[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 1163-1168]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. BOND. Mr. President, our first Member is a distinguished member 
of our Intelligence Committee, the distinguished junior Senator from 
North Carolina. I yield to him.
  Mr. BURR. Mr. President, I thank the ranking member, Senator Bond.
  We have heard some people claim that the Intelligence Committee's 
bill will allow dragnet surveillance that will sweep up communications 
of innocent Americans. Is this accurate?
  Mr. BOND. Mr. President, that question has been raised. We have heard 
that on the floor a number of times. I think it is very important that 
we dispel that myth right now. The answer is no--a flat no. Our 
committee bill only allows the targeting of persons outside the United 
States to obtain foreign intelligence information. It is not dragnet 
surveillance. The targets of acquisition must be foreign targets and 
they must be suspected terrorists or spies. The Attorney General and 
the Director of National Intelligence, whom I will refer to as the DNI, 
must certify that a significant purpose of the acquisition is to obtain 
foreign intelligence information.
  For example, if a foreign target is believed to be an agent or a 
member of al-Qaida, then all communications of that target could be 
intercepted.
  Only Americans who communicate with suspected terrorists abroad will 
have those specific communications monitored. If those same 
communications turn out to be innocent, they will be minimized, which 
is intel community speak for suppressed, so that Americans' privacy 
interests are protected.
  It is very misleading and nonfactual to suggest that the intelligence 
community is spying on parents who are calling their children overseas 
or students who are talking with their friends, or on our own soldiers 
in the battlefield. Our intelligence professionals are far too busy 
tracking real terrorists, members of al-Qaida, than to listen to family 
discussions or conversations between classmates. Not only do they not 
have time that is not permitted under this bill.
  Mr. BURR. What happens when the intelligence community does become 
interested in the communications of a person inside the United States?
  Mr. BOND. Mr. President, I thank my colleague from North Carolina, 
because that is precisely what our bill, the FISA Act Amendments bill, 
does. That information will be turned over to the FBI, which would seek 
a title III criminal warrant, or a FISA order, to intercept all of the 
communications of that person, not just communications with targets 
overseas.
  Mr. BURR. We have heard a number of people claim that the foreign 
targeting authorized under the Intelligence Committee's bill contains 
inadequate protections for U.S. persons. What specific protections are 
included for innocent Americans?
  Mr. BOND. This is where the Intelligence Committee bill goes much 
farther than any other law we have had in our history in protecting 
U.S. persons; that is, U.S. citizens and others here in the United 
States.
  The bill includes express prohibitions against ``reverse targeting,'' 
and reverse targeting is a knowledge that you can target a person 
overseas when the real purpose is to target someone in the United 
States. This is illegal. The intelligence community does not do it. 
Frankly, it is terribly impractical. They cannot under the law that we 
have presented to this body target a person inside the United States 
without a court order.
  The bill also requires that all acquisitions comply with the 
protections of the fourth amendment. In addition, the Intelligence 
Committee bill requires, for the first time in history, that the 
Foreign Intelligence Surveillance Court--and I will refer to that as 
the FISC--for the first time in history approve any surveillance of a 
U.S. person, or an American citizen abroad. This goes beyond the 
requirement even in existing American criminal law.
  Mr. BURR. As my good friend noted, the Intelligence Committee bill 
gives the FISA Court an important role in foreign targeting. The bill 
requires that any acquisition be conducted pursuant to the specific 
targeting and minimization processes and procedures. What is the 
court's role with respect to these procedures?
  Mr. BOND. This provision came about as a result of discussions by 
members on both sides of the committee who wanted to provide 
protections for Americans overseas. To do that required a significant 
expansion and clarification, which is included in the managers' 
amendment that Senator Rockefeller and I have produced and have pending 
before the body.
  Under this bill, the FISC must review and approve the targeting and 
minimization procedures used by the Government in conducting its 
foreign targeting operations. The court must find that the targeting 
procedures are reasonably designed to ensure that the authorized 
acquisition is limited to the

