[Congressional Record: January 25, 2008 (Senate)]
[Page S305]
FISA
Mr. McCONNELL. Mr. President, just one further observation with
regard to my friend's remarks.
The Bond-Rockefeller bill is exactly the way we ought to be doing our
business. It came out of the Intelligence Committee 13 to 2. It is
supported on a bipartisan basis. It is supported by the President of
the United States. We have a product that was carefully negotiated by
Senator Bond and Senator Rockefeller, approved by the Intelligence
Committee 13 to 2, and supported by the President of the United States.
That is my definition of a bipartisan accomplishment. Now the question
is, Can we finish the job and get a signature?
This is not about frightening the American people. The American
people should be frightened, and remember full well what happened on 9/
11. They also remember with gratitude that it has not happened again
for 6 years. The reason for it, obviously, is we have been on offense,
going after the terrorists where they are, and we have improved our
defense.
An integral part of protecting the homeland is the measure before us,
carefully crafted on a bipartisan basis, supported by the President of
the United States. If we want to finish the job and have a bipartisan
accomplishment that all of us can be proud of, the way to do that is to
pass this bill, send it to the House, urge them to take it up and pass
it, and send it to the President, who awaits it to affix his signature.
I yield the floor.
The ACTING PRESIDENT pro tempore. The majority leader is recognized.
Mr. REID. Mr. President, there is no question that Senator
Rockefeller and Senator Bond have worked hard on this legislation.
Also, we have had good work from Senator Leahy and Senator Specter of
the Judiciary Committee. Senator Rockefeller wants a piece of
legislation to pass very badly. He does not support cloture in this
effort that is going to take place on Monday because he believes the
bill needs to be changed. Just because there is a bill that comes out
of committee doesn't mean we shouldn't deal with it here on the floor.
Senator Rockefeller is not going to support cloture on this bill on
Monday. It is a decision he made, and he has made it because we have
not had the opportunity to do things to this piece of legislation that
he believes should happen. It is a rare piece of legislation that comes
out of one of these major committees that comes to the floor that
doesn't require some improvement.
So it is simply unfair to say that Senator Rockefeller and Senator
Bond's piece of legislation should go through as if it were written in
script on top of some big mountain. It was written in a committee room
with a lot of discussion and votes, and some of the amendments passed,
some didn't. It came to the floor. We all are happy it came to the
floor. But at this time, even Senator Rockefeller believes there should
be changes in it, and he will not support cloture, as he told me last
night, because he feels it has been handled so poorly by the minority
here on the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri is
recognized.
____________________
[Congressional Record: January 25, 2008 (Senate)]
[Page S305-S310]
FISA AMENDMENTS ACT OF 2007
Mr. BOND. Mr. President, we are on the FISA bill, I believe. Has the
bill been reported? Is it before us?
The ACTING PRESIDENT pro tempore. It has not yet been reported.
The clerk will report the pending business by title.
The legislative clerk read as follows:
A 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.
Pending:
Rockefeller/Bond amendment No. 3911, in the nature of a
substitute.
[[Page S306]]
Feingold/Dodd amendment No. 3909 (to amendment No. 3911),
to require that certain records be submitted to Congress.
Bond amendment No. 3916 (to amendment No. 3909), of a
perfecting nature.
Reid amendment No. 3918 (to the language proposed to be
stricken by Rockefeller/Bond amendment No. 3911), relative to
the extension of the Protect America Act of 2007.
Iraq
Mr. BOND. Mr. President, I wish to address the FISA bill. I also
commend our majority and minority leaders on their statements about the
lives that have been lost by our brave troops in Iraq and Afghanistan.[...]
FISA
It is now important to talk about FISA. I am glad we are on the
floor. I think, as the majority leader has said, all first-degree
amendments need to be filed by 1 o'clock this afternoon. We are
available to do business and we look forward to working with our
colleagues to see if we can make this happen in a timely fashion.
I believe it is important this morning, for the Record and for the
benefit of my colleagues and the American people, to clear up several
things mentioned in yesterday's consideration of the FISA bill. When I
say ``FISA,'' I mean the Foreign Intelligence Surveillance Act--the act
that authorizes the President and the intelligence community to use
electronic signals collection to get information on terrorist enemies
and other threats to the United States.
First, I will state the obvious. Yesterday, we had a very positive
result in the Senate. The Senate Judiciary Committee substitute to the
Senate Intelligence Committee bill failed on a clear vote. I believe
the Members of this body recognized it was a partisan, unworkable,
inadequate bill. It was written without any consultation with the
intelligence community or the lawyers who know how FISA works and how
signals intelligence is carried out. It was done without the
participation of any of the Republican members of the Judiciary
Committee, and it failed.
Chairman Rockefeller and I have, as has been said, a bipartisan bill
worked out over a number of months, as the occupant of the chair knows
so well. We worked long and hard. We didn't always agree, but we came
to a bill that passed 13 to 2.
There were two problems with the bill--a good idea but unworkable as
introduced. So we worked with the sponsors of that provision and had a
very good idea that we need to protect American citizens, when they are
abroad, from warrantless surveillance. It took 24, 25 pages to work out
the details for it. But I believe that provision we now have in the
managers' amendment, the pending amendment before us on this bill,
accomplishes the purposes all of us on the committee support.
I voted against the original proposal in the committee because I
didn't think it was workable, but we have fixed that, and I am proud to
support it.
These are the fixes Chairman Rockefeller and I put together, with the
help of Senator Wyden and the occupant of the chair, so we now have a
functional, working amendment. The drafting has been fixed, and I
believe we have a much better bill. We have an improvement over the
original FISA bill and the Protect America Act, which was a necessary
short-term extension that allowed the continuation of electronic
intercepts against foreign targets overseas, without having a court
order, which was absolutely necessary because the change in the
technology in electronic communications had put too many of the
overseas collections, which used to be outside the scope of FISA,
within the scope of FISA.
The Protect America Act had a lot of nasty things said about it
yesterday. They were all wrong. What the Protect America Act did not
do, however, involves two very important things the Senate Intelligence
Committee did. By a 13-to-2 vote, we added the protection for American
citizens overseas. It is very important. It added other protections as
well. It also said those companies, the carriers that may have worked
with the intelligence community in adopting or effectuating the
collection of signals intelligence against terrorists planning attacks
in the United States, should not be sued in civil court. That
provision--protecting any private sector entities that cooperated but
not Government officials from lawsuits--was necessary to end a string
of lawsuits brought by opponents of intelligence collection who want to
destroy the system, who seek money damages but who really seek to
harass and drive communication companies out of the business of
cooperating with intelligence officials.
If they are successful, if they can drive and harass and bludgeon
private sector entities from cooperating with intelligence officials,
then our country will be significantly less safe. Those of us who have
been on the Intelligence Committee heard the discussion that there are
threats that continue to be raised and that this world is still a
dangerous place. We need to be able to find out what our enemies are
planning. We cannot have the entire Nation as fortified as the Capitol
grounds and the White House grounds. We have a free and open country.
Our only hope of being safe is to identify planned terrorist attacks
before they occur.
So what we have before us today is a workable, bipartisan bill. It is
supported by the Director of National Intelligence. I will refer to
Admiral McConnell as the DNI, the head of that agency, and the
President would sign it into law. We started with a solid bipartisan
update to FISA that is needed to protect the country to increase civil
liberty protections and protections for the privacy rights of
Americans. We should now all heed the first law of responsible
leadership, and that is, first and foremost, do no harm with any
amendments to be considered in the bill.
I hope my colleagues will think long and hard before offering
amendments, to make sure they have no unintended consequences and that
they do no harm.
One good way to do that is to talk with the intelligence community.
Talk with the office of the DNI, talk with the Department of Justice.
If you have a good idea, talk with them. Maybe there is a way your
objectives can be achieved without interfering with the ability to
collect information. If you don't, if things are offered that would
significantly impair our intelligence community's ability to collect
the vitally important intelligence we need to have, then I will have to
oppose it and I will urge my colleagues to oppose it.
We constructed a delicate, bipartisan compromise that is a good bill.
I hope we will refrain from trying to deconstruct it or try to make the
bill worse in any way before final passage. The American people want to
have well-regulated intelligence collection that keeps the country
safe, and they deserve no less.
That brings us to where we are today. Senator Feingold yesterday
offered an amendment over which the Department of Justice expressed
real concerns. I understand those concerns, so I offered a second-
degree amendment that gives the Senator from Wisconsin three-quarters
of what he sought, yet refrains from mandating that the executive
branch provide Congress with
[[Page S308]]
pleadings containing very sensitive sources and methods submitted to
the FISA Court. I will refer to that court as the FISC, the Foreign
Intelligence Surveillance Court.
Three months ago in a committee compromise, I agreed to include the
provisions of the Senator from Wisconsin in our bill, which calls for
the opinions, orders, and decisions of the FISC prospectively, and in
my second-degree amendment, I propose to go further and agree with him
to accept his mandate to require the community to go back 5 years to
dig up all the past orders and opinions which are of significant
consequence but go back and find all those and give them to us.
We have received in the Intelligence Committee, on a semiannual
basis, the reports of FISC, orders and opinions of significance, and
they have been available for review by our staff for each 6-month
period. But we will order them to go back and provide them. I am not
sure what he is digging for, but I think we are willing to work with
him. It will be a burden on the community, but I think that is
information that might arguably be useful to those of us with oversight
responsibility.
I am not willing to agree to mandating that pleadings be turned over,
and my second-degree amendment eliminates them from his mandate. It
also stipulates that this mandate would be levied with due regard to
sensitive sources and methods.
Even though I believe this mandate for tranches of documents,
truckloads perhaps, puts a tremendous burden on officials in the
Department who have already given us semiannual reviews, since now they
will have to go back and find, produce, screen, redact, and submit them
to Congress, I am willing to work with the Senator from Wisconsin and
others to include them up to the point of pleadings. I hope this will
be viewed as a reasonable compromise.
Regrettably, instead of working with me on this issue, the Senator
from Wisconsin attacked my efforts to reach a compromise saying ``a
ridiculous notion and disrespectful of the United States Congress.'' I
was accused of ``hiding behind a tragedy in this country to make
arguments that have no merit'' and trying to help the intelligence
community ``prevent the Members of Congress from seeing the pleadings
provided to an article III court.''
These insinuations are not only inaccurate, but I believe they come
close to violating debate rule XIX of the Senate, which says:
No Senator in debate shall, directly or indirectly, by any
form of words impute to another Senator or to other Senators
any conduct or motive unworthy or unbecoming a Senator.
I do not believe the accusations against me were appropriate in the
debate. They only underscore the divisive and partisan intentions
behind some of the efforts we are seeing on the floor, and I hope we
can avoid future such accusations.
I will restate for the record my reasons for eliminating pleadings
from the required submission to the intelligence communities. These are
not policy documents, policy of which the Intelligence Committee said:
We don't like the policy of where you are going. These are not broad
issues for legislative implementation. They are detailed analyses of
sources and methods for collecting intelligence. They are submitted to
the article III judge sitting at that time as the FISC judge to provide
a basis for a warrant based on probable cause to allow electronic
surveillance of persons within the United States, U.S. persons.
It is possible those pleadings would include, No. 1, the name or
other identifying features of the sensitive sources who provided the
intelligence information they set forth. That could risk getting
somebody killed. They could provide the identification and location of
the collection facility. They could provide information on the means of
collection. They would obviously have to provide information on the
target and other relevant information.
In the intelligence business, these are the ultimate sources and
methods. They are highly classified because, if they were to leak out,
there would be very serious harm done to individuals and perhaps even
locations where collection occurs.
So I believe the intelligence community has a legitimate reason for
saying we are not going to share the sources and methods that identify
the names of the individuals, the sources. I do not see that is a
necessary element of our oversight, to know Joe Doe was the one who
gave us the information on Ralph Roe and they needed to get the
information through facility X using means Y. That is kept at a closely
compartmental level.
