[Congressional Record (Bound Edition), Volume 154 (2008), Part 10]
[Senate]
[Pages 14380-14385]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 FISA AMENDMENTS ACT OF 2008--Continued


                             Cloture Motion

  The ACTING PRESIDENT pro tempore. Under the previous order, pursuant 
to rule XXII, the Chair lays before the Senate the pending cloture 
motion, which the clerk will report.
  The assistant legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     hereby move to bring to a close debate on H.R. 6304, the FISA 
     Amendments Act of 2008.
         E. Benjamin Nelson, John D. Rockefeller IV, Thomas R. 
           Carper, Mark L. Pryor, Bill Nelson, Dianne Feinstein, 
           Robert P. Casey, Jr., Barbara A. Mikulski, Claire 
           McCaskill, Kent Conrad, Daniel K. Inouye, Mary L. 
           Landrieu, Joseph I. Lieberman, Sheldon Whitehouse, Evan 
           Bayh, Ken Salazar.

  The ACTING PRESIDENT pro tempore. By unanimous consent, the mandatory 
quorum call is waived.
  There is 2 minutes of debate evenly divided. Who yields time?
  Mr. BOND. I yield myself 1 minute in support of cloture.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri.
  Mr. BOND. Mr. President, some opponents of this legislation claim 
that Congress is usurping the authority of the courts and that their 
trust lies in single, lifetime appointed judges in the judicial branch. 
I strongly disagree.
  The Constitution set up three coequal branches of Government. Our 
Constitution gives Congress the ability to determine the jurisdiction 
of Federal courts. This power is particularly important and necessary 
today in sensitive matters of national security.
  Further, the courts, including the FISA Court, have recognized the 
executive branch's expertise in matters of national security. They have 
stated that national security matters are not within their purview. It 
is entirely appropriate for this Congress to end this litigation and 
not entrust this matter any further to the courts with respect to the 
liability of particular participants in the program in the private 
sector. They can still sue the Government. We think a matter of 
fairness requires we protect those who assisted.
  The ACTING PRESIDENT pro tempore. Does anyone seek time in 
opposition? If not, all time is yielded back.
  The question is, Is it the sense of the Senate that the debate on 
H.R. 6304, the FISA Amendments Act of 2008, shall be brought to a 
close?
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The assistant legislative clerk called the roll.
  Mr. DURBIN, I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from Arizona (Mr. McCain).
  The ACTING PRESIDENT pro tempore. Are there any other Senators in the 
Chamber desiring to vote?
  The result was announced--yeas 72, nays 26, as follows:

                      [Rollcall Vote No. 167 Leg.]

                                YEAS--72

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

                                NAYS--26

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

                             NOT VOTING--2

     Kennedy
     McCain
  The ACTING PRESIDENT pro tempore. On this vote, the yeas are 72, the 
nays are 26. Three-fifths of the Senators duly chosen and sworn having 
voted in the affirmative, the motion is agreed to.
  The question is on third reading of the bill.
  The bill (H.R. 6304) was ordered to a third reading and was read the 
third time.


               Electronic Communication Service Provider

  Mr. BOND. Mr. President, I rise to engage the distinguished chairman 
of the Select Committee on Intelligence in a brief colloquy.
  Mr. ROCKEFELLER. I yield to the Senator.
  Mr. BOND. I thank the Senator. Today we have been debating the merits 
of title II of this bill, the title that contains the carrier liability 
protection provisions. I know that we both agree that title II is 
critically necessary to protect our national security.
  I would like us to focus for a moment on a small but important point 
related to the meaning of the term ``electronic communication service 
provider'' in title II. This is a term that was contained in the 
bipartisan Senate bill and was carried over in the current compromise 
bill.
  The term ``electronic communication service provider'' was 
intentionally drafted to encompass the full spectrum of entities being 
sued in a covered civil action. For example, if a provider received a 
written request or directive and the only assistance provided to the 
Government by that provider's related corporate entities was pursuant 
to that written request or directive, the related corporate entities 
should be entitled to the protections of section 802 as long as any 
assistance they provided meets the requirements of that section.
  Senator Rockefeller, do we share this common understanding of the 
meaning of the term ``electronic communication service provider''?
  Mr. ROCKEFELLER. Thank you, Senator Bond. I completely agree with 
your description of the meaning of ``electronic communications service 
provider.''
  The definition itself makes clear that the term is intended to 
include entities that are telecommunications carriers, providers of 
electronic communications service, providers of remote computing 
services, and any other communication service provider that has access 
to transmitted or stored wire or electronic communications. 
Significantly, the definition also includes any parent, subsidiary, 
affiliate, successor, or assignee of such entities, as well as any 
officer, employee or agent of such entities.
  Mr. BOND. Thank you Mr. Chairman.
  Mrs. FEINSTEIN. Mr. President, as the debate over the FISA 
legislation comes to a conclusion, and as a member of the Intelligence 
Committee for 7\1/2\ years, I would like to comment once again on why I 
support this bill.
  Let there be no doubt: 7 years after 
9/11, our country continues to face serious threats. There are some who 
seek to do us grave harm.
  So there is no more important need than obtaining accurate, 
actionable intelligence to help prevent such an attack.
  At the same time, there have to be strong safeguards to ensure that 
the Government does not infringe on Americans' constitutional rights.
  I believe this bill strikes an appropriate balance. It protects 
Americans and their privacy rights.
  This legislation is certainly better than the Protect America Act in 
that regard and makes improvements over the 1978 FISA law.
  This bill provides for repeated court review of surveillance done for 
intelligence purposes. It ends, once and for

