[Congressional Record: January 28, 2008 (Senate)]
[Page S373-S374]
FISA
Mr. SPECTER. Mr. President, I have sought recognition to speak
briefly in opposition to the motion to invoke cloture. The amendment
which I have filed goes to the heart of the issue on removing liability
from the telephone companies to impose retroactive immunity. The
amendment which I have filed and has been discussed on the floor of the
Senate would substitute the Government for the party defendant, where
the Government would have the same defenses--no more, no less.
For example, the telephone companies do not have the defense of
governmental immunity; and the Government, when substituted, would not
have the defense of governmental immunity. The telephone companies can
plead state secrets to foreclose the litigation; and when the
Government would be substituted, for example, the Government could
assert the doctrine of state secrets in order to foreclose the
litigation.
If the motion to invoke cloture is granted, I am advised by the
Parliamentarian my amendment would not be germane and, therefore, would
be stricken. We went through a long session last year where the
argument was made, repeatedly and persuasively, not to invoke cloture--
the argument advanced on this side of the aisle--in order to give
Members on this side of the aisle an opportunity to propose their
amendments. Now we have the first situation sought to be applied, and
it is my hope this body will reject the cloture motion.
There has been very little time spent on this very important subject
in this body, and when you have a matter of the importance of
retroactive immunity, where you are going to shut off the courts of the
United States from hearing cases that are already pending, there ought
to be time for consideration of an amendment such as the one Senator
Whitehouse and I have offered to substitute the U.S. Government.
The purpose of our amendment is to comport with the basic
constitutional provision of separation of powers, which is the
cornerstone of the Constitution, and we have found, regrettably, it has
been inadequate to have congressional supervision, congressional
oversight, because of its ineffectiveness. For example, when the
Judiciary Committee seeks to obtain records on the destruction of CIA
tapes, you find the administration resisting and the inevitable
argument of politics. When the court issues an order, as the Federal
Court did last week for a report on the destruction of documents,
seeking to find out what happened on the destruction of the CIA
documents, the court can't be charged with politics. We find in Rasul,
and in other litigation matters, the judicial branch has been effective
in maintaining the separation of power.
One further comment. It is a surprise to me that the amendment which
I have offered with Senator Whitehouse has been ruled nongermane. I
took a look at Webster's International Dictionary and germane is
defined as:
closely or significantly related; relevant; pertinent;
closely akin.
I consulted with a Parliamentarian and asked why our amendment was
ruled as nongermane, and the answer given was because there was no
specific statement of the underlying bill on governmental liability. In
pursuing the issue with the Parliamentarian, I then said: I am going to
seek to change the rules.
It seems to me peculiar, if not absurd, that my amendment, the
Specter-Whitehouse amendment, would not be germane under the common
meaning of the English language. I said: Suppose we change the rules to
provide that it was relevant? And the answer I got, and I don't want to
misquote anybody, was that: Yes, that would stand the test of
relevancy. As he put it, a more permissive standard.
So then I checked the definition of relevant in Webster's
International Dictionary, and it says:
Bearing upon or connected with the matter in hand; to the
purpose; pertinent, raise, lift up, syn applicable, germane,
appropriate, suitable, fitting.
Well, the key part about the definition of relevant is that one of
the synonyms is germane, just as one of the synonyms of germane is
relevant. Now, it is a loss to me. I have been here a while, and I have
had a hard time understanding the ruling of what is germane, and I have
never seen one as close to the core point as putting the Government as
a substitute for the telephone companies, but somehow it is not
germane.
So I wish to put my colleagues on notice that I intend to try to
change the rules. I can't see why one is necessary when Webster's has
germane as a substitute for relevant and relevant as a substitute for
germane. If the Parliamentarian thinks that relevant is OK, it is,
again, hard for me to see why germane is not. A little surprising.
Mr. DORGAN. Mr. President, will the Senator yield for question? I
don't want to interrupt his comments.
[[Page S374]]
Mr. SPECTER. I will.
Mr. DORGAN. Mr. President, morning session is up at 3, and I am
scheduled for 15 minutes. I might ask to extend the time. I don't know
how much time the Senator is going to use, but I want to make certain I
have the opportunity that was previously ordered, for 15 minutes on
this side.
The ACTING PRESIDENT pro tempore. There is 10 minutes, 12 seconds
remaining, and morning business is under the control of the majority.
Mr. DORGAN. Mr. President, how much additional time does the Senator
from Pennsylvania need?
Mr. SPECTER. Less than a minute.
Mr. DORGAN. Let me ask unanimous consent that we extend by 5 minutes
the time for morning business so it terminates at 3:05.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. DORGAN. I thank my colleague for his courtesy.
Mr. SPECTER. I thank the distinguished Senator from North Dakota.
Well, I have made my argument. I think it is important to have a
ruling, a vote by this body on whether we are going to apply
retroactive immunity to the telephone companies. I said on the floor
last week that if my amendment is not adopted, I will support
retroactive immunity. I think it is a bad practice, but I think, as bad
as that practice is, it would be worse to cut off the information which
our intelligence community thinks we need. I think it is not advisable.
And when we have a method of having both objectives, that is to have
the Government have access to the information and at the same time not
impose the cutting off of the judicial system for checks and balances,
I think that ought to be adopted.
And further, a final comment on the hard-to-understand definition of
germane. The dictionary defines it as being relevant, and the
dictionary defines relevant as being germane, with the Parliamentarian
giving a supplemental opinion that if the standard was relevance, it
would be appropriate to have the amendment.
I thank the Chair, and I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from North Dakota.
____________________
[Congressional Record: January 28, 2008 (Senate)]
[Page S375-S388]
FISA AMENDMENTS ACT OF 2007
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 2248, which the clerk will
report by title.
The bill clerk read as follows:
A bill (S. 2448) 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.
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.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 4:40 shall be equally divided and controlled between the two
leaders or their designees with the final 20 minutes equally divided
between the two leaders, with the majority leader controlling the final
10 minutes.
Mr. HATCH. Mr. President, I ask unanimous consent that I have at
least 10 minutes to give my remarks on FISA.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. HATCH. Mr. President, I have been to this floor on numerous
occasions to aggressively support the immunity provisions of the FISA
modernization bill. I cannot understate my
[[Page S376]]
passion for this issue. I am of the firm belief that the lawsuits
facing the telecom providers constitute a grave threat to national
security. The potential risks from inadvertent disclosure of classified
information cannot be understated. The potential damage to our
intelligence sources and methods from allowing these lawsuits to go
forward is substantial. Unfortunately, the more we delay this
legislation, the more likely it is that our sensitive intelligence
methods will be exposed, and not just exposed to the American people
but to al-Qaida and thousands of other terrorists and enemies around
the world. Remember, the very point of these lawsuits is to prove
plaintiffs' claims by disclosing classified information through the
discovery process.
Let's think about this. Do we really want any person to be able to
make accusations that are utter hearsay and then be given the ability
to jeopardize the intelligence community's sources and methods by
demanding discovery during frivolous litigation?
We simply cannot do this. We should never reveal our intelligence
agencies' technical capabilities, who they work with, who they target,
or what their strengths and weaknesses are. We on the Intelligence
Committees have that assignment because we are expected to honor the
classified nature of those matters. The reasons should be obvious to
all of us.
Here is an example that illustrates this point: If criminals are
running drugs northbound along I-95, they may have an idea that they
will encounter police checkpoints. But they need to transport the
drugs, so they will balance this risk. But what if they know for sure
there is a checkpoint in a specific State? What if they then find out
the checkpoint is at a specific mile marker? Will they change their
routes and methods? You better believe they will. They are not stupid
and neither is al-Qaida. Does it really make sense for us to broadcast
across the globe, over the Internet, how we work? Do we want to replace
the uncertainty of how we track terrorists with established fact?
Confirmations or denials of the allegations in the lawsuits will
certainly reveal certain intelligence agencies' sources and methods.
Even when the proceedings are in camera or ex parte, this risk is still
apparent. I cannot stress this point enough: The identity of any
company that may or may not have cooperated with the Government with
the terrorist surveillance program is highly classified. Accusations
and hearsay do not confirm any relationship. The very activities these
cases seek to disclose could reveal whether a company has or hasn't
assisted the Government. In addition, any verdict in the case would
likely provide the same type of information, and replacing the
Government for these companies in the litigation does not solve the
problem.
Our enemies have tough decisions to make regarding how they
communicate. They cannot stay silent forever, and they have to weigh
the need to communicate against the chances that their communications
are intercepted. We know they are carefully watching us and following
every proceeding to see how our Government collects information. If
they think they see a weakness in our collection capabilities, they
will certainly try to take advantage of it. Make no mistake, al-Qaida
and the other terrorist organizations would benefit tremendously from
learning the identity of any company that assisted the Government
following the attacks of 9/11.
A few of my colleagues and many in the outside media have highlighted
accusations from a former telecom employee. His name is Mark Klein. Mr.
Klein claims he has proof that computers diverted domestic electronic
communications from a phone company directly to the NSA, the National
Security Agency. In fact, his accusations play a major role in one of
the lawsuits currently facing a telecom provider.
It is important to note the Government chose not to classify Klein's
declarations or exhibits in one of the lawsuits. The Government could
have, but it didn't. So Klein's court documents are public. Due to the
ongoing litigation, I do not want to speak directly to his claims, but
I will highlight a statement that was made by an official representing
the Government during a court proceeding in one of the lawsuits against
a telecom provider. This statement was from the Assistant Attorney
General on June 23, 2006, in front of Judge Vaughn Walker. Here is what
was said about the decision not to classify Klein's declarations. This
is the Government statement regarding Mark Klein:
We have not asserted a privilege over the Klein
declarations or exhibits. Mr. Klein and Marcus never had
access to any of the relevant classified information here,
and with all respect to them, through no fault or failure of
their own, they don't know anything.
I cannot understate the importance of this quote as it has never been
mentioned during this debate. No further commentary on it is needed,
but I think its meaning is extremely important when Senators and the
public weigh the relevancy and reliability of Klein's accusations. I am
particularly hopeful that three of my distinguished colleagues who have
highlighted Klein's claims on this floor are aware of these statements
from the Government. I hope we all realize Klein's accusations
highlight only one side of the story.
I also want to draw attention to another claim repeatedly made on
this floor: the false declaration that the immunity provision in this
bill will ``close the courthouse door.'' These claims seek to convey
the false impression that the immunity provision in this bill will halt
all litigation relating to the terrorist surveillance program, or TSP.
This is absolutely false. There are no fewer than seven lawsuits
currently pending against Government officials that are related to the
TSP. The immunity provision in this bill will not--I repeat that, will
not--affect any of those cases. These cases are completely unaffected
by the immunity provision in this bill.
Here are the cases. Al-Haramain Islamic Foundation, Inc. v. George W.
Bush; ACLU v. National Security Agency; Center for Constitutional
Rights v. George W. Bush; Guzzi v. George W. Bush; Henderson v. Keith
Alexander; Shubert v. George W. Bush; Tooley v. George W. Bush.
Finally, it is imperative for us to understand national security is
greatly dependent on the cooperation of telecom providers. We cannot do
it by ourselves. Yet many foreign governments are in quite the opposite
situation, one which gives them an advantage in certain electronic
interceptions. Many foreign telecoms are run by the respective host
government. Many others have government officials with controlling
authority. These countries do not have to worry about telecom
cooperation. They can simply force the telecoms to comply.
We have chosen not to have that system in our great Nation. Rather,
we rely on the voluntary assistance of telecommunication providers.
When these companies are asked to assist the intelligence community
based on a program authorized by the President and based on assurances
from the highest levels of Government that the program has been
determined to be lawful, they should be able to rely on these
representations.
For those who argue we need a compromise, let me be clear: We already
have a compromise. The Government wanted more than what is represented
in this bill, and they did not get it. The chairman of the Senate
Select Committee on Intelligence stated the following in the
Intelligence Committee report:
The [Intelligence] Committee did not endorse the immunity
provision lightly. It was the informed judgment of the
Committee after months in which we carefully reviewed the
facts in the matter. The Committee reached the conclusion
that the immunity remedy was appropriate in this case after
holding numerous hearings and briefings on the subject and
conducting thorough examination of the letters sent by the
U.S. Government to the telecommunications companies.
The immunity provisions in this bill are limited in scope. Not
everyone is going to be happy with them, and that is the whole point.
I, for one, wanted to see more protection for companies and Government
officials in this bill, but I am willing to accept the compromise, and
my colleagues should be willing to do the same. We are not all getting
what we want. We are getting what the public has to have--what the
public needs.
We have been working on legislation to modernize FISA since at least
April
[[Page S377]]
of 2007. I am extremely proud of the bipartisan efforts that led to
this bill in the Intelligence Committee where all of the investigations
were made, where the intelligence was protected. We found a balance.
