[Congressional Record: December 17, 2007 (Senate)]
[Page S15710-S15767]
FOREIGN INTELLIGENCE SURVEILLANCE ACT--MOTION TO PROCEED
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
purposes.
The ACTING PRESIDENT pro tempore. The Republican leader is
recognized.
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
ordered.
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
work.
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
past.
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
protections.
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
reforms.
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
recognized.
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.
persons.
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
why.
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
unwarranted--literally.
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
they
[[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
shocking:
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
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.
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
nature.
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
Government.
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
policy.
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
privacy.
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
enough?
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
abuses.
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
fear.
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
grounded:
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
how
[[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
leaps.
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
Republic!
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
ruled:
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
shameful:
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
laughed.
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
million.
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
all.
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
importance,
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
information.
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
resistance.
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.
Sincerely,
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
committees.
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.
Sincerely,
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
companies.
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.
Sincerely,
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
meeting.
Thank you for your cooperation with the Department in this
matter. Please feel free to contact me if you have any
questions.
Sincerely,
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
oversight.''
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. . . .
Including:
. . . testimony of subordinate DOJ employees, such as line
attorneys and FBI field agents, was taken. . . .
Again:
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
record.
[[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
courtesy.
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
Committee.
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
floor.
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
whatsoever.
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
it.
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
minutes.
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
thing.
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
bill.
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
hamstrung.
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
substitute.
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
amendment.
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
close?
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.]
YEAS--76
Akaka
Alexander
Barrasso
Baucus
Bayh
Bennett
Bingaman
Bond
Bunning
Burr
Byrd
Carper
Casey
Chambliss
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Crapo
Dole
Domenici
Dorgan
Durbin
Ensign
Enzi
Feinstein
Graham
Grassley
Hagel
Hatch
Hutchison
Inouye
Isakson
Johnson
Kennedy
Klobuchar
Kohl
Kyl
Landrieu
Leahy
Levin
Lincoln
Lott
Lugar
Martinez
McCaskill
McConnell
Mikulski
Murkowski
Murray
Nelson (FL)
Nelson (NE)
Pryor
Reed
Reid
Roberts
Rockefeller
Salazar
Schumer
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Tester
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
NAYS--10
Boxer
Brown
Cantwell
Cardin
Dodd
Feingold
Harkin
Kerry
Menendez
Wyden
NOT VOTING--14
Allard
Biden
Brownback
Clinton
Coburn
Craig
DeMint
Gregg
Inhofe
Lautenberg
Lieberman
McCain
Obama
Sanders
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
prepared----
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
result.
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
one.
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
right?
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
amendment.
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
want.
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
lightly.
I quote another Supreme Court Justice, one of my heroines, Sandra Day
O'Connor:
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
abroad.
``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
in.
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
duty.
I yield the floor.
The PRESIDING OFFICER (Mrs. Murray). The Senator from Rhode Island is
recognized.
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
recognition.
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
documents.
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
attacks.
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
lawful.
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
intelligence.
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
nation.''
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
Justice.
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
it.
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
years.
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,
standards.
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
intercepted.
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
attacks.
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
that.
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
amendment.
The PRESIDING OFFICER (Mr. Webb.) Without objection, it is so
ordered.
Mrs. FEINSTEIN. I thank the Senator from Connecticut for yielding to
me.
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
communications.
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
whatever.
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
bulwark.
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
law.
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
oversight.
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
1970s.
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
legislation:
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
history.
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
Executive.
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
learned.
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
proposal.
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
consequences.
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
wiretapping.
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
law.
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
administration.
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
comments?
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
bill.
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
cloture.
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
version.
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
fact.
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
citizens
[[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
earned?
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
little.''
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
overreach.
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
right''?
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
issue.
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
litigation.
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
exist.
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
people.
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
citizens.
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
gut.
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
companies.
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
cases.
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
overseas.
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
USA?
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
law.
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
vote.
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
forward.
Now, I am not alone in this view, as the Executive Office of the
President today released a statement of administration policy which
stated:
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
Record.
