[Congressional Record: February 12, 2008 (Senate)]
[Page S879]
FOREIGN INTELLIGENCE SURVEILLANCE ACT
Mr. McCONNELL. Mr. President, today the Senate will finish the
bipartisan Rockefeller-Bond bill. This bill is the product of months of
painstaking negotiations between Senate Republicans and Democrats and
benefitted from the participation of intelligence experts in the
executive branch.
The overwhelming bipartisan vote in the Intelligence Committee
reflected the care, concern, and good faith that went into crafting the
bill. The final vote was not 15 to 0, but it was 13 to 2, which around
here is pretty close.
The Rockefeller-Bond bill contained the two main ingredients that are
needed to sign this bill into law. It will allow intelligence
professionals to do their jobs, and it will not allow trial lawyers to
sue the telecommunications companies that may have participated and,
according to the intelligence, acted in good faith to help protect our
country.
A bill that does not satisfy these two requirements will not become
law, nor should it. And, in fact, Mr. President, I know the Senator
from Missouri, our ranking member, is going to make the point that all
of these amendments need to be defeated if, in fact, we are going to
get a signature on this bill. It will be the only way in the end to
protect our country.
Last week was a great example of what we can accomplish when we work
with each other instead of against each other. We were able to pass an
economic growth package on an overwhelming bipartisan basis which the
President will sign tomorrow.
We have another chance this week to put up a bipartisan win by
passing the Rockefeller-Bond bill, a bill that is critical to
protecting the homeland from attack and protecting our forces fighting
overseas.
I am confident that with the help of friends on the other side of the
aisle, we can work through the pending amendments, send it over to the
House, and then send it on to the President for his signature this
week.
____________________
[Congressional Record: February 12, 2008 (Senate)]
[Page S880]
FOREIGN INTELLIGENCE SURVEILLANCE ACT
Mr. REID. Mr. President, the order before the Senate allows me and
the Republican leader 10 minutes any time during this debate to make a
presentation. I will do that later. I do want to say, based on the
remarks of the distinguished Republican leader, I, too, appreciate the
work of Senator Rockefeller and Senator Bond, but I also appreciate the
work done by the Judiciary Committee and Senator Leahy. As a result of
that work, the bill has already been made better and, hopefully, we can
adopt some of these amendments today.
We, for example, have as a result of the work done by the Judiciary
Committee a compromise reached on a number of amendments that have made
this bill better, including a Feingold amendment providing Congress
with FISA Court documents that will facilitate congressional oversight
and enable Congress to better understand the court's interpretation of
the laws we passed; a Whitehouse amendment giving the FISA Court the
discretion to stay lower FISA Court decisions pending appeal rather
than requiring a stay; a Kennedy amendment providing that under the new
authority provided by this bill the Government may not intentionally
acquire communications when it knows ahead of time that the sender and
all intended recipients are in the United States.
The bill has been made better. The bill that Senator Rockefeller and
Senator Bond did is not a bill that is perfect in nature, and I hope
they will acknowledge that point. The bill has been made better as a
result of work done by the Judiciary Committee. We have members of the
Intelligence Committee who also serve on the Judiciary Committee. Two
who come to my mind are Senator Feinstein and Senator Whitehouse. They
have worked very hard in the Intelligence Committee and the Judiciary
Committee to improve this legislation.
We should understand where we are. We are now doing different
wiretaps, and I think the situation today that is so concerning to most
of us is the President has been advised by his lawyers that he does not
have to follow the law anyway. Whatever we do here, he has been told by
his lawyers that he need not follow the law. He can do whatever he
wants; he is the boss; he is someone who does not have to follow the
law, does not even have to give a signing statement saying he rejects
it. He can just go ahead and do it.
I do not think this should be a day of celebration. This should be a
day of concern for the American people. I am very happy we have been
able to improve the product that came out of the Intelligence
Committee. Hopefully, by the voting today we can improve it more.
____________________
[Congressional Record: February 12, 2008 (Senate)]
[Page S880-S891]
FISA AMENDMENTS ACT OF 2007
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 2248, which the clerk will
report.
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.
Mr. ROCKEFELLER. I say to the Presiding Officer, it is my
understanding that the first amendment is minimization compliance
review by Senator Whitehouse.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, first of all, we thank all our colleagues
for coming to this point where we can have votes and finally get this
bill out, which we started in December. It is a very important bill. We
have worked together on a bipartisan basis and resolved almost all
issues.
The amendment offered by our colleague from Rhode Island has been
modified in a way that I believe improves it, makes it effective, makes
it work for the intelligence community, and achieves the very important
goals that the Senator from Rhode Island has sought to achieve.
I ask that I be added as a cosponsor to this modified amendment. I
believe, Mr. President, we can accept it by voice vote.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I simply would also like to be added
as a cosponsor, and I congratulate Senator Whitehouse, Senator Bond,
and others for doing an outstanding piece of work in resolving the
differences on this extremely important enforcement mechanism.
Amendment No. 3920, as Modified
The ACTING PRESIDENT pro tempore. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, I have at the desk a modification to
amendment No. 3920.
[[Page S881]]
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered. The amendment is so modified.
The amendment, as modified, is as follows:
On page 69, after line 23, add the following:
(d) Authority of Foreign Intelligence Surveillance Court.--
Section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803), as amended by this Act, is amended by
adding at the end the following:
``(h)(1) Nothing in this Act shall be considered to reduce
or contravene the inherent authority of the Foreign
Intelligence Surveillance Court to determine, or enforce,
compliance with an order or a rule of such Court or with a
procedure approved by such Court.
``(2) In this subsection, the terms `Foreign Intelligence
Surveillance Court' and `Court' mean the court established by
subsection (a).''.
Mr. WHITEHOUSE. Mr. President, much of the FISA battle in which we
have been engaged over the weeks that it has taken to resolve this
issue has been over trying to do two things: one, to fit this program
within the separation of powers principles of the American system of
government and, two, to make the rights of Americans consistent with
what they enjoy stateside in law enforcement investigations.
This amendment is a valuable step in both of those directions, and it
solves the minimization issue that had been in dispute.
I appreciate very much the roles of Chairman Rockefeller, Vice
Chairman Bond, FBI Director Mueller, and DNI counsel Powell in getting
us to a voice vote on this bipartisan amendment.
Mr. President, I ask unanimous consent that amendment No. 3920, as
modified, be adopted by voice vote.
The ACTING PRESIDENT pro tempore. Without objection it is so ordered.
If there is no further debate, the question is on agreeing to amendment
No. 3920, as modified.
The amendment (No. 3920), as modified, was agreed to.
Mr. ROCKEFELLER. I move to reconsider the vote.
Mr. BOND. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 3910
The ACTING PRESIDENT pro tempore. The question is now on amendment
No. 3910 offered by the Senator from California.
The Senator from California.
Mrs. FEINSTEIN. Mr. President, it is my understanding that there is 2
minutes evenly divided; is that correct?
The ACTING PRESIDENT pro tempore. The Senator is correct.
Mrs. FEINSTEIN. Mr. President, the purpose of this amendment is to
strengthen the legal requirement that FISA is the exclusive authority
for the electronic surveillance of Americans. When FISA was written in
1978, it followed 30 years of warrantless surveillance of
communications and telegrams of hundreds of thousands of Americans
sending messages outside the country. This would stress that FISA is
the legal way for the collection of electronic surveillance against
Americans.
In 2001, the administration decided they would not take the Terrorist
Surveillance Program to the FISA Court, that they would perform this
program outside of FISA, and it took until January of 2007 to bring
this within the confines of FISA where it is to this day.
I think we need to make a strong statement in this bill that FISA is
the exclusive authority for the electronic surveillance of all
Americans, and this amendment aims to do that. It provides penalties
for moving outside of the law, and I believe it would strengthen the
opportunity to prevent the Chief Executive, either now or in the
future, from moving outside of this law.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, the bill before us, S. 2248, already has an
exclusive means provision that simply restates the congressional intent
back in 1978 when FISA was enacted to place the President at his lowest
ebb of authority under the Constitution, which gives him power over
foreign intelligence. Unfortunately, this amendment is a significant
change of the bipartisan provision in the Intelligence Committee bill,
and therefore I would urge my colleagues to oppose it.
During the next attack on our country or in the face of an imminent
threat, Congress may not be in a position to legislate an
authorization. Yet the bottom line is, we just don't know what tomorrow
will bring. This provision would raise unnecessary legal concerns that
might impede the effective action of our intelligence community to
protect this country.
Further, because this amendment does not address warrantless
surveillance in times of war and national emergency following an attack
on our country, it does not provide enough flexibility for intelligence
collectors. I am concerned this will cause operational problems.
Mr. President, I urge the defeat of this amendment.
The ACTING PRESIDENT pro tempore. The question is on agreeing to the
amendment. The yeas and nays have been ordered.
The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent to speak on
this amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ROCKEFELLER. Mr. President, I strongly support this amendment. I
think it has very good delineation between how decisions are made. The
FISA Court needs to be a part of this. I urge my colleagues to support
the amendment.
I thank the senior Senator from California for offering this
amendment, and for all of her work on ensuring that we have an
appropriately drafted exclusivity provision. Senator Feinstein's
amendment is critical to both our work on this bill and to our
oversight of the intelligence community.
To understand the importance of the Feinstein amendment, we must look
at both existing statutes and recent events.
There is already an exclusivity provision in the United States Code.
It was enacted as part of the original Foreign Intelligence
Surveillance Act in 1978 and placed, where it exists now, in title 18,
the criminal law title of the United States Code.
That provision makes the Foreign Intelligence Surveillance Act and
certain criminal wiretapping provisions the ``exclusive means by which
electronic surveillance . . . and the interception of domestic wire,
oral and electronic communications may be conducted.'' Although the
intent of Congress is clear from this language, recent history raises
concerns about the adequacy of this provision.
In December of 2005, the American people and most of Congress learned
for the first time that, shortly after the terrorist attacks of
September 11, 2007, the President had authorized the National Security
Agency to conduct certain surveillance activities within the United
States.
In publicly justifying the legality of this program, the White House
asserted that Congress had authorized the President's program by
enacting an authorization for use of military force after September 11.
The authorization passed on September 14, 2001, did not mention
electronic surveillance. Nor did it mention any domestic intelligence
activities. Given the nature of both the authorization and the time in
which it was passed, it is very unlikely that it occurred to anyone in
Congress that the President might use this authorization to justify his
position that the existing statute making FISA the exclusive means for
conducting electronic surveillance no longer applied.
I have expressed my dismay in the past about the legal arguments that
the President used to justify the surveillance program. We are still
working through the many problems caused by the President's decision to
go forward without input from Congress or the courts.
But no matter what the President should have done at the time,
Congress now has an obligation to act to prevent this misuse of
legislation. Having finally made the right decision in early 2007 to
bring his entire program under the FISA Court, the President is no
longer using the 2001 Authorization for the Use of military force as a
justification to disregard FISA. But we must ensure that neither this
President nor a future one resurrects the discredited argument that the
2001 authorization for the use of military force is a blank check for
such lawlessness.
[[Page S882]]
Section 102 of the Intelligence Committee bill prevents that abuse.
Section 102 enacts an exclusivity provision as a new section 112 of
FISA, and lists all statutes now in effect that constitute authority
for electronic surveillance. This list is a clear statement of
congressional intent: Congress did not intend any other presently-
existing statutes to constitute an exception to FISA.
Conspicuously absent from the exclusive list is the 2001
authorization for the use of military force. The omission of the 2001
authorization from the complete list that will now be enacted in 2008
is a conclusive statement that the 2001 authorization may never again
be used to circumvent FISA.
Senator Feinstein's amendment takes exclusivity one important step
further. It is designed to ensure that no future President interprets a
statute that does not explicitly mention electronic surveillance as an
exception to the FISA exclusivity requirement. This would be an
absolutely incorrect interpretation of existing law. Senator
Feinstein's amendment ensures that no President will again make this
mistake.
Senator Feinstein's amendment addresses the possible impact of future
statutes by adding language to the exclusivity section that states that
only an express statutory authorization for electronic surveillance
will constitute an additional exclusive means for electronic
surveillance.
By requiring ``express statutory authorization,'' Congress
anticipates that a statute will only constitute an exception to FISA if
it explicitly discusses electronic surveillance. Only those statutes
listed in the FISA exclusivity section of the Intelligence Committee
bill currently meet that standard.
The amendment therefore ensures that general statutes enacted in the
future do not become the basis for exceptions to the FISA exclusivity
provision. It also applies criminal and civil penalties for any
electronic surveillance done outside of the list of authorized
statutes.
The Feinstein amendment being offered today also resolves the
operational concerns raised by the Director of National Intelligence
about the exclusivity provision in the Judiciary Committee's amendment
to the bill. Senator Feinstein's amendment does not include the
undefined term ``communications information'' and therefore does not
bar the acquisition of information that is currently authorized under
other statutes.
Existing statutes as well as the current bill provide the
intelligence community with mechanisms to obtain the intelligence the
country needs in a legal manner, with the oversight of the courts.
There is no need for this President, or any future President, to set
aside the lawful, well-overseen procedures of FISA in favor of a secret
intelligence program.
Both the Intelligence and Judiciary Committees have done a
significant amount of work, on a bipartisan basis, to draft a bill that
allows the collection of needed intelligence while still protecting the
civil liberties of U.S. persons. Senator Feinstein's amendment helps to
make sure that this work will not simply be ignored by this President
or any future President.
Mr. BOND. Mr. President, I would note that the Intelligence Committee
debated this and accepted a return to the original FISA exclusive means
provision, which I think we should maintain, and I urge opposition.
S. 2248 already has an exclusive means provision that is identical to
the first part of this amendment. That provision simply restates
Congress's intent back in 1978 when FISA was enacted to place the
President at his lowest ebb of authority in conducting warrantless
foreign intelligence surveillance.
The current exclusive mean provision in S. 2248 was acceptable to all
sides because it maintains the status quo with respect to the dispute
over the President's constitutional authority to authorize warrantless
surveillance.
Unfortunately, this amendment is a significant expansion of the
bipartisan provision in the Intelligence Committee's bill.
It goes further by stating that only an express statutory
authorization for electronic surveillance, other than FISA or the
criminal wiretap statutes, shall constitute additional exclusive means.
This attempts to prohibit the President's exercise of his judicially
recognized artic1e II authority to issue warrantless electronic
surveillance directives.
It also would require that future authorizations for the use of
military force, AUMFs, expressly state that they authorize the use of
additional electronic surveillance.
I am concerned that this amendment would tie the President's hands
following a national emergency or imminent threat of attack on our
country--and prevent actions or intelligence collection that may be
necessary for our safety and survival.
While FISA currently has provisions that allow the President to
conduct electronic surveillance, physical searches, or install pen
register/trap and trace devices for 15 days following a declaration of
war, these authorities are simply insufficient against the current
terrorist threats our country faces.
Let's think this through for a minute. During the next attack on our
country, or in the face of an imminent threat, the Congress may not be
in a position to legislate an express authorization of additional
means. We may not be in a position to formally declare war against an
unknown enemy.
What if there is intelligence information about an imminent threat of
attack, but Congress is in a lengthy recess, over a holiday? What if
there are simultaneous terrorist attacks across the country, impeding
air travel so that Members cannot return to Washington, DC?
The bottom line is, we just don't know what tomorrow will bring. Yet
this provision would raise unnecessary legal concerns that might impede
effective action by the executive branch to protect this country.
I have the utmost respect for Senator Feinstein. She has played a key
role in this FISA modernization process.
While our views on the President's constitutional authority may
differ, she did convince me that a bipartisan FISA bill should restate
the exclusive means concept in the originally enacted FISA statute.
And over the past several weeks, Senator Feinstein and I tried to
come up with a further compromise, one that would expand this simple
restatement but would also allow the President to act in the event of a
national emergency, or following an AUMF or declaration of war.
Unfortunately, we could not reach an agreement. I believe that if we
are going to declare that the President should follow the current FISA
framework, then we need to make sure that that framework is flexible
enough to address the grave threats of terrorism that threaten our
country--and that means giving the President the ability to conduct
warrantless electronic surveillance, physical searches, or installing
pen register/trap and trace devices, for a reasonable period of time.
This amendment does not provide this flexibility.
I have other concerns with this amendment. It would make members of
the intelligence community who conduct electronic surveillance at the
direction of the President subject to the FISA criminal penalty
provisions of a $10,000 fine and imprisonment for not more than 5
years. Also, it is likely these criminal penalties would apply to any
service provider who assisted the government in conducting such
electronic surveillance.
I don't care what the skeptics and critics have said about the
President's Terrorist Surveillance Program; the Constitution trumps the
FISA statute.
If a government employee--or a provider--acts under the color of the
President's lawful exercise of his constitutional authority, that
employee should not be subject to criminal penalty.
In my opinion, the current restatement of exclusive means is fair and
keeps the playing field level.
Ultimately, the Supreme Court will decide whether Congress has the
authority to limit the President's authority to intercept enemy
communications.
Until then, it is my hope that we don't try to tilt the balance in a
way that we may someday come to regret.
I urge my colleagues to vote against this exclusive means amendment.
The ACTING PRESIDENT pro tempore. The question is on agreeing to
[[Page S883]]
amendment No. 3910. The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``nay.''
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 57, nays 41, as follows:
[Rollcall Vote No. 13 Leg.]
YEAS--57
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Carper
Casey
Collins
Conrad
Craig
Dodd
Dorgan
Durbin
Feingold
Feinstein
Hagel
Harkin
Inouye
Johnson
Kennedy
Kerry
Klobuchar
Kohl
Landrieu
Lautenberg
Leahy
Levin
Lincoln
McCaskill
Menendez
Mikulski
Murkowski
Murray
Nelson (FL)
Obama
Pryor
Reed
Reid
Rockefeller
Salazar
Sanders
Schumer
Smith
Snowe
Specter
Stabenow
Sununu
Tester
Voinovich
Webb
Whitehouse
Wyden
NAYS--41
Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Chambliss
Coburn
Cochran
Coleman
Corker
Cornyn
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Grassley
Gregg
Hatch
Hutchison
Inhofe
Isakson
Kyl
Lieberman
Lugar
Martinez
McCain
McConnell
Nelson (NE)
Roberts
Sessions
Shelby
Stevens
Thune
Vitter
Warner
Wicker
NOT VOTING--2
Clinton
Graham
The ACTING PRESIDENT pro tempore. Under the previous order requiring
60 votes for the adoption of this amendment, the amendment is
withdrawn.
Amendment No. 3979
There will now be 2 minutes of debate equally divided on amendment
No. 3979 offered by the Senator from Wisconsin, Mr. Feingold.
Mr. FEINGOLD. Mr. President, the Feingold-Webb-Tester amendment lets
the Government get the information it needs about terrorists and about
purely foreign communications, while providing additional checks and
balances for communications between people in the United States and
their overseas family members, friends, and business colleagues.
It has the support of nine cosponsors. All this amendment does is
require the Government to take extra steps to protect the privacy of
Americans on U.S. soil when it knows it has collected their
communications.
This amendment in no way hampers our fight against al-Qaida and its
affiliates. This is not about whether we will be effective in
combatting terrorism. This is about whether Americans at home deserve
more privacy protections than foreigners overseas.
This is about separation of power, whether anyone outside the
executive branch will oversee what the Government is doing with all the
communications of Americans it collects inside the United States. I
urge my colleagues to support the amendment.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, the purpose of this bill is to make sure we
are able to get information when we target a foreign terrorist
overseas.
This applies a different standard to someone in the United States who
may be picked up on one of those calls than we apply within our own
country. If the FBI gets a warrant to listen in on a drug dealer and
that drug dealer has lots of conversations, if the drug dealer is
talking about a criminal operation, then the FBI acts on it. If it is
innocent, the FBI, the interceptors minimize or suppress that evidence,
they do not sequester it, they do not have to go through the hoops that
are required for a recipient of a telephone call from a foreign
terrorist overseas.
There is no reason why, when we have no challenges and no question
that minimization is adequate to protect innocent Americans, that they
need a higher level of protection when they are talking to a foreign
terrorist than when they are talking to a U.S. drug dealer.
I urge the defeat of this amendment.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent for 5
minutes.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. ROCKEFELLER. Mr. President, I strongly oppose this amendment.
This amendment would prohibit the Government from acquiring any
communication under title VII of the bill if the Government knows
before or at the time of acquisition that the communication is to or
from a person reasonably believed to be located in the United States,
unless the Government follows the sequestration procedures set forth in
the legislation.
I see a number of problems with this amendment and I strongly oppose
it.
I am afraid that the practical effect of this amendment would be to
restrict the scope of the collection authority under the bill to
international terrorism. Under the terms of this amendment, no other
important foreign policy or national security target could be pursued
unless the Government goes through a process that appears to be
basically unworkable.
Neither the Intelligence Committee nor the Judiciary Committee
limited the scope of the authority in this bill to international
terrorism. Both committees anticipated that the flexibility provided by
this bill could be used against the gamut of foreign targets overseas
with respect to proliferation, weapons development, the clandestine
intelligence activities of our enemies, and other priorities. The full
Senate should not limit the scope of this bill to one area of foreign
intelligence.
A second problem with this amendment is the new, cumbersome
procedures it would impose involving the sequestration of information
if the communication is to or from a person in the United States. The
amendment seems to require that the Attorney General must make an
application to the FISA Court to have access to this information for
more than 7 days, even if the communication, for instance, concerns
international terrorist activities directed against the United States.
While I share the Senator's goal of protecting the privacy interests
of Americans, I am afraid this amendment is unworkable.
It bears repeating that what we are trying to do in S. 2248 is
modernize the Foreign Intelligence Surveillance Act so that FISA Court
orders are not required when the Government is targeting non-U.S.
persons overseas to collect foreign intelligence information. And we
are trying to do this in a way that protects the privacy interests of
U.S. persons.
We thus have included in S. 2248 numerous protections for U.S.
persons--both when they are the specific targets of Government
surveillance and when their communications are intercepted as the
incidental result of the Government acquiring the communications of a
foreign target.
The Feingold sequestration amendment does not achieve the appropriate
balance of privacy and national security. It appears to me that
requirements already in S. 2248, including the requirement that
minimization procedures for this collection activity be approved by the
FISA Court, represent a much better approach for balancing the national
security and the privacy interests of U.S. persons.
I urge the amendment be defeated.
The ACTING PRESIDENT pro tempore. The question is on agreeing to the
amendment.
Mr. FEINGOLD. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second?
There appears to be a sufficient second. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``nay.''
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 35, nays 63, as follows:
[[Page S884]]
[Rollcall Vote No. 14 Leg.]
YEAS--35
Akaka
Baucus
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Dodd
Dorgan
Durbin
Feingold
Harkin
Kennedy
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
McCaskill
Menendez
Murray
Obama
Reed
Reid
Salazar
Sanders
Schumer
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--63
Alexander
Allard
Barrasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Feinstein
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kyl
Landrieu
Levin
Lieberman
Lincoln
Lugar
Martinez
McCain
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NOT VOTING--2
Clinton
Graham
The amendment (No. 3979) was rejected.
Mr. BOND. I move to reconsider the vote.
Mr. LEAHY. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 3907
The ACTING PRESIDENT pro tempore. The question is on agreeing to
amendment No. 3907 offered by the Senator from Connecticut, Mr. Dodd.
There are 2 minutes of debate time equally divided, and the time on the
remaining amendments will be strictly enforced.
The Senator from Connecticut.
Mr. DODD. Mr. President, let me, first of all, thank my colleague
from Wisconsin, Senator Feingold, for his cosponsorship of this
amendment, along with a number of other Members of this body who have
joined us in this effort.
I thank the chairman and ranking member. My colleagues should know,
initially the administration sought to grant immunity to all
participants in this telecommunications surveillance program. The
chairman and ranking member disagreed with that. However, they have
provided retroactive immunity to some 16 phone companies. One of the
phone companies refused, of course, to comply with this 5-year
surveillance program that was granted without a warrant, without a
court order.
I believe it is dangerous in setting a precedent for us today to
grant that retroactive immunity without insisting the courts--as they
are designed to do--should determine the legality or illegality of this
program.
There are four committees of the U.S. Congress that have considered
this issue. Three of the committees have rejected retroactive immunity.
Only the Intelligence Committee of this body has decided to include it.
I believe we ought to strike that provision and allow the court to do
its job. That is what this amendment does, and I urge its adoption.
The ACTING PRESIDENT pro tempore. Who yields time?
The Senator from Missouri.
Mr. BOND. Mr. President, this carrier liability provision is an
essential part of this bill. If we permit lawsuits to go ahead against
carriers alleged to have participated in the program, there will be
more disclosures in discoveries and pleadings of the means of
collecting information, disclosing our most vital methods of collecting
information.
Secondly, if we permit the carriers that may or may not have
participated to be sued in court, then the most important partners the
Government has--the private sector--will be discouraged from assisting
us in the future.
The Intelligence Committee--the one committee that has looked at
this--reviewed it and said these companies acted in good faith and,
therefore, we should give them retroactive immunity.
I yield the remainder of my time to the distinguished chairman.
The ACTING PRESIDENT pro tempore. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I strongly oppose this amendment. It
is, of course, the whole shooting match. Substitution was brought up in
the Judiciary Committee, and it was defeated. This, I believe, is the
right way to go for the security of the Nation.
Mr. President, Senators Dodd and Feingold have offered an amendment
to strike title II of the Intelligence Committee bill.
Title II addresses, in the narrowest way possible, a number of
different underlying issues related to the past and future cooperation
of providers. Any suggestion that it deals only with liability
protection for providers related to the President's program fails to
consider the title of the bill as a whole.
Unlike the Government's initial immunity proposals, title II does not
try to address all of the different kinds of problems in one sweeping
immunity provision that might provide immunity in situations where it
is not deserved. Instead, it addresses each problem individually.
Let's look at the first problem. Under existing law, providers are
entitled to protection from suit if they act pursuant to a FISA court
order or if they receive a particular certification from the Attorney
General. Senators Dodd and Feingold point to this existing immunity
provision-- which may be based solely on the certification of the
Attorney General--to suggest that no further immunity is needed. But
this suggestion ignores the situation in the current lawsuits.
The Government has not allowed the providers who have been sued to
publicly disclose whether or not they assisted the Government.
Providers, therefore, cannot reveal whether they are already entitled
to immunity, or even whether they declined to cooperate with the
intelligence community.
In other words, even those providers who were not involved in the
President's program or who acted only pursuant to a valid court order
cannot extricate themselves from these lawsuits.
Section 203 of the Intelligence Committee bill, therefore, creates a
mechanism within FISA that allows courts to review whether providers
should be entitled to immunity under existing law, without revealing
whether or not the provider assisted the intelligence community. The
Dodd-Feingold amendment to strike title II strikes this provision,
which protects those providers who indisputably complied with existing
law.
There is a second problem that has not been widely discussed.
Providers are currently subject to investigations by State public
utilities commissions, which seek information about the relationship
between the providers and Federal Government.
These State investigations essentially seek to force disclosure of
classified information about the nature and extent of the information
obtained by the intelligence community from communication providers.
