[Congressional Record: February 6, 2008 (Senate)]
[Page S686-S688]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr06fe08-144]
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FOREIGN INTELLIGENCE SURVEILLANCE ACT
Amendment No. 3913
Mr. HATCH. Mr. President, I wanted to briefly mention my opposition
to amendment No. 3913 offered by the Senator from Wisconsin. This
amendment relates to reverse targeting, which is a theory that the
Government could target a foreign person abroad when the real intention
is to target a U.S. person, thus circumventing the need to get a
warrant for the U.S. person. Quite simply, reverse targeting is already
considered illegal under FISA. Going even further, the Intelligence
Committee bill has a very explicit prohibition against reverse
targeting. The amendment offered by the Senator from Wisconsin adds
subjective language which completely alters the meaning of the original
bipartisan provision.
I asked Attorney General Mukasey this during a hearing on Wednesday,
and here is our exchange.
HATCH: Now the topic of reverse targeting has been
mentioned often during the FISA reform debate. From an
intelligence perspective, reverse targeting makes no sense.
From an efficiency standpoint, if the government was
interested in targeting an American, it would apply for a
warrant to listen to all of that person's conversations,
wouldn't it? Not just his conversations with terrorists
overseas?
MUKASEY: Correct.
HATCH: Now, I asked General Wainstein about this during the
Judiciary Committee hearing last October, and he reiterated
the government's view that FISA itself makes reverse
targeting illegal. Does the DOJ still consider reverse
targeting illegal under FISA?
MUKASEY: Absolutely.
HATCH: Are you aware of any instances of intelligence
analysts utilizing reverse targeting?
MUKASEY: I am not aware of any such instances.
We are enacting national security legislation, and it is our
responsibility to ensure that this bill does not lead to unintended
consequences which provide protections to terrorists. This amendment is
absolutely unnecessary, and I urge my colleagues to oppose it.
Amendment No. 3920
Mr. President, I wish to say a few remarks with regard to my dear
friend, Senator Whitehouse's amendment to authorize the FISC, the
Foreign Intelligence Surveillance Court, to assess compliance with
minimization techniques. I rise to express my opposition to the
Whitehouse amendment No. 3920.
My opposition to the Whitehouse amendment is related to the totality
of this bill. This is an amendment that greatly expands the Foreign
Intelligence Surveillance Court's jurisdiction. Keeping in mind that
the bill before us already expands FISC jurisdiction of foreign
collection to an unprecedented high historical level, this amendment
tips the balance and could lead to real-life instances of intelligence
analysts' operational decisions being second guessed by the court.
The original approach and goals of this legislation were simple and
twofold. Goal No. 1: Wire communications taking place in 2008 should
receive the same treatment as radio communications taking place in
1978; and goal No. 2: Our intelligence community's sources and methods
should not be subject to exposure by litigation brought about by
hearsay and innuendo.
I am pleased the legislation before us provides more protections to
American citizens than any intelligence bill in my recent memory, and
certainly more than the original FISA law.
Over the last several months, a great deal of attention has been
given to the FISC, the Foreign Intelligence Surveillance Court. The
FISC was created by the original FISA law, and its jurisdiction was
extremely limited by that law. Here is what the FISC was created to do.
Foreign Intelligence Surveillance Court: ``A court which shall have
jurisdiction to hear applications for and grant orders approving
electronic surveillance.''
This jurisdiction is purposefully limited, as the task of reviewing
applications to intercept electronic communications is among the most
important tasks our Government can do to protect our country and its
citizens. Terrorists have to communicate to plan and execute attacks,
and our interception of these communications is paramount to stopping
the next attack.
The jurisdiction of the FISC is greatly expanded by this legislation.
Combined with other provisions in this bill, the new oversight created
is prevalent and comprehensive. Since the breadth of this new oversight
is critical when determining the necessity of the amendment we are
debating, let's look at the oversight created by this legislation.
Let me read these five charts.
No. 1, for the first time the FISC will review and approve
minimization procedures used by the intelligence community.
No. 2, for the first time the FISC will review and approve targeting
procedures used by the intelligence community. The FISC will determine
whether the procedures are reasonably designed to ensure targeting is
limited to persons outside the United States.
No. 3, for the first time, a court order will be required to target
U.S. persons regardless of where they are in the world--for the first
time.
No. 4, for the first time the Attorney General and the Director of
National Intelligence will be required to assess the intelligence
community's compliance with court-approved targeting and minimization
procedures. These assessments must be provided to the FISC and
congressional Intelligence Committees.
No. 5, new congressional oversight--for the first time Congress is
creating statutorily required inspector general--that is the Department
of Justice and intelligence elements--semiannual assessments of
compliance with court-approved targeting and minimization procedures.
These assessments must be provided to congressional Intelligence
Committees.
Now, given the staggering amount of new oversight, we should be very
careful when creating mechanisms which could negatively impact our
intelligence analysts, particularly when these mechanisms provide no
benefit, in this case, to the privacy of American citizens.
The intelligence community has a great deal of experience in the
techniques used to minimize incidental communications, and very
detailed procedures for handling these communications are contained in
the United States Signals Intelligence Directive 18, which has been in
effect for over 28 years.
Remember, the Government is gathering information relating to foreign
intelligence in order to protect national security, not necessarily for
criminal prosecution. That is why different procedures are necessary.
Otherwise, all national security information gathering would be changed
to fit within the procedures of title III criminal wiretaps, which is
impossible.
Minimization techniques deal not just with retention and
dissemination, but with acquisition. Analysts make decisions up front
whether to acquire, keep, or share U.S. person information based on
whether it has foreign intelligence value.
This means if a judge is reviewing compliance with minimization
procedures, this review is much more than a factual check. The judge is
not limited to simply making sure that technical and administrative
guidelines are followed. Rather, this amendment could allow a judge to
question specific decisions by intelligence analysts on why they chose
to acquire, keep, or share certain communications.
Now this begs the question: Are judges better trained in intelligence
collection than the intelligence analysts whose job it is to repeatedly
perform this task? Not only do I think the answer is no, but we should
remember what the FISC said in their recently publicly released
opinion, which is only the third public opinion released in the history
of the Foreign Intelligence Surveillance Court.
Here is what the FISC said:
Although the FISC handles a great deal of classified
material, FISC judges do not make classification decisions
and are not intended to become national security experts.
Furthermore, even if a typical FISC judge had more expertise
in national security matters than a typical district court
judge, that expertise would still not equal that of the
Executive Branch, which is constitutionally entrusted with
protecting the national security.
Enactment of this amendment could result in judges making foreign
intelligence determinations in place of trained intelligence analysts.
Based on this unjustified scrutiny, our intelligence analysts could
become overly cautious when determining whether to
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deem information as having intelligence value in order to avoid
unwarranted judicial scrutiny. This could result in less foreign
intelligence information being accumulated, and thus could mean we may
miss a vital piece of information. Do we want to take this chance? That
is what this amendment would do. Should we risk this type of unintended
result?
In October of 2007, I asked Assistant Attorney General Wainstein if
putting the FISC judges in the position of assessing compliance would
effectively put the judge in the role of an analyst. Here is what he
said in response:
And that is the problem, that it would get the FISC in the
position of being operational to the extent that it's not
when it assesses compliance for, let's say, the minimization
procedures in the typical or traditional FISA context where
you're talking about one order, one person. Here, some of our
orders might well be programmatic, where you're talking about
whole categories of surveillances, and that would be a tall
order for the FISA Court to assess compliance.
The Whitehouse amendment also contains language which lets the FISC
fashion remedies it determines are necessary to enforce compliance.
This is very broad language and gives the court the ability to come up
with whatever methods it chooses to enforce compliance. Does this mean
that the FISC could shut down collection of information from foreign
targets overseas while the Government addresses technical issues which
have little to do with the privacy of American citizens? We do not
know, since this amendment does not answer this question. Remember, we
are talking about targeting foreign terrorists to prevent terrorist
attacks. This is not the same thing as wiretapping a cocaine dealer in
Los Angeles for criminal prosecution. If we approve an amendment which
creates numerous unanswered questions, we are putting Americans at risk
in unprecedented ways.
Given that the Government has adequately utilized minimization
procedures for many years, what is the pressing need for FISC expansion
into this area? There is no need to continue unlimited expansion of the
FISC into unsuitable areas.
If this amendment does not pass, it does not mean that American
citizens are not protected. Incidental communications of Americans will
continue to be minimized, and the minimization procedures will have
been approved by the FISC. But if the Whitehouse amendment passes, we
will be taking a great risk that the unnecessary judicial oversight
will cause very harmful unintended consequences that I have already
mentioned. We are too far along to introduce guesswork into the
carefully crafted compromise bill before us. I will oppose this
amendment, and I urge my colleagues to do the same.
Amendment No. 3930
Now, Mr. President, there is one other amendment I wish to refer to.
In October of last year, the Intelligence Committee passed a bipartisan
compromise bill which would modernize our foreign intelligence
surveillance activities. Unfortunately, this bipartisan bill contained
a 6-year sunset provision which would automatically curtail our ability
to protect our homeland unless Congress acted.
Let me be clear, I am opposed to any sunset in this legislation.
While I believe the inclusion of this sunset provision was not
appropriate, it was a result of the bipartisan negotiations in the
Intelligence Committee. Now this serves as yet another example that not
all of us who support this bill are happy with every provision, and
every Senator will need to make concessions to get this bill passed and
signed into law.
Given my opposition to any sunset, I will oppose the Cardin amendment
No. 3930, which would change the sunset from 6 to 4 years. Proponents
of this amendment have propounded several arguments, none of which
justifies this change. I am going to discuss three of those arguments
today.
The most common argument cited is that this legislation is too
technical and too complex to have a 6-year sunset. This is certainly a
complex bill, but this is not the first time the 110th Congress has
tackled complex issues. We have already waded through several different
and complex bills, such as immigration reform, ethics and lobbying
legislation, and even a vast energy bill.
We are not reinventing the wheel with surveillance law, as this is a
FISA modernization bill. But it is important to note how Congress has
previously legislated in this area. The 1978 FISA law made dramatic
changes to our surveillance laws and oversight mechanisms. While FISA
has been discussed extensively, what has not been stated nearly enough
is that the 1978 FISA had no sunset. Given that FISA had no sunset,
let's look at how Congress has previously legislated FISA amendments
with regard to sunsets.
Sunsets are not common in previous laws amending FISA. Other than the
PATRIOT Act and the PATRIOT Act reauthorization, seven of the eight
public laws amending FISA had no sunsets on FISA provisions, and the
remaining public law had a sunset on only one of those provisions.
Now, this statistic speaks for itself. What is so different about
this bill? I do realize it contains massive new congressional oversight
provisions which could possibly hinder our collection efforts, and that
we may need to revisit it for this reason. However, if this is the
case, we obviously do not need a sunset to do this. We can legislate in
this area whenever we want to.
A second reason I have heard that some support the Cardin amendment
is that this sunset will keep Congress more engaged. One of my
colleagues previously stated that a sunset ``gives Congress the ability
to stay involved.'' Congress should not need sunsets to stay involved.
We do not need legislative alarm clocks to go off in 4 years in order
to address national security. I wake up every day thinking about how we
might protect our fellow Americans. I certainly do not need a
sunsetting bill to remind me about national security and oversight, and
neither should my colleagues.
The final reason I have heard for a 4-year sunset is the idea that
the next administration should be given an opportunity to address this
issue and that a sunset fosters cooperation between Congress and the
White House. Along these lines, one of my colleagues previously stated:
Having a sunset gives us a much better chance to get cooperation . . .
between the Congress and the White House. Once again, the next
President can weigh in on this topic whenever and however he or she
wants to. And regarding the idea that we should include a 4-year sunset
to foster cooperation between two branches of Government--do we need a
statute to influence the separation of powers? I say to my colleagues
that the relationship between the branches of Government should be
fostered by natural restrictions contained in the Constitution of the
United States, not by an artificial sunset provision in an intelligence
bill.
The very idea of a 4-year sunset understates the importance of
timeline implementation of new legislation. It takes a great deal of
time to ensure that all of our intelligence agencies and personnel are
fully trained in new authorities and restrictions brought about by
congressional action. This is not something that happens overnight. We
cannot wave a magic wand and have our Nation's intelligence personnel
instantaneously cognizant of every administrative alteration imposed by
Congress. Like so many other things in life, adjusting for these new
mechanisms takes time and practice.
While certain modifications are necessary, do we want to make it a
habit of consistently changing the rules? Don't we want our analysts to
spend their time actually tracking terrorists, or is their time better
spent navigating administrative procedures that may be constantly in
flux?
I know my preference is that our analysts be given the time to use
the lawful tools at their disposal to keep our families safe.
I do not want to see them spending all their time burying their heads
in administrative manuals which change from day to day whenever the
political winds blow.
After all of the efforts by many in this body to write a bill that
provides a legal regime to govern contemporary technological
capabilities, I am certainly not alone in my opposition to a sunset
provision. In fact, my views are completely in line with what the
Senate has done in the past when amending FISA. The administration
strongly opposes a sunset, and Attorney General Mukasey confirmed this
opposition during last week's oversight hearing here in the Senate.
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The fact is that this administration will not be here to see this
sunset occur. Why would they care if there is a sunset in the bill or
not? Their opposition demonstrates that those who are in charge of
protecting our country know that a sunset is a bad idea and their
opposition is based in logic and practical application. The
administration knows that they will not be here, but the intelligence
analysts who protect our country will. These analysts are not
politically appointed, and do their job regardless of who the President
is or what party the President represents. They need the stability of
our laws to effectuate long term operations to prevent terrorist
attacks, not guesswork which could hinder intelligence gathering
practices.
We have already had a trial run with the 6-month sunset of the
Protect America Act. Enough of the quick fixes, let's have confidence
in the work product created by the nearly 10 months we have spent on
this issue. A shorter sunset gives us an excuse to not legislate with
conviction, and this is an excuse we should not make.
The 95th Congress had the ability to decipher complex problems and
pass FISA with no sunset, and the 110th Congress can certainly
modernize it without second guessing our capabilities by approving the
Cardin amendment. I will oppose this amendment, and I urge my
colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
____________________
[Congressional Record: February 6, 2008 (Senate)]
[Page S688-S714]
FISA AMENDMENTS ACT OF 2007
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 2248, which the clerk will report.
The bill clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
Pending:
Rockefeller-Bond amendment No. 3911, in the nature of a
substitute.
Whitehouse amendment No. 3920 (to amendment No. 3911), to
provide procedures for compliance reviews.
Feingold amendment No. 3979 (to amendment No. 3911), to
provide safeguards for communications involving persons
inside the United States.
Cardin amendment No. 3930 (to amendment No. 3911), to
modify the sunset provision.
Feingold-Dodd amendment No. 3915 (to amendment No. 3911),
to place flexible limits on the use of information obtained
using unlawful procedures.
Feingold amendment No. 3913 (to amendment No. 3911), to
prohibit reverse targeting and protect the rights of
Americans who are communicating with people abroad.
Feingold-Dodd amendment No. 3912 (to amendment No. 3911),
to modify the requirements for certifications made prior to
the initiation of certain acquisitions.
Dodd amendment No. 3907 (to amendment No. 3911), to strike
the provisions providing immunity from civil liability to
electronic communication service providers for certain
assistance provided to the Government.
Bond-Rockefeller modified amendment No. 3938 (to Amendment
No. 3911), to include prohibitions on the international
proliferation of weapons of mass destruction in the Foreign
Intelligence Surveillance Act of 1978.
Bond-Rockefeller modified amendment No. 3941 (to Amendment
No. 3911), to expedite the review of challenges to directives
under the Foreign Intelligence Surveillance Act of 1978.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, I wish to make a few comments on the
amendment of the Senator from Wisconsin and what he referred to as the
``bulk collection'' amendment which he discussed yesterday and which is
amendment No. 3912. I would ask that this time be taken from the
opponents of the amendment, if that is all right with my vice chairman.
The Senator from Wisconsin is offering an amendment that he argues
will prevent what he calls ``bulk collection''. The amendment is
intended, as described by the Senator from Wisconsin, to ensure that
this bill is not used by the Government to collect the contents of all
the international communications between the United States and the rest
of the world. The Senator argues that the amendment will prevent ``bulk
collection'' by requiring the Government to have some foreign
intelligence interest in the overseas party to the communications it is
collecting.
I regret to say I must oppose this amendment strongly. I do not
believe it is necessary. I do believe, as drafted, the amendment will
interfere with legitimate intelligence operations that
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protect the national security of the lives of Americans.
In considering amendments today, we need to consider whether an
amendment would provide additional protections for U.S. persons and
whether it would needlessly inhibit vital foreign intelligence
collection. I do not believe the amendment, as drafted, provides
additional protections. Furthermore, intelligence professionals have
expressed their concern that this amendment would interfere with vital
intelligence operations, and there are important classified reasons
underlying that concern.
Let us review why the amendment is unnecessary. First, bulk
collection resulting in a dragnet of all the international
communications of U.S. persons would probably be unreasonable under the
fourth amendment. No bill passed by the Senate may authorize what the
fourth amendment of the Constitution prohibits. What is more, the
committee bill, in fact, explicitly provides that acquisitions
authorized under the bill are to be conducted in a manner consistent
with that same fourth amendment of the Constitution.
Second, the committee bill stipulates that acquisitions under this
authority cannot intentionally target any person known to be located in
the United States. And to target a U.S. person outside the United
States, the Government must get approval from the FISA Court.
Third, the committee bill increases the role of the FISA Court
overseeing the acquisition activities of the Government. The bill
requires court approval of minimization procedures that protect U.S.
persons' information. It maintains the prior requirement of court
approval of targeting procedures.
In the unlikely event the FISA Court would give its approval to
targeting procedures and minimization procedures that allow the
Government to engage in unconstitutional bulk collection, the committee
bill also strengthens oversight mechanisms in the executive and
legislative branches, such as requiring assessments by the inspectors
general in the Department of Justice and relevant agencies. These
mechanisms are intended to ensure that such activity is detected and
prevented.
The sponsor of the amendment says his amendment only requires the
Government to certify to the FISA Court that it is collecting
communications of targets for whom there is a foreign intelligence
interest. But the committee already requires the Attorney General and
the Director of National Intelligence to certify to the FISA Court that
the acquisition authorized under the bill is targeted at persons
outside the United States in order to obtain foreign intelligence
information. Because the remedy does not improve upon the protections
in the bill for Americans and places new burdens on the surveillance of
foreign targets overseas, I thus oppose this amendment and urge that it
be rejected.
I yield the floor and reserve the remainder of the opponents' time.
The PRESIDING OFFICER. The senior Senator from Missouri is
recognized.
Mr. BOND. Mr. President, I yield myself 6 minutes from the opposition
to the amendment No. 3979, the Feingold-Webb sequestration.
During yesterday's sessions and prior sessions, there have been,
regrettably, a number of inaccurate statements about the amendments we
debated. Several of these amendments go to the very heart and strike at
the very heart of foreign targeting. It is not an understatement to say
that if they are adopted, they could shut down our intelligence
collection and cause irreparable damage to our national security. So I
am compelled to set the record straight. Working with my colleague and
good friend, the chairman of the committee, Senator Rockefeller, we
want our colleagues to know what impact these amendments have.
We have made great progress in the Senate Intelligence Committee on
the FISA Amendments Act of 2008 in providing additional protections,
but we did so working with the intelligence community to make sure the
measures we put in the bill would actually work.
Now, the first amendment we debated was amendment No. 3979, the
sequestration amendment supported by and sponsored by Senators Feingold
and Webb. In explaining this amendment, supporters claimed the Protect
America Act was ``sold repeatedly'' as a way to collect foreign-to-
foreign communications without a court order and this amendment allows
this collection. We saw from the House RESTORE Act, which the DNI has
told us--the Director of National Intelligence, whom I will refer to as
the DNI--and from the debate on the Protect America Act that the focus
on foreign-to-foreign communications is misplaced. The Protect America
Act was intended to allow foreign targeting, just like this bill and
for good reason. We cannot tell if a foreign terrorist is going to be
calling or communicating with another foreign terrorist whether in some
other country or whether some of that communication may occasionally
come to the United States, and there is no way to tell. So it does no
good to give the intelligence community authority to collect only
foreign-to-foreign communication. You can't tell. That means you can't
collect on any without getting a FISA Court or a FISC order. That was
an impossible burden that the FISC judges told us overwhelmed and shut
down their operations and did not protect American citizens. Yet we
were told yesterday this amendment will not damage or slow down
collection.
This amendment will not just slow down collection; it will stop it.
It will stop it. In the words of one intelligence official, it would
``devastate our operations.''
Now, our bipartisan bill gives the intelligence community the ability
to target terrorists, foreign terrorists overseas. That targeting is
not, as has been suggested on the other side, ``dragnet surveillance.''
Rather, the intelligence community will be acquiring communications of
foreign terrorists, spies, and others who seek to do us harm. That is
not a dragnet; that is targeted. But if this amendment were to be
adopted, its unreasonable limitations will prevent the intelligence
community even from beginning the collection.
Now, I argued yesterday this amendment would prevent the intelligence
community from intercepting the communications of Osama bin Laden with
somebody in the United States. The Senator from Wisconsin disagreed,
calling my argument questionable and claiming the amendment in no way
hampers the ability to fight al-Qaida. That is not true. I find it
interesting because that is not what his amendment says. First, the
intelligence community can't even start the collection because there is
no way to know if a terrorist, including bin Laden, is going to call or
be called by a person in the United States. Second, from the amendment,
page 2, lines 10 to 16:
Such communications may be acquired if there is reason to
believe that the communication concerns international
terrorist activities directed against the United States, or
activities in preparation therefor.
That means if bin Laden were planning an attack against the United
Kingdom or against our foreign military bases or our foreign embassies
abroad and calls into the United States to talk with an associate, we
could not capture that call and protect our troops, protect our
citizens, protect our officers overseas, because under the terms of the
amendment, it does not concern activities directed against the United
States. Not only is the limitation dangerous, it is unwise, unhelpful,
and could lead to significant intelligence shortfalls.
Another dangerous aspect of the amendment is that it would foreclose
the collection of foreign intelligence relating to nonterrorist
threats. Our Nation faces daily threats, for example, from the
proliferation of weapons of mass destruction. I have an amendment that
deals with this issue specifically. What about North Korea, Iran, and
Syria? Under this amendment, none of that information could be
collected if the communication was to or from the United States. That
is a limitation that should make all of us uncomfortable. There is no
basis for it, it is unreasonable, and it could lead our country into
severe jeopardy.
