[Congressional Record: December 17, 2007 (Senate)]
[Page S15710-S15767]
FOREIGN INTELLIGENCE SURVEILLANCE ACT--MOTION TO PROCEED
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of the motion to proceed to S. 2248,
which the clerk will report.
The legislative clerk read as follows:
A motion to proceed to the bill (S. 2248) to amend the
Foreign Intelligence Surveillance Act of 1978, to modernize
and streamline provisions of that Act, and for other
purposes.
The ACTING PRESIDENT pro tempore. The Republican leader is
recognized.
Mr. McCONNELL. Mr. President, I will proceed on leader time so as not
to encroach on the complicated agreement we reached on dividing time.
The ACTING PRESIDENT pro tempore. Without objection, it is so
ordered.
Mr. McCONNELL. Mr. President, heading into our last work week,
Republicans remain focused on the two principles that have guided us
all year: protecting and defending the country from harm and protecting
taxpayers' wallets. In these last few days, we will face some of the
most crucial tests of the year on both fronts.
On security, Senate Republicans will amend the House version of the
Appropriations bill to include funding for the troops in Iraq. Our men
and women in uniform deserve our support wherever they are serving.
These funds are dangerously overdue. Delaying them further could put
the Pentagon in serious straits and potentially jeopardize the
universally acknowledged gains of the Petraeus plan.
We will also need to act wisely on reforming the FISA law that lets
our intelligence agents track terrorists overseas. The success of this
law over the last several years should be obvious to everyone.
The Intelligence Committee has produced a bill that would retain its
core strengths; that has broad bipartisan support; and that, with
slight modification, the President would sign into law. We need to act
on this version of the revision without any political games.
On protecting taxpayers, we have two major pieces of legislation to
finish: AMT, and a fiscally responsible omnibus bill.
A quarter of the way into the fiscal year, we have passed 1 of 12
Appropriations bills from last year.
We need to evaluate this omnibus and make sure it is written in a
form the President will sign. That means funding for our forces in
Afghanistan and Iraq, no excess spending, and no poison pills in the
form of politically motivated policy riders.
Crucially, we also need to assure middle-class Americans we are not
going to raise their taxes or further delay their tax refunds. The
House needs to patch the AMT tax that now threatens 23 million
taxpayers it was never meant to affect, and they need to do so without
raising other taxes on these households.
We saw last week we could get legislation out the door when we work
together. After Republican insistence, we passed an energy bill without
raising taxes or utility rates. We will need to repeat that effort this
week on several issues that lie at the very heart of our
responsibilities to the American people.
We need to ensure the safety of our citizens. We need to keep them
from being hit by new and unnecessary taxes.
We will need to do all this and act on several important executive
nominations. New week. Much to do. America's watching. Let's get to
work.
The ACTING PRESIDENT pro tempore. Under the previous order, the time
until 12 noon is equally divided and controlled between the two leaders
or their designees, with the Senator from Connecticut, Mr. Dodd,
controlling 35 minutes and the Senator from Wisconsin, Mr. Feingold,
controlling 15 minutes of the opponents' time.
Who seeks recognition?
The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I am not a part of the order as read
by the Chair.
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senator has been allocated 20 minutes.
Mr. ROCKEFELLER. I thank the Chair.
Today, the Senate begins debate on S. 2248, the FISA Amendments Act
of 2007. I am confident in saying without any risk of exaggeration that
FISA modernization is one of the most important matters that will be
considered by this Congress. It calls on us to get two essential
matters entirely right--protection of our national security and the
preservation of the privacy of our citizens.
I am proud of the substance of the bill the Intelligence Committee
reported to the Senate in late October on a strong bipartisan vote of
13 to 2. I am equally proud of the process by which we achieved that
result. The distinguished vice chairman of the committee, Senator
Christopher Bond, and I provided simple guidance for all who worked on
this bill: First, work together, reach out; second, reach out
particularly to the intelligence community and the Department of
Justice for their expertise; third, keep in mind at all times the
fundamental principles of protecting both the security and the privacy
of all Americans; and finally, remain united in our effort to produce a
bill that will meet the test of Congress and that will be signed into
law by the President.
