[Congressional Record (Bound Edition), Volume 154 (2008), Part 2]
[Senate]
[Pages 2832-2835]
[From the U.S. Government Publishing Office, www.gpo.gov]




                 FOREIGN INTELLIGENCE SURVEILLANCE ACT

  Mr. GREGG. Mr. President, I rise to speak briefly about one of the 
issues that has been debated over these 2 days, which is the 
reauthorization of the Foreign Intelligence Surveillance Act. This 
bill, which passed the Senate in a bipartisan way, is now sitting in 
the House. This bill is critical to our national security.
  I know there are some who will argue that the bill represents a 
threat in some way to American civil liberties. From my standpoint, 
nothing is more important to me than protecting the rights of Americans 
under the terms of our Constitution.
  One of the terms of our Constitution is that the Federal Government 
has the responsibility to protect the American citizens and America 
from attacks by enemies. That is what we swear an oath to, by the way, 
when we take this job, to protect and defend this Nation.
  We know for a fact that the forces of Islamic fundamentalists, which 
are led

[[Page 2833]]

by fanatical individuals, have committed themselves to attacking our 
Nation, destroying our culture, and killing Americans. We have already 
seen their actions take place in the 1990s when they attacked the 
warship USS Cole, when they attacked our Embassies in Africa, and, of 
course, on 9/11.
  We also know for a fact that our best weapon of self-defense in this 
war is to be on the offense, to find them before they can harm us. That 
is one of the reasons we are in Iraq and in Afghanistan.
  The great advantage we have in this war is the sophistication of our 
Nation. Obviously, the greatest advantage we have is we have the cause 
of right on our side--freedom, democracy, and liberty. But the great 
tactical advantage we have is the sophistication of our Nation and our 
capacity to use that sophistication in the area of our military and in 
the area of our intelligence gathering to defeat these people before 
they attack us. At the essence of this, at the center of this is the 
ability to gather effective intelligence.
  We cannot stop someone who wants to attack us if we wait until they 
commit the act. This is not like a criminal situation where somebody 
goes out and robs a bank and then we go and find them. This is a 
situation where people want to use every weapon at their disposal, and 
if they get a weapon of mass destruction, they will use it to try to 
kill hundreds, thousands, tens of thousands of innocent civilians, and 
Americans specifically, in order to carry out their perverse purpose of 
promoting what they see as their Islamic faith, as they interpret it.
  We cannot be so naive as to believe these people are not out there 
and intending to pursue these courses of action when they have made it 
absolutely clear that is what they intend to do, when they have said 
innumerable times that is what they intend to do, and when they have 
actually done it by attacking us on 9/11.
  To stop them, we have to find them before they can harm us. And the 
way we find them is we use, in part, our great advantage in the area of 
tracking them through electronic surveillance. And that is what the 
FISA bill is all about--giving the legal tools necessary to totally 
dedicated American citizens who man agencies, such as the National 
Security Agency, the Defense Department, the CIA, the State Department, 
and the FBI--to give those individuals who are totally dedicated to 
finding the people who want to attack us the tools necessary to do 
that, and to do that in a way that protects Americans' rights and civil 
liberties. This law does accomplish exactly that. No American can have 
their calls intercepted or overheard intentionally unless there has 
been a court review of that decision and a court order approving that 
action.
  This law is directed not at Americans, it is directed at foreigners--
not Americans--whose purpose it is to do us harm, and they do not have 
the same rights as Americans. They should not. Their purpose is to 
destroy America. Why would we give them American rights? Yet for some 
reason the House of Representatives refuses to act on this critical 
issue in the area of giving our people who work for us, who work for 
the American people, and who are trying to protect America, the tools 
they need to accomplish that. It makes no sense to me at all.
  Some argue the force behind denying this right and these authorities 
