[Congressional Record Volume 154, Number 112 (Wednesday, July 9, 2008)]
[Senate]
[Pages S6470-S6476]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FISA AMENDMENTS ACT OF 2008--Continued
Cloture Motion
The ACTING PRESIDENT pro tempore. Under the previous order, pursuant
to rule XXII, the Chair lays before the Senate the pending cloture
motion, which the clerk will report.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
hereby move to bring to a close debate on H.R. 6304, the FISA
Amendments Act of 2008.
E. Benjamin Nelson, John D. Rockefeller IV, Thomas R.
Carper, Mark L. Pryor, Bill Nelson, Dianne Feinstein,
Robert P. Casey, Jr., Barbara A. Mikulski, Claire
McCaskill, Kent Conrad, Daniel K. Inouye, Mary L.
Landrieu, Joseph I. Lieberman, Sheldon Whitehouse, Evan
Bayh, Ken Salazar.
The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory
quorum call is waived.
There is 2 minutes of debate evenly divided. Who yields time?
Mr. BOND. I yield myself 1 minute in support of cloture.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, some opponents of this legislation claim
that Congress is usurping the authority of the courts and that their
trust lies in single, lifetime appointed judges in the judicial branch.
I strongly disagree.
The Constitution set up three coequal branches of Government. Our
Constitution gives Congress the ability to determine the jurisdiction
of Federal courts. This power is particularly important and necessary
today in sensitive matters of national security.
Further, the courts, including the FISA Court, have recognized the
executive branch's expertise in matters of national security. They have
stated that national security matters are not within their purview. It
is entirely appropriate for this Congress to end this litigation and
not entrust this matter any further to the courts with respect to the
liability of particular participants in the program in the private
sector. They can still sue the Government. We think a matter of
fairness requires we protect those who assisted.
The ACTING PRESIDENT pro tempore. Does anyone seek time in
opposition? If not, all time is yielded back.
The question is, Is it the sense of the Senate that the debate on
H.R. 6304, the FISA Amendments Act of 2008, shall be brought to a
close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant 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 ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 72, nays 26, as follows:
[Rollcall Vote No. 167 Leg.]
YEAS--72
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Biden
Bond
Brownback
Bunning
Burr
Carper
Casey
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Dorgan
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)
Obama
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wicker
[[Page S6471]]
NAYS--26
Akaka
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Clinton
Dodd
Durbin
Feingold
Harkin
Kerry
Klobuchar
Lautenberg
Leahy
Levin
Menendez
Murray
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Wyden
NOT VOTING--2
Kennedy
McCain
The ACTING PRESIDENT pro tempore. On this vote, the yeas are 72, the
nays are 26. Three-fifths of the Senators duly chosen and sworn having
voted in the affirmative, the motion is agreed to.
The question is on third reading of the bill.
The bill (H.R. 6304) was ordered to a third reading and was read the
third time.
Electronic Communication Service Provider
Mr. BOND. Mr. President, I rise to engage the distinguished chairman
of the Select Committee on Intelligence in a brief colloquy.
Mr. ROCKEFELLER. I yield to the Senator.
Mr. BOND. I thank the Senator. Today we have been debating the merits
of title II of this bill, the title that contains the carrier liability
protection provisions. I know that we both agree that title II is
critically necessary to protect our national security.
I would like us to focus for a moment on a small but important point
related to the meaning of the term ``electronic communication service
provider'' in title II. This is a term that was contained in the
bipartisan Senate bill and was carried over in the current compromise
bill.
The term ``electronic communication service provider'' was
intentionally drafted to encompass the full spectrum of entities being
sued in a covered civil action. For example, if a provider received a
written request or directive and the only assistance provided to the
Government by that provider's related corporate entities was pursuant
to that written request or directive, the related corporate entities
should be entitled to the protections of section 802 as long as any
assistance they provided meets the requirements of that section.
Senator Rockefeller, do we share this common understanding of the
meaning of the term ``electronic communication service provider''?
Mr. ROCKEFELLER. Thank you, Senator Bond. I completely agree with
your description of the meaning of ``electronic communications service
provider.''
The definition itself makes clear that the term is intended to
include entities that are telecommunications carriers, providers of
electronic communications service, providers of remote computing
services, and any other communication service provider that has access
to transmitted or stored wire or electronic communications.