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
purposes
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
manner.
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
Nation.
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
reviewed.
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
legislation.
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
floor.
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
flexibility.
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
intelligence.
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
country.
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
complex.
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
received.''
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
doubt.
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
States.
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
recognized.
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
right.
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
powers.
I must tell my colleagues that the telecommunications carriers that
cooperated with the Government, believing that the authority was there
and
[[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
power.
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
constitutionality.
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
Americans.
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
bill.
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
point.
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
overseas.
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
enough.
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
unconstitutional?
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
monitored.
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
unfair.
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
step.
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
matter.
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,
simultaneously.
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
correct?
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
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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
service.
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
recourse.
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
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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
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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
witnesses.
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
Court?
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
one.
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
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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
leaking.
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
ordered.
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
difficult.
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
floor?
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
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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
powers.
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
Connecticut.
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
Ohio.
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
terrorism.
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
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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
improvements.
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
Americans.
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
conduct.
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
accountability.
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
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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
process.
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.
Sincerely,
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
here.
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
nature.
____
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
themselves.
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
[[Page S15767]]
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.
____________________
[Congressional Record: December 17, 2007 (Senate)]
[Page S15772-S15781]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr17de07-125]
TEXT OF AMENDMENTS
SA 3857. Mrs. FEINSTEIN (for herself, Mr. Rockefeller, Mr. Leahy, and
Mr. Nelson of Florida) submitted an amendment intended to be proposed
by her to the bill S. 2248, to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the provisions of
that Act, and for other purposes; which was ordered to lie on the
table; as follows:
Strike section 102, and insert the following:
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND
INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED
``Sec. 112. (a) Except as provided in subsection (b), the
procedures of chapters 119, 121 and 206 of title 18, United
States Code, and this Act shall be the exclusive means by
which electronic surveillance (as defined in section 101(f),
regardless of the limitation of section 701) and the
interception of domestic wire, oral, or electronic
communications may be conducted.
``(b) Only an express statutory authorization for
electronic surveillance or the interception of domestic,
wire, oral, or electronic communications, other than as an
amendment to this Act or chapters 119, 121, or 206 of title
18, United States Code, shall constitute an additional
exclusive means for the purpose of subsection (a).''.
(b) Offense.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
(1) in subsection (a), by striking ``authorized by
statute'' each place it appears in such section and inserting
``authorized by this Act, chapter 119, 121, or 206 of title
18, United States Code, or any express statutory
authorization that is an additional exclusive means for
conducting electronic surveillance under section 112.''; and
(2) by adding at the end the following:
``(e) Definition.--For the purpose of this section, the
term `electronic surveillance' means electronic surveillance
as defined in section 101(f) of this Act regardless of the
limitation of section 701 of this Act.''.
(c) Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2) of title
18, United States Code, is amended--
(A) in paragraph (a), by adding at the end the following:
``(iii) If a certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the specific statutory provision, and shall certify
that the statutory requirements have been met.''; and
(B) in paragraph (f), by striking ``, as defined in section
101 of such Act,'' and inserting ``(as defined in section
101(f) of such Act regardless of the limitation of section
701 of such Act)''.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by adding after the item
relating to section 111, the following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.''.
______
SA 3858. Mrs. FEINSTEIN (for herself and Mr. Nelson of Florida)
submitted an amendment intended to be proposed by her to the bill S.
2248, to amend the Foreign Intelligence Surveillance Act of 1978, to
modernize and streamline the provisions of that Act, and for other
purposes; which was ordered to lie on the table; as follows:
On page 46, strike line 5 and all that follows through page
47, line 16, and insert the following:
(6) Foreign intelligence surveillance court.--The term
``Foreign Intelligence Surveillance Court'' means the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)).
[[Page S15773]]
SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.
