[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 1259-1276]
[From the U.S. Government Publishing Office, www.gpo.gov]




                      FISA AMENDMENTS ACT OF 2007

  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of S. 2248, which the clerk will 
report.
  The legislative clerk read as follows:

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

  Pending:

       Rockefeller/Bond amendment No. 3911, in the nature of a 
     substitute.

  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, I thank my colleagues for agreeing on a way 
forward on this bill. This is a very important bill, the Foreign 
Intelligence Surveillance Act, the FISA Act, of 2008. It gives the 
intelligence community the tools it needs right now and over the next 6 
years to protect the country.
  The Protect America Act we passed in Congress and the President 
signed last August allowed the intelligence community to close critical 
intelligence gaps, but that legislation expires in less than 2 weeks. 
We cannot let those gaps reopen. We passed a

[[Page 1260]]

short-term extension, and that extension will expire when we are 
preparing to go out on the President's Day recess. We cannot leave our 
country blind and deaf to threats that terrorists might bring.
  We were delayed in December by filibuster, which is the right of all 
Senators to have extended discussions. And there are those who say we 
need more time to look at this measure because it is very important and 
it is very technical and it is controversial. But the Intelligence 
Committee spent over 9 months looking at FISA modernization. We held 
hearings, we reviewed the Terrorist Surveillance Program, we looked at 
the implementation of the Protect America Act, and after that, we came 
up with a solid bipartisan bill. That is something in which Chairman 
Rockefeller and I take a great deal of pride because we accommodated 
many changes and improvements and we did improve on the existing FISA 
structure, as well as adding items the Protect America Act needed to 
have but did not have.
  The intelligence community is waiting for us to act. We have a bill 
that is responsible and effective. It addresses the concerns about the 
Protect America Act, but most of all, it gives the intelligence 
operators the tools they need and ensures that our private partners 
will continue to assist the Government.
  As I said, this bill came out of the Intelligence Committee on a 13-
to-2 vote after months of studying the collection programs. Chairman 
Rockefeller, whom I thank again, and I worked together to get an 
agreement that protects America's constitutional rights and the privacy 
rights of American citizens.
  There was a lot of work with the intelligence community 
representatives and lawyers from the Department of Justice. The 
Intelligence Committee members and their staffs did an outstanding job 
coming up with a solution.
  Two provisions added during the initial markup without input from the 
intelligence community needed to be changed. They are great objectives, 
but they had to be made workable. It was our pleasure to work with 
Chairman Rockefeller, Senator Whitehouse, and Senator Wyden to come up 
with a solution to both these problems, and they are now in the 
substitute now pending.
  The Director of National Intelligence, who is responsible for running 
our collection programs, said with these two problems fixed, he will 
support the bill. This is very important to the chairman and to me 
because we want to pass a bill that works and will become law. It would 
do no good to pass a bill that has people's good ideas in it or pass a 
bill that is good for politics but doesn't work for those who are 
charged with protecting us from the threats our country faces. So the 
support of this bill by the Director of National Intelligence in 
particular is critical. With these fixes, we will have a bill the 
President will sign.
  The chairman and I have worked shoulder to shoulder on a bipartisan 
basis to pass this bill. We will have to take a very careful look at 
any amendments that are proposed because we don't want to jeopardize 
the ability of the intelligence community and their private partners to 
go forward. It is very technical. Each word matters. And we will do our 
best to point out whether amendments will work. There are several 
amendments pending that we think will improve the bill but will not 
bring a veto.
  With that, Mr. President, I thank all the Members who have worked 
with us in close collaboration to get time agreements, to get a list of 
acceptable amendments, and I am looking forward to moving ahead with 
this bill just as soon as we can. I thank my colleague from West 
Virginia and the other colleagues for working together on the 
Intelligence Committee bill.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, first let me express my appreciation 
to the distinguished vice chairman of the Senate Intelligence Committee 
for his very energetic dedication to moving this bill forward. We have 
not agreed on everything, but nobody can challenge his dedication to 
moving a bill and to making progress on this issue.


                Amendment No. 3920 to Amendment No. 3911

  Mr. President, per the pending agreement, I call up amendment No. 
3920, the Whitehouse amendment.
  The ACTING PRESIDENT pro tempore. The clerk will report the 
amendment.
  The legislative clerk read as follows:

       The Senator from Rhode Island [Mr. Whitehouse], for 
     himself, Mr. Rockefeller, and Mr. Leahy, proposes an 
     amendment numbered 3920.

  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that the 
reading of the amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  The amendment is as follows:

        (Purpose: To provide procedures for compliance reviews)

       On page 19, between lines 20 and 21, insert the following:
       ``(7) Compliance reviews.--During the period that 
     minimization procedures approved under paragraph (5)(A) are 
     in effect, the Court may review and assess compliance with 
     such procedures and shall have access to the assessments and 
     reviews required by subsections (k)(1), (k)(2), and (k)(3) 
     with respect to compliance with such procedures. In 
     conducting a review under this paragraph, the Court may, to 
     the extent necessary, require the Government to provide 
     additional information regarding the acquisition, retention, 
     or dissemination of information concerning United States 
     persons during the course of an acquisition authorized under 
     subsection (a). The Court may fashion remedies it determines 
     necessary to enforce compliance.

  Mr. WHITEHOUSE. Mr. President, in this debate about revising FISA and 
cleaning up the damage done by the President's warrantless wiretapping 
program, the administration has talked at length about the importance 
of our foreign intelligence activities. It expends all its rhetorical 
energy on a topic where we all agree, but it has largely ignored the 
issue that has been central to our debate: On what terms will this 
administration spy on Americans?
  I rise today in support of an amendment offered by myself; by the 
distinguished chairman of the Senate Intelligence Committee, Chairman 
Rockefeller; the distinguished chairman of the Senate Judiciary 
Committee, Senator Leahy; Senator Schumer of New York; and Senator 
Feingold of Wisconsin, that addresses this issue: the privacy of 
Americans from Government surveillance.
  Our amendment reflects the convergence of ideas Senator Schumer has 
been working on in the Judiciary Committee and I was working on in the 
Intelligence Committee and, similarly, Senator Feingold has played a 
critical role in advancing this issue in both committees. Both 
chairmen, Senator Leahy and Senator Rockefeller, have reviewed it and 
given it their blessing. It is carefully crafted to incorporate 
statutory language offered by the Department of Justice as technical 
assistance.
  On this amendment, we have done our homework. What is this amendment 
about? As a former U.S. attorney and Rhode Island attorney general, I 
oversaw wiretaps and other surveillance procedures, and I learned that 
with any electronic surveillance, whether it is a domestic law 
enforcement investigation or intelligence gathering on international 
terrorism, information about Americans is intercepted incidentally--in 
other words, when they are not being targeted by our intelligence or 
law enforcement agencies but overheard because they are talking to or 
talking with or even being discussed by someone who is under 
surveillance. So minimization is the term of art. Minimization is the 
process for protecting the privacy of Americans who are caught up in 
surveillance without being the target of the surveillance.
  The issue here is privacy rights of Americans, and in domestic law 
enforcement there are clear, established procedures for minimizing the 
collection or retention of this information to ensure that the privacy 
of innocent Americans is protected. In this pursuit,

[[Page 1261]]

the prospect of judicial review--the prospect of judicial review--is an 
important part of our protection.
  Under the Senate Intelligence bill before us, the court has the 
authority to approve minimization procedures. It has the authority to 
approve the procedures, but it is then told that it can't look fully 
into whether the procedures are being followed. Thus, there is no 
guarantee the procedures are actually being adhered to by the executive 
branch on the part of the overseeing court.
  I have introduced this amendment to give the FISA Court the same 
discretionary authority to follow up on the implementation of all these 
minimization procedures that it has in every other context and that is 
common to all courts throughout the American system of justice. 
Chairman Rockefeller and Vice Chairman Bond have already agreed and put 
into the bill we will vote on that this authority already lies with the 
court where the target is an American, and I wish to thank Vice 
Chairman Bond in particular for working with me in bipartisan fashion 
on that point.
  If the target of surveillance is an American inside the United States 
or if the target of the surveillance is an American overseas, then the 
court has the authority to review compliance through the minimization 
procedures. But as will often be the case, the target will be a person 
outside the United States, a person who is not in America, and then an 
American could just as easily be incidentally intercepted in these 
conversations, and they should still have rights, and they should still 
have protections.
  Because minimization serves to protect the incidentally intercepted 
person, this protection should apply when the incidentally intercepted 
person is an American, and the court's authority to make sure the rules 
are being followed should apply there as well. It makes no sense to 
strip a court of its natural authority based on the identity of the 
target when the protection runs to the American who is not the target 
but who has been incidentally intercepted.
  It, frankly, makes no sense as a general proposition to limit the 
court's authority to see whether rules it has approved are being 
followed. I found no place else in the law, no place at all where the 
authority of a court to approve an order, a rule, or a procedure is not 
accompanied by the concomitant authority to see if there is compliance. 
It is basic. Indeed, it may very well be, if there is litigation on 
this matter, a court will find that it is so basic to judicial 
authority that they will imply it. But we should put it in the bill and 
get it right; otherwise, we are creating in this bill a bizarre and 
unique quirk in American law, and there is no sensible justification 
offered for it.
  To be clear, this amendment creates no mandates, no cumbersome 
procedures. Indeed, it may never be used at all. In my experience, as I 
said, the mere prospect--the mere prospect--of a judicial inquiry into 
compliance has a salutary effect--a healthy attention-getting, 
awakening, compliance-enhancing effect--on those who are charged with 
complying with the law. The opposite, I am afraid, is true as well. 
When executive officials are assured, as this law would do without this 
amendment, that the court that approves the minimization procedures is 
forbidden to police the compliance of those procedures, one can 
reasonably expect looser compliance in this enforcement holiday.
  I know the Bush administration fears and despises judicial oversight, 
probably with very good reason, but that is no reason that we as a 
Senate should follow them down this wayward path. Both here, where the 
FISA bill creates an unheard of limitation on judicial power to examine 
compliance with its own approved rules, and in the immunity debate, 
where we are being led as a legislature into ongoing legislation to 
choose winners and losers, we embark into dangerous territory, outside 
the well-established traditions of the separated powers of our American 
system of government.
  Particularly to my colleagues who are members of the Federalist 
Society, an organization with a declared interest in separation of 
powers, I hope you will take this occasion to defend those principles.
  To quote the distinguished Justice Scalia from a Supreme Court 
opinion regarding a sense of sharp necessity about this separation of 
the legislative from the judicial power at the founding of our 
Government:

       This sense of a sharp necessity . . . triumphed among the 
     Framers of the new Federal Constitution.

  And it did so, again quoting the decision:

     . . . prompted by the crescendo of legislative interference 
     with private judgments of the courts.

  Going back to a previous decision, United States versus Klein, the 
U.S. Supreme Court, in a holding that Congress may not establish the 
rule of decision in a particular case, said of the legislative and 
judicial powers:

       It is of vital importance that the legislative and judicial 
     powers be kept distinct. It is the intention of the 
     Constitution that each of the great co-ordinate departments 
     of the government--the legislative, executive and the 
     judicial--shall be, in its sphere, independent of the others.

  I submit that a court cannot be independent if it is stripped of the 
duty to determine whether rules and procedures it has the authority to 
approve are even being complied with.
  I urge other Members to support this amendment. I am very gratified 
to see Senator Schumer from New York on the floor. I know he has worked 
hard on this issue in the Judiciary Committee. I am very grateful that 
somebody of his experience and distinction would cosponsor this 
amendment.
  I yield to Senator Schumer.
  The ACTING PRESIDENT pro tempore. Who yields time?
  Mr. WHITEHOUSE. I yield to Senator Schumer.
  The ACTING PRESIDENT pro tempore. The Senator from New York.
  Mr. SCHUMER. Mr. President, I ask for 10 minutes from my colleague 
from Rhode Island, who has the time.
  Mr. WHITEHOUSE. No objection.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. SCHUMER. May I modify that request to make it 12 minutes?
  Mr. WHITEHOUSE. Does that leave 3 or 4 minutes, 5 minutes for the 
chairman?
  Mr. SCHUMER. I will move it back to 10. I didn't realize we were that 
short on time.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island has 
20 minutes remaining.
  Mr. WHITEHOUSE. The 12 minutes will work, leaving time for the 
chairman and some to spare.
  Mr. SCHUMER. On amendment 2937, I wish to thank Senator Whitehouse 
for his leadership on this issue; Senator Feingold and our two great 
chairs, Senator Rockefeller and Senator Leahy. I will briefly describe 
this amendment.
  When we debate these issues, our friends on the intelligence side say 
you cannot stop us with cumbersome procedures that will not allow us to 
listen in on a phone conversation a terrorist might be engaging in, you 
have to act quickly. That is a legitimate wish. You certainly do not 
want to let a phone conversation slip away while you are going through 
days and days and days in court.
  But this amendment has nothing to do with that. We do not interfere 
with any phone conversation that might legitimately be listened in to, 
that might be tapped ahead of time.
  What we are saying is this: There ought to be oversight to make sure 
our intelligence agencies obey the rules; that when there is a 
conversation or a person, an American citizen on the line who should 
not be listened in to because the conversation is not about the 
intended subject, that they quickly stop listening.
  Now, under present law, there is no oversight, none. So if someone 
would want to take liberties, in one of the intelligence agencies or 
other agencies, and listen in to Americans having conversations, 
citizens, who have no right to be listened in to because they did not 
involve legitimate security concerns, they could continue to do it and 
no one would ever know.

