[Congressional Record (Bound Edition), Volume 154 (2008), Part 1]
[Senate]
[Pages 989-991]
[From the U.S. Government Publishing Office, www.gpo.gov]




                                  FISA

  Mr. McCONNELL. Mr. President, we have known we needed to get the FISA 
law extended for 6 months--6 months. I have also heard it suggested 
that somehow, little or no harm would be done if

[[Page 990]]

the law were allowed to expire. Well, that is simply incorrect. The 
ability to go after new targets would be eliminated with the expiration 
of this bill in 3 days. So here we are with 3 days to go, and I gather 
from listening to my good friend on the other side, the very real 
possibility is that there is at least some willingness on the part of 
some on the other side to just let the law expire.
  Now, contrary to what some are saying, the expiration of this 
important antiterrorist tool has serious consequences; that is, if we 
don't get this job done, the notion that somehow it doesn't make any 
difference is certainly not true. Let me say again: Once it expires, 
intelligence officials will no longer be able to gather intelligence on 
new--new--foreign terrorist targets. The terrorists are not going to 
stop planning new attacks just because we stop monitoring their 
activities. Our enemies are watching. They know our intelligence 
capabilities will be degraded once the Protect America Act expires. 
That is why we need to reauthorize FISA in such a way that we retain 
its full--its full--terror-fighting force. The Senate Intelligence 
Committee's version does just that. That is the Rockefeller-Bond 
bipartisan proposal that came out of committee 13 to 2. Senate 
Republicans stand ready to finish that good work the committee did and 
the administration began.
  We have proposed a list of several amendments to our colleagues on 
the other side that could receive votes. I know those discussions are 
ongoing, and hopefully we can begin to have some votes. But we do not 
have the time to rebuild amendment by amendment a Judiciary Committee 
version that a bipartisan majority of the Senate has already defeated. 
It wouldn't become law even if we passed it.
  Now, Republicans are ready to provide a short-term extension of the 
Protect America Act to keep the Senate focused on the importance of 
this critical terror-fighting tool. But after 10 months of waiting, we 
do not need--and the country cannot afford--another month of delay.
  We await the response of our Democratic colleagues to our amendment 
proposal, and those discussions, as I indicated, are going forward, and 
we look forward to finishing the job in a way that allows our 
intelligence professionals to keep us safe from harm.
  I yield the floor.
  The ACTING PRESIDENT pro tempore. The majority leader is recognized.
  Mr. REID. Mr. President, we understand the implication of the 
legislation that is now in effect and will expire Thursday. We 
understand that. We understand there are new targets our intelligence 
officials may want to go after. We understand that. But I repeat: Using 
the words of my friend, the Republican leader, once it expires, if it 
expires, it is on the shoulders of the White House and the Republicans 
in the Senate. We have attempted to work through this, and we have been 
willing to extend this law for an extended period of time. We have been 
willing to extend the law for a limited period of time.
  I think what this all boils down to is that we should extend the law 
for a long period of time because the only issue--there are other 
issues, of course, but the main issue is whether there will be 
retroactive immunity for the phone companies. That is what it all boils 
down to--whether there is going to be retroactive immunity to the phone 
companies. Some of us don't think that is appropriate; others think it 
is appropriate.
  So why don't we extend this law for an extended period of time? That 
way, the new targets could be sought if, in fact, they are out there--
and we all believe there are some, and that is necessary to be done--
and then set up a time. We will agree to a time and have a debate on 
the immunity provisions and see if the Senate and the House are willing 