[[Page 1164]]

targeted persons reasonably believed to be located outside the United 
States. The court must then find that minimization procedures comply 
with the FISA law.
  The court will also review the joint certification issued by the 
Attorney General and the DNI to make sure that it contains all of the 
required elements. If the court finds there is a deficiency in those 
procedures or the certification--that even for a minor drafting or 
technical reason they do not comply with the law--the court can order 
the Government to correct the deficiency or cease the acquisition.
  Mr. BURR. There is an amendment already filed, and the amendment is 
filed to the Intelligence Committee bill, that allows the FISA Court to 
assess the Government's compliance with the minimization procedures. 
Why shouldn't we have the court do this?
  Mr. BOND. Well, it sounds like a reasonable proposal on the surface, 
but when you look at the law and the structure that is set up, it does 
not work. The FISC was created in 1978 simply to issue orders for 
domestic surveillance on particular targets, but the Congress 
specifically left foreign surveillance activities to the executive 
branch and to the intelligence community.
  FISA minimization procedures--the procedure to suppress information 
on an innocent communication with a person in the United States--are 
all about protecting the identities of a U.S. person or American 
citizen. This comes up all of the time in domestic collections. But 
almost all of the collection under these foreign targeting acquisitions 
will be on non-U.S. persons who require no protection under FISA 
minimization procedures.
  It doesn't make sense to direct the FISC to get involved in assessing 
compliance with the foreign targeting realm. They have said in their 
opinion regarding sealed matters that they are not set up to do that, 
and they do not have the expertise to do that.
  As a practical matter, when the court assesses compliance with 
minimization procedures, it would be second-guessing trained analysts' 
decisions about which foreign terrorist to track and how to do it. They 
simply are not competent, they are not set up, they don't have the 
expertise to do that, and they have so stated in their published 
opinion. They can't make these types of operational decisions.
  Mr. BURR. It is my understanding that the FISA Court recently issued 
an opinion where it commented on the expertise of the executive branch 
over the court in national security and foreign intelligence matters. 
Shouldn't we heed the court's own words?
  Mr. BOND. I am certainly glad the Senator brought that up. The court 
did issue a published opinion this past December where it noted that 
the FISA Court judges are:

       Not expected or desired to become experts in . . . foreign 
     intelligence activities, and do not make substantive 
     judgments on the propriety or need for a particular 
     surveillance . . . Even if a typical FISA judge had more 
     expertise in national security matters than a typical 
     district court judge, that expertise would still not equal 
     that of the Executive Branch, which is constitutionally 
     entrusted with protecting national security.