[[Page 14381]]

all, the practice of warrantless surveillance. It protects Americans' 
constitutional rights both at home and abroad. It provides the 
Government flexibility to protect our Nation. It makes it crystal clear 
that FISA is the law of the land--and that this law must be obeyed.
  For more than 5 years, President Bush ran a warrantless surveillance 
program--called the terrorist surveillance program--outside of the law.
  The administration did not have to do this. This specific program 
could have been carried out under FISA--and I believe it should have 
been.
  With this bill, we codify and clarify that this limited, intelligence 
program will be carried out under the law.
  This legislation allows the Government to collect information from 
members of specific terrorist groups or specific foreign powers. It is 
focused on collecting the content of communications from specific 
people. If those people are Americans, a warrant is required. Period.
  So today, we are faced with three options:
  No. 1. We can pass this bill. It is comprehensive and improves 
protections for U.S. persons and updates the FISA law to meet today's 
national security challenges; or
  No. 2. We can extend the Protect America Act. This bill was a stop-
gap measure passed last August for a 6-month temporary period to 
provide time to develop this legislation. It was meant to be temporary, 
and it should be only temporary.
  No. 3. We can do nothing. If we do not pass legislation before mid-
August, America will essentially be laid bare--unable to gather the 
critical intelligence that we need.
  We will lose the ability to collect information on calls into and out 
of the United States from specific terrorist groups. The fact is, like 
it or not, the collection of signals intelligence is indispensable if 
we are to prevent another attack on our homeland.
  Given these three options, I think the choice is clear.
  The legislation is a significant improvement over the Protect America 
Act and over the 1978 FISA legislation.
  Let me indicate certain substantial improvements:
  This bill ends warrantless surveillance. Except in rare emergency 
cases, all surveillance has to be conducted pursuant to a court order.
  The FISA Court reviews the Government's procedures and applications 
before surveillance happens.
  This bill strengthens the court's review. Not only must the FISA 
Court approve any surveillance before it is started, this court is 
given more discretion, with a higher standard of review, over the 
Government's proposals. The Protect America Act limited the court to a 
rubberstamp review. This bill changes that.
  This bill requires that surveillance be subject to court-approved 
minimization.
  In 1978, Congress said that the Government could carry out 
surveillance on U.S. persons under a court warrant but required the 
Government to minimize the amount of information on those Americans who 
get included in the intelligence reporting. In practice, this actually 
means that the National Security Agency only includes information about 
a U.S. person that is strictly necessary to convey the intelligence. 
Most of the time, the person's name is not included in the report. That 
is the minimization process.
  If an American's communication is incidentally caught up in 
electronic surveillance while the Government is targeting someone else, 
minimization protects that person's private information.
  Now, the Protect America Act did not provide for court review over 
this minimization process at all. But this bill requires the court in 
advance to approve the Government's minimization procedures prior to 
commencing with any minimization program. That is good. That is the 
third improvement.
  This bill prohibits reverse targeting. There is an explicit ban on 
reverse targeting. Now, what is reverse targeting? That is the concern 
that the National Security Agency could get around the warrant 
requirement.
  If the NSA wanted to get my communications but did not want to go to 
the FISA Court, they might try to figure out who I am talking with and 
collect the content of their calls to get to me. This bill says you 
cannot do that. You cannot reverse target. It is prohibited. This was a 
concern with the Protect America Act, and it is fixed in this bill.
  This bill goes further than any legislation before it in protecting 
U.S. person privacy rights outside of the United States. It requires 
the executive branch to get a warrant anytime it seeks to direct 
surveillance of collected content from a U.S. person anywhere in the 
world. Previously, no warrant was required for content collection 
outside the United States.
  Finally, there are numerous requirements in the bill for various 
review of the surveillance activities by agency heads and by inspectors 
general. The FISA Court and the Congress will be kept fully informed on 
the operations of this program in the future.
  Finally, exclusivity. Mr. President, I have spoken multiple times on 
this floor about the importance of FISA's exclusivity provisions.
  Before 1978, there was no check on the President's ability to conduct 
electronic surveillance. However, in 1978, Congress passed FISA, 
intending it to be the only way. Congress intended that FISA would be 
the only way--the exclusive means--to conduct surveillance on U.S. 
persons in the United States for foreign intelligence purposes. 
President Carter acknowledged that when he signed the bill.
  Nonetheless, this administration took the position that FISA was not 
exclusive. First it stated that FISA didn't apply to these particular 
surveillance activities. Then it said that Congress gave it authority 
through the Authorization for the Use of Military Force in Afghanistan. 
Then it said that the President couldn't be bound by an act of Congress 
because he had his own authority under the Constitution.
  I reject all of these arguments. And now a Federal court has 
addressed the subject of exclusivity head-on.
  On July 2, Chief Judge Vaughn Walker of the U.S. District Court for 
the Northern District of California delivered a decision in a case 
brought against the U.S. Government for its surveillance. Judge Walker 
wrote:

       Congress appears clearly to have intended to--and did--
     establish the exclusive means for foreign intelligence 
     surveillance activities to be conducted. Whatever power the 
     executive may otherwise have had in this regard, FISA limits 
     the power of the executive branch to conduct such activities 
     and it limits the executive branch's authority to assert the 
     state secrets privilege in response to challenges to the 
     legality of its foreign intelligence surveillance activities. 
     (M:06-cv-01791-VRW, p. 23)

  These are powerful words in the opinion.
  So it is not just clear legislative intent, it is the current 
judicial position that FISA was and is exclusive.
  Yet, before the recess, it was asserted on the floor that the 
President has authority under article II of the Constitution to go 
around FISA. He does not, in my view.
  Moreover, they claim that the exclusivity language in the bill 
acknowledges the President's constitutional authority to conduct 
electronic surveillance outside of FISA. It does not.
  As the author of this language, let me state emphatically that the 
clear intent of the language is to bind the Executive to this law.
  Now, certain Senators are contending that this exclusivity language 
would allow the President to go outside of FISA.
  Let me be clear: this provision is not intended to, nor does it, 
provide or recognize any new authority to conduct electronic 
surveillance in contravention of FISA.
  It was drafted very carefully with input and agreement from people 
from both sides of the Intelligence Committee and the Judiciary 
Committee, the Department of Justice, and the Office of the Director of 
National Intelligence.
  The only way the President can move outside of FISA will be with 
another specific statute, passed by both Houses and signed by the 
President.
  In summary, the exclusivity language in this bill absolutely does not

[[Page 14382]]