The DNI and the Attorney General agree with my reading of the
amendment. Yesterday, we received a letter from them expressing their
views about these amendments. The DNI and Attorney General stated that
if this amendment is part of the bill presented to the President, they
would recommend a veto. They wrote this in their letter:
This amendment would have a devastating impact on foreign
intelligence surveillance
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operations; it is unsound as a matter of policy; its
provisions would be inordinately difficult to implement; and
thus it is unacceptable.
Ironically, this amendment is being advertised as the best way to
protect America's privacy. But a fundamental problem with the amendment
is that we can never know ahead of time what a communication says.
Let's think it through. In order to figure out whether the
communication concerns international terrorism, for example, an analyst
will have to review the content of it. That actually results in more of
an invasion of privacy than would ever occur under the standard
minimization procedures that NSA uses every day. That makes no sense if
we are trying to protect privacy.
Mr. President, it is news to me that the Intelligence Committee bill,
as claimed on the other side, has no judicial involvement and no
judicial oversight. I have said it before. This bill has more judicial
oversight and involvement in foreign intelligence surveillance than
ever before. There is court review and approval of the joint
certification by the Attorney General and the DNI and of the targeting
minimization procedures. If the court finds any deficiency in these
documents, the Government must correct it or cease the acquisition.
That is not an empty oversight.
The Intelligence Committee bill doesn't stop there. We took
tremendous care to make sure there were specific protections for
Americans' privacy in the bill. I suggest all Members look closely at
these protections: express prohibitions against reverse targeting,
against targeting persons inside the United States without a court
order, against conducting any acquisition that doesn't comply with the
fourth amendment. This bill goes further than ever before in ensuring
that there are protections for Americans in the area of foreign
targeting.
We heard the tired accusation that this bill will allow the
intelligence community to intercept communications of anyone; that it
gives ``unrestrained access to communications of every American.'' That
is just plain wrong. Communications of U.S. persons will be intercepted
only if those persons are talking to foreign terrorists or spies. And
because of the minimization procedures, only those specific
communications will be intercepted, and if they don't contain foreign
intelligence value, then they will be minimized or suppressed.
According to the Senator from Wisconsin, this amendment is necessary
because the minimization procedures in FISA are ``quite weak'' and
inadequate. I am sure the FISA Court judges who have reviewed and
approved these procedures would appreciate the implication that they
are doing a bad job of protecting the privacy of Americans. Ironically,
it is that same court that, under the Senator's amendment, will control
the Government's access and use of incidental communications.
Mr. President, I reserve the remainder of our time and yield the
floor.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, I will use some of my time on a couple
of these amendments. I know it must be difficult for the Chair to
figure out which time to apply to which amendments, but I will try to
identify them.
First, I will speak with regard to Feingold-Webb-Tester amendment No.
3979, which the Senator from Missouri was addressing. He referred to
our concern that the rights and privacy of Americans could be affected
by this bill as a ``tired accusation.'' I object to that
characterization. I think this is clearly the kind of thing we should
be worried about. I will tell you what is a tired accusation: the
notion that somehow our amendment would affect the ability of the
Government to listen in on Osama bin Laden. That is a tired and false
accusation. The Senator has said that if bin Laden or his No. 3 man--
whoever that is today, because we killed the last No. 3 man--calls
somebody in the United States, we cannot listen in to that
communication unless we have an independent means of verifying that it
had some impact on threats to our security from a terrorist threat.
That is what he claims, that we would not be able to listen in on that
conversation. That is false.
The Feingold-Webb-Tester amendment specifically does not require a
FISA Court warrant to acquire and disseminate the communications of any
foreigner overseas who is suspected of terrorism. Mr. President, there
is no separate threat requirement. The amendment merely requires that
the Government label terrorism-related communications that have one end
in the United States so they are traceable for subsequent oversight.
And it simply requires that when the Government accesses and
disseminates terrorist-related communications that it has already
acquired that the court just be informed with the brief certification.
I don't know where the Senator gets this bizarre idea that somehow you
cannot listen in on a conversation of Osama bin Laden. I don't think it
is credible to anybody that that would be the case.
Finally, he raises the concern that somehow we are insulting the FISA
Court, saying they are not doing a good job. To the contrary, we are
trying to give them the power to enforce their will. We are trying to
give them the ability to say: Wait a minute. You guys are not doing
what you said you were going to do. That is not an insult. That is
essential for the court to be able to do its job. Let's worry less
about the alleged and, frankly, false notions about the feelings of a
secret court and worry more about the rights and privacy of perfectly
innocent Americans.
Mr. President, I turn now to amendment No. 3915, another amendment I
offered known as the use limits amendment. As I explained earlier this
week, my amendment simply gives the FISA Court the option of limiting
the Government's use of information about information about U.S.
persons that is collected under procedures the FISA Court later
determines to be illegal. That is about as minimal a safeguard as you
can get.
It is unfortunate that some of those who oppose my amendment are
mischaracterizing what it does. The Attorney General and the DNI sent
the majority leader a letter yesterday in which they expressed their
objections to this amendment. Twice in the letter, they stated that
this amendment would place limits on the use of information that
doesn't concern U.S. persons. That is flat-out false, Mr. President.
The use limits proposed in this amendment specifically apply to
``information concerning any United States person.'' That is what it
says. Use limits in this amendment apply only under those
circumstances. There is nothing ambiguous about this language. These
patently false claims that the amendment applies to information about
non-U.S. persons just show the lengths to which opponents of the
amendment will go to generate opposition to this or any other
reasonable amendment.
We have also heard that the amendment would create a massive
operational burden. Mr. President, that also just isn't true. The
Government already does what is necessary to implement the use limits
in the amendment.
First, declassified Government responses to oversight questions of
the Congressional Intelligence Committees reveal that the Government is
already labeling communications obtained under the so-called Protect
America Act. So the Government already tracks which communications are
acquired under these particular authorities, which would be the first
step here.
Second, the Government already has to comply with minimization
requirements that are supposed to protect information about U.S.
persons. These requirements kick in whenever the Government wants to
disseminate any acquired communications that include information about
U.S. persons. That means intelligence analysts already have to
determine, before any communications collected under these authorities
can be used in any of the contexts we are talking about here, whether
they contain any information about U.S. persons. Indeed, the
administration constantly reminds us of this fact when claiming that
minimization requirements do enough to protect Americans.
Mr. President, given that the Government is already required and
equipped to examine any communications it proposes to use in order to
determine whether U.S. person information is present, the argument that
the amendment somehow imposes a massive new burden is very difficult to
understand.
Perhaps the explanation lies in the administration's repeated
statements
[[Page S691]]
that the amendment would put limits on the use of information about
non-U.S. persons. If this were true, then it is conceivable that my
amendment would create an additional operational burden. But those
statements are completely and utterly false, as I have explained. The
amendment explicitly states that the use limits apply to ``information
concerning any United States person''--information that is already
subject to minimization requirements.
I want to also address the argument the chairman of the Intelligence
Committee made that this amendment is somehow different than the
existing use limits for emergency surveillance. The chairman argued
that the amendment, unlike the emergency use limits, could affect
``thousands'' of communications. As I pointed out yesterday, the
amendment addresses that concern by creating a huge exception to the
use limitations, an exception that is not present in the emergency use
limits provision. Under the amendment, the FISA Court can allow the
Government to use even information about U.S. persons that is obtained
by unlawful procedures, as long as the Government fixes the problem
with the procedures. So, in fact, this amendment is far less
restrictive than the use limits for emergency surveillance, despite the
claim of the chairman otherwise.
Even more important, we have to remember what these thousands of
communications are. The only information that would be subject to use
limits is information about U.S. persons collected under illegal
procedures--procedures that failed to reasonably target people
overseas. The underlying bill prohibits the Government from collecting
this information in the first place. My amendment gives this
prohibition some teeth by limiting the use of information that has been
illegally collected.
The opponents of this amendment may argue that the government has no
intention of doing anything that would be unreasonable under the law.
My response is, if it does, there ought to be some enforcement. There
ought to be a way to make sure that doesn't happen, not just the
assurance of the chairman and vice chairman.
Moreover, if the Government has collected thousands of communications
illegally, isn't that all the more reason to try to contain the damage
and limit the impact on innocent Americans? That is not hamstringing
the Government; it is just requiring the Government to comply with the
law that we are actually passing.
My amendment simply provides an incentive for the administration to
follow the law as it is written. If we pass a law that has no
meaningful consequence for noncompliance with the law, I think we are
taking a real gamble as to whether the administration will choose to
comply. I am not personally willing to accept the odds on that one.
Once again, I urge my colleagues to support this amendment, and I
reserve the remainder of my time and yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, I ask my esteemed vice chairman if I
might have 6 minutes to oppose Senator Feingold's reverse targeting
amendment No. 3913.
Mr. BOND. I am happy to yield that time to the chairman.
Mr. ROCKEFELLER. The Senator from Wisconsin has an amendment that
requires a FISA Court order if the Government is conducting
surveillance of a person overseas, but a significant purpose of the
surveillance is to collect the communications of a person inside the
United States with whom the target is communicating.
I share the Senator's goal in protecting the privacy interests of
Americans, but I am afraid this amendment, as drafted, is unworkable
and unnecessary.
The amendment is described as a way to prevent reverse targeting--
circumstances in which the Government would target persons overseas
when its actual target is a person within the United States with whom
the overseas person is communicating.
The fact is, reverse targeting is prohibited under FISA today. I
repeat, it is prohibited under FISA today. If the person in the United
States is the actual foreign intelligence target, the Government must
seek a FISA order, and, in fact, the Government would have to have
every incentive to do so in order to conduct comprehensive surveillance
of such a person.
What is more, the base bill, S. 2248, makes the prohibition on
reverse targeting explicit. The Government cannot use the authorities
in this legislation to target a person outside the United States if the
purpose of such acquisition is to target for surveillance a person
within the United States.
In addition, the base bill, the Intelligence Committee bill, also
strengthens the protection of U.S. person information that is collected
in the targeting of foreign targets overseas by requiring that the FISA
Court approve the minimization procedures that apply to this collection
activity.
The Feingold reverse targeting amendment, however, goes too far. The
amendment would prohibit the Government from using the authorities of
this act ``if a significant purpose'' of the acquisition is to
``acquire the communications'' of a particular known person within the
United States. In order to acquire such communications, the Government
would be required to seek a regular FISA Court order.
The problem is that we are revising the Foreign Intelligence
Surveillance Act today in large measure precisely because we want the
intelligence community to have the ability to detect and acquire the
communications of terrorists who call into the United States. In other
words, in order to detect and prevent terrorist attacks, finding out if
a foreign terrorist overseas is in contact with associates in the
United States is actually a significant purpose of this legislation,
and it will always be a significant purpose of any targeting of a
foreign terrorist target overseas by the intelligence community.
As the Statement of Administration Policy--that is objections usually
that come over from the White House--points out:
A significant purpose of the intelligence community
activities is to detect communications that may provide
warning of homeland attacks and that may include
communication between a terrorist overseas who places a call
to associates within the United States. A provision that bars
the intelligence community from collecting those
communications is unacceptable.
Who is to say that person from overseas is not a terrorist and he is
contacting a person in the United States to discuss something which is
not in the national interest or which has intelligence implications?
You cannot in good conscience bar the intelligence community from
collecting these communications. That is unacceptable.
Again, reverse targeting is prohibited under current law. I think
that is the third time I have said that. Reverse targeting is
prohibited by the committee bill. The amendment is not needed to
achieve its stated goals. It will harm vital intelligence collection. I
urge the amendment be defeated.
I reserve the remainder of our time.
The PRESIDING OFFICER (Mr. Casey). Who yields time?
The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I will speak with regard to amendment
No. 3913, the one about which the chairman just spoke, the so-called
reverse targeting amendment I have offered. Reverse targeting is what
happens when the Government wiretaps persons overseas when what they
are really interested in is the Americans with whom these foreigners
are talking. I think most of my colleagues would agree that this bill
should not open up a backdoor to get around the requirement in FISA for
a warrant to listen in on Americans at home.
The lack of any substantive arguments against my amendment is made
clear by the letter the DNI sent on Tuesday. The arguments just offered
by the chairman were almost identical to the arguments offered by the
DNI and by the Attorney General. In fact, that letter, which severely
mischaracterizes the amendment, actually underscores why the amendment
is good both for civil liberties and for national security.
First, the letter confirms that reverse targeting is not, in fact,
prohibited by the underlying bill. We keep hearing the chairman and
vice chairman say it is already prohibited. It is not. The DNI writes
that the Intelligence Committee bill only prohibits warrantless
collection when the American is ``the actual target.'' That cannot be
read as a prohibition on reverse
[[Page S692]]
targeting. That is just a prohibition on direct targeting of an
American at home, and it does nothing to protect Americans from what
the DNI himself has said is unconstitutional.
Second, the letter cites ``operational uncertainties and problems,''
but it does not bother to identify what those are. Yes, my amendment
would require a new procedure, just like everything else in this bill,
but the Government should already have procedures to protect the
constitutional rights of Americans. If it does not, that is all the
more reason to adopt the amendment.
Third, the letter actually makes one of the strongest arguments in
favor of my amendment when it warns of insufficient attention to the
American end of an international terrorist communication. If a foreign
terrorist is talking to an American inside the United States, the
intelligence community should get a FISA warrant on that American so it
can listen in on all his communications, and it certainly would have no
problem getting that warrant. Without that warrant, the Government will
never get the full picture of what that American is doing or plotting.
Yet the DNI's letter seems to argue that the Government would not want
to get a FISA Court warrant to listen in on all the communications,
including the domestic communications, of a terrorist inside the United
States. I do not believe this is a serious argument, but if it were, it
would suggest that our Government is not doing everything it can do to
track down terrorists.
Finally, the letter seriously mischaracterizes the amendment. The
amendment does not bar acquisition of communications between terrorists
overseas and their associates in the United States. It does not in any
way affect the Government's ability to discover and collect those
communications. It does not apply to incidental collection of
communications into the United States, and it does not even apply when
the Government has identified a known individual with whom the foreign
terrorist is communicating. Only when a significant purpose of the
surveillance is to get information on a person inside the United States
does the Government need to get a court warrant. That is not just
required by the Constitution of the United States, it is how the
Government can most efficiently and effectively protect us.
I hope my colleagues will support this modest proposal to prevent
these new powers from opening a huge loophole to the requirement in
FISA that the Government get a court order to target Americans in the
United States.
Mr. President, I reserve the remainder of my time on this amendment,
and I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Missouri.
Mr. BOND. Mr. President, I yield myself 3 minutes on amendment No.
3913.
It is interesting to hear that the proponent of this amendment thinks
the letter laying out the reasons against the amendment are reasons for
it. That is a trick I have not learned, to say that when somebody says
that the reverse targeting amendment would make it impossible when that
person and those people really represent the agency responsible and the
oversight body of the Department of Justice somehow makes their case.
I also call the attention of my colleagues to a statement from the
Civil Liberties and Privacy Office of the Office of the Director of
National Intelligence. In that statement, the Civil Liberties and
Privacy Office says:
Concerns have been raised that the PAA could result in the
interception of U.S. person communications. As explained in
the Department of Justice September 14 letter, and in a
letter by the DNI's Civil Liberties Protection Officer dated
September 17, 2007, U.S. persons' privacy interests are
protected through ``minimization procedures,'' which must
meet FISA's statutory definition. In addition, ``reverse
targeting'' is implicitly prohibited under existing law.
As a side note, Mr. President, this measure explicitly prohibits
reverse targeting, but the Privacy Office goes on to say:
The SSCI bill in addition requires review of minimization
procedures and explicitly prohibits reverse targeting. In
addition, the bill provides the FISA court with ongoing
access to compliance reports and information about U.S.
person disseminations and communications, and the explicit
authority to correct deficiencies in procedures. The bill
also requires annual reviews of U.S. person disseminations
and communications and extensive reports to Congress.
This is a clear statutory framework. As a practical matter, if there
was a desire to target someone in the United States, if that person was
thought to have foreign intelligence information and acting as an agent
of a foreign power, an officer, or employee, a FISA Court order is the
simplest way to do it. Nobody has explained how you can target a
foreign terrorist to get collections on a particular U.S. person unless
that person is engaged in a terrorist activity, and you have to target
an overseas person who has foreign intelligence information, and that
is the legitimate reason for making the collection against the foreign
target. No terrorist information. The information is minimized and not
used.
I yield the floor and reserve the remainder of the time.
The PRESIDING OFFICER. Who yields time?
Mr. BOND. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Pending Nominees
Mr. REID. Mr. President, I have a friend. I have known him for a long
time. His name is Steve Walther. Steve Walther was a very prominent
Nevada lawyer, a senior partner in a law firm, with qualifications that
are unsurpassed. I have always liked Steve very much. And he made a
comfortable living. I called him once and said: Steve, have you ever
considered doing something different?
A wonderful story about Steve, to show what a tremendously good guy
he is. He has a little boy named Wyatt. Steve married a woman and he
raised their children. They were his children once married, but he had
never had his own child. His wife went to the doctor, and she was
nearing 50 years old and was sick, and found out she was having a baby.
So late in life they had this baby, and I will never forget what she
said. She said: When I had my first two babies, time went by so slowly.
But she said: Now I am older and understand, and I want everything to
be fine, so I can't take enough time to make sure the baby is fine. And
the baby is fine.
Anyway, I said to Steve: You could afford to come back here. How
would you like to be a member of the Federal Election Commission? He is
not a Democrat; he is an Independent. He has done things for decades
with the American Bar Association, held all kinds of prominent
positions with the American Bar Association nationally. He said: OK, I
think it would be a good idea. Wyatt can come back and spend some time
in Washington. So he served for nearly two years on the Federal
Election Commission. Everybody said he was outstanding, as I knew he
would be.
Also on that Federal Election Commission, prior to the first of the
year, was another Democrat by the name of Bob Lenhard. He had served on
the FEC with Steve. He and Steve worked well together. They worked well
together with everybody on the Commission, and he and Steve did a good
job.
The Federal Election Commission is critically important because it
enforces our Nation's campaign finance laws. Both these nominees lost
their jobs at the end of last year because the Republicans refused to
permit a vote on their nominations to the FEC. They said they would not
allow an up-or-down vote on these nominations of Lenhard and Walther.
Nothing about their qualifications. They were both outstanding members
of the Federal Election Commission. The reason they would not allow a
vote on them is they would not allow a vote on their own nominee, a man
by the name of Hans von Spakovsky. They are filibustering their own
nominee.
I said: Let's vote on all of the FEC nominees, any order you want. We
will vote on ours first, last, we don't care. Let's just have a vote on
them. No. Unless we would guarantee von Spakovsky would pass, no. I
don't know if Mr. Spakovsky would pass. I suspect the Republicans don't
think so. But it seems fair to me that we should have votes on these
nominees.
[[Page S693]]
The record over the years is full of remarks by my Republican
colleagues characterizing the up-or-down vote as the gold standard of
reasonableness in Senate process. That is apparently not the view when
it comes to one of their nominees, who would actually stand a chance of
losing a vote. Republicans won't allow a vote on our Democrats unless
we approve this person. That doesn't make sense.
The reason these FEC nominees, including Steve Walther, have not been
approved rests squarely with the White House and the Republicans.
Mr. President, I ask unanimous consent to have printed in the Record
two editorials.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 31, 2008]
While the Election Watchdog Wanders
The presidential campaign's heated fund-raising sweepstakes
finds lobbyists hurriedly ``bundling''--amassing additional
hundreds of thousands from donors to re-stake surviving
contenders for the next primary rounds. (Lobbyists reportedly
bundled $300,000 for Senator John McCain in one night in
Washington after his stock revived on the campaign trail.)
In packaging political influence by superlarge chunks,
money bundlers are at least as crucial to understanding where
candidates stand as their campaign vows. Fortunately for
voters, a new election law mandates the disclosure of the
names of lobbyists and other bundlers working the high-roller
realm of donations of $15,000 or more. Unfortunately for the
same voters, this vital law cannot yet be implemented.
A partisan standoff blocks the Senate from filling four
existing vacancies on the Federal Election Commission. The
six-member panel is powerless to form a quorum and write the
regulations needed to shed sunlight on bundling. Senator
Mitch McConnell, the Republican minority leader, is refusing
to allow individual up-or-down majority votes on nominees for
the commission. Mr. McConnell threatens a filibuster unless
they are voted on as a single package--an obstructionist
tactic to protect a highly unqualified Republican nominee,
Hans von Spakovsky, from rejection in a fair vote.
Mr. von Spakovsky is a notorious partisan who previously
served the Bush administration as an aggressive party hack at
the Justice Department. There, he defended G.O.P. stratagems
to boost Republican redistricting and mandate photo ID's in
Georgia--a device to crimp the power of minorities and the
poor who might favor Democrats at the ballot.
President Bush refuses to withdraw the von Spakovsky
nomination, while the Democrats demand he be considered on
his individual record, not yoked to three less controversial
nominees. We urge the Senate majority leader, Harry Reid, to
highlight this blot on democracy by moving the von Spakovsky
nomination as a separate measure and demanding a cloture
vote. Force the Republicans to either filibuster against
their own unqualified partisan or dare to vote for him in
broad daylight.
____
[From the Washington Post, Jan. 28, 2008]
Up or Down
``We need to get him to the floor for an up-or-down vote as
soon as possible,'' Sen. Mitch McConnell (R-Ky.) said of
Michael B. Mukasey, then the nominee for attorney general.
John R. Bolton ``deserves an up-or-down vote so that he can
continue to protect our national interests at the U.N.,'' Mr.
McConnell said of the nominee to be United Nations
ambassador. ``Let's get back to the way the Senate operated
for over 200 years, up-or-down votes on the president's
nominee, no matter who the president is, no matter who's in
control of the Senate,'' he said during the dispute over
judicial filibusters.
Mr. McConnell's devotion to the principle of up-or-down
votes for nominees, it turns out, has limits: Apparently
fearing defeat if a simple majority vote were allowed, the
minority leader has refused to accept Senate Democrats' offer
for such a vote on President Bush's choice for a Republican
seat on the Federal Election Commission. The consequence is
that, as the country begins an election year, the agency
entrusted with overseeing enforcement of the federal election
laws is all but paralyzed: Only two commissioners are in
place, meaning that the agency, six members when it is at
full strength, cannot initiate enforcement actions,
promulgate rules or issue advisory opinions.
