[Congressional Record Volume 154, Number 112 (Wednesday, July 9, 2008)]
[Senate]
[Pages S6454-S6470]
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 procedures for 
     authorizing certain acquisitions of foreign intelligence, and 
     for other purposes.

  Pending:

       Bingaman amendment No. 5066, to stay pending cases against 
     certain telecommunications companies and provide that such 
     companies may not seek retroactive immunity until 90 days 
     after the date the final report of the inspectors general on 
     the President's surveillance program is submitted to 
     Congress.
       Specter amendment No. 5059, to limit retroactive immunity 
     for providing assistance to the United States to instances in 
     which a Federal court determines the assistance was provided 
     in connection with an intelligence activity that was 
     constitutional.
       Dodd amendment No. 5064, to strike title II.

  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I ask unanimous consent to speak on my time, 
followed immediately by Senator Hatch, who will speak for 10 minutes, 
and that my remaining time be reserved after that.
  The ACTING PRESIDENT pro tempore. Is there objection?
  Mr. REID. What was the request?
  Mr. BOND. The request was that I speak on my time and that Senator 
Hatch be given 10 minutes.
  Mr. REID. Mr. President, is that additional time to what we have?
  Mr. BOND. No. That is off of my time.
  Mr. REID. I appreciate that. But should we not be going back and 
forth? Because Senator Feingold has been here waiting.
  Mr. BOND. How long will Senator Feingold speak?
  Mr. REID. My understanding is 30 minutes.
  Mr. BOND. Responding to the distinguished leader, Senator Hatch had 
to leave a Judiciary Committee hearing. He was only going to speak 10 
minutes. And I am going to be about 10 minutes.
  Mr. FEINGOLD. As long as my 30 minutes is blocked.
  The ACTING PRESIDENT pro tempore. The Senator's time is locked in 
under the unanimous consent.
  Is there objection to the sequence of speakers?
  Mr. FEINGOLD. As long as my 30 minutes is reserved so I can speak 
following the time of the Senator from Utah.
  The ACTING PRESIDENT pro tempore. Is there objection to the request 
as modified?
  Without objection, it is so ordered.
  The Senator from Missouri.
  Mr. BOND. Mr. President, I thank the distinguished leader who has 
done a remarkable job of helping us to get to this point in what has 
been, let us say, a challenging 15-month debate. And I concur with him 
in the very kind and generous words he said about my friend and 
colleague, the chairman of the committee, Senator Rockefeller.
  I expressed my appreciation to the Republican leader for his very 
kind words, and I agree with him that it is absolutely essential that 
we defeat these amendments today. But, finally, after sporadic 
filibuster attempts over a period of 15 months by several Members, 
Members whom I respect for their tenacity and conviction in this 
matter, we are poised today to conclude work on the FISA Amendments Act 
of 2008.
  Yesterday I detailed my views on aspects of this legislation, and I 
walked through six tweaks to the legislation that were made to the 
bipartisan Senate bill that the Senate passed in February, earlier this 
year, that have resulted in the bill before us today.
  I am happy that the tweaks to the bill did not change the bill much. 
I am proud to negotiate with the House to bring back to the Senate 
essentially the same bipartisan bill today that both the chairman and I 
crafted with the help of an overwhelming bipartisan majority of our 
Intelligence Committee.
  This ensured that today we have a major bipartisan victory of which 
all sides can be proud, exemplifying what can be accomplished in 
Washington when there is bipartisan negotiation.
  I thank all of those who worked so hard to bring us to the cusp of 
sending this legislation to the President. I appreciate the hard work 
of House Majority Leader Steny Hoyer, who was critical in the House; 
Republican Whip Roy Blunt, and Congressmen Pete Hoekstra and Lamar 
Smith, as well as the efforts of my colleagues in the Senate, Senators 
Orrin Hatch, Saxby Chambliss, Senate Republican Leader Mitch McConnell, 
and Chairman Rockefeller for his strong support and leadership.
  Further, we could not be here today without the hard work of staff, 
from the House, Jen Stewart from House Minority Leader Boehner's 
office; Brian Diffel from House Minority Whip Blunt's office; Chris 
Donesa from Mr. Hoekstra's office; Caroline Lynch from Mr. Smith's 
office; Mariah Sixkiller with the House Majority Leader's office; and 
Jeremy Bash from Mr. Reyes' office, along with an assortment and large 
number of deputies and others who assisted them in producing the 
language that their Members would support.
  As to my own staff, I thank my staff director Louis Tucker and 
staffer Jacqui Russell from the Intelligence Committee; a very special 
thanks to two FISA counsels, Jack Livingston and Kathleen Rice, who 
brought invaluable expertise into this process as lawyers who 
participated in the FISA process from the executive branch perspective 
while working in the FBI.
  Thanks to Senator Rockefeller's counsels, Mike Davidson, Christine 
Healey, and Alissa Starzak, as well as to Jesse Baker with Senator 
Hatch; to Tom Hawkins and John Abegg with Leader McConnell's office; 
and to the many other staff who helped make this happen, too many to 
name now in the short time we have before we vote on the upcoming 
amendments.
  I believe it is necessary to reinforce a few points that Senator 
Rockefeller and I made yesterday in urging our colleagues to defeat the 
three amendments before us that would kill this bill by altering the 
title II liability protections, and potentially putting us in the 
disastrous situation we faced a year ago.

  First, yesterday we heard from supporters of these amendments that 
decimating the title II civil liability protections for our 
telecommunications providers would have no effect on the title I 
portion of the bill that modernizes FISA collection methodologies 
because title I contains directives that are enforceable by court 
order.
  Such statements demonstrate a lack of understanding about the 
intelligence community's dependence upon our third-party partners. We 
know from our experience when the Protect America Act expired in 
February that is simply not the case. We lost days' worth of 
intelligence while the partners ceased cooperating momentarily until 
they were assured that authorizations and corresponding immunity tie 
would last until August. If we do not have their voluntary cooperation 
by giving them liability protection, then it is much harder and we get 
much less in trying to compel them.
  Second, we heard yesterday that it is ``bad lawyering'' to apply the 
substantial evidence standard to the title II liability. The Senate's 
bill had an abuse of discretion standard for title II liability, which 
I believe was the appropriate standard, but House Democrats offered 
this other standard.
  It is an appellate standard, not a factual standard, as my colleague 
from

[[Page S6455]]

Rhode Island asserted yesterday. The court will not be holding a trial 
or hearing from witnesses. There is no adversarial process in the true 
sense of the word. These steps and safeguards are necessary to ensure 
that our intelligence sources and methods remain protected.
  Third, while my colleague from Rhode Island asserted that the TSP is 
a cause for deep anger at the administration, I submit that deep anger 
should be redirected away from tearing down experienced, dedicated 
American officials and toward tearing down our foreign enemies who are 
intent on destroying our Nation and our way of life.
  The TSP enabled our intelligence community to prevent further attacks 
on our homeland, and I and the leaders of the intelligence community 
believe it is the key reason why we have not been attacked for nearly 7 
years since September 11.
  Despite what some far-left editorial writers say, the TSP only 
allowed warrantless interception of phone calls from terrorists 
reasonably believed to be overseas.
  Intercepts of Americans and other U.S. persons in the United States 
required a warrant from the FISA Court.
  To suggest yesterday, as was suggested on the floor, that it enabled 
collection of communications among innocent American citizens is flat 
wrong. The bill before us will keep us safe and protect civil 
liberties. So it should not be a moment of anger but, rather, one of 
bipartisanship and pride that we worked together to produce the best 
legislation possible to keep America safe and to protect her rights 
further.
  Others assert that leaking the program was good. Well, I dispute 
that. The intelligence agencies noticed a significant drop in 
collection when the terrorists found out we could listen in on them. 
The CIA Director, at his confirmation hearing, when I asked him how 
badly the intelligence community had been hurt, said: We are applying 
the Darwinian theory to terrorists; we are only intercepting the dumb 
ones.
  Both Democratic and Republican leaders were read in on this program 
early on, the Big Eight, and had the opportunity through congressional 
options to delay or scrutinize the program, if necessary.
  I understand they advised the administration it would take too long 
to go through the legislative process to modernize FISA. From what I 
have seen over the past 15 months in how long it has taken us to get 
here today, that seems to have been very good advice.
  My colleague from Pennsylvania asserted earlier that only 30 Senators 
have been read in. But the chairman did a little quick math and said 37 
have been read in. It is unusual to have more than one-third of the 
Senate briefed on some of our most sensitive intelligence collection 
strategy.
  Oversight of these areas is why the Senate created the Senate Select 
Committee on Intelligence. We on the committee oversee hundreds of 
programs that the rest of our colleagues know little about. And even 
though we invite them over for briefings, they usually have too many 
other responsibilities to have time to accept our invitation.
  Finally, my colleague from Pennsylvania asserted we do not know what 
we are granting immunity for, and only courts can decide that matter. 
That is simply not true. The committee's bipartisan review makes it 
clear to whom retroactive civil liability protection is being granted. 
And the courts are not the appropriate standard to make those 
judgments.
  The Senator's statements clearly indicated that he wants to challenge 
the Government, the President's use of the TSP. Well, we do not block 
suits against the Government, against Government employees or 
officials. It would be unfair and potentially disastrous to use the 
patriotic electronic carriers as punching bags to try to get at the 
administration. That will destroy our intelligence community's ability 
to collect with their assistance, and it would potentially lead to a 
serious gap in the program. It would put the people of the collecting 
agencies at great risk, civilians who do not go into battle with 
protection, with gear and with training.
  That is an absolutely outrageous assertion that they should be 
willing to undergo the hazards of war in matters of national security. 
It is appropriate and imperative that the oversight committees act as 
they have in reporting such legislation to the entire body.
  My friend repeatedly inquired if Congress had ever done anything such 
as this before. But, in fact, we only need to look back to 2005 when 
Congress passed the Protection of Lawful Commerce in Arms Act. It 
essentially granted immunity to gun manufacturers, distributors, 
dealers, and others against lawsuits seeking money damages and other 
relief for harm caused by misuse of firearms.
  It still allowed those defendants to be sued for their own 
negligence, violation of sale and marketing statute, breach of contract 
or warranty, design defect, et cetera. The immunity provision was held 
to be constitutional, not a violation of due process, equal protection, 
or takings, in Ileto v. Glock, a 2006 California court case. So beyond 
the rhetoric in opposition to the legislation before us, I believe 
Senators need to take a fair look at what is before us today.
  I strongly encourage my colleagues to vote down the three amendments 
before us and to support this bill. This bill gives our intelligence 
operators and law enforcement officials the tools they need to conduct 
surveillance on foreign terrorists in foreign countries planning to 
conduct attacks inside the United States against our troops and allies. 
It is the balance we need to protect our civil liberties without 
handcuffing intelligence professionals. Let's do the right thing, pass 
this bill without amendments.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Utah.
  Mr. HATCH. Mr. President, it was Kierkegaard, a number of years ago, 
who said that venture causes anxiety, but not to venture is to lose 
one's self.
  From the outset let me be crystal clear in voicing my strong 
opposition to all three pending amendments to H.R. 6304. But before I 
discuss these amendments, let me address a few things said on this 
floor yesterday. One of my colleagues said the Congress shouldn't ``jam 
this bill through.'' If working on a bill for over 440 days is jamming 
it through, then Webster's dictionary should prepare a new definition 
for the word. We also heard comments yesterday which were critical of 
the fact that not every Senator has been fully briefed on the 
activities of the intelligence community. I guess since this same 
argument didn't stick the first time it was offered back in December, 
more desperate attempts would be made. If at first you don't succeed, 
try, try again.
  Memories are short around here, and we should appreciate that the 
very creation of the Intelligence Committee was controversial. The 
committee was created so a limited number of Members would have 
oversight of our intelligence agencies. During the 10 days of debate on 
the resolution creating this committee, numerous Senators openly 
worried about possible leaks in providing highly classified material to 
a large number of individuals. Here is what Senator Milton Young said 
in May of 1976:

       It is my understanding that on this new committee, staff 
     would have access to the most sensitive information. Human 
     nature is such that when too many people have access to this 
     information, someone is bound to leak parts of it to an 
     ambitious and inquisitive press.

  Also, in 1976, here is what another Senator said. This is Senator 
Walter Mondale on the need for a Senate Intelligence Committee on May 
13, 1976:

       We have the worst possible system for congressional 
     oversight of intelligence. Responsibility and authority are 
     fragmented in several cases; it is impossible to look at 
     intelligence as a whole; because authority and responsibility 
     are not welded together, we are incapable of dealing with 
     problems privately, and there is the inevitable temptation to 
     deal with them through leaks.

  Thirty two years later, these statements contain points that are 
still vitally important to this discussion. Is this the system of 
oversight that we should go back to? Those that argue that we should 
not vote until every Member gets some sort of vague access are 
essentially saying that all 535 Members of Congress, plus hundreds of 
cleared staff, should be read into all highly classified programs whose 
jurisdiction is otherwise limited to the Intelligence Committees. If 
you want to guarantee future leaks, this would be a good approach.