recognize the President's claimed ``Article II'' authorities to conduct 
surveillance in contravention of FISA or any other law.
  The bottom line is that FISA has always been the exclusive means to 
conduct electronic surveillance, and it continues to be the exclusive 
means. And no President, now or in the future, has the authority to 
move outside the law.
  Finally, Mr. President, I want to set straight who in Congress was 
notified about the program and when. Some are saying that the Congress 
was briefed.
  This is not true.
  Eight Members of the House and Senate were briefed on the program 
around the time of its inception, shortly after September 11, 2001: the 
House and Senate leadership and the chairmen and ranking members of the 
Intelligence Committees.
  The 13 rank-and-file members of the Senate Intelligence Committee, 
who by law are to be kept ``fully and currently informed'' of 
intelligence activities, were not briefed until well after the program 
was publicly disclosed in the New York Times in December 2005--4 years 
later. I want to make this crystal clear.
  The chairman and the ranking member of the Judiciary Committee--which 
shares jurisdiction over FISA--were not briefed until a significant 
period of time after the full membership of the Intelligence Committee 
was notified.
  Finally, I want to say a few words about immunity.
  Let me be clear, this particular immunity language is not ideal. I 
would have approached this issue differently.
  When the legislation was before the Senate in February, I moved an 
amendment to require that the FISA Court conduct a review of whether 
the telecommunications companies acted lawfully and in good faith. 
Unfortunately, my amendment was not adopted, but I continue to believe 
it is the appropriate standard.
  I have cosponsored an amendment by Senator Bingaman that would stay 
action on all pending lawsuits until 90 days after Congress receives a 
report, required elsewhere in this bill, by the relevant inspectors 
general on the President's surveillance program. That would give 
Congress a chance to decide on immunity based on a third-party review. 
If lawmakers took no action within 90 days, the provisions would go 
into effect.
  I have spent a great deal of time reviewing this matter. I have read 
the legal opinions written by the Office of Legal Counsel at the 
Department of Justice. I have read the written requests to 
telecommunications companies. I have spoken to officials inside and 
outside the Government, including several meetings with the companies 
alleged to have participated in the program.
  The companies were told after 9/11 that their assistance was needed 
to protect against further terrorist acts. This actually happened 
within weeks of 9/11. I think we can all understand and remember what 
the situation was in the 3 weeks following 9/11.
  The companies were told the surveillance program was authorized and 
that it was legal.
  I am one who believes it is right for the public and the private 
sector to support the Government at a time of need. When it is a matter 
of national security, it is all the more important.
  I think the lion's share of the fault rests with the administration, 
not with the companies.
  It was the administration who refused to go to the FISA Court to seek 
warrants. They could have gone to the FISA Court to seek these warrants 
on a program basis, and they have done so subsequently.
  So I am pleased this bill includes independent reviews of the 
administration's actions to be conducted by the inspectors general of 
the relevant departments.
  This bill does provide a limited measure of court review. It is not 
as robust as my amendment would have provided, but it does provide an 
opportunity for the plaintiffs to be heard in court, and it provides an 
opportunity for the court to review these request documents.
  Mr. President, this is not a perfect bill. It is the product of 
compromise designed to make sure that it provides the needed 
intelligence capabilities and the needed privacy protections.
  I think the bill strikes that balance and that the Nation will be 
made more secure because of it.
  Mr. BIDEN. Mr. President, I rise today in opposition to the Foreign 
Intelligence Surveillance Amendments Act of 2008. As one of the 
cosponsors of FISA in 1978, I am fully aware of the importance of 
giving the administration the surveillance tools it needs to keep us 
safe. This is a very difficult vote and I do not question the judgment 
of those who have chosen to support the bill. But because I am 
concerned that this bill authorizes surveillance that is broader than 
necessary to protect national security at the expense of civil 
liberties and because it gives blanket retroactive immunity to the 
telephone companies, I have decided not to support it.
  One of the defining challenges of our age is to combat international 
terrorism while maintaining our national values and our commitment to 
the rule of law and individual rights. These two obligations are not 
mutually exclusive. Indeed, they reinforce one another. Unfortunately, 
the President's national security policies have operated at the expense 
of our civil liberties. The examples are legion, but the issue that 
prompted the legislation before us today is one of the most notorious--
his secret program of eavesdropping on Americans without congressional 
authorization or a judge's approval.
  After insisting for a year that the President was not bound by the 
Foreign Intelligence Surveillance Act's clear prohibition on 
warrantless surveillance of Americans, the administration subjected its 
surveillance program to FISA Court review in January of 2007.
  Then, last August, citing operational difficulties and heightened 
threats that required changes to FISA, Congress passed the Protect 
America Act--over my objection and that of many of my colleagues. I am 
submitting with this statement the objections I made at that time.
  The Protect America Act, which sunset last February, amended FISA to 
allow warrantless surveillance, even when that surveillance intercepted 
the communications of innocent American citizens inside the United 
States.
  The administration identified two problems it faces in conducting 
electronic surveillance under FISA. First, the administration wanted 
clarification that it did not need to obtain a FISA warrant in order to 
conduct surveillance of calls between two parties when both of those 
parties are overseas. Because of the way global communications are now 
transmitted, many communications between people all of whom are 
overseas are nonetheless routed through switching stations inside the 
United States. In other words, when someone in Islamabad, Pakistan 
calls someone in London, that call is likely to be routed through 
communications switching stations right here in the United States. 
Congress did not intend FISA to apply to such calls, and I support a 
legislative fix to clarify that point.
  The second problem the administration identified is more difficult. 
Even assuming that the Government does not need a FISA warrant to tap 
into switching stations here in the United States in order to intercept 
calls between two people who are abroad--between Pakistan and England, 
for example--if the target in Pakistan calls someone inside the United 
States, FISA requires the government to get a warrant, even though the 
government is ``targeting'' the caller in Pakistan.
  The administration wants the flexibility to begin electronic 
surveillance of a ``target'' abroad without having to get a FISA 
warrant to account for the possibility that the ``foreign target'' 
might contact someone in the United States. I agree with the 
administration's assessment of the problem, but this bill would go far 
beyond what is necessary to meet these new technological challenges.
  This bill's approach would significantly expand the scope of 
surveillance permitted under FISA by exempting