Let's show the confidence and resolve to vote on this compromise, not
back away from it.
I will support cloture on the Rockefeller-Bond substitute amendment,
and I urge my colleagues to do the same.
In that regard, I pray that my colleagues will listen to the
distinguished ranking member of the Intelligence Committee, Senator
Bond, who has played a significantly proper and important role in
helping to get this bill through the committee and to the Senate floor.
This is a major bill of protection for our country, and I attribute
much of the success of it to Senator Rockefeller, the chairman of the
committee, and Senator Bond, the ranking member, both of whom have been
sterling leaders on this issue. I hope it is not true that anybody in
this body will support some of the amendments that may be brought to
the Senate floor because we have looked at this issue frontwards,
backwards, all over the place. We have examined it. We spent many
months on this subject in the Intelligence Committee. That should not
be ignored. It passed the Intelligence Committee 13 to 2 compared to
the substitute we defeated with cloture that was 10 to 9 in the
Judiciary Committee.
Mr. President, I ask that we support cloture on this bill.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, I believe our time on this side has expired.
I thank my colleague from Utah, who is a valued member of the
Intelligence Committee and the Judiciary Committee, truly a real
authority in this area. When he speaks, he speaks from not only a great
deal of knowledge but study. We are grateful for his assistance. He is
a tremendous asset to this body in many ways but none more so than on
the Intelligence Committee.
The ACTING PRESIDENT pro tempore. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I rise to oppose the vote to invoke
cloture on the FISA bill. I have no choice but to vote against cloture
in order to preserve the rights of my colleagues to have their
amendments to this landmark legislation considered.
It has been a very weird process. The FISA legislation before the
Senate has been taken, in effect, hostage. In a transparent attempt to
score political points off of national security issues, the White House
has decided, once again, that scaring the American people with
unfounded and manipulative claims is in order.
The President's decision to use the FISA bill in a game of chicken
represents a new low, even by Washington standards.
The administration's practice of placing politics above national
security when it serves the poll-driven agenda of its advisers has
become an addiction in this White House. Even when the Senate is on the
verge of producing much needed national security legislation that the
President supports and wants, the addictive political cravings that
have coursed through the administration's body for the past 7 years
kick in once again.
As is often the case, addictions produce behavior that is both
irrational, and in this case more, unfortunately, self-destructive. In
this case, the White House has misguidedly calculated that it is worth
jeopardizing passage of a bill which they support, which strengthens
the collection of foreign intelligence, in order to obtain a short-term
political objective.
The White House is gambling with the safety of Americans and the
continued cooperation of companies that we rely on to aid in our
efforts to protect our country. It is time for the Senate to take a
stand and reject these reprehensible tactics.
The Senate Intelligence Committee took enormous care to craft
legislation that would give our intelligence community greater latitude
to conduct surveillance of foreign targets while not compromising the
constitutional and statutory protections afforded to Americans both
here and overseas.
Senator Kit Bond and I worked extremely closely on that, as we did,
as I will explain, with many others. This was a painstaking process. It
went over many months, but it ultimately produced this balanced
legislation that the vice chairman and the committee and I sought.
It is a solid bill. And I believe with some limited changes it can be
a better bill; limited changes, I might add, that will in no way impede
or in any way intrude into the collection of the intelligence we need.
Every step of the way during the process of producing this bill gave
me great satisfaction. We worked in a consultive way with the
administration. These discussions have always been in good faith. We
have talked as professionals, trying to work out a hard problem to
which most people do not pay a lot of attention but which has enormous
consequences for our country, and we have done it in good faith, the
very good faith that the actions of the White House now threaten to
unravel.
From when the Intelligence Committee called on the administration to
propose a FISA modernization bill last spring--the vice chairman and I
did that--to the many committee hearings that followed, to section-by-
section, line-by-line, word-by-word consultations too numerous to count
that we had with the lawyers and intelligence experts in the Justice
Department, from the National Security Agency, from the Office of the
Director of National Intelligence to outside experts, we have worked in
good faith with the administration to achieve, against, frankly,
considerable odds, the unthinkable, to wit: a bipartisan bill dealing
with the issues of profound complexity that has the endorsement of not
only the President but also of the intelligence community professionals
who will be the ones who carry out this surveillance. They want this
bill.
The committee included in its FISA bill a narrowly crafted provision
that would provide immunity for telecommunications companies that
participated in the President's warrantless surveillance program after
September 11 and until the program was placed under court authorization
last January.
We rejected the administration's proposed open-ended language in
defining very tailored immunity language. We rejected their open-ended
language to extend immunity to Government officials. That was taken
out. So if there was wrongdoing somewhere, do not make the assumption
automatically, without thinking this thing through deeply, that it came
from a private sector entity as opposed to public officials.
I realize this is a controversial matter with many of my colleagues,
particularly on my side of the aisle, but I reject the games that are
being played on both sides: by those Senators who are prepared to
filibuster the bill due to their opposition to narrow immunity, and the
administration's wishes to prevent the Senate from considering any
alternative amendments to the immunity provision.
We should debate the liability issue fully, and the Senate should be
allowed to consider alternative amendments. And I say this, and I think
the vice chairman would agree with me, out of an abundance of
confidence that the committee position will ultimately be sustained by
the Senate in the end.
The majority leader has made prompt passage of the FISA bill the top
priority for the Senate. He pushed off other subjects so that it could
be conferenced with the House and eventually be placed on the
President's desk for his signature. If allowed, the Senate can complete
action on the FISA bill in a matter of a few days. Unlike many bills
the Senate considers where the number of amendments that can be
disposed of can approach or exceed 100 or 150 or 175, passage of the
FISA bill will probably involve relatively modest numbers of amendments
and a very manageable number of amendments.
I estimate that number would be somewhere in the 12-to-15 amendment
range, probably fewer. Some of these amendments I would support as
needed as improvements to the bill of the committee, the Intelligence
Committee. Many I would oppose because of my concern that it would undo
the careful balance we achieved in the underlying Committee bill. This
is a stitched piece of work between collection of intelligence for the
national security and
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the rights and privacy of individuals. I will oppose anything that
undoes that balance.
The amendments that are likely to pass with a majority vote, at least
in my view, such as the Feinstein exclusivity and Cardin sunset
amendments, are further refinements of provisions already in the
Intelligence Committee bill, and they in no way bear on the collection
of intelligence authorities sought and provided by our bill. Those that
would undercut these authorities to be able to do collection, I am
confident, would go down to defeat.
But the Republican leadership, under orders from the White House,
objected to these amendments being considered and voted on, and the
bill passed before the February 1 expiration of the temporary and
flawed Protect America Act passed last August. So that is where we are
going to be unless we can resolve this in the Senate, which we could do
by the end of the week.
Why? Why has the White House used obstructionist tactics to prevent
the Senate from passing a FISA bill that it wants, that it has declared
acceptable?
The President says he wants the Intelligence Committee bill passed as
soon as possible. He said as recently as last Friday that he
understands there may be some limited number of changes that will be
needed to make the bill stronger. Others, including Minority Leader
McConnell and Vice Chairman Bond, also have acknowledged the reality
that amendments will have to be brought up and voted on before the
Senate can pass the bill. That is, after all, the way of the Senate.
Why, then, are they preventing the Senate from voting on the limited
number of amendments before us and passing the bill, a bill that they
want? Why? A bill that has everything to do with the future of our
country, our national security, and a bill which we will not soon come
to again if we don't achieve success in the coming days.
The majority leader has repeatedly offered the proposal to extend the
February 1 expiration date in the current stopgap law 30 days to allow
sufficient time to complete our work on the legislation. But each time
this 30-day extension consent request was sought, it was killed by the
Republican leadership under orders from the White House.
Why in the world would a temporary extension be objectionable to a
President who is on record as saying he doesn't want the current law to
expire without a more lasting FISA modernization bill in place? Yet, in
one of the most astounding ``Alice in Wonderland'' moments I have ever
witnessed in my time in the Senate, the White House announced last week
that the President would veto a 30-day extension of the current foreign
collection authorities passed by Congress.
So let's recap. The President wants the FISA bill passed by the
Senate, but he has sent the decree down to the Republican leadership
that they are to prevent its prompt passage. Well, prompt passage we
have to have. The President does not want the current 6-month Protect
America Act to expire this Friday. He does not want that to happen. But
he has stated he will veto any extension and thereby ensure that it
will expire. What more evidence is needed to demonstrate the irrational
and self-destructive political addiction that drives this White House?
Doesn't drive the vice chairman of the Intelligence Committee, I
guarantee that.
Under the tortured logic of protecting America against terrorism, the
White House has decided to exercise, frankly, its own form of political
terrorism and has taken the FISA bill hostage.
From the beginning, the administration has demonstrated a deep-seated
contempt for the role of Congress in authorizing and monitoring
intelligence activities.
Whether it is the National Security Agency's warrantless surveillance
program or the Central Intelligence Agency's secret detention and
interrogation program, the White House for over 5 years walled off the
Congress and the courts from conducting the sort of meaningful
oversight and checks and balances that are essential to making sure our
intelligence programs are on sound legal operational footing.
To make matters worse, the administration has successfully used
objections and delaying tactics over the past 3 years to keep the
intelligence authorization bill from being passed and signed into law.
It is this flawed policy of Executive Branch unilateralism that has
created the mess we are now dealing with.
There is no possible way I can overstate the importance of this bill.
But it is hard to explain. Everybody can grasp on to the immunity
issue, leap to one side or the other, often without sufficient thought.
But the bill as a whole, meshed together as a whole like an Appalachian
quilt, is a thing of beauty, can be improved, and should be passed.
Nevertheless, I urge my colleagues to oppose the Republican cloture
motion on the FISA bill so that we can reassert something called the
role of Congress that we must play on these and other important
national security matters. Oversight is what we do. We don't write a
lot of bills in the Intelligence Committee, but we do oversight. But it
is not welcome in the current atmosphere.
I urge my colleagues to oppose the Republican cloture motion so that
we can consider on their merits the limited, manageable number of
amendments to the bill and, in the process, push bipartisan FISA reform
across the finish line.
I know Vice Chairman Bond and others are ready to get back to
business and start disposing of amendments. I feel confident that he
and I, as managers of this bill, will work closely, as we have in the
committee, to ensure that we do no unintended harm to this bill in the
matters of collection of intelligence or any other unbalancing of this
Appalachian craftwork.
There is still time for the Senate to work its way on the FISA bill
and pass it before the week's end. I hope we do so.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, it is my understanding that this side has 40
minutes of debate; is that correct?
The ACTING PRESIDENT pro tempore. The Senator's side has 46 minutes.
Mr. BOND. Mr. President, I ask unanimous consent that that be
divided; that I be allocated 15 minutes and that I be notified when my
15 minutes is up; that at the appropriate time, the Senator from Texas
be recognized for 15 minutes; and then, after intervening discussion
from the other side, the Senator from Georgia, Mr. Chambliss, be
recognized for 5 minutes. I would reserve the remainder of the time for
closing argument.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BOND. I thank the Chair.
Mr. President, we began consideration of this bill on December 17,
the FISA Amendments Act of 2007. As my friend the chairman said, it was
passed by the Senate Intelligence Committee with overwhelming
bipartisan support. It has garnered the support of the Director of
National Intelligence, and I believe it is the way forward.
I was a bit amused to hear my friend say that the FISA bill was being
taken hostage; they were scoring political points. I haven't heard from
the White House anything other than they want to have this bill passed.
We have sought to protect the rights of Republican Members on the
minority side. We have suggested that this bill is so controversial, as
all intelligence bills are, that amendments be subjected to a 60-vote
majority. The simple fact is, we could pass perhaps a number of
amendments that could destroy the structure of the bill we have
presented and put us in the position where it would not get the 60
votes needed to pass.
My suggestion is that we move forward accepting some amendments.
There are amendments on both sides, I agree with the chairman, that can
be accepted. Maybe we could even accept them without a vote or accept
votes on others at a simple majority, a 51-vote majority, and then on
certain controversial ones, we may have to have 60 votes. But we are
ready to move forward. We are not the ones who have held up this bill.
Very briefly, in April, the Director of National Intelligence, Admiral
McConnell--and I will refer to him as the DNI--sent a bill to the
Senate Intelligence Committee and said FISA is out of date. It has to
be updated. He came before us and testified in May. I asked him to do
something.
[[Page S379]]
Nothing happened. He came before the full Senate, actually, in closed
session, all Senators invited; that was in June. He explained how
urgent it was and how we were being left deaf and blind to
communications of terrorists. Nothing happened.
It was at the end of that session, going into the August recess, that
he proposed a temporary shortened version of FISA which became the
Protect America Act. I was pleased to support that in the Senate. It
passed the House and was signed.