This inquiry into the conduct of the Federal Government is not an
appropriate area for State regulation.
Section 204 of the Intelligence Committee bill, therefore, creates a
new section of FISA that preempts State investigations that seek to
force disclosure of classified information about the conduct of the
Federal intelligence relationship between the provider and the
intelligence community.
Finally, section 202 provides retrospective immunity for the
participation of telecommunication companies in the President's
warrantless surveillance program. We need to be very clear on the
parameters of this section. It does not simply clean the slate for the
actions of communications providers in the aftermath of 9/11.
In order for a provider to obtain liability protection, the Attorney
General must certify that a company's actions were based on written
assurances of legality, and were related to a communications
intelligence activity authorized in the relevant time period.
Because these certifications require the Attorney General to have
determined that legal requirements have been met and that the program
was designed to detect or prevent a terrorist attack, an area where
assistance would clearly be required, they parallel existing statutory
requirements for immunity. Before immunity can be granted, the bill
also requires the court to conduct a case-by-case review to ensure that
the Attorney General did not abuse his discretion.
[[Page S885]]
It is important to understand why the Intelligence Committee
included this provision in our bill. After hearing from witnesses and
reviewing documents, the committee concluded that the providers who
assisted the Government acted in good faith, with a desire to help the
country prevent another terrorist attack like those committed on
September 11, 2001.
Even more importantly, however, the committee recognized that,
because of the ongoing lawsuits, providers have become increasingly
reluctant to assist the Government in the future. Given the degree to
which our law enforcement agencies and intelligence community need the
cooperation of the private sector to obtain intelligence, this was
simply an unacceptable outcome.
Senators Dodd and Feingold have suggested that including the
provision on liability protection as part of the bill is a sign of
support for the President's program. It is not. It is simply a
mechanism to ensure that accountability for the President's program
lies with those who are truly responsible for it: The Government
officials who represented to these companies that their actions were in
accordance with the law. And it is a way to ensure that the
intelligence community obtains the assistance it needs from the private
sector to keep us safe.
The question of whether the President's warrantless surveillance
program was legal, or whether it violated constitutional rights, can
and must be answered. Likewise, if administration officials improperly
violated the privacy of innocent U.S. persons by conducting this
warrantless surveillance, they should be held accountable.
But suing private companies who may have cooperated with the
Government is neither an appropriate accountability mechanism nor the
best way to obtain answers to questions about the legality of the
program, nor is it the appropriate way to encourage public disclosure
of information about the program.
The Intelligence Committee's bill does not prevent Congress from
conducting its own oversight of these issues, or even from creating
alternative mechanisms to seek those answers. It also allows suits
against the Government to go forward.
I encourage my colleagues to come up with appropriate alternatives
for review of the President's program; alternatives that will ensure
both that the story of the President's program is made available to the
public in a manner consistent with the protection of national security
information and that Government officials are held accountable for any
wrongdoing in which they may have been involved.
What we must not do, however, is to make companies that cooperated
with the Government in good faith bear the brunt of our anger towards
the President and other Government officials about the warrantless
surveillance program; our intelligence community's future relationship
with the private sector is simply too important.
Protection from liability is simply a way to ensure that the next
President has the cooperation of these companies both to obtain
intelligence to protect the country and to protect the privacy
interests of U.S. persons.
I, therefore, urge you to oppose the Dodd-Feingold amendment.
The ACTING PRESIDENT pro tempore. The question is on agreeing to the
amendment.
Mr. DODD. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second? There
is a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``nay.''
The ACTING PRESIDENT pro tempore. Are there any other Senators in the
Chamber desiring to vote?
The result was announced--yeas 31, nays 67, as follows:
[Rollcall Vote No. 15 Leg.]
YEAS--31
Akaka
Baucus
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Dodd
Dorgan
Durbin
Feingold
Harkin
Kennedy
Kerry
Klobuchar
Lautenberg
Leahy
Levin
Menendez
Murray
Obama
Reed
Reid
Sanders
Schumer
Tester
Whitehouse
Wyden
NAYS--67
Alexander
Allard
Barrasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Feinstein
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kohl
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCain
McCaskill
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stabenow
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Wicker
NOT VOTING--2
Clinton
Graham
The amendment (No. 3907) was rejected.
Mr. ROCKEFELLER. Mr. President, I move to reconsider the vote, and I
move to lay that motion on the table.
The motion to table was agreed to.
Amendment No. 3912
The ACTING PRESIDENT pro tempore. The question is on agreeing to
amendment No. 3912, offered by Mr. Feingold of Wisconsin. There are 2
minutes of debate evenly divided.
The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, this amendment was approved by the
Senate Judiciary Committee. It ensures that in implementing the new
authorities provided in the bill, the Government is acquiring the
communications of targets from whom it seeks to obtain foreign
intelligence information and that it is not indiscriminately collecting
all communications between the United States and overseas.
This amendment is necessary because of the vast and overbroad
authorities provided by the PAA in this bill. In public testimony, the
DNI stated that the PAA could authorize this type of bulk collection
and could cover every communication between Americans inside the United
States, in Europe, in South America, or the entire world. He also said
that the Government is not actually engaging in this type of broad bulk
collection but that it would be ``desirable.''
This amendment would not impede in any way collection in support of
military operations, as the opponents continue to falsely assert. This
extremely modest amendment would, however, oppose a massive bulk
collection dragnet, which Chairman Rockefeller has even acknowledged
would violate the Constitution.
I urge support for the amendment.
Mr. ROCKEFELLER. Mr. President, I oppose this amendment.
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 his 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 that I must oppose this amendment. I do not believe
it is necessary. I do believe as drafted the amendment will interfere
with legitimate intelligence operations that protect the national
security and 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.
[[Page S886]]
Let us review the reasons why the amendment is unnecessary: first,
bulk collection resulting in a dragnet of all of the international
communications of U.S. persons would probably be unreasonable of the
fourth amendment. No bill passed by the Senate may authorize what the
fourth amendment 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 the fourth amendment.
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 in
supervising the acquisition activities of the Government. The bill
requires Court approval of minimization procedures that protect U.S.
person information. It maintains the prior requirement of Court
approval of targeting procedures.
In the unlikely event that the FISA Court would give its approval to
targeting procedures and minimization procedures that allowed the
Government to engage in unconstitutional bulk collection, the committee
bill also strengthens oversight mechanisms in the executive and
legislative branches. These mechanisms are intended to ensure such
activity is detected and prevented.
The sponsor of the amendment says that 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 bill 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 the amendment and urge it be rejected.
The ACTING PRESIDENT pro tempore. The Senator from Missouri is
recognized.
Mr. BOND. Mr. President, there is a clear delineation in this bill.
We permit targeting of foreign terrorists overseas, or Americans, with
a court order. This doesn't permit listening in on bulk collections of
communications involving innocent Americans. The only American who is
going to be listened in on is one calling to or receiving a call from a
terrorist.
I urge defeat of this amendment.
The ACTING PRESIDENT pro tempore. The question is on agreeing to
amendment No. 3912.
Mr. FEINGOLD. Mr. President, I ask for the yeas and nays.
The ACTING PRESIDENT pro tempore. Is there a sufficient second? There
is a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN, I announce that the Senator from New York (Mrs. Clinton)
is necessarily absent.
Mr. KYL. The following Senators are necessarily absent: the Senator
from South Carolina (Mr. Graham) and the Senator from Idaho (Mr.
Craig).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``nay.''
The PRESIDING OFFICER (Mr. Casey). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 37, nays 60, as follows:
[Rollcall Vote No. 16 Leg.]
YEAS--37
Akaka
Baucus
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Conrad
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Kennedy
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
McCaskill
Menendez
Murray
Obama
Reed
Reid
Salazar
Sanders
Schumer
Stabenow
Tester
Whitehouse
Wyden
NAYS--60
Alexander
Allard
Barrasso
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCain
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Wicker
NOT VOTING--3
Clinton
Craig
Graham
The amendment (No. 3912) was rejected.
Mr. BOND. I move to reconsider the vote.
Mr. ROCKEFELLER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 3938
The PRESIDING OFFICER. The question is on agreeing to amendment No.
3938 offered by the Senator from Missouri.
Mr. BOND. Mr. President, with the distinguished chairman of the
committee, we offer this amendment responding to a request made by the
Director of National Intelligence when he sent up his recommendations
to us last April. He and the Attorney General strongly support this
amendment because it adds proliferators of weapons of mass destruction
to the definition in FISA of agent of a foreign power, foreign
intelligence information, use of information, and physical searches.
This amendment applies only to non-U.S. persons.
Making these definitional changes will allow the Government to target
for surveillance those who seek to spread this dangerous technology and
will enable the intelligence community to share information with other
agencies. It remains a central concern for our national security,
whether done by terrorists, criminals or other nations.
I believe we can accept this amendment on a voice vote. I turn to my
distinguished chairman for his comments.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I support this amendment.
It closes a gap in the Foreign Intelligence Surveillance Act. The
amendment expands the definition of certain key terms in the law in
order to enhance the Government's ability to obtain FISA coverage of
individuals involved in the international proliferation of weapons of
mass destruction.
Although the international proliferation of WMD is one of the most
serious threats facing the nation, the Government cannot now get a FISA
Court order for individuals believed to be engaged in international
proliferation of weapons of mass destruction unless the Government can
also show a close link between the trafficker and a foreign Government
or an international terrorist organization.
Too often, this connection only becomes clear at the completion of
the target's proliferation activity. With this amendment, the
Government will be able to conduct electronic surveillance and physical
searches, with a FISA Court order, at a much earlier stage in an
individual's proliferation activities.
It should be understood that this amendment is intended to broaden
FISA coverage only in those instances in which the individual is
involved in international proliferation activities. The amendment is
intended to cover those who are engaged in activities involving
proliferation of weapons of mass destruction, which include under the
terms of the amendment biological, chemical and radiological weapons
and destructive devices that are intended to or that actually do have a
capability to cause death or serious bodily injury to a significant
number of people.
This amendment will enhance our efforts to acquire foreign
intelligence information to detect and disrupt the international
proliferation of weapons of mass destruction.
The vice chairman is to be applauded for addressing this issue and I
urge passage.
Mr. FEINGOLD. Mr. President, I must oppose Bond amendment No. 3938. I
do not object to expanding FISA to cover dangerous individuals involved
in the international proliferation of weapons of mass destruction,
which is the primary goal of this amendment.
But this amendment is drafted in such a way that its effect would be
[[Page S887]]
much broader and could result in wiretaps issued by the secret FISA
Court being directed at U.S. companies and U.S. universities that are
engaged in perfectly legal research efforts or that are legally and
legitimately working with materials that have multiple purposes and
that aren't intended to be used for weaponry at all.
In fact, the American Library Association and the Association of
Research Libraries have expressed serious concern about this amendment.
Here is what they said: ``While we can appreciate the concerns for
those wanting FISA to address the issues of international proliferation
of WMDs, the language appears to also expose to secret wiretaps those
U.S. academic researchers, universities and companies doing legal
research into conventional and chemical/biological weapons.'' Mr.
President, that is simply not acceptable.
Let me be clear: This amendment expands the core provisions of FISA
that authorize wiretaps and secret searches of the homes and offices of
people inside the United States. This is not about extending the new
authorities provided in the Protect America Act and reauthorized by the
Intelligence Committee bill.
It is one thing to permit secret court-ordered foreign intelligence
wiretaps of people in this country who are intentionally engaged in the
international proliferation of WMD. But because of the way this
amendment is drafted, it would go far beyond just authorizing wiretaps
for these types of dangerous criminals.
The biggest problem with the amendment is that it does not require
that the people being wiretapped be involved in any criminal activity.
This means that companies and individuals engaged in perfectly legal
and legitimate biological, chemical, nuclear or other research could be
wiretapped under this provision.
I don't understand this. Under FISA today, while foreign government
officials can be surveilled to gain foreign intelligence even if they
are not breaking the law, foreign terrorist suspects not associated
with a government who are in the United States can only be wiretapped
if they are involved in criminal activities. That requirement helps
ensure that innocent people engaged in, say, legal protest activities
aren't subject to FISA. And I know of no complaints about that
requirement.
This amendment, on the other hand, doesn't require any suspicion of
criminal wrongdoing. It does not even require that the target know that
they might be contributing to proliferation. Worse yet, it does not
even define international proliferation. So how can we know what
activity might trigger the use of this most intrusive of investigation
techniques against an individual in the United States? What does
international proliferation mean for purposes of this authority?
I certainly don't know the answer to that, and there is nothing in
this amendment to answer it. And without a requirement that the
proliferation must be illegal under U.S. law, I am seriously concerned
that this could cover entities doing perfectly legal, academic,
chemical, biological or nuclear research, or even research on
conventional weapons like grenades and bombs. It could also cover
legitimate companies manufacturing dual-purpose goods, component parts
or precursors that could be used for weapons if they fell into the
wrong hands.
We can easily fix this problem with the amendment. It would be quite
simple to add language virtually identical to that already included in
FISA with respect to international terrorism, simply stating that
international proliferation of WMD only covers activities that violate
U.S. criminal laws or would be criminal if committed within U.S.
jurisdiction. I even proposed language to this effect to the Senator
from Missouri, hoping that we could work out our differences on this
amendment and not require the full Senate to vote on it. But my modest
proposal was rejected, for reasons I fail to understand. What I do
understand is that if the proponents of this amendment refuse to
include language limiting it to people committing crimes, that makes me
even more concerned about what is intended and how this is going to be
used. There are other changes, as well, that could bring the scope of
the amendment into line with the justification for it, but none of my
suggestions were accepted.
Some may argue that we should not worry about this expansion of FISA
because it only applies to foreigners visiting the United States,
sometimes referred to as ``non-U.S. persons.'' But on the face of the
amendment, that is not at all clear. This is because the amendment
expands the definition of ``foreign power'' under FISA to cover any
entity involved in international proliferation of WMD, regardless of
whether it is incorporated in the United States or how many Americans
work there. And any foreign power can be wiretapped or searched under
the plain provisions of FISA, regardless of whether it is breaking the
law.
Even if the amendment were limited to non-U.S. persons, U.S.
companies, and universities hire any number of people who are here on
work or study visas and who are not considered ``U.S. persons.'' When
those people are here in the United States, they are fully protected by
the fourth amendment. So why should those individuals be subject to
secret court-ordered wiretaps and searches of their offices when they
have done nothing illegal? And won't this affect the ability of U.S.
companies and universities to recruit the best foreign talent to come
and work for them?
I realize this all may seem very technical, but let me repeat the
upshot: What all of this means is that, under this amendment, U.S.
companies and U.S. universities conducting perfectly legal and
legitimate activities--meaning they are doing nothing wrong--could be
considered ``foreign powers'' under FISA and subject to court-ordered
secret wiretaps in this country without any suspicion of wrongdoing.
This has left organizations like the American Library Association and
the Association of Research Libraries with very serious concerns about
the amendment.
Mr. President, I would have been willing to adopt this amendment if
it could have been modified to address some of these concerns. But it
would be my preference not to address this complex issue in this
legislation. The responsible thing to do would be to engage in further
study so we know we have the right solution to this problem. But if we
are going to take on this issue here, today, let's at least do it in a
responsible, targeted way.
We have heard a lot about unintended consequences throughout the
debate on this bill. I believe this amendment will have serious
unintended consequences, and I think it would benefit all of us to
study the issue further. But if that is not possible, we should at a
minimum try to limit the effect of the amendment to the dangerous
criminals who are the reason for this expansion of FISA. The Bond
amendment does not do that.
The PRESIDING OFFICER. The question is on agreeing to amendment No.
3938.
The amendment (No. 3938) was agreed to.
Mr. BOND. I move to reconsider the vote.
Mr. ROCKEFELLER. I move to lay that motion on the table.
The motion to lay on the table was agreed to.
Amendment No. 3927
The PRESIDING OFFICER. The question is on agreeing to amendment No.
3927 offered by the Senator from Pennsylvania.
Mr. SPECTER. Mr. President, this amendment substitutes the Government
for the party defendant in place of the telephone companies. It is
designed to maintain some check and balance on the executive because
Congress has been totally ineffective to do so.
It accomplishes both purposes. It keeps the program going to gain
intelligence information necessary for national defense, but it
maintains the courts being open as a check and balance.
I yield to Senator Whitehouse.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. WHITEHOUSE. Mr. President, if we vote for retroactive immunity,
we violate the rule of law taking away legitimate claims in legitimate
litigation in a manner that is unprecedented and unconstitutional. If
on the other hand we do nothing, we leave American companies gagged by
the state secrets privilege in ongoing litigation.
This amendment is a sensible, fair, bipartisan alternative that takes
away
[[Page S888]]
no rights, that follows the Federal Rules of Civil Procedure, that
honors the separation of powers principles and leaves no litigant
gagged by the Government.
Please support the amendment.
The PRESIDING OFFICER. All time has expired. Who yields time in
opposition? The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, the distinguished ranking member of
the Judiciary Committee, Senator Specter, has offered an amendment
proposing to substitute the government for the providers in the ongoing
civil lawsuits.
I appreciate and agree with the sentiment of Senator Specter and
Senator Whitehouse that the government--not the providers who operated
in good faith with them--should be held responsible for the legal
fallout from the President's warrantless surveillance program. But this
amendment lays out a remarkably complicated litigation procedure that
is unlikely to achieve any meaningful review of the President's
program.
Under this amendment, if the Attorney General submits a certification
to the district court that an individual carrier provided assistance in
connection with the President's program or did not provide assistance,
the district court certifies a question to the FISA Court.
The FISA Court is then required to determine whether the carrier
cooperated with existing law, or acted in good faith and pursuant to an
objectively reasonable belief that the written request was legal. If
the FISA Court makes that finding, the government is substituted for
the carrier in the district court.
At that point, litigation continues against the government under
several different possible statutes, and the provider is dismissed from
the suit. The plaintiffs may, however, seek discovery--that is,
documents, witness testimony, and other information--from the providers
who were originally named in the lawsuit.
This complicated procedure raises a number of concerns both about the
determination by the FISA Court and the resolution of the lawsuits
after the government is substituted.
As an initial matter, it is unclear why the cases would need to be
transferred to the FISA Court for a determination of good faith. The
Intelligence Committee has already made an assessment of the good faith
of the cooperating providers. The possibility of a court--rather than
the Congress--making the good faith determination is particularly
relevant to an amendment offered by Senator Feinstein, and I am sure we
will discuss it further.
But even if Congress seeks to have a court, rather than Congress,
make a determination of good faith, having that.determination made in
the FISA Court unnecessarily complicates the process. The FISA Court is
not a standard factfinding trial court; it does not hear from
witnesses, take evidence, or assess the ``good faith'' of private
parties. The FISA Court is simply not set up to make factual
determinations that impact civil lawsuits.
Nor does transferring the cases to the FISA Court help the plaintiffs
in these cases. They are not entitled to hear the classified
information concerning the good faith of the providers, and they will
not be involved in the debate.
In addition, although a finding of good faith would normally result
in dismissal of the lawsuits, under this proposal, the providers would
still potentially have the burden of producing documents and witnesses.
Thus, because providers who acted in good faith will continue to have a
role in the litigation, even if they are no longer the named
defendants, this proposal does not relieve the cost and reputational
burdens of the litigation. It therefore is unlikely to encourage the
providers to cooperate with the government in the future.
It is also unclear what substituting the government in these cases
seeks to accomplish. The proposal would involve changing the nature of
the claims filed against telecommunications companies to causes of
action against the government under a number of statutes, including the
Federal Tort Claims Act, the Administrative Procedure Act, or FISA.
Suits under these statutes, however, can be, and in some cases, have
already been brought against the government.
If it is already possible to sue the government under thee statutes
for possible violations, and indeed, if the government has already been
sued under these statutes, why do we need to create a new procedure to
convert claims against private companies into these claims against the
government?
Finally, we should look at what is actually happening in the current
litigation. Many of my colleagues have suggested that allowing the
litigation to continue--with either the government or the providers as
the defendant--will allow the court to resolve the issue of whether the
providers acted in accordance with the law. But this is not presently
the debate in the litigation.
Right now, the parties in the approximately 40 civil lawsuits are
arguing about access to classified information about the President's
program. The government has refused to publicly reveal the classified
documents and information that would allow litigation to proceed.
Because classified information is needed to address even threshold
litigation issues, having the government or a particular provider as
defendant in the suit is unlikely to change this aspect of the
litigation.
In other words, whether or not we substitute the government for the
provider, no court is likely to resolve the question of whether the
President, or any private company, violated the law in the near future.
Given that the administration is unlikely to declassify information
about the program while the lawsuits are ongoing, it is also unlikely
that litigation will ever tell the story of what happened with the
President's program. So what benefit is there to substituting the
government in the providers' stead?
Providers who acted in good faith should be removed from ongoing
litigation, without having the burden of responding to discovery and
litigation requests and without the reputational harm of having suits
in their name go forward against the government. Ongoing reminders of
the potential pitfalls of cooperating in good faith with the government
will not encourage these companies--whose assistance the intelligence
community and law enforcement agencies desperately need--to cooperate
with the government in the future.
If plaintiffs in any ongoing suit want to bring claims against
government officials, those suits can be brought directly, without the
complicated substitution procedure described in this amendment.
Although no member of the Intelligence Committee offered an amendment
on this issue, the committee considered whether it would be more
appropriate to substitute the government for particular providers in
ongoing lawsuits as part of the work done in preparing this bill. For
all of the reasons I have discussed, the committee ultimately decided
that substitution was not the right approach to address the ongoing
lawsuits.
I, therefore, cannot support this amendment, and I urge my colleagues
to oppose it.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, for all the reasons we voted down striking
retroactive immunity, this amendment must be defeated as well because
it would continue to disclose all the methods of collection in
electronic surveillance and it would put at risk the private parties.
The PRESIDING OFFICER. All time has expired. The question is on
agreeing to amendment No. 3927.
Mr. BOND. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``nay.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 30, nays 68, as follows:
[[Page S889]]
[Rollcall Vote No. 17 Leg.]
YEAS--30
Akaka
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Durbin
Feingold
Harkin
Kennedy
Kerry
Kohl
Lautenberg
Leahy
Levin
McCaskill
Menendez
Nelson (FL)
Obama
Reed
Reid
Sanders
Schumer
Specter
Stabenow
Webb
Whitehouse
Wyden
NAYS--68
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Biden
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dodd
Dole
Domenici
Dorgan
Ensign
Enzi
Feinstein
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Klobuchar
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCain
McConnell
Mikulski
Murkowski
Murray
Nelson (NE)
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Tester
Thune
Vitter
Voinovich
Warner
Wicker
NOT VOTING--2
Clinton
Graham
The amendment (No. 3927) was rejected.
Mr. BOND. Mr. President, I move to reconsider the vote.
Mr. LEVIN. I move to lay that motion on the table.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3919
The PRESIDING OFFICER. Under the previous order, there will now be 2
minutes of debate equally divided on amendment No. 3919 offered by the
Senator from California, Mrs. Feinstein.
The Senator from California.
Mrs. FEINSTEIN. Mr. President, FISA has a law within it as to how you
do electronic surveillance, and that law has specific provisions of
what companies seeking to assist the Government must do. Essentially,
what this amendment does is ask the FISA Court to review that
compliance by the telecom companies to see that they complied with the
elements of that part of FISA.
I think some Members have been able to look at the certification
letter sent to telecoms, but most Members have not, and I think it is
very important that the court have an opportunity to review these
certifications and see if they are adequate under the provisions of the
FISA law, and this is exactly what this amendment does.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, the FISA Court was not set up to make
judgments about the operation of foreign intelligence. As a matter of
fact, they said specifically, in a case released in December, that is a
matter for the executive branch.
Now, there are some people who say there ought to be a court
challenge to the President's terrorist surveillance program. Let me
remind my colleagues that there are seven cases proceeding against the
Government and Government employees which will not be impacted by this
bill. Every day that litigation continues, whether it be in a FISA
court or in open court, there is a danger of leaking of information.
There could be disclosure of our methods, and there could be risks to
employees of the companies in areas of the world. Certainly their
bottom line could be impacted. As Senator Durbin pointed out last week,
leaks of classified information caused severe harm to a company in his
State.
I urge the defeat of this amendment.
Mr. ROCKEFELLER. Mr. President, the distinguished Senator from
California has offered an amendment to modify the procedures in the
Intelligence Committee bill on dismissal of civil actions against
telecommunications companies that assisted an element of the
intelligence community with regard to the President's warrantless
surveillance program.
Senator Feinstein's amendment preserves the basic idea of the
Intelligence Committee bill; namely, that narrowly crafted immunity for
private companies is an appropriate way of resolving dozens of lawsuits
arising from the President's program. But the amendment makes one
significant change in the procedure proposed by the Intelligence
Committee. Rather than Congress deciding that each and every company
acted in good faith, the question of whether individual carriers relied
in good faith on representations made by the Government would be made
by the FISA Court.
I understand and appreciate the Senator from California's desire to
have a court make this good faith determination. But in this particular
case, I think that Congress is better able to assess the context in
which companies cooperated with the Government in order to determine
whether they acted in good faith.
As members of the Intelligence Committee, Senator Feinstein and I
have had access to the letters sent to the telecommunications
companies. We have heard from the companies who were told after 9/11
that their assistance was ``required'' and that the request for
assistance was based on a Presidential order, the legality of which was
certified by the Attorney General.
In addition, the committee understands the threats faced by the
United States in the years after September 11, and the effect that
threat environment had on all American citizens.
The committee also understands exactly how critical the private
sector is to all of our intelligence collection efforts, and what
effect the pending lawsuits have had on the private sector's continued
cooperation with the Government.
The policy question that is at the heart of the Feinstein amendment--
whether companies that cooperated with the intelligence community after
September 11 should be protected from liability for their actions--is
not a question than can truly be addressed in an individual court case.
Unlike the fact-intensive, good faith determinations that would be made
in a court case, this question is not about how a company reacted to
each individual piece of correspondence it received, or its discussions
with the Government. The question should not be answered on a piecemeal
basis, based on whether each of the individual actions taken by any
particular company was in good faith.
Knowing how to address this policy issue instead depends on
understanding the circumstances that surrounded the requests, the full
dimension of the threat, and the historical relationship between the
Government and the companies. Because Congress has the ability to look
at the totality of the circumstances in a way that a court evaluating
an individual company's good faith cannot, I feel that it is our
responsibility to assess the reasonableness of the response of all of
the companies.
Given the circumstances involved in this sensitive matter, I believe
Congress, not the courts, should make the determination as to whether
companies acted in good faith and should be protected from liability.
Apart from disagreeing as to who should make the decision about good
faith, there are also a number of significant procedural concerns with
the Feinstein amendment. I fear that these problems would make the
amendment unworkable.
Under Senator Feinstein's amendment, the first step in the immunity
process would be the same as under the Intelligence Committee's bill.
The Attorney General would make a certification to a court in which a
case against a telecommunication company is being heard. The
certification would say one of two things.