We have already in the bill that Senator Rockefeller and I have been
able to forge with great bipartisan support a solid compromise piece of
legislation, and that is the model on which we should move ahead.
Today we have heard again some accusations that the minority side--my
side--is stalling this important legislation. A quick review of the
FISA legislation history over the past year is in order.
The President declared he was bringing the surveillance program under
FISA in January of 2007, 1 year ago. In April of last year, because of
some changes in court orders, the DNI asked us to modernize FISA so it
would be compatible with new technology. On May 1 of last year, he
testified in open session before our committee and again he asked us to
modernize FISA. Shortly thereafter, we were informed in the
Intelligence Committee about the ruling of the FISC that altered the
collection ability of that program, to the point where our intelligence
agencies were shut down with regard to vital intelligence collection
that would protect us.
What was the response of our Intelligence Committee? Regrettably,
nothing. We did absolutely nothing. I urged that we act, that we move
forward on it, but our committee and Congress did nothing.
Through May, June, and July of last year, the DNI's pleadings to
modernize FISA grew stronger. After he came before our committee in
May, he came before Members of the Senate in closed session in our
confidential, secure hearing room. Over 40 Members were there, and he
told us in July it was absolutely essential we move, that everybody
said it was essential we move. We did not move until the final week,
and we still did not have a committee hearing.
I brought the DNI's bill, the Protect America Act, to the floor on
Wednesday, before we had a vote on it on Friday. There were comments
yesterday about how partisan and secret and one-sided the negotiations
were, but it was not our efforts for the support of the DNI that were
secret and one-sided. There were secret negotiations on the majority
side prior to the passage of the Protect America Act.
Several committee chairmen got together, shutting out Republicans and
shutting out members of the Intelligence Committee from any
consideration of their proposals. They were not vetted with the
Director of National Intelligence.
The DNI has been accused of going back on his word. I managed to get
in finally at the end of some of those negotiations, and I can tell you
that the DNI said he will go back and check with his lawyers on these
issues. He did not agree to incorporate the changes that were suggested
and, as suspected, when he viewed some of the proposals, he found they
were unworkable.
We never saw the bill the committee leaders on the majority side
proposed to offer until less than an hour before it appeared on the
Senate floor--before we were voting, actually, when it appeared on the
Senate floor.
During that time, the majority and minority members of the
Intelligence Committee asked me for more information about the Protect
America Act. I had a session in my office for members of the committee,
bipartisan, going over with the DNI what the details of the Protect
America Act were.
Fortunately, on a bipartisan basis, we approved the Protect America
Act. It was a stopgap. It was meant to serve for 6 months, but it got
us back in the business of collecting vital signals intelligence. That
is where we needed to be. We were not there.
That was on August 3. Fortunately, on August 4, the House passed the
bill, and on August 5, the President signed it, and we were back in
business collecting information on new targets who were coming up on
our screen.
Because of the need to add a 6-month sunset, which I agreed with all
parties on both sides was a good idea, that 6-month sunset expires in 1
more week.
[[Page S309]]
It expires next Friday. Knowing that this law would soon expire, when
the Senate returned from the August recess in September, the
Intelligence Committee began working on a new FISA bill, and after 6
weeks of constant work, deliberations, compromise, extensive
discussions among staff, with staff, the members, with the DNI--and the
occupant of the chair knows how much time and effort went into that--we
produced the carefully crafted compromised legislation before us today
on a 13-to-2 vote out of the committee.
This is a model for the law we should pass in the Senate, a
bipartisan product. The majority leader tried to bring up this bill in
December before the recess, and I commend him for it. But majority
Senators filibustered the bill.
Make no mistake about it, the majority stalled FISA last month and
filibustered the bill. At that time, the majority leader made a
commendable plea to his colleagues. He stated any amendment offered to
this bill, in view of its delicate nature and the bipartisan compromise
it represents, should be required to meet a 60-vote threshold to clear
any procedural hurdles in the Senate. This would also ensure it
remained a bipartisan product.
If we look at the history of the important legislation we passed, it
passed this past year with 60 votes--60 votes--to ensure there will be
a bipartisan bill. Neither party can pass something alone, without
bipartisan compromise--getting 60 votes. The Protect America Act
required 60 votes: That is how it was brought to the floor. The
partisan majority committee leader's bill came to the floor with a 60-
vote requirement and it failed. We got the Protect America Act by
meeting the 60-vote threshold.
Sixty votes, for those who may be following this elsewhere, is what
is needed to invoke cloture to shut off a filibuster, but it is a good
principle when you have a very contentious, important, and technical
bill.
I commended the majority leader for his leadership and agree
wholeheartedly with him now. In fact, if he were able to follow through
with that offer now, then we would have already passed FISA last night.
The fact is there is a majority of Senators who will not give their
consent for such an agreement. They would prefer to deconstruct the
Senate Intelligence Committee compromise and, by simple majority vote,
transform the bill before us into a partisan product, thus gutting the
bipartisan support--and the DNI's support, I would add--in this
important legislation. That is little bit shortsighted, I believe.
If a majority can be mustered to undo the important compromises
worked out with the intelligence community, with the DNI, you can go
through the act of passing the bill, but it is not going to be signed,
and the monkey is going to be back on our back. We have an opportunity
to pass a bill here that can be signed into law to keep our country
safe. If we want to be in the situation where we were last summer,
where our intelligence community was effectively deaf and blind to
terrorist threats, then go ahead and tear up this bill, take it apart,
leave it with no support from the intelligence community. And, by
definition, if it is not supported by the intelligence community, it
will not be signed into law by the President.
I am asking that we go back to the procedure we followed before in
passing the Protect America Act, that we used in passing other
important pieces of legislation, and make it a bipartisan effort. The
people of this country are crying out for bipartisanship. We got the
Protect America Act on a bipartisan basis. We passed a bill out of the
Senate committee that far exceeded the 60-percent test. We need to deal
with this bill under the same rules. Gutting the bill with a bare
majority, and plurality, as could happen under the current situation,
is a bad approach. I say to my colleagues that if they can agree to a
60-vote threshold for all amendments offered, then we can start voting
on any and all of them right now, and we will go through them. There
are some very important amendments, and there are very good arguments
for those amendments. I hope my arguments on the other side are better.
But we have to deal with this on a 60-vote basis. What I am not willing
to do right now, and our minority leader is not and our side of the
aisle is not, is to allow this bipartisan product to be dismantled on
the Senate floor by partisan efforts that make FISA unworkable, loses
the DNI's support because it won't work, and thus the President's
signature. It makes for good politics but it fails to protect America.
If the majority will work with us, then we are happy to have any and
all amendments. I know the leaders may still come up with an agreement
of that sort, but barring that, I don't see a way around this because
we are not going to accept, by majority vote, a jumbled-up structure
that leaves the intelligence community without the ability effectively,
efficiently, and within proper constitutional and statutory
restrictions to collect the intelligence we need to keep this country
safe. We have to have a good bill. We have incorporated far more
protections in the Senate substitute than have ever been in FISA
before, and I think those of us on the Intelligence Committee, the
occupant of the chair, can take great credit for protections we have
added.
National security is not red or white, it is red, white, and blue.
The blues and the reds need to work together on this, passing a product
the DNI supports so the President will sign it into law. Anything else
and we are not helping the country. We are ready to consider
amendments; we simply don't want to see the bill destroyed through
partisan ploys.
Mr. President, seeing no other Senators present, I suggest the
absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. CHAMBLISS. Mr. President, I would inquire as to what the pending
business is before the Senate.
The ACTING PRESIDENT pro tempore. S. 2248, the Foreign Intelligence
Surveillance Amendments Act.
Mr. CHAMBLISS. I thank the Chair, and I rise to support the managers'
amendment on this piece of legislation as proposed by Chairman
Rockefeller and Vice Chairman Bond. This is the result of a bipartisan
discussion which included the Office of Director of National
Intelligence and the Department of Justice. I commend Senator
Rockefeller and Senator Bond on drafting this complicated yet critical
piece of legislation.
The Senate has had a healthy debate while considering the Judiciary
Committee's substitute amendment. I was pleased to see a majority of
the Senate reject that bill, and I hope the Senate can now move past
that flawed bill rather than offering a number of amendments which
contain fragments of it. There is no benefit to rehashing the same
points in the Senate bill that was just handily tabled versus the
Rockefeller-Bond compromise piece of legislation that came out of the
Senate Intelligence Committee.
The Director of National Intelligence, the National Security Agency,
and the Department of Justice have stated their opposition to a number
of proposed amendments which were part of the failed Judiciary
Committee's substitute. The DNI has made it clear he would recommend to
the President that he veto this legislation if it does not contain
immunity for communication carriers, and rightly so. Some Members
offered amendments to strike title II from the managers' amendment or
to substitute the Government as the defendant in these lawsuits.
But substitution will not give the carriers protection, nor will it
protect our national security. The plaintiffs can still seek documents
and other evidence from them through the discovery process at trial.
This risks exposing our intelligence sources and methods, and there is
simply no doubt about that fact.
The Government can assert the states secrets privilege, but the
ongoing litigation has shown that courts reject this theory. Even the
FISA Court, which operates in secret and handles classified
information, is not suited to handle these cases. The FISA Court
primarily reviews ex parte requests and was not meant to hear regular
trials.
[[Page S310]]
The members of the FISA Court are sitting district court judges and
have their own full dockets.
The risk of unnecessarily exposing some of our most sensitive
collection if litigation continues is too great. The best remedy is to
provide immunity to the telecommunication providers as the managers'
amendment does. Other amendments propose unnecessary additions to
provisions already included in the managers' amendment. For example,
the managers' amendment contains a 6-year sunset and an exclusivity
provision. Yet amendments have been offered to make this legislation
expire in 2 years or 4 years.
Additionally, an amendment has been offered to state that absent some
other expressed order from Congress, FISA and title XVIII are the
exclusive means to conduct electronic surveillance. This would require
Congress to pass a law authorizing the President to conduct electronic
surveillance after an attack on our country.
What if Congress were not able to meet, let alone agree on language
authorizing electronic surveillance after an attack on our country?
This amendment ignores longstanding debate regarding article I and
article II powers, a debate the courts have dodged time and again. I
support the bipartisan language in the managers' amendment which
maintains the status quo of this important constitutional question.
Finally, an amendment has been offered requiring an audit of the
terrorist surveillance program. As I stated earlier in comments
yesterday, the Intelligence Committee has conducted a thorough review
of this program over many months, which included testimony, extensive
document reviews, and even trips out to our intelligence agencies to
witness how this program is operated.
I understand that sometimes partisanship impedes action in Congress.
But I do not recall when some of my colleagues have had such little
faith in the bipartisan findings and conclusions of a committee in this
body.
This amendment disregards the committee's finding and asks for yet
another retrospective review of this program. This is not only
duplicative, but it is unnecessary. The Protect America Act expires a
week from today; the threat from al-Qaida will not expire a week from
today.
It is now time for Congress to act and to fix FISA so our
intelligence community has the tools it needs to do its job in a very
professional manner and gather information necessary to protect our
national security.
Protecting our national security is in the interest of all Americans,
and Congress should seek to ensure that our Nation is protected fully.
The members of the intelligence community say the managers' amendment
contains many tools they need to protect our country. I urge my
colleagues to support the managers' amendment.
I yield the floor and I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant 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 ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
____________________
[Congressional Record: January 25, 2008 (Senate)]
[Page S310-S317]
FISA
Mr. DODD. Mr. President, I rise this morning to continue the debate
and discussion on the Foreign Intelligence Surveillance Act. Let me
underscore the point that Majority Leader Reid and others have made. I
listened carefully to the comments of Senator McConnell, the
distinguished Republican leader.