The standoff involves Hans A. von Spakovsky, a former
official in the Justice Department's civil rights division
who had been serving as an FEC commissioner until his recess
appointment expired last month. Democrats and civil rights
groups argue, with some justification, that Mr. von
Spakovsky's tenure at Justice was so troubling that he does
not deserve confirmation to the FEC post. Some Democrats had
threatened to filibuster the nomination, but Senate Majority
Leader Harry M. Reid (D-Nev.) managed to offer an up-or-down
vote on each of the four pending nominations to the agency,
two Republicans and two Democrats. But Mr. McConnell and
fellow Republicans have insisted that the nominees must be
dealt with as a package, with no separate votes allowed. To
be fair to Mr. McConnell, the practice has been to vote on
FEC nominees as a package to ensure that the politically
sensitive agency remains evenly divided between the two
parties. But that has not been an absolute rule; indeed, the
last nominee who generated this much controversy, Republican
Bradley A. Smith, had a separate roll call vote and was
confirmed 64 to 35 in 2000. But Senate Democrats could commit
to a quick vote on a replacement nominee, if they were able
to muster the votes to defeat Mr. von Spakovsky.
We have suggested previously that it is more important to
have a functioning FEC than to keep Mr. von Spakovsky from
being confirmed. But Mr. McConnell ought to explain why the
up-or-down vote he deemed so critical in the case of Mr.
Mukasey, Mr. Bolton or appellate court nominee Miguel A.
Estrada is so unacceptable when it comes to Mr. von
Spakovsky.
Mr. REID. Mr. President, I can gather one thing from the President's
unwillingness to resolve the Federal Election Commission problem. That
is that they would rather have no election watchdog in place during an
election year.
The background on the FEC makes the call from Mr. Walther
particularly remarkable. Listen to this, now. It even gets better.
Steve Walther called to tell me he had been invited to the White
House by the President to push for his nomination. I got calls from
other people whom I had placed in the works to get approved by the
Senate. They were all invited to the White House tomorrow morning. All
nominees that the President has pending were invited to the White
House, Democrats and all. Why? To complain about the Democrats not
approving them.
This leads me to tell you a little experience I have had, and we have
all had, with this President. The President is in fact hoping to have
breakfast with all the nominees, Democrats and Republicans, now pending
in the Senate, in an effort to force the Senate to confirm all these
people. They must live in some alternative universe. I talked yesterday
about the Orwellian nature of this White House, and this is it. He has
invited people to the White House to complain about our not approving
them when they--the President and the White House--are the reason we
are not approving many of them.
He invited Mr. Walther, Mr. Lenhard and other Democratic nominees to
the White House, along with all his Republican nominees, to get them to
be a backstop, a picture, so he can come out and give one of his
Orwellian speeches that these people are not being approved because of
the terrible Democrats in the Senate. Actually, we are waiting for him
to allow us to have votes on a number of these nominees.
The President's breakfast only needed one attendee. Only one. That is
because only one nominee matters to this President. It should be an
intimate breakfast between President Bush and a man by the name of
Steven Bradbury. Why do I say that? I say that because of all the
nominees the President will profess to care about at this breakfast,
Steven Bradbury stands head and shoulders above all the others in the
President's esteem. I am not guessing; I was told so by the White
House.
Right before the Christmas recess, I called the President's Chief of
Staff, Mr. Bolten. A wonderful man; I like him; easy to talk to and
easy to deal with. I said: I tell you what, Josh. We are going to go
into recess, and why don't we have an agreement on who the President
wants to have recess appointed and, in fact, I will give you some
suggestions. You can have a member of the Federal Reserve Board of
Governors, you can have a Federal Aviation Agency, and you can have a
couple of other Chemical Safety Board members. I said: Not only that,
there are 84 other Republican nominees we will approve. There are 8
Democrats, 84 Republicans. Pretty good deal. He said: Let me check.
He called me back and he said: Well, what we want is to have a recess
appointment of Steven Bradbury. I said: Josh, I didn't recall the name.
Let me check. I checked with Chairman Leahy, I checked with Senator
Durbin, who is a member of that committee, I checked with Senator
Schumer, who is on that committee, and they and others said: You have
to be kidding. This is a man who has written memos approving torture,
and that is only the beginning.
[[Page S694]]
Senator Durbin--I don't know if he has time today--will lay that out
in more detail.
I called Josh back and I said: Josh, that man will never get
approved. He has no credibility. He said: Well, let me check with the
President. He called back and said: It is Bradbury or nobody. I said:
You are willing to not allow 84 of your people to get approved because
of this guy? He said: Yes, that is what the President wants.
Now there are 84 nominees, and among them somebody Secretary Chertoff
wanted badly. Secretary Chertoff called me personally on someone and he
said: You have to give us this person. We have important things to do
here. If I don't get her, they will send me somebody from OMB, and that
will be a person who doesn't know anything from anything. You have to
help me with this.
The head of Alcohol, Tobacco and Firearms, four Department of Defense
assistant secretaries, the Deputy Director of the National Drug Control
Policy, the Director of the Violence Against Women's Office, Assistant
Attorney General, Under Secretary of Commerce for International Trade,
Director of the Census, Solicitor for the Department of Labor--these
are only a handful of the jobs of the 84.
Now, these jobs, all Republicans, all names given up to us by the
President, are jobs these people have sought for their whole lives.
Head of the Census, head of the National Drug Control Policy, Director
of Violence Against Women's Office, Solicitor for the Department of
Labor. Nope, they are not going to have a job.
I thought about that. That was a decision the President made, willing
to throw 84 people under the bus, run over them, for one person he knew
he couldn't get. That is 84 plus the 4 he could recess appoint. So what
we did, we stayed in session during the entire holiday recess. But
before we went out, I thought to myself, I don't know these 84 people.
Some of them I have met, but these are jobs that are important to our
country, jobs that are important to these individuals and their
families. I made the decision that because the President is willing to
do what I think is so unfair, so unreasonable, that doesn't mean I am
going to be unfair and unreasonable. So I called Secretary Chertoff and
others and said: Just because your boss is unreasonable and unfair, I
am not going to be that way. So I am going to walk out on the floor and
approve every one of them, which we did. So for him to have that
meeting tomorrow takes about as much gall as I can even imagine, to
have a meeting where he brings in all the people who have not been
approved. And had I not been, in my own words, generous, he would have
had 84 more people he would have had to invite down there.
I can't imagine how he could invite Democrats down to the White
House. Several of them are being blocked in this body by Republicans.
Same goes for a number of Republican nominees. Democrats are willing to
approve them and Republicans stand in the way. Why would he invite them
down there also? But he did, because there is an Orwellian thought
process that goes on down there saying Democrats aren't allowing these
people to get approved, which is the direct opposite of the truth.
All for one person it appears, Mr. Bradbury. Whatever the White House
wants, Bradbury would give it to them in a legal opinion. We are not
going to accept that. What the President is trying to do with this show
tomorrow is so unreasonable, so unfair, and so out of step with
reality--as is the budget he gave us on Monday--that I hope the
American people understand what is going on in this country.
It is too bad we have a situation where the President of the United
States would have a meeting in the White House and invite everybody to
say: I am sorry you are not going to be approved, it is their fault,
when the truth is, it is his fault.
Now, here are the people we confirmed. They are right here. Everybody
can see them. We confirmed all of them. And had it been up to the
President, not a single one would have been confirmed.
The PRESIDING OFFICER. The assistant majority leader.
Mr. DURBIN. Mr. President, I am glad the majority leader has come to
speak about this issue. It is hard to imagine what is going through the
mind of the President that he believes he can make an argument tomorrow
with the meeting at the White House, that we have been unreasonable in
dealing with his nominations.
Senator Reid spelled out what happened. We tried, in many ways, to
get some balance in nominations. That is done all the time so
Republicans and Democrats will be appointed. It is done by both
parties. I have seen it in the years I have been around the Senate.
When Senator Reid made that offer in December, the White House said:
No, they would not do it unless they could have this one nomination,
Mr. Bradbury. And I will have to say I think Senator Reid went that
extra mile, an extra 84 miles, as a matter of fact, and he basically
said 84 of those Bush nominees would be confirmed.
The majority leader recounted several phone calls he received this
week from Democratic nominees to bipartisan commissions. I heard from
my friend, Tom Carper, not the Senator from Delaware but a friend of
mine from McComb, IL, who has been nominated to serve on the board of
directors of Amtrak.
Tom has been working on passenger rail issues for 20 years, 12 years
as mayor of the city of McComb, IL, which is served by Amtrak. As
mayor, he served as the chairman of the Amtrak Mayor's Advisory
Council. He received national recognition for his leadership on Amtrak
issues.
He saw firsthand the enormous potential that passenger rail service
can have for towns, such as McComb, small towns that might be
overlooked otherwise. He helped to make the potential of Amtrak service
a reality. We have such a success story of Amtrak in Illinois in the
last year or two, with dramatic increases in ridership. Tom saw this
coming and was a real leader. He convinced the State of Illinois to
double its State investment in Amtrak. He worked with a broad coalition
of passenger, business, labor groups, and elected officials to increase
Amtrak service across our State.
We are experiencing a renaissance in terms of passenger rail in our
State in a short period of time. Senator Reid was given an opportunity
to fill a vacancy on the Amtrak board. I asked him to consider former
Mayor Tom Carper of McComb, IL. He was kind enough to recommend him.
There are seven voting members on the Amtrak bipartisan board--three
Republicans, three Democrats, and the Secretary of Transportation.
Currently, there are four vacancies on the board, which means the board
does not have enough members for a quorum, and it forces the board to
conduct business via an ``Executive committee.''
On our last day of session in December, Senator Reid, I think through
great effort and courtesy, rose above the President's refusal to
cooperate on nominations and worked to confirm more than 80 nominations
in a single day. But we could have--and should have--confirmed at least
two more. Senator Reid and I worked together and offered to confirm two
nominees to the Amtrak board--one Democrat, Tom Carper, and one
Republican, both of whom had been favorably reported by the Commerce
Committee.
The Republicans objected. They insisted that we confirm one Democrat
and two Republicans or none at all. Now, this ``all-or-nothing''
approach is not new. We have seen this before when it comes to
nominations.
As the majority leader described, I think the most glaring example of
this is the nomination of Steven Bradbury to be Assistant Attorney
General. The majority leader was willing to allow additional
confirmations--and even recess appointments--for a number of
nominations.
I can tell you, having dealt with Senator Reid, he bends over
backward to be balanced in this approach. That is the way it has to be
in the Senate. That is the way the institution operates. But the White
House turned down his offer. They turned down his offer because of one
nomination, the nomination of Steven Bradbury.
It was clear this request, Mr. Bradbury, was going to be rejected.
Mr. Bradbury's nomination has been returned to the White House four
times since he was first nominated for the job in June 2005. What part
of ``no'' does the White House fail to understand?
Why does the President care so much about this one nominee that he is
willing to sacrifice all these other nominees? He is going to fill the
White
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House with people who are going to have this fine White House china in
front of them, sipping coffee and tea and eating little cookies and
complaining that somehow or another the Democrats in the Senate are
ignoring their need to serve our Government.
We are not ignoring it. Senator Reid has offered repeatedly to
confirm these nominees on a balanced basis, even giving the President
84 nominees without this balance. They have said: No deal unless we get
Steven Bradbury. He is the only appointment, clearly, who is important
to this administration. Why? What is it about this man? What would
possibly be in his background or his potential for future service that
would be so important?
Well, this is worth talking about for a minute. Steven Bradbury is
the head of the Office of Legal Counsel, also known as OLC. OLC is a
small office and most people have never heard of it, but it has a great
deal of power, especially in this administration. The Office of Legal
Counsel issues legal opinions that are binding on the executive branch
of Government.
In the Bush administration, OLC has become a rubberstamp for torture
policies that are inconsistent with American values and laws. In August
of 2002, the Office of Legal Counsel issued the infamous torture memo.
This memo sought to redefine torture, narrowing it to a limited
situation of abuse that causes pain equivalent to organ failure or
death. These words meant the United States was preparing to abandon
generations of commitment to outlawing and prohibiting torture. This
memo also concluded the President has the right to ignore the torture
statute, which makes torture a crime. This memo was official Bush
administration policy for years, until it was finally leaked to the
media, and the administration was forced to repudiate it.
Jay Bybee, who was then the head of the Office of Legal Counsel,
signed that memo. Unfortunately, Mr. Bybee was confirmed to a lifetime
appointment on the Federal bench in the Ninth Circuit before Congress
and the American people learned about his complicity in the creation of
this infamous torture memo, a memo that was repudiated by the Bush
administration once it became public.
Jack Goldsmith succeeded Jay Bybee as head of the Office of Legal
Counsel. Mr. Goldsmith is a very conservative Republican, but even he
was disturbed when he heard what was happening at the Office of Legal
Counsel.
As head of that office, he revoked the misguided OLC opinions dealing
with warrantless surveillance and torture. He decided those opinions
went too far.
Deputy Attorney General Jim Comey supported Mr. Goldsmith's actions.
Let me say a word about Mr. Comey. My colleague and friend for years,
Senator Schumer, first told me about Jim Comey when he was chosen to be
the Deputy Attorney General under Attorney General Ashcroft. Senator
Schumer told me Jim Comey was a straight shooter, an honest man who
would not compromise his principles in public service. He said I could
trust Jim Comey. During the period Jim Comey served in our Government,
Chuck Schumer was right. Jim Comey enjoys that reputation because he
earned it.
We now know what happened because it has come to light that there was
an infamous showdown at the bedside of Attorney General John Ashcroft,
who was hospitalized in an intensive care unit, where White House Chief
of Staff Andrew Card and former Attorney General Alberto Gonzales tried
to pressure a then-ailing John Ashcroft into overruling Jack Goldsmith
and his acts in the Office of Legal Counsel. It is hard to imagine that
they would go into a hospital wing, with the acting Attorney General
and with the President's Chief of Staff, to a man in an intensive care
unit and try to persuade him to sign a document to overrule Jack
Goldsmith.
Fortunately, Attorney General John Ashcroft, to his credit, refused.
When Jack Goldsmith finally left the Justice Department, the
administration realized they did not need any more trouble from the
Office of Legal Counsel, they needed someone in that office who would
not rock the boat, would not question their opinions, someone who would
rubberstamp their policies.
So, in June 2005, President Bush nominated Steven Bradbury to succeed
Jack Goldsmith--Steven Bradbury, the person who has now become the
centerpiece of the entire appointment agenda of the Bush
administration. Although Mr. Bradbury has never been confirmed in this
position, he has effectively been head of OLC for 2\1/2\ years.
In 2005, Mr. Bradbury reportedly signed two OLC legal opinions
approving the legality of abusive interrogation techniques. One
opinion, on so-called ``combined effects,'' authorized the CIA to use
multiple abusive interrogation techniques in combination.
According to the New York Times, then-Attorney General Alberto
Gonzales approved this opinion of Mr. Bradbury over the objections of
then Deputy Attorney General Jim Comey, who said the Justice Department
would be ashamed if the memo became public.
Mr. Bradbury also authored and Alberto Gonzales approved another
Office of Legal Counsel opinion, concluding that abusive interrogation
techniques, such as waterboarding, do not constitute cruel, inhumane or
degrading treatment. This opinion was apparently designed to circumvent
the McCain torture amendment. I was proud to cosponsor John McCain's
torture amendment. We are in the midst of a Presidential campaign, and
I suppose you have to be careful as a Democrat saying anything positive
about a man who may be the Republican nominee.
But I could not think of another Senator who could speak with more
authority on interrogation and torture than John McCain, who spent over
5 years in a Vietnam prison camp. He came to this floor and made an
impassioned plea for us to make it clear that torture would not be part
of American policy.
In the end, he won that amendment by a vote of 90 to 9, an amendment
which absolutely prohibits cruel, inhumane or degrading treatment.
Steven Bradbury, now infamous for his role in memo after memo relating
to torture, felt he found a way, through an opinion, for the
administration to avoid the impact of the law the President signed, the
McCain torture amendment.
That is what this is about. This is not a casual situation where I
find Mr. Bradbury personally offensive. We are going to the heart of a
question as to whether this man can serve this country in this critical
position in the White House based on what we have seen over and over
again: his complicity in some of the most embarrassing chapters in this
administration, including some that have been publicly repudiated.
Last fall, while the Senate was considering the nomination of Judge
Michael Mukasey to be Attorney General, the judge pledged to me in
writing that he would personally review all of the Office of Legal
Counsel's opinions dealing with torture. He said he would determine
whether each of these opinions can be provided to Congress and whether
he agreed with the legal conclusions of each of these opinions. This
promise made by Attorney General Mukasey to me, to the Judiciary
Committee, and to the Senate is a matter of public record.
Last week, Attorney General Mukasey appeared before the same
Judiciary Committee for the first time since he was confirmed. I asked
him point-blank whether, as he had promised, he had reviewed all of the
OLC torture opinions. I specifically asked him about Steven Bradbury's
``combined effects'' opinion, which Jim Comey said would shame the
Justice Department if it became public. Sadly, the Attorney General
said he had not reviewed those opinions. He realized that he had made a
promise to me that he would, and we left it at that. He did acknowledge
in the course of his testimony how much he respected Jim Comey, how he
had turned to him for advice and believed he was an honorable man. I
feel the same. I trust that Attorney General Mukasey is also an
honorable man who will keep his word.
In the meantime, while all of this continues, Steven Bradbury remains
as the effective head of the Office of Legal Counsel, even though it
has been 2\1/2\ years since he was nominated and he has never been
confirmed. Legislation known as the Vacancies Reform Act prohibits a
nominee from serving for this long without confirmation. It makes a
mockery of the confirmation process that Mr. Bradbury assumes a role he
has never been given under the law. Apparently, he is so important to
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the Bush administration, they are willing to violate this law to keep
him in his position, and they are prepared to toss overboard scores of
nominations which could be approved by this bipartisan Senate if they
would only relent on this nominee, who is obviously not going to be
approved. The fact that Mr. Bradbury continues to serve as the
effective head of the Office of Legal Counsel appears to be an attempt
to circumvent the confirmation process in order to install this
controversial nominee in a key Justice Department post in the closing
days of this administration.
Ironically, the Vacancies Reform Act to which I referred was passed
by the Republican-controlled Congress in 1998 to limit the ability of
then-President Clinton's nominees to continue to serve in an acting
capacity. The legislation was specifically targeted at Bill Lann Lee,
the first-ever Asian-American head of the Civil Rights Division.
Apparently, the Bush administration is ignoring the very law which a
Republican Congress passed to make it clear that the President does not
have the authority to appoint people like Steven Bradbury in an acting
capacity without confirmation.
Why has Mr. Bradbury not been confirmed? For years, the Justice
Department has refused to provide Congress with copies of the opinions
Mr. Bradbury authored on torture. Mr. Bradbury has refused to answer
straightforward questions from myself and other members the Judiciary
Committee regarding his role in this.
Here is what I said in November 2005 about Mr. Bradbury's nomination:
Since the Justice Department refuses to provide us with OLC
opinions on interrogation techniques, we do not know enough
about where Mr. Bradbury stands on the issue of torture. What
we do know is troubling. Mr. Bradbury refuses to repudiate
un-American and inhumane tactics such as waterboarding.
As I have said before, I believe that at the end of the day, when the
history is written of this era, there will be chapters that will not be
friendly to this administration.
In past wars, Presidents of both political parties have been guilty
of excessive conduct, in their own view, as part of national security.
One can remember the suspension of habeas corpus by President Lincoln
during the Civil War, the Alien and Sedition Act of World War I, and
the Japanese internment camps of World War II. All of these examples,
as we reflect on them in history, do not reflect well on this country.
Decisions were made which many wish could be undone. The same is likely
to be true when it comes to the issue of torture and the war on
terrorism under the Bush administration; this issue of warrantless
surveillance, where for years, literally, this administration went
beyond the law and attempted to intercept communications when they
could have come to Congress and received bipartisan support for an
approach which would have kept America and our Constitution safe.
Yesterday, we learned why Steven Bradbury is so important to the
White House. We also learned why he refuses to condemn waterboarding.
It was Super Tuesday, so a lot of political minds were focused on other
places and other things. Unfortunately, it didn't get a lot of
attention, but every American should know what happened yesterday on
Capitol Hill.
In testimony before the Senate Select Intelligence Committee, CIA
Director Michael Hayden acknowledged that the United States of America
has used waterboarding, a form of torture, on three detainees.
Waterboarding, or simulated drowning, is a torture technique that has
been used since at least the Spanish Inquisition. It has been used by
repressive regimes around the world.
Every year, the State Department issues a report card on human rights
in which we are critical of other countries that engage in what we
consider to be basic violations of human rights. Included in those
basic violations is torture of prisoners. Included in that torture is
waterboarding. So once a year we stand in judgment of the world and
condemn them for engaging in waterboarding and torture techniques on
their prisoners. Yet it is clear from the testimony yesterday of
General Hayden that we have engaged in some of those techniques.
Following World War II, the United States prosecuted Japanese
military personnel as war criminals for waterboarding American
servicemen. The Judge Advocate Generals, the highest ranking military
lawyers in each of the U.S. military's four branches, have stated
publicly and unequivocally that waterboarding is illegal.
Now the United States of America has acknowledged engaging in conduct
that we once prosecuted as a war crime. This is unacceptable.
Yesterday, I sent the Attorney General a letter. I wanted to spell
out clearly for him, so there is no misunderstanding, why it is
important that he respond to several requests which I have made for
information. At the heart of it is a good man, a judge named Mark
Filip, who serves in the Northern District of Illinois, a man whom I
supported for his confirmation as a Federal judge and who has received
positive reviews for his service on the bench.
Attorney General Mukasey would like Judge Filip to be his Deputy
Attorney General. That is a good choice. But I have said to the
Attorney General, there is only one thing between my enthusiastic vote
for Mark Filip and his remaining on the calendar: The Attorney General
has to respond to inquiries I have made, some of which were made months
ago, on this critical issue of torture. I wanted to make certain that
there was real clarity in my request. So I sent a letter to the
Attorney General yesterday and said: Here is exactly what I am looking
for, the letters we have sent, the questions we have asked, and I want
you to respond to them. I hope I receive that response by the end of
the day. If I receive that response and it is a good-faith response,
even if I disagree with it, if it is a good-faith response, then Judge
Filip can move forward. I hope he will. It is now in the hands of
Attorney General Mukasey.
Let me highlight two of the questions I am asking: First, does
Attorney General Mukasey agree with the legal conclusions of the Office
of Legal Counsel torture memos written by Steven Bradbury, that Jim
Comey believes the Justice Department would be ashamed of if they were
made public? Second, will the Justice Department investigate the
administration's use of waterboarding to determine whether any laws
were violated? I didn't call for prosecution but simply for an honest
investigation.
I recognize the Bush administration wants to confirm Steven Bradbury,
to ensure they have a firewall to protect their torture policies. But
what is at stake here is more important than this one nominee. This is
about who we are as a country. This is about the United States, our
values, our standards of conduct. This is about whether the United
States can, with a straight face, be critical of regimes and countries
around the world that engage in abusive interrogation techniques. This
is about whether we protect American soldiers and American citizens
from torture by unequivocally condemning those forms of interrogation.