[[Page 14383]]

entirely from the warrant requirement any calls to or from the United 
States, as long as the Government is ``targeting'' someone reasonably 
believed to be located outside the United States.
  The Government could acquire these communications regardless of 
whether either party is suspected of any wrongdoing and regardless of 
how many calls to innocent American citizens inside the United States 
were intercepted in the process.
  Although the bill gives the FISA Court a greater role than earlier 
bills did, it still fails to provide for a meaningful judicial check on 
the President's power. The FISA Court's role would be limited to 
reviewing the Government's targeting procedures and its minimization 
procedures--the procedures it uses to limit the retention and 
dissemination of information it has required. But it would be required 
to approve them as long as they met the general requirements of the 
statute, which is written broadly.
  In addition, unlike the Judiciary Committee version of the bill I 
supported earlier this year, this bill neither limits the Government's 
use of information collected under procedures the FISA Court later 
deems inadequate, nor does it expressly give the FISA Court authority 
to enforce compliance with orders it issues.
  I am concerned that because of the way this bill is drafted, it could 
be interpreted to preclude the FISA Court from ordering the Government 
to destroy all communications of innocent Americans that it 
incidentally collects during its surveillance. If I were certain that 
the FISA Court had the power to order the destruction of the 
communications of innocent Americans, it might tip the balance in favor 
of my supporting the bill, even though I oppose blanket retroactive 
immunity.
  As for immunity, although I can understand why in the immediate 
aftermath of the attacks on September 11 the telephone companies would 
have cooperated with the Government, I believe it is inappropriate for 
Congress to grant blanket retroactive immunity without knowing what it 
is granting immunity for.
  Furthermore, cases against the carriers are already making their way 
through the courts and I have every confidence in the court's ability 
to interpret and apply the law. Retroactive immunity would undermine 
the judiciary's role as an independent branch of government.
  When the Senate passed FISA, after extensive hearings, thirty years 
ago by a strong bipartisan vote of 95 to 1, I stated that it ``was a 
reaffirmation of the principle that it is possible to protect national 
security and at the same time the Bill of Rights.'' I still believe 
that is possible, but not if we enact this bill.
  Mr. President, I am in support of Senator Rockefeller's proposal to 
address shortcomings in our intelligence collection authorities. I have 
studied Senator Rockefeller's bill closely and believe that it is an 
appropriate, temporary fix that adequately protects both our national 
security and Americans' privacy and civil liberties. It includes 
important safeguards against executive abuse--safeguards that are 
essential for an administration that has demonstrated so frequently 
that it simply cannot be trusted.
  The Rockefeller bill is narrowly tailored to address the two problems 
the administration has said it faces in conducting electronic 
surveillance under the Foreign Intelligence Surveillance Act, as that 
law is currently written.
  First, the administration wants clarification that it does not need 
to obtain a FISA warrant in order to conduct surveillance of calls 
between two parties when both of those parties are overseas. Because of 
the way global communications are now transmitted, many communications 
that take place entirely overseas are nonetheless routed through 
switching stations inside the United States. In other words, when 
someone in Islamabad, Pakistan, calls someone in London, England, that 
call may well be routed through communications switching stations right 
here in the United States. FISA was never intended to apply to such 
calls, and I support a legislative fix to clarify that point.
  The second problem the administration has identified is more 
difficult. Although neither FISA nor the Constitution requires the 
President to get a warrant if the target of surveillance is in Pakistan 
calling London, or anywhere else outside the United States, if the 
target in Pakistan calls someone in the United States, FISA requires 
the Government to get a warrant, even though the Government is 
``targeting'' the caller in Pakistan.
  Senator Rockefeller's bill would give the Government great 
flexibility to conduct surveillance of targets abroad, with prior 
approval of the FISA Court, while protecting the privacy of innocent 
Americans in the United States.
  Under this bill, the FISA Court would be required to issue a warrant 
upon a minimal showing that the targets of surveillance are overseas 
and not in the United States. The bill provides protection for innocent 
Americans in the United States--if the foreign target's communications 
began to involve a significant number of calls into the United States, 
the Government would be required to end surveillance pending receipt of 
a new FISA Court order that the target overseas was a suspected 
terrorist.
  Senator Rockefeller's approach also ensures robust oversight. 
Congress would get the actual FISA Court orders, and, every 60 days, 
Congress would receive the list of targets who turned out to be in the 
United States and the number of persons inside the United States whose 
communications were intercepted. This is more information than Congress 
receives today, and it would enable us to verify the administration's 
claim that they are targeting suspected terrorists without 
unnecessarily violating the privacy of law-abiding Americans.
  Senator Rockefeller's bill sunsets in 6 months, at which point 
Congress can, if necessary, craft a permanent, sensible, and 
Constitutional fix to FISA that ensures the American people are 
protected from terrorism and from encroachments on their civil 
liberties and individual freedoms. The President has asked that we go 
further, that we give him more unchecked power and discretion to 
eavesdrop on Americans' conversations without a warrant and without 
congressional oversight. His request raises many concerns, and Congress 
should deny it.
  The President's proposal would significantly expand the scope of 
surveillance permitted under FISA by exempting entirely any calls to or 
from the United States, as long as the Government is directing its 
surveillance at someone reasonably believed to be located abroad. The 
Attorney General and the Director of National Intelligence would make 
this determination on their own, and they would merely certify, after-
the-fact, to the FISA Court that they had reason to believe the target 
is outside the United States, regardless of how many calls to innocent 
American citizens inside the United States were intercepted in the 
process. This would be a breathtaking and unconstitutional expansion of 
the President's powers and it is wholly unnecessary to address the 
problems the administration has identified.
  Furthermore, the administration would not even limit this unchecked 
surveillance to persons suspected of involvement in international 
terrorism--it would cover the collection of any foreign intelligence 
information, which can include the collection of trade secrets and 
other information unrelated to the threat posed by al-Qaida.
  I have said before that one of the defining challenges of our age is 
to effectively combat international terrorism while maintaining our 
national values and our commitment to the rule of law, individual 
rights, and civil liberties. Unfortunately, the President has attempted 
to protect America by unnecessarily betraying our fundamental notions 
of constitutional governance and individual rights and liberties.
  I will support giving the administration the tools it needs to track 
down terrorists, but I will not give the President unchecked authority 
to eavesdrop on whomever he wants in exchange for the vague and hollow 
assurance that he