  Those are the words of the judges on the FISA Court, the FISC.
  The court knows what to look for when it issues a warrant to tap 
someone's phone in North Carolina or Virginia. But when it comes to 
analyzing intelligence leads and deciding which foreign terrorists or 
spies should be surveilled, the court is simply not competent to make 
these judgments. That is exactly what the amendment would seek to have 
them do.
  This bill already contains numerous oversight reporting and numerous 
judicial provisions. Those of us who have gone out to look at the 
operations know how extensive and how carefully supervised they are. 
There is no reason to ask the FISC to take on the additional authority 
in the context of foreign targeting, especially where it could result 
in operational problems or the loss of intelligence and, as the judges 
have said, is beyond their competence.
  Mr. BURR. The Intelligence Committee bill allows the Attorney General 
and the DNI to direct a communications provider to assist the 
Government with a foreign targeting acquisition. What protections does 
this bill give to any provider who believes there is a problem with the 
directive?
  Mr. BOND. That is a very good question, because we cannot expect 
carriers, telephone companies, telecom companies to work with us if 
they don't have protection. That is why we are seeking retroactive 
clarification of the civil liability for those who have, in the 
exercise of their patriotic duty and pursuant to valid directives, 
participated in the President's terrorist surveillance program. Under 
this bill, the providers may challenge the directive by filing a 
petition to modify or set aside the directive of the court. If the 
court finds the directive does not meet specific requirements or is 
unlawful, it can grant a petition. If the court does not modify or set 
aside the directive, it will order the provider to comply with it. Both 
the Government and the provider may appeal any decision to the FISC 
Court of review and ultimately the Supreme Court.
  Mr. BURR. Mr. President, I see that the senior Senator from Virginia 
is here and I know he has some questions he wishes to ask, so I will 
limit myself to one more.
  What happens if a provider refuses to comply with the directive you 
just talked about?
  Mr. BOND. I would tell my good friend from North Carolina that the 
bill we reported out of our committee provides a mechanism for the 
Government to compel a provider to comply with a directive. If the 
court finds that the directive was issued properly and is lawful, it 
must order the provider to comply with the directive and that provider 
is provided immunity for doing so. But a failure to comply by a company 
could result in a contempt of court. Both the Government and the 
provider may appeal any decision to the FISC Court of review and 
ultimately the Supreme Court.
  I thank my colleague for his service on the committee and for his 
very helpful questions.
  Mr. BURR. I thank the Senator.
  Mr. BOND. Mr. President, I see the distinguished Senator from 
Virginia is here, and I would turn to him if he has some questions.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, I thank my colleague, the ranking member 
of the committee. I am privileged to serve on that committee with the 
senior Senator from the great State of Missouri.
  I would like to first make a few opening comments, if I might.
  Mr. BOND. I appreciate that.
  Mr. WARNER. Mr. President, first, I commend how well the 
distinguished Senator from Missouri has represented to this Chamber and 
its Members and, indeed, to all those in our Nation who are following 
this debate, how well he has represented a proper and balanced 
perspective and how a solution to the important questions that have 
been raised by all of us can be resolved.
  In my own case, I have thought long and hard about this situation, 
and I would like to reflect on a bit of history. I was privileged to 
serve in the Department of Defense from the years 1969 to 1974 during 
the war in Vietnam. At the latter part of my service there, we 
originated the concept of the all-volunteer force. There was great 
skepticism as to whether this concept would work, and it was a high 
risk to abolish the draft and to enter into this concept of all 
volunteer, to be the only persons to be given the privilege of wearing 
the uniform of the United States of America in the branches of the 
Army, the Navy, the Air Force, and the Marines.
  Fortunately, it was adopted by the President, eventually written into 
law by the Congress. That concept has worked. It is working at this 
very moment with brave young men and women all over the world. They are 
there because each of them raised their right hand and took the oath of 
office voluntarily.
  I see a direct analogy to this question that is before this Chamber 
and, indeed, the Nation, the question of whether corporations, which 
although they did not raise their hand and volunteer, they have 
nonetheless volunteered comparably to the men and women in the Armed 
Forces.

[[Page 1165]]

