vital foreign intelligence 
collection. I do not believe the amendment as drafted provides 
additional protections. Furthermore, intelligence professionals have 
expressed their concern that this amendment would interfere with vital 
intelligence operations and there are important classified reasons 
underlying that concern.

[[Page S886]]

  Let us review the reasons why the amendment is unnecessary: first, 
bulk collection resulting in a dragnet of all of the international 
communications of U.S. persons would probably be unreasonable of the 
fourth amendment. No bill passed by the Senate may authorize what the 
fourth amendment prohibits. What is more, the committee bill, in fact, 
explicitly provides that acquisitions authorized under the bill are to 
be conducted in a manner consistent with the fourth amendment.
  Second, the committee bill stipulates that acquisitions under this 
authority cannot intentionally target any person known to be located in 
the United States. And, to target a U.S. person outside the United 
States, the government must get approval from the FISA Court.
  Third, the committee bill increases the role of the FISA Court in 
supervising the acquisition activities of the Government. The bill 
requires Court approval of minimization procedures that protect U.S. 
person information. It maintains the prior requirement of Court 
approval of targeting procedures.
  In the unlikely event that the FISA Court would give its approval to 
targeting procedures and minimization procedures that allowed the 
Government to engage in unconstitutional bulk collection, the committee 
bill also strengthens oversight mechanisms in the executive and 
legislative branches. These mechanisms are intended to ensure such 
activity is detected and prevented.
  The sponsor of the amendment says that his amendment only requires 
the Government to certify to the FISA Court that it is collecting 
communications of targets for whom there is a foreign intelligence 
interest.
  But the committee bill already requires the Attorney General and the 
Director of National Intelligence to certify to the FISA Court that the 
acquisition authorized under the bill is targeted at persons outside 
the United States in order to obtain foreign intelligence information.
  Because the remedy does not improve upon the protections in the bill 
for Americans, and places new burdens on the surveillance of foreign 
targets overseas, I thus oppose the amendment and urge it be rejected.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri is 
recognized.
  Mr. BOND. Mr. President, there is a clear delineation in this bill. 
We permit targeting of foreign terrorists overseas, or Americans, with 
a court order. This doesn't permit listening in on bulk collections of 
communications involving innocent Americans. The only American who is 
going to be listened in on is one calling to or receiving a call from a 
terrorist.
  I urge defeat of this amendment.
  The ACTING PRESIDENT pro tempore. The question is on agreeing to 
amendment No. 3912.
  Mr. FEINGOLD. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
is a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN, I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from South Carolina (Mr. Graham) and the Senator from Idaho (Mr. 
Craig).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``nay.''
  The PRESIDING OFFICER (Mr. Casey). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 37, nays 60, as follows:

                      [Rollcall Vote No. 16 Leg.]

                                YEAS--37

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

                                NAYS--60

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

                             NOT VOTING--3

     Clinton
     Craig
     Graham
  The amendment (No. 3912) was rejected.
  Mr. BOND. I move to reconsider the vote.
  Mr. ROCKEFELLER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3938

