[Congressional Record (Bound Edition), Volume 154 (2008), Part 2]
[Senate]
[Pages 1906-1931]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 FISA AMENDMENTS ACT OF 2007--Continued

  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. BOXER. Mr. President, I ask unanimous consent that immediately 
following Senator Feingold's 15 minutes on FISA, I be recognized for 10 
minutes and that the time be taken from Senator Dodd's 4 hours.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Mr. President, I strongly oppose S. 2248. This bill is 
deeply flawed in ways that will have a direct impact on the privacy of 
Americans. Along with several other Members of this body, I have 
offered modest amendments that would have permitted the government to 
obtain the intelligence it needs, while providing the checks and 
balances required to safeguard our constitutional rights. 
Unfortunately, under intense administration pressure marked by 
inaccurate and misleading scare tactics, the Senate has buckled. And we 
are left with a very dangerous piece of legislation.
  The railroading of Congress began last summer, when the 
administration rammed through the so-called Protect America Act, vastly 
expanding the government's ability to eavesdrop without a court-
approved warrant. That legislation was rushed through this Chamber in a 
climate of fear--fear of terrorist attacks, and fear of not appearing 
sufficiently strong on national security. There was very little 
understanding of what the legislation actually did.
  But there was one silver lining: The bill had a 6-month sunset to 
force Congress to do its homework and reconsider the approach it took. 
Unfortunately, with far too few exceptions, the damage has not been 
undone.
  This new bill was intended to ensure that the government can collect 
communications between persons overseas without a warrant, and to 
ensure that the government can collect the communications of 
terrorists, including their communications with people in the United 
States. No one disagrees that the government should have this 
authority. But this bill goes much further, authorizing widespread 
surveillance involving innocent Americans--at home and abroad.
  Proponents of the bill and the administration don't want to talk 
about what this bill actually authorizes. Instead, they repeatedly and 
inaccurately assert that efforts to provide checks and balances will 
impede the government's surveillance of terrorists. They launched these 
attacks against the more balanced bill that came out of the Judiciary 
Committee. And they have attacked and mischaracterized amendments 
offered on the floor of this body. This is fear-mongering, it is wrong, 
and it has obscured what is really going on.
  What does this bill actually authorize? First, it permits the 
government to come up with its own procedures for

[[Page 1907]]

determining who is a target of surveillance. It doesn't need advance 
approval from the FISA Court to ensure that the government's targets 
are actually foreigners, and not Americans here in the United States. 
And, if the Court subsequently determines that the government's 
procedures are not even reasonably designed to wiretap foreigners, 
rather than Americans, there are no meaningful consequences. All that 
illegally obtained information on Americans can be retained and used.
  Second, even if the government is targeting foreigners outside the 
U.S., those foreigners need not be terrorists. They need not be 
suspected of any wrongdoing. They need not even be a member or agent of 
some foreign power. In fact, the government can just collect 
international communications indiscriminately, so long as there is a 
general foreign intelligence purpose, a meaningless qualification that 
the DNI has testified permits the collection of all communications 
between the United States and overseas. Under this bill, the government 
can legally collect all communications--every last one--between 
Americans here at home and the rest of the world. Even the sponsor of 
this bill, the chairman of the Intelligence Committee, acknowledges 
that this kind of bulk collection is probably unconstitutional, but the 
DNI has said it would be not only authorized but ``desirable'' if 
technically possible. Technology changes fast in this area. We have 
been forewarned, yet the Senate failed to act.
  One of the few bright spots in this bill is the inclusion of an 
amendment, offered by Senators Wyden, Whitehouse and myself in the 
Intelligence Committee, to prohibit the intentional targeting of an 
American overseas without a warrant. That is an important new 
protection. But that amendment does not rule out the indiscriminate 
vacuuming up of all international communications, which would allow the 
government to collect the communications of Americans overseas, 
including with friends and family back home, without a warrant. And 
those communications can be retained and used. Even the 
administration's illegal warrantless wiretapping program, as described 
when it was publicly confirmed in 2005, at least focused on the 
communications of particular terrorists. What we are talking about now 
is potentially a huge dragnet that could sweep up the communications of 
countless innocent Americans.
  Third, the Senate failed to prohibit the practice of reverse 
targeting; namely, wiretapping a person overseas when what the 
government is really interested in is an American here at home with 
whom the foreigner is communicating. The underlying bill simply does 
not stop this practice and, if there was any doubt, the DNI has 
publicly said that the bill merely ``codifies'' the administration's 
view that surveillance of an American is fine, so long as the 
government is technically wiretapping the foreigner. Even the DNI has 
said this is unconstitutional, but there is nothing in this bill to 
stop it.
  Fourth, the Senate has failed to protect the privacy of Americans 
whose communications will be collected in vast new quantities. The 
administration's mantra has been: ``don't worry, we have minimization 
procedures.'' Minimization procedures are nothing more than unchecked 
executive branch decisions about what information on Americans 
constitutes ``foreign intelligence.'' As recently declassified 
documents have again confirmed, the ability of government officials to 
find out the identity of Americans and use that information is 
extremely broad. Moreover, even if the administration were correct that 
minimization procedures have worked in the past, they are certainly 
inadequate as a check against the vast amounts of Americans' private 
information that could be collected under these new authorities.
  This legislation is 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, particularly with email, such 
communications are commonplace. Millions of ordinary, and innocent, 
Americans communicate with people overseas for entirely legitimate 
personal and business reasons. Parents or children call family members 
overseas. Students email friends they have met while studying abroad. 
Business people communicate with colleagues or clients overseas. 
Technological advancements combined with the ever more interconnected 
world economy have led to an explosion of international contacts.
  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 take a close look at the 
need for greater protections 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 have a 
duty to protect their privacy as much as we possibly can. And we can do 
that without sacrificing our ability to collect information that will 
help protect our national security.
  But, the Senate has once again fallen for administration tactics that 
have become so depressingly familiar. ``Trust us,'' they say. ``We 
don't need judicial oversight. The courts will just get in our way. You 
never know when they might tell us that what we're doing is 
unconstitutional, and we would prefer to make that decision on our own. 
Checks and balances, judicial and congressional oversight, will impede 
our ability to fight terrorism.'' And, sadly, these grossly misleading 
efforts at intimidation have apparently worked.
  I have been speaking for some time now about my strong opposition to 
this bill, and I haven't even addressed one of the most outrageous 
elements of that bill: the granting of retroactive immunity to 
companies that allegedly participated in an illegal wiretapping program 
that lasted for more than 5 years.
  This grant of automatic immunity is simply unjustified. There is 
already an immunity provision in current law that has been there since 
FISA was negotiated--with the participation of the telecommunications 
industry--in the late 1970s. The law is clear. Companies have immunity 
from civil liability when they cooperate with a Government request for 
assistance--as long as they receive a court order, or the Attorney 
General certifies that a court order is not required and all statutory 
requirements have been met.
  This is not about whether companies had good intentions. It is about 
whether they complied with this statutory immunity provision, which has 
applied to them for 30 years. If the companies followed that law, they 
should get immunity. If they did not follow that law, they should not 
get immunity. And a court should make that decision, not Congress. It 
is that simple.
  Congress passed a law laying out when telecom companies get immunity 
and when they don't for a reason. These companies have access to our 
most private communications, so Congress has subjected them to very 
precise rules about when they can provide that information to the 
government. If the companies did not follow the law Congress passed, 
they should not be granted a ``get out of jail free'' card after the 
fact.
  Proponents of retroactive immunity have said repeatedly that immunity 
is necessary if the government is going to have the cooperation of 
carriers in the future. We do need that cooperation. But we also need 
to make sure that carriers don't cooperate with illegitimate requests. 
We already have a law that tells companies when they should and when 
they shouldn't cooperate, so they are not placed in the position of 
having to evaluate independently whether the government's request for 
help is legitimate.
  Instead of allowing the courts to apply that law to the facts--
instead of allowing judges to decide whether the companies deserve 
immunity for acting appropriately--this bill sends the message that 
companies need not worry about complying with questionable government 
requests in the future because they will be bailed out after the fact.

[[Page 1908]]

  This is outrageous. Even more outrageous is that fact that if these 
lawsuits are dismissed, the courts may never rule on the NSA 
wiretapping program. This is an ideal outcome for an administration 
that believes it should be able to interpret laws alone, without 
worrying about how Congress wrote them or what a judge thinks. For 
those of us who believe in three independent and co-equal branches of 
government, it is a disaster.
  In the 1970s, Congress learned that the executive branch had been 
using its immense powers and the advance of technology to spy on its 
citizens. By passing FISA, Congress faced up to the fact that we can't 
just trust the executive branch, including the President of the United 
States, to do the right thing, that judicial oversight of the power to 
spy was needed, that checks and balances are the best way to ensure 
liberty, and security.
  I have spent a great deal of time on the floor over the past several 
weeks discussing the details of the bill, offering amendments, and 
debating the possible effects of the fine print of the statute. But 
this isn't simply about fine print. In the end, my opposition to this 
bill comes down to this: This bill is a tragic retreat from the 
principles that have governed government conduct in this sensitive area 
for 30 years. It needlessly sacrifices court oversight and protection 
of the privacy of innocent Americans. It is an abdication of this 
body's duty to stand up for the rule of law.
  We know what is wrong with this legislation. We know that it 
authorizes unconstitutional surveillance of Americans. We have been 
forewarned. I urge my colleagues to vote ``no'' on final passage.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. BOXER. Mr. President, I rise to speak about the FISA bill 
currently being considered by the Senate. I believe it is our duty to 
provide all the tools necessary to fight terrorism. We also have 
another duty--I would say a simultaneous duty, a sworn duty--to protect 
the constitutional rights of our citizens.
  So we have two duties. One is to protect the American people and give 
the Government the tools it needs to do that; two, to protect the 
constitutional rights of Americans. If we lose those rights, then the 
basic freedoms of our people are at risk.
  I believe we have fallen far short. We have fallen far short of the 
balance that we always need to look for, ever since the beginning of 
our Republic-- the balance between security and freedom. I think we 
missed it here.
  It is not the Government's job to scare our people; it is the 
Government's job to protect our people. It is not the Government's job 
to endanger the privacy of law-abiding Americans, but to protect the 
privacy of law-abiding Americans. Sadly, we had a number of amendments 
to this bill which would have brought that balance I talked about into 
being, the balance between security and freedom.
  Senator Feingold had an amendment limiting the use and dissemination 
of information unlawfully obtained through foreign surveillance on U.S. 
citizens. His amendment would have protected the rights of innocent 
U.S. citizens and provided a necessary balance to the bill. I was proud 
to support it because the bill, obviously, needed some more checks and 
balances.
  Senator Feingold also had an amendment to provide protection against 
bulk collection of foreign communications that could include 
communications of innocent Americans. Again, this measure would have 
provided additional protection for the rights of American citizens, and 
I was proud to support it because I believe we need, again, additional 
checks on enhanced Government surveillance authority.
  My colleague and friend from California, Senator Feinstein, had an 
amendment that stated a very important principle: that FISA, the 
Foreign Intelligence Surveillance Act, is the exclusive authority for 
conducting foreign intelligence surveillance.
  Why is that important? It is important because this administration 
argues time and again that ``it has inherent authority'' to conduct 
warrantless surveillance, or that Congress somehow gave them the 
authority when it authorized the use of military force in Iraq--a 
ridiculous claim. The Feinstein amendment was a very important 
amendment because it would have made it clear that FISA is the 
exclusive authority, pure and simple.
  Why was that important going forward? We don't want to have this 
administration or another one in the future--I don't care which party 
they are from--spying on the American people and then saying: It is 
true, we didn't obey FISA, but we thought it was important to go 
outside the law. If we had adopted the Feinstein amendment, we would 
have clearly stated that FISA is the law when it comes to conducting 
surveillance on our own people.
  The Feinstein amendment--which failed, sadly by only 1 or 2 votes 
short of the 60-vote hurdle--said we are not going to lose our 
freedoms, we are not going to allow another administration to spy on 
us; FISA is going to be the one and only law that pertains here.
  Finally, there is the issue of immunity for telecommunications 
companies that cooperated with the administration's warrantless 
surveillance program. We know that American law did not give these 
telephone companies the authority to do what they did, but they were 
somehow persuaded by the administration to go along with them. Not 
every telephone company, not every communications company did go along. 
At least one said: Look, we think this is not legal; show us the 
legality. And they stood, I think, in firm support of their consumers.
  Here is the problem with granting immunity. Congress has not been 
given complete information on this program. We do not know the level of 
involvement by the telephone companies and the telecom companies. We 
need complete information; we have incomplete information. How can I be 
a good Senator, how can I do a good job if I don't have the facts 
surrounding this whole matter of the warrantless surveillance program? 
When you put out that immunity, you basically stop the court cases, and 
if you stop the court cases, we will never get to the bottom of this 
issue and our citizens will never know who was spied on, why were they 
spied on, what happened, what went wrong, what went right, and how much 
power this Government tried to exercise over its people illegally.
  Granting immunity without fully understanding whether our people were 
illegally spied upon and to what extent, I find that irresponsible. 
Where is our pride? We wrote a law that said phone companies cannot do 
this, and they went ahead and did it. Not all of them. Now we are 
saying: Never mind, President Bush and Vice President Cheney write the 
law, they make the decision. It is not right. It is not American. It is 
anti-American. It is not what we do in this great country.
  President Bush says we are sending our troops overseas to fight for 
freedom, fight for democracy, and at home they ask the telecom 
companies to break the law. They spied on Americans, and we cannot find 
out what they did, how they did it, the details of the program, and now 
we are going to now grant immunity. I cannot believe that we didn't do 
better on that particular amendment. That amendment failed. Again, I 
was proud to stand with Senator Dodd and Senator Feingold on the 
amendment.
  In closing, I don't believe this bill strikes the kind of balance we 
need between broadening the Government's authority to conduct 
surveillance and protecting the rights of our citizens. We did have 
many chances today to increase the oversight of FISA surveillance 
programs. We had many opportunities to hold this administration 
accountable and future administrations accountable while giving them 
what they need to go after the bad actors, those who would harm us. I 
voted to get bin Laden. I voted to go to war against al-Qaida. I voted 
no on the Iraq war because that was a diversion. I want to get the 
terrorists who perpetrated 9/11. I want to give any administration the 
tools they need, but I do not want to expose my constituents and the 
people of America who are law-

[[Page 1909]]

abiding and caring and all they live for is for their families--I don't 
want to subject them to being spied upon.
  Unfortunately, those amendments all went down. It is sad for me to 
say that we have a bill that steps on the rights of the freedoms of our 
people, of the law-abiding Americans in our country and, therefore, I 
cannot support it.
  Mr. President, I yield the floor. I suggest the absence of a quorum, 
and I ask that the time be taken equally off both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. DODD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Mr. President, it is clear now that this body is going to 
approve retroactive immunity for the telecom industry, which may have 
helped the President to illegally spy on millions of Americans.
  I have spoken on this issue now for I think in excess of 20 hours, 
going back 2\1/2\ months ago when this issue first came to the floor in 
December. Just to recall the history of the last couple of months 
briefly, if I may: Two committees of the Senate, appropriately, had 
jurisdiction over this matter--the Intelligence Committee and the 
Judiciary Committee. In fact, the House of Representatives similarly 
had two committees with jurisdiction over this matter, the matter being 
the amendments to the Foreign Intelligence Surveillance Act.
  I have talked at length about the history of that act and commended 
our previous colleagues who served in this body for having crafted a 
rather ingenious piece of legislation that architecturally created the 
balance between security and liberty in the wake of the Watergate 
scandal in the mid-1970s. Democrats and Republicans came together and 
said: How can we guarantee that we can gather information to keep our 
Nation safe and secure from those who would do us harm and 
simultaneously protect the more than two centuries of liberties and 
rights that Americans have come to associate with our Constitution--the 
rule of law?
  This was not an easy matter, striking that balance, that tension 
which has existed for more than 220 years in our country, and I would 
be the first to admit that. So I have great admiration for those who 
struggled with it.
  In 1978, the FISA--the Foreign Intelligence Surveillance Act--Court 
was established, a secret court, the members of which are appointed by 
the Chief Justice of the U.S. Supreme Court. The members of that court 
are sitting Federal judges across the land. No one can ever know who 
these judges are. They are anonymous in that sense, and they are called 
upon at a moment's notice to determine whether probable cause exists 
for a warrant to be issued to allow our Government to require 
institutions, public or private, to provide information that could 
affect the safety and security of our country. That has been the 
history.
  Since 1978, time and again the Congress of the United States has 
amended the Foreign Intelligence Surveillance Act. Usually, it was 
amended in order to keep pace with the ability of those who would do us 
harm to utilize new technologies, new sources of information that could 
prove to be dangerous for our country; but simultaneously, legislation 
was upgraded so that the new means of gathering information, of 
determining who would do us harm, were also improving. In almost every 
instance, the amendments and the changes to the Foreign Intelligence 
Surveillance Act were adopted unanimously by members of both political 
parties.
  That brings us, of course, to this year, with the amendments being 
offered to this Foreign Intelligence Surveillance Act.
  Events occurred either prior to 9/11 or shortly thereafter which have 
caused the most significant debate yet on FISA. There are those who 
have argued that, in fact, the surveillance activity that is the 
subject of the retroactive immunity actually began prior to the attacks 
of 9/11. The bulk of the evidence seems to point to the fact that this 
surveillance began shortly thereafter.
  I would not be standing here, as I have said before, had this been a 
momentary lapse of judgment, considering the emotions of the attacks 
here on our country. I could understand why a President, why a telecom 
industry, in the wake of 9/11, would have responded to a request to 
gather information quickly to determine not only who did us harm but 
what additional dangers they posed to us. I would not be standing here 
if this had been an administration that had not engaged in a pattern of 
behavior over the years that suggested they had less than a high regard 
for the rule of law. But as we have now learned, this was not a matter 
of a week or a month or a year. This warrantless invasion of our 
privacy went on for 5 long years, without any rule of law behind it 
except the word of an American President and apparently the sanction of 
the Attorney General of the United States.
  FISA specifically said in 1978 that you must have a warrant to do 
this. We even changed the law, as you know, Mr. President, to say that 
you could even get the warrant after the fact if the emergency was such 
that you didn't have the opportunity to get the warrant but went after 
the fact, immediately thereafter.
  I would point out, Mr. President, as I did in some detail last 
evening for almost 3 hours on this floor, that the President's 
warrantless wiretapping program was not a selective or focused 
surveillance merely on those who were outside the country or those who 
were suspected or might be involved in threatening activities. This 
decision to gather information included literally every phone call, 
every fax, every e-mail, every image that went through 16 phone 
companies of our country, using what they call splitters to literally 
vacuum up everything that came in. If the allegations are true, it was 
one of the single largest invasions of privacy in the history of our 
country, all done without a warrant and without a court order.
  We discovered this because of a whistleblower and a report in the 
media that revealed the program. Otherwise, I suspect it would be going 
on as I speak, without any interruption whatsoever. In fact, the only 
interruption that occurred, I might point out--because the argument has 
been made that these companies were acting out of patriotism--came, 
according to some reports when the Federal Government stopped paying 
the phone companies for collecting it.
  I would also point out that not every phone company complied. I know 
the argument has been made: Look, everyone did it. It is a common 
argument, one we made to our parents, usually: Everyone was doing it. 
We all remember the answer we received from our parents. Well, the 
argument here is: Almost everyone was doing it. Quest decided not to. 
When the request was made of them to gather information without a 
warrant, they said: Give us a court order, and we will comply. A court 
order was never forthcoming, of course, and they never participated.
  So this December, we arrived at this debate about whether to grant 
the telecoms retroactive immunity. Three other committees had examined 
this issue, and all three of the committees, in the House and in this 
body, had determined that retroactive immunity was not warranted. Only 
one committee decided it was, but that committee has prevailed in the 
last several days, weeks, and months in this debate, and as such we are 
now confronted with cloture being invoked, cutting off debate here 
about the subject matter. And given the votes today, in all likelihood 
this body is not going to change its mind on this issue. Our only hope, 
those of us who feel strongly about this, is that the other body, the 
House of Representatives, which has taken a very different point of 
view, will be able to prevail in the conference between these two 
bills, and deny retroactive immunity.
  Let me point out quickly that denying retroactive immunity does not