I am also grateful to all members of our committee for their
contribution. As the Senate can see from our report, we debated and
voted on highly important issues. We then sought as a committee to lay
out for the entire Senate and the American public a description of our
bill, the reasons for it, and, in additional views, further
improvements that Members might seek. Our report is on each Member's
desk. It is also on our committee's Web site and the Web site of the
Library of Congress. I urge every Member of the Senate to read it,
including a careful section-by-section explanation of the bill.
Of course, some sensitive intelligence matters cannot be described in
a public report. That makes this something of an awkward procedure. If
any Member has a question about a classified matter, please let the
vice chairman or myself know, and we will do our best to
[[Page S15711]]
answer your questions in a classified setting.
I am also pleased that we will be sharing the management of this
debate with Senator Leahy and Senator Specter, the distinguished
chairman and ranking member of the Judiciary Committee. From the very
beginning of the Foreign Intelligence Surveillance Act of 1976, it has
been a joint responsibility of the Intelligence Committee and the
Judiciary Committee. It is, after all, a statute that concerns both
intelligence collection and judicial proceedings. The Judiciary
Committee considered the Intelligence Committee bill on sequential
referral and has reported a proposed amendment to our bill.
In accordance with Senate rules, the Senate has before it only one
bill; that is, the Intelligence Committee bill, S. 2248. The
legislative recommendations proposed by the Judiciary Committee will be
the first pending amendment. Some of the suggestions the Judiciary
Committee made improve the quality of our product.
I commend Majority Leader Reid for his decision to bring the FISA
bill before the Senate under the regular order. While some advocated
bringing before the Senate a hybrid bill which combined parts of both
committees' work into one bill, the majority leader recognized that
following regular order would not only allow for orderly consideration
of important amendments but ultimately produce an even stronger
bipartisan bill.
The products of the Intelligence and Judiciary Committees have a lot
in common. Both fix a number of deficiencies in the flawed Protect
America Act, hastily passed in August, as we all remember. Both
strengthen our national security while protecting American civil
liberties and privacy rights through enhanced and mandatory court
review and approval of surveillance activities. Both would greatly
improve oversight and accountability and ensure that the unchecked
wiretapping policies of the Bush administration are a thing of the
past.
Finally, each committee's work includes a sunset provision. Each
strengthens the exclusivity of FISA--all concepts to be explained. Each
establishes court approval of surveillance of Americans overseas--
perhaps the most important of all the amendments. But there are
differences in how each committee went about effecting these important
protections.
Over the past month, we have worked very closely--our staffs--
together to determine how best to reconcile the work of the two
committees. It has been a bipartisan, straightforward process. I
believe we have been able to work out a number of important amendments
that take elements of the Judiciary Committee's work and add them to
the underlying Intelligence Committee bill. There are some elements of
the Judiciary Committee substitute amendment, however, that I do not
support, but in all instances, I deeply appreciate the work of Senator
Leahy and our colleagues on the Judiciary Committee.
I commend in particular the extraordinary contribution during this
process of four Senators serving on both committees: Senator Feinstein,
Senator Hatch, Senator Feingold, and Senator Whitehouse. They have
worked tirelessly in their dual committee assignments to make this
legislation as sound and balanced as possible.
Before I go into any details of the legislation and the expected
debate over the next few days, I want to briefly remind my colleagues
of the history of the debate and why FISA modernizing is so important.
The need to modernize FISA is explained by looking at the convergence
of three elements in recent years. One is the rapid change of the
world's communications systems, with new challenges and opportunities
for signals intelligence arising from the fact that much of the foreign
intelligence information now passes through or is stored in American
electronic space. The second change is the significant increase in the
number of intelligence targets outside of the United States,
particularly as a result of international terrorism but also from
weapons of mass destruction proliferation and other foreign threats.
The final key judgment is that the 30-year-old FISA law has required a
large number of individual applications to the FISA Court for the
surveillance of foreign persons outside the United States, which was
never intended--which was never intended--under the original
legislation and does not involve the privacy of Americans.