The United States cannot be a country that defends a practice which the
civilized world has considered torture for over five centuries.
Democrats are willing to work with the President, in a bipartisan
manner, to confirm nominations. But the President's response to the
majority leader's work in confirming more than 80 nominations in
December by renominating Steven Bradbury last month is not encouraging.
If the President truly wants to confirm his nominations, he should not
be pouring coffee and tea at the White House.
He ought to have his Chief of Staff, Mr. Bolten, pick up the phone
and say: Let's get down to business. There are important Democrats and
Republicans who can be appointed tomorrow if the President will
understand that the entire fate and future of his administration should
not hang on this one nominee, Steven Bradbury, who has been implicated
in some of the most questionable practices of this administration. I
hope the President and his Chief of Staff, after they have had their
coffee with these potential nominees, will pick up the phone and work
with us for the right result.
I yield the floor.
The PRESIDING OFFICER (Mr. Menendez). The Senator from Alabama.
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Mr. SESSIONS. Mr. President, I would like to share some thoughts on
the FISA legislation. It is critically important, and we need to pass
the Intelligence Committee bill.
I will first say, in response to my able colleague from Illinois,
that General Hayden's comments in which he indicated three people had
been subjected to waterboard torture are something we ought to think
about. First, I am glad, as he said and has been repeated,
waterboarding was only used three times early on after 9/11 against
some of the most dangerous people we have ever dealt with.
As a result of the debate and discussion about that, we had an
amendment on the floor of the Senate, which Senator Kennedy offered to
the Military Commissions Act in 2006, to prohibit waterboarding. It
failed 46 to 53. We have a statute that does prohibit torture--Congress
passed it overwhelmingly and it was supported by Senators Kennedy,
Leahy, Biden, and others--that defined torture as infliction of severe
physical or mental pain or suffering. I am glad we are no longer
utilizing waterboarding. I hope we never have to do it again.
I just want to say to my colleagues, be careful how you portray the
United States around the world.
Mr. Goldsmith, who has been quoted here and previously testified
before our committee, has written a book. He said this war on terror
has been the most lawyered war in the history of the Republic. Lawyers
have been involved in everything. Great care has been given to ensure
the law was followed. To compare waterboarding of 3 individuals to what
was done to American prisoners by the Japanese in World War II is just
unthinkable. To date, not a single prisoner whom we have captured in
the War on Terror has died, to my knowledge, in American custody--maybe
or one or two from some disease, but certainly not from abuse.
I just finished reading the book ``Hells Guest'' by Mr. Glenn Frazier
from Alabama, a Bataan Death March survivor. About 90 percent of those
prisoners died. They starved to death. They were beaten on a regular
basis and abused in the most horrible way.
To even compare what was done to American soldiers wearing a uniform
lawfully being a combatant to what has been done to a few people
without any physical or permanent injuries is not fair. It is part of a
rhetoric designed for political consumption at home that has
embarrassed our country around the world and led decent people around
the world to believe our military is out of control and we are
systematically abusing and torturing prisoners when it is not so. We
ought to be ashamed of ourselves to go on again and again about it.
We continue to be confused. Our country faces very real dangers.
Terrorists are determined to damage this country. It is not just talk.
We know it is true. They have done it before. They have attacked us
around the world. They attacked us repeatedly before 9/11, and they
desire to destroy our country.
Our administration made a decision after 9/11 that we could not treat
these kinds of military attacks, designed to destroy our country by
organized foreign forces, as normal law enforcement. I was a former
Federal prosecutor. In a criminal prosecution, you try to catch people
after they have committed the crime. But these acts are so horrible
that the nature of them is such that they are acts of warfare and not
crimes, and they need to be treated in that fashion. We remain somewhat
confused about it. So the old policy meant you would investigate after
the crime was committed. It was basically a stated or implicit policy
of the Clinton administration. We cannot return to that kind of
strategy.
One of the most important legal powers and authorities we have to
defend America is the Foreign Intelligence Surveillance Act. It has
played a key role in preventing subsequent attacks on U.S. soil for the
last 6 years. We are dealing with very real, very imminent threats, and
we must continue to assist the fabulous military and intelligence
personnel who are working this very moment long hours to protect our
Nation.
I have visited our National Security Agency and met with the people
who gather the intelligence under this act. They love America. These
are not people who are trying to harm our country and deny us our
liberties. They are sterling individuals who carefully follow the rules
we give them. They follow the rules. They say they cannot continue
effectively to do their job unless we pass this legislation. They
cannot continue to do what they need to do.
The terrorists waging war against our country do not fight according
to the rules of warfare, international law, moral standards, or basic
humanity. They have even, in recent days, apparently used mentally ill
women as suicide bombers, setting off bombs that have resulted in the
deaths of other people, as well as the poor people who had the bombs
strapped to them.
So, historically, we have provided the protections of the Geneva
Conventions only to those whose conduct falls within the rules of war,
those who fight under a flag of a nation, who wear uniforms against
other organized military units. However, under a twisted rationale,
predicated on the belief by some that we are not fighting a real war,
we have given more rights to these individuals, who flatly reject any
rule of war, than we have provided to legitimate prisoners of war who
have followed the rules of war. We have done that in a number of
different instances--it is sort of amazing to me--including providing
them with habeas corpus relief to go to Federal court. These are not
traditional prisoners of war, but prisoners who are unlawful enemy
combatants. So we have endangered, sometimes I really believe, not only
our troops, who put themselves in harm's way--and are in harm's way
right now--to carry out the policies we gave them, but innocent
Americans here at home.
We have to keep this threat in the forefront of our minds. These are
individuals dead set on the destruction of our country at any cost.
There is nothing they will not do.
Let me state that the FISA law should be made permanent. It should
not merely be extended with another sunset provision. It is a
fallacious argument to claim we cannot revisit a law unless there is
some sunset when it ends. As Members of this Congress, it is incumbent
upon us to continually review legislation we pass to ensure that the
laws are accomplishing the goals set forth and that no unintended
consequences occur. There is no sound reason to pass critical
legislation such as the Protect America Act and slap an expiration date
on it.
Fighting the war on terror is a long-term enterprise that requires
long-term institutional changes. As the Vice President said in a recent
speech:
The challenge to the country has not expired over the last
six months. It won't expire any time soon, and we should not
write laws that pretend otherwise.
The Intelligence Committee bill is a collaborative, bipartisan
compromise that was crafted in consultation with members of the
Intelligence Committee, the Director of National Intelligence, the
Department of Justice, and the intelligence community after months of
negotiation and review of highly sensitive information, most of which
was classified, secret, about the current surveillance procedures and
how they were being used by the Government to obtain critical national
security information. We cannot overstress that the committee most
intimately involved with this process and the electronic measures being
utilized voted their bill out by an overwhelmingly bipartisan 13-to-2
vote.
Remember, it has been over 6 years 4 months since the terrible
attacks of September 11, and we may be most thankful that not one
attack has been carried out on our soil since that day. As we move
further from that dreadful day, I fear our memories have begun to fade.
Otherwise, there is no sound justification for doing anything other
than reauthorizing the Protect America Act, which would allow the
intelligence community to simply continue, uninterrupted, their work
which has been protecting this Nation and can continue to protect it in
the future.
After the intelligence Committee passed a bill, the Senate Judiciary
Committee, of which I am a member, got involved and produced a partisan
bill. We already voted to table the partisan Judiciary substitute, and
we debating the bipartisan Intelligence Committee bill. Let me point
out, however, something that happened in the Judiciary Committee. The
bill produced by
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the committee was given very little process during one committee
meeting where 10 Democratic amendments were accepted along a strict
party-line vote, and the bill itself, ultimately, was voted out with
only Democratic support. No Republican voted for it. It was a purely
partisan bill.
Strikingly, the one vote that garnered bipartisan consideration was
against an amendment that was offered by Senator Feingold to strip the
retroactive liability protections found in section 2 of the
Intelligence bill.
We had a discussion and vote on whether the liability protections to
keep the companies that helped us and responded to Government
requests--whether they should be sued for doing so--should be stripped
from the bill. We voted in the Judiciary Committee, 12 to 7, to follow
the recommendation of the Intelligence Committee bill that they passed
13 to 2, and keep the limited liability protections. So it was a 12-to-
7 vote to defeat the Feingold amendment that would have removed those
liability protections.
Directly after that vote, however--it was curious how it all
happened--but directly after that vote, Chairman Leahy moved to report
only Title I of the Judiciary substitute bill out of Committee. When
that passed, that effectively stripped the liability protection
provisions the committee had just voted to keep.
The point is that the Democratic-controlled Judiciary Committee, when
voting directly on removing retroactive liability, voted 12 to 7 to
keep it. But by the time we passed out the Judiciary Committee's
version of the bill, we had taken it out. I'm not sure people fully
understand how that occurred, but it certainly was an odd thing that it
passed out of committee without liability protection, when we
specifically voted to keep that language in the overall bill.
Now, the main area of disagreement is over this important question
that will be coming up, I understand, in the amendment offered by
Senator Dodd, amendment No. 3907--and a Specter-Whitehouse amendment
that will allow substitution--which will, in effect, allow litigation
to continue against telecom companies that responded to the requests of
the Attorney General of the United States, certified by the President.
So our disagreement is whether we should provide these good corporate
citizens who cooperated with a formal written request by the Attorney
General of the United States, certified by the duly-elected President
of the United States, to provide information for a surveillance program
implemented shortly after the attacks on September 11--and at that
point in time, we did not know how many terrorist cells there were in
the country and what plans they may have had.
Now, the nature of the program is highly classified, but after an
uproar of complaints, the procedures were studied carefully by
Congress, and we reacted by giving approval to the program in passing
the Protect America Act overwhelmingly last August. I did not want to
be too lighthearted about it, but I remember all the brouhaha that this
program was somehow wrong and had to be eliminated, and people made all
these unsubstantiated allegations. But after we went in great depth, we
found, as Mr. Goldsmith said, that the lawyers have been on top of this
since day one. It was a carefully constructed program. A court opinion
issues last spring caused us to not be able to continue the way it was
being done, and the Intelligence community asked us for legislation so
it could continue. The Congress passed the Protect America Act this
summer, but it was a short-term bill that lasted only 6 months.
All I would want to say is, nobody apologized to President Bush or
the Attorney General of the United States or the people at the National
Security Agency for all the bad things they said about them. After
having studied what they did, we concluded it is constitutional and
legal and proper and necessary, and we actually passed a law to
authorize it to continue.
But still, there have been over 30 lawsuits now filed against telecom
providers for their alleged participation in the terrorist surveillance
program--30 lawsuits. Analysis of these lawsuits leads only to the
conclusion that the plaintiffs are substituting speculation and a
fevered brow for fact and are ignoring the dangerous consequences these
lawsuits can have on our national security.
I do not know who is actually filing these lawsuits. I will just say
this, parenthetically: Last October, before the last election, Lancet
magazine produced a report--a medical magazine in England--that said
500,000 to 700,000 Iraqis were killed by the American military in Iraq.
And ABC, CBS, and our Democratic colleagues all raised cane that,
unbelievably, we would kill this many people. After the election was
over--and by the way, the guy who wrote the report said he wanted to be
sure it came out before the election--we learned some things about it.
In a fabulous article in the National Journal, an unbiased magazine,
they detailed the fraudulence of that article, and pointed out that
even an antiwar group said, at most, it was 50,000, not 500,000 or
700,000. And where did they find out the money for the Lancet article
came from? George Soros, and the MoveOn.Org crowd. The ``blame America
first'' crowd. Well, I don't know who is actually funding these
lawsuits. We ought to ask some questions about it. Certainly there is
no indication that anybody's liberties have been impacted adversely.
If these suits are allowed to continue, we face a number of problems.
The sources and methods relied on by our intelligence community to
conduct surveillance are highly classified, and if these lawsuits are
allowed to proceed, even allowing for the Government to be substituted
for the telecom companies, we run the risk of exposing the things our
enemies really want: classified national security information. Make no
mistake, if forced to defend themselves against lawsuits brought about
because they cooperated with a government request certified to be
legal, companies will certainly hesitate or refuse outright to
cooperate in the future. Even where substitution by the Government is
an option, we would be putting national security decisions in the hands
of corporate counsels in the future whose duties--and their first
responsibilities--extend to the stockholders of their company, and not
the national security.
If we ask a company to help us, do we want all the lawyers in that
company to say: Wait a minute. The last time we worked with you
government we got sued, and we are going to review all of this because
some court may hold this--or George Soros may fund some lawsuit and tie
us up in court. We don't think we want to help. I think they would
naturally take that tack in the future to resist cooperation.
During floor debate in December, the distinguished chairman of the
Intelligence Committee, our Democratic colleague Senator Rockefeller,
said this. This is what he said about the matter:
Our collective judgment--
and he is talking about the Intel Committee members--
Our collective judgment on the Intelligence Committee is
that the burden of the debate about the President's authority
should not fall on the telecommunications companies--
In other words, the debate about whether the President had authority
to do this shouldn't fall on the telecommunications counsels--
because they responded to the representations by Government
officials at the highest levels that the program had been
authorized by the President and determined to be lawful and
received requests, compulsions to carry it out. Companies
participated at great risk of exposure and financial ruin for
one reason, and one reason only: in order to help identify
terrorists and prevent follow-on terrorist attacks. They
should not be penalized for their willingness to heed the
call during a time of national emergency.
Senator Rockefeller said that.
The ranking member of the Judiciary Committee who favors substitution
has stated this, flat out:
The telephone companies have acted as good citizens.
Certainly they have. In many instances, the Government must seek
assistance from the private sector and private individuals to help
protect our national security and even local security in our
communities. In order for this practice to continue, we must allow them
to rely on assurances that the assistance they provide is not only
legal but essential to protect our national security without fear that
they will have their names dragged through
[[Page S699]]
the mud by protracted litigation initiated by the ``blame America
first'' crowd which subscribes to wild theories about Government
conspiracies to deny people their liberty. They are forgetting the
safety of America, and they are ignoring sound legal precedent.
Some in this body sincerely believe that liability protection is not
needed if these companies did nothing wrong, they say. Well, this is
faulty reasoning since either allowing the lawsuits to proceed or
substituting the Government will still force them to be a party to
lawsuits that run the risk of exposing national security information or
doing irreversible financial and reputational damage to companies
innocent of any wrongdoing. We are putting these companies in harm's
way when they, bound by a sense of patriotism and civic responsibility,
participate in a government program that was certified to be legal by
the Attorney General of the United States and the President of the
United States.
If the Government is substituted--in accordance with one of the
theories that has been offered--in the place of a particular company,
it will most certainly assert the state secrets privilege, leaving, in
effect, the company virtually impotent when it comes to mounting a
defense and showing what their legitimate actions were. Due to the
nature of this state secrets privilege, a company will be forbidden
from making their case and will be left without the ability to even
confirm or deny their participation in the program. We should applaud
the actions of these citizens, not stab them in the back by suing them
for their actions.
To refresh everyone's memory, the Intelligence Committee, after
months of negotiation in highly classified settings, rejected an
amendment to strip liability protection from the bill for these
companies by a vote of 12 to 3. It then passed the bill out in toto by
a bipartisan vote of 13 to 2, protecting these companies from lawsuits.
The Judiciary Committee, on the other hand, had one markup after less
than 2 weeks of reviewing the Intelligence Committee's legislation, and
rejected an amendment specifically that would have denied liability
protection by a vote of 12 to 7. So we voted not to allow them to be
sued either. Furthermore, the Judiciary Committee rejected an amendment
to allow the Government to be substituted for the plaintiffs by a vote
of 13 to 5. We rejected substitution too, although the liability
protections were ultimately removed from the bill the Judiciary
Committee passed.
Even if the Government is substituted, plaintiffs in litigation will
seek discovery, they will file depositions and ask for interrogatories
and motions to produce. They will seek trade secrets and highly
classified technologies. Companies would still face many litigation
burdens. They would be--we would be subjecting them to harm, not only
from consumer backlash, but their international business partners will
be pressured around the world.
Under the limited liability protections incorporated in the Intel
bill, plaintiffs seeking to question the Government will have their day
in court as it only protects good corporate citizens from civil suit.
So the liability protections in this bill do not preclude lawsuits
against the Federal Government from going forward. In fact, there are
at least seven lawsuits currently pending against the Government that
will proceed against the Government or Government officials. This was
accepted by the Intelligence Committee. Some wanted to say you couldn't
sue the Government for these activities also, but the Intel Committee
reached an agreement, an overwhelmingly bipartisan agreement, that
would allow those lawsuits to proceed.
The companies that helped the Government did so to help protect us
from further attack, and valuable information has been gathered with
their help. I have been out to the National Security Agency. I have
talked with the people. I know they scrupulously follow the rules we
give them, and I know they have gained great, valuable information
through this program, and I know they lost very valuable information
when the program had to be stopped. This information has saved
undoubtedly countless American lives by enabling our intelligence
community to thwart attacks.
Some have said this amounts to amnesty, but that couldn't be further
from the truth. Amnesty is an act of forgiveness for criminal offenses,
such as granting citizenship to people who broke the law to come into
our country illegally. The companies were operating under a
certification of legality in a time of national danger doing what they
could as Americans to follow the law and prevent future attacks. At no
point during their participation were their actions illegal. For
Heaven's sake. To grant liability protection is to adhere to that great
Anglo-American legal tradition for hundreds of years that when called
upon by a law officer, with apparent legal authority, wearing a
uniform, out on the street, a citizen is not to be held legally liable
if, in responding to the officer, the officer was wrong. That is all we
are talking about. That is a fundamental, historical, legal principle.
The only question--the legal question has always been simply this:
whether the citizen was responding to a legitimate request by a
government law officer, a police officer to chase a bad guy. Was the
citizen acting reasonably in believing this was a legitimate law
enforcement request and he was helping by being a good citizen. That is
the test. If he participated knowingly with somebody acting illegally,
then that citizen could be liable. Certainly certification by the
Attorney General and the President of the United States in written
documents suffices as a legitimate request.
The bottom line is, we do not need to pass legislation that panders
to the extreme interest groups in America who find fault in everything
our people do, our law enforcement and intelligence officers, and that
fosters a fundamental mistrust of those officials who are working daily
to serve all of us. The burden should not fall on the shoulders of good
corporate citizens who are acting patriotically to help save lives and
protect our country.
I urge my colleagues to vote to support the Intel Committee bill, a
carefully crafted, carefully studied, bipartisan bill. I also urge my
colleagues to support the liability protections in the Intelligence
Committee legislation and a vote against any amendments that attempt to
strip these provisions or in any way alter the carefully structured,
limited provisions of the bill.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Georgia is recognized.
Mr. CHAMBLISS. Mr. President, I rise today to discuss Senate
amendment No. 3907 offered by Senators Dodd and Feingold to the
Intelligence Committee's FISA legislation. I compliment my friend from
Alabama for some very strong, very pointed remarks on this issue as
well as the other issues he addressed.
I am pleased the leaders of the Intelligence Committee were able to
come up with an agreement on how to proceed on this important
legislation. I look forward to the debate on many of these amendments.
A couple of the amendments have been offered relating to title II of
the bill which provides immunity to those telecommunication carriers
that currently face lawsuits for their alleged assistance to the
Government after September 11 and their participation in what is known
as the terrorist surveillance program, or TSP. Senators Dodd and
Feingold have offered an amendment striking this section. Senators
Specter and Whitehouse have offered an amendment which would substitute
the Government as a defendant for the telecommunication providers
currently being sued for their alleged support to the President's TSP
program. I do not support either of these amendments.
As a member of the Select Committee on Intelligence, I had access to
classified documents, intelligence, and legal memoranda, and heard
testimony related to the President's TSP program. After careful review,
as stated in the committee report accompanying this legislation, the
committee determined:
That electronic communication service providers acted on a
good faith belief that the President's program, and their
assistance, was lawful.
The committee reviewed the correspondence sent to the electronic
communications service providers stating that the activities requested
were authorized by the President and determined by the Attorney General
to be
[[Page S700]]
lawful, with the exception of one letter covering a period of less than
60 days in which the counsel to the President certified the program's
lawfulness. The committee concluded that granting liability relief to
the telecommunications providers was not only warranted but required to
maintain the regular assistance our intelligence and law enforcement
professionals seek from them.
Although I believe the President's program was lawful and necessary,
this bill makes no such determination. This is not a review or
commentary on the President's program; rather, it is a statement about
how important this assistance by the electronic communication providers
is to our Government.
I cannot understate the importance of this assistance--not only for
intelligence purposes but for law enforcement purposes also. The
Director of National Intelligence and the Attorney General stated:
Extending liability protection to such companies is
imperative; failure to do so could limit future cooperation
by such companies and put critical intelligence operations at
risk. Moreover, litigation against companies believed to have
assisted the Government risks the disclosure of highly
classified information regarding extremely sensitive
intelligence sources and methods.
There is too much at stake for us to strike title II and substitution
is not an acceptable alternative. This week, we have been alternating
between legislation geared to helping our taxpayers and FISA. Yet
substituting the Government in these lawsuits will force the American
taxpayer to front the heavy legal bills associated with this
legislation.
Substitution would allow these trials to continue and could risk
exposure of classified sources and methods through the discovery
process in the litigation. As a defendant in these frivolous lawsuits,
the Government may be required to expose some of our most sensitive
intelligence sources and methods. Let me emphasize the committee
already found that these communication providers acted in good faith
under assertions from the highest levels of our Government that the
program was lawful. If an individual alleges he or she has a claim due
to this program, that claim can be brought against the Government and
should not be brought against the providers. The Intelligence Committee
bill left open the option for Americans to sue the Government. An
aggrieved individual may sue the Government and attempt to prove
standing and a cause of action. However, substituting the Government
doesn't shield our American business partners from these cases, nor
does it relieve them of the liability to their stockholders they may
unjustly face and which may be borne out in our economy. Substitution
only increases the risk of leaks, and these potential revelations only
make our enemies better informed on the tools we have to conduct
electronic surveillance.
