[Congressional Record Volume 153, Number 193 (Monday, December 17, 2007)]
[Pages S15710-S15767]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senate will resume consideration of the motion to proceed to S. 2248, 
which the clerk will report.
  The legislative clerk read as follows:

       A motion to proceed to the bill (S. 2248) to amend the 
     Foreign Intelligence Surveillance Act of 1978, to modernize 
     and streamline provisions of that Act, and for other 

  The ACTING PRESIDENT pro tempore. The Republican leader is 
  Mr. McCONNELL. Mr. President, I will proceed on leader time so as not 
to encroach on the complicated agreement we reached on dividing time.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. McCONNELL. Mr. President, heading into our last work week, 
Republicans remain focused on the two principles that have guided us 
all year: protecting and defending the country from harm and protecting 
taxpayers' wallets. In these last few days, we will face some of the 
most crucial tests of the year on both fronts.
  On security, Senate Republicans will amend the House version of the 
Appropriations bill to include funding for the troops in Iraq. Our men 
and women in uniform deserve our support wherever they are serving.
  These funds are dangerously overdue. Delaying them further could put 
the Pentagon in serious straits and potentially jeopardize the 
universally acknowledged gains of the Petraeus plan.
  We will also need to act wisely on reforming the FISA law that lets 
our intelligence agents track terrorists overseas. The success of this 
law over the last several years should be obvious to everyone.
  The Intelligence Committee has produced a bill that would retain its 
core strengths; that has broad bipartisan support; and that, with 
slight modification, the President would sign into law. We need to act 
on this version of the revision without any political games.
  On protecting taxpayers, we have two major pieces of legislation to 
finish: AMT, and a fiscally responsible omnibus bill.
  A quarter of the way into the fiscal year, we have passed 1 of 12 
Appropriations bills from last year.
  We need to evaluate this omnibus and make sure it is written in a 
form the President will sign. That means funding for our forces in 
Afghanistan and Iraq, no excess spending, and no poison pills in the 
form of politically motivated policy riders.
  Crucially, we also need to assure middle-class Americans we are not 
going to raise their taxes or further delay their tax refunds. The 
House needs to patch the AMT tax that now threatens 23 million 
taxpayers it was never meant to affect, and they need to do so without 
raising other taxes on these households.
  We saw last week we could get legislation out the door when we work 
together. After Republican insistence, we passed an energy bill without 
raising taxes or utility rates. We will need to repeat that effort this 
week on several issues that lie at the very heart of our 
responsibilities to the American people.
  We need to ensure the safety of our citizens. We need to keep them 
from being hit by new and unnecessary taxes.
  We will need to do all this and act on several important executive 
nominations. New week. Much to do. America's watching. Let's get to 
  The ACTING PRESIDENT pro tempore. Under the previous order, the time 
until 12 noon is equally divided and controlled between the two leaders 
or their designees, with the Senator from Connecticut, Mr. Dodd, 
controlling 35 minutes and the Senator from Wisconsin, Mr. Feingold, 
controlling 15 minutes of the opponents' time.
  Who seeks recognition?
  The Senator from West Virginia.
  Mr. ROCKEFELLER. Mr. President, I am not a part of the order as read 
by the Chair.
  The ACTING PRESIDENT pro tempore. Under the previous order, the 
Senator has been allocated 20 minutes.
  Mr. ROCKEFELLER. I thank the Chair.
  Today, the Senate begins debate on S. 2248, the FISA Amendments Act 
of 2007. I am confident in saying without any risk of exaggeration that 
FISA modernization is one of the most important matters that will be 
considered by this Congress. It calls on us to get two essential 
matters entirely right--protection of our national security and the 
preservation of the privacy of our citizens.
  I am proud of the substance of the bill the Intelligence Committee 
reported to the Senate in late October on a strong bipartisan vote of 
13 to 2. I am equally proud of the process by which we achieved that 
result. The distinguished vice chairman of the committee, Senator 
Christopher Bond, and I provided simple guidance for all who worked on 
this bill: First, work together, reach out; second, reach out 
particularly to the intelligence community and the Department of 
Justice for their expertise; third, keep in mind at all times the 
fundamental principles of protecting both the security and the privacy 
of all Americans; and finally, remain united in our effort to produce a 
bill that will meet the test of Congress and that will be signed into 
law by the President.
  I am also grateful to all members of our committee for their 
contribution. As the Senate can see from our report, we debated and 
voted on highly important issues. We then sought as a committee to lay 
out for the entire Senate and the American public a description of our 
bill, the reasons for it, and, in additional views, further 
improvements that Members might seek. Our report is on each Member's 
desk. It is also on our committee's Web site and the Web site of the 
Library of Congress. I urge every Member of the Senate to read it, 
including a careful section-by-section explanation of the bill.
  Of course, some sensitive intelligence matters cannot be described in 
a public report. That makes this something of an awkward procedure. If 
any Member has a question about a classified matter, please let the 
vice chairman or myself know, and we will do our best to

[[Page S15711]]

answer your questions in a classified setting.
  I am also pleased that we will be sharing the management of this 
debate with Senator Leahy and Senator Specter, the distinguished 
chairman and ranking member of the Judiciary Committee. From the very 
beginning of the Foreign Intelligence Surveillance Act of 1976, it has 
been a joint responsibility of the Intelligence Committee and the 
Judiciary Committee. It is, after all, a statute that concerns both 
intelligence collection and judicial proceedings. The Judiciary 
Committee considered the Intelligence Committee bill on sequential 
referral and has reported a proposed amendment to our bill.
  In accordance with Senate rules, the Senate has before it only one 
bill; that is, the Intelligence Committee bill, S. 2248. The 
legislative recommendations proposed by the Judiciary Committee will be 
the first pending amendment. Some of the suggestions the Judiciary 
Committee made improve the quality of our product.
  I commend Majority Leader Reid for his decision to bring the FISA 
bill before the Senate under the regular order. While some advocated 
bringing before the Senate a hybrid bill which combined parts of both 
committees' work into one bill, the majority leader recognized that 
following regular order would not only allow for orderly consideration 
of important amendments but ultimately produce an even stronger 
bipartisan bill.
  The products of the Intelligence and Judiciary Committees have a lot 
in common. Both fix a number of deficiencies in the flawed Protect 
America Act, hastily passed in August, as we all remember. Both 
strengthen our national security while protecting American civil 
liberties and privacy rights through enhanced and mandatory court 
review and approval of surveillance activities. Both would greatly 
improve oversight and accountability and ensure that the unchecked 
wiretapping policies of the Bush administration are a thing of the 

  Finally, each committee's work includes a sunset provision. Each 
strengthens the exclusivity of FISA--all concepts to be explained. Each 
establishes court approval of surveillance of Americans overseas--
perhaps the most important of all the amendments. But there are 
differences in how each committee went about effecting these important 
  Over the past month, we have worked very closely--our staffs--
together to determine how best to reconcile the work of the two 
committees. It has been a bipartisan, straightforward process. I 
believe we have been able to work out a number of important amendments 
that take elements of the Judiciary Committee's work and add them to 
the underlying Intelligence Committee bill. There are some elements of 
the Judiciary Committee substitute amendment, however, that I do not 
support, but in all instances, I deeply appreciate the work of Senator 
Leahy and our colleagues on the Judiciary Committee.
  I commend in particular the extraordinary contribution during this 
process of four Senators serving on both committees: Senator Feinstein, 
Senator Hatch, Senator Feingold, and Senator Whitehouse. They have 
worked tirelessly in their dual committee assignments to make this 
legislation as sound and balanced as possible.
  Before I go into any details of the legislation and the expected 
debate over the next few days, I want to briefly remind my colleagues 
of the history of the debate and why FISA modernizing is so important.
  The need to modernize FISA is explained by looking at the convergence 
of three elements in recent years. One is the rapid change of the 
world's communications systems, with new challenges and opportunities 
for signals intelligence arising from the fact that much of the foreign 
intelligence information now passes through or is stored in American 
electronic space. The second change is the significant increase in the 
number of intelligence targets outside of the United States, 
particularly as a result of international terrorism but also from 
weapons of mass destruction proliferation and other foreign threats. 
The final key judgment is that the 30-year-old FISA law has required a 
large number of individual applications to the FISA Court for the 
surveillance of foreign persons outside the United States, which was 
never intended--which was never intended--under the original 
legislation and does not involve the privacy of Americans.
  So the question before our committee was not whether to modernize 
FISA but how to modernize FISA. We began this effort in March of this 
year, when the vice chairman, Senator Bond, and I notified the Attorney 
General of our intention to address FISA modernization. We also advised 
the Attorney General we would focus on whether legislation should be 
enacted to address the legal consequences of the President's 
warrantless surveillance program; namely, the many lawsuits resulting 
from the President's decision to act outside of the statutory 
requirements of FISA. In response, the Director of National 
Intelligence submitted a legislative proposal in April, which the 
Intelligence Committee began to consider at a public hearing in May.
  These efforts to address FISA, however, were stalled for several 
months because of disagreements with the administration over access to 
key documents relating to the President's warrantless surveillance 
program. Yet, given the pressing need to fix FISA and allow for timely 
collection, we made a concerted effort over the summer to produce a 
bill that both the Congress and the administration could support. 
Unfortunately, it did not work. The result of that effort ended in the 
hastily passed and significantly flawed Protect America Act, which 
allowed for timely collection, yes, but did not include significant 
FISA Court safeguards.
  In order to fix the Protect America Act and protect the privacy of 
Americans while strengthening the timely collection of intelligence, 
our Intelligence Committee spent several months this fall working on a 
new bill--the bill before us today--which accomplishes four principal 
  First, the special procedures provided by this bill apply only to 
persons outside the United States. If somebody is in the United 
States--an American is in the United States--all the traditional 
provisions and protections of FISA continue to apply. Everyone agrees 
this should be the case. The distinction of whether the target of 
surveillance is foreign or domestic makes it imperative that there is 
an adequate basis for determining whether somebody is reasonably 
believed to be outside the United States.
  An important safeguard for Americans in the bill is the requirement 
for court-approved targeting procedures that are reasonably designed to 
accurately make the determination whether somebody is outside of the 
United States. The Protect America Act had included that requirement, 
and our bill does the same. But the Protect America Act had limited the 
authority of the FISA Court to review the reasonableness of those 
procedures by imposing a ``clearly erroneous standard'' on that review. 
Our bill strikes that limitation.
  Second, our bill recognizes that minimization procedures have been an 
essential part of FISA from the beginning and will continue to play an 
essential role. These will be explained. These are procedures to 
ensure, among other things, that if Americans are overheard in 
conversations of a foreign target or there is discussion about 
Americans, that the identity of those Americans only be revealed within 
the U.S. Government if there is a good foreign intelligence purpose for 
so doing.
  The Protect America Act had provided that the Attorney General 
approve minimization procedures, but it did not provide for court 
review of them. Our bill corrects that deficiency. The FISA Court will 
now have the responsibility to ensure that the procedures comply with 
the law.
  Thirdly, our bill provides protections for U.S. citizens who are 
outside the United States. Under the Protect America Act, if a U.S. 
citizen sets foot outside the United States, he or she would be treated 
the same as any foreigner outside the United States.
  The Intelligence Committee rejects the proposition that Americans 
lose rights--any kind of rights--because they travel or work elsewhere 
in the world. An essential part of the rights of an American is the 
determination by a judge whether there is probable cause to believe an 
American outside the United States is a lawful subject of surveillance 
by our own Government.

[[Page S15712]]

  This is a concept which both committees--Democrats and Republicans 
alike--agreed to. Director of National Intelligence Mitch McConnell 
endorsed this change in law as well in testimony before the 
Intelligence Committee. There are, however, some differences in how to 
accomplish this. After considerable negotiation, I believe we have 
reached an agreement on a bipartisan amendment which would reconcile 
the approaches of the two committees and resolve the concerns of the 
administration over unintended consequences of the language reported 
out by both committees.
  It is my hope, given the centrality of this reform to the work of 
both committees, that this bipartisan amendment is the first one before 
the Senate once cloture is invoked, if it is invoked and we are, 
therefore, then on the bill.
  The fourth principal accomplishment of the Intelligence Committee 
bill is that it considerably enhances oversight of these protections by 
each branch of Government. This is achieved through a series of annual 
reports to Congress on the authorized collection, including instances 
of noncompliance; inspector general reviews by the Justice Department 
and the intelligence community; and FISA Court review and approval of 
acquisition and minimization procedures.
  As we begin debate on these and other important issues, one of the 
concepts the Senate will hear a lot about is exclusivity. Exclusivity 
addresses the question of whether FISA and the laws that explicitly 
govern the domestic interception of communications for law enforcement 
purposes are the exclusive means by which the President may authorize 
the surveillance of Americans.
  The President claims that he has the authority as Commander in Chief 
to approve surveillance even when he has no statutory authority to do 
so. No act of Congress by itself can finally resolve that debate 
between Presidential and congressional authority, but what Congress can 
make clear is which statutes authorize electronic surveillance.
  The significance of this, in connection with our recent national 
experience, is that the Department of Justice has claimed that the 
authorization to use military force, passed in response to 9/11, 
somehow authorized the President to disregard FISA. Not only is this 
proposition dubious at best, in my opinion, it is also dangerous. In 
fact, the next time Congress is asked to act quickly in response to an 
attack, should there be one, it may pause and take time to consider 
whether its authorization to use force will have completely unintended 
consequences, such as authorizing the President unlimited power to 
violate acts of Congress.
  To make sure authorizations for the use of military force do not 
again become an excuse to wipe away acts of Congress, both the 
Intelligence and Judiciary Committees sought to make even clearer than 
before which statutes constitute the exclusive means for conducting 
electronic surveillance.
  I believe we have been able to work out language on an amendment that 
will reconcile the differences in these two bills.
  The Intelligence Committee also establishes a 6-year sunset for the 
new authority it provides. A sunset is essential because we owe it to 
the American people to make sure we have gotten both parts of this 
system right--effective intelligence collection and the protection of 
the privacy of Americans--before settling on what should be permanent 
law. The Judiciary Committee amendment proposes a 4-year sunset. The 
House FISA bill provides for a 2-year sunset. The administration 
opposes any sunset. I will join with Chairman Leahy in support of an 
amendment to incorporate the Judiciary Committee 4-year sunset into the 
underlying bill. Four years will ensure that a decision on permanency 
is made during the next Presidential term, not the one succeeding it.
  Finally, title II of the committee's bipartisan bill addresses the 
question of protection for telecommunications companies that assisted 
the Government during the course of the President's warrantless 
surveillance program.
  The Intelligence Committee carefully reviewed this matter of 
retroactive liability protection for companies prior to reporting out 
its bill. We received and reviewed the letters sent by the 
administration to the companies. These letters stated that the 
assistance of the companies was ``required,'' that the request was 
based on order of the President, and that the Attorney General had 
certified the form and legality of the order.
  In the course of our investigation, the committee heard from the 
companies themselves as well as administration officials and many 
others and determined that the companies were not provided with any of 
the Justice Department legal opinions underlying the Attorney General's 
certifications they received ordering them to do something which has 
come to put them at risk.
  In the end, a bipartisan consensus of the Intelligence Committee 
supported a narrowly drawn retroactive immunity provision. I want to 
stress the phrase ``narrowly drawn'' because what the committee 
approved was not--I repeat: was not--the broad and open-ended immunity 
sought by the administration.
  The committee immunity provision applies only to companies that may 
have participated in the warrantless surveillance program from a 
specific period of time--from 9/11--until it was placed under FISA 
Court authorization in January 2007. Nothing in the bill provides 
immunity for Government officials for their actions--that is in the 
current law; it is not in the law that we have proposed--nor to 
companies outside the specified timeframe.
  The 12 members of our committee who supported the provision did so 
for different reasons. Some Senators believed that the President acted 
within his constitutional responsibility and authority in establishing 
the surveillance program. Some other Senators, including me, believe 
the President trampled on our Constitution and our laws in unilaterally 
creating a warrantless surveillance program in 2001 and continuing it 
for years without seeking statutory authority to support it. But no 
matter what may be the views about the President's adherence to the 
law, our collective judgment on the Intelligence Committee is that the 
burden of the debate about the President's authority should not fall on 
telecommunications companies because they responded to the 
representations by Government officials at the highest levels that the 
program had been authorized by the President and determined to be 
lawful and received requests, compulsions to carry it out.

  Companies participated at great risk of exposure and financial ruin 
for one reason, and one reason only: in order to help identify 
terrorists and prevent follow-on terrorist attacks. They should not be 
penalized for their willingness to heed the call during a time of 
national emergency.
  I conclude by urging my colleagues to support cloture on the motion 
to proceed so that we can turn our attention to reconciling the fine 
work of the Intelligence and Judiciary committees and ultimately pass a 
FISA reform bill before adjournment.
  Every one of us in the Senate and in Congress has a responsibility to 
correct the flaws in the Protect America Act and put our Nation on 
firmer footing in authorizing critical intelligence surveillance 
activities that are effective, while safeguarding the constitutional 
rights of Americans.
  I thank the Acting President pro tempore, and I yield the floor.
  The ACTING PRESIDENT pro tempore. The Senator from Missouri is 
  Mr. BOND. Mr. President, we yielded some time to the distinguished 
chairman from my side. How much time is remaining on this side?
  The ACTING PRESIDENT pro tempore. There is 46 minutes remaining.
  Mr. BOND. Forty-six. I thank the Chair.
  Mr. President, first let me begin by thanking our majority leader, 
Senator Reid, and our minority leader, Senator McConnell, for bringing 
this very important bill to the Senate floor. It is critical that we 
discuss it, debate it, vote on it, and pass it. I express my great 
thanks to the chairman of the committee, Senator Rockefeller, for his 
thoughtful discussion of the bill and his urgent request, in which I 
join, that all Members of this body move forward, adopt cloture, and 
adopt this bill. I wish to thank the chairman and all of the members of 
the committee and the staff of the Intelligence Committee who have 
labored long and hard

[[Page S15713]]

over many months, beginning well before the April request for 
legislation, to understand the program. I believe almost all of us have 
gone out to the NSA to see how the program works and to see what the 
protections are that are built in.
  We have asked questions many times over. I think I have heard the 
same questions asked many times, and each time they are explained, I 
learn a little bit more. I think we have a good understanding--not a 
perfect understanding--of the process, but we do fully appreciate how 
important it is.
  The bill before us today reflects a tremendous amount of work and 
compromise. The distinguished chairman and I and others have had 
disagreements. We view things a little bit differently. But I think it 
is significant for this body to realize we came together, the majority 
and the minority, in a 13-to-2 vote to present to this body a good 
compromise. Nobody is 100 percent happy with it. I don't expect them to 
be. But this is about as good as we can do in earthly matters, and 
particularly in congressional matters, if we can come that close, I 
think it is a good product.
  Obviously, I have some disagreements with the chairman on the Protect 
America Act of which I was a principal sponsor. Because that bill was 
passed--had to be passed hurriedly before the August recess--what we 
were able to do in that bill was to restore the FISA process with a 
Foreign Intelligence Surveillance Court acting as it had originally 
been intended to act: to approve collections on U.S. persons in the 
United States. We changed the law so that technological changes would 
no longer bring within the FISA Court jurisdiction--or the FISA Court 
workload, more appropriately--collections on foreign targets where very 
often they were communicating with foreign recipients of messages. That 
was never the purpose and, as I indicated on the Senate floor, the FISA 
Court objected to the intelligence community having to be burdened by 
approving collections against targets where there was only minimal 
impact on any U.S. citizen.
  The Protect America Act did fill in a critical national security 
intelligence gap. We all heard about it for a number of months. The 
intelligence community was shut out of the ability to go up on foreign 
targets which might have had vital information. Now, we have had time 
to consider all of the aspects of this collection program, and we have 
come up with a plan that will modernize the bill not only to make sure 
it keeps up with modern technology, but that it adds additional 
protections under the Foreign Intelligence Surveillance Act.
  This morning, in a few minutes, we will hear from some of our 
colleagues about why they are not happy with the bill coming before us. 
I would venture that some individuals made the same speeches back in 
1978 before the passage of that bill as well. But let me state the 
measure very plainly. The question is, Can the intelligence community 
of the United States obtain signals intelligence on foreign persons 
believed to be terrorists and reasonably believed to be outside of the 
United States, and do so in a manner that will protect us.
  We know the electronic surveillance that was done under the 
President's program and under the current FISA Court jurisdiction has 
provided valuable intelligence which has helped to thwart attacks on 
the United States and, more importantly, as we heard from GEN Stan 
McCrystal, the commander of the Joint Special Operations Command, when 
the outmoded FISA law application shut down our ability to collect 
foreign intelligence, the people most greatly at risk were our men and 
women in the service overseas who did not have the benefit of 
collection of intelligence that might have foretold attacks on them. So 
our men and women volunteers defending America, protecting security in 
the world, were without the protection our technology enables us to 
collect at the same time they were fighting overseas, and this kind of 
information could have been a big help.

  Well, the legislation we are looking at today contains far greater 
protections for U.S. persons than this body ever conceived of or was 
ever willing to grant Americans when it passed FISA 30 years ago. We 
have gone further than ever before in this bill in protecting 
Americans' privacy rights, and I am proud to be part of the process 
that is shoring up our national security while protecting to the 
greatest extent possible the liberties of all Americans.
  The chairman is correct; we made many changes. We added many 
protections--important protections--that the Director of National 
Intelligence agreed were necessary additions to provide protections for 
Americans, U.S. persons that were not previously in the law. But I 
believe we can say today that Americans can feel safe and secure; that 
not only is their privacy being protected but their lives are being 
protected from terrorist attacks if we pass this bill which will 
modernize and extend FISA.
  We have an urgent need to proceed to the Senate's consideration of 
the FISA amendments of 2007. Just last week, the Senate heard from our 
Director of National Intelligence, ADM Mike McConnell, and Attorney 
General Mike Mukasey in a closed briefing about the vital importance of 
this legislation to our intelligence collection efforts. This 
legislation will give the intelligence community the tools it needs 
today and in the future to protect our country.
  The Protect America Act, passed in August by Congress, allowed the 
intelligence community temporarily to close critical intelligence gaps 
that were impeding the intelligence community's ability to protect our 
troops and to detect terrorist plots against our homeland. That 
temporary legislation expires in less than 2 months, and we must not 
let those dangerous gaps reopen. Two months may seem like a lot of 
time, but when it comes to this bill or when it comes to floor action 
in the Congress in both Houses and then a conference, it is a very 
short time period. Anybody who has watched this distinguished 
deliberative body and its counterpart on the other side work knows that 
2 months sometimes can go in the flash of an eye.
  The Senate will go out of session this week until mid-January, 
leaving only about 2 weeks for us to work out our differences with the 
House to get a bicameral bill sent to the President--one that he can 
sign into law before the current Protect America Act expires on 
February 5. I regret the majority did not let this important bill get 
to the floor sooner, particularly when we had the DNI on the Hill last 
March urging Congress to modernize FISA, giving us his template of 
legislation for FISA modernization in early April. But we are here in 
the last week before Christmas, and I hope we will not waste any time 
in passing the bill on the way to becoming law.
  I sincerely hope we are not going to leave ourselves in the same 
uncomfortable position we found ourselves in this past August when the 
Senate's consideration of the Protect America Act had to be passed very 
quickly. Because the Senate waited from April until August to act, we 
found ourselves in a chaotic rush to pass a bill, and there were 
genuine fears in the intelligence community that a terrorist attack 
against the homeland might be in the works. If we had acted in a more 
timely manner, we would not have had some of the hard feelings we do 
today that resulted from that rushed process in August. That process 
produced a bill that continued FISA as it was originally intended but 
did not include the additional protections we have added today.
  The good news, however, is that all of that is ancient history now 
because the product we have coming before us today is a thoroughly 
bipartisan Intelligence Committee bill that was put together in close 
coordination with the subject matter experts in the offices of both the 
Director of National Intelligence and the Department of Justice. I can 
assure my colleagues that all of the good ideas we have had--I have had 
and other members of the committee have had--when we have taken them to 
these experts, we have found out you have to do it this way if you want 
to accomplish the results you want. Some of the things we attempted to 
do had impossible burdens that we did not understand until we laid them 
out for these experts. They have told us how to accomplish our purposes 
and do so in a manner that would be effective in protecting the 
interests, and yet not destroy the ability of the intelligence 
community to collect the information we need.

[[Page S15714]]

  So I implore my colleagues in the Senate to move as quickly as 
possible on this bill since its construction has been quite deliberate 
so that we do not repeat the history of the hasty manner in which we 
had to pass the Protect America Act. But that also means we must pass a 
good bill that will not get vetoed. We don't have time for that. It is 
always fun to posture and make political statements, but what is more 
important, we don't have to do that. The bill coming before the Senate 
out of the Intelligence Committee offers the legislation that gives the 
intelligence community the flexibility it needs to protect our troops 
and those of us in America, while protecting the privacy and civil 
liberties of Americans. With two small fixes that Chairman Rockefeller 
and I intend to add to the bill in a manager's amendment, I have been 
assured that the President will sign that bill.
  Now, let me comment a minute on exclusivity. We are working on an 
agreement on exclusivity that states to the greatest extent possible 
this will be the exclusive legislative means for the President to 
collect foreign intelligence. As one who used to be a student of the 
Constitution and still remembers a little bit of it, I have been 
impressed to read over the years how article 2 of the Constitution has 
been interpreted. Article 2 of the Constitution has been interpreted to 
say that the President--the President alone--has the power to collect 
foreign intelligence.
  That power was used by Presidents going back in history. President 
Carter and President Clinton have used that bill to collect 
information. The FISA Court of Review has said, in the in re: Sealed 
Case, that the President's power to collect foreign intelligence 
remains. The President has put this bill under the FISA Court. So he 
has accepted the jurisdiction of the court in assessing the 
appropriateness of the collection means that have been requested.
  We cannot erase by legislation a constitutional power. That 
constitutional power that the President has was fully laid out in the 
opinions and advice given by the Department of Justice and the 
intelligence community to any carriers that may have participated in 
the collection of information during the pendency of the President's 
terror surveillance program.
  One other item I will comment on is the sunset. The provision we have 
in the bill--the 6-year sunset--is a compromise we reached. I don't 
believe a bill such as this should have a sunset. FISA did not have a 
sunset. It stayed in effect from 1978 until 2006. We should have 
reviewed it before. That is what we are in business for.
  The Intelligence Committee of the Senate continues to hold hearings 
and have oversight of the intelligence community, and I would expect 
that if we see problems in the bill, we will move to correct them when 
we see them, not wait to a sunset. General Mukasey strongly opposed 
having any sunset on the bill, and I oppose lessening the sunset from 6 
years. In fact, I prefer to see that sunset provision out of the bill.
  To summarize, S. 2248, the bill passed out of the Intelligence 
Committee by a solid bipartisan vote of 13 to 2, on which I hope the 
Senate invokes cloture in a few minutes, will be the proper means of 
assuring the intelligence community can go forward with the vitally 
important collection of signals intelligence, while at the same time 
protecting the civil rights and privacy of all Americans and U.S. 
  The bill is an extremely delicate arrangement of compromises that 
will fall apart if significant changes are made to it. By ``fall 
apart,'' what I really mean is it won't become law. We need a bill that 
Democrats and Republicans can support, that the DNI says will work for 
the intelligence community, and that the President will sign into law. 
That means the first principle we need to follow today is that the age-
old advice that doctors and others use: ``do no harm,'' and not 
deconstruct what the Intelligence Committee has carefully crafted.
  We don't have time for poison pill amendments or any other sort of 
political posturing. The Senate Intelligence Committee bill is a good 
one and needs to become law without further delay so our intelligence 
collectors and troops in harm's way will have the tools they need 
before the Protect America Act expires in February.
  Mr. President, I urge my colleagues to vote with Chairman Rockefeller 
and me to proceed to this bill.
  I yield the floor and I reserve the remainder of my time.
  What is the time remaining?
  The PRESIDING OFFICER (Mr. Cardin). There are 28 minutes.
  The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, first, let me say to my two good friends, 
Senators Rockefeller and Bond, I appreciate the job they do serving as 
chairman and ranking member of the Senate Intelligence Committee. I 
commend them for their efforts in this matter.
  Having said that, I reluctantly rise to urge my colleagues to vote 
against cloture on S. 2248, the FISA Amendment Act, and I will explain 
  Opposing cloture is essential, because there is no unanimous consent 
agreement in place providing for the immediate adoption of the 
Judiciary Committee substitute amendment.
  As you know, the Judiciary substitute amendment, among other things, 
strikes title II of the Intelligence Committee bill--the title which 
seeks to provide retroactive immunity to telecommunications companies 
who are alleged to have violated their customers' privacy rights by 
turning over information to the government without warrants.
  I am fully aware that the majority leader has various parliamentary 
options at his disposal to move this legislation forward. It is his 
right to attempt to invoke cloture.
  But I regret that decision, and I hope that my colleagues will join 
me in stopping this legislation.
  Mr. President, why do I feel so strongly about this matter?
  For the last 6 years, our largest telecommunications companies have 
been spying on their own American customers.
  Secretly and without a warrant, they delivered to the Federal 
Government the private, domestic communications records of millions of 
Americans--records this administration has compiled into a database of 
enormous scale and scope.
  That decision betrayed millions of customers' trust. It was 
  But was it illegal?
  That, Mr. President, I don't know. And if this bill passes in its 
current form, we will never know. The President's favored corporations 
will be immune.
  Their arguments will never be heard in a court of law. The details of 
their actions will stay hidden. The truth behind this unprecedented 
domestic spying will never see light. And the book on our Government's 
actions will be closed, and sealed, and locked, and handed over to the 
safekeeping of those few whom George Bush trusts to keep a secret.
  The bill that the majority leader will seek to make the pending 
business of the Senate later today--the FISA Amendments Act of 2007--
has a long and twisted history behind it. Its origins lie in President 
Bush's years of warrantless spying on Americans.
  That abuse of power was exposed by the press in late 2005. The New 
York Times revealed that:

       Under a presidential order signed in 2002, the [National 
     Security Agency] has monitored the international telephone 
     calls and international e-mail messages of hundreds, perhaps 
     thousands, of people inside the United States without 
     warrants over the past three years.

  In fact, we later learned that the President's warrantless spying was 
authorized as early as 2001.
  Disgraced former Attorney General Alberto Gonzales, in a 2006 white 
paper, attempted to justify that spying; his argument rested on the 
specious claim that, in authorizing the President to go to war in 
Afghanistan, Congress had also somehow authorized him to listen in on 
phone calls in America.
  But many of those who voted on the original authorization of force 
found this claim to new executive powers to be a laughable invention. 
Here's what former Majority Leader Tom Daschle wrote:

       As Senate majority leader . . . I helped negotiate that law 
     with the White House counsel's office over two harried days. 
     I can state categorically that the subject of warrantless 
     wiretaps of American citizens never came up . . . I am also 
     confident that the 98 senators who voted in favor of 
     authorization of force against al-Qaida did not believe that 

[[Page S15715]]

     were also voting for warrantless domestic surveillance.

  Such claims to expanded executive power based on the authorization 
for military force have since been struck down by the courts.
  In recent months, the administration has changed its argument, now 
grounding its warrantless surveillance power in the extremely nebulous 
``authority of the President to defend the country'' that they find in 
the Constitution.
  Of course, that begs the question: Exactly what doesn't fit under 
``defending the country''? If we take the President at his word, we 
would concede to him nearly unlimited power, as long as he finds a 
lawyer willing to stuff his actions into that boundless category.
  Rather than concede such power, Congress has worked to bring the 
President's surveillance program back where it belongs--under the rule 
of law.
  At the same time, we have worked to modernize FISA and ease 
restrictions on terrorist surveillance. The Protect America Act, a bill 
attempting to respond to that two-pronged challenge, passed in August; 
but it is set to expire in February.
  The bill now before us would create a legal regime for surveillance 
under reworked and more reasonable rules. But crucially, President Bush 
has demanded that this bill include full retroactive immunity for 
corporations complicit in domestic spying. In a speech on September 19, 
he stated that ``it's particularly important for Congress to provide 
meaningful liability protection to those companies.''
  In October, he stiffened his demand, vowing to veto any bill that did 
not shield the telecom corporations. And this month, he resorted to 
shameful, misleading scare tactics, accusing Congress of failing ``to 
keep the American people safe.''
  That month, the FISA Amendments Act came before the Senate Select 
Committee on Intelligence. Per the President's demand, it included full 
retroactive immunity for the telecom corporations. Senator Nelson 
introduced an amendment to strip that immunity, and instead allow the 
matter to be settled in the courts. It failed by a vote of 3 to 12.
  But as it passed out of the Intelligence Committee, by a vote of 13 
to 2, the bill still put corporations literally above the law and 
ensured that the extent of the President's invasions of privacy would 
remain a secret. I found retroactive immunity far beyond the pale, and 
I made my objections strongly and publicly.
  But the bill also had to pass through the Judiciary Committee. There, 
Chairman Pat Leahy succeeded in reporting out a bill without the 
egregious immunity provision. Over the years, Pat Leahy has cemented 
his reputation as a champion of the rule of law; and I believe the 
stand he took last month will be honored for a long time to come.
  However, I am still concerned that when Senator Feingold proposed an 
amendment to strip immunity for good, it failed by a vote of 7 to 12.
  So here we are--facing a final decision on whether the 
telecommunications companies will get off the hook for good. The 
President's allies are as intent as they ever were on making that 
happen. They want immunity back in this bill at all costs.
  But what they are truly offering is secrecy in place of openness. 
Fiat in place of law.
  And in place of the forthright argument and judicial deliberation 
that ought to be this country's pride, two simple words from our 
President's mouth: ``Trust me.''
  I cannot speak for my colleagues--but I would never take that offer, 
not even in the best of times, not even from a perfect President. I 
would never take that offer because our Constitution tells us that the 
President's word is subject to the oversight of the Congress and the 
deliberation of the courts; and because I took an oath to defend the 
Constitution; and because I stand by my oath.
  ``Trust me.'' It is the offer to hide ourselves in the waiting arms 
of the rule of men. And in these threatened times, that offer has never 
seemed more seductive. The rule of law has rarely been so fragile.
  ``It is a universal truth that the loss of liberty at home is to be 
charged to the provisions against danger . . . from abroad.'' James 
Madison, the father of our Constitution, made that prediction more than 
two centuries ago. With the passage of this bill, his words would be 
one step closer to coming true. So it has never been more essential 
that we lend our voices to the law, and speak on its behalf.
  On its behalf, we say to President Bush that a Nation of truly free 
men and women would never take ``trust me'' for an answer, not even 
from a perfect President--and certainly not from this one.
  In these times--under a President who seems every more day intent on 
acting as if he is the law, who grants himself the right to ignore 
legislation, who claims the power to spy without a warrant, to imprison 
without a hearing, to torture without a scruple--in these times, I 
would be a fool to take his offer.
  But ``trust me,'' says President Bush. He means it literally. When he 
first asked Congress to make the telecoms' actions legally disappear, 
Congress had a reasonable question for him: Can we at least know 
exactly what we'd be immunizing? Can you at least tell us what we'd be 
cleaning up?
  And the President refused to answer. Only he, his close advisors, and 
a handful of telecom executives know all of the facts. Congress is only 
asked to give token oversight. But if we are to do our constitutionally 
mandated job, we need more than token oversight; we need full hearings 
on the terrorist surveillance program before the Intelligence and 
Judiciary Committees.
  Without that, we remain in the dark--and in the dark we're expected 
to grant the President's wish, because he knows best.
  Does that sound familiar to any of my colleagues?
  In 2002, we took the President's word and voted to go to war on 
faulty intelligence. What if we took his word again--and found, next 
year or the year after, that we had blindly legalized grave crimes?
  If this disastrous war has taught us anything, it is that the Senate 
must never again stack such a momentous decision on such a weak 
foundation of fact. The decision we're asked to make today is not, of 
course, as immense. But between fact and decision, the disproportion is 
just as huge.
  So I rise in determined opposition to this unprecedented immunity and 
all that it represents. I have served in this body for more than a 
quarter century. I have spoken from this desk hundreds and hundreds of 
times. I have rarely come to the floor with such anger.
  But since I came to Washington, I have seen six Presidents sit in the 
White House--and I have never seen a contempt for the rule of law equal 
to this. Today, I have reached a breaking point. Today my disgust has 
found its limit.
  I don't expect every one of my colleagues to share that disgust, or 
that limit. I wish they did--but had that been the case, we would never 
have come to this point.
  I only ask them to believe me when I say if I did not speak today, my 
conscience would not let me rest.
  The right to conscience is one of the Senate's most treasured 
allowances. It is perhaps this body's defining feature. The President 
has his dominating bully pulpit. Justice Robert Jackson famously wrote 
that ``in drama, magnitude and finality [the President's] decisions so 
far overshadow any others that almost alone he fills the public eye and 
ear. No other personality in public life can begin to compete with him 
in access to the public mind.''
  But in this Chamber, a minority--even an impassioned minority of 
one--has the right to stand against all the combined weight and 
machinery of government and plead: ``Stop!'' Or at least: ``Wait.'' A 
minority can't stand forever, as surely as I can't speak forever. 
Ultimately, a minority has only one recourse--to make itself a 
majority. And I have faith that when the American people understand the 
full extent of this President's contempt for the law, they will share 
my outrage. This is a trusting and patient nation--and with more than 
two centuries of democratic tradition, rightly so. But that trust is 
not infinite; that patience is not endless; and after 7 years of this 
President, they are worn down to the nub.
  If I didn't believe that, I wouldn't be standing here today. If the 
rule of law

[[Page S15716]]

were not my ruling passion, I wouldn't be standing here today. But I 
do, and it is.
  ``Law'' is a word we barely hear from the President and his allies. 
They offer neither a deliberation about America's difficult choices in 
the age of terrorism, nor a shared attempt to set for our times the 
excruciating balance between security and liberty.
  They merely promise a false debate on a false choice: security or 
liberty, but never, ever both.
  It speaks volumes about the President's estimation of the American 
people that he expects them to accept that choice. I think differently. 
I think that America's founding truth is unambiguous: security and 
liberty, one and inseparable, and never one without the other.
  Secure in that truth, I offer a challenge to the President's allies: 
You want to put the President's favored corporations above the law. 
Could you please explain how your immunity makes any one of us any 
safer by an iota?
  If security were truly the issue, this debate wouldn't be happening. 
An excellent balance between security and liberty has already been 
struck by FISA, a balance that has stood for three decades. In fact, 
FISA was written just to prevent a situation like ours from occurring: 
to protect Americans without countenancing executive lawbreaking.
  In the wake of the Watergate scandal, the U.S. Senate convened the 
Church Committee, a panel of distinguished senators determined to shine 
light on executive abuses of power. The facts it uncovered were 
  Army spying on the civilian population; Federal dossiers on citizens' 
political activities; a CIA and FBI program that had opened hundreds of 
thousands of Americans' letters without warning or warrant.
  The collective force of these revelations was undeniable: In their 
oversight duties, Congress and the courts had failed; they had 
unquestioningly accepted the executive's ``trust me''; and as a result, 
Americans had sustained a severe blow to their fourth amendment rights 
``to be secure in their persons, houses, papers, and effects, against 
unreasonable searches and seizures.''
  The Senate could have panicked; it could have ended or drastically 
curtailed those searches altogether. But in its wisdom, the Senate 
understood that protecting the American people was not the problem; the 
problem was simply the Nixonian attitude that ``if the President does 
it, it's not illegal.''
  The solution was to bring the executive's efforts to protect America 
under the watchful eye of Congress and the courts--to restore checks 
and balances to surveillance, and to give it the legitimacy it demands 
and deserves. America would not be America if such power remained 
concentrated in the hands of one man, or one branch of Government.
  The Church Committee's final report, ``Intelligence Activities and 
the Rights of Americans,'' put the case eloquently:

       The critical question before the Committee was to determine 
     how the fundamental liberties of the people can be maintained 
     in the course of the Government's effort to protect their 
     security. The delicate balance between these basic goals of 
     our system of government is often difficult to strike, but it 
     can, and must, be achieved.
       We reject the view that the traditional American principles 
     of justice and fair play have no place in our struggle 
     against the enemies of freedom. Moreover, our investigation 
     has established that the targets of intelligence activity 
     have ranged far beyond persons who could properly be 
     characterized as enemies of freedom. . . .
       We have seen segments of our Government, in their attitudes 
     and action, adopt tactics unworthy of a democracy, and 
     occasionally reminiscent of the tactics of totalitarian 
       We have seen a consistent pattern in which programs 
     initiated with limited goals, such as preventing criminal 
     violence or identifying foreign spies, were expanded to what 
     witnesses characterized as ``vacuum cleaners,'' sweeping in 
     information about lawful activities of American citizens.

  The Senators of the Church Commission concluded:

       Unless new and tighter controls are established by 
     legislation, domestic intelligence activities threaten to 
     undermine our democratic society and fundamentally alter its 

  What a strange echo we hear in those words. They could have been 
written yesterday. Three decades ago, our predecessors in this Chamber 
understood that when domestic spying goes too far, it threatens to kill 
just what it promises to protect--an America secure in its liberty. 
That lesson was crystal clear 30 years ago. Why is it so clouded now?
  And before we entertain the argument that ``everything has changed'' 
since those words were written, remember: The men who wrote them had 
witnessed world war and Cold War, had seen Nazi and Soviet spying, and 
were living every day under the cloud of nuclear holocaust. How short 
some memories are.
  The threats have multiplied and grown in complexity, but the lesson 
has been immutable: Warrantless spying threatens to undermine our 
democratic society, unless legislation brings it under control. In 
other words, the power to invade privacy must be used sparingly, 
guarded jealously, and shared equally between the branches of 
  Or the case can be made pragmatically. As my friend Harold Koh, the 
dean of Yale Law School, recently argued:

       The engagement of all three branches tends to yield not 
     just more thoughtful law, but a more broadly supported public 
  Three decades ago, that broadly supported public policy--a prime 
outcome of the Church Committee--was the Foreign Intelligence 
Surveillance Act, or FISA. FISA confirmed the President's power to 
conduct surveillance of international conversations involving anyone in 
the United States, provided that the Federal FISA court issued a 
warrant--ensuring that wiretapping was aimed at safeguarding our 
security, and nothing else. To further protect intelligence gathering, 
that court was to work in secret.
  Ironically, none other than the President's own Director of National 
Intelligence, Mike McConnell, explained the rationale in an interview 
this summer: The United States ``did not want to allow [the 
intelligence community] to conduct . . . electronic surveillance of 
Americans for foreign intelligence unless you had a warrant, so that 
was required.''
  As originally written in 1978, and as amended nine times since, FISA 
has accomplished its mission; it has been a valuable tool for 
conducting surveillance of terrorists and those who would harm America. 
And every time Presidents have come to Congress openly to ask for more 
leeway under FISA, Congress has worked with them; Congress has 
compromised; and together, Congress and the President have struck a 
balance that safeguards America while doing its utmost to protect 
  This summer, Congress made a technical correction to FISA, enabling 
the President to wiretap, without a warrant, conversations between two 
foreign targets, even if those conversations are routed through 
American computers. Personally, I felt that this summer's legislation 
went too far, and I opposed it. But the point is that Congress once 
again proved its willingness to work with the President on FISA. Isn't 
that enough?
  Just this October and November, as we have seen, the Senate 
Intelligence and Judiciary Committees worked with the President to 
further refine FISA and ensure that, in a true emergency, the FISA 
court would do nothing to slow down intelligence gathering. Isn't that 
  And as for the FISA court, it has approved the President's 
wiretapping requests with impeccable consistency.
  Between 1978 and 2004, according to the Washington Post, the FISA 
court approved 18,748 warrants and rejected five. The FISA court has 
sided with the executive 99.9 percent of the time. Isn't that enough?
  Is anything lacking? Isn't the framework already in place? Isn't all 
of this enough to keep us safe?
  We all know the President's answer. Given this complex, fine-tuned 
machinery, crafted over three decades by all three branches, what did 
he do? He ignored it.
  Given a system primed to bless nearly any eavesdropping he could 
conceive--he conducted his own, illegally.
  If the shock of that decision has yet to sink in, think of it this 
way: President Bush ignored not just a Federal court, but a secret 
Federal court; not just a secret Federal court, but a secret Federal 
court prepared to sign off on his actions 99.9 percent of the time. A

[[Page S15717]]

more compliant court has never been conceived. And still that wasn't 
good enough for our President.
  So I will ask the Senate candidly, and candidly it already knows the 
answer: Is this about our security or is it about his power?
  I ask that question not to change the subject, but because it is the 
key to understanding why this administration is pushing so hard for 
telecom immunity--that is, for secrecy. Richard Nixon, the same man who 
declared that ``if the president does it, it's not illegal,'' raised 
secrecy to an art form--because he understood that the surest way to 
amass power is to conceal its true extent.
  Secrecy can spring from the best motives; but as it grows it begins 
to exist only for itself, only for its own sake, only to cover its own 
  The Senators of the Church Committee expressed succinctly the deep 
flaw in that form of Government: ``Abuse thrives on secrecy.''
  Today, we have seen the executive branch pass to a new master of 
secrecy. Vice President Cheney practices a secrecy so baroque that it 
could, in a less threatened time, be an object for laughter, instead of 
  His unclassified papers? Stamped ``treat as TSSCI,'' one of the 
highest levels of state secret. The list of papers he has declassified? 
Classified. The members of his energy task force? None of your 
business. His location? Undisclosed. The names of his staff? 
Confidential. And tellingly, of course, the visitor log for his office? 
Shredded by the Secret Service.
  When secrecy becomes this divorced from practicality, we are left 
with only one conclusion: For this executive branch, secrecy is power.
  Of course, I don't mean any offense against our Vice President--as he 
reminds us, he is not part of the executive branch.
  We see a pattern of secrecy stretching back to the first months of 
this administration. Its push for immunity is no different--secrecy is 
at its center.
  And tellingly, the administration's original immunity proposal 
protected not just the telecoms, but everyone involved in the 
wiretapping program. In their original proposal, that is, they wanted 
to immunize themselves.
  Think about that. It speaks to their fear and, perhaps, their guilt: 
their guilt that they had broken the law, and their fear that in the 
years to come, they would be found liable or convicted. They knew 
better than anyone else what they had done--they must have had good 
reason to be afraid!
  Thankfully, executive immunity is not part of the bill before us. I 
am grateful for that. But the origin of immunity tells us a great deal 
about what's at stake here: This is, and always has been, a self-
preservation bill.
  Otherwise, why not have the trial and get it over with? If the 
President's allies believe what they say, the corporations would win in 
a walk.
  After all, look at things from their perspective: In their telling, 
when our biggest telecom corporations helped the President spy without 
a warrant, they were doing their patriotic duty. When they listened to 
the executive branch and turned over private information, they were 
doing their patriotic duty.
  When one company gave the NSA a secret eavesdropping room at its own 
corporate headquarters, it was simply doing its patriotic duty. The 
President asked, the telecoms answered.
  Shouldn't that be an easy case to prove, Mr. President? The 
corporations only need to show a judge the authority and the assurances 
they were given, and they will be in and out of court in 5 minutes. If 
the telecoms are as defensible as the President says, why doesn't the 
President let them defend themselves? If the case is so easy to make, 
why doesn't he let them make it? Why is he standing in the way?
  Our Federal court system has dealt for decades with the most delicate 
national security matters, building up expertise in protecting 
classified information behind closed doors--ex parte, in camera. We can 
expect no less in these cases. If we're worried about national security 
being threatened as a result, we can simply get the principals a 
security clearance.
  No intelligence sources need be compromised. No state secrets need be 
exposed. And we can say so with increasing confidence, because after 
the extensive litigation that has already taken place at both the 
district court and circuit court level, no sensitive information has 
leaked out.
  In fact, Federal District Court Judge Vaughn Walker, a Republican 
appointee, has already ruled that the issue can go to trial without 
putting state secrets in jeopardy. He reasonably pointed out that the 
existence of the President's surveillance program is hardly a secret at 
all: The government has already disclosed the general contours of the 
``terrorist surveillance program,'' which requires the assistance of a 
telecommunications provider.