First, if the company assisted the government, the certification
would have to indicate that any assistance provided had been for an
intelligence activity involving communications that had been authorized
by the President between September 11, 2001, and January 2007.
The certification would also have to state that the assistance had
been described to the company in a written request or directive from
the Attorney General or the head or deputy head of an intelligence
community element which indicated that the activity was authorized by
the President had determined to be lawful.
Alternatively, the certification could indicate that the
telecommunications company did not provide the alleged assistance.
[[Page S890]]
The court would then have the opportunity to review the Attorney
General's certification for abuse of discretion. To protect national
security information, only the judge would be entitled to review the
certification; the plaintiffs would not have access to it.
Under the committee's bill, such a certification would be the end of
the process, except for the issuance of the court's order dismissing
the action if the Attorney General's certification met these
requirements.
Senator Feinstein's amendment, in contrast, uses that certification
to trigger a transfer of the case to the Foreign Intelligence
Surveillance Court. This amendment also specifically provides that the
FISA Court will permit any plaintiff in an applicable covered civil
action to appear before the Court.
This transfer of the case to the FISA Court seriously complicates the
existing lawsuits, and poses a number of significant procedural
problems that are not resolved in the amendment.
As an initial matter, the type of analysis in the amendment is
outside the longstanding scope and jurisdiction of the FISA Court.
Under the Feinstein amendment, the FISA Court would be required to
determine, acting as a body of all judges, whether immunity would be
granted under current law, whether the company had an objectively
reasonable belief under the circumstances that compliance with the
written request or directive was lawful, or whether the company did not
provide the alleged assistance.
None of these determinations involve the Foreign Intelligence
Surveillance Act, the statute on which the FISA Court has expertise.
Indeed, the point of the litigation is that the President's program was
conducted outside of FISA.
In addition, the FISA Court is not generally set up for adversarial
civil litigation; it does not usually hear from witnesses or take
evidence. Although Congress has granted the Court the ability to hear
challenges to certain FISA directives, it has never before been asked
to make factual determinations that affect the outcome of civil
lawsuits.
Sending the case to the FISA court therefore raises all sorts of
questions. For example, would the FISA Court, acting en banc, hear
testimony from witnesses? If so, who would examine the witnesses? What
rules of evidence would apply? What role would the plaintiffs play in
the proceeding?
The FISA Court would have to come up with an entirely new set of
procedures just to handle this litigation. This new proceeding--
particularly as the Court would have to act en banc--would
significantly strain the resources of the Court that oversees our
electronic surveillance of terrorists and foreign powers and protects
the privacy of U.S. persons.
Nor does transferring the cases to the FISA Court necessarily help
the plaintiffs in these cases. As they do not currently have security
clearances, the Government is unlikely to provide the plaintiffs with
access to classified information about the proceeding. Thus, most
likely, they will not be involved in the debate.
I commend the Senator from California for her efforts to come up with
a mechanism by which the court can consider and determine the good
faith of the companies. But, because of all of the procedural problems
with this amendment I have described, as well as a more fundamental
belief that Congress has a unique ability in this circumstance to
assess the good faith of the companies, I cannot support this
amendment.
The PRESIDING OFFICER (Mr. Whitehouse.) All time has expired. The
question is on agreeing to amendment No. 3919.
The yeas and nays have been ordered.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``nay.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 41, nays 57, as follows:
[Rollcall Vote No. 18 Leg.]
YEAS--41
Akaka
Baucus
Bayh
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Casey
Conrad
Dorgan
Durbin
Feingold
Feinstein
Harkin
Kennedy
Kerry
Klobuchar
Kohl
Lautenberg
Leahy
Levin
Lincoln
McCaskill
Mikulski
Murray
Nelson (FL)
Obama
Reed
Reid
Salazar
Sanders
Schumer
Specter
Stabenow
Tester
Webb
Whitehouse
Wyden
NAYS--57
Alexander
Allard
Barrasso
Bennett
Bond
Brownback
Bunning
Burr
Carper
Chambliss
Coburn
Cochran
Coleman
Collins
Corker
Cornyn
Craig
Crapo
DeMint
Dodd
Dole
Domenici
Ensign
Enzi
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kyl
Landrieu
Lieberman
Lugar
Martinez
McCain
McConnell
Menendez
Murkowski
Nelson (NE)
Pryor
Roberts
Rockefeller
Sessions
Shelby
Smith
Snowe
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Wicker
NOT VOTING--2
Clinton
Graham
The PRESIDING OFFICER. Under the previous order requiring 60 votes
for adoption of the amendment, the amendment is withdrawn.
Under the previous order, the substitute amendment, as amended, is
agreed to.
The amendment (No. 3911), in the nature of a substitute, as amended,
was agreed to.
The PRESIDING OFFICER. The question is on the engrossment and third
reading of the bill.
The bill was ordered to be engrossed for a third reading and was read
the third time.
Cloture Motion
The PRESIDING OFFICER. Under the previous order, the clerk will
report the motion to invoke cloture.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
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. FEINGOLD. Mr. President, as I have said repeatedly on the Senate
floor, I strongly oppose granting unjustified retroactive immunity to
companies that allegedly participated in the President's illegal
wiretapping program, which went on for more than 5 years. It is
unnecessary because under current law, companies already have immunity
from civil liability if they comply with a court order or with a
certification from the Attorney General that a court order is not
required and all statutory requirements have been met. Congress should
leave it to the courts to evaluate whether the companies alleged to
have cooperated with the program would deserve immunity under this
existing law rather than changing the rules of the game after the fact.
That is why I have been a staunch supporter of the Dodd amendment to
strike the immunity provision from this bill entirely.
Given my strong opposition to any retroactive immunity for
telecommunications companies, I want to explain why I voted in favor of
two amendments that proposed alternatives to but did not entirely
eliminate retroactive immunity. Amendment No. 3927, offered by Senators
Specter and Whitehouse, would have substituted the Government for the
companies in the pending litigation, and amendment No. 3919, proposed
by Senator Feinstein, would have directed the FISA Court to evaluate
whether companies complied with the existing immunity provision or
otherwise acted in good faith.
I do not believe that either of these proposals is necessary. In
fact, when Senator Specter offered his substitution proposal as a
stand-alone bill in the Senate Judiciary Committee, I opposed it. I
firmly believe that Congress should allow the courts to evaluate
whether the companies deserve immunity under the law that applied to
them at the time, and we should not be
[[Page S891]]
meddling in this area at all. However, unlike the Specter bill, these
two amendments were offered to replace the broad grant of retroactive
immunity in the FISA bill, and they were offered after the Senate had
voted not to adopt the Dodd-Feingold amendment. Each of them was an
improvement, however slight, to the underlying immunity provision, in
that they would have left open the possibility that the lawsuits could
continue, thus permitting the courts to rule on the legality of the
warrantless wiretapping program. Therefore, I voted in favor of both of
these amendments, even though I would have much preferred to see
retroactive immunity stricken entirely.
The PRESIDING OFFICER. By unanimous consent, the mandatory quorum
call has been waived.
The question is, Is it the sense of the Senate that debate on S.
2248, an original bill to amend the Foreign Intelligence Surveillance
Act of 1978, to modernize and streamline the provisions of that act,
and for other purposes, shall be brought to a close.
The yeas and nays are required under the rule.
The clerk will call the roll.
The bill clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
is necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``yea.''
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The yeas and nays resulted--yeas 69, nays 29, as follows:
[Rollcall Vote No. 19 Leg.]
YEAS--69
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Casey
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Feinstein
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kohl
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCain
McCaskill
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wicker
NAYS--29
Akaka
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Dodd
Dorgan
Durbin
Feingold
Harkin
Kennedy
Kerry
Klobuchar
Lautenberg
Leahy
Levin
Menendez
Murray
Obama
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Wyden
NOT VOTING--2
Clinton
Graham
The PRESIDING OFFICER. On this vote, the yeas are 69, the nays are
29. Three-fifths of the Senators duly chosen and sworn having voted in
the affirmative, the motion is agreed to.
____________________
[Congressional Record: February 12, 2008 (Senate)]
[Page S891-S913]
FISA AMENDMENTS ACT OF 2007
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. BOXER. Mr. President, I ask unanimous consent that immediately
following Senator Feingold's 15 minutes on FISA, I be recognized for 10
minutes and that the time be taken from Senator Dodd's 4 hours.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, I strongly oppose S. 2248. This bill is
deeply flawed in ways that will have a direct impact on the privacy of
Americans. Along with several other Members of this body, I have
offered modest amendments that would have permitted the government to
obtain the intelligence it needs, while providing the checks and
balances required to safeguard our constitutional rights.
Unfortunately, under intense administration pressure marked by
inaccurate and misleading scare tactics, the Senate has buckled. And we
are left with a very dangerous piece of legislation.
The railroading of Congress began last summer, when the
administration rammed through the so-called Protect America Act, vastly
expanding the government's ability to eavesdrop without a court-
approved warrant. That legislation was rushed through this Chamber in a
climate of fear--fear of terrorist attacks, and fear of not appearing
sufficiently strong on national security. There was very little
understanding of what the legislation actually did.
But there was one silver lining: The bill had a 6-month sunset to
force Congress to do its homework and reconsider the approach it took.
Unfortunately, with far too few exceptions, the damage has not been
undone.
This new bill was intended to ensure that the government can collect
communications between persons overseas without a warrant, and to
ensure that the government can collect the communications of
terrorists, including their communications with people in the United
States. No one disagrees that the government should have this
authority. But this bill goes much further, authorizing widespread
surveillance involving innocent Americans--at home and abroad.
Proponents of the bill and the administration don't want to talk
about what this bill actually authorizes. Instead, they repeatedly and
inaccurately assert that efforts to provide checks and balances will
impede the government's surveillance of terrorists. They launched these
attacks against the more balanced bill that came out of the Judiciary
Committee. And they have attacked and mischaracterized amendments
offered on the floor of this body. This is fear-mongering, it is wrong,
and it has obscured what is really going on.
What does this bill actually authorize? First, it permits the
government to come up with its own procedures for determining who is a
target of surveillance. It doesn't need advance approval from the FISA
Court to ensure that the government's targets are actually foreigners,
and not Americans here in the United States. And, if the Court
subsequently determines that the government's procedures are not even
reasonably designed to wiretap foreigners, rather than Americans, there
are no meaningful consequences. All that illegally obtained information
on Americans can be retained and used.
Second, even if the government is targeting foreigners outside the
U.S., those foreigners need not be terrorists. They need not be
suspected of any wrongdoing. They need not even be a member or agent of
some foreign power. In fact, the government can just collect
international communications indiscriminately, so long as there is a
general foreign intelligence purpose, a meaningless qualification that
the DNI has testified permits the collection of all communications
between the United States and overseas. Under this bill, the government
can legally collect all communications--every last one--between
Americans here at home and the rest of the world. Even the sponsor of
this bill, the chairman of the Intelligence Committee, acknowledges
that this kind of bulk collection is probably unconstitutional, but the
DNI has said it would be not only authorized but ``desirable'' if
technically possible. Technology changes fast in this area. We have
been forewarned, yet the Senate failed to act.
One of the few bright spots in this bill is the inclusion of an
amendment, offered by Senators Wyden, Whitehouse and myself in the
Intelligence Committee, to prohibit the intentional targeting of an
American overseas without a warrant. That is an important new
protection. But that amendment does not rule out the indiscriminate
vacuuming up of all international communications, which would allow the
government to collect the communications of Americans overseas,
including with friends and family back home, without a warrant. And
those communications can be retained and used. Even the
administration's illegal warrantless wiretapping program,
[[Page S892]]
as described when it was publicly confirmed in 2005, at least focused
on the communications of particular terrorists. What we are talking
about now is potentially a huge dragnet that could sweep up the
communications of countless innocent Americans.
Third, the Senate failed to prohibit the practice of reverse
targeting; namely, wiretapping a person overseas when what the
government is really interested in is an American here at home with
whom the foreigner is communicating. The underlying bill simply does
not stop this practice and, if there was any doubt, the DNI has
publicly said that the bill merely ``codifies'' the administration's
view that surveillance of an American is fine, so long as the
government is technically wiretapping the foreigner. Even the DNI has
said this is unconstitutional, but there is nothing in this bill to
stop it.
Fourth, the Senate has failed to protect the privacy of Americans
whose communications will be collected in vast new quantities. The
administration's mantra has been: ``don't worry, we have minimization
procedures.'' Minimization procedures are nothing more than unchecked
executive branch decisions about what information on Americans
constitutes ``foreign intelligence.'' As recently declassified
documents have again confirmed, the ability of government officials to
find out the identity of Americans and use that information is
extremely broad. Moreover, even if the administration were correct that
minimization procedures have worked in the past, they are certainly
inadequate as a check against the vast amounts of Americans' private
information that could be collected under these new authorities.
This legislation is particularly troubling because we live in a world
in which international communications are increasingly commonplace.
Thirty years ago it was very expensive, and not very common, for
most Americans to make an overseas call. Now, particularly with email,
such communications are commonplace. Millions of ordinary, and
innocent, Americans communicate with people overseas for entirely
legitimate personal and business reasons. Parents or children call
family members overseas. Students email friends they have met while
studying abroad. Business people communicate with colleagues or clients
overseas. Technological advancements combined with the ever more
interconnected world economy have led to an explosion of international
contacts.
We often hear from those who want to give the government new powers
that we just have to bring FISA up to date with new technology. But
changes in technology should also cause us to take a close look at the
need for greater protections of the privacy of our citizens. If we are
going to give the government broad new powers that will lead to the
collection of much more information on innocent Americans, we have a
duty to protect their privacy as much as we possibly can. And we can do
that without sacrificing our ability to collect information that will
help protect our national security.
But, the Senate has once again fallen for administration tactics that
have become so depressingly familiar. ``Trust us,'' they say. ``We
don't need judicial oversight. The courts will just get in our way. You
never know when they might tell us that what we're doing is
unconstitutional, and we would prefer to make that decision on our own.
Checks and balances, judicial and congressional oversight, will impede
our ability to fight terrorism.'' And, sadly, these grossly misleading
efforts at intimidation have apparently worked.
I have been speaking for some time now about my strong opposition to
this bill, and I haven't even addressed one of the most outrageous
elements of that bill: the granting of retroactive immunity to
companies that allegedly participated in an illegal wiretapping program
that lasted for more than 5 years.
This grant of automatic immunity is simply unjustified. There is
already an immunity provision in current law that has been there since
FISA was negotiated--with the participation of the telecommunications
industry--in the late 1970s. The law is clear. Companies have immunity
from civil liability when they cooperate with a Government request for
assistance--as long as they receive a court order, or the Attorney
General certifies that a court order is not required and all statutory
requirements have been met.
This is not about whether companies had good intentions. It is about
whether they complied with this statutory immunity provision, which has
applied to them for 30 years. If the companies followed that law, they
should get immunity. If they did not follow that law, they should not
get immunity. And a court should make that decision, not Congress. It
is that simple.
Congress passed a law laying out when telecom companies get immunity
and when they don't for a reason. These companies have access to our
most private communications, so Congress has subjected them to very
precise rules about when they can provide that information to the
government. If the companies did not follow the law Congress passed,
they should not be granted a ``get out of jail free'' card after the
fact.
Proponents of retroactive immunity have said repeatedly that immunity
is necessary if the government is going to have the cooperation of
carriers in the future. We do need that cooperation. But we also need
to make sure that carriers don't cooperate with illegitimate requests.
We already have a law that tells companies when they should and when
they shouldn't cooperate, so they are not placed in the position of
having to evaluate independently whether the government's request for
help is legitimate.
Instead of allowing the courts to apply that law to the facts--
instead of allowing judges to decide whether the companies deserve
immunity for acting appropriately--this bill sends the message that
companies need not worry about complying with questionable government
requests in the future because they will be bailed out after the fact.
This is outrageous. Even more outrageous is that fact that if these
lawsuits are dismissed, the courts may never rule on the NSA
wiretapping program. This is an ideal outcome for an administration
that believes it should be able to interpret laws alone, without
worrying about how Congress wrote them or what a judge thinks. For
those of us who believe in three independent and co-equal branches of
government, it is a disaster.
In the 1970s, Congress learned that the executive branch had been
using its immense powers and the advance of technology to spy on its
citizens. By passing FISA, Congress faced up to the fact that we can't
just trust the executive branch, including the President of the United
States, to do the right thing, that judicial oversight of the power to
spy was needed, that checks and balances are the best way to ensure
liberty, and security.
I have spent a great deal of time on the floor over the past several
weeks discussing the details of the bill, offering amendments, and
debating the possible effects of the fine print of the statute. But
this isn't simply about fine print. In the end, my opposition to this
bill comes down to this: This bill is a tragic retreat from the
principles that have governed government conduct in this sensitive area
for 30 years. It needlessly sacrifices court oversight and protection
of the privacy of innocent Americans. It is an abdication of this
body's duty to stand up for the rule of law.
We know what is wrong with this legislation. We know that it
authorizes unconstitutional surveillance of Americans. We have been
forewarned. I urge my colleagues to vote ``no'' on final passage.
The PRESIDING OFFICER. The Senator from California is recognized.
Mrs. BOXER. Mr. President, I rise to speak about the FISA bill
currently being considered by the Senate. I believe it is our duty to
provide all the tools necessary to fight terrorism. We also have
another duty--I would say a simultaneous duty, a sworn duty--to protect
the constitutional rights of our citizens.
So we have two duties. One is to protect the American people and give
the Government the tools it needs to do that; two, to protect the
constitutional rights of Americans. If we lose those rights, then the
basic freedoms of our people are at risk.
I believe we have fallen far short. We have fallen far short of the
balance that we always need to look for, ever since the beginning of
our Republic--
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the balance between security and freedom. I think we missed it here.
It is not the Government's job to scare our people; it is the
Government's job to protect our people. It is not the Government's job
to endanger the privacy of law-abiding Americans, but to protect the
privacy of law-abiding Americans. Sadly, we had a number of amendments
to this bill which would have brought that balance I talked about into
being, the balance between security and freedom.
Senator Feingold had an amendment limiting the use and dissemination
of information unlawfully obtained through foreign surveillance on U.S.
citizens. His amendment would have protected the rights of innocent
U.S. citizens and provided a necessary balance to the bill. I was proud
to support it because the bill, obviously, needed some more checks and
balances.
Senator Feingold also had an amendment to provide protection against
bulk collection of foreign communications that could include
communications of innocent Americans. Again, this measure would have
provided additional protection for the rights of American citizens, and
I was proud to support it because I believe we need, again, additional
checks on enhanced Government surveillance authority.
My colleague and friend from California, Senator Feinstein, had an
amendment that stated a very important principle: that FISA, the
Foreign Intelligence Surveillance Act, is the exclusive authority for
conducting foreign intelligence surveillance.
Why is that important? It is important because this administration
argues time and again that ``it has inherent authority'' to conduct
warrantless surveillance, or that Congress somehow gave them the
authority when it authorized the use of military force in Iraq--a
ridiculous claim. The Feinstein amendment was a very important
amendment because it would have made it clear that FISA is the
exclusive authority, pure and simple.
Why was that important going forward? We don't want to have this
administration or another one in the future--I don't care which party
they are from--spying on the American people and then saying: It is
true, we didn't obey FISA, but we thought it was important to go
outside the law. If we had adopted the Feinstein amendment, we would
have clearly stated that FISA is the law when it comes to conducting
surveillance on our own people.
The Feinstein amendment--which failed, sadly by only 1 or 2 votes
short of the 60-vote hurdle--said we are not going to lose our
freedoms, we are not going to allow another administration to spy on
us; FISA is going to be the one and only law that pertains here.
Finally, there is the issue of immunity for telecommunications
companies that cooperated with the administration's warrantless
surveillance program. We know that American law did not give these
telephone companies the authority to do what they did, but they were
somehow persuaded by the administration to go along with them. Not
every telephone company, not every communications company did go along.
At least one said: Look, we think this is not legal; show us the
legality. And they stood, I think, in firm support of their consumers.
Here is the problem with granting immunity. Congress has not been
given complete information on this program. We do not know the level of
involvement by the telephone companies and the telecom companies. We
need complete information; we have incomplete information. How can I be
a good Senator, how can I do a good job if I don't have the facts
surrounding this whole matter of the warrantless surveillance program?
When you put out that immunity, you basically stop the court cases, and
if you stop the court cases, we will never get to the bottom of this
issue and our citizens will never know who was spied on, why were they
spied on, what happened, what went wrong, what went right, and how much
power this Government tried to exercise over its people illegally.
Granting immunity without fully understanding whether our people were
illegally spied upon and to what extent, I find that irresponsible.
Where is our pride? We wrote a law that said phone companies cannot do
this, and they went ahead and did it. Not all of them. Now we are
saying: Never mind, President Bush and Vice President Cheney write the
law, they make the decision. It is not right. It is not American. It is
anti-American. It is not what we do in this great country.
President Bush says we are sending our troops overseas to fight for
freedom, fight for democracy, and at home they ask the telecom
companies to break the law. They spied on Americans, and we cannot find
out what they did, how they did it, the details of the program, and now
we are going to now grant immunity. I cannot believe that we didn't do
better on that particular amendment. That amendment failed. Again, I
was proud to stand with Senator Dodd and Senator Feingold on the
amendment.
In closing, I don't believe this bill strikes the kind of balance we
need between broadening the Government's authority to conduct
surveillance and protecting the rights of our citizens. We did have
many chances today to increase the oversight of FISA surveillance
programs. We had many opportunities to hold this administration
accountable and future administrations accountable while giving them
what they need to go after the bad actors, those who would harm us. I
voted to get bin Laden. I voted to go to war against al-Qaida. I voted
no on the Iraq war because that was a diversion. I want to get the
terrorists who perpetrated 9/11. I want to give any administration the
tools they need, but I do not want to expose my constituents and the
people of America who are law-abiding and caring and all they live for
is for their families--I don't want to subject them to being spied
upon.
Unfortunately, those amendments all went down. It is sad for me to
say that we have a bill that steps on the rights of the freedoms of our
people, of the law-abiding Americans in our country and, therefore, I
cannot support it.
Mr. President, I yield the floor. I suggest the absence of a quorum,
and I ask that the time be taken equally off both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. DODD. 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. DODD. Mr. President, it is clear now that this body is going to
approve retroactive immunity for the telecom industry, which may have
helped the President to illegally spy on millions of Americans.
I have spoken on this issue now for I think in excess of 20 hours,
going back 2\1/2\ months ago when this issue first came to the floor in
December. Just to recall the history of the last couple of months
briefly, if I may: Two committees of the Senate, appropriately, had
jurisdiction over this matter--the Intelligence Committee and the
Judiciary Committee. In fact, the House of Representatives similarly
had two committees with jurisdiction over this matter, the matter being
the amendments to the Foreign Intelligence Surveillance Act.
I have talked at length about the history of that act and commended
our previous colleagues who served in this body for having crafted a
rather ingenious piece of legislation that architecturally created the
balance between security and liberty in the wake of the Watergate
scandal in the mid-1970s. Democrats and Republicans came together and
said: How can we guarantee that we can gather information to keep our
Nation safe and secure from those who would do us harm and
simultaneously protect the more than two centuries of liberties and
rights that Americans have come to associate with our Constitution--the
rule of law?
This was not an easy matter, striking that balance, that tension
which has existed for more than 220 years in our country, and I would
be the first to admit that. So I have great admiration for those who
struggled with it.
In 1978, the FISA--the Foreign Intelligence Surveillance Act--Court
was established, a secret court, the members of which are appointed by
the Chief Justice of the U.S. Supreme Court. The members of that court
are sitting Federal judges across the land. No one can ever know who
these judges are. They are anonymous in that sense, and they are called
upon at a moment's
[[Page S894]]
notice to determine whether probable cause exists for a warrant to be
issued to allow our Government to require institutions, public or
private, to provide information that could affect the safety and
security of our country. That has been the history.
Since 1978, time and again the Congress of the United States has
amended the Foreign Intelligence Surveillance Act. Usually, it was
amended in order to keep pace with the ability of those who would do us
harm to utilize new technologies, new sources of information that could
prove to be dangerous for our country; but simultaneously, legislation
was upgraded so that the new means of gathering information, of
determining who would do us harm, were also improving. In almost every
instance, the amendments and the changes to the Foreign Intelligence
Surveillance Act were adopted unanimously by members of both political
parties.
That brings us, of course, to this year, with the amendments being
offered to this Foreign Intelligence Surveillance Act.
Events occurred either prior to 9/11 or shortly thereafter which have
caused the most significant debate yet on FISA. There are those who
have argued that, in fact, the surveillance activity that is the
subject of the retroactive immunity actually began prior to the attacks
of 9/11. The bulk of the evidence seems to point to the fact that this
surveillance began shortly thereafter.
I would not be standing here, as I have said before, had this been a
momentary lapse of judgment, considering the emotions of the attacks
here on our country. I could understand why a President, why a telecom
industry, in the wake of 9/11, would have responded to a request to
gather information quickly to determine not only who did us harm but
what additional dangers they posed to us. I would not be standing here
if this had been an administration that had not engaged in a pattern of
behavior over the years that suggested they had less than a high regard
for the rule of law. But as we have now learned, this was not a matter
of a week or a month or a year. This warrantless invasion of our
privacy went on for 5 long years, without any rule of law behind it
except the word of an American President and apparently the sanction of
the Attorney General of the United States.
FISA specifically said in 1978 that you must have a warrant to do
this. We even changed the law, as you know, Mr. President, to say that
you could even get the warrant after the fact if the emergency was such
that you didn't have the opportunity to get the warrant but went after
the fact, immediately thereafter.
I would point out, Mr. President, as I did in some detail last
evening for almost 3 hours on this floor, that the President's
warrantless wiretapping program was not a selective or focused
surveillance merely on those who were outside the country or those who
were suspected or might be involved in threatening activities. This
decision to gather information included literally every phone call,
every fax, every e-mail, every image that went through 16 phone
companies of our country, using what they call splitters to literally
vacuum up everything that came in. If the allegations are true, it was
one of the single largest invasions of privacy in the history of our
country, all done without a warrant and without a court order.
We discovered this because of a whistleblower and a report in the
media that revealed the program. Otherwise, I suspect it would be going
on as I speak, without any interruption whatsoever. In fact, the only
interruption that occurred, I might point out--because the argument has
been made that these companies were acting out of patriotism--came,
according to some reports when the Federal Government stopped paying
the phone companies for collecting it.
I would also point out that not every phone company complied. I know
the argument has been made: Look, everyone did it. It is a common
argument, one we made to our parents, usually: Everyone was doing it.
We all remember the answer we received from our parents. Well, the
argument here is: Almost everyone was doing it. Quest decided not to.
When the request was made of them to gather information without a
warrant, they said: Give us a court order, and we will comply. A court
order was never forthcoming, of course, and they never participated.