(a) Limitations.--
(1) In general.--Notwithstanding any other provision of
law, and subject to paragraph (2), a covered civil action
shall not lie or be maintained in a Federal or State court,
and shall be promptly dismissed, if the Attorney General
certifies to the court that--
(A) the assistance alleged to have been provided by the
electronic communication service provider was--
(i) in connection with an intelligence activity involving
communications that was--
(I) authorized by the President during the period beginning
on September 11, 2001, and ending on January 17, 2007; and
(II) designed to detect or prevent a terrorist attack, or
activities in preparation for a terrorist attack, against the
United States; and
(ii) described in a written request or directive from the
Attorney General or the head of an element of the
intelligence community (or the deputy of such person) to the
electronic communication service provider indicating that the
activity was--
(I) authorized by the President; and
(II) determined to be lawful; or
(B) the electronic communication service provider did not
provide the alleged assistance.
(2) Determination.--
(A) In general.--The dismissal of a covered civil action
under paragraph (1) shall proceed only if, after review, the
Foreign Intelligence Surveillance Court determines that--
(i) the written request or directive from the Attorney
General or the head of an element of the intelligence
community (or the deputy of such person) to the electronic
communication service provider under paragraph (1)(A)(ii)
complied with section 2511(2)(a)(ii)(B) of title 18, United
States Code;
(ii) the assistance alleged to have been provided was
undertaken in good faith by the electronic communication
service provider pursuant to a demonstrable reason to believe
that compliance with the written request or directive under
paragraph (1)(A)(ii) was permitted by law; or
(iii) the electronic communication service provider did not
provide the alleged assistance.
(B) Procedures.--In reviewing certifications and making
determinations under subparagraph (A), the Foreign
Intelligence Surveillance Court shall--
(i) review and make any such determination en banc; and
(ii) permit any plaintiff and any defendant in the
applicable covered civil action to appear before the Foreign
Intelligence Surveillance Court--
(I) pursuant to section 103 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803); and
(II) as necessary to serve justice.
(C) Certification.--If the Attorney General submits a
certification under paragraph (1), the court to which that
certification is submitted shall--
(i) immediately transfer the matter to the Foreign
Intelligence Surveillance Court for a determination regarding
the questions described in subparagraph (A); and
(ii) stay further proceedings in the relevant litigation,
pending the determination of the Foreign Intelligence
Surveillance Court.
______
SA 3859. Mr. CARDIN submitted an amendment intended to be proposed by
him to the bill S. 2248, to amend the Foreign Intelligence Surveillance
Act of 1978, to modernize and streamline the provisions of that Act,
and for other purposes; which was ordered to lie on the table; as
follows:
On page 29, line 4, strike ``2013.'' and insert the
following: ``2011. Notwithstanding any other provision of
this Act, the transitional procedures under paragraphs (2)(B)
and (3)(B) of section 302(c) shall apply to any order,
authorization, or directive, as the case may be, issued under
title VII of the Foreign Intelligence Surveillance Act of
1978, as amended by this Act, in effect on December 31,
2011.''.
______
[...]
SA 3862. Mr. LEAHY (for himself and Mr. Kennedy) submitted an
amendment intended to be proposed by him to the bill S. 2248, to amend
the Foreign Intelligence Surveillance Act of 1978, to modernize and
streamline the provisions of that Act, and for other purposes; which
was ordered to lie on the table; as follows:
On page 43, after line 21, add the following:
SEC. 111. REVIEW OF PREVIOUS ACTIONS.
(a) Definitions.--In this section:
(1) Appropriate committees of congress.--The term
``appropriate committees of Congress'' means--
(A) the Select Committee on Intelligence and the Committee
on the Judiciary of the Senate; and
(B) the Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.
(2) Terrorist surveillance program and program.--The terms
``Terrorist Surveillance Program'' and ``Program'' mean the
intelligence activity involving communications that was
authorized by the President during the period beginning on
September 11, 2001, and ending on January 17, 2007.
