[Congressional Record (Bound Edition), Volume 154 (2008), Part 4]
[Senate]
[Pages 5227-5229]
[From the U.S. Government Publishing Office, www.gpo.gov]




                   UNANIMOUS-CONSENT REQUEST--S. 2664

  Mr. REID. Mr. President, I appreciate my friend yielding the floor. 
We are waiting for the Republican leader, who is on his way down here.
  Good, he is here. But I do express my appreciation to my friend from 
Tennessee for yielding the floor.
  I wish to speak briefly on the subject of the Foreign Intelligence 
Surveillance bill, known as FISA. Everyone

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knows this is a very important issue. The Presiding Officer, a member 
of the Intelligence Committee and a member of the Judiciary Committee, 
has worked as hard, if not harder, than anyone else on this issue, and 
I would acknowledge his wide breadth of knowledge on this important 
piece of legislation. We have relied on the Presiding Officer to give 
us direction and understanding of this bill, and he has done that.
  We all agree on the need to strengthen the Foreign Intelligence 
Surveillance Act of 1978. Congress has modernized the act many times 
since then, and there is broad agreement on improvements that should be 
made now. I have said many times we need to give the Intelligence 
community all the tools it needs without compromising the privacy of 
law-abiding Americans.
  The Senate passed its bill in early February. The House, which passed 
a bill on this subject last November, passed a new version before the 
Easter recess. The new House bill is similar to the Senate bill, 
although there remains disagreement over the issue of immunity. In any 
event, the two Houses must resolve their differences so the final bill 
can be enacted.
  The President keeps giving speeches saying the House must yield to 
his demand to pass the Senate bill. But that thing we call the 
Constitution keeps getting in the way. You can't pass legislation 
unless the House and the Senate put their stamp of approval on this, 
and the House has not been willing at this point to move. That is how 
our system works. The President must work with the Democrats in 
Congress to find common ground and also give some direction to 
Republicans in the House and the Senate to negotiate this.
  We have tried, since this legislation passed, to work out some type 
of a compromise. Legislation is the art of compromise. A number of 
meetings have been scheduled, but with rare exception, Democrats have 
been meeting with themselves. The Republicans have not been coming to 
these meetings. There are some positive signs the Republican position 
may be thawing. I hope that is true. We need good will on all sides to 
finish this important piece of legislation.
  On several occasions, I have proposed a 30-day retroactive extension 
of the law that expired in February, so the so-called Protect America 
Act can move forward, at least for a limited period of time. My purpose 
is to make sure there is no gap in the intelligence-gathering capacity 
and to set a deadline for final action on a long-term bill. But the 
President has threatened to veto such a bill, and it has been blocked 
procedurally by the Republicans.
  So I now again propose such an extension. The Republicans may again 
object. If they do, they bear responsibility for the fact this law is 
not in place.
  Eventually, the President and Republican leaders must come to the 
negotiating table for the good of the country. We believe that is 
something that needs to be done and can be and should be done.
  I now ask unanimous consent that the Senate proceed to the immediate 
consideration of Calendar No. 583, S. 2664, a 30-day extension of the 
Protect America Act; that further, the bill be read a third time and 
passed, the motion to reconsider be laid upon the table, with no 
intervening action or debate.
  The PRESIDING OFFICER. Is there objection?
  Mr. McCONNELL. Mr. President, reserving the right to object, I will 
make a short statement in response to what the majority leader has said 
before making an objection.
  Last August, we passed a 6-month authorization which we called the 
Protect America Act, and it gave us plenty of time to complete our 
work. Yet our Democratic colleagues didn't put a bill on the Senate 
Floor until the week before Christmas. Even then, a Democratic 
filibuster forced the majority to pull it. We should have turned to it 
at the start of the year. Instead, we went to Indian health care. That 
caused another delay, which forced another extension. Our Democratic 
colleagues claimed this extension would give us enough time to complete 
our work. Unfortunately, that extension has come and gone.
  The Senate used that time to overwhelmingly pass a bill that gives 
our intelligence professionals the tools they need to protect good 
corporate citizens whose assistance is essential. As a result, the 
Senate bill--the bipartisan Rockefeller-Bond bill--is the bill we know 
can get a Presidential signature. We also know a majority of the House, 
on a bipartisan basis, would pass it, if they had a chance to. Instead, 
the House has not used that time wisely. It refused to pass a bill that 
meets the minimum required criteria.
  So now our Democratic colleagues want yet another extension as cover 
for their failure to responsibly act. What is needed, to keep the 
program going, is not another extension, not another delay. Rather, we 
need to get serious in protecting companies that helped protect our 
country. Right now, these companies face multibillion dollar lawsuits 
because they answered our call for help. We asked them to come help us. 
The Government is not in the communications business. They will not 
continue to help us if they are sued out of existence for doing so. If 
they do not help us, then, of course, we will not have a program at 
all.
  In short, to ensure the continued functioning of this vital 
intelligence program, we need to protect our intelligence operations, 
not the trial lawyers. To address that concern, I ask unanimous consent 
to modify the UC the majority leader offered by including an amendment 
at the desk that would enact the liability protections passed by the 
Senate on an overwhelming bipartisan vote of 68 to 29. That is the 
liability title of the Rockefeller-Bond bill.
  The PRESIDING OFFICER. Is there objection?
  Mr. REID. Mr. President, I object.
  The PRESIDING OFFICER. Objection is heard.
  Mr. McCONNELL. Mr. President, if it is appropriate at this time, I 
object to the original unanimous consent request.
  The PRESIDING OFFICER. Objection is heard.
  Mr. REID. Mr. President, I appreciate my friend, the Republican 
leader, coming to the floor and objecting to this rather than having 
someone do it. He gave his explanation, and I appreciate that. It would 
have been easy for anyone on the other side to object, and I appreciate 
his laying out the reasons.
  But I would say this is not the way to negotiate on the Senate Floor. 
We have tried. Senator Rockefeller supported the Senate position. I 
didn't, but Senator Rockefeller did and a number of Democrats supported 
the Senate-passed position and that was something Senator Rockefeller 
recognizes. As a result of that, he has tried very hard--February, 
March, and, of course, he is also working in April--to try to work 
something out. But as I indicated, he has called meetings and 
Republicans would not come. Even the people leading the committee, 
Senator Bond and others, wouldn't show up for the meetings to try to 
work something out.
  Initially, the White House directed none of its people to come. It is 
a little tough to work something out when that is, in fact, what is 
happening. The House must be involved. As I have indicated, that is the 
Constitution.
  We pass a lot of things the House disagrees with. They pass things 
there that we disagree with. No matter how foolish they may think we 
are or we think they are, we have to work together and get things 
passed. That is where we are with this legislation.
  I would say to my friend, there is no need to criticize trial lawyers 
and try to focus blame on any one group of people. There are a lot of 
consumer organizations that have nothing to do with trial lawyers, who 
really do not like what the Senate did and they have really made their 
voices heard.
  My friend said this unanimous consent request is cover for failure to 
responsibly act. I would say I think we are at the point where we are 
as a result of the White House's irresponsibility. Many say what was 
done in the Senate is only something to protect the telephone 
companies, the President, and Vice President from liability. We have 
even gone so far as to