So this December, we arrived at this debate about whether to grant
the telecoms retroactive immunity. Three other committees had examined
this issue, and all three of the committees, in the House and in this
body, had determined that retroactive immunity was not warranted. Only
one committee decided it was, but that committee has prevailed in the
last several days, weeks, and months in this debate, and as such we are
now confronted with cloture being invoked, cutting off debate here
about the subject matter. And given the votes today, in all likelihood
this body is not going to change its mind on this issue. Our only hope,
those of us who feel strongly about this, is that the other body, the
House of Representatives, which has taken a very different point of
view, will be able to prevail in the conference between these two
bills, and deny retroactive immunity.
Let me point out quickly that denying retroactive immunity does not
mean the phone companies will necessarily be found guilty of doing
something wrong. All it means is that the coequal branch of Government,
the judicial branch, will get a chance to look at whether what they did
was legal. I have my own opinions about this, but my opinions should
not prevail, nor should the opinions of 51 Members of this body. We are
not the judicial branch, we are the legislative branch.
The Founders of this great Republic of ours created three coequal
branches of Government, and the judicial branch was designed and
created to check the actions of the executive and legislative branches
and determine whether things we did were constitutional--legal--or not.
That is why they exist. So the debate about whether what the companies
did or did not do is legal is not a matter for this body to determine,
any more than it is for the executive branch. It is the judicial branch
that should make that determination. Yet, by the action we took earlier
today, we are now going to close the door on determining whether the
action taken by the phone companies was legal.
Sweep it under the carpet, close the door, and we will set the
precedent for some future Congress, which will point to this debate and
its conclusion and decide that the Congress of the United States found
that the FISA Court was not needed or, that in fact the President could
collect whatever data and information he wanted--maybe medical records,
maybe financial records, maybe personal histories of families.
I feel passionately about this issue. This is the first time in my
quarter of a century service here that I have engaged in what might be
called some ``extended debate''--that is how deeply I care about this
issue.
Nothing is more important, in my view, than the rule of law and the
Constitution. No threat is so urgent that we should be willing to
abandon the rule of law. But that is exactly what we have done. And it
is a false and phony argument to claim that failing to do so would
jeopardize our security. There is a long history of the judicial branch
of Government in this country dealing with sensitive national security
matters in camera, without revealing state secrets. The suggestion that
we cannot possibly let the courts look at the use of warrantless
wiretapping is so false on its face it is hardly worthy of an argument
to the contrary.
In fact, Judge Walker, a Republican appointee to the Federal bench, I
might point out, has ridiculed the argument that these matters could
not go before the judicial branch for review. There is no longer a
debate about whether the wiretapping program is in the public--it is.
And the means and technology used to do it have publicly been discussed
and debated.
This decision deprives us of the opportunity to determine exactly
what happened. I would further point out that but for the insistence of
the chairman of this committee and the ranking member, and I suspect
others, the administration would have succeeded in immunizing everyone
involved with this, everyone within the executive branch, the White
House, the Justice Department.
The chairman and the ranking member said that was going too far. But
that request is instructive. What do we
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learn from it? Why did the administration demand of the Intelligence
Committee that everyone associated with this matter be immunized
against any further legal action? What was the motive behind it?
Doesn't that suggest that something else must be going on?
That is where we are in all of this. Again, I apologize to my
colleagues and others for taking so much time to talk about this. But
as I mentioned last evening, I grew up in a family with a father who
was deeply involved in the rule of law. He was a prosecutor at the
Nuremberg trials in 1945 and 1946, a rather unique moment in American
history, where because of an American President, because of a Secretary
of War, because of a Supreme Court Justice and a handful of others,
America did not yield to the vengeance, even for those enemies we hated
the most: Nazis who had incinerated 6 million Jews and 5 million others
targeted for their politics, religion, and otherwise. Why would you
possibly give that crowd a trial? A handful of Americans, Republicans
and Democrats, got together and said: America is different. We believe
in the rule of law in the United States. And we believe the rule of law
is something that does not necessarily belong to one Nation or
sovereignty; it belongs to all people, reaching back to our own
founding documents that tell us that the rule of law, not the rule of
man, ought to prevail.
So the United States, along with our very reluctant allies, created
the Nuremberg trials, which established the moral high ground for the
United States in so many ways. As a result, 21 defendants in the first
trial got a lawyer and got to present evidence and defend themselves--
because we followed the rule of law.
It was the moral high ground and the basis for so much else that was
created in the post World War II period: The international courts, the
U.N. system, the NATO system, the Marshall Plan. All these institutions
sprang from that what we helped create in the wake of World War II and
the Nuremberg trials.
So I grew up around a dining room table where the rule of law was
talked about all the time. I was taught that our Constitution did not
belong to a political party, it did not belong to politicians or
candidates.
And I remember that great scene in the movie ``A Man For All
Seasons,'' where Thomas More is asked if he would not be willing to cut
down all the laws in England to get his hands on the devil.
And More responds, and I am paraphrasing his quote: When I have cut
down every law in England to get to the devil and the devil comes after
me, what laws will stand there to protect me?
So while some may feel comfort that they are being protected by this
decision we have made, they should remind themselves the worm does
turn, and someday they may find themselves on the opposite side of this
question.
So this debate should not be framed as the issue of the hour; rather,
it is about the principle behind it, and that is the rule of law. The
power of courts to decide the legality and illegality of actions is so
deeply imbedded in our Constitution, so deeply imbedded in the fabric
of how we conduct ourselves, that it ought not to be the subject of a
partisan discussion and debate.
That is why I have fought to keep this day from coming with
everything I had in me. I have not fought alone. Many average Americans
have given me strength for this fight, strength that comes from the
passion and eloquence of citizens who do not have to be involved, but
choose to be involved. I thank them for it.
But today when I speak in this body against this immunity and for the
rule of law, I am speaking for a minority. And respecting the rule of
law anywhere means respecting it everywhere, even when it means we do
not win. The rule of law says we, the minority, cannot stand forever;
and having made our case with all the fire in us, we stand down and
wait for a different day and a different set of circumstances.
I will say this, though. I have seen some dark days in this Chamber;
in my mind, one of the worst was September 28, 2007. That was the day
the Senate voted to strip habeas corpus and tolerate torture.
Today, February 12, 2008, is nearly as dark: the day the Senate voted
to ensure secrecy and to exempt corporations from the rule of law.
Frankly, I have seen a lot of darkness in recent years, as one by one
our dearest traditions of constitutional governance have been attacked.
At each new attack, millions of Americans have stood up in outrage;
but millions more have answered with patience. One might fault them for
that, but I do not. More than two centuries of democratic tradition
have nurtured that patience; it speaks well of our Democratic faith
that so many take the rule of law in America as a given.
If millions have not yet noticed the rule of law falling, that is
because it has so far to fall. But fall it will, if we remove our
support for it. The law in America is not a gift or an inheritance; it
is the active work of every generation to preserve and protect it.
As America's patience wears thinner and thinner, and as more and more
citizens take up that active work, our minority will--I have faith that
it will--make itself a majority.
But today was not that day. And so the Senate has signed its name to
this immunity, this silencing of our courts, this officially sanctioned
secrecy, without a majority of us evening laying eyes on the secret
papers that are supposed to prove the President's case.
Retroactive immunity is a disgrace in itself. And in the last months
I believe we have proved that beyond a reasonable doubt. But it is even
more disgraceful in all it represents. It is the mindset that the
Church Committee summed up so eloquently three decades ago.
The view that the traditional American principles of
justice and fair play have no place in our struggle against
the enemies of freedom.
That view created the Nixonian secrecy of the 1970s, and the Church
Committee wrote those words, in part, as a rebuke to our predecessors
in this Chamber who for years let secrecy and executive abuses slide.
But today those words take on a new meaning. Today they rebuke us. They
shame us for our lack of faith that we can, at the same time, keep our
country safe and our Constitution whole.
When the 21st century version of the Church Committee convenes to
investigate the abuse of the past years, how will it judge us? What
will it say about us when they look back on our actions? When it reads
through the records of our debate--not if, but when--what will it find?
When the President asked us to repudiate the Geneva Conventions and
strip away the right of habeas corpus, how did we respond?
When images of American troops tormenting detainees were broadcasted
around the world, how did we protest?
When stories of secret prisons and outsourced torture became
impossible to deny, how did we resist?
And on February 12, 2008, when we were asked to put corporations
explicitly outside the law and accept at face value the argument that
some are literally too rich to be sued, how did we vote?
All of those questions are coming for us. All of them and more. And
in the quiet of his or her own conscience, each Senator knows what the
answers are.
I fought so long against retroactive immunity because, in this huge
fabric of lawlessness, it was the closest thread to grab. I believed if
we grabbed hold and pulled, it would begin to unravel. That has not
happened.
But if we believe that each assault against the rule of law was an
accident, that each was isolated, we are deluding ourselves. If the
past is any guide, there will be another one. And hope, as they say,
springs eternal. I hope we will stand up then.
And perhaps we will have the chance to do so very soon. As I
mentioned a few minutes ago, the House of Representatives has passed a
version of this bill without retroactive immunity. It will be the job
of the conference between the House of Representatives and the Senate
to reconcile the two versions of this bill.
And before I stand down, I wish to implore the members of that
committee, in the strongest terms I can find, to strip retroactive
immunity from this bill once and for all. Remember, this is about more
than a few telephone calls, a few companies, a few lawsuits. If the
supporters of retroactive immunity keep this small, they win. In truth,
the issue we have debated for the last few months, the issue
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that will finally come to a head in this conference committee, is so
much more. At stake is our latest answer to the defining question: The
rule of law or the rule of men?
That question never goes away. As long as there are free societies,
generations of leaders will struggle mightily to answer it. Each
generation must answer for itself; and just because our Founders
answered it correctly does not mean they are bound by their choice. In
that, as in all decisions, we are entirely free; the whole burden falls
on us.
But we can take counsel. We can listen to those who came before us,
who made the right choice, even when our Nation's very survival was at
risk. They knew that the rule of law was far more rooted in our
character than any one man's lawlessness.
I do not think that has changed at all. Secure in that faith, I will
sit down now and end my part in this conversation. But when the
question of the rule of law or the rule of men comes again, which it
surely will, I will be proud to stand up once more. And if this bill
comes back with retroactive immunity, I will speak against that
travesty--the denial of the rule of law in favor of the rule of men.
I yield the floor.
The PRESIDING OFFICER (Mr. Salazar). The Senator from Washington is
recognized.
Ms. CANTWELL. I rise today to express concerns about the FISA
Amendments Act S. 2248 before us. This morning, the Senate lost an
opportunity to strengthen this bill. And, unfortunately, without those
critical provisions, I will have to oppose the bill before us. I thank
the Senator from Connecticut for his leadership in fighting against
this bill. I know he will be back on this issue at every opportunity.
Mr. President, I rise to join this debate. I have been, over many
years, interested and involved in privacy rights issues in a variety of
capacities. Certainly, the residents of my state care passionately
about their rights to privacy.
This administration has done a lot to blur the line between foreign
intelligence gathering and spying on U.S. citizens. Now, the
legislation before us today could have been improved to better protect
the rights of U.S. citizens by passing amendments proposed by my
colleague Senator Feingold, but we turned those down.
Instead what has been a delicate balance in the United States to
protect the rights of privacy of U.S. citizens and national security is
going to be further eroded.
Congress has limited powers and so does the President. The President
does not and should not have unchecked power in this or any other area.
It would be contrary to our American values and our system of
government, which has endured for more than 231 years.
When strengthening national security, we must also safeguard civil
liberties and the privacy rights of American citizens. I cannot support
a bill that fails to strike this critical balance, as the original
Foreign Intelligence Surveillance Act (FISA) did. We didn't allow the
government to have unchecked unlimited authority then, and we shouldn't
allow it now. There have been times in the past when both Democratic
and Republican administrations lost sight of the need to protect U.S.
citizens' privacy rights.
We all want to protect the United States, but how good is this
approach if the end result is that everyone thinks that there is a back
door to our computer operating systems, a back door to our
telecommunication systems? Who will want to do business in the United
States if they think there are no secure systems, only systems to which
the U.S. government will have access? Communications over the Internet,
regardless of country of origin or country of destination, know no
national boundaries, and travel by the most efficient route. If the Act
as currently drafted goes forward, it may lead to an international
reexamination of how the Internet should operate. FISA has been a very
important part of our checks and balances.
In our country, a Senator cannot pick or choose what laws they follow
and neither should the President nor telecommunication companies.
Congress should not be providing blanket immunity for
telecommunications companies that cooperated with the Administration's
warrantless wiretapping programs. We don't know precisely what those
companies did or the full extent of what they did.
I believe the Federal courts should be allowed to rule on the
legality of the companies' conduct. Congress should not move to preempt
judicial decisions. Special procedures can be put in place that could
allow such cases to move ahead without revealing classified information
or damaging U.S. national security. Specifically, I want to touch on
the lawsuit the Electronic Frontier Foundation (EFF) filed against a
large telecom company, accusing it of violating FISA, on behalf of a
class of its customers. If retroactive immunity is granted to telecom
providers, the lawsuit will be dismissed, and the public will never get
an opportunity of getting even a glimpse of what happened.
The issue of the Federal Government and telecoms possibly violating
FISA came to light in part as a result of the actions of a brave
whistleblower. According to media reports and internal AT&T documents
provided by this whistleblower, Mark Klein, the telecom company
allegedly splits off a copy of all of the Internet traffic transported
over fiber-optic cables running though its San Francisco office and
diverts it all--e-mails, IMs, web browsing, everything--to a secure
room under the control of the National Security Agency that contains
sophisticated data-mining equipment capable of monitoring all the
communications' content in real-time. What appears to have happened is
a major change in how electronic surveillance is conducted in this
country. Surveillance used to be particularized--investigators would
pick a target and then intercept the communications of that target. But
now, it appears the Administration is using advances in technology to
move to a wholesale surveillance regime, where everything is
intercepted and then investigators sift through the hay to pick their
targets. In other words, the Administration is seizing millions of
Americans' communications--billions of phone calls and e-mails and
more--in a 21st century high-tech equivalent of the King's general
warrants that our Founders fought a revolution to avoid.
The Electronic Frontier Foundation wants a court to be able to decide
whether this new mode of surveillance is or can ever be legal, under
FISA or the fourth amendment. Letting the courts decide that question
is critical to checks and balances, critical to ensuring that Congress'
privacy laws are followed and the fourth amendment respected, and
critical to preventing abuses of power. Therefore, I urge my colleagues
to allow this case to move forward. I urge them to allow the Federal
courts to rule on the legality of the companies' conduct. These are the
issues, I believe, that must be reviewed by the courts. I think passing
this legislation really preempts what is critical judicial review and
undermines the fundamental principle of checks and balances in our
system.
I know these are challenging times. But we have to remember our
Constitution and to remember what is effective policy. Everybody in
America wants to be safer and we want to use technology to protect our
national security. But, technology can be used in a way that protects
privacy rights. This all goes back to checks and balances. Instead of
rushing to dismantle them, Congress needs to maintain and strengthen
these checks and balances in order to prevent abuses of power. This
model has worked for our country.
I encourage my colleagues to make sure we remember the fourth
amendment and we remember our citizens' rights to privacy as well in
considering this legislation, which I hope the Senate will turn down
this afternoon.
Mr. ROCKEFELLER. Mr. President, under a unanimous Consent agreement,
the Senate has accepted three amendments to the FISA Amendments Act of
2008. I would like to say a word about each.
The senior Senator from Massachusetts has authored a helpful
amendment to ensure that the Government will not intentionally acquire
communications where the sender and all intended recipients are known
at the time of the acquisition to be located in the United States.
Our bill, S. 2248, is not intended to authorize the intelligence
community to acquire purely domestic communications.
[[Page S897]]
Electronic surveillance of purely domestic communications requires a
court order under title I of FISA. In addition, S. 2248 explicitly
prohibits the targeting of persons known at the time of acquisition to
be located inside the United States.
The importance of the Kennedy amendment is that it reinforces our
intent. It should put to rest any doubts about what the Senate intends
with respect to protecting the communications of persons within the
United States. I am grateful for the willingness of the Senator Kennedy
to work with the committee on this amendment.
I would also like to acknowledge his leading role in the history of
FISA as the sponsor of the original FISA legislation, first in 1976,
and then when FISA was enacted in 1978. Senator Kennedy helped the
Congress then to enact legislation that protects both our national
security and the rights of Americans. We are grateful that he has
stepped forward again to help us achieve those goals.
Under the unanimous consent agreement, the Senate has accepted an
amendment by Senator Whitehouse that resolves an important question
about the status, pending appeal, of an order by the Foreign
Intelligence Surveillance Court requiring correction of deficiencies in
intelligence collection procedures under the new title VII of FISA.
The amendment requires the FISA Court of Review to determine, within
60 days of the Government's appeal, whether all or part of a FISA Court
order requiring correction will be implemented during the appeal. The
Government may continue collection until the appellate court makes that
determination, and longer if the Court so determines. The 60-day
requirement ensures that the matter will receive appellate attention
without undue delay.
We appreciate Senator Whitehouse's successful effort to resolve this
matter.
Finally, under the unanimous consent agreement, the Senate has
accepted an amendment by Vice Chairman Bond to delete a statutory
requirement that appeals in cases either challenging or seeking to
enforce directives to companies be filed within 7 days. The amendment
leaves it to the FISA Court or the Court of Review to establish that
deadline as they do for all other appeals under FISA.
The amendment recognizes the responsibility of those courts to
establish rules. And it recognizes that both the Government and
carriers may require additional time to evaluate whether an appeal
should be filed.
I appreciate the vice chairman's effort to resolve this matter.
Mr. OBAMA. Mr. President, I am disappointed that the Senate has
rejected several commonsense improvements to the Intelligence
Committee's FISA proposal. I commend my colleagues, Senators Dodd,
Feingold, Tester, Webb, Whitehouse, Leahy, Specter and others, for
proposing these solutions, and I welcome the outpouring of interest on
this issue from informed and concerned citizens around the country.
News last week from the Intelligence Committee hearing underscored
the importance of ensuring that our surveillance laws protect our
security, just as we must vigilantly safeguard our civil liberties.
Director of National Intelligence McConnell warned that al-Qaida
continues to train and recruit new adherents to attack within the
United States, and such reports should serve to unite us in common
purpose against the terrorists that threaten our homeland. Instead,
President Bush is using this debate once again to divide us through a
politics of fear.
I was disappointed to learn of the President's threat to veto any
FISA bill that does not include an unprecedented grant of immunity for
telephone companies that cooperated with the President's warrantless
wiretapping program. Why the President continues to try to hold this
important legislation captive to that special interest provision defies
explanation.
I was proud to cosponsor the Dodd-Feingold amendment to strike the
immunity provision from the bill. However, with the defeat of this
amendment, telephone companies will not be held accountable even if it
could be proven that they clearly and knowingly broke the law and
nullified the privacy rights of Americans. This is a matter for the
courts to decide, not for preemptive action by the Senate.
We can give our intelligence and law enforcement community the powers
they need to track down and take out terrorists without undermining our
commitment to the rule of law or our basic rights and liberties. That
is why I cosponsored the Feingold amendment, which would have prevented
the Government from using these extraordinary warrantless powers to
conduct ``bulk collection'' of American information. I also supported
the Feingold-Webb-Tester amendment to protect the privacy of Americans'
communications by requiring court orders to monitor American
communications on American soil, unless there is reason to believe that
the communications involve terrorist activities directed at the United
States or the monitoring is necessary to prevent death or serious
bodily harm. Unfortunately, these amendments were defeated as well.
These are the types of narrowly tailored, commonsense fixes that would
have allowed the Government to conduct surveillance without sacrificing
our precious civil liberties.
For over 6 years since the attacks of 9/11, this administration has
approached issues related to terrorism as opportunities to use fear to
advance ideological policies and political agendas. It is time for this
politics of fear to end.
We need durable tools in this fight against terrorism--tools that
protect the liberties we cherish and the security we demand. We are
trying to protect the American people, not special interests like the
telecommunications industry. We are trying to ensure that we don't
sacrifice our liberty in pursuit of security, and it is past time for
the administration to join us in that effort.
There is no need for the goals of security and liberty to be
contradictory.
Mr. LEVIN. Mr. President, last year Congress passed a temporary bill
with a 6-month time limit that would give us the opportunity to carry
out a thorough, thoughtful examination of how to utilize complicated
new technologies in the surveillance of suspected terrorists without
invading the privacy of innocent Americans. In the months since we
passed that temporary act, we have worked in a bipartisan manner to
consider the best course forward for permanent changes to the Foreign
Intelligence Surveillance Act. Despite the enormous complexity of these
issues, we reached a bipartisan consensus on the key provisions
contained in title I of the bill we are considering today.
I believe that title I of the bill before us appropriately provides
the intelligence community the authority it needs to collect
intelligence information on suspected terrorists. The collection of
that intelligence is important to our national security and merits
congressional support. That is why I helped write the Rockefeller-Levin
substitute amendment that we voted on last summer, why I voted in favor
of the Leahy substitute amendment that we considered in January, and
why I support title I of the bill before us today. In my view, the
Rockefeller-Levin substitute, the Leahy substitute, and title I of this
bill all provide for the appropriate collection of intelligence
information on suspected terrorists.
Title I of this bill would provide the needed authority for
collection of that information in a responsible manner.
Title I of this bill, unlike the temporary act which we passed last
summer, would not authorize the targeting of U.S. persons for
electronic surveillance without probable cause.
Title I of this bill, unlike the temporary act, would not authorize
the administration to collect communications--including communications
to and from U.S. persons--for months without even submitting the
collection program for court approval.
Title I of this bill, unlike the temporary act, would not authorize
the administration to continue to collect such communications for an
extended period even after the FISA Court has specifically rejected an
application for approval.
Title I of this bill, unlike the temporary act, would expressly
authorize judicial review of the targeting and so-called minimization
procedures in order to protect the privacy rights of U.S. persons.
[[Page S898]]
Title I of this bill, unlike the temporary act, would require regular
inspector general reviews and regular reports to Congress on any
authorized collection program.
I congratulate Senator Rockefeller and other colleagues on their
success in achieving the administration's support for these well-
crafted title I provisions, which are significant improvements over the
temporary bill hastily adopted last year.
Title II of the bill is a different story. Title II would eliminate
accountability by granting retroactive immunity for telecommunications
providers that disclosed communications and other confidential
information of their customers at the behest of Government officials.
They did this despite a law specifically making it illegal to do so.
Unlike title I, there is no bipartisan agreement on title II.
Title II would require dismissal of lawsuits brought by persons
claiming injury from interception and disclosure of their
communications, even if the activity resulting in the injury was
illegal. It would require dismissal of lawsuits, even if the disclosure
violated the constitutional rights of individuals whose personal
information was illegally disclosed. It would require dismissal of
lawsuits, even if innocent U.S. citizens were damaged by the disclosure
or compromise of confidential personal information.
Retroactive immunity is not fair. It is not wise. And it is not
necessary.
Retroactive immunity is not fair because it leaves American citizens
who may have been harmed by the alleged unlawful conduct of these
providers without any legal remedy.
Retroactive immunity is not wise because it precludes any judicial
review of that conduct. I am deeply concerned that if we act here to
immunize private parties who participated in a program that appears to
have been clearly illegal, we may encourage others to engage in such
illegal activities in the future. In a free society, illegal activity
cannot be excused on the grounds that Government officials asked you to
carry it out. There must be accountability for illegal acts. As
written, title II eliminates some critically required accountability.
Nor is retroactive immunity necessary. Congress has already ensured
the future cooperation of the telecommunications providers with the
intelligence community in the Protect America Act adopted last August.
That act authorizes the Attorney General or the Director of National
Intelligence to direct telecommunications providers to disclose certain
information and provides prospective immunity to telecommunications
providers that cooperate with such directives.
Title I of the bill before us appropriately continues to provide
prospective immunity to telecommunications providers. Title I states:
Notwithstanding any other law, no cause of action shall lie
in any court against any electronic communication service
provider for providing any information, facilities, or
assistance in accordance with a directive issued by the
Attorney General or the Director of National Intelligence
pursuant to the act.
In light of the prospective immunity in title I, which is
appropriately in this bill, the retroactive immunity of title II is not
necessary to ensure the future cooperation of telecommunications
providers that receive legitimate requests for information from the
intelligence community.
The argument has been made that we must provide retroactive immunity
to the telecommunications providers to ensure the cases against them
are immediately dismissed because if the cases are permitted to
proceed, vital national security information will be disclosed. But the
courts have numerous tools at their disposal to protect such
information and have successfully used these tools throughout our
history. They can review evidence in a classified setting; they can
redact documents; they can even dismiss a case for national security
reasons if they deem it necessary to do so.
Some have even taken the position that the mere existence of this
litigation, even without the disclosure of any information, will
somehow help the terrorists. But the President has already disclosed
the existence of the collection program at issue. It has been discussed
in Congress and in the press. The Director of National Intelligence has
publicly discussed the program.
There is a way to properly immunize from legal liability
telecommunications providers that acted in good faith based on the
assurances of appropriate administration officials. The way to do that
is by substituting the United States for the telecommunications
providers as the defendant in lawsuits based on the actions of those
providers. That substitution would safeguard telecommunications
providers from liability just as effectively as the retroactive
immunity language in title II of the bill. But unlike the retroactive
immunity language of title II, it would not leave persons who can prove
they were victims of unlawful actions without a remedy.
We can ensure that any such innocent victims retain whatever legal
rights they have under applicable law, except that the U.S. Government
would be substituted for the telecommunications providers as the
defendant in such lawsuits. And it is appropriate that the Government
be liable rather than the telecommunications providers, since the
disclosures were allegedly made by the providers in these cases at the
request of senior executive branch officials based on appeals to help
safeguard U.S. security and assurances that the providers would be
protected from liability regardless of the requirements of law.
We had a number of opportunities to provide equity both to the
telecommunications providers and to any injured citizens.
We had the opportunity to adopt the Dodd-Feingold amendment, which
would have struck title II from the bill, allowing us to adopt a new
approach that protects both the equities of telecommunications
providers that acted in good faith and those of people who were
allegedly injured by their illegal actions.
We had the opportunity to adopt the Specter-Whitehouse substitution
amendment, which would have fully protected telecommunications
providers, without depriving American citizens who were harmed by
unlawful collection of their personal information of a legal remedy. It
did so by substituting the United States for the telecommunications
providers as the defendant in lawsuits based on the actions of those
providers. That substitution would safeguard telecommunications
providers from liability just as effectively as the retroactive
immunity language in title II of the bill.
And we had the opportunity to adopt the Feinstein
amendment, which would have limited immunity to those
telecommunications providers that are found by a court to
have acted in reasonable, good-faith reliance on assurances
from executive branch officials.
The adoption of these amendments would have made a significant
improvement to the bill. With their rejection, I cannot support this
bill despite my support for title I, which again, appropriately,
authorizes the collection of intelligence. But it is my hope that a
bill comes from conference with the House of Representatives that
includes appropriate changes to eliminate unfair, unwise, and
unnecessary retroactive immunity provisions.
I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. LEAHY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mrs. McCaskill). Without objection, it is so
ordered.
Mr. LEAHY. Madam President, what is the parliamentary situation?