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3938 offered by the Senator from Missouri.
  Mr. BOND. Mr. President, with the distinguished chairman of the 
committee, we offer this amendment responding to a request made by the 
Director of National Intelligence when he sent up his recommendations 
to us last April. He and the Attorney General strongly support this 
amendment because it adds proliferators of weapons of mass destruction 
to the definition in FISA of agent of a foreign power, foreign 
intelligence information, use of information, and physical searches. 
This amendment applies only to non-U.S. persons.
  Making these definitional changes will allow the Government to target 
for surveillance those who seek to spread this dangerous technology and 
will enable the intelligence community to share information with other 
agencies. It remains a central concern for our national security, 
whether done by terrorists, criminals or other nations.
  I believe we can accept this amendment on a voice vote. I turn to my 
distinguished chairman for his comments.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I support this amendment.
  It closes a gap in the Foreign Intelligence Surveillance Act. The 
amendment expands the definition of certain key terms in the law in 
order to enhance the Government's ability to obtain FISA coverage of 
individuals involved in the international proliferation of weapons of 
mass destruction.
  Although the international proliferation of WMD is one of the most 
serious threats facing the nation, the Government cannot now get a FISA 
Court order for individuals believed to be engaged in international 
proliferation of weapons of mass destruction unless the Government can 
also show a close link between the trafficker and a foreign Government 
or an international terrorist organization.
  Too often, this connection only becomes clear at the completion of 
the target's proliferation activity. With this amendment, the 
Government will be able to conduct electronic surveillance and physical 
searches, with a FISA Court order, at a much earlier stage in an 
individual's proliferation activities.
  It should be understood that this amendment is intended to broaden 
FISA coverage only in those instances in which the individual is 
involved in international proliferation activities. The amendment is 
intended to cover those who are engaged in activities involving 
proliferation of weapons of mass destruction, which include under the 
terms of the amendment biological, chemical and radiological weapons 
and destructive devices that are intended to or that actually do have a 
capability to cause death or serious bodily injury to a significant 
number of people.
  This amendment will enhance our efforts to acquire foreign 
intelligence information to detect and disrupt the international 
proliferation of weapons of mass destruction.
  The vice chairman is to be applauded for addressing this issue and I 
urge passage.
  Mr. FEINGOLD. Mr. President, I must oppose Bond amendment No. 3938. I 
do not object to expanding FISA to cover dangerous individuals involved 
in the international proliferation of weapons of mass destruction, 
which is the primary goal of this amendment.
  But this amendment is drafted in such a way that its effect would be

[[Page S887]]