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mean the phone companies will necessarily be found guilty of doing 
something wrong. All it means is that the coequal branch of Government, 
the judicial branch, will get a chance to look at whether what they did 
was legal. I have my own opinions about this, but my opinions should 
not prevail, nor should the opinions of 51 Members of this body. We are 
not the judicial branch, we are the legislative branch.
  The Founders of this great Republic of ours created three coequal 
branches of Government, and the judicial branch was designed and 
created to check the actions of the executive and legislative branches 
and determine whether things we did were constitutional--legal--or not. 
That is why they exist. So the debate about whether what the companies 
did or did not do is legal is not a matter for this body to determine, 
any more than it is for the executive branch. It is the judicial branch 
that should make that determination. Yet, by the action we took earlier 
today, we are now going to close the door on determining whether the 
action taken by the phone companies was legal.
  Sweep it under the carpet, close the door, and we will set the 
precedent for some future Congress, which will point to this debate and 
its conclusion and decide that the Congress of the United States found 
that the FISA Court was not needed or, that in fact the President could 
collect whatever data and information he wanted--maybe medical records, 
maybe financial records, maybe personal histories of families.
  I feel passionately about this issue. This is the first time in my 
quarter of a century service here that I have engaged in what might be 
called some ``extended debate''--that is how deeply I care about this 
issue.
  Nothing is more important, in my view, than the rule of law and the 
Constitution. No threat is so urgent that we should be willing to 
abandon the rule of law. But that is exactly what we have done. And it 
is a false and phony argument to claim that failing to do so would 
jeopardize our security. There is a long history of the judicial branch 
of Government in this country dealing with sensitive national security 
matters in camera, without revealing state secrets. The suggestion that 
we cannot possibly let the courts look at the use of warrantless 
wiretapping is so false on its face it is hardly worthy of an argument 
to the contrary.
  In fact, Judge Walker, a Republican appointee to the Federal bench, I 
might point out, has ridiculed the argument that these matters could 
not go before the judicial branch for review. There is no longer a 
debate about whether the wiretapping program is in the public--it is. 
And the means and technology used to do it have publicly been discussed 
and debated.
  This decision deprives us of the opportunity to determine exactly 
what happened. I would further point out that but for the insistence of 
the chairman of this committee and the ranking member, and I suspect 
others, the administration would have succeeded in immunizing everyone 
involved with this, everyone within the executive branch, the White 
House, the Justice Department.
  The chairman and the ranking member said that was going too far. But 
that request is instructive. What do we learn from it? Why did the 
administration demand of the Intelligence Committee that everyone 
associated with this matter be immunized against any further legal 
action? What was the motive behind it? Doesn't that suggest that 
something else must be going on?
  That is where we are in all of this. Again, I apologize to my 
colleagues and others for taking so much time to talk about this. But 
as I mentioned last evening, I grew up in a family with a father who 
was deeply involved in the rule of law. He was a prosecutor at the 
Nuremberg trials in 1945 and 1946, a rather unique moment in American 
history, where because of an American President, because of a Secretary 
of War, because of a Supreme Court Justice and a handful of others, 
America did not yield to the vengeance, even for those enemies we hated 
the most: Nazis who had incinerated 6 million Jews and 5 million others 
targeted for their politics, religion, and otherwise. Why would you 
possibly give that crowd a trial? A handful of Americans, Republicans 
and Democrats, got together and said: America is different. We believe 
in the rule of law in the United States. And we believe the rule of law 
is something that does not necessarily belong to one Nation or 
sovereignty; it belongs to all people, reaching back to our own 
founding documents that tell us that the rule of law, not the rule of 
man, ought to prevail.
  So the United States, along with our very reluctant allies, created 
the Nuremberg trials, which established the moral high ground for the 
United States in so many ways. As a result, 21 defendants in the first 
trial got a lawyer and got to present evidence and defend themselves--
because we followed the rule of law.
  It was the moral high ground and the basis for so much else that was 
created in the post World War II period: The international courts, the 
U.N. system, the NATO system, the Marshall Plan. All these institutions 
sprang from that what we helped create in the wake of World War II and 
the Nuremberg trials.
  So I grew up around a dining room table where the rule of law was 
talked about all the time. I was taught that our Constitution did not 
belong to a political party, it did not belong to politicians or 
candidates.
  And I remember that great scene in the movie ``A Man For All 
Seasons,'' where Thomas More is asked if he would not be willing to cut 
down all the laws in England to get his hands on the devil.
  And More responds, and I am paraphrasing his quote: When I have cut 
down every law in England to get to the devil and the devil comes after 
me, what laws will stand there to protect me?
  So while some may feel comfort that they are being protected by this 
decision we have made, they should remind themselves the worm does 
turn, and someday they may find themselves on the opposite side of this 
question.
  So this debate should not be framed as the issue of the hour; rather, 
it is about the principle behind it, and that is the rule of law. The 
power of courts to decide the legality and illegality of actions is so 
deeply imbedded in our Constitution, so deeply imbedded in the fabric 
of how we conduct ourselves, that it ought not to be the subject of a 
partisan discussion and debate.
  That is why I have fought to keep this day from coming with 
everything I had in me. I have not fought alone. Many average Americans 
have given me strength for this fight, strength that comes from the 
passion and eloquence of citizens who do not have to be involved, but 
choose to be involved. I thank them for it.
  But today when I speak in this body against this immunity and for the 
rule of law, I am speaking for a minority. And respecting the rule of 
law anywhere means respecting it everywhere, even when it means we do 
not win. The rule of law says we, the minority, cannot stand forever; 
and having made our case with all the fire in us, we stand down and 
wait for a different day and a different set of circumstances.
  I will say this, though. I have seen some dark days in this Chamber; 
in my mind, one of the worst was September 28, 2007. That was the day 
the Senate voted to strip habeas corpus and tolerate torture.
  Today, February 12, 2008, is nearly as dark: the day the Senate voted 
to ensure secrecy and to exempt corporations from the rule of law. 
Frankly, I have seen a lot of darkness in recent years, as one by one 
our dearest traditions of constitutional governance have been attacked.
  At each new attack, millions of Americans have stood up in outrage; 
but millions more have answered with patience. One might fault them for 
that, but I do not. More than two centuries of democratic tradition 
have nurtured that patience; it speaks well of our Democratic faith 
that so many take the rule of law in America as a given.
  If millions have not yet noticed the rule of law falling, that is 
because it has so far to fall. But fall it will, if we remove our 
support for it. The law in America is not a gift or an inheritance; it 
is the active work of every generation to preserve and protect it.

[[Page 1911]]

  As America's patience wears thinner and thinner, and as more and more 
citizens take up that active work, our minority will--I have faith that 
it will--make itself a majority.
  But today was not that day. And so the Senate has signed its name to 
this immunity, this silencing of our courts, this officially sanctioned 
secrecy, without a majority of us evening laying eyes on the secret 
papers that are supposed to prove the President's case.
  Retroactive immunity is a disgrace in itself. And in the last months 
I believe we have proved that beyond a reasonable doubt. But it is even 
more disgraceful in all it represents. It is the mindset that the 
Church Committee summed up so eloquently three decades ago.

       The view that the traditional American principles of 
     justice and fair play have no place in our struggle against 
     the enemies of freedom.

  That view created the Nixonian secrecy of the 1970s, and the Church 
Committee wrote those words, in part, as a rebuke to our predecessors 
in this Chamber who for years let secrecy and executive abuses slide. 
But today those words take on a new meaning. Today they rebuke us. They 
shame us for our lack of faith that we can, at the same time, keep our 
country safe and our Constitution whole.
  When the 21st century version of the Church Committee convenes to 
investigate the abuse of the past years, how will it judge us? What 
will it say about us when they look back on our actions? When it reads 
through the records of our debate--not if, but when--what will it find?
  When the President asked us to repudiate the Geneva Conventions and 
strip away the right of habeas corpus, how did we respond?
  When images of American troops tormenting detainees were broadcasted 
around the world, how did we protest?
  When stories of secret prisons and outsourced torture became 
impossible to deny, how did we resist?
  And on February 12, 2008, when we were asked to put corporations 
explicitly outside the law and accept at face value the argument that 
some are literally too rich to be sued, how did we vote?
  All of those questions are coming for us. All of them and more. And 
in the quiet of his or her own conscience, each Senator knows what the 
answers are.
  I fought so long against retroactive immunity because, in this huge 
fabric of lawlessness, it was the closest thread to grab. I believed if 
we grabbed hold and pulled, it would begin to unravel. That has not 
happened.
  But if we believe that each assault against the rule of law was an 
accident, that each was isolated, we are deluding ourselves. If the 
past is any guide, there will be another one. And hope, as they say, 
springs eternal. I hope we will stand up then.
  And perhaps we will have the chance to do so very soon. As I 
mentioned a few minutes ago, the House of Representatives has passed a 
version of this bill without retroactive immunity. It will be the job 
of the conference between the House of Representatives and the Senate 
to reconcile the two versions of this bill.
  And before I stand down, I wish to implore the members of that 
committee, in the strongest terms I can find, to strip retroactive 
immunity from this bill once and for all. Remember, this is about more 
than a few telephone calls, a few companies, a few lawsuits. If the 
supporters of retroactive immunity keep this small, they win. In truth, 
the issue we have debated for the last few months, the issue that will 
finally come to a head in this conference committee, is so much more. 
At stake is our latest answer to the defining question: The rule of law 
or the rule of men?
  That question never goes away. As long as there are free societies, 
generations of leaders will struggle mightily to answer it. Each 
generation must answer for itself; and just because our Founders 
answered it correctly does not mean they are bound by their choice. In 
that, as in all decisions, we are entirely free; the whole burden falls 
on us.
  But we can take counsel. We can listen to those who came before us, 
who made the right choice, even when our Nation's very survival was at 
risk. They knew that the rule of law was far more rooted in our 
character than any one man's lawlessness.
  I do not think that has changed at all. Secure in that faith, I will 
sit down now and end my part in this conversation. But when the 
question of the rule of law or the rule of men comes again, which it 
surely will, I will be proud to stand up once more. And if this bill 
comes back with retroactive immunity, I will speak against that 
travesty--the denial of the rule of law in favor of the rule of men.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Salazar). The Senator from Washington is 
recognized.
  Ms. CANTWELL. I rise today to express concerns about the FISA 
Amendments Act S. 2248 before us. This morning, the Senate lost an 
opportunity to strengthen this bill. And, unfortunately, without those 
critical provisions, I will have to oppose the bill before us. I thank 
the Senator from Connecticut for his leadership in fighting against 
this bill. I know he will be back on this issue at every opportunity.
  Mr. President, I rise to join this debate. I have been, over many 
years, interested and involved in privacy rights issues in a variety of 
capacities. Certainly, the residents of my state care passionately 
about their rights to privacy.
  This administration has done a lot to blur the line between foreign 
intelligence gathering and spying on U.S. citizens. Now, the 
legislation before us today could have been improved to better protect 
the rights of U.S. citizens by passing amendments proposed by my 
colleague Senator Feingold, but we turned those down.
  Instead what has been a delicate balance in the United States to 
protect the rights of privacy of U.S. citizens and national security is 
going to be further eroded.
  Congress has limited powers and so does the President. The President 
does not and should not have unchecked power in this or any other area. 
It would be contrary to our American values and our system of 
government, which has endured for more than 231 years.
  When strengthening national security, we must also safeguard civil 
liberties and the privacy rights of American citizens. I cannot support 
a bill that fails to strike this critical balance, as the original 
Foreign Intelligence Surveillance Act (FISA) did. We didn't allow the 
government to have unchecked unlimited authority then, and we shouldn't 
allow it now. There have been times in the past when both Democratic 
and Republican administrations lost sight of the need to protect U.S. 
citizens' privacy rights.
  We all want to protect the United States, but how good is this 
approach if the end result is that everyone thinks that there is a back 
door to our computer operating systems, a back door to our 
telecommunication systems? Who will want to do business in the United 
States if they think there are no secure systems, only systems to which 
the U.S. government will have access? Communications over the Internet, 
regardless of country of origin or country of destination, know no 
national boundaries, and travel by the most efficient route. If the Act 
as currently drafted goes forward, it may lead to an international 
reexamination of how the Internet should operate. FISA has been a very 
important part of our checks and balances.
  In our country, a Senator cannot pick or choose what laws they follow 
and neither should the President nor telecommunication companies. 
Congress should not be providing blanket immunity for 
telecommunications companies that cooperated with the Administration's 
warrantless wiretapping programs. We don't know precisely what those 
companies did or the full extent of what they did.
  I believe the Federal courts should be allowed to rule on the 
legality of the companies' conduct. Congress should not move to preempt 
judicial decisions. Special procedures can be put in place that could 
allow such cases to move ahead without revealing classified information 
or damaging U.S. national

[[Page 1912]]

security. Specifically, I want to touch on the lawsuit the Electronic 
Frontier Foundation (EFF) filed against a large telecom company, 
accusing it of violating FISA, on behalf of a class of its customers. 
If retroactive immunity is granted to telecom providers, the lawsuit 
will be dismissed, and the public will never get an opportunity of 
getting even a glimpse of what happened.
  The issue of the Federal Government and telecoms possibly violating 
FISA came to light in part as a result of the actions of a brave 
whistleblower. According to media reports and internal AT&T documents 
provided by this whistleblower, Mark Klein, the telecom company 
allegedly splits off a copy of all of the Internet traffic transported 
over fiber-optic cables running though its San Francisco office and 
diverts it all--e-mails, IMs, web browsing, everything--to a secure 
room under the control of the National Security Agency that contains 
sophisticated data-mining equipment capable of monitoring all the 
communications' content in real-time. What appears to have happened is 
a major change in how electronic surveillance is conducted in this 
country. Surveillance used to be particularized--investigators would 
pick a target and then intercept the communications of that target. But 
now, it appears the Administration is using advances in technology to 
move to a wholesale surveillance regime, where everything is 
intercepted and then investigators sift through the hay to pick their 
targets. In other words, the Administration is seizing millions of 
Americans' communications--billions of phone calls and e-mails and 
more--in a 21st century high-tech equivalent of the King's general 
warrants that our Founders fought a revolution to avoid.
  The Electronic Frontier Foundation wants a court to be able to decide 
whether this new mode of surveillance is or can ever be legal, under 
FISA or the fourth amendment. Letting the courts decide that question 
is critical to checks and balances, critical to ensuring that Congress' 
privacy laws are followed and the fourth amendment respected, and 
critical to preventing abuses of power. Therefore, I urge my colleagues 
to allow this case to move forward. I urge them to allow the Federal 
courts to rule on the legality of the companies' conduct. These are the 
issues, I believe, that must be reviewed by the courts. I think passing 
this legislation really preempts what is critical judicial review and 
undermines the fundamental principle of checks and balances in our 
system.
  I know these are challenging times. But we have to remember our 
Constitution and to remember what is effective policy. Everybody in 
America wants to be safer and we want to use technology to protect our 
national security. But, technology can be used in a way that protects 
privacy rights. This all goes back to checks and balances. Instead of 
rushing to dismantle them, Congress needs to maintain and strengthen 
these checks and balances in order to prevent abuses of power. This 
model has worked for our country.
  I encourage my colleagues to make sure we remember the fourth 
amendment and we remember our citizens' rights to privacy as well in 
considering this legislation, which I hope the Senate will turn down 
this afternoon.
  Mr. ROCKEFELLER. Mr. President, under a unanimous Consent agreement, 
the Senate has accepted three amendments to the FISA Amendments Act of 
2008. I would like to say a word about each.
  The senior Senator from Massachusetts has authored a helpful 
amendment to ensure that the Government will not intentionally acquire 
communications where the sender and all intended recipients are known 
at the time of the acquisition to be located in the United States.
  Our bill, S. 2248, is not intended to authorize the intelligence 
community to acquire purely domestic communications.
  Electronic surveillance of purely domestic communications requires a 
court order under title I of FISA. In addition, S. 2248 explicitly 
prohibits the targeting of persons known at the time of acquisition to 
be located inside the United States.
  The importance of the Kennedy amendment is that it reinforces our 
intent. It should put to rest any doubts about what the Senate intends 
with respect to protecting the communications of persons within the 
United States. I am grateful for the willingness of the Senator Kennedy 
to work with the committee on this amendment.
  I would also like to acknowledge his leading role in the history of 
FISA as the sponsor of the original FISA legislation, first in 1976, 
and then when FISA was enacted in 1978. Senator Kennedy helped the 
Congress then to enact legislation that protects both our national 
security and the rights of Americans. We are grateful that he has 
stepped forward again to help us achieve those goals.
  Under the unanimous consent agreement, the Senate has accepted an 
amendment by Senator Whitehouse that resolves an important question 
about the status, pending appeal, of an order by the Foreign 
Intelligence Surveillance Court requiring correction of deficiencies in 
intelligence collection procedures under the new title VII of FISA.
  The amendment requires the FISA Court of Review to determine, within 
60 days of the Government's appeal, whether all or part of a FISA Court 
order requiring correction will be implemented during the appeal. The 
Government may continue collection until the appellate court makes that 
determination, and longer if the Court so determines. The 60-day 
requirement ensures that the matter will receive appellate attention 
without undue delay.
  We appreciate Senator Whitehouse's successful effort to resolve this 
matter.
  Finally, under the unanimous consent agreement, the Senate has 
accepted an amendment by Vice Chairman Bond to delete a statutory 
requirement that appeals in cases either challenging or seeking to 
enforce directives to companies be filed within 7 days. The amendment 
leaves it to the FISA Court or the Court of Review to establish that 
deadline as they do for all other appeals under FISA.
  The amendment recognizes the responsibility of those courts to 
establish rules. And it recognizes that both the Government and 
carriers may require additional time to evaluate whether an appeal 
should be filed.
  I appreciate the vice chairman's effort to resolve this matter.
  Mr. OBAMA. Mr. President, I am disappointed that the Senate has 
rejected several commonsense improvements to the Intelligence 
Committee's FISA proposal. I commend my colleagues, Senators Dodd, 
Feingold, Tester, Webb, Whitehouse, Leahy, Specter and others, for 
proposing these solutions, and I welcome the outpouring of interest on 
this issue from informed and concerned citizens around the country.
  News last week from the Intelligence Committee hearing underscored 
the importance of ensuring that our surveillance laws protect our 
security, just as we must vigilantly safeguard our civil liberties. 
Director of National Intelligence McConnell warned that al-Qaida 
continues to train and recruit new adherents to attack within the 
United States, and such reports should serve to unite us in common 
purpose against the terrorists that threaten our homeland. Instead, 
President Bush is using this debate once again to divide us through a 
politics of fear.
  I was disappointed to learn of the President's threat to veto any 
FISA bill that does not include an unprecedented grant of immunity for 
telephone companies that cooperated with the President's warrantless 
wiretapping program. Why the President continues to try to hold this 
important legislation captive to that special interest provision defies 
explanation.
  I was proud to cosponsor the Dodd-Feingold amendment to strike the 
immunity provision from the bill. However, with the defeat of this 
amendment, telephone companies will not be held accountable even if it 
could be proven that they clearly and knowingly broke the law and 
nullified the privacy rights of Americans. This is a matter for the 
courts to decide, not for preemptive action by the Senate.

[[Page 1913]]

  We can give our intelligence and law enforcement community the powers 
they need to track down and take out terrorists without undermining our 
commitment to the rule of law or our basic rights and liberties. That 
is why I cosponsored the Feingold amendment, which would have prevented 
the Government from using these extraordinary warrantless powers to 
conduct ``bulk collection'' of American information. I also supported 
the Feingold-Webb-Tester amendment to protect the privacy of Americans' 
communications by requiring court orders to monitor American 
communications on American soil, unless there is reason to believe that 
the communications involve terrorist activities directed at the United 
States or the monitoring is necessary to prevent death or serious 
bodily harm. Unfortunately, these amendments were defeated as well. 
These are the types of narrowly tailored, commonsense fixes that would 
have allowed the Government to conduct surveillance without sacrificing 
our precious civil liberties.
  For over 6 years since the attacks of 9/11, this administration has 
approached issues related to terrorism as opportunities to use fear to 
advance ideological policies and political agendas. It is time for this 
politics of fear to end.
  We need durable tools in this fight against terrorism--tools that 
protect the liberties we cherish and the security we demand. We are 
trying to protect the American people, not special interests like the 
telecommunications industry. We are trying to ensure that we don't 
sacrifice our liberty in pursuit of security, and it is past time for 
the administration to join us in that effort.
  There is no need for the goals of security and liberty to be 
contradictory.
  Mr. LEVIN. Mr. President, last year Congress passed a temporary bill 
with a 6-month time limit that would give us the opportunity to carry 
out a thorough, thoughtful examination of how to utilize complicated 
new technologies in the surveillance of suspected terrorists without 
invading the privacy of innocent Americans. In the months since we 
passed that temporary act, we have worked in a bipartisan manner to 
consider the best course forward for permanent changes to the Foreign 
Intelligence Surveillance Act. Despite the enormous complexity of these 
issues, we reached a bipartisan consensus on the key provisions 
contained in title I of the bill we are considering today.
  I believe that title I of the bill before us appropriately provides 
the intelligence community the authority it needs to collect 
intelligence information on suspected terrorists. The collection of 
that intelligence is important to our national security and merits 
congressional support. That is why I helped write the Rockefeller-Levin 
substitute amendment that we voted on last summer, why I voted in favor 
of the Leahy substitute amendment that we considered in January, and 
why I support title I of the bill before us today. In my view, the 
Rockefeller-Levin substitute, the Leahy substitute, and title I of this 
bill all provide for the appropriate collection of intelligence 
information on suspected terrorists.
  Title I of this bill would provide the needed authority for 
collection of that information in a responsible manner.
  Title I of this bill, unlike the temporary act which we passed last 
summer, would not authorize the targeting of U.S. persons for 
electronic surveillance without probable cause.
  Title I of this bill, unlike the temporary act, would not authorize 
the administration to collect communications--including communications 
to and from U.S. persons--for months without even submitting the 
collection program for court approval.
  Title I of this bill, unlike the temporary act, would not authorize 
the administration to continue to collect such communications for an 
extended period even after the FISA Court has specifically rejected an 
application for approval.
  Title I of this bill, unlike the temporary act, would expressly 
authorize judicial review of the targeting and so-called minimization 
procedures in order to protect the privacy rights of U.S. persons.
  Title I of this bill, unlike the temporary act, would require regular 
inspector general reviews and regular reports to Congress on any 
authorized collection program.
  I congratulate Senator Rockefeller and other colleagues on their 
success in achieving the administration's support for these well-
crafted title I provisions, which are significant improvements over the 
temporary bill hastily adopted last year.
  Title II of the bill is a different story. Title II would eliminate 
accountability by granting retroactive immunity for telecommunications 
providers that disclosed communications and other confidential 
information of their customers at the behest of Government officials. 
They did this despite a law specifically making it illegal to do so. 
Unlike title I, there is no bipartisan agreement on title II.
  Title II would require dismissal of lawsuits brought by persons 
claiming injury from interception and disclosure of their 
communications, even if the activity resulting in the injury was 
illegal. It would require dismissal of lawsuits, even if the disclosure 
violated the constitutional rights of individuals whose personal 
information was illegally disclosed. It would require dismissal of 
lawsuits, even if innocent U.S. citizens were damaged by the disclosure 
or compromise of confidential personal information.
  Retroactive immunity is not fair. It is not wise. And it is not 
necessary.
  Retroactive immunity is not fair because it leaves American citizens 
who may have been harmed by the alleged unlawful conduct of these 
providers without any legal remedy.
  Retroactive immunity is not wise because it precludes any judicial 
review of that conduct. I am deeply concerned that if we act here to 
immunize private parties who participated in a program that appears to 
have been clearly illegal, we may encourage others to engage in such 
illegal activities in the future. In a free society, illegal activity 
cannot be excused on the grounds that Government officials asked you to 
carry it out. There must be accountability for illegal acts. As 
written, title II eliminates some critically required accountability.
  Nor is retroactive immunity necessary. Congress has already ensured 
the future cooperation of the telecommunications providers with the 
intelligence community in the Protect America Act adopted last August. 
That act authorizes the Attorney General or the Director of National 
Intelligence to direct telecommunications providers to disclose certain 
information and provides prospective immunity to telecommunications 
providers that cooperate with such directives.
  Title I of the bill before us appropriately continues to provide 
prospective immunity to telecommunications providers. Title I states:

       Notwithstanding any other law, no cause of action shall lie 
     in any court against any electronic communication service 
     provider for providing any information, facilities, or 
     assistance in accordance with a directive issued by the 
     Attorney General or the Director of National Intelligence 
     pursuant to the act.

