[Congressional Record Volume 154, Number 111 (Tuesday, July 8, 2008)]
[Senate]
[Pages S6381-S6386]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2008

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of H.R. 6304, which the clerk will 
report.
  The legislative clerk read as follows:

       A bill (H.R. 6304) to amend the Foreign Intelligence 
     Surveillance Act of 1978 to establish a procedure for 
     authorizing certain acquisitions of foreign intelligence, and 
     for other purposes.

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
motion to proceed is agreed to and the motion to reconsider is made and 
laid on the table.
  The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the time I 
consume be allocated to the Dodd amendment.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. FEINGOLD. Mr. President, I strongly support Senator Dodd's 
amendment to strike the immunity provision from this bill, and I 
especially thank the Senator from Connecticut for his leadership on 
this issue. Both earlier this year, when the Senate first considered 
FISA legislation, and again this time around, he has demonstrated 
tremendous resolve on this issue, and I have been proud to work with 
him.
  Some have tried to suggest that the bill before us will leave it up 
to the courts to decide whether to give retroactive immunity to 
companies that allegedly participated in the President's illegal 
wiretapping program. But make no mistake, this bill will result in 
immunity being granted--it will--because it sets up a rigged process 
with only one possible outcome. Under the terms of this bill, a Federal 
district court would evaluate whether there is substantial evidence 
that a company received . . .

     a written request or directive from the Attorney General or 
     the head of an element of the intelligence community 
     indicating that the activity was authorized by the President 
     and determined to be lawful.

  We already know, from the report of the Senate Intelligence Committee 
that was issued last fall, that the companies received exactly such a 
request or directive. This is already public information. So under the 
terms of this proposal, the court's decision would actually be 
predetermined.
  As a practical matter, that means that regardless of how much 
information the court is permitted to review, what standard of review 
is employed, how open the proceedings are, and what role the plaintiffs 
are permitted to play, it won't matter. The court will essentially be 
required to grant immunity under this bill.
  Now, our proponents will argue that the plaintiffs in the lawsuits 
against the companies can participate in briefing to the court, and 
this is true. But they are not allowed any access to any classified 
information. Talk about fighting with both hands tied behind your back. 
The administration has restricted information about this illegal 
wiretapping program so much that roughly 70 Members of this Chamber 
don't even have access to the basic facts about what happened. Do you 
believe that? So let's not pretend that the plaintiffs will be able to 
participate in any meaningful way in these proceedings in which 
Congress has made sure their claims will be dismissed.
  This result is extremely disappointing. It is entirely unnecessary 
and unjustified, and it will profoundly undermine the rule of law in 
this country. I cannot comprehend why Congress would take this action 
in the waning months of an administration that has consistently shown 
contempt for the rule of law--perhaps most notably in the illegal 
warrantless wiretapping program it set up in secret.
  We hear people argue that the telecom companies should not be 
penalized for allegedly taking part in this illegal program. What you 
don't hear, though, is that 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. But if requests are 
not properly documented, the Foreign Intelligence Surveillance Act 
instructs the telephone company to refuse the Government's request, and 
it subjects them to liability if they instead decide to cooperate.
  When Congress passed FISA three decades ago, in the wake of the 
extensive, well-documented wiretapping abuses of the 1960s and 1970s, 
it decided that in the future, telephone companies should not simply 
assume that any Government request for assistance to conduct electronic 
surveillance was appropriate. It was clear some checks needed to be in 
place to prevent future abuses of this incredibly intrusive power; that 
is, the power to listen in on people's personal conversations.
  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 legitimate. So Congress devised 
a good system. It devised a system that would take the guesswork out of 
it completely. Under that system, which is still in place today, the 
company's legal obligations and liability depend 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 it is, in fact, immune from liability. If the proper 
documentation, however, has not been submitted, the company must refuse 
the Government's request or be subject to possible liability in the 
courts.
  This framework, which has been in place for 30 years, protects 
companies that comply with legitimate Government requests while also 
protecting the privacy of Americans' communications from illegitimate 
snooping. Granting companies that allegedly cooperated with an illegal 
program this new form of retroactive immunity in this bill undermines 
the law that has been on the books for decades--a law that was designed 
to prevent exactly the type of abuse that allegedly occurred here.
  Even worse, granting retroactive immunity under these circumstances 
will undermine any new laws we pass regarding Government surveillance. 
If we want companies to obey the law in the future, doesn't it send a 
terrible message, doesn't it set a terrible precedent, to give them a 
``get out of jail free'' card for allegedly ignoring the law in the 
past?