We came back in September, knowing we had to work together on a
bipartisan basis, and the Senate Intelligence Committee and staff
worked very hard on a bipartisan basis to produce a bill, a very good
bill. It was the ultimate compromise. There were some on both sides who
were sullen but not rebellious. But we got the job done. We provided
the tools the intelligence community needed and significantly expanded
the protection of American civil liberties and privacy rights.
The bill sat on the floor in October. It finally came to the floor
December 17. A number on the majority side spoke out against the civil
liability protection afforded providers who allegedly assisted the
Government with the President's terrorist surveillance program, or TSP.
They criticized various provisions in the Intelligence Committee bill.
They spoke in favor of what regrettably was a partisan Judiciary
Committee substitute.
Debate is good for democracy but only if it is based on facts.
Unfortunately, during the December filibuster, we heard a number of
allegations, accusations, and even misrepresentation about the
committee's bill and the TSP. Some of those comments will be repeated
today.
Our intelligence community professionals must have the tools they
need to protect us. This is not the time to pass legislation that will
make people feel good or will score political points. We must pass a
bill the DNI will support and, thus, the President will sign. That
should be our goal. Distorting the truth will not help us get there.
The record must be set straight, and these are some of the myths we
have heard. What are the facts? We were told that a ``new and
aggressive'' interpretation of article II authority was used to justify
the TSP. There is nothing new or aggressive about relying on the
President's article II authority in the context of foreign intelligence
surveillance.
Courts, including the FISA Court of Review in the 2002 In re: Sealed
Case decision and the Fourth Circuit in the Truong case, have long
recognized distinctions between domestic and foreign surveillance and
the President's constitutional authority to conduct foreign
intelligence surveillance. Nor is it ``an invitation to lawlessness''
to argue that the President has inherent constitutional authority to
wiretap without a court order. The Constitution is the highest law of
the land and trumps any statute.
In 1978, when Congress recognized the tension between FISA and the
President's inherent authority under article II, they noted that
warrantless surveillance for foreign intelligence gathering has been an
integral part of our Nation's foreign intelligence. During World War
II, our warrantless surveillance of the German and Japanese militaries
and the breaking of their codes preserved our democracy. More recently,
the Clinton administration conducted a warrantless search of the
residence of convicted spy Aldrich Ames.
The Intelligence Committee conducted a comprehensive, bipartisan
review of the TSP. There is no evidence to substantiate the claims that
the administration began its warrantless surveillance before September
11 or that the TSP covered domestic calls between neighbors, friends,
and loved ones. As the President has stated, the TSP collected
international calls involving members of al-Qaida.
For many months, critics have argued that TSP could have been
conducted under FISA. That argument needs to be laid to rest. A
decision by a FISA court last spring proved that the TSP could not have
been done under FISA as it existed. The court decision resulted in
significant intelligence gaps which led to the passage of the Protect
America Act.
I was not there, but I understand this matter was discussed by the
President with the top leaders of this body and the other body, as well
as the Intelligence Committee, and was told at the time it would not be
possible to redraft and change the old FISA law in time to collect the
critical information they hoped to gather before attacks occurred
immediately following September 11.
The liability protection for those carriers who allegedly assisted
the Government with the TSP lies at the heart of this legislation. The
President did what he had to do under article II, and our country was
safer for it, and our country was safer because some of the carriers
alleged to have participated acted in reliance and good faith on orders
of the Attorney General, transmitting the President's order--and the
intelligence community.
In his original FISA modernization request in April of 2007, the DNI
asked for full liability protection for all those allegedly involved.
Some Members have attacked DNI McConnell's integrity, calling him ``an
accidental truth teller'' and accusing him of backing out of an
agreement made under the PAA. These comments are not only unjustified,
unwarranted, and unfair, they are counterproductive. Throughout this
debate, the DNI and other intelligence professionals have given us
unbiased advice and technical assistance. They have assisted Democrats
and Republicans. We need to focus on the task at hand, not engage in
personal attacks against a man who has served his country honorably in
the military and the intelligence community, and continues to do so as
head of the community.
Some of the Members have downplayed the need for liability
protection. They argue that carriers already have statutory immunity
and that continued litigation will not harm providers or our
intelligence efforts. These statements reflect a startling lack of
knowledge about our intelligence collection, which is dangerous to the
continued operation of our gathering.
First, the companies cannot prove they are entitled to statutory
immunity because the Government must assert state secrets to protect
their intelligence collection methods. Second, while it is true that
the existence of the TSP has been revealed, there are still,
fortunately, a few details about the program that have not. Each day
the lawsuits continue--with the prospect of civil discovery--there come
new risks that sensitive details about our intelligence sources and
methods will be revealed. As General Hayden stated a year and a half
ago: The disclosure of the TSP has had a significant impact on
intelligence gathering of terrorists. We are applying the Darwinian
theory. We are only capturing the dumb ones. We should not give
terrorists additional insight through continued TSP litigation.
Further, our intelligence and law enforcement agencies rely on the
willingness of providers to cooperate--in emergencies, as with the
kidnapping of a child, or when court orders are not required. Yet some
carriers have already told us if they do not get liability protection,
they will not be able to risk their business, their reputation, by
continuing to help without court orders. That would be devastating to
our intelligence collection.
Our committee weighed all these arguments for and against liability
protection. We concluded by a 12-to-3 bipartisan vote that civil
liability protection for providers--and only providers, not Government
officials--was not only fair, it was the only way to safeguard our
intelligence sources and methods, and to ensure the continued
cooperation of the providers.
Substitution is not a solution since it would allow civil discovery
to proceed against providers, still leaving them open to disclosure and
exceedingly serious competitive and reputational harm, perhaps even
physical retaliation by radicals who oppose our intelligence gathering.
The intelligence community advised us through testimony and gave us
documents that these companies acted in good faith, and we in the
committee agreed with them. The providers who may have participated
relied upon representations from the highest levels of Government.
There is no need to create a statutory mechanism for a court, whether
it be the FISA Court or any other, to second-guess this determination.
Allowing
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a court to do so would throw uncertainty into an area where the
committee's intent is clear: The ongoing civil litigation against
providers must end. On this last point, the term ``amnesty'' was tossed
around in December. But that incorrectly assumes that alleged carriers
did something illegal. These carriers do not need amnesty. They did
nothing wrong. They deserve liability protection.
As I mentioned earlier, the DNI said he will support the Intelligence
Committee's bill with two revisions. Yet some Members insist there are
fatal flaws. We heard, No. 1, that there are no consequences if the
FISC rejects the targeting/minimization procedures; No. 2, the bill
does not contain a ``reverse targeting'' prohibition; and, No. 3, it
allows warrantless interception of purely domestic communications. A
plain reading of our bill shows that each one of these arguments is
false.
The bill that came out of our committee goes farther than ever before
in providing a meaningful role for the courts and Congress in
overseeing acquisitions of foreign intelligence. The FISA Court will
review the targeting and minimization procedures to ensure they comply
with the law. If the court finds any deficiency, it can order the
Government to correct the deficiency or cease the acquisition.
There is nothing--I repeat, nothing--in this bill that will allow
warrantless wiretapping of Americans in violation of title III criminal
wiretaps or FISA. There are explicit prohibitions against ``reverse
targeting'' and the targeting of the person inside the United States
without a court order. Americans abroad are given new FISA Court
protections. The acquisitions must also comply with the fourth
amendment. These are major new protections for Americans. Yet in spite
of these measures--protections we have never seen before in the world
of foreign targeting--we have been told the intelligence community will
still target innocent Americans, listening to calls between parents and
children overseas, between students and their friends studying abroad.
That is absolute nonsense. The Intelligence Committee's bill only
allows targeting of persons outside the United States to obtain foreign
intelligence information. This is not a dragnet of surveillance. We are
not listening to, quote, completely innocent people overseas, unquote,
as some have claimed. The targets must be foreign targets--suspected
terrorists or terrorist group members--and the Attorney General and the
DNI must certify that a significant purpose of the acquisition is to
obtain foreign intelligence information.
For example, if a foreign target is believed to be an agent or member
of al-Qaida, then all communications will be intercepted. Only
Americans who communicate with that target will have those specific
conversations monitored. If those same conversations turn out to be
purely innocent, they will be ``minimized,'' or suppressed. Even if the
communication contains foreign intelligence information, it is likely,
in many instances, the identity of any U.S. person will be masked--or
protected--in any intelligence reporting. Americans' privacy rights are
protected up to the point where they are actually engaging in a
terrorist operation.
Mr. President, I see my time is running out. I will reserve the
remainder of my time. I will give the rest of my remarks at a later
time.
Thank you.
The ACTING PRESIDENT pro tempore. Who yields time?
Mr. ROCKEFELLER. Mr. President, I yield 7 minutes to the Senator from
Wisconsin.
The ACTING PRESIDENT pro tempore. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I thank the chairman of the Intelligence
Committee.
The Senate should not be having a cloture vote on this legislation
today. What we should be doing is considering and voting on the
amendments that I and my colleagues tried to bring up last week, and
other amendments that have been proposed to improve this badly flawed
bill. But the minority does not think we should have the right to
actually legislate here. They expect this body to rubberstamp that
bill.
I am afraid I have to say the conduct of the minority has been very
disturbing on this. They insisted for weeks that it is absolutely
critical to finish the FISA legislation by February 1, even going so
far as to object repeatedly to efforts by the majority leader to extend
for only 1 month the Protect America Act--a law they rammed through
this Chamber in August--and they still don't want to give us another
month so the Senate can carefully consider changes to it.
So the majority leader brought to the floor the Intelligence
Committee bill, the legislation that the minority wanted to consider
and urged the Senate to stay in session through the weekend to complete
work on it. I criticized the majority leader for bringing the
Intelligence Committee bill to the floor because I thought the Senate
should be working from the much better bill reported by the Judiciary
Committee, on which I also serve, but I would have thought the minority
would be pleased by the majority leader's decision.
So what have they done in response? They have obstructed all efforts
to actually work on this bill. They will not allow me to get a vote on
the one amendment I have offered--an amendment cosponsored by Senator
Hagel--and they will not allow me or anyone else to offer any other
amendments. They filed for cloture the day this Senate began working on
the bill, after allowing only a single amendment to be called up. They
have effectively halted Senate consideration of this bill, despite the
fact they are the ones--they are the ones--who are arguing that the
February deadline is so critical. They seem to think that scare tactics
peddled by administration officials, such as the Vice President, will
be enough to pressure the Senate into letting them have their way. I
certainly hope they are wrong.
Mr. President, as you well know, this legislation is in serious need
of fixing. It authorizes widespread surveillance involving Americans at
home and abroad. Yes, it does. Despite what the Senator from Missouri
said, it certainly does do that. I have a number of amendments I want
to offer, both to ensure that the FISA Court has more authority to
oversee these authorities, and to guarantee Americans their fourth
amendment rights. But I cannot even get a vote on the one, simple,
straightforward, and extremely modest amendment I offered last week.
This demonstrates how brazen these tactics are. This bipartisan
amendment would merely require that the Government provide copies of
important FISA Court orders and pleadings for review to the committees
of jurisdiction in a classified setting, so that Members of Congress
can understand how FISA has been interpreted and is being applied. You
would think this amendment would be, as they say, a no-brainer, and yet
the minority will not even consent to a vote on that.
But at least that one amendment is pending, and we will get a vote
eventually. If the Republicans succeed in cutting off debate on this
legislation, the Senate will not be able to vote on any other
amendments, including the amendment Senator Dodd and I wish to offer to
deny retroactive immunity to telecom companies that allegedly
cooperated with the administration's illegal wiretapping program. It is
unconscionable to think that the Senate should have to make a final
decision on this legislation without even having an opportunity to
debate and vote on whether to grant retroactive immunity to companies
that allegedly cooperated with an illegal program.
And why are we in this situation? Because the minority and the
administration think they are entitled to ram the deeply flawed
Intelligence Committee bill through the Senate without any changes. It
seems they are worried the Senate might actually pass some of the very
reasonable amendments I and others would like to offer if they give us
a chance to do so or perhaps they are trying to sabotage the bill and
then figure out a way to blame that outcome on Democrats.
No Senator--no Senator--should go along with these cynical, strong-
arm tactics. We have to stand up to the administration and stand up for
our rights.
I strongly urge my colleagues to oppose cloture. Invoking cloture on
this bill would be an abdication of our responsibility to consider
legislation that will have a huge impact on the
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American people for years to come. I hope even those who support the
Intelligence Committee bill will think twice before voting to make this
body a rubberstamp.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Texas is
recognized.
Mr. CORNYN. Mr. President, I don't know why any Member of the Senate
would object to procedures we would employ within the bounds of the law
to listen to communications of terrorists in order to detect and deter
further terrorist attacks on our own soil or against Americans or our
allies. That is what this legislation does. Unfortunately, I think we
are beginning to see a dangerous trend on the part of the Senate: Never
failing to put off until tomorrow what we could and should do today.