  George Bush wouldn't be the first president to hide righteously 
behind the state secrets privilege. In fact, the privilege was tainted 
at its birth by a President of my own party, Harry Truman. In 1952, he 
successfully invoked the new privilege to prevent public exposure of a 
report on a plane crash that killed three Air Force contractors.
  When the report was finally declassified--some 50 years later, 
decades after anyone in the Truman administration was within its 
reach--it contained no state secrets at all. Only facts about repeated 
maintenance failures that would have seriously embarrassed some 
important people. And so the state secrets privilege began its career 
not to protect our nation--but to protect the powerful.
  In his opinion, Judge Walker argued that, even when it is reasonably 

       The state secrets privilege [still] has its limits. While 
     the court recognizes and respects the executive's 
     constitutional duty to protect the nation from threats, the 
     court also takes seriously its constitutional duty to 
     adjudicate the disputes that come before it. To defer to a 
     blanket assertion of secrecy here would be to abdicate that 
     duty, particularly because the very subject matter of this 
     litigation has been so publicly aired.
       The compromise between liberty and security remains a 
     difficult one. But dismissing this case at the outset would 
     sacrifice liberty for no apparent enhancement of security.

  And that ought to be the epitaph for this Presidency: ``sacrificing 
liberty for no apparent enhancement of security.'' Worse than selling 
our soul--giving it away for free!
  The President is equally wrong to claim that failing to grant this 
retroactive immunity will make the telecoms less likely to cooperate 
with surveillance in the future.
  The truth is that, since the 1970s, FISA has compelled 
telecommunications companies to cooperate with surveillance, when it is 
warranted--and what's more, it immunizes them. It is done that for more 
than 25 years.
  So cooperation in warranted wiretapping is not at stake today. 
Collusion in warrantless wiretapping is--and the warrant makes all the 
difference, because it is precisely the court's blessing that brings 
Presidential power under the rule of law.
  In sum, we know that giving the telecoms their day in court--giving 
the American people their day in court--would not jeopardize an ounce 
of our security. And it could only expose one secret: the extent of our 
president's lawbreaking, and the extent of his corporations' 
complicity. That, our President will go to the mat to defend. That, he 
will keep from the light of a courtroom at all costs. That, his 
supporters would amend the law to protect.
  And that is the choice at stake today: Will George Bush's secrets die 
with this Presidency? Or will they be open to the generations to come, 
to our successors in this Chamber, so that they can prepare themselves 
to defend against future outrages of power and usurpations of law from 
future Presidents, of either party?
  I am here because I will not see those secrets go quietly into the 
good night with Donald Rumsfeld and Alberto Gonzales and Dick Cheney 
and George Bush. I am here because the truth is not their private 
property--it belongs to every one of us, and it demands to be heard.
  ``State secrets,'' ``patriotic duty''--those, as weak as they are, 
are the arguments the president's allies use when they're feeling high-
minded! When their thoughts turn baser, they make their arguments in 
dollar signs.
  Here's how Mike McConnell put it:

       If you play out the suits at the value they're claimed, it 
     would bankrupt these companies. So . . . we have to provide 
     liability protection to these private sector entities.

  Mike McConnell is quickly becoming an accidental truth-teller! Notice 

[[Page S15718]]

the President's own Director of National Intelligence concedes that if 
the cases went to trial, the telecoms would lose. I don't know if 
that's true, Mr. President--but we can thank Admiral McConnell for 
telling us how he really feels.
  Of course, it is an exaggeration to claim that these companies would 
surely go bankrupt, even if they did lose.
  We are talking about some of the wealthiest, most successful 
companies in America. Let me quote an article from Dow Jones 
MarketWatch. The date is October 23, 2007. The headline reads: ``AT&T's 
third-quarter profit rises 41.5 percent.''

       AT&T Inc. on Tuesday said third-quarter earnings rose 41.5 
     percent, boosted by the acquisition of BellSouth and the 
     addition of 2 million net wireless customers . . . Net income 
     totaled $3.06 billion . . . compared with $2.17 billion . . . 
     a year ago.

  Note that AT&T has posted these record profits at a time of very 
public litigation.
  A company with more than $3 billion in profits one quarter--only the 
most exorbitant and unlikely judgment could completely wipe it out. To 
assume that the telecoms would lose, and that their judges would then 
hand down such backbreaking penalties, is already to take several 
  The point, after all, has never been to financially cripple our 
telecommunications industry. The point is to bring checks and balances 
back to domestic spying. Setting that precedent would hardly require a 
crippling judgment.
  It is much more troubling, though, that the Director of National 
Intelligence even feels the need to pronounce on ``liability protection 
for private sector entities.'' Since when were our spies in the 
business of economics? Since when did they put protecting AT&T or 
Verizon ahead of protecting the American people? Since when did the 
amount a defendant stands to lose have any bearing on whether a suit 
should go forward? I learned in law school that guilty was guilty--no 
matter how rich or how poor.
  Lean on this logic, and you'll sink to its venal core: Certain 
corporations are too rich to be sued. Forget what they owe; forget 
what's just; forget judges setting the penalty. If there's even a 
chance of the judgment being high, throw the suit out--it endangers the 
  This administration has equated corporations' bottom lines with our 
Nation's security. Follow that reasoning honestly to its end, and you 
come to the conclusion: The larger the corporation, the more lawless it 
can be. If we accept Mr. McConnell's premises, we could conceive of a 
corporation so wealthy, so integral to our economy, that its riches 
place it outside the law altogether. And if the administration's 
thinking even admits that possibility, we know instinctively how flawed 
it is.
  The truth is exactly the opposite: The larger the corporation, the 
greater the potential for abuse, and the more carefully it must be 
watched. Not that success should make a company suspect; companies grow 
large, and essential to our economy, because they are excellent at what 
they do. I simply mean that size and wealth open the realm of 
possibilities for abuse far beyond the scope of the individual.
  Consider this. According to the Electronic Frontier Foundation,

       Clear, first-hand whistleblower documentary evidence 
     [states] . . . that for year on end every e-mail, every text 
     message, and every phone call carried over the massive fiber-
     optic links of sixteen separate companies routed through 
     AT&T's Internet hub in San Francisco--hundreds of millions of 
     private, domestic communications--have been . . . copied in 
     their entirety by AT&T and knowingly diverted wholesale by 
     means of multiple ``splitters'' into a secret room controlled 
     exclusively by the NSA.

  If true, that constitutes one of the most massive violations of 
privacy in American history. And it would be inconceivable without the 
size and resources of an AT&T behind it--the same size that makes Mike 
McConnell fear the corporations' day in court.
  If reasonable search and seizure means opening a drug dealer's 
apartment, the telecoms' alleged actions would be the equivalent of 
strip-searching everyone in the building, ransacking their bedrooms, 
and prying up all the floorboards. That is the massive scale we are 
talking about--and that massive scale is precisely why no corporation 
must be above the law.
  On that scale, it is impossible to plead ignorance. As Judge Walker 

       AT&T cannot seriously contend that a reasonable entity in 
     its position could have believed that the alleged domestic 
     dragnet was legal.

  But the arguments of the President's allies sink even lower. Listen 
to the words a House Republican leader spoke on Fox News. They are 

       I believe that they deserve immunity from lawsuits out 
     there from typical trial lawyers trying to find a way to get 
     into the pockets of American companies.

  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. DODD. Mr. President, I ask unanimous consent for 1 more minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Cindy Cohn is one of those ``trial lawyers.'' She is lead 
counsel at the Electronic Frontier Foundation, a small public-interest 
law firm bringing suit against the telecom corporations. And when she 
heard that Fox News claim about typical greedy trial lawyers, she 

       If he still thinks that we're rich plaintiffs' attorneys 
     after he's visited our little tiny Mission Street offices, 
     [she said,] then I have a bridge to sell him. Most of the EFF 
     lawyers worked in those big fancy firms for big fancy 
     salaries, and took big pay cuts to join us . . .
       Young lawyers come to me and say, ``I really want to work 
     for EFF--you have such great lawyers.''
       I say: ``Take your current paycheck, rip it in three 
     pieces, take any third, and that's about what you'll get 
     working for EFF.'' The lawyers who work for EFF . . . are 
     making far less than they could on the open market in 
     exchange for being able to work in things they believe in 
     every day.

  Consider the hundreds of lawyers retained by the corporations in 
question, and their multimillion-dollar legal budgets, and the attempt 
to portray them as pitiable Davids is ludicrous. Sprint's lawyers 
recently settled an unrelated class-action lawsuit for $30 million. 
Three years ago, AT&T handled a settlement with shareholders for $100 
  With those resources, I think they can give EFF's nine nonprofit 
lawyers in their little office on Mission Street a fair fight.
  Mr. President, I don't presume to know how that fight will end. I 
don't presume to hand out innocence and guilt--that's not my job. 
Judges and juries do that. And in their search for the truth, the only 
job of this body is to get out of the way.
  I am not invested in one verdict or another--only that a verdict is 
reached. I don't care who the truth favors--only that it comes out at 
  State secrets; future cooperation; economic harms; reputational 
damage; legal burdens--as we've seen, not a single one of the 
President's arguments for this immunity stands. Nothing tells us to 
halt the legal process, to bar the courthouse door. Everything tells us 
to open it.
  Mr. President, perhaps when I leave this floor today, someone will 
ask me, ``Why are you so agitated about some telephone records? There's 
so much else to be worked up about!''
  And I'll only be able to respond: ``Exactly.''
  We have seen this administration chip away at the rule of law at a 
dozen points. Its relentlessness may be its greatest strength--the 
assault becomes numbing, and our healthy outrage grows dull. It was an 
outrage when this President set up secret courts outside the law. It 
was an outrage when he ignored the courts and tapped our phones. It was 
an outrage when he sanctioned torture. But outrage upon outrage upon 
outrage--and we wind up in a stupor. We have allowed each abuse with 
nothing more than a promise to resist the next one--and the next one, 
and the next one.
  I am here, in the end, because the line has to be drawn somewhere. 
Why not here? Why not today?
  So, Mr. President, I urge my colleagues to reject the motion on 
cloture. Let them come back, strip this language out on immunity, and 
give us a clean FISA bill. That is the only right thing to do. The law 
is here to protect all of us. We can have security and liberty.
  As Benjamin Franklin said some 200 years ago:

       Those who would sacrifice liberty for security deserve 
     neither security nor liberty.

  So I urge my colleagues to reject cloture, and then we can send the 
bill forward without that immunity provision.

[[Page S15719]]

  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Missouri.
  Mr. BOND. Mr. President, I yield 13 minutes to the Senator from 
Pennsylvania, then 5 minutes to Senator Sessions, 5 minutes to Senator 
Chambliss, and 5 minutes to Senator Kyl. That would conclude the time 
on our side, and I think that will put us at a vote or it will consume 
the time on our side. So I unanimous consent that be the order.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Pennsylvania is recognized.
  Mr. SPECTER. I thank the Senator from Missouri for yielding me the 
time, and I wish to begin with the comment made by the Senator from 
Connecticut raising a question about the grant of retroactivity 
immunity. I believe that had that provision not been in the Senate 
bill, it would be a great deal easier to deal with, although there are 
some substantial problems with the bill as such, even in addition to 
the provision on retroactive immunity.
  But I support the motion to invoke cloture because I believe it is 
necessary to deal with the fight against terrorism, and I think the 
Government has made a case for some expanded powers, although I think 
we have to weigh them very carefully--to fight terrorism but still 
protect civil liberties in this country.
  I have a strong objection to the provision in the bill relating to 
retroactive immunity, and my objection goes to the point that the 
administration did not follow the provisions of law in notifying the 
Intelligence Committees of the House and Senate or the chairman and 
ranking member of the Judiciary Committees about this program. To come 
at a later date and seek retroactive immunity I think is inappropriate.
  I found out about it when I was chairman of the Judiciary Committee 
last year, and I moved to subpoena the records of the telephone 
company, and then I moved to go into a closed session. While that was 
in process, Vice President Cheney went to the members of the Judiciary 
Committee on the Republican side, without notifying me--which I thought 
was inappropriate--and thwarted the efforts I was making to find out 
what this program was all about.
  I ask unanimous consent to have my letter to Vice President Cheney 
dated June 7, and his reply to me dated June 8, printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                      U.S. Senate,

                                   Committee on the Judiciary,

                                     Washington, DC, June 7, 2006.
     Hon. Richard B. Cheney,
     The Vice President,
     Washington, DC.
       Dear Mr. Vice President: I am taking this unusual step in 
     writing to you to establish a public record. It is neither 
     pleasant nor easy to raise these issues with the 
     Administration of my own party, but I do so because of their 
       No one has been more supportive of a strong national 
     defense and tough action against terrorism than I. However, 
     the Administration's continuing position on the NSA 
     electronic surveillance program rejects the historical 
     constitutional practice of judicial approval of warrants 
     before wiretapping and denigrates the constitutional 
     authority and responsibility of the Congress and specifically 
     the Judiciary Committee to conduct oversight on 
     constitutional issues.
       On March 16, 2006, I introduced legislation to authorize 
     the Foreign Intelligence Surveillance Court to rule on the 
     constitutionality of the Administration's electronic 
     surveillance program. Expert witnesses, including four former 
     judges of the FISA Court, supported the legislation as an 
     effective way to preserve the secrecy of the program and 
     protect civil rights. The FISA Court has an unblemished 
     record for keeping secrets and it has the obvious expertise 
     to rule on the issue. The FISA Court judges and other experts 
     concluded that the legislation satisfied the case-in-
     controversy requirement and was not a prohibited advisory 
     opinion. Notwithstanding my repeated efforts to get the 
     Administration's position on this legislation, I have been 
     unable to get any response, including a ``no''.
       The Administration's obligation to provide sufficient 
     information to the Judiciary Committee to allow the Committee 
     to perform its constitutional oversight is not satisfied by 
     the briefings to the Congressional Intelligence Committees. 
     On that subject, it should be noted that this Administration, 
     as well as previous Administrations, has failed to comply 
     with the requirements of the National Security Act of 1947 to 
     keep the House and Senate Intelligence Committees fully 
     informed. That statute has been ignored for decades when 
     Presidents have only informed the so-called ``Gang of 
     Eight,'' the Leaders of both Houses and the Chairmen and 
     Ranking on the Intelligence Committees. From my experience as 
     a member of the ``Gang of Eight'' when I chaired the 
     Intelligence Committee of the 104th Congress, even that group 
     gets very little information. It was only in the face of 
     pressure from the Senate Judiciary Committee that the 
     Administration reluctantly informed subcommittees of the 
     House and Senate Intelligence Committees and then agreed to 
     inform the full Intelligence Committee members in order to 
     get General Hayden confirmed.
       When there were public disclosures about the telephone 
     companies turning over millions of customer records involving 
     allegedly billions of telephone calls, the Judiciary 
     Committee scheduled a hearing of the chief executive officers 
     of the four telephone companies involved. When some of the 
     companies requested subpoenas so they would not be 
     volunteers, we responded that we would honor that request. 
     Later, the companies indicated that if the hearing were 
     closed to the public, they would not need subpoenas.
       I then sought Committee approval, which is necessary under 
     our rules, to have a closed session to protect the 
     confidentiality of any classified information and scheduled a 
     Judiciary Committee Executive Session for 2:30 P.M. yesterday 
     to get that approval.
       I was advised yesterday that you had called Republican 
     members of the Judiciary Committee lobbying them to oppose 
     any Judiciary Committee hearing, even a closed one, with the 
     telephone companies. I was further advised that you told 
     those Republican members that the telephone companies had 
     been instructed not to provide any information to the 
     Committee as they were prohibited from disclosing classified 
       I was surprised, to say the least, that you sought to 
     influence, really determine, the action of the Committee 
     without calling me first, or at least calling me at some 
     point. This was especially perplexing since we both attended 
     the Republican Senators caucus lunch yesterday and I walked 
     directly in front of you on at least two occasions enroute 
     from the buffet to my table.
       At the request of Republican Committee members, I scheduled 
     a Republican members meeting at 2:00 P.M. yesterday in 
     advance of the 2:30 P.M. full Committee meeting. At that 
     time, I announced my plan to proceed with the hearing and to 
     invite the chief executive officers of the telephone 
     companies who would not be subject to the embarrassment of 
     being subpoenaed because that was no longer needed. I 
     emphasized my preference to have a closed hearing providing a 
     majority of the Committee agreed.
       Senator Hatch then urged me to defer action on the 
     telephone companies hearing, saying that he would get 
     Administration support for my bill which he had long 
     supported. In the context of the doubt as to whether there 
     were the votes necessary for a closed hearing or to proceed 
     in any manner as to the telephone companies, I agreed to 
     Senator Hatch's proposal for a brief delay on the telephone 
     companies hearing to give him an opportunity to secure the 
     Administration's approval of the bill which he thought could 
     be done. When I announced this course of action at the full 
     Committee Executive Session, there was a very contentious 
     discussion which is available on the public record.
        It has been my hope that there could be an accommodation 
     between Congress's Article I authority on oversight and the 
     President's constitutional authority under Article II. There 
     is no doubt that the NSA program violates the Foreign 
     Intelligence Surveillance Act which sets forth the exclusive 
     procedure for domestic wiretaps which requires the approval 
     of the FISA Court. It may be that the President has inherent 
     authority under Article II to trump that statute but the 
     President does not have a blank check and the determination 
     on whether the President has such Article II power calls for 
     a balancing test which requires knowing what the surveillance 
     program constitutes.
       If an accommodation cannot be reached with the 
     Administration, the Judiciary Committee will consider 
     confronting the issue with subpoenas and enforcement of that 
     compulsory process if it appears that a majority vote will be 
     forthcoming. The Committee would obviously have a much easier 
     time making our case for enforcement of subpoenas against the 
     telephone companies which do not have the plea of executive 
     privilege. That may ultimately be the course of least 
       We press this issue in the context of repeated stances by 
     the Administration on expansion of Article II power, 
     frequently at the expense of Congress's Article I authority. 
     There are the Presidential signing statements where the 
     President seeks to cherry-pick which parts of the statute he 
     will follow. There has been the refusal of the Department of 
     Justice to provide the necessary clearances to permit its 
     Office of Professional Responsibility to determine the 
     propriety of the legal advice given by the Department of 
     Justice on the electronic surveillance program. There is the 
     recent Executive Branch search and seizure of Congressman 
     Jefferson's office. There are recent and repeated assertions 
     by the Department of Justice that it has the authority to 
     criminally prosecute newspapers and reporters under highly 
     questionable criminal statutes.
       All of this is occurring in the context where the 
     Administration is continuing

[[Page S15720]]

     warrantless wiretaps in violation of the Foreign Intelligence 
     Surveillance Act and is preventing the Senate Judiciary 
     Committee from carrying out its constitutional responsibility 
     for Congressional oversight on constitutional issues. I am 
     available to try to work this out with the Administration 
     without the necessity of a constitutional confrontation 
     between Congress and the President.
     Arlen Specter.

                                           The Vice President,

                                         Washington, June 8, 2006.
     Hon. Arlen Specter,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman: This is in response to your letter of 
     June 7, 2006 concerning the Terrorist Surveillance Program 
     (TSP) the Administration has described. The commitment in 
     your letter to work with the Administration in a non-
     confrontational manner is most welcome and will, of course, 
     be reciprocated.
       As recently as Tuesday of this week, I reiterated that, as 
     the Administration has said before, while there is no need 
     for any legislation to carry out the Terrorist Surveillance 
     Program, the Administration will listen to the ideas of 
     legislators about terrorist surveillance legislation and work 
     with them in good faith. Needless to say, that includes you, 
     Senator DeWine and others who have ideas for such 
     legislation. The President ultimately will have to make a 
     decision whether any particular legislation would strengthen 
     the ability of the Government to protect Americans against 
     terrorists, while protecting the rights of Americans, but we 
     believe the Congress and the Administration working together 
     can produce legislation to achieve that objective, if that is 
     the will of the Congress.
       Having served in the executive branch as chief of staff for 
     one President and as Secretary of Defense for another, having 
     served in the legislative branch as a Representative from 
     Wyoming for a decade, and serving now in a unique position 
     under the Constitution with both executive functions and 
     legislative functions, I fully understand and respect the 
     separate constitutional roles of the Congress and the 
     Presidency. Under our constitutional separation between the 
     legislative powers granted to Congress and the executive 
     power vested exclusively in the Presidency, differences of 
     view may occur from time to time between the branches, but 
     the Government generally functions best when the legislative 
     branch and the executive branch work together. And I believe 
     that both branches agree that they should work together as 
     Congress decides whether and how to pursue further terrorist 
     surveillance legislation
       Your letter addressed four basic subjects: (1) the legal 
     basis for the TSP; (2) the Administration position on 
     legislation prepared by you relating to the TSP; (3) 
     provision of information to Congress about the TSP; and (4) 
     communications with Senators on the Judiciary Committee about 
     the TSP.
       The executive branch has conducted the TSP, from its 
     inception on October 4, 2001 to the present, with great care 
     to operate within the law, with approval as to legality of 
     Presidential authorizations every 45 days or so by senior 
     Government attorneys. The Department of Justice has set forth 
     in detail in writing the constitutional and statutory bases, 
     and related judicial precedents, for warrantless electronic 
     surveillance under the TSP to protect against terrorism, and 
     that information has been made available to your Committee 
     and to the public.
       Your letter indicated that you have repeatedly requested an 
     Administration position on legislation prepared by you 
     relating to the TSP program. If you would like a formal 
     Administration position on draft legislation, you may at any 
     time submit it to the Attorney General, the Director of 
     National Intelligence, or the Director of the Office of 
     Management and Budget (OMB) for processing, which will 
     produce a formal Administration position. Before you do so, 
     however, it might be more productive for executive branch 
     experts to meet with you, and perhaps Senator DeWine or other 
     Senators as appropriate, to review the various bills that 
     have been introduced and to share the Administration's 
     thoughts on terrorist surveillance legislation. Attorney 
     General Alberto R. Gonzales and Acting Assistant Attorney 
     General for the Office of Legal Counsel Steven G. Bradbury 
     are key experts upon whom the executive branch would rely for 
     this purpose. I will ask them to contact you promptly so that 
     the cooperative effort can proceed apace.
       Since the earliest days of the TSP, the executive branch 
     has ensured that, consistent with the protection of the 
     sensitive intelligence sources, methods and activities 
     involved, appropriate members of Congress were briefed 
     periodically on the program. The executive branch kept 
     principally the chairman and ranking members of the 
     congressional intelligence committees informed and later 
     included the congressional leadership. Today, the full 
     membership of both the House Permanent Select Committee on 
     Intelligence and the Senate Select Committee on Intelligence 
     (including four Senators on that Committee who also serve on 
     your Judiciary Committee) are fully briefed on the program. 
     As a matter of inter-branch comity and good executive-
     legislative practice, and recognizing the vital importance of 
     protecting U.S. intelligence sources, methods and activities, 
     we believe that the country as a whole, and the Senate and 
     the House respectively, are best served by concentrating the 
     congressional handling of intelligence matters within the 
     intelligence committees of the Congress. The internal 
     organization of the two Houses is, of course, a matter for 
     the respective Houses. Recognizing the wisdom of the 
     concentration within the intelligence committees, the rules 
     of the Senate (S. Res. 400 of the 94th Congress) and the 
     House (Rule X, cl. 11) creating the intelligence committees 
     mandated that the intelligence committees have cross-over 
     members who also serve on the judiciary, foreign/
     international relations, armed services, and appropriations 
       Both in performing the legislative functions of the Vice 
     Presidency as President of the Senate and in performing 
     executive functions in support of the President, I have 
     frequent contact with Senators, both at their initiative and 
     mine. We have found such contacts helpful in maintaining good 
     relations between the executive and legislative branch es and 
     in advancing legislation that serves the interests of the 
     American people. The respectful and candid exchange of views 
     is something to be encouraged rather than avoided. Indeed, 
     recognizing the importance of such communication, the first 
     step the Administration took, when it learned that you might 
     pursue use of compulsory process in an attempt to force 
     testimony that may involve extremely sensitive classified 
     information, was to have one of the Administration's most 
     senior officials, the Chief of Staff to the President of the 
     United States, contact you to discuss the matter. Thereafter, 
     I spoke with a number of other Members of the Senate 
     Leadership and the Judiciary Committee. These communications 
     are not unusual--they are the Government at work.
       While there may continue to be areas of disagreement from 
     time to time, we should proceed in a practical way to build 
     on the areas of agreement. I believe that other Senators and 
     you, working with the executive branch, can find the way 
     forward to enactment of legislation that would strengthen the 
     ability of the Government to protect Americans against 
     terrorists, while continuing to protect the rights of 
     Americans, if it is the judgment of Congress that such 
     legislation should be enacted. We look forward to working 
     with you, knowing of the good faith on all sides.
                                                      Dick Cheney.

  Mr. SPECTER. The telephone companies, I do believe, have acted as 
good citizens. I would not want to see them pay damages because they 
were responding to a governmental request. So my idea, in order to 
strike a balance between the Senate bill which grants retroactive 
immunity and the House bill which leaves it out, would be instead to 
provide for the Government to be substituted as a party for telephone 
  Toward that end, I have introduced S. 2402, which was considered by 
the Judiciary Committee last week and did not pass, on a vote of 13 to 
5. Since that time, I have heard from other Senators that they think it 
is a good idea. I believe it has to be explored and will be explored 
because I will offer it as an amendment to this bill as soon as I have 
an opportunity to do so.
  What my idea does, essentially, is to substitute the Federal 
Government as the party defendant for the telephone companies in the 
cases which have been initiated. The Government would stand in the 
shoes of the telephone companies, with no more and no less defenses 
available. For example, governmental immunity would not be available as 
a defense to the Government because obviously the telephone companies 
do not have governmental immunity.
  The telephone companies, I think, or the defendants in these cases 
are highly unlikely to pay damages. But I believe it is very important 
that the courts not be foreclosed from making a judicial determination 
on the issues which are involved. Part of the concern I have is that 
the Government is now coming forward to try to have retroactive 
immunity, to absolve them from any potential wrongdoing in the past. I 
do not know whether there is wrongdoing, but I do not believe that it 
is appropriate for the Federal Government to act secretly, 
surreptitiously, not tell the intelligence committees as required by 
law, not tell the chairman and ranking member of the Judiciary 
Committee, and then come back at a later date and say: Please exonerate 
us. If we give that kind of a blank check, carte blanche to the 
executive officials, it would be a terrible, devastating precedent for 
the future.
  I believe it is necessary for the judicial actions to run their 
course. Again, let me say I think it is highly questionable that any of 
the plaintiffs will succeed. The defense of state secrets has been 
interposed in the cases against

[[Page S15721]]

the telephone companies. Similarly, the Government would have that 
defense if it were substituted in their stead.
  But the fact is that the Congress has not been successful in 
conducting oversight of the Federal Government. The terrorist 
surveillance program was in existence from October of 2001 until 
December of 2005, before the Congress ever found out about it. Then we 
didn't find out about it as a result of our oversight activities; we 
found out about it because it was disclosed in a New York Times story.
  I remember the morning well. I was managing the PATRIOT Act re-
authorization, to try the give the U.S. Government adequate powers to 
fight terrorism. Right in the middle of the final day of our 
consideration, the story broke about the secret terrorist surveillance 
program, and the comment was made on the floor of the Senate by one 
Senator that he was prepared to vote for the PATRIOT Act but not after 
he found out about the terrorist surveillance program.
  The Federal Government did not notify the Intelligence Committees as 
required by law until well after the New York Times article. Then they 
notified the Intelligence Committees only because they felt compelled 
to do so in order to get General Hayden confirmed.
  There is a long list of efforts by congressional oversight which have 
been insufficient: the signing statements in which the President has 
cherry-picked, taking provisions he likes and excluding provisions he 
doesn't like. Senator McCain and the President personally negotiated 
the question of interrogation in the Detainee Treatment Act. There was 
language put in, on a 90-to-9 vote, limiting interrogation practices. 
Then, when the President signed the bill, he made an exclusion, saying 
that his constitutional authority under article II would enable him to 
ignore some of those provisions.
  Similarly, on the PATRIOT Act re-authorization, we negotiated certain 
oversight, and then the President issued a signing statement again 
saying there were some items which he would feel free to disregard on 
the oversight provisions.
  On habeas corpus and detention, the Congress has been totally 
ineffective at any oversight; it is only the Supreme Court of the 
United States in Rasul and in a case now pending, Boumediene, argued 
recently in the Supreme Court. So the judicial oversight on checks and 
balances and on separation of powers, I believe, is indispensable.
  We have within the past few days another instance of executive 
resistance to congressional oversight. Senator Leahy and I wrote to the 
Attorney General recently--a week ago today--inquiring about the 
destruction of the tapes by the CIA. The Attorney General responded 
last week, on December 14, denying our request for information.
  I ask unanimous consent to have the Attorney General's letter printed 
in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                               Office of the Attorney General,

                               Washington, DC., December 14, 2007.
     Hon. Patrick J. Leahy,
     Chairman, Committee on the Judiciary, U.S. Senate, 
         Washington, DC.
     Hon. Arlen Specter,
     Ranking Member, Committee on the Judiciary U.S. Senate, 
         Washington, DC.
       Dear Mr. Chairman and Senator Specter: Thank you for your 
     letter of December 10, 2007, regarding your concerns about 
     the reported destruction by the Central Intelligence Agency 
     (CIA) of videotapes showing interrogations of detainees and 
     the Department's review of this matter.
       As you note, the Department's National Security Division is 
     conducting a preliminary inquiry in conjunction with the 
     CIA's Office of Inspector General. Enclosed please find a 
     letter from Assistant Attorney General Kenneth L. Wainstein 
     to CIA Acting General Counsel John A. Rizzo, which provides 
     some further detail regarding this inquiry, and which was 
     released to the public on December 8.
       As to your remaining questions, the Department has a 
     longstanding policy of declining to provide non-public 
     information about pending matters. This policy is based in 
     part on our interest in avoiding any perception that our law 
     enforcement decisions are subject to political influence. 
     Accordingly, I will not at this time provide further 
     information in response to your letter, but appreciate the 
     Committee's interests in this matter. At my confirmation 
     hearing, I testified that I would act independently, resist 
     political pressure and ensure that politics plays no role in 
     cases brought by the Department of Justice. Consistent with 
     that testimony, the facts will be followed wherever they lead 
     in this inquiry, and the relevant law applied.
       Finally, with regard to the suggestion that I appoint a 
     special counsel, I am aware of no facts at present to suggest 
     that Department attorneys cannot conduct this inquiry in an 
     impartial manner. If I become aware of information that leads 
     me to a different conclusion, I will act on it.
       I hope that this information is helpful.
                                               Michael B. Mukasey,
     Attorney General.

                                            Department of Justice,

                                   National Security Division,

                                Washington, DC., December 8, 2007.
     John A. Rizzo,
     Acting General Counsel, Central Intelligence Agency, 
         Washington, DC.
       Dear Mr. Rizzo: I am writing this letter to confirm our 
     discussions over the past several days regarding the 
     destruction of videotapes of interrogations conducted by the 
     Central Intelligence Agency (CIA). Consistent with these 
     discussions, the Department of Justice will conduct a 
     preliminary inquiry into the facts to determine whether 
     further investigation is warranted. I understand that you 
     have undertaken to preserve any records or other 
     documentation that would facilitate this inquiry. The 
     Department will conduct this inquiry in conjunction with the 
     CIA's Office of Inspector General (OIG).
       My colleagues and I would like to meet with your Office and 
     OIG early next week regarding this inquiry. Based on our 
     recent discussions, I understand that your Office has already 
     reviewed the circumstances surrounding the destruction of the 
     videotapes, as well as the existence of any pending relevant 
     investigations or other preservation obligations at the time 
     the destruction occurred. As a first step in our inquiry, I 
     ask that you provide us the substance of that review at the 
       Thank you for your cooperation with the Department in this 
     matter. Please feel free to contact me if you have any 

                                         Kenneth L. Wainstein,

                                       Assistant Attorney General,
                                       National Security Division.

  Mr. SPECTER. It surprised me that the Attorney General would say that 
in light of his very recent statements made during the confirmation 
hearings. ``If confirmed, I will review Department of Justice policies 
with a goal of ensuring that Congress is able to carry out meaningful 
  When I talked to Judge Mukasey in advance of the confirmation 
hearings and gave him a copy of the letter which I had sent to Attorney 
General Gonzales, Judge Mukasey agreed with the standards established 
by the Congressional Research Service, saying that these are within the 
bounds of congressional authority on oversight.

       [A] review of congressional investigations that have 
     implicated DOJ, or DOJ investigations over the past 70 years, 
     from the Palmer Raids and Teapot Dome to Watergate, and 
     through Iran Contra and Rocky Flats, demonstrates that the 
     Department of Justice has consistently been obliged to submit 
     to congressional oversight. . . .


       . . . testimony of subordinate DOJ employees, such as line 
     attorneys and FBI field agents, was taken. . . .


       In all instances, investigating committees were provided 
     with documents respecting open or closed cases.

  So here is another example of congressional oversight being thwarted, 
so that when you have a challenge to what has been done by the 
telephone companies here and you have litigation in progress, I believe 
it to be most inappropriate for the Congress to intercede and grant 
immunity retroactively.
  I believe our Federal investigative agencies need very substantial 
powers in the fight against terrorism. I have discussed the issue with 
Director of National Intelligence McConnell about granting the 
Government authority to acquire the cooperation of the telephone 
companies prospectively. I am waiting for a briefing on the issue, to 
understand the full import of what it is that the Director of National 
Intelligence wants. I am open to granting those powers prospectively, 
but I do not believe, in the context of what has happened here, that it 
would be advisable to retroactively give these officials a blank check 
when they kept these matters secret from the oversight committees, and 
when the Judiciary Committee sought to have subpoenas to find out about 
it, and we were thwarted in that effort, as disclosed by the exchange 
of letters between the Vice President and myself, made a part of the 

[[Page S15722]]

  I note my time has expired. I thank the Chair and yield the floor.
  The PRESIDING OFFICER. Who yields time? The Senator from Alabama.
  Mr. SESSIONS. Mr. President, Senator Feingold may have been next, and 
I see he has returned. I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, I thank the Senator from Alabama for his 
  Mr. President, I oppose cloture on the motion to proceed to S. 2248, 
as reported by the Senate Intelligence Committee. This bill is deeply 
flawed, and I am very disappointed by the decision to take it up on the 
Senate floor rather than the better bill reported by the Judiciary 
  Before leaving town for the August recess, Congress bowed to pressure 
from the administration, and vastly expanded the Government's ability 
to eavesdrop without a court-approved warrant. That legislation, the 
so-called Protect America Act, 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.
  The Senate should be taking this opportunity to fix its mistakes and 
pass a new bill that gives the Government all the tools it needs to spy 
on suspected terrorists but also protects Americans' basic freedoms. 
This time around, the Senate should stand up to an Administration that 
time and again has employed fear-mongering and misleading statements to 
intimidate Congress.
  The fact is, the Intelligence Committee bill doesn't fix those 
mistakes, and it is not the bill we should be considering on the Senate 
  I do agree with the administration on one point--Congress should make 
clear that when foreign terrorists are communicating with each other 
overseas, the U.S. Government doesn't need a warrant to listen in, even 
if the collection activity ends up taking place in this country because 
of the way modern communications are routed. Unfortunately, both the 
Protect America Act and the bill approved by the Senate Intelligence 
Committee go far beyond fixing that problem and also authorize 
widespread surveillance involving Americans--at home and abroad.
  The bill we should be considering is the Judiciary Committee bill, 
which 14 Senators urged the majority leader to take up, in a letter 
last week.
  The Judiciary Committee bill made critical improvements to ensure 
independent judicial oversight of these sweeping new powers and to 
better protect innocent Americans. The Judiciary bill does not contain 
a new form of retroactive immunity for companies that allegedly 
cooperated with an illegal wiretapping program that lasted for more 
than 5 years. And, while the Intelligence Committee bill was drafted 
and debated behind closed doors and in close consultation with the 
administration, the Judiciary bill was the product of an open process 
with the input of experts from a variety of perspectives.
  The Judiciary Committee bill is not perfect. It needs further 
improvement. But it would be a vastly better starting point for Senate 
consideration than the bill that the majority leader has brought to the 
floor, which simply gives the administration everything it was 
demanding, no questions asked.
  The stakes are high. I want my colleagues to understand the impact 
that the Protect America Act and the Intelligence Committee bill could 
have on the privacy of Americans. These bills do not just authorize the 
6 unfettered surveillance of people outside the United States 
communicating with each other. They also permit the Government to 
acquire those foreigners' communications with Americans inside the 
United States, regardless of whether anyone involved in the 
communication is under any suspicion of wrongdoing.
  There is no requirement that the foreign targets of this surveillance 
be terrorists, spies or other types of criminals. The only requirements 
are that the foreigners are outside the country, and that the purpose 
is to obtain foreign intelligence information, a term that has an 
extremely broad definition.
  There is no requirement that the foreign targets of this surveillance 
be terrorists, spies, or any other kind of criminal. The only 
requirements are that foreigners are outside the country, that the 
purpose is to obtain foreign intelligence information, a term that has 
an extremely broad definition.
  No court reviews these targets individually. Only the executive 
branch decides who fits these criteria. The result is that many law-
abiding Americans who communicate with completely innocent people 
overseas will be swept up in this new form of surveillance, with 
virtually no judicial involvement.
  Even the administration's illegal warrantless wiretapping program, as 
described when it was publicly confirmed in 2005, at least focused on 
particular terrorists. What we are talking about now is a huge dragnet 
that will sweep up innocent Americans.
  In America, we understand that if we happen to be talking to a 
criminal or terrorist suspect, our conversations might be heard by the 
Government. But I do not think many Americans expect the Government to 
be able to listen into every single one of their international 
communications with people about whom there are no suspicions 
  These incredibly broad authorities are particularly troubling because 
we live in a world in which international communications are 
increasingly commonplace. Thirty years ago, it was very expensive, and 
not common, for many Americans to make an overseas call. But now, 
particularly with e-mail, such communications are commonplace. Millions 
of ordinary, and innocent, Americans communicate with people overseas 
for entirely legitimate personal and business reasons.
  Parents of children call family members overseas. Students e-mail 
friends they have met while studying abroad. Businesspeople communicate 
with colleagues or clients overseas. Technological advancements 
combined with the ever 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 look at the 
greater need for the privacy of our citizens.
  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. We can do that, as the Senator from Connecticut said, 
without sacrificing our ability to collect information that will 
protect our national security.
  To take one example, a critical difference between the Intelligence 
and Judiciary bills is the role of the court. The Judiciary bill gives 
the secret FISA Court new authority to operate as an independent check 
on the executive branch.
  It gives the court authority to assess the Government's compliance to 
wiretapping procedures, to place limits on the use of information that 
was acquired through unlawful procedures, and then gives the court, as 
most courts should have, the ability to enforce its own orders.
  The Judiciary bill also does a better job of protecting Americans 
from widespread warrantless wiretapping. It prohibits so-called bulk 
collection. What is that? Vacuuming up basically all the communications 
between the United States and overseas, which the DNI admitted is legal 
under the PAA. And it ensures that if the Government is wiretapping a 
foreigner overseas in order to really collect the communications of the 
American with whom that foreign target is communicating, what is called 
reverse targeting, well, in that case it has to get a court order on 
that American. Well, none of these changes hinders the Government's 
ability to protect national security.
  The process by which the Judiciary Committee considered, drafted, 
amended, and reported out its bill was an open one, allowing outside 
experts and the public at large the opportunity to review and comment. 
With regard to legislation so directly connected to the constitutional 
rights of Americans, I think the result of this open process

[[Page S15723]]

should be accorded great weight, especially in light of the Judiciary 
Committee's unique role and expertise in protecting those rights.
  Now, I am certain that over the course of this week we will hear a 
number of arguments about why the Judiciary bill will hamper the fight 
against terrorism. Well, let me say now to my colleagues: Do not 
believe everything you hear. Last week I sat with many of you in the 
secure room in the Capitol and listened to arguments made by the 
Director of National Intelligence and by our Attorney General.
  I can tell you with absolute certainty that several of the examples 
they gave were simply wrong, simply false. I am happy to have a 
classified meeting with anyone in this body who wishes to discuss that. 
This is not about whether we will be effective in combating terrorism. 
Both bills allow that. This is about whether the court should have an 
independent oversight role and whether Americans deserve more privacy 
protections than foreigners overseas. All of this should sound familiar 
to those who followed previous debates about fighting terrorism while 
protecting American's civil liberties in the post-9/11 world.
  The administration says--and again, following on what the Senator 
from Connecticut said--the administration basically says: Trust us. We 
do not need judicial oversight. The court will just get in our way. You 
never know when they might tell us what we are doing is 
unconstitutional. We would prefer to make that decision on our own.
  Time and again, that has proved to be a foolish and counterproductive 
attitude, and sadly, despite the objections of many of us in this 
Chamber, too many times, Congress has just gone along. We do not have 
to make that same mistake again. In this case we have a factual record 
to help us evaluate whether we should simply trust the administration 
or whether we should write protections into the law.
  The Protect America Act has only been in effect for 4\1/2\ months, 
and we are still missing key information about it. The Intelligence 
Committee has recently been provided some basic information about its 
implementation. Based on what I have learned, I have very serious 
questions about the way the administration is interpreting and 
implementing the Protect America Act, including its effect on the 
privacy of Americans.
  I will shortly be sending the Director of National Intelligence a 
classified letter detailing my concerns which are directly relevant to 
the legislation we are considering. I regret this information is 
classified, so I cannot discuss it here. I regret that more of my 
colleagues have not been privy to this information prior to this floor 
debate, but I would be happy to share a copy of my letter in an 
appropriate classified setting with any Senator who wishes to review 

  I have been speaking for some time now about my strong opposition to 
the Intelligence Committee bill, and I have not even addressed one of 
the more outrageous elements of the 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 in the late 1970s, with the participation of the 
telecommunications industry.
  The law is clear. Companies already 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.
  So this is not about whether the companies had good intentions or 
acted in good faith; it is about whether they complied with this 
statutory immunity provision, which has applied for 30 years. If the 
companies follow that law, they should get immunity. If they did not 
follow that law, they should not get immunity. 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 do not for a reason. Those companies have access to our 
most private communications, so Congress has correctly 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.
  We have heard a lot of arguments about needing technical cooperation 
of carriers in the future. We do need that cooperation, but we also 
need to make sure carriers do not cooperate with illegitimate requests. 
We already have a law that tells companies when they should and when 
they should not cooperate, so they are not placed in the position of 
having to somehow independently evaluate whether the Government's 
request for help is legitimate.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent for 3 additional 
  Mr. SESSIONS. Mr. President, reserving the right to object, is the 
Senator's request for 3 additional minutes on each side?
  Mr. FEINGOLD. I would not object to that.
  The PRESIDING OFFICER. Without objection, 3 minutes will be added to 
each side.
  Mr. FEINGOLD. 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, the Intelligence Committee 
bill sends the message that companies need not worry, they do not have 
to worry about complying with questionable Government requests in the 
future, because they will be bailed out. This is outrageous. Even more 
outrageous is the fact that if these lawsuits are dismissed, the courts 
may never rule on the NSA wiretapping program.
  So what this is is an ideal outcome for an administration that 
believes it should be able to interpret laws on its own without 
worrying about how Congress wrote them or what a judge thinks. For 
those of us who believe in three independent and coequal branches of 
Government, this is a disaster.
  For all of these reasons, I oppose closure on the motion to proceed 
to the Intelligence Committee bill. I fear we are about to make the 
same mistake we made with the PATRIOT Act. We passed that law without 
taking the time to consider its implications, and we did not do enough 
during the reauthorization process to fix it. As a result, three 
Federal courts have struck down provisions of the PATRIOT Act as 
unconstitutional, and that is right back where we are going to end up 
if we do not do our jobs now and fix the Protect America Act.
  I urge my colleagues to vote no on cloture.
  I yield the floor and reserve the remainder of our time.
  The PRESIDING OFFICER. Who yields time?
  Mr. SESSIONS. Mr. President, I believe the last unanimous consent 
agreement was that there would be 5 minutes for Senators Kyl, 
Chambliss, and myself. We have added 3 minutes to that. I ask unanimous 
consent that we each have 6 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I appreciate my colleague, Senator 
Feingold, and his passionate argument, but I am going to tell my 
colleagues that this Congress and this Government of the United States 
are capable of overreacting. We are capable of getting excited about an 
issue and taking theoretical positions that end up, as a practical 
matter, leaving our country at greater risk. This is not just an item 
of discussion; it is very real.
  I would point out to my colleagues that we have made two dramatic 
errors some years ago in a situation just like this, on emotion driven 
by our civil libertarian friends, such that a wall was put up between 
the FBI and the CIA which barred the sharing of information between 
those two critical agencies.
  We also mandated that the Central Intelligence Agency officers could 
not obtain information from people deemed to be dangerous. Bad people. 
How do you get information in the world and protect America and our 
legitimate national interests without sources? Those became laws.

[[Page S15724]]

  And what happened after we were attacked on 9/11? Both those rules 
that we imposed on our military intelligence agencies were deemed to be 
bogus, wrong, and mistaken, colossally so. Many Members of this body 
were warned when they were made the law of the United States, they were 
warned then that if we did these things it was not wise. But, oh no, 
the others loved the Constitution more, they loved liberty more, so 
these unwise laws were passed. And what happened afterwards, after 9/
11? Well, we properly removed both of those silly rules. We have taken 
them off the books, in a bipartisan, unanimous way. They were never 
required by the Constitution. They were never sensible from the 
beginning. But we passed them on emotion not reason. Some ideas being 
promoted now are not sensible either and can leave our country in 
dangerous straits. So this is an important matter. These things are 
life and death issues.
  Last year, a Federal court ruled, based on changes in technology, 
that those laws we passed effectively limited the collection of 
critical communications of foreign intelligence. It was not the 
intention of Congress when we passed it, I am sure, that the law would, 
in effect, end up gutting perhaps the most important surveillance 
program we have against international terrorists, but that was the 
effect of it.
  Admiral McConnell was flabbergasted. He came to us and pleaded with 
us to give him relief. So what happened? Well, he said this to us. 
Listen to these words. Basically this is what he said: The United 
States was unable to conduct critical surveillance of . . . foreign 
terrorists planning to conduct attacks inside our country.
  That is basically--that is what he said to us. That is a dramatic 

  So what happened? Congress went through an intense study, and we 
passed the Protect America Act this past summer. Some people said: This 
is a rush, though we spent weeks on it. Congress spent a lot of time 
working on it. But we said: OK, it will come back up for 
reauthorization in February. As of this date, there has been no example 
of abuse of that act.
  Senator Feingold says these intelligence procedures were illegal 
wiretapping. I think that is really not a fair thing to say. A court 
ruled that these procedures we had been using for some time, must, 
according to statutes we passed, go through a certain number of 
procedural hoops that, as a practical matter, would have eliminated the 
possibility of us continuing these surveillance techniques. That is 
what they ruled. I don't think we ever intended this to be the effect, 
but the court probably ruled fairly on the law. I am not sure. We are 
stuck with the ruling regardless.
  I don't think it is fair to say the program was illegal. But 
certainly the procedures were not unconstitutional because this summer, 
when we passed the Protect America Act, we effectively concluded the 
program was good and constitutional. We affirmed the program.
  I want to say, if we have any humor left on this subject, perhaps we 
ought to write President Bush a letter and tell him: Thank you. We are 
sorry we accused you of violating our Constitution and basic civil 
liberties. After the Congress spent weeks studying this, we passed a 
law that basically allowed the program to continue as it was.
  I urge that we do the right thing on this legislation and move 
forward to the Intelligence bill, not the Judiciary bill.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. CHAMBLISS. I rise in support of the motion to proceed to the 
Foreign Intelligence Surveillance Act Amendments Act of 2007. It is 
important to underscore just how critical this legislation is and how 
the bill which was voted out of the Senate Select Committee on 
Intelligence by a vote of 13 to 2 is a comprehensive and bipartisan 
  Some of my colleagues on the other side of the aisle have made 
allegations that this bill will infringe upon Americans' right to 
privacy. This bill only infringes on one group's right to privacy, and 
that is terrorists.
  Prior to congressional action in August, and again if we do not make 
permanent these changes, our intelligence community was unable to 
collect vital foreign intelligence without the prior approval of a 
court. If our intelligence community wanted to direct surveillance at 
an al-Qaida member located in Waziristan who was communicating with 
another terrorist in Germany, they would have to first petition the 
FISA court for approval. In August, our intelligence community told us 
that without updating FISA, they were not just handicapped, they were 
  Congress passed the Protect America Act which temporarily fixed the 
intelligence community's legal gaps. However, the Protect America Act 
will expire in February of 2008. Congress must act swiftly before our 
core collectors are faced with losing valuable intelligence as a result 
of inaction by Congress.
  When FISA was enacted in 1978, it was meant to provide our Government 
with the means to collect foreign intelligence within the United States 
while not infringing upon U.S. citizens' rights. Prior to FISA, the 
courts held that fourth amendment warrant protection applied to 
surveillance in a variety of cases, including the decisions of Katz and 
Keith. Congress reacted to these cases in the criminal and foreign 
intelligence arena by enacting legislation addressing the requirements 
of the fourth amendment in title III of the Omnibus Crime Control and 
Safe Streets Act of 1968 and in FISA.
  While debating FISA, Congress sought to protect the rights of U.S. 
persons from unwarranted Government intrusion while collecting foreign 
intelligence within the United States. The congressional report 
accompanying FISA states:

       The purpose of the bill is to provide a statutory procedure 
     authorizing the use of electronic surveillance in the United 
     States for foreign intelligence purposes.