much broader and could result in wiretaps issued by the secret FISA 
Court being directed at U.S. companies and U.S. universities that are 
engaged in perfectly legal research efforts or that are legally and 
legitimately working with materials that have multiple purposes and 
that aren't intended to be used for weaponry at all.
  In fact, the American Library Association and the Association of 
Research Libraries have expressed serious concern about this amendment. 
Here is what they said: ``While we can appreciate the concerns for 
those wanting FISA to address the issues of international proliferation 
of WMDs, the language appears to also expose to secret wiretaps those 
U.S. academic researchers, universities and companies doing legal 
research into conventional and chemical/biological weapons.'' Mr. 
President, that is simply not acceptable.
  Let me be clear: This amendment expands the core provisions of FISA 
that authorize wiretaps and secret searches of the homes and offices of 
people inside the United States. This is not about extending the new 
authorities provided in the Protect America Act and reauthorized by the 
Intelligence Committee bill.
  It is one thing to permit secret court-ordered foreign intelligence 
wiretaps of people in this country who are intentionally engaged in the 
international proliferation of WMD. But because of the way this 
amendment is drafted, it would go far beyond just authorizing wiretaps 
for these types of dangerous criminals.
  The biggest problem with the amendment is that it does not require 
that the people being wiretapped be involved in any criminal activity. 
This means that companies and individuals engaged in perfectly legal 
and legitimate biological, chemical, nuclear or other research could be 
wiretapped under this provision.
  I don't understand this. Under FISA today, while foreign government 
officials can be surveilled to gain foreign intelligence even if they 
are not breaking the law, foreign terrorist suspects not associated 
with a government who are in the United States can only be wiretapped 
if they are involved in criminal activities. That requirement helps 
ensure that innocent people engaged in, say, legal protest activities 
aren't subject to FISA. And I know of no complaints about that 
requirement.
  This amendment, on the other hand, doesn't require any suspicion of 
criminal wrongdoing. It does not even require that the target know that 
they might be contributing to proliferation. Worse yet, it does not 
even define international proliferation. So how can we know what 
activity might trigger the use of this most intrusive of investigation 
techniques against an individual in the United States? What does 
international proliferation mean for purposes of this authority?
  I certainly don't know the answer to that, and there is nothing in 
this amendment to answer it. And without a requirement that the 
proliferation must be illegal under U.S. law, I am seriously concerned 
that this could cover entities doing perfectly legal, academic, 
chemical, biological or nuclear research, or even research on 
conventional weapons like grenades and bombs. It could also cover 
legitimate companies manufacturing dual-purpose goods, component parts 
or precursors that could be used for weapons if they fell into the 
wrong hands.
  We can easily fix this problem with the amendment. It would be quite 
simple to add language virtually identical to that already included in 
FISA with respect to international terrorism, simply stating that 
international proliferation of WMD only covers activities that violate 
U.S. criminal laws or would be criminal if committed within U.S. 
jurisdiction. I even proposed language to this effect to the Senator 
from Missouri, hoping that we could work out our differences on this 
amendment and not require the full Senate to vote on it. But my modest 
proposal was rejected, for reasons I fail to understand. What I do 
understand is that if the proponents of this amendment refuse to 
include language limiting it to people committing crimes, that makes me 
even more concerned about what is intended and how this is going to be 