[[Page 1262]]

  That is wrong. The minimization requirements we have placed in this 
amendment, which was originally in the Judiciary Committee amendments, 
but, unfortunately, or in large part in the Judiciary Committee 
amendments--unfortunately that amendment which I supported was 
defeated--will ensure there is oversight and that we get all the 
intelligence information we need, without abuse or overstepping of 
bounds.
  That is the perfect balance. It is hard to see how anyone could 
object to oversight after the fact to make sure people are not abusing 
the privilege of listening in to phone conversations or other 
conversations, electronic conversations, American citizens are having.
  That is why this amendment I hope will be supported unanimously in 
this Chamber. Whether you are a conservative or a liberal, Democrat or 
Republican, someone who leans to the side of making sure we get every 
bit of information or someone who leans on the side of making sure 
American liberties are protected, both worthy goals, you can support 
this amendment.
  I wish to once again thank my colleagues for their hard work on an 
important issue.
  The ACTING PRESIDENT pro tempore. The Senator from West Virginia is 
recognized.
  Mr. ROCKEFELLER. Mr. President, I would like to offer my strong 
support for the amendment offered by Senator Whitehouse to ensure there 
is explicit written legal authority in this bill for the Foreign 
Intelligence Surveillance Court to review and to assess compliance with 
the minimization procedures established for the bill's new acquisition 
authority.
  One of the most serious deficiencies in the Protect America Act was 
the fact that the FISA Court was not given a role at all in approving 
the minimization procedures put in place by the Attorney General and 
the Director of National Intelligence for collection activity. That was 
fine. But it was insufficient.
  Minimization procedures are the procedures that govern the treatment 
of nonpublic information concerning Americans in the acquisition and 
retention and dissemination of foreign intelligence.
  The Intelligence Committee's bill addressed this deficiency in the 
Protect America Act by requiring the court to review and approve 
minimization procedures. The committee, however, learned, and then was 
happy to take from in our discussions, the Judiciary Committee's better 
approach to this. We did not, in the Intelligence Committee bill, 
explicitly authorize the court to assess compliance with these 
minimization procedures.
  As the Senators from Rhode Island and New York have pointed out, 
there is no point in having something on the books if you cannot be 
sure it is going to be complied with.
  So compliance is a sacred principle. Senator Whitehouse's amendment 
will ensure that the court can assess the executive branch's compliance 
with these minimization procedures, be provided with information it 
needs to make the assessment, and have the authority to enforce this 
assessment.
  The administration objected to the provision reported from the 
Judiciary Committee allowing the FISA Court to review compliance with 
minimization procedures as being what it called ``a massive expansion'' 
of the court's role.
  The administration also argued there are enough other oversight 
mechanisms already in the bill, through requirements on the Attorney 
General, the Director of National Intelligence, the Inspectors General 
of the intelligence agencies.
  I respectfully disagree with that assessment. Assessing compliance is 
inherent in the court's role. It is inherent in the FISA Court's role 
in reviewing and approving minimization procedures in the first place. 
In fact, without it, without the compliance part of it, the first parts 
are nice but not sufficient.
  Having the court assess compliance with minimization procedures is an 
important safeguard to ensure there is due care in the handling of, as 
I say, nonpublic information concerning U.S. persons.
  I therefore urge the adoption of this amendment.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, I yield myself 5 minutes. I ask that the 
balance of the time on this side be reserved for Senators Hatch and 
Sessions and others who want to speak.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. WHITEHOUSE. Will the vice chairman yield for a question?
  Inquiring through the Chair, I am wondering when the vice chairman 
believes Senators Hatch and Sessions might be here?
  Mr. BOND. Mr. President, all I know is we were all expected to be 
back at 5:30. I do not have their flight schedules. We are contacting 
their offices, but I do not know when they will be back.
  Let me move on now to address some of the things that have been said. 
No. 1, there was a comment about the damage done by the Protect America 
Act. Nobody has shown any damage done by the Protect America Act. What 
it has done is given our intelligence community the ability to 
intercept foreign terrorist electronic communications. It has kept the 
world and our allies and our own people safer.
  If anybody wants to look at that, there are, in our enclosed 
intelligence rooms, the full description of what has been gained.
  The amendment before us, allowing the FISA Court to assess 
compliance, may sound like a good idea. But when we talk about foreign 
targeting, we are outside the FISA Court's experience and their 
expertise.
  The FISA Court was created in 1978 to issue orders for domestic 
surveillance on particular targets. But Congress specifically left 
foreign surveillance activities to the executive branch and to the 
intelligence community. This is the first time we have heard that a 
court, set up to oversee domestic applications for electronic 
surveillance, should be involved in the foreign targeting efforts 
dealing with foreign information.
  FISA minimization procedures are about protecting the identities of 
U.S. persons. This comes up all the time in domestic surveillance. But 
almost all the collection under these foreign targeting acquisitions 
will be on non-U.S. persons who require no protection under FISA 
minimization procedures.
  I will explain later if I have time, after others have spoken, what 
the FISA Court itself has said about it. Therefore, it does not make 
sense to try to get the FISA Court involved in assessing compliance in 
the foreign targeting arena.
  Now, it has been said that a judge, one of the district court judges 
who is brought in to rule on applications, probable cause applications 
for domestic surveillance, should go out and review what goes on at the 
facilities where collections are being made. Now in France, they have a 
wonderful procedure that goes far beyond anything we have and would 
drive many of our civil libertarians nuts.
  The investigating magistrate investigates, he prosecutes and he rules 
on cases. That is a wonderful way of overseeing the whole line of 
action. As an investigator and prosecutor, he makes a judgment.
  We do not have that situation. We do not have that same system. We 
have courts that rule on controversies. We have given them the power to 
review the minimization procedures, the written procedures but not to 
go out and spend the day trying to figure out what is going on where 
the collections are being held.
  What we do have is a very robust system of oversight, contrary to 
what my colleague from New York said. I will have to agree with him: I 
agree with all the things he said about the New York Giants. I rooted 
for them. I thought they were great. I will have to confer with my 
colleagues from New Hampshire and Maine to see whether they would 
accept on our side the terrible things he said about the New England 
Patriots. But I was a born-again Giants fan yesterday.
  But when he said there is no oversight, he overlooks the supervisors, 
the

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inspector general who is overseeing minimization, the Department of 
Justice lawyers who are on top of them, and, more importantly, the 
Intelligence Committee itself. That is our job. Our job is to oversee 
it, and we intend to continue to oversee it to make sure that system 
works. Our staff can go out there. Our members can go out there.
  I suggest, given the background the distinguished Senator from Rhode 
Island has in seeking warrants, and overseas warrants, probably nobody 
in this body will be better able to oversee compliance than the 
distinguished Senator from Rhode Island, who served as a prosecutor and 
as attorney general. I assure you not one of the FISA Court judges 
would have nearly as good a background or as fruitful a time as my 
colleague from Rhode Island would have.
  I believe, therefore, leaving the existing oversight policies in 
place, with a robust oversight by the Intelligence Committee itself--
those of us who have been entrusted to assure the intelligence 
collection goes forward in an appropriate manner--should be allowed to 
do so.
  Mr. President, I yield the floor and I reserve the remainder of my 
time under the proposal I made previously.
  The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
  Mr. WHITEHOUSE. Mr. President, I ask unanimous consent that my 
remaining time on this amendment be reserved until a later time.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. WHITEHOUSE. I yield the floor.
  Mr. SCHUMER. Mr. President, I rise as the proud cosponsor of 
amendment No. 3920, offered by my friend Senator Whitehouse. I 
supported the Judiciary substitute amendment, and I am disappointed 
that it was tabled. It contained a number of important safeguards and 
protections.
  However, the Senate still has the opportunity to ensure independent 
oversight of our intelligence activities. The amendment before us is a 
key step in that effort. This amendment makes sure that the FISA Court 
can review the privacy of American communications, and take action to 
protect that privacy, any time American communications are gathered 
during the course of foreign intelligence surveillance.
  Senator Feingold and I had an early concern that any FISA update 
needs court oversight with real teeth, and we pushed for these 
protections to be included in the Judiciary substitute amendment. 
Senator Whitehouse had the same concern, and so the amendment before us 
today is the excellent product of many heads working together.
  I have always said that when it comes to intelligence policy, we must 
have three things. First, we need a free and open debate about any 
measure that affects our security. We are having that debate now. 
Second, we need clear rules so that our intelligence community knows 
what is expected and can act within the clear boundaries set out by 
Congress. I will only support a final bill that contains such rules. 
Third and finally, we must have an independent arbiter to ensure that 
those rules are being followed. A rule without oversight is likely to 
be a hollow rule.
  The amendment before us is necessary to put teeth into the Foreign 
Intelligence Surveillance Court's independent oversight function. This 
amendment is a simple, commonsense measure, and yet it is also one of 
the most substantial protections we can provide for Americans. Let me 
explain why this is so.
  As we all know, the bill before us would grant the President broad 
authority to wiretap communications between two foreign people or 
between a foreign person and a U.S. person as long as the target of the 
surveillance is located outside the United States. With these new 
powers, the intelligence community can collect the communications of 
law-abiding Americans, without a warrant, if that American happens to 
be in contact with someone who is up to no good.
  But law-abiding Americans expect their private communications to stay 
private, and rightly so. How can we gather and use the intelligence we 
need but also protect the privacy of innocent Americans? The 
administration says that Americans are protected because the 
intelligence community follows a set of rules called minimization 
procedures. These rules limit the collection, use, and dissemination of 
communications to make sure that Americans' privacy is protected. The 
administration itself sets out these procedures, so they should present 
no hindrance to our intelligence collection. What the administration 
does not say is that currently, there is absolutely no independent 
oversight of whether the administration is following its own rules. The 
bill before us would allow the Foreign Intelligence Surveillance Court 
to review the minimization rules on paper, to see whether they pass 
muster, but no power to review them in practice.
  The amendment now before the Senate offers a vast improvement. With 
this amendment, the court will have the authority to examine the 
administration's performance and to assess whether the intelligence 
community is practicing what it preaches. If the court finds problems, 
it can issue orders to ensure that the administration follows the 
rules.
  I am not suggesting that the court should be setting limits before 
the fact. I think our intelligence community needs the flexibility to 
protect our country. But I think it is essential for the court to be 
able to look back and tell us, with an independent voice, whether the 
administration was following its own rules to protect the privacy of 
law-abiding Americans.
  This amendment does not restrict our intelligence gathering. It 
assures meaningful protection for individual Americans, and it helps to 
promote faith in our Government and our intelligence community. I 
cannot imagine why any of my colleagues would oppose this amendment. We 
all know that the fox alone should not be guarding the henhouse. It is 
just common sense to provide independent, retrospective oversight. I 
hope and expect that all of my colleagues, on both sides of the aisle, 
will join me to vote in favor of this amendment.
  Mr. LEAHY. Mr. President, the bill we are now considering gives the 
executive branch unprecedented authority to conduct warrantless 
surveillance. It would permit the government, while targeting overseas, 
to review more Americans' communications with less court supervision 
than ever before. I support surveillance of those who might do us harm, 
but we also have to protect Americans' civil liberties. One of the most 
important ways to provide that balance is to ensure a meaningful role 
for the courts in supervising this new authority.
  Unfortunately, the Protect America Act severely diminished the 
Foreign Intelligence Surveillance Court's role as a check and balance 
on the executive branch. Under the Protect America Act, the FISA Court 
cannot conduct oversight over whether the executive branch is complying 
with the ``minimization'' rules that are a crucial protection for 
Americans whose communications are incidentally picked up by government 
surveillance of overseas targets. Judicial oversight of how these 
safeguards are working is a critical protection of the privacy of U.S. 
persons in this area.
  I want to praise Senator Whitehouse, who as member of both the 
Judiciary Committee and the Select Committee on Intelligence did so 
much work to reverse the courts diminished role and to craft this 
fundamental provision. His amendment, which was part of our Judiciary 
bill, would ensure that the FISA Court has the authority it needs to 
assess the Government's compliance with minimization procedures, to 
request the additional information it needs to make that determination, 
and to enforce compliance with its orders. It would make certain that 
the FISA Court has a meaningful role in overseeing this new 
surveillance authority.
  Minimization procedures are a key protection--indeed virtually the 
only protection--for the privacy of the conversations of people in the 
United

[[Page 1264]]

States that are ``incidentally'' collected as part of this broad new 
surveillance authority. These could well be completely innocent 
Americans who happen to be talking to someone overseas. FISA Court 
oversight of minimization procedures is critical. Without this 
amendment, the FISA legislation would allow the court to review 
minimization procedures, but it would not give authority to assess 
whether the government is complying with those procedures, nor would it 
permit the court to take any action to correct failure to comply with 
those procedures. This is a crucial amendment and I urge Senators on 
both sides of the aisle to support it.
  The ACTING PRESIDENT pro tempore. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, is it necessary for me to ask that the 
pending amendment be set aside?
  I ask unanimous consent that the pending amendment be set aside.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.


