[Congressional Record: February 14, 2008 (Senate)]
[Page S1015-S1046]
Foreign Intelligence Surveillance Act
Mr. CORNYN. Madam President, I come to the floor to express grave
concern at reports that I hear out of the House of Representatives that
they intend to adjourn and basically go on vacation for the next week
or so without taking action on the Foreign Intelligence Surveillance
Act reauthorization. That, of course, is the legislation we passed out
of the Senate that provides the eyes and the ears for the intelligence
community in the United States to detect and to deter future terrorist
attacks against the United States.
To me, it is unthinkable that the House of Representatives would
adjourn and be so irresponsible as to leave this unfinished business
undone and to leave America unprotected against future terrorist
attacks. I know there is an argument that existing surveillance could
be continued for up to a year. But what we are talking about is new
contacts, new information that the intelligence community gets that
would be impeded, impaired, and blocked by the failure of the House of
Representatives to act on this critical piece of legislation that will
expire on February 15 unless they act today or tomorrow. So it is the
height of irresponsibility. I find myself questioning whether it could
possibly be true that would happen.
[[Page S1016]]
Also, one important part of the Senate legislation was to provide
protection for the telecommunications carriers that may have cooperated
with the U.S. Government shortly after September 11, 2001, in providing
the means to listen in to al-Qaida and other foreign terrorists who
were plotting and planning attacks against the United States and its
citizens.
I think it is a terrible message from the House of Representatives,
if they are not going to act in a way that provides protection for
those citizens, whether they be individual citizens or corporate
citizens, who are asked by their country to come to the aid of the
American people and provide the means to protect them from terrorist
attacks. What kind of message does that send, that we are going to
basically leave them out twisting slowly in the wind and being left to
the litigation--some 40 different lawsuits that have been filed against
the telecommunications industry that may have cooperated with the
Federal Government in protecting the American people. This is on a
request at the highest levels, from the Commander in Chief, and upon a
certification by the chief law enforcement officer of the United
States, the Attorney General.
What they were being asked to do was entirely appropriate and within
the bounds of the law. But then, when the litigation ensues, to
basically leave them hanging out to dry would be wrong. The Senate
wisely addressed that issue. But if the House adjourns without passing
the Senate version of the reauthorization of the Foreign Intelligence
Surveillance Act, which includes protection for the telecommunications
industry that may have participated in this lawful exercise of our
powers to protect our country, it would again be the height of
irresponsibility and send the message that next time a citizen, whether
it is a corporate or individual citizen, is asked to come to the aid of
their country, you better think twice and consult your lawyers because
you are going to get sued and the Congress is not going to take
appropriate measures to make sure those who helped protect the safety
and security of the American public are protected.
Finally, I don't have the information in front of me right now, but
there are substantial news reports that indicate that a group of trial
lawyers who stand to make considerable amounts of money in terms of
legal fees off this litigation are substantial contributors to Members
of Congress. I hope the evidence does not develop that there are
decisions being made in the House of Representatives on the basis of
the interests of special interest groups such as trial lawyers who
stand to gain financially from continuing this litigation that should
be brought to an end here and now.
I am here primarily to voice my grave concern that while the Senate
has acted responsibly--I know not everybody is happy with the outcome--
to address this issue, if the House of Representatives leaves town and
leaves this matter undone, the security of the American people is in
peril, and it would be a tragedy indeed if something were to happen as
a result of our intelligence community being blind or deaf to the
dangers that do work both within our shores and beyond.
I yield the floor.
The PRESIDING OFFICER. The Senator from North Dakota is recognized.
Mr. DORGAN. Madam President, let me say, I don't think anybody in the
Congress, the Senate, or the House wishes our intelligence community to
be blind or deaf. Obviously, we have a process in this country with the
FISA Court that allows emergency actions. The opportunity to be able to
engage in surveillance and the appropriate surveillance to make sure we
are listening to terrorists and all of those things are available.
There is a debate about how wide should the drift net be, that the
administration might want to gather almost every communication
everywhere in the world and data mine to find out who is saying what.
That is an important conversation because it deals with the basic
rights in our Constitution. I think there is no one in this Chamber or
in the other who believes we want our intelligence community to be
blind or deaf and to not have the opportunity to do the kind of
surveillance necessary to protect our country. That is very important
to state.
[...]
FISA
Mr. BOND. Madam President, I will take a minute to update my
colleagues on some information we received from the Director of
National Intelligence in an open hearing that is going on in Hart 216
right now. I thought it was important to clarify some points that he
made in response to some very important questions raised by Chairman
Rockefeller.
Chairman Rockefeller asked what would happen if FISA expires--as it
does on February 15--without being renewed. He asked, could these
collections not continue? There is a very important ``yes, but''--for
acquisitions that have been ordered by the FISA Court which have years
in length; it is possible that those could continue. But the major
problem the Director sees and the attorneys with him see is that if
they needed to change targets, if they needed to change methods, if
they needed to change means by which they gathered the information,
they would not be able to do so.