  In light of the prospective immunity in title I, which is 
appropriately in this bill, the retroactive immunity of title II is not 
necessary to ensure the future cooperation of telecommunications 
providers that receive legitimate requests for information from the 
intelligence community.
  The argument has been made that we must provide retroactive immunity 
to the telecommunications providers to ensure the cases against them 
are immediately dismissed because if the cases are permitted to 
proceed, vital national security information will be disclosed. But the 
courts have numerous tools at their disposal to protect such 
information and have successfully used these tools throughout our 
history. They can review evidence in a classified setting; they can 
redact documents; they can even dismiss a case for national security 
reasons if they deem it necessary to do so.
  Some have even taken the position that the mere existence of this 
litigation, even without the disclosure of any information, will 
somehow help the terrorists. But the President has

[[Page 1914]]

already disclosed the existence of the collection program at issue. It 
has been discussed in Congress and in the press. The Director of 
National Intelligence has publicly discussed the program.
  There is a way to properly immunize from legal liability 
telecommunications providers that acted in good faith based on the 
assurances of appropriate administration officials. The way to do that 
is by substituting the United States for the telecommunications 
providers as the defendant in lawsuits based on the actions of those 
providers. That substitution would safeguard telecommunications 
providers from liability just as effectively as the retroactive 
immunity language in title II of the bill. But unlike the retroactive 
immunity language of title II, it would not leave persons who can prove 
they were victims of unlawful actions without a remedy.
  We can ensure that any such innocent victims retain whatever legal 
rights they have under applicable law, except that the U.S. Government 
would be substituted for the telecommunications providers as the 
defendant in such lawsuits. And it is appropriate that the Government 
be liable rather than the telecommunications providers, since the 
disclosures were allegedly made by the providers in these cases at the 
request of senior executive branch officials based on appeals to help 
safeguard U.S. security and assurances that the providers would be 
protected from liability regardless of the requirements of law.
  We had a number of opportunities to provide equity both to the 
telecommunications providers and to any injured citizens.
  We had the opportunity to adopt the Dodd-Feingold amendment, which 
would have struck title II from the bill, allowing us to adopt a new 
approach that protects both the equities of telecommunications 
providers that acted in good faith and those of people who were 
allegedly injured by their illegal actions.
  We had the opportunity to adopt the Specter-Whitehouse substitution 
amendment, which would have fully protected telecommunications 
providers, without depriving American citizens who were harmed by 
unlawful collection of their personal information of a legal remedy. It 
did so by substituting the United States for the telecommunications 
providers as the defendant in lawsuits based on the actions of those 
providers. That substitution would safeguard telecommunications 
providers from liability just as effectively as the retroactive 
immunity language in title II of the bill.

       And we had the opportunity to adopt the Feinstein 
     amendment, which would have limited immunity to those 
     telecommunications providers that are found by a court to 
     have acted in reasonable, good-faith reliance on assurances 
     from executive branch officials.

  The adoption of these amendments would have made a significant 
improvement to the bill. With their rejection, I cannot support this 
bill despite my support for title I, which again, appropriately, 
authorizes the collection of intelligence. But it is my hope that a 
bill comes from conference with the House of Representatives that 
includes appropriate changes to eliminate unfair, unwise, and 
unnecessary retroactive immunity provisions.
  I yield the floor and suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so 
ordered.
  Mr. LEAHY. Madam President, what is the parliamentary situation?
  The PRESIDING OFFICER. The Senator from Vermont has 20 minutes.
  Mr. LEAHY. Madam President, the Foreign Intelligence Surveillance Act 
FISA is intended to protect our national security. It is also intended 
to protect the privacy and civil liberties of Americans. The law was 
passed to protect the rights of Americans after the excesses of an 
earlier time.
  We are debating amendments to this important law. I had hoped the 
Senate would act to improve the bill reported by the Select Committee 
on Intelligence. It has not. I had hoped the Senate would incorporate 
improvements included in the House-passed RESTORE Act and the bill 
reported by the Senate Judiciary Committee. It has not.
  I had hoped the administration would work with us. It has not. 
Instead, having gotten exactly the bill they want, in the way they 
want, from the Intelligence Committee, they have threatened a 
Presidential veto if we improve this bill in any way or fix its flaws.
  I had hoped that Republican Senators would work with us as we have 
worked together to amend FISA dozens of times over the last 30 years 
and to update it in more than a dozen ways even since September 11, 
2001. But instead of working in a bipartisan fashion, as I have seen 
before in my 34 years in the Senate, in an unprecedented way, 
Republicans voted lockstep to table the Judiciary Committee 
improvements and virtually lockstep against every individual amendment 
and improvement.
  Worse, the Republican leadership has stalled action on the measure 
for weeks. They continue to insist it is their way or no way. Sadly, 
with the acquiescence of even some on this side of the aisle, they have 
controlled the debate, the bill, and the final result in the Senate.
  Working together we could have done so much better. I look forward to 
working with the House to make improvements that are needed to this 
measure before I can support it.
  The process has been, in large part, a repeat of that which led to 
the so-called Protect America Act last summer. That ill-conceived 
measure was rushed through the Senate in an atmosphere of fear and 
intimidation just before the August recess, and after the 
administration had broken their word and reneged on agreements reached 
with congressional leaders. The bill was hurriedly passed under intense 
partisan pressure from the administration. It provided sweeping new 
powers to the Government to engage in surveillance, without a warrant, 
of calls to and from the United States involving Americans, and it 
provided no meaningful protection for the privacy and civil liberties 
of Americans who were on those calls.
  I was here when we first passed FISA because we knew what happened 
when we had an out-of-control administration. We saw it during the 
Watergate years. We saw it with J. Edgar Hoover. We saw those who 
wiretapped people because they didn't like what they said, they 
disagreed with the administration; they actually raised questions about 
the Vietnam war. Sometimes it would help if everybody read a history 
book every now and then around here. Some seem too willing to give up 
the liberties for which we fought.
  The Senate should have considered and incorporated more meaningful 
corrections to the so-called Protect America Act. Before that flawed 
bill passed, Senator Rockefeller and I and several others in the House 
and Senate had worked hard and in good faith with the administration to 
craft legislation that solved an identified problem but also protected 
Americans' privacy and liberties.
  We all want to protect our security. We all want the ability to go 
after those who would do this country harm. And we drafted legislation 
that would have taken care of the problem they told us about.
  But just before the August recess, we got a call. Basically, the 
Director of National Intelligence told us they could not keep their 
word, they could not keep the administration's word, and the 
administration decided to ram through its version of the so-called 
Protect America Act, with excessive grants of Government authority and 
without accountability or checks and balances. They refused to consider 
any other way.
  After almost 6 years of breaking the law and violating FISA through 
secret warrantless wiretapping programs, that was wrong. A number of us 
supported a better balanced alternative, and we voted against the 
Protect America Act as drafted by the administration and passed by the 
Senate.

[[Page 1915]]

  Ironically, the reason we were even voting on it is that the press 
found out how the administration was breaking the law. Even though the 
administration was required by statute to tell leaders in Congress what 
they were doing, which was a clear violation of the law, they had 
failed to do that. Fortunately, we still have some remnant of a free 
press in this country and they found it out.
  Because of a sunset provision, we had a chance to revisit that matter 
and correct it. The Judiciary Committees and the Intelligence 
Committees of the Senate and the House spent the past months 
considering changes to FISA. In the Senate Judiciary Committee, we held 
open hearings and countless briefings and meetings to consider new 
surveillance legislation, including classified meetings. We considered 
legislative language in a number of open business meetings of the 
committee, and we reported a good bill to the Senate. This was before 
last Thanksgiving.
  Instead of that bill, a good bill, the Senate is poised to pass a 
bill that will permit the Government to review more Americans' 
communications with little in the way of meaningful court supervision.
  I support surveillance targeting foreign threats, but I wanted to 
make sure we protect those American liberties that, after all, we 
fought a Revolutionary War to protect and a civil war and two World 
Wars and not just give it away because some people around here get cold 
feet when threatened by the administration.
  Attorney General Mukasey said at his nomination hearing that 
``protecting civil liberties, and people's confidence that those 
liberties are protected, is a part of protecting national security.'' I 
agree with him about that. That is what the Senate judiciary bill would 
have done.
  The administration insists on avoiding accountability by including 
blanket retroactive immunity in their bill. It would grant blanket 
retroactive immunity to telecommunications carriers for their 
warrantless surveillance activities from 2001 through earlier this year 
contrary to FISA and in violation of the privacy rights of Americans.
  The administration violated FISA by conducting warrantless 
surveillance for more than 5 years. They got caught. Frankly, if they 
had not gotten caught, they would probably still be doing it. When the 
public found out about the President's illegal surveillance of 
Americans, the administration and telephone companies were sued by 
citizens who believed their privacy and their rights were violated.
  So now the administration is trying to get this Congress to terminate 
those lawsuits. But don't believe the crocodile tears of this 
administration, saying they are doing it to protect these telephone 
companies. This is, after all, the same administration that owed the 
telephone companies millions of dollars in unpaid bills for 
wiretapping. They will not even pay their bills.
  No, the reason they want this provision is to protect those in the 
administration who broke the law. They don't want anybody to find out 
which members of the Department of Justice so thwarted the law in 
writing cockamamie legal opinions that a first-year law student would 
see through. They want to insulate themselves from accountability. I am 
not going to support such an end run around accountability.
  The administration knows these lawsuits may be the only way that it 
is ever going to be called to account for its flagrant disrespect of 
the law. In running its illegal program of warrantless surveillance, 
the administration relied on legal opinions prepared in secret and 
shown to only a tiny cabal of like-minded officials.
  This ensured that the administration received the advice they wanted. 
Don't tell us what the law is; tell us what we want the law to be. I 
used to read my children ``Alice in Wonderland.'' Now I read my 
grandchildren ``Alice in Wonderland.'' This sounds like ``Alice in 
Wonderland.''
  Jack Goldsmith, a conservative Republican who came in briefly to head 
the Justice Department's Office of Legal Counsel, described the program 
as a ``legal mess.'' This administration does not want a court to have 
a chance to look at this legal mess, and retroactive immunity will 
assure not that they are protecting telephone companies, but that they 
will cover their own backsides. They want to protect themselves.
  The rule of law is fundamentally important in our system, and so is 
protecting the rights of Americans from unlawful surveillance. I do not 
believe Congress can or should seek to take those rights and those 
claims from those already harmed. As I said, I worked with Senator 
Specter and both Senators Feinstein and Whitehouse to try to craft more 
effective alternatives to retroactive immunity. We worked with the 
legal concept of substitution, replacing Government in the shoes of 
private defendants that acted at its behest. Let it assume full 
responsibility for the illegal conduct.
  Substitution would have protected the telephone companies. It would 
have placed the administration in their shoes in the lawsuits. But the 
truth is that the administration doesn't really care about the 
telephone companies. They are worried only about the American public 
finding out what they did illegally, how they violated the laws and the 
Constitution of this country.
  I also supported Senator Feinstein's proposal to strengthen the role 
of the FISA Court in this regard. The administration and its allies in 
the Senate defeated both of these viable alternatives to retroactive 
immunity. The administration, by trying to frighten people, warded off 
all efforts of compromise and accommodation. They don't want to be held 
accountable, and they have enough Senators who will protect them so 
they will not be held accountable--not to the Congress or, more 
importantly, to the American people.
  The Senate was forced to vote on retroactive immunity even though not 
all Senators had access to the information they needed to make an 
informed judgment about the Government's and the phone companies' 
conduct. The majority leader wrote to the administration last year 
urging such access, and I supported it. Of course, we got had no 
response. The administration ignored the request. After all, if we knew 
what we were doing around here, we might actually make them stand up 
and be responsible for their actions, which is the last thing in the 
world they want. It is clear they do not want to allow Senators or 
anyone else to evaluate their lawlessness. Their rule is no 
accountability. Whether it is Scooter Libby or anyone else, no 
accountability. We will protect those who break the law on our behalf.
  I have drawn very different conclusions from Senator Rockefeller 
about retroactive immunity. I agree with Senator Specter and many 
others that blanket retroactive immunity, which would end ongoing 
lawsuits by legislative fiat, undermines accountability.
  Senator Specter has been working diligently, first as chairman of the 
Judiciary Committee and now as ranking member, to obtain judicial 
review of the legality of warrantless wiretapping of Americans from 
2001 until last year. The checks and balances the judiciary provides in 
our constitutional democracy has an important role to play. Every one 
of us, if we follow our oath of office, should want to protect that. 
Judicial review can and should provide a measure of accountability.
  I believe protecting the rule of law is important, and I believe in 
protecting the rights of Americans from unlawful surveillance. I do not 
believe the Congress can or should seek to take those rights and those 
claims from those already harmed. Moreover, ending ongoing litigation 
eliminates the only viable avenue of accountability for the 
Government's illegal actions.
  Therefore, I say again, I oppose retroactive immunity. There should 
be a measure of accountability for the administration's actions in the 
years following 9/11. If it is simply a case of protecting the 
telephone companies, then why don't we vote for something that would 
put the Government in their shoes? Why don't we? Because that is the 
last thing in the world this administration wants because then they

[[Page 1916]]

would have to answer to how many different people in the Bush 
administration broke the law.
  I don't believe anybody is above the law. I don't believe the 
President is; I don't believe a Senator is; I don't believe anybody is. 
Keep in mind, as I said earlier, why we have FISA. Congress passed that 
law only after we discovered the shameful abuses of J. Edgar Hoover's 
FBI. Through the COINTEL Program--sometimes called COINTELPRO--Director 
Hoover spied on Americans who objected and spoke out against the war in 
Vietnam. I objected and spoke out against the war in Vietnam. Many 
Vermonters opposed that war. I wonder how many Vermonters were spied on 
for daring to speak out against it.
  Ironically, Madam President, in April of 1975, the United States 
Senate voted by a one-vote margin in the Armed Services Committee to 
stop the war in Vietnam. A year later, it was hard to find anybody in 
this body who had supported it, although obviously an awful lot of 
Senators had.
  Well, I wonder if we are going to look back that same way someday and 
ask: were we so frightened by 9/11 that we were willing to throw away 
everything this country fought for, everything that has made this 
country great through our history?
  We can protect Americans' rights. We can protect those things our 
forefathers fought a revolution to obtain, that we fought a civil war 
to protect, that we fought two world wars to cement. We can protect 
ourselves. But we cannot protect ourselves if we do not protect our 
rights. Are we going to throw our rights away because of a group of 
terrorists? This Senator is not going to.
  Let us show the American people and the world what America stands 
for. We can and will do all we can to secure the future for ourselves, 
our children, and our grandchildren. At the same time, we can protect 
the cherished rights and freedoms that define America and make this 
country different from all others. Those are the rights and freedoms 
that protected past generations and allow us to have an American 
future. If we do not protect them, what will we leave to our children 
and grandchildren?
  Let us stand up for American values. Let us not be afraid to preserve 
our freedom while protecting our national security.
  Madam President, I retain the remainder of my time.
  Mr. REED. Madam President, we have had a lengthy debate, and in the 
end I decided to vote against final passage of S. 2248, the FISA 
Amendments Act of 2007.
  First, I commend Senators Rockefeller and Bond for recognizing 
immediately that the Protect America Act, passed in August, needed 
modifications. S. 2248 does improve FISA procedures. The bill increases 
the role of the FISA Court with respect to targeting. It mandates FISA 
Court review and approval of the minimization procedures governing the 
protection of identities and nonpublic information about U.S. persons. 
This bill also provides statutory rules for the use of information 
acquired under it.
  However, when S. 2248 came before the full Senate for debate, I, and 
many of my colleagues, believed that additional protections and 
clarifications could and should be added. But it soon became clear that 
all such measures would be defeated.
  I was particularly disappointed that Senator Feinstein's amendment on 
exclusivity did not pass. I believe it is very important to reiterate 
that FISA is the exclusive means for conducting surveillance on 
Americans for foreign intelligence purposes. I would have thought that 
every member of the Senate would have been interested in clarifying 
what the administration was authorized to do under the laws that 
Congress passes rather than allowing the administration to boldly and 
erroneously assert authorities from the Authorization for the Use of 
Military Force against al-Qaida and the Taliban. But unfortunately I 
was wrong.
  I also admit that I had serious concerns about granting 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. One of my concerns is regarding the accessibility 
of information. First, my colleagues on the Judiciary Committee and 
Intelligence Committee were allowed to read the necessary documents 
only after extensive negotiations with the administration. 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 Government from providing any information regarding this issue 
to the courts, to the plaintiffs, to Members of Congress, or to the 
public. Yet we were asked to blindly vote for retroactive immunity, 
which is something I simply could not do. Therefore I supported Senator 
Dodd's amendment to strike immunity, but it did not pass.
  I was then willing to consider some compromise approaches, such as 
the Specter and Whitehouse amendment, which would have substituted the 
Government for the telecommunications companies in civil suits, or 
Senator Feinstein's amendment, which would have provided for the FISA 
Court's review of the telecommunications companies to determine if 
immunity should apply. However, neither of these amendments was able to 
secure enough votes to pass. At the end of day, retroactive immunity 
remained in the bill, setting what I believe could be a dangerous 
precedent.
  S. 2248 is indeed an improvement over the Protect America Act. But in 
my judgment, it still did not provide enough protections to American 
citizens and did not provide ample justification for retroactive 
immunity for telecommunications companies. I therefore voted to oppose 
the bill. I hope to continue to work with my colleagues to pass the 
modifications I believe are needed.
  Mr. CARDIN. Madam President, I rise today in opposition to final 
passage of S. 2248, the FISA, Foreign Intelligence Surveillance Act, 
Amendments Act. I am disappointed that the Senate has failed to 
adequately improve the Protect America Act, PAA, which Congress enacted 
in August 2007 and which I voted against.
  The President should have the necessary authority to track 
terrorists, intercept their communications, and disrupt their plots. 
Congress should make needed changes to FISA to account for changes in 
technology and rulings from the FISA Court involving purely 
international communications that pass through telecommunications 
routes in the United States. While we have a solemn obligation to 
protect the American people, we must simultaneously uphold the 
Constitution and protect our civil liberties.
  After learning about executive branch abuses in the 1960s and 1970s, 
Congress passed very specific laws which authorize electronic 
surveillance. Congress has regularly updated these measures over the 
years to provide the executive branch the tools it needs to investigate 
terrorists, while preserving essential oversight mechanisms for the 
courts and the Congress. FISA requires the Government to seek an order 
or warrant from the FISA Court before conducting electronic 
surveillance that may involve U.S. persons. The act also provides for 
postsurveillance notice to the FISA Court by the Attorney General in an 
emergency.
  I am very concerned that the FISA law was disregarded by the 
administration and want to ensure that we put an end to this type of 
abuse. We are a nation of laws, and no one is above the law, including 
the President and Attorney General. Congress has the right to know the 
extent of the warrantless wiretapping program and how it was initiated 
and changed over the years by this administration.
  I voted in favor of the Judiciary Committee substitute to the 
Intelligence Committee bill. The Judiciary Committee version 
strengthened congressional and judicial review, including increasing 
the oversight by the FISA Court of the administration's wiretapping 
program. I am therefore

[[Page 1917]]

very disappointed that the Senate rejected the Judiciary Committee 
substitute and that the Senate has rejected numerous amendments--
including an amendment that I had offered--to improve this legislation.
  I am hopeful that the House will make much needed improvements in 
this legislation during conference and that I can support balanced 
legislation that gives the intelligence community the tools it needs to 
track terrorists and prevent attacks, while maintaining safeguards 
against the abuse of power by the executive branch. I will continue to 
work to ensure the safety and security of the American people, as well 
as their civil liberties. Domestic eavesdropping raises serious and 
fundamental questions regarding the conduct of the war against 
terrorism, the privacy rights of Americans, and the separation of 
powers between the legislative, executive, and judicial branches. 
Congress must continue to work to strike the right balance, and we have 
not achieved that goal today.
  Mr. KERRY. Madam President, I believe the FISA bill could have and 
should have been a better bill. There is no charitable explanation for 
why the U.S. Senate failed to pass a bill that demonstrates at once 
that we can protect our national security and protect the Constitution 
of the United States and the rights of law-abiding American citizens at 
the same time.
  September 11 was a wakeup call for millions about a global struggle 
against extremism--and the need to modernize our Government to win that 
struggle. September 11 also began a debate in our country over how we 
can win the struggle against extremists without losing sight of who we 
are and what we value as Americans. Former Supreme Court Justice Sandra 
Day O'Connor described the challenge best:

       We must preserve our commitment at home to the principles 
     for which we fight abroad.