                Amendment No. 3979 to Amendment No. 3911

 (Purpose: To provide safeguards for communications involving persons 
                       inside the United States)

  Mr. FEINGOLD. Mr. President, I call up amendment No. 3979.
  The ACTING PRESIDENT pro tempore. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold], for himself, Mr. 
     Webb, Mr. Tester, Mr. Biden, Mr. Sanders, Mr. Kennedy, Mr. 
     Menendez, Mr. Akaka, Mr. Dodd, and Mr. Obama, proposes an 
     amendment numbered 3979 to amendment No. 3911.

  Mr. FEINGOLD. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  (The amendment is printed in today's Record under ``Text of 
Amendments.'')
  Mr. FEINGOLD. Mr. President, the Protect America Act we passed last 
year was sold repeatedly as a way to allow the Government to collect 
foreign-to-foreign communications without needing the approval of the 
FISA Court. Last week, the Vice President defended the Protect America 
Act by talking about the need to wiretap without a court order ``one 
foreign citizen abroad making a telephone call to another foreign 
citizen abroad about terrorism.''
  Now, this is something all of us support, every one of us. But what 
the Vice President did not mention--and what rarely gets discussed--is 
the Protect America Act actually went much further. It authorized new 
sweeping intrusions into the privacy of countless Americans. The bill 
the Senate is considering to replace the PAA does not do nearly enough 
to safeguard against Government abuse. So this amendment--the Feingold-
Webb-Tester amendment--would provide those safeguards, while also 
ensuring that the Government obtains the information it needs to fight 
the terrorists who threaten us.
  I am, of course, extremely pleased to have the support and 
cosponsorship of Senators Webb and Tester, as well as Senators Biden, 
Sanders, Kennedy, Menendez, Akaka, Dodd, and Obama. We have worked 
closely together to develop a workable solution to a difficult 
problem--a solution I hope the Senate can support.
  Now, this is not about whether we will be effective in combating 
terrorism. This amendment in no way hampers our fight against al-Qaida 
and its affiliates. This is about whether Americans at home deserve 
more privacy protections than foreigners overseas. This is about 
whether anyone outside the executive branch will have a role in 
overseeing what the Government is doing with all the communications of 
Americans it collects inside the United States.
  We all know the stakes are very high. I want my colleagues to 
understand the impact the Intelligence Committee bill being considered 
on the Senate floor could have on the privacy of Americans, because 
that is exactly what our amendment addresses. This bill does not just 
authorize the unfettered surveillance of people outside the United 
States communicating with each other; it also permits the Government to 
acquire those foreigners' communications with Americans inside the 
United States, regardless of whether anyone involved in the 
communication is under suspicion of any kind of wrongdoing at all.
  There is no requirement the foreign targets of this surveillance be 
terrorists, spies, other types of criminals or even agents of a foreign 
power. The only requirements are that the foreigners are outside the 
country and that the purpose of the surveillance is to obtain ``foreign 
intelligence information,'' a term that has an extremely broad 
definition covering anything involving the foreign affairs of the 
United States.
  The key, of course, is that no court reviews these targets 
individually. Only the executive branch decides who fits these 
criteria. So the result is many law-abiding Americans who communicate 
with completely innocent people overseas will be swept up in this new 
form of surveillance, with virtually no judicial involvement and 
virtually no judicial oversight. That is astounding, isn't it? Yet 
there has been very little discussion of it.
  The administration has told us over and over this law is needed to 
capture foreign-to-foreign, terrorism-related communications. In the 
State of the Union last week, President Bush defended this law by 
saying:

       To protect America, we need to know who the terrorists are 
     talking to, what they are saying, and what they are planning.

  Even the administration's illegal warrantless wiretapping program, as 
described when it was publicly confirmed in 2005, at least focused on 
particular al-Qaida terrorists. But what we are talking about now is 
different. This is the authority to conduct a huge dragnet that will 
sweep up innocent Americans at home, combined with an utter lack of 
oversight mechanisms to prevent abuse.
  These incredibly broad authorities are particularly troubling because 
we live in a world in which international communications are 
increasingly commonplace. Thirty years ago, it was very expensive and 
not very common for most Americans to make an overseas call. Now, 
though, particularly with e-mail, such communications are commonplace. 
Millions of ordinary and innocent Americans communicate with people 
overseas for entirely legitimate personal and business reasons. 
Technological advancements, combined with the ever more connected world 
economy, have led to an explosion of international contacts. Americans 
call family members overseas; students e-mail friends they met while 
they were studying abroad; businesspeople communicate with colleagues 
or clients overseas.
  In fact, recently released declassified responses to congressional 
oversight questions highlight how broad these authorities are. The 
executive branch was asked whether it could acquire all the calls and 
e-mails between employees of a U.S. company and a foreign company the 
U.S. Government is targeting, with no requirement to get a warrant and 
no requirement that there be some link to terrorism or a specific 
threat against the United States. The administration did not deny this 
would be entirely legal under the PAA.
  So any American who works at a company that does business overseas 
should think about that.
  Americans should also think about the testimony of the DNI himself, 
in which he said the PAA would authorize the collection of all 
communications between the United States and overseas. In other words, 
the Government has the authority to collect all international calls and 
e-mails into and out of the United States--every last one.
  We often hear from those who want to give the Government new powers 
that we just have to bring FISA up to date with new technology. But 
changes in technology should also cause us to look closely at the need 
for greater protection of the privacy of our citizens.
  If we are going to give the Government broad new powers that will 
lead to the collection of much more information on innocent Americans, 
we in the Senate have a duty to provide the

[[Page 1265]]

necessary safeguards against abuse. That, of course, is what the 
Feingold-Webb-Tester amendment would do. It allows the Government to 
acquire all the communications of foreign targets communicating with 
other foreigners overseas. It also allows the Government to acquire all 
the communications of overseas terrorists, but it sets up additional 
safeguards--additional checks and balances--for communications of 
foreign targets the Government ultimately determines involves someone 
in the United States.
  The amendment has several components. But let me reiterate that the 
amendment would permit the Government to freely acquire and share all 
foreign-to-foreign communications without any court oversight. This is, 
in fact, an enormous change from the pre-PAA law, and this amendment 
leaves those new authorities intact.
  Let me quickly describe how the amendment would work. First, when the 
Government knows in advance that a foreign target is communicating with 
someone in the United States, it permits the Government to acquire, 
without a court order, those communications involving terrorism or 
suspected terrorists or if someone's safety is at stake. It permits the 
Government to acquire any other communications into the United States 
with a court order. The FISA Court would review and approve procedures 
for making these determinations. As I said, the Government could 
continue to acquire and use any communications its foreign targets have 
with other foreigners overseas. That surveillance would continue, 
again, without any court oversight. Our amendment permits that.
  The second part of this proposal recognizes it is frequently not 
possible for the Government, in advance, to determine whether a 
particular communication is a purely foreign communication or involves 
one end in the United States. Thus, the amendment specifies that when 
the Government does not know in advance with whom a foreign target is 
communicating, it can acquire all the target's communications without 
an individualized court order--all of them.
  But at some point--and this is one of the keys to our amendment--the 
Government may realize it has acquired a communication with one end in 
the United States based on procedures that are developed by the 
executive branch and reviewed and approved by the FISA Court. Under our 
amendment, it must then tag or segregate the U.S.-end communication in 
a separate database.
  Now, we know this tagging process is feasible because the Government 
recently declassified the fact that it does something similar with 
information obtained under the PAA. The Government can then access, 
analyze, and disseminate any of these tagged U.S. communications if 
they involve terrorism or a suspected terrorist or if someone's safety 
is at stake. All they have to do is this: They have to simply notify 
the FISA Court after the fact and provide a brief certification that 
one of these circumstances apply. There is no requirement that these 
communications be destroyed, in case they include information that may 
later prove to be useful. The other tagged communications can also be 
accessed, analyzed, and disseminated if the Government obtains a court 
order.
  The amendment also ensures there is independent oversight of this 
process. If the FISA Court has any concerns that the terrorism or 
emergency certifications are being abused, it has authority to ask for 
additional information, and to limit future access to certain 
communications if it ultimately determines the Government's 
certifications to the court are clearly erroneous.
  Now, I do understand this amendment imposes a new framework that may 
take some time to implement. That is why the amendment would not 
require the Government to implement this new system for up to a year 
after enactment. I think that is plenty of time to work out any 
problems and get these procedures up and running.
  The amendment also contains a critical oversight provision. It 
directs the inspectors general of the Department of Justice and the 
Department of Defense to audit the implementation of compliance with 
this amendment. These IGs as well as the FISA Court will have access to 
the American communications that the Government has acquired to make 
sure the authorities are not being abused.
  Taken together, these provisions ensure that we know when Americans' 
communications are being collected so there is some baseline 
information available to the FISA Court, Congress, inspectors general, 
and other independent monitors for tracking impact of the legislation 
on Americans' privacy.
  Tracking this type of information is also good for national security. 
We have heard the President tell us repeatedly in defense of his so-
called terrorist surveillance program that if there are people inside 
our country who are talking with al-Qaida, we want to know about that. 
This amendment takes him at his word, and it requires him to set up 
procedures for identifying those communications in the United States 
where it is reasonably practical.
  We have been hearing for years now that the U.S. Government needs 
authority to wiretap foreign terrorists outside the United States 
without individual court orders. This amendment permits that. To take 
one example, if the U.S. Government has targeted a member of al-Qaida 
overseas, under this amendment it can acquire all of that target's 
communications--all of them. If it determines the particular 
communication is with someone in the United States, the Government 
would tag it and it could access and disseminate it as long as the FISA 
Court is simply notified after the fact with a brief certification. 
That kind of focused, terrorism-related surveillance--the type of 
surveillance we most want our Government to be engaging in--would 
continue absolutely unabated. On the other hand, the amendment provides 
safeguards in case the Government is, in fact, conducting massive 
dragnet surveillance of communications with people in the United 
States. In that situation, yes, this amendment would then impose the 
oversight that is desperately needed. It will make sure that in 
situations not involving terrorism or personal safety, the FISA Court 
will play its important role in overseeing the Government's use of 
communications involving Americans. In other words, it will make sure 
these authorities are not abused.
  We have heard a lot today about minimization procedures, which are 
supposed to protect against unnecessary disclosure of information about 
Americans' communications the Government collects, and the importance 
of giving the FISA Court power to enforce compliance with them. I 
strongly support that effort. I tried to initiate this issue in the 
Intelligence Committee. It has been very effectively taken up in the 
Judiciary Committee by the Senator from Rhode Island as well as the 
Senator from New York, and it is extremely important that we prevail in 
that amendment to get those protections. But the supporters of the 
Intelligence Committee bill claim that minimization procedures are 
enough to protect Americans' privacy. In fact, the minimization 
requirements in the Foreign Intelligence Surveillance Act are quite 
weak. They permit the widespread disseminations throughout the U.S. 
Government of information about U.S. persons if it is deemed foreign 
intelligence information which, again, is very broadly defined, and 
they permit dissemination of the identities of these U.S. persons if 
``necessary to understand foreign intelligence information or assess 
its importance''--also a very loose standard.
  Now, we know from our experience in the nomination hearing of John 
Bolton to be United Nations Ambassador how easy it is for Government 
officials to obtain access to those identities. And when the FBI 
receives reports referring to a U.S. person, according to recently 
declassified Government documents, it will ``likely request that 
person's identity'' and will ``likely be'' the requirements for 
obtaining it. There are other minimization requirements and Government 
regulations, the details of which are classified. We know in any event 
that those can be changed at any