Furthermore, he highlighted a very real problem having to do with the
private sector. As we have said on the floor before, the private sector
carriers are absolutely essential to the operation, not only of FISA,
foreign intelligence surveillance, but for work with the FBI and others
on criminal matters. The fact that we have left the telecom carriers,
that are alleged to have participated in the President's lawful terror
surveillance program without liability protection, they are being
advised by their general counsel of their responsibility under
Sarbanes-Oxley, and others, that they could only cooperate with a fresh
court order. Since there is no authority for additional court orders,
they have a grave question as to whether they are risking not only
their firm's reputation but under Sarbanes-Oxley certain duties to
shareholders. That is why he felt it was necessary to get this measure
that has passed the Senate implemented by the House.
I also noted in my comments that the House passed its bill almost as
long ago as the Senate passed its bill. At that time, the intelligence
community said it was not workable, that the Rockefeller-Bond proposal
that passed overwhelmingly 2 days ago was the only thing that was
workable; and the fact that the House says they don't have time to work
on it ignores the fact that they have known for a couple of months that
they were going to have to make significant revisions in their measure
if they wanted it to be passed and signed into law. So my sympathies
for the House. I understand they are pressed for time, but they knew
this was coming. They have a measure before them that could be passed,
which I hope they will pass.
One other thing. I asked the Director about some of the very
misdirected, improper, wrong and, in some instances, irresponsible
suggestions made on the floor about the tactics that the CIA may use in
questioning high-value detainees. The DNI made it clear, as I attempted
to make clear yesterday, all of the things banned by the Army Field
Manual, such as burning, electrocuting, beating, sexual harassment--all
[[Page S1032]]
those things are not only repugnant but they are not permitted to be
used by any of our intelligence agencies. He reiterated that
waterboarding is not permitted under the political guidelines that
include legislation and that we have passed here in direct orders.
So what was done yesterday does not prevent torture. That is
prevented already. It doesn't prevent cruel, degrading, and inhumane
interrogation techniques. It does not prevent other cruel, degrading,
or inhumane acts by the intelligence agencies. Those are already
prohibited.
What the measure that was passed yesterday does--were it to be signed
into law, and I certainly hope it will not be--would be to deny the
intelligence community the ability to use techniques that are similar
to but different from the techniques authorized in the Army Field
Manual. These enhanced techniques have been used only on roughly a
couple of dozen detainees in the custody of the CIA. They are lawful,
and they have produced some of the most important intelligence that the
intelligence community has gathered to identify high-level members of
al-Qaida and other terrorist organizations, and to interfere, impede,
and stop terror attacks directed not only at our troops abroad, our
allies, but the United States.
Unfortunately, some people were misled by comments that were
bordering on irresponsible on the floor yesterday, to say that we
banned torture, cruel, inhumane, and degrading conduct. That is not
what happened. We tied the hands of the CIA with the purported
provision that would severely limit their ability to gain information
using totally lawful techniques in questioning high-value detainees.
Rather than being a blow for freedom, reaffirming our values, it merely
proposed to cripple our intelligence collection.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. The Senator from Texas is recognized.
Mr. CORNYN. Madam President, I commend the ranking member and
chairman of the Select Committee on Intelligence for the outstanding
work they have done on this critical piece of legislation, passing it
in the Intelligence Committee by a vote of 13 to 2, which was no easy
feat. This passed in the Senate by a strong bipartisan vote of 68 to
29, I believe. It is about as strong a bipartisan vote as you can
possibly get. This is a well-thought-out piece of legislation that,
once sent over to the House of Representatives, we were told the House
of Representatives, rather than to deal with this legislation, would
simply decide to fold their tent and go home. That is the height of
irresponsibility.
The Senator from Missouri described why it is so important for us to
be able to listen to our enemies: because, simply, it saves American
lives. We learned a harsh lesson on September 11, 2001, which is that
we are not safe even within our own shores.
There are those who believe in a radical ideology that celebrates the
murder of innocent men, women, and children, and who are willing to use
instruments of destruction, whether they be primitive tools such as
flying an airplane into a building, or chemical, biological, or nuclear
weapons--whatever they can get--to kill innocent civilians. We have to
do everything in our power to protect ourselves. Thank goodness, due to
the noble work of our men and women in uniform who are fighting in
places such as Afghanistan, Iraq, and elsewhere around the world, we
are keeping the enemies of the United States on the run.
The best way we can deter these terrorist attacks is to listen in on
conversations and communications. That is the only way we are going to
be able to continue to do it. For the House of Representatives to know
that they are causing our intelligence community to go deaf to the
communications of terrorists who are plotting attacks against the
United States is the height of irresponsibility. I hope it is not true
and that they reconsider.