used. There are other changes, as well, that could bring the scope of 
the amendment into line with the justification for it, but none of my 
suggestions were accepted.
  Some may argue that we should not worry about this expansion of FISA 
because it only applies to foreigners visiting the United States, 
sometimes referred to as ``non-U.S. persons.'' But on the face of the 
amendment, that is not at all clear. This is because the amendment 
expands the definition of ``foreign power'' under FISA to cover any 
entity involved in international proliferation of WMD, regardless of 
whether it is incorporated in the United States or how many Americans 
work there. And any foreign power can be wiretapped or searched under 
the plain provisions of FISA, regardless of whether it is breaking the 
law.
  Even if the amendment were limited to non-U.S. persons, U.S. 
companies, and universities hire any number of people who are here on 
work or study visas and who are not considered ``U.S. persons.'' When 
those people are here in the United States, they are fully protected by 
the fourth amendment. So why should those individuals be subject to 
secret court-ordered wiretaps and searches of their offices when they 
have done nothing illegal? And won't this affect the ability of U.S. 
companies and universities to recruit the best foreign talent to come 
and work for them?
  I realize this all may seem very technical, but let me repeat the 
upshot: What all of this means is that, under this amendment, U.S. 
companies and U.S. universities conducting perfectly legal and 
legitimate activities--meaning they are doing nothing wrong--could be 
considered ``foreign powers'' under FISA and subject to court-ordered 
secret wiretaps in this country without any suspicion of wrongdoing. 
This has left organizations like the American Library Association and 
the Association of Research Libraries with very serious concerns about 
the amendment.
  Mr. President, I would have been willing to adopt this amendment if 
it could have been modified to address some of these concerns. But it 
would be my preference not to address this complex issue in this 
legislation. The responsible thing to do would be to engage in further 
study so we know we have the right solution to this problem. But if we 
are going to take on this issue here, today, let's at least do it in a 
responsible, targeted way.
  We have heard a lot about unintended consequences throughout the 
debate on this bill. I believe this amendment will have serious 
unintended consequences, and I think it would benefit all of us to 
study the issue further. But if that is not possible, we should at a 
minimum try to limit the effect of the amendment to the dangerous 
criminals who are the reason for this expansion of FISA. The Bond 
amendment does not do that.
  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3938.
  The amendment (No. 3938) was agreed to.
  Mr. BOND. I move to reconsider the vote.
  Mr. ROCKEFELLER. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                           Amendment No. 3927

  The PRESIDING OFFICER. The question is on agreeing to amendment No. 
3927 offered by the Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, this amendment substitutes the Government 
for the party defendant in place of the telephone companies. It is 
designed to maintain some check and balance on the executive because 
Congress has been totally ineffective to do so.
  It accomplishes both purposes. It keeps the program going to gain 
intelligence information necessary for national defense, but it 
maintains the courts being open as a check and balance.
  I yield to Senator Whitehouse.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, if we vote for retroactive immunity, 
we violate the rule of law taking away legitimate claims in legitimate 
litigation in a manner that is unprecedented and unconstitutional. If 
on the other hand we do nothing, we leave American companies gagged by 
the state secrets privilege in ongoing litigation.
  This amendment is a sensible, fair, bipartisan alternative that takes 
away