  Last week, a key court decision on FISA undercut one of the most 
popular arguments in support of immunity; that is, that we need to let 
the companies off the hook because the State secrets privilege prevents 
them from defending themselves in court. A Federal Court has now held 
that the State secrets privilege does not apply to claims brought under 
FISA. Rather, more specific evidentiary rules in FISA govern in 
situations such as that. Shouldn't we at least let these cases proceed 
to see how they play out, rather than trying to solve a problem that 
may not even exist?
  That is not all. This immunity provision doesn't just allow telephone 
companies off the hook; it will also make it that much harder to get at 
the core issue I have been raising since December 2005, which is that 
the President broke the law and should be held accountable. When these 
lawsuits are dismissed, we will be that much further away from an 
independent judicial review of this illegal program.
  On top of all this, we are considering granting immunity when roughly 
70 Members of the Senate still have not been briefed on the President's 
wiretapping program. The vast majority of this body still does not even 
know what we are being asked to grant immunity for. Frankly, I have a 
hard

[[Page S6382]]

time understanding how any Senator can vote against this amendment 
without this information.
  I urge my colleagues to support the amendment to strike the immunity 
provision from the bill.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, would the distinguished Senator from 
Wisconsin yield for a question?
  Mr. FEINGOLD. I will.
  Mr. SPECTER. As the Senator from Wisconsin doubtless knows, there was 
a very extensive analysis of these issues by Chief Judge Walker of the 
San Francisco District Court handed down last Wednesday, and I think it 
was no coincidence that the decision preceded just a few days--after 
everybody knew, including Chief Judge Walker--of the Senate taking up 
this question.
  In that opinion, Chief Judge Walker finds the Terrorist Surveillance 
Program unconstitutional. He says, flatly, that the language of the 
Foreign Intelligence Surveillance Act of 1978 means what it says on the 
exclusive remedy for warrants, and that the President exceeded his 
article II powers as Commander in Chief.
  As we all know, the Detroit District Court came to the same 
conclusion, was reversed by the Sixth Circuit in a 2-to-1 opinion on 
standing, and then the Supreme Court of the United States handily 
ducked the question by the noncert. That is the principal 
constitutional confrontation of our era, on article I powers by 
Congress and article II powers of the President as Commander in Chief. 
They denied cert. And on the standing issue, as disclosed by the Senate 
opinion in the Sixth Circuit, the Supreme Court could easily have taken 
the case to resolve this big issue.
  But now Judge Walker has decided, and it is very significant, because 
Judge Walker has these more than 40 cases pending on the effort to 
grant retroactive immunity. The case he decided it on is the Oregon 
case where State secrets are involved, with the inadvertent disclosure 
by the Federal agents.
  It is hard for me to see how you have a State secret which is no 
longer secret. And you have a document, just electronic surveillance, 
which was disclosed, so it is no longer a secret. That remains to be 
decided under the opinion of Chief Judge Walker, but he says there is a 
``rich lode'' of material on the standing issue.
  These questions involve extraordinarily complex matters. The Senator 
from Wisconsin knows that. He has been deeply involved in it. And the 
distinguished chairman knows that, because he has been deeply involved 
in these matters. My question to the Senator from Wisconsin is twofold:
  One, what do you see as the immediate ramifications of Chief Judge 
Walker's opinion handed down a few days before we are to decide it?
  And a related question: What do you think of the likelihood that 
Members of the Senate have had or could have an adequate opportunity to 
review that 59-page opinion with all of its detailed ramifications?
  Mr. FEINGOLD. Mr. President, I thank the Senator for asking the 
question. Yes, I referred to this decision in my brief comments about 
this amendment. I think it is obviously a significant decision. As I 
indicated, it deals with the State secrets issue. It says that FISA is 
in fact the exclusive means and that the evidentiary rules regarding 
FISA should control, rather than State secrets. That is an important 
finding. But even more important is what the Senator from Pennsylvania 
is alluding to, which is the broader issue that the judge didn't 
decide, but clearly he indicated where he would head on the question of 
whether the President's TSP program was illegal--and I have long 
believed that it was illegal. In fact, the Senator and I were the first 
Members to comment on the revelation of this program in December of 
2005 on the floor of the Senate.
  I have examined it closely myself, as a member of the Intelligence 
Committee and the Judiciary Committee, and I feel even more strongly 
today than I did then that this program was illegal and there needs to 
be accountability for that illegality. That accountability can come in 
part from litigation of the kind that involved this district court 
decision, and it can come from other cases that are pending. But my 
concern, of course, is that if we jam this bill through, it may have an 
impact on the ability to pursue that underlying legal issue because of 
the effective granting of immunity to telephone companies. So this 
decision has significance, but I can't tell you that I know all the 
ramifications.
  Obviously, Members of the Senate, to answer your question, should 
review the opinion and have a chance to find out more about the 
opinion. But there are 70 Members of the Senate who haven't even had 
the benefit of what you and I have had, which is the briefing on the 
actual TSP and what happened from 2001 to 2007 with regard to 
wiretapping.
  I thank the Senator for making this important point about Senators 
being ready to grant this immunity without reviewing the litigation.
  Mr. SPECTER. Mr. President, if the Senator from Wisconsin will yield 
for just one more question? And that is, in the context, is the 
Senator--I asked him to yield for one more question, and I will use a 
microphone so perhaps he can hear me, perhaps some people on C-SPAN2 
will hear me, perhaps some Senators will hear me, because we need to be 
heard on this subject because of its complexity.
  The question relates to what the Senator from Wisconsin has said. He 
puts it at some 70 Members of the Senate have not been briefed on the 
program. I have heard from House leadership that most of the Members of 
the House have not been briefed on the program. There has been no 
official determination. The language is picked up from the allegations 
of the complaint as to what is alleged.
  The question is, How can the Congress intelligently decide--maybe 
that is too high a standard. But how can the Congress, especially the 
world's greatest deliberative body, the U.S. Senate--how can the 
decision be made on electronic surveillance, granting retroactive 
immunity, when we don't know what we are granting retroactive immunity 
to?
  The second part is, How can we fly in the face of the decision by the 
judge who is ruling on these cases--we are sending them all to him--
when he, speaking for the court: The law of the case is that the 
terrorist surveillance program is unconstitutional, that it exceeds the 
authority.
  The Foreign Intelligence Surveillance Act also covers the pen 
register and related items, so--not specifying what is involved here--
whatever is involved, sending it to the judge who has already said it 
is unconstitutional. How can we deal in an intelligent manner given 
those two critical factors?
  Mr. FEINGOLD. Mr. President, I again thank the Senator from 
Pennsylvania for his comments and question. Really, the only 
appropriate answer is to say ``amen'' to everything he just said. Think 
about this: To vote on anything when 70 Members of the Senate haven't 
been briefed on it seems unbelievable, and then you add to it that it 
has to do with the most critical issue of our time: How can we best 
protect our country from those who attacked us while also observing the 
rule of law? That would be bad enough. But then you add to it, as the 
Senator from Pennsylvania has indicated, that this goes to the very 
core issue of the structure of the Constitution. Is it really true, as 
the administration puts forward in defense of the TSP program, that 
article II of the Constitution somehow allows the executive and 
Commander in Chief power to override an absolutely clear, exclusive 
authority adopted by Congress pursuant to Justice Jackson's third tier 
of the test set out in his Youngstown opinion?
  All of these levels are implicated by this. The Senator could not be 
more correct. This is an amazingly inappropriate use of legislative 
interference, pushed by this administration, and Senators should take a 
very hard look at whether they want to be associated with such an 
attack on the rule of law in this country.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. Who yields time? The Senator from 
West Virginia.
  Mr. ROCKEFELLER. Mr. President, I am opposing the amendment. So I 
would be taking time from Senator Bond. I ask for approximately 20 
minutes.
  The ACTING PRESIDENT pro tempore. Duly noted.

