[Congressional Record: July 8, 2008 (Senate)]
[Page S6379-S6381]
FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008
Mr. CARDIN. Mr. President, I rise today in opposition to final page
of this legislation, H.R. 6304, the Foreign Intelligence Surveillance
Act of 1978, FISA, Amendments Act of 2008, if it is not amended to
change the retroactive immunity provisions.
The President must have the necessary authority to track terrorists,
intercept their communications, and disrupt their plots. Our Nation
still faces individuals and groups that are determined to do harm to
Americans, as well as our interests throughout the world.
I have spent many hours at the National Security Agency, which is
located in Fort Meade, MD. The men and women of our intelligence
agencies are dedicated public servants who are doing a great job on
behalf of their country. They are trying to do their jobs correctly,
and comply with all applicable laws and regulations.
As a member of the Judiciary Committee, I have received classified
briefings about the advice and requests that were given to the
telecommunications companies by the U.S. Government. I have seen the
opinions of counsel on this issue. I have attended numerous hearings on
this issue.
Congress must indeed make needed changes to FISA to account for
changes in technology and rulings from the FISA Court involving purely
international communications that pass through telecommunications
routes in the United States. While we have a solemn obligation to
protect the American people, we must simultaneously uphold the
Constitution and protect our civil liberties.
After learning about executive branch abuses in the 1960s and 1970s,
Congress passed very specific laws which authorize electronic
surveillance. Congress has regularly updated these measures over the
years to provide the executive branch the tools it needs to investigate
terrorists, while preserving essential oversight mechanisms for the
courts and the Congress. FISA requires the Government to seek an order
or warrant from the FISA Court before conducting electronic
surveillance that may involve U.S. persons. The act also provides for
postsurveillance notice to the FISA Court by the Attorney General in an
emergency.
I am very concerned that the FISA law was disregarded by the
administration, and want to ensure that we put an end to this type of
abuse. We are a nation of laws and no one is above the law, including
the President and Attorney General. The President deliberately bypassed
the FISA Court for years with his warrantless wiretapping program--long
after any emergency period directly following the 9/11 terrorist
attacks--and did not ask Congress to change the FISA statute. In fact,
President Bush refused to fully brief Congress on the Terrorist
Surveillance Program, TSP, the existence of which was only exposed
through a New York Times story. After the story broke, the
administration reluctantly agreed to place this program under the
supervision of the FISA Court.
I do believe that many of the telecommunications companies cooperated
with the Government in good faith, and may be entitled to relief. But
the FISA statute of 1978 already lays out procedures for the Government
to seek a court order and present this order to the telecommunications
companies and require their assistance. The 1978 FISA statute also
provides certain immunities to telecommunications companies that
provide this type of assistance to the Government.
The President chose to ignore the FISA statute. If the President did
not want to use the FISA statute or wanted to change it, he had the
responsibility to come to Congress and ask for that change. He cannot
change the law by fiat, or by issuing a Presidential signing statement.
Congress must change the law, and the courts must interpret the law.
Congress and the courts have the power, and often the responsibility,
to disagree with the President, and these co-equal branches have the
constitutional checks to override his veto, disapprove of a request for
a warrant, or strike down an action as unconstitutional.
I will vote against retroactive immunity for the telecommunications
companies. The current bill only authorizes the district court to
review whether the companies received written requests from the U.S.
Government stating that the activity was authorized by the President
and determined to be lawful by the executive branch. The Court would
have to simply accept the executive branch's conclusion that the
warrantless wiretapping outside of the FISA statute and without FISA
Court approval was legal, which means the executive branch--not the
judiciary--gets to decide whether the law was broken. I want the courts
to be able to look at what the executive branch is doing. I want the
court to protect individual rights. Granting this type of immunity
would violate the basic separation of powers. It would also create a
dangerous precedent for future administrations and private actors to
violate the law, and then seek relief in Congress or from the President
through an after-the-fact amnesty or pardon.
There was a way to provide the telecommunications companies with
appropriate relief. Senator Feinstein's amendment would have allowed
the courts to grant relief to the telecommunications companies if they
acted reasonably under the reasonable assumption that the Government's
requests were lawful. This amendment would have preserved the
independent judgment of the judiciary, and preserved the necessary
check and balance in our system of government. Unfortunately, the
negotiators for this legislation rejected this compromise.
[[Page S6380]]
I also want to note the improvements made to title I of this
legislation, compared to current law and the Senate-passed Intelligence
Committee version. I thank the Members of the House and Senate who
worked hard on improvements to this legislation, particularly House
majority leader Steny Hoyer.
Title I is not perfect, but it is does bring the President's program
under the FISA statute and FISA Court, and provides for oversight by
Congress and the courts.
Title I contains a sunset of December 2012 for this legislation. I
feel strongly that the next administration should be required to come
back and justify these new authorities to Congress. As a member of the
Judiciary Committee, I believe the only meaningful cooperation we
received from the executive branch on this issue occurred when they
were facing a sunset and a potential lapsing of their authorities and
powers under the statute. Congress will then have time to evaluate how
the new law has been implemented, and debate whether further changes
are needed.
This legislation also requires the inspector general to review
compliance with: (1) Targeting and minimization procedures; (2) reverse
targeting guidelines; (3) guidelines for dissemination of U.S. person
identities; and (4) guidelines for acquisition of targets who turned
out to be in the United States. The inspector general review will be
provided to the Attorney General, Director of National Intelligence,
and the Judiciary and Intelligence Committees of the Senate and House.
The public would also be given an unclassified version of these
reviews, reports, and recommendations. These reviews will help Congress
evaluate the new authorities under the FISA statute, and how the
executive branch and the FISA Court are using these new authorities,
before the legislation sunsets. Congress can then decide how best to
reauthorize this program.
The bill strengthens the exclusivity language of FISA and the
criminal wiretap laws. Congress is making very clear that these
statutes are the exclusive means by which electronic surveillance can
be legally conducted by the U.S. Government. The bill also removes a
troubling attempt to unduly broaden the definition of ``electronic
surveillance.''
Supreme Court Justice Anthony Kennedy, in his opinion in the recent
Boumediene case on the Guantanamo detainees, stated: ``The laws and
Constitution are designed to survive, and remain in force, in
extraordinary times. Liberty and security can be reconciled; and in our
system they are reconciled within the framework of the law.''
I believe title I should have been strengthened by more effective
court review. However, absent the retroactive immunity provisions in
title II, I would support the compromise legislation, because it is
important for the intelligence community to have the tools it needs.
However, I regret that if the retroactive immunity provision remains
unchanged in the final legislation, I will vote against the
legislation, because of the fundamental problem with that provision.
In conclusion Mr. President, shortly we will be considering the
amendments to the Foreign Intelligence Surveillance Act, the FISA act.
I must tell you, I think it is important that our intelligence
community have the tools they need to obtain information from foreign
sources. That is what this legislation is about. We need to modernize
the FISA law. Communication methods have changed, and we need to give
the tools to the intelligence community to meet their modern needs of
communication.
I serve on the Judiciary Committee. I was privy to many hearings we
had, some of which were classified, to find out the information as to
what we could do. We brought forward legislation that I think was the
right legislation that would have given the necessary tools to the
intelligence agencies to get information from foreign sources without
being burdened by unnecessary court approval and protect the civil
liberties of the people of this Nation. Unfortunately, that compromise
was rejected.
We are in this situation today where we have had major disagreements
on how to amend the FISA statutes because of the action of the Bush
administration. It is absolutely clear to me that the President went
beyond the legal or constitutional authority that he has in doing
wiretaps without court approval. I want to make it clear, the men and
women who work at our intelligence agencies, many of whom are in
Maryland at NSA, are doing a great job. They are trying to do
everything that is correct to protect our Nation and do it in the
correct manner. It was the Bush administration that went beyond the
law. It was the Bush administration that went beyond the Constitution.
It is important for us to balance the needs of our community to get
information to protect us but also protect the civil liberties with the
proper checks and balances in our system.
That brings me to H.R. 6304, the legislation that will shortly be
before us.
Title I is a much better bill than the bill that left the Senate
earlier this year. I think this bill has been worked on in a very
constructive environment. I compliment not only Senator Rockefeller,
who is on the Senate floor, for his hard work on this legislation, I
also compliment my colleague from Maryland, Congressman Hoyer, the
majority leader of the House of Representatives, for the work he did in
bringing us together on a bill that I think is a better bill than the
bill that left the Senate.
This bill provides for a sunset in 2012. That is important because I
find we do not get the attention from the administration on this issue
unless they are faced with a deadline from Congress. This will force
the next administration to take a look at this legislation and come
back to the Congress with modifications or justifications for the
continuation of the legislation. I think that is an important
improvement.
The legislation provides for the inspector general to review the
targeting and minimization provisions. The targeting is when a U.S.
citizen, perhaps indirectly, is targeted. And the minimization
procedures deal with when the intelligence community gets information
about an American without court approval, to minimize the use of that
information or to seek court approval. Both of those provisions will be
reviewed by the inspector general and reports issued back to the
Congress with unclassified versions available for public inspection.
The FISA Court is strengthened through the compromise that has been
reached. Let me make it clear, I would have liked to have seen the
Judiciary Committee's bill passed and enacted into law. I think we can
still improve title I. But I believe in the legislative process, and I
think there has been a fair compromise reached on title I.
If title I were before us as an individual action, I would support
the compromise because I think it is time to move forward. But there is
title II, and title II is the retroactive immunity. It gives
retroactive immunity to our telecommunications companies, our telephone
companies. They are entitled to some relief. They acted under the
urgency of the attacks on our country on September 11 and with the
request of the President of the United States. They are entitled for
some relief. But this provision goes way too far.
It authorizes the executive branch to determine the legality of their
actions. In other words, the agency, the President who asked for the
information, will determine whether the telephone companies acted
properly. It should be the courts. This takes too much away from the
judicial branch. It, in my view, compromises the checks and balances
that are so important in our constitutional system.
We didn't have to be here. I thought Senator Feinstein offered a fair
compromise, and I am surprised it was not taken by the negotiators.
Senator Feinstein said: Why don't we let the FISA Court make a decision
as to whether the telephone companies acted legally? That is a
compromise I could have supported. I think it would have been a fair
compromise. Unfortunately, that was rejected. Title II is a fundamental
flaw in the separation of powers, in the proper protection of civil
liberties of the people of this Nation, and a dangerous precedent for
future action by this Congress.
I will vote to remove or modify title II by the amendments that will
be presented later today. I prefer to modify it. As I suggested, I
think we have compromises that can work, but I will vote
[[Page S6381]]
to remove it if there are no other options presented. If we do not
modify title II, reluctantly I will not be able to support the
compromise legislation that has been presented.
I urge my colleagues to try to get this done right. This is an
important bill. Unfortunately, it is fatally flawed with the
legislation that is before us.
I yield the floor.
____________________
[Congressional Record: July 8, 2008 (Senate)]
[Page S6381-S6386]
FISA AMENDMENTS ACT OF 2008
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of H.R. 6304, which the clerk will
report.
The legislative clerk read as follows:
A bill (H.R. 6304) 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 ACTING PRESIDENT pro tempore. Under the previous order, the
motion to proceed is agreed to and the motion to reconsider is made and
laid on the table.
The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the time I
consume be allocated to the Dodd amendment.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. FEINGOLD. Mr. President, I strongly support Senator Dodd's
amendment to strike the immunity provision from this bill, and I
especially thank the Senator from Connecticut for his leadership on
this issue. Both earlier this year, when the Senate first considered
FISA legislation, and again this time around, he has demonstrated
tremendous resolve on this issue, and I have been proud to work with
him.
Some have tried to suggest that the bill before us will leave it up
to the courts to decide whether to give retroactive immunity to
companies that allegedly participated in the President's illegal
wiretapping program. But make no mistake, this bill will result in
immunity being granted--it will--because it sets up a rigged process
with only one possible outcome. Under the terms of this bill, a Federal
district court would evaluate whether there is substantial evidence
that a company received . . .
a written request or directive from the Attorney General or
the head of an element of the intelligence community
indicating that the activity was authorized by the President
and determined to be lawful.
We already know, from the report of the Senate Intelligence Committee
that was issued last fall, that the companies received exactly such a
request or directive. This is already public information. So under the
terms of this proposal, the court's decision would actually be
predetermined.
As a practical matter, that means that regardless of how much
information the court is permitted to review, what standard of review
is employed, how open the proceedings are, and what role the plaintiffs
are permitted to play, it won't matter. The court will essentially be
required to grant immunity under this bill.
Now, our proponents will argue that the plaintiffs in the lawsuits
against the companies can participate in briefing to the court, and
this is true. But they are not allowed any access to any classified
information. Talk about fighting with both hands tied behind your back.
The administration has restricted information about this illegal
wiretapping program so much that roughly 70 Members of this Chamber
don't even have access to the basic facts about what happened. Do you
believe that? So let's not pretend that the plaintiffs will be able to
participate in any meaningful way in these proceedings in which
Congress has made sure their claims will be dismissed.
This result is extremely disappointing. It is entirely unnecessary
and unjustified, and it will profoundly undermine the rule of law in
this country. I cannot comprehend why Congress would take this action
in the waning months of an administration that has consistently shown
contempt for the rule of law--perhaps most notably in the illegal
warrantless wiretapping program it set up in secret.
We hear people argue that the telecom companies should not be
penalized for allegedly taking part in this illegal program. What you
don't hear, though, is that current law already provides immunity from
lawsuits for companies that cooperate with the Government's request for
assistance, as long as they receive either a court order or a
certification from the Attorney General that no court order is needed
and the request meets all statutory requirements. But if requests are
not properly documented, the Foreign Intelligence Surveillance Act
instructs the telephone company to refuse the Government's request, and
it subjects them to liability if they instead decide to cooperate.
When Congress passed FISA three decades ago, in the wake of the
extensive, well-documented wiretapping abuses of the 1960s and 1970s,
it decided that in the future, telephone companies should not simply
assume that any Government request for assistance to conduct electronic
surveillance was appropriate. It was clear some checks needed to be in
place to prevent future abuses of this incredibly intrusive power; that
is, the power to listen in on people's personal conversations.
At the same time, however, Congress did not want to saddle telephone
companies with the responsibility of determining whether the
Government's request for assistance was legitimate. So Congress devised
a good system. It devised a system that would take the guesswork out of
it completely. Under that system, which is still in place today, the
company's legal obligations and liability depend entirely on whether
the Government has presented the company with a court order or a
certification stating that certain basic requirements have been met. If
the proper documentation is submitted, the company must cooperate with
the request and it is, in fact, immune from liability. If the proper
documentation, however, has not been submitted, the company must refuse
the Government's request or be subject to possible liability in the
courts.
This framework, which has been in place for 30 years, protects
companies that comply with legitimate Government requests while also
protecting the privacy of Americans' communications from illegitimate
snooping. Granting companies that allegedly cooperated with an illegal
program this new form of retroactive immunity in this bill undermines
the law that has been on the books for decades--a law that was designed
to prevent exactly the type of abuse that allegedly occurred here.
Even worse, granting retroactive immunity under these circumstances
will undermine any new laws we pass regarding Government surveillance.
If we want companies to obey the law in the future, doesn't it send a
terrible message, doesn't it set a terrible precedent, to give them a
``get out of jail free'' card for allegedly ignoring the law in the
past?
Last week, a key court decision on FISA undercut one of the most
popular arguments in support of immunity; that is, that we need to let
the companies off the hook because the State secrets privilege prevents
them from defending themselves in court. A Federal Court has now held
that the State secrets privilege does not apply to claims brought under
FISA. Rather, more specific evidentiary rules in FISA govern in
situations such as that. Shouldn't we at least let these cases proceed
to see how they play out, rather than trying to solve a problem that
may not even exist?
That is not all. This immunity provision doesn't just allow telephone
companies off the hook; it will also make it that much harder to get at
the core issue I have been raising since December 2005, which is that
the President broke the law and should be held accountable. When these
lawsuits are dismissed, we will be that much further away from an
independent judicial review of this illegal program.
On top of all this, we are considering granting immunity when roughly
70 Members of the Senate still have not been briefed on the President's
wiretapping program. The vast majority of this body still does not even
know what we are being asked to grant immunity for. Frankly, I have a
hard
[[Page S6382]]
time understanding how any Senator can vote against this amendment
without this information.
I urge my colleagues to support the amendment to strike the immunity
provision from the bill.
I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, would the distinguished Senator from
Wisconsin yield for a question?
Mr. FEINGOLD. I will.
Mr. SPECTER. As the Senator from Wisconsin doubtless knows, there was
a very extensive analysis of these issues by Chief Judge Walker of the
San Francisco District Court handed down last Wednesday, and I think it
was no coincidence that the decision preceded just a few days--after
everybody knew, including Chief Judge Walker--of the Senate taking up
this question.
In that opinion, Chief Judge Walker finds the Terrorist Surveillance
Program unconstitutional. He says, flatly, that the language of the
Foreign Intelligence Surveillance Act of 1978 means what it says on the
exclusive remedy for warrants, and that the President exceeded his
article II powers as Commander in Chief.
As we all know, the Detroit District Court came to the same
conclusion, was reversed by the Sixth Circuit in a 2-to-1 opinion on
standing, and then the Supreme Court of the United States handily
ducked the question by the noncert. That is the principal
constitutional confrontation of our era, on article I powers by
Congress and article II powers of the President as Commander in Chief.
They denied cert. And on the standing issue, as disclosed by the Senate
opinion in the Sixth Circuit, the Supreme Court could easily have taken
the case to resolve this big issue.
But now Judge Walker has decided, and it is very significant, because
Judge Walker has these more than 40 cases pending on the effort to
grant retroactive immunity. The case he decided it on is the Oregon
case where State secrets are involved, with the inadvertent disclosure
by the Federal agents.
It is hard for me to see how you have a State secret which is no
longer secret. And you have a document, just electronic surveillance,
which was disclosed, so it is no longer a secret. That remains to be
decided under the opinion of Chief Judge Walker, but he says there is a
``rich lode'' of material on the standing issue.
These questions involve extraordinarily complex matters. The Senator
from Wisconsin knows that. He has been deeply involved in it. And the
distinguished chairman knows that, because he has been deeply involved
in these matters. My question to the Senator from Wisconsin is twofold:
One, what do you see as the immediate ramifications of Chief Judge
Walker's opinion handed down a few days before we are to decide it?
And a related question: What do you think of the likelihood that
Members of the Senate have had or could have an adequate opportunity to
review that 59-page opinion with all of its detailed ramifications?
Mr. FEINGOLD. Mr. President, I thank the Senator for asking the
question. Yes, I referred to this decision in my brief comments about
this amendment. I think it is obviously a significant decision. As I
indicated, it deals with the State secrets issue. It says that FISA is
in fact the exclusive means and that the evidentiary rules regarding
FISA should control, rather than State secrets. That is an important
finding. But even more important is what the Senator from Pennsylvania
is alluding to, which is the broader issue that the judge didn't
decide, but clearly he indicated where he would head on the question of
whether the President's TSP program was illegal--and I have long
believed that it was illegal. In fact, the Senator and I were the first
Members to comment on the revelation of this program in December of
2005 on the floor of the Senate.
I have examined it closely myself, as a member of the Intelligence
Committee and the Judiciary Committee, and I feel even more strongly
today than I did then that this program was illegal and there needs to
be accountability for that illegality. That accountability can come in
part from litigation of the kind that involved this district court
decision, and it can come from other cases that are pending. But my
concern, of course, is that if we jam this bill through, it may have an
impact on the ability to pursue that underlying legal issue because of
the effective granting of immunity to telephone companies. So this
decision has significance, but I can't tell you that I know all the
ramifications.
Obviously, Members of the Senate, to answer your question, should
review the opinion and have a chance to find out more about the
opinion. But there are 70 Members of the Senate who haven't even had
the benefit of what you and I have had, which is the briefing on the
actual TSP and what happened from 2001 to 2007 with regard to
wiretapping.
I thank the Senator for making this important point about Senators
being ready to grant this immunity without reviewing the litigation.
Mr. SPECTER. Mr. President, if the Senator from Wisconsin will yield
for just one more question? And that is, in the context, is the
Senator--I asked him to yield for one more question, and I will use a
microphone so perhaps he can hear me, perhaps some people on C-SPAN2
will hear me, perhaps some Senators will hear me, because we need to be
heard on this subject because of its complexity.
The question relates to what the Senator from Wisconsin has said. He
puts it at some 70 Members of the Senate have not been briefed on the
program. I have heard from House leadership that most of the Members of
the House have not been briefed on the program. There has been no
official determination. The language is picked up from the allegations
of the complaint as to what is alleged.
The question is, How can the Congress intelligently decide--maybe
that is too high a standard. But how can the Congress, especially the
world's greatest deliberative body, the U.S. Senate--how can the
decision be made on electronic surveillance, granting retroactive
immunity, when we don't know what we are granting retroactive immunity
to?
The second part is, How can we fly in the face of the decision by the
judge who is ruling on these cases--we are sending them all to him--
when he, speaking for the court: The law of the case is that the
terrorist surveillance program is unconstitutional, that it exceeds the
authority.
The Foreign Intelligence Surveillance Act also covers the pen
register and related items, so--not specifying what is involved here--
whatever is involved, sending it to the judge who has already said it
is unconstitutional. How can we deal in an intelligent manner given
those two critical factors?
Mr. FEINGOLD. Mr. President, I again thank the Senator from
Pennsylvania for his comments and question. Really, the only
appropriate answer is to say ``amen'' to everything he just said. Think
about this: To vote on anything when 70 Members of the Senate haven't
been briefed on it seems unbelievable, and then you add to it that it
has to do with the most critical issue of our time: How can we best
protect our country from those who attacked us while also observing the
rule of law? That would be bad enough. But then you add to it, as the
Senator from Pennsylvania has indicated, that this goes to the very
core issue of the structure of the Constitution. Is it really true, as
the administration puts forward in defense of the TSP program, that
article II of the Constitution somehow allows the executive and
Commander in Chief power to override an absolutely clear, exclusive
authority adopted by Congress pursuant to Justice Jackson's third tier
of the test set out in his Youngstown opinion?
All of these levels are implicated by this. The Senator could not be
more correct. This is an amazingly inappropriate use of legislative
interference, pushed by this administration, and Senators should take a
very hard look at whether they want to be associated with such an
attack on the rule of law in this country.
I yield the floor.
The ACTING PRESIDENT pro tempore. Who yields time? The Senator from
West Virginia.
Mr. ROCKEFELLER. Mr. President, I am opposing the amendment. So I
would be taking time from Senator Bond. I ask for approximately 20
minutes.
The ACTING PRESIDENT pro tempore. Duly noted.
[[Page S6383]]
Mr. ROCKEFELLER. Mr. President, my colleagues have submitted two
amendments seeking to accomplish somewhat the same goal before, and in
a sense now down to one. Senators Dodd and Feingold have an amendment
to strike title II of the FISA bill. It is very plain and simple, and
they are very clear about that. The amendments have the same effect--
eliminating the title that provides a mechanism for a U.S. district
court to decide whether pending suits against telecommunications
companies should be dismissed.
Two other amendments with respect to title II, to be offered by
Senator Specter and Senator Bingaman, will follow. While I address
those amendments in separate statements, I would like to say now with
respect to the amendments that I oppose each of them and I urge that
the Senate pass H.R. 6304 without amendment so that the delicate
compromise which serves as best it can to protect both national
security and privacy and civil liberties can, in fact, become law.
Six and a half years ago, instead of consulting with Congress about
changes that might be needed to FISA, the President made the very
misguided decision to create a secret surveillance program that
circumvented the judicial review process and authorization required by
FISA and was kept from the full congressional oversight committees.
That is calling it running around the end altogether. We are right to
be angry about the President's actions, but our responsibility today is
to look forward. That is what this bill is about, to make sure we have
adequately dealt with the numerous issues that have arisen from the
President's very poor decision, bad decision.
The bill in front of us today accomplishes three important goals with
respect to the President's warrantless program.
First, the bill establishes a sure and realistic method of learning
the truth about the President's program--I repeat, learning the truth
about the President's program. It requires the relevant inspectors
general--that is a term of art. What I mean by that is the inspectors
general of the CIA, DOD, NSA, et cetera, people who oversee and know
what is in this program altogether--to submit an unclassified report
about the program to the Congress. This report will ensure that both
Congress and, by the way, therefore, obviously, the public will have as
complete a picture of the President's warrantless surveillance program
as possible or as messy as it may be for them to ingest.
Second, the bill tightens the exclusivity of the FISA law, making it
improbable for any future President to argue that acting outside of
FISA is lawful. That is huge. That means the President can never again,
ever use what he has used--his all-purpose powers--and say he can just
walk right around the end of FISA. He has to have a statutory
authority, it has to come from us, and he cannot bypass FISA as he did
altogether.
Third, the bill addresses the problems the President's decision has
caused for the telecommunications companies that were told their
cooperation was both legal and necessary to prevent another terrorist
attack. They were not told a lot, but they were certainly told that.
The bill does not provide those companies with a free pass. It requires
meaningful district court review of whether statutory standards for
protection from liability have been met for the companies having relied
on the Government's written representations of legality.
You remember there was a period when we were using the FISA Court to
make these kinds of judgments, and we bent to the better wisdom of the
House with respect to the district court, which is a more public court.
So they have that responsibility.
All of these pieces fit together, and not just because they are part
of a larger compromise on this bill. Private companies that cooperated
with the Government in good faith, as the facts before the
congressional intelligence committees demonstrate they did, should not
be held accountable for the President's bad policy decisions. But if
the court ultimately dismisses the litigation against those companies,
it is important that there be a mechanism for public disclosure about
the President's program, and it is precisely, therefore, in this bill
that the inspectors general report, which has to be provided to us
within a year, provide that public accountability.
Likewise, we can only put past actions behind us if we can be
reassured that this will not happen again, and therefore the strength
in the exclusivity language in the FISA bill addresses that concern.
That it does.
Together, the three components of the bill provide accountability for
the mistakes of the past as well as a way to move forward.
Although title II in the bill before us today differs in important
ways from the title II we passed out of the Senate this past February,
the two bills address the same underlying problems faced by the
telecommunications companies.
Because the majority of the information in the cases is classified,
there has been no substantial progress in the cases against the
telecommunications companies--several of them have been going on for
years. Classified information, they can't have it; state secrets, can't
have it. The Government has not even allowed the telecommunications
companies in the many pending lawsuits to disclose publicly whether
they assisted the Government. These companies, therefore, have not been
permitted to invoke the defense to which they are entitled. But sued
they are. The companies cannot reveal, for example, whether they did
not participate in the program. That would be a false accusation
against some company, but they cannot say that they didn't participate
or that they only participated pursuant to a court order--they can't
talk about that--or participated in reliance on written Government
representation of legality--cannot talk about that. The bill before us
today allows these defenses to be presented to the district court, the
public court--not the FISA Court, which is kind of a secret court, but
to the district court, which is not a secret court. It is a public
court.
The Attorney General is authorized to certify to the court that
particular statutory requirements have been met without requiring
public acknowledgment of whether particular providers assisted the
Government.
The bill then requires the district court to determine whether the
Attorney General's certification is supported by ``substantial
evidence.'' That is a higher, tougher standard than the ``abuse of
discretion'' test we had in the Senate bill. In making this assessment,
the district court is specifically authorized to review the underlying
documents on which the Attorney General's certification is based. The
court can, therefore, ``review any court orders, statutory directives
or certifications authorizing providers' cooperation.''
Importantly, the court may also review the highly classified
documents provided to the companies indicating that the President had
authorized the program and that it had been determined to be lawful.
Explicitly allowing the court to base its decision on whether companies
are entitled to liability protection on relevant underlying documents
is an important improvement to the bill, and I am happy it is in it.
Because such documents would be classified, any review of those
documents in the litigation prior to this bill would have been limited
to a court assessment of whether the documents were privileged. The
court could not have relied on what the Government's communications to
the providers actually said in making its assessment about whether the
cases should be dismissed. The court could not have relied on what
those Government communications said--it is different.
This bill before the Senate, therefore, gives the district court both
an important role in determining whether statutory requirements for
liability protection have been met and the tools to make that
assessment.
The FISA bill also provides a more explicit role for the parties to
the litigation--this is new and better--to ensure that they will have
their day in court open--sort of, and so to speak--but they will have
their day in court.
But they will have their day in court. They are provided the
opportunity to brief the legal and constitutional issues before the
court and may submit documents to the court for review. Whatever it is
they want to submit, they can submit.
[[Page S6384]]
A few of my colleagues have argued that including any sort of
mechanism that would allow the district court to resolve these cases
will prevent the public from hearing the details about the President's
program. But even if the litigation were to continue indefinitely, it
would never tell the full story.
Lawsuits have now been pending for, as I indicated, over 2 years. The
fight during all that time, and the likely fight in the future, has
been about whether the plaintiffs will have access to any classified
information about the program. The plaintiffs in the litigation, they
have never been and will never be provided with wide-ranging
information about the President's classified program that would enable
them to put together a comprehensive picture of what happened.
This capability is reserved for those who have complete access to
information about the program. And that again is why I come back to the
importance of the inspectors general aspect of this oversight. You can
say: inspectors general, them and their reports. Well, inspectors
general can take apart their agencies, and they are sort of in there to
do that.
That is why we have asked the inspectors general of these relevant
intelligence agencies, including the DOD, who do, in fact, have
complete access to information about the program, to conduct a
comprehensive review of that same program, the whole thing.
The FISA bill requires a report of the review be submitted to the
Congress in a year and requires that the report, apart from any
classified annex, be submitted in an unclassified form that can be made
available to the public.
That is not a dodge, that is simply a fact. You cannot release
classified information to the public. So this is an appropriate way to
obtain answers to questions about the President's program and ensure
the public's accountability.
Critics have also claimed that granting immunity will suggest to the
telecommunications companies that that compliance with the law is
optional or that Congress believes that the President's program was
legal. An examination of the bill that is before us in the Senate would
make it impossible for anyone to come to either conclusion.
The administration made very strained arguments to circumvent
existing laws in carrying out the President's warrantless surveillance
program: a claim, for example, that the 2001 authorization for use of
military force was a statutory authorization for electronic
surveillance outside FISA, even though that authorization did not
mention electronic surveillance.
What role did we expect telecommunications companies to play in those
assessments of legality? To answer that question, we must consider the
legal regime under which these companies were operating. Numerous
statutes over the years have stressed the importance of cooperation
between the telephone companies and the Federal Government,
particularly in times of emergency. This has a fairly long history.
FISA itself allows the Attorney General to authorize electronic
surveillance for short periods of time in emergencies prior to the
submission of an application for an order. The law, as it existed in
2001 and as it exists today, grants immunity to telecommunications
companies, based solely on a certification from the Attorney General
that no warrant or court order is required by law, that the statutory
requirements have been met, and that the specified assistance is
required.
Given the need for speedy cooperation in times of emergency, Congress
has never asked companies to question the Government's legal analysis
that their cooperation is legal and necessary. Thus, although the
telecommunications companies have always been and will always be
expected to comply with the law, Congress has told them, prior to 2001,
that they were entitled to rely on representations from the highest
levels of Government as to what conduct was legal.
That is the way it worked. In the case of the President's
surveillance program, representations of legality were made to
providers from the very highest levels of Government. The FISA bill
before the Senate, therefore, eliminates any possible loopholes in
existing law, ensuring that neither the telecommunications companies
nor any future Presidents have any doubt about what is required to
comply with the law.
It strengthens the exclusivity language of FISA--I have mentioned
that, I do again--making it absolutely clear that the Congress does not
intend general statutes to be an exception to FISA's exclusivity
requirements. In other words, no future President can therefore claim
that an authorization for use of military force allows the Government
to circumvent FISA.
Even more importantly for the telecommunications companies, the bill
before us makes it a criminal offense to conduct electronic
surveillance outside of specifically listed statutes. Unlike existing
criminal and civil penalties which exempt electronic surveillance that
is authorized by statute, the bill puts telecommunications companies on
notice that any electronic surveillance outside FISA or specifically
listed criminal intercept provisions, in the future, is a criminal
offense that is subject to civil penalties for claims brought by
individuals who are free to do so.
This clear language provides no room for any future President or
Attorney General to argue that criminal and civil penalties should not
attach for any circumvention of FISA.
Now, the improvements to this bill address many of the concerns
raised with the possibility that the court might dismiss the lawsuits
against the telecommunications companies. The bill before us makes
clear that Congress expects compliance with the laws, and it assures
that public accountability is on the Government, where it belongs, and
not on the companies that acted in good faith in cooperating with the
Government.
It is important to say that whatever the inspectors general come up
with in their analysis of this, and believe me, they will be under the
gun to do it right, that they have to report that, both unclassified
and classified, to the Intelligence Committees and the Judiciary
Committees in both Houses. So the oversight factor again comes in.
I think it is time to pass this bill and move forward. I urge my
colleagues to oppose the Dodd-Feingold amendment.
Mr. SPECTER. Mr. President, would the Senator yield for a question;
two questions, very briefly?
Mr. ROCKEFELLER. Of course.
Mr. SPECTER. The first question relates to the fact, as represented,
that some 70 Members of the Senate will not have been briefed on the
program.
I have been advised by the leadership in the House that most of the
Members of the House have not been briefed on the program. The
chairman, in detail, went over what the telephone companies cannot do
because they cannot make any public disclosures.
And my question is: How can we intelligently grant retroactive
immunity on a program that most Members of Congress do not know what we
are granting retroactive immunity on?
Mr. ROCKEFELLER. First of all, I should point out to the
distinguished Senator from Pennsylvania that there was a period when
members of the Intelligence Committee, members of the Judiciary
Committee, were not even able to go to the Executive Office Building to
look at any of the orders that came down, President to Attorney General
to National Security Advisor, then a letter to the companies. We were
not allowed to do that.
The chairman and the vice chairman were allowed to do that. Nobody
else was. That changed. And it changed because this Senator and a
number of others put tremendous pressure, because it was such a
ridiculous situation that I could not even talk to my committee members
about it. And so they expanded that to include not only committee
members but also some staff from both the Intelligence and
Judiciary Committees.
So I would say to the good Senator that intelligence is difficult,
and it is difficult to legislate it on the floor of the Senate. Let me
phrase it this way. There is a common view held by many that members of
the Intelligence Committee and then, to some extent, the Judiciary
Committee, in fact, have the intelligence, they control the
intelligence, it is all theirs.
I wish to debunk that right now. We control no intelligence. It is
entirely controlled, meted out or not, by the executive branch. This
executive branch
[[Page S6385]]
has been extremely cautious, stingy, I would say undemocratic, in doing
this.
The good Senator from Missouri who is coming in now, the vice
chairman of the Intelligence Committee and I have fought like bears to
expand the number of people who can have access to these programs. But
I cannot argue that the Senator--his point is worthy of thought.
I think then one has to consider, are the people on the Judiciary
Committee and the people on the Intelligence Committee representative
of good faith, people of reasonable intellect, people who know their
business, and people who exercise fair judgment? I have been handed a
note to say something I have already said, that the public reporting
accompanying the Senate Intelligence Committee bill, detailed, with a
great deal of specificity, what the companies received from the Federal
Government.