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the
Office of the Director of National Intelligence, the
Department of Justice, the National Security Agency, and any
other element of the intelligence community that participated
in the Terrorist Surveillance Program shall work in
conjunction to complete a comprehensive review of, with
respect to the oversight authority and responsibility of each
such Inspector General--
(A) all of the facts necessary to describe the
establishment, implementation, product, and use of the
product of the Program;
(B) the procedures and substance of, and access to, the
legal reviews of the Program;
(C) communications with, and participation of, individuals
and entities in the private sector related to the Program;
(D) interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program;
and
(E) any other matters identified by any such Inspector
General that would enable that Inspector General to report a
complete description of the Program, with respect to such
element.
(2) Cooperation.--Each Inspector General required to
conduct a review under paragraph (1) shall--
(A) work in conjunction, to the extent possible, with any
other Inspector General required to conduct such a review;
and
(B) utilize to the extent practicable, and not
unnecessarily duplicate or delay, such reviews or audits that
have been completed or are being undertaken by any such
Inspector General or by any other office of the Executive
Branch related to the Program.
(c) Reports.--
(1) Preliminary reports.--Not later than 60 days after the
date of the enactment of this Act, the Inspectors General of
the Office of the Director of National Intelligence, the
Department of Justice, and the National Security Agency, in
conjunction with any other Inspector General required to
conduct a review under subsection (b)(1), shall submit to the
appropriate committees of Congress an interim report that
describes the planned scope of such review.
[[Page S15774]]
(2) Final report.--Not later than 1 year after the date of
the enactment of this Act, the Inspectors General required to
conduct such a review shall submit to the appropriate
committees of Congress, to the extent practicable, a
comprehensive report on such reviews that includes any
recommendations of any such Inspectors General within the
oversight authority and responsibility of any such Inspector
General with respect to the reviews.
(3) Form.--A report submitted under this subsection shall
be submitted in unclassified form, but may include a
classified annex. The unclassified report shall not disclose
the name or identity of any individual or entity of the
private sector that participated in the Program or with whom
there was communication about the Program.
(d) Resources.--
(1) Expedited security clearance.--The Director of National
Intelligence shall ensure that the process for the
investigation and adjudication of an application by an
Inspector General or any appropriate staff of an Inspector
General for a security clearance necessary for the conduct of
the review under subsection (b)(1) is carried out as
expeditiously as possible.
(2) Additional legal and other personnel for the inspectors
general.--An Inspector General required to conduct a review
under subsection (b)(1) and submit a report under subsection
(c) is authorized to hire such additional legal or other
personnel as may be necessary to carry out such review and
prepare such report in a prompt and timely manner. Personnel
authorized to be hired under this paragraph--
(A) shall perform such duties relating to such a review as
the relevant Inspector General shall direct; and
(B) are in addition to any other personnel authorized by
law.
______
SA 3863. Mr. KENNEDY submitted an amendment intended to be proposed
by him to the bill S. 2248, to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the provisions of
that Act, and for other purposes; which was ordered to lie on the
table; as follows:
On page 6, line 20, strike ``and'' and all that follows
through page 19, line 16, and insert the following:
``(3) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States;
and
``(4) shall not intentionally acquire any communication as
to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United
States.
``(c) United States Persons Located Outside the United
States.--
``(1) Acquisition inside the united states of united states
persons outside the united states.--An acquisition authorized
by subsection (a) that occurs inside the United States may
not target a United States person except in accordance with
the provisions of title I.
``(2) Acquisition outside the united states of united
states persons outside the united states.--An acquisition by
an electronic, mechanical, or other surveillance device
outside the United States may not intentionally target a
United States person reasonably believed to be outside the
United States to acquire the contents of a wire or radio
communication sent by or intended to be received by that
United States person under circumstances in which a person
has a reasonable expectation of privacy and a warrant would
be required for law enforcement purposes if the technique
were used inside the United States unless--
``(A) the Attorney General or the Attorney General's
designee submits an application to the Foreign Intelligence
Surveillance Court that includes a statement of the facts and
circumstances relied upon by the applicant to justify the
Attorney General's belief that the target of the acquisition
is a foreign power or an agent of a foreign power; and
``(B) the Foreign Intelligence Surveillance Court--
``(i) finds on the basis of the facts submitted by the
applicant there is probable cause to believe that the target
of the electronic surveillance is a foreign power or an agent
of a foreign power; and
``(ii) issues an ex parte order as requested or as modified
approving the targeting of that United States person.