[[Page S6456]]

  This sort of logic begs the question: Why do we have the Intelligence 
Committee? The answer is obvious, and I urge my colleagues to remember 
the extensive efforts of our predecessors which created a committee 
with the authority to review these materials.
  While the issue of civil liability protection for telecoms has been 
debated extensively over the last 9 months, the three final amendments 
before us all attempt to alter or remove the carefully crafted 
bipartisan civil liability provision. I agree with the comments from 
both sides of the aisle in opposition to these amendments.
  The Bingaman amendment, for example, would needlessly delay the 
liability provision. I believe the amendment is unwise, as its purpose 
disregards the extensive work that Congress has already conducted on 
this issue. By my last count, Congress has conducted over 27 hearings 
on the TSP and FISA over the last few years.
  Let there be no doubt; the IG review will not, and cannot, determine 
the legality of the terrorist surveillance program. Any suggestion that 
the review will do so is absolutely incorrect. Inspectors general are 
not qualified and lack jurisdiction to review the legality of 
intelligence programs. As further evidence of this obvious point, let's 
look at this quote by the DOJ inspector general on conducting legal 
analysis:
  That's not our role as the Inspector General.
  In addition, the IG review will not publicly reveal which companies 
elected to participate in this program, as that information remains 
highly classified. Simply put, attempts to alter the FISA compromise 
based on a misperception of the eventual IG review should be strongly 
rejected, and we should do so this morning.
  Close inspection of the lawsuits against the telecoms reveals quite 
dubious claims. As has previously been stated, the plaintiffs 
persistently confuse speculative allegations and untested assertions 
for established facts.
  It is very simple, Congress should not condone oversight through 
litigation.
  The lawsuits seize on the President's brief comments about the 
existence of a limited program to go on a fishing expedition of NSA 
activities. But this is really worse than a fishing expedition; this is 
draining the Loch Ness to find a monster. Sometimes what you are 
looking for just doesn't exist.
  Yet we consistently hear as justification for the apparent paranoia 
that some wiretaps were warrantless. But lest we forget, the fourth 
amendment does not proscribe warrantless searches, it proscribes 
unreasonable searches.
  Here's a quick example from a few blocks from here: Waiting for 
warrantless searches at the National Archives; waiting to be served 
before viewing the fourth amendment itself. That is a warrantless 
search.
  The fact is that the President created an early warning system to 
prevent future attacks; essentially a terrorist smoke detector. But 
rather than appreciate the protection it offered, critics rushed to 
pull out the batteries so that it could not work.
  My feelings of admiration and respect for the companies who did their 
part to defend America are well known. As I have said in the past, any 
company who assisted us following the attacks of 9/11 deserves a round 
of applause and a helping hand, not a slap in the face and a kick to 
the gut.
  When companies are asked to assist the intelligence community based 
on a program authorized by the President himself and based on 
assurances from the highest levels of government that the program has 
been determined to be lawful, they should be able to rely on those 
representations.
  In the over 40 outstanding civil lawsuits, is there any proof that 
any litigant was specifically targeted by the government? Can any of 
the plaintiffs show that they are ``aggrieved persons'' under the 
definition of FISA? The answer to both questions is no. Rather, many of 
the lawsuits utilize the following logic: I have long distance service, 
so I am going to sue because I think you listened to my calls. Even 
though they have no proof; even though the government has more 
important things to do than listen to their random phone calls, they 
push on in their desire to justify their view of self-importance and 
irrational belief in government conspiracy. I don't want to bruise 
anyone's ego, but if al-Qaida is not on your speed dial the government 
is probably not interested in you.
  The possible disclosure of classified materials from ongoing court 
proceedings is a grave threat to national security, and the very point 
of these lawsuits is to prove plaintiffs' claims by disclosing such 
classified information. Simply put, you do not tell your enemies how 
you track them. This is why the NSA and other government agencies will 
not say what they do, how they do it, or who they watch. Nor should 
they. To confirm or deny any of these activities, which are at the 
heart of the civil lawsuits, would harm national security. We should 
not discuss what our capabilities are.
  If the identities of the companies are revealed and officially 
confirmed through litigation, they will face irreversible harm; harm in 
their business relations with foreign governments and companies, and 
possible physical harm to their employees both here and abroad, who are 
truly soft targets for attackers.
  I have come to this floor on numerous occasions during the last year 
to discuss the issue of FISA modernization and am hopeful that the need 
to continue to do so will finally end tomorrow. I am confident that 
when the Congress considers this issue, we will finally send this 
vitally important legislation to the President to be signed into law.
  I compliment the distinguished chairman and vice chairman of the 
committee, Senators Rockefeller and Bond. They have had to handle this 
matter through all kinds of vicissitudes and false logic. They have 
done an exceptionally good job. They and their staff have stood and 
tried to let America know what is involved.
  The fact is, these two leaders have done a great job on this 
committee. They have previously passed bipartisan legislation 
overwhelmingly. This original Senate FISA modernization bill would have 
passed the House pretty much overwhelmingly, had it been brought up, 
and, of course, hopefully this version will be passed today without any 
of these three amendments which would cause a veto.
  I thank those who vote for this bill and those who have been 
considerate enough to look at all the important arguments and support 
this legislation which is much needed, certainly much needed before 
August and should have been passed a long time ago.
  I thank all those who have stood up on this bill.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that Senator 
Leahy be recognized following my remarks, to be followed by Senator 
Specter for 10 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. FEINGOLD. Mr. President, I yield myself such time as I may 
consume. Before I get into my formal remarks, let me react a bit to the 
remarks of the Senator from Utah. He is a great colleague, a very 
cordial man. I have enjoyed the 16 years I have served with him, 
especially on the Judiciary Committee. But I will use an unsenatorial 
word for one of the arguments he made. The word is ``wow.'' The notion 
that roughly 70 Senators would not be briefed on something we are 
voting on and the notion that the briefing of the Intelligence 
Committee, which, of course, I am a member of and which I support, is a 
justification for having 70 Senators not knowing what they are voting 
on is a very bizarre interpretation of why the Intelligence Committee 
was created. It was not created as a replacement for the Senate when it 
comes to voting on the laws governing the fundamental rights of the 
American people. If that is the best they can come up with, when 70 
Senators don't even know the fundamentals of the program that this 
immunity issue is addressing, it is incredible. Let me get into the 
merits, but first I should also address that we have apparently been 
lumped in as part of the black helicopter crowd. I assure you the 
coalition in this country that has concerns about this bill is much 
broader than any such characterization.
  A number of Senators came to the floor prior to the Fourth of July 
recess to debate the FISA legislation, and more debate has occurred 
this week.

[[Page S6457]]

We heard arguments for and against this legislation, and Senators have 
cited a variety of reasons for their positions.
  Several have defended the bill by arguing the legislation includes 
improvements compared to the Senate bill we passed earlier this year. 
Of course, I was not surprised to hear that line of argument. I agree, 
there are some improvements to the Senate bill contained in the 
legislation we are now considering. But Mr. President, those changes, 
as you well know, are not nearly enough to justify supporting the bill, 
as I will explain in a few moments.
  I was, however, surprised to hear several Senators still defending 
the legality of the President's warrantless wiretapping program and 
still arguing that Congress had somehow signed off on this program 
years ago because the so-called Gang of 8 group was notified.
  I thought we were well past these arguments. Two and a half years 
after this illegal program became public, I cannot believe we are still 
debating the legality of this program on the Senate floor and that 
anyone--anyone--seriously believes that merely notifying the Gang of 
8--eight Senators and Congressmen--while keeping the full Intelligence 
Committees in the dark, somehow represents congressional approval.
  It could not be clearer that this program broke the law and that this 
President--this President--broke the law. Not only that, but this 
administration affirmatively misled the Congress and the American 
people about it for years before it finally became public. So if we are 
going to go back and discuss these issues that I thought had long since 
been put to rest, let's take a few minutes to cover the full history.
  Here is the part of this story that somehow seems to have been 
forgotten. In January 2005, 11 months before the New York Times broke 
the story of the illegal wiretapping program, I asked then-White House 
Counsel Alberto Gonzales at his confirmation hearing to be Attorney 
General whether the President had the power to authorize warrantless 
wiretaps in violation of the criminal law. Neither I nor the vast 
majority of my colleagues knew it then, but the President had 
authorized the NSA program 3 years before, and Mr. Gonzales was 
directly involved in that issue as White House Counsel.
  At his confirmation hearing, he first tried to dismiss my question--
if you can believe it--as ``hypothetical,'' though he knew exactly what 
was going on. He then testified:

       [I]t's not the policy or the agenda of this President to 
     authorize actions that would be in contravention of our 
     criminal statutes.

  The President's wiretapping program was in direct contravention of 
our criminal statutes. Mr. Gonzales knew that, but he wanted the Senate 
and the American people to think the President had not acted on the 
extreme legal theory that the President has the power as Commander in 
Chief to disobey the criminal laws of this country.
  The President, too, misled the Congress and the American public. In 
2004 and 2005, when Congress was considering the reauthorization of the 
USA PATRIOT Act, the President went out of his way--I remember this 
very clearly--to assure us that his administration was getting court 
orders for wiretaps, all the while knowing full well that his 
warrantless wiretapping program was ongoing.
  Here is what the President said on April 20, 2004:

       Now, by the way, any time you hear the United States 
     government talking about [a] wiretap, it requires--a wiretap 
     requires a court order. Nothing has changed, by the way. When 
     we're talking about chasing down terrorists, we're talking 
     about getting a court order before we do so.

  Those are the words of the President of the United States to the 
American people.
  Again, on July 14, 2004:

       The government can't move on wiretaps or roving wiretaps 
     without getting a court order.

  And listen to what the President said on June 9, 2005:

       Law enforcement officers need a federal judge's permission 
     to wiretap a foreign terrorist's phone, a federal judge's 
     permission to track his calls, or a federal judge's 
     permission to search his property. Officers must meet strict 
     standards to use any of these tools. And these standards are 
     fully consistent with the Constitution of the U.S.

  So please, let's not pretend that the highly classified notification 
to the Gang of 8, delivered while the President himself was repeatedly 
presenting a completely different picture to the public, suggests that 
Congress somehow acquiesced to this program. As the Members of this 
body well know, several Members of the Gang of 8 at the time raised 
concerns when they were told about this, and several have since said 
they were not told the full story. And, of course, all of them--all of 
them--were instructed not to share what they had learned with a single 
other person.
  I also cannot leave unanswered the arguments mounted in defense of 
the legality of the NSA program. I will not spend much time on the 
argument that the authorization for use of military force that Congress 
passed on September 18, 2001, authorized this program. That argument 
has been thoroughly discredited. In the AUMF, Congress authorized the 
President to use military force against those who attacked us on 9/11, 
a necessary and justified response to the attacks. We did not authorize 
the President to wiretap American citizens on American soil without 
going through the judicial process that was set up nearly three decades 
ago precisely to facilitate the domestic surveillance of spies and 
terrorists.
  Senators have also dragged out the same old, tired arguments about 
the President's supposed inherent Executive authority to violate the 
FISA statute. They argue that a law passed by Congress cannot trump the 
President's power under the Constitution. Now, that argument may sound 
good, but it assumes what it is trying to prove--that the Constitution 
gives the President the power to authorize warrantless wiretaps in 
certain cases. You cannot simply say that any claim of Executive power 
prevails over a statute--at least, not if you are serious about the 
rule of law and about how to interpret the Constitution.

  The real question is, when a claim of Executive power and a statute 
arguably conflict, how do you resolve that conflict?
  Fortunately, this is not something the Supreme Court has been silent 
about. The Supreme Court has told us how to answer that question. We 
are talking about the President acting in direct violation of a 
criminal statute. That means his power was, as Justice Jackson said in 
his famous and influential concurrence in the Steel Seizure cases half 
a century ago, ``at its lowest ebb.'' The Presidential power, Justice 
Jackson said, in that circumstance was ``at its lowest ebb.'' In other 
words, when a President argues that he has the power to violate a 
specific law, he is on shaky ground.
  That is, obviously, not just my opinion. It is what the Supreme Court 
has made clear. No less an authority than the current Chief Justice of 
the United States, John Roberts, repeatedly recognized in his 
confirmation hearings--over and over again--that Justice Jackson's 
three-part test is the appropriate framework for analyzing questions of 
Executive power.
  In early 2006, a distinguished group of law professors and former 
executive branch officials wrote a letter pointing out that ``every 
time''--every time--``the Supreme Court has confronted a statute 
limiting the Commander-in-Chief's authority, it has upheld the 
statute.'' It has upheld the act of Congress over the claims of 
Executive power that overreach and conflict with the power of this 
Congress to make the laws in this country.
  The Senate reports issued when FISA was enacted confirm the 
understanding that FISA overrode any preexisting inherent authority of 
the President. The 1978 Senate Judiciary Committee report stated that 
FISA ``recognizes no inherent power of the President in this area'' and 
``Congress has declared that this statute, not any claimed Presidential 
power, controls.''
  Contrary to what has been said on this floor, no court has ever 
approved warrantless surveillance in violation of FISA based on some 
theory of article II authority. The Truong case that is so often hauled 
out to make this argument was a Vietnam-era case based on surveillance 
that occurred before FISA was enacted, so it could not have decided 
this issue. And the issue before the FISA Court of Review in 2002 had 
nothing to do with inherent Presidential authorities. Yet these cases 
are repeatedly cited by supporters of the President, complete with 
large charts

[[Page S6458]]

of the supposedly relevant quotations. But the fact is, not a single 
court--not the Supreme Court or any other court--has considered 
whether, after FISA was enacted, the President nonetheless somehow has 
the authority to bypass it and authorize warrantless wiretaps.
  In fact, as the Senator from Pennsylvania and I discussed on the 
Senate floor yesterday, just last week a Federal district court 
strongly indicated that were it to reach that issue, it would find that 
the President must in fact follow FISA. The court was considering 
whether the state secrets privilege applies to claims brought under the 
FISA civil liability provisions, and it found that it does not. Its 
reasoning was based on the conclusion, again, that Congress had spoken 
clearly that it intended FISA and the criminal wiretap laws to be the 
exclusive means--the exclusive means--by which electronic surveillance 
is conducted, and it fully occupied the field in this area, replacing 
any otherwise applicable common law.
  Now, here is what the court said:

       Congress appears clearly to have intended to--and did--
     establish the exclusive means for foreign intelligence 
     surveillance activities to be conducted. Whatever power the 
     Executive may otherwise have had in this regard, FISA limits 
     the power of the executive branch to conduct such activities 
     . . .