This legislation has been considered for an awfully long time, as we
all know, in a bipartisan vote of the Senate Intelligence Committee, 13
to 2. In October, this legislation was voted out of the Intelligence
Committee in a carefully crafted attempt to consult with the Director
of National Intelligence, the head of the Central Intelligence Agency,
and all other intelligence community members who might be impacted by
this legislation. There has been opportunity after opportunity for
input into this legislation by Members of the Senate. Yet we hear today
there are those on the floor of the Senate who are saying: Well, let's
not vote on this legislation now. Let's kick the ball down the road
another month so we can have the same debate, the same discussion we
have been having for all those many months leading up to this point.
The only reason we are where we are today is because we were unable to
get a lengthy extension of the Foreign Intelligence Surveillance Act in
August. Because of objections by those on the other side who are
complaining about this legislation again today, we were only able to
pass this legislation until December and then another extension was
granted until February 1, when this Protect America Act expires of its
own terms. I would hope this body would continue to act in a strong
bipartisan manner in which the Intelligence Committee has voted this
bill out of the Intelligence Committee by a vote of 13 to 2.
I appreciate the fact that this body tabled the Judiciary Committee's
partisan substitute and sent a signal that bipartisanship and consensus
may once again become ascendant in matters of national security in the
Senate. I think we would see that as a welcome development. At a time
when we are talking about an economic stimulus package and seeing
cooperation from the Speaker and the minority leader in the House and
the President of the United States on matters affecting the economy,
why can't we get that same sort of bipartisan cooperation on matters
affecting national security?
Today, the Senate is poised to move this critical national security
legislation one step closer to the President's desk. Today's vote will
tell us much more about whether this Senate is ready to set aside
partisanship and willing to get the job done.
Members of this body will remember that in December we had to pass an
Omnibus appropriations bill that affected all discretionary spending of
the U.S. Federal Government because we had been unable to pass 11 out
of the 12 appropriations bills that it was our responsibility to pass.
Unfortunately, this Senate has an unfortunate recent tendency to put
off things until tomorrow what we should and could be doing today, and
we should not let that happen. We need to finish this legislation to
give Members a chance to debate and then to vote.
I don't favor each and every provision included in the bipartisan
compromise that is sponsored by Chairman Rockefeller and Vice Chairman
Bond, but I do appreciate the fact that it is a carefully crafted
compromise. It is a bipartisan compromise. It is the product of
extensive consultation and negotiation with the experts in our
intelligence and defense communities.
In other words, this legislation reflects the valuable and necessary
input of the very men and women who are currently intercepting phone
calls, text messages, and e-mails between al-Qaida and their
operatives--those who wish to do America and America's interests harm.
The Senate has two choices today as the deadline for action rapidly
approaches on February 1. On the one hand, we can show the American
people that at least when it comes to matters of national security, it
is possible to put partisanship aside and to get the job done in a
bipartisan way. The other choice, which the majority leader has
proposed, is we ask the American people for an extension, that we kick
the can down the road for another month, only to find ourselves back in
precisely the same posture we are in today: With no issues resolved and
with the same old debates to be rehashed when we ought to finish the
job today and follow the path of maximum responsibility.
I ask my colleagues: What excuse could there possibly be to put the
tough choices off for another month? What justifies asking the American
people for more time to get the job done when we know what the choices
are and we have simply to make those choices by our vote today. We have
had 6 months since the Protect America Act was passed in August of last
year to get the job done. In that time, this legislation has been
subjected to scrutiny by two Senate committees, and there has been
significant time debating this legislation on the floor.
The fact is there is no acceptable excuse for failing to do our duty
and our job. The excuses offered for delay are as compelling as the old
school house claim that my dog ate my homework, I couldn't get it done.
I say no more excuses, no more extensions. It is time for Congress to
come together in a bipartisan fashion in the national security
interests of the United States.
It is specious to say there is no consequence to another extension,
and it is the height of irresponsibility to argue that delay is the
only responsible choice. As America's elected leaders, we have a
responsibility to keep America safe. We cannot simply close our eyes
and wish away the terrorist threat. It is easy this many years after
September 11 to be lulled into a false sense of security as time takes
us further away from that terrible attack on American soil. But it is
undeniable that the threat from al-Qaida and Islamic extremists
remains.
In the face of the very real threat of radical Islamic terror,
Congress must be resolute and we must eschew attempts to split along
partisan lines, and we must embrace bipartisan solutions to our very
real national security problem. That is what a vote on the Senate
Intelligence Committee bill would reflect: a bipartisan solution to a
national security challenge.
That is why it defies credibility to argue that the responsible thing
to do is to put the job off for another month. The majority leader's
plea for an extension implies that the only two choices we have are, on
the one hand, an extension for 1 month and, on the other hand, no bill
at all. Neither of those is a responsible choice.
In fact, there is a third option, and that option is for the Senate
to pass a consensus bill that has the bipartisan support of the
chairman and vice chairman of the Intelligence Committee and a
bipartisan majority of the Senate, experts in the intelligence
community, and the President of the United States.
Let's be clear about what an extension means. An extension means
further delay. It means putting off tough choices. It means not only to
do so in a time of war but in a time of economic fragility, when we
have other work we need to be doing on the floor of the Senate that is
being taken up unnecessarily by repeating the same arguments over and
over without any conclusion. It also means Congress has lacked the
courage to relieve some of America's leading companies from the burdens
and costs of litigation arising from their cooperation in the war on
terror.
Let us remember the telecommunications companies that may have
cooperated with our Government at the request of our President, and
upon the certification of the Attorney General, the chief law
enforcement officer, that what they were being asked to do was within
the law. To continue to subject them to litigation for doing their
civic duty, to incur ongoing expense and inconvenience and to risk
information that is sensitive to our security coming out during the
process is simply not a responsible option.
[[Page S382]]
Some in Congress apparently think these companies should have second-
guessed the legal representations made by the President and the
Attorney General in the days and weeks and months following the 9/11
attacks. Some in Congress have argued that the companies had a duty not
to cooperate, a duty to refuse to assist this Nation's intelligence
community with tracking terrorists during wartime. That is,
unfortunately, how far we have come in this debate and how off the mark
some have come.
These companies, as every good citizen who cooperates with their
Government to try to keep America secure in good faith, deserve the
protection we are being asked to give them in this legislation. These
costly lawsuits have not only put in jeopardy the future cooperation of
these firms but also the critical national security concerns
potentially exposed to the discovery process in civil litigation. It
may be popular in some quarters to bash corporate America, but that
rhetoric is sorely misplaced in this debate. The men and women who
manage these companies made a good-faith decision to do their patriotic
duty--to help their Government to track terrorists and to save American
lives, and they should not be punished for it. They should be thanked
for their cooperation.
For Congress to allow these burdensome lawsuits to continue this long
is unfortunate and unjust indeed, but for Congress to continue to put
off the tough choices and leave these companies in legal limbo is not
only unfortunate and unjust, it is also irresponsible. Now is the time
for Congress to decide the question--no more excuses, no more delays,
no more extensions. Today, the Senate can choose a path forward, a
bipartisan path on critical national security measures, and I urge all
my colleagues on both sides of the aisle to work together to move this
bipartisan bill forward by voting for cloture at 4:30.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Georgia is
recognized.
Mr. CHAMBLISS. Mr. President, I rise today in support of cloture on
S. 2248, the Foreign Intelligence Surveillance Amendments Act, or FISA
Amendments Act. Time is running out on congressional action to fix
FISA. The Protect America Act, which Congress passed in August to close
gaps in our foreign intelligence collection, expires this Friday,
February 1, 2008.
Prior to congressional action in August, our intelligence community
was unable to collect vital foreign intelligence without the prior
approval of a court. And I emphasize in that ``foreign'' intelligence.
This will be the case again if we do not make permanent these changes.
Before August, if our intelligence community wanted to direct
surveillance at an al-Qaida member located in Pakistan who was
communicating with an operative terrorist in Germany, they would have
to first petition the FISA Court for approval. In August of this year,
our intelligence community told us that without updating FISA, they
were not just handicapped, but they were hamstrung.
The Protect America Act temporarily fixed the intelligence community
legal gaps. The Director of National Intelligence highlighted some of
the critical intelligence gained under the Protect America Act,
including: insight and understanding leading to disruption of planned
terrorist attacks; efforts of an individual to become a suicide
operative; instructions to a foreign terrorist associate about entering
the United States; efforts by terrorists to obtain guns and ammunition;
terrorist facilitator plans to travel to Europe; identifying
information regarding foreign terrorist operatives; plans for future
terrorist attacks; and movements of key extremists to abate a risk.
With the Protect America Act set to expire, Congress must act swiftly
before our core collectors are faced with losing this kind of valuable
intelligence as a result of inaction by Congress.
Although the Protect America Act enabled the intelligence community
to continue its important work, Congress would be derelict in its
duties to merely extend the expiration of this act.
The Senate Intelligence Committee has been reviewing and drafting
FISA legislation since April of last year. Last fall, the committee
considered and passed the bill that is now before us. In December, the
bill came to the Senate floor for consideration, but some of my
colleagues on the other side of the aisle delayed its consideration. We
are now faced, after almost 10 months of thorough consideration, with
the ability to pass legislation which will improve our intelligence
collection and which contains safeguards for U.S. citizens' privacy
rights that the Protect America Act does not contain.
The FISA Amendments Act contains a clear prohibition against
intentionally targeting persons located inside the United States and a
prohibition on reverse targeting of U.S. persons, which the Protect
America Act does not. The FISA Amendments Act makes clear that the FISA
Court approval is required for intentionally targeting U.S. persons
abroad and requires that any collection be consistent with the fourth
amendment. Most important, the FISA Amendments Act contains
retrospective immunity for our telecommunications carriers that may
have assisted the Government in protecting American lives.
Extending the Protect America Act does not ensure the continued and
necessary cooperation of those who may have assisted the Government
with the terrorist surveillance program after September 11.
The Government often needs assistance from the private sector in
order to protect our national security. Telecommunications carriers may
provide the Government access to communication contents and records
pursuant to many Federal processes, including judicial warrants,
subpoenas, title III orders, FISA orders, attorney general
certifications, administrative subpoenas, national security letters,
and other statutory authorizations. In return, they should be able to
rely on the Government's assurances that the assistance they provide is
lawful and necessary for our national security.
In Smith v. Nixon, the U.S. Court of Appeals for the District of
Columbia suggested that the Government's request to wiretap a home
telephone was illegal. Yet they dismissed the telephone company from
any liability because of the assurances they received from the
Government, the reasonable expectation of legality, and their limited
technical role in assisting the Government in surveillance initiated by
the Government.
As precedence suggests, America's telecommunications carriers should
not be subjected to costly legal battles and potentially frivolous
cases, yet ones which could expose intelligence sources and methods,
harming our national security, merely for their good-faith assistance
to the Government. It is necessary and responsible for Congress to
provide telecommunications carriers with liability relief.
I urge my colleagues to support cloture on the Rockefeller-Bond
substitute amendment and oppose a simple extension of the Protect
America Act. Senators Rockefeller and Bond have worked hard and long
hours to make sure we got it right in this bill that came out of the
Intelligence Committee. After many hours of negotiating, debate, and
hard work, it would a shame to see this bill not come to fruition and
pass this body at this point in time. Our intelligence community needs
the tools and additional safeguards provided in the FISA Amendments Act
to keep our people safe, and Congress needs to act quickly before the
Protect America Act expires and these tools are taken away.
Mr. BIDEN. Mr. President, I rise today in opposition to the
Intelligence Committee's version of the Foreign Intelligence
Surveillance Amendments Act of 2007. It is without question that I
support giving the administration the surveillance tools it needs to
keep us safe. But Congress has both a duty to keep the American people
safe and uphold the Constitution.
It is therefore incumbent upon us in the Senate to craft clear
legislation that protects both our national security and our civil
liberties. We can do that by passing the Judiciary Committee
substitute, which gives the administration the tools it needs to
collect foreign intelligence and protects innocent Americans by
ensuring that the FISA Court, and not the Attorney General, decides
whether surveillance of a U.S. person is proper.
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One of the defining challenges of our age is to combat international
terrorism while maintaining our national values and our commitment to
the rule of law and individual rights. These two obligations are not
mutually exclusive. Indeed, they reinforce one another. Unfortunately,
the President's national security policies have operated at the expense
of our civil liberties. The examples are legion, but the issue that
prompted the legislation before us today is one of the most notorious--
his secret program of eavesdropping on Americans without congressional
authorization or a judge's approval.