That still does not allow me to argue the Senator's point. It is a
peculiar and difficult nature of legislating intelligence legislation
on the floor of the Senate. But it is not weakened by so doing because
of what I have indicated, because of what the inspectors general,
granted, not in time for this, will come up with, and, secondly, what I
would call the very high standard of people who serve on both the
Republican and the Democratic side of the Senate and House Judiciary
Committee and Intelligence Committee.
Mr. SPECTER. Mr. President, my second question is, very briefly----
Mr. BOND. Mr. President, I would like to reclaim my time.
The ACTING PRESIDENT pro tempore. There are 34 minutes remaining in
opposition. The Senator from West Virginia has the floor.
Mr. SPECTER. Mr. President, very briefly on the second question, and
I will be very brief--the chairman has gone over the ineffectiveness of
Congress in dealing with the statutory requirement for notice to the
Intelligence Committees which wasn't followed. We have gone over the
ineffectiveness of the courts in dealing with enforcing the Foreign
Intelligence Surveillance Act, where the Supreme Court, as I detailed
earlier, had ducked the question. So given the ineffectiveness of
Congress--and I know, I chaired the Intelligence Committee in the 104th
Congress and could find out hardly anything; I found the Director of
the CIA knew so little about what was going on--and then the signing
statements, the only recourse we have now is to the courts and to Chief
Judge Walker.
So my question to you is, if we are to maintain separation of powers
and determination of constitutionality, article I versus article II
powers, how in the world can we act to divest Chief Judge Walker of his
jurisdiction in the case, especially in light of the opinion he handed
down last Wednesday?
Mr. ROCKEFELLER. I respond to the Senator from Pennsylvania by saying
he indicated that Judge Walker said this was not a constitutional
effort between 2001 and 2007, and it was not constitutional. But when
the Senator offers his own amendment this afternoon, I will make the
point I make now, that even if it is determined that the program is
unconstitutional--and that, for reasons I will explain after lunch when
we do the amendment, will not be possible--the immunity fact is not
compromised. It is not changed. You are talking about the
constitutionality of the White House's action. This bill talks about
title I and then title II and a couple of other titles which referred
to protecting basic rights, reverse targeting, all kinds of things such
as that, which, in fact, came from Senator Feingold, and it is not
involved in the constitutionality. It is not involved in that. Even if
the judge ruled it unconstitutional, it would make no difference
whatsoever on title II.
Mr. SPECTER. I respect Senator Bond's time, and I will pursue this
with the chairman when my amendment is called up later today.
I thank my colleagues.
Mrs. BOXER. I have a parliamentary inquiry.
The ACTING PRESIDENT pro tempore. The Senator will state it.
Mrs. BOXER. Senator Dodd has yielded me 10 minutes of his time to
speak in favor of his amendment to strike the immunity clause. I am
wondering how I may get recognition here and how much time does Senator
Dodd have left in this debate?
The ACTING PRESIDENT pro tempore. There is 43 minutes remaining for
the Senator from Connecticut.
Mrs. BOXER. I wonder if Senator Bond would allow me to take 10
minutes of the 43 minutes Senator Dodd has remaining?
Mr. BOND. Mr. President, I am happy to accommodate the Senator from
California. With respect to the comments by the Senator from
Pennsylvania, I had asked that those be reserved for the arguments in
favor of the amendment. How much time remains on the chairman and my
side of the aisle?
The ACTING PRESIDENT pro tempore. There is 30 minutes.
Mr. BOND. We will reserve that and accommodate the Senator from
California. I thank the Chair and my colleagues.
The ACTING PRESIDENT pro tempore. Without objection, the Senator from
California is recognized for 10 minutes.
Mrs. BOXER. Mr. President, I rise today to speak in strong support of
the amendment offered by Senator Dodd to strike the provision from the
bill providing immunity to the telecom companies who assisted President
Bush with his warrantless surveillance program; in essence, breaking
the law they were supposed to live by. I also note that not every
telecom company went along with this. There was at least one, Qwest,
that refused to go along because they said it would break the law if
they did so. I thank Senators Dodd, Feingold, Leahy, and others for
their leadership. I know these are difficult debates to have because
people could say: My goodness, they are offering an amendment to the
intelligence bill and, ipso facto, that must be a bad thing because
they are slowing things down.
I have to say, when you are standing up to fight for liberty and
justice and the truth, you should never be afraid to slow something
down. As a matter of fact, it is our job to do so. I do thank my
colleagues for their leadership.
I am proud to be a cosponsor of this amendment. In my support of this
amendment to strike the immunity to the telecom companies who went
along with the President's secret and, I believe, illegal program, I
wish to say I am not seeking punishment for them. As a matter of fact,
I have stated a long time ago that I support indemnification for the
telecom companies. I believe Senator Whitehouse took the lead on that.
Senator Specter, at one point, I think, was involved in that and
others. I thank them for their leadership on that issue.
I understand the predicament of a company that is facing the White
House and the White House is saying: You need to spy on your customers
because we are asking you to do it for the safety of the people. I
understand their predicament. But I do believe, at this point in time,
to give retroactive immunity kind of makes a mockery of the fact that
we are supposed to be a government of laws, not people. We are
a government of laws. Do we then come back and say: By the way, there
are three laws over here we don't like so we are going to say to the
people who broke them, it is OK, because we have looked at it and we
think it is OK? This is America. We are a country of laws. So this
issue is so important. I can't overstate how deeply I feel about it.
We cannot place the interests of the companies and, frankly, of this
administration, that doesn't want the truth to come out, ahead of the
constitutional rights of our citizens who seek justice in our courts.
This administration is so desperate to have this immunity because they
have no interest in the American people finding out the truth.
In another subject area, I had a press conference today with a
wonderful man who stood up and quit the Environmental Protection Agency
because they were thwarting him every step of the way as he tried to
tell the truth about the real dangers, as a matter of fact, the
endangerment posed by global warming. He sent the White House an e-
mail, and it was entitled ``Endangerment Finding.'' The White House
called and said: Take it back. We don't want to open it. And he said:
It is too late. So that e-mail is floating around in cyberspace because
the
[[Page S6386]]
White House knows, if they open it, it becomes public domain. So
secrecy is what this administration lives by.
This is a blatant example of where they want to keep secret an
illegal program. I don't think we should be complicit. I don't think we
should enable them to avoid the constitutional scrutiny of our Federal
courts. We can't sacrifice--we can't--the truth for convenient
expediency. It is not American. We have a system of government that is
built not only on our Constitution but on the notion of checks and
balances. The Federal courts are doing their job by checking this
administration's broad exercise of Executive power. That is why I will
be supporting other amendments that will be coming up that deal with
this matter.
Last week, Chief Judge Walker, of the Northern District of
California, issued an opinion rejecting this administration's claim to
have ``inherent authority'' to eavesdrop on Americans outside of
statutory law. What does this Senate want to do? A lot of the leaders
you hear speaking on this want to make it possible to give
retroactively to this administration the inherent authority to
eavesdrop on Americans outside the law. In the future, we are fixing
it. Good, I am glad. I am happy. But you can't then say, but we are
going to look back and change the law. It is not right.
Listen to what Judge Walker wrote:
Congress appears clearly to have intended to establish the
exclusive means for foreign intelligence activities to be
conducted. Whatever power the executive might otherwise have
had in this regard, FISA limits the power of the executive
branch to conduct such activities and it limits the executive
branch's authority to assert the State secrets privilege in
response to challenges to the legality of its foreign
intelligence surveillance activities.
So we, Congress, limited the power of the executive. We said: You
can't assert the state secrets privilege in response to challenges to
the legality of its foreign intelligence activities. And here we are
rolling over with bravado to say to this administration--and by the
way, I would feel the same way whoever was the President, this
administration or any administration--oh, you are the absolute ruler,
the King. You can do whatever you want. You can roll over. You can do
all of that.
We need to protect this country from terrorists. We must. I voted to
go to war against bin Laden, and I will not rest until he is gone and
we break the back of al-Qaida. Unfortunately, that has gone awry. I
will be very willing to have our Government listen in on conversations
of the bad actors out there, but I don't want good people being spied
on. That was the whole reason FISA came into being in the first place.
People seem to forget the original FISA was to protect the people from
being spied on, ordinary people. Suddenly, it has been turned on its
head. I believe the current process works. Our system of government
works. The Federal courts are exercising their constitutional duty to
review Executive power.
So why in this bill are we seeking to stop that process? Why are we
attempting to tie the capable hands of the Federal courts and deny our
citizens their day in court? Covering up the truth is not the way to
gain or regain the trust of the American people. The truth is the basis
of the American ideal.
I always marveled, as a little girl and as a young woman, growing up,
watching as the truth came out about America. I remember my dad, who
loved this country so much, saying to me: Honey, you just watch this
country. We are not afraid to admit a mistake. We are not fearful of
giving people rights. We will stand up and tell the truth, even when we
make the biggest mistakes.
Covering up the truth is not the way to gain the trust of the
American people. Since learning, in late 2005, that the President
violated the trust of our people by spying on our citizens, Congress
and the American people have struggled to find out what happened. Last
week, we celebrated the day we adopted the Declaration of Independence,
Independence Day, July 4. In that historic document is the following
phrase:
To secure these rights, governments are instituted among
men deriving their just powers from the consent of the
governed.
``The consent of the governed,'' that means the law has to be behind
you when you undertake to do something such as this administration did.
They didn't care about the consent of the governed. They didn't care
about the law that was in place. Truth is the centerpiece of justice. I
don't see how we ever get to the truth if we grant this immunity. I
don't. It is not, to me, about the punishment.
As I said, I will be happy to have substitution, to have the
Government step in. That is not the issue. We need to get to the truth,
and we all know how that happens in our country. The immunity provision
in this bill sweeps the warrantless program under the carpet. It hides
the truth. The people deserve better from us.
I will close with a quote by former Supreme Court Justice Sandra Day
O'Connor:
It is during our most challenging and uncertain moments
that our nation's commitment to due process is severely
tested. It is in those times we must preserve our commitment
at home to the principles for which we fight abroad.
I hope we will support the Dodd amendment to strike the immunity
provision.
I thank the Chair.
The ACTING PRESIDENT pro tempore. The Senator from Missouri.
Mr. BOND. Mr. President, I understand we are coming up on a hard
break, as they say in television, for the party lunches.
The ACTING PRESIDENT pro tempore. That is correct.
Mr. BOND. Mr. President, I note only before we go into that break
that the Senator from Pennsylvania has made a number of comments on
time for the supporters of the bill that actually deserve a response.
One clear point that needs to be made in response to the Senator from
Pennsylvania and the Senator from California is that Judge Walker's
actions will not be dismissed if retroactive liability protection is
accorded carriers. It is a case against the United States, not a case
against the telephone companies.
Furthermore, I would say that the dictum in Judge Walker's opinion is
contrary to higher, more authoritative courts. So Judge Walker was not
correct, and I believe should his case go up on appeal, he will be
found not to be accurate. But that does not go, as my colleague from
West Virginia has said, to the issue of whether carriers deserve
retroactive liability protection. So I will reserve my comments, and I
will ask to be recognized when--when will the Senate return to session?
The ACTING PRESIDENT pro tempore. At 2:15 p.m.
Mr. BOND. Mr. President, I ask unanimous consent that I be recognized
for what remains of time on this side.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
____________________
[Congressional Record: July 8, 2008 (Senate)]
[Page S6386-S6429]
FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008--Continued
The PRESIDING OFFICER. Under the previous order, the Senator from
Missouri is recognized for 29 minutes.
Mr. BOND. Thank you, Mr. President. I appreciate the recognition.
To begin, to clarify for the floor and our colleagues the arrangement
the chairman and I have on this bill, I ask unanimous consent that
Senator Rockefeller manage the time in opposition to the Specter
amendment and that I manage the time in opposition to the Dodd and
Bingaman amendments.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. BOND. Mr. President, as I mentioned earlier today, the Senate is
poised to wrap up consideration of the Foreign Intelligence
Surveillance Amendments Act of 2008 in the form of H.R. 6304. Now, most
of my colleagues know this legislation has had a way of hanging around
for quite awhile, being caught up in the congressional process. Many,
including myself, believe we should have passed it well before now, but
it appears that we are on about the
[[Page S6387]]
5 yard line and ready to move it across into the end zone. As one who
believes this badly needed update to FISA will enhance our Nation's
security and advance and protect America's civil liberties and privacy
rights, I certainly hope a strong majority of the Senate will pass this
legislation unamended tomorrow.
Some of my colleagues have been intent on using Senate procedures to
slow this legislation to a snail's pace. They have succeeded in doing
so, first by choosing to ignore the Director of National Intelligence--
and I will call him the DNI from now on--the DNI's pleas for
modernization of the Foreign Intelligence Surveillance Act, or FISA, as
we will call it, in April 2007, for over 3 months, until August of
2007, and back in December of 2007 when a Democratic Member
filibustered us past the end of the year and into the recess, into
2008. It came to the floor in February when it took us several weeks to
work out a way to move forward; then, once again, over the past few
weeks, with another Democratic Member filibuster of sorts that pushed
us past last week's recess. Up until now, we have been delayed, but one
thing is sure in the Senate. Just as they say in military and basic
training: No matter what you do, you can't stop the clock. Now that
some of my colleagues are out of time in delaying any further, the
Senate will move ahead this week, despite all of these delays.
I am very proud of the comprehensive compromise legislation before us
today which passed out of the House with a strong bipartisan vote of
293 to 129. That was almost 3 weeks ago. As with the Senate's original
FISA bill that passed several months ago, the compromise that is before
us required a little give from all sides but, in essence, what we have
before us today is basically the Senate bill all over again. Everyone
who studied the language recognizes that. I have here a detailed
legislative history that I will ask unanimous consent to be printed in
the Record that explains the provisions of the bill. Chairman
Rockefeller submitted his own legislative history before the recess,
and while we largely agree on the description of the legislation, we do
have a few key differences. So as Vice Chairman of the Intelligence
Committee, I believe it is important to make my views and those of
several other Senators a part of the legislative history of this bill
by including it in the Record. I therefore ask unanimous consent to
have this legislative description printed in the Record as part of my
remarks.
There being no objection, the material was ordered to be printed in
the Record, as follows:
H.R. 6304, FISA AMENDMENTS ACT OF 2008
Section-by-Section Analysis and Explanation
This section-by-section analysis is based almost entirely
upon the good work of Senator John D. Rockefeller IV,
Chairman of the Select Committee on Intelligence. Time did
not permit us to reach an agreement on text that may have
been mutually agreeable to both of us, so I have modified his
section-by-section analysis to reflect my own perspective as
a co-manager on this important legislation. A careful
comparison of these two versions will reveal that there are
fewer areas in which our analyses diverge than in which they
agree.
The consideration of legislation to amend the Foreign
Intelligence Surveillance Act of 1978 (``FISA'') in the 110th
Congress began with the submission by the Director of
National Intelligence (``DNI'') on April 12, 2007 of a
proposed Foreign Intelligence Surveillance Modernization Act
of 2007, as Title IV of the Administration's proposed
Intelligence Authorization Act for Fiscal Year 2008. The
DNI's proposal was the subject of an open hearing on May 1,
2007 and subsequent closed hearings by the Senate Select
Committee on Intelligence, but was not formally introduced.
It is available on the Committee's website: http://
intelligence.senate
.gov/070501/bill.pdf.
In May 2007, a decision by the Foreign Intelligence
Surveillance Court (FISA Court) led to the creation of
significant gaps in our foreign intelligence collection. As a
result of this decision, throughout the summer of 2007, the
DNI asked Congress to consider his FISA modernization
legislation. In response to the DNI's concerns, Congress
passed the Protect America Act of 2007, Pub. L. 110-55
(August 5, 2007) (``Protect America Act''). As a result of
the Protect America Act, the Intelligence Community was able
to close immediately the intelligence gaps that had been
created by the court's decision. While the Protect America
Act provided important authorities for the collection of
foreign intelligence, it did not contain any retroactive
civil liability protections for those electronic
communication service providers who had assisted with the
President's Terrorist Surveillance Program following the
September 11th terrorist attacks on our nation.
The Protect America Act included a sunset of February 1,
2008. After the passage of the Protect America Act, the
Chairman and Vice Chairman began to draft permanent FISA
legislation. S. 2248 was reported by the Select Committee on
Intelligence on October 26, 2007 (S. Rep. No. 110-209
(2007)), and then sequentially reported by the Committee on
the Judiciary on November 16, 2007 (S. Rep. No. 110-258
(2008)). In the House, the original legislative vehicle was
H.R. 3773. It was reported by the Committee on the Judiciary
and the Permanent Select Committee on Intelligence on October
12, 2007 (H. Rep. No. 110-373 (Parts 1 and 2) (2007)). H.R.
3773 passed the House on November 15, 2007. S. 2248 passed
the Senate on February 12, 2008, and was sent to the House as
an amendment to H.R. 3773. On March 14, 2008, the House
returned H.R. 3773 to the Senate with an amendment.
No formal conference was convened to resolve the
differences between the two Houses on H.R. 3773. Instead,
following an agreement reached without a formal conference,
the House passed a new bill, H.R. 6304, which contains a
complete compromise of the differences on H.R. 3773.
H.R. 6304 is a direct descendant of the Protect America Act
and S. 2248, which became the basis for the Senate amendment
to H.R. 3373 (February 12, 2008) and influenced the House
amendment to H.R. 3373 (March 18, 2008). The Protect America
Act, H.R. 3773, as well as the original Senate bill, S. 2248,
and the legislative history of those measures constitutes the
legislative history of H.R. 6304.
The section-by-section analysis and explanation set forth
below is based on the analysis and explanation in the report
of the Select Committee on Intelligence on S. 2248, at S.
Rep. No. 110-209, pp. 12-25, as expanded and edited to
reflect the floor amendments to S. 2248 and the negotiations
that produced H.R. 6304.
Overall Organization of Act
The FISA Amendments Act of 2008 (``FISA Amendments Act'')
contains four titles.
Title I includes, in Section 101, a new Title VII of FISA
entitled ``Additional Procedures Regarding Certain Persons
Outside the United States.'' This new title of FISA (which
will sunset in four and a half years) is a successor to the
Protect America Act, with amendments. Sections 102 through
110 of the Act contain a number of amendments to FISA apart
from the collection issues addressed in the new Title VII of
FISA. These include a provision that FISA is the exclusive
statutory means for electronic surveillance, important
streamlining provisions, and a change in the definitions
section of FISA (in Section 110 of the bill) to facilitate
foreign intelligence collection against proliferators of
weapons of mass destruction.
Title II establishes a new Title VIII of FISA, entitled
``Protection of Persons Assisting the Government.'' This new
title establishes a long-term procedure, in new FISA Section
802, for the Government to implement statutory defenses and
obtain the dismissal of civil cases against persons,
principally electronic communication service providers, who
assist elements of the intelligence community in accordance
with defined legal documents, namely, orders of the FISA
Court or certifications or directives provided for and
defined by statute. Section 802 also incorporates a procedure
with precise boundaries for civil liability relief for
electronic communication service providers who are or may be
defendants in civil cases involving an intelligence
activity authorized by the President between September 11,
2001, and January 17, 2007. In addition, Title II provides
for the protection, by way of preemption, of the federal
government's ability to conduct intelligence activities
without interference by state investigations.
Title III directs the Inspectors General of the Department
of Justice, the Department of Defense, the Office of National
Intelligence, the National Security Agency, and any other
element of the intelligence community that participated in
the President's Surveillance Program authorized by the
President between September 11, 2001, and January 17, 2007,
to conduct a comprehensive review of the program. The
Inspectors General are required to submit a report to the
appropriate committees of Congress, within one year, that
addresses, among other things, all of the facts necessary to
describe the establishment, implementation, product, and use
of the product of the President's Surveillance Program,
including the participation of individuals and entities in
the private sector related to the program.
Title IV contains important procedures for the transition
from the Protect America Act to the new Title VII of FISA.
Section 404(a)(7) directs the Attorney General and the DNI,
if they seek to replace an authorization under the Protect
America Act, to submit the certification and procedures
required in accordance with the new Section 702 to the FISA
Court at least 30 days before the expiration of such
authorizations, to the extent practicable. Title IV
explicitly provides for the continued effect of orders,
authorizations, and directives issued under the Protect
America Act, and of the provisions pertaining to protection
from liability, FISA Court jurisdiction, the use of
information acquired, and Executive branch reporting
requirements, past the statutory sunset of that act. Title IV
also contains provisions on the
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continuation of authorizations, directives, and orders under
Title VII that are in effect at the time of the December 31,
2012, sunset, until their expiration within the year
following the sunset.
TITLE I. FOREIGN INTELLIGENCE SURVEILLANCE
Section 101. Targeting the Communications of Persons Outside
the United States
Section 101(a) of the FISA Amendments Act establishes a new
Title VII of FISA. Entitled ``Additional Procedures Regarding
Certain Persons Outside the United States,'' the new title
includes, with important modifications, an authority similar
to that granted by the Protect America Act as temporary
sections 105A, 105B, and 105C of FISA. Those Protect America
Act provisions had been placed within FISA's Title I on
electronic surveillance. Moving the amended authority to a
title of its own is appropriate because the authority
involves not only the acquisition of communications as they
are being carried but also while they are stored by
electronic communication service providers.
Section 701. Definitions
Section 701 incorporates into Title VII the definition of
nine terms that are defined in Title I of FISA and used in
Title VII: ``agent of a foreign power,'' ``Attorney
General,'' ``contents,'' ``electronic surveillance,''
``foreign intelligence information,'' ``foreign power,''
``person,'' ``United States,'' and ``United States person.''
It defines the congressional intelligence committees for the
purposes of Title VII. Section 701 defines the two courts
established in Title I that are assigned responsibilities
under Title VII: the FISA Court and the Foreign Intelligence
Surveillance Court of Review. Section 701 also defines
``intelligence community'' as found in the National Security
Act of 1947. Finally, Section 701 defines a term, not
previously defined in FISA, which has an important role in
setting the parameters of Title VII: ``electronic
communication service provider.'' This definition is
connected to the objective that the acquisition of foreign
intelligence pursuant to this title is meant to encompass the
acquisition of stored electronic communications and related
data.
Section 702. Procedures for Targeting Certain Persons Outside
the United States Other than United States Persons
Section 702(a) sets forth the basic authorization in Title
VII, replacing Section 105B of FISA, as added by the Protect
America Act. Unlike the Protect America Act, the collection
authority in Section 702(a) cannot be exercised until the
FISA Court has conducted its review in accordance with
subsection (i)(3), or the Attorney General and the DNI,
acting jointly, have made a determination that exigent
circumstances exist, as defined in Section 702(c)(2).
Following such determination and subsequent submission of a
certification and related procedures, the Court is required
to conduct its review expeditiously. Authorizations must
contain an effective date and may be valid for a period of up
to one year from that date.
Subsequent provisions of the Act implement the prior order
and effective date provisions of Section 702(a): in addition
to Section 702(c)(2) which defines exigent circumstances,
Section 702(i)(1)(B) provides that the court shall complete
its review of certifications and procedures within 30 days
(unless extended under Section 702(j)(2)); Section
702(i)(5)(A) provides for the submission of certifications
and procedures to the FISA Court at least 30 days before the
expiration of authorizations that are being replaced, to the
extent practicable; and Section 702(i)(5)(B) provides for the
continued effectiveness of expiring certifications and
procedures until the court issues an order concerning their
replacements.
Section 105B and Section 702(a) differ in other important
respects. Section 105B authorized the acquisition of foreign
intelligence information ``concerning'' persons reasonably
believed to be outside the United States. To make clear that
all collection under Title VII must be targeted at persons
who are reasonably believed to be outside the United States,
Section 702(a) eliminates the word ``concerning'' and instead
authorizes ``the targeting of persons reasonably believed to
be located outside the United States to collect foreign
intelligence information.''
Section 702(b) establishes five related limitations on the
authorization in Section 702(a). Overall, the limitations
ensure that the new authority is not used for surveillance
directed at persons within the United States or at United
States persons. The first is a specific prohibition on using
the new authority to target intentionally any person within
the United States. The second provides that the authority may
not be used to conduct ``reverse targeting,'' the intentional
targeting of a person reasonably believed to be outside the
United States if the purpose of the acquisition is to target
a person reasonably believed to be in the United States. If
the purpose is to target a person reasonably believed to be
in the United States, then the electronic surveillance should
be conducted in accordance with FISA or the criminal wiretap
statutes. The third bars the intentional targeting of a
United States person reasonably believed to be outside the
United States. In order to target such United States person,
acquisition must be conducted under three subsequent sections
of Title VII, which require individual FISA court orders for
United States persons: Sections 703, 704, and 705. The fourth
limitation goes beyond targeting (the object of the first
three limitations) and prohibits 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. The fifth is an overarching
mandate that an acquisition authorized in Section 702(a)
shall be conducted in a manner consistent with the Fourth
Amendment to the U.S. Constitution, which provides for ``the
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.''
Section 702(c) governs the conduct of acquisitions.
Pursuant to Section 702(c)(1), acquisitions authorized under
Section 702(a) may be conducted only in accordance with
targeting and minimization procedures approved at least
annually by the FISA Court and a certification of the
Attorney General and the DNI, upon its submission in
accordance with Section 702(g). Section 702(c)(2) describes
the ``exigent circumstances'' in which the Attorney General
and Director of National Intelligence may authorize targeting
for a limited time without a prior court order for purposes
of subsection (a). Section 702(c)(2) provides that the
Attorney General and the DNI may make a determination that
exigent circumstances exist because, without immediate
implementation of an authorization under Section 702(a),
intelligence important to the national security of the United
States may be lost or not timely acquired and time does not
permit the issuance of an order pursuant to Section 702(i)(3)
prior to the implementation of such authorization. Section
702(c)(3) provides that the Attorney General and the DNI may
make such a determination before the submission of a
certification or by amending a certification at any time
during which judicial review of such certification is pending
before the FISA Court.
Section 702(c)(4) addresses the concern, reflected in
Section 105A of FISA as added by the Protect America Act,
that the definition of electronic surveillance in Title I
might prevent use of the new procedures. To address this
concern, Section 105A redefined the term ``electronic
surveillance'' to exclude ``surveillance directed at a person
reasonably believed to be located outside of the United
States.'' In contrast, Section 702(c)(4) does not change the
definition of electronic surveillance, but clarifies the
intent of Congress to allow the targeting of foreign targets
outside the United States in accordance with Section 702
without an application for a court order under Title I of
FISA. The addition of this construction paragraph, as well as
the language in Section 702(a) that an authorization may
occur ``notwithstanding any other law,'' makes clear that
nothing in Title I of FISA shall be construed to require a
court order under that title for an acquisition that is
targeted in accordance with Section 702 at a foreign person
outside the United States.
Section 702(d) provides, in a manner essentially identical
to the Protect America Act, for the adoption by the Attorney
General, in consultation with the DNI, of targeting
procedures that are reasonably designed to ensure that
collection is limited to targeting persons reasonably
believed to be outside the United States. As provided in the
Protect America Act, the targeting procedures are subject to
judicial review and approval. In addition to the requirements
of the Protect America Act, however, Section 702(d) provides
that the targeting procedures also must be reasonably
designed to prevent 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. Section 702(d)(2) subjects
these targeting procedures to judicial review and approval.
Section 702(e) provides that the Attorney General, in
consultation with the DNI, shall adopt, for acquisitions
authorized by Section 702(a), minimization procedures that
are consistent with Section 101(h) or 301(4) of FISA, which
establish FISA's minimization requirements for electronic
surveillance and physical searches. Unlike the Protect
America Act, Section 702(e)(2) provides that the minimization
procedures, which are essential to the protection of United
States persons, shall be subject to judicial review and
approval.
Section 702(f) provides that the Attorney General, in
consultation with the DNI, shall adopt guidelines to ensure
compliance with the limitations in Section 702(b), including
prohibitions on the acquisition of purely domestic
communications, targeting persons within the United States,
targeting United States persons located outside the United
States, and reverse targeting. Such guidelines shall also
ensure that an application for a court order is filed as
required by FISA. It is intended that these guidelines will
provide clear requirements and procedures governing the
appropriate implementation of the authority under this title
of FISA. The Attorney General is to provide these guidelines
to the congressional intelligence committees, the judiciary
committees of the House of Representatives and the Senate,
and the FISA Court. Subsequent provisions implement the
guidelines requirement. See Section 702(g)(2)(A)(iii)
(certification requirements); Section 702(l)(1) and 702(l)(2)
(Attorney General and DNI assessment of compliance with
guidelines); and Section 707(b)(1)(G)(ii) (reporting on
noncompliance with guidelines).
Section 702(g) requires that the Attorney General and the
DNI provide to the FISA Court, prior to implementation of an
authorization under subsection (a), a written certification,
with any supporting affidavits. In
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exigent circumstances, the Attorney General and DNI may make
a determination that, without immediate implementation,
intelligence important to the national security may be lost
or not timely acquired prior to the implementation of an
authorization. It is expected that the Attorney General and
the DNI will utilize this ``exigent circumstances'' exception
as often as necessary to ensure the protection of our
national security. For this reason, the standard to use this
authority is much lower than in traditional emergency
situations under FISA. In exigent circumstances, if time does
not permit the submission of a certification prior to the
implementation of an authorization, the certification must be
submitted to the FISA Court no later than seven days after
the determination is made. The seven-day time period for
submission of a certification in the case of exigent
circumstances is identical to the time period by which the
Attorney General must apply for a court order after
authorizing an emergency surveillance under other provisions
of FISA, as amended by this Act.
Section 702(g)(2) sets forth the requirements that must be
contained in the written certification. The required elements
are: (1) the targeting and minimization procedures have been
approved by the FISA Court or will be submitted to the court
with the certification; (2) guidelines have been adopted to
ensure compliance with the limitations of subsection (b); (3)
those procedures and guidelines are consistent with the
Fourth Amendment; (4) the acquisition is targeted at persons
reasonably believed to be outside the United States; (5) a
significant purpose of the acquisition is to obtain foreign
intelligence information; and (6) an effective date for the
authorization that in most cases is at least 30 days after
the submission of the written certification. Additionally, as
an overall limitation on the method of acquisition permitted
under Section 702, the certification must attest that the
acquisition involves obtaining foreign intelligence
information from or with the assistance of an electronic
communication service provider.
Requiring an effective date in the certification serves to
identify the beginning of the period of authorization (which
is likely to be a year) for collection and to alert the FISA
Court of when the Attorney General and DNI are seeking to
begin collection. Section 702(g)(3) permits the Attorney
General and DNI to change the effective date in the
certification by amending the certification.
As with the Protect America Act, the certification under
Section 702(g)(4) is not required to identify the specific
facilities, places, premises, or property at which the
acquisition under Section 702(a) will be directed or
conducted. The certification shall be subject to review by
the FISA Court.
Section 702(h) authorizes the Attorney General and the DNI
to direct, in writing, an electronic communication service
provider to furnish the Government with all information,
facilities, or assistance necessary to accomplish the
acquisition authorized under Section 702(a). It is important
to note that such directives may be issued only in exigent
circumstances pursuant to Section 702(c)(2) or after the FISA
Court has conducted its review of the certification and the
targeting and minimization procedures and issued an order
pursuant to Section 702(i)(3). Section 702(h) requires
compensation for this assistance and provides that no cause
of action shall lie in any court against an electronic
communication service provider for its assistance in
accordance with a directive. It also establishes expedited
procedures in the FISA Court for a provider to challenge the
legality of a directive or the Government to enforce it. In
either case, the question for the court is whether the
directive meets the requirements of Section 702 and is
otherwise lawful. Whether the proceeding begins as a provider
challenge or a Government enforcement petition, if the court
upholds the directive as issued or modified, the court shall
order the provider to comply. Failure to comply may be
punished as a contempt of court. The proceedings shall be
expedited and decided within 30 days, unless that time is
extended under Section 702(j)(2).
Section 702(i) provides for judicial review of any
certification required by Section 702(g) and the targeting
and minimization procedures adopted pursuant to Sections
702(d) and 702(e). In accordance with Section 702(i)(5), if
the Attorney General and the DNI seek to reauthorize or
replace an authorization in effect under the Act, they shall
submit, to the extent practicable, the certification and
procedures at least 30 days prior to the expiration of such
authorization.
The court shall review certifications to determine whether
they contain all the required elements. It shall review
targeting procedures to assess whether they are reasonably
designed to ensure that the acquisition activity is limited
to the targeting of persons reasonably believed to be located
outside the United States and prevent the intentional
acquisition of any communication whose sender and intended
recipients are known at the time of acquisition to be located
in the United States. The Protect America Act had limited the
review of targeting procedures to a ``clearly erroneous''
standard; Section 702(i) omits that limitation. For
minimization procedures, Section 702(i) provides that the
court shall review them to assess whether they meet the
statutory requirements. The court is to review the
certifications and procedures and issue its order within 30
days after they were submitted unless that time is extended
under Section 702(j)(2). The Attorney General and the DNI may
also amend the certification or procedures at any time under
Section 702(i)(1)(C), but those amended certifications or
procedures must be submitted to the court in no more than 7
days after amendment. The amended procedures may be used
pending the court's review.
If the FISA Court finds that the certification contains all
the required elements and that the targeting and minimization
procedures are consistent with the requirements of
subsections (d) and (e) and with the Fourth Amendment, the
court shall enter an order approving their use or continued
use for the acquisition authorized by Section 702(a). If
it does not so find, the court shall order the Government,
at its election, to correct any deficiencies or cease, or
not begin, the acquisition. If acquisitions have begun,
they may continue during any rehearing en banc of an order
requiring the correction of deficiencies. If the
Government appeals to the Foreign Intelligence
Surveillance Court of Review, any collection that has
begun may continue at least until that court enters an
order, not later than 60 days after filing of the petition
for review, which determines whether all or any part of
the correction order shall be implemented during the
appeal.
Section 702(j)(1) provides that judicial proceedings are to
be conducted as expeditiously as possible. Section 702(j)(2)
provides that the time limits for judicial review in Section
702 (for judicial review of certifications and procedures or
in challenges or enforcement proceedings concerning
directives) shall apply unless extended, by written order, as
necessary for good cause in a manner consistent with national
security.
Section 702(k) requires that records of proceedings under
Section 702 shall be maintained by the FISA Court under
security measures adopted by the Chief Justice in
consultation with the Attorney General and the DNI. In
addition, all petitions are to be filed under seal and the
FISA Court, upon the request of the Government, shall
consider ex parte and in camera any Government submission or
portions of a submission that may include classified
information. The Attorney General and the DNI are to retain
directives made or orders granted for not less than 10 years.
Section 702(l) provides for oversight of the implementation
of Title VII. It has three parts. First, the Attorney General
and the DNI shall assess semiannually under subsection (l)(1)
compliance with the targeting and minimization procedures,
and the Attorney General guidelines for compliance with
limitations under Section 702(b), and submit the assessment
to the FISA Court and to the congressional intelligence and
judiciary committees, consistent with congressional rules.