  And another court, a district court in Michigan, has also held that 
the President's wiretapping program was unconstitutional, although that 
decision was reversed on procedural grounds by the Sixth Circuit. So to 
the extent there is any case law that actually addresses this issue, it 
totally undercuts the administration's arguments. And, of course, it 
certainly does nothing to support those arguments.
  We have also heard that past American Presidents have cited Executive 
authority to order warrantless surveillance. But, of course, those past 
Presidents--Presidents Wilson and Roosevelt are often cited--were 
acting before the Supreme Court decided in 1967 that our communications 
are protected by the Fourth Amendment and before Congress decided in 
1978 that the executive branch can no longer unilaterally decide which 
Americans to wiretap. So those examples are simply not relevant to this 
debate.
  In sum, the arguments that the President has inherent Executive 
authority to violate the law are baseless. It is not even a close case. 
And the repeated efforts in the Senate to pretend otherwise are very 
discouraging.
  It may seem that I am going over ancient history because this program 
is no longer operating outside the law. But this is directly relevant 
to the current debate. The bill the Senate is considering would 
actually grant retroactive immunity to any companies that cooperated 
with a blatantly illegal program that went on for more than 5 years and 
about which the administration repeatedly misled Congress.
  So if Congress short-circuits these lawsuits, we will have lost a 
prime opportunity to finally achieve accountability for these many 
years of lawbreaking. That is why the administration has been fighting 
so hard for this immunity. It knows that the cases that have been 
brought directly against the Government face much more difficult 
procedural barriers and are unlikely to result in rulings on the merits 
that would allow us to get to this direct question of the legality of 
the President's warrantless wiretapping program.
  These lawsuits involving the telephone companies may be the last 
chance to obtain a judicial ruling on the lawfulness of the warrantless 
wiretapping program. It is bad enough that Congress abdicated its 
responsibility to hold the President accountable for breaking the law. 
Now it is trying to absolve those who allegedly participated in his 
lawlessness. This body should be condemning this administration for its 
lawbreaking--not letting the companies that allegedly cooperated off 
the hook.
  This body certainly should not grant the Government new, 
overexpansive surveillance authorities, which brings me now to the part 
of the bill that in some ways concerns me even more than the immunity 
provision. Let me explain why I am so concerned about the new 
surveillance powers granted in this bill and why the modest 
improvements made to this part of the bill do not even come close to 
going far enough.
  First, the FISA Amendments Act would authorize the Government to 
collect all--all--communications between the United States and the rest 
of the world. Now, that could mean millions upon millions of 
communications between innocent Americans and their friends, families, 
or business associates overseas could be legally collected. Parents 
calling their kids studying abroad, e-mails to friends serving in 
Iraq--all these communications could be collected, with absolutely no 
suspicion of any wrongdoing at all, under this legislation.
  Second, like the earlier Senate version, this bill fails to 
effectively prohibit a practice known as reverse targeting; namely, 
wiretapping a person overseas when what the Government is really 
interested in doing is listening to an American here at home with whom 
the foreigner is communicating. This bill does have a provision that 
purports to address this issue. It prohibits intentionally targeting a 
person outside the United States without an individualized court order 
if ``the purpose'' is to target someone reasonably believed to be in 
the United States.
  But this does not do the job. At best, this prevents the Government 
from targeting a person overseas as a complete pretext for getting 
information on someone in the United States. But this language would 
allow a lot more. The language would permit intentional and possibly 
unconstitutional warrantless surveillance of an American so long as the 
Government has any interest--any interest at all--no matter how small, 
in the person overseas with whom the American is communicating. The 
bill does not include language that had the support of the House and 
the vast majority of the Senate's Democratic caucus that would have 
required the Government to obtain a court order whenever a significant 
purpose of the surveillance was to acquire the communications of an 
American in the United States. The administration's refusal to accept 
that reasonable restriction on its power is quite telling.

  Third, the bill before us imposes no meaningful consequences if the 
Government initiates surveillance using procedures that have not been 
approved by the FISA Court, and the FISA Court later finds that those 
procedures were unlawful. Say, for example, the FISA Court determines 
that the procedures were not even reasonably designed to wiretap 
foreigners outside the United States rather than Americans at home. 
Under this bill, all that illegally obtained information on Americans 
can be retained and used. Once again, as seems to recur over and over 
again in this sordid tale, there are no consequences for illegal 
behavior by the Government of the United States. That is just wrong.
  Unlike the Senate bill, this new bill does generally provide for FISA 
Court review of surveillance procedures before surveillance begins, and 
that is one of the changes that has been touted by supporters of the 
bill. But the bill also says if the Attorney General and the Director 
of National Intelligence certify they don't have time to get a court 
order, and that intelligence important to national security may be lost 
or not timely acquired, then they can go forward without traditional 
approval. This is a far cry from allowing an exception to FISA Court 
review in a true emergency because, arguably, all intelligence is 
important to national security and any delay at all might cause some 
intelligence to be lost. So I am concerned that this so-called 
``exigency'' exception could very well swallow the rule and undermine 
any presumption at all of prior judicial approval. That could result in 
no prior court review. No prior judicial review. Let's just trust an 
administration--including this administration--rather than having the 
checks and balances that clearly the Founders of our country understood 
to be central in any situation such as this.
  Fourth, this bill doesn't protect the privacy of Americans whose 
communications will be collected in vast new quantities. The 
administration's mantra has been: Don't worry, we have minimization 
procedures. But minimization procedures are nothing more

[[Page S6459]]

than unchecked executive branch decisions about what information on 
Americans constitutes ``foreign intelligence.'' That is why on the 
Senate floor I joined with Senator Webb and Senator Tester earlier this 
year to offer an amendment to provide real protections for the privacy 
of Americans, while also giving the Government the flexibility that it 
needs to wiretap terrorists overseas.
  This bill relies solely on inadequate minimization procedures to 
protect innocent Americans, and they are simply not enough.
  As I said at the outset, some supporters of this bill have pointed to 
improvements made since the Senate passed the bill earlier this year. I 
appreciate that some changes have been made, but those changes are 
either inadequate or they do not go to the core privacy issues raised 
by this bill. In fact, as the distinguished Senator from Missouri, the 
vice chairman of the Senate Intelligence Committee, said just 
yesterday, the bill before us is ``basically the Senate bill all over 
again'' with only ``cosmetic fixes.'' That is what the Republican vice 
chairman of the committee said. Any Democrat who suggests that this is 
somehow a big change, I don't think they read the bill, because it 
doesn't do the job.
  For example, I am pleased the bill provides for FISA Court review of 
targeting minimization procedures, but as I mentioned, there is a 
potentially gaping loophole allowing the executive branch to go forward 
with surveillance without court review--an exception that could swallow 
the rule. The bill also now explicitly directs the FISA Court to 
consider whether the Government's procedures comply with the fourth 
amendment, but that is an authority it should have had anyway.
  The bill includes an inspector general review of the illegal program, 
which is a positive change, but that doesn't make up for the lawsuits 
that are going to be dismissed as a result of this legislation. I 
strongly support the strengthened exclusivity language which, perhaps, 
may defer a future administration from engaging in lawless behavior, 
but let's not lose sight of the fact that FISA, as originally enacted, 
clearly stated already that it and the criminal wiretap laws were the 
exclusive means for conducting electronic surveillance. This was 
confirmed in the strongest terms possible by a Federal district court 
just last week.
  The idea that we would simply trust this administration, especially, 
to follow this exclusivity language when they have taken such a 
dismissive attitude with respect to the current exclusivity language is 
absurd. Only under the unprecedented legal theories of this 
administration could that clear language be ignored, requiring Congress 
to pass language that effectively says: No, we really mean it. If this 
bill is enacted, I am by no means reassured that this administration, 
which repeatedly broke the law and misled the public over the past 7 
years, will now respect the exclusivity of FISA.
  Now, the bill does contain a key protection for Americans traveling 
overseas. It says if the Government wants to intentionally target 
Americans while they are outside of the country, it has to get an 
individualized FISA Court order based on probable cause. That is a 
great victory, and it is one we should be proud of, but it does not 
override the greatly expanded authorities in this bill to collect other 
types of communications involving Americans.
  In sum, these improvements are obviously not enough. They are nowhere 
close. So I must strongly oppose this bill.

  When you consider how we got here, this legislation is particularly 
discouraging. We discovered in late 2005 that the President had 
authorized an illegal program in blatant violation of a statute and 
that Congress and the public had been misled in a variety of ways 
leading up to this public revelation. Congress, to its credit, held 
hearings on the program, but was largely stonewalled by the 
administration for many months until the administration grudgingly 
agreed to brief the intelligence committees and, more recently, the 
judiciary committees. Nonetheless, the vast majority in the House and 
Senate have never been told what happened. In 2006, when the 
Republicans tried to push through legislation to grant massive new 
surveillance authority to the executive branch, we stopped it. But now, 
in a Democratic-controlled Congress not only did we pass the Protect 
America Act, but we are now about to extend for more than 4 years these 
expansive surveillance powers, and we are about to grant immunity to 
companies that are alleged to have participated in the administration's 
lawlessness.
  I sit on the Intelligence and Judiciary Committees. I am one of the 
few Members of this body who has been fully briefed on the warrantless 
wiretapping program. Based on what I know, I can promise that if more 
information is declassified about the program in the future, as is 
likely to happen either due to the inspectors general report, the 
election of a new President, or simply the passage of time, Members of 
this body will regret that we passed this legislation. I am also 
familiar with the collection activities that have been conducted under 
the Protect America Act and will continue under this bill. I invite any 
of my colleagues who wish to know more about these activities to come 
speak to me in a classified setting. Publicly, all I can say is that I 
have serious concerns about how those activities may have impacted the 
civil liberties of all Americans. If we grant these new powers to the 
Government and the effects become known to the American people, we will 
realize what a mistake it was. Of that, I am sure.
  So I hope my colleagues will think long and hard about their votes on 
this bill and consider how they and their constituents will feel about 
this vote 5, 10, or 20 years from now. I am confident that history will 
not judge this Senate kindly if it endorses this tragic retreat from 
the principles that have governed government conduct in this sensitive 
area for 30 years. I urge my colleagues to stand up for the rule of law 
and defeat this bill.
  I reserve the remainder of my time.
  The ACTING PRESIDENT pro tempore. The Senator from Vermont is 
recognized.
  Mr. LEAHY. Mr. President, I applaud the Senator from Wisconsin for 
his statement. I concur with it.
  The Senate has before it three amendments to bring accountability to 
this legislation: the Dodd-Feingold-Leahy amendment, the Specter 
amendment, and the Bingaman alternative. I intend to vote in favor of 
each of these three amendments.
  As I noted at the outset of this debate and consistently throughout 
the course of Senate consideration of these matters, I oppose 
legislation that does not provide accountability for the 6 years of 
illegal, warrantless wiretapping initiated and approved by the Bush-
Cheney administration. The bill, if it is adopted without amendments, 
seems intended to result in the dismissal of ongoing cases against the 
telecommunications carriers that participated in the warrantless 
wiretapping program without allowing a court ever to review whether the 
program itself was legal. None of us are out to punish the 
telecommunications carriers, but we worry if anybody is going to be 
held accountable. As it is now, the bill would have the effect of 
ensuring that this administration is never called to answer for its 
actions and never held accountable in a court of law. I do not support 
a result that says the President of the United States, whomever he or 
she is, is above the law and, therefore, I would not support the bill 
unless it is amended.
  It is now almost 7 years since this President began efforts to 
circumvent the law. In violation of the provisions of the governing 
statute, the Foreign Intelligence Surveillance Act, this President and 
his administration engaged in a program of warrantless wiretapping. I 
believe that conduct was illegal. In running its program of warrantless 
surveillance, the administration relied on ends-oriented legal opinions 
prepared in secret and shown only to a tiny group of like-minded 
officials.
  Basically, the administration said: This is what we want for legal 
advice, now give it to us. This is what we want to do to step outside 
the law; now you go tell us we can do that. As chairman of the Senate 
Judiciary Committee, of course I oppose that.
  A former head of the Justice Department's Office of Legal Counsel 
described this program as a ``legal mess.'' This administration wants 
to make sure that no court ever reviews that

[[Page S6460]]

legal mess. The bill before us seems to guarantee they get their wish.
  As Senator Specter and I have both confirmed during the course of 
this debate, the administration worked hard to ensure that Congress 
could not effectively review the legality of the program. Since the 
existence of this program became known through the press, the Judiciary 
Committee repeatedly tried to obtain access to the information its 
members needed to evaluate the administration's legal arguments. 
Indeed, Senator Specter, when he was chairman of the Judiciary 
Committee, prepared subpoenas for the telecommunications carriers to 
obtain information, simply because the administration would not tell us 
directly what it had done, but those subpoenas were never issued; Vice 
President Cheney intervened to undercut Senator Specter and prevent the 
committee from voting on them.
  There are public reports that at least one telecommunications carrier 
refused to comply with the administration's request to cooperate with 
the warrantless wiretapping. Surely that objection raised a red flag 
for all involved. It is clear that the administration did not want the 
Senate to evaluate the evidence and draw its own conclusions. Again, it 
sought to avoid accountability.
  If we look at the publicly available information about the 
President's program, it becomes clear that title II is designed to tank 
these lawsuits, pure and simple, and allow for the administration to 
avoid accountability. The Senate Intelligence Committee said in a 
report last fall that the providers received letters from the Attorney 
General stating that the activities had been ``authorized by the 
President'' and ``determined to be lawful.'' Guess what. These are 
precisely the ``magic'' words that will retroactively immunize the 
providers under title II of this bill. So the fix is in. The bill is 
rigged, based on what we already know, to ensure that the providers get 
immunity and the cases get dismissed.