[[Page S6383]]

  Mr. ROCKEFELLER. Mr. President, my colleagues have submitted two 
amendments seeking to accomplish somewhat the same goal before, and in 
a sense now down to one. Senators Dodd and Feingold have an amendment 
to strike title II of the FISA bill. It is very plain and simple, and 
they are very clear about that. The amendments have the same effect--
eliminating the title that provides a mechanism for a U.S. district 
court to decide whether pending suits against telecommunications 
companies should be dismissed.
  Two other amendments with respect to title II, to be offered by 
Senator Specter and Senator Bingaman, will follow. While I address 
those amendments in separate statements, I would like to say now with 
respect to the amendments that I oppose each of them and I urge that 
the Senate pass H.R. 6304 without amendment so that the delicate 
compromise which serves as best it can to protect both national 
security and privacy and civil liberties can, in fact, become law.
  Six and a half years ago, instead of consulting with Congress about 
changes that might be needed to FISA, the President made the very 
misguided decision to create a secret surveillance program that 
circumvented the judicial review process and authorization required by 
FISA and was kept from the full congressional oversight committees. 
That is calling it running around the end altogether. We are right to 
be angry about the President's actions, but our responsibility today is 
to look forward. That is what this bill is about, to make sure we have 
adequately dealt with the numerous issues that have arisen from the 
President's very poor decision, bad decision.
  The bill in front of us today accomplishes three important goals with 
respect to the President's warrantless program.
  First, the bill establishes a sure and realistic method of learning 
the truth about the President's program--I repeat, learning the truth 
about the President's program. It requires the relevant inspectors 
general--that is a term of art. What I mean by that is the inspectors 
general of the CIA, DOD, NSA, et cetera, people who oversee and know 
what is in this program altogether--to submit an unclassified report 
about the program to the Congress. This report will ensure that both 
Congress and, by the way, therefore, obviously, the public will have as 
complete a picture of the President's warrantless surveillance program 
as possible or as messy as it may be for them to ingest.
  Second, the bill tightens the exclusivity of the FISA law, making it 
improbable for any future President to argue that acting outside of 
FISA is lawful. That is huge. That means the President can never again, 
ever use what he has used--his all-purpose powers--and say he can just 
walk right around the end of FISA. He has to have a statutory 
authority, it has to come from us, and he cannot bypass FISA as he did 
altogether.
  Third, the bill addresses the problems the President's decision has 
caused for the telecommunications companies that were told their 
cooperation was both legal and necessary to prevent another terrorist 
attack. They were not told a lot, but they were certainly told that. 
The bill does not provide those companies with a free pass. It requires 
meaningful district court review of whether statutory standards for 
protection from liability have been met for the companies having relied 
on the Government's written representations of legality.