The PRESIDING OFFICER. The Senator from Vermont has 20 minutes.
Mr. LEAHY. Madam President, the Foreign Intelligence Surveillance Act
FISA is intended to protect our national security. It is also intended
to protect the privacy and civil liberties of Americans. The law was
passed to protect the rights of Americans after the excesses of an
earlier time.
We are debating amendments to this important law. I had hoped the
Senate would act to improve the bill reported by the Select Committee
on Intelligence. It has not. I had hoped the Senate would incorporate
improvements included in the House-passed RESTORE Act and the bill
reported by the Senate Judiciary Committee. It has not.
[[Page S899]]
I had hoped the administration would work with us. It has not.
Instead, having gotten exactly the bill they want, in the way they
want, from the Intelligence Committee, they have threatened a
Presidential veto if we improve this bill in any way or fix its flaws.
I had hoped that Republican Senators would work with us as we have
worked together to amend FISA dozens of times over the last 30 years
and to update it in more than a dozen ways even since September 11,
2001. But instead of working in a bipartisan fashion, as I have seen
before in my 34 years in the Senate, in an unprecedented way,
Republicans voted lockstep to table the Judiciary Committee
improvements and virtually lockstep against every individual amendment
and improvement.
Worse, the Republican leadership has stalled action on the measure
for weeks. They continue to insist it is their way or no way. Sadly,
with the acquiescence of even some on this side of the aisle, they have
controlled the debate, the bill, and the final result in the Senate.
Working together we could have done so much better. I look forward to
working with the House to make improvements that are needed to this
measure before I can support it.
The process has been, in large part, a repeat of that which led to
the so-called Protect America Act last summer. That ill-conceived
measure was rushed through the Senate in an atmosphere of fear and
intimidation just before the August recess, and after the
administration had broken their word and reneged on agreements reached
with congressional leaders. The bill was hurriedly passed under intense
partisan pressure from the administration. It provided sweeping new
powers to the Government to engage in surveillance, without a warrant,
of calls to and from the United States involving Americans, and it
provided no meaningful protection for the privacy and civil liberties
of Americans who were on those calls.
I was here when we first passed FISA because we knew what happened
when we had an out-of-control administration. We saw it during the
Watergate years. We saw it with J. Edgar Hoover. We saw those who
wiretapped people because they didn't like what they said, they
disagreed with the administration; they actually raised questions about
the Vietnam war. Sometimes it would help if everybody read a history
book every now and then around here. Some seem too willing to give up
the liberties for which we fought.
The Senate should have considered and incorporated more meaningful
corrections to the so-called Protect America Act. Before that flawed
bill passed, Senator Rockefeller and I and several others in the House
and Senate had worked hard and in good faith with the administration to
craft legislation that solved an identified problem but also protected
Americans' privacy and liberties.
We all want to protect our security. We all want the ability to go
after those who would do this country harm. And we drafted legislation
that would have taken care of the problem they told us about.
But just before the August recess, we got a call. Basically, the
Director of National Intelligence told us they could not keep their
word, they could not keep the administration's word, and the
administration decided to ram through its version of the so-called
Protect America Act, with excessive grants of Government authority and
without accountability or checks and balances. They refused to consider
any other way.
After almost 6 years of breaking the law and violating FISA through
secret warrantless wiretapping programs, that was wrong. A number of us
supported a better balanced alternative, and we voted against the
Protect America Act as drafted by the administration and passed by the
Senate.
Ironically, the reason we were even voting on it is that the press
found out how the administration was breaking the law. Even though the
administration was required by statute to tell leaders in Congress what
they were doing, which was a clear violation of the law, they had
failed to do that. Fortunately, we still have some remnant of a free
press in this country and they found it out.
Because of a sunset provision, we had a chance to revisit that matter
and correct it. The Judiciary Committees and the Intelligence
Committees of the Senate and the House spent the past months
considering changes to FISA. In the Senate Judiciary Committee, we held
open hearings and countless briefings and meetings to consider new
surveillance legislation, including classified meetings. We considered
legislative language in a number of open business meetings of the
committee, and we reported a good bill to the Senate. This was before
last Thanksgiving.
Instead of that bill, a good bill, the Senate is poised to pass a
bill that will permit the Government to review more Americans'
communications with little in the way of meaningful court supervision.
I support surveillance targeting foreign threats, but I wanted to
make sure we protect those American liberties that, after all, we
fought a Revolutionary War to protect and a civil war and two World
Wars and not just give it away because some people around here get cold
feet when threatened by the administration.
Attorney General Mukasey said at his nomination hearing that
``protecting civil liberties, and people's confidence that those
liberties are protected, is a part of protecting national security.'' I
agree with him about that. That is what the Senate judiciary bill would
have done.
The administration insists on avoiding accountability by including
blanket retroactive immunity in their bill. It would grant blanket
retroactive immunity to telecommunications carriers for their
warrantless surveillance activities from 2001 through earlier this year
contrary to FISA and in violation of the privacy rights of Americans.
The administration violated FISA by conducting warrantless
surveillance for more than 5 years. They got caught. Frankly, if they
had not gotten caught, they would probably still be doing it. When the
public found out about the President's illegal surveillance of
Americans, the administration and telephone companies were sued by
citizens who believed their privacy and their rights were violated.
So now the administration is trying to get this Congress to terminate
those lawsuits. But don't believe the crocodile tears of this
administration, saying they are doing it to protect these telephone
companies. This is, after all, the same administration that owed the
telephone companies millions of dollars in unpaid bills for
wiretapping. They will not even pay their bills.
No, the reason they want this provision is to protect those in the
administration who broke the law. They don't want anybody to find out
which members of the Department of Justice so thwarted the law in
writing cockamamie legal opinions that a first-year law student would
see through. They want to insulate themselves from accountability. I am
not going to support such an end run around accountability.
The administration knows these lawsuits may be the only way that it
is ever going to be called to account for its flagrant disrespect of
the law. In running its illegal program of warrantless surveillance,
the administration relied on legal opinions prepared in secret and
shown to only a tiny cabal of like-minded officials.
This ensured that the administration received the advice they wanted.
Don't tell us what the law is; tell us what we want the law to be. I
used to read my children ``Alice in Wonderland.'' Now I read my
grandchildren ``Alice in Wonderland.'' This sounds like ``Alice in
Wonderland.''
Jack Goldsmith, a conservative Republican who came in briefly to head
the Justice Department's Office of Legal Counsel, described the program
as a ``legal mess.'' This administration does not want a court to have
a chance to look at this legal mess, and retroactive immunity will
assure not that they are protecting telephone companies, but that they
will cover their own backsides. They want to protect themselves.
The rule of law is fundamentally important in our system, and so is
protecting the rights of Americans from unlawful surveillance. I do not
believe Congress can or should seek to take those rights and those
claims from those already harmed. As I said, I worked with Senator
Specter and both Senators Feinstein and Whitehouse to try to craft more
effective alternatives
[[Page S900]]
to retroactive immunity. We worked with the legal concept of
substitution, replacing Government in the shoes of private defendants
that acted at its behest. Let it assume full responsibility for the
illegal conduct.
Substitution would have protected the telephone companies. It would
have placed the administration in their shoes in the lawsuits. But the
truth is that the administration doesn't really care about the
telephone companies. They are worried only about the American public
finding out what they did illegally, how they violated the laws and the
Constitution of this country.
I also supported Senator Feinstein's proposal to strengthen the role
of the FISA Court in this regard. The administration and its allies in
the Senate defeated both of these viable alternatives to retroactive
immunity. The administration, by trying to frighten people, warded off
all efforts of compromise and accommodation. They don't want to be held
accountable, and they have enough Senators who will protect them so
they will not be held accountable--not to the Congress or, more
importantly, to the American people.
The Senate was forced to vote on retroactive immunity even though not
all Senators had access to the information they needed to make an
informed judgment about the Government's and the phone companies'
conduct. The majority leader wrote to the administration last year
urging such access, and I supported it. Of course, we got had no
response. The administration ignored the request. After all, if we knew
what we were doing around here, we might actually make them stand up
and be responsible for their actions, which is the last thing in the
world they want. It is clear they do not want to allow Senators or
anyone else to evaluate their lawlessness. Their rule is no
accountability. Whether it is Scooter Libby or anyone else, no
accountability. We will protect those who break the law on our behalf.
I have drawn very different conclusions from Senator Rockefeller
about retroactive immunity. I agree with Senator Specter and many
others that blanket retroactive immunity, which would end ongoing
lawsuits by legislative fiat, undermines accountability.
Senator Specter has been working diligently, first as chairman of the
Judiciary Committee and now as ranking member, to obtain judicial
review of the legality of warrantless wiretapping of Americans from
2001 until last year. The checks and balances the judiciary provides in
our constitutional democracy has an important role to play. Every one
of us, if we follow our oath of office, should want to protect that.
Judicial review can and should provide a measure of accountability.
I believe protecting the rule of law is important, and I believe in
protecting the rights of Americans from unlawful surveillance. I do not
believe the Congress can or should seek to take those rights and those
claims from those already harmed. Moreover, ending ongoing litigation
eliminates the only viable avenue of accountability for the
Government's illegal actions.
Therefore, I say again, I oppose retroactive immunity. There should
be a measure of accountability for the administration's actions in the
years following 9/11. If it is simply a case of protecting the
telephone companies, then why don't we vote for something that would
put the Government in their shoes? Why don't we? Because that is the
last thing in the world this administration wants because then they
would have to answer to how many different people in the Bush
administration broke the law.
I don't believe anybody is above the law. I don't believe the
President is; I don't believe a Senator is; I don't believe anybody
is. Keep in mind, as I said earlier, why we have FISA. Congress passed
that law only after we discovered the shameful abuses of J. Edgar
Hoover's FBI. Through the COINTEL Program--sometimes called
COINTELPRO--Director Hoover spied on Americans who objected and spoke
out against the war in Vietnam. I objected and spoke out against the
war in Vietnam. Many Vermonters opposed that war. I wonder how many
Vermonters were spied on for daring to speak out against it.
Ironically, Madam President, in April of 1975, the United States
Senate voted by a one-vote margin in the Armed Services Committee to
stop the war in Vietnam. A year later, it was hard to find anybody in
this body who had supported it, although obviously an awful lot of
Senators had.
Well, I wonder if we are going to look back that same way someday and
ask: were we so frightened by 9/11 that we were willing to throw away
everything this country fought for, everything that has made this
country great through our history?
We can protect Americans' rights. We can protect those things our
forefathers fought a revolution to obtain, that we fought a civil war
to protect, that we fought two world wars to cement. We can protect
ourselves. But we cannot protect ourselves if we do not protect our
rights. Are we going to throw our rights away because of a group of
terrorists? This Senator is not going to.
Let us show the American people and the world what America stands
for. We can and will do all we can to secure the future for ourselves,
our children, and our grandchildren. At the same time, we can protect
the cherished rights and freedoms that define America and make this
country different from all others. Those are the rights and freedoms
that protected past generations and allow us to have an American
future. If we do not protect them, what will we leave to our children
and grandchildren?
Let us stand up for American values. Let us not be afraid to preserve
our freedom while protecting our national security.
Madam President, I retain the remainder of my time, and 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. LEAHY. Madam President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I ask unanimous consent that the vote on
passage of S. 2248, as amended, occur at 5:30 p.m. today,
notwithstanding rule XII, paragraph 4, and that the time specified in
the previous order remain in effect, with the time from 5:10 to 5:30
equally divided and controlled between the leaders, with the majority
leader controlling the final 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. Madam President, I yield back the remainder of my time,
and 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. ROCKEFELLER. 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. 4018 To Amendment No. 3911
Mr. ROCKEFELLER. Madam President, I ask unanimous consent that the
amendment at the desk making technical and conforming changes to the
bill be in order, notwithstanding the adoption of the substitute
amendment, and that the amendment be adopted. This consent request has
been approved by both leaders.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The amendment (No. 4018) was agreed to, as follows:
(Purpose: To make technical corrections)
On page 7, beginning on line 14, strike ``, consistent with
the requirements of section 101(h) or section 301(4),
minimization procedures'' and insert ``minimization
procedures that meet the definition of minimization
procedures under section 101(h) or section 301(4)''.
On page 8, line 13, strike ``168 hours'' and insert ``7
days''.
On page 26, beginning on line 22, strike ``consistent with
the requirements of section 101(h) or section 301(4)'' and
insert ``that meet the definition of minimization procedures
under section 101(h) or section 301(4)''.
On page 32, line 3, strike ``subsection (2)'' and insert
``subsection (b)''.
On page 35, line 6, strike ``obtained;'' and insert
``obtained,''.
On page 35, line 18, strike ``168 hours'' and insert ``7
days''.
On page 35, line 24, strike ``subsection'' and insert
``section''.
On page 36, line 6, strike ``168 hours'' and insert ``7
days''.
On page 36, line 16, strike ``168-hour'' and insert ``7-
day''.
[[Page S901]]
On page 40, beginning on line 16, strike ``consistent with
the requirements of section 101(h) or section 301(4)'' and
insert ``that meet the definition of minimization procedures
under section 101(h) or section 301(4)''.
On page 44, line 15, strike ``clause'' and insert
``subparagraph''.
On page 45, line 15, strike ``obtained;'' and insert
``obtained,''.
On page 46, line 2, strike ``168 hours'' and insert ``7
days''.
On page 46, line 8, strike ``subsection'' and insert
``section''.
On page 46, lines 14 and 15, strike ``168 hours'' and
insert ``7 days''.
On page 46, line 24, strike ``168-hour'' and insert ``7-
day''.
On page 48, beginning on line 13, strike ``orders under
section 704(b) or section 705(b)'' and insert ``orders under
section 704(c) or section 705(c)''.
On page 54, beginning on line 22, strike ``during the
period such directive was in effect'' and insert ``for
information, facilities, or assistance provided during the
period such directive was or is in effect''.
On page 60, line 4, strike ``reasonably''.
On page 60, line 5, strike ``determines'' and insert
``reasonably determines''.
On page 60, line 10, strike ``determines'' and insert
``reasonably determines''.
On page 60, lines 20 and 21, strike ``168 hours'' and
insert ``7 days''.
On page 61, line 7, strike ``168 hours'' and insert ``7
days''.
On page 65, line 6, strike ``168 hours'' and insert ``7
days''.
On page 65, lines 16 and 17, strike ``168 hours'' and
insert ``7 days''.
On page 67, line 2, strike ``168 hours'' and insert ``7
days''.
On page 67, line 4, strike ``168 hours'' and insert ``7
days''.
Mr. ROCKEFELLER. Madam President, after a long debate, we are, in
fact, ready to, hopefully, pass the FISA bill. This has been an
extremely important debate over important issues critical to the
Nation's security.
As I discussed at the beginning of the debate, the guiding principle
in bringing this bill to the Senate floor was to modernize our ability
to collect communications intelligence against foreign targets without
compromising the constitutional and statutory privacy protections
afforded to all Americans. In my mind, we have achieved this goal.
Vice Chairman Bond and I worked very hard in the Intelligence
Committee to produce a balanced and bipartisan bill. One can say
whatever one wants, but 13 to 2 is 13 to 2. I think we can be proud of
the improvements we have made to the bill each step of the way since
last September. But, in fact, it goes all the way back almost a year.
In the end, the bill we are about to pass, I hope, strengthens our
national security and represents a very significant improvement over
the Protect America Act that passed last summer.
Let me mention a few of the provisions we have included in the bill
for protecting the rights of Americans here in the United States and
overseas.
We require an individual FISA order for the targeting of U.S. persons
believed to be located outside the United States any time the
collection is conducted inside the United States.
We have also put in place for the first time a procedure requiring
FISA Court approval for collection on United States persons outside of
the United States in circumstances that would require a warrant if
undertaken within the United States. This has never before existed. It
now exists in the FISA law, if we do, in fact, pass it.
We have increased the role of the FISA Court in other significant
ways, starting with the new requirement that the FISA Court approve the
minimization procedures that are essential to the treatment of
information concerning Americans authorized under this act. And thanks
to Senator Whitehouse's amendment adopted this morning, we have
clarified that the FISA Court has inherent authority to enforce
compliance with the procedures that it, and it alone, can approve.
We also adopted new requirements to give Congress visibility into how
the new collection authority is being implemented, from the Feingold
amendment on FISA Court documents, to the new requirements for
reporting by the Attorney General and the Director of National
Intelligence.
Just as we have worked on a bipartisan basis here in the Senate in
order to achieve the strongest possible bill, I believe now is the time
to work with our colleagues in the House of Representatives to achieve
a true bipartisan, bicameral bill. I look forward to that dialog with
our House colleagues.
I would note there are additional measures I support which may make
this legislation even stronger. Among these would be the exclusivity
amendment of Senator Feinstein that received a strong bipartisan
majority vote this morning. I think it was 57 votes. I commend her for
all of her work she has done on this critical issue and on other parts
of the bill, and I will fight like heck for her in the conference
committee, if we are to have one. We will continue to work with her and
with Vice Chairman Bond to see if there is any way to bridge the
differences in the bipartisan manner that has dominated our
negotiations throughout this procedure.
In closing, it would not have been possible to have reached this
point without the hard work of the staff of the Intelligence and
Judiciary Committees, as well as the leadership staff. From the
Intelligence Committee, I thank Andy Johnson; Louis Tucker; Melvin
Dubee; Michael Davidson; Jack Livingston; Christine Healey; Alissa
Starzak; and Kathleen Rice. I also thank Mary DeRosa, Nick Rossi,
Zulima Espinel, and Matt Solomon of the Judiciary Committee; and Ron
Weich, Serena Hoy, and Marcel Lettre of the majority leader's staff.
Finally, I must recognize the steadfast support and work of the
committee's vice chairman, Senator Bond. The work of the Intelligence
Committee is not easy. When it comes on the floor, it is more difficult
because there is a certain kind of exclusivity which is not appreciated
by some Members but is the way it works.
Vice Chairman Bond has been dogged in his efforts to move this whole
thing forward. He is formidable in his pursuit of intelligence and his
insistence it be made available to the committee and to the appropriate
committees; and he is flexible in his willingness to find compromises
to keep our bipartisan coalition together.
I hope this bill does pass. I think it is landmark legislation. I
don't think all will see it that way at the very beginning, and that is
OK because what we do is not so much of the moment but for the longer
term. So there may be disagreements on immunity. But, on the other
hand, there can be no disagreements on the national security of the
United States. Immunity has been narrowly tailored. A lot of people
don't know that, or maybe made up their minds at the beginning, but,
whatever, we did what we thought was the right thing to do.
One of the great things about being in this body is no matter what
people say and what people think, if you do what you think is right,
you are serving your country.
I thank the Presiding Officer 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. McCONNELL. Madam President, I ask unanimous consent that the
order for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Madam President, are we now in my designated time?
The PRESIDING OFFICER. We are.
Mr. McCONNELL. Madam President, earlier today the Senate voted to
invoke cloture on the bipartisan Rockefeller-Bond bill. It was not a
close vote. Rather, it was a strong bipartisan show of support for this
important piece of legislation.
The Protect America Act expires at the end of this week. That is
Saturday, February 16.
Twenty-one House Democrats have written to Speaker Pelosi saying they
``fully support'' the Rockefeller-Bond bill if it is not changed
substantially--and it was not changed--and they urge her, the Speaker,
to ``quickly consider'' the bill in order ``to get a bill signed into
law before the Protect America Act expires in February.''
I have a copy of the letter signed by 21 Democrats, so-called Blue
Dog Democrats, in the House. I ask unanimous consent that it be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Congress of the United States,
Washington, DC, January 28, 2008.
Dear Madam Speaker: Legislation reforming the Foreign
Intelligence Surveillance Act (FISA) is currently being
considered by the Senate. Following the Senate's passage of a
FISA bill, it will be necessary for the House to quickly
consider FISA legislation
[[Page S902]]
to get a bill to the President before the Protect America Act
expires in February.
It is our belief that such legislation should include the
following provisions: Require individualized warrants for
surveillance of U.S. citizens living or traveling abroad;
Clarify that no court order is required to conduct
surveillance of foreign-to-foreign communications that are
routed through the United States; Provide enhanced oversight
by Congress of surveillance laws and procedures; Compel
compliance by private sector partners; Review by FISA Court
of minimization procedures; Targeted immunity for carriers
that participated in anti-terrorism surveillance programs.
The Rockefeller-Bond FISA legislation contains satisfactory
language addressing all these issues and we would fully
support that measure should it reach the House floor without
substantial change. We believe these components will ensure a
strong national security apparatus that can thwart terrorism
across the globe and save American lives here in our country.
It is also critical that we update the FISA laws in a
timely manner. To pass a long-term extension of the Protect
America Act, as some may suggest, would leave in place a
limited, stopgap measure that does not fully address critical
surveillance issues. We have it within our ability to replace
the expiring Protect America Act by passing strong,
bipartisan FISA modernization legislation that can be signed
into law and we should do so--the consequences of not passing
such a measure could place our national security at undue
risk.
Sincerely,
Leonard L. Boswell, ------, Mike Ross, Bud Cramer, Heath
Shuler, Allen Boyd, Dan Boren, Jim Matheson, Lincoln
Davis, Tim Holden, Dennis Moore, Earl Pomeroy, Melissa
L. Bean, John Barrow, Joe Baca, John Tanner, Jim
Cooper, Zachary T. Space, Brad Ellsworth, Charlie
Melancon, Christopher P. Carney.
Mr. McCONNELL. Madam President, it is clear that not only does the
Rockefeller-Bond bill enjoy bipartisan majority support in the Senate,
it also enjoys bipartisan majority support in the House. It is a
tribute to the fine work of the Senator from West Virginia, Mr.
Rockefeller, and the Senator from Missouri, Mr. Bond, in pulling this
complex piece of legislation together and getting extraordinary support
across the aisle.
This bill protects the country. It is a bill that will be signed by
the President of the United States, so we are making a law here. We
need to focus on completing action on this legislation and get it to
the President before the Protect America Act expires.
As to further delays: Back in August, our Democratic colleagues said
an additional 6 months was needed to get this right. In the fall, they
said: We need a little more time. Last month, they said: Give us
another 15 days and we can wrap it up. At this point, no Member of this
body can reasonably state this piece of legislation was hastily or
unfairly considered. It has been the product of 6 months' work, intense
work on behalf of Senator Rockefeller and Senator Bond.
We do not need yet another extension, yet another delay. We need to
focus on getting our work done. I am confident that with the help of
our friends on the other side of the aisle, we can get a second
bipartisan accomplishment to the President in as many weeks. Tomorrow,
he will sign the stimulus package--an important bipartisan
accomplishment. Later in the week, he could conceivably be in a
position to sign this important piece of bipartisan legislation.
I encourage my colleagues in the House and the Senate to redouble
their efforts toward this end. That would show the American people that
Congress can indeed function on a bipartisan basis on important issues
before the country.
I am among those proud of the fine work done by Senator Rockefeller
and Senator Bond. This is a terrific, important piece of legislation. I
know it will pass the Senate shortly, overwhelmingly.
I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. BOND. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOND. Madam President, is there time remaining on this side prior
to the vote?
The PRESIDING OFFICER. Four and a half minutes remain.
Mr. BOND. Madam President, with the sufferance of the minority
leader, I thank my colleagues, especially Senator Rockefeller, and all
those who worked with us. We have had to make a number of very tough
votes. We made some good changes in the bill. I thank, particularly,
Senators Wyden, Feinstein, and Whitehouse for working with us to
achieve their objectives in a way that would allow the program to
continue.
Approximately 10 months ago, the DNI, Admiral McConnell, came to
Congress and asked that we update FISA. Changes in technology had
resulted in the FISA Court rulings or interpretations that impeded the
effective use of electronic surveillance against terrorists overseas.
This problem came to a head in May 2007, when there was a FISA Court
ruling causing significant gaps in our intelligence collection against
foreign terrorists. Throughout the summer of 2007 and amid growing
concern of increased threats to our security in light of these gaps,
Congress was asked by the DNI to act. And Congress, in August, passed
the Protect America Act, a short-term fix that did what it was supposed
to do. It was lacking in one important aspect; it did not provide civil
liability protection to those private partners who assisted the
intelligence community.
Following passage of the PAA, Chairman Rockefeller and I immediately
set to work to come up with a bipartisan permanent solution. We worked
closely with the intelligence community.
In the end, after many hearings, briefings, debate, and visits to the
facility, we did pass it on a 13-to-2 vote. We concluded that those
electronic communication service providers that assisted with the
President's TSP acted in good faith and deserve civil liability
protection from frivolous lawsuits. As indicated by the chairman, this
bill goes further than any legislation in history in protecting the
privacy of U.S. persons, mostly Americans, whose communications may be
acquired incidentally to this foreign targeting. For the first time in
history, it requires the FISA Court to approve targeting of U.S.
persons, American citizens, overseas to obtain foreign intelligence
information.
This bill was a series of delicate compromises. Both sides had to
give. Many of us would have preferred to have all litigation related to
the TSP terminated as the DNI originally requested. Again, we agreed,
for reasons set forth on the floor, that cases against Government
officials--and all criminal cases--could go forward.
Others believed the FISA Court should not approve targeting of
Americans abroad, particularly when these same protections are not
afforded in ordinary criminal cases. In the spirit of compromise, we
created a process that allows sufficient flexibility while addressing
privacy concerns.
In the end, I am proud to say we have accomplished our collective
goals of making sure we have a bill with clear authorities for foreign
targeting, with strong protections for Americans, and with civil
liability protection for those providers who may have assisted with the
President's terrorist surveillance program.
We have heard debate over the past several weeks on a number of
amendments that I believe would have proved harmful to our intelligence
collection efforts. Some would have shut down, or severely impeded,
intelligence collection against foreign terrorists. That is one of the
reasons we worked so closely with the intelligence community to
ascertain what could be done to increase protections without harming
their ability to collect.
We now have a solid bill. The DNI will support it and the President
can sign it into law. I urge my colleagues to send this bill to the
House with a strong bipartisan vote. It gives our intelligence
operators and law enforcement officials the tools they need to conduct
surveillance of foreign terrorists in foreign countries who are
planning to conduct attacks against the U.S., our troops, and our
allies. It is a balance we need to protect our civil liberties, without
handcuffing our intelligence professionals.
I hope we can do the right thing and pass the bill. I thank all our
colleagues who helped.
I yield the floor.
The PRESIDING OFFICER. The majority leader is recognized.
[[Page S903]]
Mr. REID. Madam President, I want the Record to reflect that any of
my remarks where I disagree with the bill before the Senate in no way
reflects upon the chairman of the committee. I have known Jay
Rockefeller for several decades, and I have not known a better public
servant than Jay. Jay Rockefeller got into Government for the right
reasons. We know that the Rockefeller name is magic, that he could have
led a life of leisure, doing many different things. But he chose public
service. He went to West Virginia doing work as a VISTA volunteer. He
fell in love with the people--the poor people--of West Virginia and has
worked since then to improve the lives of the people of West Virginia.
He has done a wonderful job there, serving as the secretary of state,
Governor, and now as a long-time Senator.