  Regulating the collection of foreign intelligence, including the 
electronic surveillance of foreign communications made by terrorists, 
was neither contemplated during FISA nor by the courts after enactment 
of FISA. It has been long held that foreigners do not enjoy the 
protection of our Constitution unless they enter the territories of the 
United States, and even FISA provides an exception to that warrant 
requirement if it is unlikely that a U.S. person's communications would 
be intercepted. As an unfortunate consequence of the rapid advancements 
in technology since 1978 and post-Cold War threats, surveillance of 
some overseas communications were subjected to court orders.
  It is now time for Congress to act to make permanent the fix to FISA 
so that our intelligence community has the tools they need to do their 
job in a very professional manner and gather the information necessary 
to protect our national security.
  Let me be clear: These amendments to FISA would only apply to 
surveillance directed at individuals who are located outside the United 
States. This is not meant to intercept conversations between Americans 
or even between two terrorists who are located in the United States. 
The Government still would be required to seek the permission of the 
FISA Court for any surveillance done against people physically located 
within the United States, whether a citizen or not.
  This is not good enough for some Members of Congress. They wish to 
extend the warrant requirement of the fourth amendment currently not 
bestowed under U.S. criminal law and procedure to American citizens 
overseas. The U.S. laws do not extend beyond our border, but the 
Supreme Court has held that certain fundamental rights such as those 
protected by the fifth and sixth amendments, as well as the 
reasonableness requirement of the fourth amendment, do extend to U.S. 
citizens outside the country. However, despite the opportunity, the 
Supreme Court has refused to hold that the warrant clause of the fourth 
amendment applies abroad for U.S. citizens. In a criminal prosecution, 
U.S. courts will accept evidence against U.S. citizens obtained by 
foreign governments without the probable cause demanded by U.S. law. 
U.S. courts recognize that the Bill of Rights does not protect 
Americans from the acts of foreign sovereigns, and excluding evidence 
obtained by them will not deter foreign governments from collecting it. 
Therefore, the evidence can be turned over to the United States and 
used in a criminal prosecution.

[[Page S15725]]

  There was an amendment offered in the Intelligence Committee that 
requires that anytime a U.S. person is a target of surveillance, 
regardless of where the collection occurs, the Attorney General must 
seek approval under title I of FISA for that collection. The amendment 
fails to consider the intelligence community's adherence to current 
regulations which were drafted to comply with the reasonableness 
requirement of the fourth amendment.
  Currently, under Executive Order 12333, section 2.5, the Attorney 
General may authorize the targeting of a U.S. person overseas upon 
finding probable cause to believe that the individual is a foreign 
power or agent of a foreign power. The intelligence community will now 
be required to obtain authorization from the FISA Court prior to 
conducting surveillance against terrorists or spies overseas who assist 
foreign governments merely because they are United States persons. It 
is my belief that the intelligence community has demonstrated to 
Congress how judicious, selective and careful they have been when it 
comes to protecting the very small number of U.S. citizens this applies 
to and does not necessarily need the court to approve their actions 
every step along the way. This complicates, and attempts to 
micromanage, the efforts of our intelligence community. Additionally, 
it prevents the intelligence community from acting quickly and with 
discretion in a process which has worked well to protect U.S. citizens 
for almost 30 years.
  Some of my colleagues have expressed opposition to title II of the 
bill which provides that no civil actions may be brought against 
electronic communication providers if the Attorney General certifies 
that the assistance alleged was in connection with a lawful 
communication intelligence activity authorized by the President and 
designed to detect or prevent a terrorist attack against the United 
States. Providing our telecommunications carriers with liability relief 
is necessary and responsible. The Government often needs assistance 
from the private sector in order to protect our national security and, 
in return, they should be able to rely on the Government's assurances 
that the assistance they provide is lawful and necessary for our 
national security. As a result of this assistance, America's 
telecommunications carriers should not have to front heavy legal 
battles shrouded in secrecy on the Government's behalf.
  The chairman and vice chairman of the Senate Select Committee on 
Intelligence introduced a carefully crafted, bipartisan piece of 
legislation. Although it was not a perfect bill, in committee I was 
willing to forgo offering amendments to support the bipartisan process 
and provide our intelligence community with the minimum requirements it 
needs in an environment with rapidly changing technology. I believe 
that the bill which was ultimately adopted by the committee, and with 
my support, contains troubling language which should be altered before 
enactment. Even so, this legislation is strides ahead of the partisan 
bill passed out of the Judiciary Committee and offered here as a 
  This is not, and should not, be a partisan issue by any means. The 
ability to collect the intelligence necessary to protect our country 
from foreign adversaries and terrorists should not be subjected to 
partisan politics in Congress. Protecting our national security is in 
the interest of all Americans, and Congress should seek to ensure that 
our Nation is protected fully. There are serious differences between 
the substitute bill voted out of the Judiciary Committee and the bill 
voted out of the Intelligence Committee. I urge my colleagues to reject 
the Judiciary Committee's substitute amendment and support the 
carefully crafted bipartisan bill passed out of the Intelligence 
Committee. However, differences of opinion exist and make it essential 
for Congress to examine and debate these issues on the floor. For these 
reasons I support cloture on the motion to proceed to FISA.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I join my colleague from Georgia in 
encouraging support for the motion to proceed so we can begin 
consideration of this important bill. The reason for the FISA bill is 
very straightforward. Technology has outpaced the law. We are now able 
to collect intelligence in ways that were never understood or 
contemplated years ago when the law was drafted. As a result, we need 
to change the law to accommodate that collection.
  Before we changed the law last year, we had lost about two-thirds of 
the ability to collect intelligence against al-Qaida. Clearly, in this 
war against these evildoers, these terrorists, we cannot cede two-
thirds of the playing field to them without any monitoring or 
collection of intelligence against them. When we did the Protect 
America Act last summer, we regained the capability to collect that 
intelligence by conforming the legal procedures to the technology that 
enables us to collect this material.
  Al-Qaida has not ceased to exist after 9/11. In fact, it exists and 
is still desiring to carry out the same kinds of attacks against the 
United States and other countries that it did on 9/11. We know the 
incredible amount of damage that can be inflicted if we are not 
prepared to deal with them. We also know that the best way to deal with 
al-Qaida and the like is to collect intelligence so we can prevent 
attacks from occurring rather than worrying about them after they have 
occurred. That is why it is so important for us to ensure that under 
the law we can engage in the kind of intelligence collection against 
al-Qaida that technology today enables us to do.
  Many of our friends on the other side of the aisle have insisted that 
there be stringent congressional oversight of these programs by which 
we collect the intelligence. No one disputes that is a desirable thing 
to do. That is why this Congress and previous Congresses have agreed on 
a bipartisan basis to create robust oversight of U.S. intelligence 
gathering, even when it is against foreign targets. The agencies 
executing wiretaps and conducting other surveillance must report their 
activities to Congress and to others, so the opportunities for domestic 
political abuse of these authorities is eliminated.
  No one is on a witch hunt against Americans. There is more material 
out there to be collected against foreign targets. Our people certainly 
don't have time to try to spy on Americans. That is not what is 
involved. We have to be careful that in creating this oversight we 
don't cut deeply into the capabilities of our intelligence community, 
that we don't in effect limit what they are able to do.
  If you compare the Intelligence Committee bill with the Judiciary 
bill, you will see that the Judiciary bill would severely limit this 
collection of intelligence. Even the Intelligence Committee bill has 
one major flaw in it. We have to be careful that we don't tie down our 
Intelligence agencies with so many limits on how they can monitor 
foreign terrorist organizations that they really cannot respond to the 
threat that exists.
  Let me give one example. The Intelligence Committee bill, which is 
the bill we are taking up first and which we should adopt, includes a 
provision that has been labeled the Wyden amendment which, as written, 
would require a warrant for any overseas surveillance that is conducted 
for foreign intelligence purposes and targets a U.S. person. As the 
Senator from Georgia pointed out, we already have protocols to deal 
with that, to minimize any potential problems that might arise in 
conducting intelligence that would include a U.S. person. But the way 
the Wyden amendment is written is overly broad and unprecedented.
  Under current law, a warrant would not be required for overseas 
surveillance that is targeted to a U.S. person if that surveillance is 
conducted for purposes of a criminal investigation. So consider the 
anomaly. The Wyden amendment would create a requirement for a warrant 
to go after foreign terrorists involving also potentially U.S. persons, 
but it would not require a warrant in those circumstances of drug 
trafficking or money laundering that involve the very same people. It 
should not be more burdensome to monitor al-Qaida than it is to monitor 
a drug cartel. Yet the Wyden provision literally creates a situation 
where if an overseas group that includes U.S. persons is suspected, for 
example, of smuggling hashish, no warrant is required, but if the

[[Page S15726]]

same overseas group is suspected of plotting to blow up New York City, 
then a warrant would be required. This is not only anomalous; it is bad 
policy. It is the very kind of thing that if, God forbid, another 
attack should occur and we permit this to be written into the law, the 
next 9/11 Commission will criticize the Congress for writing it into 
the statute. We can prevent that from occurring by rejecting the Wyden 
  Let me conclude by asking: What is our goal? Do we want to allow our 
intelligence agencies to use the most up-to-date technology to track 
and prevent attacks by the most evil people in the world today, these 
al-Qaida terrorists, or are we so concerned about some potential 
theoretical, possible situation in which an American citizen's 
communications might be temporarily intercepted, if they call an al-
Qaida person or an al-Qaida person calls them, that we are not going to 
take advantage of these intelligence-collection techniques?
  We can write the law to ensure the protection of every U.S. person. 
We need to do that. But we cannot restrict our intelligence agencies 
from collecting that intelligence that is out there that might warn us 
of another attack.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Republican leader is recognized.
  Mr. McCONNELL. Mr. President, we will have a cloture vote shortly on 
the motion to proceed to the FISA reform legislation that the Senate 
Select Committee on Intelligence reported last fall. I am glad we are 
proceeding to this bipartisan bill rather than to either of the rule 
XIV proposals. Both of those proposals would carve out core components 
of the Intel Committee's bill and likely would not obtain a 
Presidential signature.
  The Intelligence Committee bill is a rarity in this Congress. It is 
the product of weeks of painstaking negotiations between Senate 
Republicans and Democrats, and benefited from the participation of 
intelligence experts in the administration.
  The overwhelming bipartisan vote in the Intel Committee reflected the 
care, concern, and good faith that went into crafting that bill. The 
final vote was not 15 to 0, but a vote of 13 to 2 is pretty close.
  What is all the more impressive about the Intel bill is that this 
accomplishment is in an area--foreign intelligence surveillance--that 
is highly sensitive.
  Modifications to the Intel bill still need to be made, but it 
contains the two main ingredients that are needed for a Presidential 
signature: It will allow intelligence professionals to do their jobs, 
and it will not allow trial lawyers to sue telecom companies that 
helped protect the country.
  Unfortunately, the Judiciary Committee bill lacks all the hallmarks 
of the Intelligence Committee's product. It does not provide our 
intelligence community with all the tools it needs. It does not protect 
telecommunications companies from lawsuits. It does not enjoy 
bipartisan support. And, most importantly, it will not become law.
  So I think we have one approach that could lead to an important 
accomplishment, and we have one that will not. I am hopeful we will 
choose the right path.
  Finally, I wish to make a couple of brief comments about the floor 
process for the FISA reform legislation.
  I will be voting for cloture on the motion to proceed to the Intel 
bill, and I encourage all of our colleagues to do the same. A cloture 
vote is needed because of objections to the bipartisan bill by Senators 
Feingold and Dodd and others. It is certainly their right to object to 
the Senate's consideration of this important legislation. But it is 
also the right of other Senators to proceed carefully and thoughtfully 
on this matter.
  Legislation dealing with our foreign intelligence surveillance 
capabilities is complex, and what we do determines if we are able to 
adequately defend the homeland from attack. Thus, Republicans will 
insist on being able to debate and study the complicated consequences 
of amendments that are offered. That is every Senator's right and, 
especially in this area, every Senator's duty.
  I thank the Chair and yield the floor.
  Mr. 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.
  Ms. MIKULSKI. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, I yield back our time.

                             Cloture Motion

  The PRESIDING OFFICER. All time having been yielded back, under the 
previous order, pursuant to rule XXII, the Chair lays before the Senate 
the pending cloture motion, which the clerk will state.
  The legislative clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on the motion to 
     proceed to S. 2248, FISA.
         Harry Reid, Patrick Leahy, Ken Salazar, Daniel K. Inouye, 
           Robert P. Casey, Jr., Frank R. Lautenberg, Debbie 
           Stabenow, Richard J. Durbin, Tom Carper, John Kerry, E. 
           Benjamin Nelson, Evan Bayh, Kent Conrad, Carl Levin, 
           Mark Pryor, Charles Schumer, Jay Rockefeller, S. 
           Whitehouse, Bill Nelson.

  The PRESIDING OFFICER. By unanimous consent, the mandatory quorum 
call has been waived.
  The question is, Is it the sense of the Senate that debate on the 
motion to proceed to S. 2248, an original bill to amend the Foreign 
Intelligence Surveillance Act of 1978, to modernize and streamline 
provisions of that act, and for other purposes, shall be brought to a 
  The yeas and nays are mandatory under the rule.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. DURBIN. I announce that the Senator from Delaware (Mr. Biden), 
the Senator from New York (Mrs. Clinton), the Senator from New Jersey 
(Mr. Lautenberg), the Senator from Connecticut (Mr. Lieberman), the 
Senator from Illinois (Mr. Obama), and the Senator from Vermont (Mr. 
Sanders), are necessarily absent.
  I further announce that, if present and voting, the Senator from 
Delaware (Mr. Biden), would vote ``no.''
  Mr. LOTT. The following Senators are necessarily absent: the Senator 
from Colorado (Mr. Allard), the Senator from Kansas (Mr. Brownback), 
the Senator from Oklahoma (Mr. Coburn), the Senator from Idaho (Mr. 
Craig), the Senator from South Carolina (Mr. DeMint), the Senator from 
New Hampshire (Mr. Gregg), the Senator from Oklahoma (Mr. Inhofe), and 
the Senator from Arizona (Mr. McCain).
  Further, if present and voting, the Senator from South Carolina (Mr. 
DeMint) would have voted ``yea.''
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 76, nays 10, as follows:

                      [Rollcall Vote No. 435 Leg.]


     Nelson (FL)
     Nelson (NE)



                             NOT VOTING--14

  The PRESIDING OFFICER. On this vote, the yeas are 76, the nays are 
10. Three-fifths of the Senators duly chosen having voted in the 
affirmative, the motion is agreed to.

[[Page S15727]]

  The majority leader is recognized.
  Mr. REID. Mr. President, I have had a conversation with the 
distinguished Republican leader. We are now postcloture. No one is 
intending to use the 30 hours. We know we have to get to the omnibus 
and other such things, but there are some people who want to talk 
postcloture. I have spoken to the chairman of the Intelligence 
Committee and the ranking member. I have spoken to the Judiciary 
Committee members several times today. I have spoken to Senator Dodd, 
who has an amendment dealing with immunity. On this side, there is a 
general feeling that the first amendment should be one dealing with 
immunity. At this stage, the one who is willing and ready to offer it, 
as soon as the postcloture finishes, is Senator Dodd. So we will get to 
that on our side as soon as we can.
  I would also state it appears at this stage it would probably be in 
everyone's interest that we acknowledge going into this that everything 
is going to take 60 votes anyway. So rather than play games, I have 
spoken to the Republican side, and it would appear to me that when we 
get to the amendment-offering stage, we should recognize that is likely 
be to the issue.
  Now, let me also say this: I have finished a meeting 45 minutes ago 
with the Speaker. They are going to finish the omnibus tonight. It will 
be late. We will not get it tonight. They probably will not finish it 
until between 10 and 11 o'clock tonight. But that being the case, we 
are going to move to the omnibus tomorrow, if at all possible. To say 
the least, it has been very difficult to get to the point where we are. 
I would hope everyone understands we are going to do our very best to 
finish the bill tomorrow. There are a number of amendments that will be 
offered. There are very few that will be offered.
  I have talked to Senator McConnell. At this stage, it appears there 
will probably be four amendments, and that is all. That, of course, is 
always a moving target, and there may need to be more. If people have 
questions about this, check with the floor staff on the procedural 
aspects. But it is a pretty straightforward issue tomorrow. When we 
finish that, we have to do something about AMT, which is not completed. 
We have terrorism insurance that we have to do. We have to do an 
extension of CHIP and some of the Medicare provisions. That is about 
it. I may be missing something, but I don't think much.
  Everyone should understand that even though the omnibus is coming 
here, we have spent hours and hours on this over the weekend trying to 
work out some of our differences. The bill has almost nothing as it 
relates to anything other than spending. It has been hard to arrive at 
where we have, but I think it has been one of cooperation. It was a 
good weekend. I don't mean this in any negative sense, but I didn't 
have to speak to the White House because we were able to work this out 
with the Speaker and Senator McConnell--the Republican leaders in the 
House and my colleagues here. So I think we are in fairly decent shape 
to complete our work in the next couple of days.
  Mr. STEVENS. Will the Senator yield for a question?
  Mr. REID. Yes.
  Mr. STEVENS. This Senator wonders if we will have a chance to read 
that omnibus. I understand it may or may not contain all of the bills 
that are unresolved as far as the appropriations process is concerned.
  Mr. REID. The bill was online last night. It was filed around 5 
o'clock. It is on the House Rules Web site. It has been available for 
15 to 18 hours.
  Mr. STEVENS. It is still subject to amendment in the House, isn't it?
  Mr. REID. No. Well, it is subject to whatever the Rules Committee 
does over there. They are taking it to Rules today, and it will be on 
the floor sometime early this evening, and they will finish it tonight.
  Mr. LEAHY. Mr. President, if the leader will yield, Senator Dodd is 
  The PRESIDING OFFICER. If we can extend the courtesies to our Members 
here, we need order in the Senate.
  Mr. LEAHY. I thank the Chair. We have a Judiciary Committee bill that 
was passed out with a majority vote. I, at some point, will modify that 
somewhat. At some point, that will require a vote. We have discussed 
this already. I wanted to make sure people understand that. Senator 
Dodd will go first, but at some point I will do that.
  Mr. REID. Mr. President, we thought there may be, initially, a bill 
that would be offered by the respective chairmen of the Intelligence 
and Judiciary Committees. That didn't quite work out. Senator Leahy 
graciously indicated he would be willing to have Senator Dodd go first. 
Senator Dodd has other things he wants to look to. We have a tentative 
time agreement for Senator Dodd, but we don't have that finalized yet. 
We need to get some of the postcloture debate out of the way. As soon 
as that is done, Senator Dodd will be recognized. If that is not the 
case, I will be recognized to offer the amendment on his behalf. We 
hope there will be no efforts to have a jump ball on our side. That is 
the first amendment Senator Leahy and Senator Rockefeller want to do.
  Mr. BOND. Mr. President, did I hear the majority leader ask unanimous 
consent that votes would have a 60-vote requirement?
  Mr. REID. Mr. President, I say to my friend that I did not ask that. 
I indicated I thought we should understand that would be the end 
  I ask unanimous consent that all votes in relation to the bill that 
is now before the Senate--the FISA legislation--require 60 votes, 
except for final passage.
  The PRESIDING OFFICER. Is there objection?
  Mr. DODD. Mr. President, reserving the right to object, is there a 
rule in the Senate that requires this?
  Mr. REID. It is by unanimous consent on this bill. It is a very 
controversial bill. I think there would not be the votes, for example, 
on the immunity aspect; I am confident there are people who would 
require 60 votes. In an effort to cut through a lot of the talk here, 
we would try to set up a time that we would vote on this as the first 
amendment out of the box; and on the other amendments, until further 
notice and agreement among Senators, we would have a 60-vote margin.
  Mr. DODD. Let me say this, further reserving the right to object, I 
will respectfully object at this time, and I will talk with the leader 
about that necessity. I don't want to set the precedent of insisting on 
60 votes on a germane amendment. I will object at this point, and 
following that, the leader can make the request again.
  Mr. REID. Mr. President, my friend has every right to object. It is 
quite obvious that this is required because Members will simply 
filibuster. They have told me so. If we are talking about something as 
sensitive as immunity, retroactive immunity, and prospective immunity, 
it is going to take 60 votes. The rules don't require that, we know 
that, but the rules do require 60 votes to stop a filibuster.
  Mr. BOND. Mr. President, I object to any measure coming up that does 
not have a 60-vote requirement. We conditioned our approval to bring up 
these amendments on agreeing to 60 votes; otherwise, we will use the 
prerogatives of the Senate.
  Mr. DODD. Mr. President, I understand the 60-vote majority, but I 
have a germane amendment that strikes a provision in the bill. I 
understand the rules. When something is nongermane or violative of the 
rules of the Senate and you want to waive the rule, you have a 
supermajority requirement, but not on an amendment pertaining directly 
to the bill that strikes a section of it. I understand there is 
opposition to it, but having to reach a supermajority on an amendment 
that strikes something in the bill that is of significant disagreement 
seems to be excessive at this point.
  This is an important piece of legislation, and the Judiciary 
Committee voted differently than the Intelligence Committee on this 
matter. We feel strongly about this. If I were offering something that 
is violative of the Senate rules, I would accept a supermajority. But 
to establish the precedent here that any amendment to be offered to 
this bill will be subjected to a supermajority vote I think is too 
excessive. That is my concern. Tell me I am wrong about that, that I am 
violating the rules of the Senate, and I will accept that. But if we 
are establishing that simply on any amendment that is different, I 
think that is a direction in which we should not go.

  Mr. REID. Mr. President, first of all, on the immunity issue--we have 
a lot of matters here. We have had 60-vote margins all year, including 
on the war

[[Page S15728]]

in Iraq. The Senator is right that there is no requirement that there 
be 60 votes. But there is a requirement that if somebody talks and 
keeps talking, there won't be a vote. So the Senator can offer his 
amendment, but, as we have heard from people on both sides of the 
aisle, there won't be a vote taking place on his amendment--50 votes or 
55 votes or 60 votes.
  I thought it would be in the interest of the body to cut to the chase 
and say on this and other matters--this is a very controversial issue. 
We don't have time to have a lot of cloture votes on different 
amendments. So it seems to me that it is in the best interest of 
everybody that that is the agreement. The suggestion made is a good 
  Despite agreeing with the Senator from Connecticut as to this issue, 
it doesn't mean he and I are right. Certainly, by the unanimous consent 
request, there is no precedent set in the Senate. It is on a case-by-
case basis.
  Mr. President, what is the matter before the Senate?
  The PRESIDING OFFICER. The motion to proceed to S. 2248.
  Mr. REID. That is one where we have 30 hours from the time the vote 
takes place, with Senators having 1 hour under their control; is that 
  The PRESIDING OFFICER. We are now postcloture, that is correct.
  Mrs. BOXER. Mr. President, parliamentary inquiry, if I might. I 
wonder, is there a unanimous consent request regarding speakers 
postcloture at this point?
  The PRESIDING OFFICER. No request.
  Mrs. BOXER. I would like to know this, if I may ask a question to 
Senator Dodd. He, at this point, is objecting to a 60-vote requirement, 
and therefore the regular order would be to have people speak on the 
motion to proceed; is that correct?
  Mr. DODD. I have an amendment I would like to offer that strikes 
title II of the legislation. I am prepared to offer that. I know 
Senator Leahy talked about going first. I am prepared to follow 
whatever the Senate would like us to in order. I would like an 
opportunity to offer my amendment at some point. I told the leader that 
we can work out a time agreement. I wasn't quite ready to do it. I want 
to know how many people want to be heard. I will limit myself, but I 
want to get a vote. I am not looking for extended debate on my 
  Mrs. BOXER. Further, when such a list is made, I ask Senator Dodd or 
the majority leader to please place me on the list for a 15-minute 
timeframe on his amendment and a broader statement.
  The PRESIDING OFFICER. On a motion to proceed, amendments are not in 
order at this point.
  Who seeks time?
  Mr. REID. Mr. President, I think it would be appropriate if we find 
out, postcloture, who wants to give speeches. Once we find out how many 
want to speak and how much time they want, we can lay down the bill and 
have Senator Dodd offer his amendment. Anybody who wants to speak 
postcloture, let us know so we can get to the bill. We are not on the 
bill yet. We are postcloture.
  Mrs. BOXER. Mr. President, if it is in order, I would like to start 
and talk for 10 minutes. I would like to make my remarks on the issue 
that is pending.
  The PRESIDING OFFICER. The Senator from California is recognized.
  Mrs. BOXER. Mr. President, I strongly support bringing the Judiciary 
Committee version of the FISA bill before us. That is why I voted not 
to proceed to take up the Intelligence Committee bill.
  I did not cast that vote lightly because, as the Chair knows, I want 
to get the terrorists. I voted to go after Osama bin Laden. I voted to 
go after al-Qaida after they attacked us. I have voted to give this 
President every penny he needed to go ahead and capture Osama bin 
Laden. To date, much to my dismay and the dismay of the American 
people, we haven't captured bin Laden, who engineered the attack 
against our Nation. We have not caught him dead, we have not caught him 
alive. But we did capture Saddam Hussein, who didn't attack us on 9/11. 
We did get into a war we cannot get out of, thanks to the President and 
his backers, who have gotten us into a position where there is no way 
out and no end in sight. But capture bin Laden? No.
  I will never give up hope on that. I will give our country all the 
tools it needs to get him and the others who have harmed us and who 
want to harm us in the future. That is our most sacred responsibility 
and duty. But if we are not careful, if we are not prudent, if we are 
not honest about what we are doing here, we give bin Laden exactly what 
he wants, Mr. President: a country that scares its people rather than a 
country that protects its people, a country that takes away the rights 
of its people out of fear.
  Former Justice Thurgood Marshall said:

       History teaches us that grave threats to liberty often come 
     in times of urgency, when constitutional rights seem too 
     extravagant to ignore.

  Now, what makes America so great? It is that we have been a guiding 
light to the world because we have been a strong nation in all ways, 
and a strong nation protects the rights of its citizens, while a weak 
nation, a fearful nation, a nation that lives in fear, abdicates those 
rights. We see it around the world. Let us never see it here.
  We have an understanding here in America that the need for security 
must always be balanced against the rights of the people. Once we lose 
that precious balance, we are giving the terrorists exactly what they 
  We cannot and we must not ever lose that precious balance. If freedom 
and liberty become nothing more than just hollow words, then when we 
try to lead the world, we will simply not have the moral high ground. 
We have seen this happen in our great Nation in so many areas, and we 
cannot today, or during the next couple of days, allow this Nation, 
with our permission, to look at the rights of our people and take them 
  I quote another Supreme Court Justice, one of my heroines, Sandra Day 

       It is during our most challenging and uncertain moments 
     that our Nation's commitment to due process is most severely 
     tested; and it is in those times that we must preserve our 
     commitment at home to the principles for which we fight 

  ``We must preserve our commitment at home to the principles for which 
we fight abroad.''
  When President Bush announced his foreign policy--I will never forget 
it--he said we need to bring democracy around the world. We need to 
bring freedom around the world. We need to stop the despots of the 
world from taking away the freedoms the people have. Yet here at home 
they are destroying tapes, at home they are listening in on Americans 
without a warrant.
  What is in the judiciary version of the bill that makes it much 
better than the intelligence version, and why was I so proud to stand 
with only 10 of my colleagues? I thank Senator Dodd for his leadership 
on this issue. That is a hard vote. Here is why.
  The judiciary version of the bill requires at least one specific 
individual target in order to begin bulk collection of international 
communications. You need to name one target; that is what the Judiciary 
Committee is saying. You just don't go on a fishing expedition. We have 
seen those kinds of fishing expeditions before. We have seen people 
herded up before. We cannot do that now, not in this century; not in 
this century when we are fighting bin Laden and we are fighting the 
forces that want to take away freedom.
  Second, it requires a FISA Court order to continue surveillance when 
a call involves U.S. citizens. That is called a check and balance. That 
is essential to our freedom.
  Third, it allows the FISA Court to decide whether surveillance 
continues while the Government appeals a decision against a proposed 
surveillance program. That is another example of check and balance.
  Human beings are flawed, and when all the power resides in one or two 
of them, we need to have a check and balance. By the way, check and 
balance is one of the centerpieces of our freedom, of our Constitution. 
In this particular area of the law, we ought to make sure it is built 
  The Judiciary bill provides ongoing FISA Court supervision, including 
audits of surveillance programs. Again, a check and balance.
  And then, of course, there is the issue on which Senator Dodd has 
been such a leader, and that is the issue of immunity, immunity for 
telecommunications companies that cooperated

[[Page S15729]]

with the administration's warrantless surveillance program.
  Let me point out that there were some companies that did not go along 
with it. Let's not be led to believe that every company rolled over and 
said: Here, have at it. There were some that stood up for the law, the 
law that was supposed to guide them. There were some that stood up for 
the American people, and I thank them.
  To the others, what I say to them is this--I understand why they 
might not have stood up, but we have to get to the bottom of this 
issue. We cannot go around giving people immunity when they turn their 
backs on the rule of law.
  Granting immunity without fully understanding whether Americans were 
spied upon in a warrantless surveillance program is irresponsible 
because of this reason: Congress and the American people will be 
blocked from finding out the truth about the warrantless program. We 
may not find out for 20 years, 30 years, 40 years. That is wrong. The 
American people deserve to know the truth.
  Again, I take it to what we are as a nation. We are a free people. 
Our people deserve to be protected. The ones who are bad apples deserve 
to be caught and face the music. We need to find a law that seeks that 
balance and gets that balance. I think the Judiciary Committee did that 
beautifully, and I wish that was the bill in front of us now. That is 
why I voted not to proceed to the Intelligence Committee version.
  Having said this, I hope we can work together and improve the 
Intelligence Committee bill. The Intelligence Committee version of the 
bill with telecom immunity puts the interests of the telecom companies 
ahead of the rights of the American people.
  In closing, this is a watershed moment for us. Why do I say that? I 
heard Senator Sessions come down and give a very eloquent speech. He 
said, ``The civil''--I am quoting him now--``The civil libertarians 
among us''--and then he listed all the bad things he thinks the civil 
libertarians among us have done. I hope every one of us--every one of 
us in this Chamber--supports the civil liberties of the United States 
of America because if you don't, you don't believe in the Constitution. 
That is where we get these rights.
  We need a FISA bill that will help us continue to track the 
terrorists without surrendering our rights and our liberties, and this 
can be done. I hope we can get a coalition together and amend this 
Intelligence Committee bill in a way that will do just that. We need a 
bill that closes loopholes in FISA that clearly have been created by 
advancements in technology. I understand that. But we also need a FISA 
bill that, while it allows us to go after the bad guys, has proper 
checks and balances within it. We need a bill that will improve FISA 
Court oversight of our foreign surveillance programs without hindering 
our ability to protect our country. We can do that.
  I believe the Judiciary Committee version of the FISA bill 
accomplishes these goals. We don't have to create it here. They did an 
excellent job. It seems to me to throw out all their work would be a 
big error.
  Finally, my point: It is so ironic and sad to me that we are losing 
our beautiful young people, and, by the way, not so young, some from 
the National Guard who are in their thirties and forties and older. We 
are losing them every day over in Iraq. Why? Ask the President to 
answer that question. He will be quick to answer it eloquently. To 
bring freedom and democracy, bring freedom and democracy, bring freedom 
and democracy.
  If you feel that way, Mr. President, and those who support him and 
have given him a blank check, then let's protect it at home in a way 
that allows us to go after those who will do us harm if we are not 
careful, and yet protects the very essence of our Nation, the very 
freedom of our Nation, the very essence of our Constitution that has 
brought us to this point where the world envies our freedom and 
democracy. To give it up for politics or sound bites or 30-second 
commercials on television would be a dereliction of our most sacred 
  I yield the floor.
  The PRESIDING OFFICER (Mrs. Murray). The Senator from Rhode Island is 
  Mr. WHITEHOUSE. Madam President, I ask unanimous consent to be 
recognized for 15 minutes and that the Senator from California, Mrs. 
Feinstein, be recognized next if no Member of the minority seeks 
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WHITEHOUSE. Madam President, just recently, the Attorney General 
of the United States published an opinion piece in the Los Angeles 
Times on our ongoing work to improve the Foreign Intelligence 
Surveillance Act, what we call FISA. This follows closely on a similar 
opinion piece by the Director of National Intelligence, Admiral 
McConnell, in the New York Times.
  I ask unanimous consent to have printed in the Record each of these 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              [From the Los Angeles Times, Dec. 12, 2007]

                               A FISA Fix

                        (By Michael B. Mukasey)

       One of the most critical matters facing Congress is the 
     need to enact long-term legislation updating our nation's 
     foreign intelligence surveillance laws. Intercepting the 
     communications of terrorists and other intelligence targets 
     has given us crucial insights into the intentions of our 
     adversaries and has helped us to detect and prevent terrorist 
       Until recently, our surveillance efforts were hampered by 
     the unintended consequences of an outdated law, the Foreign 
     Intelligence Surveillance Act, which was enacted in 1978 to 
     establish a system of judicial approval for certain 
     intelligence surveillance activities in the United States.
       The requirement that a judge issue an order before 
     communications can be intercepted serves important purposes 
     when the target of the surveillance is a person in our 
     country, where constitutional privacy interests are most 
     significant. The problem, however, was that FISA increasingly 
     had come to apply to the interception of communications of 
     terrorists and other intelligence targets located overseas. 
     In FISA, Congress had embedded the crucial distinction 
     between whether targets are inside or outside our country, 
     but did so using terms based on the technology as it existed 
     then. However, revolutionary changes in communications 
     technology in the intervening years have resulted in FISA 
     applying more frequently to surveillance directed at targets 
     overseas. The increased volume of applications for judicial 
     orders under FISA impaired our ability to collect critical 
     intelligence, with little if any corresponding benefit to the 
     privacy of people in the U.S.
       This summer, Congress responded by passing the Protect 
     America Act. That law, passed with significant bipartisan 
     support, authorized intelligence agencies to conduct 
     surveillance targeting people overseas without court 
     approval, but it retained FISA's requirement that a court 
     order be obtained to conduct electronic surveillance directed 
     at people in the United States. As J. Michael McConnell, the 
     director of national intelligence, stated, the new law closed 
     dangerous gaps that had developed in our intelligence 
     collection. Congress, however, set the act to expire on Feb. 
     1, 2008.
       It therefore is vital that Congress put surveillance of 
     terrorists and other intelligence targets located overseas on 
     surer institutional footing. The Senate Intelligence 
     Committee has crafted a bill that would largely accomplish 
     that objective. Recognizing the uncommon complexity of this 
     area of the law, the committee held numerous hearings on the 
     need to modernize FISA, received classified briefings on how 
     various options would affect intelligence operations and 
     discussed key provisions with intelligence professionals and 
     with national security lawyers inside and outside government. 
     This thorough process produced a balanced bill approved by an 
     overwhelming, and bipartisan, 13-2 vote.
       The Senate Intelligence Committee's bill is not perfect, 
     and it contains provisions that I hope will be improved. 
     However, it would achieve two important objectives. First, it 
     would keep the intelligence gaps closed by ensuring that 
     individual court orders are not required to direct 
     surveillance at foreign targets overseas.
       Second, it would provide protections from lawsuits for 
     telecommunications companies that have been sued simply 
     because they are believed to have assisted our intelligence 
     agencies after the 9/11 attacks. The bill does not, as some 
     have suggested, provide blanket immunity for those companies. 
     Instead, a lawsuit would be dismissed only in cases in which 
     the attorney general certified to the court either that a 
     company did not provide assistance to the government or that 
     a company had received a written request indicating that the 
     activity was authorized by the president and determined to be 
       It is unfair to force such companies to face the 
     possibility of massive judgments and litigation costs, and 
     allowing these lawsuits to proceed also risks disclosure of 
     our country's intelligence capabilities to our enemies. 
     Moreover, in the future we will need the full-hearted help of 
     private companies in our intelligence activities, we cannot 
     expect such cooperation to be forthcoming if we do not 
     support companies that have helped us in the past.
       The bill that came out of the Senate Intelligence Committee 
     was carefully crafted and

[[Page S15730]]

     is a good starting point for legislation. Unfortunately, 
     there are two other versions of the bill being considered 
     that do not accomplish the two key objectives. The House of 
     Representatives recently passed a version that would 
     significantly weaken the Protect America Act by, among other 
     things, requiring individual court orders to target people 
     overseas in order to acquire certain types of foreign 
     intelligence information. Similarly, the Senate Judiciary 
     Committee made significant amendments to the Senate 
     Intelligence Committee's bill that would have the collective 
     effect of weakening the government's ability to effectively 
     surveil intelligence targets abroad.
       Moreover, neither the House bill nor the Senate Judiciary 
     Committee's version addresses protection for companies that 
     face massive liability. Both the Senate Judiciary Committee 
     amendments and the House bill passed largely on party lines, 
     and the full Senate will be debating this issue shortly
       Congress must choose how to correct critical shortcomings 
     in our foreign intelligence surveillance laws. It is a time 
     for urgency. The Protect America Act expires in just two 
     months, and we cannot afford to allow dangerous gaps in our 
     intelligence capabilities to reopen. But this is also a time 
     of opportunity, when we can set aside political differences 
     to develop a long-term, bipartisan solution to widely 
     recognized deficiencies in our national security laws. When 
     Congress returns to this challenge, it should continue on the 
     course charted by the Senate Intelligence Committee.

                [From the New York Times, Dec. 10, 2007]

                        Help Me Spy on Al Qaeda

                           (By Mike McConnell)

       The Protect America Act, enacted in August, has lived up to 
     its name and objective: making the country safer while 
     protecting the civil liberties of Americans. Under this new 
     law, we now have the speed and agility necessary to detect 
     terrorist and other evolving national security threats. 
     Information obtained under this law has helped us develop a 
     greater understanding of international Qaeda networks, and 
     the law has allowed us to obtain significant insight into 
     terrorist planning.
       Congress needs to act again. The Protect America Act 
     expires in less than two months, on Feb. 1. We must be able 
     to continue effectively obtaining the information gained 
     through this law if we are to stay ahead of terrorists who 
     are determined to attack the United States.
       Before the Protect America Act was enacted, to monitor the 
     communications of foreign intelligence targets outside the 
     United States, in some cases we had to operate under the 
     Foreign Intelligence Surveillance Act, known as FISA, a law 
     that had not kept pace with changes in technology. In a 
     significant number of these cases, FISA required us to obtain 
     a court order. This requirement slowed--and sometimes 
     prevented--our ability to collect timely foreign 
       Our experts were diverted from tracking foreign threats to 
     writing lengthy justifications to collect information from a 
     person in a foreign country, simply to satisfy an outdated 
     statute that did not reflect the ways our adversaries 
     communicate. The judicial process intended to protect the 
     privacy and civil liberties of Americans was applied instead 
     to foreign intelligence targets in foreign countries. This 
     made little sense, and the Protect America Act eliminated 
     this problem.
       Any new law should begin by being true to the principles 
     that make the Protect America Act successful. First, the 
     intelligence community needs a law that does not require a 
     court order for surveillance directed at a foreign 
     intelligence target reasonably believed to be outside the 
     United States, regardless of where the communications are 
     found. The intelligence community should spend its time 
     protecting our nation, not providing privacy protections to 
     foreign terrorists and other diffuse international threats.
       Second, the intelligence community needs an efficient means 
     to obtain a FISA court order to conduct surveillance in the 
     United States for foreign intelligence purposes.
       Finally, it is critical for the intelligence community to 
     have liability protection for private parties that are sued 
     only because they are believed to have assisted us after 
     Sept. 11, 2001. Although the Protect America Act provided 
     such necessary protection for those complying with requests 
     made after its enactment, it did not include protection for 
     those that reportedly complied earlier.
       The intelligence community cannot go it alone. Those in the 
     private sector who stand by us in times of national security 
     emergencies deserve thanks, not lawsuits. I share the view of 
     the Senate Intelligence Committee, which, after a year of 
     study, concluded that ``without retroactive immunity, the 
     private sector might be unwilling to cooperate with lawful 
     government requests in the future,'' and warned that ``the 
     possible reduction in intelligence that might result from 
     this delay is simply unacceptable for the safety of our 
       Time for the Protect America Act is growing short, but 
     there is still an opportunity to enact permanent legislation 
     that helps us to better confront both changing technology and 
     the enemies we face in a way that protects civil liberties.
       I served for almost 30 years as an intelligence officer 
     before spending some time in the private sector. When I 
     returned to government last winter, it became clear to me 
     that our foreign intelligence collection capacity was being 
     degraded. I was very troubled to discover that FISA had not 
     been updated to reflect new technology and was preventing us 
     from collecting foreign intelligence needed to uncover 
     threats to Americans.
       The Protect America Act fixed this problem, and we are 
     safer for it. I would be gravely concerned if we took a step 
     backward into this world of uncertainty; America would be a 
     less safe place.