Second, under subsection (l)(2)(A), the Inspector General
of the Department of Justice and the Inspector General
(``IG'') of any intelligence community element authorized to
acquire foreign intelligence under Section 702(a) are
authorized to review compliance of their agency or element
with the targeting and minimization procedures adopted in
accordance with subsections (d) and (e) and the guidelines
adopted in accordance with subsection (f). Subsections
(l)(2)(B) and (l)(2)(C) mandate several statistics that the
IGs shall review with respect to United States persons,
including the number of disseminated intelligence reports
that contain references to particular known U.S. persons, the
number of U.S. persons whose identities were disseminated in
response to particular requests, and the number of targets
later determined to be located in the United States. Their
reports shall be submitted to the Attorney General, the DNI,
and the appropriate congressional committees. Section
702(l)(2) provides no statutory schedule for the completion
of these IG reviews; the IGs should coordinate with the heads
of their agencies about the timing for completion of the IG
reviews so that they are done at a time that would be useful
for the agency heads to complete their semiannual reviews.
Third, under subsection (l)(3), the head of an intelligence
community element that conducts an acquisition under Section
702 shall review annually whether there is reason to believe
that foreign intelligence information has been or will be
obtained from the acquisition and provide an accounting of
information pertaining to United States persons similar to
that included in the IG report. Subsection (l)(3) also
encourages the head of the element to develop procedures to
assess the extent to which the new authority acquires the
communications of U.S. persons, and to report the results of
such assessment. The review is to be used by the head of the
element to evaluate the adequacy of minimization procedures.
The annual review is to be submitted to the FISA Court, the
Attorney General and the DNI, and to the appropriate
congressional committees.
Section 703. Certain Acquisition Inside the United States
Targeting United States Persons Outside the United States
Section 703 governs the targeting of United States persons
who are reasonably believed to be outside the United States
when the acquisition of foreign intelligence is conducted
inside the United States. The authority and procedures of
Section 703 apply when the acquisition either constitutes
electronic surveillance, as defined in Title I of FISA, or is
of stored electronic communications or stored electronic
data. If the United States person returns to the United
States, acquisition under Section 703 must cease. The
Government may always, however, obtain an
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order or authorization under another title of FISA.
The application procedures and provisions for a FISA Court
order in Sections 703(b) and 703(c) are drawn from Titles I
and III of FISA. Key among them is the requirement that the
FISA Court determine that there is probable cause to believe
that, for the United States person who is the target of the
surveillance, the person is reasonably believed to be located
outside the United States and is a foreign power or an agent,
officer, or employee of a foreign power. The inclusion of
United States persons who are officers or employees of a
foreign power, as well as those who are agents of a foreign
power as that term is used in FISA, is intended to permit the
type of collection against United States persons outside the
United States that has been allowed under Executive Order
12333 and existing Executive branch guidelines. The FISA
Court shall also review and approve minimization procedures
that will be applicable to the acquisition, and shall order
compliance with such procedures.
As with FISA orders against persons in the United States,
FISA orders against United States persons outside of the
United States under Section 703 may not exceed 90 days and
may be renewed for additional 90-day periods upon the
submission of renewal applications. Emergency authorizations
under Section 703 are consistent with the requirements for
emergency authorizations in FISA against persons in the
United States, as amended by this Act; the Attorney
General may authorize an emergency acquisition if an
application is submitted to the FISA Court in not more
than seven days.
Section 703(g) is a construction provision that clarifies
that, if the Government obtains an order and targets a
particular United States person in accordance with Section
703, FISA does not require the Government to seek a court
order under any other provision of FISA to target that United
States person while that person is reasonably believed to be
located outside the United States.
Section 704. Other Acquisitions Targeting United States
Persons Outside the United States
Section 704 governs other acquisitions that target United
States persons who are outside the United States. Sections
702 and 703 address acquisitions that constitute electronic
surveillance or the acquisition of stored electronic
communications. In contrast, Section 704 addresses any
targeting of a United States person outside of the United
States under circumstances in which that person has a
reasonable expectation of privacy and a warrant would be
required if the acquisition occurred within the United
States. It thus covers not only communications intelligence,
but, if it were to occur, the physical search for foreign
intelligence purposes of a home, office, or business of a
United States person by an element of the United States
intelligence community, outside of the United States.
Pursuant to Section 704(a)(3), if the targeted United
States person is reasonably believed to be in the United
States while an order under Section 704 is in effect, the
acquisition against that person shall cease unless authority
is obtained under another applicable provision of FISA. The
Government may not use Section 704 to authorize an
acquisition of foreign intelligence inside the United States.
Section 704(b) describes the application to the FISA Court
that is required. For an order under Section 704(c), the FISA
Court must determine that there is probable cause to believe
that the United States person who is the target of the
acquisition is reasonably believed to be located outside the
United States and is a foreign power, or an agent, officer,
or employee of a foreign power. An order is valid for a
period not to exceed 90 days, and may be renewed for
additional 90-day periods upon submission of renewal
applications meeting application requirements.
Because an acquisition under Section 704 is conducted
outside the United States, or is otherwise not covered by
FISA, the FISA Court is expressly not given jurisdiction to
review the means by which an acquisition under this section
may be conducted. Although the FISA Court's review is limited
to determinations of probable cause, Section 704 anticipates
that any acquisition conducted pursuant to a Section 704
order will in all other respects be conducted in compliance
with relevant regulations and Executive Orders governing the
acquisition of foreign intelligence outside the United
States, including Executive Order 12333 or any successor
order.
Section 705. Joint Applications and Concurrent Authorizations
Section 705 provides that if an acquisition targeting a
United States person under Section 703 or 704 is proposed to
be conducted both inside and outside the United States, a
judge of the FISA Court may issue simultaneously, upon the
request of the Government in a joint application meeting the
requirements of Sections 703 and 704, orders under both
sections as appropriate. If an order authorizing electronic
surveillance or physical search has been obtained under
Section 105 or 304, and that order is still in effect, the
Attorney General may authorize, without an order under
Section 703 or 704, the targeting of that United States
person for the purpose of acquiring foreign intelligence
information while such person is reasonably believed to be
located outside the United States.
Section 706. Use of Information Acquired Under Title VII
Section 706 fills a void that has existed under the Protect
America Act which had contained no provision governing the
use of acquired intelligence. Section 706(a) provides that
information acquired from an acquisition conducted under
Section 702 shall be deemed to be information acquired from
an electronic surveillance pursuant to Title I of FISA for
the purposes of Section 106 of FISA, which is the provision
of Title I of FISA that governs public disclosure or use in
criminal proceedings. The one exception is for subsection (j)
of Section 106, as the notice provision in that subsection,
while manageable in individual Title I proceedings, would
present a difficult national security question when applied
to a Title VII acquisition. Section 706(b) also provides that
information acquired from an acquisition conducted under
Section 703 shall be deemed to be information acquired from
an electronic surveillance pursuant to Title I of FISA for
the purposes of Section 106 of FISA; however, the notice
provision of subsection (j) applies. Section 706 ensures a
uniform standard for the types of information acquired under
the new title.
Section 707. Congressional Oversight
Section 707 provides for additional congressional oversight
of the implementation of Title VII. The Attorney General is
to fully inform ``in a manner consistent with national
security'' the congressional intelligence and judiciary
committees about implementation of the Act at least
semiannually. Each report is to include any certifications
made under Section 702, the reasons for any determinations
made under Section 702(c)(2), any directives issued during
the reporting period, a description of the judicial review
during the reporting period to include a copy of any order or
pleading that contains a significant legal interpretation of
Section 702, incidents of noncompliance and procedures to
implement the section. With respect to Sections 703 and 704,
the report must contain the number of applications made for
orders under each section and the number of such orders
granted, modified and denied, as well as the number of
emergency authorizations made pursuant to each section and
the subsequent orders approving or denying the relevant
application.
Section 708. Savings Provision
Section 708 provides that nothing in Title VII shall be
construed to limit the authority of the Government to seek an
order or authorization under, or otherwise engage in any
activity that is authorized under, any other title of FISA.
This language is designed to ensure that Title VII cannot be
interpreted to prevent the Government from submitting
applications and seeking orders under other titles of FISA.
Section 101(b). Table of Contents
Section 101(b) of the bill amends the table of contents in
the first section of FISA.
Subsection 101(c). Technical and Conforming Amendments
Section 101(c) of the bill provides for technical and
conforming amendments in Title 18 of the United States Code
and in FISA.
Section 102. Statement of Exclusive Means by which Electronic
Surveillance and Interception of Certain Communications
May Be Conducted
Section 102(a) amends Title I of FISA by adding a new
Section 112 of FISA. Under the heading of ``Statement of
Exclusive Means by which Electronic Surveillance and
Interception of Certain Communications May Be Conducted,''
the new Section 112(a) states: ``Except as provided in
subsection (b), the procedures of chapters 119, 121 and 126
of Title 18, United States Code, and this Act shall be the
exclusive means by which electronic surveillance and the
interception of domestic wire, oral, or electronic
communication may be conducted.'' New Section 112(b) of FISA
provides that only an express statutory authorization for
electronic surveillance or the interception of domestic wire,
oral, or electronic communications, other than as an
amendment to FISA or chapters 119, 121, or 206 of Title 18
shall constitute an additional exclusive means for the
purpose of subsection (a). The new Section 112 is based on a
provision which Congress enacted in 1978 as part of the
original FISA that is codified in Section 2511(2)(f) of Title
18, United States Code, and which will remain in the U.S.
Code.
Section 102(a) strengthens the statutory provisions
pertaining to electronic surveillance and interception of
certain communications to clarify the express intent of
Congress that these statutory provisions are the exclusive
means for conducting electronic surveillance and interception
of certain communications. This section makes it clear that
any existing statute cannot be used in the future as the
statutory basis for circumventing FISA. Section 102(a) is
intended to ensure that additional exclusive means for
surveillance or interceptions shall be express statutory
authorizations.
In accord with Section 102(b) of the bill, Section 109 of
FISA that provides for criminal penalties for violations of
FISA, is amended to implement the exclusivity requirement
added in Section 112 by making clear that the safe harbor to
FISA's criminal offense provision is limited to statutory
authorizations for electronic surveillance or the
interception of domestic wire, oral, or electronic
communications which are pursuant to a provision of FISA, one
of the enumerated chapters of the criminal code, or a
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statutory authorization that expressly provides an additional
exclusive means for conducting the electronic surveillance.
By virtue of the cross-reference in Section 110 of FISA to
Section 109, that limitation on the safe harbor in Section
109 applies equally to Section 110 on civil liability for
conducting unlawful electronic surveillance.
Section 102(c) requires that, if a certification for
assistance to obtain foreign intelligence is based on
statutory authority, the certification provided to an
electronic communication service provider is to include the
specific statutory authorization for the request for
assistance and certify that the statutory requirements have
been met. This provision is designed to assist electronic
communication service providers in understanding the legal
basis for any government request for assistance.
In the section-by-section analysis of S. 2248, the report
of the Select Committee on Intelligence (S. Rep. No. 110-209,
at 18) described and incorporated the discussion of
exclusivity in the 1978 conference report on the original
Foreign Intelligence Surveillance Act, in particular the
conferees' description of the analysis in Youngstown Sheet
and Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) and the
application of the principles described there to the current
legislation. That full discussion should be deemed
incorporated in this section-by-section analysis.
Section 102 of the bill will not--and cannot--preclude the
President from exercising his Article II constitutional
authority to conduct warrantless foreign intelligence
surveillance. At most, this exclusive means provision only
places the President at his ``lowest ebb'' under the third
prong of the Youngstown case analysis. That is exactly where
the President was when FISA was passed back in 1978 and the
``revised'' exclusive means provision in this bill does not
change this fact. Even at his lowest ebb, the President's
authority with respect to intercepting enemy communications
is still quite strong, especially when compared to the non-
existent capability of Congress to engage in similar
interception activities.
Further, Section 102(c) actually reinforces the President's
Article II authority, stating that ``if a certification . . .
for assistance to obtain foreign intelligence information is
based on statutory authority, the certification shall
identify the specific statutory provision and shall certify
that the statutory requirements have been met.'' The
implication from such language is that if a certification is
not based on statutory authority, then citing statutory
authority would be unnecessary. This language thus
acknowledges that certifications may be based on something
other than statutory authority, namely the President's
inherent constitutional authority.
Section 103. Submittal to Congress of Certain Court Orders
under the Foreign Intelligence Surveillance Act of 1978
Section 6002 of the Intelligence Reform Act and Terrorism
Prevention Act of 2004 (Pub. L. 108-458), added a Title VI to
FISA that augments the semiannual reporting obligations of
the Attorney General to the intelligence and judiciary
committees of the Senate and House of Representatives. Under
Section 6002, the Attorney General shall report a summary of
significant legal interpretations of FISA in matters before
the FISA Court or Foreign Intelligence Surveillance Court of
Review. The requirement extends to interpretations presented
in applications or pleadings filed with either court by the
Department of Justice. In addition to the semiannual summary,
the Department of Justice is required to provide copies of
court decisions, but not orders, which include significant
interpretations of FISA. The importance of the reporting
requirement is that, because the two courts conduct their
business in secret, Congress needs the reports to know how
the law it has enacted is being interpreted.
Section 103 adds to the Title VI reporting requirements in
three ways. First, as significant legal interpretations may
be included in orders as well as opinions, Section 103
requires that orders also be provided to the committees.
Second, as the semiannual report often takes many months
after the end of the semiannual period to prepare, Section
103 accelerates provision of information about significant
legal interpretations by requiring the submission of such
decisions, orders, or opinions within 45 days. Finally,
Section 103 requires that the Attorney General shall submit a
copy of any such decision, order, or opinion, and any
pleadings, applications, or memoranda of law associated with
such decision, order, or opinion, from the period five years
preceding enactment of the bill that has not previously been
submitted to the congressional intelligence and judiciary
committees. The Attorney General, in consultation with the
Director of National Intelligence, may authorize redactions
of documents submitted in accordance with subsection 103(c)
as necessary to protect national security.
Overview of Sections 104 through Section 109; FISA Streamlining
Sections 104 through 109 amend various sections of FISA for
such purposes as reducing a paperwork requirement, modifying
time requirements, or providing additional flexibility in
terms of the range of Government officials who may authorize
FISA actions. Collectively, these amendments are described as
streamlining amendments. In general, they are intended to
increase the efficiency of the FISA process without depriving
the FISA Court of the information it needs to make findings
required under FISA.
Section 104. Applications for Court Orders
Section 104 of the bill strikes two of the eleven
paragraphs on standard information in an application for a
surveillance order under Section 104 of FISA, either because
the information is provided elsewhere in the application
process or is not needed.
In various places, FISA has required the submission of
``detailed'' information, as in Section 104 of FISA, ``a
detailed description of the nature of the information sought
and the type of communications or activities to be subjected
to the surveillance.'' The DNI requested legislation that
asked that ``summary'' be substituted for ``detailed'' for
this and other application requirements, in order to reduce
the length of FISA applications. In general, the bill
approaches this by eliminating the mandate for ``detailed''
descriptions, leaving it to the FISA Court and the Government
to work out the level of specificity needed by the FISA Court
to perform its statutory responsibilities. With respect to
one item of information, ``a statement of the means by which
the surveillance will be effected,'' the bill modifies the
requirement by allowing for ``a summary statement.''
In aid of flexibility, Section 104 increases the number of
individuals who may make FISA applications by allowing the
President to designate the Deputy Director of the Federal
Bureau of Investigation (``FBI'') as one of those
individuals. This should enable the Government to move more
expeditiously to obtain certifications when the Director of
the FBI is away from Washington or otherwise unavailable.
Subsection (b) of Section 104 of FISA is eliminated as
obsolete in light of current applications. The Director of
the Central Intelligence Agency is added to the list of
officials who may make a written request to the Attorney
General to personally review a FISA application as the head
of the CIA had this authority prior to the establishment of
the Office of the Director of National Intelligence.
Section 105. Issuance of an Order
Section 105 strikes from Section 105 of FISA several
unnecessary or obsolete provisions. Section 105 strikes
subsection (c)(1)(F) of Section 105 of FISA which requires
minimization procedures applicable to each surveillance
device employed because Section 105(c)(2)(A) requires each
order approving electronic surveillance to direct the
minimization procedures to be followed.
Subsection (a)(6) reorganizes, in more readable form, the
emergency surveillance provision of Section 105(f), now
redesignated Section 105(e), with a substantive change of
extending from 3 to 7 days the time by which the Attorney
General must apply for and obtain a court order after
authorizing an emergency surveillance. The purpose of the
change is to ease the administrative burdens upon the
Department of Justice, the Intelligence Community, and the
FISA Court currently imposed by the three-day requirement.
Subsection (a)(7) adds a new paragraph to Section 105 of
FISA to require the FISA Court, on the Government's request,
when granting an application for electronic surveillance, to
authorize at the same time the installation and use of pen
registers and trap and trace devices. This change recognizes
that when the Intelligence Community seeks to use electronic
surveillance, pen register and trap and trace information is
often essential to conducting complete surveillance, and the
Government should not need to file two separate applications.
Section 106. Use of Information
Section 106 amends Section 106(i) of FISA with regard to
the limitations on the use of unintentionally acquired
information. Currently, Section 106(i) of FISA provides that
unintentionally acquired radio communication between persons
located in the United States must be destroyed unless the
Attorney General determines that the contents of the
communications indicates a threat of death or serious bodily
harm to any person. Section 106 of the bill amends subsection
106(i) of FISA by making it technology neutral on the
principle that the same rule for the use of information
indicating threats of death or serious harm should apply no
matter how the communication is transmitted.
Section 107. Amendments for Physical Searches
Section 107 makes changes to Title III of FISA: changing
applications and orders for physical searches to correspond
to changes in Sections 104 and 105 on reduction of some
application paperwork; providing the FBI with administrative
flexibility in enabling its Deputy Director to be a
certifying officer; and extending the time, from 3 days to 7
days, for applying for and obtaining a court order after
authorization of an emergency search.
Section 303(a)(4)(C), which will be redesignated Section
303(a)(3)(C), requires that each application for physical
search authority state the applicant's belief that the
property is ``owned, used, possessed by, or is in transmit to
or from'' a foreign power or an agent of a foreign power. In
order to provide needed flexibility and to make the provision
consistent with electronic surveillance provisions, Section
107(a)(1)(D) of the bill allows the FBI to apply for
authority to search property that also is ``about to be''
owned, used, or possessed by a foreign power or agent of a
foreign power, or in transit to or from one.
[[Page S6392]]
Section 108. Amendments for Emergency Pen Registers and Trap
and Trace Devices
Section 108 amends Section 403 of FISA to extend from 2
days to 7 days the time for applying for and obtaining a
court order after an emergency installation of a pen register
or trap and trace device. This change harmonizes among FISA's
provisions for electronic surveillance, search, and pen
register/trap and trace authority the time requirements that
follow the Attorney General's decision to take emergency
action.
Section 109. Foreign Intelligence Surveillance Court
Section 109 contains four amendments to Section 103 of
FISA, which establishes the FISA Court and the Foreign
Intelligence Surveillance Court of Review.
Section 109(a) amends Section 103 to provide that judges on
the FISA Court shall be drawn from ``at least seven'' of the
United States judicial circuits. The current requirement--
that the eleven judges be drawn from seven judicial circuits
(with the number appearing to be a ceiling rather than a
floor) has proven unnecessarily restrictive or complicated
for the designation of the judges to the FISA Court.
Section 109(b) amends Section 103 to allow the FISA Court
to hold a hearing or rehearing of a matter en banc, which is
by all the judges who constitute the FISA Court sitting
together. The Court may determine to do this on its own
initiative, at the request of the Government in any
proceeding under FISA, or at the request of a party in the
few proceedings in which a private entity or person may be a
party, i.e., challenges to document production orders under
Title V, or proceedings on the legality or enforcement of
directives to electronic communication service providers
under Title VII.
Under Section 109(b), en banc review may be ordered by a
majority of the judges who constitute the FISA Court upon a
determination that it is necessary to secure or maintain
uniformity of the court's decisions or that a particular
proceeding involves a question of exceptional importance. En
banc proceedings should be rare and in the interest of the
general objective of fostering expeditious consideration of
matters before the FISA Court.
Section 109(c) provides authority for the entry of stays,
or the entry of orders modifying orders entered by the FISA
Court or the Foreign Intelligence Surveillance Court of
Review, pending appeal or review in the Supreme Court. This
authority is supplemental to, and does not supersede, the
specific provision in Section 702(i)(4)(B) that acquisitions
under Title VII may continue during the pendency of any
rehearing en banc and appeal to the Court of Review subject
to the requirement for a determination within 60 days under
Section 702(i)(4)(C).
Section 109(d) provides that nothing in FISA shall be
construed to reduce or contravene the inherent authority of
the FISA Court to determine or enforce compliance with an
order or a rule of that court or with a procedure approved by
it. The recognition in subsection (d) of the FISA Court's
inherent authority to determine or enforce compliance with a
court order, rule, or procedure does not authorize the Court
to assess compliance with the minimization procedures used in
the foreign targeting context. This conclusion is based upon
three observations.
First, Section 702 contains no explicit statutory provision
that authorizes the FISA Court to assess compliance with the
minimization procedures in the foreign targeting context. If
it had so desired, Congress could have included a specific
statutory authorization like those included in Sections
105(d)(3), 304(d)(3), and 703(c)(7). In fact, there were
several unsuccessful efforts during the legislative process
to include a specific statutory authorization in this bill.
Second, the Court's inherent authority to review and
approve minimization procedures in the context of domestic
electronic surveillance or physical searches is different
from its inherent authority to review and approve
minimization procedures in the foreign targeting context. In
the domestic context, the Court must direct that the
minimization procedures be followed. See Sections
105(c)(2)(A), 304(c)(2)(A), and 703(c)(5)(A). There is no
such requirement in the foreign targeting context. Instead,
the Court's judicial review is limited to assessing whether
the procedures meet the definition of minimization procedures
under FISA. See Section 702(i)(2)(C). When the Court issues
an order under Section 702, it merely enters an order
approving the use of the minimization procedures for the
acquisition. See 702(i)(3)(A). This limitation on the scope
of the Court's order in the foreign targeting context should
be interpreted as not providing the Court with any inherent
authority to assess compliance with the approved minimization
procedures in the foreign targeting context.
Finally, assessing compliance with minimization procedures
in the foreign targeting context has historically been a
responsibility performed by the Executive branch. This bill
preserves that responsibility by requiring the Attorney
General and the Director of National Intelligence to assess
compliance with the minimization procedures on a semi-annual
basis. See Section 702(l)(1). Inspectors General of each
element of the Intelligence Community are authorized to
review compliance with the adopted minimization procedures.
See Section 702(l)(2). Also, the heads of each element of the
Intelligence Community are required to conduct an annual
review to evaluate the adequacy of the minimization
procedures used by their element in conducting a particular
acquisition. See Section 702(l)(3). Conversely, the FISA
Court has little, if any, historical experience with
assessing compliance with minimization in the context of
foreign targeting. There are significant differences between
the scope, purpose, and means by which the acquisition of
foreign intelligence is conducted in the domestic and foreign
targeting contexts. While the FISA Court is well-suited to
assess compliance with minimization procedures in the
domestic context, such assessment is better left to the
Executive branch in the foreign targeting context.
Section 110. Weapons of Mass Destruction
Section 110 amends the definitions in FISA of foreign power
and agent of a foreign power to include individuals who are
not United States persons and entities not substantially
composed of United States persons that are engaged in the
international proliferation of weapons of mass destruction.
Section 110 also adds a definition of weapon of mass
destruction to the Act that defines weapons of mass
destruction to cover explosive, incendiary, or poison gas
devices that are designed, intended to, or have the
capability to cause a mass casualty incident or death, and
biological, chemical and nuclear weapons that are designed,
intended to, or have the capability to cause illness or
serious bodily injury to a significant number of persons.
Section 110 also makes corresponding technical and conforming
changes to FISA.
TITLE II. PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS
This title establishes a new Title VIII of FISA. The title
addresses liability relief for electronic communication
service providers who have been alleged in various civil
actions to have assisted the U.S. Government between
September 11, 2001, and January 17, 2007, when the Attorney
General announced the termination of the Terrorist
Surveillance Program. In addition, Title VIII contains
provisions of law intended to implement statutory defenses
for electronic communication service providers and others who
assist the Government in accordance with precise, existing
legal requirements, and provides for federal preemption of
state investigations. The liability protection provisions of
Title VIII are not subject to sunset.
Section 801. Definitions
Section 801 establishes definitions for Title VIII. Several
are of particular importance.
The term ``assistance'' is defined to mean the provision
of, or the provision of access to, information, facilities,
or another form of assistance. The word ``information'' is
itself described in a parenthetical to include communication
contents, communication records, or other information
relating to a customer or communications. ``Contents'' is
defined by reference to its meaning in Title I of FISA. By
that reference, it includes any information concerning the
identity of the parties to a communication or the existence,
substance, purport, or meaning of it.
The term ``civil action'' is defined to include a ``covered
civil action.'' Thus, ``covered civil actions'' are a subset
of civil actions, and everything in new Title VIII that is
applicable generally to civil actions is also applicable to
``covered civil actions.'' A ``covered civil action'' has two
key elements. It is defined as a civil action filed in a
federal or state court which (1) alleges that an electronic
communication service provider (a defined term) furnished
assistance to an element of the intelligence community and
(2) seeks monetary or other relief from the electronic
communication service provider related to the provision of
the assistance. Both elements must be present for the lawsuit
to be a covered civil action.
The term ``person'' (the full universe of those protected
by Section 802) is necessarily broader than the definition of
electronic communication service provider. The aspects of
Title VIII that apply to those who assist the Government in
accordance with precise, existing legal requirements apply to
all who may be ordered to provide assistance under FISA, such
as custodians of records who may be directed to produce
records by the FISA Court under Title V of FISA or
landlords who may be required to provide access under
Title I or III of FISA, not just to electronic
communication service providers.
Section 802. Procedures for Implementing Statutory Defenses
Section 802 establishes procedures for implementing
statutory defenses. 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 makes a certification to
the district court in which the action is pending. (If an
action had been commenced in state court, it would have to be
removed, pursuant to Section 802(g) to a district court,
where a certification under Section 802 could be filed.) The
certification must state either that the assistance was not
provided (Section 802(a)(5)) or, if furnished, that it was
provided pursuant to specific statutory requirements
(Sections 802(a)(1-4)). Three of these underlying
requirements, which are specifically described in Section 802
(Sections 802(a)(1-3)), come from existing law. They include:
an order of the FISA Court directing assistance, a
certification in writing under Sections 2511(2)(a)(ii)(B) or
2709(b) of Title 18, or directives to electronic
[[Page S6393]]
communication service providers under particular sections of
FISA or the Protect America Act.
The Attorney General may only make a certification under
the fourth statutory requirement, Section 802(a)(4), if the
civil action is a covered civil action (as defined in Section
801(5)). To satisfy the requirements of Section 802(a)(4),
the Attorney General must certify first that the assistance
alleged to have been provided by the electronic communication
service provider was in connection with an intelligence
activity involving communications that was (1) authorized by
the President between September 11, 2001 and January 17, 2007
and (2) designed to detect or prevent a terrorist attack or
preparations for one against the United States. In addition,
the Attorney General must also certify that the assistance
was the subject of a written request or directive, or a
series of written requests or directives, from the Attorney
General or the head (or deputy to the head) of an element of
the intelligence community to the electronic communication
service provider indicating that the activity was (1)
authorized by the President and (2) determined to be lawful.
The report of the Select Committee on Intelligence contained
a description of the relevant correspondence provided to
electronic communication service providers (S. Rep. No. 110-
209, at 9).
The district court must give effect to the Attorney
General's certification unless the court finds it is not
supported by substantial evidence provided to the court
pursuant to this section. In its review, the court may
examine any relevant court order, certification, written
request or directive submitted by the Attorney General
pursuant to subsection (b)(2) or by the parties pursuant to
subsection (d).
If the Attorney General files a declaration that disclosure
of a certification or supplemental materials would harm
national security, the court shall review the certification
and supplemental materials in camera and ex parte, which
means with only the Government present. A public order
following that review shall be limited to a statement as to
whether the case is dismissed and a description of the legal
standards that govern the order, without disclosing the basis
for the certification of the Attorney General. The purpose of
this requirement is to protect the classified national
security information involved in the identification of
providers who assist the Government. A public order shall not
disclose whether the certification was based on an order,
certification, or directive, or on the ground that the
electronic communication service provider furnished no
assistance. Because the district court must find that the
certification--including a certification that states that a
party did not provide the alleged assistance--is supported by
substantial evidence in order to dismiss a case, an order
failing to dismiss a case is only a conclusion that the
substantial evidence test has not been met. It does not
indicate whether a particular provider assisted the
government.
Subsection (d) makes clear that any plaintiff or defendant
in a civil action may submit any relevant court order,
certification, written request, or directive to the district
court for review and be permitted to participate in the
briefing or argument of any legal issue in a judicial
proceeding conducted pursuant to this section, to the extent
that such participation does not require the disclosure of
classified information to such party. The authorities of the
Attorney General under Section 802 are to be performed only
by the Attorney General, the Acting Attorney General, or the
Deputy Attorney General.
In adopting the portions of Section 802 that allow for
liability protection for those electronic communication
service providers who may have participated in the program of
intelligence activity involving communications authorized by
the President between September 11, 2001, and January 17,
2007, the Congress makes no statement on the legality of the
program. The extension of immunity in Section 802 also
reflects the Congress's determination that the electronic
communication service providers acted on a good faith belief
that the President's program, and their assistance, was
lawful. Both of these assertions are in accord with the
statements in the report of the Senate Intelligence
Committee. S. Rep. No. 110-209, at 9.
Section 803. Preemption of State Investigations
Section 803 addresses actions taken by a number of state
regulatory commissions to force disclosure of information
concerning cooperation by state regulated electronic
communication service providers with U.S. intelligence
agencies. Section 803 preempts these state actions and
authorizes the United States to bring suit to enforce the
prohibition.
Section 804. Reporting
Section 804 provides for oversight of the implementation of
Title VIII. On a semiannual basis, the Attorney General is to
provide to the appropriate congressional committees a report
on any certifications made under Section 802, a description
of the judicial review of the certifications made under
Section 802, and any actions taken to enforce the provisions
of Section 803.
Section 202. Technical Amendments
Section 202 amends the table of contents of the first
section of FISA.
TITLE III. REVIEW OF PREVIOUS ACTIONS
Title III directs the Inspectors General of the Department
of Justice, the Office of the Director of National
Intelligence, the Department of Defense, the National
Security Agency, and any other element of the intelligence
community that participated in the President's surveillance
program, defined in the title to mean the intelligence
activity involving communications that was authorized by the
President during the period beginning on September 11, 2001,
and ending on January 17, 2007, to complete a comprehensive
review of the program with respect to the oversight authority
and responsibility of each Inspector General.
The review is to include: (1) all of the facts necessary to
describe the establishment, implementation, product, and use
of the product of the program; (2) access to legal reviews of
the program and information about the program; (3)
communications with, and participation of, individuals and
entities in the private sector related to the program; (4)
interaction with the FISA Court and transition to court
orders related to the program; and (5) any other matters
identified by any such Inspector General that would enable
that inspector general to complete a review of the program
with respect to the Inspector General's department or
element. While other versions of this Inspector General audit
provision may have included the requirement that the
Inspectors General review the ``substance'' of the legal
reviews or opinions regarding the President's Terrorist
Surveillance Program, this bill expressly excludes that
language. Thus, it is not intended for the Inspectors General
to determine or consider the legality of the Terrorist
Surveillance Program.
The Inspectors General are directed to work in conjunction,
to the extent practicable, with other Inspectors General
required to conduct a review, and not unnecessarily duplicate
or delay any reviews or audits that have already been
completed or are being undertaken with respect to the
program. In addition, the Counsel of the Office of
Professional Responsibility of the Department of Justice is
directed to provide the report of any investigation of that
office relating to the program, including any investigation
of the process through which the legal reviews of the program
were conducted and the substance of such reviews, to the
Inspector General of the Department of Justice, who shall
integrate the factual findings and conclusions of such
investigation into its review.
The Inspectors General shall designate one of the Senate
confirmed Inspectors General required to conduct a review to
coordinate the conduct of the reviews and the preparation of
the reports. The Inspectors General are to submit an interim
report within sixty days to the appropriate congressional
committees on their planned scope of review. The final report
is to be completed no later than one year after enactment and
shall be submitted in unclassified form, but may include a
classified annex.
TITLE IV. OTHER PROVISIONS
Section 401. Severability
Section 401 provides that if any provision of this bill or
its application is held invalid, the validity of the
remainder of the Act and its application to other persons or
circumstances is unaffected.
Section 402. Effective Date
Section 402 provides that except as provided in the
transition procedures (Section 404 of the title), the
amendments made by the bill shall take effect immediately.
Section 403. Repeals
Section 403(a) provides for the repeal of those sections of
FISA enacted as amendments to FISA by the Protect America
Act, except as provided otherwise in the transition
procedures of Section 404, and makes technical and conforming
amendments.
Section 403(b) provides for the sunset of the FISA
Amendments Act on December 31, 2012, except as provided in
Section 404 of the bill. This date ensures that the
amendments by the Act will be reviewed during the next
presidential administration. The subsection also makes
technical and conforming amendments.
Section 404. Transition Procedures
Section 404 establishes transition procedures for the
Protect America Act and the Foreign Intelligence Surveillance
Act Amendments of 2008.
Subsection (a)(1) continues in effect orders,
authorizations, and directives issued under FISA, as amended
by Section 2 of the Protect America Act, until the expiration
of such order, authorization or directive.
Subsection (a)(2) sets forth the provisions of FISA and the
Protect America Act that continue to apply to any acquisition
conducted under such Protect America Act order, authorization
or directive. In addition, subsection (a) clarifies the
following provisions of the Protect America Act: the
protection from liability provision of subsection (l) of
Section 105B of FISA as added by Section 2 of the Protect
America Act; jurisdiction of the FISA Court with respect to a
directive issued pursuant to the Protect America Act, and the
Protect America Act reporting requirements of the Attorney
General and the DNI. Subsection (a) is made effective as of
the date of enactment of the Protect America Act (August 5,
2007). The purpose of these clarifications and the effective
date for them is to ensure that there are no gaps in the
legal protections contained in that act, including for
authorized collection following the sunset of the Protect
America Act, notwithstanding that its sunset provision was
only extended once until February
[[Page S6394]]
16, 2008. Additionally, subsection (a)(3) fills a void in the
Protect America Act and applies the use provisions of Section
106 of FISA to collection under the Protect America Act, in
the same manner that Section 706 does for collection under
Title VII.
In addition, subsection (a)(7) makes clear that if the
Attorney General and the DNI seek to replace an authorization
made pursuant to the Protect America Act with an
authorization made under Section 702, as added by this bill,
they are, to the extent practicable, to submit a
certification to the FISA Court at least 30 days in advance
of the expiration of such authorization. The authorizations,
and any directives issued pursuant to the authorization, are
to remain in effect until the FISA Court issues an order with
respect to that certification.