My hope is they will come back and they will pass this important
legislation that will encourage our telecommunications industry to
cooperate with the lawful requests of the Commander in Chief as
certified by the chief law enforcement officer of the United States,
and that is the Attorney General, so we can continue to listen to these
communications in a lawful and legal way and protect the American
people. For the House of Representatives to refuse to take up this
matter and to vote on it is, again, I say, the height of
irresponsibility, and it endangers American lives.
I yield the floor.
[...]
fisa
Mr. McCONNELL. Mr. President, we have a serious crisis confronting
our country as a result of the House of Representatives' refusal to
take up the Senate-passed Foreign Intelligence Surveillance Act. We
know for a fact the following: We know that the Senate approved
yesterday, with 69 votes, a Foreign Intelligence Surveillance Act
crafted by Senator Rockefeller and Senator Bond that came out of the
Intelligence Committee 13 to 2. This is about as bipartisan as it ever
gets around here. We know in addition this bill is the only bill that
can pass the House of Representatives. They took up yesterday a 21-day
extension of existing law, and it was defeated. It was defeated because
there were 20 to 25 House Democrats who didn't want the bill at all,
want it to die, want to walk away from it and leave the American people
unprotected.
In fact, there is a bipartisan majority for the Senate-passed bill in
the House, and that is the only bill for which there is a bipartisan
majority in the House. Now we have all learned that the House of
Representatives is going to close up shop and simply leave town,
arguing that somehow allowing this law to expire will not harm America.
We know that at the heart of this struggle is retroactive liability
for communications companies that stepped up, in the wake of the 9/11
disaster, at the request of the Government, to help protect us from
terrorism. As a result, there are numerous lawsuits pending against
these companies, I assume largely by the American Civil Liberties
Union. The CEOs and the boards of directors of these companies have a
fiduciary responsibility to their shareholders. These lawsuits have the
potential to put them out of business. As a result of doing their duty
and responding to the request of the President of the United States to
help protect America, they run the risk of being put out of business.
That is what is before us. This retroactive liability problem
continues. It is not solved by continuation of existing law.
In addition, with the law expiring, it hampers opportunities
prospectively in the future to surveil new terrorist targets overseas.
So the notion that somehow no harm is done by allowing the law to
expire is simply incorrect. In fact, it borders on outrageous.
This was going to be another example of bipartisan cooperation on
behalf of the American people. We saw it at the end of the year last
year when we passed a bipartisan AMT fix without raising taxes on
anybody else. We passed an energy bill without a tax increase and
without a rate increase. We met the President's top line on the
appropriations bills. And, yes, we appropriated $70 billion for Iraq
and Afghanistan without any kind of micromanagement. At the beginning
of this year, we came together. It was a bit challenging in the Senate,
but we came together and passed a bipartisan stimulus bill to try to
deal with our slowing economy. We did it in record time. In fact, the
President had a signing ceremony 2 days ago.
I am wondering why this new bipartisan spirit we experienced in
December and again in January is breaking down on a matter that is
extraordinarily important to protecting the American people. It is
absolutely irresponsible for the House of Representatives to simply
throw up its hands and leave, particularly when the only measure that
enjoys a bipartisan majority in the House is exactly what enjoyed a
bipartisan majority in the Senate. It is the only measure that can pass
the House. So the refusal of the House leadership to take up and pass
the only bill that could possibly pass is an act of extraordinary
irresponsibility. Nothing else would pass over there.
I don't know why the House is even thinking about leaving town. They
have an important responsibility to help protect the American people.
The opportunity is right before them, and they will not take it.
Mr. CORNYN. Will the Senator yield for a question?
Mr. McCONNELL. I am happy to yield the Senator from Texas for a
question.
Mr. CORNYN. I ask the distinguished Republican leader whether the
voluntary cooperation of the telecommunications companies that have
cooperated at the request of the Government and upon certification by
the chief law enforcement agent of the country, the Attorney General,
is in jeopardy, if we merely continue the current law as opposed to
passing the bipartisan Senate bill? And if that is the case, doesn't
that just as effectively deny us access to terrorist communications as
if we did not pass the law itself?
Mr. McCONNELL. My understanding is the question suggests the answer.
The leadership of these companies has indeed a Hobson's choice, two bad
alternatives. They either continue to respond to the request of the
American Government to protect the homeland and then run the risk of
squandering all the assets of their companies and, thereby, generating
a lot of shareholder lawsuits against the directors for violating their
fiduciary responsibility. It is a terrible position to be put in. They
are entitled to be able to cooperate with the request of our Government
and not squander all the assets of their companies.
Mr. LEAHY. Will the Senator yield for a question?
Mr. CORNYN. Will the Senator yield for another question?
Mr. McCONNELL. I yield to my friend from Texas.