[[Page 14384]]

will protect the civil liberties of the American people. This 
administration has squandered the trust of Congress and the American 
people.
  The administration's approach is constitutionally infirm and it is 
unnecessary to address the specific problems it has identified. The 
Rockefeller bill is a carefully calibrated approach that protects the 
American people from both terrorism and violations of their civil 
liberties.
  I urge my colleagues to join me in supporting it.
  Mr. BYRD. Mr. President, in 1771, Samuel Adams observed:

       The liberties of our country, the freedom of our civil 
     Constitution, are worth defending at all hazards; and it is 
     our duty to defend them against all attacks. We have received 
     them as a fair inheritance from our worthy ancestors; they 
     purchased them for us with toil and danger and expense of 
     treasure and blood, and transmitted them to us with care and 
     diligence. It will bring an everlasting mark of infamy on the 
     present generation, enlightened as it is, if we should suffer 
     them to be wrested from us by violence without a struggle, or 
     to be cheated out of them by the artifices of false and 
     designing men.

  Under the artifice of defending our nation from terrorists, President 
Bush would have Congress surrender our liberties and the freedom of our 
civil Constitution. This bill, the Foreign Intelligence Surveillance, 
FISA, Amendments Act of 2008, is supposed to correct unconstitutional 
authorities contained in last year's ``Protect America Act'' that 
permitted widescale warrantless Government surveillance of innocent 
Americans' private international communications, much of it facilitated 
by telecommunications companies in a manner that is under court review. 
However, this bill undercuts that judicial review and, in effect, 
grants complete retroactive immunity to those companies for anything 
illegal they might have done for the last 6 years. That provision 
undermines the Constitution's fourth amendment protections.
  This bill continues Government surveillance of communications coming 
into and out of the United States without full fourth amendment 
protections. Remember the fourth amendment? It reads:

       The right of the people to be secure in their persons, 
     houses, papers, and effects, against unreasonable searches 
     and seizures, shall not be violated, and no Warrants shall 
     issue, but upon probable cause, supported by Oath or 
     affirmation, and particularly describing the place to be 
     searched, and the persons or things to be seized.