There are certain things in this legislation that I disagree with.
But I repeat, as a public servant, there is not one better--or I doubt
that there ever has been anyone better than Jay Rockefeller. He has
devoted his Senate life in service to the Intelligence Committee. He
devotes night and day not only working in the Committee room where
there is no exposure to the public--he gets no publicity for doing
this. He does it because he believes it is the right thing for the
country. Of course, I receive calls from him well after hours on
concerns he has in dealing with foreign intelligence generally.
I already voted against it on the FISA legislation, and I will vote
``no'' on final passage of the bill.
The Senate's debate on FISA has made the Intelligence Committee's
bill better--no question about that--by adding a number of protections
from the Judiciary Committee's version.
The Senate adopted amendments offered by Senators Kennedy,
Whitehouse, and Feingold to improve title I of the bill. This concerns
the procedures we use to conduct this kind of surveillance in the
future. That is an improvement. But the Senate rejected amendments to
strike and modify various parts of title I, to improve title I, and
rejected all amendments to strike or modify title II concerning
immunity for telecommunications companies that may have broken the law
by abiding the White House's requests for warrantless wiretaps on
American citizens.
I believe the White House and any companies that broke the law must
be held accountable.
In their unyielding effort to expand Presidential powers, President
Bush and Vice President Cheney created a system to conduct
wiretapping--including on American citizens--outside the bounds of
longstanding Federal law.
As I have said before--and books have been written on it--the
President, as soon as we passed the first PATRIOT Act, after he joined
with us in celebrating it, he basically ignored it and did whatever he
wanted to do because he was told by the White House staff he was above
the law, he didn't have to follow the law we passed.
The President could have taken the simple step at any time of
requesting new authority from Congress. All he would have had to do was
come talk to us. We would have been willing to listen to him and, very
likely, would have done anything he wanted to do. After all, Congress
has repeatedly amended FISA because of new technology and legitimate
needs in the intelligence community.
But whether out of convenience, incompetence, or outright disdain for
the rule of law, the Bush-Cheney administration chose to ignore
Congress and ignore the Constitution.
The White House should bear responsibility for this reckless disdain
for the rule of law.
It also appears that many companies followed the administration's
orders without regard to the law or privacy, or even basic common
sense. I always will support giving our intelligence community the
tools it needs to collect intelligence on terrorists and other foreign
targets. We have to do that.
We always have and always will need to help in the private sector to
protect our country. That is clear. When companies comply with legal
and constitutional directives to support intelligence and law
enforcement activities, they have no reason to fear. But the
requirement and obligation they have for protecting the rights of
American citizens and the Constitution and FISA are perfectly clear,
very clear.
According to the press reports, at least one company--Qwest
Communications Company--refused the White House request to participate
in this program. The others had an opportunity to do the same. As far
as we know, they chose not to. They didn't follow the example of Qwest.
If the Senate had voted today to reject amnesty, we would have sent a
message that no one is above accountability and no one is above the
law. If we had rejected amnesty, we would have sent a message that
fighting terrorism doesn't require the sacrifice of basic fundamental
rights.
I was disappointed that the Senate rejected amendments opposing
immunity. Even though their efforts were unsuccessful, all Americans
owe a debt of gratitude to two outstanding and principled Senators,
Senators Feingold and Dodd. I don't mean in any way to suggest that
people who disagree with them are not outstanding or are unprincipled.
That isn't the case. There is a basic disagreement. I felt I needed to
applaud and commend these two men for how hard they worked in making
their point. I believe they stood up to the administration, which
certainly needs standing up to. They stood up for accountability.
Despite today's votes, there is no doubt in my mind that history will
prove they were right. Millions of Americans joined this effort. Win or
lose, their voices were heard and their efforts made a difference.
If the Senate votes for final passage of FISA today, which I suspect
will be the case, we must decide what comes next. The mere fact that we
pass something today, and the House passed something previously,
doesn't mean we have anything to send to the President.
Two weeks ago, in the runup to the State of the Union Address--and we
have heard it time and again--the President and Vice President and
Senate Republicans believed it was urgent to pass the FISA bill, that
it is critical to our national security. But then, Senate Republicans
spent most of the time since then refusing to allow any votes on FISA
amendments, slow-walking the bill as part of a strategy to jam the
House. That is what happened. I have to suggest that they deserve a pin
on their lapel because they set out and did what they wanted to do--
stall this as long as they could.
A week and a half ago, as the February 1 sunset to the Protect
America Act approached, we passed a 15-day extension. This would have
allowed 2 weeks to negotiate with the House, which would have been
rushed, but we could have at least had meaningful meetings. Those will
not take place.
Unfortunately, the White House has been convinced that if they
dragged this process out long enough, there would not be enough time to
negotiate a bill with the House. The White House is convinced they can
force the House to pass exactly the bill they want. I believe it is
wrong for the White House to do this, and I believe it is unfair to the
House of Representatives.
Due to months of White House foot-dragging, the relevant House
committees have only just gotten the documents relating to immunity.
They need some time to review and analyze that.
We must not let this critical issue be resolved by the White House
trying to force the House to do something they didn't want to do, such
as happened last August.
I plan to ask, after this legislation passes today, unanimous consent
for an extension in order to allow sufficient time for negotiation with
the House. My friend, the distinguished Republican leader, has already
said there will be no extensions given. I hope that is not the case,
and with this extra time, the conference committee can make further
improvements to this critical bill.
Why do we need to improve the bill?
Richard Clarke, a national security adviser to Presidents Reagan,
Bush Sr., and President Clinton, said it well in an op-ed:
FISA has and still works as the most valuable mechanism for
monitoring our enemies.
In order to defeat the violent Islamic extremists who do
not believe in human rights, we need not give up the civil
liberties, constitutional rights and protections that
generations of Americans fought to achieve.
The Bush-Cheney White House continues to sell us a false choice
between
[[Page S904]]
security and liberty. I reject that choice.
This is America and we are Americans. We can and must have both
liberty and security.
It is my understanding we are ready to vote on final passage.
The PRESIDING OFFICER. The question is on passage of S. 2248, as
amended.
Mr. BOND. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a second?
There appears to be a sufficient second.
The clerk will call the roll.
The legislative clerk called the roll.
Mr. DURBIN. I announce that the Senator from New York (Mrs. Clinton)
and the Senator from Illinois (Mr. Obama) are necessarily absent.
Mr. KYL. The following Senator is necessarily absent: the Senator
from South Carolina (Mr. Graham).
Further, if present and voting, the Senator from South Carolina (Mr.
Graham) would have voted ``yea.''
The result was announced--yeas 68, nays 29, as follows:
[Rollcall Vote No. 20 Leg.]
YEAS--68
Alexander
Allard
Barrasso
Baucus
Bayh
Bennett
Bond
Brownback
Bunning
Burr
Carper
Casey
Chambliss
Coburn
Cochran
Coleman
Collins
Conrad
Corker
Cornyn
Craig
Crapo
DeMint
Dole
Domenici
Ensign
Enzi
Grassley
Gregg
Hagel
Hatch
Hutchison
Inhofe
Inouye
Isakson
Johnson
Kohl
Kyl
Landrieu
Lieberman
Lincoln
Lugar
Martinez
McCain
McCaskill
McConnell
Mikulski
Murkowski
Nelson (FL)
Nelson (NE)
Pryor
Roberts
Rockefeller
Salazar
Sessions
Shelby
Smith
Snowe
Specter
Stevens
Sununu
Thune
Vitter
Voinovich
Warner
Webb
Whitehouse
Wicker
NAYS--29
Akaka
Biden
Bingaman
Boxer
Brown
Byrd
Cantwell
Cardin
Dodd
Dorgan
Durbin
Feingold
Feinstein
Harkin
Kennedy
Kerry
Klobuchar
Lautenberg
Leahy
Levin
Menendez
Murray
Reed
Reid
Sanders
Schumer
Stabenow
Tester
Wyden
NOT VOTING--3
Clinton
Graham
Obama
The bill (S. 2248), as amended, was passed.
The PRESIDING OFFICER. Under the previous order, the Senate will
proceed to the consideration of H.R. 3773, which the clerk will report.
The legislative clerk read as follows:
A bill (H.R. 3773) to amend the Foreign Intelligence
Surveillance Act of 1978 to establish a procedure for
authorizing certain acquisitions of foreign intelligence, and
for other purposes.
The PRESIDING OFFICER. Under the previous order, all after the
enacting clause is stricken and the text of S. 2248, as amended, is
inserted in lieu thereof; the bill, as amended, is considered read the
third time and passed, the motion to reconsider made and laid upon the
table, and passage of S. 2248 vitiated and that bill be returned to the
calendar.
The bill (H.R. 3773), as amended, was passed, as follows:
H.R. 3773
Resolved, That the bill from the House of Representatives
(H.R. 3773) entitled ``An Act to amend the Foreign
Intelligence Surveillance Act of 1978 to establish a
procedure for authorizing certain acquisitions of foreign
intelligence, and for other purposes.'', do pass with the
following amendment:
Strike out all after the enacting clause and insert:
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``Foreign
Intelligence Surveillance Act of 1978 Amendments Act of
2008'' or the ``FISA Amendments Act of 2008''.
(b) Table of Contents.--The table of contents for this Act
is as follows:
Sec. 1. Short title; table of contents.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
Sec. 101. Additional procedures regarding certain persons outside the
United States.
Sec. 102. Statement of exclusive means by which electronic surveillance
and interception of domestic communications may be
conducted.
Sec. 103. Submittal to Congress of certain court orders under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 104. Applications for court orders.
Sec. 105. Issuance of an order.
Sec. 106. Use of information.
Sec. 107. Amendments for physical searches.
Sec. 108. Amendments for emergency pen registers and trap and trace
devices.
Sec. 109. Foreign Intelligence Surveillance Court.
Sec. 110. Weapons of mass destruction.
Sec. 111. Technical and conforming amendments.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
Sec. 201. Definitions.
Sec. 202. Limitations on civil actions for electronic communication
service providers.
Sec. 203. Procedures for implementing statutory defenses under the
Foreign Intelligence Surveillance Act of 1978.
Sec. 204. Preemption of State investigations.
Sec. 205. Technical amendments.
TITLE III--OTHER PROVISIONS
Sec. 301. Severability.
Sec. 302. Effective date; repeal; transition procedures.
TITLE I--FOREIGN INTELLIGENCE SURVEILLANCE
SEC. 101. ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS
OUTSIDE THE UNITED STATES.
(a) In General.--The Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1801 et seq.) is amended--
(1) by striking title VII; and
(2) by adding after title VI the following new title:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``SEC. 701. LIMITATION ON DEFINITION OF ELECTRONIC
SURVEILLANCE.
``Nothing in the definition of electronic surveillance
under section 101(f) shall be construed to encompass
surveillance that is targeted in accordance with this title
at a person reasonably believed to be located outside the
United States.
``SEC. 702. DEFINITIONS.
``(a) In General.--The terms `agent of a foreign power',
`Attorney General', `contents', `electronic surveillance',
`foreign intelligence information', `foreign power',
`minimization procedures', `person', `United States', and
`United States person' shall have the meanings given such
terms in section 101, except as specifically provided in this
title.
``(b) Additional Definitions.--
``(1) Congressional intelligence committees.--The term
`congressional intelligence committees' means--
``(A) the Select Committee on Intelligence of the Senate;
and
``(B) the Permanent Select Committee on Intelligence of the
House of Representatives.
``(2) Foreign intelligence surveillance court; court.--The
terms `Foreign Intelligence Surveillance Court' and `Court'
mean the court established by section 103(a).
``(3) Foreign intelligence surveillance court of review;
court of review.--The terms `Foreign Intelligence
Surveillance Court of Review' and `Court of Review' mean the
court established by section 103(b).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored; or
``(E) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), or (D).
``(5) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``SEC. 703. PROCEDURES FOR TARGETING CERTAIN PERSONS OUTSIDE
THE UNITED STATES OTHER THAN UNITED STATES
PERSONS.
``(a) Authorization.--Notwithstanding any other law, the
Attorney General and the Director of National Intelligence
may authorize jointly, for periods of up to 1 year, the
targeting of persons reasonably believed to be located
outside the United States to acquire foreign intelligence
information.
``(b) Limitations.--An acquisition authorized under
subsection (a)--
``(1) may not intentionally target any person known at the
time of acquisition to be located in the United States;
``(2) may not intentionally target a person reasonably
believed to be located outside the United States if the
purpose of such acquisition is to target a particular, known
person reasonably believed to be in the United States, except
in accordance with title I or title III;
``(3) may not intentionally target a United States person
reasonably believed to be located outside the United States,
except in accordance with sections 704, 705, or 706;
``(4) shall not intentionally acquire any communication as
to which the sender and all intended recipients are known at
the time of the acquisition to be located in the United
States; and
``(5) shall be conducted in a manner consistent with the
fourth amendment to the Constitution of the United States.
[[Page S905]]
``(c) Conduct of Acquisition.--An acquisition authorized
under subsection (a) may be conducted only in accordance
with--
``(1) a certification made by the Attorney General and the
Director of National Intelligence pursuant to subsection (f);
and
``(2) the targeting and minimization procedures required
pursuant to subsections (d) and (e).
``(d) Targeting Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt targeting procedures that are reasonably designed
to ensure that any acquisition authorized under subsection
(a) is limited to targeting persons reasonably believed to be
located outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(2) Judicial review.--The procedures referred to in
paragraph (1) shall be subject to judicial review pursuant to
subsection (h).
``(e) Minimization Procedures.--
``(1) Requirement to adopt.--The Attorney General, in
consultation with the Director of National Intelligence,
shall adopt minimization procedures that meet the definition
of minimization procedures under section 101(h) or section
301(4) for acquisitions authorized under subsection (a).
``(2) Judicial review.--The minimization procedures
required by this subsection shall be subject to judicial
review pursuant to subsection (h).
``(f) Certification.--
``(1) In general.--
``(A) Requirement.--Subject to subparagraph (B), prior to
the initiation of an acquisition authorized under subsection
(a), the Attorney General and the Director of National
Intelligence shall provide, under oath, a written
certification, as described in this subsection.
``(B) Exception.--If the Attorney General and the Director
of National Intelligence determine that immediate action by
the Government is required and time does not permit the
preparation of a certification under this subsection prior to
the initiation of an acquisition, the Attorney General and
the Director of National Intelligence shall prepare such
certification, including such determination, as soon as
possible but in no event more than 7 days after such
determination is made.
``(2) Requirements.--A certification made under this
subsection shall--
``(A) attest that--
``(i) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) is targeted at persons reasonably believed to be located
outside the United States and that such procedures have been
approved by, or will be submitted in not more than 5 days for
approval by, the Foreign Intelligence Surveillance Court
pursuant to subsection (h);
``(ii) there are reasonable procedures in place for
determining that the acquisition authorized under subsection
(a) does not result in the intentional acquisition of any
communication as to which the sender and all intended
recipients are known at the time of the acquisition to be
located in the United States, and that such procedures have
been approved by, or will be submitted in not more than 5
days for approval by, the Foreign Intelligence Surveillance
Court pursuant to subsection (h);
``(iii) the procedures referred to in clauses (i) and (ii)
are consistent with the requirements of the fourth amendment
to the Constitution of the United States and do not permit
the intentional targeting of any person who is known at the
time of acquisition to be located in the United States or the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
acquisition to be located in the United States;
``(iv) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(v) the minimization procedures to be used with respect
to such acquisition--
``(I) meet the definition of minimization procedures under
section 101(h) or section 301(4); and
``(II) have been approved by, or will be submitted in not
more than 5 days for approval by, the Foreign Intelligence
Surveillance Court pursuant to subsection (h);
``(vi) the acquisition involves obtaining the foreign
intelligence information from or with the assistance of an
electronic communication service provider; and
``(vii) the acquisition does not constitute electronic
surveillance, as limited by section 701; and
``(B) be supported, as appropriate, by the affidavit of any
appropriate official in the area of national security who
is--
``(i) appointed by the President, by and with the consent
of the Senate; or
``(ii) the head of any element of the intelligence
community.
``(3) Limitation.--A certification made under this
subsection is not required to identify the specific
facilities, places, premises, or property at which the
acquisition authorized under subsection (a) will be directed
or conducted.
``(4) Submission to the court.--The Attorney General shall
transmit a copy of a certification made under this
subsection, and any supporting affidavit, under seal to the
Foreign Intelligence Surveillance Court as soon as possible,
but in no event more than 5 days after such certification is
made. Such certification shall be maintained under security
measures adopted by the Chief Justice of the United States
and the Attorney General, in consultation with the Director
of National Intelligence.
``(5) Review.--The certification required by this
subsection shall be subject to judicial review pursuant to
subsection (h).
``(g) Directives and Judicial Review of Directives.--
``(1) Authority.--With respect to an acquisition authorized
under subsection (a), the Attorney General and the Director
of National Intelligence may direct, in writing, an
electronic communication service provider to--
``(A) immediately provide the Government with all
information, facilities, or assistance necessary to
accomplish the acquisition in a manner that will protect the
secrecy of the acquisition and produce a minimum of
interference with the services that such electronic
communication service provider is providing to the target;
and
``(B) maintain under security procedures approved by the
Attorney General and the Director of National Intelligence
any records concerning the acquisition or the aid furnished
that such electronic communication service provider wishes to
maintain.
``(2) Compensation.--The Government shall compensate, at
the prevailing rate, an electronic communication service
provider for providing information, facilities, or assistance
pursuant to paragraph (1).
``(3) Release from liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with a
directive issued pursuant to paragraph (1).
``(4) Challenging of directives.--
``(A) Authority to challenge.--An electronic communication
service provider receiving a directive issued pursuant to
paragraph (1) may challenge the directive by filing a
petition with the Foreign Intelligence Surveillance Court,
which shall have jurisdiction to review such a petition.
``(B) Assignment.--The presiding judge of the Court shall
assign the petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section, or is otherwise unlawful.
``(D) Procedures for initial review.--A judge shall conduct
an initial review not later than 5 days after being assigned
a petition described in subparagraph (C). If the judge
determines that the petition consists of claims, defenses, or
other legal contentions that are not warranted by existing
law or by a nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new law, the
judge shall immediately deny the petition and affirm the
directive or any part of the directive that is the subject of
the petition and order the recipient to comply with the
directive or any part of it. Upon making such a determination
or promptly thereafter, the judge shall provide a written
statement for the record of the reasons for a determination
under this subparagraph.
``(E) Procedures for plenary review.--If a judge determines
that a petition described in subparagraph (C) requires
plenary review, the judge shall affirm, modify, or set aside
the directive that is the subject of that petition not later
than 30 days after being assigned the petition, unless the
judge, by order for reasons stated, extends that time as
necessary to comport with the due process clause of the fifth
amendment to the Constitution of the United States. Unless
the judge sets aside the directive, the judge shall
immediately affirm or affirm with modifications the
directive, and order the recipient to comply with the
directive in its entirety or as modified. The judge shall
provide a written statement for the records of the reasons
for a determination under this subparagraph.
``(F) Continued effect.--Any directive not explicitly
modified or set aside under this paragraph shall remain in
full effect.
``(G) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(5) Enforcement of directives.--
``(A) Order to compel.--In the case of a failure to comply
with a directive issued pursuant to paragraph (1), the
Attorney General may file a petition for an order to compel
compliance with the directive with the Foreign Intelligence
Surveillance Court, which shall have jurisdiction to review
such a petition.
``(B) Assignment.--The presiding judge of the Court shall
assign a petition filed under subparagraph (A) to 1 of the
judges serving in the pool established by section 103(e)(1)
not later than 24 hours after the filing of the petition.
``(C) Standards for review.--A judge considering a petition
filed under subparagraph (A) shall issue an order requiring
the electronic communication service provider to comply with
the directive or any part of it, as issued or as modified, if
the judge finds that the directive meets the requirements of
this section, and is otherwise lawful.
``(D) Procedures for review.--The judge shall render a
determination not later than 30 days after being assigned a
petition filed under subparagraph (A), unless the judge, by
order for reasons stated, extends that time if necessary to
comport with the due process clause of the fifth amendment to
the Constitution of the United States. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
``(E) Contempt of court.--Failure to obey an order of the
Court issued under this paragraph may be punished by the
Court as contempt of court.
``(F) Process.--Any process under this paragraph may be
served in any judicial district in which the electronic
communication service provider may be found.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government or an
electronic communication
[[Page S906]]
service provider receiving a directive issued pursuant to
paragraph (1) may file a petition with the Foreign
Intelligence Surveillance Court of Review for review of the
decision issued pursuant to paragraph (4) or (5). The Court
of Review shall have jurisdiction to consider such a petition
and shall provide a written statement for the record of the
reasons for a decision under this paragraph.
``(B) Certiorari to the supreme court.--The Government or
an electronic communication service provider receiving a
directive issued pursuant to paragraph (1) may file a
petition for a writ of certiorari for review of the decision
of the Court of Review issued under subparagraph (A). 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.
``(h) Judicial Review of Certifications and Procedures.--
``(1) In general.--
``(A) Review by the foreign intelligence surveillance
court.--The Foreign Intelligence Surveillance Court shall
have jurisdiction to review any certification required by
subsection (c) and the targeting and minimization procedures
adopted pursuant to subsections (d) and (e).
``(B) Submission to the court.--The Attorney General shall
submit to the Court any such certification or procedure, or
amendment thereto, not later than 5 days after making or
amending the certification or adopting or amending the
procedures.
``(2) Certifications.--The Court shall review a
certification provided under subsection (f) to determine
whether the certification contains all the required elements.
``(3) Targeting procedures.--The Court shall review the
targeting procedures required by subsection (d) to assess
whether the procedures are reasonably designed to ensure that
the acquisition authorized under subsection (a) is limited to
the targeting of persons reasonably believed to be located
outside the United States and does not result in the
intentional acquisition of any communication as to which the
sender and all intended recipients are known at the time of
the acquisition to be located in the United States.
``(4) Minimization procedures.--The Court shall review the
minimization procedures required by subsection (e) to assess
whether such procedures meet the definition of minimization
procedures under section 101(h) or section 301(4).
``(5) Orders.--
``(A) Approval.--If the Court finds that a certification
required by subsection (f) contains all of the required
elements and that the targeting and minimization procedures
required by subsections (d) and (e) are consistent with the
requirements of those subsections and with the fourth
amendment to the Constitution of the United States, the Court
shall enter an order approving the continued use of the
procedures for the acquisition authorized under subsection
(a).
``(B) Correction of deficiencies.--If the Court finds that
a certification required by subsection (f) does not contain
all of the required elements, or that the procedures required
by subsections (d) and (e) are not consistent with the
requirements of those subsections or the fourth amendment to
the Constitution of the United States, the Court shall issue
an order directing the Government to, at the Government's
election and to the extent required by the Court's order--
``(i) correct any deficiency identified by the Court's
order not later than 30 days after the date the Court issues
the order; or
``(ii) cease the acquisition authorized under subsection
(a).
``(C) Requirement for written statement.--In support of its
orders under this subsection, the Court shall provide,
simultaneously with the orders, for the record a written
statement of its reasons.
``(6) Appeal.--
``(A) Appeal to the court of review.--The Government may
appeal any order under this section to the Foreign
Intelligence Surveillance Court of Review, which shall have
jurisdiction to review such order. For any decision
affirming, reversing, or modifying an order of the Foreign
Intelligence Surveillance Court, the Court of Review shall
provide for the record a written statement of its reasons.
``(B) Continuation of acquisition pending rehearing or
appeal.--Any acquisitions affected by an order under
paragraph (5)(B) may continue--
``(i) during the pendency of any rehearing of the order by
the Court en banc; and
``(ii) if the Government appeals an order under this
section, until the Court of Review enters an order under
subparagraph (C).
``(C) Implementation pending appeal.--Not later than 60
days after the filing of an appeal of an order under
paragraph (5)(B) directing the correction of a deficiency,
the Court of Review shall determine, and enter a
corresponding order regarding, whether all or any part of the
correction order, as issued or modified, shall be implemented
during the pendency of the appeal.
``(D) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of a
decision of the Court of Review issued under subparagraph
(A). 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.
``(i) Expedited Judicial Proceedings.--Judicial proceedings
under this section shall be conducted as expeditiously as
possible.
``(j) Maintenance and Security of Records and
Proceedings.--
``(1) Standards.--A record of a proceeding under this
section, including petitions filed, orders granted, and
statements of reasons for decision, shall be maintained under
security measures adopted by the Chief Justice of the United
States, in consultation with the Attorney General and the
Director of National Intelligence.
``(2) Filing and review.--All petitions under this section
shall be filed under seal. In any proceedings under this
section, the court shall, upon request of the Government,
review ex parte and in camera any Government submission, or
portions of a submission, which may include classified
information.
``(3) Retention of records.--A directive made or an order
granted under this section shall be retained for a period of
not less than 10 years from the date on which such directive
or such order is made.
``(k) Assessments and Reviews.--
``(1) Semiannual assessment.--Not less frequently than once
every 6 months, the Attorney General and Director of National
Intelligence shall assess compliance with the targeting and
minimization procedures required by subsections (e) and (f)
and shall submit each such assessment to--
``(A) the Foreign Intelligence Surveillance Court; and
``(B) the congressional intelligence committees.
``(2) Agency assessment.--The Inspectors General of the
Department of Justice and of any element of the intelligence
community authorized to acquire foreign intelligence
information under subsection (a) with respect to their
department, agency, or element--
``(A) are authorized to review the compliance with the
targeting and minimization procedures required by subsections
(d) and (e);
``(B) with respect to acquisitions authorized under
subsection (a), shall review the number of disseminated
intelligence reports containing a reference to a United
States person identity and the number of United States person
identities subsequently disseminated by the element concerned
in response to requests for identities that were not referred
to by name or title in the original reporting;
``(C) with respect to acquisitions authorized under
subsection (a), shall review the number of targets that were
later determined to be located in the United States and, to
the extent possible, whether their communications were
reviewed; and
``(D) shall provide each such review to--
``(i) the Attorney General;
``(ii) the Director of National Intelligence; and
``(iii) the congressional intelligence committees.
``(3) Annual review.--
``(A) Requirement to conduct.--The head of an element of
the intelligence community conducting an acquisition
authorized under subsection (a) shall direct the element to
conduct an annual review to determine whether there is reason
to believe that foreign intelligence information has been or
will be obtained from the acquisition. The annual review
shall provide, with respect to such acquisitions authorized
under subsection (a)--
``(i) an accounting of the number of disseminated
intelligence reports containing a reference to a United
States person identity;
``(ii) an accounting of the number of United States person
identities subsequently disseminated by that element in
response to requests for identities that were not referred to
by name or title in the original reporting;
``(iii) the number of targets that were later determined to
be located in the United States and, to the extent possible,
whether their communications were reviewed; and
``(iv) a description of any procedures developed by the
head of an element of the intelligence community and approved
by the Director of National Intelligence to assess, in a
manner consistent with national security, operational
requirements and the privacy interests of United States
persons, the extent to which the acquisitions authorized
under subsection (a) acquire the communications of United
States persons, as well as the results of any such
assessment.