  Congress has a duty to protect the American people--and to protect 
the Constitution. That is the oath we take. It is a solemn pledge. That 
is why this debate, and this vote in the Senate is so disappointing: 
This latest FISA law does not live up to the words we speak when we 
take that oath in the Senate. Instead, rather than produce a bill that 
made us stronger in the fight against extremism, colleagues on the 
other side of the aisle summarily rejected every effort this week to 
give the President of the United States the added flexibility needed to 
hunt down and capture terrorists while protecting the rights of law-
abiding Americans.
  More than 6 years after 9/11, we are still searching to strike this 
proper balance. Once again, in the latest rushed effort in the face of 
partisan fear-mongering, the world's greatest deliberate body missed an 
opportunity to get it right.
  Make no mistake, today's bill is a marked improvement over the 
Protect America Act. But this issue is far too critical to settle for 
half-measures and insufficient improvements. This bill doesn't do 
enough to protect independent judicial oversight by the Foreign 
Intelligence Surveillance Court, FISC, of sweeping Government powers. 
It doesn't provide the FISC the authority to assess the Government's 
ongoing compliance with its wiretapping procedures, and doesn't set 
limits on the way the Government uses information acquired about 
Americans.
  Instead, this bill leaves Americans vulnerable to continued 
overreaching by the executive branch. It allows the President to rely 
on other statutory authorities to circumvent the will of the people and 
conduct warrantless foreign intelligence surveillance, permits 
limitless ``fishing expeditions''--so-called bulk collection of all 
communications between the United States and overseas--and lets the 
government eavesdrop on Americans under the guise of targeting 
foreigners--what is known as ``reverse targeting.'' If we have learned 
anything from over 7 years of the Bush administration, it is that we 
cannot simply hand them a blank check and trust that they will not 
abuse it.
  The Judiciary Committee's FISA bill recognized the need for this type 
of robust judicial and congressional oversight in the face of ever-
expanding Executive power. It systematically sought to create all of 
the aforementioned safeguards on liberty, while making sure to give the 
President the expanded set of tools required to fight terrorism in the 
digital age. That is the bill we should have passed.
  Most importantly, unlike the FISA bill that passed the Senate 
yesterday, the Judiciary Committee's version did not grant amnesty to 
telecommunications providers that were complicit in the 
administration's warrantless spying program. The administration may 
well be deliberately stonewalling to avoid a judgment day in court. 
Yet, today, the Senate rewarded the President's obstructionism, 
providing him cover to seek political security under the guise of 
national security. That is wrong. It is also a slap in the face to 
telecommunications providers like QWEST, which in the difficult days 
after 9/11, courageously refused to aid the administration's 
warrantless wiretapping efforts and questioned their legality.
  Americans, who are deeply concerned about the secrecy and abuses of 
power that have marked this administration's years in office, and who 
are tired of learning information after the fact in our newspapers when 
whistleblowers leak it, deserve much better. This bill shreds the 
bipartisan principle that Americans should have their day in court--
that accountability should be preserved to adjudicate competing claims 
and at last shed light on the administration's secret surveillance 
program. It is for these reasons, after all, that Senator Specter, the 
ranking member of the Judiciary Committee, refused to grant blanket 
amnesty and, as he put it, ``undercut[] a major avenue of redress.'' If 
these lawsuits are shielded by Congress, the courts may never rule on 
whether the administration's surveillance activities were lawful.
  An impartial court of law insulated from political pressure is the 
most appropriate setting in which to receive a fair hearing. That is a 
far cry from the U.S. Senate wiping the slate clean for the Bush 
administration. Everyone agrees, if the telecoms followed the law, they 
should get immunity, as Congress explicitly provided under the original 
FISA law. But our courts should decide, not Congress--and that is a 
matter of principle protected in the House's FISA bill.
  There is today, as divided as we are, very much that we agree upon: 
We all want to prevent terrorist attacks, we all want to gather 
effectively as much intelligence as possible, and we all want to bring 
those who would attack us to justice before they strike us. But we 
undermine--not strengthen--our cause when we subvert our Constitution, 
throw away our system of checks and balances, and disregard human 
dignity. We also accept a false choice between security and liberty. 
There is no need to. That is why I stand up for the belief that the 
rule of law isn't just compatible with--but essential to--keeping our 
homeland safe. We owe Americans a better FISA bill.
  Mr. LEAHY. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. LEAHY. Madam President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, I ask unanimous consent that the vote on 
passage of S. 2248, as amended, occur at 5:30 p.m. today, 
notwithstanding rule XII, paragraph 4, and that the time specified in 
the previous order remain in effect, with the time from 5:10 to 5:30 
equally divided and controlled between the leaders, with the majority 
leader controlling the final 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. Madam President, I yield back the remainder of my time, 
and I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. ROCKEFELLER. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.

[[Page 1918]]

  The PRESIDING OFFICER. Without objection, it is so ordered.


                Amendment No. 4018 To Amendment No. 3911

  Mr. ROCKEFELLER. Madam President, I ask unanimous consent that the 
amendment at the desk making technical and conforming changes to the 
bill be in order, notwithstanding the adoption of the substitute 
amendment, and that the amendment be adopted. This consent request has 
been approved by both leaders.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 4018) was agreed to, as follows:

                (Purpose: To make technical corrections)

       On page 7, beginning on line 14, strike ``, consistent with 
     the requirements of section 101(h) or section 301(4), 
     minimization procedures'' and insert ``minimization 
     procedures that meet the definition of minimization 
     procedures under section 101(h) or section 301(4)''.
       On page 8, line 13, strike ``168 hours'' and insert ``7 
     days''.
       On page 26, beginning on line 22, strike ``consistent with 
     the requirements of section 101(h) or section 301(4)'' and 
     insert ``that meet the definition of minimization procedures 
     under section 101(h) or section 301(4)''.
       On page 32, line 3, strike ``subsection (2)'' and insert 
     ``subsection (b)''.
       On page 35, line 6, strike ``obtained;'' and insert 
     ``obtained,''.
       On page 35, line 18, strike ``168 hours'' and insert ``7 
     days''.
       On page 35, line 24, strike ``subsection'' and insert 
     ``section''.
       On page 36, line 6, strike ``168 hours'' and insert ``7 
     days''.
       On page 36, line 16, strike ``168-hour'' and insert ``7-
     day''.
       On page 40, beginning on line 16, strike ``consistent with 
     the requirements of section 101(h) or section 301(4)'' and 
     insert ``that meet the definition of minimization procedures 
     under section 101(h) or section 301(4)''.
       On page 44, line 15, strike ``clause'' and insert 
     ``subparagraph''.
       On page 45, line 15, strike ``obtained;'' and insert 
     ``obtained,''.
       On page 46, line 2, strike ``168 hours'' and insert ``7 
     days''.
       On page 46, line 8, strike ``subsection'' and insert 
     ``section''.
       On page 46, lines 14 and 15, strike ``168 hours'' and 
     insert ``7 days''.
       On page 46, line 24, strike ``168-hour'' and insert ``7-
     day''.
       On page 48, beginning on line 13, strike ``orders under 
     section 704(b) or section 705(b)'' and insert ``orders under 
     section 704(c) or section 705(c)''.
       On page 54, beginning on line 22, strike ``during the 
     period such directive was in effect'' and insert ``for 
     information, facilities, or assistance provided during the 
     period such directive was or is in effect''.
       On page 60, line 4, strike ``reasonably''.
       On page 60, line 5, strike ``determines'' and insert 
     ``reasonably determines''.
       On page 60, line 10, strike ``determines'' and insert 
     ``reasonably determines''.
       On page 60, lines 20 and 21, strike ``168 hours'' and 
     insert ``7 days''.
       On page 61, line 7, strike ``168 hours'' and insert ``7 
     days''.
       On page 65, line 6, strike ``168 hours'' and insert ``7 
     days''.
       On page 65, lines 16 and 17, strike ``168 hours'' and 
     insert ``7 days''.
       On page 67, line 2, strike ``168 hours'' and insert ``7 
     days''.
       On page 67, line 4, strike ``168 hours'' and insert ``7 
     days''.

  Mr. ROCKEFELLER. Madam President, after a long debate, we are, in 
fact, ready to, hopefully, pass the FISA bill. This has been an 
extremely important debate over important issues critical to the 
Nation's security.
  As I discussed at the beginning of the debate, the guiding principle 
in bringing this bill to the Senate floor was to modernize our ability 
to collect communications intelligence against foreign targets without 
compromising the constitutional and statutory privacy protections 
afforded to all Americans. In my mind, we have achieved this goal.
  Vice Chairman Bond and I worked very hard in the Intelligence 
Committee to produce a balanced and bipartisan bill. One can say 
whatever one wants, but 13 to 2 is 13 to 2. I think we can be proud of 
the improvements we have made to the bill each step of the way since 
last September. But, in fact, it goes all the way back almost a year. 
In the end, the bill we are about to pass, I hope, strengthens our 
national security and represents a very significant improvement over 
the Protect America Act that passed last summer.
  Let me mention a few of the provisions we have included in the bill 
for protecting the rights of Americans here in the United States and 
overseas.
  We require an individual FISA order for the targeting of U.S. persons 
believed to be located outside the United States any time the 
collection is conducted inside the United States.
  We have also put in place for the first time a procedure requiring 
FISA Court approval for collection on United States persons outside of 
the United States in circumstances that would require a warrant if 
undertaken within the United States. This has never before existed. It 
now exists in the FISA law, if we do, in fact, pass it.
  We have increased the role of the FISA Court in other significant 
ways, starting with the new requirement that the FISA Court approve the 
minimization procedures that are essential to the treatment of 
information concerning Americans authorized under this act. And thanks 
to Senator Whitehouse's amendment adopted this morning, we have 
clarified that the FISA Court has inherent authority to enforce 
compliance with the procedures that it, and it alone, can approve.
  We also adopted new requirements to give Congress visibility into how 
the new collection authority is being implemented, from the Feingold 
amendment on FISA Court documents, to the new requirements for 
reporting by the Attorney General and the Director of National 
Intelligence.
  Just as we have worked on a bipartisan basis here in the Senate in 
order to achieve the strongest possible bill, I believe now is the time 
to work with our colleagues in the House of Representatives to achieve 
a true bipartisan, bicameral bill. I look forward to that dialog with 
our House colleagues.
  I would note there are additional measures I support which may make 
this legislation even stronger. Among these would be the exclusivity 
amendment of Senator Feinstein that received a strong bipartisan 
majority vote this morning. I think it was 57 votes. I commend her for 
all of her work she has done on this critical issue and on other parts 
of the bill, and I will fight like heck for her in the conference 
committee, if we are to have one. We will continue to work with her and 
with Vice Chairman Bond to see if there is any way to bridge the 
differences in the bipartisan manner that has dominated our 
negotiations throughout this procedure.
  In closing, it would not have been possible to have reached this 
point without the hard work of the staff of the Intelligence and 
Judiciary Committees, as well as the leadership staff. From the 
Intelligence Committee, I thank Andy Johnson; Louis Tucker; Melvin 
Dubee; Michael Davidson; Jack Livingston; Christine Healey; Alissa 
Starzak; and Kathleen Rice. I also thank Mary DeRosa, Nick Rossi, 
Zulima Espinel, and Matt Solomon of the Judiciary Committee; and Ron 
Weich, Serena Hoy, and Marcel Lettre of the majority leader's staff.
  Finally, I must recognize the steadfast support and work of the 
committee's vice chairman, Senator Bond. The work of the Intelligence 
Committee is not easy. When it comes on the floor, it is more difficult 
because there is a certain kind of exclusivity which is not appreciated 
by some Members but is the way it works.
  Vice Chairman Bond has been dogged in his efforts to move this whole 
thing forward. He is formidable in his pursuit of intelligence and his 
insistence it be made available to the committee and to the appropriate 
committees; and he is flexible in his willingness to find compromises 
to keep our bipartisan coalition together.
  I hope this bill does pass. I think it is landmark legislation. I 
don't think all will see it that way at the very beginning, and that is 
OK because what we do is not so much of the moment but for the longer 
term. So there may be disagreements on immunity. But, on the other 
hand, there can be no disagreements on the national security of the 
United States. Immunity has been narrowly tailored. A lot of people 
don't know that, or maybe made up their minds at the beginning, but, 
whatever, we did what we thought was the right thing to do.
  One of the great things about being in this body is no matter what 
people say and what people think, if you do

[[Page 1919]]

what you think is right, you are serving your country.
  I thank the Presiding Officer and yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. McCONNELL. Madam President, I ask unanimous consent that the 
order for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCONNELL. Madam President, are we now in my designated time?
  The PRESIDING OFFICER. We are.
  Mr. McCONNELL. Madam President, earlier today the Senate voted to 
invoke cloture on the bipartisan Rockefeller-Bond bill. It was not a 
close vote. Rather, it was a strong bipartisan show of support for this 
important piece of legislation.
  The Protect America Act expires at the end of this week. That is 
Saturday, February 16.
  Twenty-one House Democrats have written to Speaker Pelosi saying they 
``fully support'' the Rockefeller-Bond bill if it is not changed 
substantially--and it was not changed--and they urge her, the Speaker, 
to ``quickly consider'' the bill in order ``to get a bill signed into 
law before the Protect America Act expires in February.''
  I have a copy of the letter signed by 21 Democrats, so-called Blue 
Dog Democrats, in the House. I ask unanimous consent that it be printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Congress of the United States,

                                 Washington, DC, January 28, 2008.
       Dear Madam Speaker: Legislation reforming the Foreign 
     Intelligence Surveillance Act (FISA) is currently being 
     considered by the Senate. Following the Senate's passage of a 
     FISA bill, it will be necessary for the House to quickly 
     consider FISA legislation to get a bill to the President 
     before the Protect America Act expires in February.
       It is our belief that such legislation should include the 
     following provisions: Require individualized warrants for 
     surveillance of U.S. citizens living or traveling abroad; 
     Clarify that no court order is required to conduct 
     surveillance of foreign-to-foreign communications that are 
     routed through the United States; Provide enhanced oversight 
     by Congress of surveillance laws and procedures; Compel 
     compliance by private sector partners; Review by FISA Court 
     of minimization procedures; Targeted immunity for carriers 
     that participated in anti-terrorism surveillance programs.
       The Rockefeller-Bond FISA legislation contains satisfactory 
     language addressing all these issues and we would fully 
     support that measure should it reach the House floor without 
     substantial change. We believe these components will ensure a 
     strong national security apparatus that can thwart terrorism 
     across the globe and save American lives here in our country.
       It is also critical that we update the FISA laws in a 
     timely manner. To pass a long-term extension of the Protect 
     America Act, as some may suggest, would leave in place a 
     limited, stopgap measure that does not fully address critical 
     surveillance issues. We have it within our ability to replace 
     the expiring Protect America Act by passing strong, 
     bipartisan FISA modernization legislation that can be signed 
     into law and we should do so--the consequences of not passing 
     such a measure could place our national security at undue 
     risk.
           Sincerely,
         Leonard L. Boswell, ------, Mike Ross, Bud Cramer, Heath 
           Shuler, Allen Boyd, Dan Boren, Jim Matheson, Lincoln 
           Davis, Tim Holden, Dennis Moore, Earl Pomeroy, Melissa 
           L. Bean, John Barrow, Joe Baca, John Tanner, Jim 
           Cooper, Zachary T. Space, Brad Ellsworth, Charlie 
           Melancon, Christopher P. Carney.

  Mr. McCONNELL. Madam President, it is clear that not only does the 
Rockefeller-Bond bill enjoy bipartisan majority support in the Senate, 
it also enjoys bipartisan majority support in the House. It is a 
tribute to the fine work of the Senator from West Virginia, Mr. 
Rockefeller, and the Senator from Missouri, Mr. Bond, in pulling this 
complex piece of legislation together and getting extraordinary support 
across the aisle.
  This bill protects the country. It is a bill that will be signed by 
the President of the United States, so we are making a law here. We 
need to focus on completing action on this legislation and get it to 
the President before the Protect America Act expires.
  As to further delays: Back in August, our Democratic colleagues said 
an additional 6 months was needed to get this right. In the fall, they 
said: We need a little more time. Last month, they said: Give us 
another 15 days and we can wrap it up. At this point, no Member of this 
body can reasonably state this piece of legislation was hastily or 
unfairly considered. It has been the product of 6 months' work, intense 
work on behalf of Senator Rockefeller and Senator Bond.
  We do not need yet another extension, yet another delay. We need to 
focus on getting our work done. I am confident that with the help of 
our friends on the other side of the aisle, we can get a second 
bipartisan accomplishment to the President in as many weeks. Tomorrow, 
he will sign the stimulus package--an important bipartisan 
accomplishment. Later in the week, he could conceivably be in a 
position to sign this important piece of bipartisan legislation.
  I encourage my colleagues in the House and the Senate to redouble 
their efforts toward this end. That would show the American people that 
Congress can indeed function on a bipartisan basis on important issues 
before the country.
  I am among those proud of the fine work done by Senator Rockefeller 
and Senator Bond. This is a terrific, important piece of legislation. I 
know it will pass the Senate shortly, overwhelmingly.
  I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOND. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. Madam President, is there time remaining on this side prior 
to the vote?
  The PRESIDING OFFICER. Four and a half minutes remain.
  Mr. BOND. Madam President, with the sufferance of the minority 
leader, I thank my colleagues, especially Senator Rockefeller, and all 
those who worked with us. We have had to make a number of very tough 
votes. We made some good changes in the bill. I thank, particularly, 
Senators Wyden, Feinstein, and Whitehouse for working with us to 
achieve their objectives in a way that would allow the program to 
continue.
  Approximately 10 months ago, the DNI, Admiral McConnell, came to 
Congress and asked that we update FISA. Changes in technology had 
resulted in the FISA Court rulings or interpretations that impeded the 
effective use of electronic surveillance against terrorists overseas.
  This problem came to a head in May 2007, when there was a FISA Court 
ruling causing significant gaps in our intelligence collection against 
foreign terrorists. Throughout the summer of 2007 and amid growing 
concern of increased threats to our security in light of these gaps, 
Congress was asked by the DNI to act. And Congress, in August, passed 
the Protect America Act, a short-term fix that did what it was supposed 
to do. It was lacking in one important aspect; it did not provide civil 
liability protection to those private partners who assisted the 
intelligence community.
  Following passage of the PAA, Chairman Rockefeller and I immediately 
set to work to come up with a bipartisan permanent solution. We worked 
closely with the intelligence community.
  In the end, after many hearings, briefings, debate, and visits to the 
facility, we did pass it on a 13-to-2 vote. We concluded that those 
electronic communication service providers that assisted with the 
President's TSP acted in good faith and deserve civil liability 
protection from frivolous lawsuits. As indicated by the chairman, this 
bill goes further than any legislation in history in protecting the 
privacy of U.S. persons, mostly Americans, whose communications may be 
acquired incidentally to this foreign targeting. For the first time in 
history,

[[Page 1920]]

it requires the FISA Court to approve targeting of U.S. persons, 
American citizens, overseas to obtain foreign intelligence information.
  This bill was a series of delicate compromises. Both sides had to 
give. Many of us would have preferred to have all litigation related to 
the TSP terminated as the DNI originally requested. Again, we agreed, 
for reasons set forth on the floor, that cases against Government 
officials--and all criminal cases--could go forward.
  Others believed the FISA Court should not approve targeting of 
Americans abroad, particularly when these same protections are not 
afforded in ordinary criminal cases. In the spirit of compromise, we 
created a process that allows sufficient flexibility while addressing 
privacy concerns.
  In the end, I am proud to say we have accomplished our collective 
goals of making sure we have a bill with clear authorities for foreign 
targeting, with strong protections for Americans, and with civil 
liability protection for those providers who may have assisted with the 
President's terrorist surveillance program.
  We have heard debate over the past several weeks on a number of 
amendments that I believe would have proved harmful to our intelligence 
collection efforts. Some would have shut down, or severely impeded, 
intelligence collection against foreign terrorists. That is one of the 
reasons we worked so closely with the intelligence community to 
ascertain what could be done to increase protections without harming 
their ability to collect.
  We now have a solid bill. The DNI will support it and the President 
can sign it into law. I urge my colleagues to send this bill to the 
House with a strong bipartisan vote. It gives our intelligence 
operators and law enforcement officials the tools they need to conduct 
surveillance of foreign terrorists in foreign countries who are 
planning to conduct attacks against the U.S., our troops, and our 
allies. It is a balance we need to protect our civil liberties, without 
handcuffing our intelligence professionals.
  I hope we can do the right thing and pass the bill. I thank all our 
colleagues who helped.
  I yield the floor.
  The PRESIDING OFFICER. The majority leader is recognized.
  Mr. REID. Madam President, I want the Record to reflect that any of 
my remarks where I disagree with the bill before the Senate in no way 
reflects upon the chairman of the committee. I have known Jay 
Rockefeller for several decades, and I have not known a better public 
servant than Jay. Jay Rockefeller got into Government for the right 
reasons. We know that the Rockefeller name is magic, that he could have 
led a life of leisure, doing many different things. But he chose public 
service. He went to West Virginia doing work as a VISTA volunteer. He 
fell in love with the people--the poor people--of West Virginia and has 
worked since then to improve the lives of the people of West Virginia. 
He has done a wonderful job there, serving as the secretary of state, 
Governor, and now as a long-time Senator.
  There are certain things in this legislation that I disagree with. 
But I repeat, as a public servant, there is not one better--or I doubt 
that there ever has been anyone better than Jay Rockefeller. He has 
devoted his Senate life in service to the Intelligence Committee. He 
devotes night and day not only working in the Committee room where 
there is no exposure to the public--he gets no publicity for doing 
this. He does it because he believes it is the right thing for the 
country. Of course, I receive calls from him well after hours on 
concerns he has in dealing with foreign intelligence generally.
  I already voted against it on the FISA legislation, and I will vote 
``no'' on final passage of the bill.
  The Senate's debate on FISA has made the Intelligence Committee's 
bill better--no question about that--by adding a number of protections 
from the Judiciary Committee's version.
  The Senate adopted amendments offered by Senators Kennedy, 
Whitehouse, and Feingold to improve title I of the bill. This concerns 
the procedures we use to conduct this kind of surveillance in the 
future. That is an improvement. But the Senate rejected amendments to 
strike and modify various parts of title I, to improve title I, and 
rejected all amendments to strike or modify title II concerning 
immunity for telecommunications companies that may have broken the law 
by abiding the White House's requests for warrantless wiretaps on 
American citizens.
  I believe the White House and any companies that broke the law must 
be held accountable.
  In their unyielding effort to expand Presidential powers, President 
Bush and Vice President Cheney created a system to conduct 
wiretapping--including on American citizens--outside the bounds of 
longstanding Federal law.
  As I have said before--and books have been written on it--the 
President, as soon as we passed the first PATRIOT Act, after he joined 
with us in celebrating it, he basically ignored it and did whatever he 
wanted to do because he was told by the White House staff he was above 
the law, he didn't have to follow the law we passed.
  The President could have taken the simple step at any time of 
requesting new authority from Congress. All he would have had to do was 
come talk to us. We would have been willing to listen to him and, very 
likely, would have done anything he wanted to do. After all, Congress 
has repeatedly amended FISA because of new technology and legitimate 
needs in the intelligence community.
  But whether out of convenience, incompetence, or outright disdain for 
the rule of law, the Bush-Cheney administration chose to ignore 
Congress and ignore the Constitution.
  The White House should bear responsibility for this reckless disdain 
for the rule of law.
  It also appears that many companies followed the administration's 
orders without regard to the law or privacy, or even basic common 
sense. I always will support giving our intelligence community the 
tools it needs to collect intelligence on terrorists and other foreign 
targets. We have to do that.
  We always have and always will need to help in the private sector to 
protect our country. That is clear. When companies comply with legal 
and constitutional directives to support intelligence and law 
enforcement activities, they have no reason to fear. But the 
requirement and obligation they have for protecting the rights of 
American citizens and the Constitution and FISA are perfectly clear, 
very clear.
  According to the press reports, at least one company--Qwest 
Communications Company--refused the White House request to participate 
in this program. The others had an opportunity to do the same. As far 
as we know, they chose not to. They didn't follow the example of Qwest.
  If the Senate had voted today to reject amnesty, we would have sent a 
message that no one is above accountability and no one is above the 
law. If we had rejected amnesty, we would have sent a message that 
fighting terrorism doesn't require the sacrifice of basic fundamental 
rights.
  I was disappointed that the Senate rejected amendments opposing 
immunity. Even though their efforts were unsuccessful, all Americans 
owe a debt of gratitude to two outstanding and principled Senators, 
Senators Feingold and Dodd. I don't mean in any way to suggest that 
people who disagree with them are not outstanding or are unprincipled. 
That isn't the case. There is a basic disagreement. I felt I needed to 
applaud and commend these two men for how hard they worked in making 
their point. I believe they stood up to the administration, which 
certainly needs standing up to. They stood up for accountability.
  Despite today's votes, there is no doubt in my mind that history will 
prove they were right. Millions of Americans joined this effort. Win or 
lose, their voices were heard and their efforts made a difference.
  If the Senate votes for final passage of FISA today, which I suspect 
will be the case, we must decide what comes next. The mere fact that we 
pass something today, and the House passed