  The President would have you believe that this bill would provide 
additional powers to prevent another 9/11. But 9/11 did not happen for 
want of these powers. It was not a failure of Government to monitor 
private communications. Rather, it was a failure of the Government to 
monitor the reports of the FBI and of the intelligence community. It 
happened because the administration did not take seriously reports 
suggesting that what actually happened was being planned by al-Qaida. 
Just as he exploited 9/11 to lead us to war in Iraq, President Bush now 
wants to exploit his failures to attack our fundamental freedoms--
freedoms that formed the foundations of this Nation.
  There is no doubt that certain accommodations need to be made to 
address advances in technology. However, this bill goes too far. If the 
Government can collect all communications coming into or out of the 
United States, using powerful computers to shop among them without 
probable cause that the person making or receiving the communication is 
involved in anything illegal, and without any court providing a check 
upon the abuse of that power, that does not meet my ``reasonable 
man's'' definition of fourth amendment compliance. And that is not the 
``fair inheritance'' won for us by our Founders at such a great price.
  Mrs. CLINTON. Mr. President, one of the great challenges before us as 
a nation is remaining steadfast in our fight against terrorism while 
preserving our commitment to the rule of law and individual liberty. As 
a Senator from New York on September 11, I understand the importance of 
taking any and all necessary steps to protect our Nation from those who 
would do us harm. I believe strongly that we must modernize our 
surveillance laws in order to provide intelligence professionals the 
tools needed to fight terrorism and make our country more secure. 
However, any surveillance program must contain safeguards to protect 
the rights of Americans against abuse, and to preserve clear lines of 
oversight and accountability over this administration. I applaud the 
efforts of my colleagues who negotiated this legislation, and I respect 
my colleagues who reached a different conclusion on today's vote. I do 
so because this is a difficult issue. Nonetheless, I could not vote for 
the legislation in its current form.
  The legislation would overhaul the law that governs the 
administration's surveillance activities. Some of the legislation's 
provisions place guidelines and restrictions on the operational details 
of the surveillance activities, others increase judicial and 
legislative oversight of those activities, and still others relate to 
immunity for telecommunications companies that participated in the 
administration's surveillance activities.
  While this legislation does strengthen oversight of the 
administration's surveillance activities over previous drafts, in many 
respects, the oversight in the bill continues to come up short. For 
instance, while the bill nominally calls for increased oversight by the 
FISA Court, its ability to serve as a meaningful check on the 
President's power is debatable. The clearest example of this is the 
limited power given to the FISA Court to review the government's 
targeting and minimization procedures.
  But the legislation has other significant shortcomings. The 
legislation makes no meaningful change to the immunity provisions. 
There is little disagreement that the legislation effectively grants 
retroactive immunity to the telecommunications companies. In my 
judgment, immunity under these circumstances has the practical effect 
of shutting down a critical avenue for holding the administration 
accountable for its conduct. It is precisely why I have supported 
efforts in the Senate to strip the bill of these provisions, both today 
and during previous debates on this subject. Unfortunately, these 
efforts have been unsuccessful.
  What is more, even as we considered this legislation, the 
administration refused to allow the overwhelming majority of Senators 
to examine the warrantless wiretapping program. This made it 
exceedingly difficult for those Senators who are not on the 
Intelligence and Judiciary Committees to assess the need for the 
operational details of the legislation, and whether greater protections 
are necessary. The same can be said for an assessment of the telecom 
immunity provisions. On an issue of such tremendous importance to our 
citizens--and in particular to New Yorkers--all Senators should have 
been entitled to receive briefings that would have enabled them to make 
an informed decision about the merits of this legislation. I cannot 
support this legislation when we know neither the nature of the 
surveillance activities authorized nor the role played by 
telecommunications companies granted immunity.
  Congress must vigorously check and balance the president even in the 
face of dangerous enemies and at a time of war. That is what sets us 
apart. And that is what is vital to ensuring that any tool designed to 
protect us is used--and used within the law--for that purpose and that 
purpose alone. I believe my responsibility requires that I vote against 
this compromise, and I will continue to pursue reforms that will 
improve our ability to collect intelligence in our efforts to combat 
terror and to oversee that authority in Congress.
  Mr. REED. Mr. President, I wish to spend a few minutes discussing why 
I vote against final passage of H.R. 6304, the House companion to S. 
2248, the FISA Amendments Act of 2008. I would like to begin by 
commending Senators Rockefeller and Bond who have negotiated this bill, 
literally for months, in order to reach the compromise that we voted on 
today.
  I believe that many aspects of this bill are an improvement, not only 
to the Protect America Act which passed

[[Page 14385]]