  So what if Americans' rights were violated. So what if laws were 
violated. This bill makes the Federal courts the handmaiden to a 
coverup. That is wrong.
  Make no mistake. If title II becomes law, we would take away the only 
avenue for Americans to seek redress for harms to their privacy and 
their liberties, and there will likely be no judicial review of this 
administration's illegal actions. Those who claim that American 
citizens can still pursue their privacy claims against Government, they 
know that sovereign immunity is a roadblock. They know that cases 
against Government have been dismissed for lack of standing. They know 
about the Government's ability to assert the state secrets doctrine. 
They know the Michigan case that held the President's warrantless 
wiretapping program illegal was later vacated on appeal for lack of 
standing. Indeed, for all of the talk about holding the Government 
accountable, they have chosen to do nothing to make any case against 
the Government more viable. This is a red herring if ever there was 
one. We are telling Americans we are closing the door. We are telling 
Americans--law-abiding, honest, good, hard-working Americans--that we 
are closing the courthouse door in their face because we have to 
protect the President and those around him who may have done something 
illegal.
  Last week, a Federal judge in San Francisco ruled that FISA's 
provisions trump the state secrets privilege. But that same judge was 
constrained to hold that plaintiffs still must prove that they are 
``aggrieved'' under FISA to maintain standing to sue the Government. It 
is not at all clear whether these plaintiffs, or any others, can make 
this showing. Absent congressional action to facilitate judgments on 
the merits, these cases against the Government are unlikely to survive.
  The report of the Senate Committee on Intelligence in connection with 
its earlier version of the bill that also included retroactive immunity 
is telling. The committee wrote:

       The Committee does not intend for this section to apply to, 
     or in any way affect, pending or future suits against the 
     Government as to the legality of the President's program.

  And later wrote:

       Section 202 makes no assessment about the legality of the 
     President's program.

  But neither that bill nor this one makes any allowance for such suits 
against the government to proceed to a decision on the merits. That is 
precisely what is lacking in this measure--an avenue to obtain 
meaningful judicial review and accountability.
  Those who support retroactive immunity for the telecommunications 
carriers without providing an effective avenue to challenge the program 
or obtain judicial review of its legality, support unaccountability, 
pure and simple. I would have supported the efforts of the Government 
to indemnify the telecommunications carriers if we could substitute the 
Government to have accountability. I also support alternative efforts 
by Senator Specter and Senator Whitehouse to substitute the Government 
in those cases so that the cases could proceed to a judgment on the 
merits. That would have allowed judicial review and provided for 
accountability.
  The Senate is going to vote on a bill today which does not allow 
that. All the years I was growing up in Vermont we were told nobody is 
above the law. All my time in law school we were told nobody is above 
the law. We take an oath of office when we are sworn into this body 
where there are only 100 of us to represent 300 million Americans, but 
we are also told no one is above the law. We are about to vote on a 
bill that says, well, the President and those people around him are 
above the law.
  Just as Vice President Cheney is not supposed to control the 
Congress, the administration is not supposed to control the Federal 
courts. In this democracy of coequal branches in which not even the 
President is above the law, judicial review is an important mechanism 
to correct the overreaching and excesses of the Executive. Since the 
landmark case of Marbury v. Madison, the principle of judicial review 
has been firmly established. Unfortunately, that principle is being 
sacrificed to this administration's claim that it, outside of all other 
administrations in this Nation's history--this administration, the 
Bush-Cheney administration--should be able to act with absolute 
impunity and act outside the law.
  On the other hand, I believe a Federal court could well find that the 
limitations this bill, if enacted, would place on the courts' ability 
to rule on the legality of this program are themselves 
unconstitutional.
  Under the strictest read of the language of the bill, the cases in 
question will most certainly be dismissed. Attorney General Mukasey 
must simply certify to the court that the ``alleged'' activity was the 
subject of a written request from the Attorney General, which indicated 
that the activity was authorized by the President and ``determined to 
be lawful.'' This process gives me, and I would hope the Federal 
courts, pause.
  If the judicial review provided by the bill is intended to be 
meaningful, the only way for that to happen is if the courts, in fact, 
review the legality of the warrantless wiretapping program. Surely, a 
court might find that it cannot dismiss an American's claim of a 
deprivation of rights based on the mere assertion by a party in 
interest that it told another party that what they were doing was 
``determined to be lawful.'' In this setting, in fact, the current 
Attorney General is not certifying or representing to the court that 
the warrantless wiretapping program was lawful. All the bill requires 
is that the Attorney General certify that the phone company acted at 
the behest of the administration and that the administration 
``indicat[ed]'' that the activity was ``determined to be lawful''--by 
somebody, at some time.
  A court might reason that Congress could not have intended for the 
court to abdicate its judicial review role and become a mere rubber 
stamp. The court might nevertheless engage in ``meaningful'' judicial 
review. Wouldn't that be great.
  How else, the court might reason, is it to assure itself that the 
Attorney General's certification is valid and worth affirming as a 
justification for closing the court house doors to Americans claiming 
deprivation of their constitutionally guaranteed rights? That is the 
only way to provide any real meaningful judicial review.
  Indeed, the reasoning would go, any other reading would be an 
unconstitutional rule of decision. See United States v. Klein, 13 Wall. 
128 (U.S. 1872). Congress simply does not have authority to tell the 
courts, a coequal branch,

[[Page S6461]]

how it must decide a case. So, in order not to reach that 
constitutional predicament, the court could interpret the statute to 
allow it to review the legality of the President's warrantless 
wiretapping program.
  Another recent model for such meaningful review is that of the Court 
of Appeals for the District of Columbia in the Parhat v. Gates case. 
There, the appellate court invalidated a Combatant Status Review 
Tribunal's decision that petitioner Huzaifa Parhat, a member of a 
Chinese Muslim minority group called Uighurs, was properly designated 
as an ``enemy combatant.''
  Under the restrictive language of the Detainee Treatment Act, the 
court's review in the Parhat case was expressly limited to 
consideration whether the status determination of the CSRT was 
``consistent with the standards and procedures'' specified by the 
Secretary of Defense for CSRTs, and whether ``to the extent the 
Constitution and laws of the United States are applicable, whether the 
use of such standards and procedures to make the determination is 
consistent with the Constitution and laws of the United States.''
  The Parhat decision shows that in order to make its review 
meaningful, the court interpreted its role as reviewing the probity and 
reliability of the evidence in order to reach its conclusion on the 
validity of CSRT's designation of Parhat as an ``enemy combatant.'' In 
so doing the court noted that to do otherwise would be ``perilously 
close to suggesting that whatever the government says must be treated 
as true, thus rendering superfluous both the role of the Tribunal and 
the role that Congress assigned to this court.'' It noted that ``[t]o 
do otherwise would require the courts to rubber-stamp the government's 
charges'' rather than engage in meaningful judicial review.
  I believe that independent judicial review would reject the 
administration's claims to authority from the Authorization for the Use 
of Military Force to engage in warrantless wiretapping of Americans in 
violation of FISA. I believe that the President's claim to an inherent 
power, a Commander-in-Chief override, derived somewhere from the 
interstices or penumbra of the Constitution's Article II, would not 
prevail over the express provisions of FISA.
  Indeed, Chairman Rockefeller seemed to concede as much yesterday 
morning when he asserted that nothing in his bill should be taken to 
mean ``that Congress believes that the President's program was legal.'' 
He characterized the administration as having made ``very strained 
arguments to circumvent existing law in carrying out the President's 
warrantless surveillance program.''
  At various points, Senator Rockefeller alluded to the 
administration's argument that the Authorization for the Use of 
Military Force was some sort of statutory override authority and the 
administration's claim that the President has what Senator Rockefeller 
called ``his all-purpose powers,'' which I understand to be the 
administration's argument that inherent authority from Article II of 
the Constitution creates a commander-in-chief override, and said that 
these are not justifications for having circumvented FISA.
  Consistent with Justice Jackson's now well-accepted analysis in the 
Youngstown Sheet & Tube case, when the President seeks to act in an 
area in which Congress has acted and exercised its authority, the 
President's power is at it ``lowest ebb.'' So I believe that the. 
President's program of warrantless wiretapping contrary to and in 
circumvention of FISA will not be upheld based on his claim of some 
overriding Article II power. I do not believe the President is above 
the law.
  What is most revealing is that the administration has worked so 
feverishly to subvert any judicial review. That sends a strong signal 
that the administration has no confidence in its supposed legal 
analysis or its purported claims to legal authority. If it were 
confident, the administration would not be raising all manner of 
technical legal defenses but would work with Congress and the courts to 
allow a legal test of its contentions and of its actions.
  One Federal district judge in Detroit has already declared the 
President's warrantless wiretapping program to have been 
unconstitutional. Another in San Francisco just last week cast grave 
doubt on the legality of the President's warrantless wiretapping 
program, finding that the exclusivity provisions in FISA left no doubt 
that operating outside of the statute's framework was unlawful.
  I urge the courts to exercise their rightful role to ensure justice 
is done.
  As I have said, I recognize that this legislation also contains 
important surveillance authorities. I support this new authority, and 
have worked for years to craft legislation that provides that important 
authority along with appropriate protections for privacy and civil 
liberties. The Judiciary Committee reported such a bill last fall. I 
commend House Majority Leader Hoyer and Senator Rockefeller, who 
negotiated this legislation, for incorporating several additional 
protections that bring the bill the Senate previously passed closer to 
the Judiciary Committee's bill. While I would seek even greater civil 
liberties protections in Title I, there is no doubt that this bill 
provides stronger protections than the Senate bill I previously 
opposed.
  I note, in particular, the requirement of an Inspector General review 
of the President's warrantless wiretapping program. It is a provision I 
offered and insisted upon when the Judiciary Committee reported its 
version of the FISA legislation. I had previously sought to add this 
provision to the Senate Intelligence Committee's bill. This review will 
provide for a comprehensive examination of the facts of that program 
and should prove useful to the next President.
  I believe still more protections for privacy and civil liberties are 
necessary, and if this bill becomes law, I will work with the next 
administration on additional protections.
  I should emphasize that while the Inspector General provision serves 
important purposes, its inclusion in this bill is no substitute for a 
legal review of the President's warrantless wiretapping program. 
Federal judges and Inspectors General perform different functions. 
Inspector General reviews can be very useful for factual review of past 
actions, and I expect the inspectors general to undertake a probing and 
comprehensive review. But Inspectors General are not well-suited to 
determine whether the President's warrantless wiretapping program was 
legal. In fact, this bill prevents the Inspectors General from engaging 
in that kind of legal review.
  Courts, on the other hand, are well-suited to make these kinds of 
legal determinations. They do it all the time. Federal judges make 
conclusions of law every day in this country based on facts found by a 
jury or, if the right to jury trial is waived, based on their own 
factual conclusions. But this administration doesn't want this kind of 
review. It has fought for years to avoid a determination by our courts 
of the legality--or more precisely the illegality--of the President's 
program. If the administration gets its wish through passage of this 
bill, there will likely be no conclusive judgment on the lawfulness of 
the President's program--ever--and no accountability.
  I, therefore, cannot support this legislation without amendment. I do 
not believe Congress should seek to take away the only viable avenue 
for Americans to seek redress for harms to their privacy and liberties, 
and the only viable avenue of accountability for the administration's 
lawlessness. This administration violated FISA by conducting 
warrantless surveillance for more than five years. They got caught. The 
apparent purpose of this bill is to ensure that they will not be held 
to account. That is wrong. I will vote to support the amendments before 
us today to bring accountability to this legislation, but I will vote 
no in opposition to the effort to secure immunity for this 
administration's illegal activity.
  The PRESIDING OFFICER (Mr. Nelson of Nebraska). The Senator has 30 
seconds remaining.
  Mr. LEAHY. Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
  Mr. SPECTER. Mr. President, I have sought recognition to make the 
final argument in support of my amendment pending on a very vital issue 
facing this body.
  We are asked today to do two things that I believe are unprecedented 
in the