  The work product of their volunteering is every day saving and 
protecting the lives of our service personnel and, indeed, many others 
worldwide from the actions of terrorists and others who are trying to 
rip freedom away from our Nation and other nations.
  So as we reach our decision on this issue, let's stop to think about 
the United States of America, while not written into the Constitution, 
the Bill of Rights, or otherwise, has throughout its history adopted a 
concept of voluntarism by its citizens, by its companies to step 
forward and take on serious problems that confront our Nation.
  I see a direct analogy, I say to my distinguished colleague, and I 
stand steadfast with our committee which voted 13 to 2 to provide this 
framework which we hope will eventually become the law of the land, to 
give reasonable protections to these companies that are part of the 
overall volunteer force, be they in uniform or corporations, working to 
protect our Nation.
  Having said that, I say to my distinguished colleague, I think it is 
very important that we proceed to prepare a complete record for the 
scrutiny of all on these issues. I wish to suggest a question to my 
distinguished colleague.
  All of us have heard a number of comments that more time is needed to 
study this issue, the issue of carrier liability, carriers being those 
companies that stepped up to work on behalf of the cause of freedom and 
preservation of our safety here at home. Hasn't the Intelligence 
Committee conducted a thorough and bipartisan review of the President's 
surveillance program? And hasn't the committee determined the providers 
acted in good faith?
  Mr. BOND. Mr. President, I thank my distinguished colleague from 
Virginia. The answer to that question is yes. I wish to say what a 
pleasure it is to serve with the distinguished representative of 
Virginia, who served his country in the Department of Defense, who 
pushed through the landmark decision to have a volunteer military, 
which I might say my son was proud to participate in, and to say that 
his previous experience on the Intelligence Committee and his long and 
devoted service on the Senate Armed Services Committee has made him an 
invaluable member of the committee.
  Mr. WARNER. For purposes of the record, I do not claim the credit. I 
was but one of many who worked on the concept of that great program. I 
found in this town, and as I know the Senator does likewise, the less 
credit you try and take, the more effective one can be in other tasks.
  Mr. BOND. I say through the Chair, the distinguished Senator from 
Virginia deserves far more credit than he is ever given. I was trying 
to sneak in a little bit to say how much we appreciate his service. 
When he needs to correct me, I always stand corrected.
  To return to the question, I do have an answer, and that is, the 
committee conducted a comprehensive and bipartisan review. We 
interviewed witnesses, we went out to NSA to see how the Terrorist 
Surveillance Program was implemented, examined documents, including the 
Department of Justice legal opinions and letters from the Government to 
providers.
  The letters were provided to the carriers in regular intervals and 
stated the activities had been authorized by the President. All the 
letters also state the Attorney General had determined the activities 
to be lawful, except for one which stated the determination had been 
made by the counsel to the President.
  After conducting this extensive review, the committee concluded the 
providers that allegedly assisted the TSP acted in good faith and, 
based on representations of the highest level of the Government, that 
the program was lawful. Therefore, the committee concluded the civil 
liability protection for these providers was appropriate, and I draw 
upon my experience at the law school at the University of Virginia, 
where my distinguished colleague also studied law, to say that 
reviewing those documents and letters led me to the conclusion that it 
was clear on its face that the carriers were receiving a valid, legal 
directive from the highest authorities in the Federal Government.