to give retroactive immunity. In the bill my distinguished colleague, 
the Republican leader, talked about that came from the Intelligence 
Committee, that is in that bill. That is in their bill that came from 
committee. What the House has done doesn't have it in there. So why 
don't we have a debate on that issue and just extend the law? We will 
extend it until there is a new President. We are fine--we are happy to 
do that--so that we get off this: We can't do the targets. Why don't we 
just extend it for a period of time, and then our side will agree to 
try to work out something legislatively so that we can have a real nice 
debate on retroactive immunity.
  Mr. DURBIN. Mr. President, will the majority leader yield for a 
question?
  Mr. REID. I am happy to yield.
  Mr. DURBIN. Mr. President, I would like to ask the Senator if he 
could recap for me two votes that I think are significant. There was a 
vote taken as to whether the Judiciary Committee version would be 
accepted. A cloture vote was taken, if I am not mistaken, and it was 
defeated. If I am not mistaken, that was last week. And if I am not 
mistaken as well, yesterday, when Senator McConnell offered a cloture 
motion to promote his point of view, there were only 48 votes in 
support of it out of the 60 that were necessary--4 from our side of the 
aisle, 44 from the Republican side.
  It seems to me we need to put our heads together to work this out. 
Extending this law so that there is no damage or hazard to our country 
is a reasonable way to do this. We now have reached a point where 
amendments may be considered and voted on, and then we will be in a 
spot where we can pass a version in the Senate, send it to conference, 
and work out our differences. But I can't understand how the President 
and the Republican leader can come to the floor and blame us for the 
expiration of the law if we are offering an extension of the law and 
they keep refusing.
  Mr. REID. Mr. President, I say to my friend, the distinguished 
Senator from Illinois, I personally have been to the floor and offered 
on many occasions to extend the time. We could all see the train wreck 
coming, and we believed that it was necessary to extend this law.
  I don't know--I say very positively to my friend from Illinois and 
everyone who can hear me--I don't know if we can work anything out on 
these amendments. I don't know. On the title I aspect of it, one 
Senator has six amendments. I am sure--he has always been a reasonable 
person--he wouldn't have to offer that many. He has always been very 
good about time agreements. But there are 10 or 12 amendments to title 
I. Then there are three we have with title II dealing with some form of 
immunity.
  But I repeat to my friend, Democrats believe the program should 
continue. We are willing to say, OK, let it continue as it is now in 
effect. A lot of people don't like that. We are saying go ahead and let 
it continue. Certainly, there could be a significant majority of 
Senators--Democrats and Republicans--who will support that. And the 
issue is immunity.
  I reverse the question and ask my friend from Illinois, should we not 
have a nice debate on immunity and find out how the Congress feels 
about what the President feels is important? That is how this country 
has worked for all these years. So extend this and do it until we have 
a new President--Democrat or Republican, man or woman, whoever it might 
be--and in the meantime have a decision made as to whether there should 
be retroactive immunity.
  Mr. DORGAN. Will the Senator yield for a question?
  Mr. REID. I will, but let my friend from Illinois answer that 
question first.
  Mr. DURBIN. Mr. President, I say to the majority leader, it appears 
now that the Senate has to work its will. When the Judiciary Committee 
proposal was suggested, it didn't pass. When the Senator from Kentucky 
offered his cloture motion for his side, it didn't even have a majority 
vote. It had 48 votes in support, let alone the 60 that were required. 
I don't think we can expect to impose our will on this body. The Senate 
has to work its will. We could have considered a lot of amendments in 
the time we have lost so far in debate.