last August, but also to S. 2248, the bill we voted on in February. I 
opposed both of those bills. This compromise bill specifies that FISA 
and certain other statutes are the exclusive means for conducting 
surveillance on Americans for foreign intelligence purposes. It 
requires the inspectors general of the Department of Justice, the 
Department of Defense, the National Security Agency, and the Director 
of National Intelligence to conduct a comprehensive review and issue a 
report on the President's surveillance program. It requires the 
intelligence community to create reverse targeting guidelines so that 
the National Security Agency cannot conduct surveillance of a U.S. 
citizen without a warrant by targeting a foreigner. Finally, it sunsets 
this legislation in 4\1/2\ half years rather than the 6 years called 
for in the original bill. All of these measures increase oversight and 
help protect civil liberties and are helpful changes.
  However, title II of this bill still grants retroactive immunity to 
telecommunications companies for actions they may or may not have taken 
in response to administration requests that may or may not have been 
legal. As I have stated before, the administration has had years to 
provide the written legal justification that they gave the 
telecommunications companies when they requested their cooperation in 
the aftermath of September 11. A few of my colleagues on the Judiciary 
Committee and Intelligence Committee were allowed to read certain 
documents related to this matter after extensive negotiations with the 
administration. However, I, and the rest of my Senate colleagues who 
are not on those committees, were denied access to those documents. In 
addition, the telecommunications companies who have been named in 
several lawsuits have been prohibited by the administration from 
providing any information regarding this issue to the courts, to the 
plaintiffs, to Members of Congress, or to the public. In good 
conscience, I could not simply trust with blind faith that the 
administration and telecommunications companies took proper, lawful 
actions.
  I therefore supported three attempts to strip or limit this immunity 
during today's debate. First, Senator Dodd offered an amendment to 
strike title II. When that failed, Senator Specter offered an amendment 
to require a Federal district court to assess the constitutionality of 
the terrorist surveillance program before granting retroactive immunity 
to the companies alleged to have assisted the program. This amendment 
also failed. As a final effort, Senator Bingaman offered an amendment 
which would have stayed all pending cases against the telecommunication 
companies related to the Government's warrantless surveillance program 
and delayed the effective date of the immunity provisions until 90 days 
after Congress receives the required comprehensive report of the 
inspectors general regarding the program. If Congress took no action in 
that time, the telecommunications companies would receive immunity. 
Unfortunately, that amendment also failed.
  The Senate had three opportunities to implement sensible measures to 
ensure that the grant of immunity to the telecommunication companies 
was appropriate. But these amendments were voted down. I believe the 
result sets a dangerous precedent. We must take the steps necessary to 
thwart terrorist attacks against our country, but these steps must also 
ensure that the civil liberties and privacy rights that are core to our 
democracy are protected. This bill fails to meet this threshold. For 
these reasons, I oppose the passage of this bill.
  The ACTING PRESIDENT pro tempore. There is now 2 minutes of debate 
equally divided.
  Who yields time?
  Mr. ROCKEFELLER. Mr. President, we have been on this bill now for in 
effect a year.
  The ACTING PRESIDENT pro tempore. The Senator will suspend. Will 
Senators please take their seats.
  Mr. ROCKEFELLER. And we have improved enormously the Senate bill that 
we voted out last year with a veto-proof majority. The House had not 
reacted to this bill well, particularly the immunity part, as well as 
the title I part. We went at them aggressively, Vice Chairman Bond and 
myself, to try to get the Senate to move toward the House position. We 
were successful in that.
  As I have said, Speaker Pelosi, who didn't want anything to do with 
the bill at the beginning, actually went to the floor of the House 
before they voted on it to pass it out and said: This may not be a 
perfect bill, but it is a bill that I certainly am going to vote for, 
and that is why I am here asking you to join me in so doing.
  I, in my lesser role, am doing the same thing.
  This is a historic bill. It has the particular virtue that over the 
course of the next 4 years, the next President of the United States 
will have a chance to review the bill and see if any changes need to be 
made.
  I strongly hope, on what I consider to be a very major piece of 
national security and civil liberties legislation, that my colleagues 
will vote to support the bill.
  The ACTING PRESIDENT pro tempore. Does anyone seek time in 
opposition?
  Mr. BOND. Mr. President, I ask for the yeas and nays.
  The ACTING PRESIDENT pro tempore. Is there a sufficient second? There 
is a sufficient second.
  The bill having been read the third time, the question is, Shall the 
bill pass?
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Massachusetts (Mr. 
Kennedy) is necessarily absent.
  Mr. KYL. The following Senators are necessarily absent: the Senator 
from Arizona (Mr. McCain) and the Senator from Alabama (Mr. Sessions).
  Further, if present and voting, the Senator from Alabama (Mr. 
Sessions) would have voted ``yea.''
  The PRESIDING OFFICER (Mrs. McCaskill). Are there any other Senators 
in the Chamber desiring to vote?
  The result was announced--yeas 69, nays 28, as follows:

                      [Rollcall Vote No. 168 Leg.]

                                YEAS--69

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

                                NAYS--28

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

                             NOT VOTING--3

     Kennedy
     McCain
     Sessions
  The bill (H.R. 6304) was passed.
  Mr. REID. Madam President, I move to reconsider the vote and to lay 
that motion on the table.
  The motion to lay on the table was agreed to.

                          ____________________