  Mr. WARNER. Mr. President, I thank my colleague. He said the 
committee ``concluded.'' It concluded by the manifestation of a vote of 
13 to 2, so that an overwhelming majority of the committee, bipartisan, 
made this decision.
  Mr. BOND. That is correct.
  Mr. WARNER. I think that is an important reference point.
  Further, I say to my colleague, the committee's liability provision 
in the matters pending before this Senate today extends only to civil--
I underline civil--liability protection for those providers that 
allegedly assisted with the TSP program. Isn't this already a 
compromise from what the Director of the National Intelligence had 
initially requested of the Congress?
  Mr. BOND. Mr. President, I say to my friend from Virginia, in April 
of 2007, the DNI submitted his request to modernize FISA to Congress, 
to our committee, and it included a request for full liability for all 
persons, including Government officials who had allegedly participated 
in the President's Terrorist Surveillance Program.
  As my colleague has stated, the committee passed this bill by a 13-
to-2 bipartisan vote. It included civil liability protection for those 
providers that allegedly assisted with the TSP. The protection was not 
extended to Government officials or to criminal prosecution. We did not 
seal off all potential liability of anyone who may have acted 
criminally--that would be up to the Department of Justice to 
determine--or Government officials who are named, I believe, in seven 
pending lawsuits.
  Mr. WARNER. Mr. President, I thank my colleague for that because the 
DNI, Director McConnell, a former admiral--I knew him in the Navy going 
way back when I was there. As a matter of fact, as a point of 
reference, when I was Secretary, he was one of the junior officers who 
briefed me every morning at 7:30 on intelligence. But he has done an 
extraordinary job in presenting in a very fair and objective way the 
need for the revisions to this legislation which are reflected in the 
pending bill before the Senate as submitted by the committee.
  I think the Senator has carefully delineated those portions which we 
resolved, as a committee, were essential and did not accept in full 
measure all his recommendations; am I not correct in that?
  Mr. BOND. That is correct. Now I understand why Admiral McConnell is 
doing such a good job because he obviously had very good early 
training. I did not know he had been through the Warner course in 
intelligence, but that ties up the loose ends, and now I understand 
more fully.
  Mr. WARNER. Again, Mr. President, I have to tell you, I was learning 
at a very young age and taking on responsibility in that critical 
period of history. I learned as much from him, if not more, than he did 
from me.
  I have another question for my colleague. What consequences or risks 
are there if our private volunteer--I underline volunteer--participants 
by way of corporations are not given civil liability protection from 
the pending and ongoing lawsuits and perhaps others?
  Mr. BOND. Mr. President, that is a very serious question because if 
those lawsuits should continue, either directly against carriers 
alleged to have participated or substitution or indemnification, No. 1, 
the identities of the providers could be revealed which would 
compromise our intelligence sources and methods. No. 2, the providers 
would be far less willing to cooperate with legitimate requests for 
assistance in the future, thus crippling our intelligence collection. 
Why is this? Quite frankly, because this would have a huge damage to 
their business reputations. They have already been accused falsely of 
all sorts of things that have raised questions that are reflected in 
damage to the value of the shareholders of the company and potentially 
bring great risk to the employees of those corporations and their 
facilities. These lawsuits would occur not only in the United States 
but even more likely they would occur overseas, and there could be real 
personal danger if the companies are confirmed as assisting the 
Government's fight against