Subsection (b) provides similar treatment for any order of
the FISA Court issued under Title VII of this bill in effect
on December 31, 2012.
Subsection (c) provides transition procedures for the
authorizations in effect under Section 2.5 of Executive Order
12333. Those authorizations shall continue in effect until
the earlier of the date that authorization expires or the
date that is 90 days after the enactment of this Act. This
transition provision is particularly applicable to the
transition to FISA Court orders that will occur as a result
of Sections 703 and 704 of FISA, as added by this bill.
Mr. BOND. Mr. President, before the recess I mentioned how the press
picked up on the similarities between this bill and the Senate bill and
how they kept asking me to help find out the big changes in the bill
that no one could find. Well, they stopped asking me that question
because they realized there is not much that is significantly
different, save some cosmetic fixes that satisfied the House Democratic
leadership. Since we started with a bipartisan product here in the
Senate, that means we still have a very strong bipartisan bill before
us.
I am very pleased that the strong liability protections the Senate
bill offered are still in place and our vital intelligence sources and
intelligence methods will be safeguarded. I am pleased this compromise
preserves the ability of the intelligence community to collect foreign
intelligence quickly and in exigent circumstances without any prior
court review. I am also pleased that the 2012 sunset--3 years longer
than any sunset previously offered in any House bill--will give our
intelligence collectors the certainty they need and the tools they use
to keep us safe. I am confident that the few changes we made to the
Senate bill in H.R. 6304 will not diminish the intelligence community's
ability to target terrorists overseas, and the Director of National
Intelligence--the DNI--and the Attorney General agree.
I will highlight for my colleagues five of the six main tweaks to the
Senate bill that we find in the bill before us, as nuanced as they may
be. I say ``five'' because one of these tweaks I explained in detail
before the recess. I trust all of my colleagues remember that
discussion very clearly. It was that the civil liability protection
provision was slightly modified but still ensures that the companies
who may, in good faith, have assisted the Government in the terrorist
surveillance program, or TSP, will receive relief. Another way to
describe it is that we have essentially provided the district court
with an appellate standard review just as we did in the Senate bill.
Congress affirms in this legislation that the lawsuits will be
dismissed unless the district court judge determines that the Attorney
General's certification was not supported by substantial evidence based
on the information the Attorney General provides to the court. The
intent of Congress is clear. The Intelligence Committee found that the
companies deserve liability protection. They were asked by legitimate
Government authorities to assist them in a program to keep our country
safe. They did it, and now they are being thanked by lawsuits designed
not only to destroy their reputation but to destroy the program.
There are several misconceptions that were brought up in the
discussions today. Several have said that we don't know what we are
granting immunity for; we shouldn't grant it without reviewing the
litigation; and there were 70 Members of the Senate who haven't even
been briefed on the program. Well, the reason the Senate Select
Committee on Intelligence was set up was to review some of the most
important and highly classified intelligence-gathering activities of
the intelligence community. It was agreed, as we all believe very
strongly, that these are very important tools. No. 1, they must be
overseen carefully to make sure that the constitutional rights, the
privacy rights of American citizens, are protected, and at the same
time, within the constitutional framework, the ability of the limited
authority of the intelligence community to collect the intelligence is
not inhibited. That is what the Senate Intelligence Committee has done
in reporting out this bill on a 13-to-2 vote. I am very pleased that
our colleagues showed confidence in us by passing this, essentially the
same measure, 68 to 29 in February.
There are some who say we don't even know whom we are granting
immunity to or what we are granting it to. Very simply, the people--the
carriers, the good citizens--who responded to the request to protect
our country from terrorist acts are now being sued, and some of them
who didn't even participate may be sued. They can't say whether they
participated. We are only saying if the Attorney General provides
information to be judged on an appellate standard that is not without
substantial supporting evidence, then these companies should be
dismissed, either because they didn't participate or they participated
in good faith.
It does not, as I pointed out, say the Government cannot be sued.
There are some who believe--and I think they are wrong--that the
President's TSP was unlawful. That can be litigated in the court
system. It is being litigated. I will discuss further Judge Walker's
opinion and why I think it is wrong and it will not stand up, but that
doesn't change the fact that at the time the Attorney General told
these American companies, these good citizens, that it was lawful for
them to participate and they needed that help, they provided that help,
and helped to keep our country safe. We should not thank them by
slapping them with lawsuits that would not only destroy their
reputation, endanger their personnel here and abroad, but potentially
disclose even more of the operations of our very sensitive electronic
surveillance program. The more the terrorists who wish to do us harm
learn about it, the better able they are to defend against it.
These three amendments all seek to destroy that protection provided
by good corporate citizens, patriotic Americans who are responding to a
directive of the President, approved by the Attorney General.
Moving on to the first of the five items I haven't discussed, the
first item is the concept of prior court review that was included in
this language. It is important for all of us to understand that prior
court review is not prior court approval. Prior court approval occurs
when the court approves the actual acquisition of electronic
surveillance as it does in the domestic FISA context. Prior court
review, on the other hand, is limited to the court's review of the
Government's certification and the targeting and minimization
procedures. The prior court review contained in this bill is
essentially the same as it was under the bipartisan Senate bill.
However, the timing has been changed to allow the court to conduct its
review before the Attorney General and the DNI authorize actual
acquisition.
The bottom line here is that what many of us feared in prior court
approval scenarios has been avoided. To ensure that will always remain
the case, we have included a generous ``exigent circumstances''
provision offered by House Majority Leader Hoyer that allows the
Attorney General and the DNI to act immediately if intelligence may be
lost or not timely acquired. I thank Leader Hoyer for that suggestion.
Thus, a finding of exigent circumstances requires a much lower
threshold than an emergency under traditional FISA.
One of our nonnegotiables in reaching this agreement is that the
continued intelligence collection would be assured and uninterrupted by
court procedures and delays. It is only because this broad ``exigent
circumstances'' exemption allows for continuous collection that I can
wholeheartedly support this nuanced version of prior court review of
the DNI and the AG authorizations.
Second, we agreed to language insisted upon by House Speaker Pelosi
regarding an ``exclusive means'' provision. I am confident that the
exclusive means provision we have agreed to will not--and indeed
cannot--preclude the
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President from exercising his constitutional authority to conduct
warrantless foreign intelligence surveillance. That is the President's
article II constitutional power that no statute can remove, and case
law, including recent statements in opinions by the FISA Court itself,
reaffirmed this.
I am aware, as several people have discussed, of the district court's
ruling last week in California where, in a suit against the Government,
the judge stated in dicta that:
Congress appears clearly to have intended to--and did--
establish the exclusive means for foreign intelligence
surveillance activities to be conducted.
Interestingly, Judge Walker ignored legislative history which
acknowledged the President's inherent constitutional authority. Even
though it may have been placed at the lowest ebb, if you agree with
that interpretation of the constitutional limitations cited in the
Senate Intelligence Committee report on the Senate FISA bill, he still
has that authority.
For a variety of reasons, I strongly believe Judge Walker's decision
will not stand on appeal. As to the court's comments on exclusive
means, there is a fair amount of dictum standing in opposition to his
opinion. I happen to think it is right.
For example, the FISA Court in 2002 ruled In re: Sealed Case--a very
important decision which I urge everybody to read, if they have time--
noted with approval the U.S. Fourth Circuit's holding in the Truong
case that the President does have ``inherent authority to conduct
warrantless searches to obtain foreign intelligence information.''
The Truong case involved a U.S. person in the United States, and the
surveillance was ordered by the Carter administration without getting a
warrant. The Fourth Circuit upheld that action in the criminal
prosecution of Truong.
These decisions, along with others like them, were ignored by the
analysis of the district court judge last week. At most, this exclusive
means provision only places the President at his lowest ebb under the
third prong of the steel seizure case analysis, which I do not accept
as being valid. But if you use that test, it still exists.
That is exactly where the President was when FISA was passed in 1978,
and the revised exclusive means provision in this bill does not change
that fact.
We should remember, however, even at its lowest ebb, the President's
authority with respect to intercepting enemy communications is still
quite strong, especially when compared to the nonexistent capability of
Congress to engage in similar interception activities.
It has been said that the President initiated this without any
congressional notice. I was not among them at the time, but I
understand the Gang of 8 was thoroughly briefed before they started
this program. The Gang of 8, for those who may be listening and may not
be aware, consists of the Republican and Democratic leaders and second
leaders in this body and the other body and the Democratic and
Republican leaders of the House and the Senate Intelligence Committees.
I believe these people were briefed on this program, and I understand
that advice was given in that meeting that we could not change the FISA
statute to enable the collection of vital information in any timely
fashion; that we could not wait to start listening in on foreign
terrorists abroad, possibly plotting against this country, until we
passed it.
I think they were right. It has been 15 months since we were told
that we needed to revise FISA. Outside of one 6-month, 15-day patch
that we elected to adopt last August, we have not been able to change
it. I hope a mere 15 months will allow us to change it. But the fact
is, had we not had the concurrence of the Gang of 8 in the TSP, it is
likely we would not be talking with shock and horror about 9/11, but we
would be talking about other similar incidents occurring in the United
States.
I believe with respect to the Speaker's own language, conditional
language that she offered to us, it actually reinforces the President's
article II authority. That bill language we accepted states:
If a certification . . . for assistance to obtain foreign
intelligence information is based on statutory authority, the
certification shall identify the specific statutory provision
and shall certify that the statutory requirements have been
met.
The obvious implication from this language is if a certification is
not based on statutory authority, then citing statutory authority would
be unnecessary. This language acknowledges that certifications may be
based on something other than statutory authority; namely, the
President's inherent constitutional authority. Furthermore, the DNI and
Attorney General have assured me there will not be any operational
impediments due to this provision. From a constitutional perspective,
this language actually improved upon what we were looking at before in
the Senate.
What Congress is clearly saying in this language is FISA is the
exclusive statutory means for conducting electronic surveillance for
intelligence purposes.
I am well aware that some will argue that there is no nonstatutory or
constitutional means, but I can remember a long time ago when I was in
a basic constitutional law course in law school that the Constitution
trumps statutes. What the Constitution gives in rights or powers or
authority cannot be exterminated, eliminated, or taken out by statute.
The courts have clearly said the President has that constitutional
authority. I mentioned the Carter administration and the Truong case,
but on a historical note, it is interesting to note that when President
Clinton ordered a warrantless physical search, not electronic
eavesdropping but a more intrusive, actual physical search of Aldrich
Ames' residence in 1993, Congress responded by seeking to bolster the
President's authority by updating FISA to include physical searches.
Aldrich Ames is a U.S. citizen, probably still in prison. Let's pause
and think about that: President Clinton ordered a warrantless physical
search of an American citizen inside the United States, and what did
Congress do? Congress sought to assist the President instead of accuse
him of illegal activity. It sought to help him. I would hope some of my
colleagues would take a similar approach as we did with President
Clinton before.
Third, as a part of our compromise with the House Democrats, we
agreed to replace our version of what we call a carve-out from the
definition of electronic surveillance with their definition of a carve-
out which they call construction. Operationally, there is no difference
between the two approaches, but we think our approach is more
forthright with the American people because we put our carve-out right
up front instead of burying it several chapters later in title VII of
FISA as they wanted to do.
Why did they do this? I am sure this is not of great moment to
anybody here, but let me say that it was clear from negotiations the
other side wanted to be able to come out of the negotiations and say:
We wrestled the Republicans back to the original definition of
``electronic surveillance'' in the 1978 FISA Act, but they failed to
mention they buried their carve-out deep in this legislation, and it
has the same effect.
They also failed to remind folks it was the original language of the
1978 FISA Act that, due to technology changes, got us into this mess in
the first place.
Last year, when the DNI first asked us to modernize FISA, he
requested we create a technology-neutral definition of ``electronic
surveillance.'' I believed then and I still believe we should redefine
``electronic surveillance.'' FISA is complicated enough, and we should
be forthright with the American people.
But some other leaders prefer for political reasons to bury
construction provisions deep within the bill instead of presenting an
upfront, crystal-clear carve-out. One consequence of their approach is
that the same acquisition activities the Government uses to target non-
U.S. persons overseas will trigger both the definition of electronic
surveillance in title I of FISA and the construction provision in
section 7.
Essentially, we have agreed to build an unnecessary internal
inconsistency in statute as a political compromise. I reluctantly
agreed to do this because the DNI and the Attorney General assured us
that going for the carve-out
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now would not create any operational problems for the intelligence
community, but we should fix this in the future during less politically
charged times.
For historical note, it should be remembered that the American
Government was able to intercept radio communications long before we
got into this stage of the intercepts without getting court orders.
They were intercepting overseas communications which might have been
coming into the United States, and they followed the same procedure
that we do now. That was called the procedure of minimization for
innocent conversations. Just like the case back when the radio
interceptions were going forward, there is not, as I have said before,
any evidence that we have seen that innocent Americans were being
listened in on.
The bugaboo that this gives the intelligence community the right to
listen in on ordinary citizens' conversations willy-nilly, without any
limitations, is absolutely false. That is why we built in the
protections in the law. That is why we have the layers of supervision
to make sure it does not happen.
Fourth, we included a provision for coordinated inspector general
audits of the TSP. However, the IGs will not review the substance of
the legal reviews related to the President's TSP. In other words, they
will not review whether the program was lawful.
I know some colleagues are saying the opposite in the media, but I
encourage them to read the language because it is accurate. It is
accurate that the IGs will not review whether the program was lawful.
The Senate Intelligence Committee already conducted an exhaustive
review of the TSP and found no legal or unlawful conduct. There is no
need for an IG audit to second-guess the bipartisan determination.
Numerous IGs have already conducted reviews, and several reviews are
ongoing. I cannot imagine the IG finding out anything different than
they already have or that the Intelligence Committee has found for that
matter. But it does make for good politics in an election year to say
Congress mandated these reviews even if, in some cases, they will
simply be doing reviews that have already been done. To reach
agreement, we reluctantly agreed to a more redundant review on the
overly taxed intelligence community.
I offer to those who want to challenge the lawfulness of the
President's Terrorist Surveillance Program that this bill does not
block plaintiff suits against the Government or Government officials.
We only offer civil liability protection for providers in the bill. The
court case I mentioned earlier against the Government will be able to
proceed unaffected by this legislation.
Fifth, and finally, we agreed to a 5-year sunset instead of 6 years.
I don't like sunsets. As intelligence community leaders have told us,
there are no sunsets in fatwahs against the United States issued by al-
Qaida leaders. I only agreed to a 6-year sunset in the Senate bill as a
bipartisan compromise. But even with a 5-year sunset, Congress is
unlikely to take up FISA reform again in the fall of a Presidential
election year, and I trust they will have the good wisdom to push the
sunset out longer so they don't find themselves in an election year
going through the same drill. Regardless, there is little operational
impact.
Remember, it is the job of the House and Senate Intelligence
Committees to conduct ongoing, continuing oversight of electronic
surveillance, as well as the rest of the intelligence community's
programs. If we see the need to make changes before sunset, we will. A
sunset does not change that.
In the end, I am proud to say we accomplished our collective goals of
making sure we have a bill with clear authorities for foreign
targeting, with strong protections for U.S. persons, and with civil
liability protection for those providers who allegedly assisted with
the President's TSP. We are in a better position today than we were a
few months ago legislatively because we not only have the Senate bill
before us in essence all over again--and one that received 68 votes the
last time--but we have it before us already having passed the House. We
know we have a bill we can send straight to the President that the
Attorney General and DNI would support and the President can sign into
law.
Should we fail to do so, there is a real danger we could fall back
into the trap we were in last summer when because of the existing
underlying outmoded FISA bill, we put the intelligence community out of
business of collecting much vital intelligence during a brief period,
far too long, but brief nevertheless.
Why is having essentially the Senate bill with minor tweaks before us
all over again a major bipartisan victory? I answer: Because the Senate
bill we passed a few months ago was the delicate bipartisan compromise
that took months to produce. We had the bipartisan product that
increased civil liability protections more than ever before and gave
our intelligence operators the tools they needed to keep us safe. I am
proud of that bipartisan bill, proud to have negotiated with the House
to bring it back to the Senate with essentially the same position in a
major bipartisan victory for all sides.
Mr. President, I will reserve the rest of my comments in appreciation
of my colleagues. I thank the Chair, and I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, I ask if the Senator from Missouri will
yield for two questions?
The PRESIDING OFFICER. The Senator from Missouri has used his time.
Mr. SPECTER. Will the Chair repeat that?
The PRESIDING OFFICER. The Senator from Missouri has used his entire
29 minutes allocated under the previous order.
Mr. SPECTER. Mr. President, I will yield myself 5 minutes from my
time on the amendment which is scheduled later this afternoon.
The PRESIDING OFFICER. Does the Senator from Missouri consent to
being questioned by the Senator from Pennsylvania?
Mr. BOND. Of course. I would be honored.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. The first question I have relates to the Senator's
contention that the action by the Intelligence Committee is sufficient.
We know from the representations made earlier today that some 70
Members of the Senate have not been briefed on this subject, and the
House leadership has said that the majority of the House Members have
not been briefed on this subject. There is no question that a Member's
constitutional authority cannot be delegated to another Member. Under
the procedures of the Senate and the House but focusing on the Senate,
which is where we are, the committees hear the matters, they file
reports, they make disclosure to the full body, and the full body then
acts.
The question I have for the Senator from Missouri is: How can some 70
Members of the Senate be expected to cast an intelligent vote granting
retroactive immunity to a program that the Senators have not been
briefed on and don't know about, in light of the clear-cut rule that we
cannot delegate our constitutional responsibilities?
Mr. BOND. Well, to reply to my friend--who served in the past on the
Intelligence Committee, I believe--that committee was set up to handle
matters that involved the most critical classified information. The
committee was set up, long before I came to the Senate, to provide a
forum, a bipartisan group of Senators with a very able staff, to go
over everything that was done in the intelligence community, to oversee
it, to make sure it was proper, to make sure it stayed within the
guidelines and to provide support and change it where necessary.
Now, I have fought very strongly, alongside my colleague, the
chairman, to get the full committee briefed on all these programs. As I
have said before, the terrorist surveillance program was not briefed to
the full committee, it was briefed and then oversight held with eight
people. This, to me, was a mistake. I believe it should have been
briefed to the entire committee, but the members of that group of eight
did know about it and were briefed about it.
Now, I might say to my good friend, the Senator from Pennsylvania,
that we have many important committees putting out legislation on the
floor. No person can participate in all the committee work. No person
can be involved
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in every committee. So we have to take the reports, and usually on a
bipartisan agreement or disagreement, based on what our colleagues in
those committees have studied, have reviewed, and have found to be the
case. In this case, an overwhelmingly bipartisan majority of 13 to 2,
after studying the bill and the question for 6 months and engaging in
about 2 solid months of hard work, found out it was appropriate to give
retroactive liability protection to these companies that had acted in
good faith.
We were shown the certifications and the authorizations that went to
them, and I believe, based on my legal background, that those were
adequate and sufficient for these companies to participate. Let us
remember, these were critical times. We had just experienced an attack.
We were being threatened with more attacks. The Government went to some
of these--not all of them but some--companies and said: Please help us.
You must help us. We believe in the committee that their actions should
not be punished but should be rewarded by preventing them from being
harassed by lawsuits.
The legality of the program, if it is to be judged, was not one for a
judgment for those companies to make, but it will be played out in
Judge Walker's and other courtrooms.
Mr. SPECTER. Mr. President, on my time, which we are on, may I say,
before moving to the second brief question, that I admire what the
Senator from Missouri has done as vice chairman. I see his diligent
work, and I know what the Intelligence Committee is involved with
because I served on it for 8 years and chaired it in the 104th
Congress. But when the Senator from Missouri delineates even the fewer
members within the Intelligence Committee who were briefed, it
underscores my point, and that is that most Senators haven't been
briefed.
While it is true every Senator does not know what is in every
committee report, at least every Senator has access to it, and it is
not a matter where there are secret facts and there has been no
briefing of them, or where there has been no disclosure and they are
called upon to vote. Significantly, the Senator does not deny that no
Senator can delegate his constitutional authority, and that is exactly
what 70 Senators will be doing.
Let me move within my 5-minute time limit because time is fleeting
and there is a great deal to argue.
The PRESIDING OFFICER. The Senator has used 6 minutes. There is 4
minutes remaining.
Mr. SPECTER. We have here litigation which has been ongoing in the
Federal court in San Francisco for several years, and a very extended
opinion was filed on July 20 of 2006 by Chief Judge Walker on the
telephone case on the state secrets doctrine, and that case is now on
appeal to the Court of Appeals for the Ninth Circuit.
Here we have a context where the Congress has been totally
ineffective in limiting executive authority, where the Executive has
violated the specific mandate of the National Security Act of 1947 to
brief all members of the Intelligence Committee. It hasn't been done.
The Congress has been ineffective on the Foreign Intelligence
Surveillance Act, where the Supreme Court denied cert, as I said
earlier today, and ducked the decision. Although from the dissenting
opinion in the Sixth Circuit, they could have found the requisite
standing. Now we have Chief Judge Walker coming down with a 56-page
opinion last Wednesday, which does bear on the telephone case. I
concede, as the Senator from Missouri has said, that the telephone
companies have been good citizens. But there is a way to save them
harmless with the amendment I offered in February to substitute the
Government in the shoes of the telephone companies.
Have they had problems with their reputation? Well, perhaps so, but
they can withstand that. Have they had legal expenses? Well, those can
be compensated by indemnity from the Government. We are all called upon
to make sacrifices. My father, who served in World War I, was wounded
in action. My brother served in World War II. I served 2 years in the
Korean war, stateside. I don't think the telephone companies, given
their positions, as regulated companies, have been asked for too much.
I think it is highly unlikely they would ever have to pay a dime, but
that could all be handled by substitution, so we look at a situation
where we can both have this electronic surveillance program continue
and not give up court jurisdiction through court stripping.
So that brings me to my question: Does the Senator from Missouri now
know of any case--there have been jurisdictional issues of a variety of
sorts--but any case involving constitutional rights, which has been
pending for more than 3 years and is in midstream on appeal to the
Court of Appeals for the Ninth Circuit--from a very learned opinion
handed down by Chief Judge Walker in 2006--when the Congress has
stepped in and taken the case away from the courts, in a context where
there is no other way to get a judicial determination on the
constitutionality of this conduct?
Mr. BOND. Mr. President, I am happy to answer my colleague. He has
stated that the Executive has violated the laws. Not under the
constitutional authority that I have outlined. The FISA Court itself
recognized what he fails to understand; that it is not a question of
the carriers being held liable for any amount of money. Because I agree
with him, they are not going to find anybody liable. But what they
would do, by continuing having this out in open hearing, is to disclose
the most secretive methods and procedures used by our intelligence
community, giving the terrorists and those who seek to do us harm a
roadmap for getting around it and avoiding those intercepts.
Now, what it would also do is expose those companies to tremendous
public scorn and possibly even to injury to their property or to their
personnel. Where they operate overseas, they might be attacked. When we
started this debate, my colleague, the senior Senator from Illinois,
was talking about how an unwarranted disclosure of a question about one
of the vitally important exchanges operating in Chicago had cost
billions of dollars to that exchange.
When you leak out something that is classified, when you leak out
something that is secret, you can have a tremendous impact, and every
shareholder of that exchange and every shareholder, whether it be in
your pension fund or anyone else, of one of the carriers that might be
drawn out and drawn into court in one of these actions, would lose
significantly.
Now, to answer the question put specifically by the Senator from
Pennsylvania, the cases against the Government are not blocked. The
cases against the Government are not blocked. If we are looking for a
means of determining the constitutionality, which I believe exists--he
obviously doesn't believe exists. OK, we have a disagreement. He is a
learned lawyer, and I studied constitutional law a long time ago. We
have different views. I can line up a bunch of constitutional law
professors on my side. I am sure he can do the same. But that court can
go forward because a suit really is a suit against the government.
I think he is right when he is saying he doesn't want to hurt the
companies. I don't believe any significant number of Members of this
body want to hurt the employees or their shareholders of the companies
that may have participated because they were true American heroes. But
if he wants to solve the problem that he has--getting court review--
then there is no bar in this legislation to a suit against the
Government, a Government officer, or a Government agent.
Mr. SPECTER. Mr. President, on my time.
The PRESIDING OFFICER. The Senator from Pennsylvania is advised he
has used all his time--13 minutes.
Mr. SPECTER. I yield myself 3 more minutes.
The PRESIDING OFFICER. The Senator has 3 minutes.
Mr. SPECTER. On my time, Mr. President.
When the Senator from Missouri talks about being exposed to risks or
physical harm, that is happening to American soldiers every day around
the world, as we know. It happened to my father serving in World War I.
There are certain risks, physical or otherwise, which have to be
sustained in a democracy doing our duty. We talk about money, about
costs. Dollars and cents don't amount to a hill of beans when you are
talking about constitutional rights.
When the Senator from Missouri talks about the case can continue
[[Page S6398]]
against the Government, that is a fallacious argument. The Government
has the defense of governmental immunity. The telephone companies do
not have that.
I offered the amendment in February to have the Government step into
the shoes of the telephone companies with no different defenses. They
would have state secrets but no governmental immunity. That was turned
down. It is a very different matter to drop suits as to the telephone
companies. They do not have governmental immunity. It is very
different. Significantly, when challenged for any case which has been
going on for years, with these kinds of opinions by the Chief Judge in
San Francisco and on appeal to the Court of Appeals for the Ninth
Circuit, for the Congress to step in and take away jurisdiction is an
anathema. In the context of congressional ineffectiveness on oversight
on separation of powers and in the context of the Supreme Court of the
United States, which, as I elaborated earlier today, has ducked it, the
only way to get this decision is to let the courts proceed. Congress is
ineffective on curtailing executive authority. That is why I think it
is so important that we can both keep this surveillance program and at
the same time protect constitutional rights.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER. The Senator has consumed 15 minutes, so he has
45 minutes remaining on his amendment.
Mr. SPECTER. I yield the floor.
The PRESIDING OFFICER. The Senator from New Mexico is recognized.
Mr. BINGAMAN. Mr. President, could the Presiding Officer please
indicate what the order of sequence of events is at this point?
The PRESIDING OFFICER. The Senator from New Mexico is authorized to
offer his amendment with 1 hour of debate equally divided.
Mr. BINGAMAN. Let me defer to my friend from Michigan. Let me
indicate I will plan to use the first 15 minutes of the 30 minutes
allocated to me to make a statement now, and then Senator Casey from
Pennsylvania will take 5 minutes, and then Senator Levin from Michigan
will have the remaining 10 minutes. That is my plan.
I believe the Senator from Michigan wanted to state a question.
Mr. LEVIN. Mr. President, parliamentary inquiry. I thank my friend
from New Mexico.
The PRESIDING OFFICER. The Senator from Michigan is recognized.
Mr. LEVIN. Under the plan that was just stated, if 10 minutes is
yielded to this Senator, can the 10 minutes be used at any time this
afternoon or must it follow immediately in sequence to either Senator
Casey or Senator Bingaman?
The PRESIDING OFFICER. The 10 minutes would have to be used sometime
this afternoon.
Mr. LEVIN. At any time this afternoon. I thank the Presiding Officer.
Amendment No. 5066
Mr. BINGAMAN. Mr. President, I ask to call up amendment No. 5066.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from New Mexico [Mr. Bingaman], for himself,
Mr. Casey, and Mr. Specter, proposes an amendment numbered
5066.
Mr. BINGAMAN. I ask unanimous consent that the reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To stay pending cases against certain telecommunications
companies and provide that such companies may not seek retroactive
immunity until 90 days after the date the final report of the
Inspectors General on the President's Surveillance Program is submitted
to Congress)
Beginning on page 88, strike line 23 and all that follows
through page 90, line 15, and insert the following:
``(a) Requirement for Certification.--
``(1) In general.--Notwithstanding any other provision of
law other than paragraph (2), a civil action may not 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 district court of the United States
in which such action is pending 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 section 102(a)(4), 105B(e), as added by
section 2 of the Protect America Act of 2007 (Public Law 110-
55; 121 Stat. 553), or 702(h) directing such assistance;
``(D) in the case of a covered civil action, 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) the subject of a written request or directive, or a
series of written requests or directives, 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
``(E) the person did not provide the alleged assistance.
``(2) Limitation on implementation.--
``(A) In general.--The Attorney General may not make a
certification for any civil action described in paragraph
(1)(D) until after the date described in subparagraph (C).
``(B) Stay of civil actions.--During the period beginning
on the date of the enactment of the FISA Amendments Act of
2008 and ending on the date described in subparagraph (C), a
civil action described in paragraph (1)(D) shall be stayed by
the court in which the civil action is pending.
``(C) Date described.--The date described in this
subparagraph is the date that is 90 days after the final
report described in section 301(c)(2) of the FISA Amendments
Act of 2008 is submitted to the appropriate committees of
Congress, as required by such section.''.
Mr. BINGAMAN. Mr. President, this is an amendment cosponsored by
Senators Casey and Specter. The main thrust of this amendment is to
make a point that this legislation which is currently before us puts
the cart before the horse. As soon as we enact the legislation, it
essentially grants telecommunications companies retroactive immunity
for their past actions, but then after the fact, after they have been
granted that retroactive immunity, it requires that an in-depth
investigation occur regarding what those activities actually were.
The purpose of the amendment I am offering is simply to put the horse
and the cart in the right order. I believe this chart makes the case
very well. Let me just allude to this chart.
First, let's look at the process for dismissing lawsuits under the
current bill, the way the bill now pends. That is the top line here.
You can see the first step would be to enact provisions that would set
up a procedure for the telecom companies to seek the retroactive
immunity.
Second, in the middle here, in accordance with the underlying
provisions, the pending civil cases would almost certainly be promptly
dismissed as soon as the Attorney General makes the necessary
certifications.
Then the last step, over here at the right--it is very difficult to
read from any distance, but the last step says, ``IG's investigation
and report to Congress.'' The last step would be investigation about
whether the companies' participation in the President's warrantless
wiretapping program was lawful and whether the relevant inspectors
general can report back to Congress with their findings within a year.
That is a requirement in the bill, that they do that report within 1
year.
Basically, the current bill's approach is to grant the immunity first
and investigate later, after the companies have already been provided
with legal liability protection for whatever it is later determined
they have been engaged in. The amendment I am offering would change
this by modifying the timing of the process that enables these telecom
companies to seek immunity, and it changes it so that the investigation
of what has occurred would occur first. Only after that investigation
has been completed would we allow the immunity to be granted.
Under the amendment--this is the bottom part of this chart--the first
step would still be to enact the legislation establishing the
procedures for companies to seek immunity. At the same time, the
amendment would stay all of the pending court cases against the telecom
companies, thereby putting all those cases on hold. The second
[[Page S6399]]
step would be to allow the inspectors general--that is, from each of
these Federal agencies that are designated in the statute--allow the
inspectors general to conduct their investigation and to inform
Congress about what they found. The amendment would then give Congress
90 days to review those findings, after which time the companies could
go ahead and seek dismissal of their lawsuits. So the dismissal of the
lawsuits would be the last step and not the first step and could only
occur after the investigation was complete and after Congress had an
opportunity to review their report that has been done.
The bill does recognize that it is important to understand all the
facts surrounding the President's warrantless program. I am glad the
legislation requires that the relevant inspectors general come to
Congress with a report on the subject. This review will cover the
establishment and implementation and use of the surveillance program,
as well as the participation of private telecom companies.
However, as I have discussed, the bill also allows the same telecom
companies to immediately seek and to obtain retroactive immunity for
their participation in the program as soon as the bill becomes law. And
that is a mistake, in my view. I find it troubling that Congress would
confer immunity before the full extent of the companies' participation
in the program is known. Maybe these companies acted in good faith, as
some of my colleagues have argued. Maybe they did not. I don't know,
myself, what the facts are, but, like most Members of Congress who do
not sit on the Intelligence Committee or the Judiciary Committee, I
received very little information regarding what actually did occur. I
do know, however, that their participation in an unlawful, warrantless
surveillance program is a serious issue. It deserves the in-depth
review we call for in this legislation, but it deserves that review
before we grant those companies blanket protection for their past
actions. If we go down this path without first conducting the thorough
review, we may very well look back with great regret.
To me, a much more sensible approach would be to have the
comprehensive IG report submitted to Congress before companies are
allowed to seek dismissal of their suits. The amendment would stay all
of the civil cases against the telecom companies. It would allow time
for the inspectors general to investigate the circumstances surrounding
the President's warrantless surveillance program. It would give
Congress the 90 days to review what is found in the IG's report.
While retaining the overall substance and structure of the bill, this
would give Congress an opportunity, even though it is a brief
opportunity, to at least review the inspectors general report before
the companies would be permitted to apply for immunity. If Congress
does not affirmatively pass legislation within 90 days of getting the
report from the inspectors general, then the companies would be free to
seek relief from the court.
I would also like to take just a minute to discuss what the amendment
would not do. The amendment is not a deal breaker. The amendment would
not remove or alter the substantive provisions in the immunity title of
the bill. With passage of this amendment, those provisions would remain
intact. Personally, I am opposed to retroactive immunity, but the
amendment I am offering does not change the substance of those
provisions.
Additionally, by staying the pending lawsuits, the companies would
not be subject to the costs of litigation during the development of the
IG report or while Congress reviews the report's findings. Proceedings
in these cases would be suspended until the called-for report is
delivered to Congress and the 90 days have passed.
Some of my colleagues have expressed concerns that unless we
immediately grant the telecom companies retroactive immunity, they will
refuse to provide assistance in the future. I think that is unfounded.
Clearly they are under an obligation to do so under the language of
this bill.
Regardless of whether Senators generally favor the legislation or are
adamantly opposed to it; that is, the underlying legislation, I hope my
colleagues will agree that this amendment is a reasonable modification
which would, in fact, improve the bill.
Let me point out one other red herring that has come up. In a letter
to Senate leadership dated yesterday, July 7, the administration urged
that my amendment:
. . . fails to address the risk that on-going litigation
will result in the release of sensitive national security
information, a risk that, if realized, could cause grave harm
to the national security.
I suggest the Attorney General and the Director of National
Intelligence need to read the amendment I am offering. As I stated, the
amendment puts all of the cases on hold. There would be no ongoing
activity during the time that proceedings in these cases were stayed,
so there is no activity that could create a risk of releasing sensitive
information.
This is a good amendment. It would improve this bill. It would make
it more logical and certainly improve our ability to understand what it
is we are being asked to grant immunity for. I urge my colleagues to
support it.
I yield the floor.
The PRESIDING OFFICER (Mr. Sanders). The Senator from Missouri is
recognized.
Mr. BOND. Mr. President, I yield myself 10 minutes in opposition.
When the inspector general audit provisions were first discussed in
the House and Senate, there was a great concern that these audits would
be used to delay or deny essential civil liability protections.
Unfortunately, this amendment shows that these concerns were justified.
When negotiating this compromise legislation with House Majority
Leader Hoyer, I agreed in good faith to a limited inspector general
review of the President's terrorist surveillance program even though
this program has been reviewed up and down on a bipartisan basis by the
Senate Intelligence Committee and no abuse or wrongdoing had been
found.