[[Page S6462]]

history of the Senate. First, we are called upon to vote on legislation 
where most of the Members admittedly don't know what we are voting on; 
second, we are stripping the Federal court of jurisdiction on some 40 
cases that have been pending for more than 3 years and are in the 
process of litigation.
  On point 2, we are flying in the face of the most fundamental 
decision in the history of the United States on constitutional law, 
Marbury v. Madison, going back to 1803, 205 years, and Chief Justice 
Marshall saying that it is emphatically the province and duty of the 
judicial department to say what the law is.
  But the Congress is now being asked by the administration to grant 
retroactive immunity to the telephone companies, where the judge who is 
presiding on the case, Chief Justice Vaughn Walker, in the Federal 
court in San Francisco, has declared that the terrorist surveillance 
program put into effect by the President violates the Constitution and 
exceeds his constitutional authority in directly violating the 
statutory provision that the exclusive way to wiretap is with court 
approval.
  Here we have a situation where it is admitted that most Members of 
the House of Representatives, according to the House leadership, have 
not been briefed on the program. What we have are allegations in the 
legal papers as to having the telephone companies act at the request of 
the Government to invade privacy, without going through the customary 
judicial process of securing a warrant.
  On the floor yesterday, after extended argument, it is plain that 
most Members of the Senate have not been briefed on this program. There 
is an old expression, ``buying a pig in a poke.'' It means buying 
something and you don't know what it is you are buying. Well, that is 
what the Senate is being asked to do today--to grant retroactive 
immunity to a program where the Members don't know what the program is. 
How does that comport with our reputation that we in the Senate so 
pride ourselves on, being the world's greatest deliberative body?
  I suggest that this may be a historical embarrassment, where we are 
voting on matters where everybody knows we don't know what we are 
voting on. The fact may be that we vote with some frequency on matters 
that we don't know what we are voting on, where we have voluminous 
reports that are impossible for any Senator to go through. But here we 
are caught redhanded. Everybody knows we don't know what this program 
is; yet we are granting retroactive immunity to the telephone 
companies.
  I believe the telephone companies have been good citizens. There is a 
way to have the telephone companies protected without giving up the 
program. That would be by substituting the Government as a party 
defendant, so you could both have the program and have the telephone 
companies protected.
  Yesterday, in an extended discussion with the chairman of the 
Intelligence Committee and other Members on the floor, I pressed to see 
if anybody knew of any case that had been pending for more than 3 
years, where Chief Judge Walker has handed down a lengthy opinion, 
running some 27 pages, on the issue of state secrets on this electronic 
surveillance. Just a week ago today, he handed down a 59-page opinion 
declaring that the Presidential power exceeded the constitutional 
authorization of article II. The first opinion is on appeal to the 
Court of Appeals for the Ninth Circuit. And here we are stripping the 
court of jurisdiction. I posed the question, Has that ever happened 
before? And it hasn't happened before.
  I intend to support the amendment and cosponsor the amendment by 
Senator Bingaman, which would follow up on what the inspectors general 
do, to have it returned to Congress to see if the program is working. 
That is a good remedial step, but it doesn't go far enough. It has too 
many ifs, ands, and buts in it. I think it is a good fallback position, 
and I will support it. I urge my colleagues not to take Senator 
Bingaman's amendment as a substitute for my amendment because it 
doesn't go as far and it doesn't reach the constitutional issues.
  We are dealing here with a matter that is of historic importance. I 
believe that years from now, historians will look back on this period 
from 9/11 to the present as the greatest expansion of Executive 
authority in history--unchecked expansion of authority. The President 
disregards the National Security Act of 1947 mandating notice to the 
Intelligence Committee; he doesn't do it. The President takes 
legislation that is presented by Congress and he signs it, and then he 
issues a signing statement disagreeing with key provisions. There is 
nothing Congress can do about it.
  The Supreme Court of the United States has gone absent without leave 
on the issue, in my legal opinion. When the Detroit Federal judge found 
the terrorist surveillance program unconstitutional, it was affirmed by 
the Sixth Circuit on a 2-to-1 opinion on grounds of lack of standing. 
Then the Supreme Court refused to review the case. But the very 
formidable dissenting opinion laid out all of the grounds where there 
was ample basis to grant standing. Now we have Chief Judge Walker 
declaring the act unconstitutional.
  The Congress ought to let the courts fulfill their constitutional 
function. It is understandable that Congress continues to support law 
enforcement powers because of the continuing terrorist threat. No one 
wants to be blamed for another 9/11. My own briefings on the telephone 
companies' cooperation with the Government have convinced me of the 
program's value, so I voted for it even though my amendment to 
substitute the Government for the telephone companies was defeated in 
the Senate's February vote.
  Similarly, with great reluctance, I am prepared to support it again 
as a last resort, even if it cannot be improved by providing for 
judicial review. However, since Congress has been so ineffective in 
providing a check and balance, I am fighting hard today again to secure 
passage of my amendment to keep the courts open.
  When the stakes are high, as they inevitably are, when Congress 
addresses civil liberties and national security, Members frequently 
must choose between the lesser of two imperfect options. Unfortunately, 
we too often back ourselves into these corners by deferring legislation 
until there is a looming deadline. Perhaps this is why so many of my 
colleagues have resigned themselves to accepting the current bill 
without seeking to improve it further.
  Although I am prepared to stomach this bill, if I must, I am not yet 
ready to concede that the debate is over. Contrary to the conventional 
wisdom, I don't believe it is too late to make this bill better. 
Perhaps the Fourth of July holiday will inspire the Senate to consider 
its independence from the executive branch now that we have returned to 
Washington.
  These issues are extraordinarily complex. It is my hope that my 
colleagues will focus on these two unprecedented acts where we are 
called upon to vote for something we admittedly do not know what we are 
voting for because we don't know what this program is; secondly, to 
take the unprecedented step of intervening in the judicial process on a 
case pending for more than 3 years in the Federal courts.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Vermont is 
recognized.
  Mr. SANDERS. Senator Leahy has yielded me his remaining time.
  The PRESIDING OFFICER. Senator Leahy only has 30 seconds.
  Mr. SANDERS. Yes. Mr. President, international terrorism is a serious 
issue, and every Member of this body has pledged to protect the 
American people, and we will do that. But we will and must do it within 
the context of the Constitution of the United States and the law of the 
land. No individual, no President, is above the law. This President, 
perhaps more than any other in history, has abdicated the Constitution 
of the United States. The time is now to stand up and say: No more.
  Let's defeat this legislation. Let's assure the American people that 
in fact we are a nation of laws, not individuals.
  Thank you.
  The PRESIDING OFFICER. Who yields time?
  The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, I ask that I be allowed to speak for up 
to 10

[[Page S6463]]

minutes. I don't expect to use all that time. And then my colleague 
from Connecticut, Senator Dodd, be allowed to speak for up to 15 
minutes.
  The PRESIDING OFFICER. That is part of the previous order.
  Mr. BINGAMAN. Mr. President, first, let me comment on the statement 
Senator Specter of Pennsylvania made about his own amendment. I support 
his amendment. I wish to make it very clear that the amendment I am 
offering is not intended as a substitute for his amendment. I favor his 
amendment. I favor the amendment I am offering as well. And, of course, 
I favor Senator Dodd's amendment as well, which he is going to speak 
about in a few moments. I wished to make that clear.
  Let me describe the amendment very briefly. I did that yesterday. 
This amendment is cosponsored by Senators Casey, Specter, Clinton, and 
Nelson of Florida. It is based on the simple proposition that we ought 
to conduct a thorough investigation before we grant any retroactive 
immunity to telecom companies.
  In my view, the structure of this bill has it backward. As currently 
drafted, it would grant immunity first, and then after those companies 
are shielded for any potential liability for their past actions, the 
legislation requires a comprehensive investigation regarding the 
company's participation in the President's warrantless surveillance 
program.
  The amendment I am offering would fix the problem by putting in place 
what I believe is a more logical process.
  As I discussed yesterday, the amendment would do three things. First, 
it would stay all the civil cases against the telecom companies as soon 
as the legislation is signed into law. Second, it would allow time for 
the inspectors general to investigate the circumstances surrounding 
this warrantless surveillance program. And third, it would give 
Congress 90 days to review the findings of that investigation before 
the companies could ask a court to dismiss the cases pending against 
them.
  I believe this is a very modest proposal. It would not change any of 
the substantive provisions in the immunity title. The amendment only 
modifies the timing of when these companies may seek immunity.
  The amendment would not prejudice or harm the telecom companies while 
the investigation is being conducted. All the civil cases would be on 
hold and neither side would be incurring litigation expenses.
  It would not create any risk whatsoever of sensitive information 
being leaked during the remainder of the litigation process. There 
would be no evidence submitted to the court during this period of stay. 
There would be no discovery. There would be no classified information 
being discussed. As I have stated, the cases would be stayed, would be 
on hold.
  Lastly, the amendment would not hamper our Nation's ability to 
collect necessary intelligence. The amendment does not limit any of the 
authority being provided to the Government under this legislation to 
conduct foreign intelligence gathering. It would not discourage telecom 
companies from assisting the Government in the future. Under this 
legislation, companies would still be required to comply with lawful 
directives and would receive liability protection for any help they 
provide.
  But the amendment does do something that I believe is very important. 
It would ensure that before these cases may be dismissed, Congress has 
an opportunity to know exactly what illegal acts, if any, it is 
forgiving. The Senator from Pennsylvania made a very strong case that 
Members of the Senate do not know what it is we are granting immunity 
for at this stage.
  I believe the American people expect Congress to act in an informed 
manner. Quite frankly, other than select members of the Intelligence 
and Judiciary Committees, this Congress has not been fully informed 
about the circumstances surrounding this program. That is precisely why 
the investigation that is required under the legislation is so 
important and precisely why it is so important that we get the results 
of that investigation before we proceed.
  We are talking about a program that was not conducted in accordance 
with the law and from what we do know may have violated the 
constitutional rights of many innocent Americans. I hope my colleagues 
will agree it is reasonable to keep these suits from being dismissed 
until at least we have a complete picture of what actions we are 
shielding from liability.
  I yield the floor and yield back the remainder of my time.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Mr. President, let me first, as I did last evening, begin 
by commending our colleague from West Virginia, Senator Rockefeller, 
who has the unenviable task of chairing the Intelligence Committee, a 
complex committee with very serious issues before it. Whatever 
differences we have should not in any way suggest a lack of 
appreciation for what he and his staff and others do to try and bring 
forth legislation to allow us to balance the needs of our security as 
well as our rights as citizens.
  It is that very question which draws me to this amendment I offered 
which will be subject to a vote in a few minutes. This is a debate that 
has gone on for the last 7 months, beginning with the Judiciary 
Committee's reports of last fall, a debate last December and that 
continued into January and has been going all winter and spring and 
about to be culminated with the decisions we are about to make over the 
next hour or so, including the amendment being offered by Senator 
Specter and Senator Bingaman, both amendments I intend to support.
  The amendment I have offered, along with Senator Feingold and a 
number of our colleagues, simply strikes title II of this bill. Title 
II of this bill is the title that grants retroactive immunity to the 
telecommunications industry.
  The facts are very clear. The telecommunications industry, based on 
some documents, possibly a letter or others, decided it was appropriate 
for them to gather virtually all the e-mails, telephone conversations, 
and the like, of millions and millions of Americans, over a period of 5 
or 6 years in the wake of 9/11. As I said repeatedly, had this gone on 
a month or a year or so, I would not have raised objections, given the 
emotion surrounding the attack on our country. But this program, I 
suggest, would still be ongoing had it not been for a whistleblower who 
helped identify the program.
  This is not an issue of whether we disagree at all with revising the 
Foreign Intelligence Surveillance Act to comply with the needs as our 
enemies gather more sophisticated means by which they can do us harm. 
It is the age-old question which has confronted this Republic of ours 
for 232 years. And that is: How do we balance security with 
simultaneously protecting the rights under our Constitution? Every 
generation who has preceded us has wrestled with this question.
  The one issue we do not subscribe to is the notion that to be more 
secure, you have to give up rights. That is a fundamentally flawed 
idea. Every generation who has suggested and adopted it has regretted 
it in one case after another. Whether it was internment of Japanese 
Americans out of fear and other such cases, in every instance when we 
abandoned rights for security, we have come to regret it deeply.
  I come, again, to offer this idea to allow the judiciary to do their 
job. That is what they exist for, that is why the Founders created 
three coequal branches of Government--the executive, legislative, and 
judicial branches.
  We are not deciding the case. We are merely saying the courts ought 
to do that. Retroactive immunity for companies that may have broken the 
law may well soon become the law. That is the danger. As certain as it 
appears the outcome of the votes will be, equally certain, in my view, 
is that this matter will not end today regardless of what we do. This 
will end up in the courts, and there, not only the wisdom of granting 
retroactive immunity to these companies will be questioned but the 
constitutionality of that decision.