Significantly, the definition also includes any parent, subsidiary,
affiliate, successor, or assignee of such entities, as well as any
officer, employee or agent of such entities.
Mr. BOND. Thank you Mr. Chairman.
Mrs. FEINSTEIN. Mr. President, as the debate over the FISA
legislation comes to a conclusion, and as a member of the Intelligence
Committee for 7\1/2\ years, I would like to comment once again on why I
support this bill.
Let there be no doubt: 7 years after
9/11, our country continues to face serious threats. There are some who
seek to do us grave harm.
So there is no more important need than obtaining accurate,
actionable intelligence to help prevent such an attack.
At the same time, there have to be strong safeguards to ensure that
the Government does not infringe on Americans' constitutional rights.
I believe this bill strikes an appropriate balance. It protects
Americans and their privacy rights.
This legislation is certainly better than the Protect America Act in
that regard and makes improvements over the 1978 FISA law.
This bill provides for repeated court review of surveillance done for
intelligence purposes. It ends, once and for all, the practice of
warrantless surveillance. It protects Americans' constitutional rights
both at home and abroad. It provides the Government flexibility to
protect our Nation. It makes it crystal clear that FISA is the law of
the land--and that this law must be obeyed.
For more than 5 years, President Bush ran a warrantless surveillance
program--called the terrorist surveillance program--outside of the law.
The administration did not have to do this. This specific program
could have been carried out under FISA--and I believe it should have
been.
With this bill, we codify and clarify that this limited, intelligence
program will be carried out under the law.
This legislation allows the Government to collect information from
members of specific terrorist groups or specific foreign powers. It is
focused on collecting the content of communications from specific
people. If those people are Americans, a warrant is required. Period.
So today, we are faced with three options:
No. 1. We can pass this bill. It is comprehensive and improves
protections for U.S. persons and updates the FISA law to meet today's
national security challenges; or
No. 2. We can extend the Protect America Act. This bill was a stop-
gap measure passed last August for a 6-month temporary period to
provide time to develop this legislation. It was meant to be temporary,
and it should be only temporary.
No. 3. We can do nothing. If we do not pass legislation before mid-
August, America will essentially be laid bare--unable to gather the
critical intelligence that we need.
We will lose the ability to collect information on calls into and out
of the United States from specific terrorist groups. The fact is, like
it or not, the collection of signals intelligence is indispensable if
we are to prevent another attack on our homeland.
Given these three options, I think the choice is clear.
The legislation is a significant improvement over the Protect America
Act and over the 1978 FISA legislation.
Let me indicate certain substantial improvements:
This bill ends warrantless surveillance. Except in rare emergency
cases, all surveillance has to be conducted pursuant to a court order.
The FISA Court reviews the Government's procedures and applications
before surveillance happens.
This bill strengthens the court's review. Not only must the FISA
Court approve any surveillance before it is started, this court is
given more discretion, with a higher standard of review, over the
Government's proposals. The Protect America Act limited the court to a
rubberstamp review. This bill changes that.
This bill requires that surveillance be subject to court-approved
minimization.
In 1978, Congress said that the Government could carry out
surveillance on U.S. persons under a court warrant but required the
Government to minimize the amount of information on those Americans who
get included in the intelligence reporting. In practice, this actually
means that the National Security Agency only includes information about
a U.S. person that is strictly necessary to convey the intelligence.
Most of the time, the person's name is not included in the report. That
is the minimization process.
If an American's communication is incidentally caught up in
electronic surveillance while the Government is targeting someone else,
minimization protects that person's private information.
Now, the Protect America Act did not provide for court review over
this minimization process at all. But this bill requires the court in
advance to approve the Government's minimization procedures prior to
commencing with any minimization program. That is good. That is the
third improvement.
This bill prohibits reverse targeting. There is an explicit ban on
reverse targeting. Now, what is reverse targeting? That is the concern
that the National Security Agency could get around the warrant
requirement.
If the NSA wanted to get my communications but did not want to go to
the FISA Court, they might try to figure out who I am talking with and
collect the content of their calls to get to me. This bill says you
cannot do that. You cannot reverse target. It is prohibited. This was a
concern with the Protect America Act, and it is fixed in this bill.
This bill goes further than any legislation before it in protecting
U.S. person privacy rights outside of the
[[Page S6472]]
United States. It requires the executive branch to get a warrant
anytime it seeks to direct surveillance of collected content from a
U.S. person anywhere in the world. Previously, no warrant was required
for content collection outside the United States.