Now, in what I could only assume is a political move to undermine the
critical civil liability protections in this bill, this amendment
delays any liability protection until 90 days after the inspector
general review of the bill is completed. What is supposed to happen
after that is anything but clear, but I can only assume that will be
followed by yet another effort to delay liability relief. That is
extraordinarily and unacceptably unfair to those providers that
assisted the Government in the aftermath of the September 11 terrorist
attacks. We owe them our thanks, not our continued partisan
maneuvering.
Earlier, we heard a justification for exposing these providers to
public light, having participated in a classified program. The
assertion was made: It is like our troops who go abroad and go under
fire. Mr. President, as the father of a son who spent 20 months in the
last 3 years as a marine sniper in Iraq, I can tell you that they go
under tremendous threat and tremendous danger. But they are extremely
well trained, they are extremely well supported, and they are extremely
well armed.
To say with a straight face that we can subject private companies to
that, private companies with American citizens working for them, and
that we don't care if they are attacked when they don't have any
protection, they don't have any weapons, they don't have any training,
I think goes way too far.
That is not reasonable. Let's not hear any more of that stuff, that
they should be put in the same position as our trained military men and
women who go into battle accepting the risks of battle. These people,
these good American citizens, did not expect to be under physical
attack.
How often are we going to tell those patriotic Americans we have to
delay further any halt to the lawsuits so we can ``review'' the
terrorist surveillance program? Enough is enough. Inspectors general
have very clear roles in our Government. They determine if there is
waste, fraud, or abuse. Their review under title IV of this bill is
essentially for these purposes. They will not determine whether the TSP
was lawful. They will not determine whether the providers acted in good
faith. That is for the court to do.
So exactly what purpose does it serve to delay liability relief to
these companies? The only purpose I can think of is to appease these
liberal activists who
[[Page S6400]]
have tried repeatedly throughout this FISA debate to tie the hands of
the intelligence community and punish these companies with frivolous
lawsuits.
What message are we sending to all of those private partners who help
our intelligence community, our military, our law enforcement community
on a daily basis far beyond the FISA context: Help us now, but we
cannot guarantee that years later you will not be taken to the cleaners
because you did. Is that an incentive? Is that the way we want to deal
with fellow Americans whose help we need?
I appreciate there is serious debate about whether the President has
article II authority to conduct surveillance. But this is a debate that
should not impact whether these providers, who trusted their
Government, who in good faith, on the word of the Attorney General,
helped to ensure our homeland did not suffer another terrorist attack.
And we think they should be treated fairly and protected.
We need to remember the Senate Intelligence Committee conducted an
exhaustive review of the TSP. It found no evidence of illegal or
unlawful conduct either by the providers or the Government. We agreed
on a bipartisan basis, ratified by the Senate, that the providers acted
in good faith. So I do not see how waiting to give them the fair and
just relief they deserve advances any goals. It is more likely, the
longer these lawsuits, these frivolous lawsuits go on, that our most
sensitive sources and methods will be revealed. It becomes much more
likely that the providers who helped us will refuse to do so unless we
go through a lengthy process to compel them.
We went without cooperation for some time when the act expired, and
it was only on the assurance of prompt action that they were able to
withstand shareholder pressure and the advice of lawyers not to worry.
The Attorney General and the DNI sent a letter on July 7. It says:
Any FISA modernization bill must contain effective legal
protection for those companies sued because they're believed
to have helped the Government prevent terrorist attacks.
Liability protection, a fair and just result, is necessary to
ensure the continued assistance of the private sector.
H.R. 6304 contains such protection, but the amendment
addressed in this letter
Essentially the Bingaman amendment--
would unnecessarily delay implementation of the protections
with the purpose of deferring any decision on this issue for
more than a year.
Accordingly, we as well as the President's other senior
advisors will recommend that the President veto any bill that
includes such an amendment. The Intelligence Committee has
recognized the intelligence community cannot obtain
intelligence it needs without assistance from these
companies. We recognize that the companies in the future may
be less willing to assist the Government if they face the
threat of lawsuits, and we know that a delay could result in
the very degradation and the cooperation that this bill was
designed to provide. Continued delay in protecting those who
provided assistance will be invariably noted by those who may
some day be called upon to help us again.
Finally, by raising the prospect that the litigation at
issue could eventually proceed, this amendment fails to
address the risks that ongoing litigation will result in
release of national security sensitive information, a risk
that if realized could cause grave harm to national security.
I reserve the remainder of my time on this side. I ask unanimous
consent that after the Senator from Pennsylvania is recognized, the
chairman of the committee be recognized for 10 minutes.
I ask unanimous consent that this letter addressed to Leader Reid
from the DNI and the Attorney General be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
July 7, 2008.
Hon. Harry Reid,
Majority Leader, U.S. Senate, Hart Senate Office Building,
Washington, DC.
Dear Mr. Leader: This letter presents the views of the
Administration on an amendment to the Foreign Intelligence
Surveillance Act of 1978 (``FISA'') Amendments Act of 2008
(H.R. 6304) that was not covered in our letter of June 26,
2008. As we stated in that letter, we strongly support
enactment of H.R. 6304, which would represent an historic
modernization of FISA to reflect dramatic changes in
communications technology over the last 30 years. This bill,
which passed the House of Representatives by a wide margin of
293-129, is the result of a bipartisan effort that will place
the Nation's foreign intelligence effort in this area on a
firm, long-term foundation. The bill provides our
intelligence professionals the tools they need to protect the
country and protects companies whose assistance is vital to
this effort from lawsuits for past and future cooperation
with the Government.
As we have previously noted, any FISA modernization bill
must contain effective legal protections for those companies
sued because they are believed to have helped the government
prevent terrorist attacks in the aftermath of September 11,
2001. Liability protection is the fair and just result and is
necessary to ensure the continued assistance of the private
sector. H.R. 6304 contains such protection, but the amendment
addressed in this letter would unnecessarily delay
implementation of the protections with the purpose of
deferring any decision on this issue for more than a year.
This amendment would reportedly foreclose an electronic
communication service provider from receiving retroactive
liability protection until 90 days after the Inspectors
General of various departments, as required by section 301 of
H.R. 6304, complete a comprehensive review of, and submit a
final report on, communications intelligence activities
authorized by the President between September 11, 2001, and
January 17, 2007. The final report is not due for a year
after the enactment of the bill. Any amendment that would
delay implementation of the liability protections in this
manner is unacceptable. Providing prompt liability protection
is critical to the national security. Accordingly, we, as
well as the President's other senior advisors, will recommend
that the President veto any bill that includes such an
amendment.
Continuing to deny appropriate protection to private
parties that cooperated in good faith with the Government in
the aftermath of the attacks of September 11 has negative
consequences for our national security. The Senate
Intelligence Committee recognized that ``the intelligence
community cannot obtain the intelligence it needs without
assistance from these companies.'' That committee also
recognized that companies in the future may be less
willing to assist the Government if they face the threat
of private lawsuits each time they are alleged to have
provided assistance, and that the ``possible reduction
intelligence that might result from this delay is simply
unacceptable for the safety of our Nation.'' These cases
have already been pending for years, and delaying
implementation of appropriate liability protection as
proposed by the amendment would mean that the companies
would still face the prospect of defending against multi-
billion-dollar claims and would continue to suffer from
the uncertainty of pending litigation. Indeed, the
apparent purpose of the amendment is to postpone a
decision on whether to provide liability protection at
all. Such a result would defeat the point of the carefully
considered and bipartisan retroactive liability
protections in H.R. 6304--to provide for the expeditious
dismissal of the relevant cases in those circumstances in
which the Attorney General makes, and the district court
reviews, the necessary certifications--and could result in
the very degradation in private cooperation that the bill
was designed to prevent. The intelligence community, as
well as law enforcement and homeland security agencies,
continue to rely ont he voluntary cooperation and
assistance of private parties in other areas. Continued
delay in protecting those who provided assistance after
September 11 will invariably be noted by those who may
someday be called upon again to help the Nation. Finally,
by raising the prospect that the litigation at issue could
eventually proceed, this amendment fails to address the
risk that on-going litigation will result in the release
of sensitive national security information, a risk that,
if realized, could cause grave harm to the national
security.
Deferring a final decision on retroactive liability
protection for 15 months while the Inspectors General
complete the review required by H.R. 6304 is also
unnecessary. The Senate Intelligence Committee conducted an
extensive study of the issue, which included the review of
the relevant classified documents, numerous hearings, and
testimony. after completing this comprehensive review, the
Committee determined that providers had acted in response to
written requests or directives stating that the activities
had been authorized by the President and had been determined
to be lawful, and that the providers ``had a good faith
basis'' for responding to the requests for assistance they
received. Accordingly, the Committee agreed to the necessary
legal protections on a 13-2 vote. Similarly, the Intelligence
Committee of the House of Representatives has been
extensively briefed and has exercised thorough oversight in
regard to these intelligence matters. We also have made
extraordinarily sensitive information available to the
Judiciary Committees of both the Senate and House.
The Senate passed a prior version (S. 2248) of the current
pending bill, which included retroactive liability
protection, by a vote of 68-29. Both Houses of Congress, by
wide bipartisan margins, have now made the judgment that
retroactive liability protection is the appropriate and fair
result. The Congress has been considering this issue for over
two years and conducted extensive oversight in this area.
During this period, we have emphasized the critical nature of
private sector cooperation in protecting our national
security and the difficulties of obtaining such cooperation
while issues of liability protection remained unresolved.
Further delay will damage our intelligence capabilities.
[[Page S6401]]
Thank you for the opportunity to present our views on this
crucial bill. We reiterate our sincere appreciation to the
Congress for working with us on H.R. 6304, a long-term FISA
modernization bill that will strengthen the Nation's
intelligence capabilities while protecting the liberties of
Americans. We strongly support its prompt passage.
Sincerely,
Michael B. Mukasey,
Attorney General.
J.M. McConnell,
Director of National Intelligence.
The PRESIDING OFFICER. The Senator from New Mexico.
Mr. BINGAMAN. Mr. President, is there any time remaining on the 15
minutes that I had set aside?
The PRESIDING OFFICER. The Senator has 6 minutes remaining.
Mr. BINGAMAN. I ask the Senator from Pennsylvania that I use two of
those to respond to this latest statement. Then I will defer to him for
his statement.
Mr. President, I want to respond to the statement by the Senator from
Missouri about what all of the reports from the inspectors general
would essentially deal with. I believe he said waste, fraud, and abuse,
which is sort of the general purview of inspectors general.
That is not my understanding. I understand the inspectors general
have been asked to essentially do a review of this.
The Inspectors General of the Department of Justice, the
Office of the Director of National Intelligence, the National
Security Agency, the Department of Defense, and any other
elements of the intelligence community that participated in
the President's surveillance program--
Shall all work together to do a report which will look into--
all of the facts necessary to describe the establishment,
implementation, product, and use of the product of the
Program;
access to legal reviews of the Program and access to
information about the Program;
communications with, and participation of, individuals and
entities in the private sector related to the Program;
interaction with the Foreign Intelligence Surveillance
Court and transition to court orders related to the Program;
and
any other matters identified by any such Inspector General
that would enable that Inspector General to complete a review
of the Program with respect to such Department of element.
I believe the review we are talking about here, and that we are
legislating or proposing to legislate, is intended to tell the Congress
and tell anybody who reads the report what this program consisted of.
That is information we do not have today. And it is entirely
appropriate that we get that report before we grant immunity.
That is the thrust of my amendment, I hope all of my colleagues will
support it. I appreciate my colleague from Pennsylvania yielding me
additional time to speak in response.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. CASEY. Mr. President, I have limited time, and I know my
colleague from New Mexico, Senator Bingaman, did an excellent job of
outlining his amendment. I will skip much of what I was going to read
in my statement.
Basically, what we are talking about is a time out. We are giving the
Congress the opportunity to review the inspectors general report before
the Congress chooses to authorize limited immunity for the telecom
firms.
It is actually very simple. Basically, what we are saying is, the
amendment simply allows the Congress to say: Wait a minute. Hold on. We
should take a deep breath before we decide to authorize a Federal
district court to grant telecom firms legal immunity for their actions
related to the administration's warrantless surveillance program.
Let's figure out what this program entailed. Let's figure out what
happened. Let's figure out what the telecom firms actually did, what
they actually did when it came to wiretapping and surveillance.
So under this amendment, the pending lawsuits would remain stayed
while the inspectors general complete their report. If the firms did
nothing wrong, as they have proclaimed, they will be vindicated by the
final inspectors general report. Then the Congress will have the
confidence to grant these firms the immunity for which they ask.
So I think many Members of this body would have buyer's remorse if
they voted for limited immunity without the understanding of what the
President's surveillance program did and did not do. This amendment
would prevent that buyer's remorse by allowing the Congress to better
understand the conduct of the telecommunications firms before we decide
to grant sweeping legal immunity for such conduct.
I encourage my colleagues, all Members of the Senate, to vote for
this amendment. It strikes the right balance. It is about
accountability. It is also about the rule of law. It is a reasonable
balance to strike on very important issues, the issues of security and
how we are going to implement any kind of program which involves
wiretapping and surveillance.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, I ask Senator Bond, the vice chairman
of the committee, to yield me 10 or 11, potentially even 12 minutes.
Mr. BOND. I make a very generous allotment of 12 minutes. If he needs
more, I am anxious to hear what he has to say.
Mr. ROCKEFELLER. I appreciate my colleague yielding me time.
Mr. President, Senator Bingaman, who I greatly respect in all ways,
has offered an amendment altering the liability protections of title
II. That is it. His amendment would postpone the implementation of the
liability provisions of the bill until 90 days after the submission of
the final report of the inspectors general required under title II.
Now, I appreciate the Senator's desire to have more information out
there. But I want the Senator to contemplate, and the Senate as a whole
to contemplate, what we are asking. We are talking about a year for the
inspectors general to complete their reports.
Does it really work that way? Is it really a flat year? Are we going
to send out Federal marshals to have them all do their reports on the
exact day? Probably it will stretch a little bit. Maybe it will not;
maybe it will.
But you cannot assume it will not. Then you have to add on 90 days.
Then you can get to the question of the immunity. I am really baffled
by that because what it, in effect, says is, we are almost certainly
going to be going through a period of something, which I have not heard
discussed today during this entire debate, and that is the actual
collection of intelligence that involves highly classified material of
a foreboding nature for a long period of time until the Senator from
New Mexico and/or the Senate can be convinced that it is worthwhile to
give immunity or to understand this program.
Now, I want to make an even more basic point: By inserting this
amendment, requesting this amendment be passed, I hope the good Senator
does understand that he is undoing a very carefully calibrated
compromise between the Senate-passed bill and the House-passed bill
that is on title II, taking months and months of negotiations to get to
the point where Speaker Pelosi, for example, who was violently against
the bill, and title II in particular, and Steney Hoyer, who was very
much against title II, the immunity portion of the bill, where they
could say, on the floor of the House: We think sufficient progress has
been made in the negotiations that we will vote for this bill, which
the House did by about 70 percent.
Now, that is going from the House not even considering title II. I
mean, they considered and rejected it. It was a sea change.
It was a sea change, and one has to have been there to see how the
change took place, the good faith bargaining on the part of Vice
Chairman Bond, myself, our mutual staffs, working with the DNI and
others, long hours and long days with which we have arrived at
something which, if we pass this today, will go to the President to be
signed. If we accept this amendment or, for that matter, accept the
Specter amendment that follows, it will have to go back to the House,
which will not take it up, which will not consider it, which will undo
everything, and there will be no bill.
Is that important? Yes, it is. Why is it important? Because the
chance of not being able to collect on extremely foreboding matters
around this world will come to a halt, either because the PATRIOT Act
terms have expired or because the companies will withdraw in disgust.
In any event, the bill would be vetoed, as the vice chairman said.
[[Page S6402]]
So it would be the end of the bill. Therefore, I oppose this amendment.
As I will say about each of these amendments--well, I just did--it
undoes everything that has been done for the purpose of making a
perfecting amendment to satisfy a particular need of a particular
Senator. I also must oppose this amendment because there is no reason
for delaying the liability protection provisions. There is not a
sufficient reason. It is true the Select Committee struggled to get
access to details about the President's surveillance program for many
months, but in the end we succeeded. We went from maybe eight, more
likely four, sometimes six, to all four committees in the House and the
Senate, Judiciary and Intelligence. We heard the necessary testimony.
We went to the EOP. We read all the documents, and our chiefs of staff
were allowed to do the same thing. We read the legal reasoning used to
justify within the executive branch and the role of the private sector.
We did all of that, not only our committee but also the House
Intelligence Committee, and both Judiciary Committees spent
considerable time looking at this issue. I am satisfied we have a basis
for taking action now.
On national security grounds, we have to, in my judgment. We haven't
talked about that today. We have talked about refined points of
constitutional niceties and all the rest of it. I don't denigrate that,
but there is something called the protection of the Nation. I take that
very seriously. I take that very, very seriously. So a form of
liability protection has passed the Senate and the House of
Representatives a total of three times, once in the Senate and twice in
the House. We should not now reverse these actions by passing the
provisions of suspension.
Let me be clear. I strongly support the requirement in this bill for
a comprehensive review of the President's surveillance program by the
inspectors general. They will be very tough and very thorough and
embarrass a lot of people. A report on their general review is one of
the best ways to inform the American people about the facts. Litigation
is an imperfect mechanism to bring facts to the public, rather a
terrible mechanism, because of something called the State secrets
privilege which is involved, which means the people can't know
anything, that a lot of people dealing with the court can't know
anything, that the companies can't know anything. It is a closedown.
People have to understand that. It is not an open court. You are not
getting a traffic ticket. It is a highly complex, nuanced matter which
is rigidly guarded by rules. You could argue the rules, but there they
are. Unfortunately, if this amendment passes, the fact that litigation
is still pending may have the effect of limiting the amount of
information that will be released to the public in the report of the
inspectors general, the opposite of what the distinguished Senator
wants. Certain facts that might be releasable if the litigation were
resolved might be held back, if the Government anticipated a continuing
need to assert the State secrets privilege in litigation, which it
would.
It is also important to note that this amendment, if it were to pass,
the liability protection provisions that the Senator is trying to get
at would not go away. In other words, if his amendment passed and we
took this long delay, nothing would affect the progress of the
liability legislation and that possibility. So it is an amendment which
doesn't accomplish anything. The provisions would still go into effect
after 90 days, unless new legislation is passed. Let's hope that
doesn't happen. The new Congress, thus, might be launched into a
contentious debate next summer, instead of working with the new
President on a new agenda. That is the point of the Cardin amendment,
that the date was changed to December 2012, so that the next President,
whoever it might be--it is very close--will have a chance to review and
perhaps act upon what we have done here in the next term, which is
good. I urge defeat of the amendment.
I have one more thing to say, with the indulgence of my colleague.
The senior Senator from Pennsylvania and I were engaged in earlier
debate over the access Senators have had, both with myself and with the
vice chairman, to the Government letter sent to the telecommunications
companies requesting their cooperation during the period of 9/11 to
January of 2007. The Senator from Pennsylvania lamented the fact that
these documents were kept to only the members of the Intelligence and
Judiciary Committees and not shared with the full Senate.
I share the view of the Senator that these documents should be viewed
by all Senators, and I have advocated this very position to senior
officials of the Bush administration for many months. But recognizing
the administration's unwillingness to extend this access, the Senate
Intelligence Committee did the next best thing. We were able to get
declassified the relevant facts upon which the committee and,
ultimately, the full Senate reached the judgment that a narrowly drawn
immunity bill remedy might be appropriate.
For the record, our committee report, 110-209, accompanying S. 2248,
the FISA amendments----
The PRESIDING OFFICER. The time of the Senator has expired.
Mr. ROCKEFELLER. I ask unanimous consent for 1 additional minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. And dated October 26, 2007, includes a lengthy
declassified explanation of the committee's review and conclusions as
well as a description of the representations made by the Government in
the letters sent to the companies during the period of time covered by
the bill. So for the past 8 months, this public report has been
available not only to all Senators--here it is, I have labeled it,
pages 8 through 12, right here--but to the general public as well.
I ask unanimous consent that that portion be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Title II of the FISA Amendments Act of 2007
Title II of this bill reflects the Committee's belief that
there is a strong national interest in addressing the extent
to which the burden of litigation over the legality of
surveillance should fall on private parties. Based on a
review of both current immunity provisions and historical
information on the President's program, the Committee
identified three issues relating to the exposure of
electronic communication service providers to liability that
needed to be addressed in this bill.
First, the Committee considered the exposure to liability
of providers who allegedly participated in the President's
surveillance program. Second, the Committee considered the
absence, in current law, of a procedural mechanism that would
give courts an appropriate role in assessing statutory
immunity provisions that would otherwise be subject to the
state secrets privilege. Third, the Committee sought to
clarify the role of state public utility commissions in
regulating electronic communication service providers'
relationships with the intelligence community. The Committee
addressed these three issues, respectively, in sections 202,
203, and 204 of the bill.
RETROACTIVE IMMUNITY
Sections 201 and 202 of the bill provide focused
retroactive immunity for electronic communication service
providers that were alleged to have cooperated with the
intelligence community in implementing the President's
surveillance program. Only civil lawsuits against electronic
communication service providers alleged to have assisted the
Government are covered under the provision. The Committee
does not intend for this section to apply to, or in any way
affect, pending or future suits against the Government as to
the legality of the President's program.
Section 202 was narrowly drafted to apply only to a
specific intelligence program. Section 202 therefore provides
immunity for an intelligence activity involving
communications that was designed to detect or prevent a
terrorist attack, or activities in preparation for a
terrorist attack, that was authorized in the period
between September 11, 2001 and January 17, 2007, and that
was described in written requests to the electronic
communication service provider as authorized by the
President and determined to be lawful.
The extension of immunity in section 202 reflects the
Committee's determination that electronic communication
service providers acted on a good faith belief that the
President's program, and their assistance, was lawful. The
Committee's decision to include liability relief for
providers was based in significant part on its examination of
the written communications from U.S. Government officials to
certain providers. The Committee also considered the
testimony of relevant participants in the program.
The details of the President's program are highly
classified. As with other intelligence matters, the
identities of persons or entities who provide assistance to
the U.S. Government are protected as vital sources and
methods of intelligence. But it reveals no secrets to say--as
the Foreign Intelligence Surveillance Act, this bill, and
Title 18 of the U.S. Code all make clear--that electronic
[[Page S6403]]
surveillance for law enforcement and intelligence purposes
depends in great part on the cooperation of the private
companies that operate the Nation's telecommunication system.
It would be inappropriate to disclose the names of the
electronic communication service providers from which
assistance was sought, the activities in which the Government
was engaged or in which providers assisted, or the details
regarding any such assistance. The Committee can say,
however, that beginning soon after September 11, 2001, the
Executive branch provided written requests or directives to
U.S. electronic communication service providers to obtain
their assistance with communications intelligence activities
that had been authorized by the President.
The Committee has reviewed all of the relevant
correspondence. The letters were provided to electronic
communication service providers at regular intervals. All of
the letters stated that the activities had been authorized by
the President. All of the letters also stated that the
activities had been determined to be lawful by the Attorney
General, except for one letter that covered a period of less
than sixty days. That letter, which like all the others
stated that the activities had been authorized by the
President, stated that the activities had been determined to
be lawful by the Counsel to the President.
The historical context of requests or directives for
assistance was also relevant to the Committee's determination
that electronic communication service providers acted in good
faith. The Committee considered both the extraordinary nature
of the time period following the terrorist attacks of
September 11, 2001, and the fact that the expressed purpose
of the program was to ``detect and prevent the next terrorist
attack'' in making its assessment.
On the basis of the representations in the communications
to providers, the Committee concluded that the providers, in
the unique historical circumstances of the aftermath of
September 11, 2001, had a good faith basis for responding to
the requests for assistance they received. Section 202 makes
no assessment about the legality of the President's program.
It simply recognizes that, in the specific historical
circumstances here, if the private sector relied on written
representations that high-level Government officials had
assessed the program to be legal, they acted in good faith
and should be entitled to protection from civil suit.
The requirements of section 202 reflect the Committee's
determination that cases should only be dismissed when
providers acted in good faith. Section 202 applies only to
assistance provided by electronics communication service
providers pursuant to a ``written request or directive from
the Attorney General or the head of an element of the
intelligence community. . . that the program was authorized
by the President and determined to be lawful.''
Section 202 also preserves an important role for the
courts. Although the bill reflects the Committee's
determination that, if the requirements of section 202 are
met, the provider acted in good faith, the section allows
judicial review of whether the Attorney General has abused
the discretion provided by statute in certifying that a
provider either furnished no assistance or cooperated with
the Government under the terms referenced in the section.
In determining whether to provide retroactive immunity, the
Committee weighed the incentives such immunity would provide.
As described above, electronic communication service
providers play an important role in assisting intelligence
officials in national security activities. Indeed, the
intelligence community cannot obtain the intelligence it
needs without assistance from these companies. Given the
scope of the civil damages suits, and the current spotlight
associated with providing any assistance to the intelligence
community, the Committee was concerned that, without
retroactive immunity, the private sector might be unwilling
to cooperate with lawful Government requests in the future
without unnecessary court involvement and protracted
litigation. The possible reduction in intelligence that might
result from this delay is simply unacceptable for the safety
of out Nation.
At the same time, the Committee recognized that providers
play an essential role in ensuring that the Government
complies with statutory requirements before collecting
information that may impact the privacy interests of U.S.
citizens. Because the Government necessarily seeks access to
communications through the private sector, providers have the
unparalleled ability to insist on receiving appropriate
statutory documentation before agreeing to provide any
assistance to the Government.
The Committee sought to maintain the balance between these
factors by providing retroactive immunity that is limited in
scope. The provision of retroactive immunity was intended to
encourage electronic communication service providers who
acted in good faith in the particular set of circumstances at
issue to cooperate with the Government when provided with
lawful requests in the future. Restricting that immunity to
discrete past activities avoids disrupting the balance of
incentives for electronic communication service providers to
require compliance with statutory requirements in the future.
Under this bill and existing statutory provisions, providers
will only be entitled to protection from suit for their
future activities if they ensure that their assistance is
conducted in accordance with statutory requirements.
The Committee believes that adherence to precise, existing
statutory forms is greatly preferred. This preference is
reflected in section 203 of the bill, which establishes
procedures by which civil actions against those who assist
the Government shall be dismissed upon a certification by
the Attorney General that any assistance had been provided
pursuant to a court order or a statutorily-prescribed
certification or directive. The action the Committee
proposes for claims arising out of the President's program
should be understood by the Executive branch and providers
as a one-time response to an unparalleled national
experience in the midst of which representations were made
that assistance to the Government was authorized and
lawful.
PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES
Section 203 of this bill provides a procedure that can be
used in the future to seek dismissal of a suit when a
defendant either provided assistance pursuant to a lawful
statutory requirement, or did not provide assistance. This
section, a new section 802 of FISA, reflects the Committee's
recognition that the identities of persons or entities who
provide assistance to the intelligence community are properly
protected as sources and methods of intelligence.
Under the existing statutory scheme, wire or electronic
communication providers are authorized to provide information
and assistance to persons with authority to conduct
electronic surveillance if the providers have been provided
with (1) a court order directing the assistance, or (2) a
certification in writing signed by the Attorney General or
certain other officers that ``no warrant or court order is
required by law, that all statutory requirements have been
met, and that the specific assistance is required.'' See 18
U.S.C. 2511(2)(a)(ii). Current law therefore envisions that
wire and electronic communication service providers will play
a lawful role in the Government's conduct of electronic
surveillance.
Section 2511(2)(a)(ii) protects these providers from suit
as long as their actions are consistent with statutory
authorizations. Once electronic communication service
providers have a court order or certification, ``no cause of
action shall lie in any court against any provider of wire or
electronic communication service . . . for providing
information, facilities, or assistance in accordance with the
terms of a court order, statutory authorization, or
certification under this chapter.'' Id. The Protect America
Act and Title I of this bill provide similar protections from
suit for providing information or assistance in accordance
with statutory directives. All of these immunity provisions
are designed to ensure that wire and electronic communication
service providers assist the Government with electronic
surveillance activities when necessary, and recognize the
good faith of those providers who assist the Government in
accordance with the statutory scheme.
To the extent that any existing immunity provisions are
applicable, however, providers have not been able to benefit
from the provisions in the civil cases that are currently
pending. Because the Government has claimed the state secrets
privilege over the question of whether any particular
provider furnished assistance to the Government, an
electronic communication service provider who cooperated with
the Government pursuant to a valid court order or
certification cannot prove it is entitled to immunity under
section 2511(2)(a)(ii) without disclosing the information
deemed privileged by the Executive branch. Thus, electronic
communication providers are prohibited from seeking immunity
under section 2511(2)(a)(ii) for any assistance they may have
provided to the intelligence community, with the approval
of the FISA Court, after January 17, 2007. Providers who
did not assist the Government are similarly unable to
extract themselves from ongoing litigation, because the
assertion of the state secrets privilege makes it
impossible for them to demonstrate their lack of
involvement.
By addressing the situation in which an entity is
prohibited from taking advantage of existing immunity
provisions because of Government restrictions on disclosure
of the information, Section 203 seeks to ensure that existing
immunity provisions have their intended effect. The Committee
also intends to reassure providers that as long as their
assistance to the Government is conducted in accordance with
statutory requirements, they will be protected from civil
liability and the burden of further litigation.
The procedure in section 203 allows a court to review a
certification as to whether an individual either assisted the
Government pursuant to a lawful statutory requirement or did
not assist the Government, even when public disclosure of
such facts would harm the national security. Because an
assertion of state secrets over the same facts would likely
prevent all judicial review over whether, and under what
authorities, an individual assisted the Government, this
provision serves to expand judicial review to an area that
may have been previously non-justiciable. In addition, the
statute explicitly allows the court to review for abuse of
discretion the Attorney General's certification that a person
either did not assist the Government or cooperated with the
Government pursuant, to statutory requirements.
[[Page S6404]]
PREEMPTION
Section 204 of the bill preempts state investigations or
required disclosure of information about the relationship
between individual electronic communication service providers
and the intelligence community. The provision reflects the
Committee's view that, although states play an important role
in regulating electronic communication service providers,
they should not be involved in regulating the relationship
between electronic communication service providers and the
intelligence community.
Mr. ROCKEFELLER. I hope very much that the Senator's amendment will
be defeated. I thank the Chair.
Mr. BOND. I suggest the absence of a quorum and ask unanimous consent
that the time be charged equally to both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. ROCKEFELLER. I ask unanimous consent that the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. Mr. President, with the goodwill of the vice
chairman, he has granted me a couple of moments to enter a couple
documents in the Record. We have had several good days of debate or
good hours of debate on the FISA bill going back to before the recess.
I guess that would be several months. In the course of a discussion of
a bill as lengthy and complex as this, several arguments have been made
that warrant response, but there isn't always time to give the
response. In the interest of establishing an accurate legislative
history to accompany the bill, as manager of the bill, I ask unanimous
consent to print in the Record a statement providing such
clarifications and corrections.
There being no objection, the material was ordered to be printed in
the Record, as follows:
H.R. 6304, FISA Amendments Act of 2008, Response to Various Points in
Pre-Recess Debate, July 8, 2008
Mr. President, prior to the recess, we had several good
days of debate on the FISA bill. Inevitably, in the course of
discussion of a bill as lengthy and detailed as this, several
arguments have been made that warrant a response in the
interest of an accurate legislative history. As a manager of
the bill, I would like to take a few moments to clear up
several matters.
Exclusivity
Sections 102(a) and (b) are the bill's main exclusivity
provisions. Section 102(a) strengthens present exclusivity
law by providing, in a new section 112 of FISA, that only an
express statutory authorization for electronic surveillance
or the interception of domestic communications shall
constitute an exclusive means in addition to specifically
listed statutes. Section 102(b) amends section 109 of FISA,
the Act's key criminal offense provision, so that the
criminal offense and the exclusivity provision dovetail
exactly.
These main parts of section 102 are well understood. There
has been some confusion, however, about a conforming
amendment in section 102(c), which performs a useful but
distinctly minor role in the overall exclusivity section.
Section 102(c) adds a detail to the section of the U.S.
criminal code (18 USC 2511), which gives immunity from suit
to companies who have received a certification from the
Attorney General. It requires the Government to identify in
the certification the specific statutory provision that
authorizes the company's assistance ``if a certification . .
. for assistance to obtain foreign intelligence information
is based on statutory authority.''
Several colleagues have suggested, or at least strongly
intimated, that this language acknowledges the President's
constitutional authority to conduct warrantless surveillance
of the kind involved in the President's Terrorism
Surveillance Program. Any such argument is inconsistent with
both the language of the provision and the intent of its
drafters.
To understand the purpose of section 102(c), we need to
look at the course of negotiations about it. In its proposed
amendment to our Intelligence Committee bill, the Senate
Judiciary Committee recommended the following language: ``A
certification . . . for assistance to obtain foreign
intelligence information shall identify the specific
provision of the Foreign Intelligence Surveillance Act of
1978 . . . that provides an exception from providing a court
order, and shall certify that the statutory requirements of
such provision have been met.''
As the Judiciary Committee pointed out in its report, this
language responded to the need of providers to have clarity
regarding the legality of their actions and entitlement to
immunity.
After the Judiciary Committee sequentially reported our
bill, there were extensive discussions with the
administration about this language. In the course of those
discussions, the Department of Justice noted that FISA, as
drafted in 1978, was only intended to regulate particular
activities, those that constitute ``electronic
surveillance,'' a term that is carefully defined in FISA.
Indeed, the nuance in FISA's definition of electronic
surveillance, as well as its very detailed parameters, led us
to decide not to alter the definition of electronic
surveillance in FISA in this compromise bill. Activities that
do not constitute electronic surveillance within the meaning
of FISA, or the interception of domestic wire, oral or
electronic communications, were not restricted by FISA's
original exclusivity provision and the same will be true
under this bill. Thus, theoretically there may be activities
that fall outside of the statute's restrictions but are not
subject to an explicit statutory ``exception from providing a
court order,'' as that term was used in the Judiciary
Committee amendment.
These discussions led to the language in the current bill,
which was included as part of Senator Feinstein's exclusive
means amendment in the original Senate debate in February.
The amendment was intended to ensure that the provider has as
much information as possible, while still recognizing that,
going back to the birth of FISA, activities may be conducted
side-by-side with FISA, although not under the authority of
FISA, if they do not fall within FISA's definition of
electronic surveillance.
Section 102(c) was not intended to permit, and its language
would not permit, any activities that would violate the main
parts of the exclusive means provision, whatever the legal
justification. Any suggestion that Congress would take away
in a conforming amendment the central achievement of the
overall exclusivity section makes no sense.
Indeed, the bill makes it painstakingly clear: any person
who engages in electronic surveillance outside of FISA or the
U.S. criminal code is committing a criminal offense. Given
this statutory requirement, the Attorney General cannot
lawfully certify that electronic surveillance outside of FISA
satisfies ``all statutory requirements,'' as is required and
will continue to be required for a certification in section
2511 of title 18.