  I have spoken at length about this legislation. It subjugates the 
role of the courts. But even as this body moves forward with this bill, 
opponents of retroactive immunity can take some solace in knowing it 
will still ultimately be the judiciary that decides the 
constitutionality of this action, as the Framers intended.
  I can hardly see how it would have passed muster with our Founders. 
It was, after all, James Madison who said:


[[Page S6464]]


       I believe there are more instances of the abridgment of the 
     freedom of the people by gradual and silent encroachments of 
     those in power than by violent and sudden usurpations.

  He spoke those words at the Virginia Convention to ratify the U.S. 
Constitution.
  I can hardly see how men who did not simply utter such sentiments, 
but rather sacrificed everything in the name of them, could have 
envisioned America ceding her hard-fought liberty in a moment of fear 
or weakness.
  Is this bill constitutional? This is not for me or any one of us to 
decide. I am not a judge. None of us are. We are not a jury in this 
case. None of us are. We are Senators who treasure the document we have 
sworn to uphold. I have kept a copy with me every day, going back the 
27 years I have served in this body.
  What is for this body is to decide how we best safeguard our Nation's 
security. Greater security for our citizens is what, of course, all of 
us want from this bill. But if we have learned anything from this 
administration, it is that there is a right way to protect our Nation 
and a wrong way.
  We learned that when even those of us in this body act with the best 
of intentions, we can still do lasting damage because we are not acting 
with foresight and prudence but with an impulsiveness and, in too many 
cases, out of fear.
  No one doubts for a moment the gravity of the threats we face or 
continue to face. No one suggests we do not have an obligation to 
monitor terrorists' communications with the utmost of vigilance. I wish 
to make sure the Government has every tool it needs to do so. I have no 
interest whatsoever in denying our Government what it needs to make our 
country safe. I want our President to have the capabilities to stop 
terrorists before they act, before they inflict harm on our country, 
our communities, and our families. I think we can and must do that in a 
way that balances national security with our rights and liberties.
  But for reasons I have described at length in previous debates, this 
so-called compromise strikes no balance at all, in my view.
  Let us be very clear, the courts have continuously shown an ability 
to handle cases with sensitive security issues. Chief Judge Vaughn 
Walker, a Ronald Reagan appointee to the District Court to the Northern 
District of California, who has virtually overseen all the cases 
challenging the NSA's warrantless wiretapping program, demonstrated 
this once again.
  In a case against the Government, Judge Walker recently ruled ``FISA 
preempts the state secrets privilege in connection with electronic 
surveillance for intelligence purposes . . . '' This ruling suggests 
that in suits against the telecommunications companies, they will be 
able to defend themselves and not be hamstrung by the state secrets 
privilege. At the very least, this decision highlights how premature it 
would be for Congress to grant retroactive immunity at this time.
  The sum and substance of our argument is very simply this: Now is not 
the time to close the courthouse doors on this issue. I cannot say it 
enough. My trust remains in the courts in cases argued openly and 
judges presiding over them and juries of American citizens who decide 
them. Our courts should be a source of our pride, not our 
embarrassment. They deserve the chance to do the job the Framers 
intended them to do.
  As complex, as diverse, as relentless as the assault on the rule of 
law has been, our answer to it is a simple one. Far more than any 
President's lawlessness, the American way of justice remains deeply 
rooted in our character as a people that no President can disturb. That 
is why, even on this day, I remain full of hope and faith that we can 
unite security and justice because we already have over the 
generations.
  I harbor no illusions about what is about to happen with this 
legislation or its consequences. But even as this long fight draws to a 
close, it is worth pausing for a moment to recognize those who have 
joined us in writing its many chapters. They have not been written by 
any one hand alone.
  Senator Russ Feingold of Wisconsin has fought this battle with me 
from the very beginning. His leadership has been articulate, his 
commitment unwavering and unyielding.
  The Senator from Vermont, Mr. Leahy, the chairman of the Judiciary 
Committee, fought valiantly to bring the Senate Judiciary Committee 
version of this bill that he crafted to the floor of this body. He has 
been a staunch opponent of retroactive immunity.
  The majority leader, Harry Reid of Nevada, has stood with us on this 
fight. I thank him for it as well. It has not been easy to have been 
the majority leader taking the position he has and also managing this 
bill to move forward. Even as he fought and sought to balance his 
personal opposition to retroactive immunity with his responsibility to 
move this legislation as leader, he has given us every opportunity to 
speak out against this legislation. He has worked hard to make sure the 
world's foremost deliberative body, as it is often called, would, 
indeed, be given a chance to deliberate over a matter that goes to the 
very core of who we are as a republic. In Congresses past, I cannot 
say, with certainty, that my colleagues and I would have been afforded 
the opportunity the majority leader has given each and every one of us, 
and I thank him for it.
  Lastly, I thank the thousands who joined with us in this fight around 
the country, those who took to the blogs, gathered signatures for 
online petitions, created a movement behind the issue, men and women, 
young and old, who stood up, spoke out, and gave us the strength to 
carry on in this fight. Not one of them had to be involved, but they 
chose to be involved for one reason and one reason alone: their deep 
love for this country, the Constitution, and its liberties. They remind 
that the silent encroachment of those in power, as Madison spoke of, 
can, in fact, be heard if only we are willing to listen.
  All of us, my colleagues and citizens around the country, share a 
fundamental belief in our Constitution. We believe our constitution 
isn't incidental to our security, rather it is its very foundation. 
This notion that it is the rule of law that keeps us safe should not be 
controversial. There should not be a partisan divide. I take no 
backseat, as no one does, when it comes to protecting America's safety 
and security. But if history has taught us anything, it simply doesn't 
require sacrificing our freedoms to do that.
  I do not believe history will judge this President kindly for his 
contempt of the rule of law. But will history be any kinder to those of 
us who have served as these transgressions have occurred on our watch? 
I have two young daughters. Their generation is going to ask their 
parents and grandparents some very pointed questions:
  Where were you when the President asked you to repudiate the Geneva 
Conventions and strip away the rights of habeas corpus? Where were you 
when stories of secret prisons and outsourced torture first began to 
surface and then became impossible to deny? And of today, they will 
ask: Where were you when Congress was persuaded to shield wealthy 
corporations that may well have knowingly acted outside of the law to 
spy on our fellow citizens? Where were we in that debate?
  History will not forget. It will not forget our role in any of this. 
And just as surely as subsequent generations will ask all of us those 
questions, what will be clear is that we will have failed to ask 
ourselves one very fundamental question: Does America stand for the 
rule of law or for the rule of men? That question never goes away. It 
has been the same question asked for more than two centuries. It has 
been with us, of course, these past 7 years in very strong and poignant 
ways. It will haunt us long after this bill passes, long after this 
administration recedes into history, long after we all have passed into 
history ourselves. Indeed, generations of leaders and free societies 
have struggled to answer the question for thousands of years.
  That is the question every generation must answer for themselves. It 
is a battle for the American soul, waged between our better angels and 
our worst fears. Our Founders answered the question correctly. I ask 
the question: Will we?
  Mr. President, allow me to close with one of my favorite quotations, 
one I have recited many times on the floor of this Chamber. It is from 
Justice Robert Jackson's opening statement at the Nuremberg trials in 
the summer of July of 1945. He said . . .


[[Page S6465]]


       That four great nations, flushed with victory and stung 
     with injury, stay the hand of vengeance by voluntarily 
     submitting their captive enemies to the judgment of the law 
     is one of the most significant tributes that Power has ever 
     paid to Reason.

  The tribute that Power owes to Reason is as clear today as it was 
when those words were spoken more than half a century ago. That America 
stands for a transcendent idea; the idea that laws should rule, not 
men; the idea that the Constitution does not get suspended for 
vengeance; the idea that when this Nation begins to tailor its eternal 
principles to the conflict of the moment, it risks walking in the 
footsteps of the very enemies we despise. As Margaret Thatcher said: 
``When law ends, tyranny begins.''
  Today, let us pay the tribute that Power owes to Reason today--in 
this moment, with these votes. I implore my colleagues to vote against 
retroactive immunity, against cloture, and above all, for the rule of 
law.
  Mr. President, I yield the floor.
  Mr. ROCKEFELLER. Mr. President, yesterday, we heard some discussion 
of last week's decision in the district court in California. In that 
case, the court ruled that FISA limits the power of the executive 
branch to conduct foreign intelligence surveillance activities and 
limits the executive branch's authority to assert the state secrets 
privilege. That opinion, however, is only minimally relevant to the 
debate before us today for three reasons.
  First, the decision was in a case against the U.S. Government. In 
contrast, title II applies only to cases against telecommunications 
companies, not to suits brought against the Government. The case will 
therefore be unaffected by title II.
  Furthermore, because a provider could be entitled to protection from 
suit under existing law even if the Government acted 
unconstitutionally, this decision does not resolve the question of 
whether telecommunications companies acted lawfully or should be 
entitled to immunity.
  Second, the decision in the case is only one step in a lawsuit that 
may continue in the district court and which will likely be appealed. 
This decision, which is a long way from being final, does not affect 
the need for the Congress to act on this legislation.
  Third, the court found that the civil liability provisions of FISA 
trump the state secrets privilege only to the extent that those civil 
liability provisions apply. This is not a broad exemption to the state 
secrets privilege. The opinion does not change the fact that the 
companies are and, unless we pass title II, will continue to be unable 
to assert their statutory defenses because of the Government's 
assertion of the state secrets privilege.
  The one thing that the decision shows us is that the court can 
consider the issue of constitutionality in those suits being brought 
against the Government. Congress therefore does not need to require the 
courts to consider that issue in suits against private companies.
  The PRESIDING OFFICER (Mr. Casey). The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, is there a time set for the beginning 
of the votes?
  The PRESIDING OFFICER. There is not. There is approximately 30 
minutes of debate remaining.
  Mr. ROCKEFELLER. This Senator wanted to be clear about that because 
Senator Bond will be coming. I will speak shortly, and then he will 
come down to speak also.
  Mr. President, we are at quite a remarkable period now, because we 
are actually closing the debate on something which we have been 
discussing in this Chamber, in committees, around the Congress, in the 
press, in general, for quite a long time. It has been an amazing 
debate, and today we close debate on the Foreign Intelligence 
Surveillance Act Amendments of 2008.
  I wish to thank all of my colleagues for engaging in this critically 
important debate, both on and off the Senate floor, whether for or 
against whatever amendments we will be voting on today. People have 
expressed their principles, they have been articulate, they have spoken 
with restraint and dignity and eloquence, and I respect that very much. 
I think that is the essence of senatorial behavior. We have vigorously 
debated the appropriate controls for electronic surveillance to collect 
foreign intelligence information since the disclosure was made 2\1/2\ 
years ago about the President's wireless surveillance program, which is 
a travesty--a travesty from 2001 to 2007. An absolute travesty. And 
because of the contributions not only of those who have supported 
earlier versions of this legislation but also of those who have opposed 
various provisions to deal with those issues, we have moved forward to 
craft, in this Senator's judgment, a strong bipartisan, bicameral 
compromise that is supported not just by the Senate but also by the 
House, which was unwilling to support it before at all, but also by the 
Attorney General and the Director of National Intelligence, both of 
whom are entirely relevant to what is in this bill and what is to be 
said about what is in this bill.
  This final product is critical to the Nation's security. I am aware 
of both our rights and our security. In my job as chairman of the 
Intelligence Committee, I have to look at both. I was brought up in a 
tradition, in a family which worried about rights, and I have fallen 
into a position where I am in a position to see what goes on in this 
world. In a post-9/11 situation, it is very different. It is like 
comparing fighting wars against the Soviets as opposed to against al-
Qaida, the Taliban, or whatever it is. It is a very different world. 
You can't tell who anybody else is, you can't tell what their 
intentions are, you can't tell what is in a suitcase which might be 
lying anywhere in this building or anywhere else.
  When you walk around this Capitol, you see levels of security which 
you have never seen before. We frequently evacuate this building and 
our offices, all because of what happened on 9/11, and what had been 
planned well before that. So it is serious. And not that it makes any 
difference--it makes us no more important than any other citizen in the 
United States--but we do know that United Airlines 93 was headed for 
this building and for this complex. So there is an instinct to 
understand that those who oppose us and who would have us change our 
way of life and punish us for what they see as our sins are very 
serious in their work, patient in their work, and willing to wait to 
continue their work.
  The final product is, therefore, critical to the Nation's security, 
and it sets forth a legal framework to reflect the enormous changes in 
telecommunications technology over the last 30 years. The bill couples 
this improvement in foreign intelligence collection against foreign 
targets overseas with important protections for civil liberties, 
including the review by the Foreign Intelligence Surveillance Court of 
the targeting and minimization procedures governing these collection 
activities.
  In addition, the bill ensures that when Americans overseas are the 
target, that a FISA Court judge, rather than the Attorney General--in a 
very important change--decide that there is clear authority and 
probable cause for intelligence agencies to target such an individual.
  The bill also requires the Attorney General to develop guidelines to 
prevent prohibited activities, such as reverse targeting. That was put 
before us by Senator Feingold, who is in opposition to this bill but 
who made that contribution to this bill, along with others, to ensure 
individual FISA Court orders are obtained, when required.
  You can't do anything these days without a FISA Court review if you 
are in the Government. You can't do anything. That is only title I of 
the bill, not title II.
  There are new oversight and reporting requirements to Congress in the 
agreement and a sunset date that means these issues will be addressed 
during the next administration. And I think that is very important, 
because some people said: Well, let this law be permanent and forever.
  There were those of us who didn't want that to happen. We said: We 
are in new territory here. It is a post-9/11 world. It is very 
different. So we need to put down into law what we believe, but we also 
need to go back and review that, to make sure we have done it 
correctly. So in a period of 4\1/2\ years, during the administration of 
the next President, he will be able to review, along with us, what we 
have done and