Finally, there are numerous requirements in the bill for various
review of the surveillance activities by agency heads and by inspectors
general. The FISA Court and the Congress will be kept fully informed on
the operations of this program in the future.
Finally, exclusivity. Mr. President, I have spoken multiple times on
this floor about the importance of FISA's exclusivity provisions.
Before 1978, there was no check on the President's ability to conduct
electronic surveillance. However, in 1978, Congress passed FISA,
intending it to be the only way. Congress intended that FISA would be
the only way--the exclusive means--to conduct surveillance on U.S.
persons in the United States for foreign intelligence purposes.
President Carter acknowledged that when he signed the bill.
Nonetheless, this administration took the position that FISA was not
exclusive. First it stated that FISA didn't apply to these particular
surveillance activities. Then it said that Congress gave it authority
through the Authorization for the Use of Military Force in Afghanistan.
Then it said that the President couldn't be bound by an act of Congress
because he had his own authority under the Constitution.
I reject all of these arguments. And now a Federal court has
addressed the subject of exclusivity head-on.
On July 2, Chief Judge Vaughn Walker of the U.S. District Court for
the Northern District of California delivered a decision in a case
brought against the U.S. Government for its surveillance. Judge Walker
wrote:
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 it limits the executive branch's authority to assert the
state secrets privilege in response to challenges to the
legality of its foreign intelligence surveillance activities.
(M:06-cv-01791-VRW, p. 23)
These are powerful words in the opinion.
So it is not just clear legislative intent, it is the current
judicial position that FISA was and is exclusive.
Yet, before the recess, it was asserted on the floor that the
President has authority under article II of the Constitution to go
around FISA. He does not, in my view.
Moreover, they claim that the exclusivity language in the bill
acknowledges the President's constitutional authority to conduct
electronic surveillance outside of FISA. It does not.
As the author of this language, let me state emphatically that the
clear intent of the language is to bind the Executive to this law.
Now, certain Senators are contending that this exclusivity language
would allow the President to go outside of FISA.
Let me be clear: this provision is not intended to, nor does it,
provide or recognize any new authority to conduct electronic
surveillance in contravention of FISA.
It was drafted very carefully with input and agreement from people
from both sides of the Intelligence Committee and the Judiciary
Committee, the Department of Justice, and the Office of the Director of
National Intelligence.
The only way the President can move outside of FISA will be with
another specific statute, passed by both Houses and signed by the
President.
In summary, the exclusivity language in this bill absolutely does not
recognize the President's claimed ``Article II'' authorities to conduct
surveillance in contravention of FISA or any other law.
The bottom line is that FISA has always been the exclusive means to
conduct electronic surveillance, and it continues to be the exclusive
means. And no President, now or in the future, has the authority to
move outside the law.
Finally, Mr. President, I want to set straight who in Congress was
notified about the program and when. Some are saying that the Congress
was briefed.
This is not true.
Eight Members of the House and Senate were briefed on the program
around the time of its inception, shortly after September 11, 2001: the
House and Senate leadership and the chairmen and ranking members of the
Intelligence Committees.
The 13 rank-and-file members of the Senate Intelligence Committee,
who by law are to be kept ``fully and currently informed'' of
intelligence activities, were not briefed until well after the program
was publicly disclosed in the New York Times in December 2005--4 years
later. I want to make this crystal clear.
The chairman and the ranking member of the Judiciary Committee--which
shares jurisdiction over FISA--were not briefed until a significant
period of time after the full membership of the Intelligence Committee
was notified.
Finally, I want to say a few words about immunity.
Let me be clear, this particular immunity language is not ideal. I
would have approached this issue differently.
When the legislation was before the Senate in February, I moved an
amendment to require that the FISA Court conduct a review of whether
the telecommunications companies acted lawfully and in good faith.
Unfortunately, my amendment was not adopted, but I continue to believe
it is the appropriate standard.
I have cosponsored an amendment by Senator Bingaman that would stay
action on all pending lawsuits until 90 days after Congress receives a
report, required elsewhere in this bill, by the relevant inspectors
general on the President's surveillance program. That would give
Congress a chance to decide on immunity based on a third-party review.
If lawmakers took no action within 90 days, the provisions would go
into effect.