  You remember there was a period when we were using the FISA Court to 
make these kinds of judgments, and we bent to the better wisdom of the 
House with respect to the district court, which is a more public court. 
So they have that responsibility.
  All of these pieces fit together, and not just because they are part 
of a larger compromise on this bill. Private companies that cooperated 
with the Government in good faith, as the facts before the 
congressional intelligence committees demonstrate they did, should not 
be held accountable for the President's bad policy decisions. But if 
the court ultimately dismisses the litigation against those companies, 
it is important that there be a mechanism for public disclosure about 
the President's program, and it is precisely, therefore, in this bill 
that the inspectors general report, which has to be provided to us 
within a year, provide that public accountability.
  Likewise, we can only put past actions behind us if we can be 
reassured that this will not happen again, and therefore the strength 
in the exclusivity language in the FISA bill addresses that concern. 
That it does.
  Together, the three components of the bill provide accountability for 
the mistakes of the past as well as a way to move forward.
  Although title II in the bill before us today differs in important 
ways from the title II we passed out of the Senate this past February, 
the two bills address the same underlying problems faced by the 
telecommunications companies.
  Because the majority of the information in the cases is classified, 
there has been no substantial progress in the cases against the 
telecommunications companies--several of them have been going on for 
years. Classified information, they can't have it; state secrets, can't 
have it. The Government has not even allowed the telecommunications 
companies in the many pending lawsuits to disclose publicly whether 
they assisted the Government. These companies, therefore, have not been 
permitted to invoke the defense to which they are entitled. But sued 
they are. The companies cannot reveal, for example, whether they did 
not participate in the program. That would be a false accusation 
against some company, but they cannot say that they didn't participate 
or that they only participated pursuant to a court order--they can't 
talk about that--or participated in reliance on written Government 
representation of legality--cannot talk about that. The bill before us 
today allows these defenses to be presented to the district court, the 
public court--not the FISA Court, which is kind of a secret court, but 
to the district court, which is not a secret court. It is a public 
court.
  The Attorney General is authorized to certify to the court that 
particular statutory requirements have been met without requiring 
public acknowledgment of whether particular providers assisted the 
Government.
  The bill then requires the district court to determine whether the 
Attorney General's certification is supported by ``substantial 
evidence.'' That is a higher, tougher standard than the ``abuse of 
discretion'' test we had in the Senate bill. In making this assessment, 
the district court is specifically authorized to review the underlying 
documents on which the Attorney General's certification is based. The 
court can, therefore, ``review any court orders, statutory directives 
or certifications authorizing providers' cooperation.''
  Importantly, the court may also review the highly classified 
documents provided to the companies indicating that the President had 
authorized the program and that it had been determined to be lawful. 
Explicitly allowing the court to base its decision on whether companies 
are entitled to liability protection on relevant underlying documents 
is an important improvement to the bill, and I am happy it is in it.
  Because such documents would be classified, any review of those 
documents in the litigation prior to this bill would have been limited 
to a court assessment of whether the documents were privileged. The 
court could not have relied on what the Government's communications to 
the providers actually said in making its assessment about whether the 
cases should be dismissed. The court could not have relied on what 
those Government communications said--it is different.
  This bill before the Senate, therefore, gives the district court both 
an important role in determining whether statutory requirements for 
liability protection have been met and the tools to make that 
assessment.
  The FISA bill also provides a more explicit role for the parties to 
the litigation--this is new and better--to ensure that they will have 
their day in court open--sort of, and so to speak--but they will have 
their day in court.
  But they will have their day in court. They are provided the 
opportunity to brief the legal and constitutional issues before the 
court and may submit documents to the court for review. Whatever it is 
they want to submit, they can submit.