I have served in this body for more than a quarter of a century now,
and it is unfortunate that we seem to have come to a point where not as
much is happening as should be happening, in my view.
I brought committee products to the floor on many occasions, and I am
sort of envious of the remarks of the Senator from Kentucky--because as
a committee chairman, I love nothing more than to bring a product out
of my committee. Many times I brought them out with unanimous votes,
only to have to spend days here on the floor as amendment after
amendment was being offered to change, in some cases dramatically, the
substance of our bill, which we had worked on for weeks and months and
years in some cases.
So it is a new idea here to just accept committee product and say the
other 90 or 85 Members should respect the work of our colleagues, and
acknowledge that and pass the legislation as if we had all had some
input here. That is unique and, I suppose, an idea that most of us
would like to embrace at one point or another. But this is the Senate.
This is not an operation that runs by fiat.
This institution has an historic responsibility. In this institution,
every single Member has the opportunity to express themselves, not only
rhetorically for unlimited amounts of time, but also with the ability
to contribute to the policy products we frame. To suggest that other
Members, including members of a committee that had commensurate
jurisdiction, the Judiciary Committee, ought to be excluded from adding
their thoughts and ideas, is ridiculous. Even members of both
Committees, Judiciary and Intelligence, are excluded, such as Senator
Feingold. It was his amendment, as a member of both of these
committees, that the Republican leadership would not even consider
debating or acknowledging with a vote. So that is unique in any regard.
Anyone who has observed this institution for more than an hour--or
less--understands how this works.
So the idea that we should accept this bill because the President
will sign it, is nice to hear, but I have been around long enough to
know that Presidents will sign things they did not think they would in
time, and particularly if we can add some thoughts that Members have.
I do not want to dwell on the procedural aspects of all of this, but
I wanted to underscore the point that Senator Reid, our leader, the
majority leader, made this morning, on the unique idea that Members who
have substantive ideas and thoughts and amendments should somehow stick
them back in their pockets, accept the product of the Intelligence
Committee and go home, because the President will sign that bill. I
will be anxious to raise the argument in future dates when I bring a
bill to the floor and I find that the Republican leadership is going to
offer some amendments to my
[[Page S311]]
ideas, reminding them of their eloquence in suggesting a different
approach to the Foreign Intelligence Surveillance Act.
Last night, we saw into the heart of the minority's priorities. Since
last month, day after day, opponents of retroactive immunity have been
warning about its underlying motive: shutting up the President's
critics. Pass immunity, we have said, and the debate will be shut down,
the critics will be shut up, and the actions of the President's favored
corporations will be shut in the dark for good.
Last night, we saw the mindset of the minority. Several of my
Democratic colleagues have brought to the floor their carefully
prepared amendments, many of which do their part to right the balance
between security and civil liberties.
The Cardin amendment, which would allow us to revisit the bill in 4
years instead of 6, not exactly a frightening proposal. It would be a
simple debate; we could decide if he's right or wrong--make your case
either way. I happen to believe he is right. Amendments from Senator
Feingold prohibiting the dangerous and possibly unconstitutional
practice of reverse targeting and bulk collection. The Leahy amendment,
requiring the inspectors general of the Director of National
Intelligence and the Department of Justice and the National Security
Agency to investigate possible illegal domestic spying. The Feinstein-
Nelson amendment allowing the FISA Court to determine whether immunity
should apply to the telecommunications companies; and several more
amendments as well.
These are all very serious amendments. The Presiding Officer himself
has one of these amendments. Some of them I support, others I would
probably end up opposing. Nonetheless, I acknowledge the seriousness of
their proposals.
I am concerned, however, about amendments that expand the authority
of the FISA Court beyond what Congress intended when it originally
passed FISA. While I respect the motives behind such proposals,
Congress needs time to fully consider their implications.
Further, I am concerned that such proposals put excessive power in
the hands of a secret court whose members are all appointed by one
individual. In other words, I am concerned this is yet another
concentration of power, the implications of which we don't fully
understand and ought to consider carefully. Yes, secrecy is necessary
at times in the life of every nation. But it is a bedrock principle
that democracy should always err on the side of less secrecy. For that
reason I believe cases against the telecoms are best handled in our
standard Federal courts--which, by the way, have shown time and time
again that they know how to protect State secrets.
None of that is the real issue this morning. Whether you agree with
any of these proposals or not, each amendment deserves consideration.
Senators are not entitled to see their amendments agreed to, but they
are entitled to this: a good-faith debate, honest criticism, and,
ultimately, a vote on their ideas. Last evening, they didn't get that.
Our Republican colleagues, assuming they would lose those votes,
effectively shut down the work of the United States Senate. In the
words of the cliche, they have taken their ball and run home.
I don't think that is far off base, in seeing in this egregious
shutdown a parallel to retroactive immunity itself. Both attitudes
privilege power over deliberation, over consensus, over honest
argument. Like immunity, pulling these amendments down shows a contempt
for honest debate and a willingness to settle issues in the dark, in
the back rooms, rather than in the open, where the law lives, where the
American people can see it.
President Bush wants to shut down the courts whose rulings he doesn't
like. Last night, Senate Republicans showed when they don't like the
outcome of a debate, they shut down that as well. It is one thing for a
President to express that kind of contempt for the process of
legislation. It is yet another for the coequal Members of this
legislative branch to express it themselves.
I have spoken repeatedly about the rule of law. The rule of law is
not some abstract idea. It is here with us. It is what makes this body
run and has for more than two centuries. It means we hear each other
out. We do it in the open. And while the minority gets its voice, its
right to strenuously object, the majority ultimately rules. Standing
for the rule of law anywhere means standing for it everywhere--in our
courts and in the Senate.
The circumstances are different, of course, but the heart of the
matter is the same. Last evening, I believe the Republican Party
forfeited its claim to good faith on this issue. They are left to stake
their case on fear. Whether that be enough, the next few days will
tell.
But I want to talk about the issue of the underlying bill, the
substance of it. As my colleagues here know, I care deeply and
passionately about several aspects of this bill. Again, I have great
respect for the work it takes to strike the balance between the need
for have surveillance of those terrorists who would do us great harm,
and the protection of civil liberties, rights, and the rule of law. It
is not an easy balance. I will be the first to acknowledge that the
tension between those two goals has been an ongoing tension since the
founding of this Republic. It is not just new since 9/11. It goes back
to the very first days of our Republic.
In fact, James Madison spoke eloquently about the tensions in civil
liberties and rights and, with a great deal of prescience, recognized
that it is usually threats from outside our country that have the most
influence on endangering the rights and liberties we embrace at home.
He acknowledged that more than two centuries ago.
So the debate we are engaged in today is a historic one, historic in
the sense that it has been ongoing. No Member of this Chamber wants to
sacrifice the security of our country, and my hope is that no Member of
this body wants to sacrifice our liberties and rights either. I want to
believe that very deeply. While we are debating how best to do that, my
fear is that we are about to adopt legislation that will deviate from a
30-year history of actually achieving that sense of balance, by and
large with the almost unanimous support of Members who have served here
during that 30-year period.
I spoke yesterday about a crime that may have been committed against
millions of innocent Americans: their phone calls, their faxes, their
e-mails, every word listened to, copied down by Government bureaucrats
into a massive database. I spoke about how our largest
telecommunications companies leapt at the chance to betray the privacy
and the trust of their own customers. That spying didn't happen in a
panic or short-term emergency, not for a week, a month, or even a year.
It went on relentlessly for more than 5 years. If the press had not
exposed it, it would be going on at this very hour. This was not a
question where a program started up and someone realized they had done
something wrong, shut it down, and we discovered it later. This program
has been ongoing and would have been ongoing arguably for years had the
New York Times and a whistleblower not stepped forward to acknowledge
its existence.
We saw how President Bush responded when this was exposed--not by
apologizing, not even by making his best case before our courts, but by
asking for a congressional coverup: retroactive immunity. He asked us
to do it on trust. There are classified documents, he says, that prove
his case beyond a shadow of a doubt, but, of course, we are not allowed
to see them. I have served in this body for 27 years, and I am not
allowed to see these documents! Neither are the majority of my
colleagues.
And when we resist his urge to be a law unto himself, how does he
respond? With fear. When we question him, he says we are failing to
keep the American people safe.
Shame on the President and shame on these scare tactics.
I have promised to fight those tactics with all the power any one
Senator can muster, and I am here today to keep that promise. For
several months I have listened to the building frustration over this
immunity and this administration's campaign of lawlessness. I have seen
it in person, in mail, online--the passion, the eloquence of average
citizens who are just fed up with day after day, week after week,
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month after month, year after year of this administration, in one case
after another, trampling all over the basic rights of American
citizens. They have inspired me more than they know, these citizens who
have spoken up.
But almost every time telecom immunity comes up, there is the
inevitable question: What is the big deal? Why are so many people
spending so much energy to keep a few lawsuits from going forward?
Because this is about far more than the telecom industry. This is
about a choice that will define America--the rule of law or the rule of
men. It is about this Government's practice of waterboarding, a
technique invented by the Spanish Inquisition, perfected by the Khmer
Rouge, and in between banned--originally banned for excessive cruelty
even by the Gestapo.
It is about the Military Commissions Act, a bill that gave President
Bush the power to designate any individual he wants as an unlawful
enemy combatant, hold him indefinitely, and take away that individual's
right to habeas corpus, the centuries-old right to challenge your
detention.
It is about the CIA destroying evidence of harsh interrogation--or,
as some would call it, torture.
It is about the Vice President raising secrecy to an art form.
The members of his energy task force? None of your business, we are
told.
His location? Undisclosed.
The names of his staff? Confidential.
The visitor log for his office? Shredded by the Secret Service.
The list of papers he has declassified? Classified.
It is about the Justice Department turning our Nation's highest law
enforcement offices into a patronage plum and turning the impartial
work of indictments and trials into the machinations of politics.
It is about Alberto Gonzales coming before Congress to give testimony
that was at best wrong and at worst perjury.
It is about Michael Mukasey coming before the Senate and defending
the President's power to break the law.
It is about extraordinary renditions and secret prisons.
It is about Maher Arar, the Canadian computer programmer who was
arrested by American agents, flown to Syria, held for some 300 days in
a cell 3 feet wide, and then cleared of all wrongdoing.
It is about all of that. We are deceiving ourselves when we talk
about the torture issue or habeas issue or the U.S. attorneys issue or
the extraordinary rendition issue or the secrecy issue. As if each one
were an isolated case! As if each one were an accident! We have let
outrage upon outrage upon outrage slide with nothing more than a
promise to stop the next one.
There is only one issue here--only one--the law issue. Attack the
President's contempt for the law at any point, and it will be wounded
at all points. That is why I am here today. I am speaking for the
American people's right to know what the President and the telecoms did
to them. But more than that, I am speaking against the President's
conviction that he is the law. Strike it at any point, with courage,
and it will wither.
That is the big deal. That is why immunity matters--dangerous in
itself but even worse in all it represents. No more. No more. This far,
Mr. President, but no further.
More and more Americans are rejecting the false choice that has come
to define this administration: 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.
The truth, I would say, is that shielding corporations from lawsuits
does absolutely nothing for our security. I challenge the President to
prove otherwise. I challenge him to show us how putting these companies
above the law makes us safer by one iota. That, I am convinced, he
cannot do.
The truth is that a working balance between security and liberty has
already been struck. It has been settled for decades. For three
decades, the Foreign Intelligence Surveillance Act has prevented
executive lawbreaking and protected Americans, and that balance stands
today. In the wake of the Watergate scandal, the Senate convened the
Church Committee, a panel of distinguished Members, Republicans and
Democrats, determined to investigate executive abuses of power.