Mr. CORNYN. Mr. President, I would like to ask the distinguished
Republican leader if, in fact, because of the burden of these lawsuits,
some 40 different lawsuits against any telecommunications companies
that may have participated, if, in fact, they chose not to participate
in this program, is there any other option available to the
intelligence authorities to listen in on communications between
terrorists who are bent on wreaking havoc, death, and destruction on
the American people? Is there anywhere else to go?
Mr. McCONNELL. I don't think so, Mr. President. This is the only
solution to the problem. What is tragic, we know as a result of a
letter from the so-called blue dog Democrats, the more conservative
Democrats in the House, to Speaker Pelosi for sure that there is a
bipartisan majority in the House for passing the bill the Senate
passed. This is what the blue dog Democrats had to say to the Speaker.
Following the Senate's passage of a FISA bill, it will be
necessary for the House to quickly consider FISA legislation
to get a bill to the President before the Protect America Act
expires.
That, of course, will be Saturday.
We--
Referring to the blue dog Democrats----
fully support the Rockefeller-Bond FISA legislation, should
it reach the House floor without substantial change. We
believe these components will ensure a strong national
security apparatus that can thwart terrorism across the globe
and save American lives in our country.
The blue dog Democrats, coupled with House Republicans, make it
absolutely certain there is a bipartisan majority for our bill in the
House.
Further, the consequences of not passing such a measure
could place our national security at undue risk.
This is 21 blue dog Democrats in the House requesting the Speaker to
take up the bill that passed the Senate with 69 votes, obviously an
overwhelmingly bipartisan vote, pass it and send it to the President
for signature. This refusal to act is stunning, almost
incomprehensible.
Mr. CORNYN. Will the Senator yield for one final question?
Mr. McCONNELL. I will.
Mr. CORNYN. The Republican leader is aware that the House of
Representatives only recently had widely publicized hearings into the
use of steroids
[[Page S1034]]
and human growth hormone by baseball players. There has also been an
action taken recently to hold a former White House counsel and the
Chief of Staff of the President in contempt. Yet there appears to be no
time available on the House calendar to do things that actually would
protect the lives of the American people. Perhaps it is an obvious
answer, but it would seem to me to be clear that this ought to be a
high priority. Before we get to these kinds of political machinations
or perhaps publicity stunts, we ought to first protect the security of
the American people by passing this bipartisan legislation.
Mr. McCONNELL. Mr. President, it is my understanding that the House
was dealing with steroid use in baseball and trying to punish some
White House official over some internal dispute. It does strike me that
is a strange use of time, when we are 2 days from the expiration of
arguably the most important piece of legislation we have passed since
9/11 to protect us here at home. It is no accident that we haven't been
attacked again since 9/11. There are two reasons for it. One is, we
went on the offense and have had great success in Afghanistan and Iraq,
killing a lot of terrorists, many of them at Guantanamo, which I happen
to think is a good place for them. A lot of the rest of them are on the
run. I am often asked: We don't have Osama bin Laden. I say: Well, we
wish we did. But I can assure you, he is not staying at the Four
Seasons in Islamabad. He is in some cold cave somewhere looking over
his shoulder, wondering when the final shoe is going to drop. So going
on offense was an important part of protecting America and also this
extraordinarily significant legislation about which we have had
testimony from the highest officials that it has actually helped us
thwart attacks against our homeland. There isn't anything we are doing
that is more important than this, certainly not looking at steroid use
in baseball. As important as that may be, it certainly does not rise to
this level, or censoring White House officials.
Mr. LEAHY. Will the Senator yield for a question?
Mr. McCONNELL. I yield to my friend from Arizona for a question.
Mr. KYL. Mr. President, the first question I have is: Could the
intelligence community acquire new targets, if the Protect America Act
expires, without going to the FISA Court for some kind of an additional
warrant?
Mr. McCONNELL. Mr. President, it is my understanding they will not be
able to do that. So in addition to the retroactive liability issue,
which clearly is not solved by failing to act, we have this problem
that the Senator from Arizona has raised with regard to new targets. We
are clearly more vulnerable as a result of allowing this legislation to
expire, which will happen Saturday if the House of Representatives does
not act.
Mr. KYL. If the Senator will continue to yield, my recollection of
the words of Admiral McConnell, Director of National Intelligence, is
that--and I ask the leader to verify if I recall this correctly; I
think I am recalling it correctly--it doesn't matter whether the
Protect America Act expires or does not expire or is simply
reauthorized in its exiting form; the reality is, unless a new law is
passed that contains the retroactive liability protection feature, it
will become or is becoming increasingly difficult for the
telecommunications companies to provide the service the U.S. Government
needs them to provide to acquire this intelligence.
I wish to make sure I am not misstating this, that it is increasingly
difficult for these telecommunications companies to provide the service
our Government needs to collect this intelligence.