Some of my colleagues have complained about access to the documents
regarding the President's program. It is true many Members of Congress
have not had access, nor have they had an opportunity to review these
documents. There is a good reason for that. These documents are highly
classified and represent details about intelligence sources and
methods. I worry that expanding the number of people who have access to
these documents will increase the likelihood that intelligence will get
leaked into the public. It is more appropriate that the oversight
committee review and report back to the Senate on the various
intelligence activities of the United States. That is why the Senate
has an Intelligence Committee. As a member, I am familiar with handling
classified material and receiving classified briefings. I have made
commitments to safeguard the information I learn behind closed doors
within the Intelligence Committee. Given the wide array of information
I have heard on the Intelligence Committee, I question the benefits a
Member would gain from such a limited, yet specific, review of the
operations of our intelligence community. Rather, I urge my colleagues
to support the determination of the Intelligence Committee, which is
charged with regularly reviewing the intelligence activities of the
United States and oppose the amendments offered by Senator Dodd and
Senator Feingold. Providing our telecommunications carriers with
liability relief is the necessary and responsible action for Congress
to take. The Government often needs assistance from the private sector
in order to protect our national security and, in return, they should
be able to rely on the Government's assurances that the assistance they
provide is lawful and necessary for our national security. As a result
of this assistance, America's telecommunications carriers should not be
subjected to costly legal battles.
With that, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ISAKSON. 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. ISAKSON. Mr. President, I ask unanimous consent that I be allowed
to address the Senate as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
ECONOMIC STIMULUS
Mr. ISAKSON. Mr. President, we are on a very important piece of
legislation, and I thank Senator Bond for all his hard work, and other
members of the Intelligence Committee. I hope we can very soon pass a
good FISA bill on the floor.
I want to deviate from that debate for a second to talk about a
headline many of my colleagues read yesterday, and that we are all
reading repeatedly around the United States, and that is the rapid
increase in the number of houses going into foreclosure. I want to
address that in the context of the economic stimulus package and in the
context of a possible recessionary tendency in the economy, and also
from a historical perspective, in that we have been down this road
before, and suggest there is an action the Senate and the Congress
could take, and the White House could endorse, that could avoid an
awful lot of foreclosures, improve the housing market, reverse the
tendencies toward recession, and be a private sector solution to a
problem that is going to be a tremendous burden if we don't act.
I understand the short-term surgical benefits of the stimulus that
was passed by the House, the other benefits that the Finance Committee
passed. We will work ourselves through that in the next few weeks, and
shortly thereafter the American people will more than likely be
receiving a check of $300 or more with which to infuse some energy into
the economy. But while that is going on, these numbers of a 200-percent
and 300-percent increase of houses going into foreclosures are going to
materialize into houses in foreclosure.
When we get into the second quarter of this year and the middle of
the summer, we are going to find ourselves in a difficult situation
where the following has happened: a tremendous number of houses
foreclosed on, the banks and lenders taking back inventory--and there
is a term called REO, real estate owned--and the regulators coming in,
looking at their books and telling them to get rid of that inventory.
The lenders are going to then write them down, take them to the
marketplace with deep discounts, and sell them.
Now what that is going to do to your homeowners Jim Weichert sells to
in New Jersey, mine in Georgia Harry Norman sells to, and those from
all around the country, is those people who are in houses making
payments and they are in good shape, their value is going to plummet
because of the number of foreclosures that is flooding the market. What
happens is the equity, the difference between their existing mortgage
and the value of the house, decreases because the value of the house
goes down. If they are like 87 percent of the American people who have
an equity line of credit, where they use the equity in their house as a
line of credit, if you will, their available credit is going to be
squeezed.
You know what is going to happen then? They are going to stop
spending. When that happens, we will have the full pressure of the
economy in a downward spiral, and it begins to feed upon itself. That
is precisely what happened in 1975.
In 1973 and early 1974, there was a great housing boom in the United
States, like we have had over most of
[[Page S701]]
the last decade. And like what happened over most of the last decade
with subprime loans and underwriting, back in 1974, money got awfully
loose. Banks made loans with very little underwriting criteria, and we
had a plethora of new homes built all over the United States by
newfound homebuilders who had a hammer, a pickup truck, and easy
credit. We found ourselves at the beginning of 1975 with a 3-year
supply of vacant housing on the market in the United States. A viable
real estate market is a 6-month supply. So you had six times the volume
of houses that would be considered a balanced market, and we went into
a deep recessionary spiral.
A Democratic Congress and a Republican President passed a $6,000 tax
credit available to any family who purchased a standing vacant house in
inventory, and that allowed them to collect that credit over 3 years--
the 3 succeeding tax years after the year of their purchase. The only
thing they had to do, other than qualify for their loan, and qualify
under good qualifying standards, is they had to occupy the home as
their residence. In a 1-year period of time, we absorbed a 2-year
supply of housing and returned the housing market to balance and the
economy stabilized. Although we had the impacts of the oil embargo,
which was causing problems with inflation, the economy returned to a
relatively stable time period.
I, along with a number of Members of the Senate, have introduced
legislation--Senate bill 2566--which takes that model from 1975 and
applies it to our problem in 2008. What it very simply does is, it
offers a tax credit of $15,000 for the purchase of any house that falls
in the following category: a new house permitted before September 1 of
last year that is standing and vacant; a house owned by a lender that
was foreclosed on in the last 12 months from an owner occupant; and any
house pending foreclosure owned by an owner occupant who is willing to
sell. That is where all this inventory that is beginning to flood our
market comes from. The tax credit would be available if the purchase
was made between March 1 of this year and February 28 of next year. So
there is a 1-year window to incentivize those who may be reluctant to
go in the marketplace to do so.
The Joint Tax Committee has scored this, and guess what the score
is--$9.1 billion over 5 years. Put that in the context of the stimulus
package that is before us of $150 billion to $160 billion. It is a
relatively small inducement to provide a private sector solution to
what is about to become a huge burden to the taxpayers of the United
States and this Government.
I come to the floor at this time in hopes that some of our colleagues
who have not found an interest in this legislation yet will take a look
at it. As the author, it is not original thought. I happened to have
been a real estate broker in 1975 trying to hang on and make a living
to educate my three children, and I saw my Government come to the
rescue of the housing economy through energizing people to go in and
purchase houses that were in trouble, rather than bail them out
somewhere down the line, and it worked. The cost to the Government was
infinitesimal, yet the benefit to the public was astronomical.
I hope, as we finish talking about a surgical, strategic, short-term
stimulus to get the consumer buying, which is what we are talking about
in terms of either the Senate Finance Committee bill or the House bill,
we take a look at what is coming. Because, believe me, in July of this
year, if we do nothing, we are going to be dealing with a housing
supply in this country bigger than it has ever been, with vacant houses
by the thousands in neighborhoods, declining values on the value of
housing, and people who are in good shape are not going to be able to
either have their equity line of credit work or be able to move their
house in the marketplace because of the tremendous inventory available.
History is a great teacher both in terms of things you should never
repeat but also in terms of things that work and you should repeat
again. I would submit the tax credit to qualified individuals to
purchase and occupy a troubled house in this economy is an incentive
that worked not only for the betterment of the market but for the
betterment of our economy and in the best interest of the United
States. Senate bill 2566 is an opportunity for us to join together to
do something good and right for the American people.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. REED. Mr. President, I ask unanimous consent to speak as in
morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
ECONOMIC STIMULUS
Mr. REED. Mr. President, across the Nation, millions of Americans are
struggling to make ends meet as our economy has slowed dramatically. In
December, I spoke on this floor about how President Bush has presided
over a period of divided prosperity in the United States, where a
privileged few have done remarkably well but the rest of us have been
trying to get by. For most working people, the trademark of the Bush
administration and their economy is wage stagnation. Indeed, in my home
State, real median wages have not increased since 2000.
Rhode Islanders are coping not only with flat wages but increasing
prices in critical commodities they must consume. Energy, education,
and health care have all gone up. In January, in Rhode Island, gas was
$3.11 cents a gallon; heating oil costs in the Northeast are projected
to be at least $2,000 this year, which is about a $400 increase from
last year. These price increases would be difficult to manage even in
good times, but again paychecks for most working families have not kept
up. In fact, they have been flat.
With prices accelerating, wages flat, and a huge gap in the capacity
of middle-income working Americans to keep up and try to get ahead, the
subprime crisis is real. This housing crisis is having huge and
devastating effects. Two years ago, most of our constituents, the vast
majority of them, were sitting around the table thinking: Well, when my
daughter is ready to go to college in 2008, we will go ahead and borrow
from the house to provide the extra income she will need to go ahead
and make it through college. A lot of those families now are
recognizing they can't do that. They are more concerned about a health
care incident, because, unlike a few months ago, there is no reservoir
in the value of their house to cushion the blow of unexpected expenses.
So this housing crisis, together with this wage stagnation, together
with increased prices for energy and health care and education, and so
many other things, is putting middle-class Americans in a vise and
squeezing them.
We have to do much better. The Joint Economic Committee and others
have estimated some of the costs already in terms of this mortgage-
related foreclosure crisis. In my home State, they think $670 million
will be lost to the family incomes of Rhode Island from 2007 through
the end of 2009.
These economic conditions are being felt across the country. They are
not localized warnings. The weakness in housing has spread to all parts
of our Nation and across our economy. Growth in the fourth quarter of
last year was .6 percent compared to a 4.9-percent increase in the
third quarter.
We are slowing down, moving into a recession. Yesterday the market,
Wall Street, went down over 300 points, largely due to a very weak
report of a survey on the service sector. We have known for many months
now that the manufacturing economy was having difficult times, but the
service sector was holding up a bit.
Yesterday, there was a chilling indication the service sector has
also contracted. The market took the news very badly. The market also
took the news very badly a few days ago, when we showed a loss of
17,000 jobs, the first time we have actually lost jobs in more than 4
years.
Again, the administration's performance in terms of creating jobs has
been less than stellar, barely keeping up with the new entrants into
the labor market on a monthly basis. Now, for the first time in more
than 4 years, we have lost jobs.
Furthermore, the average length of unemployment is increasing from
16.6 weeks in December to 17.5 weeks in January. More people are losing
jobs and it is harder to find a new job.
Yesterday, the Federal Reserve released a survey of senior bank loan
officers who indicated that the credit
[[Page S702]]
crunch is spreading from consumer loans into the commercial and
industrial loan sectors and that foreign banks are tightening their
lending terms, in fact, even more so than some U.S. financial
institutions.
Taken together, it clearly shows Wall Street is going into what one
analyst called a recession panic mode and many economists are seeing
signs that weaknesses in our economy are spreading internationally. In
fact, one investment banker today, in a speech reported on the
Internet, suggested that in the credit markets fear has overtaken
greed, creating a situation of near panic in many respects.
So there is no doubt we have to act quickly on this stimulus package,
not only to inject needed spending power into the economy to try to
revive our consumer sector but also to signal to the American public we
will act decisively to try to moderate, if not head off, the effects of
a pending recession.
We have, I think, a lot to be grateful for in the work of Senator
Baucus and Majority Leader Reid and Senator Grassley in terms of taking
a House proposal and increasing it with important provisions, such as
expanding the eligibility criteria for income tax rebates, including 20
million seniors and 250,000 disabled veterans.
The package we are considering also includes $10 billion for a
temporary extension of unemployment insurance and $1 billion of
emergency funding for the Low-Income Home Energy Assistance Program,
the LIHEAP program. Both of these initiatives are targeted to families,
seniors and low-income households, and they would help jump-start the
economy.
Economists agree these programs among others are a good use of
taxpayer money. Last week before the Budget Committee, Alan Blinder
from Princeton University and Mark Zandi of Moody's Economy.com both
recommended that unemployment insurance and LIHEAP be included in the
stimulus package. They also included other elements, but at least these
elements are part of the list they feel will provide a bang for the
bucks we are going to invest in the economy.
They meet the three T test--timely, targeted, and temporary.
Now, Friday's disappointing jobs report showed that the ranks of the
unemployed are unfortunately growing. Nonfarm payrolls actually
decreased, as I said, by 17,000 workers last month. In fact, even
President Bush acknowledged ``troubling signs in the economy.''
So given these facts, I was surprised to hear Treasury Secretary
Paulson say yesterday, in testimony before the Finance Committee, that
he does not support including unemployment benefits in the stimulus
package because national unemployment is only 4.9 percent, which is not
historically high.
What we want to do is take preemptive action to prevent the situation
from further deterioration. We want to move now so we do not see
unemployment rates climb, so we do not see the duration of unemployment
continue to grow, so that we give Americans a real chance to get back
to work; and if they are not back to work, then at least we provide
something to sustain them in these difficult moments.
In Rhode Island, my home State, we have reached a very high
unemployment rate, 5.5 percent. Many other States are creeping up there
too. We should, I think, move quickly, move decisively and support the
Senate Finance package.
We are also beginning to see that unemployment insurance provides a
very good return on the investment. Mark Zandi, the economist I
mentioned before, indicated that for every dollar the Government spends
on unemployment insurance, it adds $1.64 to the national GDP. In other
words, it leverages the investments we are making.
So contrary to what some have talked about as excessive spending,
this is exactly the targeted, temporary, timely spending that will
accelerate, not decelerate, the economy.
The stimulative effects of unemployment insurance will get more money
into the hands of people who will spend it right away in their local
communities, which is generally the whole purpose of our stimulus
approach.
Moreover, providing these benefits to these individuals will give
them not just some dollars but a sense, I hope, of hope, that their
Government is responding to their concerns and that we will respond in
the future, if necessary.
Making the long-term unemployed eligible for a temporary extension of
an additional 13 weeks at this time also makes good sense and is the
right thing to do. Two weeks ago, I wrote a letter to the majority and
Republican leaders asking that they include unemployment insurance in
the stimulus package, and 26 other Senators joined me.
Senators Durbin and Kennedy have long led the fight on this issue. I
commend them for their efforts. I hope unemployment insurance is part
of the final package we are able to vote out of this body.
Now, there is another aspect of the package we will consider later
today, I hope; that is the LIHEAP support. We have seen a huge increase
in energy costs. On average, Americans are spending about 11 percent
more to heat their homes this winter. For Rhode Islanders who rely on
heating oil, that is about 39 percent higher than last year in terms of
their heating oil expenses.
We know that the timely, targeted, and temporary aspects of stimulus
have to be met. LIHEAP will do this. It is timely because it will be
delivered very quickly. We have a delivery mechanism in place. It is
also something that will fund families, low-income families, who
desperately need this money.
I do not have to belabor the point that today, around the kitchen
table, people are figuring things out. They are thinking, first of all,
they probably need to take off sending their first born or their second
or third child to the expensive school; that may be off the table for a
few years. But they are also talking very basically about which bills
to pay this month? Do we pay our mortgage? Do we pay the energy bill?
Do we pay the credit cards which we are using to buy food at the
supermarket these days?
I mean, these are the debates American families are having. They are
not talking in terms that we are here, such as what is the best
macroeconomic policy or how we can delay these expenditures, they are
talking in terms of a real crisis in the family. We have to respond.
One way we can respond quite clearly is with this LIHEAP money because
that will go to one of their major concerns: How do we keep the heat on
in the Northeast for the next several weeks and month; and in the
Southwest, in anticipation of the grueling temperatures down there in
the summertime, too. This additional money will provide an advance
payment on cooling problems in the Southeast and the South, parts of
the country that will soon encounter warm temperatures, not cold
temperatures, which cause their energy costs to rise.
Again, these are the households who need LIHEAP. And so we know we
have a program that works in LIHEAP. If we can deliver additional
resources, it will get to the families who need it, particularly
seniors, it will get out immediately. It will add to the stimulus
effect because as the economists--both Mr. Blinder and Mr. Zandi--
pointed out, it will leverage our investment in the economy.
So with the escalating costs for energy I would urge my colleagues
that we go ahead and accept this amendment, particularly the funds for
LIHEAP. I urge us all to support the Senate Finance Committee package,
a package that provides for greater coverage to seniors and disabled
American veterans and also provides unemployment insurance for those
who desperately need it and heating assistance for, again, the families
who desperately need it.
I hope that today, not only good sense, good economic sense, but a
sense of our obligations to the most vulnerable in this country will
persuade us to support this package strongly.
The Senator from Texas.
Mrs. HUTCHISON. Mr. President, I ask unanimous consent to speak for
up to 10 minutes and then for Senator Crapo to have up to 10 amendments
to speak on the FISA bill.
The PRESIDING OFFICER. Is there objection?
Mr. BOND. Mr. President, reserving the right to object, I think our
colleague is going to speak in morning business. But I will be happy to
yield to the Senator from Texas.
The PRESIDING OFFICER. Is there objection?
[[Page S703]]
Mrs. HUTCHISON. Was there an amendment?
Mr. BOND. If we can yield to the Senator from Texas for 10 minutes on
the bill, the Senator from Idaho for morning business, and then go to a
Member on the majority side of the aisle.
I believe there is a consensus developing for the unanimous consent
request I have proposed.
The PRESIDING OFFICER. Would the Senator repeat his unanimous consent
request.
Mr. BOND. Ten minutes to the Senator from Texas on the FISA bill, 10
minutes in morning business for the Senator from Idaho, and then a
member of the majority side will be recognized for whatever he or she
wishes to do.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Texas is recognized.
Mrs. HUTCHISON. Mr. President, I do rise to speak on the FISA bill,
which I certainly support, and also to oppose some of the amendments
that will be coming forward.
I hope very much that we will be able to start voting on amendments,
because we now have an agreement for voting on amendments, and I hope
we can clear the FISA bill in due course and in short order. It is
important because there is a deadline.
We are going to see the capability for our law enforcement officials
and our intelligence officials, to monitor calls between known
terrorists and suspected terrorists, whether it is into our country, or
out of our country from foreign countries, we need to have this
capability continue.
We have it right now. The Senate passed a good bill about 6 months
ago. It has now been extended. But we do have a deadline, and the
deadline is on us in the middle of this month. So we do need to pass
this bill. We need to make sure the technology of the day is covered by
the foreign intelligence surveillance act and subject to the security
needs of our country.
There are amendments that would take away the immunity for
telecommunications companies that allegedly cooperated with
intelligence officials.
One amendment, No. 3907, would strip the immunity from the bill
completely. The Intelligence Committee is the key committee that has
looked at all of the information and assessed the need for the ability
to survey known terrorists and suspected terrorist helpers in our
country and in foreign countries. It is important that we allow our
intelligence agents to go to telecommunications companies and get the
help they need to do this kind of surveillance. Amendment No. 3907
would take away immunization for companies that may have cooperated
with government requests.
The telecommunications companies allegedly assisted the intelligence
community because of the need to assure that plots against our country
and our citizens were uncovered before they are implemented. Now we
have the potential for catastrophic liability from a number of
lawsuits, and some of my colleagues want the country to turn away from
providing protection for these companies. We will not allow these
companies the freedom to provide the evidence in court because the
intelligence community says the evidence is too sensitive to be allowed
in court. We put the telecommunications companies in a situation in
which they cooperate. They are sued. But they don't have the ability to
defend themselves in court because they cannot produce the evidence. It
is untenable, and I hope we will reject such an amendment.
There is another amendment that would allow the Government to be
substituted for the telecommunications companies as the defendant when
they are sued. The problem with this amendment is that the companies
would still have to spend thousands of hours and millions of dollars on
these lawsuits. They would have to subject their employees to
depositions. They would need to participate in evidence gathering and
the discovery process, which will drain their resources in an
unnecessary lawsuit in which they would be peripheral.
There is yet another amendment that would grant the immunity after
review by the FISA Court. While certainly well intentioned, there are
some problems with giving this to a court that doesn't have the
capability to process this kind of request. They don't have statutory
procedures. They don't have the administrative capacity to receive
witnesses, to hear evidence, or to carry out the major provisions of
the amendment.
Furthermore, it is unclear that there is appellate authority from the
immunity related rulings of the FISA Court this amendment creates. The
FISA Court has operated in secret and has been more of an
administrative court processing warrants. So this would put the court
in a whole new administrative mode for which there are no precedent or
appropriate regulations. There does not appear to be an appellate
process from the FISA Court once it decides whether or not to grant a
company immunity.
I respect the work of my colleagues. They are trying to find good-
faith compromises. However, I put my faith in the Intelligence
Committee. This is a committee that passed this bill, with immunity
provisions in it, out of committee by a vote of 13 to 2. It was
bipartisan. This is the committee that had the hearings, heard all of
the evidence, and knows more about the processes than people who are
not on the committee. They have spent a considerable amount of time
reviewing the materials in these cases, including the Government's
legal justifications for the program. We need to respect the judgment
and expertise of our committees, particularly the intelligence
committee. This is a committee that has done a very good job on a
bipartisan basis to assure that we continue to protect our intelligence
capabilities and to shield the companies necessary to gathering
intelligence information from unfounded lawsuits.
I hope my colleagues will vote for the bill the Intelligence
Committee produced. Protecting the American people is our ultimate
responsibility. This bill is absolutely essential for that
responsibility to be implemented. We must protect the American people.
We must protect the companies that have helped our law enforcement and
intelligence-gathering agencies. We must make sure we proceed with a
vision of foreign surveillance that would protect the American people
from future attack.
It is not an accident that we have not been attacked since 9/11. All
of us know that our country was not prepared for this kind of warfare.
But our country's eyes have been opened. We have been a sleeping giant
in many ways, as was said about us before World War II. But we have now
been awakened, and we are going to take the measures necessary within
the framework of our Constitution, which this bill provides, to assure
that we protect the American people from future attack.
I yield the floor.
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senator from Idaho is recognized for 10 minutes as in morning business.
Secure Rural Schools and Community Self-Determination Act
Mr. CRAPO. I thank the Senator from Texas and my colleagues on both
sides for allowing me this few minutes to have a break in the debate on
the FISA bill to discuss a very important issue to the people of Idaho
and, frankly, to the people in rural communities throughout the
country. I rise to talk about the need to reauthorize the Secure Rural
Schools and Communities Self-Determination Act of 2000 and to fully
fund the payments in lieu of taxes, or the PILT payments, which we call
them in Congress. I encourage my colleagues to make this overdue
extension and funding a top priority for Congress in the coming days.
This year marks the 100-year anniversary of the passage of the act
requiring the U.S. Forest Service to return 25 percent of its gross
receipts to the States to assist counties that are home to our national
forests and other Federal lands with school and road services. This
program was put into place to compensate local governments for the tax-
exempt status of national forests which we all enjoy. Otherwise, many
rural communities that neighbor these beautiful national treasures are
unable to fully meet the school and road needs of their communities.
One hundred years ago, the impact of large Federal forest reserves on
neighboring local economies was discussed and debated on the floor of
the Senate, as former Idaho Senators Weldon B.
[[Page S704]]
Hayburn and William Edgar Borah joined their Senate colleagues in
debating this issue which remains an issue today. However, the
unfortunate reality of today is that in recent years, timber receipts
have eroded to the point that the Federal obligation to our local
communities is simply not being met. The receipts are not adequate for
the needs of the communities and have been dropping off dramatically.
Congress has acted in recognition of this to ensure that communities
have the necessary assistance.