  Mr. WHITEHOUSE. Madam President, both opinion pieces go on at some 
length about the importance of new legislation on foreign surveillance 
activities. They devote paragraph after paragraph to this issue. But 
the two leaders of America's law enforcement and intelligence 
communities completely ignore, never once mention, the issue that is 
actually in dispute; that is, on what terms will we allow this 
administration to spy on Americans?
  We all agree to unleash our intelligence agencies on foreign targets 
of foreign surveillance. There is no question there. The heart of the 
debate is the question of spying on Americans, one, when they are 
outside the country, or, two, when they are incidentally intercepted by 
surveillance targeted at someone else.
  This, the wiretapping of Americans, has been the entire subject of 
our work on surveillance. And yet Judge Mukasey and Admiral McConnell 
never once mentioned the topic. There are only two possibilities and 
each is regrettable. One is that these two gentlemen simply don't know 
what is going on, which seems unlikely since Director McConnell has 
participated in hearings on the subject, and we discussed in detail our 
concern about wiretapping Americans, and members of my staff are 
working through the details of the issue on a nearly daily basis with 
lawyers at the Director of National Intelligence and the Department of 
  So that leaves only one alternative that these two gentlemen do know 
what is going on and just chose to talk past the issue, ignore its very 
existence. That is a shame, and I hope it is not the early propaganda 
phase of a Bush administration effort to replicate the August stampede 
that got us into this pickle in the first place.
  Since they have not mentioned it, let me tell you what the problem 
is. The Protect America Act passed in the August stampede contains no 
statutory limitation on this administration's ability to spy on 
Americans traveling abroad whenever it wants, for whatever purpose. Let 
me repeat that. The Protect America Act contains no statutory 
restriction on this administration's ability to spy on Americans 
traveling abroad whenever it wants, for whatever purpose.
  The only limitation that now exists on that power is section 2.5 of 
Executive order No. 12333, which says the administration will not 
wiretap Americans overseas unless the Attorney General determines that 
person is an agent of a foreign power.
  The problem, as I noted in a speech in this Chamber recently, is a 
secret Bush administration Office of Legal Counsel memo related to 
surveillance activities which says this:

       An Executive order cannot limit a President. There is no 
     constitutional requirement for a President to issue a new 
     Executive order whenever he wishes to depart from the terms 
     of a previous Executive order. Rather than violate an 
     Executive order, the President has instead modified or waived 
  In other words, the only thing standing between Americans traveling 
overseas and a Government wiretap is an Executive order that this 
President believes he is under no obligation to obey and may secretly 
disregard. The only thing standing between Americans traveling overseas 
and a Government wiretap is an Executive order this President believes 
he has no obligation to obey and may secretly disregard.
  So for months we have worked to repair the flawed bill of August, and 
the question of spying on Americans has been the issue--the issue--of 
concern. I and my staff, many of my colleagues on both sides of the 
aisle and their staffs have been working diligently and in good faith 
to solve this problem. What I have seen in these negotiations has been 
a thoughtful exchange by well-intentioned people who are committed to 
keeping America safe without trampling on the rights of Americans.
  We have talked not only with each other on both sides of the aisle 
but also

[[Page S15731]]

with people in this administration, including staff attorneys at the 
DOJ and DNI. We have worked almost all the way toward making sure 
Americans who are incidentally intercepted enjoy full, meaningful 
minimization protections. I think we have worked all the way toward 
making sure a court order is required to wiretap an American who 
happens to be overseas.
  For both Director of National Intelligence McConnell and Attorney 
General Mukasey to write an op-ed as if the issue of spying on 
Americans abroad has no role in this debate, when it has been the key 
and central issue in this debate, is, frankly, disappointing. One 
wonders how big the elephant in the room has to be before they are 
willing to acknowledge it. Ignoring this problem may serve the Bush-
Cheney interest in unaccountable executive power, but it does not 
protect Americans' privacy and it does not make Americans safer.
  I urge my colleagues to remember that the issue we have been 
grappling with is a simple one: On what terms will we allow this 
administration to spy on Americans? It is a question with real 
implications for our democracy, for our civil liberties, and ultimately 
for the security of this Nation.
  Unless we really believe that when Americans leave our country we 
leave our civil rights behind, unless we really believe this Government 
should have unfettered power to eavesdrop on conversations of families 
vacationing in Europe or soldiers serving in Iraq, then the authority 
to spy on Americans abroad cannot be left under the exclusive control 
of this administration. It is a matter that must be solved in this 
legislation that Congress must pass to restore the Protect America Act 
to a fair appreciation of civil liberties.
  That is why we have been working on this question so hard. It is a 
serious question. I wish the two gentlemen leading the key Departments 
of Government involved had recognized that it exists, and I urge my 
colleagues to insist on the protections we have worked so hard for--to 
protect Americans from surveillance in a way the intelligence community 
has come to support.
  We have come a long way. Chairman Rockefeller is owed our gratitude, 
as is Chairman Leahy. Their leadership in this has been spectacular. I 
also wish to express appreciation for the efforts of the distinguished 
ranking members, Senators Kit Bond and Arlen Specter. We are on the 
verge of a historic moment in the rights of Americans and in making 
sure that when they travel abroad it is clear that they take their 
rights with them. Let us not let this moment slip away.
  Madam President, how much time remains of my 15 minutes?
  The PRESIDING OFFICER. The Senator from Rhode Island has 6\1/2\ 
minutes remaining.
  Mr. WHITEHOUSE. Let me say one thing quickly, and we will come back 
to it, I believe, when amendments come forward.
  With respect to the question of how we deal with the litigation that 
presently involves certain telephone communications carriers, I think 
everybody in this Chamber should remember the impossible predicament in 
which those companies have been placed. There are litigants, private 
litigants in court, in an ongoing action, and the Government has come 
in and told them: You may not defend yourself. It has told them: You 
may not say one word in defense of this litigation. National security 
is asserted as the reason, and all of the threats that come with 
violations of national security are in play.
  So there they are, private litigants in private litigation, and the 
Government has stepped in and said: You may not defend yourself. I 
think we have to do something about that. Along with what the ranking 
member of the Judiciary said earlier, the distinguished Senator from 
Pennsylvania, Mr. Specter, I think the only decent thing we can expect 
the Government to do is to at least step in itself for these litigants. 
If they are going to tell the carriers they can't defend themselves in 
court in ongoing litigation, the least this Government should be able 
to do is to step in and say: We will step in and substitute ourselves 
for you.
  So I applaud what Senator Specter has done with his substitution 
bill, and I look forward to a discussion of that.
  I yield the remainder of my time, and I yield floor.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. BOXER. Madam President, I ask unanimous consent that I may yield 
the remainder of my hour postcloture to Senator Dodd.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Connecticut.
  Mr. DODD. Madam President, let me begin by thanking my colleague from 
California, Senator Boxer, not only for her generosity in giving me 
some additional time, but also for her comments regarding the 
underlying discussions on the FISA legislation and the provisions of 
the law before us for our consideration. I appreciate her comments and 
her thoughts on the subject matter.
  I have already spoken at some length on FISA this morning, on these 
amendments, this new legislation before us, and my concern for what I 
consider to be the most egregious provision in this proposed 
legislation--that is, the retroactive immunity for the 
telecommunications industry that may have helped the President break 
the law. I have objected to that immunity on some very specific grounds 
because it would cover up an immense violation of trust, privacy, and 
civil liberties in our country.
  This was not some small matter. It was not a one-time event. It went 
on for 5 years, in an elaborate and extensive way. But even more 
importantly, immunity is wrong because of what it represents. This is a 
fatal weakening of the rule of law which shuts out our independent 
judiciary and concentrates power in the hands of the executive.
  FISA, as we have seen, was written precisely to resist that 
concentration. That the motivation in 1976-1978 when this legislation 
was drafted: making sure we could bridge this gap between security and 
rights, protecting both our security and our fundamental liberties. 
When we divide that power responsibly between the legitimate 
legislative, judicial, and executive branches, terrorist surveillance 
is not weakened; it is strengthened and made more judicious and more 
legitimate and less subject to the abuses that sap public trust.
  But when millions of people, for over 5 years, had their private 
communications interrupted by the telecommunications industry, without 
a court order--which is what the law requires--the spirit of FISA has 
been undermined, and the public trust has been sapped. That, Mr. 
President, compromises our security.
  I firmly believe, therefore, that any changes to FISA must be in 
keeping with its original spirit of shared powers, respect for the rule 
of law. If we act wisely, we can ensure terrorist surveillance remains 
inside the law and not an exception to it.
  The Senate should pass a bill doing just that, and we will have the 
opportunity to do so; but the FISA Amendments Act, as it comes to us 
from the Intelligence Committee, is not that bill. Its safeguards 
against abuse, against the needless targeting of ordinary Americans, 
are far too weak. The power this bill concentrates in the hands of the 
administration is far too expansive.
  However, the Senate also has before it a version of the bill that 
embodies a far greater respect for the rule of law. The version crafted 
by the Senate Judiciary Committee substituted a completely new title I 
and was reported out on November 16. Both versions of the bill 
authorize the President to conduct overseas surveillance without 
individual warrants. Let me repeat that: both bills--both versions of 
the bill authorize the President to conduct overseas surveillance 
without individual warrants.
  Madam President, I see my colleague from California arriving on the 
floor, so I will yield the floor to her. I will ask when I come back to 
pick up my remarks as if uninterrupted, when the Senator from 
California completes her remarks; or the Senator from Missouri may have 
some thoughts on this legislation, and I will be more than happy to 
yield to him, as well, before coming back to the remarks I was in the 
midst of giving.
  But I appreciate the opportunity to address the subject of 
retroactive immunity, which is the reason I am here on this matter 
today. So I look forward

[[Page S15732]]

to hearing from the Senator from California, and I am withholding my 
time, and I yield the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from California.
  Mrs. FEINSTEIN. Indeed, Madam President, I am taken aback by the 
generosity of the Senator from Connecticut, and I want him to know I 
very much appreciate it.
  I wish to make a few comments on this bill and then introduce two 
amendments. These two amendments are very important to me because 
without them I am going to have a great deal of trouble voting for the 
final product. I say that as a predicate.
  First, the general comments.
  On December 16, 2005, the New York Times introduced the world to a 
secret NSA surveillance program, later dubbed the ``terrorist 
surveillance program,'' or TSP as it came to be known. This program, 
ordered by the President after September 11, 2001, was conducted in 
violation of U.S. law.
  I have served on the Intelligence Committee for more than 6 years now 
and on the Judiciary Committee for almost 15 years, and I can tell you 
that NSA signals intelligence is an indispensable tool on the war on 
terror. No one should think there aren't people who would do us harm. 
The only way to wage this war on terror is to find them before they 
find us. At the same time, it is crucial to remember the history.
  FISA was first enacted in 1978 in the wake of major civil rights 
abuses of foreign intelligence. The White House had authorized 
surveillance on Americans because of their political views--Martin 
Luther King, Joan Baez, and many others--a massive drift net collection 
of communications of U.S. citizens into and out of the United States. 
FISA was enacted to ensure such abuses would not occur again, and it 
has, in fact, safeguarded Americans' privacy rights for the past 30 
  FISA requires court review and approval when surveillance is 
targeting a person inside this country. No content can be collected on 
an individual unless there is a warrant by the FISA Court.
  As has been pointed out many times, changes in telecommunications 
technology and a change in the nature of our enemies have made updates 
to the 1978 FISA law necessary. New legislation is, in fact, needed to 
redraw the lines detailing when and where surveillance can take place 
and when a court warrant is required. That is what this debate is about 
and that is what the cloture vote just began.
  To be clear, these modifications should not come at the expense of 
civil liberties protections that are enshrined in our Constitution. 
Today, in my view, it is clear that the administration made a big 
mistake in not using FISA in the first place. I have consistently said 
that I thought the terrorist surveillance program could be done under 
FISA. A FISA Court judge proved this correct earlier this year. If 
changes to FISA were needed to accomplish this surveillance, the 
administration should have requested those changes when we reauthorized 
the PATRIOT Act.
  But, instead, the White House and Department of Justice relied on a 
new and aggressive interpretation of the President's article II 
authority under the Constitution, and a flawed argument that the 
authorization to grant military force use provided a statutory 
exemption to FISA. That was a big mistake. It is clear to me from the 
Office of Legal Counsel opinions that individuals in the Justice 
Department did not feel bound by established U.S. law, but proceeded 
under a new and expanded view of Presidential authority to move forward 
with the program.
  With this bill, we can turn the page on a sad portion of our Nation's 
history. Both the Intelligence and the Judiciary bills will keep the 
terrorist surveillance program under FISA, and it will restore 
protections for America's privacy rights in ways that the Protect 
America Act does not. Let me give a few examples.
  No. 1, this bill categorically requires an individualized warrant any 
time surveillance targets someone inside the United States. So the 
argument about a great drift net being cast across the United States, 
picking up tens of thousands of America's phone calls, simply is not 
correct. Targets outside the United States would be subject to a 
program warrant where the FISA Court reviews the targeting, in what are 
called minimization procedures.
  No. 2, the FISA Court review must be involved any time the 
intelligence community is conducting surveillance on an American 
anywhere in the world. By that I mean any time a American is collected 
for content anywhere in the world, that individual becomes a target. 
Until now, the Attorney General has authorized, under section 2.5 of 
Executive Order 12333, surveillance of Americans outside the country. 
There has been no FISA Court review in these cases.
  The numbers of Americans targeted overseas were between 50 and 60 
cases last year, according to the DNI--last year being 2006. So the 
numbers are small, and reports are made anonymous through minimization, 
and only included if they contained foreign intelligence value.
  No. 3, the bill puts the FISA Court review upfront, where it belongs, 
rather than 4 months after collection has begun, as was done under the 
Protect America Act. In other words, upfront the FISA Court reviews the 
minimization and approves that minimization, and can say to the 
Department: We want you to come back in 6 months or 8 months or 3 
months, and we will take another look at it.
  No. 4, procedures known as ``minimization'' are clearly defined and 
applied. This has been a hallmark of FISA for 30 years, but was not 
included in the Protect America Act. Once again, minimization is the 
process that the intelligence community has used since 1978 to protect 
information concerning Americans. When the NSA collects the content of 
communications, it does so to write intelligence reports. Minimization 
states that information without a foreign intelligence purpose is not 
used, and it cannot be retained indefinitely. It must be discarded at 
some point.
  Intelligence reports that use information about an American are made 
anonymous, to protect that person's privacy rights. The bill requires 
that the minimization procedures used in each program be approved by 
the court upfront, so they go to the court first and they say this is 
what we want to do and these are the procedures we will use, and the 
court can affirm it or deny it. But it goes before a court.
  If the amendments are adopted, the court will have the power to 
review how the minimization is being applied as well, so they will have 
constant review of the process.
  No. 5, oversight mechanisms are stronger in this legislation. Reviews 
are required by inspectors general, agency heads, the FISA Court, and 
the Congress on how the surveillance authority is being used.
  I wish to speak for a moment on the subject of telecom liability and 
then on exclusivity. If I might, I wish to do the exclusivity first.
  On behalf of myself, Senator Rockefeller, Senator Leahy, and Senator 
Nelson, I send an amendment to the desk.
  The PRESIDING OFFICER. The amendment may be filed but not offered.
  Mrs. FEINSTEIN. Madam President, this bill does not include language 
I authored to strengthen the exclusivity provisions of FISA. It has 
been reviewed by the chairman of the Intelligence Committee, the 
chairman of the Judiciary Committee, and they are both cosponsors, as 
well as an additional cosponsor in Senator Bill Nelson of Florida, who 
is also a member of the Intelligence Committee. Basically, what this 
amendment does is strengthen FISA as the only and exclusive authority 
for gathering intelligence through electronic surveillance. It 
specifically closes the AUMF loophole I mentioned earlier, whereby the 
administration contends it does not need FISA approval.
  Second, it provides that only another statute, specific statute can 
constitute an additional exclusive means of electronic surveillance.
  Third, it strengthens the requirements for certifications. The 
administration must identify the specific provision of the law on which 
the certification is based.
  The exclusivity amendment I have submitted is intended to reinforce 
the legislative intent of the bill. In 1978, when the bill was passed, 
the court was to be absolute when conducting electronic surveillance 
against Americans

[[Page S15733]]

for foreign intelligence purposes. Unfortunately, despite the 1978 
language, the Bush administration decided it could go outside the law. 
That was both wrong and unnecessary.
  To make matters worse, the administration made up an argument that 
Congress had authorized it to go around FISA by some passing the 
authorization for use of military force against al-Qaida and the 
Taliban. Does anyone here actually believe that? I do not know one 
Member of Congress who has stated publicly that they believed they were 
authorizing the terrorist surveillance program when they voted to go to 
war against bin Laden. In fact, to the contrary, it was never 
considered and to the best of my knowledge it was never thought of. 
When the Department of Justice came to the Congress in September 2001, 
outlining the changes it needed in FISA to wage this war, it did not 
mention anything about surveillance efforts such as those the TSP 
program addressed.

  Congressional intent from 1978 is clear. Congress clearly intended 
for FISA to be the exclusive authority under which the executive branch 
may conduct electronic surveillance. Let me briefly review the history, 
because it is important.
  Congress wrote, in 1978, in report language accompanying FISA:

       Despite any inherent power by the President to authorize 
     warrantless electronic surveillance in the absence of 
     legislation, by this bill and chapter 119 of title 18, 
     Congress will have legislated with regard to electronic 
     surveillance in the United States, that legislation, with its 
     procedures and safeguards prohibit the President, 
     notwithstanding any inherent powers, notwithstanding any 
     inherent powers--

  Which means AUMF, article II of the Constitution

     --from violating the terms of that legislation.

  That is a quote. The legislative history continues by describing the 
Supreme Court's decision in the Keith case, in which the Court ruled at 
that time Congress hadn't ruled in this field, and simply left the 
Presidential powers where it found them.
  But at this point the legislative history turns. The 1978 language 
responded to the Keith case and said this:

       The Foreign Intelligence Surveillance Act, however, does 
     not simply leave Presidential powers where it finds them. To 
     the contrary, this bill would substitute a clear legislative 
     authorization pursuant to statutory, not constitutional, 

  I want the record to show here the clear understanding in 1978 that 
FISA was the exclusive authority. That was the report language 
accompanying H.R. 7138 as it passed the 95th Congress.
  President Carter signed the bill. His signing statement said this:

       This bill requires, for the first time, a prior judicial 
     warrant from all electronic surveillance for foreign 
     intelligence or counterintelligence purposes in the United 
     States in which communications of U.S. persons might be 

  That is pretty clear, on the part of the President who signed the 
bill, and the House and the Senate that passed that bill, what the 
intention was.
  The Intelligence Committee bill before us reiterates the 1978 
exclusivity language, but I believe this needs to be strengthened in 
light of the article II and the AUMF arguments that this administration 
has been making. I am going to introduce this amendment at this time.
  This language closes loopholes that this Department of Justice 
squeezed through, to claim that the AUMF was an authorized exception to 
the FISA. It clearly was not. The amendment does this by tightening 
language in FISA, and in title 18 of the criminal code, making clear 
that future Presidents should not try to read between the lines in 
future legislation for authorization to go outside of the Foreign 
Intelligence Surveillance Act.
  It also provides more specificity in what must be included in written 
requests or directives to telecommunications authorities for them to 
legally provide assistance. It is clear from the recent history that 
this is necessary. In fact, the whole issue of whether telecom immunity 
is needed is because past certifications have not been clear.
  I couldn't support a bill that did not clearly reestablish the 
primacy of FISA. I tried to do it in committee. I thought it was done 
in committee. It was not included in the base bill. The Republican side 
would not go along with it. I once again submit it. To me it is vital, 
and my vote on the bill was, at least 50 percent, based on this 
exclusivity provision.
  Now, if I may, may I mention telecom immunity and submit an 
amendment? I voted for telecom immunity in the committee. I am not 
inclined to vote for it, to be candid with you, unless this amendment 
is adopted. So let me begin by talking about the immunity provision of 
the bill. It is not as expansive as some would make it sound. The 
language would only cover cases where the Attorney General certifies 
that the defendant companies received written requests or directives 
from top levels of the Government for their assistance.
  In other words, the Government, in writing, I stress in writing, 
assured those companies that the program was legal, the President had 
authorized the program, and that its legality has been approved by the 
Attorney General.
  The legislation does not provide immunity for criminal wrongdoing, 
nor does the legislation provide liability relief for any Government 
official such as that the Director of National Intelligence had 
requested in April. No individual immunity of anyone in the government 
is included in this bill.
  There are approximately 40 cases pending in the Ninth Circuit. The 
companies in these cases are prevented from making their own defense. I 
do not know if Members understand the full importance of this. They are 
prevented from responding to inaccurate news articles, inaccurate press 
releases, they cannot come before the Congress and testify in public, 
they cannot respond to anything that is said in the public sector, and 
they are prevented from defending themselves in court.
  These defendants have to sit by and listen to what they consider to 
be misrepresentations, and they cannot respond to these 
misrepresentations. So, in effect, they are handcuffed and gagged by 
the administration's claim of state secrets. This is a matter of 
fairness. These companies have no financial motives in providing 
assistance to the Government. In fact, they incurred a substantial risk 
in doing so. They were given written requests, legal assurances in the 
weeks after September 11. The letters went out within 5 weeks of 
September 11, when we all feared this Nation might suffer additional 
  In fact, evidence has come to light to indicate the second wave of 
attacks involving the West Coast was being planned. It was this 
administration, not the companies, that made a flawed legal 
determination. It was this administration that withheld its activities 
from the Congress for 4 long years. It was this administration that 
decided not to go to the FISA Court. They could have gone to the FISA 
Court. They could have asked for a program warrant, which they 
subsequently got.
  They could have put this program under FISA coverage, which it now 
is, which they did not at the time.
  It has been pointed out that there is a longstanding common law 
provision that allows citizens to rely on the assumption that the 
Government acted legally when it asks a private citizen or a company to 
assist it for the common good. All that is required is that the citizen 
act in good faith.
  So the question is whether the small number of people, and it was a 
small number of people, who were actually cleared in a classified 
sense, to deal with this, of these companies, were acting in good faith 
and whether it was reasonable for them to determine that the 
assistance, in fact, it provided was legal.
  A small number of telecom officials were acting under the cloak of 
secrecy and a directive not to disclose the Government's request. They 
are not experts on article II of the Constitution. The amendment I am 
going to submit would put before the FISA Court the question of whether 
the telecommunications companies should, in fact, receive immunity 
based on the law.
  The FISA Court would be required to act, en banc, and how this is, is 
15 judges, Federal judges, appointed by the Chief Justice, they sit 24/
7, and this is all they do, they would act en banc. They would look at 
the following: Did the letters sent to the carriers which were repeated 
virtually every 35 to 45 days over the last 4 to 5 years, did the 
letters sent to the carriers meet the conditions of law.

[[Page S15734]]

  Section 2511 of title 18 clearly states that a certification from the 
Government is required in cases where there is no court order. That is 
the only two ways that FISA allows this to proceed, by written 
certification or by court order.
  The Government has to certify in writing that all statutory 
requirements for the company's assistance have been met. So the FISA 
Court would first look at whether the letter sent to the companies met 
the terms of this law. The court would then look at, if the companies 
provided assistance, was it done in good faith and pursuant to a belief 
that the compliance was legal.
  Finally, the FISA Court would ask: Did the defendants actually 
provide assistance? If the FISA Court finds that defendant did not 
provide any assistance to the Government or that the assistance either 
met the legal requirements of the law or was reasonably and in good 
faith, the immunity provision would apply.
  If the FISA Court finds that none of these requirements were met, 
immunity would not apply to the defendant companies. I think the merit 
of this approach is it preserves judicial review, the method we look at 
in order to decide questions of legality.
  Now, the bulk of the Members of this body, probably 90 percent of 
them, have not been able to see the written certification, so you do 
not know what was there. What we ask in this amendment is: FISA Court, 
you take a look at these letters, and you make a ruling as to whether 
they essentially meet the certification requirements of the FISA law.
  Therefore, there is judicial review to determine whether, under 
existing law, this immunity should be forthcoming. It is a narrowing of 
the immunity provisions of the Intelligence bill. I think it makes 
sense. I read the letters. I am a layperson, I am not a lawyer. I 
cannot say whether they met the immunity provisions. Others can say 
  But it should be up to a court to make that decision. It seems to me 
that if the FISA Court finds that none of these requirements were met, 
immunity would not apply to the defendant companies.
  The FISA Court of Review stated in 2002 that the President has 
article II authorities to conduct surveillance. The article II 
authority is the big rub in all this. The collection under this program 
was directed overwhelmingly at foreign targets.
  But no court has addressed this issue since FISA was enacted in 1978. 
And, candidly, I think the time has come to see whether the President's 
article II authority--and the FISA Court would be the first judge of 
this--in fact, supersedes the article II authority based on the reading 
that I had given you of FISA Court passage in 1978.
  So essentially that is the amendment I would like to send to the desk 
at this time which narrows the immunity provision of the FISA law. I 
thank the clerk for receiving the amendment.
  In sum, I have tried to pay a great deal of attention to this. I 
tried to do my due diligence, both as a member of the Judiciary 
Committee and the Intelligence Committee. I truly do believe electronic 
surveillance is vital in the war against terror.
  I believe it is the most likely way we learn what is being planned 
for the future and have an opportunity to prevent it from happening. I 
truly believe there are people who would do this Nation grievous injury 
and harm if they are given the opportunity to do it, and I think the 
telecom communities did depend on the good faith of the head of the 
National Security Agency and the Attorney General and the requests from 
the highest levels of Government.
  The question is, Did they comply with the law? And so the amendment I 
have suggested would give the FISA Court the opportunity to make a 
ruling as to whether, in fact, they did comply with the law.
  The second amendment would strengthen the exclusivity provisions of 
the FISA law so we never again, hopefully, will find ourselves in the 
same situation.
  I look for a vote on both those amendments, and I thank the Chairman 
of the Intelligence Committee, the Judiciary Committee and Senator 
Nelson for supporting my amendment on exclusivity.
  I ask unanimous consent that Senator Nelson of Florida be added as a 
cosponsor of the FISA Court evaluation on the immunity question 
  The PRESIDING OFFICER (Mr. Webb.) Without objection, it is so 
  Mrs. FEINSTEIN. I thank the Senator from Connecticut for yielding to 
  Mr. KENNEDY. Mr. President, I am troubled by the FISA bill that has 
come to the Senate floor. Since I introduced the original FISA 
legislation over 30 years ago, I have worked to amend the FISA law many 
times, and I believe that this bill is not faithful to the traditional 
balance that FISA has struck. This bill gives the executive branch vast 
new authorities to spy on Americans, without adequate guidance or 
oversight. Americans deserve better.
  I voted ``yes'' on the motion to proceed to consideration of this 
bill because I believe this legislation is too important to hold up any 
longer. The House has already passed a new FISA bill, and the Senate 
needs to do the same. But let me be clear, the Senate should reject the 
bill that we have before us. We need to pass the Judiciary Committee 
version instead.
  The Foreign Intelligence Surveillance Act is one of our landmark 
statutes. For nearly three decades, it has regulated Government 
surveillance in a way that protects both our national security and our 
civil liberties and prevents the Government from abusing its powers. It 
is because FISA enhances both security and liberty that it has won such 
broad support over the years from Presidents, Members of Congress, and 
the public alike. It is important to remember that before this 
administration, no administration had ever resisted FISA, much less 
systematically violated it.
  When the administration finally came to Congress to amend FISA after 
its warrantless wiretapping program was exposed, it did so not in the 
spirit of partnership, but to bully us into obeying its wishes. The 
Protect America Act was negotiated in secret at the last minute. The 
administration issued dire threats that failure to enact a bill before 
the August recess could lead to disaster. Few, if any, knew what the 
language would actually do. The result of this flawed process was 
flawed legislation, which virtually everyone now acknowledges must be 
substantially revised.
  I commend the members of the Intelligence Committee for their 
diligent efforts to put together a new bill. They have taken their 
duties seriously, and they have made some notable improvements over the 
Protect America Act.
  But their bill is deeply flawed, and I am strongly opposed to 
enacting it in its current form. This bill fails to protect Americans' 
constitutional rights and fundamental freedoms.
  There are many problems with the bill.
  It redefines ``electronic surveillance,'' a key term in FISA, in a 
way that is unnecessary and may have unintended consequences.
  Court review occurs only after the fact, with no consequences if the 
court rejects the Government's targeting or minimization procedures.
  It is not as clear as it should be that FISA and the criminal wiretap 
law are the sole legal means by which the Government may conduct 
electronic surveillance.
  Its sunset provision is December 31, 2013. For legislation as 
complicated, important, and controversial as this, Congress should 
reevaluate it much sooner.
  The bill purports to eliminate the ``reverse targeting'' of 
Americans, but does not actually contain language to do so. For 
instance, it has nothing analogous to the House bill's provision on 
reverse targeting, which prohibits use of the authorities if ``a 
significant purpose'' is targeting someone in the United States.
  It does not fully close the loophole left open by the Protect America 
Act, allowing warrantless interception of purely domestic 
  It does not require an independent review and report on the 
administration's warrantless eavesdropping program. Only through such a 
process will we ever learn what happened and achieve accountability and 
closure on this episode.
  Add it all up, and the takeaway is clear: This bill is inconsistent 
with the

[[Page S15735]]

way FISA was meant to work, and it is inconsistent with the way FISA 
has always worked.
  The Judiciary Committee's FISA bill shows that there is a better way. 
The Judiciary Committee's version is faithful to the traditional FISA 
balance. It shares the same basic structure, but it addresses all of 
the problems I listed above. The Judiciary bill was negotiated in 
public, which allowed outside groups and experts to give critical 
feedback. It was also negotiated later in time than the Intelligence 
bill, meaning we had the benefit of reviewing their work.
  Like the Intelligence Committee's bill, the Judiciary Committee's 
version also gives the executive branch greater authority to conduct 
electronic surveillance than it has ever had before. Make no mistake, 
it too is a major grant of power to the intelligence community. But 
unlike the Intelligence Committee's bill, the Judiciary Committee's 
version sets some reasonable limits that protect innocent Americans 
from being spied on by their Government without any justification 
  No one should lose sight of how important title I of FISA is. The 
rules governing electronic surveillance affect every American. They are 
the only thing that stands between the freedom of Americans to make a 
phone call, send an e-mail, and search the Internet, and the ability of 
the Government to listen in on that call, read that e-mail, review that 
Google search. In our ``information age,'' title I of FISA provides 
Americans a fundamental bulwark against Government tyranny and abuse. 
If we enact the title I that is now before us, we will undermine that 
  Unfortunately, the exact same thing would be true if we enact the 
Intelligence Committee's title II.
  The Nation was shocked to learn earlier this month that the CIA had 
destroyed videotapes showing employees using severe interrogation 
techniques. The willful destruction of these tapes by the CIA obviously 
raises serious questions involving obstruction of justice.
  But this is not the only coverup that the administration has been 
involved in lately. President Bush has been demanding that Congress 
grant retroactive immunity to telecommunications companies that 
cooperated with the administration's illegal surveillance program. He 
wants us to pretend that this whole episode never happened.
  I oppose granting any form of retroactive immunity to these 
companies, and I urge my colleagues to support the amendment to strike 
title II from the FISA bill. Amnesty for telecommunication companies 
may help the administration conceal its illegal spying, but it will not 
serve our national security, and it will further undermine the rule of 
  Let's not forget why we are even talking about this issue. At some 
point in 2001, the Bush administration began a massive program of 
warrantless spying. New reports suggest that the administration began 
its warrantless spying even before 9/11. The administration never told 
Congress what it was doing. In clear violation of the FISA law and in 
complete disdain for the fourth amendment, it also never told the FISA 
Court what it was doing.
  Because the Bush administration secretly ignored the law, we still do 
not know how deeply this program invaded the privacy of millions of 
innocent Americans. The push for immunity by this administration is a 
push to avoid all accountability for a wiretapping program that was a 
massive violation of the law.
  FISA has been in force for 29 years. It was designed from the 
beginning to allow flexibility in pursuing our enemies. It was enacted 
with strong bipartisan support in 1978, and it has been amended on a 
bipartisan basis some 30 times since then. It has enhanced Americans' 
security and safeguarded our liberty. Every previous administration has 
complied with FISA. But the Bush administration apparently decided that 
FISA was an inconvenience. With the help of certain phone companies, it 
secretly spied on Americans for years, without any court orders or 
  There is still a great deal we don't know about this secret spying, 
but what we do know is alarming. Numerous reports indicate that it 
covered not only international communications, but also Americans' 
purely local calls with their friends, neighbors, and loved ones. A 
lawsuit in California has produced evidence that at the Government's 
request, AT&T installed a supercomputer in a San Francisco facility 
that copied every communication by its customers, and turned them over 
to the National Security Agency.
  Think about that. The National Security Agency of the Bush 
administration may have been intercepting the phone calls and e-mails 
of millions of ordinary Americans for years.
  The surveillance was so flagrantly illegal that even lawyers in the 
administration tried to fight it. Nearly 30 Justice Department 
employees threatened to resign over it. The head of the Office of Legal 
Counsel, Jack Goldsmith, testified that it was ``the biggest legal mess 
I had ever encountered.''
  Mr. Goldsmith himself acknowledged that ``top officials in the 
administration dealt with FISA the way they dealt with other laws they 
didn't like: they blew through them in secret based on flimsy legal 
opinions that they guarded closely so no one could question the legal 
basis of the operations.''
  Think about that as well. The President's own head of the Office of . 
Legal Counsel states that the administration's policy has been to 
``blow through'' laws it doesn't like, in secret, so that its actions 
cannot be challenged. The Bush White House has repeatedly failed to 
understand that our Government is a government of laws, and not of men.
  The administration's secret spying program has taken a heavy toll on 
our country. Its failure to follow the law has made it more difficult 
for prosecutors to put terrorists behind bars; for intelligence 
professionals to avoid civil and criminal lawsuits; and for the public 
to trust its Government. In the name of making us safer, the 
administration's reckless disregard for the law has made us less safe, 
and countless Americans fear their rights have been endangered. That 
sorry record demands accountability, not immunity.
  Here is another fact that no one should lose sight of. From the very 
beginning, telecommunications companies have always had immunity under 
FISA when they comply with lawful surveillance requests. In fact, the 
Senate Judiciary Committee worked closely with AT&T, and the company 
played a major role in drafting FISA's immunity provisions in the 
  To be completely protected from any liability whatever, all a company 
needs under FISA is a court order or an appropriate certification from 
the Attorney General. That is it. Just get one of those two documents, 
and you are off the hook.
  So in this debate, let us be clear that we are not talking about 
protecting companies that complied with lawful surveillance requests. 
We are talking about protecting companies that complied with 
surveillance requests that they knew were illegal.
  Immunity for the phone companies would be bad policy on many levels. 
First, it is premature even to be talking about this subject. Even 
though the President is demanding immunity for companies that may have 
broken the law, he will not tell all Members of Congress which 
companies broke the law, how they broke the law, or why they broke the 
law. He is asking us to legislate in the dark.
  Immunity for the telecoms for warrantless wiretapping violates the 
basic structure and purpose of FISA. The industry helped draft FISA, 
and they perform a major role under it. Here is how this system was 
explained in the House Intelligence Committee report on the original 

       Requiring the court order or certification to be presented 
     [to the carrier] before the assistance is rendered serves two 
     purposes. It places an additional obstacle in the path of 
     unauthorized surveillance activity, and, coupled with the 
     provision relieving the third party from liability if the 
     order or certification is complied with, it provides full 
     protection to such third parties.

  If phone companies can ignore these requirements, this system of 
checks and balances collapses. That is exactly what happened here. The 
telecoms are supposed to provide an essential safeguard for protecting 
Americans' private information. Because Congress and the courts usually 
don't know about wiretapping activities, this role of the telecoms is 
crucial. Immunity for the telecoms undermines the basic design of our 
surveillance laws.

[[Page S15736]]

  Instead of undermining those laws, we should apply them in a court of 
law to discover and punish illegal activities. The administration has 
used the scare tactic of claiming that lawsuits will jeopardize 
national security by leaking sensitive information. That argument 
ignores the fact that the media have already exposed the existence of 
its warrantless surveillance program and the role of some telecoms in 
assisting this program. In addition, it would be foolish to assume that 
the terrorists don't already know that we are trying to intercept their 
phone calls and e-mails.
  The administration's argument also ignores the numerous safeguards 
used by courts to protect sensitive information. No one is advocating 
that the NSA disclose its specific methods or targets in open court. 
Even if someone did seek such disclosure, the Federal courts have 
procedures that have protected Government secrets for generations.
  The administration has also suggested that allowing these lawsuits to 
proceed might jeopardize national security by deterring phone companies 
from future cooperation with surveillance requests. This too is sheer 
nonsense. Under FISA, companies already have absolute immunity for any 
lawful cooperation. Future companies will be deterred only from 
cooperating with illegal surveillance requests, which is the whole 
point of the law. We do not want this shameful episode to happen again.

  The phone companies will suffer only the same harm that befalls any 
company that violates the law. The administration contends that the 
telecoms may be bankrupted if the lawsuits continue. In other words, 
the administration is telling us these companies may have engaged in 
lawbreaking on a scale so massive they could not afford the penalty if 
they are brought to justice. But massive law breaking is an argument 
against immunity, not for it. If the concern is the companies' 
financial health, the answer is not to throw out the rule of law but to 
legislate reasonable remedies, such as damage caps.
  Immunity for the telecoms would also violate basic principles of 
fairness and justice. The administration repeatedly claims immunity is 
``a matter of basic fairness'' because the companies were doing their 
patriotic duty. That is a strange conception of fairness.
  Telecom companies have clear duties under the law. They also have 
highly sophisticated lawyers who deal with these issues all the time. 
If a company violated its clear duties and conducted illegal spying, 
fairness demands it face the consequences.
  It is precisely because fairness and justice are so important to the 
American system of government that we ask an independent branch--the 
judiciary--to resolve such legal disputes. There is nothing fair or 
just about Congress stepping into ongoing lawsuits to decree victory 
for one side and deny injured parties their day in court.
  Frankly--frankly--the whole ``patriotic duty'' argument we have been 
hearing from the White House is hard to take seriously. If the 
allegations against the telecoms are true, then we are not talking 
about ambiguous points of law. As a Federal judge remarked in one of 
the leading cases:

       AT&T cannot seriously contend that a reasonable entity in 
     its position could have believed that the alleged domestic 
     dragnet was legal.

  We are not talking about what happened in the frantic weeks and 
months immediately following 9/11. We are talking about alleged 
violations of Americans' rights that went on for 5 years--5 years--in 
total secrecy, on a scale that has never been approached in our 
  If the telecoms had followed the law instead of the Bush 
administration, the administration could have come to Congress and 
obtained any needed changes in the law. In a democracy, it is the job 
of the legislature to amend laws to fit new circumstances. It is not 
the job of the legislature to rubberstamp illegal conduct by the 
  Some of the telecoms might have been doing what they thought was good 
for the country. Some of them might simply have been doing what they 
thought would preserve their lucrative Government contracts. We simply 
do not know. But either way, it is not the role of the 
telecommunications companies to decide which laws to follow and which 
to ignore. FISA is a law that was carefully developed over many years 
to give the executive branch the flexibility it needs, while protecting 
the rights of Americans. It is the companies' legal duty--and their 
patriotic duty--to follow that law.
  Nothing could be more dangerous for Americans' privacy and liberty 
than to weaken that law, which is precisely what retroactive immunity 
is meant to do. Yesterday's newspapers disclosed that in December of 
2000, the National Security Agency sent the Bush administration a 
report asserting that the Agency must become a ``powerful, permanent 
presence'' on America's communications network--a ``powerful, permanent 
presence'' on America's communications network. Under this 
administration, that is exactly what the NSA has become. If the phone 
companies simply do the NSA's bidding in violation of the law, they 
create a world in which Americans can never feel confident that their 
e-mails and phone calls are not being tapped by the Government.
  Finally, amnesty would stamp a congressional seal of approval on the 
administration's warrantless spying. If Congress immunizes the telecoms 
for past violations of the law, it will send the message Congress 
approves what the administration did. We would be aiding and abetting 
the President in his illegal actions, his contempt for the rule of law, 
and his attempt to hide his lawbreaking from the American people. 
Voting for amnesty would be a vote for silence, secrecy, and 
illegality. There would be no accountability, no justice, no lessons 
  The damage will not stop there. The telecommunications companies are 
not the only private entity enlisted by this administration in its 
lawbreaking. Think about Blackwater and its brutal actions in Iraq, or 
the airlines that have flown CIA captives to be tortured in foreign 
countries. These companies may also be summoned to court one day to 
justify their actions. When that day comes, the administration may call 
yet again for retroactive immunity, claiming the companies were only 
doing their patriotic duty as ``partners'' in fighting terrorism.
  The debate we are having now about telecom amnesty is not likely to 
be the last round in the administration's attempt to immunize its 
private partners. It is only the opening round. In America, we should 
be striving to make more entities subject to the rule of law, not 
fewer. Giving in to the administration now will start us down a path to 
a very dark place.
  Think about what we have been hearing from the White House in this 
debate. The President has said American lives will be sacrificed if 
Congress does not change FISA. But he has also said he will veto any 
FISA bill that does not grant retroactive immunity--no immunity, no 
FISA bill. So if we take the President at his word, he is willing to 
let Americans die to protect the phone companies. The President's 
insistence on immunity as a precondition for any FISA reform is yet 
another example of disrespect for honest dialog and the rule of law.
  It is painfully clear what the President's request for retroactive 
immunity is about. It is a self-serving attempt to avoid legal and 
political accountability and keep the American people in the dark about 
this whole shameful episode. Similar to the CIA's destruction of 
videotapes showing potentially criminal conduct, it is a desperate 
attempt to erase the past.
  The Senate should see this request for what it is and reject it. We 
should pass this amendment to strike title II from the FISA bill. Our 
focus should be on protecting national security, our fundamental 
liberties, and the rule of law, not protecting phone companies that 
knew they were breaking the law.
  I am second to no one in wanting to make sure our intelligence 
agencies have all the flexibility and authority they need to pursue the 
terrorists. We need to pass a FISA bill that will keep America strong 
and protect our liberty. The bill reported by the Judiciary Committee 
will do that.
  Mr. DODD. Mr. President, will my colleague yield?
  Mr. KENNEDY. I will be glad to.
  Mr. DODD. Mr. President, I wish to commend the Senator from 
Massachusetts for his statement this afternoon. He has captured the 
essence of all this and the importance of the issue in

[[Page S15737]]

Title II. He made very many good points. But one point he made said it 
all: that the President of the United States would veto the FISA 
legislation if he does not get immunity for the phone companies. This 
administration would risk the entire law--a law designed to improve our 
surveillance of terrorists, while respecting privacy--simply to protect 
a handful of companies. Those are the lengths to which President Bush 
is prepared to go.
  I think the Senator from Massachusetts made this point, but it is 
worth repeating: Not every company did what the administration asked 
them to do. There were those that stood up and said: ``No. Give me a 
court order, and I will comply under the law.'' They should be 
commended for what they did.
  For those that said, ``We were just doing our patriotic duty,'' their 
legal departments were not made up of first-year law students. They 
knew what the law was. Yet they may have violated it and are now 
seeking immunity.
  So I commend my colleague. I am going to offer--when I get a chance--
an amendment that strikes title II from the legislation. I hope every 
Senator here supports it. This ought not be about party or ideology. It 
is about our Constitution.
  The FISA law is a good law. It has protected us for almost 30 years. 
But it should not sanction retroactive immunity for a handful of phone 
companies that eavesdropped on millions of people's conversations.
  So I commend my colleague for his words.
  Mr. KENNEDY. Mr. President, I thank the Senator for his comments. I 
agree it never had to be this way. I can remember back in 1976 
President Ford was President of the United States. He had Edward Levi 
as Attorney General, who was a distinguished Attorney General. This was 
in the wake of a good deal of abuse we had seen during President 
Nixon's period of wiretap abuse taking place in this country, which 
shocked the Nation.
  At that time, the Attorney General insisted that we work together, 
that Congress work together. He called members of the Judiciary 
Committee down to the Justice Department and took their views into 
consideration. There was a variety of very sensitive issues about 
activities involving the Soviet Union and a good deal in terms of 
embassies in Washington, DC. There was very sensitive information. All 
of that was worked out with the Republicans and Democrats in the 
Judiciary Committee, and they passed the FISA bill. There was only one 
dissenting vote in the Senate--only one dissenting vote--on this 
  I must say many of us were enormously disappointed at the beginning 
of this whole pathway when Attorney General Gonzales came up before the 
committee and indicated: No, there was not any role to try to work in a 
constructive way and on a constructive path on this mission. No, there 
was no place for anyone to get adequately briefed. No, there was no 
sharing of information. No, there was going to be no--they understood 
what was going to happen. They understood what was going on. They had 
all the authority and the power under the executive branch. No, there 
was not going to be any activity whatsoever in trying to work together.
  I have mentioned a variety of different points. But one of those we 
ought to keep in mind is that with the abuses that have taken place, we 
are endangering the prosecution of many of these terrorists. This is a 
real danger. Rather than trying to work that out through a process, 
with give-and-take, with Republicans and Democrats, in a bipartisan 
way, working with the Judiciary Committee--the Intelligence Committee 
obviously has enormous interest and experience; I see my friend and 
someone we all have such a high regard for, Senator Rockefeller, who 
has done such a commendable job in this whole area--but not working it 
out and running off on this pathway, which is gradually being revealed 
through the national media and the press and through other activities, 
I think, rather than enhancing our national security, has indeed 
threatened it.
  Mr. DODD. Mr. President, if I may further inquire of my colleague 
from Massachusetts, I was intrigued to learn how many the Washington 
Post recorded. I heard no one argue with these numbers. One of the 
arguments we have heard is that the FISA Court may not have been 
willing to agree with these court orders to the phone companies--not 
that that argument was even remotely legitimate.
  The Washington Post reports that over the years, there have been over 
18,000 requests for FISA court orders. Of those more than 18,000 
requests, 5 have been rejected--5. So with over 18,000 requests, for 
99.9 percent of those requests, that court has acquiesced to 
administration appeals 99.9 percent of the time.
  So the idea this court was somehow going to serve as an obstruction 
to the administration's desire to get legitimate information is 
certainly belied by the statistics. I point that out to my colleague.
  Mr. KENNEDY. Mr. President, I thank the Senator.
  In the committee, we had some of the members of the FISA Courts 
testify. They indicated before the committee similar kinds of 
cooperation they have had in reviewing this, making the Senator's point 
even stronger. I thank the Senator from Connecticut. There may have 
been others, but I did notice him to be the first one in the Senate who 
spoke up on this issue when it first came up, and he has been a very 
strong protector of our national security and our liberty, and we have 
all benefited from his comments and his leadership in this area. I 
thank him for all of his good work.

  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. I was in the midst of giving some remarks earlier, and my 
colleague from California, Senator Feinstein, came on the Senate floor. 
I know she wanted to share her thoughts, so I yielded the floor to her 
to allow her to speak. I see my friend and colleague from Missouri is 
here. I know we have gone back and forth. I understand how this works. 
I don't know if he has some remarks he wants to give.
  Mr. BOND. Mr. President, I am a little bit confused. We certainly 
don't want to cut short the remarks of our friend from Connecticut, but 
I thought this was supposed to go back and forth. I believe there is an 
hour limit under postcloture on time that can be consumed by any 
Senator. I thought we would go back and forth to enable people on both 
sides and let the chairman and me perhaps respond where necessary.
  Mr. DODD. Fine.
  Mr. BOND. I wanted to know, through the Chair, what the procedure is 
right now.
  The PRESIDING OFFICER. There is no order of recognition at this time.
  Mr. BOND. All right. Again, I seek recognition, and I thank my 
colleagues for sharing their views.
  The PRESIDING OFFICER. The Senator from Missouri is recognized.
  Mr. BOND. Mr. President, I wanted to share a few views on matters 
that have been just raised. I thought it was important to bring these 
up. I will have longer remarks when we actually get on the bill.
  I appreciated hearing from our colleague, who is an original 
cosponsor of the first FISA bill, and to learn about the negotiations 
which went on then. But I was a little puzzled to hear how this bill--
this bill, which includes significantly more protections for Americans' 
civil liberties and constitutional rights--somehow goes back on the 
original FISA. The original FISA required a court review of targeting 
of U.S. persons. We have gone far beyond that in this bill. As a matter 
of fact, the Protect America Act, which he decried, contained all of 
the protections that were in the original FISA bill.
  Now, we have, on a bipartisan basis--I keep emphasizing that the 
Intelligence Committee, on a bipartisan basis, after being fully 
briefed--fully briefed--by several elements of the intelligence 
community--and we asked them questions. We had briefings. We went to 
the NSA to see how it worked. We went through all of these ideas with 
them. They said: We understand your objective. Here is how to 
accomplish it.
  I think we have prepared a very good bill that by any fair reading--
any fair reading--will extend the protections beyond what the original 
FISA, and even the Protect America Act, had for the surveillance, 
electronic surveillance of anybody either in the United

[[Page S15738]]

States or a U.S. person abroad. I am very much surprised that he says 
somehow, this bill, which provides more protection, doesn't provide the 
basic protections of FISA. I regret to say that is just not right.
  I also want to address some questions about immunity which have been 
brought up. I thought our committee report, a bipartisan product, said 
it pretty well when talking about why providing immunity--and it is not 
amnesty because these companies, the companies alleged to have done 
wrong, did nothing wrong. This is what the Intelligence Committee said. 
We concluded:

       The providers had a good faith basis for responding to the 
     request for assistance they received. The intelligence 
     community cannot obtain the intelligence it needs without 
     assistance from these companies. Companies in the future may 
     be less willing to assist the government if they face the 
     threat of private lawsuits each time they are alleged to have 
     provided assistance. The possible reduction in intelligence 
     that might result from this delay is simply unacceptable for 
     the safety of our Nation. Allowing continued litigation also 
     risks the disclosure of highly classified information 
     regarding intelligence sources and methods. In addition to 
     providing an advantage to our adversaries by revealing 
     sources and methods during the course of litigation, the 
     potential disclosure of classified information puts both the 
     facilities and personnel of electronic communications service 
     providers and our country's continued ability to protect our 
     homeland at risk. It is imperative that Congress provide 
     liability protection to those who cooperated with our country 
     in the hour of need.

  Now, there was some talk about article II, and some suggested that 
the FISA Court would not have--this could not have been approved by the 
FISA Court. Well, my understanding is the FISA Court knew about it. The 
FISA Court has acted on this measure, and in one of the few published 
reports of the FISA Court of Review, In Re: Sealed Case--that is a very 
compelling and provocative title, but that is the name of the case--it 
is stated in one of the footnotes dealing with the case that: The 
Truong case, where a warrantless search of U.S. persons in the United 
States was approved by the court, the FISA Court of Review said:

       The Truong court, as did all the other courts to have 
     decided this issue, held that the President did have the 
     inherent authority to conduct warrantless searches to obtain 
     foreign intelligence information. It was incumbent upon the 
     court, therefore, to determine the boundaries of that 
     constitutional authority in the case before it. We take for 
     granted that the President does have that authority and, 
     assuming that is so, FISA could not encroach on the 
     President's constitutional power.

  The court went on to say:

       The question before us is the reverse, does FISA amplify 
     the President's power by providing a mechanism that at least 
     approaches a classic warrant and which therefore supports the 
     government's contention that FISA searches are 
     constitutionally reasonable.