Mr. McCONNELL. My understanding is, the Senator from Arizona is
correct. It is not exactly that these public, spirited corporate
leaders do not want to help prevent terrorist attacks. It is that the
exposure to their companies as a result of these lawsuits runs the risk
of destroying the company and then opening them up to shareholders'
suits for irresponsible actions or violations of their fiduciary
responsibilities to their shareholders.
They are in an impossible position. We have, in effect, put them in
an impossible position by failing to provide for them the retroactive
immunity from liability they clearly deserve. These were public,
spirited Americans responding to a request from the Government to help
protect us at home. What they got for it was a couple of scores of
lawsuits.
Mr. KYL. I thank the leader.
Mr. REID addressed the Chair.
Mr. McCONNELL. Mr. President, I still have the floor.
Mr. REID. I am sorry about that.
Mr. McCONNELL. But I will be happy to yield.
Mr. REID. I did not want to interrupt the distinguished Republican
leader. Have you finished?
Mr. McCONNELL. I will be happy to yield the floor.
The PRESIDING OFFICER (Mr. Whitehouse). The majority leader is
recognized.
Mr. LEAHY. Mr. President, will the distinguished majority leader
yield for a question from me?
Mr. REID. Sure.
Mr. LEAHY. Mr. President, I tried to get the distinguished Republican
leader to yield, but he was unwilling.
Let me ask the distinguished majority leader, is it not a fact that
these public, spirited telephone company owners are threatening to turn
off wiretaps, according to the press accounts, that have been legally
ordered through search warrants because the U.S. Government has failed
to pay them millions of dollars, and does not pay them the millions of
dollars? I just wonder if any of the legislation we are talking about
might be mandating our own Government to pay the bills for the
wiretaps.
I ask that only because it seems this public spiritedness goes one
way if they want to be immunized or the administration wants to be
immunized from anybody asking them questions, but it goes a different
way if it comes down to the question of getting paid.
Mr. REID. My understanding is, there are millions of dollars owed to
the telephone companies, Mr. President.
Mr. LEAHY. Thank you, Mr. President.
Mr. REID. Mr. President, my friend from Texas talked about a
publicity stunt. That is what we have, but it is inverse. The publicity
stunt is all from the White House, supported by the people in the
Senate, the Republicans, who always walk lockstep with whatever
President Bush wants.
First of all, Mr. President, legal scholars are almost uniform in
saying that existing orders are broad enough and they would be broad
enough for the next year. Whatever is happening now is good for next
year. In fact, if someone disagrees with that, you have existing FISA
law that allows application for an emergency.
Mr. President, let me say this: I sent to the President of the United
States today a letter. Let me read this:
Dear Mr. President:
I regret your reckless attempt to manufacture a crisis over
the reauthorization of foreign surveillance laws. Instead of
needlessly frightening the country, you should work with
Congress in a calm, constructive way to provide our
intelligence professionals with all needed tools while
respecting the privacy of law-abiding Americans.
Both the House and the Senate have passed bills to
reauthorize and improve the Protect America Act. Democrats
stand ready to negotiate with Republicans to resolve the
differences between the House and Senate bills. That is how
the legislative process works. Your unrealistic demand that
the House simply acquiesce in the Senate version is
preventing that negotiation from moving forward.
Our bicameral system of government was designed to ensure
broad bipartisan consensus for important laws. A FISA bill
negotiated between the House and the Senate would have firmer
support in Congress and among the American people, which
would serve the intelligence community's interest in creating
stronger legal certainty for surveillance activities.
That negotiation should take place immediately. In the
meantime, we should extend the current Protect America Act.
Earlier this week you threatened to veto an extension, and at
your behest Senate Republicans have blocked such a bill.
Yesterday every House Republican voted against an extension.
So it is obvious the marching orders have come from the White House.
That was a paraphrase from me. That was not in the letter. I continue
the letter:
Your opposition to an extension is inexplicable. Just last
week, Director of National Intelligence McConnell and
Attorney General Mukasey wrote to Congress that ``it is
critical that the authorities contained in the Protect
America Act not be allowed to expire.''
[[Page S1035]]
In commentary, Mr. President, I say this is from the head of the
National Intelligence Agency, Director McConnell, and General Mukasey,
our Attorney General. They said:
[I]t is critical that the authorities contained in the
Protect America Act not be allowed to expire.
Similarly, House Minority Leader Boehner has said
``allowing the Protect America Act to expire would undermine
our national security and endanger American lives, and that
is unacceptable.'' And you yourself said at the White House
today--
That is today, Thursday--
``There is really no excuse for letting this critical
legislation expire.'' I agree.
I agree, Mr. President.
Nonetheless, you have chosen to let the Protect America Act
expire. You bear responsibility for any intelligence
collection gap that may result.