In the year 2000, I joined with my colleagues, Senators Larry Craig,
Ron Wyden, Gordon Smith of Oregon, and many others to support and
secure enactment of the Secure Rural Schools and Communities Self-
Determination Act of 2000. This law provided the necessary assistance
known as county payments to communities where regular Forest Service
and Bureau of Land Management receipts-sharing payments had declined so
significantly. The assistance has prevented the loss of essential
school and road infrastructure needs in our local rural communities.
The law also enabled very significant forest improvement projects.
The best solutions to natural resource challenges are achieved
through local collaboration, and the more than 70 Resource Advisory
Committees--or RACs, as we call them--provided for in this law have
created valuable partnerships in carrying out projects to address a
wide variety of improvements on public lands. These projects include
habitat and watershed restoration, reforestation, fuels reduction, road
maintenance, campground and trail enhancements, and noxious weed
eradication. At a time when increased public demands are being placed
on our Nation's natural resources, the RACs have provided the necessary
cooperation to help resolve natural resource challenges throughout
these local rural communities.
Additionally, payments in lieu of taxes, known as PILT payments, have
augmented county payments to provide local governments with the means
of offsetting a part of the tax revenues they lose because of the tax-
exempt status of these Federal lands in their jurisdictions. PILT
payments have supported community services such as firefighting and
police protection in rural communities. Through PILT, the Federal
Government partners with counties to provide public lands the
stewardship and community services they need. Unfortunately, PILT
funding is also not meeting this obligation, and we need to work
together in Congress to achieve full and adequate PILT funding.
I am proud of the largely bipartisan effort in the 110th Congress to
extend the Secure Rural Schools and Community Self-Determination Act
and to fully fund PILT. Progress has been made but more needs to be
done to achieve the Federal Government's commitment to these
communities.
In March of 2007, the Senate overwhelmingly passed an amendment which
I cosponsored to the fiscal year 2007 emergency supplemental
appropriations act to reauthorize county payments for 5 years with
offsets. However, this language was replaced with a 1-year extension,
with the final payments made at the end of December 2007.
In December last year, Senators McCaskill, Craig, Smith, Dole,
Murkowski, Stevens, and Bennett joined me in urging the Senate
leadership to attach a reauthorization of county payments and PILT
funding to any legislative vehicles expected to be enacted before
Congress concluded its work last year. Unfortunately, the
reauthorization was attached only to the energy package which also
would have increased taxes on domestic oil and gas producers to pay for
incentives for renewable power, energy efficiency, electric vehicles,
and other technologies.
I support incentives for alternative energy resources and the
extension of county payments, but I am opposed to paying for those
incentives by increasing taxes on our domestic oil and gas production.
We are facing real and increasing constraints on our energy supply,
resulting in higher energy costs daily. We simply cannot meet those
needs by decreasing conventional energy production in the United
States, which would further our dependency on foreign energy supplies
and dramatically increase the cost for gasoline and electricity. This
would negatively impact communities across the Nation, not just the
rural communities we are seeking to help.
We need to again turn our attention to focusing on the
reauthorization of the Secure Rural Schools legislation and increasing
and achieving full and adequate PILT funding. It is unfortunate that
the county payments extension was dropped from the enacted Energy bill
and was not included in other legislative vehicles before the end of
last year. However, today is another day. As we embark on the second
session of this Congress, we have every opportunity to work together to
extend and fund county payments and fully pay for PILT payments for
students in rural areas. We must do this to prevent the closure of
numerous isolated schools and to enable rural county road districts to
address severe maintenance backlogs.
Time is of the essence for many rural communities across the Nation,
and this important legislation impacts millions of students and their
families in more than 4,000 school districts and more than 7,000
counties. I am hearing from Idaho communities that, absent an
extension, personnel layoffs as a result of program closures are
expected soon. Communities in more than 40 States are facing similar
pressures.
Just as the economic impact of Federal land ownership on neighboring
rural communities has not been worn away by time, neither has this
Nation's responsibility to the States worn away. It is my hope that
others will join me in working to meet this Federal responsibility by
reauthorizing the Secure Rural Schools Act and providing the full
funding for PILT. This must be achieved in a timely manner that
prevents the cutoff of needed services in rural communities nationwide
and provides some long-term certainty to those rural communities.
Mr. President, I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I ask that I be given unanimous
consent to speak on the underlying bill.
The ACTING PRESIDENT pro tempore. Without objection, the Senator is
recognized.
Mr. ROCKEFELLER. Mr. President, I say to the Presiding Officer that
far and away the most contentious issue in this FISA debate is whether
private companies that assisted the Government in implementing the
President's warrantless surveillance program should be provided
liability protection.
Three amendments will be offered that relate directly to this issue.
First, Senators Dodd and Feingold have an amendment that would strike
all of title II of the underlying bill--that is, S. 2248--on liability
protection as reported by the Intelligence Committee.
Second, Senator Specter will offer an amendment--I think at 3:30--
that provides for a different remedy; namely, the substitution of the
U.S. Government itself for the carriers in the lawsuits that have been
filed against the carriers.
Third, Senator Feinstein has prepared an amendment that would keep
the basic structure of title II--to wit, liability immunity--but would
have the courts, rather than the Congress, determine whether carriers
relied in good faith on the representation made to them by the
executive branch of our National Government.
I will address the particulars of each amendment as it is offered,
but first I would like to describe the background behind the
Intelligence Committee's approach to this whole issue of immunity.
Critics have suggested that providing liability protection for
telecommunications companies is akin to congressional endorsement of
the President's warrantless surveillance program. I understand the
passion stirred by this issue. Rather than consulting with Congress or
the courts, the President created a secret surveillance program--no
question about that--based on very dubious legal reasoning. That was
unnecessary, that was unwise, that would, therefore, cause passions and
suspicions.
But anger over the President's program should not prevent us as a
deliberative body from addressing the real problems the President has
created.
[[Page S705]]
Because of the lawsuits over the program and the damage to the
telecommunications companies' reputations, companies that were once
willing to help the Government, based on assurances of legality from
the highest levels of Government, may now be questioning that
assistance.
Let's reflect on that for a moment. These are corporations. They have
no names at the present time. They have to make money. The Government
comes to them, as they have in the past on much smaller matters, and
with the authority of the President saying, this is in the national
interest; with the legal advice of the Attorney General saying, this is
legal; and then the Director of the National Security Agency sending
out letters that say, we require you, we compel you, we request to
you--or other words--that you cooperate with us.
People say: Well, they cooperated. Of course they cooperated right
after 9/11. I think anybody who is in the intelligence business
understands what I am saying. There is no difference between the day
after 9/11 and this day in terms of the threat to our country or those
who are planning, plotting to do us harm.
The fact that no attacks have happened does not excuse the sense of
relaxation on the whole subject--perhaps the congressional sense of
relaxation on the whole subject. We need to continue this intelligence
collection.
What is it, I am wondering, that the telecommunications companies get
from this? What prestige? What large amount of money? What praise? What
do they get from this? Do they get good public relations? No. They get
40 lawsuits, most of which are not based on anything to do with the TSP
program. In other words, they are picked out of newspapers. People are
dissatisfied, and class action suits arise.
So maybe they have been sued $10 billion. Maybe they have been sued
$40 billion. We will not speculate on that at the present time. But in
that they are corporations and in that they have no reward at all for
doing this service for their country--which we call patriotism, and
then cast that aside because that must mask some evil intent--they go
ahead and they do it. Then, since they are corporations, their
shareholders get extremely unhappy about it, which could be happening
at the present time, and then they decide that maybe they will be less
willing to do this. Several have done that. Several at the beginning
did that.
Now, corporations are in business also to make a profit. The
corporations that are involved in this are doing nothing but losing
prestige, losing reputation, have angry shareholders. And I ask myself,
what is it they get out of doing this, because people, particularly on
my side of the aisle, are sometimes inclined to be suspicious of
corporations, that they have some kind of a purpose behind all of this.
Nothing could be further from the truth. They are losing. They are
being criticized. They are being sued. It is costly. It takes away from
their energy to carry out their other missions. It is not a situation
in which a whole bunch of people are sitting around in these corporate
headquarters discussing this, because only a very few people are
allowed to know, and they have criminal sanctions against them if they
tell anybody, should they have received any of these instructions from
the Government.
So we are not talking about people here trying to undo the safety of
the United States or to gain some kind of advantage for themselves. If
this intelligence collection stops, I say to the Presiding Officer, we
will be in a very sorry situation. I do not know how to say that more
sincerely, more deeply felt, more based upon exhaustive study,
including numerous meetings in committee with these folks and other
meetings outside.
So they have been told it is legal, and by the National Security
Agency Director they have been required, compelled, and in other words,
some of which are quite strong, to do it. So they do start to do it,
and they are paying one heck of a price for it.
What price are we paying? We are paying no price because they are
still doing it. What price might we pay should they stop--because they
are corporations, and they are responsible to their shareholders--if
they should stop this type of activity? The price we would pay would be
overwhelming. Without the cooperation and assistance of private
companies--not compliance forced by a court but true cooperation--this
country's law enforcement and intelligence agencies cannot obtain the
information they need to protect this country. It is a fairly heavy
statement to make. I chair the committee. I am not naive on these
matters. I make that statement again. Without the cooperation and
assistance of private companies, this country's law enforcement and
intelligence agencies cannot obtain the information they need to
protect this country.
Making the question of liability protection a proxy for disagreement
with the President's program is, therefore, shortsighted, in this
Senator's view, ignoring the reality that the Nation and future
Presidents will depend on the assistance of these same companies for
years to come.
In analyzing the question of liability protection, the Intelligence
Committee sought to weigh these very real concerns about future
intelligence collection against the possible outcome of lawsuits. We
discussed it at length. Understanding this issue requires some
background on the lawsuits that have been filed.
Currently, providers are subject to approximately, as I indicated, 40
civil lawsuits, some of which are class actions, which seek billions of
dollars of damages--and I have given you a range--for privacy
violations based on the companies' alleged provision of assistance and
information to the intelligence community. The suits are based--many of
them--on media reports about all sorts of intelligence activities. Many
of them are not limited to the warrantless surveillance program
disclosed by the President. That is ironic, but it is a heavy burden
for the companies. If suits are brought that have nothing to do with
the warrantless surveillance program disclosed by the President, they
are out of order. But, as I will proceed to explain, the companies can
never explain to a court that they are out of order. Although these
suits involve different types of legal claims that are in varying
stages of litigation, they share a common reality: that the Government
has refused to publicly reveal the classified documents and information
that would allow them to proceed.
The current fight in the courts is, therefore, not about whether
damages should be awarded, whether the underlying program is legal or
even whether any company participated in the President's program in
good faith. Instead, the parties are fighting about access to
classified information about the President's program. I have not heard
that much discussed in this Chamber. This litigation could continue for
years without a court ever addressing the underlying issues about the
legality of the program. We seek wrongdoing whether, as some say, it is
in the corporate boardroom or, as others would say--as I would say--in
the halls of Government.
I stress the point: No court is likely to resolve the question of
whether the President or any private company violated the law in the
near future.
Some of my colleagues have argued that without these lawsuits, the
public will never learn the details about the President's program. But
litigation is highly unlikely to tell the story of what happened with
the President's program. Too many of these facts dealing with
intelligence sources and methods remain appropriately classified, and
the executive branch is highly unlikely to agree to declassify
additional information if it could affect the ongoing litigation.
Thus, the litigation is unlikely to result in a ruling in the near
future about the legality of the conduct of the President nor any
private company, nor, for that matter, the public disclosure of any
additional information about the President's program. Instead, it is
possible the cases, as I indicated, will continue for years as the
courts debate whether information must be disclosed.
In the meantime, however, as I mentioned, the litigation poses a
serious risk to U.S. intelligence collection. That is my job and that
is the job of the committee I chair and the job of the chairman of the
Intelligence Committee in the House. We are not about being courts, we
are about trying to balance civil liberties as best as we can
[[Page S706]]
with the ability of this country to collect an entirely different kind
of intelligence that we were so busy doing recently in the Cold War
era. Without the assistance of telecommunications providers, our
intelligence community simply cannot obtain the intelligence it needs.
Is that a serious statement? Do Members of the Senate concern
themselves with that? Is this just me, this Senator, standing up making
a statement trying to win some votes? Or is there the possibility it
could be true? If there is a possibility--and I think it is a
probability it is true--then I don't understand why people can be
confused on this subject because I think the choices are clear.
Allowing companies to be dragged through the court system because of
their alleged cooperation with the Government encourages them not to
cooperate with any request, even those that are clearly legal without
court compulsion. It also sends a message to all private companies:
cooperate with the U.S. Government at your peril. Is that a bit of an
overstatement? In the corporate boardrooms around this country, my
guess is that is the discussion. Very few corporations have the
capacity to help the Government in the way telecommunications companies
do.
Discouraging private sector cooperation with the Federal Government
is not, in the feeling of this Senator, the right long-term result for
either the intelligence community or the American people.
Many have argued that providers who act unlawfully should be held
accountable. I totally agree that all Americans, including corporate
citizens, must follow the law and be held accountable for their
failures. Companies that deliberately seek to evade privacy laws or
legal restrictions on electronic surveillance can and should be subject
to civil suit, but that is not the issue here, I would say to the
Presiding Officer. That is not the issue.
The Intelligence Committee spent a lot of time, as I have indicated,
this year looking into what happened over the past 6 years. Before
deciding to provide liability protection for the companies, the
Intelligence Committee heard testimony from relevant witnesses and
carefully reviewed the written communications provided to participants
in the program.
Participants were sent letters, all of which stated the relevant
activities had been authorized by the President and all but one--and
that was done by the legal counsel to the President--of which stated
the activities had been determined to be lawful by the Attorney General
of the United States. Shouldn't private companies be entitled to rely
on the written representations of the highest levels of Government
officials that their cooperation is necessary and has been determined
to be lawful? Can you argue that if they get those notifications from
the NSA Director and it has been approved by the Attorney General and
has been declared essential for the national interest by the President,
should they instead say: Oh, well, we don't care about that. That is
not our business. We are not going to do that.
And isn't it reasonable to assume that a U.S. citizen who has been
told the Attorney General has found their cooperation to be lawful is
acting in good faith? If they have been through this process and they
proceed to act on it, why is it so easy to stipulate they are not
acting in good faith? How does one show that? How does one imagine
that?
I have been through this, this whole question of what the companies
get from it, and it is the thing that bothers me so much. They get
nothing but grief. They get suits. They get costs. They get a
diminished reputation. They begin to pull away. Their shareholders lose
confidence. Do they get money? No. They get nothing. So why would they
want to continue to cooperate would be my question.
The answer to these questions are at the heart of the Intelligence
Committee's determination that it is essential that Congress protect
private companies that assisted the Government after the terrorist acts
of 9/11.
Mr. President, I will complete this part of my presentation and yield
the floor. I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the
order for the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that at 3:05
p.m. today the Senate return to the Cardin amendment No. 3930, with the
time from 3:05 until 3:15 equally divided and controlled in the usual
form; that the Senate then proceed to vote in relation to the
amendment, with other provisions of the previous order remaining in
effect.
The ACTING PRESIDENT pro tempore. Is there objection?
Mr. BOND. No.
Mrs. FEINSTEIN. Mr. President, reserving the right to object, I wish
to secure the ability, following this vote, to call up one of my
amendments, if I might. My understanding is that maybe I can do it now.
Mr. ROCKEFELLER. This is a total of 10 minutes or less amendment, but
we will not start until 3:05. The Senator can call it up.
Mrs. FEINSTEIN. All right.
The ACTING PRESIDENT pro tempore. Is there objection?
Without objection, it is so ordered.
The Senator from California is recognized.
Amendment No. 3910 to Amendment No. 3911
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that the
present amendment be set aside in order for me to call up amendment No.
3910 on FISA exclusivity.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from California [Mrs. Feinstein], for herself,
Mr. Rockefeller, Mr. Leahy, Mr. Nelson of Florida, Mr.
Whitehouse, Mr. Wyden, Mr. Hagel, Mr. Menendez, Ms. Snowe,
and Mr. Specter, proposes an amendment numbered 3910.
Mrs. FEINSTEIN. Mr. President, I ask unanimous consent that reading
of the amendment be dispensed with.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The amendment is as follows:
(Purpose: To provide a statement of the exclusive means by which
electronic surveillance and interception of certain communications may
be conducted)
Strike section 102, and insert the following:
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF CERTAIN
COMMUNICATIONS MAY BE CONDUCTED.
(a) Statement of Exclusive Means.--Title I of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.) is amended by adding at the end the following new
section:
``STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC SURVEILLANCE AND
INTERCEPTION OF CERTAIN COMMUNICATIONS MAY BE CONDUCTED
``Sec. 112. (a) Except as provided in subsection (b), the
procedures of chapters 119, 121 and 206 of title 18, United
States Code, and this Act shall be the exclusive means by
which electronic surveillance (as defined in section 101(f),
regardless of the limitation of section 701) and the
interception of domestic wire, oral, or electronic
communications may be conducted.
``(b) Only an express statutory authorization for
electronic surveillance or the interception of domestic wire,
oral, or electronic communications, other than as an
amendment to this Act or chapters 119, 121, or 206 of title
18, United States Code, shall constitute an additional
exclusive means for the purpose of subsection (a).''.
(b) Offense.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
(1) in subsection (a), by striking ``authorized by
statute'' each place it appears in such section and inserting
``authorized by this Act, chapter 119, 121, or 206 of title
18, United States Code, or any express statutory
authorization that is an additional exclusive means for
conducting electronic surveillance under section 112.''; and
(2) by adding at the end the following:
``(e) Definition.--For the purpose of this section, the
term `electronic surveillance' means electronic surveillance
as defined in section 101(f) of this Act regardless of the
limitation of section 701 of this Act.''.
(c) Conforming Amendments.--
(1) Title 18, united states code.--Section 2511(2) of title
18, United States Code, is amended--
(A) in paragraph (a), by adding at the end the following:
``(iii) If a certification under subparagraph (ii)(B) for
assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the
[[Page S707]]
specific statutory provision, and shall certify that the
statutory requirements have been met.''; and
(B) in paragraph (f), by striking ``, as defined in section
101 of such Act,'' and inserting ``(as defined in section
101(f) of such Act regardless of the limitation of section
701 of such Act)''.
(2) Table of contents.--The table of contents in the first
section of the Foreign Intelligence Surveillance Act of 1978
(50 U.S.C. 1801 et seq.) is amended by adding after the item
relating to section 111, the following:
``Sec. 112. Statement of exclusive means by which electronic
surveillance and interception of certain communications
may be conducted.''.
Mrs. FEINSTEIN. Mr. President, I voted for this FISA legislation in
the Intelligence Committee. I indicated then that I had some concerns
about it. I filed additional views with respect to the need for
stronger exclusivity provisions. Then the Judiciary Committee reported
out a bill that included its view with respect to strengthening the
fact that the Foreign Intelligence Surveillance Act would be the
exclusive manner in which electronic surveillance against Americans
could be conducted.
The Judiciary bill subsequently failed on the floor of the Senate.
The amendment I have at the desk is essentially the exclusivity
language from that Judiciary Committee amendment. It has several
cosponsors: the chairman of the Intelligence Committee, Mr.
Rockefeller; chairman of the Judiciary Committee, Mr. Leahy; Senator
Nelson of Florida; Senator Whitehouse; Senator Wyden; Senator Hagel;
Senator Menendez; Senator Snowe; and Senator Specter.
As filed this is an amendment that only covers exclusivity. In the
interim period, the vice chairman of the Intelligence Committee
approached me about the possibility of a modification of the amendment
that would allow the administration to be able to operate outside of
FISA for a time.
We have not been able to come to terms on that amendment. I could not
agree to the length of time that Mr. Bond proposed, which was 45 days
plus an additional 45 days, for a total of 3 months, enabling the
administration to operate without a FISA warrant.
The fact is, since January of 2007, the entire Terrorist Surveillance
Program has operated within the confines of the Foreign Intelligence
Surveillance Act and under orders from the Foreign Intelligence
Surveillance Court. That is, I believe, as it should be.
I have a modification to my exclusivity amendment that would limit
the period of time outside of FISA following a declaration of war, an
authorization for the use of military force, or a major attack against
the nation to 30 days. The question is whether I would have unanimous
consent from the vice chairman to be able to call up that modification
of my amendment. But that has not been given to me yet.
So at this time, I am going to rest my case on the exclusivity
amendment, and I will have an opportunity, I hope, to argue it later.
I would now like to call up my amendment, No. 3919.
The PRESIDING OFFICER (Mr. Sanders). Amendment No. 3910 is pending.
Amendment No. 3919 to Amendment No. 3911
Mrs. FEINSTEIN. Mr. President, I wish to make another amendment
pending, so I ask unanimous consent to set aside the pending amendment
and call up amendment No. 3919. This is the FISA Court review of
immunity amendment. This is my second amendment which is part of the
unanimous consent agreement. I do this just to get it before the body.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The bill clerk read as follows:
The Senator from California [Mrs. Feinstein], for herself,
Mr. Nelson of Florida, and Mr. Cardin, proposes an amendment
numbered 3919 to amendment No. 3911.
The amendment is as follows:
(Purpose: To provide for the review of certifications by the Foreign
Intelligence Surveillance Court)
On page 72, strike line 13 and all that follows through
page 73, line 25, and insert the following:
(6) Foreign intelligence surveillance court.--The term
``Foreign Intelligence Surveillance Court'' means the court
established under section 103(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1803(a)).
(7) Foreign intelligence surveillance court of review.--The
term ``Foreign Intelligence Surveillance Court of Review''
means the court of review established under section 103(b) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803(b)).
SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.
(a) Limitations.--
(1) In general.--Notwithstanding any other provision of
law, and subject to paragraph (3), 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) Submission of certification.--If the Attorney General
submits a certification under paragraph (1), the court to
which that certification is submitted shall--
(A) immediately transfer the matter to the Foreign
Intelligence Surveillance Court for a determination regarding
the questions described in paragraph (3)(A); and
(B) stay further proceedings in the relevant litigation,
pending the determination of the Foreign Intelligence
Surveillance Court.
(3) Determination.--
(A) In general.--The dismissal of a covered civil action
under paragraph (1) shall proceed only if, after review, the
Foreign Intelligence Surveillance Court determines that--
(i) the written request or directive from the Attorney
General or the head of an element of the intelligence
community (or the deputy of such person) to the electronic
communication service provider under paragraph (1)(A)(ii)
complied with section 2511(2)(a)(ii) of title 18, United
States Code, and the assistance alleged to have been provided
was provided in accordance with the terms of that written
request or directive;
(ii) subject to subparagraph (C), the assistance alleged to
have been provided was undertaken based on the good faith
reliance of the electronic communication service provider on
the written request or directive under paragraph (1)(A)(ii),
such that the electronic communication service provider had
an objectively reasonable belief under the circumstances that
compliance with the written request or directive was lawful;
or
(iii) the electronic communication service provider did not
provide the alleged assistance.