[[Page S888]]

no rights, that follows the Federal Rules of Civil Procedure, that 
honors the separation of powers principles and leaves no litigant 
gagged by the Government.
  Please support the amendment.
  The PRESIDING OFFICER. All time has expired. Who yields time in 
opposition? The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, the distinguished ranking member of 
the Judiciary Committee, Senator Specter, has offered an amendment 
proposing to substitute the government for the providers in the ongoing 
civil lawsuits.
  I appreciate and agree with the sentiment of Senator Specter and 
Senator Whitehouse that the government--not the providers who operated 
in good faith with them--should be held responsible for the legal 
fallout from the President's warrantless surveillance program. But this 
amendment lays out a remarkably complicated litigation procedure that 
is unlikely to achieve any meaningful review of the President's 
program.
  Under this amendment, if the Attorney General submits a certification 
to the district court that an individual carrier provided assistance in 
connection with the President's program or did not provide assistance, 
the district court certifies a question to the FISA Court.
  The FISA Court is then required to determine whether the carrier 
cooperated with existing law, or acted in good faith and pursuant to an 
objectively reasonable belief that the written request was legal. If 
the FISA Court makes that finding, the government is substituted for 
the carrier in the district court.
  At that point, litigation continues against the government under 
several different possible statutes, and the provider is dismissed from 
the suit. The plaintiffs may, however, seek discovery--that is, 
documents, witness testimony, and other information--from the providers 
who were originally named in the lawsuit.
  This complicated procedure raises a number of concerns both about the 
determination by the FISA Court and the resolution of the lawsuits 
after the government is substituted.
  As an initial matter, it is unclear why the cases would need to be 
transferred to the FISA Court for a determination of good faith. The 
Intelligence Committee has already made an assessment of the good faith 
of the cooperating providers. The possibility of a court--rather than 
the Congress--making the good faith determination is particularly 
relevant to an amendment offered by Senator Feinstein, and I am sure we 
will discuss it further.
  But even if Congress seeks to have a court, rather than Congress, 
make a determination of good faith, having that.determination made in 
the FISA Court unnecessarily complicates the process. The FISA Court is 
not a standard factfinding trial court; it does not hear from 
witnesses, take evidence, or assess the ``good faith'' of private 
parties. The FISA Court is simply not set up to make factual 
determinations that impact civil lawsuits.
  Nor does transferring the cases to the FISA Court help the plaintiffs 
in these cases. They are not entitled to hear the classified 
information concerning the good faith of the providers, and they will 
not be involved in the debate.
  In addition, although a finding of good faith would normally result 
in dismissal of the lawsuits, under this proposal, the providers would 
still potentially have the burden of producing documents and witnesses. 
Thus, because providers who acted in good faith will continue to have a 
role in the litigation, even if they are no longer the named 
defendants, this proposal does not relieve the cost and reputational 
burdens of the litigation. It therefore is unlikely to encourage the 
providers to cooperate with the government in the future.
  It is also unclear what substituting the government in these cases 
seeks to accomplish. The proposal would involve changing the nature of 
the claims filed against telecommunications companies to causes of 
action against the government under a number of statutes, including the 
Federal Tort Claims Act, the Administrative Procedure Act, or FISA. 
Suits under these statutes, however, can be, and in some cases, have 
already been brought against the government.
  If it is already possible to sue the government under thee statutes 
for possible violations, and indeed, if the government has already been 
sued under these statutes, why do we need to create a new procedure to 
convert claims against private companies into these claims against the 
government?
  Finally, we should look at what is actually happening in the current 
litigation. Many of my colleagues have suggested that allowing the 
litigation to continue--with either the government or the providers as 
the defendant--will allow the court to resolve the issue of whether the 
providers acted in accordance with the law. But this is not presently 
the debate in the litigation.
  Right now, the parties in the approximately 40 civil lawsuits are 
arguing about access to classified information about the President's 
program. The government has refused to publicly reveal the classified 
documents and information that would allow litigation to proceed. 
Because classified information is needed to address even threshold 
litigation issues, having the government or a particular provider as 
defendant in the suit is unlikely to change this aspect of the 
litigation.
  In other words, whether or not we substitute the government for the 
provider, no court is likely to resolve the question of whether the 
President, or any private company, violated the law in the near future. 
Given that the administration is unlikely to declassify information 
about the program while the lawsuits are ongoing, it is also unlikely 
that litigation will ever tell the story of what happened with the 
President's program. So what benefit is there to substituting the 
government in the providers' stead?
  Providers who acted in good faith should be removed from ongoing 
litigation, without having the burden of responding to discovery and 
litigation requests and without the reputational harm of having suits 
in their name go forward against the government. Ongoing reminders of 
the potential pitfalls of cooperating in good faith with the government 
will not encourage these companies--whose assistance the intelligence 
community and law enforcement agencies desperately need--to cooperate 
with the government in the future.
  If plaintiffs in any ongoing suit want to bring claims against 
government officials, those suits can be brought directly, without the 
complicated substitution procedure described in this amendment.
  Although no member of the Intelligence Committee offered an amendment 
on this issue, the committee considered whether it would be more 
appropriate to substitute the government for particular providers in 
ongoing lawsuits as part of the work done in preparing this bill. For 
all of the reasons I have discussed, the committee ultimately decided 
that substitution was not the right approach to address the ongoing 
lawsuits.
  I, therefore, cannot support this amendment, and I urge my colleagues 
to oppose it.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, for all the reasons we voted down striking 
retroactive immunity, this amendment must be defeated as well because 
it would continue to disclose all the methods of collection in 
electronic surveillance and it would put at risk the private parties.
  The PRESIDING OFFICER. All time has expired. The question is on 
agreeing to amendment No. 3927.
  Mr. BOND. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 30, nays 68, as follows:

[[Page S889]]

                      [Rollcall Vote No. 17 Leg.]

                                YEAS--30

     Akaka
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Casey
     Durbin
     Feingold
     Harkin
     Kennedy
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     McCaskill
     Menendez
     Nelson (FL)
     Obama
     Reed
     Reid
     Sanders
     Schumer
     Specter
     Stabenow
     Webb
     Whitehouse
     Wyden

                                NAYS--68

     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Biden
     Bond
     Brownback
     Bunning
     Burr
     Carper
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dodd
     Dole
     Domenici
     Dorgan
     Ensign
     Enzi
     Feinstein
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Klobuchar
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McConnell
     Mikulski
     Murkowski
     Murray
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Salazar
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Tester
     Thune
     Vitter
     Voinovich
     Warner
     Wicker

                             NOT VOTING--2

     Clinton
     Graham
       
  The amendment (No. 3927) was rejected.
  Mr. BOND. Mr. President, I move to reconsider the vote.
  Mr. LEVIN. I move to lay that motion on the table.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3919

  The PRESIDING OFFICER. Under the previous order, there will now be 2 
minutes of debate equally divided on amendment No. 3919 offered by the 
Senator from California, Mrs. Feinstein.
  The Senator from California.
  Mrs. FEINSTEIN. Mr. President, FISA has a law within it as to how you 
do electronic surveillance, and that law has specific provisions of 
what companies seeking to assist the Government must do. Essentially, 
what this amendment does is ask the FISA Court to review that 
compliance by the telecom companies to see that they complied with the 
elements of that part of FISA.
  I think some Members have been able to look at the certification 
letter sent to telecoms, but most Members have not, and I think it is 
very important that the court have an opportunity to review these 
certifications and see if they are adequate under the provisions of the 
FISA law, and this is exactly what this amendment does.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, the FISA Court was not set up to make 
judgments about the operation of foreign intelligence. As a matter of 
fact, they said specifically, in a case released in December, that is a 
matter for the executive branch.
  Now, there are some people who say there ought to be a court 
challenge to the President's terrorist surveillance program. Let me 
remind my colleagues that there are seven cases proceeding against the 
Government and Government employees which will not be impacted by this 
bill. Every day that litigation continues, whether it be in a FISA 
court or in open court, there is a danger of leaking of information.
  There could be disclosure of our methods, and there could be risks to 
employees of the companies in areas of the world. Certainly their 
bottom line could be impacted. As Senator Durbin pointed out last week, 
leaks of classified information caused severe harm to a company in his 
State.
   I urge the defeat of this amendment.
  Mr. ROCKEFELLER. Mr. President, the distinguished Senator from 
California has offered an amendment to modify the procedures in the 
Intelligence Committee bill on dismissal of civil actions against 
telecommunications companies that assisted an element of the 
intelligence community with regard to the President's warrantless 
surveillance program.
  Senator Feinstein's amendment preserves the basic idea of the 
Intelligence Committee bill; namely, that narrowly crafted immunity for 
private companies is an appropriate way of resolving dozens of lawsuits 
arising from the President's program. But the amendment makes one 
significant change in the procedure proposed by the Intelligence 
Committee. Rather than Congress deciding that each and every company 
acted in good faith, the question of whether individual carriers relied 
in good faith on representations made by the Government would be made 
by the FISA Court.
  I understand and appreciate the Senator from California's desire to 
have a court make this good faith determination. But in this particular 
case, I think that Congress is better able to assess the context in 
which companies cooperated with the Government in order to determine 
whether they acted in good faith.
  As members of the Intelligence Committee, Senator Feinstein and I 
have had access to the letters sent to the telecommunications 
companies. We have heard from the companies who were told after 9/11 
that their assistance was ``required'' and that the request for 
assistance was based on a Presidential order, the legality of which was 
certified by the Attorney General.
  In addition, the committee understands the threats faced by the 
United States in the years after September 11, and the effect that 
threat environment had on all American citizens.
  The committee also understands exactly how critical the private 
sector is to all of our intelligence collection efforts, and what 
effect the pending lawsuits have had on the private sector's continued 
cooperation with the Government.
  The policy question that is at the heart of the Feinstein amendment--
whether companies that cooperated with the intelligence community after 
September 11 should be protected from liability for their actions--is 
not a question than can truly be addressed in an individual court case. 
Unlike the fact-intensive, good faith determinations that would be made 
in a court case, this question is not about how a company reacted to 
each individual piece of correspondence it received, or its discussions 
with the Government. The question should not be answered on a piecemeal 
basis, based on whether each of the individual actions taken by any 
particular company was in good faith.
  Knowing how to address this policy issue instead depends on 
understanding the circumstances that surrounded the requests, the full 
dimension of the threat, and the historical relationship between the 
Government and the companies. Because Congress has the ability to look 
at the totality of the circumstances in a way that a court evaluating 
an individual company's good faith cannot, I feel that it is our 
responsibility to assess the reasonableness of the response of all of 
the companies.
  Given the circumstances involved in this sensitive matter, I believe 
Congress, not the courts, should make the determination as to whether 
companies acted in good faith and should be protected from liability.
  Apart from disagreeing as to who should make the decision about good 
faith, there are also a number of significant procedural concerns with 
the Feinstein amendment. I fear that these problems would make the 
amendment unworkable.
  Under Senator Feinstein's amendment, the first step in the immunity 
process would be the same as under the Intelligence Committee's bill. 
The Attorney General would make a certification to a court in which a 
case against a telecommunication company is being heard. The 
certification would say one of two things.
  First, if the company assisted the government, the certification 
would have to indicate that any assistance provided had been for an 
intelligence activity involving communications that had been authorized 
by the President between September 11, 2001, and January 2007.
  The certification would also have to state that the assistance had 
been described to the company in a written request or directive from 
the Attorney General or the head or deputy head of an intelligence 
community element which indicated that the activity was authorized by 
the President had determined to be lawful.
  Alternatively, the certification could indicate that the 
telecommunications company did not provide the alleged assistance.