I have spent a great deal of time reviewing this matter. I have read
the legal opinions written by the Office of Legal Counsel at the
Department of Justice. I have read the written requests to
telecommunications companies. I have spoken to officials inside and
outside the Government, including several meetings with the companies
alleged to have participated in the program.
The companies were told after 9/11 that their assistance was needed
to protect against further terrorist acts. This actually happened
within weeks of 9/11. I think we can all understand and remember what
the situation was in the 3 weeks following 9/11.
The companies were told the surveillance program was authorized and
that it was legal.
I am one who believes it is right for the public and the private
sector to support the Government at a time of need. When it is a matter
of national security, it is all the more important.
I think the lion's share of the fault rests with the administration,
not with the companies.
It was the administration who refused to go to the FISA Court to seek
warrants. They could have gone to the FISA Court to seek these warrants
on a program basis, and they have done so subsequently.
So I am pleased this bill includes independent reviews of the
administration's actions to be conducted by the inspectors general of
the relevant departments.
This bill does provide a limited measure of court review. It is not
as robust as my amendment would have provided, but it does provide an
opportunity for the plaintiffs to be heard in court, and it provides an
opportunity for the court to review these request documents.
Mr. President, this is not a perfect bill. It is the product of
compromise designed to make sure that it provides the needed
intelligence capabilities and the needed privacy protections.
I think the bill strikes that balance and that the Nation will be
made more secure because of it.
Mr. BIDEN. Mr. President, I rise today in opposition to the Foreign
Intelligence Surveillance Amendments Act of 2008. As one of the
cosponsors of FISA in 1978, I am fully aware of the importance of
giving the administration the surveillance tools it needs to keep us
safe. This is a very difficult vote and I do not question the judgment
of those who have chosen to support the bill. But because I am
concerned that this bill authorizes surveillance that is broader than
necessary to
[[Page S6473]]
protect national security at the expense of civil liberties and because
it gives blanket retroactive immunity to the telephone companies, I
have decided not to support it.
One of the defining challenges of our age is to combat international
terrorism while maintaining our national values and our commitment to
the rule of law and individual rights. These two obligations are not
mutually exclusive. Indeed, they reinforce one another. Unfortunately,
the President's national security policies have operated at the expense
of our civil liberties. The examples are legion, but the issue that
prompted the legislation before us today is one of the most notorious--
his secret program of eavesdropping on Americans without congressional
authorization or a judge's approval.
After insisting for a year that the President was not bound by the
Foreign Intelligence Surveillance Act's clear prohibition on
warrantless surveillance of Americans, the administration subjected its
surveillance program to FISA Court review in January of 2007.
Then, last August, citing operational difficulties and heightened
threats that required changes to FISA, Congress passed the Protect
America Act--over my objection and that of many of my colleagues. I am
submitting with this statement the objections I made at that time.
The Protect America Act, which sunset last February, amended FISA to
allow warrantless surveillance, even when that surveillance intercepted
the communications of innocent American citizens inside the United
States.
The administration identified two problems it faces in conducting
electronic surveillance under FISA. First, the administration wanted
clarification that it did not need to obtain a FISA warrant in order to
conduct surveillance of calls between two parties when both of those
parties are overseas. Because of the way global communications are now
transmitted, many communications between people all of whom are
overseas are nonetheless routed through switching stations inside the
United States. In other words, when someone in Islamabad, Pakistan
calls someone in London, that call is likely to be routed through
communications switching stations right here in the United States.
Congress did not intend FISA to apply to such calls, and I support a
legislative fix to clarify that point.
The second problem the administration identified is more difficult.
Even assuming that the Government does not need a FISA warrant to tap
into switching stations here in the United States in order to intercept
calls between two people who are abroad--between Pakistan and England,
for example--if the target in Pakistan calls someone inside the United
States, FISA requires the government to get a warrant, even though the
government is ``targeting'' the caller in Pakistan.
The administration wants the flexibility to begin electronic
surveillance of a ``target'' abroad without having to get a FISA
warrant to account for the possibility that the ``foreign target''
might contact someone in the United States. I agree with the
administration's assessment of the problem, but this bill would go far
beyond what is necessary to meet these new technological challenges.
This bill's approach would significantly expand the scope of
surveillance permitted under FISA by exempting entirely from the
warrant requirement any calls to or from the United States, as long as
the Government is ``targeting'' someone reasonably believed to be
located outside the United States.