  That is the view of the FISA Court of Review. Everybody is saying, 
well, we need to find out what the FISA Court of Review has to say 
about these certifications, about the authorizations. What I just read 
is what the FISA Court has said. The President does have the power 
under article II of the Constitution to conduct warrantless 
surveillances. Once that determination is made, then to go back and say 
that any company, any U.S. person, or any corporation that got a notice 
from the Attorney General to carry out an order of the President 
through the Intelligence Committee to conduct foreign intelligence 
surveillance is breaking the law is just absolutely beyond the bounds.
  I am very sorry we have such a disjoint in the reading and 
understanding of the constitutional powers. And to say now that these 
people should be dragged back into court where they will be subjected 
not only to the potential of large legal bills, the potential loss in 
terms of any judgment--although I think that is minimal; I don't think 
anybody is going to be able to show any harm that would warrant the 
court to grant a monetary recovery--but what they will find, what they 
will find is great damage to their reputation, as the people who are 
enemies of the United States go out actively and trash any company or 
any individual who cooperates with the United States.
  There are evil people out there who would love to be able to get 
information and confirm what companies may have participated. Once that 
happens, those companies would be at great risk abroad. Their 
reputations would suffer, and they and their personnel could be at 
great risk of physical harm.
  So there are many good reasons not to bring these cases in court 
against the providers. Please note, as we have stated before, that this 
measure only protects the private sector people who might have 
cooperated. It does not protect Government employees. I hope by 
clarifying this, people will get a better understanding of why immunity 
is necessary to protect the legitimate interests of the United States 
in collecting foreign information.
  Many of my colleagues want to speak, so I appreciate the opportunity 
to clarify the question of immunity.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Texas is recognized.
  Mr. CORNYN. Mr. President, I congratulate the distinguished chairman 
and vice chairman of the Senate Select Committee on Intelligence for 
what I think is an outstanding product--a bipartisan product. I can't 
think of an area that is more important for us to act in the interests 
of our national security in a bipartisan manner than the subject before 
us today. We should resist with all of our might any impulse or tug 
that we might feel to emphasize partisan differences, but instead we 
ought to pull together to try to do what is necessary to keep our eyes 
open and our ears to the ground when it comes to the collection of 
foreign intelligence.
  Of course, the Foreign Intelligence Surveillance Act was passed in 
1978 to ensure that Americans' civil liberties were being protected. At 
the same time, we made sure we were able to listen to our enemies, 
which has become even more important today with terrorists taking 
advantage of the Internet, cellular phones, and other means of 
communications, and it is critical that we continue to take advantage 
of every opportunity to detect and deter future terrorists attacks on 
our own soil.
  We were told last August by the Director of National Intelligence--
this has been widely published since--that because of some of the 
archaic provisions in the FISA law, the Foreign Intelligence 
Surveillance Act, and because it had not kept up with changes in modern 
technology, that we were being blocked from receiving as many as two-
thirds of the communications of one foreign terrorist to another 
foreign terrorist because of the way these calls were being routed. We 
were told time and time again that the burdensome requirement of 
getting the paperwork necessary in order to get a FISA authorization in 
cases where the Congress never intended to require that sort of 
authorization, which was required because of these changes in 
technology, that it was actually causing delays in our ability to get 
timely information in a way to protect our country and our men and 
women in uniform serving in places such as Afghanistan and Iraq.
  We know the ability to obtain the right information at the right time 
is of critical importance in our struggle against radical Islamic 
terrorists who hide among civilian populations and who don't abide by 
the Geneva Conventions. They don't wear a uniform. They don't recognize 
a chain of command or the laws of war. They hide among civilian 
populations and quietly plot deadly attacks against civilians--innocent 
men, women, and children--as they did on September 11, 2001.
  I serve on the Judiciary Committee, so I am very much aware of some 
of the arguments made during the time we considered this bill on a 
serial referral against providing immunity to the telephone companies 
that have cooperated with the President of the United States, the 
Attorney General, and the intelligence community in facilitating the 
collection of this actual intelligence.
  Mr. President, I think the Intelligence Committee version got it 
about right. Why in the world would we want to do anything to 
discourage private citizens, whether they be individuals or corporate 
citizens, from cooperating in the security interests of our country? 
This is perhaps analogous to a police officer who knocks on your window 
and says, I need your car to go capture a dangerous criminal before 
they do harm to somebody else. Well, if an individual were worried that 
they would be sued as a result of their being a good volunteer and a 
good member of the

[[Page S15739]]

community in allowing a law enforcement officer the use of their car to 
capture a dangerous criminal, do you think they would be more inclined 
or less inclined to cooperate with the lawful authorities? I think it 
is pretty clear that they would be far less inclined.
  If we don't do everything in our power--and it is within our power--
to encourage individual and corporate citizens to cooperate in the 
security interests of our country, then shame on us. To tell them that 
you are going to have to endure ruinous litigation costs, that you are 
not even going to be able to defend yourself because some of the 
evidence is the subject of a State secrets privilege, and you are not 
even going to be able to explain what you did, while at the same time 
suffering the reputation damage that they could very well suffer if 
their participation was known in other parts of the world, is not fair. 
It is not fair to them and, even more importantly, it is not fair to us 
because to fail to give them the immunity for their cooperation with 
the lawful request of the President of the United States, after the 
Attorney General, the country's chief law enforcement officer, has said 
this is a lawful request, to fail to give them immunity and protection 
against that ruinous litigation and damage to their reputation is less 
than responsible.
  I think the thing more likely to protect our security from this point 
forward is to show citizens who cooperate with the lawful authorities 
of the U.S. Government to help keep us safe that they are going to be 
protected against litigation and the vast costs that could be 
associated with it--not to mention the potential that classified 
information might become public and be known to our enemies. It makes 
absolutely no sense not to give that immunity to these individuals and 
these corporations.
  The Protect America Act, which is scheduled to sunset in February, 
moved our intelligence capabilities in the right direction. But now we 
need to make those tools permanent. Changes in technology, combined 
with a court ruling that hampered the intelligence community, required 
that the Foreign Intelligence Surveillance Act be updated. That is what 
the Protect America Act was, although it was a temporary patch of about 
6 months. Now we need to make those provisions permanent and take this 
opportunity to further expand and enhance the Foreign Intelligence 
Surveillance Act to make sure it works in the security interests of the 
American people, while taking the appropriate protections on American 
citizens here at home.
  In the period between the court ruling that required the Government 
to obtain FISA orders for foreign intelligence that happened to pass 
through the infrastructure in the United States and the passage of the 
Protect America Act, collection of foreign intelligence information 
decreased by two-thirds. That is what prompted Congress to act in 
August without further delay, the likelihood that being blind to two 
out of every three communications between terrorists would likely make 
us less safe and would make it more likely that they would be 
successful in killing innocent Americans and our allies. Common sense 
informs us that this great drop in the percentage of intelligence 
collection harms our national security efforts.
  Of course, as I mentioned, in August we took a temporary patch to 
close these intelligence gaps and clarify that the intelligence 
community does have the authority to monitor communications of foreign 
individuals without receiving a court approval first.
  Now is the time for us to make that authority permanent. It has never 
been required, in listening in to foreign subjects talking to other 
foreign subjects, to get a court order, and the Protect America Act 
made that temporary fix. We need to make that permanent.
  Some have made arguments which, in the end, would hamper our 
intelligence capabilities, requiring procedures never before in place. 
Intelligence community resources--both funding and expertise--are 
scarce and should be focused in the manner that best protects our 
national security. Our intelligence analysts should not be distracted 
from the important job of listening in and using information to deter 
further attacks by having to fill out a bunch of paperwork, 
particularly in areas that Congress never intended that they would have 
to do so.
  The Senate and House Democratic Judiciary Committee proposals, I am 
sorry to say, would greatly hamper our intelligence community. As I 
mentioned a moment ago, I serve on the Judiciary Committee, and proudly 
so. Unfortunately, in voting this alternative out of the Judiciary 
Committee--along strictly partisan lines--I think we failed to meet the 
standards that were set by the Intelligence Committee version of this 
bill. Although there are changes that I think need to be made, by and 
large, the bipartisan vote in the Intelligence Committee--their product 
was superior to the product out of the Judiciary Committee.
  The House bill would require court orders for foreign targets in 
foreign lands--something that has never been required in the 30 years 
since FISA was enacted and would completely reverse the important 
reforms, albeit temporary, we made a few months ago.
  Delays inherent in obtaining court approval could, in fact, put 
American security interests in jeopardy.
  Here is a concrete example. This last summer, three American soldiers 
were thought to be kidnapped by al-Qaida in Iraq. Because of delays in 
obtaining emergency authorization under the Foreign Intelligence 
Surveillance Act, our intelligence community was unable to set into 
place surveillance that may have saved the lives of these soldiers on 
May 12, 2007. There was a 10-hour delay while the authorities did the 
paperwork necessary for them to listen in on communications they never 
should have been required to get a FISA order to listen to in the first 
place--clearly, foreign-to-foreign communications. Instead, PFC Joseph 
Anzack was found dead a few weeks later in the Euphrates River, and an 
al-Qaida subsidiary claims to have killed and buried SPC Alex Jiminez 
and PFC Byron Fouty. Those 10 hours of delay, I believe, contributed to 
the deaths of these 3 American soldiers. If they hadn't been required 
to wait 10 hours to do the paperwork, I think there was a better chance 
that they could have been found safely and returned to the arms of 
their loved ones.

  One of the key lessons the 9/11 attacks taught us was that we have to 
do a better job of connecting the dots. Erecting more walls and 
barriers to the collection and sharing of intelligence material ignores 
this important lesson and gives our adversaries an unacceptable 
tactical advantage, needlessly placing Americans in greater danger of 
another attack instead of doing everything within our power to keep 
them safe.
  Unlike members of the Senate Intelligence Committee, I am sorry to 
say that House Democrats refused to work with committee Republicans, or 
with the Director of National Intelligence and the Department of 
Justice. How the House committee--or for that matter, the Senate 
Judiciary Committee--could hope to fashion a sensible, workable product 
without consulting with either the Department of Justice or the 
Director of National Intelligence is beyond me. I congratulate the 
members of the Senate Intelligence Committee on working so carefully, 
over a long period of time, in consultation with the appropriate 
authorities, to come up with a bipartisan product--one that I concede 
is not perfect, but no legislation is perfect.
  We are going to be talking about ways that I think we can improve 
even that bill. But the Senate, unfortunately--the Judiciary 
Committee--saw important suggestions from the Intelligence Community 
rejected, again, along partisan lines. No attempt was made to craft a 
bipartisan proposal. Instead, the committee chose to come up with a 
party-line vote that raised serious operational concerns.
  By working with the intelligence community, the Senate Intelligence 
Committee was able to provide the intelligence community with more 
flexibility in gathering foreign intelligence. This Senate bill will 
allow the Attorney General to authorize targeting persons outside of 
the United States to acquire this necessary information. No longer will 
they be required to go to the FISA Court for an approval to target 
foreign terrorists and spies overseas. This will ensure that our 
intelligence community has the agility and the speed it needs to 
collect actionable intelligence at a time when it counts.

[[Page S15740]]

  The Senate bill does not restrict the types of foreign intelligence 
that may be collected. It also streamlines the Foreign Intelligence 
Surveillance Act, providing for more efficient, timely processing of 
FISA applications.
  These are only a few examples of the tools the authors of the Senate 
Select Committee on Intelligence learned that the intelligence 
community needs to make our country safer, simply by working together 
across the aisle in a way that protects the American people more. They 
are to be applauded and congratulated for that effort.
  When the security of our country is at stake, we should consult the 
very people in the best position to know what they need to make sure 
that they have the tools necessary, without causing unintended negative 
  We should learn from the bipartisan lead of the Senate Intelligence 
Committee and work with them to craft a responsible, bipartisan bill 
that keeps our eyes and our ears open, allows us to listen to our 
enemies, and will help us protect Americans against future terrorist 
attacks on our own soil and in places where Americans are located 
around the world.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon is recognized.
  Mr. WYDEN. Mr. President, as a member of the Senate Intelligence 
Committee, I am aware that down at the Old Executive Office Building 
there are large stacks of documents, including the Justice Department 
legal opinions, that relate to the warrantless wiretapping program and 
letters from our Government to the telecommunications companies.
  I have read these materials. But most Members of the Senate have been 
prohibited from being able to read these vital documents. I believe 
that a Senator who was allowed to read these materials would be 
astounded to see how flimsy the Government's case is on behalf of the 
warrantless wiretapping program.
  The administration has fought tooth and nail to keep almost every 
Member of this body, and the entire membership of the other body, from 
being able to read these materials. I believe every Senator who has not 
read these documents ought to insist on their right to be able to read 
them before the Senate casts this critical vote. Having read these 
documents, I can say, as one Member of the Senate Intelligence 
Committee, that nothing in any of these opinions has convinced me that 
the administration's warrantless wiretapping program was legal. Now 
that the existence of the program has been confirmed, I can see no 
national security reason to keep most Members of the Senate from being 
able to see these materials. As far as I can tell, these materials are 
being classified in order to protect the President's political 
security, not our national security.

  The Intelligence Committee has also reviewed written correspondence 
sent to certain telecommunications companies by the Government. I 
cannot get into the details of this correspondence, but I can say I am 
totally unconvinced, on the basis of having read these materials, that 
Congress should grant total immunity to the companies.
  For years, there have been a number of laws on the books, such as the 
Wiretap Act, the Electronic Communications Privacy Act, and, of course, 
the Foreign Intelligence Surveillance Act. Together, they make it very 
clear that participating in a warrantless wiretapping program is 
against Federal law.
  Many of my colleagues have argued that any companies that were asked 
to provide assistance after September 11 should be treated leniently 
since that was a period of national confusion and great fear. I think 
this argument personally has some merit, but the bill that was reported 
by the Intelligence Committee would not just grant immunity for 6 
months or 1 year after September 11; it would grant immunity for 
actions taken up to 5 years after the attack. I think that is far too 
long, and I am going to briefly explain why.
  If a phone company was asked to participate in warrantless 
wiretapping in the weeks after September 11, it is understandable that 
executives might not have had the time to question assertions from the 
Government that the wiretapping was legal. But that doesn't give the 
executive a free pass to participate in warrantless wiretapping forever 
and forever. At some point over the following months and years, this 
phone company executive has an obligation to think about whether they 
are complying with the law, and as soon as they realize they have not 
been in compliance, they have an obligation to stop it.
  In the months and years following September 11, it should have been 
increasingly obvious to any phone company that was participating in the 
program that it just might not be following the law. For starters, in 
the week after September 11, Congress and the President got together to 
revise the Foreign Intelligence Surveillance Act, including the 
wiretapping provisions. But the Congress did not change the sections of 
the statute that state warrantless wiretapping is illegal. That, in my 
view, should have been a huge red flag to any phone company that was 
participating in this program.
  Next, in the summer of 2002, the Director of the NSA, General Hayden, 
appeared before the Intelligence Committee in open session and 
testified about the need to get warrants when someone was inside the 
United States. I am sure General Hayden would argue that he was parsing 
his words carefully, but at a minimum, it was clear at this point that 
most of the Congress and most of the American people believed 
warrantless wiretapping was illegal.
  The President has argued that the program was authorized through his 
Commander in Chief authority. But in the spring of 2004, the Supreme 
Court issued multiple rulings clearly rejecting this idea, and the 
President cannot do whatever he chooses to do. These rulings also have 
been giant red flags for any phone company engaged in warrantless 
  Finally, as the Intelligence Committee's recent report noted, most of 
the letters requesting assistance stated that the Attorney General 
believed the program was legal. But, as our report points out, one of 
the letters did not even say the Attorney General had approved. I have 
read this letter, and I believe that once again it should have set off 
loud alarm bells in the ears of anybody who received it.
  In my view, as the years rolled by, it became increasingly 
unreasonable for any phone company to accept the Government's claim 
that warrantless wiretapping was legal. By 2004, at the very latest, 
any companies involved in the program should have recognized that the 
President was asking them to do things that seemed to be against the 
  The former CEO of Quest has said publicly that he refused requests to 
participate in warrantless surveillance because he believed it violated 
privacy statutes. I cannot comment on the accuracy of this claim, but I 
hope our colleagues will stop and think about its implications.
  I also encourage my colleagues to insist on their right to see the 
communications that were sent to the telecommunications companies. My 
own view is, when they read these letters, if they are given a chance 
to read them, these letters seriously undermine the case for blanket 
retroactive immunity.
  The legislation that passed the Intelligence Committee would grant 
immunity long past the point at which it was reasonable for the phone 
companies to believe the Bush administration. It would even grant 
immunity stretching past the point at which the program became public. 
By the beginning of 2006, the program was public and all of the legal 
arguments for and against warrantless wiretapping were subject to open 
debate. Clearly, any companies that participated in this program in 
2006 did so with full knowledge of the possible consequences.
  I cannot see any reason at all why retroactive immunity should cover 
this time period. When the Senate Intelligence Committee voted to grant 
total retroactive immunity, I voted no because I believed it was 
necessary to take more time to study the relevant legal opinion as well 
as the letters that were sent to the communications companies.
  I have long felt that it is possible to fight terrorism ferociously 
and still address the civil liberties needs of our citizens. Now that I 
have studied these documents, I am convinced that granting 6 years of 
total retroactive immunity is not justified and it is not justified in 
the name of striking that crucial balance between fighting terrorism

[[Page S15741]]

aggressively and protecting the individual liberties of our citizens.
  I very much want to support this essential legislation. Chairman 
Rockefeller is here. He has done very good work, along with the 
distinguished vice chairman, Senator Bond, on what I think is the 
central issue of this debate, and that is modernizing the FISA law to 
make sure that now it is possible to apprehend the communications of 
dangerous individuals overseas who are foreigners.
  The administration came to our committee and made a very reasonable 
case that the statute has not kept up with the times. Under the 
leadership of Chairman Rockefeller and the vice chairman, Senator Bond, 
we went to work, and we went to work in a bipartisan way to address 
that concern. That was the original concern of the Bush administration, 
that the statute had not kept up with the times and it wasn't possible 
to get the communications of foreigners overseas. Under the leadership 
of Chairman Rockefeller and Vice Chairman Bond, that issue was dealt 
with, and it was dealt with to the satisfaction of the Bush 

  But the Bush administration wouldn't take yes for an answer. After 
the distinguished chairman of the committee and the vice chairman and 
all of us on a bipartisan basis went to work to try to address the 
reasonable concern of the Bush administration--that the statute had not 
kept up with the times--that wasn't good enough for the Bush 
administration. So that is when we were presented with the proposition 
that we had to have total retroactive immunity for the phone companies. 
Years after the administration had said how legal the program was, 
after we dealt with the administration's original concern about the 
surveillance statute, they came in and asked for something else--this 
total grant of immunity. In fact, most members of the Intelligence 
Committee would not even have gotten to see the documents I had seen 
had it not been for the fact that Chairman Rockefeller and Vice 
Chairman Bond insisted on our right to do so.
  This is an issue of enormous importance. I am very glad our 
colleagues have come to the floor to take the time to go through it. I 
suggest that every Member of the Senate who has not had the right to 
see those documents at the Old Executive Office Building ought to 
insist on their right to see those documents before they cast this 
vote. I think they will be flabbergasted at how flimsy the legal 
analysis is to justify this program.
  Mr. President, I see my colleague, the distinguished Senator from 
Connecticut, on his feet. If I might, I would like to make one 
additional point, and then I will be happy to yield to my friend.
  Mr. DODD. Mr. President, on this last point: obviously we are in 
public session, and the last thing I want to do is have the Senator 
from Oregon talk about what is in these documents; he cannot do that. 
But I am struck by the passion with which he just spoke about those 
documents and the value of having Members of this body see them, 
particularly considering the vote we are about to cast.
  If this bill is adopted with retroactive immunity, then this issue 
disappears; it goes away forever. There will be no court proceedings, 
nothing. We will never have the opportunity to know until, perhaps, 
some of these documents might be released decades down the road under 
the Freedom of Information Act.
  But I am struck by the Senator's passion in arguing that if people 
read these documents and saw them, they would have a very difficult 
time supporting the provision in this bill that grants retroactive 
immunity. Is that the suggestion the Senator has made by those 
  Mr. WYDEN. That is my view, and I find particularly objectionable--
and the Senator from Connecticut has touched on it--you would 
automatically assume that every Member of this body--we know all of our 
colleagues; I trust all of them explicitly with respect to protecting 
our national security--you would think they would certainly have a 
right to see those documents before this vote is to be cast. That is 
not the case. In fact, the only reason members of the Intelligence 
Committee got to see them was because of the outstanding work of 
Chairman Rockefeller and Senator Bond, who battled for my right to see 
those documents.
  Mr. DODD. As a senior member of the Foreign Relations Committee, I do 
not have the right to see these documents?
  Mr. WYDEN. That is correct. That is absolutely correct.
  Mr. DODD. Mr. President, with 26 years in the Senate and as a senior 
member of the Foreign Relations Committee, I do not have the right to 
see these documents?
  Mr. WYDEN. The Senator is right. And we have in the chair serving as 
Presiding Officer of our distinguished body the Senator from Virginia, 
a decorated veteran. My understanding is he does not have the legal 
right to see these documents prior to the vote; that they were only 
made available to members of the Intelligence Committee and perhaps 
several others in the leadership. I think that is wrong. I think every 
Member of this body ought to insist on their right to be able to go 
down to the Old Executive Office Building and read the documents I have 
read, which I believe offer an extraordinarily skimpy case for total 
retroactive immunity.
  I hope we will have a chance to discuss this issue further. I 
appreciate the Senator from Connecticut making the point that he has 
with respect to his seniority in the body, his membership on key 
committees, such as the Senate Foreign Relations Committee, and he is 
not provided the legal right to see these documents before he casts 
this vote.
  I wish to discuss briefly one other amendment which has come up 
during the course of the morning, and that is an amendment I offered in 
the Senate Intelligence Committee which won bipartisan support in the 
Intelligence Committee addressing the rights of Americans who travel 
overseas. I offered it with the distinguished Senator from Wisconsin, 
Mr. Feingold, and the distinguished Senator from Rhode Island, Mr. 
Whitehouse. It was approved when the Intelligence Committee voted on 
that matter on a bipartisan basis.
  Most of our citizens are probably not aware that the original Foreign 
Intelligence Surveillance Act only provided protections for Americans 
inside the United States and that it does not cover Americans who 
travel overseas. So if the Government wants to deliberately tap the 
phone calls of a businesswoman, for example in Roanoke, VA, or an armed 
services member in Pendleton, OR, the Government has to go to a judge, 
present evidence, and get a FISA warrant. But if that businesswoman or 
that serviceman is sent overseas, the Attorney General can personally 
approve the surveillance by making his own unilateral determination of 
probable cause. In my view, this formulation makes no sense at all. In 
the digital age, the rights and freedoms of individual Americans should 
not be dependent on physical geography. That is why I offered the 
amendment in the Intelligence Committee that would make it clear that 
Americans have the same rights when they travel overseas as they do 
inside the United States.

  Now, some have raised concerns that my amendment may have unintended 
consequences. I certainly don't want to see that, and so I have worked 
with Members of this body, particularly Senators Rockefeller and Bond, 
to address those concerns. We have made it clear that we are open to 
technical changes in the proposal so that there will not be the 
prospect of any unintended consequences, while at the same time 
protecting the rights of our citizens who travel overseas. Our staffs 
have been working for many weeks on a potential managers' amendment 
which would preserve the original intent of the provision, which is 
very straightforward, and that is to give Americans overseas the same 
legal protections they have in the United States to the maximum extent 
possible and to the maximum extent consistent with national security.
  We have made progress, Mr. President, on this issue, but we are not 
quite there yet. I have gotten varying reports as to what may 
constitute a managers' package with respect to this legislation, but I 
consider the matter of the travel rights of Americans so fundamental in 
the digital age, it would be my intent to object to any unanimous 
consent agreement that waters down these travel rights of law-abiding 
Americans during these crucial days.

[[Page S15742]]

  I continue to remain hopeful that, working closely with the 
distinguished chairman of our full committee, Senator Rockefeller, and 
the vice chairman, Senator Bond, who is not on the floor, we can reach 
an agreement. All sides are working in good faith, but without the 
proper language on this matter, which I do think is once again 
fundamental to striking that balance between fighting terrorism 
aggressively and protecting individual liberty, without this amendment 
I would have to object to any unanimous consent agreement in a 
managers' package which didn't address the amendment that won 
bipartisan support in the committee. I hope it will not come to that, 
and I want to make it clear again to the chairman of the full 
committee, Senator Rockefeller, and to the vice chairman that I intend 
to work very closely with them in the upcoming hours to see if we can 
work this out so I will not have to object to the managers' amendment.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Republican leader.

                 Burma Democracy Promotion Act of 2007

  Mr. McCONNELL. Mr. President, later today we hope to clear the Burma 
Democracy Promotion Act of 2007. This legislation, which ratchets up 
our already tight sanctions against the Burmese junta, has bipartisan 
support in the House and Senate and comes at a critical time for the 
suffering people of Burma.
  I am pleased to be joined by Senator Biden, the chairman of the 
Foreign Relations Committee, on this legislation, who has been an ally 
of mine on other sanctions legislation, and by Senator Feinstein, as 
always in the forefront of any issue related to Burma. The Burmese 
people have no greater friend than Senator Feinstein. Sixteen other 
cosponsors have offered their support to this important and timely 
  The Senate bill would take a number of steps. It would first put in 
place new financial sanctions and an extended visa ban on senior junta 
officials. It would close existing loopholes that allow indirect 
importation of Burmese gems and timber, and it urges an international 
arms embargo on Burma, which faces no external military threats.
  This legislation would also establish a special representative and 
policy coordinator for Burma, appointed by the President and subject to 
Senate confirmation. The United States is fortunate to already have a 
stellar charge d'affaires in Rangoon. However, her focus is, as it 
should be, on bilateral relations with Burma. The new envoy would help 
to ensure that U.S. diplomacy is multilateral in scope, sustained, and 
fully coordinated with other international efforts.
  Now, the House passed its version of enhanced Burma sanctions last 
week. I am hopeful the two bodies will soon reconcile these bills so we 
can get this legislation signed into law.
  Mr. President, the entire world was inspired by the brave Burmese 
protesters who peacefully protested for justice earlier this year, and 
we were appalled at the violent Government reprisals that followed. We 
mourn the dead, and we pray for those who are still missing.
  Since those sad days, a fickle news cycle has moved on to other 
matters. But with this legislation, we show that the U.S. Congress has 
not forgotten the people of Burma, and neither has the administration, 
as witnessed by the strong leadership of the First Lady on this issue. 
It is my hope the U.N. Security Council has an equally long memory and 
will soon take up and pass an arms embargo against the Burmese regime. 
In the end, multilateral sanctions are the most effective means of 
pressuring this regime to change its misbegotten course. With this 
legislation, we aim to lead by example. Our hope is that others will 
soon follow.
  Mr. President, I yield the floor.
  Mr. WYDEN. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 39 minutes remaining under 
  Mr. WYDEN. Mr. President, I choose to yield the remainder of my time 
to the distinguished Senator from Connecticut.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I thank my colleague from Oregon. I thank 
him for his eloquent statement and for his admonition as well about the 
importance of these documents and how relevant they are to the 
discussion--and the inability of most of us here to have any idea what 
is in them. I admire the Senator from Oregon for insisting on his right 
to see them and therefore sharing with us at least in general terms the 
substance of those documents and their relevance to the request for 
seeking retroactive immunity, going back 5 years. I think his comments 
should carry great weight with our colleagues on both sides of the 
aisle. As he has pointed out so many times, these issues should never 
be associated with partisan debate.
  The idea of striking that balance between security and protecting the 
rights of individuals was exactly the motivation for the original FISA 
legislation almost 30 years ago. As the Senator from Massachusetts, Mr. 
Kennedy, pointed out, there have been 30 modifications to that 
legislation over 30 years in order to make it relevant. As the world 
changed and technology improved, it was important to modify that 
legislation so we would have the capacity to minimize the threats 
against our Nation.
  Earlier today, Mr. President, I began some comments and interrupted 
them when I allowed the Senator from California, Mrs. Feinstein, to 
make her remarks. I want to pick up where I left off.
  Mr. President, both versions of the bill--that is, the version 
prepared by my friend from West Virginia, Senator Rockefeller, and 
Senator Bond, and the version prepared by the Senate Judiciary 
Committee--authorize the President of the United States to conduct 
overseas surveillance without individual warrants. I think that needs 
to be repeated. You can conduct overseas surveillance without 
individual warrants. That is not the subject of the debate here at all. 
Both of these bills allow the President to submit his procedures for 
this new kind of surveillance for the review of the FISA Court--after 
those procedures are already in place. But only one version of the bill 
balances these significant new procedural powers with real oversight 
from the Congress and the courts, and that is the Judiciary Committee 
  I say respectfully that the version by the Intelligence Committee, I 
am afraid, is a bill of token oversight and weak protections for 
innocent Americans, and the Senate ought to vote it down. Specifically, 
the bill fails on five counts.
  First, its safeguards against the targeting of Americans--its 
minimization procedures--are insufficient. It significantly expands the 
President's surveillance power, while leaving checks on that power 
unchanged. This version of the bill provides practically no deterrent 
against excessive domestic spying--no consequences if the court finds 
the President's minimization procedures, in fact, lacking. If his 
targeting procedures are found lacking, the President hardly has to 
worry; he can keep and share all the information he obtained, and he 
can continue his actions all the way through the judicial review 
process, which could take, of course, months.
  It should be clear to all of us that real oversight includes the 
power to enforce. The Intelligence Committee's version of this bill 
offers us the semblance of judicial oversight but not the real thing. 
Imagine a judge convicting a bank robber and then letting him keep the 
loot as long as he promises to never, ever, ever do it again. That 
might as well be the bill before us. In fact, the bill before us would 
allow the President to immediately target anybody on a whim. 
Wiretapping could start even before the court has approved it. In this 
bill, oversight is exactly where the President would like it--after the 
  Don't get me wrong: when a President needs immediate emergency 
authority to begin wiretapping, he should have it. If you need it 
immediately, you ought to get it immediately. I think all of us find 
that obvious. The question is what to do in those cases that aren't 
emergencies. In those cases, I believe there is no reason the court 
shouldn't give advice and approval beforehand. President Bush 
disagrees. He believes in a permanent emergency.
  Second, the Intelligence Committee bill fails to protect American 

[[Page S15743]]

from reverse targeting--the practice of targeting a foreign person on 
false pretenses, without a warrant, in order to collect the information 
of the American on the other end of the conversation.
  Admiral McConnell said:

       Reverse targeting is not legal. It would be a breach of the 
     Fourth Amendment.

  He is absolutely correct, of course, which is why it is so vital that 
this bill contain strong, enforceable protection against it. This bill 
doesn't have one.
  Thirdly, this bill, while purporting to end warrantless wiretapping 
of Americans, might actually allow it to continue unabated. That is 
because it lacks strong exclusivity language--language stating that 
FISA is the only controlling law for foreign intelligence surveillance. 
With that provision in place, surveillance has a place inside the rule 
of law. Without it, there is no such guarantee.
  Who knows what specious rationale of this or any other future 
administration might cook up for lawless spying? The last time, as we 
have seen, Alberto Gonzales laughably tried to find grounds for 
warrantless wiretapping on the authorization of force against 
Afghanistan. Those are the legal lengths to which the administration 
has proved it is willing and able to go.
  What next? Without strong exclusivity language, that question will 
remain hanging over all our heads.
  Fourth, unlike the Judiciary version of the bill, the Intelligence 
version lacks strong protections against bulk collection--the 
warrantless collection of all overseas communications, a massive 
dragnet with the potential to sweep up thousands or millions of 
Americans without cause. Today, bulk collection is infeasible, but 
Admiral McConnell said:

       It would be authorized, if it were physically possible to 
     do so.

  Before any administration has that chance, we should clearly and 
expressly prohibit such an unprecedented violation of privacy. This 
bill fails to do that.
  Fifth and finally, this bill stays in effect until 2013, through the 
next Presidential term and into the next one. Compare that to the 4-
year sunset in the Judiciary version. I believe that, when making such 
dramatic changes to the Nation's terrorist surveillance regime, we 
should err on the side of caution. Once the new regime has been tested, 
once its effectiveness against terrorism and its compromises of privacy 
have been weighed, we deserve to have this debate again. It will, I 
predict, be a much less speculative and more informed debate. The 
Judiciary bill is wise not to put it off any longer than necessary.
  I oppose this legislation on these five counts for the same reason I 
oppose retroactive immunity--because when the President's power is 
strongest, the rule of law should be the strongest, as well. The 
Intelligence Committee's bill means more power and less law. It reduces 
court oversight nearly to the point of symbolism. It would allow the 
targeting of Americans on false pretenses. It opens us to new, twisted 
rationale for wireless wiretapping, the very thing it seeks to prevent. 
It could allow bulk collection as soon as the administration has the 
wherewithal to build such an enormous dragnet. And it sets all of these 
deeply flawed provisions in stone for the next 6 years.

  In sum, this is entirely too trusting a piece of legislation. With 
its immunity, with its wiretapping provisions, it answers George 
Bush's, ``Trust me,'' with an all too eager ``Yes!''
  I leave my colleagues with a simple question: Has that trust been 
  I don't know how many of my colleagues have ever seen the wonderful 
movie ``A Man For All Seasons,'' the story of St. Thomas More. There is 
a wonderful scene in that movie in which More is asked whether he'd be 
willing to cut down every law in England to get his hands on the devil.
  And More replies, absolutely not. ``When the last law was down, and 
the Devil turned 'round on you, where you hide, the laws all being 
flat? This country is planted thick with laws, from coast to coast--
Man's laws, not God's! And if you cut them down . . . do you really 
think you could stand upright in the winds that would blow then?''
  Maybe we could find excuses for every one of this president's abuses 
of power: ``It was just a little overreach.'' ``You just have to give a 
  But if you do that day after day, week after week, month after month, 
year after year, all of a sudden you look up to find that all of the 
laws have been cut down, that there is nothing to protect us from the 
winds. Before that day comes, Mr. President, we must draw a line. I am 
here today to draw it.
  So I will do everything I can to see to it that this bill does not go 
forward. Unless retroactive immunity is struck, I will resist this bill 
with all the tools available to me as one Member of this body. We can 
do better than this.
  This goes beyond ideology--or at least it should. We all care about 
the security of our country; the FISA law protects that security, and 
it protects our privacy at the same time, from those who would 
  We have struggled to strike that balance throughout our history. 
Today, it is more important than ever that we stand firm in our 
determination not to give up or erode these very rights that are 
critical for our security.
  The idea that we can become more secure by giving up rights is 
fundamentally flawed. It needs to be addressed on every possible 
occasion. It is a dangerous notion. It is a totally false dichotomy. It 
needs to be defeated as an idea.
  When we insist upon our rights, we only grow stronger. We know it can 
be done. For 30 years now, this law has worked well. It needs to be 
modernized, clearly, to protect us against those who also have access 
to modern techniques to do us great harm and injury. But this is not a 
battle between those who want to keep us secure and those who want to 
keep our rights. It is a battle about whether we understand that we are 
more secure precisely when we protect these rights.
  A year ago, when the Military Commissions Act came up for a vote, I 
felt very strongly about it. I spoke against it. I voted against it. 
The idea of walking away from habeas corpus, the idea of allowing 
torture, the idea of walking away from the Geneva Conventions--I 
regretted deeply then that I didn't do what I am prepared to do today, 
and that is to vigorously fight against that legislation.
  I think most of us today recognize what a great mistake that was, to 
give away those rights. I think most of us recognize how it hurt our 
country. I am determined not to let that happen again. As long as it 
takes, I will stand here and insist that we need to strip immunity out 
of this bill.
  I am prepared to listen to ideas about putting caps on liability, to 
prevent the telecom companies from paying outrageous fees. But if we 
grant this immunity, we will never know whether their actions were 
right or wrong.
  Then why not your medical records the next time? Why not your 
financial records? What is the difference? If I can reach in and listen 
to your phone conversation, why not grant immunity to someone who would 
like to know your medical records or financial records? Why not grant 
immunity to companies that would turn over those documents? Where do 
you stop? Where do you put your foot down and say, ``That is not 
  Today it is the phone records. Today it is the phone conversations. 
It is e-mail traffic--without a warrant. So why not the next step? If 
we don't put our foot down and stand up, we will be faced with the 
argument that we have already granted it. We established the precedent; 
75 Senators, Democrats and Republicans, agreed we ought to provide that 
immunity. That argument will be heard, as it has been heard on the 
Military Commissions Act.
  I respect immensely the work of the people who spent a lot of time on 
these issues. But this is a critical moment. They don't happen every 
day; but this is an important one. This goes right to the heart of who 
we are. This is not about selling our souls. It is about giving them 
away, if we don't stand up for these rights.
  So I look forward to continuing debate and discussion on this vital 
  I withhold the remainder of my time.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, I have listened very closely to the remarks 
of my dear friend from Connecticut. I have a lot of respect for him. 
However, it was an easy thing for 13 members of the Senate Select 
Committee on Intelligence to vote to grant retroactive immunity to 
companies that patriotically

[[Page S15744]]

adhered to legal letters to provide the means whereby we might be able 
to protect citizens in this country and perhaps all over the world.
  Because of that work, we have been able to protect this country in 
ways that most people will never know because this area is one of the 
areas that we don't talk about. It is, this whole area, highly 
classified. We can talk about the law here.
  Close inspection of the lawsuits against the telecoms reveals dubious 
claims. The plaintiffs have confused speculation for established facts. 
This is dangerous and the continuation of these lawsuits could lead to 
serious consequences for our national security.
  It is very simple--Congress should not condone oversight through 
  A quick scan of what plaintiffs seek in many of these cases should 
send a chill down our spine. They are not, as many are suggesting, 
simply saying: ``You went along with the President's Terrorist 
Surveillance Program, now give us money.'' Rather, the lawsuits seize 
on the President's brief comments about the existence of a limited 
program to go on a fishing expedition of NSA activities. But this is 
really worse than a fishing expedition; this is draining the Loch Ness 
to find a monster. Sometimes what you are looking for just doesn't 
  The lawsuits represent irrational fears of Government conspiracy, and 
seek to expose classified information, regardless of who is harmed in 
the process.
  We all realize that the sources and methods our intelligence 
community utilizes to conduct surveillance are highly classified. The 
risks that classified details could be revealed through these lawsuits 
are severe. Remember, the very point of these lawsuits is to prove 
plaintiffs' claims by disclosing classified information.
  Our enemies have tough decisions to make regarding how they 
communicate. They can't stay silent forever, and they have to weigh the 
need to communicate against the chance that their communications are 
intercepted. Given this, they are carefully watching us and reading 
every proceeding to see how our government collects information. If 
they think they see a weakness in our collection capabilities, they 
will certainly try and take advantage of it.
  Given the legitimate problems that these lawsuits pose, the Senate 
Intelligence Committee adopted a bill which will alleviate them. The 
committee worked in a bipartisan manner to craft an immunity provision 
that met the needs of Congress, the Government, and the American 
  In an overwhelmingly bipartisan tally, the committee voted to include 
retroactive immunity for service providers that were alleged to have 
cooperated with the intelligence community following 9/11. Senators 
from both sides of the aisle, after careful consideration, came to this 
conclusion. Make no mistake, this was the right conclusion.
  It was the right conclusion for the Intelligence Committee, and it 
should be the right conclusion for the full Senate today.
  Our Senate Intelligence Committee has already noted that the 
intelligence community cannot obtain the intelligence it needs without 
the assistance of these companies. It goes without saying, companies in 
the future will certainly be less willing to assist the Government if 
they face the threat of extremely costly lawsuits each time they are 
alleged to have provided assistance.
  The companies will shy away. Their attorneys will scour future 
Government requests, feverishly looking for any technicality to avoid 
compliance. And even if these private attorneys approve future 
participation, the company will have to listen to cautious 
stockholders, whose financial interests will undoubtedly make them 
adamantly opposed to situations which could lead to any financial risk 
or exposure.
  But let's be clear: The telecoms are not threatening anyone. They are 
not saying ``do this, or we will never help you again.'' But, they 
don't need to say these things for us to understand the obvious. If the 
financial foundations of these companies crumble due to frivolous 
litigation, they will rebuild it to withstand future Government 
requests that may again lead to their collapse.
  Now some have asked a valid question: If the companies did not break 
the law, why do they need immunity? Quite simply, the Government's 
assertion of the state secrets privilege prevents these companies from 
defending themselves.
  This assertion by the Government is absolutely essential, as the 
possible disclosure of classified materials from ongoing court 
proceedings is a grave threat to national security. Simply put, you 
don't tell your enemies how you track them. This is why the NSA and 
other Government agencies won't say what they do, how they do it, or 
who they watch. Nor should they! To confirm or deny any of these 
activities, which are at the heart of the civil lawsuits, would harm 
national security. We should not discuss what our capabilities are.
  Given the necessity for the state secrets privilege, the drawback is 
that the companies being sued are forbidden from making their case. In 
fact, the companies cannot even confirm or deny any involvement in the 
program whatsoever. They have no ability to defend themselves, and that 
is after patriotically doing what has to be done to protect each and 
every citizen in this country.
  Ordinarily, these companies would be able to address allegations and 
make their case. However, the classified nature of the topic means the 
companies are not free to do so. They cannot even have discussions with 
shareholders or business partners.
  But we need to remember, lawful silence does not equate to guilt. 
There is no guilt here. These are companies that cooperated with the 
Federal Government in helping us track terrorists to protect our 
  The identities of any company that assisted the Government following 
the attacks of September 11 are highly classified. While there have 
been numerous allegations, they are nothing more than accusations. If 
the identities of these companies are revealed and officially confirmed 
through litigation, they will face irreversible harm: harm in their 
business relations with foreign governments and companies and possible 
harm to their employees both here and abroad, who are truly soft 
targets for terrorist attacks.
  My admiration and respect for the companies that did their part to 
defend Americans is well known. As I have said in the past, any company 
that assisted us following the attacks of 9/11 deserves a round of 
applause and a helping hand, not a slap in the face and a kick to the 
  When companies are asked to assist the intelligence community based 
on a program authorized by the President and based on assurances from 
the highest levels of Government that the program has been determined 
to be lawful and necessary, they should be able to rely on those 
representations. For those who argue we need a compromise, let me be 
clear: We already have a compromise. The Government certainly wanted 
more than what is represented in this Intelligence Committee bill. And 
they did not get all they wanted. I think they should have. The 
chairman of the Senate Select Committee on Intelligence stated the 
following in the Intelligence Committee report:

       This immunity provision is not the broad and vague immunity 
     sought by the administration. The committee did not endorse 
     the immunity provision lightly. It was the informed judgment 
     of the Committee after months in which we carefully reviewed 
     the facts in this matter. The Committee reached the 
     conclusion that the immunity remedy was appropriate in this 
     case after holding numerous hearings and briefings on the 
     subject and conducting a thorough examination of the letters 
     sent by the U.S. Government to the telecommunications 

  That is after numerous top-secret Intelligence Committee hearings. 
The immunity provisions in this bill are limited in scope. Not everyone 
will be happy with them, and that is the whole point. I, for one, 
wanted to see more protections for companies and Government officials 
in this bill. But I am willing to accept a compromise. My colleagues 
should be willing to do the same.
  We are not all getting what we want. We are getting what the public 
needs for its protection. I will continue to oppose any efforts to 
weaken the Rockefeller-Bond immunity provision.
  For nearly 2 months, Congress and the public have had the ability to 
review the immunity provisions in this

[[Page S15745]]

bill. Today we are hearing a great deal about how the Intelligence and 
Judiciary Committees handled the immunity provision. So let's look at 
how they voted.
  The Intelligence Committee rejected an amendment to strip immunity 
from the bill, 12 to 3, and the committee voted to favorably report the 
bill, including the immunity provision, 13 to 2.
  In addition, the Judiciary Committee rejected an amendment to strike 
the immunity provision from the bill, 12 to 7. What do all those votes 
have in common? They supported immunity and they were bipartisan. How 
many times are we going to hear about alternatives to S. 2248 which 
simply do not address the problem? How many trial balloons are going to 
be released? The first alternative we heard was the Government should 
indemnify the companies following possible adverse rulings in the 
  There are myriad reasons why this option was lacking. The idea of 
indemnification apparently was not well received, as we now hear very 
little discussion of it. So let us call indemnification the first trial 
balloon to pop.
  The next alternative we heard was the Government should be 
substituted in place of the companies being sued. But this alternative 
was full of problems, given that there is no way to remove the 
companies from the litigation. Remember, it is their very conduct that 
is in question. In order to try to prove their claims, plaintiffs will 
continue to seek discovery, including: document requests, depositions, 
interrogatories, technical data, trade secrets, proprietary company 
information and confidential, secret and highly classified information 
and the list goes on and on.
  Obviously, the companies would still face many burdens of litigation, 
even though they are not parties because the Government is substituted 
for them.
  This idea has also been skeptically viewed and the Judiciary 
Committee on Thursday rejected an idea in a resounding 13 to 5 
bipartisan vote. So let's call Government substitution the second trial 
balloon to pop.
  Now we are hearing another alternative which would dramatically 
expand the jurisdiction of the Foreign Intelligence Surveillance Court, 
and utilizes ambiguous terms such as ``objectively reasonable belief.''
  The FISA Court was not created to review classified programs or the 
conduct of private companies. This new proposed alternative would 
completely revise the mission of the FISA Court, putting them in a role 
they have not had in their nearly 30 years of existence. This judicial 
expansion should be the third trial balloon to pop.
  How long are we going to entertain inadequate alternatives and 
appease fringe political groups? Is it not time that we embrace the 
bipartisan compromise that puts the interest and safety of Americans 
over political interests? How long will it take? Are we willing to take 
that stand?
  Let me also take a few minutes to unequivocally state my opposition 
to the Judiciary substitute. One of the basic requirements of any FISA 
modernization proposal is we should not have any provisions which could 
be interpreted as requiring warrants to target foreign terrorists 
  Quite simply, foreign terrorists living overseas should never receive 
protections provided by the fourth amendment to the Constitution. The 
Constitution never contemplated that. One of the controversial 
provisions added in the Judiciary Committee relates to ``reverse 
targeting.'' Reverse targeting is the practice of targeting a foreign 
person when the real intention is to target a U.S. person, thus 
circumventing the need to get a warrant for the U.S. person.
  Reverse targeting has always been unlawful, in order to protect the 
communications of U.S. persons. Now, contrary to what most people 
believe, the legal definition of ``U.S. person,'' is not limited to 
U.S. citizens. See this chart: What is a U.S. person?

       An ``alien lawfully admitted for permanent residence,'' a 
     ``corporation which is incorporated in the United States.''

  Now, that is according to 50 U.S.C. 1801. The U.S. person definition 
includes aliens lawfully admitted, legal residence, legal permanent 
residence. A U.S. person is also defined as a business incorporated 
within the United States.
  From an intelligence-gathering standpoint, reverse targeting makes no 
sense. From an efficiency standpoint, if the Government was interested 
in targeting an American, it would apply for a warrant to listen to all 
the American's conversations, not just his conversations with a 
terrorist overseas.
  But let's not let logic get in the way of a good conspiracy theory. 
Even though reverse targeting is already considered unlawful, a 
provision is included in the Intelligence bill which makes it explicit. 
This provision is clearly written and universally supported. However, 
the Judiciary Committee passed an amendment by a 10-to-9 partisan 
party-line vote which altered the clear language of that provision.
  Now, where before the provision said you cannot target a foreign 
person if the purpose is to target a U.S. person, the new language adds 
the ambiguous term ``significant purpose.''
  Now, words have meaning and in this context have very serious 
meaning. If this amendment becomes law, an analyst would now have to 
ask himself this question when targeting a terrorist overseas: Is a 
``significant purpose'' of why I am targeting this foreign terrorist 
overseas the fact that the terrorist may call an airline in America to 
make flight reservations or a terrorist with a green card living in the 
  If the answer is yes, then the language in this amendment would 
require the analyst to get a warrant to listen to that foreign 
terrorist overseas.
  Now, if there is one thing we can all agree on, it is we should 
never, ever need a warrant to listen to a foreign terrorist overseas. 
The ambiguous and unnecessary text of this amendment should not be left 
up to judicial interpretation. Enactment of this amendment could lead 
to our analysts seeking warrants when targeting any foreign terrorists, 
since the analyst may be afraid he or she is otherwise breaking our new 
  Now, remember, the Intelligence Committee spent months working on a 
bipartisan compromise bill. This amendment I have been talking about 
was not in the Intelligence bill. So people should assume the Judiciary 
Committee spent a great deal of time debating this amendment, right? 
Wrong. The Judiciary Committee spent 7 minutes debating this amendment 
before it was adopted, again, on a 10-to-9 partisan vote, party-line 
  Let me repeat that. Seven minutes on something that is this 
important. The Intelligence Committee spent months coming up with a 
compromise that the leaders of the intelligence community say is the 
minimum--minimum--they need to have.
  We are enacting national security legislation, and it is our 
responsibility to ensure this bill does not lead to unintended 
consequences which provide protections to terrorists. This provision is 
one example of an amendment adopted by the Judiciary Committee which 
could and probably would, if it were enacted, harm national security. 
It also serves as yet another reason why we should not support the 
Judiciary substitute or any aspect of it.
  I am a member of both committees. In fact, I believe I am probably 
the longest serving member on the Intelligence Committee. The Judiciary 
bill includes provisions that could weaken national security. Why are 
we thinking of handcuffing ourselves? We should not blindfold our 
intelligence agencies, spin them around to disorient them, and then 
send them out to find terrorists. We are not playing pin the tail on 
the donkey. We are legislating on national security, and the stakes are 
too high to allow legal loopholes in the Judiciary substitute to go 
  Now, I am not alone in this view, as the Executive Office of the 
President today released a statement of administration policy which 

       If the Judiciary Committee substitute amendment is part of 
     the bill that is presented to the President, the Director of 
     National Intelligence, the Attorney General of the United 
     States, and the President's other senior advisers will 
     recommend that he veto this bill.

