[Congressional Record: February 8, 2008 (Senate)]
[Page S805-S813]
FISA AMENDMENTS ACT OF 2007
The ACTING PRESIDENT pro tempore. The Senate will resume
consideration of S. 2248, which the clerk will report.
The legislative clerk read as follows:
A Bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
Pending:
Rockefeller-Bond amendment No. 3911, in the nature of a
substitute.
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.
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.
Feinstein amendment No. 3910 (to amendment No. 3911), to
provide a statement of the exclusive means by which
electronic surveillance and interception of certain
communications may be conducted.
Feinstein amendment No. 3919 (to amendment No. 3911), to
provide for the review of certifications by the Foreign
Intelligence Surveillance Court.
Specter-Whitehouse amendment No. 3927 (to amendment No.
3911), to provide for the substitution of the United States
in certain civil actions.
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Mr. REID. Mr. President, if people wish to come to speak today, they
should alert the staff. We are not going to have the staff wait around
all day for somebody who might not come. We have had a busy week.
Staffs work very long hours. Senators--if they are going to come and
talk--had better alert the staff or we are going to go out of session.
I suggest the absence of a quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BOND. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. BOND. Mr. President, we are back on the floor beginning the third
week of debate on the very important Foreign Intelligence Surveillance
Act, also known as FISA. We have had a great deal of good debate. We
have had a few votes.
Thanks to our leadership--Senator Reid and Senator McConnell--we now
have a plan to conclude debate and go to the critically important votes
on Tuesday. I thank all Members for participating. I know there are
some who have comments they wish to make today and Monday. Chairman
Rockefeller and I have spent 2\1/2\ weeks so far on the floor, and we
understand the importance of moving quickly to get this measure
adopted--gain approval from the House on a measure we can send to the
President for his signature. I truly hope we can make that.
I express my thanks to Chairman Rockefeller, his assistant Melvin
Dubee, all members of the committee, Louis Tucker of my staff, and
others for bringing us to this position.
It is important to realize the magnitude of the danger we continue to
face from radical Islamic terrorists. Probably no place was it better
outlined than in testimony in open hearing by the leaders of the
intelligence community. Director McConnell, head of the intelligence
community, outlined the major areas of concern, backed up by CIA
Director Michael Hayden; Defense Intelligence Agency Director General
Maples; FBI Director Mueller, and Under Secretary of State Randy Fort
for the INR.
A couple things that came out may have been missed by Members who
were not fortunate enough to hear the testimony of Admiral McConnell
and the intelligence community. I thought I would repeat a few of them
for you. First, Admiral McConnell made it clear that even though our
intelligence analysts had the availability of collection, which
indicated there had been a halt in 2003 to the weaponization program
for nuclear weapons in Iran, the threat that Iran poses remains great.
Admiral McConnell pointed out that there is no question Iran continues
to try to enrich uranium, which can be used for nuclear weapon
production. He also indicated they have the skills and the facilities
to turn out biological and chemical weapons, and they are working on a
missile program. The halt in 2003 came, not surprisingly, after the
United States went in and opposed the dangerous dictator, Saddam
Hussein.
It was the capture of Saddam Hussein that led Muammar Qadhafi, leader
of Libya, to decide he didn't want to be pulled out of a spider hole by
American forces. He gave up his nuclear weaponization program.
Personally, I think it is no accident that the same activity in Iraq
convinced Iran that, for the time being, it was better to shut down
their weaponization program. The top French Defense Minister indicated
he was not sure they had not restarted their weaponization program. In
any event, we need to continue to be concerned about Iran and its
potential threat not just to our allies in the Middle East,
particularly Israel, which Iran's elected leader, Ahmadi Nejad, vowed
to annihilate.
Specifically, regarding threats to the United States, General Hayden
outlined for us in open hearing--and more specifically in classified
information--the number of threats that have been avoided, the plots
that have been deterred by our resolute action. And what helped us
deter the threats was, first, the active, aggressive move by the U.S.
military to disrupt the Taliban and take Afghanistan out from under the
control of the Taliban.