Fortunately, your decision to allow the Protect America Act
to expire does not, in reality, threaten the safety of
Americans. As you are well aware, existing surveillance
orders under the law remain in effect for an additional year,
and the 1978 FISA law itself remains available for new
surveillance orders. Your suggestion that the law's
expiration would prevent intelligence agents from listening
to the conversations of terrorists is utterly false.
In sum, there is no crisis that should lead you to cancel
your trip to Africa. But whether or not you cancel your trip,
Democrats stand ready to negotiate a final bill, and we
remain willing to extend existing law for as short a time
or as long a time as is needed to complete work on such a
bill.
I signed that ``Harry Reid.''
Mr. President, the President has created a crisis. As I have said on
the Senate floor, during the past 7 years he has become increasingly
proficient at scaring the American people. That is what he is trying to
do again today. Cancel his trip to Africa for this? But we, Mr.
President, are willing to work with him. The expiration of the law
stands on the shoulders of one person: George Bush. I am sure his ear
has been whispered in several times in the last week or so by the Vice
President. But the President is the one responsible ultimately. He has
instructed Republicans in the House not to agree to any extension, and
obviously the Senate Republicans also.
Unanimous Consent Request--S. 2615
So, Mr. President, I ask unanimous consent that the Senate proceed to
the consideration of Calendar No. 571, S. 2615; the bill be read a
third time and passed, and the motion to reconsider be laid upon the
table, with no intervening action or debate.
The PRESIDING OFFICER. Is there objection?
Mr. McCONNELL. Mr. President, reserving the right to object.
Mr. REID. This is a 15-day extension.
Mr. McCONNELL. Yes. Reserving the right to object, there is no need
for an extension. This current law expires Saturday. We know 68 Members
of the Senate have already voted for a Protect America Act that would
extend the law for 6 years. We know a majority of the House of
Representatives, on a bipartisan basis, thinks that law ought to be
taken up and passed. That is what we ought to be doing.
I am sure the Democrats in the House are grateful to their good
friend, the majority leader, for trying to protect them from their
actions. But the fact is, there is only one reason we have a crisis. It
is because the House Democratic leadership refuses to act on a bill
that enjoys bipartisan majority support in the House of Representatives
that we have already passed overwhelmingly. Therefore, I object.
The PRESIDING OFFICER. Objection is heard.
Unanimous Consent Request--H.R. 3773
Mr. REID. Mr. President, I ask unanimous consent that the Senate
request the House to return the papers of H.R. 3773, FISA legislation;
and that if the House agrees to the request, the Senate insist on its
amendment, request a conference with the House on the disagreeing votes
of the two Houses, and the Chair be authorized to appoint conferees on
the part of the Senate, with no intervening action or debate.
Is it my understanding the first request was objected to. Is that
right?
The PRESIDING OFFICER. There was objection. Objection was heard.
Is there objection?
Mr. McCONNELL. Mr. President, reserving the right to object, there is
no need for a conference when you have an overwhelming bipartisan
majority of the Senate in favor of the bill and a bipartisan majority
of the House in favor of the same bill that the Senate has already
passed. There is no need to go to conference because we know where the
majority of the Senate is and we know where the majority of the House
is. Why would we want to have a conference when the work the Senate has
done, the Rockefeller-Bond bill, is supported by a bipartisan majority
in the House? Therefore, I object.
The PRESIDING OFFICER. Objection is heard.
The majority whip.
Mr. DURBIN. Mr. President, what we are witnessing is not a crisis in
security. It is a crisis in logic. How can the Republican leader stand
here and argue how endangered America would be if we allowed this law
to expire and then object to extending the law? How can the minority
leader, Senator McConnell, stand here and argue that we should pass
this legislation and then object when the majority leader asks for a
conference committee?
This is not a crisis in security. It is a crisis in logic. This is a
manufactured political crisis by the White House and the Republican
leaders. If the Republican leader was so focused on giving this power
to the President, he could have said, ``I do not object,'' when the
majority leader asked for a 15-day extension.
But, no, they want a press release. They want something to put in
front of the American people to take their minds off the state of our
economy, to take their minds off the fact that we are just,
unfortunately, a few lives away from losing 4,000 soldiers in this war
in Iraq. They want to manufacture a security crisis.
The Senator from Kentucky should know--and I am sure he has able
staff to alert him--the law, as it currently exists, the FISA law--even
if we do not change it--gives ample authority to this President to
continue to monitor the conversations of those who endanger the United
States.
But, instead, as Senator Harry Reid has said repeatedly, this
President is trying to make America afraid--make America afraid. I
thought there was a great leader who said once: The only thing we have
to fear is fear itself. It turns out that it is fear itself that is
motivating this Republican leadership. If they would have provided 30
votes yesterday in the House of Representatives, this law would have
been extended. But they had their marching orders from the White House
to vote no, and they did. So the attempt to extend it failed. If only
30 Members on the Republican side in the House had stood up and voted
to extend the law, it would have happened.