[[Page S6466]]

decide if we need to make any changes. I like that. I think that is 
fair. I think that is democratic.
  Certainly the most controversial aspect of this legislation has been 
those provisions that set standards and procedures that allow the 
courts to find limited immunity protection for electronic communication 
service providers alleged to have assisted the Government in the 
President's warrantless surveillance program. Under this agreement, 
however, these provisions are not the blanket immunity that the 
administration first proposed, nor are they a statement by the Congress 
either pro or con on the legality of the program.
  We have debated these liability protection provisions in great depth 
over the past 2 days--over the past 2 years, really. As I have said in 
opposition to the amendments that were offered to strike or amend the 
limited liability provisions, I am convinced the bill takes the right 
approach. We did have efforts to have substitution rather than 
immunity, and they were defeated. They were defeated in the Judiciary 
Committee, they were defeated on the floor of the Senate, and it was 
thought if they would be brought up again, they would have been 
defeated again. So we have been through this. The Senate has worked its 
judgment on that approach.
  I believe the requirement in the bill for the inspectors general to 
complete a comprehensive review of the President's program is much more 
likely to provide the American people a complete set of facts about the 
program on a timely basis, to the extent that classification permits, 
than would continuation of the pending litigation. In other words, we 
have improved it.
  And to be quite honest, we passed this 13 to 2 in committee, and then 
with 68, 69 votes, whatever it was in the Senate, we passed the Senate 
bill that came out of the Senate Intelligence Committee, but the House 
had not. They were not happy. They had their reasons. And so we went to 
them, the vice chairman, Christopher Bond, and myself and our staff, 
and we worked with them endlessly. We worked with the White House, to 
some extent; with the DNI, the Director of National Intelligence, the 
Attorney General's office, extensively working through individual ways 
of compromising to make sure that we could protect companies that 
provide the intercept and the collection of communications we need to 
get, but to do so in a way which made it clear that the Government was 
the issue, not them. And we have done that.
  Finally, with this agreement, we settle the issue of whether past or 
future congressional authorizations for the use of military force that 
do not include a reference to surveillance may be used to justify the 
conduct of warrantless electronic surveillance. This was an 
extraordinarily important thing to do, and Senator Feinstein deserves a 
lot of credit for that--the exclusivity amendment. We have said you 
cannot conduct any of this collection outside of FISA. You have to have 
a warrant. You cannot go outside. You cannot use what the President 
likes to refer to as inherent powers to do anything he wants. You can't 
do that. You have to have authorization from the Congress in order to 
do that. That is clear--for the first time in this bill. That is huge. 
That restricts some of the comments we have been hearing earlier.

  FISA remains the exclusive means by which electronic surveillance or 
interception will be conducted from this point forward unless the 
Congress sees some reason to make it either stronger or whatever. With 
enactment of this bill, there will be no question that Congress intends 
that only an express statutory authorization for electronic 
surveillance or interception may constitute an additional exclusive 
means for that surveillance or interception. In other words, you cannot 
do anything more without congressional authorization. That is 
oversight. That is what we ought to be doing. It is what we should have 
done but we didn't do. The world changed. We didn't change quickly 
enough. But we have changed enormously in this bill.
  This is buttressed further with the clarification that criminal and 
civil penalties can be imposed for any electronic surveillance that is 
not conducted in accordance with FISA or specifically listed provisions 
of title 18.
  In closing, I would like to address my colleagues who would have 
preferred a different result than the agreement before us today. I urge 
them not so much now--there being not much time--but I urge them in the 
coming days, weeks, and months to look at this legislation in its 
entirety; not to think about a single point here or a single point 
there but to look at the whole texture of it. This is what we are 
doing. That is why we have a sunset date, so we will again be looking 
at it, looking at the larger picture, seeing what the balance really is 
and are we keeping it properly as between safety and civil rights, 
individual rights. That is very important.
  This is a bill which provides a framework and stability within the 
Foreign Intelligence Surveillance Act for a collection system that will 
work well for national security. That is very important to this Nation. 
That is very important to this body and to every single American. This 
bill is vastly better than the Protect America Act, obviously, enacted 
last August, and much preferred to any additional short-term extension 
of that flawed statute--which was one approach. This is a bill which 
contains important safeguards for civil liberties and effective 
mechanisms for oversight.
  I do not think any of the committees that deal with these measures 
will ever be the same again, nor have they been in the last year and a 
half with respect to oversight. The vigor, the passion with which we 
sought, leveraged, coerced in some cases, the administration to make 
more people read into the program, to make more people a part of the 
discussion, make more people a part of the knowledge which they held so 
closely to themselves--I remember at one point I was one of 4 out of 
535 people who were briefed on the program, and they kept saying on 
television: The Congress is briefed. And this was a joke, this was a 
farce. I will not go into it further but, believe me, it was. They did 
not do that, they did not want to do that. That is their nature. Now it 
is different. Now we are all over them. And we have a lot more to do 
before this Congress gets out with respect to the oversight factor of 
Congress, which is so important to us and to the Nation.
  Support for the agreement says to the intelligence professionals who 
will implement the new authority that Congress takes seriously its 
oversight responsibilities. Some of them do not like that fact. They do 
not want us to. They want to be able to do what they have always done 
because they could do what they always wanted to do--before the world 
changed. Now they cannot. Yes, we have had intelligence committees for 
a long time, and, yes, they have done work for a long time, but there 
has never been a greater need for tough oversight.
  Sometimes when the Director of the CIA calls me--and I don't think I 
am saying anything privileged here--and he wants to tell me about 
something good that has happened--it is a secure conversation on a 
secure phone--I say: Look, when I hear from you, I want to hear what 
you want to tell me that is good, and I also want to hear from you 
about something that is not working right.
  That is the pattern which is developing. They are a little more timid 
about coming up to us. We have to negotiate more to have them come 
before us, but we do it because we need them and they need our 
oversight. They are not free to do entirely what they want to do, but 
we have to give them the full right to keep us safe, yet balance, as I 
believe we do in this bill, civil liberty protections.
  I simply close by congratulating all people involved. I think for a 
subject which was meant to be understood by so few in this body, many 
people have expressed views on the floor and to many of us in private. 
It has been the subject of caucus discussions.
  It is a major piece of legislation, and I urge my colleagues to 
oppose the three remaining amendments, and I urge my colleagues to vote 
yes on final passage. They will serve their Nation well.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, is there an order established 
here under unanimous consent?
  The PRESIDING OFFICER. There is 3 minutes remaining for the Senator

[[Page S6467]]

from Wisconsin, Mr. Feingold, and 9 minutes for the Senator from 
Missouri, Mr. Bond.
  Mr. NELSON of Florida. Will the Senator allow me to have a couple of 
moments?
  Mr. BOND. Off Senator Feingold's time.
  Mr. NELSON of Florida. What is the procedure? Since Senator Feingold 
is not here, is that locked in as such for him?
  Mr. ROCKEFELLER. Mr. President, might I inquire whether that was 
entirely necessary--or, rather, of the Parliamentarian--is that 
entirely necessary? The Senator does wish to speak. We are not starting 
votes quite yet. There does not seem to be a total limit on that, a 
time set for that, and the Senator has been wanting to speak for a 
number of days. I would be happy if he would be able to do that.
  The PRESIDING OFFICER. There is only 3 minutes on the majority side 
for Senator Feingold. It would require unanimous consent.
  Mr. ROCKEFELLER. What about leader time?
  The PRESIDING OFFICER. Only the leader has leader time.
  Mr. ROCKEFELLER. And that is correct.
  The PRESIDING OFFICER. The Senator from Washington is recognized.
  Ms. CANTWELL. Mr. President, I rise today to express my strong 
disappointment with the FISA Amendments Act of 2008, H.R. 6304. While 
proponents of this bill have claimed this bill was designed to monitor 
foreign-to-foreign communications that pass through the U.S. without a 
warrant, the bill actually goes much further--providing a broad 
expansion of authority to conduct domestic surveillance.
  We all want to protect our country's national security interests and 
protect Americans from those who would do us harm, but to do so without 
accountability or without adequate checks and balances is contrary to 
the vision of our Founding Fathers.
  I recognize that some changes have been made to this bill over the 
past 6 months but those cosmetic changes have failed to adequately 
protect the privacy rights of innocent Americans.
  This bill permits the Government to collect all Americans' 
international communications, even communications of innocent Americans 
with no connection to terrorism or other national security concerns. 
This bulk collection of innocent Americans' private communications is 
unacceptable and contrary to American values and fundamental 
Constitutional protections.
  While this administration has ignored the congressional mandate that 
the Foreign Intelligence Surveillance Act is the exclusive means for 
conducting wiretapping activities on American citizens, Congress can 
not ignore the weighty constitutional issues being decided here today.
  I am also very troubled that telecom companies will not be held 
accountable for participation in the Bush administration's warrantless 
surveillance program. Congress should not be providing blanket immunity 
for telecommunications companies that cooperated with the 
administration's warrantless wiretapping programs. We don't know 
precisely what those companies did or the full extent of what they did.
  This bill effectively grants retroactive immunity to companies that 
aided the Bush administration's warrantless wiretapping over the last 7 
years. It would effectively dismiss 40 cases pending against the 
telecommunications companies that are undergoing judicial review. 
Judicial review is a critical component of our Government to check 
potential overreaching by the executive branch.
  This administration wants to ensure that no court has the opportunity 
to review potential illegal activity, effectively slamming the door 
shut before the judicial system can determine whether American 
citizens' rights were violated.
  This is why I voted in support of Senator Dodd's amendment to strike 
the immunity provision today, and I am disappointed that it was not 
adopted. Congress should respect judicial review and not take away the 
only opportunity for redress available to American citizens for 
potential overreaching by this administration.
  According to public documents and media reports, a telecom company 
allegedly split off a copy of the Internet traffic transported over 
fiber-optic cable running though its San Francisco office and diverted 
it to another room under the supervision of a Federal Government 
agency, where the copy was transported to equipment that could review 
and select out the contents and data mine call patterns of 
communications.
  The reason I say allegedly is because all the details are classified, 
sources and methods, and those who do not know can at best only make 
educated guesses while those who do know can not or will not say.
  Now the Electronic Frontier Foundation believes that the telecom 
company has deployed similar facilities in 15 to 20 different locations 
around the country, implying a significant fraction of the 
communications to and from the telecom firm's domestic customers could 
have been examined illegally. And it is critical that we get to the 
bottom of this.
  Congress would be acting even though only last week Judge Walker 
issued a key ruling holding that held that the government could not 
prevent plaintiffs from submitting unclassified evidence to support 
their claims against telecommunications companies. Congress should 
respect the judiciary's role and allow it to move forward with these 
cases.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. BOND. Mr. President, how much time do I have?
  The PRESIDING OFFICER. Nine minutes.
  Mr. BOND. I yield a minute and a half to my distinguished colleague 
from Florida.
  Mr. NELSON of Florida. I am grateful to the vice chairman. I wish to 
say--and I will do it in a minute and a half--how much I appreciate the 
chairman and vice chairman being able to come up with a product that we 
need so we get some certainty about the court review of this process so 
we can balance this interest of going after the terrorists but at the 
same time protecting the civil liberties of American citizens and 
American persons who are here legally in the country. I think the bill 
does that. We have struggled with it for a year and a half in our 
committee. I am certainly going to support the final product.
  There are obviously some matters we have had in the Intelligence 
Committee that we are not able to discuss here. I am sure the people 
listening understand that. I just want to say on the controversial 
issue of immunity that I do not believe in blanket immunity for the 
phone companies, and that is why, when this issue was in front of our 
Intelligence Committee, I offered language to deny them immunity. But 
it failed, my amendment, and it failed miserably. So when it came to 
the floor, I offered a compromise to the full Senate, along with 
Senator Feinstein, that would have required a special court to review 
the phone companies' action, but that failed as well.
  Now I am backing an amendment by Senator Bingaman that would at least 
delay immunity until the inspectors general of the U.S. Government 
complete their investigation of the President's warrantless wiretapping 
program. Upon completion of the report, the Senate will have 90 days to 
act before immunity is granted to the telecommunications companies. 
This will allow us time to change some minds if real wrongdoing is 
found.
  Overall, I believe this legislation significantly improves civil 
liberties protections for Americans while enabling our intelligence 
community to listen in on terrorists. This is an important step forward 
and I will support this legislation.
  Mr. BOND. Mr. President, I thank the distinguished Senator from 
Florida, who has been a hard-working member of the Intelligence 
Committee and has been a great contributor. I am sorry he does not 
agree with the compromise we reached with the House to have the 
district courts make a review. I think that is important. That 
satisfies our needs.
  Several points made on the floor today and previously need to be 
answered. It has been said that the new surveillance powers allow the 
Government to collect all communications between the United States and 
the rest of the world, millions and millions of communications between 
innocent Americans, parents calling children

[[Page S6468]]

abroad, people serving in Iraq. There is no prohibition on reverse 
targeting.
  A plain reading of the bill shows us that this statement is simply 
inaccurate. As the Senator from Utah said earlier today: Unless you 
have al-Qaida on your speed dial, you are not going to be collected 
against. There are safeguards in place to ensure that any conversations 
that do not have foreign intelligence information will not be kept or 
shared, they will be minimized or suppressed.
  Americans either inside or outside the United States may not be 
targeted without court order. That ``outside of the U.S.'' protection 
was something we added on a bipartisan basis in the Senate Intelligence 
Committee.
  In addition to approving any collection against Americans, anybody in 
the United States, an American overseas, the FISA Court will review all 
procedures used to target foreign communications and make sure that 
communications with innocent Americans are minimized or suppressed.
  As far as reverse targeting goes, I refer my colleagues to section 
702(B) of the bill which says:

       An acquisition authorized under subsection 8 may not 
     intentionally target a person reasonably believed to be 
     located outside the United States if the purpose of such 
     acquisition is to target a particular known person reasonably 
     believed to be in the United States.