Afghanistan was a great threat and much planning was going on by al-
Qaida there. There are some on the news who continue to say Iraq had
nothing to do with the war on terror. For those others who have looked
at the information, that is an unbelievably naive point of view. David
Kay, who went into Iraq to conduct a survey of our inadequate
intelligence information, said that Iraq was a far more dangerous place
even than we knew. Terrorists were running wild there, Abu Mus'ab al-
Zarqawi, head of Ansar al Islam was active there, and later became the
AQI, leader of al-Qaida there. Al-Zarqawi became famous when he
beheaded victims who didn't agree with him; he cut their heads off on
television. Iraq has been designated time and time again by leaders of
al-Qaida, Osama bin Laden and Ayman al-Zawahiri, as the target for
their headquarters. They want to establish the land between the
rivers--the Tigris and Euphrates--as their caliphate. They stated that
is their objective.
Were we to leave Iraq precipitously, not only would it lead to chaos,
genocide, and possible Mideast sectarian wars, but also it would ensure
that al-Qaida would have the opportunity to reestablish their
headquarters with recruitment, training, and command and control that
would significantly increase the threats to the United States.
This is why it is essential to continue our military support in the
war against terror and also provide the intelligence tools to the
intelligence community needed to keep our country safe.
I thought it might be helpful to repeat a few comments that were made
at that hearing. Director McConnell, along with FBI Director Mueller,
outlined terrorist threats here at home--most recently, in New Jersey,
Illinois, and abroad in Spain, Denmark, France, Germany, and the United
Kingdom. Admiral McConnell also said:
Al-Qaida remains the preeminent terror threat against the
United States, both at home and abroad. Despite our successes
over the years, the group has retained or regenerated key
elements of its capability, including its top leadership,
operation lieutenants, and de facto safe haven . . . in the
Pakistani border area with Afghanistan known as the Federally
Administered Tribal Areas or FATA.
To expand on that further, I will explain that people who think we
are not doing enough to capture Osama bin Laden and al-Zawihiri, I
cannot tell you how it is happening, but it is happening in
collaboration with our allies. But we have regularly captured or killed
the operational head of al-Qaida, the No. 3 man. Most recently, Abu
Laith al-Libby, the operational head, was killed in some kind of bomb
or missile strike. At the time, of course, he had a U.S. citizen with
him, apparently, Adam Gadahn, who had been cooperating actively with
the al-Qaida leadership. Now, it is a fact that Gadahn was a top
terrorist target. But do you know something. Without having a FISA
Court order, we were able to go in and kill him--inadvertently, of
course, but we would not have been, without the FISA law--particularly
as we have updated it--able to listen in on his conversations. That is
the one great shortcoming we learned in Iraq when we met with the head
of our Joint Special Operations Command, GEN Stan McCrystal. He said
the greatest threat to our troops on the battlefield was not being able
to listen in on their electronic communications and see what directions
they were giving to the terrorist groups threatening our troops in
Iraq. That is why the outmoded, old FISA law we changed with the
Protect America Act had to be revised.
In addition to the terrorist threat, there is no question that rogue
nations around the world continue to seek dangerous weapons that
threaten America's security. Admiral McConnell also said:
The ongoing efforts of nation-states and terrorists to
develop and acquire dangerous weapons, and the ability to
deliver those weapons, constitute the second major threat to
our safety. After conducting missile tests and its first
nuclear detonation in 2006, North Korea returned to the
negotiating table last year.
We see that North Korea has signed on to the six-party agreement,
supposedly getting themselves out of the nuclear business, but some of
us have grave doubts whether he will follow through. We need good
information on
[[Page S807]]
not only the intentions of terrorist groups, such as al-Qaida, but
potentially on nations with nuclear weapons that have developed
missiles and the ability and the potential of delivering by missiles
the nuclear weapons against U.S. targets.