  Mr. President, I ask unanimous consent that letter be printed in the 
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

[[Page S15746]]

                   Statement of Administration Policy

S. 2248--To amend the Foreign Intelligence Surveillance Act of 1978, to 
   modernize and streamline the provisions of that act and for other 

       Protection of the American people and American interests at 
     home and abroad requires access to timely, accurate, and 
     insightful intelligence on the capabilities, intentions, and 
     activities of foreign powers, including terrorists. The 
     Protect America Act of 2007 (PAA), which amended the Foreign 
     Intelligence Surveillance Act of 1978 (FISA) this past 
     August, has greatly improved the Intelligence Community's 
     ability to protect the Nation from terrorist attacks and 
     other national security threats. The PAA has allowed us to 
     close intelligence gaps, and it has enabled our intelligence 
     professionals to collect foreign intelligence information 
     from targets overseas more efficiently and effectively. The 
     Intelligence Community has implemented the PAA under a robust 
     oversight regime that has protected the civil liberties and 
     privacy rights of Americans. Unfortunately, the benefits 
     conferred by the PAA are only temporary because the act 
     sunsets on February 1, 2008.
       The Director of National Intelligence has frequently 
     discussed what the Intelligence Community needs in permanent 
     FISA legislation, including two key principles. First, 
     judicial authorization should not be required to gather 
     foreign intelligence from targets located in foreign 
     countries. Second, the law must provide liability protection 
     for the private sector.
       The Senate is considering two bills to extend the core 
     authorities provided by the PAA and modernize FISA. In 
     October, the Senate Select Committee on Intelligence (SSCI) 
     passed a consensus, bipartisan bill (S. 2248) that would 
     establish a sound foundation for our Intelligence Community's 
     efforts to target terrorists and other foreign intelligence 
     targets located overseas. Although the bill is not perfect 
     and its flaws must be addressed, it nevertheless represents a 
     bipartisan compromise that will ensure that the Intelligence 
     Community retains the authorities it needs to protect the 
     Nation. Indeed, the SSCI bill is an improvement over the PAA 
     in one essential way-it would provide retroactive liability 
     protection to electronic communication service providers that 
     are alleged to have assisted the Government with intelligence 
     activities in the aftermath of September 11th.
       In sharp contrast to the SSCI's bipartisan approach to 
     modernizing FISA, the Senate Judiciary Committee reported an 
     amendment to the SSCI bill that would have devastating 
     consequences to the Intelligence Community's ability to 
     detect and prevent terrorist attacks and to protect the 
     Nation from other national security threats. The Judiciary 
     Committee proposal would degrade our foreign intelligence 
     collection capabilities. The Judiciary Committee's amendment 
     would impose unacceptable and potentially crippling burdens 
     on the collection of foreign intelligence information by 
     expanding FISA to restrict facets of foreign intelligence 
     collection never intended to be covered under the statute. 
     Furthermore, the Judiciary Committee amendment altogether 
     fails to address the critical issue of liability 
     protection. Accordingly, if the Judiciary Committee's 
     substitute amendment is part of a bill that is presented 
     to the President the Director of National Intelligence, 
     the Attorney General, and the President's other senior 
     advisors will recommend that he veto the bill.
     The Senate Select Committee on Intelligence bill
       Building on the authorities and oversight protections 
     included in the PAA, the SSCI drafted S. 2248 to provide a 
     sound legal framework for essential foreign intelligence 
     collection in a manner consistent with the Fourth Amendment. 
     As in the PAA, S. 2248 permits the targeting of foreign 
     terrorists and other foreign intelligence targets outside the 
     United States based upon the approval of the Director of 
     National Intelligence and the Attorney General.
       The SSCI drafted its bill in extensive coordination with 
     Intelligence Community and national security professionals--
     those who are most familiar with the needs of the 
     Intelligence Community and the complexities of our 
     intelligence laws. The SSCI also heard testimony from privacy 
     experts in order to craft a balanced approach. As a result, 
     the SSCI bill recognizes the importance of clarity in laws 
     governing intelligence operations. Although the 
     Administration would strongly prefer that the provisions of 
     the PAA be made permanent without modification, the 
     Administration engaged in extensive consultation in the 
     interest of achieving permanent legislation in a bipartisan 
       The SSCI bill is not perfect, however. Indeed, certain 
     provisions represent a major modification of the PAA and will 
     create additional burdens for the Intelligence Community, 
     including by dramatically expanding the role of the FISA 
     Court in reviewing foreign intelligence operations targeted 
     at persons located outside the United States, a role never 
     envisioned when Congress created the FISA court.
       In particular, the SSCI bill contains two provisions that 
     must be modified in order to avoid significant negative 
     impacts on intelligence operations. Both of these provisions 
     are also included in the Judiciary Committee substitute, 
     detailed further below.
       First, as part of the debate over FISA modernization, 
     concerns have been raised regarding acquiring information 
     from U.S. persons outside the United States. Accordingly, the 
     SSCI bill provides for FISA Court approval of surveillance of 
     U.S. persons abroad. The Administration opposes this 
     provision. Under executive orders in place since before the 
     enactment of FISA in 1978, Attorney General approval is 
     required before foreign intelligence surveillance and 
     searches may be conducted against a U.S. person abroad under 
     circumstances in which a person has a reasonable expectation 
     of privacy. More specifically, section 2.5 of Executive Order 
     12333 requires that the Attorney General find probable cause 
     that the U.S. person target is a foreign power or an agent of 
     a foreign power. S. 2248 dramatically increases the role of 
     the FISA Court by requiring court approval of this probable 
     cause determination before an intelligence operation may be 
     conducted beyond the borders of the United States. This 
     provision imposes burdens on foreign intelligence collection 
     abroad that frequently do not exist even with respect to 
     searches and surveillance abroad for law enforcement 
     purposes. Were the Administration to consider accepting FISA 
     Court approval for foreign intelligence searches and 
     surveillance of U.S. persons overseas, technical corrections 
     would be necessary. The Administration appreciates the 
     efforts that have been made by Congress to address these 
     issues, but notes that while it may be willing to accept 
     that the FISA Court, rather than the Attorney General, 
     must make the required findings, limitations on the scope 
     of the collection currently allowed are unacceptable.
       Second, the Senate Intelligence Committee bill contains a 
     requirement that intelligence analysts count ``the number of 
     persons located in the United States whose communications 
     were reviewed.'' This provision would likely be impossible to 
     implement. It places potentially insurmountable burdens on 
     intelligence professionals without meaningfully protecting 
     the privacy of Americans, and takes scarce analytic resources 
     away from protecting our country. The Intelligence Community 
     has provided Congress with a detailed classified explanation 
     of this problem.
       Although the Administration believes that the PAA achieved 
     foreign intelligence objectives with reasonable and robust 
     oversight protections, S. 2248, as drafted by the Senate 
     Intelligence Committee, provides a workable alternative and 
     improves on the PAA in one critical respect by providing 
     retroactive liability protection. The Senate Intelligence 
     Committee bill would achieve an effective legislative result 
     by returning FISA to its appropriate focus on the protection 
     of privacy interests of persons inside the United States, 
     while retaining our improved capability under PAA to collect 
     timely foreign intelligence information needed to protect the 
     The Senate Judiciary Committee proposal
       The Senate Judiciary Committee amendment contains a number 
     of provisions that would have a devastating impact on our 
     foreign intelligence operations.
       Among the provisions of greatest concern are:
       An Overbroad Exclusive Means Provision That Threatens 
     Worldwide Foreign Intelligence Operations. Consistent with 
     current law, the exclusive means provision in the SSCI's bill 
     addresses only ``electronic surveillance'' and ``the 
     interception of domestic wire, oral, and electronic 
     communications.'' But the exclusive means provision in the 
     Judiciary Committee substitute goes much further and would 
     dramatically expand the scope of activities covered by that 
     provision. The Judiciary Committee substitute makes FISA the 
     exclusive means for acquiring ``communications information'' 
     for foreign intelligence purposes. The term ``communications 
     information'' is not defined and potentially covers a vast 
     array of information--and effectively bars the acquisition of 
     much of this information that is currently authorized under 
     other statues such as the National Security Act of 1947, as 
     amended. It is unprecedented to require specific statutory 
     authorization for every activity undertaken worldwide by the 
     Intelligence Community. In addition, the exclusivity 
     provision in the Judiciary Committee substitute ignores 
     FISA's complexity and its interrelationship with other 
     federal laws and, as a result, could operate to preclude the 
     Intelligence Community from using current tools and 
     authorities, or preclude Congress from acting quickly to give 
     the Intelligence Community the tools it may need in the 
     aftermath of a terrorist attack in the United States or in 
     response to a grave threat to the national security. In 
     short, the Judiciary Committee's exclusive means provision 
     would radically reshape the intelligence collection framework 
     and is unacceptable.
       Limits on Foreign Intelligence Collection. The Judiciary 
     Committee substitute would require the Attorney General and 
     the Director of National Intelligence to certify for certain 
     acquisitions that they are ``limited to communications to 
     which at least one party is a specific individual target who 
     is reasonably believed to be located outside the United 
     States.'' This provision is unacceptable because it could 
     hamper U.S. intelligence operations that are currently 
     authorized to be conducted overseas and that could be 
     conducted more effectively from the United States without 
     harming U.S. privacy rights.
       Significant Purpose Requirement. The Judiciary Committee 
     substitute would require a FISA court order if a 
     ``significant purpose''

[[Page S15747]]

     of an acquisition targeting a person abroad is to acquire the 
     communications of a specific person reasonably believed to be 
     in the United States. If the concern driving this proposal is 
     so-called ``reverse targeting''--circumstances in which the 
     Government would conduct surveillance of a person overseas 
     when the Government's actual target is a person in the United 
     States with whom the person overseas is communicating--that 
     situation is already addressed in FISA today: If the person 
     in the United States is the target, a significant purpose of 
     the acquisition must be to collect foreign intelligence 
     information, and an order from the FISA court is required. 
     Indeed, the SSCI bill codifies this longstanding Executive 
     Branch interpretation of FISA. The Judiciary Committee 
     substitute would place an unnecessary and debilitating burden 
     on our Intelligence Community's ability to conduct 
     surveillance without enhancing the protection of the privacy 
     of Americans.
       Part of the value of the PAA, and any subsequent 
     legislation, is to enable the Intelligence Community to 
     collect expeditiously the communications of terrorists in 
     foreign countries who may contact an associate in the United 
     States. The Intelligence Community was heavily criticized by 
     numerous reviews after September 11, including by the 
     Congressional Joint Inquiry into September 11, regarding its 
     insufficient attention to detecting communications indicating 
     homeland attack plotting. To quote the Congressional Joint 
     Inquiry: ``The Joint Inquiry has learned that one of the 
     future hijackers communicated with a known terrorist facility 
     in the Middle East while he was living in the United States. 
     The Intelligence Community did not identify the domestic 
     origin of those communications prior to September 11, 2001 so 
     that additional FBI investigative efforts could be 
     coordinated. Despite this country's substantial advantages, 
     there was insufficient focus on what many would have thought 
     was among the most critically important kinds of terrorist-
     related communications, at least in terms of protecting the 
     Homeland.'' (S. Rept. No. 107-351, H. Rept. No. 107-792 at 
     36.) To be clear, a ``significant purpose'' of Intelligence 
     Community activities is to detect communications that may 
     provide warning of homeland attacks and that may include 
     communication between a terrorist overseas who places a call 
     to associates in the United States. A provision that bars the 
     Intelligence Community from collecting these communications 
     is unacceptable, as Congress has stated previously.
       Liability Protection. In contrast to the Senate 
     Intelligence Committee bill, the Senate Judiciary Committee 
     substitute would not protect electronic communication service 
     providers who are alleged to have assisted the Government 
     with communications intelligence activities in the aftermath 
     of September 11th from potentially debilitating lawsuits. 
     Providing liability protection to these companies is a just 
     result. In its Conference Report, the Senate Intelligence 
     Committee ``concluded that the providers . . . had a good 
     faith basis for responding to the requests for assistance 
     they received.'' The Committee further recognized that 
     ``the Intelligence Community cannot obtain the 
     intelligence it needs without assistance from these 
     companies.'' Companies in the future may be less willing 
     to assist the Government if they face the threat of 
     private lawsuits each time they are alleged to have 
     provided assistance. The Senate Intelligence Committee 
     concluded that: ``The possible reduction in intelligence 
     that might result from this delay is simply unacceptable 
     for the safety of our Nation.'' Allowing continued 
     litigation also risks the disclosure of highly classified 
     information regarding intelligence sources and methods. In 
     addition to providing an advantage to our adversaries by 
     revealing sources and methods during the course of 
     litigation, the potential disclosure of classified 
     information puts both the facilities and personnel of 
     electronic communication service providers and our 
     country's continued ability to protect our homeland at 
     risk. It is imperative that Congress provide liability 
     protection to those who cooperated with this country in 
     its hour of need.
       The ramifications of the Judiciary Committee's decision to 
     afford no relief to private parties that cooperated in good 
     faith with the U.S. Government in the immediate aftermath of 
     the attacks of September 11 could extend well beyond the 
     particular issues and activities that have been of primary 
     interest and concern to the Committee. The Intelligence 
     Community, as well as law enforcement and homeland security 
     agencies, continue to rely on the voluntary cooperation and 
     assistance of private parties. A decision by the Senate to 
     abandon those who may have provided assistance after 
     September 11 will invariably be noted by those who may 
     someday be called upon again to help the Nation.
       Mandates an Unnecessary Review of Historical Programs. The 
     Judiciary Committee substitute would require that inspectors 
     general of the Department of Justice and relevant 
     Intelligence Community agencies audit the Terrorist 
     Surveillance Program and ``any closely related intelligence 
     activities.'' If this ``audit'' is intended to look at 
     operational activities, there has been an ongoing oversight 
     activity by the Inspector General of the National Security 
     Agency (NSA) of operational activities and the Senate 
     Intelligence Committee has that material. Mandating a new and 
     undefined ``audit'' will divert significant operational 
     resources from current issues to redoing past audits. The 
     Administration understands, however, the ``audit'' may in 
     fact not be related to technical NSA operations. If it is the 
     case that in fact the Judiciary Committee is interested in 
     historical reviews of legal issues, the provision is 
     unnecessary. The Department of Justice Inspector General and 
     the Office of Professional Responsibility are already doing a 
     comprehensive review. In addition, the phrase ``closely 
     related intelligence activities'' would introduce substantial 
     ambiguities in the scope of this review. Finally, this 
     provision would require the inspectors general to acquire 
     ``all documents relevant to such programs'' and submit those 
     documents with its report to the congressional intelligence 
     and judiciary committees. The requirement to collect and 
     disseminate this wide range of highly classified documents--
     including all those ``relevant'' to activities ``closely 
     related'' to the Terrorist Surveillance Program--
     unnecessarily risks the disclosure of extremely sensitive 
     information about our intelligence activities, as does the 
     audit requirement itself. Taking such national security risks 
     for a backwards-looking purpose is unacceptable.
       Allows for Dangerous Intelligence Gaps During the Pendency 
     of an Appeal. The Judiciary Committee substitute would delete 
     an important provision in the SSCI bill that enables the 
     Intelligence Community to collect foreign intelligence from 
     overseas terrorists and other foreign intelligence targets 
     during an appeal. Without that provision, we could lose vital 
     intelligence necessary to protect the Nation because of the 
     views of one judge.
       Limits Dissemination of Foreign Intelligence Information. 
     The Judiciary Committee substitute would impose significant 
     new restrictions on the use of foreign intelligence 
     information, including information not concerning United 
     States persons, obtained or derived from acquisitions using 
     targeting procedures that the FISA Court later found to be 
     unsatisfactory for any reason. By requiring analysts to go 
     back to the databases and pull out certain information, as 
     well as to determine what other information is derived from 
     that information, this requirement would place a difficult, 
     and perhaps insurmountable, burden on the Intelligence 
     Community. Moreover, this provision would degrade privacy 
     protections, as it would require analysts to locate and 
     examine U.S. person information that would otherwise not be 
        Requires FISA Court Approval of All ``Targeting'' for 
     Foreign Intelligence Purposes. The Judiciary Committee 
     substitute potentially requires the FISA Court to approve 
     ``[a]ny targeting of persons reasonably believed to be 
     located outside the United States.'' Although we assume that 
     the Committee did not intend to require these procedures to 
     govern all ``targeting'' done of any person in the world for 
     any purpose--whether it is to gather human intelligence, 
     communications intelligence, or for other reasons--the text 
     as passed by the Committee contains no limitation. Such a 
     requirement would bring within the FISA Court a vast range of 
     overseas intelligence activities with little or no connection 
     to civil liberties and privacy rights of Americans.
       Imposes Court Review of Compliance with Minimization 
     Procedures. The Judiciary Committee substitute would require 
     the FISA Court to review and assess compliance with 
     minimization procedures. Together with provisions discussed 
     above, this would constitute a massive expansion of the 
     Court's role in overseeing the Intelligence Community's 
     implementation of foreign intelligence collection abroad.
       Amends FISA to Impose Burdensome Document Production 
     Requirements. The Judiciary Committee substitute would amend 
     FISA to require the Government to submit to oversight 
     committees a copy of any decision, order, or opinion issued 
     by the FISA Court or the FISA Court of Review that includes 
     significant construction or interpretation of any provision 
     of FISA, including any pleadings associated with those 
     documents, no later than 45 days after the document is 
     issued. The Judiciary Committee substitute also would require 
     the Government to retrieve historical documents of this 
     nature from the last 5 years. As drafted, this provision 
     could impose significant burdens on Department of Justice 
     staff assigned to support national security operational and 
     oversight missions.
       Includes an Even Shorter Sunset Provision Than That 
     Contained in the SSCI Bill. The Judiciary Committee 
     substitute and the SSCI bill share the same flaw of failing 
     to achieve permanent FISA reform. The Judiciary Committee 
     substitute worsens this flaw, however, by shortening the 
     sunset provision in the SSCI bill from 6 years to 4 years. 
     Any sunset provision, but particularly one as short as 
     contemplated in the Judiciary Committee substitute, would 
     adversely impact the Intelligence Community's ability to 
     conduct its mission efficiently and effectively by 
     introducing uncertainty and requiring re-training of all 
     intelligence professionals on new policies and procedures 
     implementing ever-changing authorities. Moreover, over the 
     past year, in the interest of providing an extensive 
     legislative record and allowing public discussion on this 
     issue, the Intelligence Community has discussed in open 
     settings extraordinary information dealing with intelligence 
     operations. To repeat this process in several years will 
     unnecessarily highlight our intelligence sources and methods 
     to our adversaries. There is now a lengthy factual record 
     on the need for this

[[Page S15748]]

     legislation, and it is time to provide the Intelligence 
     Community the permanent stability it needs.
       Fails to Provide Procedures for Implementing Existing 
     Statutory Defenses. The Judiciary Committee substitute fails 
     to include the important provisions in the SSCI bill that 
     would establish procedures for implementing existing 
     statutory defenses and that would preempt state 
     investigations of assistance allegedly provided by an 
     electronic communication service provider to an element of 
     the Intelligence Community. These provisions are important to 
     ensure that electronic communication service providers can 
     take full advantage of existing liability protection and to 
     protect highly classified information.
       Fails to Address Transition Procedures. Unlike the SSCI 
     bill, the Judiciary Committee bill contains no procedures 
     designed to ensure a smooth transition from the PAA to new 
     legislation, and for a potential transition resulting from an 
     expiration of the new legislation. This omission could result 
     in uncertainty regarding the continuing validity of 
     authorizations and directives under the Protect America Act 
     that are in effect on the date of enactment of this 
       Fails to Include a Severability Provision. The Judiciary 
     Committee substitute, unlike the SSCI bill, lacks a 
     severability provision. Such a provision should be included 
     in the bill.
       The Administration is prepared to continue to work with 
     Congress towards the passage of a permanent FISA 
     modernization bill that would strengthen the Nation's 
     intelligence capabilities while protecting the constitutional 
     rights of Americans, so that the President can sign such a 
     bill into law. The Senate Intelligence Committee bill 
     provides a solid foundation to meet the needs of our 
     Intelligence Community, but the Senate Judiciary Committee 
     bill represents a major step backwards from the PAA and would 
     compromise our Intelligence Community's ability to protect 
     the Nation. The Administration calls on Congress to forge 
     ahead and pass legislation that will protect our national 
     security, not weaken it in critical ways.

  Mr. HATCH. To my distinguished colleagues, I urge you to support the 
bipartisan Rockefeller-Bond compromise bill, one that has been superbly 
debated within the Intelligence Committee and has been carefully 
thought out.
  It provides protections to civil liberties and ensures that 
technological changes do not outpace our laws.
  I wanted to personally pay tribute to the distinguished Chairman of 
the Intelligence Committee and the distinguished Vice Chairman. They 
know what they accomplished in the Intelligence Committee was very 
important, and it should be followed by us on the floor.
  We cannot even begin to talk about some classified issues on this 
floor. We cannot even begin to talk about the dangers that will come 
from going beyond that bill that passed 13 to 2 in the Senate 
Intelligence Committee. I refuse to place our country at risk. I refuse 
to do anything that would make our country be at risk. I suggest to you 
that if we follow the Judiciary Committee bill, I think we would be 
doing exactly that.
  Mr. President, I reserve the remainder of my time, and I yield the 
  The PRESIDING OFFICER. The Senator from Maryland.
  Ms. MIKULSKI. Mr. President, I would like to speak on the bill and 
ask for approximately 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. MIKULSKI. Mr. President, we have a great country. Here we are, we 
are debating essentially what is going to be the Federal statute on 
electronic surveillance on the American people and on those who might 
have predatory intent toward us.
  We are doing it in an open, public session, with the world to watch 
on C-SPAN and talking about what are the right parameters to be able to 
protect the American people and yet protect the American Constitution.
  I think this shows the strength of our democracy and also calls upon 
us, as we deliberate, to come up with the widest and most prudent 
choice. For those who are following this debate, I would encourage them 
to turn to the report that has been put out by the committee, called 
the Foreign--note it said ``Foreign''--Foreign Intelligence 
Surveillance Act, the amendments of 2007 to the act of 1978.
  This report will go into detail about the deliberations of the 
committee, the amendments that were offered, the debate we had, and 
additional views offered by colleagues. I commend it to their attention 
because it goes through the background in more detail. We are talking 
about law, which can be quite technical, but we are also talking about 
the consequences of the law which are quite important.
  I sit on the Intelligence Committee. In that job, I have two 
responsibilities: No. 1, to protect the American people and, No. 2, to 
protect the Constitution of the United States. Implicit in that is the 
right of privacy and explicit in that is their civil liberties. The 
Intelligence Committee's job was to modernize FISA in a way that would 
do both--protect the American people against predatory attacks and yet 
at the same time protect their constitutional rights, explicit and 
implicit. What this legislation does is gives our intelligence 
community the tools it needs to prevent, disrupt, detect, and derail 
terrorist plots while at the same time safeguarding the rights of 
American citizens.
  The FISA law, the Foreign Intelligence Surveillance Act, was created 
in 1978. Since then, technology has changed with great speed and 
sophistication. I have at my home in Baltimore a rotary phone. I bought 
it in 1977, when I remodeled my home in Fells Point. My nieces and 
nephews are regaled with laughter when they say: Oh, Aunt Barb, how 
'70s. But when we look at the rotary phones and a blackberry was 
something you ate with cereal, look how far we have come since 1978. 
Technology has changed with speed and will continue to change with ever 
increasing sophistication. At the same time we are facing constantly 
emerging, radical, and treacherous threats that demand a new reform of 
the FISA law. Yet while technology and the nature of the threats have 
changed, we have to be very clear that our democratic values and the 
Constitution have not. It is an imperative that this Congress uphold 
both, our Constitution and our democratic values.
  I believe our Intel Committee bill will do exactly that. It will make 
America safer. It does this by giving the U.S. intelligence 
professionals the tools they need to safeguard and protect against 
predatory attacks. Six years ago, after September 11, terrorists 
remained--and continue to remain--on the hunt for U.S. vulnerabilities. 
They use now disposable phone cards, laptop computers, and different e-
mail addresses. They are always on the run, and they are always probing 
to find our vulnerabilities. The old FISA law made it impossible for 
the U.S. intel community to engage in any kind of realistic techno hot 
pursuit, unless we change the law. This bill enables intel 
professionals to keep pace with those who have this predatory intent. 
They have to be able to monitor terrorists overseas with speed and 
  This reform legislation empowers the intel community to detect, 
disrupt, and prevent terrorist attacks. It does it, though, in a way 
that protects the constitutional rights of American citizens, both in 
the United States and when they travel overseas.
  This bill protects their privacy in two important ways. First, it 
strengthens the role of the Foreign Intelligence Surveillance Court. 
The Intel Committee requires a FISA court to approve a warrant in order 
for a U.S. person to be monitored in the United States. Let me repeat 
that. If a U.S. person is at home in the United States, not only their 
home address but on the physical territory of the United States, any 
surveillance of them requires a warrant that is approved by the FISA 
Court. This means the FISA Court determines whether the surveillance is 
legal and necessary. The FISA Court must also judge the procedures 
used. The FISA Court, also looking at terrorists, takes a look at the 
procedures used to target them to be sure there is no reverse targeting 
of U.S. citizens.
  Second, this bill protects the privacy rights of all Americans, 
whether or not they are in the United States. One can ask: What about 
those U.S. citizens who are traveling overseas or who are actually 
living overseas? What about people who are students? What about those 
conducting business? What about those on the cruise of a lifetime? Our 
good colleague from Oregon, Senator Wyden, offered a terrific amendment 
which said: Your privacy rights as an American don't stop when you 
leave the borders of the United States. I am giving plain English. I am 
using Barbara Mikulski language rather than committee language. In a 
nutshell, the Wyden amendment requires the FISA

[[Page S15749]]

Court to approve any targeting of Americans overseas. The FISA Court 
approval is required in order to do this. It means your constitutional 
rights are based on your citizenship, not your geographic location. It 
is your right as a citizen that gives you the right of constitutional 
protections, not what ZIP Code or area code you are in at any given 
time. The Constitution travels with you wherever you go. This is 
absolutely important. I believe the Wyden amendment sets out very clear 
language about this.
  Let's talk about the immunity for the telecommunications industry. 
Ordinarily I am skeptical of any giveaway to these corporations, 
whether tax breaks or whatever. But this is one I do support. I 
understand there are a lot of concerns about that, and they have been 
raised by my colleagues in a very eloquent way. But let's examine what 
the telecom community was asked to do, what legal assurances they were 
given and by whom, and the context in which they acted. Think about 
where we were on September 11. There had been an attack on the World 
Trade Center and the Pentagon. The people of Flight 93 had given their 
lives in the most gallant kind of way, ostensibly to protect us against 
a plane that was heading to the Capitol. All of us will tell you where 
we were that day. Quite frankly, I was in a meeting with Senator 
Daschle when the Pentagon was hit. Sixty Marylanders died, and I 
thought I might die that day. I think there were a lot of other people 
here who worried about that as well. We got through that day, and we 
stood on the Capitol steps and linked arms and said: God bless America. 
But we were filled with fear and apprehension. We were concerned that 
other attacks were being planned, that another attack might even be 
imminent. We were worried about the Sears Tower in Chicago, the Golden 
Gate bridge, about getting on planes, about getting on trains, about 
riding subways. We were even worried about going to football games.
  I remember on the eve of the Army-Navy game, wondering what would 
that mean with the best and brightest of our leadership, would even the 
Army-Navy game be attacked? The U.S. Capitol at that same time was hit 
by an anthrax attack. Don't you remember the wonderful day when they 
sealed the Hart Building, when I was told that my office was a crime 
scene and a public health incident? My chief of staff, who was a new 
nursing mother, was filled with fear that she might have anthrax. I 
remember taking that little swab with the Navy medic who shook my hand 
and said: Good luck. Good luck? I wanted Cipro. I didn't want good 
luck. We were scared to death. People were snapping up gas masks and 
survival kits. You walk around this Capitol today, you see all of that.
  So every single American was clear that they wanted to do anything to 
prevent or disrupt the next attack. We were all asked to do our part. 
It was in this context, then, that the Bush administration went to the 
telecom companies. These companies were asked to assist with a 
communications program to prevent further attacks. They were given 
letters of assurance that essentially said: The Attorney General of the 
United States, then John Ashcroft, deemed what they were being asked to 
do legal and necessary. There was a subsequent letter where then White 
House counsel Alberto Gonzales also assured these companies that what 
they were doing was legal and necessary. The correspondence declares 
that these activities were also authorized by the President of the 
United States during this time of anxiety.
  I know my colleagues would say the lawyers knew that and it was law 
school and so on. But what would you have done if you headed up a 
company in the law department? Would you have fretted over the law or 
would you look at how maybe you could cooperate, how maybe when you see 
the Beamer family on TV and they said they were ready to roll and we 
all felt as though we were ready to roll, maybe if you were a telecom 
company, you were ready to roll too? Maybe you were rolling the dice. 
But you did have a letter that assured you what was legal and necessary 
from the Attorney General, the White House, and that also had been 
authorized by the President.
  Within this context, the telecom companies thought what they were 
doing was patriotic and legal. At a time when the United States felt it 
was under imminent threat of an attack by a new kind of emerging 
threat, they were given these assurances. That is why I support giving 
them focused immunity, because they thought what they were doing was 
patriotic. Look at the context. At the same time they had these letters 
of assurance. What I do not support is what the Government additionally 
wanted, which was to give immunity to all persons connected to this, 
which means essentially the Bush officials, officials in the Bush 
administration who either knowingly broke or sidestepped the law. That 
is not what the committee bill would do. What the committee bill does 
is focus only on the telecom community. It does not give immunity to 
these Bush administration people.
  When we look at this, I ask everybody to remember what this was. This 
bill also has a sunset of 6 years which I think we need. We are now in 
the heat of war, and we must continue to reevaluate and improve this 
law when cool heads will prevail.
  I know others want to speak. I will speak later on on this bill in a 
more amplified and legal way. But I think the time has come to reform 
FISA, to make ourselves modern and contemporary and, at the same time, 
not to punish those who thought they were working with us; last, but 
not at all least, to protect the American people, both in terms of 
their safety but also their constitutional rights.
  The PRESIDING OFFICER (Mr. Pryor). The Senator from Alabama.
  Mr. SESSIONS. Mr. President, I would first just express my 
appreciation for the thoughtfulness and eloquence of the Senator from 
Maryland. I think she has analyzed the matter very well and has called 
us to a compromise agreement that we should rally around and pass--an 
agreement that will protect our country and also protect our liberty; 
and that is, the agreement that came out of the Intelligence Committee 
13 to 2. It is the kind of agreement that reflects weeks, even months, 
of study, both of law and of technology.
  Our Intelligence Committee, more than our Judiciary Committee, of 
which I am a member, was deeply involved in exactly what is being done 
in foreign intelligence and how it was being done. They studied it 
carefully. There are a lot of members of the Intelligence Committee who 
would not hesitate to object if they thought what was being done was in 
error or certainly if it violated our Constitution. As a result, we 
have moved forward with their bill.
  Unfortunately, the Senate Judiciary Committee that had referral on 
the matter has now come forward with additional ideas and proposals 
that are not wise, in my view. We did not spend nearly as much time on 
the matter. We are not nearly as involved and knowledgeable of the 
details of what has gone on as the Intel Committee is. I believe we 
should not move forward on the Judiciary Committee bill. I opposed it 
in committee and remain in opposition to it.
  With regard to this matter of immunity for our telecom companies that 
cooperated with the President, the Senator from Maryland has explained 
how we got to this point. Mr. President, 9/11 occurred. We had a 9/11 
Commission that said we did not have good intelligence, we did not 
share the intelligence we had correctly, we were not analyzing properly 
the intelligence we had, and we ought to do much better with regard to 
  That was a uniform view, and the President authorized these programs, 
some of which basically had been authorized for years and had never 
been considered to be improper in any way. Government officials met 
with the telecom providers and asked for their assistance because the 
Government does not handle these communications systems. It is private 
companies that do. These companies were given a legal statement from 
the Attorney General that said the President had declared their 
cooperation to be important to national security, that it was legal, 
and asked them to help.
  Now, we discussed the basic principle in the Judiciary Committee at 
some length, and I would like to go back to it. The basic principle 
that has been embedded in our law for hundreds of years, from our 
British heritage, is that a citizen--when called upon by a law officer, 
the gendarme, the Federal

[[Page S15750]]

official, or the State law officer who has apparent legal authority, to 
help in a situation involving a danger in the community--that citizen 
should respond. OK. How have we dealt with that?
  We are so committed to that fundamental principle that we have 
embedded in our common law the concept that if the Government official 
was in error and should not have asked the citizen to do something--an 
example would be where somebody is running from a building, and 
apparently, a burglary has occurred. Several uniformed police officers 
are chasing the apparent burglar. They ask a citizen to help. The 
citizen assaults, tackles, and holds the person he has been told to try 
to capture. He helps the police officers capture that person, and it 
turns out he is not the burglar, but an innocent person.
  It is absolutely clear as a matter of Anglo-American law--this is not 
some new deal; this is our heritage--that the citizen is not 
responsible and cannot be held legally liable because the only question 
is: Was he or she responding to what appeared to be a legitimate 
request by the Government to assist them?
  So that is the deal. That is what our telecom companies did. More 
than that, they did not just respond to some police officer in uniform, 
they did not just respond to a military officer or a National Guardsman 
or a Coast Guardsman to help, they responded to the Attorney General of 
the United States of America requesting in a formal letter saying that 
he was authorized by the President of the United States to ask for 
their assistance to preserve and protect the safety of American 
citizens. They were given assurance that what they were being asked to 
do by the Attorney General was lawful.
  How could we possibly suggest that these companies now are going to 
be rightfully sued for money damages? It is unthinkable we would allow 
that to happen. It would contradict our fundamental principles as a 
  They say: Well, how do we know? We need to have a lawsuit. Well, we 
have all kinds of telecom communications statutes that we have imposed 
over the years. Apparently, a court, in reviewing these matters, 
interpreted one of these statutes in a way that rendered the procedures 
then utilized under the request of the White House incorrect. The court 
did not say that the program could not be done, but that it had to be 
done using different techniques and different procedures. But the 
practical effect of that decision, it turns out, was to make it 
impossible for those techniques to be continued to be used. You just 
could not do it. As a practical matter, you could not continue to 
conduct the surveillance the Intelligence community said was required.
  So the net result was we passed the Protect America Act this summer 
so the surveillance could continue because we, after great study, 
concluded it was needed and basically a lawful procedure. We passed the 
Protect America Act that allowed it to continue.
  So I want to go back to say, the fact there was an alteration in the 
way this process was ongoing does not mean American companies that 
agreed to be supportive of the Attorney General and the President of 
the United States in a time of national emergency ought to have been 
sued. The person responsible if there was an error was the Government, 
not the companies--the Government. And many of these matters are very 

  If we now are going to place the burden on the CEO or the legal 
counsel of every company in America to conduct their own independent 
research as to whether a request to participate in helping to defend 
America is constitutional, and they now are required to go beyond a 
certified letter from the Attorney General of the United States and 
have their lawyers express their own opinion, we are at a point where 
we are not going to get help in the future. It is just that simple.
  So I think we ought to be careful about it. In fact, in the letter 
Senator Hatch has referred to, which is a Statement of Administration 
Policy--what they call a SAP--issued today by the Executive Office of 
the President, the President's advisors indicate they would recommend 
to the President that this important, critical legislation be vetoed if 
certain objectionable matters are in it.
  One of the matters they are concerned about is this question of 
liability. I would like to read from page 4 from that SAP that deals 
with this issue. It sets out the question clearly. It says:

       In contrast to the Senate Intelligence Committee bill, the 
     Senate Judiciary Committee substitute would not protect 
     electronic communication service providers who are alleged to 
     have assisted the Government with communications intelligence 
     activities in the aftermath of September 11th from 
     potentially debilitating lawsuits. Providing liability 
     protection to these companies is a just result. In its 
     Conference Report, the Senate Intelligence Committee 
     ``concluded that the providers . . . had a good faith basis 
     for responding to the requests for assistance they 

  That was a bipartisan vote, 13 to 2. Senator Rockefeller, the 
Democratic chairman, and Senator Bond, the ranking Republican, and all 
members voted on that language.
  I am still quoting now from this SAP:

       The Committee further recognized that ``the Intelligence 
     Community cannot obtain the intelligence it needs without 
     assistance from these companies.''

  In other words, we cannot get this intelligence without the 
cooperation of these companies, for heaven's sake. This is not a matter 
of dispute. This is an absolutely undeniable fact. It goes on to say:

       Companies in the future may be less willing to assist the 
     Government if they face the threat of private lawsuits each 
     time they are alleged to have provided assistance. The Senate 
     Intelligence Committee concluded that: ``The possible 
     reduction in intelligence that might result from this delay 
     is simply unacceptable for the safety of our Nation.''

  It is unacceptable. This SAP goes on to say:

       Allowing continued litigation also risks the disclosure of 
     highly classified information regarding intelligence sources 
     and methods. In addition to providing an advantage to our 
     adversaries by revealing sources and methods during the 
     course of litigation, the potential disclosure of classified 
     information puts both the facilities and personnel of 
     electronic communication service providers and our country's 
     continued ability to protect our homeland at risk. It is 
     imperative that Congress provide liability protection to 
     those who cooperated with this country in its hour of need.

  It goes on to say this:

       The ramifications of the Judiciary Committee's decision to 
     afford no relief to private parties that cooperated in good 
     faith with the U.S. Government in the immediate aftermath of 
     the attacks of September 11 could extend well beyond the 
     particular issues and activities that have been of primary 
     interest and concern to the Committee. The Intelligence 
     Community, as well as law enforcement and homeland security 
     agencies, continue to rely on the voluntary cooperation and 
     assistance of private parties. A decision by the Senate to 
     abandon those who may have provided assistance after 
     September 11 will invariably be noted by those who may 
     someday be called upon again to help the Nation.

  I think that is indisputable. So I do not know how we got to a place 
where we are supporting an effort by some to allow these companies, 
these good corporate citizens, to be sued. I know it is being driven by 
a lot of leftist, the ``blame America first'' folks who seek to undo 
every single thing that is done to protect America from attack by 
foreign adversaries. They go through it. They attempt to find anything 
that can be complained about, and we end up having a big debate on 
these issues. But these matters have serious consequences.
  So I would say to my colleagues, we did not deny moveon.org any right 
to be heard. They have been heard--moveon.org, that's the organization 
that declared our fabulous General Petraeus to be a betrayer. But we 
have listened to all of their complaints. We have listened to the ACLU. 
The Intelligence Committee has spent months looking at it. The 
Department of Justice has been involved in it. The Senate Judiciary 
Committee has been involved in it. I would submit we have found that 
these surveillance procedures are not an extreme thing, that this is 
all consistent with the law of America and that it is legitimate in the 
way it was done. We ratified these procedures just this summer in the 
Protect America Act. I said a little earlier this morning that I know 
it is too much to expect that we would apologize to our security 
officers and the President for saying--as some have done--that they 
violated our Constitution to do these procedures because, after all 
this debate and

[[Page S15751]]

effort, we have now passed laws, including the Protect America Act, 
that allows them to continue. If they are so horrible, why did we 
overwhelmingly vote to allow them to continue? I would say there was 
nothing fundamentally wrong with what was being done to begin with. 
This was necessary and legitimate.

  One more thought I wish to share on the basic question of 
surveillance abroad is this: American citizens abroad are protected by 
a rather strong Presidential order--Executive Order 12333--that 
protects them from surveillance without probable cause having been 
shown. It is a pretty strong order. Why have we never had the Supreme 
Court, which has ruled on surveillance in the United States, declare 
its power on the issue of surveillance abroad? Think about this: Can 
the Supreme Court--can a Federal judge in America approve a 
surveillance, electronic surveillance in a foreign country of an 
American citizen? The answer is, no, because they don't have 
jurisdiction. Federal judges don't have jurisdiction in France or 
Russia or Afghanistan. If you don't have jurisdiction to authorize a 
surveillance, you don't have jurisdiction to issue warrants or to 
assert jurisdiction at all, and that is the way it has always been 
interpreted. But because people were concerned about American citizens 
abroad, President Reagan issued an Executive order that controls those 
situations and that is being followed today.
  So I wish to say we need to be careful about our thought processes as 
we go forward. There has never, ever been any doubt that an American 
intelligence operative can surveil foreign persons abroad whom they 
believe may pose a threat to the United States or may possess 
information valuable to the United States. That has never been in 
  So as we go through with this, I hope we will listen to the work of 
the Intelligence Committee. I think, for the most part, it is a pretty 
good bill. Their bill is something I can support. It has some things in 
it I don't believe are necessary that put restrictions on our efforts 
to make sure our officials don't overreach. We can create safeguards in 
a bipartisan way, and I hope we will. But in truth, we need to pass 
legislation soon because the current bill, the Protect America Act, 
expires in February.
  I went out a few weeks ago to the National Security Agency and got a 
full briefing, as a number of Senators have, on what is being done 
there. I was so proud of our personnel. These are fabulous Americans. 
The suggestions that have been made by some that they are sitting out 
there trying to listen in on somebody's private conversation about 
Christmas from Paris or Afghanistan is beyond reality. They are out 
there trying to protect America. They are looking to see if they have 
any information that they can legally pick up that would indicate an 
attack may be imminent or that people are plotting to attack the United 
  So I thank the Chair. I hope we will move forward with this 
legislation based on the Intel bill and that we will reject efforts to 
deny liability protection to Americans who serve our country. Also, I 
hope we will reject the Wyden language in the Intel bill because I 
think it goes far too far in constricting the ability of our 
intelligence personnel to do their job, and it is not legally or 
constitutionally required.
  I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER (Ms. Landrieu). The Senator from Maryland is 
  Mr. CARDIN. Madam President, I wish to take this time to talk a 
little bit about the FISA bill we are considering today. I heard my 
friend from Alabama talk about the work that is being done at the 
National Security Agency. I have also taken the opportunity to visit 
with NSA to see firsthand the work they are doing. It wasn't my first 
visit. NSA, as my colleagues know, is located in Maryland. I have been 
there on numerous occasions. I had an opportunity to observe the manner 
in which our security intelligence agencies operate, and I must tell my 
colleagues these men and women are dedicated public servants doing a 
great job on behalf of their country and trying to get it done right. 
They are trying to do it the way it is supposed to be done and 
complying with laws, but they need the right legal basis, and it is our 
responsibility in Congress to get the statutes right to allow them to 
obtain the information they need in order to keep us safe. There is a 
right way of doing it. Congress needs to get this bill done right.
  We passed this bill in a hurry in August. We didn't have an 
opportunity at that time to review the classified information about the 
advice that was given in regard to the collection of data. Since that 
time, some of us have had that opportunity. I regret all of us have not 
had that opportunity. I have taken advantage of that opportunity as a 
member of the Judiciary Committee, and I have seen the information. I 
have seen the opinions of counsel. I have seen the information the 
telecommunications companies operated under. I have had a chance to 
review that information. It makes it a lot easier for me now to 
evaluate what we should do.
  I will tell my colleagues I wish to get this bill done. I think it is 
important that our intelligence community have the legal authority to 
be able to intercept communications that are foreign to foreign. That 
was the basic reason why they asked for us to modify the FISA law, 
because technology changed and we had a lot of foreign-to-foreign 
communications. But it was through facilities that were located within 
the jurisdiction of the United States; therefore, the FISA laws 
applied. The administration thought originally they didn't apply, but 
then the court said: Hey, wait a minute. Read the statute. It does 
apply. You have to come to Congress and get it done right. That is why 
they came to us. They wouldn't have come to us if the courts didn't 
demand they come to us. Now it is our responsibility to get the statute 
  I wish to thank Senator Rockefeller and Senator Bond for the work 
they did in the Intelligence Committee. I serve on the Judiciary 
Committee. I can tell my colleagues, Senator Leahy, Senator Specter, 
and every member of our committee has taken our responsibility very 
seriously to try to understand the circumstances. But I can tell my 
colleagues it is important we modify the bill that has come out of the 
Intelligence Committee. I call my colleagues' attention to the work of 
the Judiciary Committee because we wanted to make sure the bill we 
recommended gives the intelligence community the tools they need, 
particularly as it relates to foreign-to-foreign communications but 
also protects the constitutional rights of the citizens of our own 
country, and it will be defensible before our courts. That is our 
responsibility. I think we got it right.
  So we are going to see some differences between these two bills, 
besides the big difference which is the immunity. I am going to get to 
the retroactive immunity in a moment. However, there are other 
differences which are very important, including exclusivity, to make it 
clear this statute controls so the administration can't say: Well, we 
have additional authority and we are going to do it our way, regardless 
of what the Congress says. That is an important provision. It is in the 
Senate bill. We need to make sure it is in the final bill that is sent 
to the President.
  There are other provisions that are important that are in the Senate 
bill but not in the House bill: Changes in minimization rules; changes 
in how--when we target an American overseas--we do, in fact, get 
appropriate court authorization to do it. I thank Senator Whitehouse 
for his contributions in that regard. These might be technical changes, 
but they are important to make sure they get into the bill that is 
finally passed and sent to the President.
  Let me talk for a moment, if I might, about the retroactive immunity 
because there has been a lot of conversation about retroactive 
immunity. I oppose retroactive immunity. I think it is the wrong way to 
help the carriers. Retroactive immunity, to me, violates our 
responsibility to respect each branch of Government. I want the courts 
to be able to look at what the executive branch is doing. I want the 
courts to protect individual rights. I think that when we start looking 
at retroactive immunity, we start violating the basic separation of 
  I must tell my colleagues that the telecommunications carriers that 
cooperated with the Government, believing that the authority was there 

[[Page S15752]]

operating in good faith, are entitled to relief. But they shouldn't be 
given retroactive immunity.
  There are other suggestions which have been made. I hope my 
colleagues will listen to some of the amendments that are being 
offered. Senator Specter has an amendment that I call to the attention 
of my colleagues. Because if you believe that Government is 
responsible--and I have heard many of my colleagues say this--that if 
the Government was wrong, let them be sued and held accountable. That 
is exactly what Senator Specter's amendment does. It substitutes the 
Government for the carriers in the same position that the carriers 
would be so we can get the protection of the courts and the carriers 
get the protection they need, and the Government can control the case 
for national security purposes. It seems to be a compromise that if, in 
fact, the carriers were operating in good faith, then let the 
Government be there to take its responsibility in this matter.
  I call my colleagues' attention to another amendment offered by 
Senator Feinstein. I think it is a good amendment on this issue. It may 
be able to help us in trying to find common ground. Her amendment says: 
Look, the bill we passed that is supported by the Intelligence 
Committee--the bill we passed last August, now amended by the 
Intelligence Committee, would say: OK, we are going to grant 
retroactive immunity, and guess who is going to make the decision as to 
whether the carrier operated in good faith according to law. It is 
going to be the Attorney General, the administration. Well, to me, that 
doesn't sound quite objective. After all, we know it was the Attorney 
General who gave the advice. So at least let's have an objective 
review. The Feinstein amendment says: Let the FISA Court, which was set 
up for this purpose and which has the expertise in this area, make the 
judgment as to whether the carriers followed the law in good faith. 
Because I tell my colleagues, if they did, I believe they are entitled 
to relief. I do. But I don't think we should strip the court of its 
jurisdiction in solving that problem. I think there are better ways to 
do it. I urge my colleagues to look at the work of the Judiciary 
Committee because I think they will find some help in a product that 
will be submitted vis-a-vis amendments as we consider this legislation.
  I wish to mention one additional item I am going to bring to the 
attention of my colleagues, and that is an amendment I offered in the 
Judiciary Committee that was approved and one I hope will have 
bipartisan support: A 4-year sunset on the legislation. Why do I want 
to see this sunset in 4 years? The Intelligence bill has 6 years. I 
want the next administration to focus on this issue. I want them to 
come to Congress and cooperate with us on how they are using this 
power. It is interesting we have gotten tremendous cooperation, since 
August, from the administration because they knew they had to come back 
here in February, so we got their cooperation. We got the information 
we needed. But I don't know if we are going to see any information from 
the next administration. When they know they have the authority during 
the entire time, they don't have to come back to us.
  So I hope this 4-year sunset provision will be agreed to by all of 
us, so this Congress can exercise its appropriate oversight as to how 
this administration and the next administration use this extraordinary 
  FISA is extraordinary power. These are secret courts. These aren't 
courts that issue written opinions that people can attend. These are 
secret courts, in order to protect the security of America but also the 
rights of the people of our Nation. They should at least have the 
ability for Congress to exercise appropriate oversight responsibility. 
A 4-year sunset will give us that opportunity in the next 
administration, and I hope that will be improved.
  So this is an important bill. This is a bill I hope will reach the 
President's desk and will be signed into law. But let's make sure we 
get it right. Let's make sure it is legislation we are proud of to 
protect the safety of the people of America and our civil liberties and 
legislation that can withstand the review of our courts as to 
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Madam President, this morning I laid out the reasons 
why I opposed cloture on the motion to proceed. Now I would like to 
describe in more detail the reasons that the Senate should be 
considering the Judiciary bill rather than the Intelligence Committee 
bill. And I will lay out again why I strongly oppose the immunity 
provision in the Intelligence Committee bill.
  There are a number of similarities between the bills reported by the 
Intelligence and Judiciary Committees. Their basic structure is the 
same. Both bills authorize the Government to conduct surveillance of 
individuals reasonably believed to be overseas without court approval 
for individual warrants. Both bills authorize the Government to develop 
and implement procedures to govern this new type of surveillance, and 
provide the procedures to the FISA Court for review after they have 
gone into effect.
  But in critical ways, the bills take different approaches. The 
Judiciary bill contains a number of important changes to improve court 
oversight of these broad new executive branch authorities, and to 
protect the privacy of law-abiding Americans.
  Let me be clear: The differences between these two bills have nothing 
to do with our ability to combat terrorism. They have everything to do 
with ensuring that the executive branch adheres to the rule of law and 
doesn't unnecessarily listen in on the private communications of 
  This debate is about whether the court should have an independent 
oversight role, and what protections should apply to the communications 
of Americans that get swept up in these broad new surveillance powers.
  If you believe that courts should have a meaningful oversight role 
with respect to Government surveillance, then you should support the 
Judiciary bill. And if you believe that Congress should try to limit 
the number of communications of Americans here at home that will be 
swept up in a broad new surveillance program that is supposed to be 
focused on foreigners overseas, then you should support the Judiciary 
  That said, the Judiciary bill is not perfect. More still needs to be 
done to protect the privacy of Americans. But that is why it should be 
such an easy decision to support the Judiciary bill as a starting 
  Let me also remind my colleagues that the process by which the 
Judiciary Committee considered, drafted, amended and reported out its 
bill was an open one, allowing outside experts and the public at large 
the opportunity to review and comment. With regard to legislation so 
directly connected to the constitutional rights of Americans, the 
results of this open process should be accorded great weight, 
especially in light of the Judiciary Commiittee's unique role and 
expertise in protecting those rights.
  So what are the differences between the two bills?
  First, the Judiciary bill gives the secret FISA court more authority 
to operate as an independent check on the executive branch.
  One provision in the Judiciary bill fixes an enormous problem with 
the Intelligence Committee bill--the complete lack of incentives for 
the Government to do what the bill tells it to do, which is target 
people overseas rather than people here in America. The Judiciary bill 
solves this problem by limiting the use of information concerning 
Americans when that information is obtained through procedures the FISA 
Court ultimately finds are not reasonably designed to target persons 
  The Judiciary bill states that if the court determines that the 
Government has been using unlawful procedures, then its use of that 
information is limited--in exactly the same way that it is limited 
under FISA today if the Government starts surveillance in an emergency 
and is later turned down for a court order. But the new provision in 
the Judiciary bill is more flexible: It gives the court the option to 
allow the use of the information the Government collected the first 
time around, depending on the circumstances.
  Another provision of the Judiciary bill ensures that the FISA Court 
has the authority to oversee compliance with minimization procedures.