Whether or not the President has constitutional authority
to conduct surveillance--and there is widespread disagreement
here on that point--the language of section 102(c) simply
cannot be read to recognize any authority to conduct
electronic surveillance that is inconsistent with FISA.
Assessment of Compliance
In debate on the bill, the question has been raised whether
the decision not to include in the final compromise a
provision specifically addressing the authority of the FISA
court to assess compliance with minimization procedures in
section 702 represents a determination that the court should
not have that authority.
Minimization procedures are specific procedures that are
reasonably designed to minimize acquisition and retention,
and prohibit dissemination, of nonpublic information
concerning United States persons consistent with the need to
obtain, produce, and disseminate foreign intelligence
information. Compliance with them is central to the
protection of the privacy of Americans. The Protect America
Act failed to provide for court review and approval of
minimization procedures. This bill corrects that omission.
The PAA also failed to provide for rules on the use of
information acquired under it. This bill corrects that
omission by making section 106 of FISA applicable to
collection under its foreign targeting provisions. That
section explicitly mandates that federal employees may only
use or disclose information concerning U.S. persons in
accordance with required minimization procedures.
Although section 702 does not have a provision that
mandates compliance reviews, as the original House bill
contained, the bill before us today recognizes the authority
of the FISA court to assess compliance with the procedures
that it has approved. The courts of the United States are not
advisory bodies. All of them, including the FISA court, have
the inherent authority of any other court that exercises the
judicial power of the United States to ensure that the
parties before them are complying with their orders and the
procedures they approve.
An amendment to the original bill that was offered by
Senator Whitehouse, who had strongly advocated on the Senate
floor in support of judicial review of compliance with
minimization procedures, makes the Congress's recognition of
this inherent court authority clear. That language, which the
Senate adopted by unanimous consent and which is section
109(d) in the final bill, specifically states that no
provision of FISA will be construed to reduce or contravene
the inherent authority of the FISA court ``to determine or
enforce compliance with an order or rule of such court, or
with a procedure approved by such court.''
The decision in negotiating the compromise of this bill not
to include in section 702 a separate provision for
minimization compliance reviews by the court, should be
understood, as we understood in the Senate when considering
Senator Whitehouse's amendment, to represent satisfaction
that the amendment adequately recognizes the authority of the
FISA court to assess compliance.
Exigent Circumstances
The next issue that deserves clarification is the exigent
circumstances exception to prior court approval. The bill
requires the
[[Page S6405]]
Government to obtain prior court approval of targeting and
minimization procedures before beginning collection under the
new procedures. There is one exception to this requirement:
in exigent circumstances, the Attorney General and Director
of National Intelligence may authorize collection to begin
immediately.
In section 702(c)(2), the bill describes an exigent
circumstances determination to be ``a determination by the
Attorney General and the Director of National Intelligence
that exigent circumstances exist because, without immediate
implementation of an authorization under subsection (a) [of
section 702], intelligence important to the national security
may be lost or not timely acquired and time does not permit
the issuance of an order pursuant to subsection (i)(3) prior
to the implementation of such authorization.''
In both Houses, there has been some discussion about the
meaning of the phrase ``exigent circumstances'' and the
expectations of Members about the use of this authority.
While the bill does not define the phrase ``exigent
circumstances'' standing alone, it does describe the limits
of the appropriate use of the authority: a determination by
the Nation's highest law enforcement official, the Attorney
General, and highest intelligence official, the DNI, that (a)
without immediate implementation ``intelligence important to
the national security may be lost or not timely acquired''
and (b) time does not permit the issuance of a FISA court
approval order prior to implementation.
To the extent that auxiliary aids are needed to assist in
defining ``exigent circumstances,'' at least three are
available.
First, section 702 as a whole demonstrates the clear intent
of Congress that prior judicial approval is strongly
preferred. To the extent practicable, the Government's
submissions of certifications and procedures to the FISA
court with regard to annual authorizations shall precede the
effective date of those authorizations by at least 30 days.
On receiving Government submissions, the FISA court is to
complete action on them within 30 days unless the court
exercises its limited extension authority.
Those provisions, working together, implement the design of
the Congress to ensure that judicial review will ordinarily
precede implementation. The benefit of doing so is obvious.
The intelligence community, telecommunication providers who
are asked to implement Government directives, and the
American public will be assured that the procedures and
certifications that ensure the lawfulness of collection have
been approved before collection begins. In light of the
centrality of prior review in section 702, and the
significant benefits flowing from it, exceptions should be
rare.
Second, if more is needed to define ``exigent
circumstances,'' the dictionary definition of ``exigent'' is
a tool of first resort outside the text and structure of the
Act. For example, the Random House College Dictionary defines
``exigent'' as ``requiring immediate action or aid; urgent,
pressing.'' ``Urgent'' in turn is defined as ``pressing,
compelling or requiring immediate action or attention;
imperative.''
Third, the interpretation of the bill by agencies charged
with its administration is an acknowledged guide,
particularly, as here, where that interpretation has been
offered to the Congress in the course of the legislative
process. In writing to the Speaker on June 19, the Attorney
General and the DNI explained: ``The exigent circumstances
exception is critical to allowing the Intelligence Community
to respond swiftly to changing circumstances when the
Attorney General and the Director of National Intelligence
determine that intelligence may be lost or not timely
acquired. Such exigent circumstances could arise in certain
circumstances where an unexpected gap has opened in our
intelligence collection efforts.''
The recognition that the ``exigent circumstances''
provision is an ``exception'' to prior court approval that it
is applicable to ``changing circumstances'' and ``unexpected
gaps,'' when considered in the light of the text and
structure of section 702 and the ordinary meaning of
``exigent,'' all convey, as I believe, that this authority
should be used only rarely, when urgent and unexpected action
is truly required.
We intend to monitor the use of this authority carefully,
so that we can address any abuses at the time of the sunset,
if necessary.
Title II--Documentary Support for Attorney General Certification
During the pre-recess debate, a suggestion was made that
the bill establishes clear limits on what documents the
district court may review in determining whether substantial
evidence supports a certification by the Attorney General on
a provider's entitlement to immunity.
The burden is on the Attorney General to provide to the
court the equivalent of an administrative record that
satisfies the substantial evidence test. While I agree that
the parties cannot seek discovery to provide the court with
information as to whether the substantial evidence test is
met, the bill does not limit what the Attorney General may
submit, in his or her discretion, to provide substantial
evidence to support the certification.
A certification under section 802 shall be given effect
unless the court, in accordance with subsection (b), finds
that it is not supported by substantial evidence ``provided
to the court pursuant to this section.'' The phrase ``this
section'' covers the entire section. Thus, the scope of the
evidence that the Attorney General may submit to sustain the
substantial evidence burden is not dependent on any
particular subsection of section 802 but is drawn from the
entirety of the section including, importantly, all of the
substantive requirements for the implementation of liability
protection.
Section 802(b)(2) provides that in reviewing a
certification under section 802 the court may examine the
court order, certification, written request, or directive
described in the substantive provisions of section 802. This
authority ensures that the court will be able to examine
those documents. But it does not limit the Attorney General
to those documents in supporting a certification under
section 802. For example, the Attorney General may determine
that providing substantial evidence to support a
certification that a person did not provide assistance
requires evidence that is not included in communications with
that person. Section 802 therefore should not be read as a
limit on what may be submitted to the court by the Attorney
General. As for the method by which additional information
may be provided, section 802 imposes no limit on what the
Attorney General may include within a certification or
annexed to it.
Mr. ROCKEFELLER. I also point out, there was an op-ed piece in
support of the FISA bill in today's New York Times which I call to the
attention of my colleagues. It was written by Mr. Morton Halperin and
entitled ``Listening to Compromise.'' Mr. Halperin, in addition to
being executive director of the Open Society Policy Center, has a
lengthy career of public service in both Democratic and Republican
administrations.
Mr. President, I ask unanimous consent to have printed in the Record
Mr. Halperin's op-ed in support of the bill as it appeared in today's
New York Times.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, July 8, 2008]
Listening to Compromise
(By Morton H. Halperin)
Two years ago, I stated my belief that the Bush
administration's warrantless wiretapping program and
disregard for domestic and international law poses a direct
challenge to our constitutional order, and ``constitutes a
far greater threat than the lawlessness of Richard Nixon.''
That was not a casual comparison. When I was on the staff
of the National Security Council, my home phone was tapped by
the Nixon administration--without a warrant--beginning in
1969. The wiretap stayed on for 21 months. The reason? My
boss, Henry Kissinger, and the director of the F.B.I., J.
Edgar Hoover, believed that I might have leaked information
to this newspaper. Even after I left government, and went to
work on Edmund Muskie's presidential campaign, the F.B.I.
continued to listen in and made periodic reports to the
president.
I was No. 8 on Richard Nixon's ``enemies list''--a strange
assemblage of 20 people who had incurred the White House's
wrath because they had disagreed with administration policy.
As the presidential counsel John Dean explained it in 1971,
the list was part of a plan to ``use the available federal
machinery to screw our political enemies.'' My guess is that
I earned this dubious distinction because of my opposition to
the Vietnam War, though no one ever said for sure.
Because I rejected the Nixon administration's use of
national security as a pretext for broad assertions of
unchecked executive power, I became engaged with the Foreign
Intelligence Surveillance Act when it was proposed in the
early 1970s. And because I reject the Bush administration's
equally extreme assertions of executive power at the expense
of civil liberties, I have been engaged in trying to improve
the current legislation.
The compromise legislation that will come to the Senate
floor this week is not the legislation that I would have
liked to see, but I disagree with those who suggest that
senators are giving in by backing this bill.
The fact is that the alternative to Congress passing this
bill is Congress enacting far worse legislation that the
Senate had already passed by a filibuster-proof margin, and
which a majority of House members were on record as
supporting.
What's more, this bill provides important safeguards for
civil liberties. It includes effective mechanisms for
oversight of the new surveillance authorities by the FISA
court, the House and Senate Intelligence Committees and now
the Judiciary Committees. It mandates reports by inspectors
general of the Justice Department, the Pentagon and
intelligence agencies that will provide the committees with
the information they need to conduct this oversight. (The
reports by the inspectors general will also provide
accountability for the potential unlawful misconduct that
occurred during the Bush administration.) Finally, the bill
for the first time requires FISA court warrants for
surveillance of Americans overseas.
As someone whose civil liberties were violated by the
government, I understand this legislation isn't perfect. But
I also believe--and here I am speaking only for myself--that
it represents our best chance to protect I
[[Page S6406]]
both our national security and our civil liberties. For that
reason, it has my personal support.
Mr. ROCKEFELLER. Mr. President, I thank the Presiding Officer and
yield the floor.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. LEAHY. Mr. President, I would like to speak for a little while
about one part of the bill, and I will have more to say tomorrow. I
strongly oppose the blanket grant of immunity that is contained in this
bill. I would hope Senators would reject what is an ill-advised
legislative effort to engineer specific outcomes in ongoing Federal
judicial proceedings. Basically, we are telling another branch of
Government: Here is the way you have to come out in your decisions.
There is a way to cure that problem. Instead of the Congress telling
the courts how they have to rule, we could adopt the Dodd-Feingold-
Leahy amendment to strike title II from the bill. This would strike the
retroactive immunity provisions, and it would allow for accountability
for those who violated Americans' rights and violated the law. It would
send a strong message that no one stands above the law in the United
States.
I am not out to get the telephone companies. I just want us to know
who it was in the administration who said: You may break the law. The
American people ought to know who in the White House said, ``You may
break the law,'' who it was who made the decision that somehow this
President stands above the law.
The administration circumvented the law by conducting warrantless
surveillance of Americans for more than 5 years. They were breaking the
law, and then they got caught. The press reported this illegal conduct
in late 2005. The Republican-controlled Congress did not ask the
questions to find it out. The press found it out. Had they not done so,
I have to assume this unlawful surveillance would still be going on
today.
When the public found out that the Government had been spying on the
American people outside of FISA for years, the Government and the
providers were sued by citizens who believed their privacy rights were
violated. They said: You are violating our privacy. We want you to be
held accountable. But, of course, that is why the Founders created a
system of Federal courts through the Constitution--so people can assert
their rights before a fair and neutral tribunal without interference
from the other branches of Government, so they have some way to say: I
am not a Democrat. I am not a Republican. I am not rich. I am not poor.
I am an American. I am seeking to have my rights upheld.
Title II of this bill would effectively terminate these lawsuits and
those rights. It seeks to reduce the role of the court to a rubber
stamp. So long as the Attorney General certifies that the Government
requested the surveillance and indicated that it had been ``determined
to be lawful,'' the cases will be dismissed and everybody is off the
hook. It is not the court that says whether you followed the law. No,
this bill allows the government to say: Oh, you are looking at us? Ah,
we certify we followed the law. So, therefore, you courts have to let
us off the hook because, after all, we said, whether we broke the law
or not, we are following the law, so we are home free.
That is not a meaningful judicial inquiry. Thinking back to my days
as a prosecutor in Vermont, that would be as if the police caught
someone in a burglary, I charged them, and the defendant then told the
judge: But I have determined that for me, your Honor, the burglary laws
do not apply, so you have to let me go. I can't be prosecuted. I can't
be held accountable. Nobody would take that seriously. We should not
take this seriously. We should not do something that does not give the
plaintiffs their day in court. It is not just a heavy thumb on the
scales of justice; it is a whole hand and an arm on the scales of
justice, and I cannot support it.
If we look at the publicly available information about the
President's program, it becomes clear that title II is designed to tank
these lawsuits, pure and simple, but then to allow the administration
to avoid any accountability for their actions. The Senate Intelligence
Committee said in a report last fall that the providers received
letters from the Attorney General stating that the activities had been
``authorized by the President'' and ``determined to be lawful.''
Guess what. These are precisely the ``magic'' words that will
retroactively immunize the providers under title II of this bill. Mr.
President, the fix is in. The bill is rigged, based on what we already
know, to ensure that the providers get immunity and the cases get
dismissed.
What it says is, if you are in charge, you can just go out and break
the law, and then when they look at you, send a letter to the court
saying: I have determined that when I broke the law, I did not really
break the law, so you have to let me off the hook.
Lewis Carroll once wrote a book about that. I think it was called
``Alice in Wonderland.'' So what if Americans' rights were violated. So
what if statutes were violated. So what if those privacy-protecting
statutes provide for damages. This bill makes our courts the
handmaidens to a coverup, and it is wrong. It tells the courts--the
U.S. Federal courts--it tells them: Take part in a coverup. I cannot
support something that does that. It is wrong.
Make no mistake, if title II becomes law, there will be no
accountability for this administration's actions in a court of law. We
would take away the only viable avenue for Americans to seek redress
for harms to their privacy and liberties.
Those who claim that American citizens can still pursue their privacy
claims against the Government know that sovereign immunity is a
roadblock. They know that cases against the Government have already
been dismissed for lack of standing. They know about the Government's
ability to assert the state secrets doctrine and various other legal
defenses and protections for Government officials. They know these
suits will go nowhere. They know, and it is wrong for them to suggest
otherwise. This is a red herring if there ever was one.
The report of the Select Committee on Intelligence in connection with
its earlier version of the bill that also included retroactive immunity
is telling. The Select Committee on Intelligence wrote:
The Committee does not intend for this section to apply to,
or in any way affect, pending or future suits against the
Government as to the legality of the President's program.
And later wrote:
Section 202 makes no assessment about the legality of the
President's program.
But neither that bill nor this one makes any allowance for such suits
against the Government to proceed to a decision on its merits. That is
precisely what is lacking in this measure: an avenue to obtain judicial
review and accountability.
Now, those who support retroactive immunity for the
telecommunications carriers and dismissal of the suits against them
without providing an effective avenue to challenge the program or
obtain judicial review of its legality--well, what they are doing is
supporting unaccountability, pure and simple. They are saying:
Everybody is off the hook. I am not out to get the telephone companies.
All I want to know is, who in our Government said: You may break the
law. And this bill is going to make sure we never find out.
In fact, the case that did proceed to decision in the Federal court
in Michigan was appealed by the Government, was vacated and dismissed
for lack of ``standing.'' So the judicial decision on the merits that
the President's program of warrantless wiretapping of Americans was a
violation of law and the Constitution was effectively wiped from the
books.
I note again that the proponents of this retroactive immunity have
not and cannot say that the administration acted lawfully. They do not
say the administration acted lawfully because they know the
administration did not act lawfully.
Even if one believes the telephone companies merit protection, there
is simply no good reason why Congress must act now to deal with the
issue of the ongoing lawsuits against providers. The claim that these
lawsuits will somehow ``bankrupt'' the providers is belied by the
record demonstrating the financial health of these companies today
despite the ongoing litigation.
Even the most alarmist critics of the lawsuits acknowledge it would
be years
[[Page S6407]]
and probably at least two trips to the U.S. Supreme Court before we
have any enforceable final judgments.
If there is such a risk, well, what does that say? It says there were
violations and that people's rights were violated. Now, I have said
before that I would support the Government stepping into the shoes of
these defendants, of these telephone companies, if we want to protect
them. It is simple. If you are that concerned about the telephone
companies, exclude them. Substitute the U.S. Government. But we should
not protect them if the cost of protecting them is all accountability
and the cost of never getting a judicial determination on the merits of
the cases whether the Government violated the law.
Americans have a right to know.
The PRESIDING OFFICER. The Senator's 10 minutes have expired.
Mr. LEAHY. Mr. President, I ask unanimous consent for an additional
30 seconds.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. LEAHY. I believe the rule of law is important. I trust our courts
to handle even the most difficult and sensitive disputes. That is the
courts' role in our constitutional scheme, not ours. Title II of this
bill would have Congress decide these cases by legislative fiat.
We do not want to diminish our Federal judiciary and risk selling out
large numbers of Americans whose fundamental rights may have been
violated. We should not pass this bill unamended. I urge my colleagues
to cast a vote for accountability and support the Dodd-Feingold-Leahy
amendment.
I strongly oppose the immunity provisions contained in this bill, and
I have supported every effort to strike them. But if we cannot
eliminate these ill-advised provisions, then I agree that Senator
Bingaman's amendment to delay a decision on immunity until after the
inspectors general have conducted their review of the warrantless
surveillance program makes good sense.
I worked hard to include the inspectors general amendment as a part
of this FISA bill. For that provision to have its full effect, we
should delay any grant of retroactive immunity until we know what the
final report says.
Senator Bingaman's amendment would stay all pending cases against the
telecom companies related to the warrantless surveillance program and
delay the effective date of the immunity provisions in title II of the
bill until 90 days after Congress receives the inspectors general
reports.
I have maintained throughout this debate that it makes little sense
for Senators--many who have never been given the opportunity to view
key documents relevant to the warrantless surveillance program--to cast
an uninformed vote on retroactive immunity. That is buying a pig in a
poke. To mix farm metaphors, the Bingaman amendment puts the horse back
in front of the cart.
First, let's get the facts. And then, only after reviewing the
relevant facts that the administration claims support granting
retroactive immunity, determine whether Congress should attempt to
legislatively determine the result of the 40 or so Federal cases
alleging violations of fundamental rights of Americans.
Again, I believe the retroactive immunity provisions in this bill
should be stripped entirely. But if that cannot be accomplished, then I
support Senator Bingaman's amendment as a commonsense way to ensure
that the Senate makes a fully informed decision on retroactive
immunity.
I yield the floor.
Mr. BOND. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. SPECTER. Mr. 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. 5059
Mr. SPECTER. Mr. President, I now call up my amendment No. 5059.
The PRESIDING OFFICER. Without objection, the pending amendment is
set aside.
The clerk will report.
The legislative clerk read as follows:
The Senator from Pennsylvania [Mr. Specter] proposes an
amendment numbered 5059.
Mr. SPECTER. Mr. President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To limit retroactive immunity for providing assistance to the
United States to instances in which a Federal court determines the
assistance was provided in connection with an intelligence activity
that was constitutional)
On page 90, strike lines 17 through 21 and insert the
following:
``(1) Review of certifications.--
``(A) In general.--Except as provided in subparagraph (B),
a certification under subsection (a) shall be given effect
unless the court finds that such certification is not
supported by substantial evidence provided to the court
pursuant to this section.
``(B) Covered civil actions.--In a covered civil action
relating to assistance alleged to have been provided in
connection with an intelligence activity involving
communications that was authorized by the President during
the period beginning on September 11, 2001, and ending on
January 17, 2007, a certification under subsection (a) shall
be given effect unless the court--
``(i) finds that such certification is not supported by
substantial evidence provided to the court pursuant to this
section; or
``(ii) determines that the assistance provided by the
applicable electronic communication service provider was
provided in connection with an intelligence activity that
violated the Constitution of the United States.
Mr. SPECTER. Mr. President, I believe that history will look back at
the period of time between 9/11 and the present as the greatest
expansion of the executive authority in the history of this country. We
have seen the unauthorized military commissions. We have seen the
extraordinary rendition to the frequent invocation of state secrets,
privilege, and the misuse of so-called signing statements.
The signing statements represent a fundamental failure of the
Congress to utilize its constitutional authority. When the Constitution
provides that there is a presentment by both Houses, the President
either signs it or vetoes it, and the widespread practice has now come
into play where the President signs and issues a signing statement
undercutting key provisions of the legislation. I introduced a bill to
give Congress standing to challenge that in court. It has gone nowhere
because of the impossibility of overriding a veto and because of the
considerations of case in controversy.
We have seen, in the context of the evolving issues, the total ill-
effectiveness of Congress to provide the oversight of the Intelligence
Committees. The National Security Act of 1947 expressly provides that
matters such as the terrorist surveillance program should be submitted
to the Intelligence Committees, but that has not been done. Only a
portion of the Intelligence Committees have been briefed. Most of the
limited briefing was done only when the administration needed some
support for the confirmation of General Hayden as CIA Director. We have
seen the provisions of the Foreign Intelligence Surveillance Act of
1978 bypassed by the executive branch on a claim of constitutional
authority under article II, power as Commander in Chief, contrasted
with the congressional authority under article I.
A Detroit Federal court declared the terrorist surveillance program
unconstitutional. The Court of Appeals for the Sixth Circuit reversed,
in a 2-to-1 decision on the ground of the lack of standing, with the
dissenter filing an opinion showing ample basis for standing. The
Supreme Court of the United States refused to review the case. They
called it a denial of certiorari. That is the major constitutional
confrontation of our era, between the President asserting article II
powers as Commander in Chief and the explicit statutory provision
enacted by Congress in 1978 providing for the exclusive means of having
wiretapping. Instead, we have warrantless wiretapping.
The legislation pending now would provide retroactive immunity. I
suggest retroactive immunity in a context that we could both preserve
the electronic surveillance and leave the court with jurisdiction in
one of two ways. One, by substituting the Federal Government as the
party defendant of the telephone companies, in the shoes of the
telephone companies with no more, no less rights; or secondly,
requiring, as my amendment does, that the Federal district court would
decide constitutionality. No one is denying the
[[Page S6408]]
telephone companies have been good citizens.
The argument has been made that, well, there may be money damages or
there is a matter of public image which is involved. Well, monetary
damages and public image, in my judgment, don't measure up to the right
of privacy. Just as Oliver Wendell Holmes, in a 1928 case almost a
century ago, said that wiretapping was ``dirty business''--and it
remains dirty business--it may be necessary on national security
grounds, but it has to be done within the confines of the law. That can
be decided only by the courts, especially in the atmosphere that we
have where the Congress has been so ineffective and where the Supreme
Court of the United States ducked the issue on the case coming out of
the Sixth Circuit, where there was ample grounds for finding standing
to proceed with that case.
Within the past 6 days, there has been a major development on this
issue as a result of a judgment handed down by Chief Judge Vaughn
Walker of the U.S. district court in San Francisco. Judge Walker is the
same judge who has the telephone company cases which were consolidated
and sent to him under Federal rules on a multidistrict panel. Judge
Walker found flatly that the President exceeded his constitutional
authority when he ignored the Foreign Intelligence Surveillance Act.
This is the exact language in the 56-page opinion:
Congress appears clearly to have intended to--and did--
establish the exclusive means for foreign intelligence
surveillance activities to be conducted. Whatever power the
executive may otherwise have had in this regard, FISA--
The Foreign Intelligence Surveillance Act--
limits the power of the executive branch to conduct such
activities.
So now we have the judge who is hearing these telephone cases having
said that such surveillance is unconstitutional. FISA covers not only
the traditional wiretaps but explicitly covers pen registers and trap-
and-trace devices which could include whatever it is the telephone
companies were allegedly doing. On that subject, we do not know the
full extent of what the telephone companies are doing. All we have are
the allegations and the legal papers. Here, Congress is being asked to
pass upon a program on which most Members have not been briefed. As
stated earlier on the floor today, 70 Members of the Senate would be
called upon to vote on a program when they don't even know what it is.
The House leadership has pointed out that most of the Members of the
House of Representatives have not been briefed.
In an exchange with the Senator from Missouri today, I raised the
fundamental constitutional point that Members' constitutional
responsibilities cannot be delegated. You can't delegate them to a
minority of the Senate, but that is what we are being asked to do. It
is a pig in a poke. The old expression describes it very well. We don't
even know what the program is, and we are being asked to ratify it.
The issue was put to the Senator from Missouri, the chief defender of
this bill, of any precedent where you have a case pending before Judge
Walker, an extended opinion in July of 2006 on appeal to the Court of
Appeals for the Ninth Circuit. If this act is passed, it will be
unceremoniously jerked out from under the court. I asked him if there
is any case in history, and I would repeat that challenge to the
distinguished chairman of the committee.
What we have left is judicial review. Without judicial review, there
is no way to effectuate the constitutional doctrine of separation of
powers, which is so fundamental in our society. Even when the
proponents of the bill talk about money and business reputation--no one
is challenging the good citizenship of the telephone companies, and the
likelihood of monetary damages is extremely remote. But if the
Government were to be substituted as the party defendant, that is a
matter of dollars and cents which hardly comports to the fundamental
issues which are involved in civil liberties.
It is understandable that Congress continues to support law
enforcement powers because of the continuing terrorist threat. No one
wants to be blamed for another 9/11. My own briefings on the telephone
companies' cooperation with the Government have convinced me of the
program's value so that I voted for it, even though my amendment to
substitute the Government for the telephone companies was defeated in
the Senate's February vote. Similarly, I am prepared to support it
again as a last resort, even if it cannot be improved by providing for
judicial review, the pending amendment. However, since Congress has
been so ineffective in providing a check and balance, I will fight
hard--and I am fighting hard--to secure passage of this amendment to
keep the courts open. It is our last refuge, our last big stand when
the stakes are high, and they invariably are. When Congress addresses
civil liberties and national security, Members frequently must choose
between the issues of two imperfect options. Unfortunately, we too
often back ourselves into these corners by deferring legislation until
there is a looming deadline. Perhaps that is why so many of my
colleagues have resigned themselves to accepting the current bill
without seeking to improve it further.
Although I am prepared to stomach this bill if I must, I am not yet
ready to concede that the debate is over. Contrary to the conventional
wisdom, I do not believe it is too late to make this bill better.
Perhaps the Fourth of July holiday will inspire the Senate to exercise
its independence from the executive branch, now that we are back in
Washington.
How much time do I have remaining, Madam President?
The PRESIDING OFFICER (Mrs. McCaskill). There are 32 minutes
remaining.
Mr. SPECTER. I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Rhode Island.
Who yields time to the Senator from Rhode Island?
Mr. ROCKEFELLER. I yield as much time as the Senator requires.
Mr. WHITEHOUSE. Madam President, I appreciate very much the courtesy
of my chairman in allowing me some time. I should not take more than 10
minutes.
Once more we find ourselves debating President Bush's warrantless
wiretapping program, a self-inflicted wound that this administration
has visited upon our Government.
The way this Senator sees it at least, the Bush administration broke
faith with the American people with its warrantless surveillance
program, and now we in Congress are meant to clean up the
administration's mess. Unfortunately, we are doing so with a
legislative fix that in one critical area--immunity for the phone
companies--misapplies the substantial evidence standard, trespasses
constitutional boundaries, and breaks dangerous new ground in American
law.
We would not be in this position if the Bush administration had
sought and received a court order in the first place, as it easily
could have. There would be no debate over granting immunity since a
company following a court order is protected. Or the Bush
administration could have used FISA procedures to seek and receive
lawful assistance from telecommunications companies. But the
administration chose to go outside the law. I suspect the
administration wanted to prove a point about the President's article II
authority, so it deliberately avoided these well-established
mechanisms. If so, the Bush administration deliberately walked these
telecommunications companies into this problem and this litigation to
vindicate ideological ambitions. But the problem is now before us.
I have worked diligently and across the aisle to try to develop
thoughtful solutions to the problem. In February, with the
distinguished Senator from Pennsylvania, Senator Arlen Specter, the
learned ranking member of the Judiciary Committee, I offered a
bipartisan amendment that would have substituted the U.S. Government
for the telecommunications companies if it was determined they acted in
good faith and with the reasonable belief that compliance was lawful.
Similarly, I supported an amendment offered by Senators Dianne
Feinstein and Bill Nelson, drawn from the Specter-Whitehouse amendment,
that offered immunity to those companies that acted, again, in good
faith and with the reasonable belief that compliance was lawful.
Good faith is the proper standard here. It is the standard repeatedly
referenced by respected Members in this
[[Page S6409]]
Chamber who have asserted that any telecommunications company that
assisted the Government acted in good faith.
My friend, Senator Martinez, said:
The fact is that these companies acted in good faith, and
they acted in good faith when they were called upon to assist
our intelligence professionals.
My friend on the Judiciary Committee, Senator Kyl, noted:
[t]he general rule that private citizens acting in good
faith to assist law enforcement are immune from suit.
Senator Chambliss, my colleague on the Intelligence Committee, argued
that America's telecommunications carriers ``should not be subjected to
costly legal battles and potentially frivolous cases . . . merely for
their good faith-assistance to the Government.''
Senator Allard said that ``the U.S. Government owes these patriotic
companies and their executives protections based on the good-faith
effort they made in working with our intelligence community.''
Senator Bond, vice chairman of the Intelligence Committee, noted that
``the intelligence community advised us . . . that these companies
acted in good faith, and we in the committee agreed with them.''
We seem to have agreement amongst Members in this body that good
faith is the proper standard. So we should let a court, which has
available to it the procedural mechanisms necessary to get to the
bottom of this in a confidential manner, make the determination, the
fundamental determination: Did these companies, if they received
Government requests, act in good faith? We may in this body assume it
to be true, but it is not our role as Members of Congress to decide on
the good faith of an individual litigant in a matter that is before a
court.
Many Senators have not even been read into the classified materials
that would allow us to reach an informed conclusion about good faith.
We as a body are incapable of making an informed conclusion because as
a body, we have not had access to the necessary materials. So we should
provide a fair mechanism for a finding of good faith by a proper
judicial body with the proper provisions for confidentiality.
This simple determination can be made with limited proceedings based
largely on the record of any documents provided to the companies. We
ask so little--a proper hearing, applying a proper standard.
Unfortunately, the Bush administration opposed this option, and I have
not had the chance to offer this amendment. For all its talk, the Bush
administration was evidently and tellingly not confident that a good-
faith threshold could be met.
So instead of requiring a finding of good faith, the bill states that
immunity will be granted if the Attorney General's certification is
``supported by substantial evidence.'' It is worth drilling down to
some lawyering for a moment to reflect on what ``substantial evidence''
means in this context.
The first point is that ``substantial evidence'' standard is
essentially a meaningless standard, given the minimal showing necessary
to be granted immunity. The elements as to which substantial evidence
must exist are these: The intelligence activity was ``authorized by the
President''; ``designed to detect or prevent a terrorist attack''; and
``the subject of a written request or directive . . . indicating that
the activity was (I) authorized by the President; and (ii) determined
to be lawful.''
That is it. That is achieved by simply putting into evidence the
piece of paper containing the Attorney General's certification.
But the substantial evidence standard implies more than that, and it
is out of place here. This standard is typically applied in what is
called a ``sufficiency challenge''--a judicial inquiry into whether
there is substantial evidence to support a jury verdict. I cannot tell
you how many sufficiency challenges I have withstood as an attorney
general and U.S. attorney. It is standard fare in criminal cases.
The substantial evidence standard is also frequently used for
judicial review of an administrative agency's adjudication or
rulemaking.
So the substantial evidence standard is used to review the results of
adversarial proceedings where the parties had a chance to make their
case and build their record, and the court then reviews to determine
whether there is substantial evidence to support the agency's or jury's
determination.
The substantial evidence standard is a standard used to weigh the
result of an adversarial process. Not so here. Here the court will
apply the substantial evidence standard to an Attorney General's
unilateral certification. That is bad lawyering. That is discouraging,
when it would have been so easy to get this right.
Let me close with a few words about the constitutionality of title
II. It is a core principle of our system of separated powers that no
branch of Government may exercise powers allocated to another branch.
The United States Supreme Court has said that the Framers of the
Federal Constitution felt in drafting our Constitution ``the sense of a
sharp necessity to separate the legislative from the judicial power.''
This sense of sharp necessity, the Court said, was ``prompted by the
crescendo''--the words the Court used--``the crescendo of legislative
interference with private judgment of the courts.''
If you wish to see a case of legislative interference with private
judgment of the courts, look no further than what we are doing today.
Plaintiffs in the telecom litigation have brought causes of action
alleging that their core constitutional rights were violated. By
providing immunity, Congress is telling the judicial branch: You cannot
hear an entire category of constitutional claims. Congress is intruding
upon a core function of the judicial power--the resolution of
constitutional disputes.
The U.S. Supreme Court has warned on more than one occasion, most
recently in the 1988 case of Webster v. Doe, that ``a serious
constitutional question would arise if a federal statute were construed
to deny any judicial forum for a colorable constitutional claim.''
This statute has as its very purpose to deny a judicial forum to
these colorable constitutional claims.
I further note that Congress stepping in to pick winners and losers
in ongoing litigation on constitutional rights not only raises
separation of powers concerns but it veers near running afoul of the
due process and takings clauses. Article II of this bill is the most
extreme measure Congress, as best as I can find, has ever taken to
interfere in ongoing litigation. Congress usually provides at least a
figleaf of an alternative remedy when it takes away the judicial one.
For example, in the National Childhood Vaccine Injury Act, Congress put
a stop to Federal court actions but provided an alternative path for
claims to be heard. The Public Readiness and Emergency Preparedness Act
eliminated liability for people who take certain countermeasures during
or after a pandemic outbreak. But a special fund for victims was
established by Congress.
Today's effort is a naked intrusion into ongoing litigation. Where
will that stop? Will Congress be able to rove at will through
litigation anywhere in the judicial branch, picking winners and losers
as we like? We don't just trespass on the separation of powers; we
trespass onto dangerous ground.
If I were a litigant, I would challenge the constitutionality of the
immunity provisions of this statute, and I would expect a good chance
of winning.