to the people who have responsibility to monitor these foreign 
activities and foreign individuals, these Islamic fundamentalists who 
wish to do us harm, the terrorists, the people who wish to limit that 
right wish to do so because they want to give the trial lawyers more 
capacity to bring lawsuits against the telephone companies, which are, 
obviously, an integral part of any electronic monitoring that is going 
to go on. I think that is unfortunate if that is the case.
  We have asked these various groups, these corporations--remember, 
they are made up of American citizens. An American corporation is 
nothing more than a group of American citizens who have gotten 
together. Most of these corporations are pension funds which involve 
pensions of people who work at day-to-day jobs. Most Americans have 
some interest in stock through their pension funds, and these stocks 
are the companies that, basically, we are talking about, the telephone 
companies, in many instances.
  These companies are being asked, and have been enlisted, and have 
been asked in the past to participate in protecting America. When the 
Government does something such as that, I think the Government also has 
a responsibility to say to those companies and their stockholders and 
their employees, many of whom are Americans, many of whom are working 
Americans, obviously, the ones who work for them and the stockholders 
who have pension funds who invest in them, that they should have 
protection from lawsuits which are basically inappropriately pursued 
because these companies are doing the bidding of the American 
Government as we try to protect the American people.
  For some reason, the desire to energize those lawsuits has held up 
the ability to give the tools necessary to our intelligence community 
to pursue surveillance of very evil people who intend to do us harm.
  It would be a great tragedy and a terrible outcome of this situation 
if America is attacked and that attack could have been thwarted or 
muted if we had the intelligence which would have been able to be 
gathered by electronic surveillance which would be made available 
through the authorities of FISA. It would be a true tragedy. I cannot 
imagine the recrimination that would occur in this country from the 
American people were we to be attacked and then discover that the 
information which might have thwarted that attack was unable to be 
obtained because the law which gave people the authority to pursue that 
type of information through electronic surveillance was being held up 
in the House of Representatives because the trial lawyers want a cause 
of action against the telephone companies.
  It is incomprehensible to me that we have gotten to this point in the 
process of trying to develop our defense as a nation against people who 
clearly exist and who have expressed their intent so clearly and who 
have executed on that intent, as was shown on 9/11.
  I cannot imagine that when a bill passes the Senate which has 
bipartisan support--this is not a partisan issue. It should not be a 
partisan issue. It has bipartisan support. It came out of the Senate, 
and it has been worked out between the leaders of the key committees in 
the Senate in a way that protects American civil liberties--that such a 
bill which gives the authority to those we ask to protect us, the 
authority they need to pursue the course of action they see is 
appropriate in electronic surveillance, that such a bill would be 
stopped in the House of Representatives out of what appears to be a 
tangential question of lawsuits--tangential in the sense that nothing 
is more critical to this whole exercise than protecting Americans from 
attack.
  I join my colleagues who have risen over the last couple of days to 
express their frustration with the failure of the House of 
Representatives to act in this area. We need the House to act on the 
Senate bill, pass it, send it down to the President, and have it signed 
so that the people who we ask to protect us through electronic 
surveillance of terrorists who do not have the rights of Americans and 
who are not American, so that electronic surveillance can continue.
  Mr. President, I yield the floor, 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. DURBIN. 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. DURBIN. Mr. President, I am sorry that the Senator from New 
Hampshire, who spoke relative to the Foreign Intelligence Surveillance 
Act, has left the floor. I was hoping he would be here. That is why I 
came down. Senator Gregg is a friend of

[[Page 2834]]

