[Congressional Record: January 31, 2008 (Senate)]
[Page S535-S537]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr31ja08-36]
FISA AMENDMENTS ACT OF 2007
The PRESIDING OFFICER. The Senator will resume consideration of the
bill S. 2248.
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.
[[Page S536]]
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.
Mr. REID. Mr. President, I ask unanimous consent that all pending
amendments be withdrawn, except the substitute and the Feingold
amendment No. 3909; that it be modified with the changes at the desk
and then agreed to; and the motion to reconsider be laid upon the
table; further, that the following be the only first-degree amendments
remaining in order to the bill, with no second-degree amendments prior
to a vote, except as specified in this agreement; that any time for
debate with respect to amendments be equally divided and controlled in
the usual form; that the following two amendments be modified with the
changes that are at the desk, and then agreed to, as modified, and the
motion to reconsider be laid upon the table, en bloc:
Whitehouse amendment No. 3932; Kennedy amendment No. 3960; and that
the Bond amendment No. 3945 be agreed to, without modification;
further, that the following eight amendments be subject to a majority
vote threshold, with a motion to table any of these eight amendments in
order:
Bond amendment No. 3941, with a modification, 20 minutes; Bond
amendment No. 3938, with a modification, 20 minutes; Feingold amendment
No. 3907, 2 hours; Specter-Whitehouse amendment No. 3927, 2 hours;
Feingold amendment No. 3913, 40 minutes; Feingold amendment No. 3912,
40 minutes; Feingold amendment No. 3915, 40 minutes; Feingold-Webb
amendment regarding sequestration, 90 minutes; provided further, that
the next 3 amendments listed be subject to a 60-affirmative vote
threshold, and that if it does not achieve that threshold, then the
amendment be withdrawn: Feinstein amendment No. 3919, 2 hours; Cardin
amendment No. 3930, 60 minutes; Whitehouse amendment No. 3920, 60
minutes; finally, that the Feinstein amendment No. 3910 also be in
order, without any debate limitation; provided further, that a
managers' amendment be in order if cleared by the managers and the
leaders; that upon disposition of all amendments, the substitute
amendment, as amended, be agreed to, and the bill be read the third
time; that the Senate then vote on the motion to invoke cloture on the
bill; that upon passage of the bill, the Senate proceed to Calendar No.
517, H.R. 3773, and all after the enacting clause be stricken and the
text of S. 2248, as amended, be inserted in lieu thereof, the bill be
advanced to third reading, passed, and the motion to reconsider be laid
upon the table; that passage of S. 2248 be vitiated and then returned
to the calendar.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendments (No. 3909, as modified, No. 3932, as modified, No.
3960, as modified, and No. 3945) were agreed to, as follows:
AMENDMENT NO. 3909, As Modified
On page 56, strike line 14 and all that follows through
page 57, line 14, and insert the following:
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings, applications, or memoranda of
law associated with such decision, order, or opinion, not
later than 45 days after such decision, order, or opinion is
issued; and
``(2) a copy of any such decision, order, or opinion, and
any pleadings, applications, or memoranda of law associated
with such decision, order, or opinion, that was issued during
the 5-year period ending on the date of the enactment of the
FISA Amendments Act of 2008 and not previously submitted in a
report under subsection (a).
``(d) Protection of National Security.--The Attorney
General, in consultation with the Director of National
Intelligence, may authorize redactions of materials described
in subsection (c) that are provided to the committees of
Congress referred to in subsection (a), if such redactions
are necessary to protect the national security of the United
States and are limited to sensitive sources and methods
information or the identities of targets.''.
(c) Definitions.--Such section 601, as amended by
subsections (a) and (b), is further amended by adding at the
end the following:
``(e) Definitions.--In this section:
``(1) Foreign intelligence surveillance court; court.--The
term `Foreign Intelligence Surveillance Court' means the
court established by section 103(a).
``(2) Foreign intelligence surveillance court of review;
court of review.--The term `Foreign Intelligence Surveillance
Court of Review' means the court established by section
103(b).''.
AMENDMENT NO. 3932, As Modified
On page 19, strike lines 10 through 12 and insert the
following:
``(ii) if the Government appeals an order under this
section, until the Court of Review enters an order under
subparagraph (C).