[[Page 1921]]

something previously, doesn't mean we have anything to send to the 
President.
  Two weeks ago, in the runup to the State of the Union Address--and we 
have heard it time and again--the President and Vice President and 
Senate Republicans believed it was urgent to pass the FISA bill, that 
it is critical to our national security. But then, Senate Republicans 
spent most of the time since then refusing to allow any votes on FISA 
amendments, slow-walking the bill as part of a strategy to jam the 
House. That is what happened. I have to suggest that they deserve a pin 
on their lapel because they set out and did what they wanted to do--
stall this as long as they could.
  A week and a half ago, as the February 1 sunset to the Protect 
America Act approached, we passed a 15-day extension. This would have 
allowed 2 weeks to negotiate with the House, which would have been 
rushed, but we could have at least had meaningful meetings. Those will 
not take place.
  Unfortunately, the White House has been convinced that if they 
dragged this process out long enough, there would not be enough time to 
negotiate a bill with the House. The White House is convinced they can 
force the House to pass exactly the bill they want. I believe it is 
wrong for the White House to do this, and I believe it is unfair to the 
House of Representatives.
  Due to months of White House foot-dragging, the relevant House 
committees have only just gotten the documents relating to immunity. 
They need some time to review and analyze that.
  We must not let this critical issue be resolved by the White House 
trying to force the House to do something they didn't want to do, such 
as happened last August.
  I plan to ask, after this legislation passes today, unanimous consent 
for an extension in order to allow sufficient time for negotiation with 
the House. My friend, the distinguished Republican leader, has already 
said there will be no extensions given. I hope that is not the case, 
and with this extra time, the conference committee can make further 
improvements to this critical bill.
  Why do we need to improve the bill?
  Richard Clarke, a national security adviser to Presidents Reagan, 
Bush Sr., and President Clinton, said it well in an op-ed:

       FISA has and still works as the most valuable mechanism for 
     monitoring our enemies.
       In order to defeat the violent Islamic extremists who do 
     not believe in human rights, we need not give up the civil 
     liberties, constitutional rights and protections that 
     generations of Americans fought to achieve.

  The Bush-Cheney White House continues to sell us a false choice 
between security and liberty. I reject that choice.
  This is America and we are Americans. We can and must have both 
liberty and security.
  It is my understanding we are ready to vote on final passage.
  The PRESIDING OFFICER. The question is on passage of S. 2248, as 
amended.
  Mr. BOND. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a second?
  There appears to be a sufficient second.
  The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton) 
and the Senator from Illinois (Mr. Obama) are necessarily absent.
  Mr. KYL. The following Senator is necessarily absent: the Senator 
from South Carolina (Mr. Graham).
  Further, if present and voting, the Senator from South Carolina (Mr. 
Graham) would have voted ``yea.''
  The result was announced--yeas 68, nays 29, as follows:

                      [Rollcall Vote No. 20 Leg.]

                                YEAS--68

     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
     Grassley
     Gregg
     Hagel
     Hatch
     Hutchison
     Inhofe
     Inouye
     Isakson
     Johnson
     Kohl
     Kyl
     Landrieu
     Lieberman
     Lincoln
     Lugar
     Martinez
     McCain
     McCaskill
     McConnell
     Mikulski
     Murkowski
     Nelson (FL)
     Nelson (NE)
     Pryor
     Roberts
     Rockefeller
     Salazar
     Sessions
     Shelby
     Smith
     Snowe
     Specter
     Stevens
     Sununu
     Thune
     Vitter
     Voinovich
     Warner
     Webb
     Whitehouse
     Wicker

                                NAYS--29

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

                             NOT VOTING--3

     Clinton
     Graham
     Obama
  The bill (S. 2248), as amended, was passed.
   The PRESIDING OFFICER. Under the previous order, the Senate will 
proceed to the consideration of H.R. 3773, which the clerk will report.
   The legislative clerk read as follows:

        A bill (H.R. 3773) to amend the Foreign Intelligence 
     Surveillance Act of 1978 to establish a procedure for 
     authorizing certain acquisitions of foreign intelligence, and 
     for other purposes.

   The PRESIDING OFFICER. Under the previous order, all after the 
enacting clause is stricken and the text of S. 2248, as amended, is 
inserted in lieu thereof; the bill, as amended, is considered read the 
third time and passed, the motion to reconsider made and laid upon the 
table, and passage of S. 2248 vitiated and that bill be returned to the 
calendar.
   The bill (H.R. 3773), as amended, was passed, as follows:

                               H.R. 3773

       Resolved, That the bill from the House of Representatives 
     (H.R. 3773) entitled ``An Act to amend the Foreign 
     Intelligence Surveillance Act of 1978 to establish a 
     procedure for authorizing certain acquisitions of foreign 
     intelligence, and for other purposes.'', do pass with the 
     following amendment:
       Strike out all after the enacting clause and insert:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Foreign 
     Intelligence Surveillance Act of 1978 Amendments Act of 
     2008'' or the ``FISA Amendments Act of 2008''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.

               TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

Sec. 101. Additional procedures regarding certain persons outside the 
              United States.
Sec. 102. Statement of exclusive means by which electronic surveillance 
              and interception of domestic communications may be 
              conducted.
Sec. 103. Submittal to Congress of certain court orders under the 
              Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace 
              devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of mass destruction.
Sec. 111. Technical and conforming amendments.

  TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

Sec. 201. Definitions.
Sec. 202. Limitations on civil actions for electronic communication 
              service providers.
Sec. 203. Procedures for implementing statutory defenses under the 
              Foreign Intelligence Surveillance Act of 1978.
Sec. 204. Preemption of State investigations.
Sec. 205. Technical amendments.

                      TITLE III--OTHER PROVISIONS

Sec. 301. Severability.
Sec. 302. Effective date; repeal; transition procedures.

               TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE

     SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS 
                   OUTSIDE THE UNITED STATES.

       (a) In General.--The Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1801 et seq.) is amended--
       (1) by striking title VII; and
       (2) by adding after title VI the following new title:

 ``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE 
                           THE UNITED STATES

     ``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC 
                   SURVEILLANCE.

       ``Nothing in the definition of electronic surveillance 
     under section 101(f) shall be construed

[[Page 1922]]

     to encompass surveillance that is targeted in accordance with 
     this title at a person reasonably believed to be located 
     outside the United States.

     ``SEC. 702. DEFINITIONS.

       ``(a) In General.--The terms `agent of a foreign power', 
     `Attorney General', `contents', `electronic surveillance', 
     `foreign intelligence information', `foreign power', 
     `minimization procedures', `person', `United States', and 
     `United States person' shall have the meanings given such 
     terms in section 101, except as specifically provided in this 
     title.
       ``(b) Additional Definitions.--
       ``(1) Congressional intelligence committees.--The term 
     `congressional intelligence committees' means--
       ``(A) the Select Committee on Intelligence of the Senate; 
     and
       ``(B) the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       ``(2) Foreign intelligence surveillance court; court.--The 
     terms `Foreign Intelligence Surveillance Court' and `Court' 
     mean the court established by section 103(a).
       ``(3) Foreign intelligence surveillance court of review; 
     court of review.--The terms `Foreign Intelligence 
     Surveillance Court of Review' and `Court of Review' mean the 
     court established by section 103(b).
       ``(4) Electronic communication service provider.--The term 
     `electronic communication service provider' means--
       ``(A) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       ``(B) a provider of electronic communication service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       ``(C) a provider of a remote computing service, as that 
     term is defined in section 2711 of title 18, United States 
     Code;
       ``(D) any other communication service provider who has 
     access to wire or electronic communications either as such 
     communications are transmitted or as such communications are 
     stored; or
       ``(E) an officer, employee, or agent of an entity described 
     in subparagraph (A), (B), (C), or (D).
       ``(5) Element of the intelligence community.--The term 
     `element of the intelligence community' means an element of 
     the intelligence community specified in or designated under 
     section 3(4) of the National Security Act of 1947 (50 U.S.C. 
     401a(4)).

     ``SEC. 703. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE 
                   THE UNITED STATES OTHER THAN UNITED STATES 
                   PERSONS.

       ``(a) Authorization.--Notwithstanding any other law, the 
     Attorney General and the Director of National Intelligence 
     may authorize jointly, for periods of up to 1 year, the 
     targeting of persons reasonably believed to be located 
     outside the United States to acquire foreign intelligence 
     information.
       ``(b) Limitations.--An acquisition authorized under 
     subsection (a)--
       ``(1) may not intentionally target any person known at the 
     time of acquisition to be located in the United States;
       ``(2) may not intentionally target a person reasonably 
     believed to be located outside the United States if the 
     purpose of such acquisition is to target a particular, known 
     person reasonably believed to be in the United States, except 
     in accordance with title I or title III;
       ``(3) may not intentionally target a United States person 
     reasonably believed to be located outside the United States, 
     except in accordance with sections 704, 705, or 706;
       ``(4) shall not intentionally acquire any communication as 
     to which the sender and all intended recipients are known at 
     the time of the acquisition to be located in the United 
     States; and
       ``(5) shall be conducted in a manner consistent with the 
     fourth amendment to the Constitution of the United States.
       ``(c) Conduct of Acquisition.--An acquisition authorized 
     under subsection (a) may be conducted only in accordance 
     with--
       ``(1) a certification made by the Attorney General and the 
     Director of National Intelligence pursuant to subsection (f); 
     and
       ``(2) the targeting and minimization procedures required 
     pursuant to subsections (d) and (e).
       ``(d) Targeting Procedures.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt targeting procedures that are reasonably designed 
     to ensure that any acquisition authorized under subsection 
     (a) is limited to targeting persons reasonably believed to be 
     located outside the United States and does not result in the 
     intentional acquisition of any communication as to which the 
     sender and all intended recipients are known at the time of 
     the acquisition to be located in the United States.
       ``(2) Judicial review.--The procedures referred to in 
     paragraph (1) shall be subject to judicial review pursuant to 
     subsection (h).
       ``(e) Minimization Procedures.--
       ``(1) Requirement to adopt.--The Attorney General, in 
     consultation with the Director of National Intelligence, 
     shall adopt minimization procedures that meet the definition 
     of minimization procedures under section 101(h) or section 
     301(4) for acquisitions authorized under subsection (a).
       ``(2) Judicial review.--The minimization procedures 
     required by this subsection shall be subject to judicial 
     review pursuant to subsection (h).
       ``(f) Certification.--
       ``(1) In general.--
       ``(A) Requirement.--Subject to subparagraph (B), prior to 
     the initiation of an acquisition authorized under subsection 
     (a), the Attorney General and the Director of National 
     Intelligence shall provide, under oath, a written 
     certification, as described in this subsection.
       ``(B) Exception.--If the Attorney General and the Director 
     of National Intelligence determine that immediate action by 
     the Government is required and time does not permit the 
     preparation of a certification under this subsection prior to 
     the initiation of an acquisition, the Attorney General and 
     the Director of National Intelligence shall prepare such 
     certification, including such determination, as soon as 
     possible but in no event more than 7 days after such 
     determination is made.
       ``(2) Requirements.--A certification made under this 
     subsection shall--
       ``(A) attest that--
       ``(i) there are reasonable procedures in place for 
     determining that the acquisition authorized under subsection 
     (a) is targeted at persons reasonably believed to be located 
     outside the United States and that such procedures have been 
     approved by, or will be submitted in not more than 5 days for 
     approval by, the Foreign Intelligence Surveillance Court 
     pursuant to subsection (h);
       ``(ii) there are reasonable procedures in place for 
     determining that the acquisition authorized under subsection 
     (a) does not result in the intentional acquisition of any 
     communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States, and that such procedures have 
     been approved by, or will be submitted in not more than 5 
     days for approval by, the Foreign Intelligence Surveillance 
     Court pursuant to subsection (h);
       ``(iii) the procedures referred to in clauses (i) and (ii) 
     are consistent with the requirements of the fourth amendment 
     to the Constitution of the United States and do not permit 
     the intentional targeting of any person who is known at the 
     time of acquisition to be located in the United States or the 
     intentional acquisition of any communication as to which the 
     sender and all intended recipients are known at the time of 
     acquisition to be located in the United States;
       ``(iv) a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(v) the minimization procedures to be used with respect 
     to such acquisition--

       ``(I) meet the definition of minimization procedures under 
     section 101(h) or section 301(4); and
       ``(II) have been approved by, or will be submitted in not 
     more than 5 days for approval by, the Foreign Intelligence 
     Surveillance Court pursuant to subsection (h);

       ``(vi) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of an 
     electronic communication service provider; and
       ``(vii) the acquisition does not constitute electronic 
     surveillance, as limited by section 701; and
       ``(B) be supported, as appropriate, by the affidavit of any 
     appropriate official in the area of national security who 
     is--
       ``(i) appointed by the President, by and with the consent 
     of the Senate; or
       ``(ii) the head of any element of the intelligence 
     community.
       ``(3) Limitation.--A certification made under this 
     subsection is not required to identify the specific 
     facilities, places, premises, or property at which the 
     acquisition authorized under subsection (a) will be directed 
     or conducted.
       ``(4) Submission to the court.--The Attorney General shall 
     transmit a copy of a certification made under this 
     subsection, and any supporting affidavit, under seal to the 
     Foreign Intelligence Surveillance Court as soon as possible, 
     but in no event more than 5 days after such certification is 
     made. Such certification shall be maintained under security 
     measures adopted by the Chief Justice of the United States 
     and the Attorney General, in consultation with the Director 
     of National Intelligence.
       ``(5) Review.--The certification required by this 
     subsection shall be subject to judicial review pursuant to 
     subsection (h).
       ``(g) Directives and Judicial Review of Directives.--
       ``(1) Authority.--With respect to an acquisition authorized 
     under subsection (a), the Attorney General and the Director 
     of National Intelligence may direct, in writing, an 
     electronic communication service provider to--
       ``(A) immediately provide the Government with all 
     information, facilities, or assistance necessary to 
     accomplish the acquisition in a manner that will protect the 
     secrecy of the acquisition and produce a minimum of 
     interference with the services that such electronic 
     communication service provider is providing to the target; 
     and
       ``(B) maintain under security procedures approved by the 
     Attorney General and the Director of National Intelligence 
     any records concerning the acquisition or the aid furnished 
     that such electronic communication service provider wishes to 
     maintain.
       ``(2) Compensation.--The Government shall compensate, at 
     the prevailing rate, an electronic communication service 
     provider for providing information, facilities, or assistance 
     pursuant to paragraph (1).
       ``(3) Release from liability.--Notwithstanding any other 
     law, no cause of action shall lie in any court against any 
     electronic communication service provider for providing any 
     information, facilities, or assistance in accordance with a 
     directive issued pursuant to paragraph (1).

[[Page 1923]]

       ``(4) Challenging of directives.--
       ``(A) Authority to challenge.--An electronic communication 
     service provider receiving a directive issued pursuant to 
     paragraph (1) may challenge the directive by filing a 
     petition with the Foreign Intelligence Surveillance Court, 
     which shall have jurisdiction to review such a petition.
       ``(B) Assignment.--The presiding judge of the Court shall 
     assign the petition filed under subparagraph (A) to 1 of the 
     judges serving in the pool established by section 103(e)(1) 
     not later than 24 hours after the filing of the petition.
       ``(C) Standards for review.--A judge considering a petition 
     to modify or set aside a directive may grant such petition 
     only if the judge finds that the directive does not meet the 
     requirements of this section, or is otherwise unlawful.
       ``(D) Procedures for initial review.--A judge shall conduct 
     an initial review not later than 5 days after being assigned 
     a petition described in subparagraph (C). If the judge 
     determines that the petition consists of claims, defenses, or 
     other legal contentions that are not warranted by existing 
     law or by a nonfrivolous argument for extending, modifying, 
     or reversing existing law or for establishing new law, the 
     judge shall immediately deny the petition and affirm the 
     directive or any part of the directive that is the subject of 
     the petition and order the recipient to comply with the 
     directive or any part of it. Upon making such a determination 
     or promptly thereafter, the judge shall provide a written 
     statement for the record of the reasons for a determination 
     under this subparagraph.
       ``(E) Procedures for plenary review.--If a judge determines 
     that a petition described in subparagraph (C) requires 
     plenary review, the judge shall affirm, modify, or set aside 
     the directive that is the subject of that petition not later 
     than 30 days after being assigned the petition, unless the 
     judge, by order for reasons stated, extends that time as 
     necessary to comport with the due process clause of the fifth 
     amendment to the Constitution of the United States. Unless 
     the judge sets aside the directive, the judge shall 
     immediately affirm or affirm with modifications the 
     directive, and order the recipient to comply with the 
     directive in its entirety or as modified. The judge shall 
     provide a written statement for the records of the reasons 
     for a determination under this subparagraph.
       ``(F) Continued effect.--Any directive not explicitly 
     modified or set aside under this paragraph shall remain in 
     full effect.
       ``(G) Contempt of court.--Failure to obey an order of the 
     Court issued under this paragraph may be punished by the 
     Court as contempt of court.
       ``(5) Enforcement of directives.--
       ``(A) Order to compel.--In the case of a failure to comply 
     with a directive issued pursuant to paragraph (1), the 
     Attorney General may file a petition for an order to compel 
     compliance with the directive with the Foreign Intelligence 
     Surveillance Court, which shall have jurisdiction to review 
     such a petition.
       ``(B) Assignment.--The presiding judge of the Court shall 
     assign a petition filed under subparagraph (A) to 1 of the 
     judges serving in the pool established by section 103(e)(1) 
     not later than 24 hours after the filing of the petition.
       ``(C) Standards for review.--A judge considering a petition 
     filed under subparagraph (A) shall issue an order requiring 
     the electronic communication service provider to comply with 
     the directive or any part of it, as issued or as modified, if 
     the judge finds that the directive meets the requirements of 
     this section, and is otherwise lawful.
       ``(D) Procedures for review.--The judge shall render a 
     determination not later than 30 days after being assigned a 
     petition filed under subparagraph (A), unless the judge, by 
     order for reasons stated, extends that time if necessary to 
     comport with the due process clause of the fifth amendment to 
     the Constitution of the United States. The judge shall 
     provide a written statement for the record of the reasons for 
     a determination under this paragraph.
       ``(E) Contempt of court.--Failure to obey an order of the 
     Court issued under this paragraph may be punished by the 
     Court as contempt of court.
       ``(F) Process.--Any process under this paragraph may be 
     served in any judicial district in which the electronic 
     communication service provider may be found.
       ``(6) Appeal.--
       ``(A) Appeal to the court of review.--The Government or an 
     electronic communication service provider receiving a 
     directive issued pursuant to paragraph (1) may file a 
     petition with the Foreign Intelligence Surveillance Court of 
     Review for review of the decision issued pursuant to 
     paragraph (4) or (5). The Court of Review shall have 
     jurisdiction to consider such a petition and shall provide a 
     written statement for the record of the reasons for a 
     decision under this paragraph.
       ``(B) Certiorari to the supreme court.--The Government or 
     an electronic communication service provider receiving a 
     directive issued pursuant to paragraph (1) may file a 
     petition for a writ of certiorari for review of the decision 
     of the Court of Review issued under subparagraph (A). The 
     record for such review shall be transmitted under seal to the 
     Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.
       ``(h) Judicial Review of Certifications and Procedures.--
       ``(1) In general.--
       ``(A) Review by the foreign intelligence surveillance 
     court.--The Foreign Intelligence Surveillance Court shall 
     have jurisdiction to review any certification required by 
     subsection (c) and the targeting and minimization procedures 
     adopted pursuant to subsections (d) and (e).
       ``(B) Submission to the court.--The Attorney General shall 
     submit to the Court any such certification or procedure, or 
     amendment thereto, not later than 5 days after making or 
     amending the certification or adopting or amending the 
     procedures.
       ``(2) Certifications.--The Court shall review a 
     certification provided under subsection (f) to determine 
     whether the certification contains all the required elements.
       ``(3) Targeting procedures.--The Court shall review the 
     targeting procedures required by subsection (d) to assess 
     whether the procedures are reasonably designed to ensure that 
     the acquisition authorized under subsection (a) is limited to 
     the targeting of persons reasonably believed to be located 
     outside the United States and does not result in the 
     intentional acquisition of any communication as to which the 
     sender and all intended recipients are known at the time of 
     the acquisition to be located in the United States.
       ``(4) Minimization procedures.--The Court shall review the 
     minimization procedures required by subsection (e) to assess 
     whether such procedures meet the definition of minimization 
     procedures under section 101(h) or section 301(4).
       ``(5) Orders.--
       ``(A) Approval.--If the Court finds that a certification 
     required by subsection (f) contains all of the required 
     elements and that the targeting and minimization procedures 
     required by subsections (d) and (e) are consistent with the 
     requirements of those subsections and with the fourth 
     amendment to the Constitution of the United States, the Court 
     shall enter an order approving the continued use of the 
     procedures for the acquisition authorized under subsection 
     (a).
       ``(B) Correction of deficiencies.--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).
       ``(C) Requirement for written statement.--In support of its 
     orders under this subsection, the Court shall provide, 
     simultaneously with the orders, for the record a written 
     statement of its reasons.
       ``(6) Appeal.--
       ``(A) Appeal to the court of review.--The Government may 
     appeal any order under this section to the Foreign 
     Intelligence Surveillance Court of Review, which shall have 
     jurisdiction to review such order. For any decision 
     affirming, reversing, or modifying an order of the Foreign 
     Intelligence Surveillance Court, the Court of Review shall 
     provide for the record a written statement of its reasons.
       ``(B) Continuation of acquisition pending rehearing or 
     appeal.--Any acquisitions affected by an order under 
     paragraph (5)(B) may continue--
       ``(i) during the pendency of any rehearing of the order by 
     the Court en banc; and
       ``(ii) if the Government appeals an order under this 
     section, until the Court of Review enters an order under 
     subparagraph (C).
       ``(C) Implementation pending appeal.--Not later than 60 
     days after the filing of an appeal of an order under 
     paragraph (5)(B) directing the correction of a deficiency, 
     the Court of Review shall determine, and enter a 
     corresponding order regarding, whether all or any part of the 
     correction order, as issued or modified, shall be implemented 
     during the pendency of the appeal.
       ``(D) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of a 
     decision of the Court of Review issued under subparagraph 
     (A). The record for such review shall be transmitted under 
     seal to the Supreme Court of the United States, which shall 
     have jurisdiction to review such decision.
       ``(i) Expedited Judicial Proceedings.--Judicial proceedings 
     under this section shall be conducted as expeditiously as 
     possible.
       ``(j) Maintenance and Security of Records and 
     Proceedings.--
       ``(1) Standards.--A record of a proceeding under this 
     section, including petitions filed, orders granted, and 
     statements of reasons for decision, shall be maintained under 
     security measures adopted by the Chief Justice of the United 
     States, in consultation with the Attorney General and the 
     Director of National Intelligence.
       ``(2) Filing and review.--All petitions under this section 
     shall be filed under seal. In any proceedings under this 
     section, the court shall, upon request of the Government, 
     review ex parte and in camera any Government submission, or 
     portions of a submission, which may include classified 
     information.
       ``(3) Retention of records.--A directive made or an order 
     granted under this section shall be retained for a period of 
     not less than 10 years from the date on which such directive 
     or such order is made.
       ``(k) Assessments and Reviews.--
       ``(1) Semiannual assessment.--Not less frequently than once 
     every 6 months, the Attorney