mine, and I certainly wanted to make my remarks in front of him. I hope 
if he is nearby that he will come back to the floor.
  He raised some serious questions about the security of the United 
States, and we have no greater responsibility under the Constitution 
than to protect this great Nation. The tragedy of 9/11 is still fresh 
in our memories, even though it was 6\1/2\ years ago. We know that when 
we work together on a bipartisan basis we can achieve the kind of 
results the American people expect, not only of the Congress but of our 
entire Government.
  This Foreign Intelligence Surveillance Act has been the source of 
some frustration. Understand how this started. This is a program where 
the Government listens to the communications of other people in the 
hopes that they can intercept information and with that information 
avoid another tragedy. That is time and money well spent. The best line 
of defense against terrorism is good intelligence. We want to stop the 
9/11 events of the future from ever occurring. So we certainly are all 
on board for that effort.
  Here is the problem: The administration started doing this without 
the authority of law. There was a provision in the law which said that 
if this President, or any President, for purposes of national security 
and gathering of intelligence, wanted to reach out to find this 
information in the United States, there was a court that was 
established, a FISA Court, Foreign Intelligence Surveillance Court, and 
this court would approve surveillance orders in secret, on an expedited 
basis, using a lower standard than a normal court. That was the 
standard in the law. It was a standard that was consistent with our 
Constitution.
  If our intelligence agencies want to listen in on the conversation of 
an American citizen in this country, it is necessary to go for a court 
order. So, when it comes to the privacy of American people, you have 
another branch of Government looking at the executive branch of 
Government, saying: This is fair, this is constitutional, this is 
legal, you can do this. In the criminal justice process, there is 
reasonable cause to believe that a crime has been committed. Similarly, 
in the FISA area--the area of foreign intelligence surveillance--there 
is a reasonable belief that a suspected terrorist or spy is involved in 
the communication.
  Now, the FISA court was very cooperative with every President. In 
fact, it overwhelmingly approved requests, and in only a tiny 
percentage of cases were questions ever raised. If the President, 
through his agencies, said, I need to listen in on a conversation, this 
court said, yes, do it, keep America safe, in the overwhelming majority 
of cases. So it wasn't a novel process. It was one well established in 
the law, but it was one that this administration avoided.
  They started this surveillance program, the so-called warrantless 
wiretapping program, but didn't follow the existing law. They didn't go 
to the existing court. They did it on their own, and they did it for 
years. It wasn't until this program was disclosed to the American 
people by the New York Times that we had any personal knowledge that it 
was going on. There may have been a handful of Members of Congress at 
the highest levels of the Intelligence Committee who knew about it, but 
most of us did not and weren't given the information.
  So the information becomes public that this warrantless wiretapping 
is going on after 9/11, a program not authorized by law, and it is 
challenged in court. When the court takes a look at it, the court says, 
as good as the reason may have been for this program, as good as its 
purpose may have been, this President, no President, is above the law. 
You need a law authorizing you to do what you are currently doing. So 
then the President came to Congress asking for changes in the Foreign 
Intelligence Surveillance Act so the power of the President over the 
new technology that is available around the world would be consistent 
with the law. That is the legislation that is before us, a bill to 
amend the Foreign Intelligence Surveillance Act.
  We talked about changes in the law, and we made changes in the law. 
We were moving along on, I think, a positive track toward reforming, 
changing, amending this law to meet the current needs of keeping 
America safe. But there was one nagging issue out there, and it was the 
issue of telephone companies. Here is what it was all about.
  Telephone companies doing business in America have a responsibility 
under the law. That responsibility is to protect the identity and the 
communications of their customers. If I sign up with my BlackBerry or 
my cell phone with a telephone company, it is with the confidence that 
the company that is transferring my communication and my conversation 
is going to protect my privacy unless--unless a court steps in and 
says, we have reason to believe a crime was committed or that a party 
to this conversation is a terrorist or a spy. We need to listen in to 
this conversation. That has been the standard in America. It was the 
standard facing the telephone companies.
  So the President, through his intelligence agencies, during the 
period when this warrantless wiretapping program was going on--before 
it was made public; before it was authorized by law--went to the 
telephone companies and said, we want the conversations of certain 
people who are your customers. So the question is: Were the telephone 
companies doing their patriotic duty under the law by turning over this 
information, or did they go too far? Did the President misrepresent his 
authority at that time, or did he not?
  These are legitimate questions. Some say, well, wouldn't we err on 
the side of caution and say to the telephone companies: Cooperate. We 
don't want another 9/11. Well, of course, we would. And you can 
understand in the heat of the moment, in the emotion after 9/11, why, 
when these telephone companies were asked to help, they did it.
  I have seen the documentation presented to us in closed session. All 
I can say about it is, it was extremely limited. There was no legal 
brief given to the telephone companies saying, this is the authority of 
the President. It was a very scant document with very little 
information in it. But this program went on way beyond 2001, 2002. It 
went on for years. And for years the telephone companies were 
surrendering this private information about their customers and access 
to their customers' conversations in a questionable situation under the 
law.
  Some people are testing that in court. They want to know if the 
telephone companies went too far, if they broke the law, if they 
violated the Constitution. The President's belief, and the belief of 
many, is they shouldn't be challenged in court. They shouldn't be held 
accountable in court. They shouldn't have to answer as to whether they 
lived up to the law. There are others, like myself, who believe neither 
a President nor a telephone company is above the law.
  If a telephone company, I believe, goes into court facing one of 
these challenges, and faces any jury of Americans and says, immediately 
after 9/11 we did what we thought would keep America safe, I would put 
all my money on that telephone company winning that part of the 
lawsuit. I think the American people would come down on their side. But 
there are important questions still unresolved as to whether these 
telephone companies went too far and whether we should be careful in 
the future not to give any President, this one or any future President, 
powers beyond the law. That is really what this battle comes down to.
  The reason I was hoping the Senator from New Hampshire would stay on 
the floor is that I wanted to ask him, as I have asked every Republican 
Senator who has brought up this issue, if they are arguing that somehow 
or another the current situation--debating this law on foreign 
intelligence surveillance--is making living in America more dangerous, 
then they have to answer a very simple question: Why, repeatedly, over 
the last several weeks, when the Democrats offered to extend the law so 
it would continue without any missing intelligence in terms of the 
surveillance efforts being made, why did the Republicans, the 
President's party, consistently object to extending the law?
  They can't have it both ways. They can't argue we are in a more 
dangerous