[[Page S6384]]

  A few of my colleagues have argued that including any sort of 
mechanism that would allow the district court to resolve these cases 
will prevent the public from hearing the details about the President's 
program. But even if the litigation were to continue indefinitely, it 
would never tell the full story.
  Lawsuits have now been pending for, as I indicated, over 2 years. The 
fight during all that time, and the likely fight in the future, has 
been about whether the plaintiffs will have access to any classified 
information about the program. The plaintiffs in the litigation, they 
have never been and will never be provided with wide-ranging 
information about the President's classified program that would enable 
them to put together a comprehensive picture of what happened.
  This capability is reserved for those who have complete access to 
information about the program. And that again is why I come back to the 
importance of the inspectors general aspect of this oversight. You can 
say: inspectors general, them and their reports. Well, inspectors 
general can take apart their agencies, and they are sort of in there to 
do that.
  That is why we have asked the inspectors general of these relevant 
intelligence agencies, including the DOD, who do, in fact, have 
complete access to information about the program, to conduct a 
comprehensive review of that same program, the whole thing.
  The FISA bill requires a report of the review be submitted to the 
Congress in a year and requires that the report, apart from any 
classified annex, be submitted in an unclassified form that can be made 
available to the public.
  That is not a dodge, that is simply a fact. You cannot release 
classified information to the public. So this is an appropriate way to 
obtain answers to questions about the President's program and ensure 
the public's accountability.
  Critics have also claimed that granting immunity will suggest to the 
telecommunications companies that that compliance with the law is 
optional or that Congress believes that the President's program was 
legal. An examination of the bill that is before us in the Senate would 
make it impossible for anyone to come to either conclusion.
  The administration made very strained arguments to circumvent 
existing laws in carrying out the President's warrantless surveillance 
program: a claim, for example, that the 2001 authorization for use of 
military force was a statutory authorization for electronic 
surveillance outside FISA, even though that authorization did not 
mention electronic surveillance.
  What role did we expect telecommunications companies to play in those 
assessments of legality? To answer that question, we must consider the 
legal regime under which these companies were operating. Numerous 
statutes over the years have stressed the importance of cooperation 
between the telephone companies and the Federal Government, 
particularly in times of emergency. This has a fairly long history.
  FISA itself allows the Attorney General to authorize electronic 
surveillance for short periods of time in emergencies prior to the 
submission of an application for an order. The law, as it existed in 
2001 and as it exists today, grants immunity to telecommunications 
companies, based solely on a certification from the Attorney General 
that no warrant or court order is required by law, that the statutory 
requirements have been met, and that the specified assistance is 
required.
  Given the need for speedy cooperation in times of emergency, Congress 
has never asked companies to question the Government's legal analysis 
that their cooperation is legal and necessary. Thus, although the 
telecommunications companies have always been and will always be 
expected to comply with the law, Congress has told them, prior to 2001, 
that they were entitled to rely on representations from the highest 
levels of Government as to what conduct was legal.
  That is the way it worked. In the case of the President's 
surveillance program, representations of legality were made to 
providers from the very highest levels of Government. The FISA bill 
before the Senate, therefore, eliminates any possible loopholes in 
existing law, ensuring that neither the telecommunications companies 
nor any future Presidents have any doubt about what is required to 
comply with the law.
  It strengthens the exclusivity language of FISA--I have mentioned 
that, I do again--making it absolutely clear that the Congress does not 
intend general statutes to be an exception to FISA's exclusivity 
requirements. In other words, no future President can therefore claim 
that an authorization for use of military force allows the Government 
to circumvent FISA.
  Even more importantly for the telecommunications companies, the bill 
before us makes it a criminal offense to conduct electronic 
surveillance outside of specifically listed statutes. Unlike existing 
criminal and civil penalties which exempt electronic surveillance that 
is authorized by statute, the bill puts telecommunications companies on 
notice that any electronic surveillance outside FISA or specifically 
listed criminal intercept provisions, in the future, is a criminal 
offense that is subject to civil penalties for claims brought by 
individuals who are free to do so.
  This clear language provides no room for any future President or 
Attorney General to argue that criminal and civil penalties should not 
attach for any circumvention of FISA.
  Now, the improvements to this bill address many of the concerns 
raised with the possibility that the court might dismiss the lawsuits 
against the telecommunications companies. The bill before us makes 
clear that Congress expects compliance with the laws, and it assures 
that public accountability is on the Government, where it belongs, and 
not on the companies that acted in good faith in cooperating with the 
Government.
  It is important to say that whatever the inspectors general come up 
with in their analysis of this, and believe me, they will be under the 
gun to do it right, that they have to report that, both unclassified 
and classified, to the Intelligence Committees and the Judiciary 
Committees in both Houses. So the oversight factor again comes in.
  I think it is time to pass this bill and move forward. I urge my 
colleagues to oppose the Dodd-Feingold amendment.
  Mr. SPECTER. Mr. President, would the Senator yield for a question; 
two questions, very briefly?
  Mr. ROCKEFELLER. Of course.
  Mr. SPECTER. The first question relates to the fact, as represented, 
that some 70 Members of the Senate will not have been briefed on the 
program.
  I have been advised by the leadership in the House that most of the 
Members of the House have not been briefed on the program. The 
chairman, in detail, went over what the telephone companies cannot do 
because they cannot make any public disclosures.
  And my question is: How can we intelligently grant retroactive 
immunity on a program that most Members of Congress do not know what we 
are granting retroactive immunity on?
  Mr. ROCKEFELLER. First of all, I should point out to the 
distinguished Senator from Pennsylvania that there was a period when 
members of the Intelligence Committee, members of the Judiciary 
Committee, were not even able to go to the Executive Office Building to 
look at any of the orders that came down, President to Attorney General 
to National Security Advisor, then a letter to the companies. We were 
not allowed to do that.
  The chairman and the vice chairman were allowed to do that. Nobody 
else was. That changed. And it changed because this Senator and a 
number of others put tremendous pressure, because it was such a 
ridiculous situation that I could not even talk to my committee members 
about it. And so they expanded that to include not only committee 
members but also some staff from both the Intelligence and 
Judiciary Committees.