The Government could acquire these communications regardless of
whether either party is suspected of any wrongdoing and regardless of
how many calls to innocent American citizens inside the United States
were intercepted in the process.
Although the bill gives the FISA Court a greater role than earlier
bills did, it still fails to provide for a meaningful judicial check on
the President's power. The FISA Court's role would be limited to
reviewing the Government's targeting procedures and its minimization
procedures--the procedures it uses to limit the retention and
dissemination of information it has required. But it would be required
to approve them as long as they met the general requirements of the
statute, which is written broadly.
In addition, unlike the Judiciary Committee version of the bill I
supported earlier this year, this bill neither limits the Government's
use of information collected under procedures the FISA Court later
deems inadequate, nor does it expressly give the FISA Court authority
to enforce compliance with orders it issues.
I am concerned that because of the way this bill is drafted, it could
be interpreted to preclude the FISA Court from ordering the Government
to destroy all communications of innocent Americans that it
incidentally collects during its surveillance. If I were certain that
the FISA Court had the power to order the destruction of the
communications of innocent Americans, it might tip the balance in favor
of my supporting the bill, even though I oppose blanket retroactive
immunity.
As for immunity, although I can understand why in the immediate
aftermath of the attacks on September 11 the telephone companies would
have cooperated with the Government, I believe it is inappropriate for
Congress to grant blanket retroactive immunity without knowing what it
is granting immunity for.
Furthermore, cases against the carriers are already making their way
through the courts and I have every confidence in the court's ability
to interpret and apply the law. Retroactive immunity would undermine
the judiciary's role as an independent branch of government.
When the Senate passed FISA, after extensive hearings, thirty years
ago by a strong bipartisan vote of 95 to 1, I stated that it ``was a
reaffirmation of the principle that it is possible to protect national
security and at the same time the Bill of Rights.'' I still believe
that is possible, but not if we enact this bill.
Mr. President, I am in support of Senator Rockefeller's proposal to
address shortcomings in our intelligence collection authorities. I have
studied Senator Rockefeller's bill closely and believe that it is an
appropriate, temporary fix that adequately protects both our national
security and Americans' privacy and civil liberties. It includes
important safeguards against executive abuse--safeguards that are
essential for an administration that has demonstrated so frequently
that it simply cannot be trusted.
The Rockefeller bill is narrowly tailored to address the two problems
the administration has said it faces in conducting electronic
surveillance under the Foreign Intelligence Surveillance Act, as that
law is currently written.
First, the administration wants clarification that it does not need
to obtain a FISA warrant in order to conduct surveillance of calls
between two parties when both of those parties are overseas. Because of
the way global communications are now transmitted, many communications
that take place entirely overseas are nonetheless routed through
switching stations inside the United States. In other words, when
someone in Islamabad, Pakistan, calls someone in London, England, that
call may well be routed through communications switching stations right
here in the United States. FISA was never intended to apply to such
calls, and I support a legislative fix to clarify that point.
The second problem the administration has identified is more
difficult. Although neither FISA nor the Constitution requires the
President to get a warrant if the target of surveillance is in Pakistan
calling London, or anywhere else outside the United States, if the
target in Pakistan calls someone in the United States, FISA requires
the Government to get a warrant, even though the Government is
``targeting'' the caller in Pakistan.
Senator Rockefeller's bill would give the Government great
flexibility to conduct surveillance of targets abroad, with prior
approval of the FISA Court, while protecting the privacy of innocent
Americans in the United States.
Under this bill, the FISA Court would be required to issue a warrant
upon a minimal showing that the targets of surveillance are overseas
and not in the United States. The bill provides protection for innocent
Americans in the United States--if the foreign target's communications
began to involve a significant number of calls
[[Page S6474]]
into the United States, the Government would be required to end
surveillance pending receipt of a new FISA Court order that the target
overseas was a suspected terrorist.
Senator Rockefeller's approach also ensures robust oversight.
Congress would get the actual FISA Court orders, and, every 60 days,
Congress would receive the list of targets who turned out to be in the
United States and the number of persons inside the United States whose
communications were intercepted. This is more information than Congress
receives today, and it would enable us to verify the administration's
claim that they are targeting suspected terrorists without
unnecessarily violating the privacy of law-abiding Americans.