``(B) Use of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall use each such review to evaluate the
adequacy of the minimization procedures utilized by such
element or the application of the minimization procedures to
a particular acquisition authorized under subsection (a).
``(C) Provision of review.--The head of each element of the
intelligence community that conducts an annual review under
subparagraph (A) shall provide such review to--
``(i) the Foreign Intelligence Surveillance Court;
``(ii) the Attorney General;
``(iii) the Director of National Intelligence; and
``(iv) the congressional intelligence committees.
``SEC. 704. CERTAIN ACQUISITIONS INSIDE THE UNITED STATES OF
UNITED STATES PERSONS OUTSIDE THE UNITED
STATES.
``(a) Jurisdiction of the Foreign Intelligence Surveillance
Court.--
``(1) In general.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order approving the
targeting of a United States person reasonably believed to be
located outside the United States to acquire foreign
intelligence information, if such acquisition constitutes
electronic surveillance (as defined in section 101(f),
regardless of the limitation of section 701) or the
acquisition of stored electronic communications or stored
electronic data that requires an order under this Act, and
such acquisition is conducted within the United States.
``(2) Limitation.--In the event that a United States person
targeted under this subsection is reasonably believed to be
located in the United States during the pendency of an order
issued pursuant to subsection (c), such acquisition shall
cease until authority, other than under this section, is
obtained pursuant to this Act or
[[Page S907]]
the targeted United States person is again reasonably
believed to be located outside the United States during the
pendency of an order issued pursuant to subsection (c).
``(b) Application.--
``(1) In general.--Each application for an order under this
section shall be made by a Federal officer in writing upon
oath or affirmation to a judge having jurisdiction under
subsection (a)(1). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application, as set forth in this
section, and shall include--
``(A) the identity of the Federal officer making the
application;
``(B) the identity, if known, or a description of the
United States person who is the target of the acquisition;
``(C) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the United States
person who is the target of the acquisition is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(D) a statement of the proposed minimization procedures
that meet the definition of minimization procedures under
section 101(h) or section 301(4);
``(E) a description of the nature of the information sought
and the type of communications or activities to be subjected
to acquisition;
``(F) a certification made by the Attorney General or an
official specified in section 104(a)(6) that--
``(i) the certifying official deems the information sought
to be foreign intelligence information;
``(ii) a significant purpose of the acquisition is to
obtain foreign intelligence information;
``(iii) such information cannot reasonably be obtained by
normal investigative techniques;
``(iv) designates the type of foreign intelligence
information being sought according to the categories
described in section 101(e); and
``(v) includes a statement of the basis for the
certification that--
``(I) the information sought is the type of foreign
intelligence information designated; and
``(II) such information cannot reasonably be obtained by
normal investigative techniques;
``(G) a summary statement of the means by which the
acquisition will be conducted and whether physical entry is
required to effect the acquisition;
``(H) the identity of any electronic communication service
provider necessary to effect the acquisition, provided,
however, that the application is not required to identify the
specific facilities, places, premises, or property at which
the acquisition authorized under this section will be
directed or conducted;
``(I) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(J) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(2) Other requirements of the attorney general.--The
Attorney General may require any other affidavit or
certification from any other officer in connection with the
application.
``(3) Other requirements of the judge.--The judge may
require the applicant to furnish such other information as
may be necessary to make the findings required by subsection
(c)(1).
``(c) Order.--
``(1) Findings.--Upon an application made pursuant to
subsection (b), the Foreign Intelligence Surveillance Court
shall enter an ex parte order as requested or as modified
approving the acquisition if the Court finds that--
``(A) the application has been made by a Federal officer
and approved by the Attorney General;
``(B) on the basis of the facts submitted by the applicant,
for the United States person who is the target of the
acquisition, there is probable cause to believe that the
target is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(C) the proposed minimization procedures meet the
definition of minimization procedures under section 101(h) or
section 301(4); and
``(D) the application which has been filed contains all
statements and certifications required by subsection (b) and
the certification or certifications are not clearly erroneous
on the basis of the statement made under subsection
(b)(1)(F)(v) and any other information furnished under
subsection (b)(3).
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under
paragraph (1), a judge having jurisdiction under subsection
(a)(1) may consider past activities of the target, as well as
facts and circumstances relating to current or future
activities of the target. However, no United States person
may be considered a foreign power, agent of a foreign power,
or officer or employee of a foreign power solely upon the
basis of activities protected by the first amendment to the
Constitution of the United States.
``(3) Review.--
``(A) Limitation on review.--Review by a judge having
jurisdiction under subsection (a)(1) shall be limited to that
required to make the findings described in paragraph (1).
``(B) Review of probable cause.--If the judge determines
that the facts submitted under subsection (b) are
insufficient to establish probable cause to issue an order
under paragraph (1), the judge shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal an
order under this clause pursuant to subsection (f).
``(C) Review of minimization procedures.--If the judge
determines that the proposed minimization procedures required
under paragraph (1)(C) do not meet the definition of
minimization procedures under section 101(h) or section
301(4), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (f).
``(D) Review of certification.--If the judge determines
that an application required by subsection (b) does not
contain all of the required elements, or that the
certification or certifications are clearly erroneous on the
basis of the statement made under subsection (b)(1)(F)(v) and
any other information furnished under subsection (b)(3), the
judge shall enter an order so stating and provide a written
statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (f).
``(4) Specifications.--An order approving an acquisition
under this subsection shall specify--
``(A) the identity, if known, or a description of the
United States person who is the target of the acquisition
identified or described in the application pursuant to
subsection (b)(1)(B);
``(B) if provided in the application pursuant to subsection
(b)(1)(H), the nature and location of each of the facilities
or places at which the acquisition will be directed;
``(C) the nature of the information sought to be acquired
and the type of communications or activities to be subjected
to acquisition;
``(D) the means by which the acquisition will be conducted
and whether physical entry is required to effect the
acquisition; and
``(E) the period of time during which the acquisition is
approved.
``(5) Directions.--An order approving acquisitions under
this subsection shall direct--
``(A) that the minimization procedures be followed;
``(B) an electronic communication service provider to
provide to the Government forthwith all information,
facilities, or assistance necessary to accomplish the
acquisition authorized under this subsection in a manner that
will protect the secrecy of the acquisition and produce a
minimum of interference with the services that such
electronic communication service provider is providing to the
target;
``(C) an electronic communication service provider to
maintain under security procedures approved by the Attorney
General any records concerning the acquisition or the aid
furnished that such electronic communication service provider
wishes to maintain; and
``(D) that the Government compensate, at the prevailing
rate, such electronic communication service provider for
providing such information, facilities, or assistance.
``(6) Duration.--An order approved under this paragraph
shall be effective for a period not to exceed 90 days and
such order may be renewed for additional 90-day periods upon
submission of renewal applications meeting the requirements
of subsection (b).
``(7) Compliance.--At or prior to the end of the period of
time for which an acquisition is approved by an order or
extension under this section, the judge may assess compliance
with the minimization procedures by reviewing the
circumstances under which information concerning United
States persons was acquired, retained, or disseminated.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision of this Act, if the
Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subsection (c) before an order
authorizing such acquisition can with due diligence be
obtained, and
``(B) the factual basis for issuance of an order under this
subsection to approve such acquisition exists,
the Attorney General may authorize the emergency acquisition
if a judge having jurisdiction under subsection (a)(1) is
informed by the Attorney General, or a designee of the
Attorney General, at the time of such authorization that the
decision has been made to conduct such acquisition and if an
application in accordance with this subsection is made to a
judge of the Foreign Intelligence Surveillance Court as soon
as practicable, but not more than 7 days after the Attorney
General authorizes such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by
this section for the issuance of a judicial order be
followed.
``(3) Termination of emergency authorization.--In the
absence of a judicial order approving such acquisition, the
acquisition shall terminate when the information sought is
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of authorization
by the Attorney General, whichever is earliest.
``(4) Use of information.--In the event that such
application for approval is denied, or in any other case
where the acquisition is terminated and no order is issued
approving the acquisition, no information obtained or
evidence derived from such acquisition, except under
circumstances in which the target of the acquisition is
determined not to be a United States person during the
pendency of the 7-day emergency acquisition period, shall be
received in evidence or otherwise disclosed in any trial,
hearing, or
[[Page S908]]
other proceeding in or before any court, grand jury,
department, office, agency, regulatory body, legislative
committee, or other authority of the United States, a State,
or political subdivision thereof, and no information
concerning any United States person acquired from such
acquisition shall subsequently be used or disclosed in any
other manner by Federal officers or employees without the
consent of such person, except with the approval of the
Attorney General if the information indicates a threat of
death or serious bodily harm to any person.
``(e) Release From Liability.--Notwithstanding any other
law, no cause of action shall lie in any court against any
electronic communication service provider for providing any
information, facilities, or assistance in accordance with an
order or request for emergency assistance issued pursuant to
subsections (c) or (d).
``(f) Appeal.--
``(1) Appeal to the foreign intelligence surveillance court
of review.--The Government may file an appeal with the
Foreign Intelligence Surveillance Court of Review for review
of an order issued pursuant to subsection (c). The Court of
Review shall have jurisdiction to consider such appeal and
shall provide a written statement for the record of the
reasons for a decision under this paragraph.
``(2) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under paragraph (1).
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.
``SEC. 705. OTHER ACQUISITIONS TARGETING UNITED STATES
PERSONS OUTSIDE THE UNITED STATES.
``(a) Jurisdiction and Scope.--
``(1) Jurisdiction.--The Foreign Intelligence Surveillance
Court shall have jurisdiction to enter an order pursuant to
subsection (c).
``(2) Scope.--No element of the intelligence community may
intentionally target, for the purpose of acquiring foreign
intelligence information, a United States person reasonably
believed to be located outside the United States under
circumstances in which the targeted United States person has
a reasonable expectation of privacy and a warrant would be
required if the acquisition were conducted inside the United
States for law enforcement purposes, unless a judge of the
Foreign Intelligence Surveillance Court has entered an order
or the Attorney General has authorized an emergency
acquisition pursuant to subsections (c) or (d) or any other
provision of this Act.
``(3) Limitations.--
``(A) Moving or misidentified targets.--In the event that
the targeted United States person is reasonably believed to
be in the United States during the pendency of an order
issued pursuant to subsection (c), such acquisition shall
cease until authority is obtained pursuant to this Act or the
targeted United States person is again reasonably believed to
be located outside the United States during the pendency of
an order issued pursuant to subsection (c).
``(B) Applicability.--If the acquisition is to be conducted
inside the United States and could be authorized under
section 704, the procedures of section 704 shall apply,
unless an order or emergency acquisition authority has been
obtained under a provision of this Act other than under this
section.
``(b) Application.--Each application for an order under
this section shall be made by a Federal officer in writing
upon oath or affirmation to a judge having jurisdiction under
subsection (a)(1). Each application shall require the
approval of the Attorney General based upon the Attorney
General's finding that it satisfies the criteria and
requirements of such application as set forth in this section
and shall include--
``(1) the identity, if known, or a description of the
specific United States person who is the target of the
acquisition;
``(2) a statement of the facts and circumstances relied
upon to justify the applicant's belief that the United States
person who is the target of the acquisition is--
``(A) a person reasonably believed to be located outside
the United States; and
``(B) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(3) a statement of the proposed minimization procedures
that meet the definition of minimization procedures under
section 101(h) or section 301(4);
``(4) a certification made by the Attorney General, an
official specified in section 104(a)(6), or the head of an
element of the intelligence community that--
``(A) the certifying official deems the information sought
to be foreign intelligence information; and
``(B) a significant purpose of the acquisition is to obtain
foreign intelligence information;
``(5) a statement of the facts concerning any previous
applications that have been made to any judge of the Foreign
Intelligence Surveillance Court involving the United States
person specified in the application and the action taken on
each previous application; and
``(6) a statement of the period of time for which the
acquisition is required to be maintained, provided that such
period of time shall not exceed 90 days per application.
``(c) Order.--
``(1) Findings.--If, upon an application made pursuant to
subsection (b), a judge having jurisdiction under subsection
(a) finds that--
``(A) on the basis of the facts submitted by the applicant,
for the United States person who is the target of the
acquisition, there is probable cause to believe that the
target is--
``(i) a person reasonably believed to be located outside
the United States; and
``(ii) a foreign power, an agent of a foreign power, or an
officer or employee of a foreign power;
``(B) the proposed minimization procedures, with respect to
their dissemination provisions, meet the definition of
minimization procedures under section 101(h) or section
301(4); and
``(C) the application which has been filed contains all
statements and certifications required by subsection (b) and
the certification provided under subsection (b)(4) is not
clearly erroneous on the basis of the information furnished
under subsection (b),
the Court shall issue an ex parte order so stating.
``(2) Probable cause.--In determining whether or not
probable cause exists for purposes of an order under
paragraph (1)(A), a judge having jurisdiction under
subsection (a)(1) may consider past activities of the target,
as well as facts and circumstances relating to current or
future activities of the target. However, no United States
person may be considered a foreign power, agent of a foreign
power, or officer or employee of a foreign power solely upon
the basis of activities protected by the first amendment to
the Constitution of the United States.
``(3) Review.--
``(A) Limitations on review.--Review by a judge having
jurisdiction under subsection (a)(1) shall be limited to that
required to make the findings described in paragraph (1). The
judge shall not have jurisdiction to review the means by
which an acquisition under this section may be conducted.
``(B) Review of probable cause.--If the judge determines
that the facts submitted under subsection (b) are
insufficient to establish probable cause to issue an order
under this subsection, the judge shall enter an order so
stating and provide a written statement for the record of the
reasons for such determination. The Government may appeal an
order under this clause pursuant to subsection (e).
``(C) Review of minimization procedures.--If the judge
determines that the minimization procedures applicable to
dissemination of information obtained through an acquisition
under this subsection do not meet the definition of
minimization procedures under section 101(h) or section
301(4), the judge shall enter an order so stating and provide
a written statement for the record of the reasons for such
determination. The Government may appeal an order under this
clause pursuant to subsection (e).
``(D) Scope of review of certification.--If the judge
determines that the certification provided under subsection
(b)(4) is clearly erroneous on the basis of the information
furnished under subsection (b), the judge shall enter an
order so stating and provide a written statement for the
record of the reasons for such determination. The Government
may appeal an order under this subparagraph pursuant to
subsection (e).
``(4) Duration.--An order under this paragraph shall be
effective for a period not to exceed 90 days and such order
may be renewed for additional 90-day periods upon submission
of renewal applications meeting the requirements of
subsection (b).
``(5) Compliance.--At or prior to the end of the period of
time for which an order or extension is granted under this
section, the judge may assess compliance with the
minimization procedures by reviewing the circumstances under
which information concerning United States persons was
disseminated, provided that the judge may not inquire into
the circumstances relating to the conduct of the acquisition.
``(d) Emergency Authorization.--
``(1) Authority for emergency authorization.--
Notwithstanding any other provision in this subsection, if
the Attorney General reasonably determines that--
``(A) an emergency situation exists with respect to the
acquisition of foreign intelligence information for which an
order may be obtained under subsection (c) before an order
under that subsection may, with due diligence, be obtained,
and
``(B) the factual basis for issuance of an order under this
section exists,
the Attorney General may authorize the emergency acquisition
if a judge having jurisdiction under subsection (a)(1) is
informed by the Attorney General or a designee of the
Attorney General at the time of such authorization that the
decision has been made to conduct such acquisition and if an
application in accordance with this subsection is made to a
judge of the Foreign Intelligence Surveillance Court as soon
as practicable, but not more than 7 days after the Attorney
General authorizes such acquisition.
``(2) Minimization procedures.--If the Attorney General
authorizes such emergency acquisition, the Attorney General
shall require that the minimization procedures required by
this section be followed.
``(3) Termination of emergency authorization.--In the
absence of an order under subsection (c), the acquisition
shall terminate when the information sought is obtained, if
the application for the order is denied, or after the
expiration of 7 days from the time of authorization by the
Attorney General, whichever is earliest.
``(4) Use of information.--In the event that such
application is denied, or in any other case where the
acquisition is terminated and no order is issued approving
the acquisition, no information obtained or evidence derived
from such acquisition, except under circumstances in which
the target of the acquisition is determined not to be a
United States person during the pendency of the 7-day
emergency acquisition period, shall be received in evidence
or otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision
[[Page S909]]
thereof, and no information concerning any United States
person acquired from such acquisition shall subsequently be
used or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(e) Appeal.--
``(1) Appeal to the court of review.--The Government may
file an appeal with the Foreign Intelligence Surveillance
Court of Review for review of an order issued pursuant to
subsection (c). The Court of Review shall have jurisdiction
to consider such appeal and shall provide a written statement
for the record of the reasons for a decision under this
paragraph.
``(2) Certiorari to the supreme court.--The Government may
file a petition for a writ of certiorari for review of the
decision of the Court of Review issued under paragraph (1).
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.
``SEC. 706. JOINT APPLICATIONS AND CONCURRENT AUTHORIZATIONS.
``(a) Joint Applications and Orders.--If an acquisition
targeting a United States person under section 704 or section
705 is proposed to be conducted both inside and outside the
United States, a judge having jurisdiction under section
704(a)(1) or section 705(a)(1) may issue simultaneously, upon
the request of the Government in a joint application
complying with the requirements of section 704(b) or section
705(b), orders under section 704(c) or section 705(c), as
applicable.
``(b) Concurrent Authorization.--If an order authorizing
electronic surveillance or physical search has been obtained
under section 105 or section 304 and that order is still in
effect, the Attorney General may authorize, without an order
under section 704 or section 705, an acquisition of foreign
intelligence information targeting that United States person
while such person is reasonably believed to be located
outside the United States.
``SEC. 707. USE OF INFORMATION ACQUIRED UNDER TITLE VII.
``(a) Information Acquired Under Section 703.--Information
acquired from an acquisition conducted under section 703
shall be deemed to be information acquired from an electronic
surveillance pursuant to title I for purposes of section 106,
except for the purposes of subsection (j) of such section.
``(b) Information Acquired Under Section 704.--Information
acquired from an acquisition conducted under section 704
shall be deemed to be information acquired from an electronic
surveillance pursuant to title I for purposes of section 106.
``SEC. 708. CONGRESSIONAL OVERSIGHT.
``(a) Semiannual Report.--Not less frequently than once
every 6 months, the Attorney General shall fully inform, in a
manner consistent with national security, the congressional
intelligence committees, the Committee on the Judiciary of
the Senate, and the Committee on the Judiciary of the House
of Representatives, concerning the implementation of this
title.
``(b) Content.--Each report made under subparagraph (a)
shall include--
``(1) with respect to section 703--
``(A) any certifications made under subsection 703(f)
during the reporting period;
``(B) any directives issued under subsection 703(g) during
the reporting period;
``(C) a description of the judicial review during the
reporting period of any such certifications and targeting and
minimization procedures utilized with respect to such
acquisition, including a copy of any order or pleading in
connection with such review that contains a significant legal
interpretation of the provisions of this section;
``(D) any actions taken to challenge or enforce a directive
under paragraphs (4) or (5) of section 703(g);
``(E) any compliance reviews conducted by the Department of
Justice or the Office of the Director of National
Intelligence of acquisitions authorized under subsection
703(a);
``(F) a description of any incidents of noncompliance with
a directive issued by the Attorney General and the Director
of National Intelligence under subsection 703(g), including--
``(i) incidents of noncompliance by an element of the
intelligence community with procedures adopted pursuant to
subsections (d) and (e) of section 703; and
``(ii) incidents of noncompliance by a specified person to
whom the Attorney General and Director of National
Intelligence issued a directive under subsection 703(g); and
``(G) any procedures implementing this section;
``(2) with respect to section 704--
``(A) the total number of applications made for orders
under section 704(b);
``(B) the total number of such orders either granted,
modified, or denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under section 704(d) and the total
number of subsequent orders approving or denying such
acquisitions; and
``(3) with respect to section 705--
``(A) the total number of applications made for orders
under 705(b);
``(B) the total number of such orders either granted,
modified, or denied; and
``(C) the total number of emergency acquisitions authorized
by the Attorney General under subsection 705(d) and the total
number of subsequent orders approving or denying such
applications.''.
(b) 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--
(1) by striking the item relating to title VII;
(2) by striking the item relating to section 701; and
(3) by adding at the end the following:
``TITLE VII--ADDITIONAL PROCEDURES REGARDING CERTAIN PERSONS OUTSIDE
THE UNITED STATES
``Sec. 701. Limitation on definition of electronic surveillance.
``Sec. 702. Definitions.
``Sec. 703. Procedures for targeting certain persons outside the United
States other than United States persons.
``Sec. 704. Certain acquisitions inside the United States of United
States persons outside the United States.
``Sec. 705. Other acquisitions targeting United States persons outside
the United States.
``Sec. 706. Joint applications and concurrent authorizations.
``Sec. 707. Use of information acquired under title VII.
``Sec. 708. Congressional oversight.''.
(c) Technical and Conforming Amendments.--
(1) Title 18, united states code.--
(A) Section 2232.--Section 2232(e) of title 18, United
States Code, is amended by inserting ``(as defined in section
101(f) of the Foreign Intelligence Surveillance Act of 1978,
regardless of the limitation of section 701 of that Act)''
after ``electronic surveillance''.
(B) Section 2511.--Section 2511(2)(a)(ii)(A) of title 18,
United States Code, is amended by inserting ``or a court
order pursuant to section 705 of the Foreign Intelligence
Surveillance Act of 1978'' after ``assistance''.
(2) Foreign intelligence surveillance act of 1978.--
(A) Section 109.--Section 109 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1809) is amended 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.''.
(B) Section 110.--Section 110 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1810) is amended by--
(i) adding an ``(a)'' before ``Civil Action'',
(ii) redesignating subsections (a) through (c) as
paragraphs (1) through (3), respectively; and
(iii) adding at the end the following:
``(b) 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) Section 601.--Section 601(a)(1) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1871(a)(1))
is amended by striking subparagraphs (C) and (D) and
inserting the following:
``(C) pen registers under section 402;
``(D) access to records under section 501;
``(E) acquisitions under section 704; and
``(F) acquisitions under section 705;''.
(d) Termination of Authority.--
(1) In general.--Except as provided in paragraph (2), the
amendments made by subsections (a)(2), (b), and (c) shall
cease to have effect on December 31, 2013.
(2) Continuing applicability.--Section 703(g)(3) of the
Foreign Intelligence Surveillance Act of 1978 (as amended by
subsection (a)) shall remain in effect with respect to any
directive issued pursuant to section 703(g) of that Act (as
so amended) for information, facilities, or assistance
provided during the period such directive was or is in
effect. Section 704(e) of the Foreign Intelligence
Surveillance Act of 1978 (as amended by subsection (a)) shall
remain in effect with respect to an order or request for
emergency assistance under that section. The use of
information acquired by an acquisition conducted under
section 703 of that Act (as so amended) shall continue to be
governed by the provisions of section 707 of that Act (as so
amended).
SEC. 102. STATEMENT OF EXCLUSIVE MEANS BY WHICH ELECTRONIC
SURVEILLANCE AND INTERCEPTION OF DOMESTIC
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 domestic communications may be conducted
``Sec. 112. 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) 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 domestic communications
may be conducted.''.
(c) Conforming Amendments.--Section 2511(2) of title 18,
United States Code, is amended 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)''.
[[Page S910]]
SEC. 103. SUBMITTAL TO CONGRESS OF CERTAIN COURT ORDERS UNDER
THE FOREIGN INTELLIGENCE SURVEILLANCE ACT OF
1978.
(a) Inclusion of Certain Orders in Semiannual Reports of
Attorney General.--Subsection (a)(5) of section 601 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1871) is amended by striking ``(not including orders)'' and
inserting ``, orders,''.
(b) Reports by Attorney General on Certain Other Orders.--
Such section 601 is further amended by adding at the end the
following:
``(c) Submissions to Congress.--The Attorney General shall
submit to the committees of Congress referred to in
subsection (a)--
``(1) a copy of any decision, order, or opinion issued by
the Foreign Intelligence Surveillance Court or the Foreign
Intelligence Surveillance Court of Review that includes
significant construction or interpretation of any provision
of this Act, and any pleadings, applications, or memoranda of
law associated with such decision, order, or opinion, not
later than 45 days after such decision, order, or opinion is
issued; and
``(2) a copy of any such decision, order, or opinion, and
any pleadings, applications, or memoranda of law associated
with such decision, order, or opinion, that was issued during
the 5-year period ending on the date of the enactment of the
FISA Amendments Act of 2008 and not previously submitted in a
report under subsection (a).
``(d) Protection of National Security.--The Attorney
General, in consultation with the Director of National
Intelligence, may authorize redactions of materials described
in subsection (c) that are provided to the committees of
Congress referred to in subsection (a), if such redactions
are necessary to protect the national security of the United
States and are limited to sensitive sources and methods
information or the identities of targets.''.
(c) Definitions.--Such section 601, as amended by
subsections (a) and (b), is further amended by adding at the
end the following:
``(e) Definitions.--In this section:
``(1) Foreign intelligence surveillance court; court.--The
term `` `Foreign Intelligence Surveillance Court' '' means
the court established by section 103(a).
``(2) Foreign intelligence surveillance court of review;
court of review.--The term `Foreign Intelligence Surveillance
Court of Review' means the court established by section
103(b).''.
SEC. 104. APPLICATIONS FOR COURT ORDERS.
Section 104 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1804) is amended--
(1) in subsection (a)--
(A) by striking paragraphs (2) and (11);
(B) by redesignating paragraphs (3) through (10) as
paragraphs (2) through (9), respectively;
(C) in paragraph (5), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if designated by the President as a certifying official--'';
(E) in paragraph (7), as redesignated by subparagraph (B)
of this paragraph, by striking ``statement of'' and inserting
``summary statement of'';
(F) in paragraph (8), as redesignated by subparagraph (B)
of this paragraph, by adding ``and'' at the end; and
(G) in paragraph (9), as redesignated by subparagraph (B)
of this paragraph, by striking ``; and'' and inserting a
period;
(2) by striking subsection (b);
(3) by redesignating subsections (c) through (e) as
subsections (b) through (d), respectively; and
(4) in paragraph (1)(A) of subsection (d), as redesignated
by paragraph (3) of this subsection, by striking ``or the
Director of National Intelligence'' and inserting ``the
Director of National Intelligence, or the Director of the
Central Intelligence Agency''.
SEC. 105. ISSUANCE OF AN ORDER.