So the question before our committee was not whether to modernize
FISA but how to modernize FISA. We began this effort in March of this
year, when the vice chairman, Senator Bond, and I notified the Attorney
General of our intention to address FISA modernization. We also advised
the Attorney General we would focus on whether legislation should be
enacted to address the legal consequences of the President's
warrantless surveillance program; namely, the many lawsuits resulting
from the President's decision to act outside of the statutory
requirements of FISA. In response, the Director of National
Intelligence submitted a legislative proposal in April, which the
Intelligence Committee began to consider at a public hearing in May.
These efforts to address FISA, however, were stalled for several
months because of disagreements with the administration over access to
key documents relating to the President's warrantless surveillance
program. Yet, given the pressing need to fix FISA and allow for timely
collection, we made a concerted effort over the summer to produce a
bill that both the Congress and the administration could support.
Unfortunately, it did not work. The result of that effort ended in the
hastily passed and significantly flawed Protect America Act, which
allowed for timely collection, yes, but did not include significant
FISA Court safeguards.
In order to fix the Protect America Act and protect the privacy of
Americans while strengthening the timely collection of intelligence,
our Intelligence Committee spent several months this fall working on a
new bill--the bill before us today--which accomplishes four principal
reforms.
First, the special procedures provided by this bill apply only to
persons outside the United States. If somebody is in the United
States--an American is in the United States--all the traditional
provisions and protections of FISA continue to apply. Everyone agrees
this should be the case. The distinction of whether the target of
surveillance is foreign or domestic makes it imperative that there is
an adequate basis for determining whether somebody is reasonably
believed to be outside the United States.
An important safeguard for Americans in the bill is the requirement
for court-approved targeting procedures that are reasonably designed to
accurately make the determination whether somebody is outside of the
United States. The Protect America Act had included that requirement,
and our bill does the same. But the Protect America Act had limited the
authority of the FISA Court to review the reasonableness of those
procedures by imposing a ``clearly erroneous standard'' on that review.
Our bill strikes that limitation.
Second, our bill recognizes that minimization procedures have been an
essential part of FISA from the beginning and will continue to play an
essential role. These will be explained. These are procedures to
ensure, among other things, that if Americans are overheard in
conversations of a foreign target or there is discussion about
Americans, that the identity of those Americans only be revealed within
the U.S. Government if there is a good foreign intelligence purpose for
so doing.
The Protect America Act had provided that the Attorney General
approve minimization procedures, but it did not provide for court
review of them. Our bill corrects that deficiency. The FISA Court will
now have the responsibility to ensure that the procedures comply with
the law.
Thirdly, our bill provides protections for U.S. citizens who are
outside the United States. Under the Protect America Act, if a U.S.
citizen sets foot outside the United States, he or she would be treated
the same as any foreigner outside the United States.
The Intelligence Committee rejects the proposition that Americans
lose rights--any kind of rights--because they travel or work elsewhere
in the world. An essential part of the rights of an American is the
determination by a judge whether there is probable cause to believe an
American outside the United States is a lawful subject of surveillance
by our own Government.
[[Page S15712]]
This is a concept which both committees--Democrats and Republicans
alike--agreed to. Director of National Intelligence Mitch McConnell
endorsed this change in law as well in testimony before the
Intelligence Committee. There are, however, some differences in how to
accomplish this. After considerable negotiation, I believe we have
reached an agreement on a bipartisan amendment which would reconcile
the approaches of the two committees and resolve the concerns of the
administration over unintended consequences of the language reported
out by both committees.
It is my hope, given the centrality of this reform to the work of
both committees, that this bipartisan amendment is the first one before
the Senate once cloture is invoked, if it is invoked and we are,
therefore, then on the bill.
The fourth principal accomplishment of the Intelligence Committee
bill is that it considerably enhances oversight of these protections by
each branch of Government. This is achieved through a series of annual
reports to Congress on the authorized collection, including instances
of noncompliance; inspector general reviews by the Justice Department
and the intelligence community; and FISA Court review and approval of
acquisition and minimization procedures.
As we begin debate on these and other important issues, one of the
concepts the Senate will hear a lot about is exclusivity. Exclusivity
addresses the question of whether FISA and the laws that explicitly
govern the domestic interception of communications for law enforcement
purposes are the exclusive means by which the President may authorize
the surveillance of Americans.