Senator Rockefeller's bill sunsets in 6 months, at which point
Congress can, if necessary, craft a permanent, sensible, and
Constitutional fix to FISA that ensures the American people are
protected from terrorism and from encroachments on their civil
liberties and individual freedoms. The President has asked that we go
further, that we give him more unchecked power and discretion to
eavesdrop on Americans' conversations without a warrant and without
congressional oversight. His request raises many concerns, and Congress
should deny it.
The President's proposal would significantly expand the scope of
surveillance permitted under FISA by exempting entirely any calls to or
from the United States, as long as the Government is directing its
surveillance at someone reasonably believed to be located abroad. The
Attorney General and the Director of National Intelligence would make
this determination on their own, and they would merely certify, after-
the-fact, to the FISA Court that they had reason to believe the target
is outside the United States, regardless of how many calls to innocent
American citizens inside the United States were intercepted in the
process. This would be a breathtaking and unconstitutional expansion of
the President's powers and it is wholly unnecessary to address the
problems the administration has identified.
Furthermore, the administration would not even limit this unchecked
surveillance to persons suspected of involvement in international
terrorism--it would cover the collection of any foreign intelligence
information, which can include the collection of trade secrets and
other information unrelated to the threat posed by al-Qaida.
I have said before that one of the defining challenges of our age is
to effectively combat international terrorism while maintaining our
national values and our commitment to the rule of law, individual
rights, and civil liberties. Unfortunately, the President has attempted
to protect America by unnecessarily betraying our fundamental notions
of constitutional governance and individual rights and liberties.
I will support giving the administration the tools it needs to track
down terrorists, but I will not give the President unchecked authority
to eavesdrop on whomever he wants in exchange for the vague and hollow
assurance that he will protect the civil liberties of the American
people. This administration has squandered the trust of Congress and
the American people.
The administration's approach is constitutionally infirm and it is
unnecessary to address the specific problems it has identified. The
Rockefeller bill is a carefully calibrated approach that protects the
American people from both terrorism and violations of their civil
liberties.
I urge my colleagues to join me in supporting it.
Mr. BYRD. Mr. President, in 1771, Samuel Adams observed:
The liberties of our country, the freedom of our civil
Constitution, are worth defending at all hazards; and it is
our duty to defend them against all attacks. We have received
them as a fair inheritance from our worthy ancestors; they
purchased them for us with toil and danger and expense of
treasure and blood, and transmitted them to us with care and
diligence. It will bring an everlasting mark of infamy on the
present generation, enlightened as it is, if we should suffer
them to be wrested from us by violence without a struggle, or
to be cheated out of them by the artifices of false and
designing men.
Under the artifice of defending our nation from terrorists, President
Bush would have Congress surrender our liberties and the freedom of our
civil Constitution. This bill, the Foreign Intelligence Surveillance,
FISA, Amendments Act of 2008, is supposed to correct unconstitutional
authorities contained in last year's ``Protect America Act'' that
permitted widescale warrantless Government surveillance of innocent
Americans' private international communications, much of it facilitated
by telecommunications companies in a manner that is under court review.
However, this bill undercuts that judicial review and, in effect,
grants complete retroactive immunity to those companies for anything
illegal they might have done for the last 6 years. That provision
undermines the Constitution's fourth amendment protections.
This bill continues Government surveillance of communications coming
into and out of the United States without full fourth amendment
protections. Remember the fourth amendment? It reads:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no Warrants shall
issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
The President would have you believe that this bill would provide
additional powers to prevent another 9/11. But 9/11 did not happen for
want of these powers. It was not a failure of Government to monitor
private communications. Rather, it was a failure of the Government to
monitor the reports of the FBI and of the intelligence community. It
happened because the administration did not take seriously reports
suggesting that what actually happened was being planned by al-Qaida.
Just as he exploited 9/11 to lead us to war in Iraq, President Bush now
wants to exploit his failures to attack our fundamental freedoms--
freedoms that formed the foundations of this Nation.
There is no doubt that certain accommodations need to be made to
address advances in technology. However, this bill goes too far. If the
Government can collect all communications coming into or out of the
United States, using powerful computers to shop among them without
probable cause that the person making or receiving the communication is
involved in anything illegal, and without any court providing a check
upon the abuse of that power, that does not meet my ``reasonable
man's'' definition of fourth amendment compliance. And that is not the
``fair inheritance'' won for us by our Founders at such a great price.