[[Page 1924]]

     General and Director of National Intelligence shall assess 
     compliance with the targeting and minimization procedures 
     required by subsections (e) and (f) and shall submit each 
     such assessment to--
       ``(A) the Foreign Intelligence Surveillance Court; and
       ``(B) the congressional intelligence committees.
       ``(2) Agency assessment.--The Inspectors General of the 
     Department of Justice and of any element of the intelligence 
     community authorized to acquire foreign intelligence 
     information under subsection (a) with respect to their 
     department, agency, or element--
       ``(A) are authorized to review the compliance with the 
     targeting and minimization procedures required by subsections 
     (d) and (e);
       ``(B) with respect to acquisitions authorized under 
     subsection (a), shall review the number of disseminated 
     intelligence reports containing a reference to a United 
     States person identity and the number of United States person 
     identities subsequently disseminated by the element concerned 
     in response to requests for identities that were not referred 
     to by name or title in the original reporting;
       ``(C) with respect to acquisitions authorized under 
     subsection (a), shall review the number of targets that were 
     later determined to be located in the United States and, to 
     the extent possible, whether their communications were 
     reviewed; and
       ``(D) shall provide each such review to--
       ``(i) the Attorney General;
       ``(ii) the Director of National Intelligence; and
       ``(iii) the congressional intelligence committees.
       ``(3) Annual review.--
       ``(A) Requirement to conduct.--The head of an element of 
     the intelligence community conducting an acquisition 
     authorized under subsection (a) shall direct the element to 
     conduct an annual review to determine whether there is reason 
     to believe that foreign intelligence information has been or 
     will be obtained from the acquisition. The annual review 
     shall provide, with respect to such acquisitions authorized 
     under subsection (a)--
       ``(i) an accounting of the number of disseminated 
     intelligence reports containing a reference to a United 
     States person identity;
       ``(ii) an accounting of the number of United States person 
     identities subsequently disseminated by that element in 
     response to requests for identities that were not referred to 
     by name or title in the original reporting;
       ``(iii) the number of targets that were later determined to 
     be located in the United States and, to the extent possible, 
     whether their communications were reviewed; and
       ``(iv) a description of any procedures developed by the 
     head of an element of the intelligence community and approved 
     by the Director of National Intelligence to assess, in a 
     manner consistent with national security, operational 
     requirements and the privacy interests of United States 
     persons, the extent to which the acquisitions authorized 
     under subsection (a) acquire the communications of United 
     States persons, as well as the results of any such 
     assessment.
       ``(B) Use of review.--The head of each element of the 
     intelligence community that conducts an annual review under 
     subparagraph (A) shall use each such review to evaluate the 
     adequacy of the minimization procedures utilized by such 
     element or the application of the minimization procedures to 
     a particular acquisition authorized under subsection (a).
       ``(C) Provision of review.--The head of each element of the 
     intelligence community that conducts an annual review under 
     subparagraph (A) shall provide such review to--
       ``(i) the Foreign Intelligence Surveillance Court;
       ``(ii) the Attorney General;
       ``(iii) the Director of National Intelligence; and
       ``(iv) the congressional intelligence committees.

     ``SEC. 704. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES OF 
                   UNITED STATES PERSONS OUTSIDE THE UNITED 
                   STATES.

       ``(a) Jurisdiction of the Foreign Intelligence Surveillance 
     Court.--
       ``(1) In general.--The Foreign Intelligence Surveillance 
     Court shall have jurisdiction to enter an order approving the 
     targeting of a United States person reasonably believed to be 
     located outside the United States to acquire foreign 
     intelligence information, if such acquisition constitutes 
     electronic surveillance (as defined in section 101(f), 
     regardless of the limitation of section 701) or the 
     acquisition of stored electronic communications or stored 
     electronic data that requires an order under this Act, and 
     such acquisition is conducted within the United States.
       ``(2) Limitation.--In the event that a United States person 
     targeted under this subsection is reasonably believed to be 
     located in the United States during the pendency of an order 
     issued pursuant to subsection (c), such acquisition shall 
     cease until authority, other than under this section, is 
     obtained pursuant to this Act or the targeted United States 
     person is again reasonably believed to be located outside the 
     United States during the pendency of an order issued pursuant 
     to subsection (c).
       ``(b) Application.--
       ``(1) In general.--Each application for an order under this 
     section shall be made by a Federal officer in writing upon 
     oath or affirmation to a judge having jurisdiction under 
     subsection (a)(1). Each application shall require the 
     approval of the Attorney General based upon the Attorney 
     General's finding that it satisfies the criteria and 
     requirements of such application, as set forth in this 
     section, and shall include--
       ``(A) the identity of the Federal officer making the 
     application;
       ``(B) the identity, if known, or a description of the 
     United States person who is the target of the acquisition;
       ``(C) a statement of the facts and circumstances relied 
     upon to justify the applicant's belief that the United States 
     person who is the target of the acquisition is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and
       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(D) a statement of the proposed minimization procedures 
     that meet the definition of minimization procedures under 
     section 101(h) or section 301(4);
       ``(E) a description of the nature of the information sought 
     and the type of communications or activities to be subjected 
     to acquisition;
       ``(F) a certification made by the Attorney General or an 
     official specified in section 104(a)(6) that--
       ``(i) the certifying official deems the information sought 
     to be foreign intelligence information;
       ``(ii) a significant purpose of the acquisition is to 
     obtain foreign intelligence information;
       ``(iii) such information cannot reasonably be obtained by 
     normal investigative techniques;
       ``(iv) designates the type of foreign intelligence 
     information being sought according to the categories 
     described in section 101(e); and
       ``(v) includes a statement of the basis for the 
     certification that--

       ``(I) the information sought is the type of foreign 
     intelligence information designated; and

       ``(II) such information cannot reasonably be obtained by 
     normal investigative techniques;

       ``(G) a summary statement of the means by which the 
     acquisition will be conducted and whether physical entry is 
     required to effect the acquisition;
       ``(H) the identity of any electronic communication service 
     provider necessary to effect the acquisition, provided, 
     however, that the application is not required to identify the 
     specific facilities, places, premises, or property at which 
     the acquisition authorized under this section will be 
     directed or conducted;
       ``(I) a statement of the facts concerning any previous 
     applications that have been made to any judge of the Foreign 
     Intelligence Surveillance Court involving the United States 
     person specified in the application and the action taken on 
     each previous application; and
       ``(J) a statement of the period of time for which the 
     acquisition is required to be maintained, provided that such 
     period of time shall not exceed 90 days per application.
       ``(2) Other requirements of the attorney general.--The 
     Attorney General may require any other affidavit or 
     certification from any other officer in connection with the 
     application.
       ``(3) Other requirements of the judge.--The judge may 
     require the applicant to furnish such other information as 
     may be necessary to make the findings required by subsection 
     (c)(1).
       ``(c) Order.--
       ``(1) Findings.--Upon an application made pursuant to 
     subsection (b), the Foreign Intelligence Surveillance Court 
     shall enter an ex parte order as requested or as modified 
     approving the acquisition if the Court finds that--
       ``(A) the application has been made by a Federal officer 
     and approved by the Attorney General;
       ``(B) on the basis of the facts submitted by the applicant, 
     for the United States person who is the target of the 
     acquisition, there is probable cause to believe that the 
     target is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and
       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(C) the proposed minimization procedures meet the 
     definition of minimization procedures under section 101(h) or 
     section 301(4); and
       ``(D) the application which has been filed contains all 
     statements and certifications required by subsection (b) and 
     the certification or certifications are not clearly erroneous 
     on the basis of the statement made under subsection 
     (b)(1)(F)(v) and any other information furnished under 
     subsection (b)(3).
       ``(2) Probable cause.--In determining whether or not 
     probable cause exists for purposes of an order under 
     paragraph (1), a judge having jurisdiction under subsection 
     (a)(1) may consider past activities of the target, as well as 
     facts and circumstances relating to current or future 
     activities of the target. However, no United States person 
     may be considered a foreign power, agent of a foreign power, 
     or officer or employee of a foreign power solely upon the 
     basis of activities protected by the first amendment to the 
     Constitution of the United States.
       ``(3) Review.--
       ``(A) Limitation on review.--Review by a judge having 
     jurisdiction under subsection (a)(1) shall be limited to that 
     required to make the findings described in paragraph (1).
       ``(B) Review of probable cause.--If the judge determines 
     that the facts submitted under subsection (b) are 
     insufficient to establish probable cause to issue an order 
     under paragraph (1), the judge shall enter an order so 
     stating and provide a written statement for the record of the 
     reasons for such determination. The Government may appeal an 
     order under this clause pursuant to subsection (f).
       ``(C) Review of minimization procedures.--If the judge 
     determines that the proposed minimization procedures required 
     under paragraph

[[Page 1925]]

     (1)(C) do not meet the definition of minimization procedures 
     under section 101(h) or section 301(4), the judge shall enter 
     an order so stating and provide a written statement for the 
     record of the reasons for such determination. The Government 
     may appeal an order under this clause pursuant to subsection 
     (f).
       ``(D) Review of certification.--If the judge determines 
     that an application required by subsection (b) does not 
     contain all of the required elements, or that the 
     certification or certifications are clearly erroneous on the 
     basis of the statement made under subsection (b)(1)(F)(v) and 
     any other information furnished under subsection (b)(3), the 
     judge shall enter an order so stating and provide a written 
     statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (f).
       ``(4) Specifications.--An order approving an acquisition 
     under this subsection shall specify--
       ``(A) the identity, if known, or a description of the 
     United States person who is the target of the acquisition 
     identified or described in the application pursuant to 
     subsection (b)(1)(B);
       ``(B) if provided in the application pursuant to subsection 
     (b)(1)(H), the nature and location of each of the facilities 
     or places at which the acquisition will be directed;
       ``(C) the nature of the information sought to be acquired 
     and the type of communications or activities to be subjected 
     to acquisition;
       ``(D) the means by which the acquisition will be conducted 
     and whether physical entry is required to effect the 
     acquisition; and
       ``(E) the period of time during which the acquisition is 
     approved.
       ``(5) Directions.--An order approving acquisitions under 
     this subsection shall direct--
       ``(A) that the minimization procedures be followed;
       ``(B) an electronic communication service provider to 
     provide to the Government forthwith all information, 
     facilities, or assistance necessary to accomplish the 
     acquisition authorized under this subsection in a manner that 
     will protect the secrecy of the acquisition and produce a 
     minimum of interference with the services that such 
     electronic communication service provider is providing to the 
     target;
       ``(C) an electronic communication service provider to 
     maintain under security procedures approved by the Attorney 
     General any records concerning the acquisition or the aid 
     furnished that such electronic communication service provider 
     wishes to maintain; and
       ``(D) that the Government compensate, at the prevailing 
     rate, such electronic communication service provider for 
     providing such information, facilities, or assistance.
       ``(6) Duration.--An order approved under this paragraph 
     shall be effective for a period not to exceed 90 days and 
     such order may be renewed for additional 90-day periods upon 
     submission of renewal applications meeting the requirements 
     of subsection (b).
       ``(7) Compliance.--At or prior to the end of the period of 
     time for which an acquisition is approved by an order or 
     extension under this section, the judge may assess compliance 
     with the minimization procedures by reviewing the 
     circumstances under which information concerning United 
     States persons was acquired, retained, or disseminated.
       ``(d) Emergency Authorization.--
       ``(1) Authority for emergency authorization.--
     Notwithstanding any other provision of this Act, if the 
     Attorney General reasonably determines that--
       ``(A) an emergency situation exists with respect to the 
     acquisition of foreign intelligence information for which an 
     order may be obtained under subsection (c) before an order 
     authorizing such acquisition can with due diligence be 
     obtained, and
       ``(B) the factual basis for issuance of an order under this 
     subsection to approve such acquisition exists,

     the Attorney General may authorize the emergency acquisition 
     if a judge having jurisdiction under subsection (a)(1) is 
     informed by the Attorney General, or a designee of the 
     Attorney General, at the time of such authorization that the 
     decision has been made to conduct such acquisition and if an 
     application in accordance with this subsection is made to a 
     judge of the Foreign Intelligence Surveillance Court as soon 
     as practicable, but not more than 7 days after the Attorney 
     General authorizes such acquisition.
       ``(2) Minimization procedures.--If the Attorney General 
     authorizes such emergency acquisition, the Attorney General 
     shall require that the minimization procedures required by 
     this section for the issuance of a judicial order be 
     followed.
       ``(3) Termination of emergency authorization.--In the 
     absence of a judicial order approving such acquisition, the 
     acquisition shall terminate when the information sought is 
     obtained, when the application for the order is denied, or 
     after the expiration of 7 days from the time of authorization 
     by the Attorney General, whichever is earliest.
       ``(4) Use of information.--In the event that such 
     application for approval is denied, or in any other case 
     where the acquisition is terminated and no order is issued 
     approving the acquisition, no information obtained or 
     evidence derived from such acquisition, except under 
     circumstances in which the target of the acquisition is 
     determined not to be a United States person during the 
     pendency of the 7-day emergency acquisition period, 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.
       ``(e) Release From Liability.--Notwithstanding any other 
     law, no cause of action shall lie in any court against any 
     electronic communication service provider for providing any 
     information, facilities, or assistance in accordance with an 
     order or request for emergency assistance issued pursuant to 
     subsections (c) or (d).
       ``(f) Appeal.--
       ``(1) Appeal to the foreign intelligence surveillance court 
     of review.--The Government may file an appeal with the 
     Foreign Intelligence Surveillance Court of Review for review 
     of an order issued pursuant to subsection (c). The Court of 
     Review shall have jurisdiction to consider such appeal and 
     shall provide a written statement for the record of the 
     reasons for a decision under this paragraph.
       ``(2) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of the 
     decision of the Court of Review issued under paragraph (1). 
     The record for such review shall be transmitted under seal to 
     the Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.

     ``SEC. 705. OTHER ACQUISITIONS TARGETING UNITED STATES 
                   PERSONS OUTSIDE THE UNITED STATES.

       ``(a) Jurisdiction and Scope.--
       ``(1) Jurisdiction.--The Foreign Intelligence Surveillance 
     Court shall have jurisdiction to enter an order pursuant to 
     subsection (c).
       ``(2) Scope.--No element of the intelligence community may 
     intentionally target, for the purpose of acquiring foreign 
     intelligence information, a United States person reasonably 
     believed to be located outside the United States under 
     circumstances in which the targeted United States person has 
     a reasonable expectation of privacy and a warrant would be 
     required if the acquisition were conducted inside the United 
     States for law enforcement purposes, unless a judge of the 
     Foreign Intelligence Surveillance Court has entered an order 
     or the Attorney General has authorized an emergency 
     acquisition pursuant to subsections (c) or (d) or any other 
     provision of this Act.
       ``(3) Limitations.--
       ``(A) Moving or misidentified targets.--In the event that 
     the targeted United States person is reasonably believed to 
     be in the United States during the pendency of an order 
     issued pursuant to subsection (c), such acquisition shall 
     cease until authority is obtained pursuant to this Act or the 
     targeted United States person is again reasonably believed to 
     be located outside the United States during the pendency of 
     an order issued pursuant to subsection (c).
       ``(B) Applicability.--If the acquisition is to be conducted 
     inside the United States and could be authorized under 
     section 704, the procedures of section 704 shall apply, 
     unless an order or emergency acquisition authority has been 
     obtained under a provision of this Act other than under this 
     section.
       ``(b) Application.--Each application for an order under 
     this section shall be made by a Federal officer in writing 
     upon oath or affirmation to a judge having jurisdiction under 
     subsection (a)(1). Each application shall require the 
     approval of the Attorney General based upon the Attorney 
     General's finding that it satisfies the criteria and 
     requirements of such application as set forth in this section 
     and shall include--
       ``(1) the identity, if known, or a description of the 
     specific United States person who is the target of the 
     acquisition;
       ``(2) a statement of the facts and circumstances relied 
     upon to justify the applicant's belief that the United States 
     person who is the target of the acquisition is--
       ``(A) a person reasonably believed to be located outside 
     the United States; and
       ``(B) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(3) a statement of the proposed minimization procedures 
     that meet the definition of minimization procedures under 
     section 101(h) or section 301(4);
       ``(4) a certification made by the Attorney General, an 
     official specified in section 104(a)(6), or the head of an 
     element of the intelligence community that--
       ``(A) the certifying official deems the information sought 
     to be foreign intelligence information; and
       ``(B) a significant purpose of the acquisition is to obtain 
     foreign intelligence information;
       ``(5) a statement of the facts concerning any previous 
     applications that have been made to any judge of the Foreign 
     Intelligence Surveillance Court involving the United States 
     person specified in the application and the action taken on 
     each previous application; and
       ``(6) a statement of the period of time for which the 
     acquisition is required to be maintained, provided that such 
     period of time shall not exceed 90 days per application.
       ``(c) Order.--
       ``(1) Findings.--If, upon an application made pursuant to 
     subsection (b), a judge having jurisdiction under subsection 
     (a) finds that--
       ``(A) on the basis of the facts submitted by the applicant, 
     for the United States person who is the target of the 
     acquisition, there is probable cause to believe that the 
     target is--
       ``(i) a person reasonably believed to be located outside 
     the United States; and

[[Page 1926]]

       ``(ii) a foreign power, an agent of a foreign power, or an 
     officer or employee of a foreign power;
       ``(B) the proposed minimization procedures, with respect to 
     their dissemination provisions, meet the definition of 
     minimization procedures under section 101(h) or section 
     301(4); and
       ``(C) the application which has been filed contains all 
     statements and certifications required by subsection (b) and 
     the certification provided under subsection (b)(4) is not 
     clearly erroneous on the basis of the information furnished 
     under subsection (b),

     the Court shall issue an ex parte order so stating.
       ``(2) Probable cause.--In determining whether or not 
     probable cause exists for purposes of an order under 
     paragraph (1)(A), a judge having jurisdiction under 
     subsection (a)(1) may consider past activities of the target, 
     as well as facts and circumstances relating to current or 
     future activities of the target. However, no United States 
     person may be considered a foreign power, agent of a foreign 
     power, or officer or employee of a foreign power solely upon 
     the basis of activities protected by the first amendment to 
     the Constitution of the United States.
       ``(3) Review.--
       ``(A) Limitations on review.--Review by a judge having 
     jurisdiction under subsection (a)(1) shall be limited to that 
     required to make the findings described in paragraph (1). The 
     judge shall not have jurisdiction to review the means by 
     which an acquisition under this section may be conducted.
       ``(B)  Review of probable cause.--If the judge determines 
     that the facts submitted under subsection (b) are 
     insufficient to establish probable cause to issue an order 
     under this subsection, the judge shall enter an order so 
     stating and provide a written statement for the record of the 
     reasons for such determination. The Government may appeal an 
     order under this clause pursuant to subsection (e).
       ``(C) Review of minimization procedures.--If the judge 
     determines that the minimization procedures applicable to 
     dissemination of information obtained through an acquisition 
     under this subsection do not meet the definition of 
     minimization procedures under section 101(h) or section 
     301(4), the judge shall enter an order so stating and provide 
     a written statement for the record of the reasons for such 
     determination. The Government may appeal an order under this 
     clause pursuant to subsection (e).
       ``(D) Scope of review of certification.--If the judge 
     determines that the certification provided under subsection 
     (b)(4) is clearly erroneous on the basis of the information 
     furnished under subsection (b), the judge shall enter an 
     order so stating and provide a written statement for the 
     record of the reasons for such determination. The Government 
     may appeal an order under this subparagraph pursuant to 
     subsection (e).
       ``(4) Duration.--An order under this paragraph shall be 
     effective for a period not to exceed 90 days and such order 
     may be renewed for additional 90-day periods upon submission 
     of renewal applications meeting the requirements of 
     subsection (b).
       ``(5) Compliance.--At or prior to the end of the period of 
     time for which an order or extension is granted under this 
     section, the judge may assess compliance with the 
     minimization procedures by reviewing the circumstances under 
     which information concerning United States persons was 
     disseminated, provided that the judge may not inquire into 
     the circumstances relating to the conduct of the acquisition.
       ``(d) Emergency Authorization.--
       ``(1) Authority for emergency authorization.--
     Notwithstanding any other provision in this subsection, if 
     the Attorney General reasonably determines that--
       ``(A) an emergency situation exists with respect to the 
     acquisition of foreign intelligence information for which an 
     order may be obtained under subsection (c) before an order 
     under that subsection may, with due diligence, be obtained, 
     and
       ``(B) the factual basis for issuance of an order under this 
     section exists,

     the Attorney General may authorize the emergency acquisition 
     if a judge having jurisdiction under subsection (a)(1) is 
     informed by the Attorney General or a designee of the 
     Attorney General at the time of such authorization that the 
     decision has been made to conduct such acquisition and if an 
     application in accordance with this subsection is made to a 
     judge of the Foreign Intelligence Surveillance Court as soon 
     as practicable, but not more than 7 days after the Attorney 
     General authorizes such acquisition.
       ``(2) Minimization procedures.--If the Attorney General 
     authorizes such emergency acquisition, the Attorney General 
     shall require that the minimization procedures required by 
     this section be followed.
       ``(3) Termination of emergency authorization.--In the 
     absence of an order under subsection (c), the acquisition 
     shall terminate when the information sought is obtained, if 
     the application for the order is denied, or after the 
     expiration of 7 days from the time of authorization by the 
     Attorney General, whichever is earliest.
       ``(4) Use of information.--In the event that such 
     application is denied, or in any other case where the 
     acquisition is terminated and no order is issued approving 
     the acquisition, no information obtained or evidence derived 
     from such acquisition, except under circumstances in which 
     the target of the acquisition is determined not to be a 
     United States person during the pendency of the 7-day 
     emergency acquisition period, 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.
       ``(e) Appeal.--
       ``(1) Appeal to the court of review.--The Government may 
     file an appeal with the Foreign Intelligence Surveillance 
     Court of Review for review of an order issued pursuant to 
     subsection (c). The Court of Review shall have jurisdiction 
     to consider such appeal and shall provide a written statement 
     for the record of the reasons for a decision under this 
     paragraph.
       ``(2) Certiorari to the supreme court.--The Government may 
     file a petition for a writ of certiorari for review of the 
     decision of the Court of Review issued under paragraph (1). 
     The record for such review shall be transmitted under seal to 
     the Supreme Court of the United States, which shall have 
     jurisdiction to review such decision.