[[Page 1266]]

time. Minimization is simply inadequate in the context of these broad 
new authorities. More is needed.
  The amendment I have developed with Senator Webb, Senator Tester, and 
others is an extremely balanced and reasonable approach to addressing 
one of the most serious problems with this legislation. It gives the 
Government full access to foreign-to-foreign communications without any 
court oversight. And it provides access to communications between a 
foreigner and an American, if there is a terrorism link or if someone's 
safety is at stake, without the requirement of a court order. In other 
words, this amendment gives the administration what it asked for when 
it demanded these massive new powers. So when the Vice President says 
we need to pass legislation that permits warrantless wiretapping of 
``one foreign citizen abroad making a telephone call to another foreign 
citizen abroad about terrorism,'' this amendment totally permits that. 
When the minority leader says the Government needs to be able to 
``freely monitor new terrorist targets overseas,'' this amendment 
totally permits that as well.
  But this amendment also provides safeguards to make sure that 
Americans' basic rights are being protected. Too many communications of 
innocent Americans are going to end up in Government databases under 
the PAA and under the Intelligence bill for us to ignore this very 
serious problem.
  Any Senator who believes that Americans here at home deserve more 
privacy protections than foreigners overseas should support this 
amendment, and any Senator who believes the executive branch should not 
be granted far-reaching surveillance authorities involving Americans 
without independent oversight should support this amendment as well.
  At this time I ask unanimous consent that the Senator from Montana, 
Senator Tester, be recognized to speak on this amendment, and after he 
has concluded his remarks, that the Senator from Virginia be 
recognized. Both of these presentations would be allocated from the 
time I control on this amendment.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. FEINGOLD. Mr. President, let me say how grateful I am to the 
Presiding Officer, Senator Webb, and the next speaker, Senator Tester, 
new Members of the Senate who have delved into this very difficult 
subject and who have tried to achieve the right balance. I don't know 
of any Senators who are more concerned about protecting the lives of 
Americans from terrorists, but they also want to make sure that we get 
this right while protecting the privacy of Americans. So I thank both 
of them.
  I yield to the Senator from Montana.
  Mr. TESTER. Mr. President, I thank the Senator from Wisconsin for his 
fine work on this amendment. My comments today will indicate my full 
support for it. I hope this body uses its wise judgment to put this on 
the Intelligence bill as it comes forth. I think it is critically 
important that we move this amendment forward to protect American 
citizens from unwarranted wiretapping.
  Let me say I am very glad we finally reached an agreement on the 
amendments to the Intelligence Committee bill that would replace 
current law, that current law being the Protect America Act. I voted 
against the Protect America Act this last August because it included 
measures that would permit the Federal Government to conduct 
warrantless wiretapping and intercept innocent Americans' 
communications. We all recognize the need for our Government to have 
the necessary tools to keep us safe. That is at the forefront in all of 
our minds. At the same time, we must do this in a way that protects our 
civil liberties and constitutional rights to privacy. A number of 
amendments have been offered with that goal in mind, including the one 
I rise to talk about today: the Feingold-Webb-Tester amendment.
  This amendment would require that all inadvertent surveillance of a 
U.S. person--someone who is a U.S. citizen, a legal permanent resident, 
or a U.S. corporation--be tagged and sequestered. Right now, under the 
Protect America Act and under the Intelligence Committee bill that we 
are currently debating, the Government would be authorized to have 
unfettered surveillance of all communications of all people outside of 
the United States without a warrant. This access would also be extended 
to Americans here in the United States at the other end of that phone 
call or e-mail message. Americans abroad or those who receive 
communications from abroad could be wiretapped without a warrant. That 
deficiency is what this amendment addresses.
  Let me be clear. This amendment does not stop surveillance from 
happening; it merely sets a higher threshold for access to 
communications that involve Americans. Let me repeat that. It sets a 
higher threshold for access to communications for those that involve 
Americans.
  The Feingold-Webb-Tester amendment will not impede the collection of 
foreign intelligence information or compromise our national security. 
It would merely require that intelligence intercepted overseas of an 
American citizen's communications would have to be tagged and 
sequestered before it could be accessed. To be accessed, the 
intelligence community would have to have a specific warrant to review 
Americans' overseas communications.
  Why is this necessary? Because in the past, the administration 
implemented a warrantless surveillance program which severely 
encroached upon our rights against unauthorized search and seizure.
  Under the Protect America Act, when we monitor foreign 
communications, there is no requirement that anyone involved in the 
communication be under any suspicion of wrongdoing. As a result, simply 
communicating with someone in a foreign country opens any American to 
surveillance. This is most often the case when a conversation starts 
abroad and ends up with someone in the United States. Why? Because the 
Government must meet only two criteria: that at least one party to the 
communication be outside of the United States, and that the purpose of 
the surveillance is to obtain foreign intelligence.
  This overreaching protocol is even more expansive than the 
administration's illegal warrantless wiretapping program which is 
focused on people targeted because of their involvement with suspected 
terrorists. I am opposed to the widespread wiretapping and surveillance 
of innocent Americans.
  The Director of National Intelligence has openly stated that the 
current law, the Protect America Act, allows full collection of all 
international communications into and out of the United States, well 
beyond what the Government says it needs to protect the American 
people. Further amendments will be offered during the course of this 
debate that explicitly state such widespread full collection of all 
international communication is not authorized. However, as it stands, 
any time you communicate with someone overseas by e-mail or by phone, 
your conversation could very well end up in a Government database 
somewhere.
  These days, international communications are commonplace. Many 
Americans have friends and family living overseas studying or for 
business or vacationing. When they return, they often keep in touch 
with the friends they have made while living abroad. For example, if 
you are on a vacation in Europe and call home to check on your elderly 
parents, the entire conversation could get caught in the crosshairs of 
this foreign surveillance program. That is not right and it does not 
make any sense. It opens innocent Americans to the unrestricted 
surveillance of wholly innocent conversations by the Federal 
Government. This is not what Americans expect or deserve.
  We must act to ensure that such communications caught in the widely 
cast net of surveillance are segregated or specifically designated so 
that privacy concerns can be minimized. This amendment, the Feingold-
Webb-Tester amendment, would require that this information be kept 
apart as a way to protect the privacy rights of those people who 
innocently find themselves

[[Page 1267]]

under surveillance. The content would not be destroyed, but 
investigators would have to go through additional steps in order to 
access it in the future.
  The Foreign Intelligence Surveillance Act is meant for foreign 
surveillance. Our amendment reiterates that focus and it protects 
Americans from the accidental but very real intrusion of our right to 
privacy. I don't want my granddaughter, my wife, your kids, or any 
other Americans to have their communications monitored, stored away, 
and then easily accessible at a later date. This amendment ensures that 
doesn't happen.
  I urge my colleagues to support this amendment. I think it is 
critically important for the success of this bill and to protect 
innocent Americans' civil liberties.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Feingold). The Senator from Virginia is 
recognized.
  Mr. WEBB. Mr. President, I also rise in support of this amendment, 
which I am very proud to be cosponsoring along with the Presiding 
Officer and Senator Tester. I appreciate also the support of a number 
of other Members of this body on this bill.
  I wish to start by saying I consider myself to be very much a realist 
when it comes to the intelligence services in the United States and 
when it comes to the use of classified information. I got my first 
security clearance when I was 17 years old. I have been involved in the 
intelligence world all of my life. When I was Secretary of the Navy, I 
was privileged to have ``black'' security clearances in a number of 
areas with some highly sensitive information. I understand the 
complexities of this environment.
  I also am very sensitive to the massive instantaneous flow of data 
that now exists in today's world that makes it essential we have more 
rapid procedures in place in order to intercept key transmissions. But 
that also gives us the responsibility to ensure that with this higher 
volume of communication, we don't allow mistakes and abuse, because 
that potential also rises.
  Simply stated, this amendment is designed to allow our Government on 
the one hand to aggressively fight terrorism but, on the other, to 
protect our vital constitutional rights and our system of checks and 
balances.
  This amendment will neither stop nor slow down any of our vital 
intelligence activities. I wish to reemphasize that. There is nothing 
in this amendment that will slow down the ability of our intelligence 
services to do the job they are supposed to do.
  The American people have been following this debate. The law is a 
complex law; we recognize that. But the arguments advanced by many in 
this Chamber have not focused fully on the broad constitutional issues 
about which Americans have concerns. We care about keeping our Nation 
safe from further terrorist attack. But we also must care just as 
deeply in this body about making sure our Government's surveillance is 
done in a way that is consistent with our Constitution.
  I agree with my colleagues--many of whom sit on the Intelligence or 
Judiciary Committees--this law needs to be updated for all the reasons 
I mentioned. I am very proud of our Government's trained professionals 
who have worked so tirelessly for the last 6\1/2\ years, since 9/11, in 
their effort to help keep our country safe.
  But while the means of electronic communication surveillance have 
rapidly modernized, the speed and overwhelming volume of those 
communications still requires us to maintain a balanced Federal system, 
with proper checks and balances against the improper use of 
governmental authority. The broader the governmental authority, the 
greater is our responsibility to ensure this authority is narrowly and 
properly applied.
  The watchwords of this debate, from our perspective, are: Safety. 
Security. Fighting terrorism. But also oversight--oversight of the 
executive branch, proper checks and balances. Those watchwords should 
guide us.
  The Senator from Wisconsin has completed an exhaustive explanation of 
the nuts and bolts of this amendment. The Senator from Montana has 
added to that. I will not belabor their explanations of those finer 
points. But I emphasize our amendment will do what the American people 
have been demanding: restore a proper system of checks and balances in 
our Government's surveillance program. Every Member of this body--and 
every American, no matter which political party or persuasion--supports 
the fundamental bedrock concept of checks and balances, concepts we 
have captured in this amendment's provisions.
  As I mentioned, this amendment allows our Government to fully and 
effectively monitor communications in order to keep us safe from 
terrorist attack, in every conceivable way. It permits our Government 
to acquire any foreign-to-foreign communications. It permits our 
Government to acquire any communications of suspected terrorists into 
or out of the United States. It permits our Government to acquire any 
communication where there is reason to believe the acquisition is 
necessary to prevent death or serious bodily harm. And it permits our 
Government to acquire any communications for law enforcement purposes 
if the communication is evidence that a crime has been, is being or is 
about to be committed.
  Simply stated, the underlying bill in this amendment bestows on our 
Government the essential tools to keep America safe.
  On top of that, for the first time, this amendment would erect a 
system of oversight and accountability for communications that do not 
fall into the broad categories I have described.
  What types of communications? They are communications that have one 
end in the United States and generally involve innocent Americans who 
are not targeted as suspected terrorists, as the Senator from Wisconsin 
so aptly described. In other words, it could be anyone; it could be 
you, it could be me. For those of us who have no ties to terrorism, an 
updated FISA law should and must provide proper protections.
  As the Senator from Wisconsin described in his remarks, under this 
amendment, when the Government realizes it has acquired a communication 
with one end of the United States, the Government must segregate that 
specific communication in a separate database. For example, this could 
take the form of a telephone call or an e-mail.
  To emphasize, so there is no misunderstanding: Even after segregating 
these communications, the Government can have full access to them; but 
the Government cannot, and should not, have unfettered access to 
communications of innocent Americans.
  This amendment is quite simple. The inspectors general for the 
Department of Defense and Department of Justice would be given access 
to sequestered communications. These sequestered communications will 
allow the inspectors general to see specifically which Americans the 
Government surveilled or which specific communications were diverted 
into Government hands for possible surveillance.
  Using this information, the inspectors general would be required to 
conduct audits of the implementation of the sequestration system and 
determine the extent of the surveillance. I note the inspectors general 
would employ staffs with appropriate security clearances. And at least 
once per year, they must report their findings to the Senate and House 
Committees on the Judiciary and Intelligence.
  I believe we need this amendment for many reasons. For almost 7 
years, the executive branch's surveillance program has operated in 
almost total secrecy, often above the law and the Constitution, and 
often above any review by Congress or the Foreign Intelligence 
Surveillance Court. For almost 7 years, only the executive branch, and 
perhaps a few isolated employees of telecommunications companies, have 
known which Americans were being surveilled. This is unacceptable in a 
constitutional system, whose Founding Fathers rejected the notion of an 
executive branch with absolute, unchecked authority. In fact, Congress 
rejected the notion of unchecked executive authority when it originally 
passed FISA, after the Watergate scandal.

[[Page 1268]]