After insisting for a year that the President was not bound by the
Foreign Intelligence Surveillance Act's clear prohibition on
warrantless surveillance of Americans, the administration subjected its
surveillance program to FISA Court review in January of last year.
Then, last August, citing operational difficulties and heightened
threats that required changes to FISA, the administration passed the
Protect America Act--over my objection and that of many of my
colleagues. The Protect America Act, which sunsets at the end of this
month, amended FISA to allow warrantless surveillance, even when that
surveillance intercepts the communications of innocent American
citizens inside the United States.
The administration identified two problems it faced in conducting
electronic surveillance under FISA. First, the administration wanted
clarification that it did not need to obtain a FISA warrant in order to
conduct surveillance of calls between two parties when both of those
parties are overseas. Because of the way global communications are now
transmitted, many communications between people all of whom are
overseas are nonetheless routed through switching stations inside the
United States. In other words, when someone in Islamabad, Pakistan,
calls someone in London, that call is likely to be routed through
communications switching stations right here in the United States.
Congress did not intend FISA to apply to such calls, and I support a
legislative fix to clarify that point.
The second problem the administration identified is more difficult.
Even assuming that the government does not need a FISA warrant to tap
into switching stations here in the United States in order to intercept
calls between two people who are abroad--between Pakistan and England,
for example--if the target in Pakistan calls someone inside the United
States, FISA requires the government to get a warrant, even though the
government is ``targeting'' the caller in Pakistan.
The administration wants the flexibility to begin electronic
surveillance of a ``target'' abroad without having to get a FISA
warrant to account for the possibility that the ``foreign target''
might contact someone in the United States. I agree with the
administration's assessment of the problem, but I don't support its
solution.
The administration's proposal, which is reflected in the Intelligence
Committee's version of the FISA Amendments Act, would significantly
expand the scope of surveillance permitted under FISA by exempting
entirely any calls to or from the United States, as long as the
government is ``targeting'' someone reasonably believed to be located
outside the United States.
The government could acquire these communications regardless of
whether either party is suspected of any wrongdoing. The Attorney
General and the Director of National Intelligence would make the
determination about whom to target on their own, and they would merely
certify, after-the-fact, to the FISA Court that they had reason to
believe the target was outside the United States, regardless of how
many calls to innocent American citizens inside the United States were
intercepted in the process.
This Intelligence Committee bill authorizes surveillance that is
broader than what is necessary to protect national security and that is
why I oppose it.
The Intelligence Committee bill offers no protection for the innocent
Americans who communicate with overseas relatives, business partners,
or friends. Indeed, it allows the government unfettered access to these
innocent Americans' communications. And once the government collects
these communications, it can share them with other agencies throughout
the government.
The Judiciary Committee substitute--which authorizes much broader
surveillance powers than the government had under FISA before the
Protect America Act became law--offers several significant protections.
I will mention a few: First, the Judiciary Substitute protects against
the ``bulk collection'' of communications by requiring the government
to target a specific person or phone number abroad, rather than
allowing the acquisition in bulk the millions of communications going
into and out of the United States. Second, it requires the government
to obtain an individualized warrant from the FISA Court if the
government's acquisition of a person inside the United States becomes a
significant purpose of its surveillance of the foreign target. Third,
it provides for much more robust and meaningful congressional
oversight. And fourth, it does not provide retroactive immunity for the
telecommunications carriers.
I oppose granting retroactive immunity because if the carriers
violated clearly stated Federal law, they should be held accountable.
Cases against the carriers are already making their way through the
courts. Retroactive immunity would undermine the judiciary's role as an
independent branch of government. Furthermore, the provision that holds
carrier liable for violations of the act is an important enforcement
mechanism. It is fundamental to securing the privacy rights that FISA
was meant to protect.
When the Senate passed FISA, after extensive hearings, 30 years ago
by a strong bipartisan vote of 95 to 1, I stated that it ``was a
reaffirmation of the principle that it is possible to protect national
security and at the same time the Bill of Rights.'' I still believe
that's possible, but not if we enact the Intelligence Committee bill.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER (Mr. Cardin). The clerk will call the roll.
The 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 PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CHAMBLISS. Mr. President, I ask unanimous consent that the time
for the quorum we will go into be equally divided between Senators Bond
and Rockefeller.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CHAMBLISS. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BOND. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOND. Mr. President, how much time is remaining on our side?
The PRESIDING OFFICER. Twelve and a half minutes.
Mr. BOND. Mr. President, while we are waiting for Members of the
other side to come forward, I will make a few remarks, and we will see
if we have some others join us.
I was talking about some of the proposed amendments and questions
that have arisen about this bill. There are some who would demand that
a court order be obtained any time a call involved a U.S. citizen. But
anybody who understands FISA or intelligence collection knows that is
operationally impossible.
For 30 years, the intelligence community has used minimization
procedures when inadvertently intercepted calls come to or from
nontargeted U.S. persons. So far, we are totally unaware of any abuses
of this system. The minimization procedures have worked well. They
worked well when information was being collected by radio, without a
FISA Court order, and they continue to work well because the well-
trained people who run the NSA operations are overseen by multiple
layers of supervisors and inspectors general and attorneys from the
Department of Justice.
There is no way to know, when a terror suspect places a call from a
location in the Middle East, whether that
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person is going to call someone in his country or a neighboring country
or the United States. So if you say you cannot intercept that call if
it goes to a U.S. person, what, in effect, you are saying is you cannot
intercept that call because you don't know where the call is going. So
it means there will have to be an order for every foreign terrorist
surveillance conducted by the NSA, and that is totally unworkable. We
have seen that before. That shut the system down. It is unsound policy
to require a FISA Court order if a terrorist target abroad calls a U.S.
person. That may be the most important call to intercept in order to
protect us from a terrorist attack at any time, and time matters. Do we
really mean that the call cannot be intercepted until a court filing is
prepared and reviewed by Government lawyers and that the FISA Court
must review the application and supporting amendments? I hope not. Our
enemies are not stupid. They would figure out very quickly that they
can slow us down and bring our intelligence community to a halt simply
by placing periodic calls to the United States.
Some believe that the FISA framework in place is enough to keep us
safe and that we don't need the Intelligence Committee bill. I find
that comment disturbing. It is the FISA framework that created
significant intelligence gaps threatening the security of our Nation.
It is only because we passed the Protect America Act that those gaps
were closed.
I have already spoken about the problems with the Judiciary Committee
bill. I wish to address some concerns and some ideas raised about the
Foreign Intelligence Surveillance Court, the FISA Court.
I think our bill out of the Intelligence Committee strikes the
appropriate balance between providing tools needed to collect
intelligence and a meaningful oversight role for Congress and the FISA
Court.
There are a lot of misperceptions about the FISA Court. As mentioned
previously, for example, there are those who suggest the court should
have decided whether providers acted in good faith before immunity is
granted. We were told this makes sense because the court ``sits 24/7
and this is all they do. They would act en banc.'' That is not
accurate. The FISA Court does not sit 24 hours a day, 7 days a week. It
is composed of U.S. judges from U.S. district courts throughout the
country who have their own full caseloads and come to Washington, DC,
on a rotating basis simply, as the enabling legislation says, to issue
FISA Court orders. As a result, it would be difficult to get them to
sit together.
Given the court's facilities, it is not set up to preside over
litigation. We were told that this is why the FISA Court was set up,
but the legislative history and the measures----
The PRESIDING OFFICER. The Chair advises the Senator that he is going
into the time reserved for the Republican leader.
Mr. BOND. Mr. President, I will then close and urge that our
colleagues adopt cloture so that we may move forward on this very
important bill.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, how much time remains on our side?
The PRESIDING OFFICER. Nineteen and a half minutes, with 10 minutes
reserved for the leader.
Mr. ROCKEFELLER. I yield 9\1/2\ minutes to the Senator from
Connecticut.
The PRESIDING OFFICER. The Senator from Connecticut is recognized.
Mr. DODD. Mr. President, I thank the manager of the legislation,
Senator Rockefeller. Once again, I will say that I have great
admiration for the work done by the committee. It is not an easy
matter. The Intelligence Committee has serious work to do. Much of what
they have done, I agree with. My objections here this afternoon are
focused on one aspect of the legislation rather than the cumulative
effort the committee has made.
Let me address the issue we will be voting on, and that is cloture.
That is a critical issue for all of us.
Aside from the question of whether I agree or disagree with various
amendments, or even the bill, we find ourselves in the midst of a
parliamentary nightmare. We have been in this position since late last
year, going back to December.
So much hinges on this bill. It will set America's terrorist
surveillance policy well into the next Presidential term and beyond if
a period of 6 years is adopted or even the 4 years suggested by Senator
Cardin and others. Depending on the outcome of the debate, this
legislation has the power to bring that surveillance under the rule of
law or to confirm the President's urge to be a law of his own. It has
the power to bring the facts of warrantless spying to light and to
public scrutiny, or to lock down those facts as the property of only
the powerful.
It has the power, obviously, to declare the same law applies to all
of us regardless of economic circumstances, well connected or not, or
to set the precedent that some corporations are far too rich, far too
affluent to be sued, that immunity can effectively not be brought
against them.
Wherever you come down on these choices--and I know there are those
of us who have different opinions--you certainly cannot be neutral, in
my view. None of us can be neutral on a matter such as this. This is
one of the most important and contentious pieces of legislation we will
debate in this session, and I argue any session of Congress, and yet
the Senate is frozen today.
I objected passionately to retroactive immunity, but I did not shut
out debate. Republicans have frozen this body since debate began, not
only last week but going back further, and they unwittingly created a
perfect microcosm of retroactive immunity right here in this body.
Because both flow from the same impulse: shutting down the organs of
Government--in this case, the legislation, the courts, and now, because
of the procedural nightmare we find ourselves in, the Senate--when you
are afraid, of course, you will not get your way. That is why President
Bush wants his favored corporations saved from lawsuits, it appears.
That is why the minority party wants this bill saved from any and all
amendments, saved from serious and thoughtful discussion.
As a committee chairman myself, as I pointed out the other day, I
wish I had the privilege being requested by the minority. I sometimes
wished the bills we passed out of committee would have swept out of
this body when I came to the Senate floor without a single amendment.
That is not how this body works. It was never intended to work that
way. It is certainly not the way the Founders intended it to work.
Amendments are not entitled to pass, but they are entitled to a fair
hearing, a fair debate, and a fair vote. The minority can object as
strenuously as it wants, but it must do so fairly. I accept that
principle, even when it does not go my way; even on immunity itself, I
understand a minority cannot stand forever. Is it too much for
Republicans to extend the same courtesy?
On a bill as important as this one, it would be ridiculous to curtail
debate, shut out new ideas, or rush to a conclusion without even
extending the Protect America Act for a month to give us the time we
need. Whether you agree with them or not--and some I disagree with
myself--the amendments offered by my Democratic colleagues are serious
proposals and deserving of serious consideration.
Shouldn't we debate whether this new surveillance regime ought to
stay inflexible through the next Presidential term and into the one
after that?
Shouldn't we debate whether we are going to categorically outlaw
unconstitutional reverse targeting or indiscriminate vacuum cleaner
bulk collection?
Shouldn't we debate whether Congress even gets to see the secret
rulings of the FISA Court?
Those are some of a few of the well-intentioned proposals we need to
consider before we vote on this bill. But across the board, the
Republican answer to those questions is absolutely not, in every single
instance: No debate, no votes. I disagree, and I will vote against
cloture because we haven't done our job yet.
I will also vote against cloture because I cannot support the bill as
it now stands, as my colleagues know. First, the legislation still
contains some egregious provisions for corporate immunity. I already
made my objection to immunity many times
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over the last number of days. It puts the President's chosen few above
the law, in my view; it endorses possibly illegal spying on Americans;
and it strikes a harsh blow against the rule of law. I will continue to
fight retroactive immunity with all the strength any one Senator can
muster.
But I also strongly object to many of the intelligence-gathering
portions of the bill, as well as supporting many of them that have been
included. This bill reduces court oversight of spying nearly to the
point of symbolism. It would allow the targeting of Americans on false
pretenses. It opens up new twisted rationales for warrantless
wiretapping, which is exactly what it ought to prevent. It could allow
bulk collection of communications of millions of Americans as soon as
an administration, whether this one or future one, has the wherewithal
to build such an enormous dragnet, and it sets all of these deeply
flawed provisions in stone for 6 years, depriving us of the flexibility
we need to fight terrorism.
For all of those reasons, as well, I will vote against cloture later
this afternoon.
Tonight, the President will come to Congress to speak to us and to
the American people about the state of our Union. I hope he will use
that opportunity to realize the Senate needs more time to do its
constitutional duty to debate and consider this important legislation.
However, I am concerned that he will instead continue to threaten to
veto this legislation unless it includes retroactive immunity for the
telecommunications industry.