[[Page S890]]

  The court would then have the opportunity to review the Attorney 
General's certification for abuse of discretion. To protect national 
security information, only the judge would be entitled to review the 
certification; the plaintiffs would not have access to it.
  Under the committee's bill, such a certification would be the end of 
the process, except for the issuance of the court's order dismissing 
the action if the Attorney General's certification met these 
requirements.
  Senator Feinstein's amendment, in contrast, uses that certification 
to trigger a transfer of the case to the Foreign Intelligence 
Surveillance Court. This amendment also specifically provides that the 
FISA Court will permit any plaintiff in an applicable covered civil 
action to appear before the Court.
  This transfer of the case to the FISA Court seriously complicates the 
existing lawsuits, and poses a number of significant procedural 
problems that are not resolved in the amendment.
  As an initial matter, the type of analysis in the amendment is 
outside the longstanding scope and jurisdiction of the FISA Court.
  Under the Feinstein amendment, the FISA Court would be required to 
determine, acting as a body of all judges, whether immunity would be 
granted under current law, whether the company had an objectively 
reasonable belief under the circumstances that compliance with the 
written request or directive was lawful, or whether the company did not 
provide the alleged assistance.
  None of these determinations involve the Foreign Intelligence 
Surveillance Act, the statute on which the FISA Court has expertise. 
Indeed, the point of the litigation is that the President's program was 
conducted outside of FISA.
  In addition, the FISA Court is not generally set up for adversarial 
civil litigation; it does not usually hear from witnesses or take 
evidence. Although Congress has granted the Court the ability to hear 
challenges to certain FISA directives, it has never before been asked 
to make factual determinations that affect the outcome of civil 
lawsuits.
  Sending the case to the FISA court therefore raises all sorts of 
questions. For example, would the FISA Court, acting en banc, hear 
testimony from witnesses? If so, who would examine the witnesses? What 
rules of evidence would apply? What role would the plaintiffs play in 
the proceeding?
  The FISA Court would have to come up with an entirely new set of 
procedures just to handle this litigation. This new proceeding--
particularly as the Court would have to act en banc--would 
significantly strain the resources of the Court that oversees our 
electronic surveillance of terrorists and foreign powers and protects 
the privacy of U.S. persons.
  Nor does transferring the cases to the FISA Court necessarily help 
the plaintiffs in these cases. As they do not currently have security 
clearances, the Government is unlikely to provide the plaintiffs with 
access to classified information about the proceeding. Thus, most 
likely, they will not be involved in the debate.
  I commend the Senator from California for her efforts to come up with 
a mechanism by which the court can consider and determine the good 
faith of the companies. But, because of all of the procedural problems 
with this amendment I have described, as well as a more fundamental 
belief that Congress has a unique ability in this circumstance to 
assess the good faith of the companies, I cannot support this 
amendment.
  The PRESIDING OFFICER (Mr. Whitehouse.) All time has expired. The 
question is on agreeing to amendment No. 3919.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``nay.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 41, nays 57, as follows:

                      [Rollcall Vote No. 18 Leg.]

                                YEAS--41

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

                                NAYS--57

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

                             NOT VOTING--2

     Clinton
     Graham
  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for adoption of the amendment, the amendment is withdrawn.
  Under the previous order, the substitute amendment, as amended, is 
agreed to.
  The amendment (No. 3911), in the nature of a substitute, as amended, 
was agreed to.
  The PRESIDING OFFICER. The question is on the engrossment and third 
reading of the bill.
  The bill was ordered to be engrossed for a third reading and was read 
the third time.


                             Cloture Motion

  The PRESIDING OFFICER. Under the previous order, the clerk will 
report the motion to invoke cloture.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on S. 2248, the FISA 
     bill.
         Harry Reid, Charles E. Schumer, Sherrod Brown, Daniel K. 
           Akaka, Jeff Bingaman, Thomas R. Carper, Ken Salazar, 
           Sheldon Whitehouse, John D. Rockefeller IV, Richard 
           Durbin, Bill Nelson, Debbie Stabenow, Robert P. Casey, 
           Jr., E. Benjamin Nelson, Evan Bayh, Daniel K. Inouye.