Section 105 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1805) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively;
(2) in subsection (b), by striking ``(a)(3)'' and inserting
``(a)(2)'';
(3) in subsection (c)(1)--
(A) in subparagraph (D), by adding ``and'' at the end;
(B) in subparagraph (E), by striking ``; and'' and
inserting a period; and
(C) by striking subparagraph (F);
(4) by striking subsection (d);
(5) by redesignating subsections (e) through (i) as
subsections (d) through (h), respectively;
(6) by amending subsection (e), as redesignated by
paragraph (5) of this section, to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of electronic surveillance if the Attorney General--
``(A) reasonably determines that an emergency situation
exists with respect to the employment of electronic
surveillance to obtain foreign intelligence information
before an order authorizing such surveillance can with due
diligence be obtained;
``(B) resonably determines that the factual basis for
issuance of an order under this title to approve such
electronic surveillance exists;
``(C) informs, either personally or through a designee, a
judge having jurisdiction under section 103 at the time of
such authorization that the decision has been made to employ
emergency electronic surveillance; and
``(D) makes an application in accordance with this title to
a judge having jurisdiction under section 103 as soon as
practicable, but not later than 7 days after the Attorney
General authorizes such surveillance.
``(2) If the Attorney General authorizes the emergency
employment of electronic surveillance under paragraph (1),
the Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
electronic surveillance, the surveillance shall terminate
when the information sought is obtained, when the application
for the order is denied, or after the expiration of 7 days
from the time of authorization by the Attorney General,
whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5) In the event that such application for approval is
denied, or in any other case where the electronic
surveillance is terminated and no order is issued approving
the surveillance, no information obtained or evidence derived
from such surveillance shall be received in evidence or
otherwise disclosed in any trial, hearing, or other
proceeding in or before any court, grand jury, department,
office, agency, regulatory body, legislative committee, or
other authority of the United States, a State, or political
subdivision thereof, and no information concerning any United
States person acquired from such surveillance shall
subsequently be used or disclosed in any other manner by
Federal officers or employees without the consent of such
person, except with the approval of the Attorney General if
the information indicates a threat of death or serious bodily
harm to any person.
``(6) The Attorney General shall assess compliance with the
requirements of paragraph (5).''; and
(7) by adding at the end the following:
``(i) In any case in which the Government makes an
application to a judge under this title to conduct electronic
surveillance involving communications and the judge grants
such application, upon the request of the applicant, the
judge shall also authorize the installation and use of pen
registers and trap and trace devices, and direct the
disclosure of the information set forth in section
402(d)(2).''.
SEC. 106. USE OF INFORMATION.
Subsection (i) of section 106 of the Foreign Intelligence
Surveillance Act of 1978 (8 U.S.C. 1806) is amended by
striking ``radio communication'' and inserting
``communication''.
SEC. 107. AMENDMENTS FOR PHYSICAL SEARCHES.
(a) Applications.--Section 303 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1823) is amended--
(1) in subsection (a)--
(A) by striking paragraph (2);
(B) by redesignating paragraphs (3) through (9) as
paragraphs (2) through (8), respectively;
(C) in paragraph (2), as redesignated by subparagraph (B)
of this paragraph, by striking ``detailed'';
(D) in paragraph (3)(C), as redesignated by subparagraph
(B) of this paragraph, by inserting ``or is about to be''
before ``owned''; and
(E) in paragraph (6), as redesignated by subparagraph (B)
of this paragraph, in the matter preceding subparagraph (A)--
(i) by striking ``Affairs or'' and inserting ``Affairs,'';
and
(ii) by striking ``Senate--'' and inserting ``Senate, or
the Deputy Director of the Federal Bureau of Investigation,
if designated by the President as a certifying official--'';
and
(2) in subsection (d)(1)(A), by striking ``or the Director
of National Intelligence'' and inserting ``the Director of
National Intelligence, or the Director of the Central
Intelligence Agency''.
(b) Orders.--Section 304 of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1824) is amended--
(1) in subsection (a)--
(A) by striking paragraph (1); and
(B) by redesignating paragraphs (2) through (5) as
paragraphs (1) through (4), respectively; and
(2) by amending subsection (e) to read as follows:
``(e)(1) Notwithstanding any other provision of this title,
the Attorney General may authorize the emergency employment
of a physical search if the Attorney General reasonably--
``(A) determines that an emergency situation exists with
respect to the employment of a physical search to obtain
foreign intelligence information before an order authorizing
such physical search can with due diligence be obtained;
``(B) determines that the factual basis for issuance of an
order under this title to approve such physical search
exists;
``(C) informs, either personally or through a designee, a
judge of the Foreign Intelligence Surveillance Court at the
time of such authorization that the decision has been made to
employ an emergency physical search; and
``(D) makes an application in accordance with this title to
a judge of the Foreign Intelligence Surveillance Court as
soon as practicable, but not more than 7 days after the
Attorney General authorizes such physical search.
``(2) If the Attorney General authorizes the emergency
employment of a physical search under paragraph (1), the
Attorney General shall require that the minimization
procedures required by this title for the issuance of a
judicial order be followed.
``(3) In the absence of a judicial order approving such
physical search, the physical search shall terminate when the
information sought is
[[Page S911]]
obtained, when the application for the order is denied, or
after the expiration of 7 days from the time of authorization
by the Attorney General, whichever is earliest.
``(4) A denial of the application made under this
subsection may be reviewed as provided in section 103.
``(5)(A) In the event that such application for approval is
denied, or in any other case where the physical search is
terminated and no order is issued approving the physical
search, no information obtained or evidence derived from such
physical search shall be received in evidence or otherwise
disclosed in any trial, hearing, or other proceeding in or
before any court, grand jury, department, office, agency,
regulatory body, legislative committee, or other authority of
the United States, a State, or political subdivision thereof,
and no information concerning any United States person
acquired from such physical search shall subsequently be used
or disclosed in any other manner by Federal officers or
employees without the consent of such person, except with the
approval of the Attorney General if the information indicates
a threat of death or serious bodily harm to any person.
``(B) The Attorney General shall assess compliance with the
requirements of subparagraph (A).''.
(c) Conforming Amendments.--The Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is
amended--
(1) in section 304(a)(4), as redesignated by subsection (b)
of this section, by striking ``303(a)(7)(E)'' and inserting
``303(a)(6)(E)''; and
(2) in section 305(k)(2), by striking ``303(a)(7)'' and
inserting ``303(a)(6)''.
SEC. 108. AMENDMENTS FOR EMERGENCY PEN REGISTERS AND TRAP AND
TRACE DEVICES.
Section 403 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1843) is amended--
(1) in subsection (a)(2), by striking ``48 hours'' and
inserting ``7 days''; and
(2) in subsection (c)(1)(C), by striking ``48 hours'' and
inserting ``7 days''.
SEC. 109. FOREIGN INTELLIGENCE SURVEILLANCE COURT.
(a) Designation of Judges.--Subsection (a) of section 103
of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1803) is amended by inserting ``at least'' before
``seven of the United States judicial circuits''.
(b) En Banc Authority.--
(1) In general.--Subsection (a) of section 103 of the
Foreign Intelligence Surveillance Act of 1978, as amended by
subsection (a) of this section, is further amended--
(A) by inserting ``(1)'' after ``(a)''; and
(B) by adding at the end the following new paragraph:
``(2)(A) The court established under this subsection may,
on its own initiative, or upon the request of the Government
in any proceeding or a party under section 501(f) or
paragraph (4) or (5) of section 703(h), hold a hearing or
rehearing, en banc, when ordered by a majority of the judges
that constitute such court upon a determination that--
``(i) en banc consideration is necessary to secure or
maintain uniformity of the court's decisions; or
``(ii) the proceeding involves a question of exceptional
importance.
``(B) Any authority granted by this Act to a judge of the
court established under this subsection may be exercised by
the court en banc. When exercising such authority, the court
en banc shall comply with any requirements of this Act on the
exercise of such authority.
``(C) For purposes of this paragraph, the court en banc
shall consist of all judges who constitute the court
established under this subsection.''.
(2) Conforming amendments.--The Foreign Intelligence
Surveillance Act of 1978 is further amended--
(A) in subsection (a) of section 103, as amended by this
subsection, by inserting ``(except when sitting en banc under
paragraph (2))'' after ``no judge designated under this
subsection''; and
(B) in section 302(c) (50 U.S.C. 1822(c)), by inserting
``(except when sitting en banc)'' after ``except that no
judge''.
(c) Stay or Modification During an Appeal.--Section 103 of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1803) is amended--
(1) by redesignating subsection (f) as subsection (g); and
(2) by inserting after subsection (e) the following new
subsection:
``(f)(1) A judge of the court established under subsection
(a), the court established under subsection (b) or a judge of
that court, or the Supreme Court of the United States or a
justice of that court, may, in accordance with the rules of
their respective courts, enter a stay of an order or an order
modifying an order of the court established under subsection
(a) or the court established under subsection (b) entered
under any title of this Act, while the court established
under subsection (a) conducts a rehearing, while an appeal is
pending to the court established under subsection (b), or
while a petition of certiorari is pending in the Supreme
Court of the United States, or during the pendency of any
review by that court.
``(2) The authority described in paragraph (1) shall apply
to an order entered under any provision of this Act.''.
(d) Authority of Foreign Intelligence Surveillance Court.--
Section 103 of the Foreign Intelligence Surveillance Act of
1978 (50 U.S.C. 1803), as amended by this Act, is amended by
adding at the end the following:
``(h)(1) Nothing in this Act shall be considered to reduce
or contravene the inherent authority of the Foreign
Intelligence Surveillance Court to determine, or enforce,
compliance with an order or a rule of such Court or with a
procedure approved by such Court.
``(2) In this subsection, the terms `Foreign Intelligence
Surveillance Court' and `Court' mean the court established by
subsection (a).''.
SEC. 110. WEAPONS OF MASS DESTRUCTION.
(a) Definitions.--
(1) Foreign power.--Subsection (a)(4) of section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(a)(4)) is amended by inserting ``, the international
proliferation of weapons of mass destruction,'' after
``international terrorism''.
(2) Agent of a foreign power.--Subsection (b)(1) of such
section 101 is amended--
(A) in subparagraph (B), by striking ``or'' at the end
(B) in subparagraph (C), by striking ``or'' at the end; and
(C) by adding at the end the following new subparagraphs:
``(D) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor;
or
``(E) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor,
for or on behalf of a foreign power; or''.
(3) Foreign intelligence information.--Subsection (e)(1)(B)
of such section 101 is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(4) Weapon of mass destruction.--Such section 101 is
amended by inserting after subsection (o) the following:
``(p) `Weapon of mass destruction' means--
``(1) any destructive device described in section
921(a)(4)(A) of title 18, United States Code, that is
intended or has the capability to cause death or serious
bodily injury to a significant number of people;
``(2) any weapon that is designed or intended to cause
death or serious bodily injury through the release,
dissemination, or impact of toxic or poisonous chemicals or
their precursors;
``(3) any weapon involving a biological agent, toxin, or
vector (as such terms are defined in section 178 of title 18,
United States Code); or
``(4) any weapon that is designed to release radiation or
radioactivity at a level dangerous to human life.''.
(b) Use of Information.--
(1) In general.--Section 106(k)(1)(B) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
1806(k)(1)(B)) is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(2) Physical searches.--Section 305(k)(1)(B) of such Act
(50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage
or international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(c) Technical and Conforming Amendment.--Section 301(1) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1821(1)) is amended by inserting `` `weapon of mass
destruction','' after `` `person',''.
SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.
Section 103(e) of the Foreign Intelligence Surveillance Act
of 1978 (50 U.S.C. 1803(e)) is amended--
(1) in paragraph (1), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 703''; and
(2) in paragraph (2), by striking ``105B(h) or 501(f)(1)''
and inserting ``501(f)(1) or 703''.
TITLE II--PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
SEC. 201. DEFINITIONS.
In this title:
(1) Assistance.--The term ``assistance'' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
(2) Contents.--The term ``contents'' has the meaning given
that term in section 101(n) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801(n)).
(3) Covered civil action.--The term ``covered civil
action'' means a civil action filed in a Federal or State
court that--
(A) alleges that an electronic communication service
provider furnished assistance to an element of the
intelligence community; and
(B) seeks monetary or other relief from the electronic
communication service provider related to the provision of
such assistance.
(4) Electronic communication service provider.--The term
``electronic communication service provider'' means--
(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
(B) a provider of an electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
(C) a provider of a remote computing service, as that term
is defined in section 2711 of title 18, United States Code;
(D) any other communication service provider who has access
to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
(E) a parent, subsidiary, affiliate, successor, or assignee
of an entity described in subparagraph (A), (B), (C), or (D);
or
(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
(5) Element of the intelligence community.--The term
``element of the intelligence community'' means an element of
the intelligence community specified in or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
[[Page S912]]
SEC. 202. LIMITATIONS ON CIVIL ACTIONS FOR ELECTRONIC
COMMUNICATION SERVICE PROVIDERS.
(a) Limitations.--
(1) In general.--Notwithstanding any other provision of
law, a covered civil action shall not lie or be maintained in
a Federal or State court, and shall be promptly dismissed, if
the Attorney General certifies to the court that--
(A) the assistance alleged to have been provided by the
electronic communication service provider was--
(i) in connection with an intelligence activity involving
communications that was--
(I) authorized by the President during the period beginning
on September 11, 2001, and ending on January 17, 2007; and
(II) designed to detect or prevent a terrorist attack, or
activities in preparation for a terrorist attack, against the
United States; and
(ii) described in a written request or directive from the
Attorney General or the head of an element of the
intelligence community (or the deputy of such person) to the
electronic communication service provider indicating that the
activity was--
(I) authorized by the President; and
(II) determined to be lawful; or
(B) the electronic communication service provider did not
provide the alleged assistance.
(2) Review.--A certification made pursuant to paragraph (1)
shall be subject to review by a court for abuse of
discretion.
(b) Review of Certifications.--If the Attorney General
files a declaration under section 1746 of title 28, United
States Code, that disclosure of a certification made pursuant
to subsection (a) would harm the national security of the
United States, the court shall--
(1) review such certification in camera and ex parte; and
(2) limit any public disclosure concerning such
certification, including any public order following such an
ex parte review, to a statement that the conditions of
subsection (a) have been met, without disclosing the
subparagraph of subsection (a)(1) that is the basis for the
certification.
(c) Nondelegation.--The authority and duties of the
Attorney General under this section shall be performed by the
Attorney General (or Acting Attorney General) or a designee
in a position not lower than the Deputy Attorney General.
(d) Civil Actions in State Court.--A covered civil action
that is brought in a State court shall be deemed to arise
under the Constitution and laws of the United States and
shall be removable under section 1441 of title 28, United
States Code.
(e) Rule of Construction.--Nothing in this section may be
construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
(f) Effective Date and Application.--This section shall
apply to any covered civil action that is pending on or filed
after the date of enactment of this Act.
SEC. 203. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES
UNDER THE FOREIGN INTELLIGENCE SURVEILLANCE ACT
OF 1978.
The Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1801 et seq.), as amended by section 101, is further
amended by adding after title VII the following new title:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``SEC. 801. DEFINITIONS.
``In this title:
``(1) Assistance.--The term `assistance' means the
provision of, or the provision of access to, information
(including communication contents, communications records, or
other information relating to a customer or communication),
facilities, or another form of assistance.
``(2) Attorney general.--The term `Attorney General' has
the meaning give that term in section 101(g).
``(3) Contents.--The term `contents' has the meaning given
that term in section 101(n).
``(4) Electronic communication service provider.--The term
`electronic communication service provider' means--
``(A) a telecommunications carrier, as that term is defined
in section 3 of the Communications Act of 1934 (47 U.S.C.
153);
``(B) a provider of electronic communication service, as
that term is defined in section 2510 of title 18, United
States Code;
``(C) a provider of a remote computing service, as that
term is defined in section 2711 of title 18, United States
Code;
``(D) any other communication service provider who has
access to wire or electronic communications either as such
communications are transmitted or as such communications are
stored;
``(E) a parent, subsidiary, affiliate, successor, or
assignee of an entity described in subparagraph (A), (B),
(C), or (D); or
``(F) an officer, employee, or agent of an entity described
in subparagraph (A), (B), (C), (D), or (E).
``(5) Element of the intelligence community.--The term
`element of the intelligence community' means an element of
the intelligence community as specified or designated under
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)).
``(6) Person.--The term `person' means--
``(A) an electronic communication service provider; or
``(B) a landlord, custodian, or other person who may be
authorized or required to furnish assistance pursuant to--
``(i) an order of the court established under section
103(a) directing such assistance;
``(ii) a certification in writing under section
2511(2)(a)(ii)(B) or 2709(b) of title 18, United States Code;
or
``(iii) a directive under section 102(a)(4), 105B(e), as in
effect on the day before the date of the enactment of the
FISA Amendments Act of 2008 or 703(h).
``(7) State.--The term `State' means any State, political
subdivision of a State, the Commonwealth of Puerto Rico, the
District of Columbia, and any territory or possession of the
United States, and includes any officer, public utility
commission, or other body authorized to regulate an
electronic communication service provider.
``SEC. 802. PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES.
``(a) Requirement for Certification.--
``(1) In general.--Notwithstanding any other provision of
law, no civil action may lie or be maintained in a Federal or
State court against any person for providing assistance to an
element of the intelligence community, and shall be promptly
dismissed, if the Attorney General certifies to the court
that--
``(A) any assistance by that person was provided pursuant
to an order of the court established under section 103(a)
directing such assistance;
``(B) any assistance by that person was provided pursuant
to a certification in writing under section 2511(2)(a)(ii)(B)
or 2709(b) of title 18, United States Code;
``(C) any assistance by that person was provided pursuant
to a directive under sections 102(a)(4), 105B(e), as in
effect on the day before the date of the enactment of the
FISA Amendments Act of 2008, or 703(h) directing such
assistance; or
``(D) the person did not provide the alleged assistance.
``(2) Review.--A certification made pursuant to paragraph
(1) shall be subject to review by a court for abuse of
discretion.
``(b) Limitations on Disclosure.--If the Attorney General
files a declaration under section 1746 of title 28, United
States Code, that disclosure of a certification made pursuant
to subsection (a) would harm the national security of the
United States, the court shall--
``(1) review such certification in camera and ex parte; and
``(2) limit any public disclosure concerning such
certification, including any public order following such an
ex parte review, to a statement that the conditions of
subsection (a) have been met, without disclosing the
subparagraph of subsection (a)(1) that is the basis for the
certification.
``(c) Removal.--A civil action against a person for
providing assistance to an element of the intelligence
community that is brought in a State court shall be deemed to
arise under the Constitution and laws of the United States
and shall be removable under section 1441 of title 28, United
States Code.
``(d) Relationship to Other Laws.--Nothing in this section
may be construed to limit any otherwise available immunity,
privilege, or defense under any other provision of law.
``(e) Applicability.--This section shall apply to a civil
action pending on or filed after the date of enactment of the
FISA Amendments Act of 2008.''.
SEC. 204. PREEMPTION OF STATE INVESTIGATIONS.
Title VIII of the Foreign Intelligence Surveillance Act (50
U.S.C. 1801 et seq.), as added by section 203 of this Act, is
amended by adding at the end the following new section:
``SEC. 803. PREEMPTION.
``(a) In General.--No State shall have authority to--
``(1) conduct an investigation into an electronic
communication service provider's alleged assistance to an
element of the intelligence community;
``(2) require through regulation or any other means the
disclosure of information about an electronic communication
service provider's alleged assistance to an element of the
intelligence community;
``(3) impose any administrative sanction on an electronic
communication service provider for assistance to an element
of the intelligence community; or
``(4) commence or maintain a civil action or other
proceeding to enforce a requirement that an electronic
communication service provider disclose information
concerning alleged assistance to an element of the
intelligence community.
``(b) Suits by the United States.--The United States may
bring suit to enforce the provisions of this section.
``(c) Jurisdiction.--The district courts of the United
States shall have jurisdiction over any civil action brought
by the United States to enforce the provisions of this
section.
``(d) Application.--This section shall apply to any
investigation, action, or proceeding that is pending on or
filed after the date of enactment of the FISA Amendments Act
of 2008.''.
SEC. 205. TECHNICAL AMENDMENTS.
The table of contents in the first section of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et
seq.), as amended by section 101(b), is further amended by
adding at the end the following:
``TITLE VIII--PROTECTION OF PERSONS ASSISTING THE GOVERNMENT
``Sec. 801. Definitions.
``Sec. 802. Procedures for implementing statutory defenses.
``Sec. 803. Preemption.''.
TITLE III--OTHER PROVISIONS
SEC. 301. SEVERABILITY.
If any provision of this Act, any amendment made by this
Act, or the application thereof to any person or
circumstances is held invalid, the validity of the remainder
of the Act, any such amendments, and of the application of
such provisions to other persons and circumstances shall not
be affected thereby.
SEC. 302. EFFECTIVE DATE; REPEAL; TRANSITION PROCEDURES.
(a) In General.--Except as provided in subsection (c), the
amendments made by this Act
[[Page S913]]
shall take effect on the date of the enactment of this Act.
(b) Repeal.--
(1) In general.--Except as provided in subsection (c),
sections 105A, 105B, and 105C of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1805a, 1805b, and 1805c)
are repealed.
(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 striking the items
relating to sections 105A, 105B, and 105C.
(c) Transitions Procedures.--
(1) Protection from liability.--Notwithstanding subsection
(b)(1), subsection (l) of section 105B of the Foreign
Intelligence Surveillance Act of 1978 shall remain in effect
with respect to any directives issued pursuant to such
section 105B for information, facilities, or assistance
provided during the period such directive was or is in
effect.
(2) Orders in effect.--
(A) Orders in effect on date of enactment.--Notwithstanding
any other provision of this Act or of the Foreign
Intelligence Surveillance Act of 1978--
(i) any order in effect on the date of enactment of this
Act issued pursuant to the Foreign Intelligence Surveillance
Act of 1978 or section 6(b) of the Protect America Act of
2007 (Public Law 110-55; 121 Stat. 556) shall remain in
effect until the date of expiration of such order; and
(ii) at the request of the applicant, the court established
under section 103(a) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1803(a)) shall reauthorize such order
if the facts and circumstances continue to justify issuance
of such order under the provisions of such Act, as in effect
on the day before the date of the enactment of the Protect
America Act of 2007, except as amended by sections 102, 103,
104, 105, 106, 107, 108, 109, and 110 of this Act.
(B) Orders in effect on december 31, 2013.--Any order
issued under title VII of the Foreign Intelligence
Surveillance Act of 1978, as amended by section 101 of this
Act, in effect on December 31, 2013, shall continue in effect
until the date of the expiration of such order. Any such
order shall be governed by the applicable provisions of the
Foreign Intelligence Surveillance Act of 1978, as so amended.
(3) Authorizations and directives in effect.--
(A) Authorizations and directives in effect on date of
enactment.--Notwithstanding any other provision of this Act
or of the Foreign Intelligence Surveillance Act of 1978, any
authorization or directive in effect on the date of the
enactment of this Act issued pursuant to the Protect America
Act of 2007, or any amendment made by that Act, shall remain
in effect until the date of expiration of such authorization
or directive. Any such authorization or directive shall be
governed by the applicable provisions of the Protect America
Act of 2007 (121 Stat. 552), and the amendment made by that
Act, and, except as provided in paragraph (4) of this
subsection, any acquisition pursuant to such authorization or
directive shall be deemed not to constitute electronic
surveillance (as that term is defined in section 101(f) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(f)), as construed in accordance with section 105A of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1805a)).
(B) Authorizations and directives in effect on december 31,
2013.--Any authorization or directive issued under title VII
of the Foreign Intelligence Surveillance Act of 1978, as
amended by section 101 of this Act, in effect on December 31,
2013, shall continue in effect until the date of the
expiration of such authorization or directive. Any such
authorization or directive shall be governed by the
applicable provisions of the Foreign Intelligence
Surveillance Act of 1978, as so amended, and, except as
provided in section 707 of the Foreign Intelligence
Surveillance Act of 1978, as so amended, any acquisition
pursuant to such authorization or directive shall be deemed
not to constitute electronic surveillance (as that term is
defined in section 101(f) of the Foreign Intelligence
Surveillance Act of 1978, to the extent that such section
101(f) is limited by section 701 of the Foreign Intelligence
Surveillance Act of 1978, as so amended).
(4) Use of information acquired under protect america
act.--Information acquired from an acquisition conducted
under the Protect America Act of 2007, and the amendments
made by that Act, shall be deemed to be information acquired
from an electronic surveillance pursuant to title I of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801
et seq.) for purposes of section 106 of that Act (50 U.S.C.
1806), except for purposes of subsection (j) of such section.
(5) New orders.--Notwithstanding any other provision of
this Act or of the Foreign Intelligence Surveillance Act of
1978--
(A) the government may file an application for an order
under the Foreign Intelligence Surveillance Act of 1978, as
in effect on the day before the date of the enactment of the
Protect America Act of 2007, except as amended by sections
102, 103, 104, 105, 106, 107, 108, 109, and 110 of this Act;
and
(B) the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall enter an
order granting such an application if the application meets
the requirements of such Act, as in effect on the day before
the date of the enactment of the Protect America Act of 2007,
except as amended by sections 102, 103, 104, 105, 106, 107,
108, 109, and 110 of this Act.
(6) Extant authorizations.--At the request of the
applicant, the court established under section 103(a) of the
Foreign Intelligence Surveillance Act of 1978 shall
extinguish any extant authorization to conduct electronic
surveillance or physical search entered pursuant to such Act.
(7) Applicable provisions.--Any surveillance conducted
pursuant to an order entered pursuant to this subsection
shall be subject to the provisions of the Foreign
Intelligence Surveillance Act of 1978, as in effect on the
day before the date of the enactment of the Protect America
Act of 2007, except as amended by sections 102, 103, 104,
105, 106, 107, 108, 109, and 110 of this Act.
(8) Transition procedures concerning the targeting of
united states persons overseas.--Any authorization in effect
on the date of enactment of this Act under section 2.5 of
Executive Order 12333 to intentionally target a United States
person reasonably believed to be located outside the United
States shall remain in effect, and shall constitute a
sufficient basis for conducting such an acquisition targeting
a United States person located outside the United States
until the earlier of--
(A) the date that authorization expires; or
(B) the date that is 90 days after the date of the
enactment of this Act.
Mr. ROCKEFELLER. Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOND. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BOND. Madam President, again I rise to thank Chairman
Rockefeller, the members of the committee on both sides, and our very
able staffs for a lot of hard work, particularly by members of the
committee but by many Members who are not on the committee, who took
their time to learn what the electronic surveillance capabilities are,
to learn what guidelines and protections there are to protect the
privacy rights and constitutional rights of American citizens and help
us pass this bill.
This is a bill which I hope we will at least, in large part, find the
House agreeable to and that we can send it to the President. This has
been a very long procedure. The chairman just pointed out that we have
been working on this almost a year. We worked very hard after the
August recess to come up with a good bill. I know we had some very
warmly felt and vigorously argued amendments, but the fact that these
would make it difficult for the intelligence community to collect the
intelligence necessary to protect our interests, our allies, our troops
abroad, and us here at home led a significant bipartisan majority to
improve it.
Again, my sincere thanks to the leadership on both sides for allowing
us to get to this important measure. We hope we will have a conference
report, if necessary, or a measure from the House that we can pass
before the end of the week.
So, Madam President, my sincere thanks to Members on both sides and
particularly our great staffs on both sides.
I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Democratic leader.
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