(B) Procedures.--
(i) In general.--In reviewing certifications and making
determinations under subparagraph (A), the Foreign
Intelligence Surveillance Court shall--
(I) review and make any such determination en banc; and
(II) permit any plaintiff and any defendant in the
applicable covered civil action to appear before the Foreign
Intelligence Surveillance Court pursuant to section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803).
(ii) Appeal to foreign intelligence surveillance court of
review.--A party to a proceeding described in clause (i) may
appeal a determination under subparagraph (A) to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such determination.
(iii) Certiorari to the supreme court.--A party to an
appeal under clause (ii) may file a petition for a writ of
certiorari for review of a decision of the Foreign
Intelligence Surveillance Court of Review issued under that
clause. The record for such review shall be transmitted under
seal to the Supreme Court of the United States, which shall
have jurisdiction to review such decision.
(iv) State secrets.--The state secrets privilege shall not
apply in any proceeding under this paragraph.
(C) Scope of good faith limitation.--The limitation on
covered civil actions based on good faith reliance under
subparagraph (A)(ii) shall only apply in a civil action
relating to alleged assistance provided on or before January
17, 2007.
Mrs. FEINSTEIN. I ask that the amendment be set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Maryland.
Amendment No. 3930
Mr. CARDIN. Mr. President, shortly we will be voting on the amendment
I offered that provides for a 4-year sunset in the Foreign Intelligence
Surveillance Act.
I thank first Senator Rockefeller for his help, Senator Leahy,
Senator
[[Page S708]]
Mikulski, Senator Kennedy, and others who have been instrumental in
making sure that we have provisions in this bill so that we continue
our congressional oversight.
This amendment is not unusual. Every major change in the FISA law has
been accompanied by a sunset. When we passed the PATRIOT Act, we had a
4-year sunset on most of the provisions. When we revised it, we had a
3-year sunset on the most controversial provisions. When we passed the
Protect America Act, we had a very short sunset on it because we were
not certain we were getting it right.
This change is controversial. If my colleagues think it is not
controversial, look at all the debate that has taken place on the floor
of this body. We want to make sure that we get it right.
It is interesting that as we get close to the time when Congress has
to act, we seem to get a lot more cooperation from the executive branch
of Government. The sunset will ensure that we get the type of
cooperation we need to carry out our responsibilities, to get the
documents we need to make sure we get it right.
As I pointed out, technology is changing quickly. I think a 4-year
period is reasonable for us to take a fresh look at this issue.
This is not a question of whether we should have a sunset in the
bill. There is a 6-year sunset in the bill. So why is it so important
to have a 4-year sunset versus a 6-year sunset? The answer, quite
frankly, is we want the next administration that is going to take
office in January to focus on this issue and work with us so they can
operate collectively with the authority of Congress and the laws we
pass in the executive branch. It is important that the next
administration focus on this issue, and that is why this amendment is
particularly important.
My friend from Missouri pointed out that this is an election year.
No, it is not. The sunset provision would terminate in December of
2011, so it is a year before the elections. I think it is the right
time for a sunset.
I know the administration does not want any sunset in this bill. I
understand that. As I pointed out before, they don't want any
congressional oversight. They don't even think they need congressional
laws on this subject. They don't even think they need a Congress. But
we have our responsibility, and I hope we would want this issue
revisited during the next administration. I urge my colleagues to
support the amendment.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, we have discussed this issue before on the
floor. I urge my colleagues to vote against this amendment. As I have
stated previously, the current bill, the Protect America Act, had a 6-
month sunset on it only because we were not able to bring a full,
complete FISA modernization bill to the floor, given the failure of
Congress to act. We had been requested in April, May, June, and July to
change the law. This is a bill that should establish a permanent
operating authority for the intelligence community and the private
partners who work with it.
As part of the compromise we reached in passing the bill, I did not
believe we should have a sunset, but we agreed on a 6-year sunset. That
was part of the deal. The 6-year sunset at least gives us certainty
over the 6 years in time, that both the intelligence agencies, our
private partners, and our allies abroad who depend upon us would have
time to make this system work.
The problem we face is that any sunset withholds from our
intelligence professionals and the private partners the certainty and
the permanence they need to protect Americans from terrorism and other
threats to national security.
Attorney General Mukasey has said there are no fatwahs with
limitations by the terrorist leaders who seek to do us harm. They put
out orders to keep trying to kill us, and these are not going to go
away. There should be no sunset on this bill.
I disagree very strongly with my friend from Maryland that Congress
is an important part of this. We passed a good bill that adds far more
protections than Americans have ever had in intelligence collection.
This bill is a good bill, but I can assure him that we have a strong
bipartisan committee and a strong staff that will continue to oversee,
supervise, and watch the surveillance to make sure it works. If we find
it does not work, we should not wait for a 4-year sunset or a 6-year
sunset. We should make those changes when they are needed.
We can see how long we have had to fight to get this authorization
through. There was no action from the majority from April, May or June,
until the very end of July. We put this bill out on the floor in
October. We could not get the bill up in December because of
filibusters. We had to get another 15-day extension so it would not
expire.
We can act on the bill any time we need, but we cannot deprive our
partners, our intelligence community, and our allies the protection if
Congress cannot work.
I yield time to the distinguished chairman of the committee.
Mr. ROCKEFELLER. I say to the Presiding Officer, I find myself in
disagreement with my vice chairman. I originally wanted 4 years and we
went to 6 years because of accommodations that yielded other results.
In the wisdom of the joint Intelligence Committee and Judiciary
Committee, settling on 4 years makes a lot of sense. I urge the
adoption of the amendment.
Mr. KENNEDY. Mr. President, the amendment that Senator Cardin has
offered is very simple, but it is absolutely critical to this bill. The
amendment would move up the bill's sunset date from 6 years to 4 years.
Congress would need to revisit the law by the end of 2011 instead of
2013.
The amendment is good public policy. Whenever a significant new law
is enacted, it is important to require Congress to revisit it at an
earlier rather than a later date.
The FISA bill we are considering is highly complicated legislation
affecting Americans' security and liberty. It grants the executive
branch vast new authority for electronic surveillance at a time of
rapidly changing technology and rapidly changing threats. Even the
country's leading national security experts cannot say for sure what
our national security challenges will look like in 3 years, much less
how this legislation will work out in practice.
This is also highly controversial legislation. I don't need to remind
anyone in this Chamber of the intense debate that has been taking place
over many parts of this bill. The FISA rules on electronic surveillance
affect every American. They are the only thing that stands between the
freedom of Americans to make a private phone call, send a private e-
mail, or search the Internet, and the ability of the Government to
listen in on the call, read the e-mail, and review the Internet search.
In this information age, FISA gives Americans basic protection
against Government tyranny and abuse, and we owe it to the American
people to revisit it promptly to make sure its protections are
effective.
Congress also needs an earlier sunset because we need more
information to assess how these new policies will work in practice. The
ongoing confusion and controversy in this area mean that Congress does
not have enough knowledge or confidence to be sure the legislation is
adequate.
With an early sunset, Congress will have to make an early assessment
of how the legislation is being interpreted and implemented. We will be
able to identify problems and abuses much sooner. If changes are made
to the law in 2011, it will be because experience has shown that
changes are needed.
We passed this exact same amendment in the Judiciary Committee in the
middle of November, and in the weeks since then, I have heard only two
arguments against it, both from the White House. Neither of them holds
up.
The first objection is that there has already been sufficient
consideration of these issues, so that Congress should be able to pass
a permanent FISA reform right now. Everyone agrees that short sunsets
are valuable when Congress has not had time to consider an issue
thoroughly and develop a factual record. But the Bush administration
claims there has already been a detailed and informed discussion of
FISA modernization.
[[Page S709]]
That objection is wrong on the facts. The administration has recently
started to work with Congress more openly, but there is still a great
deal we don't know about how it has been conducting its electronic
surveillance. Much of what we have learned has come from leaks to the
press.
A few months ago, the White House decided to share with the Senate
certain documents on the role of the telecommunications companies in an
effort to obtain retroactive immunity for them. This was the first time
the administration had ever shown Congress any documents on its
warrantless surveillance. So far, however, the White House has shared
only a small number of documents with a small number of Senators--and
until late last month, not with any Members of the House of
Representatives. Such selective disclosure is a pale shadow of the real
disclosure Congress needs to enact good legislation.
That objection is also wrong as a matter of policy. No matter how
much discussion there may have been, this is highly complicated
legislation that makes major, untested changes in our surveillance
laws. It is impossible for Congress to analyze these issues in the
abstract, without any track record to evaluate. With a law as complex,
new, and important as this, a short sunset is responsible policy.
The second objection I have heard is that a short sunset introduces
too much uncertainty to the rules affecting our intelligence
professionals. The administration says it is not efficient for agencies
to develop new policies and procedures, only to have the law change
within a brief period. They say the intelligence community operates
more effectively when the rules governing intelligence professionals
are well-established, and are not in doubt.
This objection is more serious, but it too dissolves upon
consideration. It is true that there may be a little extra uncertainty
that comes with a short sunset. But the much more significant
uncertainty is whether all of the changes made by this bill will be
good for the country--and there is no way to be sure about this ahead
of time.
Intelligence professionals should not be locked into a surveillance
system that doesn't work well for them, and Americans should not be
locked into a system that fails to protect their security or their
rights. The early sunset guarantees that Congress will review these
extremely complicated, untested, and powerful new authorities and how
they are actually being used by the executive branch.
The administration's argument against a sunset is an argument against
congressional oversight of FISA. The White House wants Congress to pass
a new FISA law, and then to look the other way while the executive
branch implements and interprets its new powers. They want Congress to
trust them when they tell us how the law is working, rather than look
into it ourselves.
Given this administration's track record of warrantless illegal
spying, ``trust us'' is not an acceptable way to proceed. Congress
needs to stay on top of this issue to make sure that our surveillance
laws are keeping Americans safe and protecting their freedom. That is
what we have been elected to do, and that is what the Constitution
requires us to do.
As I said at the start, this amendment is very simple. It moves the
sunset date up by 2 years. Yet it may well be the single most important
thing Congress can do to ensure that we reform FISA in a responsible
and effective way.
This sunset amendment is a win-win for national security and civil
liberties. It will ensure that Congress remains engaged on the crucial
issues of electronic surveillance that affect all Americans. To make
sure that our new FISA law actually gets the job done, I urge my
colleagues to adopt this amendment.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Mr. President, let me briefly summarize the comments
Senator Bond made. It is true that the terrorist groups do not have any
types of restrictions on what they can do. They do not have any
legislature. They do not have any courts. They do not have any
constitution. They have no respect for human life. They have no civil
liberties with which they have to deal. But that is what makes this
Nation the great nation it is. It is our responsibility to make sure
that we carry out what the people of our Nation expect us to do.
Let me point out that the PATRIOT Act, when it was passed, had a 4-
year sunset. Then we reauthorized some of the provisions, but we kept a
3-year sunset. We have used sunsets that have been shorter, and on
controversial laws, a 4-year sunset is the minimum we should have.
I urge my colleagues to understand that it is important that the next
administration work with us so we never get back to where we are this
year, where the executive branch is heading in one direction and we
don't know what they are doing. Let's work together so we can keep
Americans safe, having the administration work with us next year so we
understand what they are doing, they have our support and, if
necessary, we modify the laws to give them the tools they need to keep
America safe.
I urge my colleagues to support the amendment.
Mr. BOND. Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. There is 1 minute 10 seconds remaining.
Mr. BOND. Mr. President, this is a great nation because we have kept
our country safe. We have kept our country safe, and we are working
very closely with the intelligence community. That is why we have a
good bill. The intelligence community says we must have the certainty
at least of 6 years. I wanted to see none. That is why we came to an
agreement in the Intelligence Committee and a 13-to-2 vote said we
should have this bill with a 6-year sunset.
We have a solid bipartisan product addressing civil liberties
concerns, while making sure the intelligence community has the tools
and authorities it needs to keep us safe.
As I said, this was an important part of our compromise to get the
bill through. Our intelligence collectors and troops on the battlefield
need certainty, not rules that will expire in 4 years. That is why both
the Director of National Intelligence and the Attorney General strongly
oppose shortening the 6-year sunset in the bill.
I urge my colleagues to join me in opposing this amendment.
The PRESIDING OFFICER. The Senator from Maryland.
Mr. CARDIN. Mr. President, quickly, in closing, I thank the chairman
of the Intelligence Committee for his support of this amendment. This
amendment does nothing to jeopardize the bipartisan work of the
Intelligence Committee. It preserves the appropriate role of the
legislative branch of Government, and I would hope all my colleagues
would want to support that change to make it clear that the next
administration must come back to Congress.
With that, Mr. President, I yield back the remainder of my time, and
I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second? There appears to
be a sufficient second.
Mr. BOND. Mr. President, there is a 60-vote agreement on this.
The PRESIDING OFFICER. That is correct.
The question is on agreeing to amendment No. 3930. The clerk will
call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
and the Senator from Connecticut (Mr. Lieberman) are necessarily
absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from North Carolina (Mr. Burr), the Senator from South Carolina (Mr.
Graham), and the Senator from Arizona (Mr. McCain).
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 49, nays 46, as follows:
[Rollcall Vote No. 7 Leg.]
YEAS--49
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Inouye
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
McCaskill
Menendez
Mikulski
[[Page S710]]
Murray
Nelson (FL)
Nelson (NE)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--46
Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
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--5
Burr
Clinton
Graham
Lieberman
McCain
The PRESIDING OFFICER. Under the previous order requiring 60 votes
for the adoption of this amendment, the amendment is withdrawn.
The majority leader is recognized.
Mr. REID. Mr. President, I move to reconsider the vote and table that
motion.
The motion to table was agreed to.
Congratulating Senator Inouye on His 15,000th Vote
Mr. REID. Mr. President, 2LT Daniel K. Inouye distinguished himself
by extraordinary heroism in action on April 21, 1945, in the vicinity
of San Terenzo, Italy.
While attacking a defended ridge guarding an important road junction,
Second Lieutenant Inouye skillfully directed his platoon through a hail
of automatic weapons and small arms fire in a swift and enveloping
movement that resulted in the capture of an artillery and mortar post
and brought his men to within 40 yards of the hostile force.
Emplaced in bunkers and rock formations, the enemy halted the advance
with crossfire from three machine guns. With complete disregard for his
personal safety, Lieutenant Inouye crawled up the treacherous slope to
within 5 yards of the nearest machine gun and hurled two grenades,
destroying the emplacement.
Before the enemy could retaliate, he stood up and neutralized a
second machine gun nest. Although wounded by a sniper's bullet, he
continued to engage other hostile positions at close range until an
exploding grenade shattered his right arm.
Despite the intense pain, he refused evacuation and continued to
direct his platoon until enemy resistance was broken and his men were
again deployed in defensive positions.
In the attack, 25 enemy soldiers were killed and 8 others were
captured. By his gallant, aggressive tactics, and by his indomitable
leadership, Lieutenant Inouye enabled his platoon to advance through
formidable resistance and was instrumental in the capture of the ridge.
Lieutenant Inouye's extraordinary heroism and devotion to duty are in
keeping with the highest traditions of military service and reflect
great credit on him, his unit, and the U.S. Army.
Mr. President, Members of the Senate, these are the words that
describe the actions of heroism of Senator Inouye, when, as a young
man, he put his own safety aside for others. As a result of that he was
awarded America's highest honor for gallantry and heroism, the Medal of
Honor.
The reason I bring this to everyone's attention today is that we have
a lot of new Senators. I want every one of them to know this man Dan
Inouye is a man who was born to be a hero. He never thinks of himself
but of others. In my 25-plus years in Congress, that is how I have
found him to be.
I rise to express joy and honor for my friend and colleague Senator
Inouye on the occasion of his 15,000th rollcall vote, which was just
completed.
Dan Inouye was born to Japanese-American immigrants in Honolulu, the
eldest of four children. Did he ever set an example--he sure did--for
his siblings. On the day of the Pearl Harbor attack, with chaos
reigning, and being only 17 years old, he volunteered to provide
medical help to the injured, and there were a lot of injured. After
high school, he wanted to become a medical doctor. At the time the U.S.
Army banned Japanese Americans from becoming soldiers. The war broke
out, but this ban was dropped, and as a teenager, Dan Inouye
immediately put his medical ambition aside and signed up to serve his
country in the military. Perhaps it was fate that Dan Inouye joined the
legendary 442nd regimental combat team which in no small part, thanks
to his bravery, became the most highly decorated unit in the history of
the U.S. Army.
I can't improve the words of praise this great man earned upon
receiving the Medal of Honor for his courageous service. I read that.
But I think we all here recognize we serve with a very extraordinary
human being. While he was recovering from his injuries--and it was more
than his arm; his whole body was hurt and, as a result he spent years
in a military hospital--in the military hospital, he met another
wounded warrior, a man named Bob Dole. They recuperated together, both
having severe arm injuries, among other things. The only injuries you
could see with Senator Dole and Senator Inouye were the arms. But, of
course, their injuries were much more severe than that. While there,
Senator Dole told Senator Inouye, both to be Senators: I am going to
run for Congress. Senator Inouye beat him there by a few years. That
chance encounter began a lifetime of friendship that took these two
wounded warriors from hospital beds in Battle Creek, MI, to seats in
the Senate. The friendship and close working relationship they have
shared is emblematic of Senator Inouye's lifelong commitment to
bipartisanship in the pursuit of progress.
In his decades of public service, Senator Inouye has been a leader on
issue after issue of concern to the American people. As chairman of the
Subcommittee on Defense Appropriations, he is the leading expert and
national advocate for national security, strengthening the military,
and honoring our troops and veterans.
As the first person of Japanese descent to serve in the Senate, Dan
Inouye is a soft-spoken trailblazer.
On a personal level, I was a very new Senator and he had made a
commitment to do a fundraiser for me in Florida. He didn't know at the
time he made this commitment that there would be other things that
would be in the way of that. There was a little thing in the way, his
wife's birthday. She understood. He understood. And he, because he had
made a commitment, made the personal sacrifice and came down there. I
have never forgotten that. That is why when he sought a leadership
position in the Senate, I was the first to stand in line to support
Senator Inouye. His heroism and extraordinary lifetime of public
service are an inspiration to us all.
But on a personal note, Landra and I, and all my colleagues, are so
happy and pleased to hear the recent news that Dan and Irene will be
married this May. All of us in the Senate family wish them happiness
and joy.
The PRESIDING OFFICER. The Republican leader.
Mr. McCONNELL. Mr. President, the U.S. Senate has been conducting its
business here in Washington for just over 200 years. For more than one-
fifth of that time, Senator Daniel Inouye of Hawaii has been casting
rollcall votes. And just now, he cast his 15,000th, making him the
fourth most prolific voter in Senate history.
If Senator Inouye had anything to say about it, I have no doubt the
moment would have passed without fanfare. Some Senators make their
presence felt by talking a lot or by being flamboyant. Dan Inouye has
always been another sort of Senator.
He is one of only 107 Americans alive today to have received the
Medal of Honor for combat bravery. He is the iconic political figure of
the 50th State, the only original member of a congressional delegation
still serving in Congress. And he has ensured through many years of
diligent service on the Defense Appropriations Subcommittee that an
entire generation of America's uniformed military has gone well
prepared into battle and was well cared for when they returned.
Despite all this, Dan's quiet demeanor and adherence to a code of
honor and professionalism has made him a stranger to controversy and to
the fleeting fame that often comes with it. He is a man who has every
reason to call attention to himself but who never does. He is the kind
of man, in short, that America has always been grateful to have,
especially in her darkest hours, men who lead by example and who expect
nothing in return.
Historians tell us about one of those dark moments early in our
Nation's
[[Page S711]]
history, just after the surrender at Yorktown. Hostilities with the
British had ended, but America was on the brink of a military coup.
Congress had promised to give officers and soldiers back pay, food, and
clothing, and hadn't delivered. The situation grew so serious that U.S.
officers threatened an armed revolt.
In a meeting at Newburgh, George Washington urged patience. He
assured the officers Congress would act justly. And then, with anger
and impatience still in the air, he pulled a letter from his pocket
from Congress. Staring at it for a few moments with a look of
confusion, he reached into his pocket again and pulled out a pair of
reading glasses that only his closest advisers had ever seen. ``You
will permit me, gentlemen, to put on my spectacles,'' he said. ``For I
have not only grown gray, but almost blind, in the service of my
country.''
Some of the officers wept with shame. One man's heroism was enough to
dissolve whatever hostilities remained. Revolt was averted, peace
preserved, and a roomful of men learned that day what it meant to be an
American.
More than a century and a half later, after another dark moment in
our Nation's history, another roomful of men would learn a similar
lesson. The year was 1959, the place was the U.S. Capitol, and a young
man named Daniel Inouye was being sworn into office.
The memory of a hard-fought war against the Japanese was fresh in
many minds as the Speaker, Sam Rayburn, prepared to administer the
oath--not only to the first Member from Hawaii, but to the first
American of Japanese descent ever elected. Rayburn spoke: ``Raise your
right hand and repeat after me . . .''
Here's how another Congressman would later record what followed:
``The hush deepened as the young Congressman raised not his right hand
but his left and repeated the oath of office. There was no right hand.
It had been lost in combat by that young American soldier in World War
II. And who can deny that, at that moment, a ton of prejudice slipped
quietly to the floor of the House of Representatives.''
As a young boy growing up in Hawaii, Dan and his friends always
thought of themselves as Americans. But after Pearl Harbor, they found
themselves lumped together with the enemy. It was one of the reasons so
many of them felt such an intense desire to serve. Their loyalty and
patriotism had been questioned, and they were determined to show their
patriotism beyond any doubt.
At first they weren't allowed to volunteer. A committee of the Army,
caving to prejudice, recommended against forming a combat unit of
Japanese Americans. But they persisted, and on June 5, 1942, the policy
changed.
In reversing the previous order, President Roosevelt said, quote,
``Americanism is a matter of the mind and heart. Americanism is not,
and never was, a matter of race or ancestry.''
The overwhelming response of Japanese Americans proved Roosevelt
right. Eighty percent of the military-age men of Japanese descent who
lived in Hawaii volunteered for the first-ever, all-Japanese-American
combat team. And among the 2,686 accepted was an 18-year-old freshman
at the University of Hawaii named Dan Inouye.
The 442nd Regimental Combat Team, the famous ``Go for Broke''
regiment, would become the most decorated military unit in American
history. SGT Dan Inouye was one of its combat platoon leaders. He spent
3 bloody months in the Rome Arno campaign and 2 brutal weeks rescuing a
Texas battalion that was surrounded by German forces, an operation
military historians often describe as one of the most significant
military battles of the 20th century.