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situation because the law is not in place, and then object to extending 
the law. This is exactly what they are doing. They cannot have it both 
ways.
  We have tried repeatedly to extend the Protect America Act while we 
debate what to do with the lawsuits involving telephone companies, and 
they have said no, let it expire. Then, they have gone public with 
television ads and speeches on the floor saying, woe is me, it looks 
like this law is going to expire, but it is because they objected to 
extending the law.
  They are trying to play both sides of this issue politically, and 
that doesn't work. It is totally inconsistent, illogical, and I don't 
believe it is the right thing to do for this country. Let's finish this 
debate between the House and the Senate as to the liability of 
telephone companies, whether there will be immunity or liability. Let's 
reach an end point in terms of that debate on a timely basis. But in 
the meantime, why do the Republicans continue to object to extending 
this law so that there is no gap in coverage, so that there is no gap 
in the protection it offers to the people of this country? I think that 
is an important element that was missed in the earlier statement.
  I wish to read, if I can, from what the USA Today recently said in an 
editorial.

       Bush is pressing the House to accept the Senate bill and 
     refusing to temporarily extend the current law, which 
     recently expired.

  According to the USA Today, they say:

       That's irresponsible. The House and Senate need time to 
     negotiate their differences because the House has no telecom 
     immunity provision. Bush's implication that expiration of the 
     law would expose the Nation to terrorist dangers is worse 
     than disingenuous: The eavesdropping authorizations under the 
     law continue for a year. Crucial decisions about civil 
     liberties in an age of terror shouldn't be driven by fear-
     mongering.