The President claims that he has the authority as Commander in Chief
to approve surveillance even when he has no statutory authority to do
so. No act of Congress by itself can finally resolve that debate
between Presidential and congressional authority, but what Congress can
make clear is which statutes authorize electronic surveillance.
The significance of this, in connection with our recent national
experience, is that the Department of Justice has claimed that the
authorization to use military force, passed in response to 9/11,
somehow authorized the President to disregard FISA. Not only is this
proposition dubious at best, in my opinion, it is also dangerous. In
fact, the next time Congress is asked to act quickly in response to an
attack, should there be one, it may pause and take time to consider
whether its authorization to use force will have completely unintended
consequences, such as authorizing the President unlimited power to
violate acts of Congress.
To make sure authorizations for the use of military force do not
again become an excuse to wipe away acts of Congress, both the
Intelligence and Judiciary Committees sought to make even clearer than
before which statutes constitute the exclusive means for conducting
electronic surveillance.
I believe we have been able to work out language on an amendment that
will reconcile the differences in these two bills.
The Intelligence Committee also establishes a 6-year sunset for the
new authority it provides. A sunset is essential because we owe it to
the American people to make sure we have gotten both parts of this
system right--effective intelligence collection and the protection of
the privacy of Americans--before settling on what should be permanent
law. The Judiciary Committee amendment proposes a 4-year sunset. The
House FISA bill provides for a 2-year sunset. The administration
opposes any sunset. I will join with Chairman Leahy in support of an
amendment to incorporate the Judiciary Committee 4-year sunset into the
underlying bill. Four years will ensure that a decision on permanency
is made during the next Presidential term, not the one succeeding it.
Finally, title II of the committee's bipartisan bill addresses the
question of protection for telecommunications companies that assisted
the Government during the course of the President's warrantless
surveillance program.
The Intelligence Committee carefully reviewed this matter of
retroactive liability protection for companies prior to reporting out
its bill. We received and reviewed the letters sent by the
administration to the companies. These letters stated that the
assistance of the companies was ``required,'' that the request was
based on order of the President, and that the Attorney General had
certified the form and legality of the order.
In the course of our investigation, the committee heard from the
companies themselves as well as administration officials and many
others and determined that the companies were not provided with any of
the Justice Department legal opinions underlying the Attorney General's
certifications they received ordering them to do something which has
come to put them at risk.
In the end, a bipartisan consensus of the Intelligence Committee
supported a narrowly drawn retroactive immunity provision. I want to
stress the phrase ``narrowly drawn'' because what the committee
approved was not--I repeat: was not--the broad and open-ended immunity
sought by the administration.
The committee immunity provision applies only to companies that may
have participated in the warrantless surveillance program from a
specific period of time--from 9/11--until it was placed under FISA
Court authorization in January 2007. Nothing in the bill provides
immunity for Government officials for their actions--that is in the
current law; it is not in the law that we have proposed--nor to
companies outside the specified timeframe.
The 12 members of our committee who supported the provision did so
for different reasons. Some Senators believed that the President acted
within his constitutional responsibility and authority in establishing
the surveillance program. Some other Senators, including me, believe
the President trampled on our Constitution and our laws in unilaterally
creating a warrantless surveillance program in 2001 and continuing it
for years without seeking statutory authority to support it. But no
matter what may be the views about the President's adherence to the
law, our collective judgment on the Intelligence Committee is that the
burden of the debate about the President's authority should not fall on
telecommunications companies because they responded to the
representations by Government officials at the highest levels that the
program had been authorized by the President and determined to be
lawful and received requests, compulsions to carry it out.
Companies participated at great risk of exposure and financial ruin
for one reason, and one reason only: in order to help identify
terrorists and prevent follow-on terrorist attacks. They should not be
penalized for their willingness to heed the call during a time of
national emergency.
I conclude by urging my colleagues to support cloture on the motion
to proceed so that we can turn our attention to reconciling the fine
work of the Intelligence and Judiciary committees and ultimately pass a
FISA reform bill before adjournment.
Every one of us in the Senate and in Congress has a responsibility to
correct the flaws in the Protect America Act and put our Nation on
firmer footing in authorizing critical intelligence surveillance
activities that are effective, while safeguarding the constitutional
rights of Americans.