I spoke before the Independence Day recess about article I of this
bill, how proud I am of the work that went into it and the exemplary
results we have achieved. Chairman Rockefeller, in particular, but many
others as well, deserves commendation, first for resisting the Bush
administration's unseemly efforts to create a legislative stampede and,
second, for thoughtfully crafting an improved and modernized FISA Act
that contains many new important protections for Americans. I will
incorporate my reference of my previous remarks on that subject, but
suffice it to say as an attorney general and a U.S. attorney who has
run wiretap vehicles, article I is a fine piece of legislation which
makes it all the more disappointing that the Bush administration will
not tolerate an amendment to article II that allows for a proper
hearing before the proper court set to the proper standard. It would be
so easy to get article II right. So close and yet so far.
[[Page S6410]]
I close by reiterating my deep anger that the Bush administration
unnecessarily created this mess in the first place, my frustration with
the solution that Congress has established to the immunity question,
and my hope that our great judicial branch will vindicate the error we
in the legislative branch make today.
Mr. SPECTER. Madam President, I had hoped to ask a couple questions
of the distinguished Senator from Rhode Island. I consulted with the
chairman, who wants to be recognized next. It would be my request, if I
may have Senator Whitehouse's attention, that he stay on the floor to
engage in a discussion, a colloquy with me when the chairman has
concluded.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Madam President, Senator Specter has offered an
amendment altering the liability protections of title II. His amendment
would require the district court to assess the constitutionality of the
President's warrantless wiretapping program before it could dismiss
cases against telecommunications companies that met statutory
requirements for liability protection.
Although I appreciate the Senator's desire to ask the court to
address the constitutionality of the President's program once and for
all, he has picked the wrong mechanism to ask the court to answer his
question.
First, Senator Specter's amendment would completely undermine, as I
said before, the delicate compromise in front of us today. People say:
Well, we are freshly back in town, newly minted, widely open. I am
sorry, this was a bill which just got through on a thread, and it will
probably get close to 70 votes, a compromise already accepted by the
House with 70 percent of their votes, and I think that balances the
protection of liberties and also does something I have stated I think
is rather important; that is, it allows the collection of intelligence
to continue in order to protect the United States of America.
Senator Specter's amendment also would require the court to consider
a difficult constitutional question that otherwise would not be at
issue in the cases.
Title II does not cover cases against Government actors. This
exclusion was intentional. Cases against the Government for any
unlawful or unconstitutional actions Government actors may have
undertaken should be allowed to proceed. Arguments over the
constitutionality of the President's actions can and should be
litigated in those proceedings.
The amendment, however, injects this complicated constitutional
question about the interplay of the fourth amendment and separation of
powers into cases requesting civil damages from private companies. The
amendment does not require that there be a relationship between the
companies and this constitutional question. It does not ask whether the
companies were aware of the scope of the President's program, nor does
it ask whether the companies' actions were done in good faith or even
whether they were legal. Indeed, if the court finds that the
President's program violated the Constitution, the cases against the
company will not be dismissed even if that company had no involvement
in the unconstitutional components of the President's program.
Madam President, this is simply unfair. A company should not be
subjected to liability solely because the Government acted
unconstitutionally. A company should not be subjected to liability
solely because the Government acted unconstitutionally. Any
accountability and liability should be based on actions of the company,
which is what title II is about.
Imposing this barrier to liability protection is also inconsistent
with our expectation about the role companies are expected to play when
they receive Government requests for information. Our existing
statutory approach is based on the idea that the Government requires
prompt cooperation from the telecommunications companies. Although we
expect those companies to seek documentation from the highest levels of
Government, they are not expected to assess the constitutionality of
particular requests on which they lack, to say the least, complete
information.
The ongoing litigation is complicated by classified information
issues that make it virtually impossible for the cases to move forward.
But if the cases could proceed without regard to the classified
information at issue, the court would not consider the question of
whether the President's program was constitutional. Instead, it would
ask whether the companies were entitled to immunity based on existing
law.
In addition, a case against any particular company is necessarily
limited to the facts relevant to that company. The court would,
therefore, not be provided a comprehensive look at the President's
program in any of those cases.
We should not ask the district court to assess whether the
President's program is constitutional when the answer to that question
is unnecessary to resolve the underlying litigation between the
plaintiffs and the carriers, and the court does not have sufficient
facts to address that far-reaching question of constitutionality. We
are talking about apples and oranges, but it is apples here that we are
concerned with.
I urge my colleagues to oppose this amendment.
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Madam President, I do wish to engage in a colloquy with
the Senator from Rhode Island, but first, with the chairman having just
completed, I would like to respond to some of his contentions and
engage in a question or two with the chairman.
When the Senator from West Virginia argues that my amendment would
undermine the delicate compromise which the Intelligence Committees
have reached, that is what the full Senate is supposed to do. The
committees deliberate, the House and the Senate come to a conference
report, they bring the matter to the Senate, and then it is up to the
full body to make a determination. So there is nothing unusual about
disagreeing with the compromise, however delicate.
The chairman argues that it would require the courts to consider
difficult constitutional issues. That is exactly what the courts are
supposed to do. The full impact of Chief Judge Vaughn Walker's decision
and how far-reaching it goes has not been felt, understood, or analyzed
in the course of only 6 days--an opinion which runs more than 50 pages.
We are dealing with court-stripping in the middle of litigation that
has been going on for years. Judge Walker's opinion concerning the
telecom companies was in July 2006, with the telephone companies now on
appeal.
It really goes back to the fundamental principle of Marbury v.
Madison, when Chief Justice Marshall made the determination that it is
up to the courts to decide what the Constitution means, and we would be
undercutting that judicial process in midstream.
Earlier, I posed a question to the Senator from Missouri, which if
the chairman wishes to answer would be fine. I know and I admire what
Senator Rockefeller has done. I have worked with him since he was
elected in 1984, and we worked together on the Veterans' Committee and
on intelligence matters and on many major matters. When the history is
written, there will be a famous handwritten letter disclosed by Senator
Rockefeller to the administration about how deeply he feels and how
deeply he cares about these matters. But I questioned the Senator from
Missouri, who is a member of the bar and quite a scholar on
constitutional law, if there had been any case known to him picked up
in midstream after years of work in the district court and pending on
appeal. It really goes right to the heart of Marbury vs. Madison.
You have Chief Judge Walker having flatly decided that the terrorist
surveillance program is unconstitutional, and you have Chief Judge
Walker leaving aside the issues of standing but saying:
Plaintiff amici hint at the proper showing when they refer
to ``independent evidence disclosing that plaintiffs have
been surveilled'' and a ``rich lode of disclosure to support
their claims.''
Going to the standing issue. Although not decided, why not let the
courts finish it? You have these decisions. Why not keep the current
program in effect and not interrupt the courts and have the judicial
decision?
[[Page S6411]]
So when the chairman raises the point that it would require the
courts to consider difficult constitutional questions, I agree with
him, but that is what the Federal courts are supposed to do, and it
really is untoward for the Congress to step into the middle of it. I
know of no case like it. And here we are being asked to strip the court
of jurisdiction when they are in midstream, where they may well find
some important facts to some important matters in the course of the
judicial decisions which would influence Congress.
We have the amendment offered by the distinguished Senator from New
Mexico, Mr. Bingaman, which would call upon the inspector general to
find out what the facts are on immunity since, as I say, we are being
asked to pass on this when we don't know the full import. And I support
the Bingaman amendment. I am an original cosponsor of it. Well,
similarly, what Chief Judge Walker may find here may be very important.
But let me raise the first of two questions with the chairman.
Mr. ROCKEFELLER. May I respond to the Senator's observation?
Mr. SPECTER. Certainly. I will yield.
Mr. ROCKEFELLER. I would say to my distinguished friend from
Pennsylvania that Judge Walker's case is not, under any circumstance,
going to be stopped by whatever happens here. It will not happen, and
it will, therefore, continue. The bill only addresses cases against
carriers, is the point I was trying to make. Judge Walker--his case is
a case against the Government. This bill is not against the Government.
It is against what happens to the carriers, or in this particular case
whether they get liability. The Government is not the point. The
carriers are the point. The case continues, and we have not intervened
in a malicious or malevolent way.
Mr. SPECTER. Well, Madam President, by way of reply, I understand
that this provision only concerns the telephone companies, and I
understand the chairman's argument about good faith. But good faith is
not determinative in and of itself. If the conduct violates the
Constitution, there is a constitutional violation no matter how good
the faith may be. It would be a good reason to indemnify, to
substitute, to hold them harmless, but not to exonerate them for a
constitutional violation.
The chairman says companies should not be held liable if the
Government acted unconstitutionally. That is not correct as a matter of
law. Where the telephone companies are aiders and abetters and
accessories before and after the fact and really act jointly with the
Government, they can be liable.
Mr. ROCKEFELLER. That is quite an assumption to make, I say to the
Senator.
Mr. SPECTER. Let me finish the reply, and I will be glad to yield
again.
When the argument is made that only the case against the telephone
companies is involved, that is not quite accurate. It is being
dismissed. It is no coincidence that Chief Judge Walker handed this
opinion down a few days--6 days--before it was publicly known that the
Senate would be taking up this issue. And he went out of his way to
raise the issue about standing and the rich lode of disclosure. So if
this act is passed and retroactive immunity is granted, it will remove
the telephone companies, true, and there will be another case standing,
but there will be no judicial determination of the constitutionality of
what the telephone companies did.
Chief Judge Walker has those cases against the telephone companies
too, and he has pretty well given a roadmap as to what he is going to
do because he said the terrorist surveillance program is
unconstitutional and the Foreign Intelligence Surveillance Act covers
pen registers and trap-and-trace devices, covering whatever it is the
telephone companies did here; although, again, we do not know for sure.
So where he said the terrorist surveillance program is unconstitutional
and the statute covers pen registers and trap-and-trace devices, to
remove the case from him at this stage will eliminate a determination
of the constitutionality of whatever it is the telephone companies did
and really flies in the face of the historic role of the courts since
1803 in Marbury vs. Madison.
Now I am glad to yield to the chairman.
Mr. ROCKEFELLER. I will just reply very briefly with three points,
and when you are finished, I would like to yield to--or hopefully the
vice chairman will yield to the senior Senator from Virginia.
The one point is that this is not a bill we are addressing here about
the Government. We are doing it about carriers, and particularly in
title II.
Secondly, I am interested in what the ranking member of the Judiciary
Committee feels might be the result if we went the Judge Walker route
regardless of its inapplicability, in my view, to this situation when
it went through the appeal process.
I am not a lawyer. Right now I wish I were, but I am not. Usually, I
am glad I am not. But it seems to me that you would be looking at a
period of appeals going right on up to the Supreme Court that might
last 3 or 4 years. I am not experienced in how long these things take.
But this is a matter that might take that kind of time and that causes
me to raise again the question I have raised several times with the
vice chairman this afternoon: The only thing that we appear to be
discussing in the Senate is rights and liberties. I think I have yet to
hear almost any word about the security of the Nation and what the
purpose of the Intelligence Committee is, what the purpose of
intelligence is, what the purpose of collection is, how the collection
is done, who does it, how important is it to how we gauge our situation
in the world, where we need to deploy, where we need to be watching.
This is extraordinarily serious stuff but not a word does it get in
the Senate, which is two-thirds made up of lawyers--and I honor every
one of them. But we are picking at ``would the Constitution allow''
this or that. I am looking at something which to me is very clear. This
is all about carriers, this particular bill. My name isn't Judge
Walker. I haven't issued the opinion. If my name were Judge Walker, and
it was an opinion, it would be about constitutionality. We are not
addressing that in this bill.
The Senator earlier said: Look, we are here. Why not duke it out and
get all the substitutes and arrangements and compromises back on the
table again. I know that does work in some fashion. But I think the
vice chairman and I and our staffs could say that what was achieved
over the last month or so could probably never be achieved again, which
is to get the House to agree. John Conyers is chairman of the Judiciary
Committee, who was gracious and polite but unfriendly to this bill.
There is the question of the Blue Dogs. You can say always these are
questions--on farm bills, on steel bills, on automobile bills, on
whatever bills.
This is a particular type of emergency based upon the fact that we
are still, under my definition, under attack. Not that we have not been
attacked, but we have been able to interdict, because of intelligence,
some of those attacks--or all of those attacks. This is a very
different matter than running an ordinary piece of legislation through
the Senate.
If 20 or whatever Judiciary plus Intelligence is in the Senate--35,
whatever that is. No, because there are some cross-memberships. Let's
say 20. Understand, the others have not been read in. I have said they
could have found out the information that has been available for a full
year. Any Senator has the ability to go and read intelligence, if they
wish to do that. It sort of implies that the Senate, as a matter of
habit, comes to full agreement and full understanding that 80 out of
100, as opposed to 20 or 25 out of a 100, fully understand what is at
stake in the amendments to a bill and then to the final passage of a
bill.
I think the Senator knows that is not the way it works. I think the
Senator, although he says we should not delegate, knows we delegate all
the time.
Mr. SPECTER. Will the Senator yield?
Mr. ROCKEFELLER. I will. That takes various forms. Sometimes it will
be that I am very much on the edge of how I am going to vote on
something, and I go to a particular Senator--it might be the Senator
from Pennsylvania--and say: I have this feeling and I have that
feeling, I am right on the cusp of which way I should vote.
Mr. SPECTER. Will the Senator yield?
[[Page S6412]]
Mr. ROCKEFELLER. I will.
Mr. SPECTER. For the first time, I take sharp distinction with the
chairman when he says there has been no recognition about the
importance of intelligence or the workings of the Intelligence
Committee or of special expertise.
Mr. ROCKEFELLER. I wasn't talking about special expertise--I was
talking about: We have not talked about the threat.
Mr. SPECTER. If I may continue?
Mr. ROCKEFELLER. Yes.
Mr. SPECTER. If I may continue, no recognition of the work of the
Intelligence Committee--let me limit it to that--which was certainly
said.
I take sharp exception because I served 8 years on the committee and
served as chairman for 2 years. I think I know what the Intelligence
Committee does and what its work is.
I take sharp exception to the suggestion that there is not a full
awareness on the part of this Senator as to the terrorism threat. I
made that explicit. When I said that if I have to take this bill, I
will, because of the threat of terrorism, just as I voted for the bill
earlier when my substitution amendment was not adopted.
But when the chairman says that this has gone through a laborious
process with the House and is a delicate compromise--that happens all
the time. It happens all the time. You are right in the middle of it,
you have seen it, and I know, too, because I have been there. I have
been here 28 years, and I know exactly what goes on.
When you say this ought to be accepted, I disagree. This bill can be
made better.
When you say you deal with the intelligence function and not the
constitutional function--again, I sharply disagree. We have to
legislate on what is constitutional. We may have a different opinion
than Chief Judge Walker, but we cannot ignore the question of
constitutionality. If it takes 3 or 4 more years, we are talking about
civil rights and constitutional rights.
Mr. ROCKEFELLER. My point.
Mr. SPECTER. This program has been continued on a temporary basis. It
has been extended. The intelligence chiefs have been satisfied with
that.
I don't like to extend it. I would like to resolve it now. But if it
takes the courts longer--the Supreme Court ducked the Detroit case. If
it takes them years to decide this, that is the price of constitutional
rights.
If you take a look at the history of this country, if you take just
one case, Plessy v. Ferguson, in 1896, I believe, to Brown v. Board in
1954, to eliminate separate but equal, you come to a constitutional
doctrine.
I am prepared to take my time, if I can find the requisite number of
votes in this body.
Madam President, how much time remains on each side?
The PRESIDING OFFICER. The Senator from Pennsylvania has 20 minutes
remaining. The Senator from West Virginia has 34 minutes remaining.
Mr. SPECTER. Madam President, this is as good a time as any to move
forward with a question or two, which I would like to have in a
colloquy with Senator Whitehouse. This issue has been raised before,
but I would like your views on it, Senator Whitehouse. You have a
distinguished record as an attorney, U.S. attorney, attorney general,
serving with distinction on the Judiciary Committee for the past year
and a half.
I raised the issue earlier about the constitutional authority of a
Member to delegate his authority, recognizing that there are many
matters where we accept committee reports, but at least Senators have
access to material. When I was chairman of the Judiciary Committee--the
tradition is to tell the chairman and the ranking member about a
program such as the terrorist surveillance program. I was blindsided by
it, in mid-December of 2005. We were on a Friday, the final day of the
argument on the PATRIOT Act. We were about to go to final passage, when
the New York Times published its paper. That morning Senators said they
had been prepared to vote for it but no longer were. As chairman of the
committee, I could not be briefed on the program.
Since that time, there has been a change of heart to an extent but,
as stated on the floor of the Senate earlier, some 70 Members of this
body will be voting on retroactive immunity for a program they do not
know or understand. The majority of the House, according to House
leadership, has not been briefed on the program.
Do you have any doubt that we may not constitutionally delegate our
authorities to vote?
Mr. WHITEHOUSE. Does the distinguished Senator yield me time to
reply?
Mr. SPECTER. I would like a reply as to whether it is your view, as a
constitutional matter, Members of Congress can delegate their authority
to vote.
Mr. ROCKEFELLER. If the Senator from Rhode Island would give me 30
seconds, I would be grateful.
Mr. WHITEHOUSE. I have no objection, of course.
Mr. ROCKEFELLER. The fact of the matter, I say to the senior Senator
from Pennsylvania, is that there are 37 Members of the Senate who have
been briefed on this matter--not 20 but 37. We decided to do a little
bit of homework: Fifteen on the Senate Intelligence Committee, 19 on
the Senate Judiciary Committee, that is 34--minus 4 crossover members;
2 leadership on each side, Senator Roberts and the Appropriations
Committee chairman and, I suspect, vice chairman, plus Senator Levin
and Senator McCain, who are ex officio.
That is not bad.
Mr. SPECTER. Madam President, the statistics I have are, out of the
House there have been 21 House Intelligence Committee members briefed
and as many as 40 Judiciary Committee members; in the Senate, 15 on the
Intelligence Committee and 19 on the Judiciary Committee for a
bicameral total of 95, which is 17.75 percent of the entire Congress.
But if you take the chairman's figures, you still have a majority of
Members of Congress who have not been briefed, who are, in effect,
delegating their authority to vote on a matter where they don't know
what they are granting immunity for.
But I refer, again, to the Senator from Rhode Island, if he cares to
answer the question.
Mr. WHITEHOUSE. Of course, I did say in my remarks that I believed
that this body is incapable of making a determination as to the good
faith of the telecommunications companies for the reason the
distinguished Senator from Pennsylvania has indicated, to wit, very few
of us, less than a majority and certainly not all of us, have been
briefed as to what the actual facts are, what was provided, if
anything, to the telecommunications companies that would support our
finding of good faith.
As I said in my remarks, I think essentially every Senator who has
spoken to this question has implicitly referred to good faith, directly
referred to good faith as the implicit standard.
I view it, although I defer to the far greater experience and
learning of my colleague from Pennsylvania--I see it less as a
constitutional issue of deference than one of legislative prudence. I
think it is not prudent for us as a Senate to take it upon ourselves to
make the good-faith determination. I think that is a determination that
should be made by a judicial tribunal, it should be made with
appropriate provision for confidentiality, and it should be made by the
judicial agency that customarily makes good-faith determinations.
It isn't our legislative role to do that. So I agree with the concern
of the distinguished Senator about this. I see it less as a
constitutional limitation on my ability as a Senator to cast my vote,
which I think is untrammeled. I can cast my vote about things I know
nothing about, have not studied on, am totally uninformed, if I wish.
It would be bad and imprudent for me to do it, but I do not believe the
Constitution prevents me from doing it, so I see it more as a matter of
legislative prudence.
Mr. SPECTER. Madam President, one final question. Does the Senator
from Rhode Island know of any case which has been pending in the
Federal courts for at least 3 years, as the telephone company case has,
with the opinion by Chief Justice Walker in July of 2006 and now
pending on appeal in the Ninth Circuit, where the Congress stepped in
to take away the jurisdiction by a grant of immunity as proposed in
this legislation?
[[Page S6413]]
Mr. WHITEHOUSE. I am aware of none. I cannot guarantee that our
research has been complete and exhaustive. But, certainly, the recent
efforts that Congress has done where an immunity from liability has
been an issue, either responding to pandemics or responding to
vaccines, what Congress has done there is to create an alternative
remedy.
I am aware of no precedent for the Congress of the United States
stepping into ongoing litigation, choosing a winner and a loser,
allowing no alternative remedy. And I believe the constitutional
problem with doing that as a separation of powers matter is
particularly acute where the cause of action that is being litigated in
the judicial branch is a constitutional claim. And Judge Vaughan is
listening to constitutional claims. That is the subject matter of the
litigation.
So I believe it will be determined by a court that ultimately this
section of the legislation is unconstitutional, in violation of the
separation of powers, because we may not, as a Congress, take away the
access of the people of this country to constitutional determinations
heard by the courts of this country.
Mr. SPECTER. Judge Walker is certainly listening to constitutional
claims. He may even be listening to the Senate. Somebody may be
listening on C-SPAN 2.
I thank the distinguished Senator from Rhode Island for his candid
answers.
How much time is remaining?
The PRESIDING OFFICER (Mr. Lautenberg.) The Senator has 13 and a half
minutes remaining.
Mr. SPECTER. Mr. President, I reserve the remainder of my time.
Mr. LEAHY. Mr. President, I strongly oppose a blanket grant of
immunity. I also urge Senators to reject this ill-advised legislative
effort to engineer a specific outcome in ongoing Federal judicial
proceedings. No one should stand above the law in the United States.
The administration circumvented the law by conducting warrantless
surveillance of Americans for more than 5 years. They got caught. The
press reported this illegal conduct in late 2005. Had the media not
done so, this unlawful surveillance may still be going on today.
When the public found out that the Government had been spying on the
American people outside of FISA for years, the Government and the
providers were sued by citizens who believed that their privacy rights
were violated. That is why we have Federal courts--so people can
vindicate their rights before a fair and neutral tribunal, without
interference from the other branches of government.
Title II of this bill is apparently designed to terminate these
lawsuits. It seems to reduce the role of the court to a rubber stamp.
So long as the Attorney General will certify that the Government
requested the surveillance and indicated that it had been ``determined
to be lawful,'' the cases are to be dismissed and everybody is off the
hook. That is not a meaningful judicial inquiry. That doesn't give the
plaintiffs their day in court. It is not just a heavy thumb but a whole
hand and arm on the scales of justice, and I cannot support it.
Here is what the report of the Select Committee on Intelligence said
in connection with reporting its earlier version of retroactive
immunity:
The Committee has reviewed all of the relevant
correspondence. The letters were provided to electronic
communications service providers at regular intervals. All of
the letters stated that the activities had been authorized by
the President. All of the letters also stated that the
activities had been determined to be lawful by the Attorney
General, except for one letter that covered a period of less
than sixty days. That letter, which like all the others
stated that the activities had been authorized by the
President, stated that the activities had been determined to
be lawful by the Counsel to the President.
So if anyone had any doubt where the criteria in the bill come from,
there it is. Do those words seem familiar? Do the criteria carefully
worded for inclusion in the bill now make sense?
I expect that the American people remember the testimony before the
Judiciary Committee of James Comey and FBI Director Mueller about the
period of time when Attorney General Ashcroft was in the hospital,
senior advisers at the Justice Department had advised against extending
approval for the warrantless wiretapping program and the Counsel to the
President, Alberto Gonzales, went to John Ashcroft's hospital room
seeking to get Attorney General Ashcroft to override the acting
Attorney General's concerns. Some time thereafter, the program was
apparently adjusted in some way, but only after FBI Director Mueller
spoke to the President and several high-ranking officers threatened to
quit the administration. That period could account for the Select
Committee on Intelligence's reference to a letter and period of less
than 60 days when it was the Counsel to the President who had
``determined'' the activities ``to be lawful.''
Senator Specter has long said that he supported judicial review of
the legality of the President's warrantless wiretapping program. During
the last Congress, when he chaired the Judiciary Committee, he
introduced a bill that would have allowed the courts to review the
legality of the administration's warrantless surveillance program.
Unfortunately, he later modified the bill in his discussions with the
White House that made it unacceptable and ineffective in my view and it
was never passed. I have always supported allowing the courts the
opportunity to review the legality of those activities.
I believe that independent judicial review will reject the
administration's claims to authority from the Authorization for the Use
of Military Force that overrides FISA. I believe that the President's
claim to an inherent power, a Commander-in-Chief override, derived
somewhere from the interstices or penumbra of the Constitution's
article II will not prevail over the express provisions of FISA.
Indeed, Chairman Rockefeller seemed to concede as much this morning
when he asserted that nothing in his bill should be taken to mean
``that Congress believes that the President's program was legal.'' He
characterized the administration as having made ``very strained
arguments to circumvent existing law in carrying out the President's
warrantless surveillance program.'' At various points Senator
Rockefeller alluded to the administration's argument that the
Authorization for the Use of Military Force was some sort of statutory
override authority and the administration's claim that the President
has what Senator Rockefeller called ``his all-purpose powers,'' which I
understand to be the administration's argument that inherent authority
from article II of the Constitution creates a Commander-in-Chief
override, and said that these are not justifications for having
circumvented FISA.
Consistent with Justice Jackson's now well-accepted analysis in the
Youngstown Sheet & Tube case, when the President seeks to act in an
area in which Congress has acted and exercised its authority, the
President's power is at its ``lowest ebb.'' So I believe that the
President's program of warrantless wiretapping contrary to and in
circumvention of FISA will not be upheld based on his claim of some
overriding article II power. I do not believe the President is above
the law.
What is most revealing is that the administration has worked so
feverishly to subvert any such independent judicial review. That sends
a strong signal that the administration has no confidence in its
supposed legal analysis or its purported claims to legal authority. If
it were confident, the administration would not be raising all manner
of technical legal defenses but would work with Congress and the courts
to allow a legal test of its contentions and the legality or illegality
of its actions.
This amendment now offered by Senator Specter is more limited than I
would have liked. It says its purpose is to allow the courts to review
the constitutionality of the assistance provided by the electronic
communication services in connection with the program. Exactly how the
courts get to such a review is not clear. Although I do not believe
that this expressly allows the court to conduct the kind of
comprehensive judicial review required to make a real determination
about the legality of this program, and a fair decision about the merit
of these lawsuits, it nevertheless seeks in spirit to provide judicial
review. In the hope that it might provide an avenue to accountability
for the illegal actions of this administration, I will support it.
[[Page S6414]]
In so doing I should note that I do not believe that Congress can
take away the authority of the Federal courts to consider
unconstitutionality or illegality in the course of meaningful judicial
review. Senator Rockefeller emphasized this morning that the parties to
the ongoing cases are to be ensured ``their day in court'' and that
they are ``provided the opportunity to brief the legal and
constitutional issues before the court.'' These statements do not have
meaning unless the legal issues and constitutional issues presented by
these cases can be considered. The value of the Specter amendment lies
in making the issue of constitutionality explicit.
[...]
I yield the floor.
The PRESIDING OFFICER. The Senator from Virginia.
Mr. WARNER. Mr. President, on behalf of the leadership and the floor
managers, I have been asked to propound a unanimous-consent request
that the following Senators be recognized, assuming they are here on
the floor in time to be recognized: I will speak now for about 15
minutes, to be followed by Senator Carper for 10 minutes. I see my
distinguished friend, the Senator from Mississippi; if he could
indicate how much time he would like.
Mr. COCHRAN. About 8 minutes.
Mr. WARNER. He is to be joined by Senator Wicker.
Mr. COCHRAN. Yes, he is in the Chamber as well.
Mr. WARNER. All right.
Mr. WICKER. About 8 minutes also.
Mr. WARNER. All right. And Senator Stabenow, I do not see her, but
let's put her down for 10, and Senator Cornyn.
Mr. CORNYN. I would need 15 minutes. If I can yield back some time,
that would be great.
Mr. WARNER. With that in mind--I do not see any other Senators
seeking recognition--I ask it in the form of a unanimous consent.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Virginia.
Mr. WARNER. Mr. President, I rise, along with the distinguished
chairman and ranking member of the Intelligence Committee on which I am
privileged to serve. I commend my chairman and ranking member for the
extraordinary capability with which they have handled this
controversial issue of
[[Page S6416]]
the FISA legislation and the bipartisanship they have shown. Our
committee voted 13 to 2 on this measure which is now before the Senate.
Currently, we have the Bingaman and Specter amendments. I join my
chairman and ranking member in opposing these two amendments. They seek
in one way or another to remove or render useless one of the most
important sections of the FISA Amendments Act which is liability
protection for the telecommunication carriers that assisted our
Government with the President's terrorist surveillance program or TSP.
Without the title II liability protection, the other sections of the
FISA Amendments Act would become irrelevant because the carriers would
not cooperate in the authorized programs.
This would be unfortunate, because the FISA Amendments Act is a
critical piece of legislation for America's present and future security
that achieves an important balance between protecting civil liberties
and ensuring that our dedicated intelligence professionals have the
capabilities they need to protect the Nation. The bill ensures that the
intelligence capabilities provided by the Protect America Act, enacted
in August 2007, remain sealed in statute.
Reforming FISA has not been an easy process. I would like to thank
Chairman Rockefeller and Vice Chairman Bond for the work they have done
to garner bipartisan support for the FISA Amendments Act. It would be
unfortunate if that work were undone by one of these amendments.
If passed, the Specter amendment would prohibit the dismissal of the
lawsuits against the telecommunications carriers if the President's
Terrorist Surveillance Program were found to be unconstitutional by the
courts. With all due respect to my colleague from Pennsylvania, I
believe that whether the President acted within his constitutional
authorities should be treated separately from the issue of whether the
carriers acted in good faith.
The extensive evidence made available to the Intelligence Committee
shows that carriers who participated in this program relied upon our
Government's assurances that their actions were legal and in the best
interest of the security of America.
Mr. President, I would like to call the Senate's attention to the
report which accompanied the version of the FISA Amendments Act passed
by the Senate Intelligence Committee by a vote of 13-2. Based on the
committee's extensive examination of the President's TSP, the report
noted that the executive branch provided written directives to the
carriers to obtain their assistance with the program. After its review
of all of the relevant correspondence, the committee concluded that the
letters ``stated that the activities had been authorized by the
President [and] had been determined to be lawful'' The committee report
added the following:
On the basis of the representations in the communications to
providers, the Committee concluded that the providers, in the
unique historical circumstances of the aftermath of September
11, 2001, had a good faith basis for responding to the
requests for assistance they received. Section 202 makes no
assessment about the legality of the President's program. It
simply recognizes that, in the specific historical
circumstances here, if the private sector relied on written
representations that high-level Government officials had
assessed the program to be legal, they acted in good faith
and should be entitled to protection from civil suit.
The Senate Intelligence Committee believed, by a vote of 13-2, that
the companies acted in good faith and that they deserve to be
protected. I agree and I believe that the TSP was legal, essential, and
contributed to preventing further terrorist attacks against our
homeland.
But, even if one were to disagree that the President acted within his
article II powers, I cannot see the wisdom in seeking to punish the
carriers and their shareholders for something the Government called on
the carriers to do with the assurance that the action was legal.
The Specter amendment would put the companies, and their millions of
shareholders, in legal limbo, waiting while the Government litigates
unrelated constitutional claims. Historically, the Supreme Court has
been reluctant to adjudicate constitutional disputes between the
political branches of our Government, suggesting that a constitutional
question could take years to resolve, if it can be resolved. Lawsuits
against the companies would likely continue in the interim which would:
Have negative ramifications on our intelligence sources and methods;
likely harm the business reputations of these companies; and cause the
companies to reconsider their participation--or worse--cause them to
terminate their cooperation in the future.
I believe it would be unfair to use private companies as a substitute
to adjudicate constitutional claims properly directed against the
Government. My colleagues should keep in mind that individuals who
believe that the Government violated their civil liberties can pursue
legal action against the Government, and the FISA Amendments Act does
nothing to limit that legal recourse. As noted by my colleague from
West Virginia, the case that was before Judge Walker--which addresses a
constitutional challenge against the government--can proceed.
Bottom line, companies who participate in this program do so
voluntarily to help America preserve its freedom and the safety--
individually and collectively--of its citizens. I have long supported
the idea of a ``volunteer force'' for our military and I believe a
``volunteer force'' of citizens and businesses who do their part to
protect our great Nation from harm is equally important. I fear that if
we are forced to draft companies into compliance when our Nation calls
them to duty, ultimately our security will suffer. Without this
retroactive liability provision, I believe companies will no longer
voluntarily participate. This will result in a degradation of America's
ability to protect its citizens.
It is for these reasons that I urge my colleagues to oppose the
Specter amendment and any other amendment that would change the FISA
Amendments Act.
I yield the floor.
I wish to conclude by saying that as I view this situation, I liken
the private sector that has responded to the request of the Federal
Government, which has been given assurances by the Federal Government,
to the all-volunteer military force we have today. It is imperative
that within the private sector there be elements, primarily these
corporations and companies which have come forward to provide the
technical assistance and also the facilities by which to implement the
FISA program. They have done it by and large voluntarily. The program
could not succeed without their participation. Therefore, they ask no
more than what is justly owed to them, and that is protection from the
lawsuits. I hope we can turn back these two amendments and proceed to
final passage and that the Senate will go on record as supporting the
essential nature of the FISA program.
[...]
The PRESIDING OFFICER. The Senator from Pennsylvania.
Mr. SPECTER. Mr. President, the pending business on the Foreign
Intelligence Surveillance Act is an amendment which I have pending, No.
5059. We started at 4 o'clock, and we are due for 2 hours. I stepped
off the floor for just a few minutes for necessaries and have come back
to find a unanimous consent proposal for some six speakers. I have
talked to a number of Senators on the floor, and they are in morning
business.
It seems to me the orderly procedure would be to allow us to finish
our bill. I understand any Senator can come out and ask for unanimous
consent. But, candidly, my good friend from Virginia, I wish you had
given me notice.
Mr. WARNER. Mr. President, I felt I was acting at the personal
request of
[[Page S6419]]
Chairman Rockefeller and the ranking member when I did this. I inquired
on the floor as to the desires of other Senators. I regret, my dear
friend, I would not have done this in any way to deter your ability to
do what you feel you have to do on this bill.
So at this point in time, certainly the floor is open to additional
unanimous consent. But I do bring to your attention the Senators who
are currently in the Chamber are here as a consequence of the UC that I
proposed at the request of the two managers.
Mr. SPECTER. Well, with all due respect to my good friend from
Virginia, I was on the floor all afternoon, you sitting there and me
sitting here. But that is water over the dam.
My request, Mr. President, is that--the only Senator on this list who
I have ascertained is going to speak to the bill is Senator Carper; he
is on the list now for 10 minutes--we conclude the bill, or the
alternative: to move ahead with the balance of the times reserved until
tomorrow morning.
Mr. WARNER. Mr. President, again, Senators on the floor can certainly
speak for themselves, but I point out I think the Chair advised the
managers as to the time remaining on both sides of the bill.
Am I not correct, I ask the Presiding Officer? Could you inform the
Senate as to the times remaining under the UC to which my good friend
from Pennsylvania refers?