     ``SEC. 706. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.

       ``(a) Joint Applications and Orders.--If an acquisition 
     targeting a United States person under section 704 or section 
     705 is proposed to be conducted both inside and outside the 
     United States, a judge having jurisdiction under section 
     704(a)(1) or section 705(a)(1) may issue simultaneously, upon 
     the request of the Government in a joint application 
     complying with the requirements of section 704(b) or section 
     705(b), orders under section 704(c) or section 705(c), as 
     applicable.
       ``(b) Concurrent Authorization.--If an order authorizing 
     electronic surveillance or physical search has been obtained 
     under section 105 or section 304 and that order is still in 
     effect, the Attorney General may authorize, without an order 
     under section 704 or section 705, an acquisition of foreign 
     intelligence information targeting that United States person 
     while such person is reasonably believed to be located 
     outside the United States.

     ``SEC. 707. USE OF INFORMATION ACQUIRED UNDER TITLE VII.

       ``(a) Information Acquired Under Section 703.--Information 
     acquired from an acquisition conducted under section 703 
     shall be deemed to be information acquired from an electronic 
     surveillance pursuant to title I for purposes of section 106, 
     except for the purposes of subsection (j) of such section.
       ``(b) Information Acquired Under Section 704.--Information 
     acquired from an acquisition conducted under section 704 
     shall be deemed to be information acquired from an electronic 
     surveillance pursuant to title I for purposes of section 106.

     ``SEC. 708. CONGRESSIONAL OVERSIGHT.

       ``(a) Semiannual Report.--Not less frequently than once 
     every 6 months, the Attorney General shall fully inform, in a 
     manner consistent with national security, the congressional 
     intelligence committees, the Committee on the Judiciary of 
     the Senate, and the Committee on the Judiciary of the House 
     of Representatives, concerning the implementation of this 
     title.
       ``(b) Content.--Each report made under subparagraph (a) 
     shall include--
       ``(1) with respect to section 703--
       ``(A) any certifications made under subsection 703(f) 
     during the reporting period;
       ``(B) any directives issued under subsection 703(g) during 
     the reporting period;
       ``(C) a description of the judicial review during the 
     reporting period of any such certifications and targeting and 
     minimization procedures utilized with respect to such 
     acquisition, including a copy of any order or pleading in 
     connection with such review that contains a significant legal 
     interpretation of the provisions of this section;
       ``(D) any actions taken to challenge or enforce a directive 
     under paragraphs (4) or (5) of section 703(g);
       ``(E) any compliance reviews conducted by the Department of 
     Justice or the Office of the Director of National 
     Intelligence of acquisitions authorized under subsection 
     703(a);
       ``(F) a description of any incidents of noncompliance with 
     a directive issued by the Attorney General and the Director 
     of National Intelligence under subsection 703(g), including--
       ``(i) incidents of noncompliance by an element of the 
     intelligence community with procedures adopted pursuant to 
     subsections (d) and (e) of section 703; and
       ``(ii) incidents of noncompliance by a specified person to 
     whom the Attorney General and Director of National 
     Intelligence issued a directive under subsection 703(g); and
       ``(G) any procedures implementing this section;
       ``(2) with respect to section 704--
       ``(A) the total number of applications made for orders 
     under section 704(b);
       ``(B) the total number of such orders either granted, 
     modified, or denied; and
       ``(C) the total number of emergency acquisitions authorized 
     by the Attorney General under section 704(d) and the total 
     number of subsequent orders approving or denying such 
     acquisitions; and
       ``(3) with respect to section 705--
       ``(A) the total number of applications made for orders 
     under 705(b);

[[Page 1927]]

       ``(B) the total number of such orders either granted, 
     modified, or denied; and
       ``(C) the total number of emergency acquisitions authorized 
     by the Attorney General under subsection 705(d) and the total 
     number of subsequent orders approving or denying such 
     applications.''.
       (b) Table of Contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et. seq.) is amended--
       (1) by striking the item relating to title VII;
       (2) by striking the item relating to section 701; and
       (3) by adding at the end the following:

 ``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE 
                           THE UNITED STATES

``Sec. 701. Limitation on definition of electronic surveillance.
``Sec. 702. Definitions.
``Sec. 703. Procedures for targeting certain persons outside the United 
              States other than United States persons.
``Sec. 704. Certain acquisitions inside the United States of United 
              States persons outside the United States.
``Sec. 705. Other acquisitions targeting United States persons outside 
              the United States.
``Sec. 706. Joint applications and concurrent authorizations.
``Sec. 707. Use of information acquired under title VII.
``Sec. 708. Congressional oversight.''.
       (c) Technical and Conforming Amendments.--
       (1) Title 18, united states code.--
       (A) Section 2232.--Section 2232(e) of title 18, United 
     States Code, is amended by inserting ``(as defined in section 
     101(f) of the Foreign Intelligence Surveillance Act of 1978, 
     regardless of the limitation of section 701 of that Act)'' 
     after ``electronic surveillance''.
       (B) Section 2511.--Section 2511(2)(a)(ii)(A) of title 18, 
     United States Code, is amended by inserting ``or a court 
     order pursuant to section 705 of the Foreign Intelligence 
     Surveillance Act of 1978'' after ``assistance''.
       (2) Foreign intelligence surveillance act of 1978.--
       (A) Section 109.--Section 109 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1809) is amended by 
     adding at the end the following:
       ``(e) Definition.--For the purpose of this section, the 
     term `electronic surveillance' means electronic surveillance 
     as defined in section 101(f) of this Act regardless of the 
     limitation of section 701 of this Act.''.
       (B) Section 110.--Section 110 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1810) is amended by--
       (i) adding an ``(a)'' before ``Civil Action'',
       (ii) redesignating subsections (a) through (c) as 
     paragraphs (1) through (3), respectively; and
       (iii) adding at the end the following:
       ``(b) Definition.--For the purpose of this section, the 
     term `electronic surveillance' means electronic surveillance 
     as defined in section 101(f) of this Act regardless of the 
     limitation of section 701 of this Act.''.
       (C) Section 601.--Section 601(a)(1) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1)) 
     is amended by striking subparagraphs (C) and (D) and 
     inserting the following:
       ``(C) pen registers under section 402;
       ``(D) access to records under section 501;
       ``(E) acquisitions under section 704; and
       ``(F) acquisitions under section 705;''.
       (d) Termination of Authority.--
       (1) In general.--Except as provided in paragraph (2), the 
     amendments made by subsections (a)(2), (b), and (c) shall 
     cease to have effect on December 31, 2013.
       (2) Continuing applicability.--Section 703(g)(3) of the 
     Foreign Intelligence Surveillance Act of 1978 (as amended by 
     subsection (a)) shall remain in effect with respect to any 
     directive issued pursuant to section 703(g) of that Act (as 
     so amended) for information, facilities, or assistance 
     provided during the period such directive was or is in 
     effect. Section 704(e) of the Foreign Intelligence 
     Surveillance Act of 1978 (as amended by subsection (a)) shall 
     remain in effect with respect to an order or request for 
     emergency assistance under that section. The use of 
     information acquired by an acquisition conducted under 
     section 703 of that Act (as so amended) shall continue to be 
     governed by the provisions of section 707 of that Act (as so 
     amended).

     SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC 
                   SURVEILLANCE AND INTERCEPTION OF DOMESTIC 
                   COMMUNICATIONS MAY BE CONDUCTED.

       (a) Statement of Exclusive Means.--Title I of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.) is amended by adding at the end the following new 
     section:


  ``statement of exclusive means by which electronic surveillance and 
        interception of domestic communications may be conducted

       ``Sec. 112.  The procedures of chapters 119, 121, and 206 
     of title 18, United States Code, and this Act shall be the 
     exclusive means by which electronic surveillance (as defined 
     in section 101(f), regardless of the limitation of section 
     701) and the interception of domestic wire, oral, or 
     electronic communications may be conducted.''.
       (b) Table of Contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.) is amended by adding after the item 
     relating to section 111, the following:

``Sec. 112. Statement of exclusive means by which electronic 
              surveillance and interception of domestic communications 
              may be conducted.''.
       (c) Conforming Amendments.--Section 2511(2) of title 18, 
     United States Code, is amended in paragraph (f), by striking 
     ``, as defined in section 101 of such Act,'' and inserting 
     ``(as defined in section 101(f) of such Act regardless of the 
     limitation of section 701 of such Act)''.

     SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER 
                   THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF 
                   1978.

       (a) Inclusion of Certain Orders in Semiannual Reports of 
     Attorney General.--Subsection (a)(5) of section 601 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1871) is amended by striking ``(not including orders)'' and 
     inserting ``, orders,''.
       (b) Reports by Attorney General on Certain Other Orders.--
     Such section 601 is further amended by adding at the end the 
     following:
       ``(c) Submissions to Congress.--The Attorney General shall 
     submit to the committees of Congress referred to in 
     subsection (a)--
       ``(1) a copy of any decision, order, or opinion issued by 
     the Foreign Intelligence Surveillance Court or the Foreign 
     Intelligence Surveillance Court of Review that includes 
     significant construction or interpretation of any provision 
     of this Act, and any pleadings, applications, or memoranda of 
     law associated with such decision, order, or opinion, not 
     later than 45 days after such decision, order, or opinion is 
     issued; and
       ``(2) a copy of any such decision, order, or opinion, and 
     any pleadings, applications, or memoranda of law associated 
     with such decision, order, or opinion, that was issued during 
     the 5-year period ending on the date of the enactment of the 
     FISA Amendments Act of 2008 and not previously submitted in a 
     report under subsection (a).
       ``(d) Protection of National Security.--The Attorney 
     General, in consultation with the Director of National 
     Intelligence, may authorize redactions of materials described 
     in subsection (c) that are provided to the committees of 
     Congress referred to in subsection (a), if such redactions 
     are necessary to protect the national security of the United 
     States and are limited to sensitive sources and methods 
     information or the identities of targets.''.
       (c) Definitions.--Such section 601, as amended by 
     subsections (a) and (b), is further amended by adding at the 
     end the following:
       ``(e) Definitions.--In this section:
       ``(1) Foreign intelligence surveillance court; court.--The 
     term `` `Foreign Intelligence Surveillance Court' '' means 
     the court established by section 103(a).
       ``(2) Foreign intelligence surveillance court of review; 
     court of review.--The term `Foreign Intelligence Surveillance 
     Court of Review' means the court established by section 
     103(b).''.

     SEC. 104. APPLICATIONS FOR COURT ORDERS.

       Section 104 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1804) is amended--
       (1) in subsection (a)--
       (A) by striking paragraphs (2) and (11);
       (B) by redesignating paragraphs (3) through (10) as 
     paragraphs (2) through (9), respectively;
       (C) in paragraph (5), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``detailed'';
       (D) in paragraph (6), as redesignated by subparagraph (B) 
     of this paragraph, in the matter preceding subparagraph (A)--
       (i) by striking ``Affairs or'' and inserting ``Affairs,''; 
     and
       (ii) by striking ``Senate--'' and inserting ``Senate, or 
     the Deputy Director of the Federal Bureau of Investigation, 
     if designated by the President as a certifying official--'';
       (E) in paragraph (7), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``statement of'' and inserting 
     ``summary statement of'';
       (F) in paragraph (8), as redesignated by subparagraph (B) 
     of this paragraph, by adding ``and'' at the end; and
       (G) in paragraph (9), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``; and'' and inserting a 
     period;
       (2) by striking subsection (b);
       (3) by redesignating subsections (c) through (e) as 
     subsections (b) through (d), respectively; and
       (4) in paragraph (1)(A) of subsection (d), as redesignated 
     by paragraph (3) of this subsection, by striking ``or the 
     Director of National Intelligence'' and inserting ``the 
     Director of National Intelligence, or the Director of the 
     Central Intelligence Agency''.

     SEC. 105. ISSUANCE OF AN ORDER.

       Section 105 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1805) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (1); and
       (B) by redesignating paragraphs (2) through (5) as 
     paragraphs (1) through (4), respectively;
       (2) in subsection (b), by striking ``(a)(3)'' and inserting 
     ``(a)(2)'';
       (3) in subsection (c)(1)--
       (A) in subparagraph (D), by adding ``and'' at the end;
       (B) in subparagraph (E), by striking ``; and'' and 
     inserting a period; and
       (C) by striking subparagraph (F);
       (4) by striking subsection (d);
       (5) by redesignating subsections (e) through (i) as 
     subsections (d) through (h), respectively;

[[Page 1928]]

       (6) by amending subsection (e), as redesignated by 
     paragraph (5) of this section, to read as follows:
       ``(e)(1) Notwithstanding any other provision of this title, 
     the Attorney General may authorize the emergency employment 
     of electronic surveillance if the Attorney General--
       ``(A) reasonably determines that an emergency situation 
     exists with respect to the employment of electronic 
     surveillance to obtain foreign intelligence information 
     before an order authorizing such surveillance can with due 
     diligence be obtained;
       ``(B) resonably determines that the factual basis for 
     issuance of an order under this title to approve such 
     electronic surveillance exists;
       ``(C) informs, either personally or through a designee, a 
     judge having jurisdiction under section 103 at the time of 
     such authorization that the decision has been made to employ 
     emergency electronic surveillance; and
       ``(D) makes an application in accordance with this title to 
     a judge having jurisdiction under section 103 as soon as 
     practicable, but not later than 7 days after the Attorney 
     General authorizes such surveillance.
       ``(2) If the Attorney General authorizes the emergency 
     employment of electronic surveillance under paragraph (1), 
     the Attorney General shall require that the minimization 
     procedures required by this title for the issuance of a 
     judicial order be followed.
       ``(3) In the absence of a judicial order approving such 
     electronic surveillance, the surveillance shall terminate 
     when the information sought is obtained, when the application 
     for the order is denied, or after the expiration of 7 days 
     from the time of authorization by the Attorney General, 
     whichever is earliest.
       ``(4) A denial of the application made under this 
     subsection may be reviewed as provided in section 103.
       ``(5) In the event that such application for approval is 
     denied, or in any other case where the electronic 
     surveillance is terminated and no order is issued approving 
     the surveillance, no information obtained or evidence derived 
     from such surveillance 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 surveillance 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.
       ``(6) The Attorney General shall assess compliance with the 
     requirements of paragraph (5).''; and
       (7) by adding at the end the following:
       ``(i) In any case in which the Government makes an 
     application to a judge under this title to conduct electronic 
     surveillance involving communications and the judge grants 
     such application, upon the request of the applicant, the 
     judge shall also authorize the installation and use of pen 
     registers and trap and trace devices, and direct the 
     disclosure of the information set forth in section 
     402(d)(2).''.

     SEC. 106. USE OF INFORMATION.

       Subsection (i) of section 106 of the Foreign Intelligence 
     Surveillance Act of 1978 (8 U.S.C. 1806) is amended by 
     striking ``radio communication'' and inserting 
     ``communication''.

     SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.

       (a) Applications.--Section 303 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (2);
       (B) by redesignating paragraphs (3) through (9) as 
     paragraphs (2) through (8), respectively;
       (C) in paragraph (2), as redesignated by subparagraph (B) 
     of this paragraph, by striking ``detailed'';
       (D) in paragraph (3)(C), as redesignated by subparagraph 
     (B) of this paragraph, by inserting ``or is about to be'' 
     before ``owned''; and
       (E) in paragraph (6), as redesignated by subparagraph (B) 
     of this paragraph, in the matter preceding subparagraph (A)--
       (i) by striking ``Affairs or'' and inserting ``Affairs,''; 
     and
       (ii) by striking ``Senate--'' and inserting ``Senate, or 
     the Deputy Director of the Federal Bureau of Investigation, 
     if designated by the President as a certifying official--''; 
     and
       (2) in subsection (d)(1)(A), by striking ``or the Director 
     of National Intelligence'' and inserting ``the Director of 
     National Intelligence, or the Director of the Central 
     Intelligence Agency''.
       (b) Orders.--Section 304 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
       (1) in subsection (a)--
       (A) by striking paragraph (1); and
       (B) by redesignating paragraphs (2) through (5) as 
     paragraphs (1) through (4), respectively; and
       (2) by amending subsection (e) to read as follows:
       ``(e)(1) Notwithstanding any other provision of this title, 
     the Attorney General may authorize the emergency employment 
     of a physical search if the Attorney General reasonably--
       ``(A) determines that an emergency situation exists with 
     respect to the employment of a physical search to obtain 
     foreign intelligence information before an order authorizing 
     such physical search can with due diligence be obtained;
       ``(B) determines that the factual basis for issuance of an 
     order under this title to approve such physical search 
     exists;
       ``(C) informs, either personally or through a designee, a 
     judge of the Foreign Intelligence Surveillance Court at the 
     time of such authorization that the decision has been made to 
     employ an emergency physical search; and
       ``(D) makes an application in accordance with this title to 
     a judge of the Foreign Intelligence Surveillance Court as 
     soon as practicable, but not more than 7 days after the 
     Attorney General authorizes such physical search.
       ``(2) If the Attorney General authorizes the emergency 
     employment of a physical search under paragraph (1), the 
     Attorney General shall require that the minimization 
     procedures required by this title for the issuance of a 
     judicial order be followed.
       ``(3) In the absence of a judicial order approving such 
     physical search, the physical search shall terminate when the 
     information sought is obtained, when the application for the 
     order is denied, or after the expiration of 7 days from the 
     time of authorization by the Attorney General, whichever is 
     earliest.
       ``(4) A denial of the application made under this 
     subsection may be reviewed as provided in section 103.
       ``(5)(A) In the event that such application for approval is 
     denied, or in any other case where the physical search is 
     terminated and no order is issued approving the physical 
     search, no information obtained or evidence derived from such 
     physical search 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 physical search 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.
       ``(B) The Attorney General shall assess compliance with the 
     requirements of subparagraph (A).''.
       (c) Conforming Amendments.--The Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is 
     amended--
       (1) in section 304(a)(4), as redesignated by subsection (b) 
     of this section, by striking ``303(a)(7)(E)'' and inserting 
     ``303(a)(6)(E)''; and
       (2) in section 305(k)(2), by striking ``303(a)(7)'' and 
     inserting ``303(a)(6)''.

     SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND 
                   TRACE DEVICES.

       Section 403 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1843) is amended--
       (1) in subsection (a)(2), by striking ``48 hours'' and 
     inserting ``7 days''; and
       (2) in subsection (c)(1)(C), by striking ``48 hours'' and 
     inserting ``7 days''.

     SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.