``(C) Implementation pending appeal.--Not later than 60
days after the filing of an appeal of an order under
paragraph (5)(B) directing the correction of a deficiency,
the Court of Review shall determine, and enter a
corresponding order regarding, whether all or any part of the
correction order, as issued or modified, shall be implemented
during the pendency of the appeal.
On page 19, line 13, strike ``(C)'' and insert ``(D)''.
AMENDMENT NO. 3960, As Modified
On page 6, line 13, strike ``and'' and all that follows
through page 10, line 5, and insert the following:
``(4) shall not intentionally acquire any communication as
to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United
States; and
``(5) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
``(c) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (f);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (d) and (e).
``(d) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (h).
``(e) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt, consistent with the requirements of section
101(h) or section 301(4), minimization procedures for
acquisitions authorized under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (h).
``(f) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 168 hours after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States and that such procedures have been
approved by, or will be submitted in not more than 5 days for
approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (h);
``(ii) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) does not result in the intentional acquisition of any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States, and that such procedures have
been approved by, or will be submitted in not more than 5
days for approval by, the Foreign Intelligence Surveillance
Court pursuant to subsection (h);
``(iii) the procedures referred to in clauses (i) and (ii)
are consistent with the requirements of the fourth amendment
to the Constitution of the United States and do not
[[Page S537]]
permit the intentional targeting of any person who is known
at the time of acquisition to be located in the United States
or the intentional acquisition of any communication as to
which the sender and all intended recipients are known at the
time of acquisition to be located in the United States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h) or section 301(4); and
``(II) have been approved by, or will be submitted in not
more than 5 days for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (h);
``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition does not constitute electronic
surveillance, as limited by section 701; and
On page 17, line 2, strike ``States.'' and insert ``States
and does not result in the intentional acquisition of any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States.''.
AMENDMENT NO. 3945
(Purpose: To strike the time limitation for certain appeals)
On page 15, beginning on line 10, strike ``not later than 7
days after the issuance of such decision''.
Mr. REID. Mr. President, let me express on the record my appreciation
for so many people.
Specifically, I wish to mention Senator Rockefeller and Senator Bond.
They and their staffs have spent days on this agreement. It is really
good they have a relationship that allows them to be able to reach this
agreement. But for that, it could not have been done.
I am not going to talk about Republican Senators, but I am sure there
are a lot of unsung heroes. I cannot talk about them. But the Presiding
Officer, Senator Whitehouse, has done a remarkably good job as a member
of the Intelligence and Judiciary Committees in helping us resolve this
matter so we can proceed to finish it. As I add up all this time, it is
about 11 hours of debate, plus the votes.
Senator Kennedy is also always very easy to deal with. He believes
fervently in what he believes, but he is always very understanding of
my problems. I extend my appreciation to him.
Senator Feingold is a brilliant man, and he is someone who is always
looking at every bit of verbiage in any piece of legislation. He has
been very good to work with, as he always is. I express my appreciation
to him.
Senator Cardin has been very patient in everything we have done.
Finally, I wish to talk about two people.
I spent a lot of time today with Senator Feinstein. She is a real
believer as a member of that Intelligence Committee. She is the second
ranking member on that committee. She spends days of her life in
committee hearings, listening to what goes on and trying to figure out
what is going on, which is not always easy. It is all done with all the
Intelligence members away from the press. There is little recognition
that members of the Intelligence Committees get, other than self-
satisfaction that they are doing good things for the country and the
world. I appreciate Senator Feinstein working with us so we could get
to this final agreement.
Even though his name does not appear in any of the consent agreements
I read, Senator Leahy is a person who is going to accomplish what he
believes should be accomplished in this bill, but he has done it in a
typical way. I had one Senator tell me--in fact, it was Senator Kent
Conrad. He said that in his entire public service, he has never known a
better negotiator than Senator Leahy. I think he probably is one of the
best. He got a lot out of this even though his name does not appear
anyplace.
We know the sincerity and the depth of feelings that Senator Dodd has
on this legislation. He is somebody who has been heavily involved in
everything we have done in this bill. I appreciate his willingness to
work with us to a point here. He and I agree on what should happen in
this legislation. Time will only tell whether we get what our druthers
are, but at least we are joined to try to accomplish the same thing.
I appreciate everyone working as they have with this legislation. It
hasn't been easy to get where we are, but this is where we are, and I
appreciate everyone's attention and help.
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