Unsurprisingly, they found that when Congress and the courts substitute
``trust me'' for real and true oversight, massive law breaking can
result. They found evidence of U.S. Army spying on the civilian
population, Federal dossiers on citizens' political activities, a CIA
and FBI program that opened hundreds of thousands of Americans' letters
without warning or warrant.
In sum, Americans had sustained a severe blow to their fourth
amendment right to be ``secure in their persons, houses, papers, and
effects against unreasonable searches and seizures.'' But at the same
time, the Senators of the Church Committee understood that surveillance
needed to go forward to protect the American people. Surveillance
itself is not the problem: unchecked, unregulated, unwarranted
surveillance was. What surveillance needed, in a word, was legitimacy.
In America, as the Founders understood, power becomes legitimate when
it is shared; when Congress and the courts check the attitude which so
often crops up in the executive branch: If the President does it, it is
not illegal.
The Church Committee's final report, ``Intelligence Activities and
the Rights of Americans,'' puts the case powerfully. Let me quote, if I
can, from that report. The Church Committee--Republicans and
Democrats--said:
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. . . .
The report further states:
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 concluded:
Unless new and tighter controls are established by
legislation, domestic intelligence activities threaten to
undermine our democratic society and fundamentally alter its
nature.
That report is more than 30 years old. But couldn't those words have
been written this morning? We share so much with the Senators--
Republicans and Democrats--who wrote them. We share a nation under
grave threat--in their case, from communism and nuclear annihilation;
in ours, from international terrorism. We share, as well, the threat of
a domestic spying regime that, however good its intentions, finally
went too far.
Senators in my lifetime have already faced this problem, and I
believe their solution stands: The power to invade privacy must be used
sparingly, guarded jealously, and shared equally between all three
branches--all three branches of Government.
Three decades ago, Congress embodied that solution in 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.
The President's own Director of National Intelligence, Mike
McConnell, explained the rationale in an interview this summer: The
United States, he said: ``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 many times over the
last three decades, FISA has accomplished its mission. It has been a
valuable tool--a tremendously valuable tool--for conducting
surveillance of terrorists and those who would harm our country.
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Every time Presidents have come to Congress openly to ask for more
leeway under FISA, Congress has worked with them; Democrats and
Republicans have negotiated; 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 agents, even if those conversations are routed through American
computers. For other reasons, I felt this summer's legislation went a
bit too far, and I opposed it. But the point is that Congress once
again proved its willingness to work with the President on FISA.
Shouldn't that be enough?
Just this past 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 could do nothing to slow down intelligence gathering.
Shouldn't that be enough?
And as for the FISA Court? Between 1978 and 2004, according to the
Washington Post, the FISA Court approved 18,748 warrants--18,748
warrants. It rejected five, between 1978 and 2004. Let me repeat the
numbers. They granted 18,748 warrants, and rejected 5 of them over that
almost 30-year period.
The FISA Court has sided with the executive 99.9 percent of the time.
Shouldn't that be enough? One would think so. Is anything lacking?
Have we forgotten something? Isn't all of this enough to keep us safe?
It took three decades, three branches of government, four Presidents,
and 12 Congresses to patiently, painstakingly build up that machinery.
It only took one President to tear it down. Generations of leaders
handed over to President Bush a system that brought security under the
law, a system primed to bless nearly any eavesdropping he could
possibly conceive or think of. And he responded: No, thank you; I'd
rather break the law.
He 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. And he still has not given
us a good reason why. He still has not shown how his lawbreaking makes
us safer.
So I am left to conclude that, to this President, this is not about
security. It is about power: power in itself, power for itself.
I make that point not to change the subject, but because I believe it
solves a mystery. That is: Why is retroactive immunity so vital to this
President? The answer, I believe, is that immunity means secrecy; and
secrecy, to this administration, means power.
It is no coincidence that the man who declared ``if the president
does it, it's not illegal''--Richard Nixon--was the same man who raised
executive secrecy to an art form in an earlier generation. The Senators
of the Church Committee expressed succinctly the deep flaw in the
Nixonian executive. I quote from them: ``Abuse thrives on secrecy.''
And in the exhaustive catalog of their report, they proved it.
This administration shares a similar level of secrecy, and a similar
level of abuse, I would add. Its push for immunity is no different.
Secrecy is at its center. We find proof in their original version of
retroactive immunity. Remember, this was their idea: a proposal not
just to protect the telecoms but everyone involved in the wiretapping
program. That is what they sought of the Intelligence Committee.
Everyone involved in that program was to be protected. 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, immunity for the Executive is not part of the bill before
us. But the original proposal--the original proposal--to immunize
everyone involved ought to be instructive to Members here. Why did they
seek such broad authority to immunize every individual? Why? What was
behind that proposal? This is, and always has been, a self-preservation
bill.
Otherwise, why not have the trial to get it over with? If the
President believes what he says, the corporations would win in a walk.
After all, in the administration's telling, the telecoms were ordered
to help the President spy without a warrant, and they patriotically
complied.
Read Justice Robert Jackson's briefs after Nuremberg. The 21
defendants at Nuremberg made that case, that they were only complying
with orders they were given. And the court in the Nuremberg trials, in
1945, rejected that argument. Robert Jackson reminded us, in subsequent
decisions he handed down as a Supreme Court Justice, that that
argument, ``we were ordered to do it,'' is not a legitimate defense
when you know what you are doing is wrong.
And when you hear the President's story, ignore for a moment that in
America we obey the laws, not the President's orders. Ignore that the
telecoms were not unanimous; one, Qwest, wanted to see the legal basis
for the order. They never received it, of course, and so they refused
to comply. Ignore that a judge presiding over the case ruled that--and
I quote--``AT&T cannot seriously contend that a reasonable entity in
its position could have believed that the alleged domestic dragnet was
legal.''
Ignore all of that. If the order the telecoms received was legally
binding, they have an easy case to prove. 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 five 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?
It can't be that he is afraid of leaks. The 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, as well.
No intelligence sources need to be compromised. No state secrets need
to be exposed. And after litigation at both the district court and
circuit court level, no state secrets have been exposed.
In fact, Federal District Court Judge Vaughan Walker, a Republican
appointee, I might add, has already ruled 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 hardly a secret at all. I quote from him. He
stated:
The government has [already] disclosed the general contours
of the ``terrorist surveillance program,'' which requires the
assistance of a telecommunications provider.
That is from Judge Walker. 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.
That is Republican appointee Vaughan Walker speaking to the
administration. He further goes on to say:
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.
That ought to be the epitaph of this administration: sacrificing
liberty for no apparent enhancement of security. Worse than selling our
soul, we are giving it away for free.
The President is equally wrong, I would suggest, 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 is more, it
immunizes them. It has 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,
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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. The conclusion, I again repeat, is clear: The only
thing that stands to be exposed if these cases go to trial is the
extent of the President's lawbreaking, of the administration's
lawbreaking. That, he will keep from the light of a courtroom at all
costs.
This is a self-preservation bill. And given the lack of compelling
alternatives, I can only conclude that self-preservation--secrecy for
secrecy's sake--explains the President's vehemence.
Well, you might say, he will be gone in a year. Why not let the
secrets die with this administration and start afresh? Why take up all
the time on this matter?
Because those secrets never rightfully belonged to him. They belong
to history, to our successors in this Chamber, to every one of us.
Thirty years after the Church Committee, history repeated itself. If
those who come after us are to prevent it from repeating again, they
need the full truth. We need to set an unmistakable precedent.
Determining guilt or innocence belongs to the courts, not to 51
Senators who may carry the day by a vote here, or the President, for
that matter--that is what the courts are for. Lawless spying will no
longer be tolerated. And, most of all, the truth is no one's private
property.
Which brings us, unfortunately, to economics. Because once the
arguments from state secrets and patriotic duty are exhausted,
immunity's defenders make their last stand as amateur economists.
Here is 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.
To begin with, that is a clear exaggeration. We are talking about
some of the wealthiest, most successful companies in America. Let me
quote an article from Dow Jones MarketWatch. The headline reads:
``AT&T's third-quarter profit rises 41.5 percent.'' I will quote the
article:
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 $3.6 billion . . . compared with $2.17 . . . a
year ago.
I should note that AT&T has posted these record profits at the same
time of this very public litigation.
Now, granted, that is only one quarter, and I understand that AT&T's
most recent earnings aren't as large as the ones I have just quoted;
but I think the point still stands. A company of that size, capable of
posting a $3 billion quarter, couldn't be completely wiped out by
anything but the most exorbitant and unlikely judgment.
To assume that the telecoms would lose and that their judges would
hand down such backbreaking penalties is already taking 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 has begun talking like a stockbroker, pronouncing on
``liability protection for private sector entities.'' How does that
even begin to be relevant to letting the case go forward? Since when
did we throw out entire lawsuits because the defendant stood to lose
too much?
Translate the point into plain English, and here is what Admiral
McConnell is arguing: Some corporations are too rich to be sued. Even
bringing money into the equation puts wealth above justice, above due
process. I have rarely in public life heard an argument as venal as
this one.
But this administration would apparently rather protect the telecoms
than the American people. In one breath, it can speak about national
security and bottom lines. Approve immunity, and Congress will state
clearly: The richer you are, the more successful you are, the more
lawless you are entitled to be. A suit against you is a danger to the
Republic. So at the rock bottom of its justifications, the
administration is essentially arguing that immunity can be bought.
The truth is exactly the opposite, in my view. The larger the
corporation, the greater potential for abuse. Not that success should
make a company suspect at all. 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. After all, if everything alleged is
true, the President and the telecoms have engineered one of the most
massive violations of privacy in American history. A violation such as
that would be inconceivable without the size and resources of a
corporate behemoth behind it.
If reasonable search and seizure means opening up 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.
Ultimately, that is all I am asking--not a verdict of guilty or
innocent. I have my own views, but I don't have a right to pronounce
those views. That is why there is something called the third branch of
Government. It is called the courts--the courts. A simple majority of
this body doesn't get the right to decide the guilt or innocence in
this particular case. But when the day in court comes, I have
absolutely no investment in the verdict either way. Just as it would be
absurd for me to declare the telecoms clearly guilty, it would be
equally absurd to close the case today without a decision. But their
day in court, as far as I am concerned, is everything.
Why? Because surveillance demands and deserves legitimacy, and the
surest way to throw legitimacy away is to leave all of these questions
hanging.
Few things are as vital to our national security as giving domestic
surveillance the legitimacy it deserves and needs to sustain public
support. Because ``the threat to America is not going to expire.''
``Staying a step ahead of the terrorists who want to attack us'' is
``essential to keeping America safe.'' In the end, ``Congress and the
President have no higher responsibility than protecting the American
people from enemies who attacked our country and who want to do it
again.''
Those aren't my words; they are George Bush's words. He says all of
this, yet he says he will veto the entire bill--this vital bill, this
bill which is essential to protecting our very lives--all to keep a few
corporations safe from lawsuits.
There, at last, as honest as you will ever hear them, are this
President's true priorities: secrecy over safety, favors over fairness.
Marry those priorities to a contempt for the rule of law, and the
results have been devastating. I don't have to repeat them. They aren't
secret anymore.
No, Mr. President we can't go back. We can't un-pass the Military
Commissions Act. We can't un-destroy the CIA's interrogation tapes. We
can't un-speak Alberto Gonzales's disgraceful testimony. We can't un-
torture those who have been apprehended and held wrongfully. We can't
undo all this administration has done in the last 6 years for the cause
of lawlessness and fear.
But we can do this: We can vote down this immunity. We can do this:
We can grab hold of the one thread left to us here and pull until the
whole garment unravels. We can start here.
And why not here? Why not today?
Why not provide for the protections we need, the surveillance we
need, but without this grant of immunity? It is unwarranted, it is
unneeded, it is unfair, it is wrong, and it is dangerous.