       (a) Designation of Judges.--Subsection (a) of section 103 
     of the Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1803) is amended by inserting ``at least'' before 
     ``seven of the United States judicial circuits''.
       (b) En Banc Authority.--
       (1) In general.--Subsection (a) of section 103 of the 
     Foreign Intelligence Surveillance Act of 1978, as amended by 
     subsection (a) of this section, is further amended--
       (A) by inserting ``(1)'' after ``(a)''; and
       (B) by adding at the end the following new paragraph:
       ``(2)(A) The court established under this subsection may, 
     on its own initiative, or upon the request of the Government 
     in any proceeding or a party under section 501(f) or 
     paragraph (4) or (5) of section 703(h), hold a hearing or 
     rehearing, en banc, when ordered by a majority of the judges 
     that constitute such court upon a determination that--
       ``(i) en banc consideration is necessary to secure or 
     maintain uniformity of the court's decisions; or
       ``(ii) the proceeding involves a question of exceptional 
     importance.
       ``(B) Any authority granted by this Act to a judge of the 
     court established under this subsection may be exercised by 
     the court en banc. When exercising such authority, the court 
     en banc shall comply with any requirements of this Act on the 
     exercise of such authority.
       ``(C) For purposes of this paragraph, the court en banc 
     shall consist of all judges who constitute the court 
     established under this subsection.''.
       (2) Conforming amendments.--The Foreign Intelligence 
     Surveillance Act of 1978 is further amended--
       (A) in subsection (a) of section 103, as amended by this 
     subsection, by inserting ``(except when sitting en banc under 
     paragraph (2))'' after ``no judge designated under this 
     subsection''; and
       (B) in section 302(c) (50 U.S.C. 1822(c)), by inserting 
     ``(except when sitting en banc)'' after ``except that no 
     judge''.
       (c) Stay or Modification During an Appeal.--Section 103 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1803) is amended--
       (1) by redesignating subsection (f) as subsection (g); and
       (2) by inserting after subsection (e) the following new 
     subsection:
       ``(f)(1) A judge of the court established under subsection 
     (a), the court established under subsection (b) or a judge of 
     that court, or the Supreme Court of the United States or a 
     justice of

[[Page 1929]]

     that court, may, in accordance with the rules of their 
     respective courts, enter a stay of an order or an order 
     modifying an order of the court established under subsection 
     (a) or the court established under subsection (b) entered 
     under any title of this Act, while the court established 
     under subsection (a) conducts a rehearing, while an appeal is 
     pending to the court established under subsection (b), or 
     while a petition of certiorari is pending in the Supreme 
     Court of the United States, or during the pendency of any 
     review by that court.
       ``(2) The authority described in paragraph (1) shall apply 
     to an order entered under any provision of this Act.''.
       (d) Authority of Foreign Intelligence Surveillance Court.--
     Section 103 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1803), as amended by this Act, is amended by 
     adding at the end the following:
       ``(h)(1) Nothing in this Act shall be considered to reduce 
     or contravene the inherent authority of the Foreign 
     Intelligence Surveillance Court to determine, or enforce, 
     compliance with an order or a rule of such Court or with a 
     procedure approved by such Court.
       ``(2) In this subsection, the terms `Foreign Intelligence 
     Surveillance Court' and `Court' mean the court established by 
     subsection (a).''.

     SEC. 110. WEAPONS OF MASS DESTRUCTION.

       (a) Definitions.--
       (1) Foreign power.--Subsection (a)(4) of section 101 of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801(a)(4)) is amended by inserting ``, the international 
     proliferation of weapons of mass destruction,'' after 
     ``international terrorism''.
       (2) Agent of a foreign power.--Subsection (b)(1) of such 
     section 101 is amended--
       (A) in subparagraph (B), by striking ``or'' at the end
       (B) in subparagraph (C), by striking ``or'' at the end; and
       (C) by adding at the end the following new subparagraphs:
       ``(D) engages in the international proliferation of weapons 
     of mass destruction, or activities in preparation therefor; 
     or
       ``(E) engages in the international proliferation of weapons 
     of mass destruction, or activities in preparation therefor, 
     for or on behalf of a foreign power; or''.
       (3) Foreign intelligence information.--Subsection (e)(1)(B) 
     of such section 101 is amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (4) Weapon of mass destruction.--Such section 101 is 
     amended by inserting after subsection (o) the following:
       ``(p) `Weapon of mass destruction' means--
       ``(1) any destructive device described in section 
     921(a)(4)(A) of title 18, United States Code, that is 
     intended or has the capability to cause death or serious 
     bodily injury to a significant number of people;
       ``(2) any weapon that is designed or intended to cause 
     death or serious bodily injury through the release, 
     dissemination, or impact of toxic or poisonous chemicals or 
     their precursors;
       ``(3) any weapon involving a biological agent, toxin, or 
     vector (as such terms are defined in section 178 of title 18, 
     United States Code); or
       ``(4) any weapon that is designed to release radiation or 
     radioactivity at a level dangerous to human life.''.
       (b) Use of Information.--
       (1) In general.--Section 106(k)(1)(B) of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1806(k)(1)(B)) is amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (2) Physical searches.--Section 305(k)(1)(B) of such Act 
     (50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage 
     or international terrorism'' and inserting ``sabotage, 
     international terrorism, or the international proliferation 
     of weapons of mass destruction''.
       (c) Technical and Conforming Amendment.--Section 301(1) of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1821(1)) is amended by inserting `` `weapon of mass 
     destruction','' after `` `person',''.

     SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.

       Section 103(e) of the Foreign Intelligence Surveillance Act 
     of 1978 (50 U.S.C. 1803(e)) is amended--
       (1) in paragraph (1), by striking ``105B(h) or 501(f)(1)'' 
     and inserting ``501(f)(1) or 703''; and
       (2) in paragraph (2), by striking ``105B(h) or 501(f)(1)'' 
     and inserting ``501(f)(1) or 703''.

  TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

     SEC. 201. DEFINITIONS.

       In this title:
       (1) Assistance.--The term ``assistance'' means the 
     provision of, or the provision of access to, information 
     (including communication contents, communications records, or 
     other information relating to a customer or communication), 
     facilities, or another form of assistance.
       (2) Contents.--The term ``contents'' has the meaning given 
     that term in section 101(n) of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1801(n)).
       (3) Covered civil action.--The term ``covered civil 
     action'' means a civil action filed in a Federal or State 
     court that--
       (A) alleges that an electronic communication service 
     provider furnished assistance to an element of the 
     intelligence community; and
       (B) seeks monetary or other relief from the electronic 
     communication service provider related to the provision of 
     such assistance.
       (4) Electronic communication service provider.--The term 
     ``electronic communication service provider'' means--
       (A) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);
       (B) a provider of an electronic communication service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       (C) a provider of a remote computing service, as that term 
     is defined in section 2711 of title 18, United States Code;
       (D) any other communication service provider who has access 
     to wire or electronic communications either as such 
     communications are transmitted or as such communications are 
     stored;
       (E) a parent, subsidiary, affiliate, successor, or assignee 
     of an entity described in subparagraph (A), (B), (C), or (D); 
     or
       (F) an officer, employee, or agent of an entity described 
     in subparagraph (A), (B), (C), (D), or (E).
       (5) Element of the intelligence community.--The term 
     ``element of the intelligence community'' means an element of 
     the intelligence community specified in or designated under 
     section 3(4) of the National Security Act of 1947 (50 U.S.C. 
     401a(4)).

     SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC 
                   COMMUNICATION SERVICE PROVIDERS.

       (a) Limitations.--
       (1) In general.--Notwithstanding any other provision of 
     law, a covered civil action shall not lie or be maintained in 
     a Federal or State court, and shall be promptly dismissed, if 
     the Attorney General certifies to the court that--
       (A) the assistance alleged to have been provided by the 
     electronic communication service provider was--
       (i) in connection with an intelligence activity involving 
     communications that was--

       (I) authorized by the President during the period beginning 
     on September 11, 2001, and ending on January 17, 2007; and
       (II) designed to detect or prevent a terrorist attack, or 
     activities in preparation for a terrorist attack, against the 
     United States; and

       (ii) described in a written request or directive from the 
     Attorney General or the head of an element of the 
     intelligence community (or the deputy of such person) to the 
     electronic communication service provider indicating that the 
     activity was--

       (I) authorized by the President; and
       (II) determined to be lawful; or

       (B) the electronic communication service provider did not 
     provide the alleged assistance.
       (2) Review.--A certification made pursuant to paragraph (1) 
     shall be subject to review by a court for abuse of 
     discretion.
       (b) Review of Certifications.--If the Attorney General 
     files a declaration under section 1746 of title 28, United 
     States Code, that disclosure of a certification made pursuant 
     to subsection (a) would harm the national security of the 
     United States, the court shall--
       (1) review such certification in camera and ex parte; and
       (2) limit any public disclosure concerning such 
     certification, including any public order following such an 
     ex parte review, to a statement that the conditions of 
     subsection (a) have been met, without disclosing the 
     subparagraph of subsection (a)(1) that is the basis for the 
     certification.
       (c) Nondelegation.--The authority and duties of the 
     Attorney General under this section shall be performed by the 
     Attorney General (or Acting Attorney General) or a designee 
     in a position not lower than the Deputy Attorney General.
       (d) Civil Actions in State Court.--A covered civil action 
     that is brought in a State court shall be deemed to arise 
     under the Constitution and laws of the United States and 
     shall be removable under section 1441 of title 28, United 
     States Code.
       (e) Rule of Construction.--Nothing in this section may be 
     construed to limit any otherwise available immunity, 
     privilege, or defense under any other provision of law.
       (f) Effective Date and Application.--This section shall 
     apply to any covered civil action that is pending on or filed 
     after the date of enactment of this Act.

     SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES 
                   UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT 
                   OF 1978.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.), as amended by section 101, is further 
     amended by adding after title VII the following new title:

      ``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

     ``SEC. 801. DEFINITIONS.

       ``In this title:
       ``(1) Assistance.--The term `assistance' means the 
     provision of, or the provision of access to, information 
     (including communication contents, communications records, or 
     other information relating to a customer or communication), 
     facilities, or another form of assistance.
       ``(2) Attorney general.--The term `Attorney General' has 
     the meaning give that term in section 101(g).
       ``(3) Contents.--The term `contents' has the meaning given 
     that term in section 101(n).
       ``(4) Electronic communication service provider.--The term 
     `electronic communication service provider' means--
       ``(A) a telecommunications carrier, as that term is defined 
     in section 3 of the Communications Act of 1934 (47 U.S.C. 
     153);

[[Page 1930]]

       ``(B) a provider of electronic communication service, as 
     that term is defined in section 2510 of title 18, United 
     States Code;
       ``(C) a provider of a remote computing service, as that 
     term is defined in section 2711 of title 18, United States 
     Code;
       ``(D) any other communication service provider who has 
     access to wire or electronic communications either as such 
     communications are transmitted or as such communications are 
     stored;
       ``(E) a parent, subsidiary, affiliate, successor, or 
     assignee of an entity described in subparagraph (A), (B), 
     (C), or (D); or
       ``(F) an officer, employee, or agent of an entity described 
     in subparagraph (A), (B), (C), (D), or (E).
       ``(5) Element of the intelligence community.--The term 
     `element of the intelligence community' means an element of 
     the intelligence community as specified or designated under 
     section 3(4) of the National Security Act of 1947 (50 U.S.C. 
     401a(4)).
       ``(6) Person.--The term `person' means--
       ``(A) an electronic communication service provider; or
       ``(B) a landlord, custodian, or other person who may be 
     authorized or required to furnish assistance pursuant to--
       ``(i) an order of the court established under section 
     103(a) directing such assistance;
       ``(ii) a certification in writing under section 
     2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code; 
     or
       ``(iii) a directive under section 102(a)(4), 105B(e), as in 
     effect on the day before the date of the enactment of the 
     FISA Amendments Act of 2008 or 703(h).
       ``(7) State.--The term `State' means any State, political 
     subdivision of a State, the Commonwealth of Puerto Rico, the 
     District of Columbia, and any territory or possession of the 
     United States, and includes any officer, public utility 
     commission, or other body authorized to regulate an 
     electronic communication service provider.

     ``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.

       ``(a) Requirement for Certification.--
       ``(1) In general.--Notwithstanding any other provision of 
     law, no civil action may lie or be maintained in a Federal or 
     State court against any person for providing assistance to an 
     element of the intelligence community, and shall be promptly 
     dismissed, if the Attorney General certifies to the court 
     that--
       ``(A) any assistance by that person was provided pursuant 
     to an order of the court established under section 103(a) 
     directing such assistance;
       ``(B) any assistance by that person was provided pursuant 
     to a certification in writing under section 2511(2)(a)(ii)(B) 
     or 2709(b) of title 18, United States Code;
       ``(C) any assistance by that person was provided pursuant 
     to a directive under sections 102(a)(4), 105B(e), as in 
     effect on the day before the date of the enactment of the 
     FISA Amendments Act of 2008, or 703(h) directing such 
     assistance; or
       ``(D) the person did not provide the alleged assistance.
       ``(2) Review.--A certification made pursuant to paragraph 
     (1) shall be subject to review by a court for abuse of 
     discretion.
       ``(b) Limitations on Disclosure.--If the Attorney General 
     files a declaration under section 1746 of title 28, United 
     States Code, that disclosure of a certification made pursuant 
     to subsection (a) would harm the national security of the 
     United States, the court shall--
       ``(1) review such certification in camera and ex parte; and
       ``(2) limit any public disclosure concerning such 
     certification, including any public order following such an 
     ex parte review, to a statement that the conditions of 
     subsection (a) have been met, without disclosing the 
     subparagraph of subsection (a)(1) that is the basis for the 
     certification.
       ``(c) Removal.--A civil action against a person for 
     providing assistance to an element of the intelligence 
     community that is brought in a State court shall be deemed to 
     arise under the Constitution and laws of the United States 
     and shall be removable under section 1441 of title 28, United 
     States Code.
       ``(d) Relationship to Other Laws.--Nothing in this section 
     may be construed to limit any otherwise available immunity, 
     privilege, or defense under any other provision of law.
       ``(e) Applicability.--This section shall apply to a civil 
     action pending on or filed after the date of enactment of the 
     FISA Amendments Act of 2008.''.

     SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.

       Title VIII of the Foreign Intelligence Surveillance Act (50 
     U.S.C. 1801 et seq.), as added by section 203 of this Act, is 
     amended by adding at the end the following new section:

     ``SEC. 803. PREEMPTION.

       ``(a) In General.--No State shall have authority to--
       ``(1) conduct an investigation into an electronic 
     communication service provider's alleged assistance to an 
     element of the intelligence community;
       ``(2) require through regulation or any other means the 
     disclosure of information about an electronic communication 
     service provider's alleged assistance to an element of the 
     intelligence community;
       ``(3) impose any administrative sanction on an electronic 
     communication service provider for assistance to an element 
     of the intelligence community; or
       ``(4) commence or maintain a civil action or other 
     proceeding to enforce a requirement that an electronic 
     communication service provider disclose information 
     concerning alleged assistance to an element of the 
     intelligence community.
       ``(b) Suits by the United States.--The United States may 
     bring suit to enforce the provisions of this section.
       ``(c) Jurisdiction.--The district courts of the United 
     States shall have jurisdiction over any civil action brought 
     by the United States to enforce the provisions of this 
     section.
       ``(d) Application.--This section shall apply to any 
     investigation, action, or proceeding that is pending on or 
     filed after the date of enactment of the FISA Amendments Act 
     of 2008.''.

     SEC. 205. TECHNICAL AMENDMENTS.

       The table of contents in the first section of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et 
     seq.), as amended by section 101(b), is further amended by 
     adding at the end the following:

      ``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT

``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.

                      TITLE III--OTHER PROVISIONS

     SEC. 301. SEVERABILITY.

       If any provision of this Act, any amendment made by this 
     Act, or the application thereof to any person or 
     circumstances is held invalid, the validity of the remainder 
     of the Act, any such amendments, and of the application of 
     such provisions to other persons and circumstances shall not 
     be affected thereby.

     SEC. 302. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.

       (a) In General.--Except as provided in subsection (c), the 
     amendments made by this Act shall take effect on the date of 
     the enactment of this Act.
       (b) Repeal.--
       (1) In general.--Except as provided in subsection (c), 
     sections 105A, 105B, and 105C of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c) 
     are repealed.
       (2) Table of contents.--The table of contents in the first 
     section of the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.) is amended by striking the items 
     relating to sections 105A, 105B, and 105C.
       (c) Transitions Procedures.--
       (1) Protection from liability.--Notwithstanding subsection 
     (b)(1), subsection (l) of section 105B of the Foreign 
     Intelligence Surveillance Act of 1978 shall remain in effect 
     with respect to any directives issued pursuant to such 
     section 105B for information, facilities, or assistance 
     provided during the period such directive was or is in 
     effect.
       (2) Orders in effect.--
       (A) Orders in effect on date of enactment.--Notwithstanding 
     any other provision of this Act or of the Foreign 
     Intelligence Surveillance Act of 1978--
       (i) any order in effect on the date of enactment of this 
     Act issued pursuant to the Foreign Intelligence Surveillance 
     Act of 1978 or section 6(b) of the Protect America Act of 
     2007 (Public Law 110-55; 121 Stat. 556) shall remain in 
     effect until the date of expiration of such order; and
       (ii) at the request of the applicant, the court established 
     under section 103(a) of the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1803(a)) shall reauthorize such order 
     if the facts and circumstances continue to justify issuance 
     of such order under the provisions of such Act, as in effect 
     on the day before the date of the enactment of the Protect 
     America Act of 2007, except as amended by sections 102, 103, 
     104, 105, 106, 107, 108, 109, and 110 of this Act.
       (B) Orders in effect on december 31, 2013.--Any order 
     issued under title VII of the Foreign Intelligence 
     Surveillance Act of 1978, as amended by section 101 of this 
     Act, in effect on December 31, 2013, shall continue in effect 
     until the date of the expiration of such order. Any such 
     order shall be governed by the applicable provisions of the 
     Foreign Intelligence Surveillance Act of 1978, as so amended.
       (3) Authorizations and directives in effect.--
       (A) Authorizations and directives in effect on date of 
     enactment.--Notwithstanding any other provision of this Act 
     or of the Foreign Intelligence Surveillance Act of 1978, any 
     authorization or directive in effect on the date of the 
     enactment of this Act issued pursuant to the Protect America 
     Act of 2007, or any amendment made by that Act, shall remain 
     in effect until the date of expiration of such authorization 
     or directive. Any such authorization or directive shall be 
     governed by the applicable provisions of the Protect America 
     Act of 2007 (121 Stat. 552), and the amendment made by that 
     Act, and, except as provided in paragraph (4) of this 
     subsection, any acquisition pursuant to such authorization or 
     directive shall be deemed not to constitute electronic 
     surveillance (as that term is defined in section 101(f) of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801(f)), as construed in accordance with section 105A of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1805a)).
       (B) Authorizations and directives in effect on december 31, 
     2013.--Any authorization or directive issued under title VII 
     of the Foreign Intelligence Surveillance Act of 1978, as 
     amended by section 101 of this Act, in effect on December 31, 
     2013, shall continue in effect until the date of the 
     expiration of such authorization or directive. Any such 
     authorization or directive shall be governed by the 
     applicable provisions of

[[Page 1931]]

     the Foreign Intelligence Surveillance Act of 1978, as so 
     amended, and, except as provided in section 707 of the 
     Foreign Intelligence Surveillance Act of 1978, as so amended, 
     any acquisition pursuant to such authorization or directive 
     shall be deemed not to constitute electronic surveillance (as 
     that term is defined in section 101(f) of the Foreign 
     Intelligence Surveillance Act of 1978, to the extent that 
     such section 101(f) is limited by section 701 of the Foreign 
     Intelligence Surveillance Act of 1978, as so amended).
       (4) Use of information acquired under protect america 
     act.--Information acquired from an acquisition conducted 
     under the Protect America Act of 2007, and the amendments 
     made by that Act, shall be deemed to be information acquired 
     from an electronic surveillance pursuant to title I of the 
     Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 
     et seq.) for purposes of section 106 of that Act (50 U.S.C. 
     1806), except for purposes of subsection (j) of such section.
       (5) New orders.--Notwithstanding any other provision of 
     this Act or of the Foreign Intelligence Surveillance Act of 
     1978--
       (A) the government may file an application for an order 
     under the Foreign Intelligence Surveillance Act of 1978, as 
     in effect on the day before the date of the enactment of the 
     Protect America Act of 2007, except as amended by sections 
     102, 103, 104, 105, 106, 107, 108, 109, and 110 of this Act; 
     and
       (B) the court established under section 103(a) of the 
     Foreign Intelligence Surveillance Act of 1978 shall enter an 
     order granting such an application if the application meets 
     the requirements of such Act, as in effect on the day before 
     the date of the enactment of the Protect America Act of 2007, 
     except as amended by sections 102, 103, 104, 105, 106, 107, 
     108, 109, and 110 of this Act.
       (6) Extant authorizations.--At the request of the 
     applicant, the court established under section 103(a) of the 
     Foreign Intelligence Surveillance Act of 1978 shall 
     extinguish any extant authorization to conduct electronic 
     surveillance or physical search entered pursuant to such Act.
       (7) Applicable provisions.--Any surveillance conducted 
     pursuant to an order entered pursuant to this subsection 
     shall be subject to the provisions of the Foreign 
     Intelligence Surveillance Act of 1978, as in effect on the 
     day before the date of the enactment of the Protect America 
     Act of 2007, except as amended by sections 102, 103, 104, 
     105, 106, 107, 108, 109, and 110 of this Act.
       (8) Transition procedures concerning the targeting of 
     united states persons overseas.--Any authorization in effect 
     on the date of enactment of this Act under section 2.5 of 
     Executive Order 12333 to intentionally target a United States 
     person reasonably believed to be located outside the United 
     States shall remain in effect, and shall constitute a 
     sufficient basis for conducting such an acquisition targeting 
     a United States person located outside the United States 
     until the earlier of--
       (A) the date that authorization expires; or
       (B) the date that is 90 days after the date of the 
     enactment of this Act.

  Mr. ROCKEFELLER. Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOND. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BOND. Madam President, again I rise to thank Chairman 
Rockefeller, the members of the committee on both sides, and our very 
able staffs for a lot of hard work, particularly by members of the 
committee but by many Members who are not on the committee, who took 
their time to learn what the electronic surveillance capabilities are, 
to learn what guidelines and protections there are to protect the 
privacy rights and constitutional rights of American citizens and help 
us pass this bill.
  This is a bill which I hope we will at least, in large part, find the 
House agreeable to and that we can send it to the President. This has 
been a very long procedure. The chairman just pointed out that we have 
been working on this almost a year. We worked very hard after the 
August recess to come up with a good bill. I know we had some very 
warmly felt and vigorously argued amendments, but the fact that these 
would make it difficult for the intelligence community to collect the 
intelligence necessary to protect our interests, our allies, our troops 
abroad, and us here at home led a significant bipartisan majority to 
improve it.
  Again, my sincere thanks to the leadership on both sides for allowing 
us to get to this important measure. We hope we will have a conference 
report, if necessary, or a measure from the House that we can pass 
before the end of the week.
  So, Madam President, my sincere thanks to Members on both sides and 
particularly our great staffs on both sides.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Democratic leader.

                          ____________________