Mrs. CLINTON. Mr. President, one of the great challenges before us as
a nation is remaining steadfast in our fight against terrorism while
preserving our commitment to the rule of law and individual liberty. As
a Senator from New York on September 11, I understand the importance of
taking any and all necessary steps to protect our Nation from those who
would do us harm. I believe strongly that we must modernize our
surveillance laws in order to provide intelligence professionals the
tools needed to fight terrorism and make our country more secure.
However, any surveillance program must contain safeguards to protect
the rights of Americans against abuse, and to preserve clear lines of
oversight and accountability over this administration. I applaud the
efforts of my colleagues who negotiated this legislation, and I respect
my colleagues who reached a different conclusion on today's vote. I do
so because this is a difficult issue. Nonetheless, I could not vote for
the legislation in its current form.
The legislation would overhaul the law that governs the
administration's surveillance activities. Some of the legislation's
provisions place guidelines and restrictions on the operational details
of the surveillance activities, others increase judicial and
legislative oversight of those activities, and still others relate to
immunity for telecommunications companies that participated in the
administration's surveillance activities.
While this legislation does strengthen oversight of the
administration's surveillance activities over previous drafts, in many
respects, the oversight in the bill continues to come up short. For
instance, while the bill nominally calls for increased oversight by the
FISA Court, its ability to serve as a meaningful check on the
President's power is debatable. The clearest example of this is the
limited power given to
[[Page S6475]]
the FISA Court to review the government's targeting and minimization
procedures.
But the legislation has other significant shortcomings. The
legislation makes no meaningful change to the immunity provisions.
There is little disagreement that the legislation effectively grants
retroactive immunity to the telecommunications companies. In my
judgment, immunity under these circumstances has the practical effect
of shutting down a critical avenue for holding the administration
accountable for its conduct. It is precisely why I have supported
efforts in the Senate to strip the bill of these provisions, both today
and during previous debates on this subject. Unfortunately, these
efforts have been unsuccessful.
What is more, even as we considered this legislation, the
administration refused to allow the overwhelming majority of Senators
to examine the warrantless wiretapping program. This made it
exceedingly difficult for those Senators who are not on the
Intelligence and Judiciary Committees to assess the need for the
operational details of the legislation, and whether greater protections
are necessary. The same can be said for an assessment of the telecom
immunity provisions. On an issue of such tremendous importance to our
citizens--and in particular to New Yorkers--all Senators should have
been entitled to receive briefings that would have enabled them to make
an informed decision about the merits of this legislation. I cannot
support this legislation when we know neither the nature of the
surveillance activities authorized nor the role played by
telecommunications companies granted immunity.
Congress must vigorously check and balance the president even in the
face of dangerous enemies and at a time of war. That is what sets us
apart. And that is what is vital to ensuring that any tool designed to
protect us is used--and used within the law--for that purpose and that
purpose alone. I believe my responsibility requires that I vote against
this compromise, and I will continue to pursue reforms that will
improve our ability to collect intelligence in our efforts to combat
terror and to oversee that authority in Congress.
Mr. REED. Mr. President, I wish to spend a few minutes discussing why
I vote against final passage of H.R. 6304, the House companion to S.
2248, the FISA Amendments Act of 2008. I would like to begin by
commending Senators Rockefeller and Bond who have negotiated this bill,
literally for months, in order to reach the compromise that we voted on
today.
I believe that many aspects of this bill are an improvement, not only
to the Protect America Act which passed last August, but also to S.
2248, the bill we voted on in February. I opposed both of those bills.
This compromise bill specifies that FISA and certain other statutes are
the exclusive means for conducting surveillance on Americans for
foreign intelligence purposes. It requires the inspectors general of
the Department of Justice, the Department of Defense, the National
Security Agency, and the Director of National Intelligence to conduct a
comprehensive review and issue a report on the President's surveillance
program. It requires the intelligence community to create reverse
targeting guidelines so that the National Security Agency cannot
conduct surveillance of a U.S. citizen without a warrant by targeting a
foreigner. Finally, it sunsets this legislation in 4\1/2\ half years
rather than the 6 years called for in the original bill. All of these
measures increase oversight and help protect civil liberties and are
helpful changes.