  So I would say to the good Senator that intelligence is difficult, 
and it is difficult to legislate it on the floor of the Senate. Let me 
phrase it this way. There is a common view held by many that members of 
the Intelligence Committee and then, to some extent, the Judiciary 
Committee, in fact, have the intelligence, they control the 
intelligence, it is all theirs.
  I wish to debunk that right now. We control no intelligence. It is 
entirely controlled, meted out or not, by the executive branch. This 
executive branch

[[Page S6385]]

has been extremely cautious, stingy, I would say undemocratic, in doing 
this.
  The good Senator from Missouri who is coming in now, the vice 
chairman of the Intelligence Committee and I have fought like bears to 
expand the number of people who can have access to these programs. But 
I cannot argue that the Senator--his point is worthy of thought.
  I think then one has to consider, are the people on the Judiciary 
Committee and the people on the Intelligence Committee representative 
of good faith, people of reasonable intellect, people who know their 
business, and people who exercise fair judgment? I have been handed a 
note to say something I have already said, that the public reporting 
accompanying the Senate Intelligence Committee bill, detailed, with a 
great deal of specificity, what the companies received from the Federal 
Government.
  That still does not allow me to argue the Senator's point. It is a 
peculiar and difficult nature of legislating intelligence legislation 
on the floor of the Senate. But it is not weakened by so doing because 
of what I have indicated, because of what the inspectors general, 
granted, not in time for this, will come up with, and, secondly, what I 
would call the very high standard of people who serve on both the 
Republican and the Democratic side of the Senate and House Judiciary 
Committee and Intelligence Committee.
  Mr. SPECTER. Mr. President, my second question is, very briefly----
  Mr. BOND. Mr. President, I would like to reclaim my time.
  The ACTING PRESIDENT pro tempore. There are 34 minutes remaining in 
opposition. The Senator from West Virginia has the floor.
  Mr. SPECTER. Mr. President, very briefly on the second question, and 
I will be very brief--the chairman has gone over the ineffectiveness of 
Congress in dealing with the statutory requirement for notice to the 
Intelligence Committees which wasn't followed. We have gone over the 
ineffectiveness of the courts in dealing with enforcing the Foreign 
Intelligence Surveillance Act, where the Supreme Court, as I detailed 
earlier, had ducked the question. So given the ineffectiveness of 
Congress--and I know, I chaired the Intelligence Committee in the 104th 
Congress and could find out hardly anything; I found the Director of 
the CIA knew so little about what was going on--and then the signing 
statements, the only recourse we have now is to the courts and to Chief 
Judge Walker.