``(3) Procedures.--
``(A) Submittal to foreign intelligence surveillance
court.--Not later than 30 days after the date of the
enactment of this title, the Attorney General shall submit to
the Foreign Intelligence Surveillance Court the procedures to
be utilized in determining whether a target reasonably
believed to be outside the United States is a United States
person.
``(B) Approval by foreign intelligence surveillance
court.--The procedures submitted under subparagraph (A) shall
be utilized as described in that subparagraph only upon the
approval of the Foreign Intelligence Surveillance Court.
``(C) Utilization in targeting.--Any targeting of persons
authorized by subsection (a) shall utilize the procedures
submitted under subparagraph (A) as approved by the Foreign
Intelligence Surveillance Court under subparagraph (B).
``(d) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (g);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (e) and (f).
``(e) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (i).
``(f) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt, consistent with the requirements of section
101(h), minimization procedures for acquisitions authorized
under subsection (a).
``(2) Persons in the united states.--The minimization
procedures required by this subsection shall require the
destruction, upon recognition, of any communication as to
which the sender and all intended recipients are known to be
located in the United States, a person has a reasonable
expectation of privacy, anda warrant would be required for
law enforcement purposes, unless the Attorney General
determines that the communication indicates a threat of death
or serious bodily harm to any person.
``(3) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (i).
``(g) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States, and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States, and that
such procedures have been approved by, or will promptly be
submitted for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (i);
``(ii) the procedures referred to in clause (i) are
consistent with the requirements of the fourth amendment to
the Constitution of the United States and do not permit the
intentional targeting of any person who is known at the time
of acquisition to be located in the United States, or result
in the intentional acquisition of any communication as to
which the sender and all intended recipients are known at the
time of the acquisition to be located in the United States;
``(iii) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(iv) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h);
``(II) require the destruction, upon recognition, of any
communication as to which the sender and all intended
recipients are known to be located in the United States, a
person has a reasonable expectation of privacy, and a warrant
would be required for law enforcement purposes, unless the
Attorney General determines that the communication indicates
a threat of death or serious bodily harm to any person; and
``(III) have been approved by, or will promptly be
submitted for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (i);
``(v) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vi) the acquisition does not constitute electronic
surveillance, as limited by section 701; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.
[[Page S15775]]
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (i).
``(h) Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section or is otherwise unlawful. If the
judge does not modify or set aside the directive, the judge
shall immediately affirm such directive, and order the
recipient to comply with the directive. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(D) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
shall issue an order requiring the electronic communication
service provider to comply with the directive if the judge
finds that the directive was issued in accordance with
paragraph (1), meets the requirements of this section, and is
otherwise lawful. The judge shall provide a written statement
for the record of the reasons for a determination under this
paragraph.
``(D) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(E) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition with the Foreign Intelligence Surveillance Court of
Review for review of the decision issued pursuant to
paragraph (4) or (5) not later than 7 days after the issuance
of such decision. The Court of Review shall have jurisdiction
to consider such a petition and shall provide a written
statement for the record of the reasons for a decision under
this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). The
record for such review shall be transmitted under seal to the
Supreme Court of the United States, which shall have
jurisdiction to review such decision.
``(i) Judicial Review.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (d) or targeting and minimization procedures
adopted pursuant to subsections (e) and (f).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (g) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (e) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (f) to assess
whether such procedures--
``(A) meet the definition of minimization procedures under
section 101(h); and
``(B) require the destruction, upon recognition, of any
communication as to which the sender and all intended
recipients are known to be located in the United States, a
person has a reasonable expectation of privacy, and a warrant
would be required for law enforcement purposes, unless the
Attorney General determines that the communication indicates
a threat of death or serious bodily harm to any person.
______
[...]