After the rescue, Sargeant Inouye was sent back to Italy, where on
April 21, 1945, he displayed ``extraordinary heroism,'' in leading his
platoon through tough resistance to capture an important strategic
ridge. Crawling within five yards of the nearest machine gun, he
destroyed it with grenades, then stood up and destroyed several others
machine gun nests at close range--even as a sniper's bullet shattered
his arm. Despite the pain, he continued to direct his men until the
enemy's retreat, and become one of the most decorated soldiers of the
war.
Dan would later spend nearly 2 years in an Army hospital in Battle
Creek, MI, and it was there that he met a wounded soldier, as the
majority leader mentioned, from Kansas. Dan had always wanted to be a
surgeon, but that dream faded away on a ridge in Italy. He decided to
ask his friend what he had in mind for a career. Politics was the
reply. Dan was intrigued. And many years later, as a freshman in
Congress, he wrote a note to Bob Dole, playfully taunting him for not
making it here first.
It is fitting that Dan owes his Senate career, in a sense, to a
Republican. He has never let narrow party interests stand in the way of
friendship or cooperation on matters of real national importance. His
friendship with Senator Stevens is one of the most storied in all of
Senate history. And I know I have never hesitated to call Dan when I
thought something important was at stake. As Dan has always said, ``to
have friends, you've got to be a friend.''
It is a good principle, and it is one he has always lived up to. But
it is just one of the remarkable traits that have made him one of
America's great men.
On the morning of his first day in the Army, Dan rode part of the way
to the barracks on a bus with his dad. He later recalled that at one
point his father grew somber, offered his first son some brief advice
about the importance of having good morals, then said something about
the country he would soon defend.
``America has been good to us,'' his father said. ``And now--I would
never have chosen it to be this way--but it is you who must try to
return the goodness of this country.''
Dan Inouye would make his father very proud. He has more than repaid
the goodness of this country. I know I speak for every other Senator
who has served with him, the people of Hawaii, and anyone who respects
this institution or loves this country, when I say thank you for the
dignity, the grace, and the heroism with which you have lived your
great American life. You are an example and an inspiration to all of
us.
I yield the floor.
The PRESIDING OFFICER (Mrs. McCaskill). The Senator from Hawaii.
Mr. AKAKA. Madam President, in the year 1924, a child was born to a
woman who was nurtured by a Hawaiian family. He was born in Hawaii as
an American of Japanese ancestry. He was brought up in Hawaii and went
to school there, graduated from McKinley High School in 1942, and
decided to serve our country, as he did. You have heard others tell
about his activities as an Army person. But he went on to finally
receive the Medal of Honor from this country, which is the greatest
medal anyone can receive. This is Senator Dan Inouye.
When he finished his service, he used the GI bill, of which he was a
recipient, to be educated. When he returned to Hawaii, he entered into
politics and served in the State legislature.
When Hawaii became a State in 1959, he was Hawaii's first U.S. House
of Representatives Member. It was from there he did run for the Senate
and was elected and has been here since that time. Dan Inouye has
served our country well over these years, and he has served Hawaii
well.
So today I rise to mark a historic occasion, which is Senator
Inouye's 15,000th vote. This historic milestone is compelling evidence
of Senator Inouye's devotion to public service. The people of Hawaii
have given him their trust, and in return he has fought relentlessly
for our State and our country.
Dan Inouye is an institution, without question, in the Senate, and I
look forward to casting many more votes with my good friend and mentor
and brother to benefit Hawaii and strengthen the United States.
God bless you, Senator Inouye, and with much aloha.
Thank you very much.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. INOUYE. Madam President, I am deeply moved and most grateful for
the generous and warm remarks of my colleagues. I shall do my very best
to live up to their praise.
I thank you very much.
(Applause, Senators rising.)
Mr. COCHRAN. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
[[Page S712]]
The legislative clerk proceeded to call the roll.
Mr. SPECTER. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3927 To Amendment No. 3911
(Purpose: To provide for the substitution of the United States in
certain civil actions)
Mr. SPECTER. Madam President, I now call up amendment No. 3927.
The PRESIDING OFFICER. Without objection, the pending amendments are
set aside.
The clerk will report.
The legislative clerk read as follows:
The Senator from Pennsylvania [Mr. Specter], for himself
and Mr. Whitehouse, proposes an amendment numbered 3927 to
amendment No. 3911.
Mr. SPECTER. Madam President, I ask unanimous consent that further
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
(The amendment is printed in the Record of Friday, January 25, 2008,
under ``Text of Amendments.'')
Mr. SPECTER. Madam President, there are 2 hours set aside for this
amendment. We have about 24 minutes between now and 4:30, when the
Senate will move on to other business.
I have just discussed with my distinguished colleague, Senator
Whitehouse, and the managers--Chairman Rockefeller and Vice Chairman
Bond--my intent to speak relatively briefly on an opening statement and
then yield to Senator Whitehouse and give an opportunity for opponents
of the amendment to speak because I think that will tell the Senators
and staffs what this is about and perhaps generate more interest and
more concern to follow, and then have additional debate at a later time
on the remainder of our time.
At the outset, I compliment my distinguished colleague, Senator
Whitehouse, who is in his first term in the Senate. I thank him for the
work he has done coordinately with me and others on this bill.
Senator Whitehouse brings a very distinguished record to the U.S.
Congress. He has served as U.S. attorney for Rhode Island. He served as
Rhode Island's attorney general. And he has made quite a contribution
to the Judiciary Committee on what is a very complex matter.
Madam President, I ask unanimous consent that Senator Levin and
Senator Cardin be added as cosponsors of the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SPECTER. The essence of the pending amendment is to substitute
the U.S. Government as a party defendant for the telephone companies,
instead of having the current provision which provides for retroactive
immunity to the telephone companies. The bill under consideration would
give those companies retroactive immunity and foreclose litigation
which is now pending in some 40 cases.
This issue is at the heart of the balance of values between national
security and constitutional rights. There is no doubt, at least on this
state of the record--where we do not know all of the details as to what
the telephone companies have been doing--but it is presumed, for
purposes of this argument, and I think accurately so, that what the
telephone companies are doing has produced very high-level intelligence
for the U.S. Government.
There is no doubt of the importance of high-level intelligence in our
fight against terrorism. We sustained 9/11. We fight a deadly enemy
around the world--al-Qaida. We want to protect the United States and
its people and others, so that high-level intelligence is very
important.
At the same time, constitutional rights are very important. I believe
the substitution which Senator Whitehouse and I are proposing
accomplishes the objective of a continuation of getting this very vital
intelligence information for national security and, at the same time,
protects constitutional rights.
The essence of the proposal is that the U.S. Government would step
into the shoes of the telephone companies, have the same defenses, no
more and no less. The Government could not assert governmental immunity
because the telephone companies could not assert governmental immunity.
The Government could assert the State Secrets Doctrine, just as the it
has by intervening in the cases against the telephone companies.
I believe it is vital that the courts remain open. I say that because
on our delicate constitutional balance of separation of powers, the
Congress has been totally ineffective on oversight and on restraining
the expansion of executive authority. But the courts have the capacity,
the will, and the effectiveness to maintain a balance.
But we find that the President has asserted his constitutional
authority under article II to disregard statutes, the law of the land
passed by Congress and signed by the President.
I start with the Foreign Intelligence Surveillance Act, which
provides that the only way to wiretap is to have a court order. The
Executive Branch initiated the Terrorist Surveillance Program in flat
violation of that statute. Now, the President argues that he has
constitutional authority which supersedes the statute. And if he does,
the statute cannot modify the Constitution. Only a constitutional
amendment can. But that program, initiated in 2001, is still being
litigated in the courts. So we do not know on the balancing test
whether the Executive has the asserted constitutional authority.
But if you foreclose a judicial decision, the courts are cut off.
Then the executive branch has violated the National Security Act of
1947, which mandates that the Intelligence Committees of both the House
and the Senate be informed of matters like the Terrorist Surveillance
Program. I served as chairman of the Judiciary Committee in the 109th
Congress. The chairman and the ranking member, under protocol and
practice, ought to be notified about a program like that. But I was
surprised to read about it in the newspapers one day, on the final day
of argument on the PATRIOT Act Re-authorization. It was a long time,
with a lot of pressure--really to get the confirmation of General
Hayden as CIA Director--before the executive branch finally complied
with the statute to notify the full Intelligence Committees. Now, on
the other hand, the courts have been effective--and I will amplify this
at a later time because I want to yield soon to Senator Whitehouse and
give the opponents an opportunity to speak before 4:30. But in the
Hamdan case, the Supreme Court held that the President does not have a
blank check in the war on terror. Justices held that the President
cannot establish military commissions unless Congress authorizes it. In
Hamdi, the Supreme Court concluded due process required that a citizen
held in the United States as an enemy combatant be given a meaningful
opportunity to contest the factual basis for that contention. In Rasul
v. Bush, the Supreme Court held that the Federal habeas corpus statute
gave district courts jurisdiction to hear challenges by aliens held at
Guantanamo Bay.
Well, this is not Pakistan, where President Musharraf can suspend the
Supreme Court Justices and hold the Chief Justice under House arrest.
This is America. The balance is maintained only because the courts are
open. I believe it would be a major mistake to close the courts on
pending litigation when the courts have provided the only effective way
to check expanded executive authority, which we have seen in many
lives. I will amplify those later, on matters such as signing
statements.
But that is the essence of the argument. I am going to yield now to
my distinguished colleague from Rhode Island because I think it is
useful, as we move forward in the debate, to crystallize the issues. We
know Senators and even staff don't pay a great deal of attention until
the time for a vote is near, and when we see the essence of the two
positions, I think we may create some more interest and have more
people join this debate.
I yield the floor.
The PRESIDING OFFICER. The Senator from Rhode Island is recognized.
Mr. WHITEHOUSE. Madam President, I thank the distinguished Senator
from Pennsylvania. I consider it a great personal honor to join him in
sponsoring this important amendment. He has served with great
distinction as a prosecuting attorney for Philadelphia for many years
and then has served in this Senate for 27 years with great distinction,
making him the longest serving Senator in Pennsylvania's history.
[[Page S713]]
He has chaired the Senate Judiciary Committee, and he has always shown
great intelligence and independence. In addition to all that, I am the
junior member of the Senate Judiciary Committee, and he also has shown
exceptional courtesy and good will toward me, notwithstanding my junior
status and notwithstanding my position on the other side of the aisle.
So it is with considerable pride and also considerable affection that I
join him in supporting this amendment.
We face, as Senator Specter said, the critical balance between
freedom and security, which will always be difficult to maintain as
long as a threat of terrorism looms. As we all know, one of the many
difficult issues that balance presents to us is the question of whether
to grant immunity to telecommunications carriers who may have assisted
the Government in this surveillance program.
On the one hand, the administration has called for a blanket grant of
immunity to these companies. On the other hand, others have proposed
preserving the status quo. We are proposing a more sensible, practical,
middle path that does less constitutional damage and still protects the
essential equities involved.
The choice is to give immunity, to stop the litigation, to end the
claims against the companies, and take away the plaintiffs' case
against them, which is not fair. Nothing yet suggests this is not
completely legitimate litigation. The courts who are considering it
haven't thrown it out, it is in process right now, and it is not fair
to the plaintiffs to up and take away their day in court. Moreover,
there is a huge separation of powers problem of a legislature intruding
into ongoing litigation, now before a judge, and taking away active
claims. We would be taking away plaintiffs' rights and claims, taking
away their due process without even providing for the basic judicial
finding that the defendant companies acted reasonably and in good
faith. That damage suggests that blanket immunity is not a great
solution and, indeed, it may even be unconstitutional.
The other choice we have on the immunity question is to do nothing.
But consider this: the Government has forbidden the telephone company
defendants to defend themselves, claiming state secrets privilege. They
have tied the companies' hands behind their backs in this litigation,
muzzled them, forbidden them to offer any defense. In my view, that is
also not fair, particularly if the Government put these companies into
this mess in the first place. If the Government wants to forbid self-
defense by these companies, the decent thing for the Government to do
would be to step into the lawsuit, and defend on their behalf. The
Government should not leave legitimate American companies in the
judicial arena, bound and muzzled, unable to defend themselves, and not
itself be willing to step in the ring and take over. So it strikes me
that doing nothing is not a great solution either.
The solution that fits the problem we face is this Specter-Whitehouse
amendment, and it has two very simple parts. One, a judicial
determination, confidentially, in the FISA Court, whether these
companies acted reasonably and in good faith. That is a very simple
determination that can be made with a very small amount of testimony
based in many respects simply on the record of what was provided to
companies. Second, if they did act reasonably and in good faith, there
is then a well-established procedure under rule 25 of the Federal Rules
of Civil Procedure, rule 25(c) to be specific, that can substitute the
Government for these companies in this litigation.
First, let me talk about the good-faith determination. I hope we can
all agree that if the companies did not act reasonably and in good
faith, they shouldn't get protection. I hope we can agree on that. We
establish a simple procedure for the good-faith question to be answered
by the FISA Court. We in Congress should not be the judges of that. We
are not judges. Good faith is a judicial determination. This is ongoing
litigation. The companies have, of course, asserted to us that they
acted in good faith, but that is no basis for us to conclude that, and
we surely should not rely on one side's assertion in making a decision
of this importance. Most Senators have not even been read into the
classified materials that would allow them to reach a fair conclusion.
This body is literally incapable of forming a fair opinion without
access by most Members to the facts. So we need to provide a fair
mechanism for a finding of good faith by a proper judicial body with
the proper provisions for secrecy, which the FISA Court has.
Second, substituting in the Government. Well, if it turns out the
Government directed the companies to engage in conduct that broke the
law, the Government is the proper authority. If the companies acted
reasonably and in good faith but ended up somehow breaking the law
because of what the Government directed them to do, the real actor is
the Government. Lawyers in this body will understand this is analogous
to a principal-agent relationship. The Government is in effect the
principal, the company acting as directed is the Government's agent,
and under principal-agency law, the principal is liable for the acts of
the agent.
So the simple solution contained in this amendment follows the law,
it is founded in the Federal Rules of Civil Procedure, and it fits the
problem we face. Consider: No one has legitimate rights and due process
summarily taken away. This is, after all, the United States of America.
Two, if the carriers acted reasonably and in good faith, the
Government steps in for them. In fact, the carriers get a judgment in
their favor dismissing them from the cases.
Third, no one is forbidden to defend themselves in ongoing
litigation. No one is bound and muzzled but forced to stay in a
judicial fight.
Fourth, there is no intrusion by Congress into ongoing adjudication,
no separation of powers trespassed.
Finally, if the companies acted reasonably and in good faith at the
direction of the Government but ended up breaking the law, the
Government truly is the morally proper party to the case. So this is
not just sensible, but it is right. I hope my colleagues will support
this amendment.
I see time is a little short, but let me continue a little bit longer
because I wish to expand a little bit on this concern that intrusion by
Congress into ongoing adjudication presents a separation of powers
problem. Let me go all the way back to why we set up the separation of
powers in the first place. I quote U.S. Supreme Court Justice Scalia
specifically who said:
The sense of a sharp necessity to separate the legislative
from the judicial power triumphed among the Framers of the
new Constitution prompted by a crescendo of legislative
interference with private judgments of the courts.
So the question of a legislature interfering with ongoing litigation
was the live concern of the Founding Fathers when they separated the
powers. In a case called the United States v. Klein, the U.S. Supreme
Court threw out a congressional statute that purported to provide the
rule of decision in a particular case, saying of this relationship
between the legislative and judicial powers:
It is of vital importance that the legislative and judicial
powers be kept distinct. It is the intention of the
Constitution that each of the great courts and departments of
the government--the legislative, the executive, and the
judicial--shall be in its sphere independent of the others.
So I urge my colleagues who are considering this to consider the
sensible merits of this amendment, to consider this is the morally
right way to go forward, and further, to consider that it reduces
considerably the risk that if we go ahead and give these companies this
immunity, the companies end up with a lawsuit, they end up with a case
and a statute that is thrown out because it is unconstitutional, and in
effect we create a snarl rather than a solution for them.
So with that said, I would again like to say how very much it means
to me to be cosponsoring this amendment with the very distinguished
Senator and former chairman of the Judiciary Committee, Senator Specter
of Pennsylvania.
I thank the Chair and I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Madam President, I am reluctant to ask, but I must,
how much time remains before 4:30?
The PRESIDING OFFICER. There is 2\1/2\ minutes before 4:30.
Mr. ROCKEFELLER. Wonderful.
[[Page S714]]
Madam President, I simply rise to say I will oppose this amendment
and I will oppose it strongly and I think for a series of very good
reasons. But in spite of my eloquence and the ability to talk very
quickly, I simply cannot do the task in 1\1/2\ minutes. So I ask
unanimous consent to reserve my right to speak further at the
appropriate time before the vote.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Missouri is recognized.
Mr. BOND. Madam President, with the time so graciously allowed us by
the proponents of this measure--and I know it was not intentional--I
will only say a couple of quick things. No. 1, the courts are not
precluded. The underlying bill, the bipartisan bill, permits lawsuits
to go forward against the Government and the Government employees. No.
2, there was notification of the Big Eight--the ranking members and
chairmen of the Intelligence Committees and the leaders--when this
program was started. No. 3, article 2 does give the President the power
to exercise foreign intelligence collections.
I would say to my colleague who has been on the Intelligence
Committee, if he doesn't think Congress has been effective in
overseeing programs, he has not seen the committee that is chaired by
Senator Rockefeller and on which I ride shotgun with him. The Judiciary
Committee--if it was not advised, the Judiciary Committee's primary
responsibility is not intelligence. That is the Intelligence Committee.
We get the sensitive information. We spend a great deal of time. We
have reviewed it. We believe it is a disaster for our intelligence
collection to have substitution because we would see our most sensitive
means of collection exposed. The private parties that might have
participated would be put through tremendous economic and commercial
harm and subjected potentially to harassment, and perhaps even
terrorist attacks, for having worked with us.
Therefore, I strongly urge that our colleagues defeat amendment No.
3927, the Specter-Whitehouse substitution amendment.
Mr. KENNEDY. Madam President, the amendment that I have offered with
Senators Kerry and Menendez addresses a serious problem with the FISA
bill that we are now considering, and I am very pleased that it has
been incorporated into the bill by unanimous consent.
The amendment clarifies that under the new authority provided in this
legislation, the Government may not intentionally acquire a
communication when it knows ahead of time that the sender and all of
the intended recipients are located in the United States. When the
Government knows ahead of time that both the person making the call and
the person receiving the call are located inside the United States, it
will have to get a court order before it can listen in on that call.
This is the way FISA has always worked, and my amendment makes sure
that the law stays that way.
There is broad agreement that communications known ahead of time to
be purely domestic should continue to be governed by the standard FISA
rules. Indeed, the Bush administration has repeatedly stated that it
does not intend to use the new authority granted under the Protect
America Act or this legislation to acquire communications that are
purely domestic, without obtaining a court order first. The
administration acknowledges that when the Government knows that all the
parties to a conversation are in the United States, a specific court
order should be needed to intercept that conversation.
I haven't heard a single Member of Congress disagree with this point.
But without this amendment, the FISA bill's new authority could be used
to acquire purely domestic communications without a court order.
The bill requires the Government's ``targeting procedures'' to be
designed ``to ensure that any acquisition . . . is limited to targeting
persons reasonably believed to be located outside the United States.''
The problem arises because sometimes the ``target'' of the surveillance
may be abroad, but the communications that the Government wants to
acquire may occur entirely inside the United States, because the
subject matter concerns the target who is abroad. The term ``target''
is not defined in FISA, but the legislative history states that the
``target'' is the person or entity ``about whom or from whom
information is sought.'' That broad definition is capable of being
interpreted to allow surveillance of people other than a ``target.''
For example, the Government might believe that two Americans in the
United States--let's call them Tom and Mary--will discuss a third party
who is located outside the country. Under this bill, that third party
can be a group, not just an individual, and the Government can obtain a
blanket warrant that allows it to spy on everything that group does in
the future. Although the authors of the bill have stated this should
not occur, the concern is that when Tom and Mary talk to each other,
the Government might claim the third party is the ``target'' who
provides the legal basis for the surveillance--with the practical
result being that the Government could listen in on the conversation
without making any showing to any court about Tom and Mary.
My amendment protects innocent Americans by clarifying that
traditional FISA rules still govern for communications known to be
occurring within the country. The Government could still spy on Tom and
Mary--but it would have to obtain a warrant first, with the usual
exception for emergencies.
According to the administration, the law already requires this. The
administration has said flat out that it will not wiretap purely
domestic communications without first obtaining a court order.
But these kinds of statements are no answer when Americans' basic
liberties are at stake. ``Trust us'' is not enough.
FISA experts such as David Kris, a highly respected former lawyer at
the Justice Department and the author of the leading treatise on FISA
law, believe that the legislation is not clear right now. And if the
law is unclear, there will be tremendous pressure on the intelligence
community to apply it as aggressively as possible, because it is their
duty to do everything they can within the boundaries of law.
As Mr. Kris recently stated, even though the Intelligence Committee
bill prohibits the targeting of persons known to be in the United
States, it ``does not, however, foreclose all surveillance of [purely]
domestic communications . . . because surveillance can 'target' an
international terrorist group located abroad, but still be directed at
a domestic telephone number or other domestic communications
facility.''
Mr. Kris has said that his ``principal concern about [this bill] . .
. is that it resembles the Protect America Act in allowing surveillance
of domestic communications'' without a warrant. This is a radical
change to a FISA system that has protected Americans for three decades.
If put to a vote, I have no doubt that Americans would reject it.
This concern can't be waved away by the administration telling us
that it takes a different legal view. When one of the top FISA experts
in the country says that the law is not clear, we should listen.
Promises about how the Government will interpret the law in the
future are not enough. If we all agree about a specific policy goal--
and everyone should agree that in purely domestic-to-domestic
situations, the traditional FISA rules should apply--then we should be
very clear about that goal in the legislation we write. Any FISA law
that Congress passes may set the rules on surveillance for years to
come, and different administrations may interpret ambiguous language in
different ways.
My amendment makes clear that the traditional FISA rules apply when
the Government knows ahead of time that the communication is purely
domestic. The amendment does not add any substantive changes to the
law; it adds clarity and certainly where now there is ambiguity and
confusion.
Americans deserve to feel confident when they are talking with their
friends, neighbors, and loved ones inside the United States that they
will not be spied on without a warrant. Bringing clarity to this area
of the law is good for Americans' liberties, and it is good for
national security. I congratulate my colleagues for adopting this
amendment.
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