I close on the discussion of the threats by quoting from General
Hayden, the Director of CIA, who said:
We face an enemy that is clearly ruthless, but it's also
one that's very adaptive, one who shuns traditional
hierarchical structures, who learns from mistakes and
therefore demands that we be no less resilient and creative.
Suffice it to say that all of the members of the Intelligence
Committee said we must have the FISA bill Senator Rockefeller and I
negotiated and passed out of the Senate Intelligence Committee 13 to 2
on a strong bipartisan vote. That is what we are here to pass, I hope,
this coming week and send to the President by the end of the week.
Admiral McConnell said:
The authorities granted by the amendments to FISA, the
Protect America Act, which temporarily closed some gaps in
our ability to conduct foreign intelligence, are critical to
our intelligence efforts to protect the nation from current
threats. Briefly, some of those important benefits in the
bill that was signed last August include: better
understanding of international al Qaeda networks, more
extensive knowledge of individual networks, including
personnel and planning for suicide bombers; and most
importantly, greater insight into terrorist planning that has
allowed us to disrupt attacks that intended to target U.S.
interests.
He also put in a very strong pitch for the Rockefeller-Bond
bipartisan bill to extend the FISA through the FISA Amendments Act of
2008. He thanked us and all the members of the committee for the
leadership and hard work, and he said:
. . . and I would emphasize ``over many months''--in
drafting and passing draft legislation that governs and
enables this community. Your bill--draft bill provides the
needed updates to the Foreign Intelligence Surveillance Act.
He also went on to warn against dismantling that bill. He said:
Over the past several weeks, proposals to modify your draft
bill have been discussed. At the request of members, the
attorney general and I have submitted a detail letter that
addresses each of those issues, and it will be delivered to
you this morning. I would ask members to consider the impacts
of such proposals on our ability to warn of threats to the
homeland security and on our interests abroad.
We have received that letter. We have quoted from that letter and
will continue to quote from that letter on amendments which have been
proposed that the intelligence community believes would hamstring their
efforts.
As a sidenote, we were able, working on a bipartisan basis, to
provide significant new protections for Americans at home and Americans
abroad who might be engaged in terrorist activities and are working for
foreign powers as agents or officers or employees. These threats from
American citizens are sometimes as deadly, as dangerous as threats from
terrorists abroad. We need to be able to listen in on them.
Finally, speaking about the civil liability protection for carriers
which we included, he said:
Well, I would say, in protecting the homeland it's
absolutely essential. In this--it's absolutely essential that
we have the support, willing support of communications
carriers. In this day and age, our ability to gain
intelligence on the plans, the plots of those who wish to
attack us is dependent upon us obtaining information relating
to cell phones, the Internet, e-mail, wire transfers, all of
these areas. My concern is that if we do not have this
immunity, we will not have that willing support of the
communications carriers.
That quote was from Robert Mueller, Director of the Federal Bureau of
Investigation, at a hearing.
General Hayden went on to say:
These are very fragile relationships. We lost industrial
cooperation, at CIA, with partners on the mere revelation of
the SWIFT program in public discourse. Not because they were
doing anything related to the program whatsoever but just the
fear that the vulnerability they would have to their smooth
functioning of their business had caused people, who are
otherwise patriotic and committed, to back away from their
totally lawful cooperation with our agency.
One other point. When there is talk about substituting the United
States as a party in litigation brought against carriers alleged to
have participated, we ought to take into account some very compelling
comments made yesterday by the distinguished deputy majority leader,
Senator Durbin of Illinois. He pointed out that the release of a
supposedly confidential letter from the Department of Justice to the
Treasury about the operation of one of the major exchanges in Chicago
had caused a $6 billion drop in the market value of that exchange. That
means that people holding stock, many of them through pension funds or
individual accounts, lost a large share of money.