SA 3866. Mr. SCHUMER submitted an amendment intended to be proposed
by him to the bill S. 2248, to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the provisions of
that Act, and for other purposes; which was ordered to lie on the
table; as follows:
On page 43, after line 21, add the following:
SEC. 111. STANDING AND CAUSE OF ACTION FOR PERSONS WHO
REFRAIN FROM COMMUNICATIONS BY REASON OF FEAR
OF ELECTRONIC SURVEILLANCE.
(a) Standing and Cause of Action.--A United States citizen
shall have standing to bring a cause of action for damages
(as specified in subsection (d)) or declaratory or injunctive
relief against the United States if that individual has
refrained or is refraining
[[Page S15776]]
from communications because of a reasonable fear that such
communications would be the subject of electronic
surveillance conducted without an order issued in accordance
with title I of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1801 et seq.) or a joint authorization by the
Attorney General and the Director of National Intelligence
issued in accordance with title VII of the Foreign
Intelligence Surveillance Act of 1978, as added by this Act,
under a claim of Presidential authority under either the
Constitution of the United States or the Authorization for
Use of Military Force (Public Law 107-40; 115 Stat. 224; 50
U.S.C. 1541 note).
(b) Rules Applicable to Actions.--In any civil action filed
under subsection (a), the following shall apply:
(1) The action shall be filed in the United States District
Court for the District of Columbia and shall be heard by a 3-
judge court convened under section 2284 of title 28, United
States Code.
(2) A copy of the complaint shall be delivered promptly to
the Attorney General, the Clerk of the House of
Representatives, and the Secretary of the Senate.
(3) A reasonable fear that communications will be the
subject of electronic surveillance may be established by
evidence that the person bringing the action--
(A) has had and intends to continue to have regular
communications from the United States to one or more persons
in Afghanistan, Iraq, Pakistan, or any country designated as
a state sponsor of terrorism in the course of that person's
paid employment doing journalistic, academic, or other
research pertaining to terrorism or terrorist groups; or
(B) has engaged and intends to continue to engage in one or
more commercial transactions with a bank or other financial
institution in a country described in subparagraph (A).
(4) The procedures and standards of the Classified
Information Procedures Act (18 U.S.C. App.) shall apply to
the action.
(5) A final decision in the action shall be reviewable only
by appeal directly to the Supreme Court of the United States.
Such appeal shall be taken by the filing of a notice of
appeal within 10 days, and the filing of a jurisdictional
statement within 30 days, after the entry of the final
decision.
(6) It shall be the duty of the United States District
Court for the District of Columbia and the Supreme Court of
the United States to advance on the docket and to expedite to
the greatest possible extent the disposition of the action
and appeal.
(c) Mootness.--In any civil action filed under subsection
(a) for declaratory or injunctive relief, a defendant's claim
that the surveillance activity has been terminated may not be
grounds for dismissing the case, unless the Attorney General
files a declaration under section 1746 of title 28, United
States Code, affirming that--
(1) the surveillance described in subsection (a) has
ceased; and
(2) the executive branch of the Federal Government does not
have legal authority to renew the surveillance described in
subsection (a).
(d) Limitation of Damages.--In any civil action filed under
subsection (a), a prevailing plaintiff shall recover--
(1) damages for injuries arising from a reasonable fear
caused by the electronic surveillance described in subsection
(a) of not less than $50 and not more than $1000; and
(2) reasonable attorney's fees and other investigation and
litigation costs reasonably incurred relating to that civil
action.
(e) Severability.--If any provision of this section, or the
application thereof to any person or circumstances is held
invalid, the validity of the remainder of the Act, any such
amendments, and of the application of such provisions to
other persons and circumstances shall not be affected
thereby.
(f) Rules of Construction.--Nothing in this section may be
construed to--
(1) affect a cause of action filed before the date of
enactment of this Act;
(2) limit any cause of action available to a person under
any other provision of law, including the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.); or
(3) limit the relief that may be awarded under any other
provision of law, including the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.).
(g) Definition.--In this section, the term ``electronic
surveillance'' has the meaning given that term in section 101
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801).
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