[[Page S15753]]

  Minimization procedures have been held up as the primary protection 
for the privacy of Americans whose communications get swept up in this 
new surveillance authority.

  I don't think current minimization procedures are strong enough to do 
the job. But to the extent that minimization can help protect 
Americans' privacy, its implementation needs to be overseen by the 
court. That means giving the court the authority to review whether the 
Government is complying with minimization rules and to ask for the 
information it needs to make that assessment. Without this provision 
from the Judiciary bill, the Government's dissemination and use of 
information on innocent, law-abiding Americans will occur without any 
checks and balances whatsoever. Once again, ``trust us'' will have to 
do. I believe in this case, as in so many others, ``trust us'' is not 
  The Judiciary bill furthers other types of oversight, as well. It 
requires relevant inspectors general to conduct an audit of the 
President's illegal wiretapping program, which is long overdue.
  And it improves congressional access to FISA Court orders. The 
Intelligence Committee bill requires that Congress be provided with 
orders, decisions and opinions of the FISA Court that include 
significant interpretations of law within 45 days after they are 
issued. That is good as far as it goes, but the Judiciary bill adds 
that Congress should be provided with pleadings associated with 
opinions that contain significant interpretations of law. These 
pleadings may be critical to understanding the reasoning behind any 
particular interpretation as well as how the Government interprets and 
seeks to implement the law. It also requires that significant 
interpretations of law not previously provided to Congress over the 
past 5 years be provided.
  The Judiciary bill also does a better job of protecting Americans 
from widespread warrantless wiretapping.
  First, it protects against reverse targeting. It ensures that if the 
Government is wiretapping a foreigner overseas in order to collect the 
communications of the American with whom that foreign target is 
communicating, it has to get a court order on the American. This is 
very reasonable. Specifically, the Judiciary bill says that the 
Government needs an individualized court order when a significant 
purpose of its surveillance is listening to an American at home. The 
DNI himself said that reverse targeting violates the Fourth Amendment; 
this provision simply codifies that principle. The administration 
continues to oppose this provision, and I have a simple question for 
it: ``Why?'' Why is it opposed to a provision that prohibits a practice 
that its own Director of National Intelligence says is 
  The Judiciary bill also prohibits bulk collection--that is, the 
sweeping up of all communications between the United States and 
overseas. The DNI said in public testimony that this type of massive 
bulk collection would be permitted by the Protect America Act. But he 
has also said that what the Government is seeking to do with these 
authorities is something very different. It is ``surgical. A telephone 
number is surgical. So, if you know that number, you can select it 
out.'' If the DNI has said it doesn't even need broader authorities, we 
should certainly should not be providing them.
  All this modest provision does is hold the DNI to his word. It 
ensures that the Government has some foreign intelligence interest in 
individual targets, and is not just vacuuming up every last 
communication between Americans and their friends and business 
colleagues overseas. Targets do not need to be known or named 
individuals; they can be anonymous phone numbers, which is how the DNI 
has described how the Government collects. And the Government does not 
have to identify or explain its interest in the targets to the FISA 
Court; it merely has to make a general certification that individual 
targets exist. Again, why does the administration oppose this 
provision? I have yet to hear a convincing answer.
  The Judiciary bill also has a sunset of 4 years rather than 6 years, 
ensuring that Congress will reevaluate this law before the end of the 
next Presidential administration. And, critically, it contains a strong 
statement that Congress intends for FISA to be the exclusive means by 
which foreign intelligence surveillance is conducted. It closes 
purported statutory loopholes that the Justice Department relied on to 
make its tortured arguments that the congressional authorization for 
use of force against al-Qaida somehow authorized the President's 
illegal wiretapping program. The Judiciary bill makes clear, once and 
for all, that the President must follow the law.

  Madam President, the Judiciary bill also does not contain the 
provision in the Intelligence Committee bill granting automatic, 
retroactive immunity to companies that allegedly cooperated with the 
President's illegal NSA wiretapping program. I supported an amendment 
to strike the immunity provision in the Intelligence Committee when it 
was offered by the Senator from Florida, Mr. Nelson--I offered an 
amendment to strike the immunity provision in the Judiciary Committee--
and I will cosponsor Senator Dodd's amendment to strike the immunity 
provision on the Senate floor. The immunity provision does not belong 
in this bill.
  Granting immunity, first of all, is unnecessary. Current law already 
specifically provides immunity from lawsuits for companies that 
cooperate with the Government's request for assistance, as long as they 
receive either a court order or a certification from the Attorney 
General that no court order is needed and the request meets all 
statutory requirements. This current FISA immunity provision, contained 
in 18 U.S.C. Sec. 2511, already protects companies that act at the 
request of the Government, while also protecting the privacy of 
Americans' communications by assuring that immunity is granted only if 
the law is followed.
  Some supporters of immunity argue that companies should not be 
penalized for relying in good faith on the legality of a request from 
the executive branch. This argument ignores the history of FISA. 
Private companies have a long history of receiving requests for 
assistance from the Government, and they worked with Congress when FISA 
was first enacted to devise a law that tells them exactly which 
Government requests they should honor. They also have experienced, 
well-trained lawyers to examine the written requests they receive from 
the Government and determine whether those requests comply with the 
clear requirements of the law or not.
  The idea that telephone companies could not have foreseen that the 
Government might overstep the law makes no sense. FISA's requirement of 
a court order or a valid certification was designed precisely to 
respond to Government abuses that took place in the 1960s and 1970s, 
and to prevent such abuses from occurring in the future.
  The Judiciary Committee heard testimony from Mort Halperin, a former 
Nixon administration official who had himself been the subject of a 
warrantless wiretap, and was involved in drafting FISA in the 1970s. He 
testified that before FISA:

       Government communication with the telephone company . . . 
     could not have been more casual. A designated official of the 
     FBI called a designated official of [the company] and passed 
     on a phone number. Within minutes all of the calls from that 
     number were being routed to the local FBI field office and 

  Not surprisingly, this casual, ad hoc system failed to protect 
Americans' privacy; the abuses that took place are well documented and 
quite shocking. FISA was supposed to give everyone involved a level of 
certainty about what was permitted and what was not. And the provision 
specifying the circumstances under which a Government request could be 
honored, in particular, was supposed to play a significant role in 
ensuring that certainty. AT&T, which was the only telephone company in 
existence at the time, was at the table when this provision was 
drafted. As Halperin described it in his testimony, the company:

     received the clarity that it sought and deserved. The rule, 
     spelled out clearly in several places in the legislation and 
     well understood by all, was this: If [the phone company] 
     received a copy of a warrant or a certification under the 
     statute, it was required to cooperate. If it did not receive 
     authorization by means outlined in the statute, it was to 
     refuse to cooperate and was to be subjected to State and 
     Federal civil and criminal penalties for unlawful acquisition 
     of electronic communications.

[[Page S15754]]

  This is the history. This is why we have the FISA statute. This is 
the whole point.
  This history should give all of us pause as we consider the immunity 
provision in this bill. Granting companies that allegedly cooperated 
with an illegal program this new form of automatic, retroactive 
immunity undermines the law that has been on the books for decades--a 
law that was designed to prevent exactly the type of actions that 
allegedly occurred here. Perhaps more importantly, it will undermine 
any new laws that we pass to govern Government surveillance.
  If we want companies to follow the law in the future, it sends a 
terrible message, and sets a terrible precedent, to grant a new form of 
retroactive, blanket immunity for alleged cooperation with an illegal 
program. We not only want companies to follow the law, we want the 
Government to follow the law. If we don't give the companies a solid 
basis for refusing to respond to a Government request that falls short 
of statutory requirements, we take away the incentive for the 
Government to follow the law. It would be irresponsible for Congress to 
allow this to happen.
  It is time for Congress to state clearly and unequivocally: ``When we 
pass a law, we mean what we say and we expect the law to be followed.'' 
But if we grant immunity to companies that may have broken the law, the 
message we send will be quite the opposite. We will be effectively 
making compliance with the law optional. We will be saying: ``If a high 
Government official asks you to ignore the law, go ahead. Congress can 
always change the law retroactively so you won't pay any penalty for 
your lawbreaking.'' I ask my colleagues to think long and hard about 
this as they consider this amendment. Is that the message that we 
really want to send?
  This retroactive immunity provision presents another serious problem.
  It could very well prevent the courts from ruling on the 
administration's warrantless wiretapping program. That may explain why 
the administration is pushing so hard for this part of the bill. This 
program is one of the worst abuses of executive power in our Nation's 
history, and the courts should be able to rule on it once and for all. 
For Congress to step in and likely wipe out the pending court cases, 
when the administration has stonewalled congressional oversight efforts 
for so long, would be an unacceptable capitulation to an administration 
that thinks it is above the law.
  Finally, I must emphasize that a vote to strike immunity is not a 
vote to hold telephone companies liable. Rather, it is a vote to let 
the courts decide whether the existing immunity provisions apply. If 
telephone companies received a directive from the Government and 
complied with well-established law, the courts will find that they are 
entitled to immunity and these cases will be dismissed. But if they 
failed to follow the law that applied specifically to them--a law they 
helped create and a law that their lawyers knew inside and out--we will 
have done American citizens a grave injustice by saying that sometimes 
it is just plain OK to break the law.
  In other words, Congress should not prejudge the guilt or innocence 
of the companies, especially without knowing the facts. Unfortunately, 
most of the Members of this Chamber have not had access to those facts. 
The members of only two committees have had the opportunity to study 
what happened. I happen to sit on both committees, and after seeing all 
the evidence, my firm view is we should leave this to the courts to 
decide under existing law. But it is wrong for the administration to 
ask my colleagues who do not serve on these committees to vote for 
immunity. They are effectively being asked to grant immunity without 
being told for what they are granting immunity. This is fundamentally 
  The Senate can stand up for the rule of law and let the courts handle 
these cases as they see fit, or it can decide to change the rules in 
the middle of the game and block accountability for possible past law 
breaking. Voting to preserve retroactive immunity means they are 
blessing the behavior of the administration and the companies that 
allegedly cooperated with it. I urge my colleagues not to take that 
  Before I close, I wish to respond briefly to the comments made by the 
vice chair of the Intelligence Committee concerning the President's so-
called inherent constitutional power to order surveillance. Relying on 
a nonbinding statement made in passing in a FISA Court of Review 
decision on another issue and a 1980 circuit court case that addresses 
surveillance before FISA was passed, the vice chairman asserts that the 
President has inherent constitutional authority to wiretap without a 
court order.
  I am afraid to say that argument is an invitation to lawlessness. 
What he basically said is that because in his view the President has 
wiretapping authority that cannot be limited by statute, a company that 
complies with his request for assistance cannot be held accountable, no 
matter how unreasonable the request was. If that is the case, then 
Congress may as well pack up and go home because the laws we pass don't 
  Congress has spoken very clearly in FISA and limited Presidential 
power to conduct surveillance. Congress had the authority to take this 
action, and the courts have never upheld an assertion of Presidential 
power over statutory restriction in a case where Congress has acted 
within its authority. In this case, the President must follow the law 
that Congress passes, and so should the telecommunications companies.
  Madam President, how much time do I have remaining?
  The PRESIDING OFFICER (Ms. Stabenow). Forty-one minutes.
  Mr. FEINGOLD. I ask unanimous consent to yield my remaining time to 
Senator Dodd.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. DODD. Madam President, before my colleague leaves, I thank my 
colleague Senator Feingold for not only his statements today but for 
speaking eloquently about this issue, with which he has been deeply 
involved with for a long time. Drawing on his service on both the 
Intelligence and Judiciary Committees, he eloquently pointed out that 
these provisions are designed to guarantee exactly what FISA intended 
to provide the security of our country and the sanctity of our rights, 
  And the idea that these companies were acting out of patriotism and 
naive to the provisions of the law when the very same companies were 
involved in crafting that law 30 years ago says volumes. I thank 
Senator Feingold immensely for his work.
  Mr. FEINGOLD. Madam President, I thank the Senator from Connecticut 
for his kind words, and I thank him for his important leadership on 
this issue. What he is doing today is extremely helpful to the 
preservation of the rule of law in this country.

  The PRESIDING OFFICER. The distinguished Senator from Virginia.
  Mr. WARNER. Madam President, the time is such, I understand from the 
Senator, that I may deliver a few remarks to the Senate; is that 
  The PRESIDING OFFICER. The Senator may proceed under cloture. The 
Senate is operating under cloture.
  Mr. WARNER. Madam President, I rise today because of the timely and 
critical importance of the issue before us. It is absolutely vital that 
we reform FISA, and we must do so quickly because the Protect America 
Act passed in August to close a dangerous intelligence gap is set to 
expire shortly. We must keep this gap closed, and we must do it in a 
way that protects civil liberties, protects telecommunications 
companies from unnecessary and costly lawsuits, and ensures that our 
hard-working and dedicated intelligence professionals have the tools 
they need to protect the Nation.
  I have been privileged these 29 years I have been in the Senate to 
represent the Commonwealth of Virginia in which largely the 
intelligence community and the professionals therein have their base of 
operations. I have had the privilege of knowing these people. Stop to 
think: They have children in the schools in which our children are in, 
they attend the churches, they live in the communities. It has been my 
privilege to get to know many of them throughout the course of my 
career in the Senate and some 5 years plus previous that I had in the 
Department of Defense where I worked with these professionals. They are 
among America's finest individuals. They are dedicated. They take 
risks, great risks, so often when they are abroad. Indeed, we have

[[Page S15755]]

lost them at home right at the gateway to the entrance of the Central 
Intelligence Agency.
  I was somewhat discouraged recently to hear broad accusations against 
the intelligence community, a lack of confidence that certain 
individuals in the Congress profess publicly to have. I assure them, 
based on my rather lengthy career and the good fortune to have worked 
with these professionals for so many years, I rank them among America's 
finest and most dedicated. It has been my privilege to take this floor 
many times in the past quarter century to speak on their behalf and to 
advocate causes which I think were in the best interests of the United 
States and which could, in many ways, affect their careers.
  So I do so again today because reforming FISA has not been an easy 
process. I thank Chairman Rockefeller and Vice Chairman Bond for the 
work they have done to garner bipartisan support for the Senate 
Intelligence Committee bill, the FISA Amendments Act.
  The committee members and staff have worked together for many months 
to produce this responsible bipartisan legislation that strikes the 
right balance between civil liberties and foreign surveillance. All of 
the parties involved had to make compromises, but the 13-to-2--I 
repeat, 13-to-2--vote in the committee on which I am privileged to 
serve in favor of this bill shows that the bill will protect America's 
private civil liberties without unnecessarily hindering the ability of 
our intelligence professionals to intercept terrorist communications.
  In addition to bipartisan congressional support, the FISA Amendments 
Act has, after consultation, the support of Admiral McConnell, the 
Director of National Intelligence. I have known this fine public 
servant for many years. When I was privileged to serve as Secretary of 
the Navy, he was on the staff of the Navy at that time. As a junior 
officer, he would often brief me in my capacity as Secretary early in 
the morning. I have enjoyed our friendship through the years and had 
the privilege to introduce him to the Senate for purposes of 
confirmation on several occasions.
  History has ranked and will continue to rank Admiral McConnell among 
the foremost of those who stepped forward in my time for public 
  As I say, I have deep admiration and respect for Admiral McConnell's 
continued public service to the Nation and for the work of thousands of 
dedicated intelligence community professionals that he leads. His 
efforts to work with the Congress to formulate this bipartisan and 
complicated set of solutions to this serious national security issue 
are to be commended.
  The committee was uniquely positioned to weigh and assess the many 
highly classified aspects of our foreign intelligence surveillance 
operations and to discuss and debate those sensitive issues before we 
drafted this legislation. The result is a bill that has the support of 
those valued public servants trusted to follow the law and a bill that 
will protect national security and will protect America's privacy.
  The bill allows the intelligence community, through a joint 
certification by the Attorney General of the United States and the 
Director of National Intelligence, to target the communications of 
foreign overseas targets without the necessity of the FISA Court 
approval. This provides the speed and the agility the intelligence 
community needs--I emphasize ``the speed and the agility''--and keeps 
the foreign intelligence targets outside the purview of the FISA Court, 
which was the original intention of Congress when it drafted the FISA 
bill in 1978.
  The FISA amendments also ensure the protection of America's civil 
liberties by providing that acquisition may only be conducted in 
accordance with targeting and minimization procedures adopted by the 
Attorney General of the United States and reviewed by the Foreign 
Intelligence Surveillance Court. Targeting must be consistent with the 
fourth amendment, and reverse targeting is specifically prohibited. 
There is also enhanced oversight by Congress, the Attorney General, the 
Director of National Intelligence, and inspectors general.
  One of the most important provisions in this bill is the retroactive 
carrier liability protection for those telecommunications carriers 
alleged to have assisted the Government with the terrorist surveillance 
program, known as TSP. While I believe that TSP was legal, essential, 
and contributed to preventing further terrorist attacks against our 
homeland, others may disagree.
  There is no doubt, however, that the carriers that have participated 
in the program relied upon our Government's assurances that their 
actions were legal and in the best interests of the security of the 
United States of America.
  These companies deserve and must be protected from costly and 
damaging lawsuits. The boards of directors have a fundamental 
obligation, as they do in all public corporations, to shareholders of 
these publicly owned institutions. Those who ask why the companies need 
such protection if they did not do anything illegal do not grasp the 
point that the Government's invocation of state secrets precludes 
companies from providing a court of law with any factual evidence 
confirming or denying their involvement in the program. That is to 
prevent sources and method. Sources and methods are the very heart of 
America's intelligence operations, as they are the world over. Some 
companies facing lawsuits, even if they never participated in the 
program, can likewise not defend themselves.
  Some Senators have suggested Government substitution or 
indemnification of these companies, as the ones who did work in the 
program, as an alternate to the retroactive liability language in the 
bill. These are not suitable alternatives, in my judgment, for the 
companies or the intelligence community.
  It is a recognized fact that lawsuits are most often extremely costly 
to a company in terms of damage to the business reputation and stock 
valuation could fluctuate. Even if a company ultimately prevails, they 
will suffer not only money damages possibly, costs possibly, in all 
probability even though there may be Government reimbursement, but 
damage which is incalculable in amount to their reputation and standing 
in their community. Again, if the Government pays the legal bill, that 
will not erase other injurious consequences that come about as a result 
of court proceedings. I myself engaged in the practice of law before I 
entered public service many years ago, and not much has changed. 
Further, the Government being substituted as the defendant in a trial 
opens evidentiary problems regarding, again, sources and methods, which 
is the vital ingredient of all our intelligence collecting processes. 
Individuals who believe the Government violated their civil liberties 
can pursue legal action against the Government--the United States 
Government--and the FISA Amendments Act does nothing to limit the legal 

  The bottom line, companies that participate in this program do so to 
help America protect its freedom and the safety, individually and 
collectively, of our citizens. Without this retroactive liability 
provision, I believe companies will no longer, and understandably, 
voluntarily participate in this program. The consequence of the loss of 
those companies stepping up--solely in the security interests of the 
United States, solely in the interests of protecting our citizens--to 
offer their services will result in irreparable damage to our 
collection of vital intelligence. It is as simple as that.
  It is for these reasons I urge my colleagues to support the 
Intelligence-Committee-passed FISA Amendments Act and grant the men and 
women of the intelligence community the tools they need to protect the 
country and, indeed, the respect and admiration they deserve.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Madam President, first of all, I know others may want to 
speak as well, but let me take a few minutes, if I can, to share with 
my colleagues some of the background and information concerning my 
concern with Title II of this legislation.
  I certainly agree with my friend and colleague from Virginia, the 
former chairman of the Armed Services Committee, that it is critically 
important we modernize FISA. The 30-year-old piece of legislation has 
served our country well, striking a balance between acquiring the 
intelligence we

[[Page S15756]]

need to protect our country and protecting us against the erosion of 
our rights. My main concern with the proposal, as many know, is Title 
II, the retroactive immunity provision. I am deeply concerned about the 
precedent it would set.
  The telecoms' 5-year-old program only became public information 
because there was a whistleblower, Madam President, a gentleman by the 
name of Mark Klein, who was an employee of AT&T for more than 20 years. 
He was really responsible for us being aware of this program. Had it 
not been for Mark Klein stepping up, this story might have remained 
secret for years and years, causing further erosion of our rights. Mark 
Klein and others were principally responsible for coming forward and 
expressing their deep concerns.
  I think it is important for my colleagues in this body to understand 
precisely what these telecom communities are doing at the behest of the 
Bush administration. Mark Klein was courageous enough to blow the 
whistle on one such program at AT&T's facility at 611 Folsom Street in 
San Francisco. When the government's warrantless surveillance program 
came to light in December of 2005, Mr. Klein realized he had 
unwittingly aided and abetted an extensive, untargeted spying program 
that may have violated the civil liberties of millions of Americans. In 
early 2006, Mr. Klein went public with evidence of this program, 
providing over 100 pages of authenticated schematic diagrams and tables 
detailing how AT&T diverted its customers' communications to a room 
controlled by the NSA, with sophisticated equipment inside capable of 
analyzing millions of customers' Internet activities and e-mails in 
real time. The following are Mr. Klein's own words as to what he saw.

       For 5 years, the Bush administration's National Security 
     Agency, with the help of the country's largest 
     telecommunication companies, has been collecting your e-mail, 
     accumulating information on your web browser, and gathering 
     details on your Internet activity, all without warrants and 
     in violation of the United States constitution and several 
     Federal statutes and State laws. Even after the program was 
     exposed by The New York Times in December of 2005, the 
     President and other government officials consistently 
     defended the NSA's activities, insisting that the NSA only 
     collects communications into or from the United States where 
     one party to the communication is someone they believe to be 
     a member of al-Qaida or an associated terrorist organization. 
     But these claims are not true. I know they are not true, 
     because I have firsthand knowledge of the clandestine 
     collaboration between one giant telecommunications company 
     and the NSA to facilitate the most comprehensive spying 
     program in history. I have seen the NSA's vacuum cleaner 
     surveillance infrastructure with my own eyes. It is a vast 
     government-sponsored warrantless spying program. For over 22 
     years, I worked as a technician for AT&T. While working in 
     San Francisco in 2002, I learned that a management level 
     technician, with AT&T's knowledge, had been cleared by the 
     NSA to work on a special but secret project--the installation 
     and maintenance of Internet equipment in a newly constructed 
     secure room at AT&T's central office in San Francisco. Other 
     than the NSA cleared technician, no employees were allowed 
     in that room. In October of 2003, I was transferred to 
     that office and was in particular assigned to oversee 
     AT&T's operations. As part of my duties, I was required to 
     connect circuits carrying data to optical splitters, which 
     made a copy of the light signal. But the splitters 
     weakened the light signal causing problems I had to 
     troubleshoot. After examining engineering documents given 
     to the technicians which showed the connections of the 
     splitters, I discovered they were hard wired to a secret 
     room. In short, an exact copy of all traffic that flowed 
     through critical AT&T cables, e-mails documents, pictures, 
     web browsers, voice-over-Internet phone conversations, 
     everything, was being diverted to equipment inside the 
     secret room. In addition, the documents revealed the 
     technological gear used in their secret project, including 
     a highly sophisticated search component capable of quickly 
     sifting through huge amounts of digital data, including 
     text, voice, and images in real time according to 
     preprogrammed criteria. It is important to understand that 
     the Internet links connected to the splitters contained 
     not just foreign communications but vast amounts of 
     domestic traffic, all mixed together. Furthermore, the 
     splitter has no selectively abilities. It is just a dumb 
     device which copies everything to the secret room, and the 
     links going through the splitter are AT&T's physical 
     connections to many other Internet providers--Sprint, 
     Quest, Global Crossing, cable and wireless, and the 
     critical West Coast exchange point known as Mae West. 
     Since these networks are interconnected, the government 
     surveillance affects not only AT&T customer matters but 
     everyone else--millions of Americans. I also discovered in 
     my conversations with other technicians that other secret 
     rooms were established in Seattle, San Jose, Los Angeles, 
     and San Diego. One of the documents I obtained also 
     mentions Atlanta, and the clear inference and the logic of 
     this setup and the language of the documents is that there 
     are other such rooms across the country to complete the 
     coverage, possibly 15 or 20 more. So when reports of the 
     government's extensive wiretapping program surfaced in 
     December 2005, after I had left AT&T, I realized two 
     things: First, that I had been a witness to a massive 
     spying effort that violated the rights of millions of 
     Americans; and, second, that the government was not 
     telling the public the truth about the extent of their 
     unconstitutional invasion of privacy. In the spring of 
     2006, I became a witness for the Electronic Frontier 
     Foundation's lawsuit against AT&T. The New York Times, on 
     April 13, 2006, reported that four independent technical 
     experts examined the AT&T documents. All said that the 
     documents showed that AT&T had an agreement with the 
     Federal Government to systematically gather information 
     flowing on the Internet.

  Now, Madam President, there is a further statement of 
telecommunication expert Brian Reid on AT&T whistleblower Mark Klein's 
revelations. Dr. Reid is currently the Director of Engineering and 
Technical Operations at Internet Systems Consortium, a nonprofit 
organization devoted to supporting a nonproprietary Internet.
  Dr. Reid, who has taught at Stanford and Carnegie-Mellon 
Universities, was an early pioneer in the development of Internet and 
network technology and received numerous awards for his work in the 
field of information technology. I think Dr. Reid's expertise in 
telecommunications is vital to understanding the depth and breadth of 
the program found at AT&T's Folsom Street facility in San Francisco. 
Let me read from Dr. Reid's testimony.

       I am a telecommunications and data networking expert who 
     has been involved in the development of several critical 
     Internet technologies. I was a professor of electrical 
     engineering at Stanford University and in computer science at 
     Carnegie-Mellon university west. I have carefully reviewed 
     the AT&T authenticated documents and declaration provided by 
     Mark Klein and the public redacted version of the expert 
     declaration of J. Scott Marcus both filed in the Hepping vs. 
     AT&T litigation. Provided the information contained in those 
     declarations and documents, with my extensive knowledge of 
     the international communications infrastructure and the 
     technology regularly used for lawful surveillance pursuant to 
     warrants and court orders, I believe Mr. Klein's evidence is 
     strongly supported of widespread untargeted surveillance of 
     ordinary people, both AT&T customers and others. The AT&T 
     documents describe a technological setup at the AT&T facility 
     in San Francisco. This setup is particularly well suited to 
     wholesale dragnet surveillance of all communications passing 
     through that facility, whether international or domestic. 
     These documents describe how the fiber-optic cables were cut 
     and splitters installed at the cut point. Fiber-optic cables 
     work just like ordinary TV splitters. One cable feeds in and 
     two cables feed out. Both cables carry a copy of absolutely 
     everything that is sent, and if the second cable is connected 
     to a monitoring station, that station sees all traffic going 
     over the cable. Mr. Klein stated the second cable was routed 
     into a room at the facility whose access was restricted to 
     AT&T employees having clearances from the NSA. The documents 
     indicate that similar facilities were being installed in 
     Seattle, San Jose, Los Angeles, and San Diego, and also a 
     reference to a somewhat similar facility in Atlanta. This 
     infrastructure is capable of monitoring all traffic passing 
     through the AT&T facility, some of it not even from AT&T 
     customers, whether voice or data or fax or international or 
     domestic. The most likely use of this infrastructure is 
     wholesale untargeted surveillance of ordinary Americans at 
     the behest of the NSA. NSA involvement undermines arguments 
     the facility is intended for use by AT&T in protecting its 
     own network operations. This infrastructure is not limited 
     to, nor would it be, especially efficient for target 
     surveillance or even untargeted surveillance aimed at 
     communications where one of the ends is located outside of 
     the United States. It is also not reasonably aimed at 
     supporting AT&T operations in security procedures. There are 
     three main reasons. The technological infrastructure is far 
     more powerful and expensive than that needed to do targeted 
     surveillance or surveillance aimed only at international or 
     one-end foreign communications. For example, it includes a 
     NARUS Norris 6400, a computer that can simultaneously analyze 
     huge amounts of information based on rules provided by the 
     machine operator, analyze the content of messages and other 
     information--not just headers or routing information--conduct 
     the analysis in real time, rather than after a delay, and 
     correlate information for multiple sources, multiple formats, 
     over many protocols and through different periods of time in 
     that analysis. The document describes a secret private 
     backbone network, separate

[[Page S15757]]

     from the public network where normal AT&T customer traffic is 
     carried and transmitted. A separate backbone network would 
     not be required for transmission of the smaller amounts of 
     data captured by a targeted surveillance. You don't need 
     the magnitude of capacity doing targeted surveillance. The 
     San Francisco facility is not located near an entry point 
     for international communications that happen to be 
     transmitted through the United States, either through 
     undersea cable or via satellite. As a result, it would not 
     be a sensible place to locate a facility aimed at simply 
     monitoring traffic to or from northern countries.

  I apologize for those rather elaborate statements from two rather 
technical people, but I thought it was important for our colleagues 
considering the matter before us that the information that broke this 
story did not just come from casual observers, but from highly skilled 
people who could comment on the rather broad use of this information. 
The idea that we are just focusing our attention on foreigners who 
might be engaged in activities threatening our existence of course is 
belied by the evidence provided by both of these very substantial 
  I would like to maybe take another few minutes, if I can, to address 
some of the questions that have been raised by a number of people today 
in support of the retroactive immunity.
  Let me state again, it is very important that we have the FISA 
legislation. It is very important that we have the modern means to 
maintain the technological advances to be able to trap and capture 
information that poses a risk to our country. No one here, I believe, 
is arguing against that. The question simply was, For 5 years, why 
didn't the telecommunications industry and why didn't the individuals 
in the Bush administration simply do what had been done more than 
18,000 times before, and that is go and get a court order from the FISA 
  Don't blame the NSA here. I have talked about them. The NSA is a 
Federal Government agency responsible for collecting the data. It was 
the administration officials here and the lawyers within these 
telecommunications companies who decided to avoid the law. The NSA 
officials whom I have dealt with over the years want to be able to 
operate within Federal statutes. Their job is not to draft the law but 
to gather intelligence.
  The responsibility is on those in the administration responsible for 
granting this kind of legal authority without going to the FISA Court. 
And it is on the legal departments in these major communications 
companies for not understanding what they should know--and did know, I 
believe--and that is that they merely had to go to the FISA Court and 
get a court order, and the information sought by the NSA would be 
immune from any further legal proceedings. That is the issue. The law 
had been in place for three decades.
  Those who are fighting immunity want an open debate on the balance of 
security and civil liberties. The President disagrees. He is saying: If 
you strike the immunity for these corporations, I will veto the bill. I 
find it remarkable that Members have worked hard over weeks to craft a 
bill to balance the needs of civil liberties and the ability to gather 
information, and the President is saying: I don't care if you have done 
all of that; if you don't protect these corporations from lawsuits, I 
am going to put the whole legislation at risk. It seems to me the 
immunity issue ought not dominate the decision the committees have made 
about what needs to be done to balance civil liberties and the need to 
gather information.
  Mr. President, I see great danger in this immunity. It would replace 
the rule of law with the rule of secrecy.
  Those who are fighting immunity offer open debate on the balance of 
security and civil liberties. But this President tells us that he knows 
best, that he has set the balance already and the rest of us do not 
need to worry our heads about it. I oppose immunity because I find that 
thinking to be dead wrong. The power at stake today--the power to spy, 
the power to invade privacy, the power to put one's friends outside the 
law--does not belong in the hands of any one individual, no matter how 
wise--and certainly not the hands of a President whose contempt for the 
law has been too obvious for too many years.
  As we fight this immunity, that is what is at stake today. Not 
punishment. Not payback. Openness. Americans deserve to know what this 
President and these corporations have done to them, and we are never 
going to know that if this immunity is granted. We are never, ever 
going to know. It will be as if it never happened.
  As a Member of this body for 26 years, a senior member of the Foreign 
Relations Committee, I don't have the right to even look at the 
relevant documents. Only a handful of people have the right to do it. 
So I am being asked, as a 26-year veteran of this Senate, serving on 
the Foreign Relations Committee, to grant blanket immunity to the 
President's favored corporations. I find that rather remarkable.
  As you know, I have serious doubts about the legality of the 
corporations' actions, but I would never presume to come to this floor 
and render a verdict on them. I am not a judge. None of my colleagues 
are, either, nor is the President of the United States. Just as it 
would be absurd for me to declare the telecoms clearly guilty, it is 
equally wrong to declare them effectively innocent. That power belongs 
to the courts, to the coequal branch of government, the judiciary. To 
slam the courthouse door shut on American citizens seeking redress 
would be to forget the meaning of checks and balances in our system of 
governance altogether.
  I believe in letting the courts do their job. It seems the 
President's allies only believe in the courts when the verdict goes 
their way. They offer any number of arguments for immunity, but one by 
one, they fail. They are false and often misleading. I would like to 
take a few minutes to look at those claims and their failures one by 
  First of all, immunity supporters argue that granting immunity is a 
Presidential prerogative. That was one of the arguments made by Alberto 
Gonzales. The answer to that is, of course, the fact is that this case 
belongs in the courts. The judiciary should be allowed to determine 
whether the President has exceeded his powers by obtaining wholesale 
access to the domestic communications of ordinary citizens without a 
court order. That is why the courts exist, to determine if the actions 
by the Chief Executive or the Congress are, in fact, appropriate and 
proper and legal.
  Because the telecom corporations are intimately bound up with the 
President's warrantless wiretapping, immunity supporters are proposing 
that the President sit as a judge over himself. The administration's 
original immunity proposal protected not just telecommunications but 
everyone involved in the wiretapping program. In their original 
proposal, they wanted to immunize themselves.
  Think about that. It speaks to their fear and perhaps their guilt, as 
well: their guilt that they had broken the law, and their fear that in 
the years to come, they would be found liable or convicted. They knew 
better than anyone else what they had done--they must have had good 
reason to be concerned!
  Thankfully, executive immunity is not part of the bill before us, but 
the origin of immunity tells us a great deal about what is at stake 
here. That is, and always has been, a self-preservation bill.
  Second, immunity supporters claim that only foreign communications 
were targeted, not Americans' domestic calls. For those who were 
listening, I just read two documents from an AT&T official of 22 years 
who was deeply involved in helping set up the very systems, and from 
Dr. Reid, who then analyzed all the materials that have been presented 
by Mark Klein to determine exactly how the system worked. The fact is 
clear: Firsthand evidence, authenticated by corporations in court, 
contradicts the claim. Splitters at the AT&T Internet hub in San 
Francisco diverted to a secret, NSA-controlled room every e-mail, every 
text message, every phone call, foreign and domestic, carried over the 
massive fiber-optic links of 16 separate companies.
  Third, immunity supporters claim that the Intelligence Committee 
version of this bill actually does preserve a role for the judiciary. 
But, again, the fact is that the role would be empty. The Intelligence 
version of this bill would require the cases to be dismissed at a word 
from the Attorney General. The central legal questions raised by these 
cases would never be heard in court. The cases would never

[[Page S15758]]

be fully closed. We would never truly know what happened.
  The fourth argument is that a lack of immunity will make the telecom 
industry less likely to cooperate with surveillance in the future.
  However, in the 1970s, FISA compelled telecommunications companies to 
cooperate with surveillance. In fact, AT&T helped write this law some 
30 years ago. But they could only get that cooperation from the 
telecommunications industry when it is warranted, literally where there 
is a court order. But if the court order is given, the cooperating 
telecom is immunized. No warrant, no immunity.
  So cooperation in warranted wiretapping is not at stake today. 
Collusion in warrantless wiretapping is--and the warrant makes all the 
difference, because it is precisely the court's blessing that brings 
Presidential power under the rule of law.
  The fifth argument immunity supporters offer is that the telecoms 
cannot defend themselves without exposing state secrets. But the fact 
is that Federal district court judge Vaughn Walker--I might point out, 
appointed by a Republican administration--has already ruled on this 
matter that the issue can go to trial without putting state secrets in 
jeopardy. Judge Walker reasonably pointed out that the existence of the 
President's surveillance program is all hardly a secret at all today. 
We are debating it here, and have been. It is has been in the 
discussion for weeks on end. You can't claim there is a secret about 
the surveillance program.
  As Judge Walker said:

       The Government has already disclosed the general contours 
     of the Terrorist Surveillance Program, which requires the 
     assistance of a telecommunications provider.

  The sixth argument offered by supporters of immunity claims that 
telecom companies are already protected by common law principles.
  But again, the fact is that common law immunities do not trump 
specific legal duties imposed by statute, such as the specific duties 
to protect customer privacy that Congress has long imposed on these 
telecommunication companies, going back almost 30 years.
  In the pending case against AT&T, the judge has already ruled 
unequivocally, and I quote:

       That AT&T cannot seriously contend that a reasonable entity 
     in its position could have believed that the alleged domestic 
     dragnet was legal.

  Even so, the communication company defendants can and should, I 
believe, have the opportunity to present these defenses to the courts. 
I am not suggesting by that quote that there ought to be a 
predetermined verdict. As I said a moment ago, I am not pretending I am 
a judge here. All I am asking is that these cases go forward and a 
determination made as to whether they were legal. The defendants can 
and should have the opportunity to present these defenses to the 
courts; and the courts, not the Congress preemptively, should decide 
whether they are sufficient.
  The seventh argument offered by the supporters of the retroactive 
immunity says that leaks from the trial might damage national security. 
We heard this argument from my good friend from Virginia, Senator 
Warner. But the fact is, our Federal court system has already dealt for 
decades with the most delicate national security matters, building up 
expertise in protecting classified information behind closed doors in 
what are called ex parte and in camera proceedings. We can expect, I 
think, no less in these cases as well.
  If we are worried about national security being threatened as a 
result, we can simply get the principals a security clearance. No 
intelligence sources need be compromised; no state secrets need to be 
exposed. And we can say so with increasing confidence, because after 
the extensive litigation that has taken place at both the district 
court and circuit court levels on this matter already, no sensitive 
information has leaked out. I think it is a red herring to suggest 
somehow that you cannot go to court here when we have proved for 
decades the courts' ability to handle national security matters without 
  An eighth argument offered by immunity supporters claims that 
litigation will harm the telecoms by causing them ``reputational 
damage.'' The fact is there is no evidence that this legislation has 
reduced or would reduce the defendant companies' bottom lines or 
customer base. This morning I quoted from the Dow Jones Market Watch. 
The date is October 23, 2007, well after the reports were out about 
AT&T's involvement in the surveillance program.

       Third quarter earnings rose 41.5 percent. Boosted by the 
     acquisition of BellSouth and the addition of 2 million net 
     wireless customers, AT&T's net income was $3.06 billion, 
     compared with $2.17 billion a year ago.

  Hardly a company that is suffering reputational damage. AT&T has 
posted these record profits during a time of very public litigation. So 
the argument that reputational damage somehow prevents us from going 
forward has no basis in fact.
  But moreover, to claim that ``reputational damage'' ought to trump 
our rights and liberties--I find it frightening that anyone in 
government would even make that argument. To say that a violation of 
millions of Americans' privacy over 5 years is outweighed by the 
potential for reputational damage is to show a rather extraordinary 
lack of balance when it comes to understanding the relative importance 
of these issues.
  A ninth argument made by those in favor of retroactive immunity 
claims that these lawsuits could bankrupt the telecommunications 
industry. But the fact is that only the most exorbitant and unlikely 
judgment could completely wipe out such enormous corporations. To 
assume that the telecommunications industry would lose and that the 
judges would then hand down such back-breaking penalties is already to 
take several leaps from where we are today.
  The point, after all, has never been to cripple our 
telecommunications industry; the point is to bring checks and balances 
back to domestic surveillance. Setting that precedent would hardly 
require a crippling judgment.
  But on another level, immunity supporters are staking their claim on 
a dangerous principle: that a lawsuit can be stopped simply on the 
basis of how much a defendant stands to lose. The larger the 
corporation, in other words, the more lawless it could be. If we accept 
the immunity supporters' premises, we could conceive of a corporation 
so wealthy, so integral to our economy, that its riches place it 
outside the law altogether. And if the administration's thinking even 
admits that possibility, we know instinctively how flawed it is.
  We see then none of those arguments for immunity stand up to the 
test. All nine of them fail.
  I am not here again to render judgment on the telecom corporations. I 
have my doubts, but that's not why I'm here. All I am suggesting is 
that when you grant this kind of immunity once, what is to stop someone 
from making that argument again, in a later debate, when maybe someone 
will be asked to collect information about our medical histories or our 
financial records or some other personal matters? They would wave that 
vote back in our face: Democrats, Republicans found no difficulty in 
granting retroactive immunity for telecommunications surveillance; why 
would you object today when it comes to people's medical records, or 
their financial records, or other private information?

  You start down that slippery slope, and nothing good can come of it. 
This ought not be a difficult debate.
  So I am surprised and stunned to listen to some of my more 
conservative colleagues here. I used to associate conservative 
principles with standing up for privacy, a principle once held 
sacrosanct. It is rather stunning to me today to listen to some of the 
more conservative Members argue for retroactive immunity, that somehow 
it was all right for those companies to do what they did. I hear that 
they did not know any better, that somehow they got drawn into this by 
mistake. If that were true of every one of them, well, maybe that point 
would have a little more weight. But there were companies such as Qwest 
that said, ``No, give me a court order, and then I will comply.'' Why 
did the Qwest lawyers arrive at a different decision? Was it a great 
secret within the telecommunications industry that there were those who 
said no? Why did Qwest say no and others say yes? I believe they 
understood the law, and they realized that without a court order they 
could not legally comply with that request.

[[Page S15759]]

  I might point out that no court order was ever forthcoming. Why did 
not the administration seek that court order for Qwest to get 
additional information? Why did they drop that kind of request? I might 
point out, as I did earlier today, that over the years, I am told by 
The Washington Post, there have been over 18,000 requests of the FISA 
Court for court orders, and of more than 18,000 requests, only 5 have 
been rejected. 99.9 percent of the requests by administrations for 
court orders over the years in the FISA Court have been granted.
  Why would you not ask? Why did they not go forward and make that 
request? Why did Qwest say no? Why did the others say yes? Why are we 
granting immunity to these companies, without going through the courts 
of law to determine what is right?
  Again, this ought not be a debate between Democrats and Republicans 
and conservatives and liberals. It ought to be a debate about defending 
these basic rights we have here in America. Companies that may have 
violated them deserve their day in a court of law. But immunizing them 
for a program that went on for not for a day or two or a week or 6 
months or even a year, but for 5 years and only stopped when exposed by 
a whistleblower ought to cause all of us to pause. Clearly we want to 
keep our country safe, but if we are being asked to keep our country 
safe by giving up our rights, then we are granting these jihadists and 
terrorists victories far beyond anything they have yet achieved.
  As tragic as the events of 9/11 were, if we begin to undo our own 
liberties and rights, we give them a success far beyond anything they 
could have ever imagined. I have been here today for the last 8 hours, 
and I will stay here for as long as it takes.
  At the appropriate time, when we have exhausted the ability to talk 
about it generally, I will offer the language to strike it, and I hope 
my colleagues will join me in that effort. But I am determined not to 
let this go forward, because I think we have done that too often. I 
myself have been guilty of accepting far too much from this 
administration. Just one small thing is at issue today. But then I 
start to look back at all of the small things that have been done, so-
called ``small things'' over the last 5 or 6 years--most recently, the 
destruction of interrogation tapes at the CIA. And the combined weight 
of these ``small things'' truly frightens me.
  What was going on at the CIA? Why did that happen? Why Abu Ghraib? 
Why Guantanamo? Why get rid of habeas corpus? Why bring back 
waterboarding? Why do away with the Geneva Conventions? Why nominate 
someone to be the Attorney General who believes that Presidents have 
the right to violate Federal statutes here under the guise of 
protecting the Nation's security?
  Why, after each one of those these things? Why the Military 
Commissions Act? In case after case after case, we see the slow erosion 
going on. And again, regardless of what your politics are, regardless 
of where you find yourself on the spectrum, when our basic rights are 
involved, we must stand up and say, ``Enough!''
  A generation ago, Members of this body sat here, and had only one 
negative vote as they worked out the original FISA law, that balance 
between our needs to protect our security and to protect our rights. 
Here we are about to make a major step in the opposite direction. And 
those gentlemen faced tough times. They were wrestling with the threat 
of nuclear war in the 1970s. The Soviet Union still existed. They had 
been through World War II, many of them, Korea and Vietnam. They knew 
what hostility and difficulty were like. And yet Democrats and 
Republicans came together and wrote that legislation. On 30 separate 
occasions since then they modernized it to keep pace with the changes 
occurring throughout the world, where new risks and new dangers are 
posed every day. So yes, we should modernize FISA and bring it up to 
date. I applaud the committees' efforts to do so. But to add 
retroactive immunity, to grant blanket immunity to companies that 
listened in on millions of people in this country without a court 
order, is a step too far.
  Listen to the remarks of our colleague from Massachusetts today in 
talking about the legal counsel of this administration. Their words: to 
blow through these laws. They did not like them? Blow through them! 
That was their attitude. Well, I am going to stop the blowing through. 
No more blowing through the laws. Not here, not tonight, not this 
Member, not on this bill. No more blowing through the law!
  You do not get immunity, not as long as I can stand here and fight 
this. I intend to do just that.
  Madam President, I withhold the remainder of my time, and I suggest 
the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll. It is not 
counted against the time.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. I ask unanimous consent that the order for the quorum call 
be rescinded.
  The PRESIDING OFFICER (Mr. Sanders). Without objection, it is so 
  Mr. HATCH. Mr. President, on numerous occasions in the FISA debate, 
we have seen dramatic fear mongering. Many individuals, particularly on 
partisan blogs, are spreading misleading and malicious information in 
order to incite fear of alleged governmental activities. This bill 
should not include text which panders to people who believe in 
imaginary Government conspiracies. There is such a thing as irrational 
fear of Government.
  Let's not forget, our Government did not kill thousands of innocent 
Americans on September 11. Our Government did not kill hundreds of 
people in car bombings in U.S. embassies in Kenya and Tanzania. Our 
Government did not kill 191 people in the Madrid train bombings. Our 
Government did not kill 52 people in the London train bombings. Our 
Government did not kill 202 people in suicide bombings Bali, Indonesia. 
The indisputable fact is terrorists have committed heinous attacks on 
Americans and have pledged themselves to conduct more. It is not 
politics of fear to acknowledge this. If we bury our heads in the sand 
and pass legislation that ignores these risks, we make ourselves and 
all our people more vulnerable. I will not stand by and see Congress 
pass laws which could create vulnerabilities for our people, 
vulnerabilities which expose our families and our friends to danger.
  Let me tell you what our Government does to protect us. It hires the 
finest men and women of this great country to utilize their skills to 
help prevent these types of attacks. Our job in Congress is to make 
sure these people who have sworn to defend us have the necessary tools 
to try and prevent terrorist attacks. What they don't need are laws 
with ambiguous language, as has been proposed, making their jobs more 
  One of my colleagues previously stated:

       The authority in this bill greatly expands the Government's 
     ability to conduct surveillance of foreign targets.