As I pointed out yesterday, having the substitution of the Government
for carriers, while it may remove them from the possibility of
financial liability in a lawsuit, does not prevent significant damage
to their business relationships here and abroad. The hit on any
carriers sued under a substitution agreement, even though it is
supposed to be reviewed in classified session by the CIA--everybody
around here knows that if carriers are brought before the FISA Court,
somebody will be talking about it, it will become news. They will
suffer great harm to their business interests and potentially expose
their employees and facilities here and abroad to violent attacks by
terrorists or other radicals who wish to do them harm. As a result,
those carriers that have cooperated in the past or considered
cooperating in the past are going to be advised by their general
counsels that they cannot do so willingly because they would be
subjecting their employees and their shareholders to great loss. I
think this is unacceptable. This is why I believe we have a good FISA
Amendments Act before us, and we need to pass it.
We look forward to the debates today and Monday and voting on the
amendments and, I hope, passing the bill on Tuesday so the House will
have an opportunity to act. It is critical to the defense not only of
our interests abroad but for the protection of American citizens at
home that, with the protections we have added in the bill that came out
of the Senate Intelligence Committee, we also have the ability of the
intelligence community to collect vitally needed intelligence
information.
We have learned that tremendously valuable information has been
collected by high-valued detainees, less than 100 of them that the CIA
has captured. Less than a third of that 100 have been subjected to
enhanced interrogation techniques. Three of them, as General Hayden
outlined, were weatherboarded, and they provided in a cooperative
spirit the most important information. Beyond that, electronic
surveillance is the best weapon we have to defend ourselves, to defend
major population centers, tourist attractions, sporting events, and
outdoor events from a terrorist attack. I hope all Members will keep
that in mind as they consider the amendments which will be brought
before this body on Tuesday for a final vote.
Mr. President, I yield the floor, and I suggest the absence of a
quorum.
The ACTING PRESIDENT pro tempore. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCONNELL. 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.
[...]
Waterboarding
Mr. SESSIONS. Madam President, I would like to take a moment to try
to clarify an issue that has caused a lot of concern for years now. It
has now come to a conclusion, and I am glad it has. I am glad to learn
waterboarding has not been used but three times by our country and has
not been used in almost 5 years. From the reports and statements made
by Members of Congress and extreme groups around the world, one would
think we have had a systematic effort to waterboard people and
otherwise torture and abuse them. Only one prisoner has died since they
have been in U.S. custody since the beginning of the war on terror. We
treat them very well. I have been to Guantanamo Bay on more than one
occasion. I have seen how interviews are conducted. So have large
numbers of our body.
As I indicated in earlier remarks, we wish the world were safer than
it is. Unfortunately, it is not as safe as we would like. Those of us
sitting comfortably at home forget the real threats out there. We tend
to forget there are determined groups who want
[[Page S813]]
to attack the United States as they did on 9/11 and kill our people.
This is an unpleasant task. When confronted on the battlefield, in
Iraq, in Afghanistan, we shoot them and we kill them and we drop bombs
on them and we kill them because these are life-and-death matters that
Congress has authorized. I wish that were not necessary. I know it is a
failure of us in some form or fashion. But as a practical person, we
know no other alternative than to defend ourselves. We are required to
do that.
I was reading an article from the Mr. R. Emmett Tyrrell, Jr., in the
Washington Times today. He talks about what Admiral McConnell, the
Director of National Intelligence, said a few days ago in
hearings. Director McConnell said:
The number of terrorist attacks and deaths were greater
than in the past six years combined.
He was talking about the battle for Pakistan and its survival.
The article states:
Another [statement] from Mr. McConnell . . . is that al
Qaeda plans more attacks against the United States and was
working on a plan for attacking the White House as recently
as 2006. Homegrown al Qaeda cells here have been primitive,
but Mr. McConnell registered his concern that new, more
sophisticated cells might threaten us domestically in the
years ahead.