So, on Monday, I hope my colleagues will reject the motion on
cloture, allow these amendments to go forward, allow us to have a
debate and a discussion, and then send a clean bill to the President--
one that enhances our security and protects our civil liberties.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Tennessee is
recognized.
Mr. ALEXANDER. Mr. President, I ask unanimous consent to speak as in
morning business.
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The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ALEXANDER. I ask unanimous consent that when I finish with my
remarks, the Senator from Texas be recognized.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Republican Retreat
Mr. ALEXANDER. Mr. President, I would say to the Senator from
Connecticut, welcome back. We are glad to have him here. He has
traveled some roads that I know pretty well. We have missed some of his
vigor and passion.
Sometimes the American people say they don't like to see us engage in
partisan bickering, and I am going to say something about that in just
a minute. But what I think they do like to see us do, if I may say so,
is what the Senator from Connecticut was doing just then and what the
Senator from Arizona did on Friday: They were debating the balance of
each American individual's right to liberty versus each American
individual's right to security--coming to different conclusions but
having a serious discussion about an issue that affects every single
American in this country. That is what the people expect of the Senate.
I come to a different conclusion than he does. We are moving to vote
on cloture on a bill on Monday that has come out of the Intelligence
Committee by a bipartisan majority of 13 to 2. But this is the kind of
debate the Senate ought to have, and I am glad I got to hear his speech
even though I disagree with much of it.
The Republican Senators gathered in a retreat at the Library of
Congress on Wednesday. This is something we do each year, and the
Democratic side does it each year as well. We think about our
responsibilities, and we look forward to the future. Many of our
Members have said to me that this was one of our best days of retreat.
In the first place, it was very well attended: 44 out of 49 of us were
there, and 3 of those absent were campaigning in Florida, and 1 was
ill. So we had virtually perfect attendance. Most of those attending
spoke and participated and made proposals. Every single Republican
Senator with whom I have talked since that meeting on Wednesday has
told me he or she felt rejuvenated and looks forward to this year. I
believe the reason for that is because of the way we conducted the day.
It takes me back to what I just said a moment ago. Unless we are
tone-deaf, I think we can hear what the American people are saying to
us, especially through the Presidential campaign, which is that they
are tired of the way we are doing business in Washington, DC, and they
want us to change it. They want us to take the playpen politics and
move it off the Senate floor and put it in the national committees or
in the nursery where it belongs, and spend our time on big issues that
affect our country--maybe in vigorous debates of the kind Senator Dodd
and Senator Kyl would have on the intelligence bill, but spend our time
on the serious issues facing our country. Then, after we have had our
debate, work across the aisle to get a result.
There are only two reasons to work across the aisle to get a result.
One is, it is the right thing to do for our country. This is our job,
and that is why they pay us our salaries. That is why they sent us
here. No. 2, if you can count, it takes 60 votes to get anything
meaningful done in the Senate. So if you want to get a result, you have
to work across party lines because neither side has more than 60 votes.
So what we Republicans did on Wednesday was say this: We have heard
the talk that this is a Presidential year and we may get nothing done
in Congress, and we reject that.
Our leader said--Mitch McConnell--on Tuesday when he spoke:
Republicans are eager to get to work on the unfinished
business from last year. We are determined to address the
other issues that have become more pressing or pronounced
since we last stood here. We have had a presidential election
in this country every 4 years since 1788 we won't use this
one as an excuse to put off the people's business for another
day.
So there is no excuse for Congress to take this year off, given the
serious issues facing our country. We want to change the way Washington
does business, and we know how to do it; that is, get down to work on
serious issues facing our country, propose specific solutions that
solve problems, and then work across the aisle to get a result. We are
not here to do bad things to Democrats; we are here to try to do good
things for our country.
That was the spirit of our retreat on Wednesday. I believe that is
the way most Members on the other side feel. The more of that we do,
the better. I would submit the approval rating of the Congress and of
Washington, DC, will gradually go up if we were to do that.
Let me say a word about exactly what we talked about on Wednesday--
the kind of approach that one can expect from Republican Senators this
year.
First, of course, is that we are here and ready to go to work on
these specific solutions based on Republican principles, and we are
either looking for bipartisan support or already have bipartisan
support on many issues. Of course, to begin with, we know Americans are
hurting and anxious because of the housing slump, because of gasoline
prices, because of rising health care costs, and we are ready to work
with the House and the President, across the aisle, to find the
appropriate action to take to try to avoid an economic slowdown.
I imagine the Senate will have some of its own views about its
proposals when the House brings its proposal here. But we want a
result. I, for one, would like to see--and I believe most of my
colleagues on this side of the aisle would like to see--a proposal that
grows the economy and not the Government. But we will have a debate
about that. That is not partisan bickering; that is the Senate in its
finest tradition addressing an issue that is central to every single
family in this country.
We know we need to intercept the communications of terrorists so we
can keep our country safe from attack. We know when we do that, we have
to carefully balance each of our right to liberty versus each of our
right to security.
Samuel Huntington, the Harvard professor, once wrote--he was
President of the American Political Science Association--that most of
our politics is about conflicts between principles or among principles
with which almost all of us agree. That is important to Americans
because what unifies us, other than our common language, is these few
principles, security and liberty being two.
Republicans support the Rockefeller-Bond bipartisan proposal which
passed 13 to 2 by the Intelligence Committee. We want to make sure
those companies which help us defend ourselves aren't penalized for
helping to make the country secure, while at the same time protecting
individual liberties.
We know there are 47 million Americans who don't have health
insurance, and Republican Senators said in our retreat on Wednesday
that we are ready to go to work this year to make sure every American
is insured. Some say put it off a year. Well, perhaps we can't get it
all done in 2008, but we can surely start. Senator Byrd and Senator
DeMint and Senator Bennett and Senator Corker, among others, spoke at
our retreat on this issue. We would like to get going now. We could
begin with the Small Business Health Insurance Act, which would permit
small companies to pool their resources and offer more health insurance
at a lower cost to their employees. That would be a beginning.
Many of us on the Republican side have sponsored a bipartisan bill--
one of two or three that have the same general approach to reforming
the Tax Code, to put cash in the hands of American families and
individuals so they can afford to buy their own private insurance,
putting together four words that usually don't go together: ``universal
access'' and ``private insurance.'' Those are based on principles we
Republicans agree with: free market and equal opportunity. We know on
this side of the aisle--and I suspect many over on that side know as
well; I know they do--if we don't do something about the runaway growth
of Medicare and Medicaid--entitlement spending, in other words--we will
bankrupt our country. Every year that we wait to deal with that is a
year that makes the solution harder.
So Senator Gregg, at our retreat, talked about his proposal with
Senator
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Conrad, a Democratic Senator, to create a base-closing-task-force-type
task force for the sole purpose of recommending to the Congress a way
to control entitlement spending and force an up-or-down vote on that.
That is the principle of limited government. That is a principle that
most Republicans and a proposal that many Democrats can support.
We know there is a great force in Washington, DC, to spend more
money, to issue more regulations and rules, and there are almost no
countervailing forces to spend less money, repeal rules, and revise
regulations. So Senators Domenici, Isakson, and Sessions, among others,
have proposed an idea to change our budgeting and appropriations
process from 1 year to 2 years. That may help us get appropriations
bills done on time so we can save money in our contracting in the
Defense Department and Department of Transportation, for example. But
more important to me, and to many on this side of the aisle, it would
create a countervailing force of oversight so that every other year we
would spend most of our time on oversight, meaning we could review,
repeal, and change and improve laws, regulations, and rules that have
been in place for a long time.
We want to keep jobs from going overseas, and we believe we know how
to do it. Last year, we worked with Senator Bingaman and others on the
other side to pass the America COMPETES Act. This is an extraordinary
response to our challenge to keep our brain power advantage so we can
keep our jobs, in competition with China and India. Senator Hutchison
has been a leader on this issue. She, with Senator Bingaman, began the
effort to fully fund advanced placement courses so more children could
take those courses. So we are ready--many on this side of the aisle--to
implement the advanced placement provisions in the America COMPETES
Act. That will help 1.5 million children to have those opportunities.
We are ready to implement the provision that would put 10,000 more
math and science teachers in our classrooms. Many of us are ready to
implement the recommendation that we pin a green card to every single
foreign student legally here and who graduates from an American
university in science, technology, engineering, or mathematics. Some
proposals ought to be bipartisan, but they are not--or at least they
weren't. I made one, and we talked about this for a while on Wednesday.
In order to encourage unity in this country, we need a common
language. That seems to be common sense. Therefore, we ought to pass a
law making it clear that the Federal Government should not be suing the
Salvation Army, telling them they cannot require employees to speak
English on the job. We got it through the Senate and to the House,
where the Speaker stopped it. Now Senator Conrad has joined in support,
as have Senators McConnell, Byrd, Landrieu, and Nelson of Nebraska. So
now we have a bipartisan approach on another important issue.
We talked about the idea and the problem of the number of rural women
in this country who are pregnant and cannot get the proper prenatal
health care. OB/GYN doctors are leaving rural areas because runaway
malpractice lawsuits are running malpractice insurance over $100,000 a
year. So the pregnant women are having to drive 70 miles to Memphis or
other big cities to see a doctor and get the prenatal health care they
need and to have the baby. We have proposals to stop it in the way
Texas and Mississippi did. We invite bipartisan proposals on that.
Mr. President, the Republican agenda will emerge over time. What I
would like to say to our colleagues on the other side of the aisle and
to the American people is, we want to change the way Washington does
business, and we believe we know how. The way is to stand up every
single day and week with new specific proposals on real issues and have
a debate where one is needed. Let Senator Dodd and Senator Kyl have a
principled argument about security versus liberty. That is in the
finest tradition. Let's cut out the playpen politics. Let's don't have
that, and let's earn back the confidence of the American people by
dealing with specific solutions. That is what you are going to hear
from Republican Senators.
No sooner had I heard some encouraging remarks from the majority
leader, out comes this release from the Senate leadership and majority
leader Harry Reid:
For immediate release. Democratic policy experts discuss
President Bush's legacy of broken promises.
That was announced. This is playpen politics. I am sure we do it here
sometimes, but I will do my best as the Republican conference chairman
to make the political reward for this playpen politics so low that this
kind of release and activity is moved into the nursery school where it
belongs, over to the national committee where it belongs, whether it is
the Democratic playpen or the Republican playpen, and that we devote
ourselves to the issues facing our country.
How can we help the economy? How can we help every American be
insured? How can we stop the terrorists? How can we implement the
America COMPETES Act? Those are the debates we ought to have. I hope
that is clear to the American people and to our colleagues. We are
looking forward to this year. Republicans are ready for change in the
way we do business in Washington. The people of this country are ready
for that, too. I look forward to it.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Texas is
recognized.
Mr. CORNYN. Mr. President, I express my gratitude to Senator
Alexander, my colleague from Tennessee, for his comments and for his
leadership. We decided it would be helpful to come to the floor and
talk a little bit about the retreat that Senator Alexander laid out and
our reasons for believing that it is important that we not take the
year off just because it is a Presidential election. I think Senator
McConnell most recently pointed out that we have had elections in this
country every 2 years since 1788. So if we are going to use that as an
excuse for not getting things done, we will never get anything done. We
have a lot of important issues we need to address, and we will.
The month or so that we were in recess, from the Wednesday before
Christmas until we came back the day after Martin Luther King's
national holiday, I enjoyed being at home in Texas. As always, I
traveled around the State and talked to a lot of people. But I also
listened. What I heard from my constituents is the same thing I bet
virtually every single Senator heard, and that is that people are sick
and tired of the bickering and partisanship. They are sick and tired of
seeing Congress not solving problems that only Congress can solve.
Frankly, they are beginning to feel more and more like Congress is
irrelevant to their daily lives. I think that is what accounts for the
historically low approval rating we have seen of the Congress in the
last year.