  That was from the USA editorial.
  I think this President, unfortunately, is manufacturing a crisis. 
This is the same thing we heard from this President and this 
administration in the lead-up to our invasion of Iraq. They painted the 
most frightening picture of Iraq and Saddam Hussein--weapons of mass 
destruction which could be aimed at our allies in the Middle East, such 
as Israel, and aimed at the United States; Condoleezza Rice talking 
about mushroom-shaped clouds and nuclear weapons striking the United 
States; drawing linkage between Saddam Hussein and 9/11, when no 
linkage existed. That was the climate of fear this administration 
created before they asked this Senate to vote on whether we should 
authorize the invasion of Iraq.
  They are trying to create a new climate of fear on the Foreign 
Intelligence Surveillance Act. That is fundamentally unfair to the 
American people. I must warn this President, and every President: The 
American people will only be frightened by red alerts, orange alerts, 
and all this rhetoric for so long before they turn it off. We don't 
ever want to reach that point. We want to make certain when we tell the 
American people a danger exists, it truly does exist.
  If any danger exists now from the expiration of the Protect America 
Act, it is a danger created by the President's party in objecting to 
our efforts to extend this law. They cannot have it both ways. They 
cannot object to extending this law and then say to the American 
people: Be afraid. Be really afraid, because this law hasn't been 
extended. That is exactly what has happened.
  Time and again this administration's allies have pressured Congress 
to consider controversial proposals immediately before an election. Now 
we see them raising another security issue in the run-up to an 
election. This comes from a playbook written by former adviser Karl 
Rove that the administration has used over and over again. Think about 
that vote for the authorization of war in the climate of fear the 
administration created, and then think of the reality of what we found 
on the ground when we went into Iraq. Despite heroic efforts by our men 
and women in uniform, despite their successes in deposing Saddam 
Hussein, despite the expenditure of billions of dollars, we have never, 
ever uncovered one shred of evidence of weapons of mass destruction 
that this administration warned us about. Not one shred of evidence of 
nuclear devices aimed at the United States or any other country, not 
one shred of evidence linking Saddam Hussein to 9/11. All of the fear 
generated by this administration before that vote has not been 
substantiated.
  But the invasion of Iraq has been substantiated in another way, in 
almost 4,000 Americans' lives that have been lost, 25,000 seriously 
wounded, and at a cost to the United States and our Treasury--record 
amounts. By the end of this year, it is estimated we will have spent $1 
trillion on this war that this President created on a foreign policy 
decision which I think may be the worst in my lifetime and sadly 
endangering so many brave, courageous soldiers who serve our country in 
uniform and risk their lives when called to duty. It is unfortunate.
  Yesterday, at the insistence of the Republicans, we ground to a halt 
the debate on the war policy in Iraq. It means we will have to wait 
several months. When we return to it, there will be more than 4,000 
American casualties in this war, there will be more injured soldiers, 
and there will be more money spent.
  This President is trying to run out the clock. He wants to leave that 
White House on January 20, 2009, turn the keys over to his successor, 
and say: Good luck in Iraq--to leave two wars behind and to leave the 
United States in turmoil in terms of our foreign policy around the 
world.
  Well, it is imperative now that we have the truth on the floor, and 
the truth is that we have tried to extend this in law despite the 
objections of Republican Senators. The truth is that we can work out 
our differences, and we should do so in a bipartisan way. We all have 
the same goal here: Keep America safe.
  We also want to make sure that when it comes to the use of military 
commissions for the trials of would-be terrorists, we have a commission 
or at least some form of justice that will stand up to the test of our 
Constitution.
  I do not want a single person released from our detention, wherever 
they may be, who can endanger the United States. I want them all held 
responsible for what they have done to endanger us. But the fact is, 
there has been only one conviction in the 6 years, 6\1/2\ years since 
9/11. The fact is, what has happened in Guantanamo has been the 
securing and detention of hundreds of prisoners for years at a time, 
many of whom have been released without a charge, to return back to 
their families and back to their countries with a bitter taste in their 
mouth about justice under this administration.
  The American people will take a hard look at this issue in this 
election, as they should. One would hope the administration would have 
learned a lesson from what has occurred with the invasion of Iraq and 
what has occurred every time they have heightened fears before an 
election campaign.
  The American people have the final word. Now the President is 
claiming our security is at risk because this Protect America Act has 
expired. But at the same time, his party, the Republican Party, has 
time and again objected to extending this law. The American people have 
heard this song before. They are not going to buy it.

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