The President has said this bill is essential to ``protecting the
American people from enemies who attacked our country.'' That is a
quotation. So why is he trying to stop it? Why is he promising to veto
it? Why is he throwing it all away to protect a few corporations from
lawsuits?
I fear that if we give this President what he wants, we risk
weakening the rule of law and placing the rights of some of the
President's favored corporations over the rights of ordinary American
citizens.
I hope my colleagues will join with those of us who oppose cloture
today on the substitute amendment to allow the Senate the time it needs
to debate and improve the FISA Amendments Act. This issue is far too
important for the security of our Nation and to our civil liberties to
do otherwise.
As we all know, as I have stated over and over, this is historic
tension that dates back to the founding of our Republic, of keeping us
safe from those who would do us harm, and protecting the rights and
liberties of American citizens. It has been a tension that has been
debated and argued for more than 200 years, and the adoption of the
FISA legislation three decades ago created the means by which that
balance could be struck, allowing us to do what is necessary to protect
us against those who would do us harm while simultaneously guaranteeing
those rights and liberties we enjoy as Americans would be protected in
these circumstances.
It is a critical point to maintain that balance. My fear is this
legislation, particularly with retroactive immunity, upsets that
balance significantly.
As I said before, and I will repeat in closing, had this been a few
months, even a year in the wake of 9/11, had this administration had a
record of by and large supporting the rule of law, I would not stand
here and demand that we not include retroactive immunity under those
circumstances. But there has been a pattern of behavior by this
administration from the very outset. We now know these warrantless
wiretaps began in January or February of 2001, not in the wake of 9/11.
So even prior to the tragic events of September 11, 2001, this
administration had begun a pattern of seeking warrantless wiretaps on
average American citizens without the court orders provided for under
the Foreign Intelligence Surveillance Act. Of course, it went on for 5
years and would still be ongoing were it not for a whistleblower in a
report in a major American newspaper uncovering this program.
This went on for 5 long years amidst a pattern of behavior by this
administration. I do not think I need to necessarily enumerate the
examples of that pattern, beginning with Abu Ghraib, secret prisons and
rendition, habeas corpus, the U.S. Attorney's Office, and the list goes
on and on. I cannot undo those mistakes, but they are more than just
mistakes. They are tragic examples of this administration's trampling
all over the rule of law. What we can do this evening and what we can
do in the coming days, collectively, Democrats and Republicans, is pass
a FISA bill, much of which is included in the work of Senator
Rockefeller and Senator Bond. There will be some objections, obviously,
to some amendments that will be offered, but to get our work done, pass
this legislation, and move on to other business. The issues are far too
important to leave them otherwise.
I thank, again, Senator Rockefeller for giving me some time and urge
our colleagues to vote against the cloture motion when that moment
occurs.
I yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from West
Virginia.
Mr. ROCKEFELLER. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Republican leader is recognized.
Mr. McCONNELL. Mr. President, we are now only a few days away from
the expiration of the Protect America Act, days away from a situation
in which the intelligence community will be unable to freely monitor
new terrorist targets overseas. We are flirting with disaster, and the
American people deserve to know how we got in this predicament. So let
me review it.
Ten months ago, the Director of National Intelligence asked us to
reform the Foreign Intelligence Surveillance Act. Our friends on the
other side waited until July to take up a bill that agreed with his
recommendations. It was not until August that Congress finally answered
his pleas by authorizing for 6 months the overseas surveillance of
foreign terrorist targets with the Protect America Act.
When our friends on the other side got back from the August break,
they vowed to quickly address what they decried as the shortcomings of
the Protect America Act.
The Senate Intelligence Committee, under the leadership of Senator
Rockefeller and Senator Bond, took up the task. Reforming FISA was
complicated and demanding work, but the committee members came
together, as they were intended to, along with the executive branch,
which, of course, was necessary.
Everyone involved acted with determination, deliberation, and
considerable skill. The process lasted 4 months. It involved numerous
hearings, briefings, and negotiation sessions. The final product was a
model of bipartisanship and accommodation across the Senate aisle and
with the White House. The committee vote was not 15 to 0, but around
here 13 to 2 is almost as impressive.
But what was perhaps even more impressive is the fact that such a
broad coalition of players had come together to meet the minimum
standards required of any legislation that replaces the Protect America
Act, something that allows the intelligence community to operate
without unreasonable and counterproductive restrictions, which protect
phone carriers from frivolous lawsuits for helping the Government hunt
for terrorists, and which is guaranteed to be signed into law. All of
those things are contained in the Bond-Rockefeller, Rockefeller-Bond
proposal.
Unfortunately, it was not until just before the Christmas break that
our friends decided to even turn back to this vital issue, and even
then we had to listen to a filibuster against FISA reform. Then when we
began this session, our Democratic colleagues delayed consideration of
FISA reform again by moving to the Indian health care bill instead.
So here we are, once again, pushed up against a looming deadline.
During last week's consideration of the FISA reauthorization, the
majority said it would not consider a 60-vote threshold for votes. It
did not offer time agreements, nor did it make any effort to limit the
number of amendments.
In short, the Senate faces a legislative logjam that ensures that we
will
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let the February 1 deadline come and go without making a reasonable
effort to enact a law.
It should not have turned out this way. The administration negotiated
in good faith with the Democratic majority on the committee that has
the technical, operational expertise to handle the subject. And in the
course of painstaking negotiations, the administration made tough
concessions to our Democratic colleagues. It did this in order to
arrive at a fair, bipartisan result that would allow it to continue to
protect the homeland. Now that work is being brushed aside.
The menu of amendments to the Intelligence Committee bill is little
more than an effort to renegotiate this hard-won deal, an effort to
deconstruct the bipartisan Intelligence Committee bill, and
reconstruct, amendment by amendment, the divisive Judiciary Committee
bill that was tabled by a strong bipartisan majority. That bill will
not--I repeat, will not--become law.
Reconstructing the Judiciary Committee bill is a pointless exercise.
And with only 5 days until the Protect America Act expires, it is an
exercise in which we do not have the luxury to engage.
We can get serious and pass the bipartisan Intelligence Committee
product or we can waste time on voting for poison pill amendments that
weaken the bill and that will prevent it from becoming law.
I urge our colleagues to make the right choice, to vote for cloture
so that we can continue to protect the homeland and against cloture on
the 30-day extension. We cannot delay this important legislation for
another month. Of course, the President will not sign a 30-day
extension.
That said, if we cannot complete this bill, Republicans will not
allow this critical program to expire and will offer a short-term
extension, if necessary.
To be perfectly clear, I urge that there be a ``yes'' vote on cloture
on the bill, a ``no'' vote on cloture on the 30-day extension, an
amendment to the bill which actually would not achieve a 30-day
extension anyway but I think is a place that we do not want to go on
record as having supported because the President will not sign that
anyway. And in the next few days, we will consider what kind of short-
term options might be appropriate to let us get back to this very
important legislation so painstakingly put together by the expert
leadership of Senator Rockefeller and Senator Bond.
I yield the floor.
Mr. ROCKEFELLER. Mr. President, I suggest the absence of a quorum,
and I ask that the time involved be divided between the two sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. REID. Mr. President, I apologize to my friends for keeping
everyone waiting. It hasn't been long--a matter of a minute or so.
In a few hours, President Bush will stand across the way in the House
Chamber and deliver his final State of the Union Address. This will be
his eighth State of the Union Address. From what I have heard earlier
today in my meetings with the press who met with him, it is a fair bet
in this speech that he will continue the drumbeat started by Vice
President Cheney last week by trying to scare the American people into
believing that if he does not get his way on the FISA bill now before
us, America's national security will be gravely jeopardized.
I have said on more than one occasion in recent days we face a
faltering economy here at home and a failing foreign policy abroad. So
I call upon all of us, Democrats and Republicans, to rise above
partisanship. I have also said on more than one occasion that we extend
our hand to the President and congressional Republicans and ask them to
join with us in a genuine spirit of bipartisanship. In my nearly 26
years, I have never seen anything quite as cynical and
counterproductive as the Republican approach to FISA.
I gave the example in my last statement that it was a Catch-22 the
President has put us in. The American people deserve to know when
President Bush talks about the foreign intelligence legislation tonight
that he is doing little more than shooting for cheap political points,
and we should reject any statements he makes about this. Members of
Congress from both parties have legitimate policy disagreements on
FISA--both parties. Some of us believe that history proves the need for
more protections against Government abuse. Others support the law the
way it stands. Now, that is appropriate; people have different views
and opinions on an important part of our legislation and our laws in
the country. But all of us, Members of Congress, Democrats and
Republicans, want to wage an effective fight against terror. All of us,
Democrats and Republicans, want to give our intelligence professionals
the tools they need to win this fight against terror.
We will be taking two votes. The first is on whether to invoke
cloture on the Bond-Rockefeller substitute to the FISA bill we have on
the floor. The second is a substitute, on whether to extend the
authorities of the Protect America Act for another 30 days while
Congress works to pass a new FISA bill.
I will oppose cloture on the substitute and support cloture on the
extension. The extension will give the Congress time to debate and pass
a long-term bill that protects America without compromising the privacy
of law-abiding Americans. Both the Intelligence Committee bill and the
Judiciary Committee bill authorize the same surveillance tools our
intelligence community needs. Democrats and Republicans stand together
in all the terrorism fighting components of this bill. Some Democrats,
including me, support the additional privacy protections in the
Judiciary Committee bill. Others are satisfied with the protections in
the Intelligence Committee bill.
Again, people are entitled to their opinions, but all of us believe
the Senate should have an opportunity to vote on these important
questions.
There was a nice piece written in one of the op-eds today talking
about how the Republicans have talked a long time about all we want is
an up-or-down vote. Well, if there were ever a time they should follow
their own advice it is now--an up-or-down vote.
Many Democrats, including Chairman Rockefeller, who has worked so
hard, are going to oppose cloture on the substitute because they
object--we object--to the heavy-handed tactics we saw with this
legislation this past week. The Republican leader filed cloture on this
bill after we had been on the floor for a few hours. Cloture was filed
after Republicans blocked every amendment--every amendment--from being
offered and blocked all amendments from getting votes. In simple terms,
this means the Republicans were filibustering their own bill--their own
legislation. Let me repeat that. The Republicans were filibustering
their own legislation. In my time in the Senate, I can't remember this
taking place.
Meanwhile, at the other end of Pennsylvania Avenue, President Bush
has actually threatened to veto a temporary extension. Talk about
trying to figure out what is in the mind of someone who is talking that
way. Let us remember, a temporary extension would guarantee that all
the terrorism fighting tools remain in effect. There is absolutely no
policy or security problem with an extension. All it would do is give
us more time to work this out on an uninterrupted basis. There is no
reason to vote against an extension or for the President to veto one,
except for political posturing.
None of us want the current law to expire. None of us want that to
expire, except Cheney and Bush. But if it does expire because of
Republican tactics, surveillance will not end. Even if they stop us
from extending the bill, it would not end. Surveillance would not end.
All surveillance orders issued under the law we passed last August--the
Protect America Act--are effective for a year, so they will continue
until at least August of 2008--August of this year.
Even in a last resort--if the current law expires--our intelligence
professionals can get surveillance orders under the FISA law as it has
existed
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for decades, before we passed the Protect America Act last August. FISA
includes provisions for emergency warrantless surveillance, and it
always has. Again, no one is arguing the law should be allowed to
expire. Doing so would send the wrong message. But it still is going to
allow the collection of this information. The safeguards in place
ensure that our war on terror will not be adversely affected, and
anyone who says otherwise--from the President on down--is not being
truthful.
Why do Democrats seek an extension? We believe bipartisanship is
appropriate when possible. The economic stimulus package shows us that
when circumstances are difficult, we can work together. The Republican
leadership's actions in this FISA debate have not given us reason for
confidence that they are interested in working with us, but we owe it
to the American people to give them every opportunity to do so.
We have requested a 30-day extension repeatedly--I have done it
repeatedly--and each time the Republicans have said no. Compromise is a
two-way street. Bipartisanship is a two-way street. As I said last
week, we are willing to pass an extension of current law for 2 weeks,
30 days, 18 months, 14 months, 15 months or whatever our colleagues
want, but we need to pass an extension now if we are to ensure the law
doesn't expire. I have explained if it expires what happens.
The House is going out of session shortly. They have a retreat this
week--after tomorrow. Already Democrats have introduced several
amendments to strengthen the bill. Senator Feingold sought a vote on
his amendment to provide FISA Court documents to the Senate
Intelligence Committee. Republicans blocked that. Senator Whitehouse
sought to offer an amendment to give the FISA Court authority to review
compliance with minimization rules to protect the privacy of Americans
whose communications are inadvertently intercepted. We were blocked
from having that vote. Senator Cardin sought to offer an amendment to
sunset the legislation in 4 years rather than 6 years. Even that was
blocked from having a vote. Senator Kennedy offered an amendment--or I
should say tried to offer one--providing for a report by the inspectors
general of the relevant agencies to review the conduct of these
programs in the past. No vote on that either. Senator Feinstein sought
to offer an amendment making crystal clear that FISA is the exclusive
means by which the executive branch may conduct surveillance. Blocked
by the Republicans.