However, title II of this bill still grants retroactive immunity to
telecommunications companies for actions they may or may not have taken
in response to administration requests that may or may not have been
legal. As I have stated before, the administration has had years to
provide the written legal justification that they gave the
telecommunications companies when they requested their cooperation in
the aftermath of September 11. A few of my colleagues on the Judiciary
Committee and Intelligence Committee were allowed to read certain
documents related to this matter after extensive negotiations with the
administration. However, I, and the rest of my Senate colleagues who
are not on those committees, were denied access to those documents. In
addition, the telecommunications companies who have been named in
several lawsuits have been prohibited by the administration from
providing any information regarding this issue to the courts, to the
plaintiffs, to Members of Congress, or to the public. In good
conscience, I could not simply trust with blind faith that the
administration and telecommunications companies took proper, lawful
actions.
I therefore supported three attempts to strip or limit this immunity
during today's debate. First, Senator Dodd offered an amendment to
strike title II. When that failed, Senator Specter offered an amendment
to require a Federal district court to assess the constitutionality of
the terrorist surveillance program before granting retroactive immunity
to the companies alleged to have assisted the program. This amendment
also failed. As a final effort, Senator Bingaman offered an amendment
which would have stayed all pending cases against the telecommunication
companies related to the Government's warrantless surveillance program
and delayed the effective date of the immunity provisions until 90 days
after Congress receives the required comprehensive report of the
inspectors general regarding the program. If Congress took no action in
that time, the telecommunications companies would receive immunity.
Unfortunately, that amendment also failed.
The Senate had three opportunities to implement sensible measures to
ensure that the grant of immunity to the telecommunication companies
was appropriate. But these amendments were voted down. I believe the
result sets a dangerous precedent. We must take the steps necessary to
thwart terrorist attacks against our country, but these steps must also
ensure that the civil liberties and privacy rights that are core to our
democracy are protected. This bill fails to meet this threshold. For
these reasons, I oppose the passage of this bill.
The ACTING PRESIDENT pro tempore. There is now 2 minutes of debate
equally divided.
Who yields time?
Mr. ROCKEFELLER. Mr. President, we have been on this bill now for in
effect a year.
The ACTING PRESIDENT pro tempore. The Senator will suspend. Will
Senators please take their seats.
Mr. ROCKEFELLER. And we have improved enormously the Senate bill that
we voted out last year with a veto-proof majority. The House had not
reacted to this bill well, particularly the immunity part, as well as
the title I part. We went at them aggressively, Vice Chairman Bond and
myself, to try to get the Senate to move toward the House position. We
were successful in that.
As I have said, Speaker Pelosi, who didn't want anything to do with
the bill at the beginning, actually went to the floor of the House
before they voted on it to pass it out and said: This may not be a
perfect bill, but it is a bill that I certainly am going to vote for,
and that is why I am here asking you to join me in so doing.
I, in my lesser role, am doing the same thing.
This is a historic bill. It has the particular virtue that over the
course of the next 4 years, the next President of the United States
will have a chance to review the bill and see if any changes need to be
made.
I strongly hope, on what I consider to be a very major piece of
national security and civil liberties legislation, that my colleagues
will vote to support the bill.
The ACTING PRESIDENT pro tempore. Does anyone seek time in
opposition?
Mr. BOND. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second? There
is a sufficient second.
The bill having been read the third time, the question is, Shall the
bill pass?
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 Senators are necessarily absent: the Senator
from Arizona (Mr. McCain) and the Senator from Alabama (Mr. Sessions).
[[Page S6476]]
Further, if present and voting, the Senator from Alabama (Mr.
Sessions) would have voted ``yea.''
The PRESIDING OFFICER (Mrs. McCaskill). Are there any other Senators
in the Chamber desiring to vote?
The result was announced--yeas 69, nays 28, as follows:
[Rollcall Vote No. 168 Leg.]
YEAS--69
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Casey
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Feinstein
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)
Obama
Pryor
Roberts
Rockefeller
Salazar
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wicker
NAYS--28
Akaka
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Clinton
Dodd
Dorgan
Durbin
Feingold
Harkin
Kerry
Klobuchar
Lautenberg
Leahy
Levin
Menendez
Murray
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Wyden
NOT VOTING--3
Kennedy
McCain
Sessions
The bill (H.R. 6304) was passed.
Mr. REID. Madam President, I move to reconsider the vote and to lay
that motion on the table.
The motion to lay on the table was agreed to.
____________________