The problem is--and the occupant of the chair knows as well as I do--
that I don't think the public differentiates between Republicans and
Democrats when they give Congress a low approval rating, by and large.
I think it is up to us, working together, to try to elevate that low
approval rating by doing what our constituents expect us to do, and
that is to work together when we can, without sacrificing our basic
principles.
Let me say a word about that. Lest anybody confuse what Senator
Alexander and I are saying, that we are somehow taking leave of our
principles, that is absolutely not true. In Washington, I usually tell
folks that we have Democrats in Texas and we have Republicans in Texas.
They are all pretty much conservative by national standards, Washington
standards. But the fact is, my constituents expect for me to get
something done. But that is not done by sacrificing principles. I do
think we have important differences, and I think those should be
debated, and then we should vote. We should be held accountable in the
next election for our votes and for what we have done or not done.
I think there is an important difference between standing on your
principles and then looking for common ground to try to come together
and solve problems. I agree with what the Senator from Tennessee said.
We all know it is a fact of life in the Senate
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that you cannot get anything done without bipartisan support. Our 60-
vote rule for cloture to close off debate in order to have an up-or-
down vote requires it. So why not recognize that, sure, we can say no,
no, no, but occasionally I think we ought to look for an opportunity to
say yes where it doesn't sacrifice our principles, but it does find
common ground to try to get things done on behalf of the American
people.
I have constituents who asked me, as recently as last night: Don't
you find life in the Senate and in Washington and in the Congress
frustrating? Many say I could never do what you do because I would be
so frustrated by it. I think there is plenty of opportunity for
frustration, if we dwell on that. But I prefer to look at the
opportunities for making life better for the American people and for
offering solutions on the difficult issues that confront us. To me,
that is what I get up and come to work for. That is why I enjoy being
in the Senate. I believe it gives me a chance, as one American, to do
what I can to try to make life better and to make a difference. It is
not about sacrificing principles. It is doing what we said in the
preamble to the Constitution when we said:
We the People of the United States, in Order to form a more
perfect Union, establish Justice, ensure domestic
Tranquility, provide for the common defence, promote the
general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity. . . .
We said that in 1787, in a document that was ratified by all of the
States by 1790. That should be our goal still today--to be true to that
statement of principle about what our goals are as a nation.
The Senator from Tennessee did go through a number of concrete
proposals and talked about what our alternative will be to the
proposals being made on the other side of the aisle. Again, I agree
with him, that the American people don't expect us to come here and
split the difference on everything in order to come up with an
agreement if they believe that outcome is devoid of principle or
sacrifices fundamental values. There are differences between the
parties. Those differences ought to be reflected in a dignified and
civilized and respectful debate that highlights those differences, and
then we have a vote on those different points of view. We will either
pass legislation or not based on that vote. But I think it will be
acting in the greatest tradition of the Senate, and in a way that our
constituents back home earnestly wish we would act and, unfortunately,
in a way that we have not always acted.
I have to believe all Members of this body want to see our economy as
strong as it can possibly be going forward. They want to see that our
Nation is secure and our defense remains the best in the world; that
all Americans have access to quality health care; that taxpayers not be
compelled to foot the bill for wasteful Washington spending. I have to
believe that all of our constituents, and indeed all Members of the
Senate, believe that we need a sustainable energy policy that allows us
to turn away from our over-reliance on imported oil and gas from
dangerous parts of the world.
I think, as Senator Alexander pointed out, principled differences on
important legislation need to be debated in the Senate and voted on and
resolved rather than be left without a solution and unaddressed.
We do have an opportunity, I believe, this new year as we have come
back not just to say no, no, no, to every idea that is offered on the
floor but to say: Here are our alternative solutions to the problems
that confront America.
Mr. President, you will be hearing us on the floor of the Senate on a
weekly basis not only addressing legislation offered by the majority--
and, of course, it is the majority leader's prerogative to set the
agenda to call up bills; we will not be able to do that as Members of
the minority--but what you will hear from us is a principled proposal
to solve the problems that confront America on each of the big issues
this Nation wants us to address and wants us to expend our very best
efforts to try to solve.
I am delighted we have seen a sort of renewed enthusiasm for finding
solutions in a principled way. I agree with the Senator from Tennessee,
the retreat we had I thought was one of the most hopeful retreats I
have ever participated in as a Member of the Senate because I think
what we saw is a recommitment to try to solve problems, to avoid the
partisan bickering and the divisiveness that has resulted in the
historically lower approval rating of Congress and which turns off so
many of our constituents.
Of course, as we all know, as elected officials, if we do not respond
to our employer and try to address the concerns our employer has--and
our employers are our constituents--then our employers may look for
somebody else to do the job in the next election.
It is up to us to be responsive to those concerns, and I think
without sacrificing principles, by staying true to those values we
brought with us but looking for common ground. That is the art in our
job, and it is more art than science. I have said it before and I will
say it again, I think compromise for compromise's sake is overrated
because if all compromise means is sacrificing your principles in order
to get a problem behind you, I don't think you have done your job.
Doing your job means standing on your principles but looking for common
ground, consistent with those principles, to solve problems. There is
plenty of common ground to find if we will work a little bit harder and
a little bit more in earnest to try to find it.
I yield the floor, and I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BOND. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
____________________
[Congressional Record: January 25, 2008 (Senate)]
[Page S317-S320]
FISA AMENDMENTS ACT OF 2007--Continued
Mr. WHITEHOUSE. Madam President, I ask that the pending amendment be
set aside so I may call up amendment No. 3905.
The PRESIDING OFFICER. Is there objection?
Mr. BOND. I object.
The PRESIDING OFFICER. Objection is heard.
Mr. WHITEHOUSE. Madam President, I guess I would like to start by
saying I appreciate very much the sentiments that were recently
expressed by the Senator from Tennessee and the Senator from Texas, who
is my friend who served with me as attorney general at the same time in
our respective States, Texas and Rhode Island. I ask them to let me
know when that new approach will begin because I am, frankly, not
seeing much of it in the Foreign Intelligence Surveillance Act
procedures we are going through on the floor. I confess, I am a new
Member of this body, and I do not understand why.
We heard Senator Dodd, the very distinguished Senator from
Connecticut, who has served in this body for 27 years, describe how
important this Chamber is and that it is the right of Senators to
debate matters, not for the sake of ventilating themselves but toward
actually getting a vote on a real amendment on a matter of real
significance.
We had one vote on a committee amendment. Not one Senator has
achieved getting a vote, and we are on a very short timeframe. I may be
new, but I will tell you that in the 1 year I have served, I have
presided a great
[[Page S318]]
deal. The Presiding Officer, the Senator from Minnesota, and I have
both spent a lot of time in that chair. It is a wonderful place to sit,
and you get a great view and a great education as to what goes on in
the Chamber.
I can recall over and over hearing my colleagues on the Republican
side of the aisle, as mad as they could be, complaining bitterly
because the majority had offered them only 10 amendments on a bill or
only 20 amendments on a bill. I cannot get one called up.
Let me first say, this is an important issue. On the one hand, we
have to deal with perhaps the greatest danger our country faces at this
moment, which is the threat that comes from international terrorism,
and we have at the same time to deal with one of the basic principles
of our Government--freedom, freedom from, among other things,
Government surveillance, unless it is done properly and by the law.
This is not some new idea. It goes back to the Bill of Rights, where
the very Founders of this country mandated that before the Government
could intrude into the persons, places, houses, and effects of
Americans, they had to get permission from a court.
The balance between freedom and security is an important one, a
historic one. So this is no minor issue on which to avoid real debate,
and the amendments are important ones. The amendments involve the
immunity issue about which Senator Dodd spoke so passionately. This is
a very important issue.
As I see it, we have some cleaning up to do in this body as a result
of a real mess the Bush administration left us. They could have gotten
a court order, and we know perfectly well that if a court order had
been obtained, there would be no issue of immunity for us to address. A
company following a court order is protected. End of story. They
couldn't be troubled to get a court order to protect these companies
they are so concerned about now. But you do not necessarily need a
court order. You can actually get a certification from the appropriate
Government official using language this Congress has provided, and it
will also provide protection to companies that cooperate in Government
surveillance, as long as they have been notified properly through the
certification process.
One would think the litigation would be over, if that certification
process had been complied with. It would be a slam dunk. Which raises
the logical conclusion that for some reason, the Government did not
comply with the certification process. I don't know why they did that.
I don't know if anybody else knows why they did that. It could be being
obtuse and stubborn and insisting it had to be done under the
President's unitary article II authority that they purposefully,
deliberately failed to follow the certification process to prove that
point they wanted to prove.
If that is the case, they have walked these phone companies into all
this concern we now have to address for no purpose whatsoever. But now
we do have to address the problem. No matter how they got into it, we
have this problem to address, and it is not an easy problem.
One side says: Well, blanket immunity. Well, that is fine, but you
are taking away rights and due process of people who are in court right
now. A judge has looked at this case and he didn't throw it out. There
is nothing to suggest that the litigation going on right now is not
entirely legitimate. So if we do that, we are taking away real rights
of real Americans that are currently in play right now before a court.
I don't know of a time the Congress has ever done that. As a former
prosecutor, like the Presiding Officer, the very notion that it is the
legislature's job to go into ongoing legitimate litigation and make
decisions about who should win and who should lose seems to me a
spectacular trespass over the doctrine of separation of powers. I hope
my colleagues in this body who are in the Federalist Society would be
concerned about this separation of powers.
On the other hand, we could strip the legislation of its immunity
entirely and leave the companies in the litigation. That is not a great
solution either. There is a problem with that solution. The problem
with that solution is that the Bush administration has bound and gagged
the company defendants--instructed them they may not defend themselves.
So here you have legitimate American corporations in legitimate
litigation being told by the Government that they may not speak, they
may not answer, they may not defend themselves. That doesn't seem like
a great outcome either.
Well, an amendment I wish to offer, the one I just tried to call up,
proposes a potential solution. If the Government is going to tell them
they can't defend themselves, then in all decency shouldn't the
Government step in for them and say: OK, we are going to bind you and
we are going to gag you in this ring of litigation combat, but we are
going to step in for you and not leave you unable to defend yourself?
Isn't that the most decent, basic thing you could expect the Government
to do? That is what this amendment would do. It would substitute the
Government for the defendant corporations that the Government has bound
and gagged in this litigation--muzzled.
It would do another thing: It would make sure that a court decided
that these companies had in fact acted in good faith before they were
given that relief. They have told us they have acted in good faith, but
we are a legislature. Good faith is a finding the courts make. We are
not judges. We haven't heard from all sides. We haven't had hearings,
such as a court would have to get to the bottom of this.
There is an easy way to do it. You let the FISA Court, which has the
secrecy necessary to get to the bottom of this, make the determination,
the fundamental determination: Did these companies, in fact, act in
good faith? That is a basic point of entry. We have all assumed it to
be true, but it is not our job as Members of Congress to decide on the
good faith of an individual litigant in a matter that is before a
court.
I think this is a very legitimate amendment. It may not be germane
postcloture. It may never come up as a result of this. Maybe it is just
the new Senator. Poor kid, all this work on these bills. Doesn't he
know the merits don't matter around here? Maybe it is a situation
related to me not knowing my way around here yet. But I don't think so.
Because Senator Feinstein, who has been here for a very long time, who
is very distinguished, who is one of the most bipartisan Senators in
this Chamber, if not the most bipartisan Senator in this Chamber, has a
very similar piece of legislation. She has taken the good faith test in
the Foreign Intelligence Surveillance Court and picked it out as a
separate, solitary piece of legislation, and she is pursuing that. That
amendment can't be called up either.