  There are many arguments that may be leveled against this amendment. 
I believe they hold no water. Some of them simply employ fear tactics 
to cloud the issues of constitutional propriety.
  First, some may contend the underlying bill already greatly expands 
the authority of the FISA Court. But the problem is the pending bill 
requires only a review of general surveillance processes. 
Administrations can, and have, abused processes. A truly robust system 
of checks and balances demands accountability and oversight over the 
specific communications obtained by the Government.
  This oversight is all the more critical because, for almost 7 years 
now, the administration may have enjoyed completely unrestrained access 
to the communications of virtually every American.
  Do we know this to be the case? I cannot be sure. One reason I cannot 
be sure is I have been denied access to review the documents that may 
answer these questions, even about the process. A month ago, our 
majority leader wrote to the Director of National Intelligence, asking 
that all Senators be given access to the documents surrounding the 
telecommunications companies' involvement in the administration's 
surveillance program. To this date, that request has been denied.
  The denial of this request is one more reason the Senate must bring 
true accountability to our Nation's intelligence-gathering process. If 
we do not ask the tough questions and demand true oversight, how will 
we ever know the extent of Government surveillance or how many innocent 
Americans have been listened to?
  Second, some will argue a process of sequestering communications will 
be far too cumbersome and, as the Senator from Wisconsin pointed out, 
this is simply untrue.
  Under current law, the Government already labels the surveillance 
communications it collects.
  Additionally, members of the Judiciary and Intelligence Committees 
tell me that the segregation of these communications can be easily 
accomplished. Finally, if our intelligence community needs additional 
personnel or resources to accomplish this requirement, then the 
Congress should promptly provide the necessary funds. Compliance with 
the U.S. Constitution is not a matter of option; it is mandatory.
  Third, some may contend that this amendment is a partisan ploy 
designed to embarrass the intelligence community and the 
administration.
  Again, this is simply untrue. I would make the same arguments if the 
current President belonged to my party. This amendment is not rooted in 
partisanship. Rather, it attempts to protect the constitutional rights 
of all innocent Americans.
  Moreover, I recognize the tremendous work and sacrifices made by the 
professionals in our intelligence community, as they aim to keep our 
homeland safe from attack. But only through a robust system of checks 
and balances can we ensure the good name of our intelligence 
professionals and the work that they do.
  In sum, I ask my colleagues to join in supporting this amendment. It 
is time to lay aside our differences and do what is right, time for the 
Congress to aggressively and responsibly assert its oversight 
responsibilities.
  I am reminded today of a famous quote from U.S. Supreme Court Justice 
Cardozo. Analyzing our constitutional system of checks and balances, in 
1935 Justice Cardozo wrote that executive branch ``discretion is not 
unconfined and vagrant. It is canalized within banks that keep it from 
overflowing.''
  I urge my colleagues to recognize the importance of this amendment in 
keeping our Nation safe while also restoring an appropriate system of 
checks and balances to the FISA surveillance process.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Presiding Officer, in his capacity as a 
Senator from Wisconsin, reserves the remainder of his time on this 
amendment.
  The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I yield myself 5 minutes. I appreciate the 
concern of my colleagues on the other side of the aisle. But there are 
quite a few misconceptions and misinterpretations about the bill and 
about the impact this proposed amendment would have.
  Again, after the chairman speaks, there are a number of members of 
the committee who wish to come and speak more about it.
  The purpose of this bill is, and always has been, to enable the 
intelligence community to act to target foreign terrorists and spies 
overseas. To answer many of the contentions made, you cannot get a 
certification to begin the process, unless there are reasonable 
procedures to assure that the targeted persons reasonably are believed 
to be located outside the State. Two, the procedures are consistent 
with the requirements of the Fourth Amendment and do not permit 
intentional targeting of any person known to be located in the United 
States. In 2(a)(3), it says that a significant purpose of the 
acquisition is to obtain foreign intelligence information.
  Now, the statements that somebody who has gone abroad and is calling 
back home to their children would be surveilled is beyond the pale. No. 
1, there is a clear prohibition in the bill against targeting any U.S. 
persons abroad without getting a FISA Court order saying there is 
reasonable cause to believe, one, they are acting as an agent or 
officer or employee of a foreign power; and, two, they have significant 
information. What this amendment does, however, is strike the ability 
to collect information on some foreign power that may be talking about 
proliferation of weapons of mass destruction. Furthermore, it would 
prevent collection on hostile states acting in a dangerous manner to 
the United States.
  Now, the amendment, as it is drafted, will have a totally unexpected 
impact. It is difficult to explain, in an unclassified session, why 
this amendment is unworkable. But it would say that if there is a 
person reasonably believed to be located in the United States, such 
communication shall be segregated, or specifically designated, and no 
person shall have access to such communication except in accordance 
with title I, which presumes that you have access to that information, 
to determine whether it qualifies under the exceptions to the 
prohibition.
  In effect, you would have a requirement that any kind of incidental 
communication from a person, from a foreign terrorist target, somebody 
having information of foreign intelligence value or a possible 
terrorist attack, who calls the United States or sends an e-mail, you 
would have to track down and find out where every e-mail recipient may 
be. You would have to identify people who might be collecting that 
information and investigate whether they are in the United States; and 
you would compile a significant amount of information on U.S. persons.
  The whole reason it operates with minimization is to say there are 
only certain communications which the intelligence community is 
lawfully permitted to acquire, and which it has any desire to acquire, 
because to acquire all the communications from all foreigners is an 
absolutely impossible task.
  I cannot describe in a public setting how they go about ascertaining 
which collections are important. But to say that if Osama bin Laden or 
his No. 3 man--whoever that is today, after the last No. 3 man in al-
Qaida was wiped out--calls somebody in the United States, we cannot 
listen in to that communication, unless we have an independent means of 
verifying it has some impact or threats to our security or a terrorist 
threat.
  That is the most important communication we need to intercept. The 
Protect America Act has kept our country safe because if somebody calls 
in with information on a terrorist threat, then the FBI and local law 
enforcement officials can go to work on that threat immediately and get 
additional criminal authorities as needed. But that is the most vital 
kind of information to get. We certainly should not be required to be 
put in a lockbox, as this amendment would provide.

[[Page 1269]]

  Finally, talking about expansion of surveillance powers, when FISA 
was first adopted, most of the collection against foreign targets came 
by radio, whether coming into the United States or going foreign to 
foreign, and there was no limitation on it. There was no limitation on 
intercepting radio communications.
  What we have done in FISA is to impose significant new restrictions 
on the collection of information that might be of foreign intelligence 
value. We should change the definition of ``electronic surveillance,'' 
but we were not able to do so in this law so it would apply to 
collection against other forms of communications.
  Suffice it to say, this bill before us, the bipartisan bill, is 
carefully targeted, limited, covered with layers of protection and 
oversight to assure minimization, as I previously suggested. Whether 
you believe the inspector general of NSA, the inspector general of the 
DNI, the Department of Justice will perform adequate oversight or not, 
you can be sure the Intelligence Committee will do so.
  I yield the floor and reserve the remainder of our time.
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from Wisconsin.
  Mr. LEAHY. Mr. President, will the Senator yield to me? I was going 
to ask that I be allowed to proceed, I don't think it will be more than 
5 or 6 minutes, as though in morning business to give a eulogy, with 
the time not to be taken from either side.
  Mr. FEINGOLD. I ask the Senator if I can quickly respond to the 
Senator from Missouri.
  Mr. LEAHY. Of course. I understand.
  Mr. FEINGOLD. Mr. President, responding to the comments just made, 
the Senator from Missouri, in responding to the Feingold-Webb-Tester 
amendment, tried to indicate that this will prevent us from going after 
spies and others from foreign states. First, under our amendment, of 
course the FISA Court can grant permission to wiretap spies. And, if it 
is a foreign state that is involved in terrorism, there would be no 
permission required under our amendment to wiretap the officials 
involved. It would not affect that.
  It was also suggested this would somehow be very cumbersome. That 
suggests we are requiring permission for all foreign communications, 
but that is not true. Our amendment only affects, and only in a minimal 
way, communications from a foreign place to someone in the United 
States. That is not cumbersome.
  Third, the Senator from Missouri suggests we will have to make the 
Government sift through all kinds of e-mails to figure out whether they 
can get at individual communications. That is the opposite of the way 
this works. This amendment creates an assumption in favor of 
collection. In other words, if the Government does not know for sure if 
a communication is foreign or domestic, the assumption is it is foreign 
until there is some indication that it is domestic. It is only then 
that the limited oversight provided by this amendment kicks in.
  The final example the Senator from Missouri used shows how 
questionable these arguments are. If you can believe it, the Senator 
argued that if Osama bin Laden called someone in the United States, 
somehow our amendment would affect that. That is obviously false. Our 
amendment specifically allows an exception for any conversation by 
anyone in the United States with a terrorist overseas, without any 
special FISA Court permission. That argument shows the weakness of the 
opposition. The idea that the Senators from Virginia and Montana and I 
would suggest an amendment to not allow us to listen in on Osama bin 
Laden gives you a little clue that the arguments against this amendment 
are not based on the amendment we offered.
  I thank the Senator from Vermont very much for understanding. I 
wanted to quickly respond to those arguments. I yield the floor and 
reserve the remainder of my time.
  Mr. CARDIN. Mr. President, may I ask the Senator from Vermont to 
yield for a moment? I ask unanimous consent that I be recognized after 
the Senator from Vermont.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. LEAHY. Mr. President, first, I might say, in this debate the 
Senator from Wisconsin is absolutely correct. I was there during some 
of the debate on this issue and I know what he means.
  (The remarks of Mr. Leahy are printed in today's Record under 
``Morning Business.'')
  The ACTING PRESIDENT pro tempore. Who yields time?
  The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, with the forbearance of the Senator 
from Maryland, I wish to place our situation in context because we have 
a number of things going on, and I would like the Parliamentarian to 
explain it to me so it is very clear to all of us.
  Before I do that, I am reading at the direction of the leader his 
unanimous consent request, and that is to have the time from 5:20 p.m. 
to 5:30 p.m. be reserved for debate on the motion to invoke cloture on 
the motion to proceed to H.R. 5140, the economic stimulus bill; 
further, that the time be equally divided and reserved for the two 
leaders or their designees, with the Republicans controlling the first 
5 minutes and the majority controlling the final 5 minutes.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. ROCKEFELLER. Now I would like to ask the Parliamentarian to help 
me be sure and our Members on the floor and others what our situation 
is. The chairman of the Judiciary Committee has just given an 
extraordinarily moving tribute to a very dear friend of his--
extraordinarily moving--but that came in between. Now, the Senator from 
Pennsylvania has come upon the floor and he wants to say certain 
things, and there are people in the gallery to whom this would have a 
direct effect, so there is a temptation to go along with that. On the 
other hand, we are still on the Feingold amendment. I believe that to 
be the pending amendment, if the Parliamentarian declares that to be 
the case.
  On the other hand, the person who is listed second on the order of 
the day is the Senator from Maryland. In the matter of how many years 
we should wait before going back to this, if we do, he was in fact the 
second person on the order of the day for the second amendment. He is 
here. He has been waiting and he wants to present that amendment. So it 
is 4 o'clock and we have a variety of things before us, and I wish the 
Parliamentarian to set us straight as to where we are.
  The ACTING PRESIDENT pro tempore. The Feingold amendment is the 
pending amendment. There is time remaining for debate on that 
amendment. However, an order has been entered for the Senator from 
Maryland to offer his amendment, on which there is 60 minutes of 
debate, and that is to come next.
  Mr. ROCKEFELLER. I don't know how much time is remaining on both 
sides with respect to the Feingold amendment.
  The ACTING PRESIDENT pro tempore. On the Feingold amendment, the 
majority has 7 minutes 39 seconds, and those opposing have 37 minutes 
27 seconds.
  Mr. ROCKEFELLER. If this Senator does his mathematics, that takes us 
already past the time of the unanimous consent.
  The ACTING PRESIDENT pro tempore. The Senator is correct.
  Mr. ROCKEFELLER. Of course, we don't have to use all our time. 
Therefore, I would encourage our colleagues not to do so, and yet to 
get out the full body of the amendment.
  I appreciate the response of the Parliamentarian, the Presiding 
Officer, and I yield the floor.
  Mr. LEAHY. Mr. President, I support providing the Government with the 
flexibility it needs to conduct important surveillance of overseas 
targets. Both the Intelligence Committee's and the Judiciary 
Committee's versions of this bill would allow the Government to 
intercept all communications of overseas targets, including those 
communications with people inside of the United States. However, this 
also

[[Page 1270]]

means that the Government will necessarily be acquiring the 
communications of innocent Americans.
  I commend Senators Feingold, Webb, and Tester for crafting an 
amendment that will help to safeguard the privacy rights of innocent 
Americans whose communications are acquired during the surveillance of 
overseas targets. This new FISA legislation will grant the Government 
authority to conduct surveillance on overseas targets concerning 
``foreign intelligence.'' This term covers a broad range of subjects 
and the new authority would permit the Government great latitude to 
intercept communications without a court order. Once Americans' 
communications are collected, they can be shared widely with other 
agencies. This Feingold-Webb-Tester provision permits unfettered 
acquisition of foreign-to-foreign communications and of communications 
of suspected terrorists into or out of the United States while creating 
safeguards for communications not related to terrorism that the 
Government knows have one end in the United States. If the Government 
is not able to determine beforehand whether a communication will be 
into or out of the United States, it can acquire all of those 
communications without prior court approval. What this amendment does 
is add the very reasonable protection that if it is later determined 
that a communication involves a person in the United States, measures 
will be taken to segregate that information to assure that privacy is 
protected appropriately. There are exceptions even then to make sure 
that national security is never placed at risk. If the communication 
involves terrorism or a suspected terrorist, if someone's safety is at 
stake, the Government can then access, analyze and disseminate that 
communication.
  This amendment is an important check to ensure that the new authority 
we will grant with this bill is used as intended. Without it, many law-
abiding Americans who communicate with completely innocent people 
overseas will be swept up in this new form of surveillance, with 
virtually no judicial involvement or oversight.
  The ACTING PRESIDENT pro tempore. The Senator from Maryland.
  Mr. CARDIN. Mr. President, let me thank my friend from West Virginia 
for clarifying the floor circumstances as best we can.


                Amendment No. 3930 to Amendment No. 3911

  Mr. President, I ask unanimous consent to lay aside the pending 
amendment, and I call up amendment No. 3930.
  The PRESIDING OFFICER (Mr. Levin). Without objection, it is so 
ordered. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Maryland [Mr. Cardin], for himself, Ms. 
     Mikulski, Mr. Leahy, Mr. Rockefeller, and Mr. Salazar, 
     proposes amendment numbered 3930.

  The amendment is as follows:

               (Purpose: To modify the sunset provision)

       On page 54, line 16, strike ``2013.'' and insert the 
     following: ``2011. Notwithstanding any other provision of 
     this Act, the transitional procedures under paragraphs (2)(B) 
     and (3)(B) of section 302(c) shall apply to any order, 
     authorization, or directive, as the case may be, issued under 
     title VII of the Foreign Intelligence Surveillance Act of 
     1978, as amended by this Act, in effect on December 31, 
     2011.''.