[[Page 991]]

  I say to the majority leader, how can we be held responsible for this 
law expiring if it is the Republicans who opposed extending the law? 
You have offered repeatedly to let them extend the law. They have said 
no.
  Mr. REID. Mr. President, I say to my friend, let's extend it for any 
period of time, although I think that for each day it should be a 
longer period of time.
  Mr. McCONNELL. Will the majority leader yield for a question?
  Mr. REID. I will after I have yielded to the Senator from North 
Dakota. If anyone thinks we are going to come to an immediate agreement 
on all these amendments, we have overused the term ``run the traps,'' 
but the Republicans are not going to agree to all of the amendments the 
Democrats want to offer. I will respond to my friend from North Dakota.
  Mr. DORGAN. Mr. President, this is a complicated and certainly an 
important issue. It seems to me that it takes two sides to compromise. 
One of the things I am curious about, as I listened to this and to the 
Senator from Kentucky, the minority leader said we are ready to move 
forward. He said he is disappointed in the delays. Isn't it the case, 
however, that last week, when the cloture motion was filed by the 
Senator from Kentucky, they decided at that point to block everything 
else and stop everything from happening until this week? It seems to me 
this delay has occurred because the other side has blocked the ability 
to offer amendments. Had we offered amendments, we would have probably 
been done with that at this point.
  I say that there is not anyone in the Senate I am aware of--no one--
who doesn't believe we ought to extend this FISA law. Nobody is in that 
position. Isn't that the reason for the delay and the reason we have 
not moved forward--that we were blocked when the Senator from Kentucky 
filed his cloture motion?
  Mr. REID. Mr. President, I say to my friend, you were at the meeting 
with me just from 9 to shortly before the hour of 10 o'clock. A person 
who is heavily involved in this legislation, the distinguished Senator 
from Wisconsin, Russ Feingold, said this legislation should be 
extended. He has, on many occasions, voiced his opinion on what is 
wrong with the way we passed this legislation in August, and he has 
been very strong in his comments about how this law could be improved. 
Every Democrat in our caucus believes this law should be extended. I 
don't like to speak for everybody, but Senator Feingold believes the 
law should be extended because it is the right thing to do. I cannot 
imagine why we have had all the difficulty we have had in extending 
this law. On a number of occasions, we have said if the law expires, it 
is not our fault.
  Now I am happy to yield to my friend from Kentucky.
  Mr. McCONNELL. I thank my good friend.
  Mr. President, he indicated that the principal issue we are sparring 
over is the question of immunity from litigation for communications 
companies that cooperated in protecting our country. I am sure the 
majority leader knows that yesterday my side offered to his side a vote 
on the Dodd-Feingold amendment related to that issue, and a vote on the 
Specter-Whitehouse amendment related to that issue, and that package 
was rejected.
  Mr. REID. Yes. I say to my friends, there are also other amendments. 
We talked about title I, and there are a number of amendments. I think 
we can reduce those on that side to maybe eight. They would all be 
short time limits. They would also make sure the record reflects that 
we believe they should be majority votes, not 60-vote margins.
  Mr. McCONNELL. Is the majority leader yielding the floor?
  Mr. REID. Yes, I am happy to.
  Mr. McCONNELL. Mr. President, this is the kind of discussion, of 
course, that the Senate is witnessing that typically occurs between the 
majority leader and myself and managers of the amendments. To sum it 
up, this is the kind of legislative finger-pointing that turns the 
public off. But it is the way in which we go forward.
  We had discussions yesterday about voting on the very issues the 
majority leader just indicated are the key issues relating to this 
bill. Hopefully, during the course of the day, we will be able to come 
together and have the votes on the key amendments and move forward.
  The President, of course, is not going to sign a lengthy extension or 
a 30-day extension. Any hope that we will extend existing law without 
dealing with the retroactive liability issue is a waste of energy and 
time. That isn't going to happen. So we are going to focus on this bill 
and, hopefully, find a way to go forward and let the Senate work its 
will.
  If the House chooses to leave tonight, I find that a highly 
irresponsible act--right before the expiration of this very important 
law. There isn't anything more important that we are doing right now, 
with the possible exception of trying to figure out a way of going 
forward to stimulate our economy and prevent an extensive slowdown, 
than getting the homeland protected.
  A key ingredient in securing that protection, we know, is getting 
this FISA law right and getting it passed--not some kind of short-term 
extension. The terrorists are not going to take a vacation for a few 
weeks or for 6 months or next year; they are going to be around for a 
while. We need to get this right and do it now, and today is a good day 
to get started.
  I yield the floor.
  Mr. REID. Mr. President, if this law is so good and we are able to, 
in the words of the Republican leader, ``get new targets,'' why don't 
we extend the law? I don't understand why we are not doing that.
  I tell everyone again that it is legislatively impossible to do 
anything as it relates to this legislation, as far as passing it today. 
It is impossible. We have a number of amendments that have to be 
handled. It is going to take a matter of quite a few hours. We can do 
it in 1 day, I think. Remember, we have to have everybody agree to 
that, all 100 Senators. Then the House has to agree to what we do or we 
have to agree to what they do or work out a compromise in conference. 
That cannot be done tonight. This is the last day we have to legislate. 
If we don't legislate today, we are going to move on to something else 
in a few minutes, because there is no agreement on FISA--to extend it. 
I think that is unfortunate. Having said it so many times already--and 
I am tired of hearing myself say it--if the law expires, Democrats have 
no blame whatsoever.
  Mr. McCONNELL. Mr. President, let me wrap it up for myself by saying 
that we will be staying on this bill. We will not leave this bill.
  Secondly, this is a bipartisan compromise that came out of the 
Intelligence Committee by a vote of 13 to 2, the Rockefeller-Bond 
bipartisan bill, which is supported by the President of the United 
States. That is the Senate at its best--a bipartisan bill. The 
President is willing to sign it. Our effort here is to get it to him 
for his signature. He awaits our action.
  I yield the floor.
  Mr. REID. Mr. President, this bill is not a bipartisan bill. The bill 
that came out of the Intelligence Committee is bipartisan, but 
understand it was concurrently referred to the Intelligence Committee 
and the Judiciary Committee. They both have jurisdiction over this 
legislation. We cannot pick and choose what the President likes. We 
have a situation here where the Judiciary Committee is entitled to be 
heard. That is what they are asking for--to be heard. They demand that 
and it is appropriate.

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