The PRESIDING OFFICER. The Senator from Pennsylvania has 10 minutes
remaining. The Senator from West Virginia has 33 minutes remaining. The
Senator from New Mexico has 14 minutes. The Senator from Missouri has 5
minutes. The Senator from Connecticut has 21 minutes.
Mr. WARNER. Mr. President, I leave it to the Chair to address that. I
think the Senator from Pennsylvania should be recognized for the
purpose of his 10 minutes, but I am not sure we are in a position to
foreclose other Senators who have been waiting here patiently to
address the Senate on other matters.
It seems to me the Senator from Pennsylvania should revise the
request to enable him to have his 10 minutes and Senator Carper his 10
minutes and then allow the Chamber to proceed with other matters. It
seems to me that is a fair resolution to this problem.
Again, I apologize if I was acting--as I was so asked to do--contrary
to the Senator's wishes.
Mr. SPECTER. Mr. President, with respect to waiting, I have been here
since 11 o'clock this morning on this bill.
Mr. President, I ask unanimous consent that Senator Carper be
recognized, as he is, for 10 minutes, and that the other Senators
subject to the unanimous consent request be accorded the time given to
them, and that the remainder of the time reserved be scheduled for
tomorrow at the discretion of the majority leader.
Mr. WARNER. Mr. President, I will not object. I wish to thank my
colleague for what I think is a very fair resolution to this situation.
Mr. CARPER. Mr. President, may I be recognized?
The PRESIDING OFFICER. Is there objection?
Mr. CARPER. Mr. President, reserving the right to object, I am told
we cannot shift the time until tomorrow. I am told we need to use the
time that has been allocated today. That is my understanding.
Mr. SPECTER. Mr. President, will the Senator repeat his reservation,
please.
Mr. CARPER. Mr. President, I understand--and I look to the
Parliamentarian and to the Presiding Officer--I am told the Senate is
required to use the time that has been allocated for the discussion of
these amendments today, and there is additional time for it tomorrow in
tomorrow's debate before we begin voting. But we need to use up the
time that is allocated for this afternoon and this evening.
I would inquire of the Presiding Officer, is that your understanding
as well?
Mr. SPECTER. Mr. President, parliamentary inquiry: I heard the Chair
say there is 10 minutes remaining of my time.
The PRESIDING OFFICER. The Senator is correct.
Mr. SPECTER. Well, that time is yielded to Senator Carper, so that
would take all the time allotted to this Senator.
The PRESIDING OFFICER. Does the Senator withdraw his unanimous
consent request?
Mr. SPECTER. Well, there has been an objection to it, as I
understand.
The PRESIDING OFFICER. Is there objection?
Mr. CARPER. Reluctantly, I must object.
The PRESIDING OFFICER. Objection is heard.
The Senator from Delaware.
Mr. CARPER. Mr. President, I believe under the unanimous consent
agreement entered earlier, I am recognized for 10 minutes, and I ask
unanimous consent that my time be counted against time controlled by
Senator Rockefeller.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARPER. Mr. President, I rise today to speak in support of the
FISA compromise legislation that is before us this week. I believe
reasonable people can disagree about this measure, and I certainly
respect the views of those who oppose it. But I wish to take a moment
this afternoon to explain, first, why I am supporting this bipartisan
compromise and, second, to encourage my colleagues and others to do so
as well.
All of us know we live in a dangerous world today. We face serious
threats to our safety and to our security. At the same time, we face a
difficult balancing act between, on the one hand, the need to protect
our country and the safety of our citizens and, on the other hand, the
need to preserve our civil liberties.
All too often, the Bush administration's approach has been, at least
in my judgment, misguided. Many opponents of the FISA legislation
before us are rightly concerned that civil liberties have been ignored
and in some cases violated.
I believe that is why, to some extent, many critics of this bill have
focused so heavily--almost exclusively, in fact--on the legislation's
retroactive immunity provisions. I regret the majority of my colleagues
in the House and the Senate do not see eye to eye with those critics
regarding immunity. However, I wish to take a few minutes to explain
why most of us who support this bill in its amended form believe that
granting immunity is fair.
During the extraordinary national emergency that followed the
September 11 attacks upon our Nation, the Federal Government reached
out--
Mr. SPECTER. Mr. President, will the Senator from Delaware yield for
a moment?
Mr. CARPER. Mr. President, I am happy to yield to the Senator from
Pennsylvania.
Mr. SPECTER. Mr. President, I understand the Senator from Delaware is
using time from Senator Rockefeller.
Mr. CARPER. That is correct.
Mr. SPECTER. So my time would remain. I had thought there was 13
minutes remaining. Is there only 10?
The PRESIDING OFFICER. Ten minutes is all that remains.
Mr. SPECTER. I thank the Chair, and I reserve the remainder of my
time, however the scheduling may work out.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. CARPER. Reclaiming my time, if I may, Mr. President, during the
extraordinary national emergency that followed the September 11 attacks
upon our Nation, the Federal Government reached out to some of
America's major telephone carriers. We asked them to help intercept
communications between sources in our country and terrorists located
overseas.
A number of our phone companies responded in good faith and agreed to
help. They did so, however, only after receiving written directives
from our Government's senior national security and law enforcement
officials that their cooperation--the cooperation of the
telecommunications companies--was both lawful and constitutionally
sound.
It does not seem fair, at least to me, that these companies now
should be made victims of their own good-faith cooperation and
assistance in the ongoing fight against terrorism. That is why I
support immunity for phone companies that can demonstrate in Federal
court that their participation in the program was found to be lawful by
the Bush administration.
[[Page S6420]]
With that said, however, I believe the issue of immunity has taken on
a significance that goes beyond its actual importance. This is not to
suggest that immunity is unimportant, but the more critical aspects of
this FISA bill seem to have been overlooked. In my view, those portions
of the bill matter more--much more.
Rather than looking backward, at immunity, our real focus should be
on what this FISA bill does going forward. I believe this legislation
strikes the right balance in providing our intelligence networks with
the tools they need to protect our country without diminishing our
civil liberties. The administration has overreached on this front
before. The FISA legislation before us, though, is a significant
improvement over current law and will help to ensure that neither this
administration nor the next administration will overreach again.
Now, how does it do that? First of all, this compromise bill makes it
crystal clear that FISA is the exclusive means to conduct surveillance,
ensuring that neither this President nor our next President can go
around the law.
Second, the bill mandates reports by the inspectors general of the
Justice Department, the Department of Defense, and our intelligence
agencies that will provide the relevant congressional committees here
and in the House with the information we need to conduct needed
oversight.
Third, the compromise bill--this compromise bill--establishes a
shorter sunset period of 4\1/2\ years instead of what had been proposed
earlier, 6 years. In addition, this compromise bill--for the first
time--requires FISA Court warrants for surveillance of Americans
overseas.
I applaud both Senator Rockefeller and Senator Bond, as well as my
friend, Congressman Steny Hoyer of Maryland, for their collective work
in negotiating this compromise. They know, as I do, that this
compromise is not ideal. It is not perfect. But, in my view, it is the
best bill we can agree on at this time. It represents the best chance
we have today to protect both our national security and our civil
liberties.
For all these reasons, I am supporting this legislation. I hope my
colleagues--Democratic and Republican--will join me in supporting the
efforts of those who have crafted it.
Mr. President, if I could, I wish to end today with a pledge: Should
this bill pass and be signed into law--and I hope it will--I will work
with my colleagues in the next Congress and with the next President and
his administration to make additional improvements that our country and
our citizens may need and deserve.
I yield the floor.
The PRESIDING OFFICER. The Senator from Mississippi.
Mr. COCHRAN. Mr. President, I think under the order there is time for
me to speak at this point.
The PRESIDING OFFICER. The Senator has 10 minutes remaining.
[...]
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Mr. President, title II of the bill before us, which
amends the Foreign Surveillance Intelligence Act, would authorize
retroactive immunity for telecommunications companies that collected
intelligence information inside the United States in defiance of the
clear requirements of the Foreign Surveillance Intelligence Act as it
was then on the books.
The argument has been made that we must provide such immunity because
these telecommunications companies responded to requests from the
Government in a time of great uncertainty, after the events of
September 11, 2001. I have some sympathy for their situation, but I
also have sympathy for innocent Americans who may have had their
privacy rights violated as a result of illegal actions taken by
telecommunications companies at the behest of an administration that
has all too frequently tried to place itself above the law.
The bill before us makes no effort to reconcile these competing
interests. Instead, it requires the dismissal of all civil suits
against telecommunications companies that may have illegally disclosed
confidential communications of their customers at the behest of U.S.
Government officials. Dismissal would also be required even if the
disclosure violated the constitutional rights of innocent U.S. citizens
whose confidential communications were illegally disclosed.
The so-called judicial review authorized in this bill is totally
unsatisfactory. Under title II of the bill, the FISA Court would be
permitted to review these cases only to determine
[[Page S6425]]
whether the Attorney General or the head of an element of the
intelligence community told telecommunications companies that the
Government request had been authorized by the President and
``determined to be lawful,''--presumably determined by anybody--even if
nobody could reasonably have believed that the request actually was
lawful. A judicial review that is limited to determining whether the
administration claimed that its actions were legal is a sham review
that provides no justice at all. Of course the administration claimed
its actions were legal. Indeed, the Intelligence Committee report on
this bill specifically states that the administration's letters
requesting assistance from telecommunications companies made the claims
that they were legal.
I do not believe this congressional grant of retroactive immunity is
fair. I do not believe it is wise. And I do not believe it is
necessary.
Retroactive immunity is not fair because it leaves innocent American
citizens who may have been harmed by the unlawful or unconstitutional
conduct of telecommunications companies at the behest of the
administration without any legal remedy. It is hard to understand how
the Attorney General can claim, as he does in a letter dated July 7,
2008, that this is a ``fair and just result.''
Those who have been harmed are not likely to have any recourse
against the Government officials who asked telecommunications companies
to disclose the private information of their customers because the
Government officials enjoy qualified immunity for actions taken in
their official capacity. These officials do not even have the burden of
demonstrating that their actions were legal and constitutional to be
immune from suit.
Nor is retroactive immunity wise, because it sets a dangerous
precedent of retroactively eliminating rights of U.S. citizens and
precludes any judicial review of their claim. If we act here to
immunize private parties who cooperated with executive branch officials
in a program that appears to have been illegal on its face, our laws
and their prohibitions will be less of a deterrent to illegal
activities in the future. This would be a terrible precedent if a
future administration is as inclined as the current one to place itself
above the law.
Finally, retroactive immunity is not necessary for the intelligence
community to collect intelligence against terrorists using newly
available technology. They have the right to use newly available
technology--``they'' being the intelligence community--under title I of
this bill. Title I provides that the Attorney General and the Director
of National Intelligence direct telecommunications companies to assist
in collection programs, and these directives are enforceable by court
order as has been the case since the Protect America Act was adopted
last August.
We are collecting needed intelligence information today pursuant to
that act, without any retroactive immunity for telecommunications
companies, and there is no reason why we cannot continue to do so in
the future under title I of the bill without the retroactive immunity
provided in title II.
The administration argues that if we do not provide retroactive
immunity to telecommunications providers, ``companies in the future may
be less willing to assist the Government.''
But let's be clear what we are talking about here. Telecommunications
companies have prospective immunity if they assist the Government in a
manner that is authorized by this bill. Moreover, they can be compelled
to do so under the bill, as has also been the case since the enactment
of the Protect America Act. What companies might be less willing to do
is to assist the Government in intelligence gathering efforts that are
illegal. And what is wrong with that? Do we want to encourage companies
to assist a future administration in unlawful intelligence-gathering
efforts?
Nor is retroactive immunity necessary to protect telecommunications
companies that acted in good-faith reliance on representations from
administration officials. There are other ways in which we can
recognize their equity without insulating misconduct from judicial
review and without denying any relief to innocent U.S. citizens who may
have been harmed.
For example, we can safeguard these interests by substituting the
United States as the defendant in cases against telecommunications
companies, or by requiring that the United States indemnify
telecommunications companies for any damages in such cases. In either
case, we could cap damages to make sure that the taxpayers are not
required to pay an unreasonable burden as a result of unlawful
decisions by the administration. We could also provide a measure of
protection to American citizens whose rights have been violated by
limiting the immunity provided to those cases where the
telecommunications companies demonstrate that they had a reasonable
basis for a good-faith belief that the assistance they were providing
was lawful, a requirement that is notably absent from the bill before
us.
The Bingaman amendment is a very modest proposal which does not
decide the retroactive immunity question or remove the retroactive
immunity provision from the bill. It leaves the retroactive immunity
provision in the bill but postpones the effective date of that immunity
until 90 days after Congress receives the comprehensive inspector
general report required by the bill.
This amendment, the Bingaman amendment, does not have any effect at
all on title I of the bill, which allows the intelligence community to
collect information using newly available technology. The Bingaman
amendment allows title I to go into law without change and without
delay. The inspector general report may give us important information
that helps us understand the extent to which the administration's
actions were illegal or unconstitutional, and the extent to which
innocent U.S. citizens may have been damaged by these actions. The
delayed effective date in the Bingaman amendment would give us the
opportunity to consider this information, not just assurances of
administration officials, before retroactive immunity goes into effect
and cases are dismissed. That information required to be provided to us
by the inspector general is surely relevant to this issue.
If we adopt the Bingaman amendment, we will have highly relevant
information about the extent to which illegal or unconstitutional
actions were taken against innocent American citizens and the extent to
which those citizens were harmed by those actions. The Bingaman
amendment gives us the opportunity to take this additional information
into account before retroactive immunity takes effect, while at the
same time preventing any harm to telecommunications companies by
staying any litigation against them until the information becomes
available.
We can pass this bill and we can ensure that the intelligence
community continues to have the authority to collect information on
suspected terrorists without surrendering the rights of Americans whose
privacy may have been violated.
I support the Bingaman amendment as a way to introduce a bit of
balance into the process of protecting the privacy of innocent
Americans while recognizing some equity in the position of the
telecommunications companies.
I yield the floor and yield back my time.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. CHAMBLISS. Mr. President, I rise today to discuss H.R. 6304, the
FISA Amendments Act. I am disappointed that after so many months of
negotiations, after the Senate passed similar legislation in February,
and after the House passed this bill by 293-129, the Senate is stalling
enactment of necessary changes to FISA by debating amendments which
would gut this bill of a valuable provision liability relief for our
telecommunications carriers.
The three amendments we debate today would singularly undermine
months of hard work by the Senate Intelligence Committee and the House
to reach an agreement on this bill. In particular, Senators Dodd and
Feingold have offered an amendment striking title II of the bill which
provides liability relief to those telecommunication carriers who
currently face lawsuits for their alleged assistance to the Government
after September 11. Senator Specter has offered an amendment that would
require the courts to determine the constitutional merits of the
[[Page S6426]]
President's terrorist surveillance program, TSP in cases against
private parties. And, Senator Bingaman has offered an amendment which
would needlessly delay liability relief for a review of the President's
TSP to be completed, which Members of this body have already done. I do
not support any of these amendments.
Over 40 lawsuits have been filed against our communications providers
alleging statutory and constitutional violations, seeking billions of
dollars in damages. These suits are not intended to bring justice to
any individual; rather, they are a fishing expedition. The lawyers who
brought these cases hope to use our court system to discover some claim
or discover some standing for their clients; yet none of the plaintiffs
in any of these lawsuits have any evidence to illustrate that they were
subjects of the President's TSP or that they suffered any harm. As a
result, I wonder how a court could uphold that any of these individuals
even have a claim to raise. The President has stated repeatedly that in
the wake of 9/11, the TSP intercepted communications of suspected
terrorists, including those communicating with individuals inside the
U.S. or whose communications pass through the U.S. To date, this
program has been reviewed by numerous Inspectors General, the
Department of Justice, our intelligence community and Congress. Do we
need to add the courts to the list? The Foreign Intelligence
Surveillance Court is already on that list.
As a member of the Select Committee on Intelligence, I had access to
the classified documents, intelligence, and legal memorandum, and heard
testimony, related to the President's TSP program. After careful
review, as stated in the committee report accompanying the Senate's
FISA legislation, the committee determined ``that electronic
communication service providers acted on a good faith belief that the
President's program, and their assistance, was lawful.'' The committee
reviewed correspondence sent to the electronic communication service
providers stating that the activities requested were authorized by the
President and determined by the Attorney General to be lawful. The
committee concluded that granting civil liability relief to the
telecommunications providers was not only warranted, but required to
maintain the regular assistance our intelligence and law enforcement
professionals seek from them and others in the private sector. It was
clear in discussions within the committee that most of us were
concerned about the harm the Government could face if it cannot rely on
the private sector. Without this provision, the harm faced by the
Government will become a reality.
I cannot understate the importance of this assistance, not only for
intelligence purposes but for law enforcement too. The Director of
National Intelligence and the Attorney General stated, ``Extending
liability protection to such companies is imperative; failure to do so
could limit future cooperation by such companies and put critical
intelligence operations at risk. Moreover, litigation against companies
believed to have assisted the Government risks the disclosure of highly
classified information regarding extremely sensitive intelligence
sources and methods.'' There is too much at stake for us to deny those
who assist the Government the liability relief they need, and deserve,
or to delay its implementation.
Senator Specter's amendment asks the courts to review and determine
the constitutionality of the President's TSP before dismissing any
lawsuit against the telecommunication carriers. This amendment not only
severely undermines the findings of this body, but also calls into
question the activities of the other political branch in our
Government, the executive. The courts would be granted access to highly
sensitive, executive branch intelligence activities, which they are not
experienced in, and be required to make a legal determination on the
constitutional authorities of the President. The courts usually avoid
these types of decisions, and rightfully so. Moreover, the courts
should not issue mere advisory opinions, yet this amendment requires
the court to determine the constitutionality of a Presidential program
when the government is not a party to these actions. Even with the
passage of this bill the government or a Government official can still
be sued for a TSP violation. If a plaintiff brought an action against
the Government, the courts could then determine the constitutionality
of the program; however, Congress should not hold America's private
companies hostage until the courts review what Congress and others
already have found. Further, regardless of the Government's program,
our companies should not be held liable for assistance that they were
assured was lawful. Let the Government carry the burden for its own
actions.
Similarly, Senator Bingaman's amendment would stay all of the
lawsuits brought against the communications carriers until the
inspectors general conducted a review of the TSP. Various inspectors
general have reviewed already the President's program. The review
called for by the FISA Amendments Act is nothing new. I see no reason
to delay liability relief like this. The scope of the IGs' review
included by this legislation is not intended to be a legal
determination of the TSP. Instead, the FISA Amendments Act calls for
the IGs to review each respective agency's access to the legal reviews
of the program and grants the IGs access to communications with the
private sector related to the program. Any review conducted pursuant to
this legislation will have no impact on the lawsuits brought against
private corporations. The only thing this amendment does is hold the
cases up in court for over a year while the reviews are completed. This
is purely political and Congress should not play games with our
national security, or even when U.S. companies and their customers'
money are involved.
Finally, Senators Dodd and Feingold offer the same amendment that
they did in February, to completely strike Title II of the bill which
provides this liability relief. This same amendment failed to pass the
Senate in February by 31-67. As I have stated, I support Title II, and
believe the Senate has already shown its lack of support for this
amendment.
Mr. President, I oppose all three amendments offered to the FISA
Amendments Act and urge my colleagues to do the same. It is time for
the Senate to stop delaying enactment of a FISA bill and to reject
these amendments which would gut the bill of much needed relief for our
telecommunications providers.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, I will use leader time for my presentation.
The PRESIDING OFFICER. The leader is recognized.
Mr. REID. Mr. President, the Senate will soon vote on the FISA bill,
which represents a final result of negotiations among the White House
and Democrats and Republicans in Congress.
I opposed the version originally passed by the Senate. Although
improvements have been made in the version now before this body, the
legislation continues to contain provisions that will lead to immunity
to the telecommunications companies that cooperated with the Bush
administration's warrantless wiretapping program. For that reason, I
have no choice but to vote no.
Having said that, I am pleased that President Bush and the
congressional Republicans finally agreed to negotiate a better bill.
For months, the President insisted it was his way or the highway. The
White House refused to come to the negotiating table, repeatedly
demanding that the House simply pass the Senate's bill. I commend our
Democratic colleagues in the House for standing up to insist on more
protections for the privacy of innocent Americans.
This debate has shown once again that protecting the American people
is not a Democratic or Republican issue. Democrats want to provide our
intelligence professionals all the tools they need to fight terrorism.
We must also protect the privacy of law-abiding Americans and protect
against abuses of our Constitution.
We all know that in the darkest corners of the Earth lie evil people
who seek to harm our country and our people. We all agree on the need
to monitor the communications of terrorists in order to protect the
American people. But despite what the President insists, America is
strengthened by our
[[Page S6427]]
reverence for our law and our Constitution.
I am grateful for the efforts of congressional leaders who have
worked tirelessly, and at times it may have seemed endlessly, to craft
this compromise bill. Senators Feingold and Dodd deserve special
recognition for reminding us that our Constitution must always come
first. I have to compliment Senator Rockefeller--a very difficult
assignment he has, being the chairman of this most important committee,
but he does it with great dignity.
This version of this legislation is better than the bill the Senate
passed in February and better than the flawed Protect America Act
signed by the President last summer.
This legislation now includes Senator Feinstein's amendment to
reaffirm FISA as the exclusive means by which the executive branch may
collect surveillance. This provision is Congress's direct response to
the strained argument of President Bush's lawyers that Congress meant
to repeal the very clear and specific requirements of FISA when
Congress passed the authorization for the use of military force in
Afghanistan. Congress flatly rejects that argument as having no basis
in fact or in law.
This bill includes Senator Leahy's important amendment requiring a
comprehensive IG review of the President's program as well as greater
judicial supervision.
This bill requires the U.S. Attorney General to develop guidelines to
ensure compliance with the fourth amendment and prevent reverse
targeting; that is, targeting someone abroad when the real purpose is
to acquire the communications of a person here in the United States.
This bill provides for increased congressional oversight, requiring
extensive reporting to the Judiciary Committee and Intelligence
Committees about the implementation of the new provisions and their
impact on U.S. persons.
This bill rejects changes to the definition of electronic
surveillance, a change sought by the administration that could have had
unforeseen and far-reaching consequences for FISA's protections for the
privacy of law-abiding Americans.
This bill ensures that the law expires in 4 years, requiring the next
President and Congress to evaluate its effectiveness.
Let me in passing say that Senator Leahy, the chairman of the
Judiciary Committee, worked hard on this. As you know, there was a
joint referral. Again, Senator Leahy worked, as he does on all pieces
of legislation, tirelessly and for the good of this country.
These changes I have mentioned add checks on the expansive executive
powers contained in the original bill. But, as I said, despite these
improvements, this legislation certainly needs more work. That is why I
oppose it and why I am committed to working with the new President to
improve it.
Congress should not wait until the 2012 expiration to improve this
legislation. I will work to ensure that Congress revisits FISA well
before 2012, informed by the oversight that will be conducted in the
coming months by the Judiciary Committee and the Intelligence
Committees and by the reports of the inspectors general. Next year, for
example, Congress will be required to revisit a number of provisions of
the PATRIOT Act. That may provide a suitable occasion to review the
related issues in this FISA legislation.
While the bill before us does include some improvements to title I's
intelligence collection procedures, I oppose totally title II. I think
it is just way out of line.
Title II establishes a process where the likely outcome is immunity
to the telecommunications carriers that participated in the President's
illegal warrantless wiretapping program. That is what it was. The bill
does not provide any protection for the Government officials who
designed and authorized the program. That is good. It also, of course,
does not preclude a challenge to the constitutionality of the
legislation in Federal district court.
Nobody should read title II of this bill as a judgment on the
legality of the President's warrantless wiretapping program because it
is not. Nobody should expect that a grant of immunity is anything other
than a one-time action. This was made clear in the Senate Intelligence
Committee report that accompanied an earlier version of this
legislation. Service providers should clearly understand that no grant
of immunity will be forthcoming if they cooperate with future
Government requests that do not comply with the procedures outlined in
this legislation.
The current lawsuits against the telecom companies seek
accountability.
These lawsuits could have been a vehicle to achieve a public
accounting of the President's illegal warrantless wiretapping program.
That is why it is important that the Democratic negotiators forced the
President to submit his program to a comprehensive inspectors general
review. That review should finally provide a full airing of this entire
sorry episode. The bill requires the inspectors general of the relevant
agencies to complete a comprehensive review of the President's
surveillance program within a year. By the time that report is issued,
President Bush will have left office. Although his term will have come
to an end, the work of uncovering this administration's abuses of power
is just beginning. Future Presidents, future Congresses, and the
American people will learn from President Bush's abuses of power in a
positive fashion.
The debate on this FISA legislation may be nearing an end, but the
history books are yet to be written. Throughout this fight, a small
number of lonely voices insisted that there is no contradiction between
liberty and security. As new facts have become known, their numbers
have swelled, and the voices have grown louder. I am confident that
when it is all known, the condemnation of President Bush's blatant
disregard for the Constitution will be deafening. I hope that because
those voices refused to be silenced, the next President and all future
Presidents will not waiver from a path that protects the American
people without compromising our core American values based upon our
Constitution.
The PRESIDING OFFICER. The Senator from Connecticut.
Amendment No. 5064
(Purpose: To strike title II)
Mr. DODD. Mr. President, before the Majority Leader leaves the floor,
I thank him personally but also collectively for his leadership on this
issue. This is an act of courage on his behalf, given the arguments
made by the other side, and his leadership on this created the
possibility for us to offer this amendment to strike title II. I share
his thoughts. He expressed them very well. I wish to identify myself
with them. This is not at all about questioning the need for security.
We all understand that. This is a simple question. Should the telecom
industry be granted immunity, without us being able to determine
whether their actions are legal? It may come out that the courts
determine they were legal. If so, we move forward. All we are asking is
that the opportunity be given to determine the legality of their
actions.
The majority leader has made it clear why it is important. This is
about the Constitution and the rule of law. It seems to me a very
simple request and, as such, I ask unanimous consent to lay the pending
amendment aside and call up amendment No. 5064.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Connecticut [Mr. Dodd], for himself, Mr.
Feingold, Mr. Leahy, Mr. Reid, Mr. Harkin, Mrs. Boxer, Mr.
Sanders, Mr. Wyden, Mr. Kennedy, and Mr. Durbin, proposes an
amendment numbered 5064.
Strike title II.
Mr. DODD. Mr. President, it is very simple. Strike that section of
the bill that grants immunity to a number of telecommunications
companies that, for a period of roughly 5 or 6 years, literally
vacuumed up phone conversations, faxes, e-mails, photographs, on a
wholesale basis, of virtually every American citizen. The only reason
it has come to a halt is because there was a whistleblower who
identified the program. Otherwise the program would be ongoing. Again,
none of us argue, at least I don't argue at all, about the importance
of having the ability to get the cooperation of an industry that could
help us identify those who would do us harm. That is not the debate.
[[Page S6428]]
The debate is whether there is an appropriate means by which those
warrants are sought before these telecom companies would begin to turn
over the private conversations, e-mails, and communications of American
citizens. That is what this debate is about. It is a simple debate on
whether we keep this section of the bill or strike it out and allow the
judicial branch, a coequal branch of Government, to determine whether
the acts by the executive branch were constitutional and if they were
they legal.
If this amendment is not adopted, it will be a vote by the
legislative body that determines whether they were legal. We are not
competent or the appropriate constitutionally delegated body to perform
that function. That is why we have three coequal branches of
Government. The executive branch made this decision. We in the
legislative branch have an obligation to insist that the judicial
branch determine the legality of the actions taken.
I wish to thank as well my colleague, Senator Feingold of Wisconsin,
my lead cosponsor, but also to mention, if I may, Senator Leahy, who
has been a stalwart on this effort and always a great crusader against
those who would do harm to the rule of law. I also want to thank
Senator Reid, the Majority Leader, and Senators Harkin, Boxer, Sanders,
Wyden, Kennedy, Durbin, Kerry, and Clinton for their support for this
amendment. I also thank, if I may, Jay Rockefeller, who chairs this
committee. While I am highly critical of title II of the bill, I have
great respect for him and the work he has tried to do in leading the
Intelligence Committee on this difficult issue. While I still have
major reservations about title I of this bill, the fact that title II
still exists in this bill makes it impossible to be supportive of this
legislation, if that is retained in the bill that we vote on tomorrow.
For many Americans, the issue may seem a very difficult one to
follow. It may seem like another squabble over a corporate lawsuit. But
in reality, it is so much more than that. This is about choosing
between the rule of law and the rule of men. You heard our colleague,
Senator Levin, and the Majority Leader eloquently describe the
situation as it presently exists.
For more than 7 years, President Bush has demonstrated time and time
again, unfortunately, that he neither respects the role of Congress nor
does he apparently respect the rule of law on these matters. Today, we
are considering legislation which will grant retroactive immunity to
the telecommunications companies that are alleged to have handed over
to this administration the personal information of virtually every
American, every phone call, every e-mail, every fax, and every text
message, and all without warrant.
Some may argue that, in fact, the companies received documentation
from the administration stating that the President authorized the
wiretapping program and that, therefore, it is automatically legal.
These advocates will argue that the mere existence of documentation
justifies retroactive immunity; that because a document was received,
companies should be retroactively exonerated from any wrongdoing. But
as the Intelligence Committee has already made clear, we already know
that the companies received some form of documentation with some sort
of legal determination.
But that logic is deeply flawed. Because the question is not whether
the companies received a document from the White House. The question
is, were those actions legal?
It is a rather straightforward and surprisingly uncomplicated
question. Did the companies break the law? Why did the administration
not go to the FISA Court as they were required to do under the Foreign
Intelligence Surveillance Act?
Since 1978, that court has handled 18,748 warrants, and they have
rejected 5 since 1978, in almost 30 years, according to a recent
published report in the Washington Post. So the issue raised for me is,
why didn't these companies go before that court to determine whether a
warrant was justified? Why did they decide merely to rely on some
letter or some documentation, none of which has ever been established
as a legal justification for their actions?
Either the companies complied with the law as it was at the time or
they didn't. Either the companies and the President acted outside the
rule of law or they followed it. Either the underlying program was
legal or it was not. If we pass retroactive immunity, not a single one
of these questions will ever be answered--ever. Because of this so-
called compromise, Federal judges' hands will be tied and the outcome
of these cases will be predetermined. Retroactive immunity will be
granted.
So this is about finding out what exactly happened between these
companies and the administration. It is about holding this
administration to account for violating the rule of law and our
Constitution. It is about reminding this administration that where law
ends, tyranny begins. Those aren't my words, where the law ends,
tyranny begins. Those words were spoken by the former British Prime
Minister, Margaret Thatcher.
It is time we say no more, no more trampling on our Constitution, no
more excusing those who violate the rule of law. These are our
principles. They have been around since the Magna Carta, even predating
the Constitution. They are enduring. What they are not is temporary.
And what we should not do at a time when our country is at risk is
abandon them. That is what is at stake this evening and tomorrow when
the vote occurs.
Allowing retroactive immunity to go forward is, by its very nature,
an abandonment of those principles. Similar to generations of American
leaders before us, we too are confronted with a choice. Does America
stand for all that is right with our world or do we retreat in fear? Do
we stand for justice that secures America or do we act out of vengeance
that weakens us?
Whatever our political party, Republican or Democratic, we are all
elected to ensure that this Nation adheres to the rule of law. That is
our most fundamental obligation as Members of this great body, to
uphold the rule of law--not as partisans but as patriots serving our
Nation. The rule of law is not the province of any one political party
or any particular Member of the Senate but is, rather, the province of
every American who has been safer because of it.
President Bush is right about one thing. The debate is about
security. But not in the way he imagines. He believes we have to give
up certain rights in order to be safer. This false dichotomy, this
false choice that to be more secure, you must give up rights is a
fundamentally flawed idea. In fact, the opposite is true. To be more
secure, you must defend your rights.
I believe the choice between moral authority and security is a false
choice. I believe it is precisely when you stand up and protect your
rights that you become stronger, not weaker. The damage done to our
country on 9/11 was both tragic and stunning, but when you start
diminishing the rights of your people, you compound that tragedy. You
cannot protect America in the long run if you fail to protect the
Constitution of the United States. It is that simple.
As Dwight Eisenhower, who served our country as both President and as
the leader of our Allied forces in Europe during World War II, said:
The clearest way to show what the rule of law means to us
in everyday life is to recall what has happened when there is
no rule of law.
That is why I believe history will judge this administration harshly
for their disregard for our most cherished principles. If we do not
change course and stand for our Constitution at this hour, for what is
best for our country, for what we know is just and right, then history,
I am confident, will most certainly decide that it was those of us in
this body who bear equal responsibility for the President's decisions--
for it was we who looked the other way, time and time again.
This is the moment. At long last, let us rise to it. Support the
amendment I am offering on behalf of myself and the other Members I
mentioned earlier. We must put a stop to this idea of retroactive
immunity. It is time we stood for the rule of law. That is what is at
stake. The FISA Courts were created specifically to strike the balance
between a secure nation and a nation defending its rights. That is why
the law has done so well for these past 30 years, amended many times,
to keep pace with the changes of those who would do us great harm.
[[Page S6429]]
At this very hour, in the wake of 9/11, to say we no longer care
about that, that we will decide by a simple majority vote to grant
retroactive immunity to companies who decided that a letter alone was
enough legal authority for them to do what they did is wrong.
I have pointed out before in lengthy debate, not every phone company
participated in the President's warrantless wiretapping program. Not
everyone did. There were those who stood up to the administration and
said, without a warrant, without proper legal authority, we will not
engage in the vacuuming up of the private information of American
citizens. They should be recognized and celebrated for standing for the
rule of law.
For those who decided they were going to go the other way, let the
courts decide whether that letter, that so-called documentation, was
the legal authority that allowed them to do what they did for more than
5 long years.
Tomorrow we will vote around 11 o'clock on this amendment. I commend
Senator Bingaman and Senator Specter. They have offered amendments as
well dealing with other parts of this legislation for which I commend
them. But I hope my colleagues, both Democrats and Republicans, would
think long and hard about this moment. Senator Carl Levin of Michigan
said something very important toward the conclusion of his remarks:
That this in itself becomes a precedent, that some future
administration, fearing they would not get permission from a FISA Court
to engage in an activity that violated the privacy of our fellow
citizens will no doubt use the vote tomorrow, if, in fact, those who
are for retroactive immunity prevail. They will cite that act by this
body as a legal justification for some future administration
circumventing the FISA Courts in order to do exactly what was done in
this case. It becomes a legal precedent.
So there is a great deal at risk and at stake with this vote
tomorrow. It is about the rule of law. It is not about whether you care
about the security of our Nation. Every one of us cares deeply about
that, and we want to do everything we can to thwart those who would do
us great harm. This is about the simple issue of whether a court of law
ought to determine whether these companies violated the Constitution.
Did they or didn't they? If they did not, so be it. If they did, then
those to whom they did harm ought to be compensated at what marginal or
minimal level one would decide. But let the court decide this. Let's
not decide it by a simple vote here and set the precedent that I think
we would regret for years and years to come.
With that, Mr. President, I yield the floor.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. BROWN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________