  Mr. CARDIN. Mr. President, first let me thank my colleagues for their 
patience. We are trying to get through a series of amendments on the 
FISA legislation.
  The amendment I am offering is one that was approved by the Judiciary 
Committee, one that I think is very important to this legislation 
moving forward, and one which would establish a 4-year sunset for 
congressional review. I am proud that my cosponsors of this amendment 
include Senator Leahy, Senator Rockefeller, Senator Mikulski, and 
Senator Salazar, and I thank the distinguished chairman of the 
Intelligence Committee, Mr. Rockefeller, for his leadership and for his 
help in regard to the amendment I am bringing forward.
  I wish to go back a little in time to when the original FISA statute 
was passed. During that period of time, we had recently come out of 
Watergate. There were certainly indications of warrantless surveillance 
done on Americans because of their disagreement with the administration 
in power, there were indications of warrantless surveillance of 
individuals because they happened to disagree with U.S. policy in 
Vietnam, and there was genuine concern that we had not balanced 
properly the Government's need to obtain information in order to keep 
us safe and the protections of the civil liberties of the people who 
live in our own country. So we tried to enact a statute that would 
provide balance in 1978. There was the Church committee report, and in 
1978 Congress passed the FISA statute.
  I want to start by quoting from one of our colleagues, Senator 
Kennedy, and what he said in 1978 about the original passage of the 
FISA statute--the Foreign Intelligence Surveillance Act of 1978. He 
said:

       The complexity of the problem must not be underestimated. 
     Electronic surveillance can be a useful tool for the 
     government's gathering of certain kinds of information; yet, 
     if abused, it can also constitute a particularly 
     indiscriminate and penetrating invasion of the privacy of our 
     citizens. My objective over the past 6 years has been to 
     reach some kind of fair balance that will protect the 
     security of the United States without infringing on our 
     citizens' human liberties and rights.

  The Attorney General at that time for the Carter administration was 
Griffin Bell. Attorney General Bell said:

       I believe this bill is remarkable not only in the way it 
     has been developed, but also in the fact that for the first 
     time in our society the clandestine intelligence activities 
     of our government shall be subject to the regulation and 
     receive the positive authority of a public law for all to 
     inspect. President Carter stated it very well in announcing 
     this bill when he said that ``one of the most difficult tasks 
     in a free society like our own is the correlation between 
     adequate intelligence to guarantee our Nation's security on 
     the one hand, and the preservation of basic human rights on 
     the other.'' It is a very delicate balance to strike, but one 
     which is necessary in our society, and a balance which cannot 
     be achieved by sacrificing either our Nation's security or 
     our civil liberties.

  A lot has happened since 1978 when that law was passed. We know that 
technology has changed and the law has been amended over its life, but 
we still have the same problem: how to balance our need to get 
information, which is important for the protection of our Nation, and 
the civil liberties of our citizens.
  I am proud to represent the people of Maryland. I am proud of the 
work done by NSA--the National Security Agency--which is located in 
Maryland. I have visited the National Security Agency on many 
occasions. These men and women, dedicated to a mission of protecting 
our country by getting lawful information which is important to 
preserve the security of America, do their job with great distinction 
and great dedication to our country.
  But we have seen in recent years the difficulty in complying with the 
FISA statute. Information obtained from foreign sources, because some 
communications come through America with the new technologies and the 
way in which communications are now handled today, is different than it 
was back in the 1970s. So we need to pass this statute. I think 
everyone here is prepared and understands the need for us to modernize 
the FISA statute, but we have to get it right.
  Let me mention one debate that has been taking place on this floor 
that the chairman and the Republican leader on the Intelligence 
Committee have talked frequently about, as has the leadership on the 
Judiciary Committee, and that is the minimization rules. We think we 
have it right now, but we are still concerned about the minimization 
rules. It is interesting to go back in history and look at what the 
Senate Judiciary Committee said in 1978 about the concerns of Americans 
being caught in the web but not being the main focus of our target for 
surveillance. The Senate Judiciary Committee observed:

       Also formidable, although incalculable, is the chilling 
     effect which warrantless electronic surveillance may have on 
     the constitutional rights of those who were not targets of 
     surveillance, but who perceived themselves, whether 
     reasonably or unreasonably, as potential targets. Our Bill of 
     Rights is concerned not only with direct infringements on 
     constitutional rights, but also with Government activities 
     which effectively inhibit exercise of these rights. The 
     exercise of

[[Page 1271]]

     political freedom depends in large measure on citizens' 
     understanding that they will be able to be publicly active 
     and dissent from official policy within lawful limits, 
     without having to sacrifice the expectation of privacy that 
     they rightfully hold. Warrantless electronic surveillance can 
     violate that understanding and impair that public confidence 
     so necessary to an uninhibited political life.

  That is what we are concerned about here. We want to make sure we get 
this right, and we know that over time we have seen abuses of the 
statute. We are now concerned about what happens when an American is 
targeted. They didn't think about that before, about someone traveling 
abroad. I congratulate the committee for bringing forward a bill that 
does protect Americans who are traveling abroad and are a target of 
surveillance by requiring cause be shown. That is how it should be.
  I am very concerned about the debate we are having in this body 
concerning the exclusivity in the statute we are going to pass. There 
has been a long history of debate as to how much article II power the 
President has in regard to warrantless surveillance. This is not a new 
subject. But I must tell you, I think this administration took that 
issue to a new level. I believe the courts agree that the President 
went too far. So it is our responsibility to try to get this right so 
that we have the rule of law behind what the administration does, 
rather than trying to use article II power, which in fact can very 
easily be abused.
  There is another issue I want to comment on briefly--and I will come 
back to the sunset provisions as to why I think the 4 years is so 
particularly important in this legislation--and that is the immunity 
issue and the retroactive immunity. Retroactive immunity concerns me. I 
would hope it would concern every Member of the Senate. It concerns me 
not just as it affects the telephone companies in their cooperation 
with this administration--because there has been clear evidence that 
they operated under the authority that the administration had this 
power and that they were helping their country--but what concerns me 
about granting them retroactive immunity is the impact it will have on 
the courts' oversight of the abuse of privacy by the administration or 
private companies.
  We need the courts actively involved here. We don't get this right 
all the time, and certainly the administration doesn't get it right all 
the time. We need the courts involved in these issues. If we grant 
retroactive immunity, we are saying we reserve the right to take away 
the third branch of Government--the judicial branch of Government--for 
making determinations as to whether an individual's right of privacy is 
violated. I don't think that is something we want as a legacy of this 
Congress. That is why many of us are concerned about using retroactive 
immunity.
  There are other options that are out there. I see my distinguished 
colleague from Pennsylvania, Senator Specter, is here. He has a 
proposal that I think would take care of the concerns of the telephone 
companies yet protect the integrity of the courts. I congratulate him 
for that recommendation, and I think he has now refined it to the point 
that I hope it will garner the type of support necessary for approval 
by this body.
  Senator Feinstein has a proposal that, rather than just giving 
immunity, would at least have the courts make the determination as to 
whether the telephone companies are entitled to this relief; whether 
they acted in good faith. So at least we have the courts involved in 
this decision rather than taking away their authority. I think either 
of those recommendations would be a major improvement over giving 
retroactive immunity to telecommunication companies.
  But let me get to the specifics of the amendment I have offered, 
which is the 4-year sunset on the provisions. Again I am pleased to be 
joined by several of our colleagues. It is interesting to point out 
that sunsets have been part of the FISA statute for a long time. When 
the USA PATRIOT Act was passed, it contained a 4-year sunset. Now why 
did we put a 4-year sunset in? We were worried about whether we got it 
all right. This is something that required the continued attention of 
the Congress and the administration. In fact, we reauthorized it with 
significant changes and then put in another 3-year sunset, in this case 
for one of the most controversial provisions. So this is something we 
have done in the past.
  The Protect America Act is a major departure from the PATRIOT Act. It 
was passed hurriedly, and no one denies that. It was passed hurriedly 
last August, and we weren't comfortable with what we did. The proof is 
the bill now before us is a much better bill. Thank goodness we had the 
sunset. The committee recognized the need for a sunset because they put 
a 6-year sunset in.
  Why do I think it is so important to change that 6 years to 4 years?
  Let me tell you why: I think it is in our national interest that the 
next administration taking office in January of 2009 be focused on this 
issue, this vital issue of getting the intelligence information that is 
critical to protect the safety of the people of this Nation but also to 
protect the civil liberties of Americans.
  I think it is vital that the next administration look at those 
opinions that came out of the Attorney General's Office and the White 
House and give a fresh look to it and try to figure out if there is not 
even a better way to accomplish both the collection of information and 
the protection of civil liberties.
  If we continue the 6-year sunset, there will be no requirement for 
the next administration to take a look at this statute. With a 4-year 
sunset, it will come under the watch of the next administration.
  It is very interesting that one of my colleagues talked about the 
opportunity to review documents, and I believe the distinguished 
chairman of the Intelligence Committee would agree with me--from the 
fact that we had a sunset on the bill we passed in August, we got a lot 
more attention from the administration on getting material. They 
brought a lot of material into our office so we could review it. They 
cooperated with us because they knew we had to act. If we include a 6-
year sunset, there will be no requirement for the next administration 
to engage Congress on this issue. I want the next administration to 
engage Congress on this issue.
  We have seen the change in technology since we passed this bill in 
1976, and technology is changing more rapidly than ever before. We do 
not know the next way in which terrorists are going to be using it in 
order to try to circumvent our detection as well as our laws. We do not 
know that. So it is important for us to stay engaged so that we can 
have the most effective tools in place, not using the article II power 
of the President but having Congress engaged and making sure we have 
the statutes correct.
  It is another reason I think it is very important to have a 4-year 
sunset. I know I am not telling you something you do not already know, 
but the FISA statute gives the administration extraordinary powers and 
very sensitive powers as it relates to the privacy of people here in 
America and an issue on which we have to make sure we protect the 
rights of our citizens.
  So for all of those reasons, we want to stay engaged on this subject. 
Again, I want to emphasize this is not a question of no sunset versus a 
6-year sunset. I understand the administration wants no sunset. I can 
understand that. The President probably would want no Congress. But the 
Framers of our Constitution understood the importance of the 
legislative branch of Government. It is rated as No. 1, article I.
  I urge my colleagues to support this amendment. It is an amendment 
that is offered in good faith. I would encourage my colleagues to 
support the amendment.
  I reserve the reminder of my time.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. This Senator would add an additional complication 
but one which is necessary and highly important.
  Senator Leahy, as I indicated, gave a very moving statement. We now 
have two more Senators on the floor who wish to discuss equally tragic 
circumstances with members of either the

[[Page 1272]]

family or close friends in the gallery, which means we cannot postpone, 
for a variety of reasons which the senior Senator gave me.
  I ask unanimous consent that we set the pending amendment aside 
temporarily and first call upon the junior Senator from Pennsylvania 
and then the senior Senator from Pennsylvania to make a few short 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
junior Senator from Pennsylvania is recognized.
  Mr. CASEY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (The remarks of Mr. Casey and Mr. Specter pertaining to the 
submission of S. Res. 442 are printed in today's Record under 
``Submitted Resolutions.'')
  (The remarks of Mr. Specter pertaining to the introduction of S. 2591 
are printed in today's Record under ``Statements on Introduced Bills 
and Joint Resolutions.'')
  Mr. SPECTER. Mr. President, I thank the managers of the bill for the 
time.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, in the absence of the Senator from 
Maryland, I yield myself 5 minutes from the time controlled by Senator 
Cardin on his amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 3930