  I can assure you that I and other members of the Intelligence 
Committee have reviewed the procedures, have seen the operations, know 
the supervision, and know the very tight constraints under which these 
professionals operate. They are overseen by supervisors, by higher 
level authorities, by inspectors general, by lawyers, their own 
lawyers, and lawyers from the Department of Justice. Somebody made an 
error and collected some criminal information a year or so ago and that 
was dealt with appropriately. There is no ability for somebody, even a 
rogue who happens to get in, to get away with targeting innocent 
American communications.
  There has been a lot of debate also about the Senators having access 
to all of the information. As I pointed out earlier, we set up the 
Senate Select Committee on Intelligence to provide the most highly 
classified information to members of the committee. I have worked hard 
with the chairman, and we have opened to the full Intelligence 
Committee far more information than we ever got before, because I 
believe the Intelligence Committee has a heavy responsibility to make 
sure that what is being done stays within the law, stays within the 
guidelines, and protects the rights of American citizens.
  But if you say that every intelligence matter should be briefed to 
the entire Congress, where does that stop? Should we then brief the New 
York Times directly so they can publish a story and decide whether the 
intelligence activity is acceptable? I think not. I think we have seen 
the problems that occur when leaks have compromised our intelligence. 
They have done it too often.
  Some people still want to debate the legality of the TSP, saying it 
is blatantly illegal. Well, they persist in their belief that the 
President lacks the constitutional authority to conduct warrantless 
foreign intelligence surveillance, even though article II has not 
changed in over 200 years.
  The FISA Court itself, en banc, In re: Sealed Case, has noted the 
President has that authority, and if the Congress tried to pass a law 
saying the President does not have that authority, it would be found to 
be unlawful.
  The intelligence community has been overseen by the Intelligence 
Committee, and we have found clearly that the companies acted in good 
faith. Regardless, however, of the legality of the President's TSP, it 
is a matter of fundamental fairness. These providers should not be 
punished by forcing them to litigate frivolous claims or by delaying 
this much needed relief.
  Without these companies, without their active participation on this 
and many other matters, the intelligence community is fearful and has 
lost cooperation in the past. They are taking risks by being good 
patriotic Americans, and there are some who want to punish them. They 
want to kick them to get at the administration. Well, this bill does 
not prohibit lawsuits against the Government or Government officials.
  I believe the time has come for us to pass a bill after 15 months. We 
now know that we have before us the ability to give clear authority, 
direction, and guidelines to the intelligence community to operate to 
keep us safe. We have added new protections, and if the President had 
not followed the advice of the ``gang of eight'' and had tried to 
reform the FISA rather than using article II, we would not only be 
debating September 11, there would be many others.
  I urge my colleagues to vote down all these amendments and pass this 
badly needed modernization of intelligence collection, electronic 
surveillance, and the provisions of the additional privacy rights and 
protections for American citizens.
  I yield the floor.


                           Amendment No. 5064

  The PRESIDING OFFICER. There will now be 2 minutes of debate equally 
divided prior to a vote on the amendment offered by the Senator from 
Connecticut, Mr. Dodd.
  Mr. ROCKEFELLER. All time has been yielded. I ask unanimous consent, 
en bloc, that the vice chairman and I ask for the yeas and the nays on 
all of the upcoming votes.
  The PRESIDING OFFICER. Without objection, the yeas and nays may be 
requested on all three amendments.
  Is there a sufficient second?
  There appears to be a sufficient second.
  The yeas and nays are ordered.
  The Senator from Connecticut.
  Mr. DODD. There is 2 minutes equally divided?
  The PRESIDING OFFICER. The Senator is correct.
  Mr. DODD. Mr. President, this has been a long debate. It started last 
fall. Again, let me commend the two members here, the chair and ranking 
member of the committee. I respect their efforts. But my friend from 
Missouri has made my case. This is a matter for the courts to decide, 
not for the legislative branch to decide. It is why we have three 
coequal branches of Government.
  It is not our business as a juror and judge to determine the legality 
of what occurred here. This much we do know through published reports: 
Since 1978, 18,748 requests for warrants from the FISA Court have been 
granted; 5 have been rejected.
  Why did this administration not proceed with the normal course of 
events here and seek justification and legal authority for the 
vacuuming up of private information of American citizens? All of us 
here want our agencies to do everything they can to protect our 
security. But all of us equally care about the liberties of our 
country.
  The false dichotomy that is being suggested by what is in this bill, 
that in order to be more secure we have to give up rights, is a 
dangerous dichotomy. It is a false choice.
  Previous generations have made it. We should not. Let's strike this 
title, allow the courts to determine whether what occurred was legal 
and then proceed.
  Some of the companies did not do what others did because they felt it 
was not legal, what they were being asked to perform. Clearly there was 
some doubt in the minds of people as to justification. So I happen to 
believe the best way to proceed, as did Judge Walker, appointed by 
Ronald Reagan to the district court which has handled most of these NSA 
cases in the past, that the secret privilege will be protected, the 
court can do its job and determine the legality here. It is not the 
place for the Senate to act as the judicial branch of Government. That 
is why the Founders created three coequal branches of Government. That 
is what the issue is, the rule of law or the rule of men. That is what 
this amendment does by striking this title and allowing these matters 
to go before the court. I urge the adoption of the amendment.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Permit me to relieve the Senator from Connecticut, a good 
friend and a good legislator, of some of his concerns. No. 1: During 
the President's terrorist surveillance program, even though it was 
operating under article II, he went to the FISA Court to get warrants 
for listening in on American communications, the same procedure we have 
outlined in this bill

[[Page S6469]]

today. But what he was able to do was to listen in on terrorists 
reasonably believed to be abroad, which is now included in our bill.
  Article II is clear that he has that right. Article II was used by 
President Bill Clinton for a physical search, a physical search of 
Aldridge Ames' home; and the Congress responded by giving him more 
power.
  Secondly, it is said that the article II should be challenged. I 
point out that there is no ban, no ban on lawsuits such as a lawsuit 
before Judge Walker, on lawsuits going forward against the Government 
or Government officials.
  The Intelligence Committee conducted a comprehensive review of the 
TSP. We determined, on a strong bipartisan basis, that the providers 
acted in good faith pursuant to representations from the highest level 
of the Government that the TSP was lawful. It is not right to punish 
patriotic Americans who step forward and help their Government by 
subjecting them to harassment of lawsuits.
  I urge the defeat of the amendment.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 32, nays 66, as follows:

                      [Rollcall Vote No. 164 Leg.]

                                YEAS--32

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

                                NAYS--66

     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
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kohl
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCaskill
     McConnell
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Salazar
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Wicker

                             NOT VOTING--2

     Kennedy
     McCain
       
  The amendment (No. 5064) was rejected.


                           Amendment No. 5059

  The PRESIDING OFFICER. There will now be a period of 2 minutes of 
debate, equally divided, prior to a vote on the amendment offered by 
the Senator from Pennsylvania, Mr. Specter.
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, the Senate is not in order.
  The PRESIDING OFFICER. The Senate is not in order. Please take your 
conversations out of the Senate.
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I urge my colleagues to vote for the 
pending amendment to avoid two unprecedented actions. One is that the 
Senate is being called upon to vote on retroactive immunity for a 
program that most of the Members do not know and have not been briefed 
on. We frequently vote on matters that we do not know about but not 
when it is so blatant, when it is on the record that we do not know 
about it, we are caught red-handed. We ought not to be giving 
retroactive immunity on a program where most of the Members have not 
been briefed.
  The second unprecedented act would be to intervene in a court 
decision which has been pending for 3 years, where a judge has found 
the terrorist surveillance program unconstitutional, where it is on 
appeal to the Ninth Circuit. And Marbury v. Madison, which is the 
cornerstone of this democracy, says the courts have to interpret the 
Constitution.
  Mr. BYRD. Right.
  Mr. SPECTER. Vote for this amendment.
  I thank the Chair, especially for securing order. It is 
unprecedented. There is another unprecedented act today.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I oppose this amendment, which would 
require the district court to assess the constitutionality of the 
President's program--which is not what this is about--before it could 
dismiss cases against any telecommunications companies which 
participated in it.
  The amendment unnecessarily puts the burden of constitutionality--a 
burden that lies squarely on the shoulders of the Government--on the 
shoulders of telecommunications companies that cooperated with the 
Government in good faith. This is unfair.
  Because the Government requires prompted cooperation from 
telecommunications companies, we do not ask those companies to make 
detailed legal assessments prior to cooperating with the Government. 
Their protection from suit should not be limited based upon 
constitutional questions they had no obligation to assess.
  The significant constitutional question of whether the President's 
program was constitutional or lawful is properly addressed in cases 
against Government officials who are not immune. These cases can and 
should continue, without regard to this legislation.
  I ask that people oppose this amendment.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  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 Massachusetts (Mr. 
Kennedy) is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER (Mr. Menendez). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 37, nays 61, as follows:

                      [Rollcall Vote No. 165 Leg.]

                                YEAS--37

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

                                NAYS--61

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

                             NOT VOTING--2

     Kennedy
     McCain
  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for the adoption of this amendment, the amendment is withdrawn.


                           Amendment No. 5066

  The PRESIDING OFFICER. There will now be 2 minutes of debate equally 
divided prior to a vote on the amendment offered by the Senator from 
New Mexico, Mr. Bingaman.
  The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, first, I ask unanimous consent that 
Senator Feinstein be added as a cosponsor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Mr. President, the bill that is pending before us has 
the sequence of events in the wrong order. It provides that once the 
bill is enacted, companies can go into court and get the lawsuits 
dismissed. After that, there is an investigation provided for

[[Page S6470]]

by the inspectors general to determine what was going on in this 
program and what, in fact, we are providing immunity for. That is the 
wrong sequence.
  What we ought to do is to stay the cases, stay any proceedings on 
these cases, keep them in court, have the investigation done--a 1-year 
investigation, which is provided for in the bill, and then have 90 days 
in which Congress can review that investigation and the results of it. 
Only after that would the companies be able to go into court and seek 
immunity. That is a much more realistic way to proceed. I am glad we 
have cosponsors of this amendment who support the final bill, we have 
cosponsors who oppose the final bill.
  I hope all Senators will look at this and see this as something they 
can support. It would improve the legislation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Missouri.
  Mr. BOND. Mr. President, the simple fact is, the IGs have already 
reviewed this bill. I agreed to a limited inspectors general overall 
review, even though the Senate Intelligence Committee has reviewed the 
program on a bipartisan basis. At a time when we are urging more 
congressional oversight, why would we again turn over the question of 
the executive branch's actions to an executive branch agency when the 
committee has clearly said there is no reason to deny retroactive 
liability protection to these areas?
  Now, there are some who don't like the program at all. There are some 
who don't like the administration. They want to kick the administration 
by penalizing the companies, by dragging the companies through a 
continuing stretch of frivolous lawsuits. The Senator from Pennsylvania 
admitted that there is going to be no recovery. The lawsuits are 
designed to kill it. This amendment would get a veto, and we would have 
to start all over. Please vote no.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Mr. President, for Members here, we are going to do this 
vote now, and then the Republican caucus--because of Senator Helm's 
funeral--is going to be today. So when the Republican caucus is 
completed, at 2, 2:15, we will have the final two votes before a 4 
o'clock vote today on Medicare. So we will have two votes this 
afternoon starting at about 2 or 2:15.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 42, nays 56, as follows:

                      [Rollcall Vote No. 166 Leg.]

                                YEAS--42

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

                                NAYS--56

     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
     Graham
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Kyl
     Landrieu
     Lieberman
     Lugar
     Martinez
     McConnell
     Murkowski
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Sessions
     Shelby
     Smith
     Snowe
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner
     Wicker

                             NOT VOTING--2

     Kennedy
     McCain
  The PRESIDING OFFICER. Under the previous order requiring 60 votes 
for the adoption of this amendment, the amendment is withdrawn.

                          ____________________