Whether these amendments pass or not, we should be allowed to have
votes on them. Senator Feingold wasn't saying he wanted to talk for 2
hours. Senator Feinstein wasn't saying she wanted to talk a long time.
No one was--a short debate and have a vote on them. We were prevented
from doing that.
So what does the Senate do? We take up bills all the time reported to
us by committees. This is a little more complicated because we had two
committees. It is not often we have concurrent jurisdiction, but there
was here. But an eighth grade student could figure out what it is all
about. It is not that difficult. Senators offer amendments to these
bills and we let the Senate work its will. I don't understand how the
Republicans can expect to block us from voting on any amendments and
expect us to follow along. Senators are entitled to vote on their
amendments.
Now, if someone is stalling--and we all went through that--there
comes a time when you shut off the debate. But there is none of that
here. With the Republicans blocking the amendments I have talked about,
we haven't gotten to the crucial issue of immunity.
Mr. President, I will use my leader time now.
Let us not forget: The question of retroactive immunity wouldn't be
before us if President Bush hadn't ignored Congress and established his
own process outside the law. But far from taking responsibility for his
actions, the President bullies and threatens the Congress he is
supposed to be working with. He is similar to the kid in the school
yard, the bully who says: OK, you are not doing what I want to do, so I
am taking my ball home and none of us will be able to play.
When the President talks tonight about how important this program is
and how it must continue, I say to him now that he must consider and
reconsider his political posturing and ask his colleagues in the Senate
to support an extension, especially when he is going to come and say
how much he wants to work on a bipartisan basis.
We are a deliberative body. It was set up that way by the Founding
Fathers. Let us deliberate. I urge my colleagues to oppose cloture on
the substitute so the Senate can return to considering this bill. We
must pass a bill that gives our intelligence authorities the tools they
need while protecting the privacy of all Americans. I urge my
colleagues to support the extension so we can ensure current authority
doesn't expire while Congress works to pass a new and stronger FISA
bill.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, and pursuant to rule
XXII, the Chair lays before the Senate the following cloture motion
which the clerk will report.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the pending
substitute amendment to S. 2248, Foreign Intelligence
Surveillance Act of 1978 Amendments Act of 2007.
Mitch McConnell, Christopher S. Bond, Kay Bailey
Hutchison, Wayne Allard, Jon Kyl, Robert F. Bennett,
Sam Brownback, John Thune, Pat Roberts, John Barrasso,
Chuck Grassley, Johnny Isakson, Lamar Alexander, Gordon
H. Smith, Tom Coburn, Jim DeMint, Richard Burr.
Mr. REID. Mr. President, I ask unanimous consent that the second vote
be of 10 minutes duration.
The PRESIDING OFFICER. Without objection, it is so ordered.
By unanimous consent, the mandatory quorum call has been waived.
The question is, Is it the sense of the Senate that debate on
amendment No. 3911, offered by the Senator from West Virginia, Mr.
Rockefeller, and the Senator from Missouri, Mr. Bond, to S. 2248, a
bill to amend the Foreign Intelligence Surveillance Act of 1978, to
modernize and streamline the provisions of that Act, and for other
purposes, shall be brought to a close?
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Iowa (Mr. Harkin), the
Senator from Connecticut (Mr. Lieberman), and the Senator from Florida
(Mr. Nelson) are necessarily absent.
I further announce that, if present and voting, the Senator from Iowa
(Mr. Harkin) would vote ``nay.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from Oklahoma (Mr. Coburn), the Senator from North Carolina (Mrs.
Dole), the Senator from Nevada (Mr. Ensign), and the Senator from
Arizona (Mr. McCain).
Further, if present and voting, the Senator from North Carolina (Mrs.
Dole) would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Sentors in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 48, nays 45, as follows:
[Rollcall Vote No. 3 Leg.]
YEAS--48
Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Domenici
Enzi
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Landrieu
Lincoln
Lugar
Martinez
McConnell
Murkowski
Nelson (NE)
Pryor
Roberts
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NAYS--45
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Inouye
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
McCaskill
Menendez
Mikulski
Murray
Obama
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
[[Page S388]]
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden
NOT VOTING--7
Coburn
Dole
Ensign
Harkin
Lieberman
McCain
Nelson (FL)
The PRESIDING OFFICER. On this vote, the yeas are 48, the nays are
45. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
The Republican leader.
Mr. McCONNELL. Mr. President, I wanted to take a moment to explain
the next vote. The President indicated over the weekend that he would
veto a 30-day extension. We have been dealing with this issue for
almost a year. We have in the Rockefeller-Bond proposal a bipartisan
compromise that came out of Intelligence 13 to 2. There is no need for
a 30-day extension. But even if there were, you wouldn't get a 30-day
extension by adding it to this bill. It is extremely important to
oppose the 30-day extension. We know it won't become law on this bill.
It wouldn't become law if it were passed freestanding, because the
President would veto it. We may be talking about a very short-term
extension here in the next few days, but we are still on FISA after
today. We will not get off FISA until we make some determination of how
we are going to dispose of this important measure.
I urge all my colleagues to vote against cloture on the 30-day
extension amendment.
The PRESIDING OFFICER. The Democratic leader.
Mr. REID. Mr. President, we all acknowledge the Intelligence
Committee did a good job on this piece of legislation. But the
Intelligence Committee knew, everyone knew, there was concurrent
referral of this legislation. It was always anticipated and believed,
rightfully so, that the Judiciary Committee would take up this matter.
And they did. They made some suggestions in the way of changes. We are
entitled to vote on those. That is all we are asking. That isn't too
unreasonable. For the President to not agree to any extension is
unreasonable. The House is going to pass a 30-day extension in the
morning. They are going to pass that. We are going to have the
opportunity to vote on a 30-day extension. This would send an
appropriate message to everyone that a 30-day extension is fair and
reasonable. As I said in my remarks before the last vote, people are
crying wolf a little too often. This legislation we have before us, if
it doesn't pass, the work done by the Intelligence Committee and the
Judiciary Committee will go for naught. But still, under the
legislation we passed previously, the legislation will still be in
effect. FISA is not gone. We all want to work to improve this. That is
what this is all about. But we need some votes to do that. That is what
we are asking.
Everyone here should understand, if you are voting today not to
extend this legislation for 30 days, you are going to have to vote on
it in the near future because the House is sending us the exact same
measure tomorrow.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, pursuant to rule
XXII, the clerk will report the motion to invoke cloture.
The assistant legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on the Reid
amendment No. 3918 to S. 2248.
John D. Rockefeller, IV, Dianne Feinstein, Jeff Bingaman,
Debbie Stabenow, Sheldon Whitehouse, Daniel K. Inouye,
Charles E. Schumer, Thomas R. Carper, Bill Nelson, E.
Benjamin Nelson, Frank R. Lautenberg, Richard Durbin,
Ken Salazar, Tom Harkin, Sherrod Brown, Harry Reid.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call is waived.
The question is, is it the sense of the Senate that debate on
amendment No. 3918, offered by the Senator from Nevada, Mr. Reid, to S.
2248, a bill to amend the Foreign Intelligence Surveillance Act of
1978, to modernize and streamline the provisions of that act, and for
other purposes, shall be brought to a close.
The yeas and nays are mandatory under the rule.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from Iowa (Mr. Harkin), the
Senator from Connecticut (Mr. Lieberman), and the Senator from Florida
(Mr. Nelson) are necessarily absent.
I further announce that, if present and voting, the Senator from Iowa
(Mr. Harkin) would vote ``yea.''
Mr. KYL. The following Senators are necessarily absent: the Senator
from Oklahoma (Mr. Coburn), the Senator from North Carolina (Mrs.
Dole), the Senator from Nevada (Mr. Ensign), and the Senator from
Arizona (Mr. McCain).
Further, if present and voting, the Senator from North Carolina (Mrs.
Dole) would have voted ``nay.''
The PRESIDING OFFICER (Mr. Pryor). Are there any other Senators in
the Chamber desiring to vote?
The yeas and nays resulted--yeas 48, nays 45, as follows:
[Rollcall Vote No. 4 Leg.]
YEAS--48
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Clinton
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Inouye
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
McCaskill
Menendez
Mikulski
Murray
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--45
Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Domenici
Enzi
Graham
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lugar
Martinez
McConnell
Murkowski
Roberts
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NOT VOTING--7
Coburn
Dole
Ensign
Harkin
Lieberman
McCain
Nelson (FL)
The PRESIDING OFFICER. On this vote, the yeas are 48, the nays are
45. Three-fifths of the Senators duly chosen and sworn not having voted
in the affirmative, the motion is rejected.
Mr. ROCKEFELLER. Mr. President, I move to reconsider the vote.
Mr. BOND. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
____________________
[Congressional Record: January 28, 2008 (Senate)]
[Page S398-S401]
TEXT OF AMENDMENTS
SA 3951. Mr. BOND submitted an amendment intended to be proposed to
amendment SA 3930 submitted by Mr. Cardin (for himself and Ms.
Mikulski)
[[Page S399]]
and intended to be proposed to the bill S. 2248, to amend the Foreign
Intelligence Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes; which was ordered to
lie on the table; as follows:
On page 1, line 3, strike ``the transitional procedures'',
and all that follows through ``2011.'' on line 8 and insert
the following: ``the previous sentence shall have no force or
effect.''.
______
SA 3952. Mr. BOND submitted an amendment intended to be proposed to
amendment SA 3901 submitted by Mr. Kennedy and intended to be proposed
to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act
of 1978, to modernize and streamline the provisions of that Act, and
for other purposes; which was ordered to lie on the table; as follows:
On page 1, line 3, strike ``the transitional procedures'',
and all that follows through ``2010.'' on line 8 and insert
the following: ``the previous sentence shall have no force or
effect.''.
______
SA 3953. Mr. BOND submitted an amendment intended to be proposed to
amendment SA 3859 submitted by Mr. Cardin and intended to be proposed
to the bill S. 2248, to amend the Foreign Intelligence Surveillance Act
of 1978, to modernize and streamline the provisions of that Act, and
for other purposes; which was ordered to lie on the table; as follows:
On page 1, line 3, strike ``the transitional procedures'',
and all that follows through ``2011.'' on line 8 and insert
the following: ``the previous sentence shall have no force or
effect.''.
______
SA 3954. Mr. BOND submitted an amendment intended to be proposed by
him to the bill S. 2248, to amend the Foreign Intelligence Surveillance
Act of 1978, to modernize and streamline the provisions of that Act,
and for other purposes; which was ordered to lie on the table; as
follows:
On page 3, strike line 8 and all that follows through the
end of the amendment and insert the following:
(c) Authorization Following Attack or Declaration of War.--
The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801 et seq.) is amended by--
(1) striking section 111 and inserting the following:
``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR
``Sec. 111. Notwithstanding any other law, the President,
through the Attorney General, may authorize electronic
surveillance without a court order to acquire foreign
intelligence information for a period of not longer than 180
days after the date of--
``(1) submission of a certification by the Attorney General
to the Select Committee on Intelligence of the Senate and the
Permanent Select Committee on Intelligence of the House of
Representatives that there is a grave threat of an imminent
attack on the United States;
``(2) an attack on the United States; or
``(3) a declaration of war by the Congress.'';
(2) striking section 309 and inserting the following:
``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR
``Sec. 309. Notwithstanding any other law, the President,
through the Attorney General, may authorize a physical search
without a court order to acquire foreign intelligence
information for a period of not longer than 180 days after
the date of--
``(1) submission of a certification by the Attorney General
to the Select Committee on Intelligence of the Senate and the
Permanent Select Committee on Intelligence of the House of
Representatives that there is a grave threat of an imminent
attack on the United States;
``(2) an attack on the United States; or
``(3) a declaration of war by the Congress.''; and
(3) striking section 404 and inserting the following:
``AUTHORIZATION FOLLOWING ATTACK OR DECLARATION OF WAR
``Sec. 404. Notwithstanding any other law, the President,
through the Attorney General, may authorize the use of a pen
register or trap and trace device without a court order to
acquire foreign intelligence information for a period of not
longer than 180 days after the date of--
``(1) submission of a certification by the Attorney General
to the Select Committee on Intelligence of the Senate and the
Permanent Select Committee on Intelligence of the House of
Representatives that there is a grave threat of an imminent
attack on the United States;
``(2) an attack on the United States; or
``(3) a declaration of war by the Congress.''.