You could say: Well, maybe it is because I am a Democrat; they are
shutting down all the Democrats. But my amendment is cosponsored by
Arlen Specter, the very distinguished Senator from Pennsylvania, who
has been the chairman of the Judiciary Committee. It is the Specter-
Whitehouse amendment. I don't see how you could have a better
credential, a better bipartisan credential than to have the Republican
chairman of the Judiciary Committee as the cosponsor of the amendment.
And yet we can't call it up, and because of the cloture motion that has
been filed, it may never be called up.
I think we are doing serious work, and I think we should get votes on
these amendments. I know some of my colleagues have said: Well, you
should defer to the committee bill. The committee bill was so good, it
was bipartisan, it passed 13 to 2. Well, I was in that committee. Yes,
it passed 13 to 2, but an awful lot of us said in our remarks on that
bill that we passed it out of that committee in order to work on it
further in the Judiciary Committee and in order to move amendments on
the floor. It did not pass with a 13-to-2 vote of Senators saying this
is ready to go to the President; this is ready to clear the Senate. It
passed on a 13-to-2 vote of Senators who knew that the bill was going
to the Judiciary Committee and who knew that the bill was going to the
floor and had reason to expect the ordinary courtesies of this body to
be able to offer amendments would be honored.
In fact, the amendment I tried to offer yesterday that was objected
to, that I can't call up, I raised in the Intelligence Committee. I was
told by the executive branch officials there--and I should say that
throughout this process I hope nobody would challenge how
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carefully my office has worked with the administration to get these
things right, to get technical language worked through properly--I was
told by the executive branch officials that the way I had written the
amendment caused technical difficulties. So I didn't pursue it in the
Intelligence Committee. I withdrew it, noting that we would work
through the technical difficulties and then bring it up again later on.
Nobody said then, oh, Senator Whitehouse, there is going to be no
later on; the committee vote is all you will get. Nobody said that.
Because that would violate the history and traditions of the Senate,
because it would be wrong, and because it wasn't the program. It wasn't
the plan at the time. I feel it has been represented to me that these
amendments would be voted on, and I feel that representation has been
dishonored by the procedure we are in right now.
I want to read something. I prepared remarks in the event that this
amendment was going to go in. Of course, I thought it was going to go
in. I had the Republican former chairman of the Judiciary Committee as
a cosponsor and it addresses the biggest question in this legislation.
It provides a potential resolution of the conflict between the two
arguments. Why on Earth would it not be something that I would be able
to exercise my traditional right to raise on the floor? So I planned
ahead and I wrote remarks for that occasion. Here is what I wrote at
the very end of the remarks.
Madam President, whether this amendment passes or fails, I
would like to say that it is the product of a truly
commendable process. Everybody here knows the old saw that
the making of law is like the making of sausage. You might
like the results, but you don't want to see what goes into
making it. Not so here. This amendment and Senator
Feinstein's are the results of many hours of thoughtful,
bipartisan consideration, hard work by Senators and their
staffs, reasoned and respectful committee debate, and what I
am sure will be thorough debate on the floor.
Those are the remarks I wrote. And I have to say right now, those
words taste like ashes in my mouth. I hope the spirit that Senator
Alexander and Senator Cornyn brought to the floor a moment ago will
begin to animate the FISA debate, and that legitimate--and I believe my
Republican colleagues will concede these are legitimate--and sincere--
and I believe my Republican colleagues will concede these are sincere--
and important amendments have a chance to be raised and debated and
voted on here on the floor of the Senate.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Madam President, first, I express my admiration for the
Senator from Rhode Island. The hard work he has put in on the Senate
Intelligence Committee and the experience he brings to that committee
is very important. We have worked with him on many issues that we were
able to accomplish in the committee. I agree with his assertion that we
need to balance freedom and security. That is one of the heavy
responsibilities we have in the Senate Intelligence Committee.
He talks about an amendment he has presented on a bipartisan basis,
and he and his Republican cosponsor feel very strongly about it. I
would be happy at the appropriate time to have debate and a vote on
this very important measure. But I also happen to agree with the Senate
majority leader, who said back in December that the issues before us on
this FISA bill are so important that we must ensure they have a 60-vote
margin for passage, the same vote that would have to occur if we were
to overcome a filibuster. That will ensure that there will be no
filibuster of the bill.
We filed cloture to make sure we could go forward with the bill. We
are waiting to see how that works out. But the measures, as I have
stated earlier--and the proponent of this amendment had the distinct
misfortune to be in the chair when I addressed this earlier today--but
for my colleagues, I would say that we have before us a very carefully
crafted bipartisan compromise to improve the FISA, Foreign Intelligence
Surveillance Act, significantly and to ensure that it can work to keep
our country safe.
Passing these measures on a 60-vote margin is nothing new. When I
brought the Protect America Act to the floor on August 3, I brought it
on an agreement that we had to have 60 votes to pass it, because it is
a very important bill. And I assume that this bill, which I hope will
pass, will have to pass with 60 votes.
I think it is a reasonable proposition to say that a 60-vote
threshold must be achieved to ensure there is bipartisan agreement on
something that is this important to our security and our freedom.
Now, my colleague raised the question about why the immediate
interception of foreign intelligence did not go forward right after 9/
11, when the President determined there must be interception of
telephone and other electronic transmissions coming from foreign
terrorists abroad into the United States.
I am told the administration met with the Gang of 8, leaders of the
House and Senate and the House and Senate Intelligence Committees. They
were faced with the problems that arose when the court order occurred
in the spring of last year, saying the existing FISA law did not permit
interception of communications coming through the way--coming the way
by which they now come, through cable and wire.
Previously, collections occurred routinely against foreign sources by
radio wave. And there were minimization procedures. But the FISA Court
was not involved. Because of the change in technology, as the order of
the court indicated last spring, FISA applied to collection of most of
the foreign terrorist communications, whether they were coming into the
United States or into other areas.
We were advised by the commanding general, Special Operations Command
General McCrystal, that the limitations of FISA in April and May and
June and July prevented our intelligence authorities from collecting
vital signals information on communications among terrorists in the
battlefield, putting our troops at risk.
He begged and pleaded to get it done. Well, despite the begging and
pleading to get it done, you have seen how long it takes us to get FISA
changed. As I understand the conversations held in the aftermath of 9/
11, when we knew there were other attacks being planned and we needed
to get control of them, there was general agreement among the parties,
legislative and executive, that we could not afford to try to take the
time to try to change FISA, to make it work with the new electronic
signals means of communication in time to stop further terrorist
attacks.
How long has it taken to get FISA passed? Well, the Director of
National Intelligence sent up a bill in April pointing out that the old
FISA law did not permit collection of foreign signals intelligence from
known terrorist targets abroad. He sent it up in April. He testified
before our committee in May. He came to the Senate and had a hearing in
our classified room telling leaders of both parties how important and
how sensitive it was.
Another month passed. Nothing happened. He came back with a short-
term extension that had to have a 6-month sunset on it. We passed that.
We passed that with a 60-vote margin. That has become standard for any
controversial and important legislation coming before this body, which
is applied not only in FISA but many other circumstances.
So we got a 6-month extension. Now, we are still debating whether to
have a slightly longer extension of the FISA bill. We reported the bill
on a bipartisan 13-to-2 majority in October. It sat for 2 months. The
majority leader tried to bring it up, but he was filibustered from
bringing it up.
We are now at the end of January, when the Protect America Act
expires on February 1. We need to move forward to get this bill passed.
We need to move forward as promptly as we can. But we need to move
forward on the same ground rules by which other major legislation and
which the Protect America Act came to the floor; that is, a 60-vote
margin to ensure there is bipartisan agreement on something as
important as the freedom and security framed by the FISA debate.
Let me add a word or two about the FISA Court. I had thought the
distinguished Senator from Rhode Island was going to offer an amendment
on assessing compliance and toss that to the FISA Court. Well, the FISA
Court, or FISC as we call it, was created in 1978
[[Page S320]]
to issue orders for domestic surveillance on particular targets.
Congress specifically left foreign surveillance activities to the
executive branch and to the intelligence community. The FISA Court,
they are article III judges who are called in from time to time to make
the judgments of probable cause for issuing warrants. They have
expertise in issuing warrants for surveillance on a domestic basis.
The bill before us gives them that responsibility, as did the other
FISA, the old FISA, for issuing those orders for people or facilities
in the United States. The old one said ``facilities in the United
States.''
Well, that court is not set up to deal with foreign intelligence
surveillance. As I quoted yesterday, the court's own words said--and
this is the December 11, In re: Motion for Court Records. The court
stated that: The FISA Court judges are not expected to or desire to
become experts in foreign intelligence activities and do not make
substantive judgments on the propriety or need for a particular
surveillance. Even if a typical FISA judge has more expertise in
national security matters than a typical district court judge, that
expertise would still not equal that of the executive branch which is
constitutionally entrusted with protecting national security.
So I expect we will get to the point where we will be debating the
distinguished Senator's assessing compliance amendment. But he has
brought today the substitution amendment.
I have already explained why we could not get through signals
collection immediately after 9/11 if we had gone to the old FISA. How
many months would it have taken? Well, the leaders who apparently spoke
with the intelligence community and the White House said they did not
want to highlight the fact that we were going to be listening in and
they did not think it would work quickly.
The intelligence committee has carefully assessed the orders which
were given to the telecommunications carriers which may or may not have
participated in the Terrorist Surveillance Program. And they were
based, yes, they were based largely on article II.
The FISC has already indicated nothing Congress can do can extinguish
the President's authority under article II, but Congress also passed
the authorization for use of military force, which was a counterbalance
in the weighing of the constitutional arguments of article II with the
provisions of the FISA law.
I have reviewed the Attorney General's findings, the Department of
Justice findings. I have read the authorizations and the directives. It
is clear to me, and clear to others, most of the others who have
reviewed it, they were clearly acting under the color of law.
I happen to think they were right. You can make an argument that
maybe they were not right. But the carriers that may have participated
were not in a position to challenge those. They got a lawful order from
the head of the intelligence community, based on authorization from the
President, in a manner cleared by the Department of Justice. Under
those circumstances, I believe it would not only have been unpatriotic,
but it would have been willful for the carriers to refuse to
participate. Yet they are being sued.
I think the suits are designed to cripple our intelligence community.
There are not going to be significant judgments awarded no matter what
they say because anybody who was intercepted would have to come in to
court and say they were intercepted and prove harm. I really question
whether they can do that. But under the substitution argument, the
disaster to our intelligence operations is clear, as is the damage to
the reputation and the business of any carriers which may have
participated.
Back in 2006, right after the disclosure of this and the terrorist
finance tracking measure, when the newspapers carried it, television
carried it, terrorist leaders--very bright people--abroad learned of
it, communicated about it on their own communications, and those
communications, I was told in the field, went down significantly.
So I asked General Hayden, at his confirmation hearing to be head of
CIA, how badly these disclosures hurt us. And he said at the time that
we are applying the Darwinian theory to terrorists; we are only
capturing dummies. The more we disclose about the workings of our
intelligence intercept capabilities, the more those whom we would
target know how to avoid them. And they are taking steps; they know too
much about it. Any further disclosures would further complicate and
damage the collection capabilities of our intelligence community.
Moreover, the damage to the reputation of the carriers would be
significant. The damage would occur likely in exposing the carriers--
their employees and their facilities--to terrorist activities or
vigilante activities. It would destroy their business reputation, cause
untold harm in the United States, and probably effectively curtail
their ability to operate overseas. If they are put out of operation or
if they are limited in their operations, then the intelligence
community loses a substantial means of acquiring the intelligence we
need.
So when this bill comes up--I expect it will come up, but I believe
it must come up under a 60-vote rule or we are going to go through the
normal process of getting to 60 votes, and we will never get anywhere.
I think both sides of the aisle should recognize that. I will be happy
to make these arguments.
I know my colleague from Rhode Island is a very skilled lawyer, a
very effective debater. He will present his arguments, I will present
my arguments, and there will be others who will join with us. So while
I would love to get on with the debate and votes, we are not going to
go there until we resolve the question of whether there is a 60-vote
margin.