If the Republican minority leader, Senator McConnell, had not
objected just moments ago to the unanimous consent request of Senator
Reid, the Democratic leader, this law would have been extended.
It is obvious to those following the debate, the crisis is in the
logic on the Republican side. You cannot have it both ways. You cannot
complain that the law is going to expire, and then object to an
extension. It does not work that way. Even at the University of
Louisville, it does not work that way. Their philosophy department
would tell you that does not track, it does not follow.
So I would urge the Senator from Kentucky, if you really are
concerned about whether this law is extended, please reconsider your
objection to extending this law, as Senator Reid has asked repeatedly.
I think the American people know what is going on here. This is not
about security. This is about political cover. This is about
manufacturing a political argument and manufacturing a crisis--a crisis
of the White House's own creation. The President and his party bear
full responsibility if any intelligence gaps result.
The PRESIDING OFFICER. The Republican leader.
Mr. McCONNELL. Now, Mr. President, facts are a stubborn thing--a very
stubborn thing--and I am sure the Democrat leadership over in the House
appreciates the efforts being made by the majority leader and the
majority whip to protect them from the obvious. The obvious is--and
they know this even at the University of Illinois--that the majority of
the Senate has spoken, an overwhelming majority of the Senate, not just
on final passage which was 68 to 29, and cloture, which was 69 to 29,
but also the Feingold amendment
[[Page S1036]]
was defeated 63 to 35, the Dodd amendment 67 to 31, the Feingold
amendment 60 to 37, the Specter-Whitehouse amendment 68 to 30. This is
not close. This bill went out of the Senate with a riproaring,
bipartisan majority. And we know for a fact--and facts are a stubborn
thing, I say to my good friend from Illinois--we know for a fact that
the Rockefeller-Bond bill is supported by a bipartisan majority in the
House of Representatives. We know that. It is a matter of simple
addition. So why would we want to have a short-term extension to
provide an opportunity to resolve a dispute that doesn't exist?
The majority has spoken in the Senate. The majority will speak in the
House if given the opportunity to speak. They are being denied the
opportunity to speak because the House runs in a different way from the
Senate, and the House leadership can simply refuse to take up a matter
that is supported by a bipartisan majority in the House. In this
particular instance--talk about a publicity stunt or creating a
crisis--what created the crisis was the refusal of the House of
Representatives to act. Now, the notion that somehow they didn't have
time--we have been dealing with this issue since last August--since
last August. The House had previously sent a bill over here that was
unacceptable. We are all familiar with the subject matter.
It is time to let a majority of the House of Representatives speak--
legislate. They are waiting there to be given permission to ratify the
fine work led by Senator Rockefeller and Senator Bond here in the
Senate and ratified by a total of 68 out of 100.
So we have a crisis, but the crisis is created by the majority in the
House and its refusal to accept the obvious, which is that a majority
of the Congress wishes to pass the legislation in the form that will
achieve a Presidential signature.
Mr. President, I yield to the Senator from Texas for a question.
Mr. CORNYN. Mr. President, I ask the distinguished Republican
leader--the majority whip has said there is some sort of crisis in
logic, but I ask the minority leader to respond. Isn't the crisis in
logic that the telecommunications carriers, whose cooperation is
absolutely essential to the continuation of our ability to listen in on
communications between terrorists, isn't that what is at risk here, by
merely extending the current law and finally to come to grips with the
bipartisan legislation that passed the Senate and is supported by a
bipartisan majority in the House?
Mr. McCONNELL. Mr. President, I say to my friend from Texas, he is
entirely correct. There are multiple lawsuits pending against the
companies. They are surely being pressured by their shareholders and
their boards of directors on the issue of whether continued cooperation
means the demise of the companies. The status quo, as the Senator from
Texas indicates, is not acceptable. Not only that, but we know for a
fact that the continuation of the status quo hampers the ability to go
up on new targets prospectively, so we not only have a deteriorating
situation in terms of continued cooperation from the communications
companies--not because they are not public-spirited citizens, not
because they don't want to help America, but because they run the risk
of squandering all the assets of their companies and enhanced exposure
to new actions that might occur by terrorists.
So the status quo is clearly not acceptable, I say to my friend from
Texas. I think his question suggests the answer.
This is a very serious matter and I regret that we are where we are.
We had gotten off, I thought, to a pretty good bipartisan start this
year. I had hoped--and frankly expected--that we would be having
another signing ceremony down at the White House on the Rockefeller-
Bond bill in the next few days and we could breathe easy that we had
done our job and had protected the American people to the maximum
extent possible for the foreseeable future.
I yield the floor.
The PRESIDING OFFICER. The majority leader is recognized.