(d) Conforming Amendments.--
(1) In general.--Section 2511(2) of title 18, United States
Code, is amended--
(A) in paragraph (a), by adding at the end the following:
``(iii) If a certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the specific statutory provision, and shall certify
that the requirements have been met.''; and
(B) in paragraph (f), by striking ``, as defined in section
101 of such Act,'' and inserting ``(as defined in section
101(f) of such Act regardless of the limitation of section
701 of such Act)''.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by--
(A) striking the item relating to section 111 and inserting
the following:
``Sec. 111. Authorization following attack or declaration of war.
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.'';
(B) striking the item relating to section 309 and inserting
the following:
``Sec. 309. Authorization following attack or declaration of war.'';
and
(C) striking the item relating to section 404 and inserting
the following:
``Sec. 404. Authorization following attack or declaration of war.''.
______
SA 3955. Mr. BOND submitted an amendment intended to be proposed to
amendment SA 3951 submitted by Mr. Feingold (for himself and Mr. Dodd)
and intended to be proposed to the amendment SA 3911 proposed by Mr.
Rockefeller (for himself and Mr. Bond) to the bill S. 2248, to amend
the Foreign Intelligence Surveillance Act of 1978, to modernize and
streamline the provisions of that Act, and for other purposes; which
was ordered to lie on the table; as follows:
On page 2, strike line 12 and all that follows through the
end of the amendment and insert the following:
``(ii) Limitation on use of information.--If part or all of
an acquisition authorized under subsection (a) is terminated
under clause (i)(II), no information obtained or evidence
derived from such terminated acquisition concerning any
United States person shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such terminated acquisition shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General, if
the information indicates a threat of death or serious bodily
harm to any person.''
______
SA 3956. Mr. BOND submitted an amendment intended to be proposed to
amendment SA 3918 proposed by Mr. Reid to the bill S. 2248, to amend
the Foreign Intelligence Surveillance Act of 1978, to modernize and
streamline the provisions of that Act, and for other purposes; which
was ordered to lie on the table; as follows:
Strike all after ``1.'' and insert the following:
SHORT TITLE.
This Act may be cited as the ``Permanent Protect America
Act of 2008''.
TITLE I--REPEAL OF SUNSET OF THE PROTECT AMERICA ACT OF 2007
SEC. 101. REPEAL OF SUNSET OF THE PROTECT AMERICA ACT OF
2007.
Section 6 of the Protect America Act of 2007 (Public Law
110-55; 121 Stat. 557; 50 U.S.C. 1803 note) is amended by
striking subsection (c).
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. DEFINITIONS.
In this title:
(1) Assistance.--The term ``assistance'' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
(2) Contents.--The term ``contents'' has the meaning given
that term in section 101(n) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(n)).
(3) Covered civil action.--The term ``covered civil
action'' means a civil action filed in a Federal or State
court that--
(A) alleges that an electronic communication service
provider furnished assistance to an element of the
intelligence community; and
(B) seeks monetary or other relief from the electronic
communication service provider related to the provision of
such assistance.
(4) Electronic communication service provider.--The term
``electronic communication service provider'' means--
(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
(B) a provider of an electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
[[Page S400]]
(C) a provider of a remote computing service, as that term
is defined in section 2711 of title 18, United States Code;
(D) any other communication service provider who has access
to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
(E) a parent, subsidiary, affiliate, successor, or assignee
of an entity described in subparagraph (A), (B), (C), or (D);
or
(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
(5) Element of the intelligence community.--The term
``element of the intelligence community'' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.
(a) Limitations.--
(1) In general.--Notwithstanding any other provision of
law, a covered civil action shall not lie or be maintained in
a Federal or State court, and shall be promptly dismissed, if
the Attorney General certifies to the court that--
(A) the assistance alleged to have been provided by the
electronic communication service provider was--
(i) in connection with an intelligence activity involving
communications that was--
(I) authorized by the President during the period beginning
on September 11, 2001, and ending on January 17, 2007; and
(II) designed to detect or prevent a terrorist attack, or
activities in preparation for a terrorist attack, against the
United States; and
(ii) described in a written request or directive from the
Attorney General or the head of an element of the
intelligence community (or the deputy of such person) to the
electronic communication service provider indicating that the
activity was--
(I) authorized by the President; and
(II) determined to be lawful; or
(B) the electronic communication service provider did not
provide the alleged assistance.
(2) Review.--A certification made pursuant to paragraph (1)
shall be subject to review by a court for abuse of
discretion.
(b) Review of Certifications.--If the Attorney General
files a declaration under section 1746 of title 28, United
States Code, that disclosure of a certification made pursuant
to subsection (a) would harm the national security of the
United States, the court shall--
(1) review such certification in camera and ex parte; and
(2) limit any public disclosure concerning such
certification, including any public order following such an
ex parte review, to a statement that the conditions of
subsection (a) have been met, without disclosing the
subparagraph of subsection (a)(1) that is the basis for the
certification.
(c) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General (or Acting Attorney General) or a designee
in a position not lower than the Deputy Attorney General.
(d) Civil Actions in State Court.--A covered civil action
that is brought in a State court shall be deemed to arise
under the Constitution and laws of the United States and
shall be removable under section 1441 of title 28, United
States Code.
(e) Rule of Construction.--Nothing in this section may be
construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
(f) Effective Date and Application.--This section shall
apply to any covered civil action that is pending on or filed
after the date of enactment of this Act.
SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES
UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.) is amended by adding after title VII the
following new title:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``SEC. 801. DEFINITIONS.
``In this title:
``(1) Assistance.--The term `assistance' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
``(2) Attorney general.--The term `Attorney General' has
the meaning give that term in section 101(g).
``(3) Contents.--The term `contents' has the meaning given
that term in section 101(n).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
``(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A), (B),
(C), or (D); or
``(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
``(5) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community as specified or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``(6) Person.--The term `person' means--
``(A) an electronic communication service provider; or
``(B) a landlord, custodian, or other person who may be
authorized or required to furnish assistance pursuant to--
``(i) an order of the court established under section
103(a) directing such assistance;
``(ii) a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
or
``(iii) a directive under section 102(a)(4), 105B(e), as in
effect on the day before the date of the enactment of the
FISA Amendments Act of 2008 or 703(h).
``(7) State.--The term `State' means any State, political
subdivision of a State, the Commonwealth of Puerto Rico, the
District of Columbia, and any territory or possession of the
United States, and includes any officer, public utility
commission, or other body authorized to regulate an
electronic communication service provider.
``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
``(a) Requirement for Certification.--
``(1) In general.--Notwithstanding any other provision of
law, no civil action may lie or be maintained in a Federal or
State court against any person for providing assistance to an
element of the intelligence community, and shall be promptly
dismissed, if the Attorney General certifies to the court
that--
``(A) any assistance by that person was provided pursuant
to an order of the court established under section 103(a)
directing such assistance;
``(B) any assistance by that person was provided pursuant
to a certification in writing under section 2511(2)(a)(ii)(B)
or 2709(b) of title 18, United States Code;
``(C) any assistance by that person was provided pursuant
to a directive under sections 102(a)(4), 105B(e), as in
effect on the day before the date of the enactment of the
FISA Amendments Act of 2008, or 703(h) directing such
assistance; or
``(D) the person did not provide the alleged assistance.
``(2) Review.--A certification made pursuant to paragraph
(1) shall be subject to review by a court for abuse of
discretion.
``(b) Limitations on Disclosure.--If the Attorney General
files a declaration under section 1746 of title 28, United
States Code, that disclosure of a certification made pursuant
to subsection (a) would harm the national security of the
United States, the court shall--
``(1) review such certification in camera and ex parte; and
``(2) limit any public disclosure concerning such
certification, including any public order following such an
ex parte review, to a statement that the conditions of
subsection (a) have been met, without disclosing the
subparagraph of subsection (a)(1) that is the basis for the
certification.
``(c) Removal.--A civil action against a person for
providing assistance to an element of the intelligence
community that is brought in a State court shall be deemed to
arise under the Constitution and laws of the United States
and shall be removable under section 1441 of title 28, United
States Code.
``(d) Relationship to Other Laws.--Nothing in this section
may be construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
``(e) Applicability.--This section shall apply to a civil
action pending on or filed after the date of enactment of the
FISA Amendments Act of 2008.''.
SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.
Title VIII of the Foreign Intelligence Surveillance Act (50
U.S.C. 1801 et seq.), as added by section 203 of this Act, is
amended by adding at the end the following new section:
``SEC. 803. PREEMPTION.
``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic
communication service provider's alleged assistance to an
element of the intelligence community;
``(2) require through regulation or any other means the
disclosure of information about an electronic communication
service provider's alleged assistance to an element of the
intelligence community;
``(3) impose any administrative sanction on an electronic
communication service provider for assistance to an element
of the intelligence community; or
``(4) commence or maintain a civil action or other
proceeding to enforce a requirement that an electronic
communication service provider disclose information
concerning alleged assistance to an element of the
intelligence community.
``(b) Suits by the United States.--The United States may
bring suit to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United
States shall have jurisdiction over any civil action brought
by the United States to enforce the provisions of this
section.
[[Page S401]]
``(d) Application.--This section shall apply to any
investigation, action, or proceeding that is pending on or
filed after the date of enactment of the FISA Amendments Act
of 2008.''.
SEC. 205. TECHNICAL AMENDMENTS.
The table of contents in the first section of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.
______
SA 3957. Mr. BOND submitted an amendment intended to be proposed to
amendment SA 3932 submitted by Mr. Whitehouse and intended to be
proposed to the amendment SA 3911 proposed by Mr. Rockefeller (for
himself and Mr. Bond) to the bill S. 2248, to amend the Foreign
Intelligence Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes; which was ordered to
lie on the table; as follows:
On page 1, line 8, of the amendment, strike ``30'' and
insert ``90''.
______
SA 3958. Mr. BOND submitted an amendment intended to be proposed to
amendment SA 3929 submitted by Mr. Leahy (for himself, Mr. Kennedy, Mr.
Menendez, and Ms. Mikulski) and intended to be proposed to the bill S.
2248, to amend the Foreign Intelligence Surveillance Act of 1978, to
modernize and streamline the provisions of that Act, and for other
purposes; which was ordered to lie on the table; as follows:
Strike line 4 of page 1 of the amendment and all that
follows and insert the following:
(a) Terrorist Surveillance Program and Program Defined.--In
this section, the terms ``Terrorist Surveillance Program''
and ``Program'' mean the intelligence activity involving
communications that was authorized by the President during
the period beginning on September 11, 2001, and ending on
January 17, 2007.
(b) Reviews.--
(1) Requirement to conduct.--The Inspectors General of the
Office of the Director of National Intelligence, the
Department of Justice, and the National Security Agency, with
respect to the oversight authority and responsibility of each
such Inspector General and only with respect to the
participation of their respective agencies or departments in
the Terrorist Surveillance Program, shall complete, to the
extent applicable, a comprehensive review of--
(A) the facts necessary to describe the establishment,
implementation, product, and use of the product of the
Program;
(B) the procedures of, and access to, the legal reviews of
the Program;
(C) communications with, and participation of, individuals
and entities in the private sector related to the Program;
and
(D) interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program.
(2) Cooperation.--Each Inspector General required to
conduct a review under paragraph (1) shall utilize, to the
extent practicable and with due regard to the protection of
the national security of the United States, and not
unnecessarily duplicate or delay, such reviews or audits
related to the Program that have been completed or are being
undertaken by any such Inspector General or by any other
office of the Executive Branch.
(c) Report.--
(1) In general.--Not later than 1 year after the date of
the enactment of this Act, the Inspectors General required to
conduct a review under subsection (b) shall submit to the
Select Committee on Intelligence of the Senate and the
Permanent Select Committee on Intelligence of the House of
Representatives, to the extent practicable and with due
regard to the protection of intelligence sources and methods,
a comprehensive report of such reviews that includes any
recommendations of any such Inspector General within the
oversight authority and responsibility of any such Inspector
General.
(2) Form.--The report submitted under paragraph (1) shall
be submitted in classified form.
______
SA 3959. Mr. WHITEHOUSE submitted an amendment intended to be
proposed to amendment SA 3903 submitted by Mr. Kyl and intended to be
proposed to the bill S. 2248, to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the provisions of
that Act, and for other purposes; which was ordered to lie on the
table; as follows:
On page 1, line 2, strike ``Exception'' and all that
follows through line 7 and insert the following:
``Application of paragraph (2).--Paragraph (2) shall apply to
an acquisition by an electronic, mechanical, or other
surveillance device outside the United States only if the
targeted United States person has a reasonable expectation of
privacy and a warrant would be required if the acquisition
were conducted inside the United States for law enforcement
purposes.''.
____________________