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say if, in fact, there is liability, and the phone companies are not 
responsible for having done this--that they were following orders from 
the White House or whomever they follow orders from, someone in one of 
the intelligence communities--then the Government should pay for it. It 
is called substitution.
  Senator Levin has pushed this a long time, as has Republican Senator 
Arlen Specter. It is not as if we are not trying to work through this. 
It just appears to me, as has happened for more than 7 years with this 
administration, it is the President's way or no way. I think we have 
come to the realization here that it is not going to be the President's 
way. He needs to work with us.
  We believe the actions of the President have been irresponsible. But 
that is what legislation is all about. His people and the Republicans 
in the Senate and the House should work with us to see if we can come 
up with something. Just ignoring us is no way to resolve the issue 
because it appears pretty clear the House is not blinking.
  The PRESIDING OFFICER. The minority leader is recognized.
  Mr. McCONNELL. At the risk of prolonging this for just one more 
moment, it is not a solution to absolve the communications companies of 
the financial responsibility by having the taxpayers of the United 
States pick up the tab. What is inappropriate here is litigation in the 
wake of a response to the Government to protect American citizens. The 
Federal Government is not in the communications business, not in the 
telephone business. There will be no program without the companies. It 
is the litigation itself that endangers the program, not just the 
amount of money that might be awarded. Having the taxpayers in effect 
pay the plaintiffs' lawyers is not the kind of solution that is going 
to continue the program.
  This is an area that cries out for bipartisanship, and that is 
exactly what happened in the Senate. By an overwhelming vote of 68 to 
29, a substantial--I guess every single one of the 29 were Democrats--a 
significant number of Democrats, more than half, voted for this 
bipartisan bill. We know for a fact there are 21 Democrats in the House 
who support what the Senate did. If you add those 21 Democrats to the 
Republicans in the House, we know there is a bipartisan majority in the 
House of Representatives to pass the very same bill we passed in the 
Senate.
  I keep hoping we will somehow, through this process, evolve the same 
kind of spirit that we were able to exhibit on a bipartisan basis in 
passing the economic stimulus package earlier in the year and that we 
exhibited last week on the housing bill, which presumably will pass 
tomorrow or Wednesday. So I have not given up hope. But this is no 
small matter. This is about protecting the American people from attacks 
on our homeland.
  We know we have successfully protected them for almost 6 years now, 
since 9/11. I don't think we ought to let our guard down and assume 
that our enemies have gone to sleep. This is an extremely important 
issue. I hope at some point we will figure some way forward that gets 
the job done, but I do not see it at the moment, and I do not think a 
short-term extension will help us get there.
  I yield the floor.
  Mr. REID. Mr. President, one brief comment. As the Presiding Officer 
knows, under FISA as passed in 1978, that is in effect no matter what 
we do here.
  Under the 1978 act, someone can go to a judge and ask that there be 
this information obtained. We would like it to be streamlined. We think 
the 1978 act should be modernized. We have been happy to work with the 
White House and Republicans in the Senate and House to do that. I say 
that in recent days we have seen signs that there is a thaw in the 
Republican position.
  Does that mean we can get things done? I don't know. But at least 
people are beginning to talk a little bit and that is good. There have 
been some staff level discussions that have been very good too. I hope 
we can work together to bridge the differences between the House and 
Senate and do everything we can to get that done, but also 
understanding the 1978 FISA Act gives the President a lot of leeway to 
get this done anyway.
  Mr. McCONNELL. Mr. President, to prolong it one more moment here, if 
that were adequate, we would not have passed the PROTECT America bill 
in the first place. Clearly, the 1978 law is not adequate to meet 
current challenges. There are many problems with the bill the House 
took up and passed and sent back over here. One is that it would 
require prior court approval before our intelligence professionals 
could monitor foreign terrorists overseas. So the House bill doesn't do 
anything about the problem. The Senate passed a good bill. I hope at 
some point the House will wake up here and do what is necessary to 
protect America.
  In any event, the issue is not going away. The program may go away if 
we can't figure a way to get the job done. This is a very, very serious 
problem and I appreciate the good faith and attitude of the majority 
leader. The Senate is really not the problem here. Hopefully at some 
point the House will realize the best path forward.
  Mr. REID. Never let it be said that I tried to get in the last word.

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