  Mr. ROCKEFELLER. Mr. President, this Senator supports the amendment 
of the Senator from Maryland to revise the sunset provision of the bill 
so that the new authority established under this act will expire after 
4 years.
  This Senator had originally started out supporting a 4-year sunset 
because it seemed to make sense because it comes during the next 
President's term in office.
  This is supremely important legislation. There is no one--with the 
exception of the administration--who has objected, no committee which 
has objected to the idea of considering a sunset review. The reason is 
very clear: One wants to make sure, when you are balancing foreign 
intelligence collection, intelligence collection in general, and civil 
liberties, that one has the right balance. The question before us today 
is what date in the future makes the most sense for a sunset.
  There are a number of new initiatives which are either proposed to be 
started in this legislation or which will be started in this 
legislation, and none of them are entirely predictable.
  I think a 4-year sunset makes a lot of sense because it is so 
important that we know what we are doing, that we know we are doing it 
right, and that we know the intelligence community knows it is doing 
its work correctly--I do not mean badly or superbly but simply that 
they are getting it the way they want to do it and it is compatible 
with the spirit of the law, that the Congress and the administration 
are in sync on it. We do this before we settle this into permanent law.
  This is all new. Everything changed on 9/11. Many considerations 
under the law, particularly with respect to the gathering of 
intelligence and the protection of privacy, changed. This is especially 
important in light of the rapid pace of change in telecommunications 
technology--one of the main reasons were are here today revising FISA.
  I think we need to have a 4-year sunset amendment. I do think it is 
important that the intelligence community, the Congress, and the 
administration come back together in 4 years. Congress, obviously, can 
bring it up anytime we want. On the other hand, if we do it this way, 
with a 4-year sunset amendment, it obliges all participants to come to 
participate. That is the way we get resolved what works and what does 
not work, and we learn from the intelligence people, and they learn 
from us, as to what we think is the best way to proceed.
  So I do strongly support that amendment. It would take us to December 
31, 2011. This four year period would give the intelligence community 
ample time to move ahead but it also ensures that the decision on 
permanency is made when Congress and the executive branch are prepared 
to evaluate the legislation again. As I have indicated, I support the 
amendment.
  I yield the floor.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Republican floor manager, I think by our 
tradition, is to be recognized.
  Mr. BOND. Mr. President, I thank the Chair.
  I appreciate the opportunity to share a few views on the amendment. 
Again, on this measure, as on the others, I have a number of my 
colleagues who have indicated a desire to speak on it, so I am only 
going to take a very few minutes.
  But let's be clear: When this issue came before the Intelligence 
Committee, we worked on a bipartisan basis to compromise. I think we 
had, as I have said before, a very good compromise. Everybody gave. I 
did not want any sunset. I felt providing our intelligence community 
the ability to establish a good, strong, adequately protected but yet 
effective means of intercepting foreign intelligence communications was 
vitally important so the intelligence community would know they had 
this ability.
  Moreover, I have had the opportunity, in the last couple years, to 
meet with many of our allies abroad. Our allies depend upon our ability 
to intercept communications that lead to the disruption of terrorist 
attacks in other countries.
  Again, I ask my colleagues who want to know what the Protect America 
Act has done to review the classified communication that the Director 
of National Intelligence sent us saying how many times and where in 
foreign countries we were able to provide vital information through our 
collection of electronic signals to the governments that wanted to be 
able to prevent terrorist attacks and were significantly enabled to do 
so by means of our collection efforts. Probably the reason for keeping 
it a permanent law was best expressed by the Attorney General, Mike 
Mukasey. When he was asked about why we shouldn't have a sunset, he 
said: The enemies, the Islamist terrorists who want to do us harm, do 
not put a sunset on their fatwas, their orders to go out and kill 
Americans and kill our allies and kill our troops abroad.
  There is no immediate prospect of cessation of foreign terrorist 
activities or proliferation of weapons of mass destruction or even 
threats from countries that are absolutely hostile and dangerous to the 
United States. To put an artificial time limit on it makes no sense.
  I have a different view of what the Intelligence Committee should be 
doing. One of the things we see, as we have discussed some of these 
amendments, is that those of us on the Intelligence Committee have 
special access to all this information, but we have a heavy 
responsibility. We try to carry it out well. Every time we explain on 
the floor what our intelligence activities are concerning, even in an 
unclassified setting, the more we talk about it, the more our enemies--
those who would seek to do us harm--learn about our intelligence 
collection capabilities. Bringing this back to the floor will enable 
them, once again, to learn more about what we are doing and when we are 
doing it.
  Frankly, having a sunset that expires just before a new 
administration is sworn in after the 2012 elections seems to me not to 
make much sense. If there are changes needed in the Foreign 
Intelligence Surveillance Act amendments of 2008, it is our job on the 
Intelligence Committee to conduct continuing oversight. If there is a 
problem with that activity, if it is inadequate or if it is not 
properly regulated, then it is our job in our oversight hearings to 
bring that to the floor and bring that particular fix or that 
particular change that is needed to the floor immediately. We shouldn't 
wait 6 years or even 4 years. If we need to fix it, we need to find out 
what fixing is needed, and we need to take those steps at that time, 
not wait for 4 years or 6 years.

[[Page 1273]]

All we do by setting an artificial time limit on it is to say to those 
who seek to do us harm: Well, if you go past the deadline, who knows? 
Maybe the Congress will not be able to adopt an extension. Maybe we 
will be able to communicate with our operatives in the United States 
and elsewhere without surveillance. It causes uncertainty in the 
intelligence community, and I believe it is not wise to cut back on the 
compromise we reached on a bipartisan basis in passing out the FISA 
amendments of 2008 by a 13-to-2 vote.
  So I urge my colleagues to vote against this amendment.
  I yield the floor, and I reserve the remainder of the time on this 
side.
  The PRESIDING OFFICER. The Senator from Maryland is recognized.
  Mr. CARDIN. Mr. President, first, let me thank the distinguished 
chairman of the Intelligence Committee for his support for this 
amendment. He has helped in bringing it forward. Let me respond, if I 
might, to Senator Bond's points.
  First, let me point out that the cooperation we receive from the 
executive branch is very much enhanced when they know we have to pass a 
statute. All we need to look at is the cooperation we have received 
over the last several years from this administration to know that when 
we get to a point where Congress needs to act, we get the help of the 
administration in bringing us on board.
  As to the comments by the Republican leader on the committee that the 
terrorists don't have sunsets, they also don't have a legislature. They 
don't have democracy. They don't have any process that is open. They 
have no respect for civil liberties. We fight for this Nation because 
of what this Nation stands for. We know there are abuses of power, and 
we have a responsibility to take action on them. Sunsets have worked on 
the FISA statute. My colleague from Missouri has supported sunsets at 
different times during the process. We had it in the PATRIOT Act, and 
in the renewal of the PATRIOT Act we still have sunsets. We had sunsets 
on the original Protect America Act, and the bill that came out of the 
Intelligence Committee has a sunset in it.
  I understand the administration is against sunsets. I understand 
that. I don't agree with the administration's view and the way they use 
the power that was given to them--that they thought was given to them. 
I think they have abused it at times. Thank goodness we had oversight 
to try to rein that in, and thank goodness we had the courts looking at 
what they were doing.
  So the point is whether it should be 6 years or 4 years. I think it 
is critically important that the next administration work with this 
Congress to take a look at how this administration used the power and 
take a look at the legal opinions that were written so we have a 
comfort level between Congress and the next administration on 
protecting the security of America and protecting the civil liberties 
of the people who live in this Nation. That is why I believe the 4-year 
sunset is so important.
  I respect the view of my colleague from Missouri as to the 
predictability of statutes. We are not going to let the authorities 
expire. We are going to carry out our responsibility. We know that. 
There is not a person who is a Member of this body who disagrees with 
giving the appropriate tools to the intelligence community.
  As I said earlier, I am very proud of the work that is done at NSA in 
the State of Maryland by dedicated men and women. They can't send out 
press releases when they do things that are very important to our 
country in protecting our security. They do a great job. We owe them 
the type of support that includes a statute that is definitive and 
makes sense and that we pass; also, that we continue to be their 
partners and continue the oversight with the change in technology and 
continue to work with the executive branch to make sure we get it 
right.
  I urge my colleagues to support the amendment. I reserve the 
remainder of my time.
  Mr. LEAHY. Mr. President, I think we all recognize that this 
legislation would provide broad and untested new powers to the 
executive branch. We are willing to do that in order to protect our 
national security. But this surveillance does not just affect foreign 
targets; it also affects the privacy rights of potentially millions of 
American citizens. That is why it is so important that we get this 
right. And that is why I support Senator Cardin's amendment, which 
would reduce the sunset provision of this bill from 6 years to 4 years.
  We are dealing with untested procedures; we have no assurance that 
what we are doing now will properly protect national security or the 
privacy rights of Americans. Many questions remain about how the new 
authorities that Congress is prepared to grant will be implemented, 
whether they will be effective, and--equally important--the extent to 
which they will intrude on innocent conversation of Americans. As we 
understand more about these authorities--and perhaps as technology 
allows us to improve our approach to this important surveillance--the 
executive branch and the Congress should reevaluate these sensitive 
authorities.
  There is too much here that is new and untested to allow the 
authorities to go longer than even expiration of the next President's 
term before requiring a thorough review. A 4-year sunset makes sense. 
It will allow the next President 3 years of experience under these 
authorities to monitor how these new powers are being carried out. And 
it is an appropriate time for the Congress to evaluate whether the 
legislation strikes the right balance between national security needs 
and Americans' civil liberties.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. I thank the Senator from Maryland for his leadership on 
the sunset issue. I ask unanimous consent that the pending amendment be 
set aside.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.


                Amendment No. 3915 to Amendment No. 3911

  Mr. FEINGOLD. Mr. President, I call up amendment No. 3915.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Wisconsin [Mr. Feingold], for himself and 
     Mr. Dodd, proposes an amendment numbered 3915.

  Mr. FEINGOLD. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

 (Purpose: To place flexible limits on the use of information obtained 
                       using unlawful procedures)

       On page 17, strike line 20 and all that follows through 
     page 18, line 11, and insert the following:
       ``(B) Correction of deficiencies.--
       ``(i) In general.--If the Court finds that a certification 
     required by subsection (f) does not contain all of the 
     required elements, or that the procedures required by 
     subsections (d) and (e) are not consistent with the 
     requirements of those subsections or the fourth amendment to 
     the Constitution of the United States, the Court shall issue 
     an order directing the Government to, at the Government's 
     election and to the extent required by the Court's order--

       ``(I) correct any deficiency identified by the Court's 
     order not later than 30 days after the date the Court issues 
     the order; or
       ``(II) cease the acquisition authorized under subsection 
     (a).

       ``(ii) Limitation on use of information.--

       ``(I) In general.--Except as provided in subclause (II), no 
     information obtained or evidence derived from an acquisition 
     under clause (i)(I) concerning any United States person shall 
     be received in evidence or otherwise disclosed in any trial, 
     hearing, or other proceeding in or before any court, grand 
     jury, department, office, agency, regulatory body, 
     legislative committee, or other authority of the United 
     States, a State, or political subdivision thereof, and no 
     information concerning any United States person acquired from 
     such acquisition shall subsequently be used or disclosed in 
     any other manner by Federal officers or employees without the 
     consent of such person, except with the approval of the 
     Attorney General if the information indicates a threat of 
     death or serious bodily harm to any person.
       ``(II) Exception.--If the Government corrects any 
     deficiency identified by the Court's order under clause (i), 
     the Court may permit

[[Page 1274]]

     the use or disclosure of information acquired before the date 
     of the correction pursuant to such minimization procedures as 
     the Court shall establish for purposes of this clause.

  Mr. FEINGOLD. Mr. President, this amendment is a provision that was 
part of the Judiciary Committee bill. It was included in a larger 
substitute amendment adopted in that committee that was sponsored by 
Senator Leahy and cosponsored by Senator Feinstein, Senator Schumer, 
and others.
  This amendment puts no additional limits on the Government's ability 
to target people overseas under this legislation or to collect 
information about those people. All it does is help ensure that the 
Government's procedures follow the requirements that are laid out in 
the bill. It fixes an enormous problem in the Intelligence Committee 
bill: the complete lack of any incentive for the Government to do what 
the bill tells it to do, namely, target people overseas rather than 
people in America.
  There are many aspects of this bill that have generated strong 
disagreement, but one thing on which everyone in this Chamber should 
agree is that the Government should not be using these authorities to 
target the conversations of innocent Americans in their homes and 
offices in the United States. For that, the Government should have to 
get an individualized court order, as it always has.
  The bill requires the Attorney General, in consultation with the 
Director of National Intelligence, to adopt targeting procedures that 
are reasonably designed to ensure that only people outside the United 
States are targeted. The bill also requires the Attorney General, in 
consultation with the Director of National Intelligence, to adopt 
minimization procedures to govern the retention and dissemination of 
information about Americans that is captured in the course of the 
surveillance.
  All of this sounds good. The targeting procedures, in particular, are 
one of the few safeguards built into this legislation. Yet, remarkably, 
the Intelligence Committee bill does nothing to ensure the Government 
will follow them. They are basically non-binding. The FISA Court does 
not have to approve the procedures before they are implemented. If the 
Government develops procedures that target Americans in this country, 
in violation of the law, the FISA Court can reject those procedures and 
require them to develop new ones but only after those procedures have 
already been in effect.
  The bill does nothing to stop the Government from continuing to use 
and share the information it collected under those illegal procedures. 
Think about that. The Government develops and implements procedures the 
FISA Court later finds out are not reasonably designed to target people 
who are outside the United States, meaning the procedures likely permit 
the targeting of Americans here at home--something we all agree should 
not be permitted under this bill. Yet if the Government has been using 
those unlawful procedures while the FISA Court reviews them, it can 
keep and freely share any communications it gathered. In theory, the 
Government could play this game indefinitely, periodically revising its 
procedures and all the while using and disseminating information that 
has been illegally collected under prior procedures rejected by the 
court.
  My amendment would solve this problem, at least in part, by allowing 
the FISA Court to put limits on the use of information about Americans 
the Government has gathered using procedures the court later finds do 
not comply with the requirements of this legislation.
  These types of use limitations are not a new concept. Indeed, they 
are borrowed from another part of FISA. Under current law, if the 
Government in an emergency starts surveillance of an American without a 
court order and the court later determines the surveillance was not 
lawful, FISA places limits on how the Government can use that 
unlawfully gathered information. It is simple common sense: If the 
Government wasn't supposed to obtain this information under the law, 
then the Government shouldn't be permitted to use this information 
except in a true emergency. Otherwise, the limit on obtaining the 
information in the first place isn't worth the paper it is printed on--
it's just there for show.
  This amendment adopts the same basic idea, but with significantly 
more leeway for the Government. Under the amendment, if the Government 
collects information using unlawful procedures, the default is that the 
Government may only use the information regarding U.S. persons--namely, 
the information the Government was never supposed to collect in the 
first place--in an emergency involving a threat of death or serious 
bodily harm to any person. But the Government can continue to freely 
use information collected on foreign persons.
  The amendment also provides significant additional flexibility. It 
gives the FISA Court discretion to allow the Government to use even 
information about U.S. persons--information collected illegally--as 
long as the Government ultimately fixes the defective procedures. That 
is a very broad exception to the use limitation, but importantly, it is 
an exception that is overseen and applied by the FISA Court.
  This is the bare minimum we could possibly do to encourage the 
Government to adopt and adhere to lawful targeting and minimization 
procedures in the first place. The practical effect of this amendment 
is simply to give the FISA Court the option of prohibiting the use of 
information about U.S. persons obtained illegally--in violation of the 
very act we are debating. Given the FISA Court's history of 
overwhelming deference to the executive branch, it is quite clear the 
court will exercise this option, if ever, only in the most egregious 
cases of Government excess or abuse. And as I said before, the 
Government will always have the ability to use information about 
foreign persons and any information that indicates a threat of death or 
serious bodily harm.
  Just to be clear, no one is talking about holding the Government to a 
standard of perfection. The bill we are debating does not require the 
Government to develop procedures that ensure that in every instance, 
only people overseas are targeted. Instead, it requires the Government 
to develop procedures that are reasonably designed to target people who 
are reasonably believed to be outside the United States. So the use 
limitation I am proposing would come into play only if several things 
happen: First, the Government failed to get court clearance for its 
procedures before implementing them; second, the procedures were not 
even reasonably designed to meet the modest goal of targeting people 
reasonably believed to be overseas; third, the Government failed to 
correct the problem when given a chance to do so, or the FISA Court 
decides not to allow the use of the illegally collected information 
despite the procedures being fixed; fourth, the information involves a 
U.S. person; and fifth, the information does not indicate a threat of 
death or serious bodily harm. All these things have to be true in order 
for there to be any limitation here at all.
  This is an extremely modest safeguard against unlawful procedures and 
one that gives the Government ample leeway to develop sound targeting 
procedures while simultaneously getting and using the information it 
needs.
  It comes down to a very simple question: Do we mean what we say when 
we declare that Americans in this country should not be targeted under 
the powers we are giving the Government in this legislation? If we do 
mean what we say, we should have no problem saying that the use of 
information obtained through procedures that target Americans can be 
blocked by the FISA Court, since that information should never have 
been obtained in the first place. If we don't say that, then the 
targeting and minimization requirements are really just suggestions, 
and the supporters of the bill are not serious when they say they only 
want to go after foreigners overseas.
  This amendment is based on a commonsense provision that already 
exists in FISA, with significant additional flexibility for the 
Government. It gives the Government a modest incentive to comply with 
the law, without taking away any of the legitimate tools it