  How in the world he can make that statement, I don't understand. The 
only great expansion I see in this bill is judicial jurisdiction. In 
fact, I am amazed we don't rename the bill the unlimited expansion of 
judicial authority act. We have advocated so much new responsibility 
for the Foreign Intelligence Surveillance Court that I wonder whether 
people realize that court is composed of only 11 judges. Where is this 
great expansion in surveillance authority that has been argued on the 
  Since FISA was passed in 1978, the Government has been able to target 
terrorists overseas. This bill amends FISA so we can continue to target 
foreign terrorists when they utilize communications over a wire, not 
just communications over radio or satellite. This does not sound to me 
like a great expansion. Maybe that is why the Government has continued 
to say FISA needed to be ``modernized,'' not that it needed to be 
greatly expanded. There is, however, a key expansion in the bill. It is 
a statutory warrant requirement when targeting U.S. persons, regardless 
of who they are, what they have done or where they are located. Notice 
I said U.S. persons, not U.S. citizens. This idea may sound great to 
everyone, but we should realize, with eyes wide open, what this means. 
We have heard some individuals claim the Government could use the power 
of the Protect America Act to spy on innocent Americans. We have heard 
the fear

[[Page S15760]]

mongering that the Government can spy on innocent Americans when they 
travel overseas. We have heard all about American families on vacation 
overseas in the Caribbean or in Europe. We have even heard our 
Government could spy on American military members who are overseas 
defending our country.
  I find these scare tactics not only ridiculous but extremely 
offensive. They walk a fine line in seemingly questioning the integrity 
and the judgment of these fine men and women who work for us and who 
don't have a political agenda, who have dedicated their professional 
lives to prevent catastrophic attacks on Americans. Do we think our 
intelligence analysts are sitting around waiting for the Smith family 
to go on their family vacation to Italy so they can tap their cell 
phones? Give me a break. To imply that our country's intelligence 
analysts are more concerned with random innocent Americans than foreign 
terrorists overseas is a slap in the face to the people who protect our 
Nation. Our Government is focusing their attention on terrorists who 
wish us death, not on innocent Americans.
  When some decry the lack of statutory protection for Americans 
overseas in the Protect America Act, I wonder if they realize the 1978 
FISA law itself provides no statutory protections for Americans 
overseas. Yet we have called that the gold standard all these years. I 
would, however, tell my colleagues that Americans overseas are 
protected by the most important document in the history of our great 
Nation, and that is the U.S. Constitution. The fourth amendment to the 
Constitution provides protection from unreasonable search and seizure. 
That is the question. Is it always unreasonable for the Government to 
target an American overseas without a court order? Of course not. I 
would suggest the process that has worked for 26 years is the best 
approach. It is Executive Order 12333. Since 1981, the Government could 
only target Americans overseas if the Attorney General determined via 
probable cause that the American was an agent of a foreign power. Do we 
think an intelligence analyst is going to disregard an executive order 
and wiretap innocent Americans overseas? Of course not.
  Now, with the policy change included in both the Intelligence and 
Judiciary bills, I want to give an example of how this provision will 
apply in real life.
  Adam Gadahn is an American citizen from Orange County, CA. He is also 
one of the FBI's most wanted terrorists now believed to be living 
overseas. He has been indicted for treason and providing material 
support to al-Qaida. Here is what he said:

       The streets of America shall run red with blood . . . 
     casualties will be too many to count and the next wave of 
     attacks may come at any moment.

  He has appeared on multiple al-Qaida propaganda tapes. Here is 
another quote:

       The magnitude and ferocity of what is coming your way will 
     make you forget all about September 11.

  Here is something that should make all Americans scratch their heads. 
Before September 11, the Government would not need a warrant to target 
this criminal. After September 11, the Government would not need a 
warrant to target Gadahn. But after this bill is signed, the Government 
will be required to get a warrant to target Gadahn. This bill does 
require that.
  Let's explain that one to the American public.
  Would a warrantless interception of Gadahn's communications be 
``unreasonable'' under the fourth amendment? Of course not. But we are 
requiring something that even the Founding Fathers did not--a warrant 
for all electronic searches of U.S. persons.
  Now I understand the administration is willing to accept a modified 
version of this amendment that does not include unintended 
consequences. It is yet another example of how far this proposal goes 
to satisfy determined detractors who never seem to be satisfied that we 
are doing enough to ``protect'' innocent Americans.
  I am also amazed at the false descriptions floating around the 
Internet of the program which the President described on December 17, 
2005, during a radio address. We have all heard the terms: 
``warrantless wiretapping'' or ``domestic spying.'' But let's look at 
what the President actually said during his radio address on December 
17, 2005. This is what he said:

       In the weeks following the terrorist attacks on our Nation, 
     I authorized the National Security Agency, consistent with 
     U.S. law and the Constitution, to intercept the international 
     communications of people with known links to al Qaeda and 
     related terrorist organizations. Before we intercept these 
     communications, the government must have information that 
     establishes a clear link to these terrorist networks.

  Now I do not see anything in this statement about domestic spying. I 
thought the definition of the word ``domestic'' was pretty clear. If 
the program intercepted communications in which at least one party was 
overseas, not to mention a member of al-Qaida, then it seems fairly 
obvious that the calls were not domestic.
  Here, as shown on this chart, is a call from the United States of 
America to overseas; or a call from overseas to the United States of 
America. Is that a domestic call? I hardly think so. Is this such a 
hard concept to grasp? The last time I flew overseas, I did not fly on 
a domestic flight. I flew on an international flight. ``Domestic 
spying'' may sound catchy and mysterious, but it is a completely 
inaccurate way to describe the terrorist surveillance program. Why 
don't the partisan blogs describe it as ``international spying''? Isn't 
that a more accurate description? I guess accurate descriptions take a 
back seat to terms which incite fear and distrust in our Government.
  Since so many are so interested in the opinion of the FISC, or the 
Foreign Intelligence Surveillance Court, on these matters, I wish to 
draw attention to a recent decision. On Tuesday, the Foreign 
Intelligence Surveillance Court denied a motion by the ACLU for release 
of court records related to alleged NSA surveillance programs. This 
FISC opinion was publicly released, which is only the third time in the 
entire history of the FISC in which this has occurred.
  Given the rarity of this event--this issued public opinion that 
denied a motion by the ACLU for the release of court records related to 
alleged NSA surveillance programs--I want to highlight a few sentences 
from that ruling:

       [T]he identification of targets and methods of surveillance 
     would permit adversaries to evade surveillance, conceal their 
     activities, and possibly mislead investigators through false 
     information. Public identification of targets, and those in 
     communication with them, would also likely result in 
     harassment of, or more grievous injury to, persons who might 
     be exonerated after full investigation. Disclosures about 
     confidential sources of information would chill current and 
     potential sources from providing information, and might put 
     some in personal jeopardy. Disclosure of some forms of 
     intelligence gathering could harm national security in other 
     ways, such as damaging relations with foreign governments. 
     All these possible harms are real and significant, and, quite 
     frankly, beyond debate.

  Now, that is in re: Motion for release of court records of the U.S. 
Foreign Intelligence Surveillance Court, December 7 of this year.
  I think we can all agree this is a vitally important public opinion 
from the FISA, and I commend it to my colleagues.
  Regardless of how we came to this moment, it is time to do what is 
right for our country. The time has come for us to work together. We 
all know it is going to take bipartisan support to get this legislation 
passed. Let's represent our constituents with our heads held high, 
knowing we are doing our very best to balance the necessity for 
protections of civil liberties with the need to keep American families 
safe from deadly attacks. We owe our people this much.
  I hope we can continue to work, as the Intelligence Committee did, in 
a bipartisan way to resolve these very difficult problems. I have to 
say that the 13-to-2 bipartisan approach is one of the highlights of 
this year. It is probably the best example of bipartisanship we have 
this year. I have to tell you, to try to change that with some of the 
language from the Judiciary Committee--where it was a pure partisan 
vote on both sides--to try to change that is not the way to do it.
  So I hope our colleagues will realize that in the Intelligence 
Committee, in a bipartisan way, we have worked together to come up with 
the ways of solving these very technical and difficult problems, and to 
do so in the best traditions of the intelligence community, in the best 
traditions of gathering intelligence information, and in the best 
traditions of protecting our

[[Page S15761]]

country that this country has ever known.
  Frankly, I compliment the distinguished chairman of the Intelligence 
Committee, the distinguished vice chairman of the Intelligence 
Committee, and my fellow Senators on the committee, Democrats and 
Republicans, who were willing to put partisanship aside and pass that 
bill 13 to 2 out of that committee.
  Mr. President, I notice my dear friend from Florida is desirous to 
speak on the floor, so I will withhold my further remarks and turn the 
time over to him.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Florida.
  Mr. NELSON of Florida. Mr. President, I compliment the Senator from 
Utah, who has been a member of the Intelligence Committee for years and 
years, and who brings a lot of good common sense to the committee. I 
echo his comments about the bipartisan nature of Chairman Rockefeller 
and Vice Chairman Bond working together. It was something that this 
member of the Intelligence Committee had seen earlier this year break 
down, and I must say this member of the Intelligence Committee 
absolutely reminded everybody on the committee that the committee ought 
to work of one accord, reaching consensus when we can reach that 
consensus, and, at the end of the day, that the product not only be a 
bipartisan product, it ought to be a nonpartisan product.
  Mr. HATCH. Mr. President, will the Senator yield on that point?
  Mr. NELSON of Florida. I certainly do yield to my friend.
  Mr. HATCH. Mr. President, I thank my colleague for his kind remarks. 
He was one of the Senators who helped to put this bill together, and a 
distinguished Senator at that.
  Would the Senator agree with me that should this bill pass, it would 
be one of the best illustrations of bipartisanship in this whole 
Congress so far?
  Mr. NELSON of Florida. Indeed, Mr. President, it would be. And we 
have to pass a FISA bill. For many of the reasons you have heard--the 
changing technology--we have to give the legal authorization to the 
U.S. Government. That is another reason for having a clear delineation 
in law of what the Government can do and what it cannot do. Because, 
unfortunately, what we have seen over the last several years is the 
intrusion into this murky area without the necessary legal binding, 
that it was clearly legal as to what was being done. That is what is so 
necessary about passing a piece of legislation such as we have before 
us in the form of which we are just on the motion to proceed.
  Now, I voted for closing off debate on the motion to proceed because 
it is clearly important that we get a law and pass this legislation. It 
improves on the legislation we passed last August, where it is going to 
provide protections for Americans both in the United States and abroad. 
But naturally in something as complicated as this, I am not satisfied 
completely with what is in the bill. That is why we ought to get to the 
bill, so we can start amending or considering amendments.
  For example, the Senator from Connecticut--when we ever get to the 
bill--is going to offer the amendment that I offered in the 
Intelligence Committee, which was the amendment to take away immunity 
from the telephone companies. It was specifically targeted to strip the 
provisions of the bill that provided immunity to the telecommunications 
companies for assistance provided to the administration for warrantless 
surveillance in a defined period of time--from September 11, 2001, 
until January 17, 2007.
  The reason I offered that in the committee was, I felt it was hugely 
premature for our committee to grant that retroactive immunity to those 
telecommunications carriers when, in fact, the White House had only 
come forth with the documents that we could inspect only 48 hours prior 
to when we were going to vote on it.
  I am still troubled by the idea of a blanket retroactive immunity. 
Whether they deserve a break for their cooperation with the 
Government's warrantless program in the aftermath of September 11, that 
is one thing. But this went on for 6 years.
  I can certainly understand, in the aftermath of the horror of what we 
saw on September 11, 2001, that a President would need, for the 
protection of the country--and using his article II powers of the 
Constitution as Commander in Chief to protect the country--that he 
could say to telecommunications companies: We need this information. 
There is a law over here called the FISA law that says if you want to 
snoop on any American person, you have to do it by getting a court 
order by a special Federal court that is organized under law to handle 
these secret national security matters in secret.
  I can see telecommunications companies going along, that in the 
urgency of the aftermath of September 11--we do not know when the next 
strike is coming; it may be the next day, it may be the next week--that 
the telecommunications companies cooperated when the President said and 
the communications come to them saying: This is under the legal 
authority of the President. I can understand that. But after a year? 
After 2 years? After 3 years? How about 4 years? How about 5 years, 
when clearly there is a law on the books that if it is going to touch 
Americans, you have to go to the special Federal court impaneled by 
Federal judges who are cleared for top-secret information? Now, that is 
what bothers me.

  There is another part that bothers me, which is that in the 
separation of powers envisioned in our Constitution, the first article 
of the Constitution is setting up the legislative branch of Government. 
The second article sets up the executive branch of Government--the 
President. The Constitution envisioned that there is a check and a 
balance of each of those on the other. For example, something doesn't 
become law that the legislative branch--the Congress--passes. It can't 
become law without the signature of the President. But if Congress 
disagrees with the President, they can override the President's Veto 
with a two-thirds vote. So there is this tension built into the system 
of one branch overseeing the other. It is appropriate that the 
legislative branch oversees the activities of the executive branch.
  But that is not what was going on with this matter of surveillance 
because the legislative branch was left in the dark. The President 
ignored the Congress. The President ignored the courts when he 
authorized the warrantless surveillance program and Congress's attempts 
to conduct the oversight of the program. All those attempts were 
constantly thwarted. So, therefore, I also have a problem with 
retroactive immunity--that it would make a mockery of our separation of 
  Now, having said all that, as a member of the Intelligence Committee, 
I have still a check in my gut as to whether there would be some lack 
of cooperation among telecommunications companies with the executive 
branch of government on a going-forward basis if there is not some form 
of immunity that is given to these telecommunications companies. I know 
that on a going-forward basis there cannot be any question that we have 
the cooperation of those companies with the Government in order to 
protect this country and to provide for the national security.
  So I am looking forward to the debate continuing as we flesh out all 
these ideas. I am particularly intrigued with an amendment that is 
going to be offered by Senator Feinstein, of which I am a cosponsor, 
which would provide a forum handling classified material in the FISA 
court itself in order to consider the question of immunity and that 
there would be a determination in this special Federal court as to 
whether the immunity ought to be given. I think that is something we 
ought to debate. We ought to get it clear when we get to the bill. But 
in the meantime, I share with the Senate my reservations about this 
part of the bill and about the immunity.
  Let me say at the end of the day--whether we have immunity in the 
bill or whether it is not in the bill or whether there is some hybrid 
version such as the Feinstein amendment, at the end of the day, we are 
going to need to make this FISA law permanent because it is going to 
run out in February. We have to clearly have this etched into law so on 
a going-forward basis we can provide for the security of this country.
  Mr. DODD. Mr. President, will the Senator yield for a question?

[[Page S15762]]

  Mr. NELSON of Florida. I certainly will yield to my friend from 
  Mr. DODD. I say to my colleague from Florida, I appreciate immensely 
his leadership on so many issues, but especially on the committee 
itself. I was stunned by the number of requests made of the FISA Court 
over the years for court orders to various entities. There have been 
over 18,000 granted court order requests and 5 rejections in 25 years. 
Some have argued a fear that we might not get an approval by the FISA 
Court, but in 99.9 percent of the times that Presidents of both parties 
over the years or administrations have sought the approval of the FISA 
Court for a court order to seek information, in only 5 cases over more 
than 25 years have those requests been rejected.
  I thank the Senator from Florida for raising the point. This is not 
about denying our agencies the opportunity, the ability, the means by 
which they gather information to keep us secure; it is merely saying so 
that in the process of doing so, there is a way of doing this, which 
grants them the opportunity to do that while simultaneously protecting 
our basic liberties. So I thank the Senator from Florida.
  Mr. NELSON of Florida. Mr. President, I would respond to the very 
distinguished Senator from Connecticut that those kinds of reports have 
been in the press for some time, and I think generally they are 
considered to be true. However, a lot of that operated under the old 
law, which had a 3-day limit, that in the case of a national emergency, 
the President wouldn't have to first go and get a court order.
  Instead, he could go on under the emergency conditions and surveil 
the particular target, if it were an American person but, under the old 
law, would have to go back to the court within 3 days to get that order 
or else cease their surveillance. In the new law that was passed on a 
temporary basis for 6 months, that we passed last August, that 3 days 
has been extended to 7 days to give more leeway. Certainly, if someone 
in the Government feels that a person--an American person--should be 
surveilled in their communications but it was an emergency basis, that 
they don't have time to go to the court, the law as it stands now and 
under the new FISA bill we are considering on this floor would say that 
within 7 days, the executive branch would have to go and get that court 
order called a warrant or else cease the surveillance.
  Now, that is very reasonable, and it is a lot of that kind of stuff 
that is in this bill that is so necessary to have this etched into a 
permanent law, not a law that is going to sunset in 6 months--next 
February. That is part of the gravity of the legislation before us. Now 
we have to get to this very sensitive issue of immunity and how to 
handle it. Although I have stated I am certainly sympathetic; indeed, 
the Senator's amendment he is going to offer is the one I offered and 
that was defeated. It only got three affirmative votes in the 
committee. So my amendment in the committee did not prevail. 
Nevertheless, there are other amendments coming after the Senator's 
amendment, if his is not--if the amendment of the Senator from 
Connecticut is not adopted--that do take a very practical approach. The 
Feinstein amendment which I have cosponsored is one where the issue of 
immunity would be determined in the FISA Court itself that is set up in 
order to handle these national security matters.
  I yield the floor.
  Mr. DODD. Mr. President, I note the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BROWN. 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. BROWN. Mr. President, I join the senior Senator in Connecticut in 
rising in strong opposition to the retroactive immunity provisions 
contained in the bill before us today. I thank Senator Dodd for his 
strong opposition and leadership and courage to make this fight.
  Earlier today, I opposed the cloture vote because I don't believe we 
should consider providing immunity to corporations that broke the law, 
breached the Constitution, and trampled on Americans' civil liberties. 
It is pretty much as simple as that.
  As Senators Dodd, Feingold, and others have made clear throughout 
this day, this is a matter of law, this is a matter of basic civil 
liberties, and this is a matter of accountability.
  The decisions we make when we vote on this bill have bearing on every 
single American because the rights and protections the Constitution 
provides are precious to every single American. That is what we stand 
for as a nation.
  No individual or corporation can breach the Constitution and break 
the law. No individual or corporation can breach the Constitution and 
break the law, even if the Federal Government tells them to do it.
  Corporations cannot rely on a piece of paper handed to them by the 
administration that says that an act on the very face of it sounds 
illegal but it is, in fact, legal. They have, and they had, an 
independent obligation as corporations to assess the legality of 
wiretapping before engaging in it. That is why some telecommunications 
companies refused to comply when the administration asked them to 
wiretap. All of them should have taken that step.
  The Constitution does not allow companies to rely on the executive 
branch to interpret the Constitution for them. When the fundamental 
constitutional rights of Americans are at issue, corporations have 
one--and only one--course of action: they must act in accordance with 
the law; they must act in accordance with the Constitution.
  Some in this body have suggested that these companies were compelled 
to go along with the administration's illegal wiretapping program 
because of 9/11 and because of the very real danger of foreign 
terrorist attacks. Mr. President, while all of us--every 1 of the 100 
Members of this body--wants to protect America at all costs, these 
companies went along with this program absent a legal warrant or court 
order for over 5 years after 9/11.
  These multibillion-dollar corporations have teams of lawyers that 
assess the meaning and implication of Federal law as it relates to 
every move they make. But this time, now, we are asked to accept that 
highly trained lawyers working for these companies could not clearly 
understand and interpret the Constitution or interpret the requirements 
of FISA, a law that is more than 30 years old.
  It would be a total and absolute assault on the Constitution to allow 
a small group of companies to ignore Federal law simply because they 
were asked to by the President--whoever the President is.
  It is important for all those listening to take a good look at whom 
the administration is fighting for and whom it is representing.
  President Bush has threatened to veto this bill unless it contains 
the retroactive immunity provisions but not because the protections for 
citizens are too weak. The President will veto this bill, he says, 
frankly, because he is concerned about the bank accounts of a handful 
of telecommunications companies.
  Since when did money trump constitutional freedom? Since when did 
corporate connections matter more than the rule of law?
  Congress has the responsibility to protect the freedoms and the 
rights of all citizens. Our Government should be open and transparent 
and, when rights are infringed, there should be an opportunity to seek 
legal redress in a court of law.
  That is why our system of government contains a judicial branch: to 
litigate infringements of rights, to assess the constitutionality of 
laws and programs.
  The retroactive immunity provisions in this bill will make it 
impossible to hold those who broke the law accountable for their 
illegal actions. That is wrong, Mr. President, and that is dangerous.
  We must remember that by protecting our civil liberties we protect 
our Nation and our values.
  I urge all my colleagues to vote for the Dodd-Feingold amendment.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I thank my colleague from Ohio for his 
continuing efforts here. He is not a newcomer at

[[Page S15763]]

all to these issues. I thank him for his words, support, and knowledge 
of the issue, and his continuing efforts to see if we can get a good 
bill out of here and not add extraneous matters such as this.
  As I heard Senator Nelson of Florida talk earlier, I thought--I think 
many of us thought that had this been a day or a week after 9/11, we 
might have found the telecoms' actions more understandable. In the heat 
of emergency, we might have accepted some excessive aggression. I can 
understand people drawing that conclusion.
  But this program went on for 5 long years. The idea that we grant 
retroactive immunity for actions over 5 long years goes way beyond 
anything anybody ought to accept in this body.
  Retroactive immunity, under these circumstance, would be a massive 
step backward in light of this administration's assault on the 
Constitution and the rule of law. Again, I thank my colleague from 
  Mr. KERRY. Mr. President, today I voted against cloture on the motion 
to proceed to S. 2448 as reported by the Senate Intelligence Committee 
because I believe that we should instead be taking up on the Senate 
floor the far better bill reported out by the Judiciary Committee.
  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, and 
in my judgment the Judiciary Committee bill better reflects the oath we 
each swear to uphold. Why? The Judiciary Committee's bill gives the 
President the added flexibility he needs to hunt and capture terrorists 
who would strike our homeland--but it strikes an appropriate balance 
between protecting the privacy rights of American citizens and 
providing the President adequate tools to fight international 
  This is no small issue. It is the job of Congress to find the right 
balance between protecting privacy and safeguarding national security. 
The judiciary bill makes critical improvements to the Protect America 
Act to ensure independent judicial oversight by the Foreign 
Intelligence Surveillance Court, FISC. It allows the secret FISC 
greater authority to act as an independent check on unfettered 
Executive power. The judiciary bill provides the court the authority to 
assess the Government's ongoing compliance with its wiretapping 
procedures, places limits on the way the Government uses information 
acquired about Americans, and lets the court enforce its own orders.
  The judiciary bill also safeguards Americans against widespread 
warrantless spying. It reaffirms that FISA is the exclusive statutory 
authority for conducting foreign intelligence surveillance, prohibits 
limitless ``fishing expeditions''--so-called ``bulk collection'' of all 
communications between the United States and overseas, and ensures that 
the Government cannot eavesdrop on Americans under the guise of 
targeting foreigners--what is known as ``reverse targeting.''
  Most importantly, unlike the Intelligence bill, the judiciary bill 
does not provide retroactive amnesty to telecommunications providers 
that were complicit in the administration's warrantless spying program. 
I fear this administration is deliberately stonewalling to avoid an 
adverse court decision finding its surveillance program to be 
unconstitutional. It is seeking political security in the name of 
national security.
  The heart of the matter is that allowing Americans their day in 
court--introducing some kind of accountability, affording some kind of 
objective authority, in lieu of the Bush administration, to adjudicate 
competing claims--will shed much-needed light on the administration's 
secret surveillance program. If the lawsuits are shielded by Congress, 
the courts may never rule on whether the administration's surveillance 
activities were lawful. We must hold the administration to account. And 
an impartial court of law insulated from political pressure is the most 
appropriate setting in which to receive a fair hearing.
  If the telecoms were following 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 judiciary bill, which is the bipartisan bill that 
should be under consideration.
  Mr. LEAHY. Mr. President, the Foreign Intelligence Surveillance Act--
FISA--is intended to protect both our national security and the privacy 
and civil liberties of Americans. We are considering amendments to that 
important act that will provide new flexibility to our intelligence 
community. I think we all support surveillance authority, and we have 
joined together to update FISA dozens of times since its historic 
passage after the intelligence abuses of earlier decades. I thank the 
majority leader for his efforts in bringing this matter before the 
Senate. He has consulted with me and with Chairman Rockefeller and is 
proceeding by regular order to bring this legislation before the Senate 
in a manner that allows deliberation of the many protections of 
Americans' rights added to the bill during consideration by the Senate 
Judiciary Committee.
  It is vitally important that we correct the excesses of the so-called 
Protect America Act that was rushed through the Senate in an atmosphere 
of fear and intimidation just before the August recess after the 
administration reneged on agreements reached with congressional 
leaders. That 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 
international calls to and from the United States involving Americans, 
and it provided no meaningful protection for the privacy and civil 
liberties of the Americans who are on those calls.
  Before that flawed bill passed, Senator Rockefeller and I, and 
several others in the House and the Senate, worked hard and in good 
faith with the administration to craft legislation that solved an 
identified problem but also protected Americans' privacy and liberties. 
Just before the August recess the administration decided, instead, 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. After almost 6 years of violating FISA through 
secret warrantless wiretapping programs, that was wrong. A number of us 
supported the better balanced alternative and voted against the Protect 
America Act as drafted by the administration.
  Fortunately, because the Protect America Act has a 6-month sunset, we 
have a chance to revisit this matter and do it right. The Judiciary 
Committees and Intelligence Committees in the Senate and the House have 
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. We considered 
legislative language in a number of open business meetings of the 
committee and reported a good bill to the Senate before Thanksgiving.
  The bill we are considering will permit the Government, while 
targeting overseas, to review more Americans' communications with less 
court supervision than ever before. I support this surveillance, but we 
must also take care to protect Americans' liberties. 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.'' On that I agree with him. 
That is what the Senate Judiciary bill does.

  I commend the House of Representatives for passing a bill, the 
RESTORE Act, that takes a balanced approach to these issues. It allows 
our intelligence community great flexibility to conduct surveillance on 
overseas targets, while providing oversight and protection for 
Americans' civil liberties. The Senate Select Committee on Intelligence 
has also worked hard. I know that Chairman Rockefeller was as 
disappointed as I at the administration's partisan maneuvering just 
before the August recess. I commended his efforts this summer and do 
so, again, now. I believe that he and I both want surveillance with 
oversight and accountability.
  I also want to praise our joint members, Senators Feinstein, 
Feingold, and Whitehouse, who as members of both the Judiciary 
Committee and the Select Committee on Intelligence contributed so much 
to the work of the Judiciary Committee and who worked with me to author 
many of the additional protections that we adopted and

[[Page S15764]]

reported. These Senators and others on the Judiciary Committee worked 
hard to craft amendments that preserve the basic structure and 
authority proposed in the bill reported by the Select Committee on 
Intelligence, while adding crucial protections for Americans.
  In my view, and I think the view of many Senators, we need to do more 
than the bill initially reported by the Senate Select Committee on 
Intelligence to protect the rights of Americans. Indeed, Senator 
Rockefeller joins with me to support many of the Judiciary Committee's 
  The Judiciary bill, for example, makes clear that the Government 
cannot claim authority to operate outside the law--outside of FISA--by 
alluding to legislative measures that were never intended to provide 
such exceptional authority. This administration has come to argue that 
the Authorization for the Use of Military Force, AUMF, passed after 
September 11, justified conducting warrantless surveillance of 
Americans for more than 5 years. I introduced a resolution on this in 
the last Congress, when we first heard this canard. When we authorized 
going after Osama bin Laden, the Senate did not authorize--explicitly 
or implicitly--warrantless wiretapping of Americans. Yet this 
administration still clings to this phony legal argument. The Judiciary 
bill would prevent that dangerous contention with strong language 
reaffirming that FISA is the exclusive means for conducting electronic 
surveillance for foreign intelligence purposes.
  The Judiciary bill would also provide a more meaningful role for the 
FISA Court in this new surveillance. The court is a critical 
independent check on Government excess in the very sensitive area of 
electronic surveillance. The fundamental purpose of many of the 
Judiciary Committee changes is to assure that this important, 
independent check remains meaningful.
  On one important issue, I strongly oppose the bill reported by the 
Senate Select Committee on Intelligence. That bill includes one 
provision that goes beyond even the so-called Protect America Act. 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 

  This administration violated FISA by conducting warrantless 
surveillance for more than 5 years. They got caught, and if they 
hadn't, they would probably still be doing it. When the public found 
out about the President's illegal surveillance of Americans, the 
administration and the telephone companies were sued by citizens who 
believe their privacy and their rights were violated. Now the 
administration is trying to get this Congress to terminate those 
lawsuits in order to insulate itself from accountability. We should not 
allow this to happen.
  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 that Congress can or should seek to take those rights and those 
claims from those already harmed. Instead, I will continue to work with 
Senator Specter, as well as with Senators Feinstein and Whitehouse, to 
try to craft a more effective alternative to retroactive immunity. We 
are working with the legal concept of substitution to place the 
Government in the shoes of the private defendants that acted at its 
behest and to let it assume full responsibility for the illegal 
  I voted for cloture on the motion to proceed to the measure, just as 
I would have supported proceeding to the House-passed bill, because I 
believe it is important that we correct the excesses of the so-called 
Protect America Act. The Judiciary Committee has done good work in 
reporting protective measures to the Senate to add balance to the 
surveillance powers of the Government and to better ensure the rights 
of Americans. I strongly oppose retroactive immunity in favor of 
  As we debate these issues, let us keep in mind the reason we have 
FISA in the first place. Not so long ago, we painfully learned the hard 
lesson that powerful surveillance tools, without adequate oversight or 
the checks and balances of judicial review, lead to abuses of the 
rights of the American people. I hope this debate will provide us an 
opportunity to show the American people what we stand for, that we will 
do all we can to secure our future while protecting their cherished 
rights and freedoms.
  Mr. 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. REID. 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. REID. Mr. President, title II of the Intelligence Committee bill 
provides retroactive immunity to companies that are alleged to have 
cooperated with the Bush administration's warrantless wiretapping 
program. When we are on this bill, we are going to have an opportunity 
to vote on the amendment to strike title II so the actions of the 
telephone companies will be subject to legal proceedings. I will 
support this amendment, which insists on fair accounting for the 
actions of the telephone companies and proper accountability if they 
are found to have violated the law.
  The Bush administration's warrantless wiretapping program was clearly 
an illegal circumvention of the provisions included in FISA designed to 
protect the privacy of law-abiding Americans. I, once again, wish to 
applaud Chairman Rockefeller's tireless work over the course of the 
last several years to bring strong congressional oversight to the 
illegal Bush administration's spying programs. This type of lawlessness 
and misguided legal reasoning by the Bush administration will not be 
looked upon kindly in the history books.
  The amendment now before us can begin to right the injustices the 
Bush administration has committed. I am pleased Chairman Rockefeller's 
Senate Intelligence Committee rejected the administration's efforts to 
provide immunity for the Government officials who conceived and 
authorized this program. Democrats have made certain no one in the Bush 
administration who broke the law will be let off the hook.
  I am also sympathetic to the phone companies' compliance with 
Government requests for assistance in the immediate aftermath of the 
terrible attacks of September 11. I can understand the argument that in 
a time of national emergency, they did their utmost to act in the best 
interests of our country. But this illegal program continued for 5 
years after the rubble of 9/11 had been cleared--5 years--5 years 
during which the executive branch could have come to Congress and asked 
for the program to be put on solid legal footing--all they would have 
had to have done is come and tell us there were a few changes that 
needed to be made--and 5 years that the phone companies could have 
forced the administration to do a number of different things.
  Public reports indicate that at least one phone company refused to 
follow the administration's request. This fact appears to undermine the 
argument for immunity of those who complied. When Congress drafted and 
enacted FISA in 1978, it was responding to widespread and egregious 
executive branch abuses of the power to spy on American citizens. 
Liability protections were included for phone companies responding in 
good faith to Government requests for assistance. But at the same time, 
Congress set out specific statutory requirements for the form such 
requests must take.
  The intention was that the phone companies would have refused an 
illegal request not in compliance with FISA requirements. In other 
words, FISA's drafters intended for the phone companies to serve as an 
active check, not as a rubberstamp, on an executive branch acting 
outside the bounds of the law. It is not clear whether the telephone 
companies fulfilled that responsibility.
  In light of that, I believe it is more than appropriate to ask the 
courts to examine the telephone companies' actions and to evaluate 
whether they acted properly. It would certainly be within the power of 
a judge to provide immunity if the telephone companies make a 
compelling case their actions were appropriate and legal. But providing 
immunity without ever undertaking such an evaluation would send a

[[Page S15765]]

dangerous signal that requirements we enact prospectively may be 
ignored with impunity.
  I appreciate the need for an intelligence community to gather 
information that makes our country safer in a way that does not violate 
the privacy of law-abiding Americans. In many cases, the telephone 
companies played an important and responsible role in that process. It 
is not my desire to bankrupt the industry. That is an understatement. 
Should the courts determine their actions were illegal and impose a 
potential bankrupting judgment, I would be inclined to support 
congressional intervention, of course. But we must not attempt to 
answer these questions prematurely. This process must be allowed to 
work its way through the courts. It would be wrong to deny that 
  I would also like to say again I believe this process deserves the 
informed input of every Senator. To that end, last Friday, I sent a 
letter to the Director of National Intelligence, strongly urging him to 
make the documents previously provided to the Intelligence and 
Judiciary Committees regarding retroactive immunity available in a 
secure location to any Senator who wishes to review them during the 
floor debate. This would also help every Senator reach an informed 
decision on how to proceed. I am hopeful that decision will be to 
support this amendment and allow the legal process to move forward, 
which will give all Americans confidence that their safety and their 
privacy are both respected and protected.
  I wish to again outline briefly how much I appreciate the work of 
Senator Rockefeller. It is a very difficult piece of work. He has done 
it with integrity and with good judgment. I also wish to express my 
appreciation for the work done by the Judiciary Committee. It is not 
often we have sequential referral on the bills, but we have had in this 
instance. The Judiciary Committee will have, if they so choose, the 
first amendments offered in this matter. They have done a good job. The 
title I work they did was extremely good.
  It is my understanding now that Senators Rockefeller and Leahy have 
agreed with certain parts of the Judiciary Committee title I; that they 
will offer amendments either en bloc or individual amendments jointly, 
and that is a significant improvement. So in short, this legislation 
has been handled very well by the Intelligence Committee and the 
Judiciary Committee, and I look forward to hearing the response from 
Admiral McConnell as to whether these documents that have been shown to 
the Judiciary Committee and the Intelligence Committee will be 
available to us, I assume, in room 407 in this building.
  Mr. President, I ask unanimous consent that the letter I sent to 
Admiral McConnell be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate.

                                Washington, DC, December 16, 2007.
     Admiral John M. McConnell,
     Director of National Intelligence, Office of the Director of 
         National Intelligence, Washington, DC.
       Dear Admiral McConnell: As you know, the Senate will begin 
     debate on the FISA Amendments Act of 2007 this week. Among 
     the issues the Senate will consider is whether to grant 
     retroactive immunity to telecommunications companies that are 
     alleged to have assisted the government in its warrantless 
     wiretapping program. You recently wrote in the New York Times 
     that immunity is one of the three most critical issues in 
     this bill.
       We appreciate that you have provided access to the 
     documents necessary for evaluation of this issue to the 
     Senate Intelligence and Judiciary Committees, as each has in 
     turn considered it. As the debate now moves to the full 
     Senate, I believe it is of critical importance that all 
     Senators who will be called upon to vote on this important 
     question have an opportunity to review these key documents 
     themselves so that they may draw their own conclusions. In my 
     view, each sitting Senator has a constitutional right of 
     access to these documents before voting on this matter.
       I strongly urge you to make the documents previously 
     provided to the Intelligence and Judiciary Committee 
     regarding retroactive immunity available in a secure location 
     to any Senator who wishes to review them during the floor 
     debate. I appreciate your cooperation in this matter.
                                                        Harry Reid
                                           Senate Majority Leader.

  Mr. REID. Mr. 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. REID. 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. REID. Mr. President, we have tried to work through this process, 
and it appears quite clear at this stage, on this bill, we are not 
going to be able to do that. As everyone knows, we are in the last 
hours, days, certainly, of this first year of this session of Congress, 
and we have to take care of the domestic spending, we have the debate 
coming up on funding for the Afghanistan and Iraq wars, the 
supplemental, and I think it is very clear we are not going to be able 
to move into these amendments.
  We have had a number of suggestions by a number of different people 
how we can move through this legislation, and it appears quite clear at 
this stage that we can't. I have spoken to a number of the Senators, 
and everyone feels it would be in the best interest of the Senate that 
we take a look at this when we come back after the first of the year 
and resume this. I have spoken to, for example, Senator Dodd, a few 
minutes ago, and he and I have talked about ways to move forward--of 
course, Senator Dodd can always speak for himself--but my feeling, 
after having visited with him, is we would be better off moving into 
this sometime after we come back after the holiday recess, after the 
adjournment sine die of this year of the Congress.
  So unless something untoward appears, which I doubt extremely 
seriously, this is what we will do on FISA; that is, we will take it 
back up when we return in January.
  The PRESIDING OFFICER. The Senator from Connecticut.
  Mr. DODD. Before he leaves the floor, I wish to thank the Democratic 
leader. He has a very difficult job under any circumstances. To people 
who ask: What is it like to be the leader in the Senate, I often 
describe it as trying to keep frogs in a wheelbarrow. It always gets a 
pretty good reaction when I mention that. He has a lot of frogs to deal 
with around here. Trying to keep us all moving in the same direction is 
not easy.
  Mr. REID. If I could respond to my friend, at this stage, in Iowa, 
they are laughing at just about all the jokes, aren't they?
  Mr. DODD. As Mo Udall once said: I walked into a barber shop in New 
Hampshire and said: I am Mo Udall, and I am running for President. And 
the barber said: We were just laughing about that.
  But I wished to thank the leader. This is an awkward time, obviously, 
and I wanted to get the bill done. I think Senators Rockefeller and 
Bond did a good part of this bill, and it is worthy of our support.
  The leader knows my longstanding concerns over this retroactive 
immunity. There is significant debate about this, and I feel strongly 
about it. I will look forward to coming back in January, and hopefully 
between now and coming back, maybe there would be some suggestions on 
how we might ease some of the concerns people have and satisfy them, 
without necessarily granting retroactive immunity.
  I know there are various ideas kicking around, some sort of a 
compromise idea that may be worked out. Certainly, there will be some 
time to think about this so we can avoid this when it comes back again. 
I appreciate the fact we are not going to proceed with it now. That 
gives us a chance to work on this some more. We have at least some 
time, I think the end of January or early February before the law will 
expire, so we have some time to come back and deal with this again. I 
appreciate the fact we are not going to have to go forward. I would 
have been put in a position to contest this in every possible way, 
utilizing all the tools available to us, and I am very grateful to the 
leader for moving on. I promise I certainly will be willing to listen 
to various ideas how we can resolve this, so when we come back here, 
this will be a matter we can deal with more expeditiously, but I am 
very grateful to him for giving me an opportunity to make my case.

[[Page S15766]]

  Mr. REID. I appreciate the kind comments of my friend from 
Connecticut. He is one of our most articulate spokespersons we have in 
the Senate and always has been. I have enjoyed my work with him.
  This is a very difficult issue. The American public is terribly 
concerned about this issue because it is easy to focus on. What has 
taken place in this country the last 7 years has really hurt the 
confidence of the American people in their Government.
  We have the worst foreign policy blunder in the history of the 
country in the invasion of Iraq. We are spending now $12 billion a 
month there.
  We have now a condition where much of the Government has been 
contracted out. The poster for that, of course, is Blackwater. I heard 
an account on the radio this morning that the Iraqis can't tell the 
difference between the American troops and these contractors, and all 
the contractors do is hurt them--not the troops but these contractors.
  We have had this domestic surveillance situation, which is really 
frightening to people. In Nevada, we don't like wiretaps. We don't like 
lie detector tests. We are very private people. I think that is 
basically where America is. They don't like their privacy invaded.
  We all want to get the bad guys. We know there are evil people out 
there trying to hurt us. The patriotism of the Senator from Connecticut 
and the Senator from Nevada will compare to that of anyone else in the 
Senate. Because we believe this retroactive immunity is something that 
needs to be studied very closely, that doesn't mean we are any less 
patriotic than anyone else.
  This is an issue on which the American people are focused. I have 
gotten, in the last week or so, thousands of inquiries from around the 
country. This is an issue they understand and they do not like. 
Hopefully, when we come back after the first of the year, we can figure 
out a way to move through this. We know we have to do something, but we 
can't continue to make mistakes in this regard that continually take 
away the confidence of the American people in what we are doing back 
  Mr. DODD. Mr. President, I see the majority whip as well. I just want 
to take a couple of minutes and conclude my thoughts on this matter, 
since we will be moving on.

       Americans have rightfully been concerned since before World 
     War II about the dangers of hostile foreign agents likely to 
     commit acts of espionage. Similarly, the violent acts of 
     political terrorists can seriously endanger the rights of 
     Americans. Carefully focused intelligence investigations can 
     help prevent such acts.
       But too often intelligence has lost this focus and domestic 
     intelligence activities have invaded individual privacy and 
     violated the rights of lawful assembly and political 
     expression. Unless new and tighter controls are established 
     by legislation, domestic intelligence activities threaten to 
     undermine our democratic society and fundamentally alter its 

       A tension between order and liberty is inevitable in any 
     society. A Government must protect its citizens from those 
     bent on engaging in violence and criminal behavior, or in 
     espionage and other hostile foreign intelligence activity  .  
     .  . Intelligence work has, at times, successfully prevented 
     dangerous and abhorrent acts, such as bombings and foreign 
     spying, and aided in the prosecution of those responsible for 
     such acts.
       But, intelligence activity in the past decades has, all too 
     often, exceeded the restraints on the exercise of 
     governmental power which are imposed by our country's 
     Constitution, laws, and traditions.

       We have seen segments of our Government, in their attitudes 
     and action, adopt tactics unworthy of a democracy, and 
     occasionally reminiscent of the tactics of totalitarian 
     regimes. We have seen a consistent pattern in which programs 
     initiated with limited goals, such as preventing criminal 
     violence or identifying foreign spies, were expanded to what 
     witnesses characterized as `vacuum cleaners,'' sweeping in 
     information about lawful activities of American citizens.

       That these abuses have adversely affected the 
     constitutional rights of particular Americans is beyond 
     question. But we believe the harm extends far beyond the 
     citizens directly affected.
       Personal privacy is protected because it is essential to 
     liberty and the pursuit of happiness. Our Constitution checks 
     the power of Government for the purpose of protecting the 
     rights of individuals, in order that all our citizens may 
     live in a free and decent society. Unlike totalitarian 
     states, we do not believe that any government has a monopoly 
     on truth.
       When Government infringes those rights instead of nurturing 
     and protecting them, the injury spreads far beyond the 
     particular citizens targeted to untold number of other 
     Americans who may be intimidated.

       Abuse thrives on secrecy. Obviously, public disclosure of 
     matters such as the names of intelligence agents or the 
     technological details of collection methods is inappropriate. 
     But in the field of intelligence, secrecy has been extended 
     to inhibit review of the basic programs and practices 
       Those within the Executive branch and the Congress who 
     would exercise their responsibilities wisely must be fully 
     informed. The American public, as well, should know enough 
     about intelligence activities to be able to apply its good 
     sense to the underlying issues of policy and morality.
       Knowledge is the key to control. Secrecy should no longer 
     be allowed to shield the existence of constitutional, legal 
     and moral problems from the scrutiny of all three branches of 
     government or from the American people themselves.

  These words I wish I could claim them as my own. These are words that 
were written some 31 years ago by Frank Church, in a committee that 
initiated the idea of FISA. They talked about the problems they had 
worked on that gave birth to this legislation we are dealing with 
today--some 30 changes later after some 28 years. But they are words to 
live by. They would fit almost any time, to strike that balance between 
security and liberty.
  As I quoted earlier today, some 220 years ago, Benjamin Franklin 
warned the country that those who would sacrifice liberty for security 
deserve neither. In many ways, today we are being asked to make a 
choice. It was a false choice 220 years ago. It is still a false choice 
today. It is a false dichotomy. In fact, we are more secure when we 
secure our liberties, when we defend them and protect them. That is the 
nature of our society. It is what has given us great strength through 
these past more than 20 decades here and I believe will keep us more 
secure in the years ahead.
  It is true, technology is changing, and the means of causing us harm 
or injury are more sophisticated today; but these eternal transcendent 
rights we embrace as a nation, which each and every generation has been 
responsible for guarding, are no less important today than they were 
years ago.
  So the words of Frank Church and the committee members, Republican 
and Democratic, who signed this document some 31 years ago, are as true 
today. They are what caused me to stand here today for 8 or 9 hours. 
They are what caused me to stand here a year ago to speak out strongly 
against the Military Commissions Act and other such actions by this 
administration over the past number of years.
  I know it is not normal--certainly for this Member--to threaten to 
filibuster or to engage in extended debate, but I felt so strongly 
about this provision in this bill, this retroactive immunity, that I 
was determined to do everything I could to stop this legislation going 
forward with those provisions included. I am grateful we are going to 
move on to other legislation.
  We will return to this, apparently, in January. My hope is that 
between now and then we can resolve this matter, and that retroactive 
immunity will no longer be a part of this. We will not allow it. I 
don't know if it is possible. I hope it is. If not, I will be back here 
engaging in the same effort to stop this legislation going forward with 
those provisions included.
  I am grateful to my colleagues, to Senator Kennedy, Senator Feingold, 
Senator Wyden, Senator Bill Nelson, Senator Boxer, who spoke earlier 
today, to Senator Sherrod Brown, who spoke, as well, about this 
legislation, and others who came to the floor to express their concerns 
principally about this provision.
  Again, I thank the majority leader, Senator Reid, who certainly gave 
me the opportunity to continue this effort. He has at his disposal 
procedures he could engage in, and he did not utilize those. He allowed 
this Senator to make his case to extend this debate to 30 hours, which 
is what I was prepared to do, then offer amendments to engage in 
extended debate if necessary to stop this from going forward. That, 
apparently, will not be necessary now, to engage in those efforts. So I 
am grateful to my colleagues for giving me this opportunity to make my 
case and hopeful that when we pass FISA legislation, it will not 
include retroactive immunity. That would be the wrong thing to do, a 
dangerous precedent, and I hope my

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colleagues on both sides will come to that conclusion.
  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. 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.