  So my question to you is, if we are to maintain separation of powers 
and determination of constitutionality, article I versus article II 
powers, how in the world can we act to divest Chief Judge Walker of his 
jurisdiction in the case, especially in light of the opinion he handed 
down last Wednesday?
  Mr. ROCKEFELLER. I respond to the Senator from Pennsylvania by saying 
he indicated that Judge Walker said this was not a constitutional 
effort between 2001 and 2007, and it was not constitutional. But when 
the Senator offers his own amendment this afternoon, I will make the 
point I make now, that even if it is determined that the program is 
unconstitutional--and that, for reasons I will explain after lunch when 
we do the amendment, will not be possible--the immunity fact is not 
compromised. It is not changed. You are talking about the 
constitutionality of the White House's action. This bill talks about 
title I and then title II and a couple of other titles which referred 
to protecting basic rights, reverse targeting, all kinds of things such 
as that, which, in fact, came from Senator Feingold, and it is not 
involved in the constitutionality. It is not involved in that. Even if 
the judge ruled it unconstitutional, it would make no difference 
whatsoever on title II.
  Mr. SPECTER. I respect Senator Bond's time, and I will pursue this 
with the chairman when my amendment is called up later today.
  I thank my colleagues.
  Mrs. BOXER. I have a parliamentary inquiry.
  The ACTING PRESIDENT pro tempore. The Senator will state it.
  Mrs. BOXER. Senator Dodd has yielded me 10 minutes of his time to 
speak in favor of his amendment to strike the immunity clause. I am 
wondering how I may get recognition here and how much time does Senator 
Dodd have left in this debate?
  The ACTING PRESIDENT pro tempore. There is 43 minutes remaining for 
the Senator from Connecticut.
  Mrs. BOXER. I wonder if Senator Bond would allow me to take 10 
minutes of the 43 minutes Senator Dodd has remaining?
  Mr. BOND. Mr. President, I am happy to accommodate the Senator from 
California. With respect to the comments by the Senator from 
Pennsylvania, I had asked that those be reserved for the arguments in 
favor of the amendment. How much time remains on the chairman and my 
side of the aisle?
  The ACTING PRESIDENT pro tempore. There is 30 minutes.
  Mr. BOND. We will reserve that and accommodate the Senator from 
California. I thank the Chair and my colleagues.
  The ACTING PRESIDENT pro tempore. Without objection, the Senator from 
California is recognized for 10 minutes.
  Mrs. BOXER. Mr. President, I rise today to speak in strong support of 
the amendment offered by Senator Dodd to strike the provision from the 
bill providing immunity to the telecom companies who assisted President 
Bush with his warrantless surveillance program; in essence, breaking 
the law they were supposed to live by. I also note that not every 
telecom company went along with this. There was at least one, Qwest, 
that refused to go along because they said it would break the law if 
they did so. I thank Senators Dodd, Feingold, Leahy, and others for 
their leadership. I know these are difficult debates to have because 
people could say: My goodness, they are offering an amendment to the 
intelligence bill and, ipso facto, that must be a bad thing because 
they are slowing things down.
  I have to say, when you are standing up to fight for liberty and 
justice and the truth, you should never be afraid to slow something 
down. As a matter of fact, it is our job to do so. I do thank my 
colleagues for their leadership.
  I am proud to be a cosponsor of this amendment. In my support of this 
amendment to strike the immunity to the telecom companies who went 
along with the President's secret and, I believe, illegal program, I 
wish to say I am not seeking punishment for them. As a matter of fact, 
I have stated a long time ago that I support indemnification for the 
telecom companies. I believe Senator Whitehouse took the lead on that. 
Senator Specter, at one point, I think, was involved in that and 
others. I thank them for their leadership on that issue.
  I understand the predicament of a company that is facing the White 
House and the White House is saying: You need to spy on your customers 
because we are asking you to do it for the safety of the people. I 
understand their predicament. But I do believe, at this point in time, 
to give retroactive immunity kind of makes a mockery of the fact that 
we are supposed to be a government of laws, not people. We are 
a government of laws. Do we then come back and say: By the way, there 
are three laws over here we don't like so we are going to say to the 
people who broke them, it is OK, because we have looked at it and we 
think it is OK? This is America. We are a country of laws. So this 
issue is so important. I can't overstate how deeply I feel about it.

  We cannot place the interests of the companies and, frankly, of this 
administration, that doesn't want the truth to come out, ahead of the 
constitutional rights of our citizens who seek justice in our courts. 
This administration is so desperate to have this immunity because they 
have no interest in the American people finding out the truth.
  In another subject area, I had a press conference today with a 
wonderful man who stood up and quit the Environmental Protection Agency 
because they were thwarting him every step of the way as he tried to 
tell the truth about the real dangers, as a matter of fact, the 
endangerment posed by global warming. He sent the White House an e-
mail, and it was entitled ``Endangerment Finding.'' The White House 
called and said: Take it back. We don't want to open it. And he said: 
It is too late. So that e-mail is floating around in cyberspace because 
the

[[Page S6386]]

White House knows, if they open it, it becomes public domain. So 
secrecy is what this administration lives by.
  This is a blatant example of where they want to keep secret an 
illegal program. I don't think we should be complicit. I don't think we 
should enable them to avoid the constitutional scrutiny of our Federal 
courts. We can't sacrifice--we can't--the truth for convenient 
expediency. It is not American. We have a system of government that is 
built not only on our Constitution but on the notion of checks and 
balances. The Federal courts are doing their job by checking this 
administration's broad exercise of Executive power. That is why I will 
be supporting other amendments that will be coming up that deal with 
this matter.
  Last week, Chief Judge Walker, of the Northern District of 
California, issued an opinion rejecting this administration's claim to 
have ``inherent authority'' to eavesdrop on Americans outside of 
statutory law. What does this Senate want to do? A lot of the leaders 
you hear speaking on this want to make it possible to give 
retroactively to this administration the inherent authority to 
eavesdrop on Americans outside the law. In the future, we are fixing 
it. Good, I am glad. I am happy. But you can't then say, but we are 
going to look back and change the law. It is not right.
  Listen to what Judge Walker wrote:

       Congress appears clearly to have intended to establish the 
     exclusive means for foreign intelligence activities to be 
     conducted. Whatever power the executive might otherwise have 
     had in this regard, FISA limits the power of the executive 
     branch to conduct such activities and it limits the executive 
     branch's authority to assert the State secrets privilege in 
     response to challenges to the legality of its foreign 
     intelligence surveillance activities.