So I thank the Chair, and I thank my colleague from Rhode Island.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WHITEHOUSE. Madam President, I appreciate very much the arguments
made by the very distinguished Senator from Missouri, who is also the
vice chairman of the Intelligence Committee and possesses great
experience in this area. My point, though, is that all these arguments
are for naught if the simple courtesy of a Senator being allowed to
vote on his amendment is not honored.
This particular amendment being nongermane postcloture means it may
very well be squeezed out by the procedural devices the Republican
leader has applied. So my simple question is, if I may ask it through
the Chair to the distinguished Senator from Missouri, the Republican
manager of this bill, can we assure Senator Specter and myself that
this amendment will, at the appropriate time in this legislation,
receive a vote?
Mr. BOND. Madam President, I am happy to respond as soon as we go
back to the normal means of proceeding on FISA matters, establishing a
60-vote threshold, which is the standard I had to meet to bring the
Protect America Act to the floor. I would certainly expect that his
amendment would be brought up, fully discussed, and debated. This is
one of the major issues we have to decide. But we have to decide it on
a 60-vote point of order.
____________________
[Congressional Record: January 25, 2008 (Senate)]
[Page S320-S322]
FISA
Mr. DORGAN. Madam President, we are talking about FISA we use a lot
of acronyms in Washington, DC, unfortunately--the Foreign Intelligence
Surveillance Act. It is a complicated subject, and one, if people have
been watching the debate, that is also controversial. There is a lot of
passion about this subject. We have people standing up and saying: None
of this should be disclosed. We should not be talking about this. This
is about the ability to protect our country against terrorists. Of
course, we have to listen into communications and intercept
communications. It is the only way to find out if there are terrorist
acts being plotted by terrorist groups, and so on. There is that kind
of thing.
There are concerns on the other side by people who say: Wait a
second.
[[Page S321]]
There is something called a Constitution in this country. There is a
right to privacy, a right to expect that the Government will not be
spying on American citizens without cause.
This is a very controversial and difficult subject. Frankly, nearly
everyone, with the possible exception of the chairman and ranking
member or maybe one or two others on the Intelligence Committee, knows
very little about that which we are discussing.
Let me put up a photograph of a door. This is a door in San
Francisco, CA, a rather unremarkable photograph of a door. This is a
door that is in AT&T's central offices in San Francisco. A courageous
employee of AT&T named Mark Klein, who had been with the company for 22
years, blew the whistle on what was happening behind this door.
According to Mark Klein, the National Security Agency had connected
fiber optic cables to AT&T's circuits through which the National
Security Agency could essentially monitor all of the data crossing the
Internet. Here is what Mr. Klein had to say went on behind this door:
It appears the [National Security Agency] is capable of
conducting what amounts to vacuum-cleaner surveillance of all
the data crossing the Internet--whether that be people's e-
mail, web surfing, or any other data.
The description of what was happening at this one telephone company
in this one location in San Francisco was this: the intercepting of
communications at the AT&T Folsom Street facility, millions, perhaps
billions of communications from ordinary Americans coming into and
through the facility, which would normally have been the case for a
telephone company, and a splitter being used, according to the
discussion by Mark Klein, splitting off all of this conversation into
an NSA-controlled room, to be eventually evaluated with sophisticated
programming, and then going back out in order to complete the
communication. So you have effectively a copy of everything that is
happening going through with a splitter to a secret room.
When this became public, when a whistleblower working for the company
said, here is what is happening, there was an unbelievable outcry on
both sides. Some people said: What on Earth is happening? We have
secret rooms in which the National Security Agency is running all this
data and all this information through and spying on American citizens?
Others said: What is going on? Who on Earth would have decided they
should disclose this publicly? They are going to alert the terrorists
to what we are doing. We had both sides aghast that this was disclosed.
It is important to say that, initially, almost no one in an official
capacity was willing to admit to this. Finally, it was admitted, yes,
there was a program. The President said: Yes, there is a program--
speaking, apparently, of just this program; we don't know of other
programs that exist or may exist, but this program existed without our
knowledge. The President indicated this program existed because we are
going after the bad guys, and we have a right to do that. And we did
this program because the process that had been set up because of abuses
with respect to eavesdropping and spying on American citizens decades
ago, that process was way too cumbersome, took far too much time, and
we needed to streamline that. That is a paraphrase. But there was an
admission that this program existed and no additional legal authority
needed to empower the President to do it.
So that is where we are. Most of us don't know the full extent of
this program at all. In fact, my understanding is that rooms like this
exist in other parts of the country with other telephone companies
where splitters are used to move data to separate rooms and data is
evaluated.
This whole process comes from several decades ago when something
called the FISA Court was set up, a court to evaluate the questions
about when it is legal and appropriate and when the Government is able
to intercept communications. The FISA Court was established for the
very purpose of trying to make the judgment about when it is
appropriate to go after the bad guys and how to protect our civil
liberties at the same time.
The FISA Court was an outgrowth of concern by the Congress when we
discovered that there was a time in this country when we had the
National Security Agency running secret projects called Shamrock and
Minaret to gather both international communications and also domestic
communications. Project Shamrock actually started during the Second
World War when major communications companies of the day gave the
Federal Government access to all of their international traffic. One
can imagine, in the fight against the Nazis and the Japanese Imperial
Army, the desire for international communications to evaluate things
that might threaten this country's security. But the Shamrock program
then, as we know, changed over time.
At first the goal was to intercept international telegrams relating
to foreign targets. Then, soon the Government began to intercept
telegrams of U.S. citizens. By the time there were hearings held in the
Congress, the National Security Agency was intercepting and analyzing
about 150,000 messages per month.
Data from Project Shamrock was then used for another project code
named Project Minaret, which we now know spied on perceived political
opponents of the then-administration of Richard Nixon. Under this
program the NSA added Vietnam war protesters to its watch list. After
there was a march on the Pentagon, the Army requested that they add
antiwar protesters. The list included people such as folk singer Joan
Baez and civil rights leader Dr. Martin Luther King, Jr. We just
celebrated within the week the Federal holiday celebrating the birthday
of Martin Luther King, Jr. Yet it was not too many decades ago that Dr.
Martin Luther King, Jr., was under surveillance by his own Government.
The Congress passed its findings, when it did investigative hearings,
and the Foreign Intelligence Surveillance Act created the FISA Court.
Here is the experience with the FISA Courts. Between 1975 and 2006,
there were 2,990 warrants issued by the FISA Court. Only five were
denied. What that suggests is that it is not too difficult to get
approval by the FISA Court for surveillance. But the President and Mr.
McConnell, the head of our intelligence agency, have indicated that
there has been a problem.
For example, Mr. McConnell cited the capture of three American
soldiers who were later killed in Iraq. Right after they were captured
there was a period of time when it was critically important to be able
to intercept communications in Iraq, and they were encumbered at a time
when it was critical to find out who held these soldiers.
That is not accurate, and the head of intelligence would have known
that. I don't know why he represented that. There is a period of time
when in an emergency situation, you can begin surveillance without
having to go to FISA. You have to go FISA after that period of time,
but you are given an opportunity for emergency surveillance even before
you get the approval or even before you go to the FISA Court.
What we have learned, however, through all of this process is from a
December 2005 report in the newspapers. President Bush had authorized
the National Security Agency to eavesdrop without warrants inside the
United States which bypassed the entire FISA Court system. It turns out
that most of the large telephone companies in this country had gone
along with the administration's request for that activity.
We are told that the administration, Attorney General Gonzales, and
others furnished the telephone companies with some sort of letter, a
certification of sorts. We don't know what that letter was, however,
because the administration, citing the State Secrets Act, refuses to
allow that to be disclosed.
I think if they provide certification to a telephone company--and the
telephone company relies on that--by officers of the Federal
Government, in good faith, let's have that disclosed. Why should we
wonder about the actions of a telephone company? If, in fact, you have
an Attorney General of the United States who is certifying, let's find
out what this administration did. Let's find out how they did it. Let's
not have them tell us you cannot even see what was provided to a
telephone company in terms of certification. That, in my judgment, does
not pass the red face test.
I hope very much we will begin to learn at some point what this
administration has done, when they did it, and
[[Page S322]]
what the consequences of it are. This issue of the Foreign Intelligence
Surveillance Act has become a political football by this
administration. The last time we debated this, some while ago, it was
quite clear that the politics of it were viewed as wonderful politics
by the other side and by the White House. But this ought not be about
politics at all. This ought to be about two issues, both of which are
critically important: One is protecting this country's interests, yes,
giving us a chance to make sure we understand what the terrorists are
doing, how to foil terrorist attempts to injure this country--it is
about that; and that is very important--but it is also about civil
liberties and protecting the rights of the American people at the same
time.
We thought we had done that by putting together the FISA Court. We
thought we had done that by establishing a procedure that needed to be
followed. We now understand the President, with his lawyers, says those
laws do not matter. There is in the Constitution, they say, something
about the powers of the Commander in Chief, and he can do whatever he
wants. That is a pretty dangerous interpretation of the U.S.
Constitution.
We debate this in so much ignorance because almost no one knows what
this administration has done, and they are preventing us from knowing
as much as we should know, in most cases, by claiming protection under
the State Secrets Act, and not even allowing the release of the letter
that was provided to the telephone companies that cooperated that
describes to them the legal authority for doing so.
I think there is much to be learned here, much we need to know. I
think it is very important, as we reach an agreement on the Foreign
Intelligence Surveillance Act--and we should because it is an important
circumstance by which we need, in certain cases, when we believe there
is information being passed from terrorist to terrorist, and so on--if
those communications are being run through this country, we need to be
able to intercept and interpret what is happening--but it is critically
important we not allow a kind of an approach to this where there is no
oversight, there is no check.
We have a government of checks and balances. What the President and
his people seem to be saying to us is: We are not interested in checks
and balances. We have the authority in the Constitution, as we
interpret it, and that means it exceeds every law you can pass. We are
going to do what we want to do. And if you don't like it, tough luck.
And if you don't like it, by the way, what we will say to the American
people is you are not willing to stand up for the security of this
country.
It is outrageous. It is dragging this issue smack-dab in the middle
of their little political balloon. But this is a much more important
process than that. We need to do this, and we need to get it right in
order to protect America. We need to do this, and we need to get it
right in order to protect the interests of the American people as
well--and that interest of privacy and that interest of making sure
that ``big brother government'' is not running all of your telephone
calls and all of your e-mails and all of your information through its
drift net to find out what you are saying and what you are doing and
who you are talking to.
That is not what I understand to be the best interests of this
country or the guarantees that exist in the Constitution for the
American people. That is why this is worth an important controversy and
an important fight. It is why it is for us to take enough time to get
it right. This is a big issue. We do a lot of things on the floor of
the Senate that are not so big--not big issues. They are smaller issues
in consequence. This issue is about freedom and liberty and the
guarantees given the American people in the Constitution. It is about
whether there is a check on Presidential power that assumes they have
the power that exceeds all other laws. If we do not have that kind of
check and balance in this Government, then we have bigger problems than
I thought.
So I only wanted to say, with respect to this issue, we do not know
much about it. We know at this point that behind this door, as shown on
this chart--behind this door--exists information split off what is
called a splitter from the main line. Massive amounts of information
come into it--in this case, it was AT&T; it could have been other
telephone companies--it is split off, and then all of it is evaluated
to find out: Is there something there that is suspicious? It is not the
way America has ever worked, and not the way it should work.
So the more we know, I think the more we will be able to better
understand how to do two things at once: protect our country against
terrorists, and protect the civil liberties of the American people.
Both are important. At least there is one group of people in this
political system of ours that believes the first is far more important
than the second. They are wrong. They are both important, and both
worth standing up for.
____________________