  Mr. FEINGOLD. Mr. President, as I have said repeatedly on the Senate 
floor, I strongly oppose granting unjustified retroactive immunity to 
companies that allegedly participated in the President's illegal 
wiretapping program, which went on for more than 5 years. It is 
unnecessary because under current law, companies already have immunity 
from civil liability if they comply with a court order or with a 
certification from the Attorney General that a court order is not 
required and all statutory requirements have been met. Congress should 
leave it to the courts to evaluate whether the companies alleged to 
have cooperated with the program would deserve immunity under this 
existing law rather than changing the rules of the game after the fact. 
That is why I have been a staunch supporter of the Dodd amendment to 
strike the immunity provision from this bill entirely.
  Given my strong opposition to any retroactive immunity for 
telecommunications companies, I want to explain why I voted in favor of 
two amendments that proposed alternatives to but did not entirely 
eliminate retroactive immunity. Amendment No. 3927, offered by Senators 
Specter and Whitehouse, would have substituted the Government for the 
companies in the pending litigation, and amendment No. 3919, proposed 
by Senator Feinstein, would have directed the FISA Court to evaluate 
whether companies complied with the existing immunity provision or 
otherwise acted in good faith.
  I do not believe that either of these proposals is necessary. In 
fact, when Senator Specter offered his substitution proposal as a 
stand-alone bill in the Senate Judiciary Committee, I opposed it. I 
firmly believe that Congress should allow the courts to evaluate 
whether the companies deserve immunity under the law that applied to 
them at the time, and we should not be

[[Page S891]]

meddling in this area at all. However, unlike the Specter bill, these 
two amendments were offered to replace the broad grant of retroactive 
immunity in the FISA bill, and they were offered after the Senate had 
voted not to adopt the Dodd-Feingold amendment. Each of them was an 
improvement, however slight, to the underlying immunity provision, in 
that they would have left open the possibility that the lawsuits could 
continue, thus permitting the courts to rule on the legality of the 
warrantless wiretapping program. Therefore, I voted in favor of both of 
these amendments, even though I would have much preferred to see 
retroactive immunity stricken entirely.
  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on S. 
2248, an original bill to amend the Foreign Intelligence Surveillance 
Act of 1978, to modernize and streamline the provisions of that act, 
and for other purposes, shall be brought to a close.
  The yeas and nays are required under the rule.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The yeas and nays resulted--yeas 69, nays 29, as follows:

                      [Rollcall Vote No. 19 Leg.]

                                YEAS--69

     Alexander
     Allard
     Barrasso
     Baucus
     Bayh
     Bennett
     Bond
     Brownback
     Bunning
     Burr
     Carper
     Casey
     Chambliss
     Coburn
     Cochran
     Coleman
     Collins
     Conrad
     Corker
     Cornyn
     Craig
     Crapo
     DeMint
     Dole
     Domenici
     Ensign
     Enzi
     Feinstein
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kohl
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McCaskill
     McConnell
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Salazar
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker

                                NAYS--29

     Akaka
     Biden
     Bingaman
     Boxer
     Brown
     Byrd
     Cantwell
     Cardin
     Dodd
     Dorgan
     Durbin
     Feingold
     Harkin
     Kennedy
     Kerry
     Klobuchar
     Lautenberg
     Leahy
     Levin
     Menendez
     Murray
     Obama
     Reed
     Reid
     Sanders
     Schumer
     Stabenow
     Tester
     Wyden

                             NOT VOTING--2

     Clinton
     Graham
  The PRESIDING OFFICER. On this vote, the yeas are 69, the nays are 
29. Three-fifths of the Senators duly chosen and sworn having voted in 
the affirmative, the motion is agreed to.

                          ____________________