  So we, Congress, limited the power of the executive. We said: You 
can't assert the state secrets privilege in response to challenges to 
the legality of its foreign intelligence activities. And here we are 
rolling over with bravado to say to this administration--and by the 
way, I would feel the same way whoever was the President, this 
administration or any administration--oh, you are the absolute ruler, 
the King. You can do whatever you want. You can roll over. You can do 
all of that.
  We need to protect this country from terrorists. We must. I voted to 
go to war against bin Laden, and I will not rest until he is gone and 
we break the back of al-Qaida. Unfortunately, that has gone awry. I 
will be very willing to have our Government listen in on conversations 
of the bad actors out there, but I don't want good people being spied 
on. That was the whole reason FISA came into being in the first place. 
People seem to forget the original FISA was to protect the people from 
being spied on, ordinary people. Suddenly, it has been turned on its 
head. I believe the current process works. Our system of government 
works. The Federal courts are exercising their constitutional duty to 
review Executive power.
  So why in this bill are we seeking to stop that process? Why are we 
attempting to tie the capable hands of the Federal courts and deny our 
citizens their day in court? Covering up the truth is not the way to 
gain or regain the trust of the American people. The truth is the basis 
of the American ideal.
  I always marveled, as a little girl and as a young woman, growing up, 
watching as the truth came out about America. I remember my dad, who 
loved this country so much, saying to me: Honey, you just watch this 
country. We are not afraid to admit a mistake. We are not fearful of 
giving people rights. We will stand up and tell the truth, even when we 
make the biggest mistakes.
  Covering up the truth is not the way to gain the trust of the 
American people. Since learning, in late 2005, that the President 
violated the trust of our people by spying on our citizens, Congress 
and the American people have struggled to find out what happened. Last 
week, we celebrated the day we adopted the Declaration of Independence, 
Independence Day, July 4. In that historic document is the following 
phrase:

       To secure these rights, governments are instituted among 
     men deriving their just powers from the consent of the 
     governed.

  ``The consent of the governed,'' that means the law has to be behind 
you when you undertake to do something such as this administration did. 
They didn't care about the consent of the governed. They didn't care 
about the law that was in place. Truth is the centerpiece of justice. I 
don't see how we ever get to the truth if we grant this immunity. I 
don't. It is not, to me, about the punishment.
  As I said, I will be happy to have substitution, to have the 
Government step in. That is not the issue. We need to get to the truth, 
and we all know how that happens in our country. The immunity provision 
in this bill sweeps the warrantless program under the carpet. It hides 
the truth. The people deserve better from us.
  I will close with a quote by former Supreme Court Justice Sandra Day 
O'Connor:

       It is during our most challenging and uncertain moments 
     that our nation's commitment to due process is severely 
     tested. It is in those times we must preserve our commitment 
     at home to the principles for which we fight abroad.

  I hope we will support the Dodd amendment to strike the immunity 
provision.
  I thank the Chair.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, I understand we are coming up on a hard 
break, as they say in television, for the party lunches.
  The ACTING PRESIDENT pro tempore. That is correct.
  Mr. BOND. Mr. President, I note only before we go into that break 
that the Senator from Pennsylvania has made a number of comments on 
time for the supporters of the bill that actually deserve a response.
  One clear point that needs to be made in response to the Senator from 
Pennsylvania and the Senator from California is that Judge Walker's 
actions will not be dismissed if retroactive liability protection is 
accorded carriers. It is a case against the United States, not a case 
against the telephone companies.
  Furthermore, I would say that the dictum in Judge Walker's opinion is 
contrary to higher, more authoritative courts. So Judge Walker was not 
correct, and I believe should his case go up on appeal, he will be 
found not to be accurate. But that does not go, as my colleague from 
West Virginia has said, to the issue of whether carriers deserve 
retroactive liability protection. So I will reserve my comments, and I 
will ask to be recognized when--when will the Senate return to session?
  The ACTING PRESIDENT pro tempore. At 2:15 p.m.
  Mr. BOND. Mr. President, I ask unanimous consent that I be recognized 
for what remains of time on this side.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

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