[[Page 1166]]

terrorism. Their facilities, their personnel could be at risk of 
terrorist targeting or other vigilante actions.
  Mr. WARNER. Mr. President, I thank my colleague. I think it is very 
important that we portray the risks that are associated with these 
endeavors taking place in the court system now. Again, I draw the 
attention of all colleagues to the thorough work done by this committee 
on which I am privileged to serve and the bipartisan manner in which we 
resolved these issues.
  A question to my colleague: We heard some Members advocate 
substitution--in other words, a substituted solution--rather than a 
civil liability protection. Perhaps the Senator can address exactly 
what that substitution is and how, in his judgment, this would not be a 
means by which to resolve this very serious problem.
  Mr. BOND. Mr. President, as I indicated, the dangers to the providers 
would be as great under substitution as if they were sued directly. 
While the providers might not be parties to the litigation, under the 
amendment offered by Senators Specter and Whitehouse, discovery would 
be allowed to proceed against the providers, and this puts them at the 
same risk of disclosure as allowing the litigation to proceed directly 
against them. That is one of the most sensitive intelligence programs 
in our history. The intelligence community has done a thorough 
bipartisan review of the providers' conduct, and we in the committee 
feel we cannot risk our intelligence sources and methods by allowing 
litigation to continue and by allowing the potential of significant 
damage to those companies and their shareholders who may be widows and 
orphans and certainly members whose pensions may be invested in shares 
of those companies.
  Mr. WARNER. Mr. President, I thank my colleague. I would also add 
that there will be further chapters in the history of this country, and 
I cannot try to look that far into the future as to what those chapters 
may be when we, as a successor government to the one we now have in 
terms of our President, will be faced with another challenge and look 
to volunteers--volunteers--to solve this problem. This is going to be a 
landmark precedent for future Presidents as we address problems which 
could be assisted by the participation of the corporate world here in 
our United States.
  A further question of my colleague. We have also heard some Members 
say the Foreign Intelligence Surveillance Court should decide whether 
the providers acted in good faith. Wouldn't this duplicate the 
bipartisan work of the Intelligence Committee?
  Mr. BOND. Mr. President, that is why we have an Intelligence 
Committee. The Intelligence Committee concluded on a bipartisan basis 
that they acted in good faith. There is no need for the FISC to 
duplicate the work. The FISC was set up to issue orders on individual 
targets for domestic collection. We expanded their responsibilities. 
The court is not set up and was not set up for protected en banc 
litigation. The amendment offered by Senator Feinstein would allow 
parties to litigate the good-faith providers.
  I see my time has expired. I believe the Senator from Virginia has 
sought time, and I see one of my colleagues on the other side has 
sought time, so I will yield to them for their comments, and I ask 
unanimous consent that I be recognized at the end of the remarks of 
these two colleagues.
  The PRESIDING OFFICER (Mrs. McCaskill). Is there objection?
  Mr. WARNER. Madam President, no objection.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WARNER. I would just ask if it would be possible--and I see my 
distinguished colleague on the floor seeking recognition--may I have 
but a few minutes to conclude my remarks here with my good friend and 
the ranking member of the committee?
  Madam President, last year, when the important legislation passed by 
the Senate Intelligence Committee came to the floor, I spoke about 
several elements in this bill. Specifically, I spoke about how the 
Intelligence Committee bill ensures that the intelligence gap that was 
closed by the Protect America Act in August remains sealed. I spoke 
about the important balance the Intelligence Committee bill strikes 
between protecting civil liberties and ensuring that our hard-working 
and dedicated intelligence professionals have the tools they need to 
protect this Nation--a point I cannot too strongly emphasize. I also 
highlighted one of the most important provisions of the bill: 
retroactive liability protection for carriers alleged to have assisted 
the Government with the terrorist surveillance program. I said in 
December that, based on the documents and testimony provided to our 
committee, I strongly believed the carriers that have participated in 
the program relied--I repeat, relied--upon our Government--that is, the 
executive branch of the Government of the United States--that their 
actions were legal and in the best interests of the security of 
America. Further, I stated that, in my opinion, these companies deserve 
and must be protected from costly and damaging litigation in our court 
system.
  During the Senate's Christmas recess, I had additional time to 
further study this issue, as I have day after day, and gather 
additional information. That time to reflect and study and to deepen my 
knowledge on this issue has only reinforced my view that the carrier 
liability protections in the Intelligence Committee's bill are not only 
necessary but vital for the protection of our future national security.
  One item in particular has played a key role in my thinking about 
this issue. It was a thoughtful opinion piece written by three 
gentlemen I know very well, former public servants, and I wish to say a 
few words about that, and then I will conclude my remarks.
  Three individuals stepped forward to give their perspectives on this 
critical issue. The first was Benjamin Civiletti, U.S. Attorney General 
under President Jimmy Carter; the second was Dick Thornburgh, U.S. 
Attorney General under President George Herbert Walker Bush; and 
thirdly, Judge William Webster, known very well by almost all of us 
here in the Chamber, former Director of the CIA and former Director of 
the Federal Bureau of Investigation. The article these fine public 
servants authored, titled ``Surveillance Sanity,'' appeared in the 
October 31, 2007, edition of the Wall Street Journal.
  Madam President, I ask unanimous consent to have printed in the 
Record a copy of that article following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. WARNER. I wish to share some of the thoughts in that article with 
my colleagues.
  First, regarding the Intelligence Committee's carefully crafted and 
limited liability protections, the three public servants said:

       We agree with the committee. Dragging phone companies 
     through protracted litigation would not only be unfair, but 
     it would deter other companies and private citizens from 
     responding in terrorist emergencies whenever there may be 
     uncertainty or legal risk.

  Our committee has heard testimony that without such protections, some 
companies believe they can no longer cooperate and assist our 
Government because they would risk hundreds of millions of dollars of 
their shareholders' money in protracted lawsuits. They have a fiduciary 
responsibility, those companies, to their shareholders. That is 
intrinsic in all of our corporate structures.
  Second, the boards of directors of these companies have a fundamental 
obligation to those shareholders. On this issue, the three public 
servants wrote:

       The government alone cannot protect us from the threats we 
     face today. We must have the help of all of our citizens. 
     There will be times when the lives of thousands of Americans 
     will depend on whether corporations such as airlines and 
     banks are willing to lend assistance. If we do not treat them 
     fairly when they respond to assurances from the highest 
     levels of the government that their help is legal and 
     essential for saving lives, then we will be radically 
     reducing our society's capacity to defend itself.

  Moreover, I believe that companies which assisted the Government will

[[Page 1167]]

not be treated fairly by the provision being offered by my Judiciary 
Committee colleagues to substitute the Government in currently pending 
lawsuits.
  I strongly believe the substitution proposal is not an acceptable 
alternative to the Intelligence Committee's bill.
  Additionally, if lawsuits are allowed to proceed, companies will 
still be forced to participate and provide evidence. The continuing 
damage in terms of business reputation and stock valuation even if the 
Government ultimately prevails, will surely be extremely harmful to the 
companies.
  Further, the Government being substituted as the defendant in a trial 
opens up evidentiary problems regarding sources and methods which, if 
exposed, would hinder the ability of the intelligence community to 
intercept terrorist communications and those of our other enemies.
  Finally, the last point I would like to raise relates to the right of 
individuals to file suit. Let me be clear--individuals who believe that 
the Government violated their civil liberties can pursue legal action 
against the Government--the Intelligence Committee's bill does nothing 
to limit that legal recourse.
  This issue is underscored by the final quote I would like to share 
with you by Messrs. Civiletti, Thornburg, and Webster:

       Whether the government has acted properly is a different 
     question from whether a private person has acted properly in 
     responding to the government's call for help. From its 
     earliest days, the common law recognized that when a public 
     official calls on a citizen to help protect the community in 
     an emergency, the person has a duty to help and should be 
     immune from being hauled into court unless it was clear 
     beyond doubt that the public official was acting illegally. 
     Because a private person cannot have all the information 
     necessary to assess the propriety of the government's 
     actions, he must be able to rely on officials assurances 
     about need and legality. Immunity is designed to avoid the 
     burden of protracted litigation, because the prospect of such 
     litigation itself is enough to deter citizens from providing 
     critically needed assistance.

  Madam President--I agree with these distinguished gentlemen.
  Bottom line, companies who participate in this program do so 
voluntarily to help America preserve its freedom and security. And that 
security will ensure for the very safety--both individually and 
collectively--of its citizens.
  In closing, I would like to state that I have long supported the idea 
of ``an all-volunteer force'' for our military and I believe ``an all-
volunteer force'' of citizens and businesses who do their part to 
protect our great Nation from harm is equally important.
  Without this retroactive liability provision, I believe companies 
will no longer voluntarily participate. This will result in a 
degradation of America's ability to protect its citizens.
  It is for these reasons that I urge my colleagues to support the 
Rockefeller-Bond substitute amendment to grant the men and women of the 
intelligence community the tools they need to protect our country.

                               Exhibit 1

             [From the Wall Street Journal, Oct. 31, 2007]

                          Surveillance Sanity

      (By Benjamin Civiletti, Dick Thornburgh and William Webster)