Mr. REID. Mr. President, facts are stubborn. The facts are that
within the last few days, we received a communication from the Attorney
General of the United States and the man who is the Director of
National Intelligence saying: ``It is critical the authorities
contained in the Protect America Act not be allowed to expire.'' That
is a fact. That was followed up with a statement by the House minority
leader who said: ``Allowing the Protect America Act to expire would
undermine our national security and endanger American lives, and that
is unacceptable.'' And today, the President of the United States said:
``There is really no excuse for letting this critical legislation
expire.''
Those are the facts. So when we ask to accomplish what they want,
there is an objection.
It is very clear, this is not an effort by the White House to protect
the American people, it is an effort to protect the phone companies. It
is not the American people.
We heard from the Attorney General, we heard from the Director of
National Intelligence, the minority leader of the House, and the
President of the United States. We agreed to do what they want to do to
try to extend. The Republicans were given the orders not to do what
they wanted. Those are the facts.
Now another issue that is very important: The majority in the House
of Representatives and the majority in the Senate have both spoken. A
basic elementary rule of this Government is that we have a bicameral
legislature. We have the House and the Senate. In November, the House
passed by a majority what they thought should happen in the way of
extending this. We, a few days ago, decided what we thought we should
do. It is elementary that after that happens, there must be a
conference. They won't let us go to conference--``they'' meaning the
Republicans. So a majority of the House voted in November for a
different bill. That is why we need a negotiation. That is why we need
a conference. That is how a bill becomes law. That is the way it is.
That is the law. We have already decided that facts are stubborn.
Clearly, if we were arguing this case to a jury--and I think probably
as well the American people--they probably know that this is an effort
by the President to scare us and in exchange for that, he wants to try
to take care of the phone companies, not the American people.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, my name has been invoked frequently
here over the last several weeks as passing a bill which was not
favored by the majority of the people of my aisle, and the phrase
actually was used by the majority leader, who is never wrong, that we
did what the President wanted.
I didn't do what the President wanted. I did what I thought was the
right thing to do. I was joined by a variety of my colleagues,
including the Presiding Officer, who reserved the right to have other
views on the floor, which he did, but ended up voting for the bill.
What absolutely baffles me is that we are literally--we can do this
FISA bill. I am meeting tomorrow morning with the chairman of the House
Intelligence Committee, who may be the only House member in town--I
have no idea, but I don't care because he is the chairman--on what we
can do to save this. I am absolutely convinced that we can have--in the
hearing this afternoon, the Presiding Officer heard me put this to the
Director of National Intelligence, who couldn't answer it because it
was not a policy question, but more of a political question. I said:
You are going to get the majority of your information all the way
through August. The President praised our bill and then came out the
next day and said: Of course, if the House doesn't pass it, we are
going to lose our intelligence and we will be vulnerable to the
terrorists. That was a misstatement, I think an annoying misstatement.
I don't understand. I simply don't understand, if something is good
and if the President is willing to sign a bill which this Senator in
his conscience feels is right, and it takes 15 days to do it, what the
minority leader needs to understand--and he served in the House. I am
sure he understands that they have now been jammed twice. They have
been jammed. There is something called human nature, and it is not
illegal to talk about human nature on the floor of the Senate. They
have been jammed. They have been
[[Page S1037]]
pushed down to a 2-day period or a 3-day period when they had to make a
decision. They resent that. But if they were given a period of time,
they would come, in my judgment, to where we are, and the bill would go
to the President and he would sign it.
Now, let me say something more. What people have to understand around
here is that the quality of the intelligence we are going to be
receiving is going to be degraded. It is going to be degraded. It is
already going to be degraded as telecommunications companies lose
interest. Everybody tosses that around and says: Well, what do you
mean? I say: Well, what are they making out of this? What is the big
payoff for the telephone companies? They get paid a lot of money? No.
They get paid nothing. What do they get for this? They get $40 billion
worth of suits, grief, trashing, but they do it. But they don't have to
do it, because they do have shareholders to respond to, to answer to.
There is going to be a degrading of the nature of our intelligence in
some very crucial areas if we follow the path that the minority leader
is suggesting, because we will go right back to where we were last
August, and that will be a further jolt to the telecommunications
companies, because they will understand that you cannot count on the
Congress, you cannot count on us to make policy which will give
stability to their--not government agencies but to their corporations.
Fifteen days. We are off for a week, so maybe it has to be 25 days. I
don't know. I don't care about that. We could have the same bill on
this floor from the House. I am convinced of it. It is human nature.
Give them a chance to have a grudge. I am going to meet with the
chairman tomorrow. Let him rip into me for not giving the House an
adequate chance for the second time to discuss this matter. But I am
absolutely convinced that we could have that bill on the floor in this
body and pass it and send it to the President. Why they don't want to
do that, I do not know.
I yield the floor.
[...]