And that is a fair summary, I think, of Admiral McConnell's comments.
Since we have now openly talked about the waterboarding question, and
Members of Congress and the public have now gotten the information, I
think we need to make sure we know exactly how those three occurrences
developed.
The first thing we know is it worked. I hate to say, it worked. No.
2, the Agency--only the CIA used water-
boarding; never the U.S. military, never the Department of Defense; not
in Iraq, not in Afghanistan--it was never utilized by our military, but
the Central Intelligence Agency on three occasions since September 11.
As the article says, they utilized it only on those:
[T]error leaders who have posed the utmost threat to our
[national] security, Abd al-Rahim al-Nashiri, [who was the]
mastermind of [the] attack on our warship the USS Cole in a
neutral port.
We had hearings in the Armed Services Committee, of which I am a
member, about that dastardly attack. And I remember about a year after
the Cole was attacked--where we had 18 American sailors killed by this
vicious attack; and it could have been a lot more--the Navy
commissioned a ship down at Norfolk, VA; and as we walked out of the
ceremony, a young sailor hollered out--and it still makes my hair stand
up--``Remember the Cole.''
Well, we got the perpetrator, and justice was done.
Abu Zubaydah, [who was] the brains behind the thwarted
millennium attacks--
That we were able to block--
and Khalid Sheikh Mohammed, who directed September 11. . . .
The attacks on September 11. KSM, that is his name now for the
professionals, Khalid Sheikh Mohammed.
So I believe the Attorney General of the United States, after
researching this matter carefully, and after our intelligence agencies
gave it thoughtful review, concluded we do not need to have
waterboarding now, that these three instances were justified.
Attorney General Mukasey, a former Federal judge--approved
overwhelmingly by the Senate--was asked to make an opinion on
waterboarding. He said he believed those actions were justified under
those circumstances, and he would not say we would never ever do it
again in the future. He said circumstances would determine how you
handle those kinds of situations.
Let me note, again, for a lot of people, these are not honest and
legitimate soldiers of a nation state. The people who are subjected to
this procedure are persons who are unlawful combatants. They are
persons who do not fight according to the rules of war, and they do not
wear uniforms. They deliberately attack civilian personnel. They do it
through subterfuge and violence, and their goals are outside all rules
of warfare. Until some recent cases, they were clearly considered not
to be provided any protections under the Geneva Conventions.
So I will say, Madam President, we hate to talk about these things.
We wish we did not face the kind of threats from the diabolical
terrorists that we do. We wish we did not have to go to war and shoot
and kill many of them. But we, as a nation--the Congress; both
parties--have authorized that activity. We fund that activity. Our
soldiers are out there putting their lives on the line at this very
moment to execute that policy, placing themselves in harm's way.
I am glad the Attorney General has reviewed it carefully. I am glad
he is able to say waterboarding was utilized only three times, that it
had not been used in 5 years. But I am glad he also said he would not
say it would never be done again. This would be unwise advice to the
enemy we face.
I thank the Chair and yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. REID. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Cloture Motion
Mr. REID. Madam President, I send a cloture motion to the desk
pursuant to the order relative to S. 2248.
The PRESIDING OFFICER. The cloture motion having been presented
pursuant to rule XXII, the Chair directs the clerk to read the motion.
The bill clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on S. 2248, the
FISA bill.
Harry Reid, Charles E. Schumer, Sherrod Brown, Daniel K.
Akaka, Jeff Bingaman, Thomas R. Carper, Ken Salazar,
Sheldon Whitehouse, John D. Rockefeller IV, Richard
Durbin, Bill Nelson, Debbie Stabenow, Robert P. Casey,
Jr., E. Benjamin Nelson, Evan Bayh, Daniel K. Inouye.
Mr. REID. Madam President, I ask unanimous consent that
notwithstanding rule XXII, the cloture vote occur upon disposition of
the remaining amendments pursuant to the previous order and that the
mandatory quorum be waived.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