       Following the terrorist attacks of Sept. 11, 2001, 
     President Bush authorized the National Security Agency to 
     target al Qaeda communications into and out of the country. 
     Mr. Bush concluded that this was essential for protecting the 
     country, that using the Foreign Intelligence Surveillance Act 
     would not permit the necessary speed and agility, and that he 
     had the constitutional power to authorize such surveillance 
     without court orders to defend the country.
       Since the program became public in 2006, Congress has been 
     asserting appropriate oversight. Few of those who learned the 
     details of the program have criticized its necessity. 
     Instead, critics argued that if the president found FISA 
     inadequate, he should have gone to Congress and gotten the 
     changes necessary to allow the program to proceed under court 
     orders. That process is now underway. The administration has 
     brought the program under FISA, and the Senate Intelligence 
     Committee recently reported out a bill with a strong 
     bipartisan majority of 13-2, that would make the changes to 
     FISA needed for the program to continue. This bill is now 
     being considered by the Senate Judiciary Committee.
       Public disclosure of the NSA program also brought a flood 
     of class-action lawsuits seeking to impose massive liability 
     on phone companies for allegedly answering the government's 
     call for help. The Intelligence Committee has reviewed the 
     program and has concluded that the companies deserve targeted 
     protection from these suits. The protection would extend only 
     to activities undertaken after 9/11 until the beginning of 
     2007, authorized by the president to defend the country from 
     further terrorist attack, and pursuant to written assurances 
     from the government that the activities were both authorized 
     by the president and legal.
       We agree with the committee. Dragging phone companies 
     through protracted litigation would not only be unfair, but 
     it would deter other companies and private citizens from 
     responding in terrorist emergencies whenever there may be 
     uncertainty or legal risk.
       The government alone cannot protect us from the threats we 
     face today. We must have the help of all our citizens. There 
     will be times when the lives of thousands of Americans will 
     depend on whether corporations such as airlines or banks are 
     willing to lend assistance. If we do not treat companies 
     fairly when they respond to assurances from the highest 
     levels of the government that their help is legal and 
     essential for saving lives, then we will be radically 
     reducing our society's capacity to defend itself.
       This concern is particularly acute for our nation's 
     telecommunications companies. America's front line of defense 
     against terrorist attack is communications intelligence. When 
     Americans put their loved ones on planes, send their children 
     to school, or ride through tunnels and over bridges, they are 
     counting on the ``early warning'' system of communications 
     intelligence for their safety. Communications technology has 
     become so complex that our country needs the voluntary 
     cooperation of the companies. Without it, our intelligence 
     efforts will be gravely damaged.
       Whether the government has acted properly is a different 
     question from whether a private person has acted properly in 
     responding to the government's call for help. From its 
     earliest days, the common law recognized that when a public 
     official calls on a citizen to help protect the community in 
     an emergency, the person has a duty to help and should be 
     immune from being hauled into court unless it was clear 
     beyond doubt that the public official was acting illegally. 
     Because a private person cannot have all the information 
     necessary to assess the propriety of the government's 
     actions, he must be able to rely on official assurances about 
     need and legality. Immunity is designed to avoid the burden 
     of protracted litigation, because the prospect of such 
     litigation itself is enough to deter citizens from providing 
     critically needed assistance.
       As the Intelligence Committee found, the companies clearly 
     acted in ``good faith.'' The situation is one in which 
     immunity has traditionally been applied, and thus protection 
     from this litigation is justified.
       First, the circumstances clearly showed that there was a 
     bona fide threat to ``national security.'' We had suffered 
     the most devastating attacks in our history, and Congress had 
     declared the attacks ``continue to pose an unusual and 
     extraordinary threat'' to the country. It would have been 
     entirely reasonable for the companies to credit government 
     representations that the nation faced grave and immediate 
     threat and that their help was needed to protect American 
     lives.
       Second, the bill's protections only apply if assistance was 
     given in response to the president's personal authorization, 
     communicated in writing along with assurances of legality. 
     That is more than is required by FISA, which contains a safe-
     harbor authorizing assistance based solely on a certification 
     by the attorney general, his designee, or a host of more 
     junior law enforcement officials that no warrant is required.
       Third, the ultimate legal issue--whether the president was 
     acting within his constitutional powers--is not the kind of 
     question a private party can definitively determine. The 
     companies were not in a position to say that the government 
     was definitely wrong.
       Prior to FISA's 1978 enactment, numerous federal courts 
     took it for granted that the president has constitutional 
     power to conduct warrantless surveillance to protect the 
     nation's security. In 2002, the FISA Court of Review, while 
     not dealing directly with the NSA program, stated that FISA 
     could not limit the president's constitutional powers. Given 
     this, it cannot be said that the companies acted in bad faith 
     in relying on the government's assurances of legality.
       For hundreds of years our legal system has operated under 
     the premise that, in a public emergency, we want private 
     citizens to respond to the government's call for help unless 
     the citizen knows for sure that the government is acting 
     illegally. If Congress does not act now, it would be 
     basically saying that private citizens should only help when 
     they are absolutely certain that all the government's actions 
     are legal. Given the threats we face in today's world, this 
     would be a perilous policy.

  Mr. WARNER. Madam President, I yield the floor at this time.
  The PRESIDING OFFICER. The Senator from North Dakota.

[[Page 1168]]


  Mr. DORGAN. Madam President, are we in morning business?
  The PRESIDING OFFICER. We are.
  Mr. DORGAN. Madam President, I ask unanimous consent that I be 
allowed to speak for such time as I may consume.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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