[[Page 1275]]

needs to respond to foreign threats. And it was already adopted by the 
Judiciary Committee.
  I urge my colleagues to support the amendment, and I reserve the 
remainder of my time.
  The PRESIDING OFFICER (Ms. Stabenow). The Senator from Missouri.
  Mr. BOND. Madam President, I rise in opposition to another amendment 
that has been argued very strongly on the other side but which would 
impose additional operational burdens and limit the ability of our 
collective agencies in the intelligence community to get the 
information they need and to be able to use it to keep our country 
safe.
  We have gone through all of these, and we have worked to develop much 
greater protections for American citizens. One of the protections the 
American citizens seek from us is the protection from foreign attack 
and terrorist attack. If we hamstring our intelligence community--as 
they were hamstrung under the new techniques under the old FISA law--
you will find out we cannot collect the information we need. This 
burden--this superexclusionary rule--goes far beyond what is necessary 
to protect American citizens.
  While supporters of the amendment may argue that a similar rule 
appears elsewhere in FISA, it is important to remember that rule is 
limited to individual domestic surveillance and searches, where the 
court has found there is no probable cause to target that person. That 
is very different and is a very important protection for Americans from 
searches and seizures and surveillance without a court order--not a 
properly developed court order.
  This amendment tries to apply that same rule to foreign targeting, 
when there may be a deficiency identified in the targeting or 
minimization procedures. Applying an exclusionary rule in the context 
of a domestic surveillance involving a small number of targets is 
manageable and it must be done to protect Americans. It makes no sense 
if there is no finding of probable cause. That is the threshold under 
which that rule applies. But it makes no sense to exclude the use of 
information simply because there is a deficiency--any deficiency--in 
the certification or procedures used to target foreign terrorists 
overseas. That is whom we are talking about; that is the overwhelming 
amount of the collection--against foreign targets, foreign terrorists, 
and others with weapons of mass destruction plans or proliferation or 
foreign powers. It makes no sense to say a deficiency, which can be 
corrected, should require all the information collected to be 
suppressed.
  For example, this automatic suppression rule would make the 
Government temporarily sequester significant amounts of data, 
potentially, that might contain vital foreign intelligence 
information--obviously, there is a qualification--but not amount to 
information that indicates a threat of death or serious bodily injury 
during a period of time when the Government is attempting to correct a 
relatively minor or inadvertent deficiency.
  That is unreasonable, and it is one more administrative burden to 
place on the intelligence community. Moreover, the Intelligence 
Committee's bill already provides an adequate remedy if the FISA Court 
ultimately determines that the collection is improper; it may order the 
Government to cease collection.
  The court then has the inherent authority to fashion an appropriate 
remedy to address the collection and the contents that have been 
collected in a manner inconsistent with the law and the authorities of 
the collecting agency.
  This amendment does not fix a problem with the statute. Instead, it 
potentially creates a problem that could have unintended operational 
consequences for our intelligence community. They don't need any more 
burdens. They have all the challenges they need in trying to intercept, 
translate, incorporate, and divine the intents of terrorists. There is 
more than enough work to do for our intelligence analysts just to stay 
within the existing boundaries we have applied in the protection for 
American citizens, without them having to fear we will lose vital 
foreign intelligence collection information because there was some 
minor deficiency that may later be identified by the court. That would 
make our country less safe and it is not warranted.
  Therefore, I encourage my colleagues to join me in voting against 
this amendment.
  I yield the floor to my colleague, the chairman.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Senator Feingold's amendment concerns the effects of 
a court determination that there are deficiencies in the Government's 
procedures under the new authority. This is a complicated issue and I 
think it is important to explain why I cannot support this amendment.
  I wish to add that what the vice chairman and I both believe all of 
this is going to be litigated in the courts for decades to come, and 
all that is said here by us and everybody else becomes an important 
part of the record.
  Under the Intelligence Committee bill, the FISA Court is required to 
review the Government's certification, targeting procedures, and 
minimization procedures to ensure their adequacy. If the court finds a 
deficiency in either the minimization or targeting procedures, the 
Intelligence Committee bill requires the Government correct the 
deficiency or cease the acquisition.
  The Feingold amendment goes beyond requiring that collection be 
terminated or deficiencies corrected. It restricts the use or 
disclosure of any information collected that concerns U.S. persons.
  Unless the Attorney General determines the information indicates a 
threat of death or serious bodily harm or the person consents, the 
amendment would prevent the Government from sharing or disseminating 
with anyone in the Federal Government any information already acquired 
under the new procedure that concerns U.S. persons.
  I can understand that there may be, at first glance, some appeal to 
that idea. Senator Feingold, for example, has said it is important to 
ensure there are consequences when the Government has not adequately 
developed its procedures. Hard to argue.
  But looking at the consequences of this amendment in more detail 
makes it clear the provision is impractical. And it creates serious 
risks that we will lose valuable intelligence.
  The language of the Senator's amendment is taken from the emergency 
provisions currently in FISA. Under those provisions, the Attorney 
General can authorize electronic surveillance without a court order in 
an emergency, as long as an application for an order is submitted to 
the court within 72 hours. If a court does not approve the FISA 
collection on an individual target after this emergency intelligence 
collection has begun, FISA prevents the intelligence collected from 
being ``used or disclosed in any . . . manner by Federal officers or 
employees without the consent of such persons,'' unless the Attorney 
General determines the information indicates a threat of death or 
serious bodily harm.
  The impact of this existing emergency provision in FISA, however, is 
far different than the impact of Senator Feingold's amendment.
  In contrast to limiting the use of a small amount of information 
collected on one target during 72 hours of emergency procedures, 
Senator Feingold's amendment potentially limits use of all information 
gathered through a new system of intelligence collection. To understand 
why these are different situations, it is useful to consider the 
difference between traditional FISA applications and orders and the new 
title VII provisions.
  Unlike traditional FISA applications and orders, which involve 
collection on one individual target, the new FISA provisions create a 
system of collection. The court's role in this system of collection is 
not to consider probable cause on individual targets but to ensure that 
the procedures used to collect intelligence are adequate. The court's 
determination of the adequacy of procedures, therefore, impacts all 
electronic communications gathered under the new mechanism, even if it 
involves thousands of targets. I will repeat that.

[[Page 1276]]

  Senator Feingold's amendment applies to all of this intelligence 
collection. If the court finds a deficiency that the Government does 
not correct within 30 days, the Federal Government could not disclose 
any information on U.S. persons that was gathered as part of the new 
intelligence collection system without the consent of the person.
  Thus, unlike existing emergency procedures, which limit the use of a 
small amount of intelligence gathered over a 72-hour period on one 
target, Senator Feingold's amendment would potentially restrict the use 
of large amounts of intelligence, without regard to the importance of 
the intelligence.
  In addition, under the Feingold amendment, intelligence analysts 
would have to determine whether the collected intelligence contained 
information concerning U.S. persons. The Feingold amendment would 
require the intelligence analysts to sift through all of the 
intelligence collected under the new process in order to identify 
information potentially subject to restriction.
  As part of that process, analysts might be required to look at 
information that had not previously been analyzed in detail because it 
did not appear to contain significant foreign intelligence information, 
in order to determine whether the information concerned U.S. persons.
  Senator Feingold's amendment, therefore, has the potential to be more 
intrusive of U.S. privacy interests than the initial collection.
  Finally, this limitation on use applies regardless of what deficiency 
is found by the court, as long as the deficiency is not corrected 
within 30 days. Even if the court finds a minor deficiency in the 
procedures and the Government is acting in good faith to correct it, 
this provision would require the intelligence community to prevent any 
disclosure of the information.
  Please consider that, Madam President--to share with nobody in the 
Government.
  In sum, this provision could restrict the use of significant amounts 
of intelligence based solely on minor deficiencies in procedures. It 
may also require the intelligence community to focus its analytical 
resources on satisfying this provision rather than on collecting and 
analyzing the intelligence needed to protect this country.
  In my view, this allocation of resources makes no sense. I therefore 
cannot support this amendment.
  I reserve the remaining time, which is about 4 minutes.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Madam President, let me agree with the Chair that it is 
important to clarify what these amendments do and do not do, not only 
for purposes of voting on the amendment, but for any court 
consideration of this issue.
  The arguments of the chairman and ranking member do not relate, in 
many cases, to the amendment that has been put forward. The Senator 
from Missouri just made the argument that my amendment differs from the 
use limit provisions for emergency surveillance because my amendment 
would limit the use of information about foreign targets. But that is 
not true. That is not the amendment I offered. My amendment only puts 
limits on information about U.S. persons. The Government can always use 
information about foreign persons.
  With regard to the comments of the Chair of the committee, the 
supposed burden of identifying which communications involved U.S. 
persons only comes up if the Government starts its targeting procedures 
before it gets court approval, and then fails to keep track of what it 
is collecting during that time. And it only comes up if the Government 
procedures are targeting Americans in the United States, in which case 
I think there are overwhelming policy and constitutional reasons why 
this information needs to be retrieved and its use limited.
  Moreover, if the intelligence community is concerned about this 
potential burden, it can do what it says it already does with 
information gathered using the PAA, and that is to label it. Then it 
shouldn't have any problem finding it later on; it shouldn't be 
cumbersome.
  The arguments of the chairman and ranking member would yield the 
following result: We set up rules for the Government, the Government 
doesn't follow the rules, and there is simply no consequence at all. 
The law has no teeth. There is no incentive for the Government to 
follow the rules.
  Again, under my amendment, the Government can use information even 
about U.S. persons if it indicates a threat of death and serious bodily 
harm, and the FISA Court can allow the Government to use any 
information if the Government fixes the defective procedures. On that 
point, I am very troubled by the arguments of the Senator from 
Missouri. He says that my amendment will not even allow the Government 
to fix the problem with its procedures. That is absolutely false. I 
specifically stated that the Government is given an opportunity to fix 
the problem. If it fixes the problem, the FISA Court can allow it to 
use the information.
  If the Government gets a complete free pass and faces no consequence 
whatsoever for adopting and implementing unlawful procedures, then the 
law's requirements for targeting and minimization procedures and the 
FISA Court's oversight of these procedures have no meaning. The 
Government would be allowed to intrude on the private conversations of 
Americans with no consequences.
  This amendment contains a very modest series of provisions. It gives 
the court and the Government tremendous flexibility. If the Government 
makes even a reasonable effort to address the concerns of the FISA 
Court, there will be no disruption of the information the Government 
needs--and, of course, none is intended.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Madam President, in two sentences, thousands of 
targets in the Senator's amendment, thousands of targets, all foreign 
means hundreds or thousands of pieces of intelligence. Intelligence 
does not come as one lump. It is an enormous array of collection of all 
kinds of things which are stitched together over time. All that 
intelligence could be lost under the Feingold amendment if there were 
only U.S. person information that was involved.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Madam President, in response to the Senator from West 
Virginia, it is true that the use limits in my amendment would apply to 
any information about U.S. persons gathered under unlawful procedures, 
other than information indicating a threat of bodily harm. That is why 
the amendment provides significantly more flexibility to the Government 
than the use limits for emergency surveillance. The FISA Court can 
allow the Government to use even information about U.S. persons as long 
as the Government corrects the defective procedures. That is a huge 
exception that is not present in the emergency use limits provision.
  The PRESIDING OFFICER. If the Senator will suspend, the Senate is 
operating under a previous order for 5:20 p.m.

                          ____________________