I thank the Acting President pro tempore, and I yield the floor.
The ACTING PRESIDENT pro tempore. The Senator from Missouri is
recognized.
Mr. BOND. Mr. President, we yielded some time to the distinguished
chairman from my side. How much time is remaining on this side?
The ACTING PRESIDENT pro tempore. There is 46 minutes remaining.
Mr. BOND. Forty-six. I thank the Chair.
Mr. President, first let me begin by thanking our majority leader,
Senator Reid, and our minority leader, Senator McConnell, for bringing
this very important bill to the Senate floor. It is critical that we
discuss it, debate it, vote on it, and pass it. I express my great
thanks to the chairman of the committee, Senator Rockefeller, for his
thoughtful discussion of the bill and his urgent request, in which I
join, that all Members of this body move forward, adopt cloture, and
adopt this bill. I wish to thank the chairman and all of the members of
the committee and the staff of the Intelligence Committee who have
labored long and hard
[[Page S15713]]
over many months, beginning well before the April request for
legislation, to understand the program. I believe almost all of us have
gone out to the NSA to see how the program works and to see what the
protections are that are built in.
We have asked questions many times over. I think I have heard the
same questions asked many times, and each time they are explained, I
learn a little bit more. I think we have a good understanding--not a
perfect understanding--of the process, but we do fully appreciate how
important it is.
The bill before us today reflects a tremendous amount of work and
compromise. The distinguished chairman and I and others have had
disagreements. We view things a little bit differently. But I think it
is significant for this body to realize we came together, the majority
and the minority, in a 13-to-2 vote to present to this body a good
compromise. Nobody is 100 percent happy with it. I don't expect them to
be. But this is about as good as we can do in earthly matters, and
particularly in congressional matters, if we can come that close, I
think it is a good product.
Obviously, I have some disagreements with the chairman on the Protect
America Act of which I was a principal sponsor. Because that bill was
passed--had to be passed hurriedly before the August recess--what we
were able to do in that bill was to restore the FISA process with a
Foreign Intelligence Surveillance Court acting as it had originally
been intended to act: to approve collections on U.S. persons in the
United States. We changed the law so that technological changes would
no longer bring within the FISA Court jurisdiction--or the FISA Court
workload, more appropriately--collections on foreign targets where very
often they were communicating with foreign recipients of messages. That
was never the purpose and, as I indicated on the Senate floor, the FISA
Court objected to the intelligence community having to be burdened by
approving collections against targets where there was only minimal
impact on any U.S. citizen.
The Protect America Act did fill in a critical national security
intelligence gap. We all heard about it for a number of months. The
intelligence community was shut out of the ability to go up on foreign
targets which might have had vital information. Now, we have had time
to consider all of the aspects of this collection program, and we have
come up with a plan that will modernize the bill not only to make sure
it keeps up with modern technology, but that it adds additional
protections under the Foreign Intelligence Surveillance Act.
This morning, in a few minutes, we will hear from some of our
colleagues about why they are not happy with the bill coming before us.
I would venture that some individuals made the same speeches back in
1978 before the passage of that bill as well. But let me state the
measure very plainly. The question is, Can the intelligence community
of the United States obtain signals intelligence on foreign persons
believed to be terrorists and reasonably believed to be outside of the
United States, and do so in a manner that will protect us.
We know the electronic surveillance that was done under the
President's program and under the current FISA Court jurisdiction has
provided valuable intelligence which has helped to thwart attacks on
the United States and, more importantly, as we heard from GEN Stan
McCrystal, the commander of the Joint Special Operations Command, when
the outmoded FISA law application shut down our ability to collect
foreign intelligence, the people most greatly at risk were our men and
women in the service overseas who did not have the benefit of
collection of intelligence that might have foretold attacks on them. So
our men and women volunteers defending America, protecting security in
the world, were without the protection our technology enables us to
collect at the same time they were fighting overseas, and this kind of
information could have been a big help.
Well, the legislation we are looking at today contains far greater
protections for U.S. persons than this body ever conceived of or was
ever willing to grant Americans when it passed FISA 30 years ago. We
have gone further than ever before in this bill in protecting
Americans' privacy rights, and I am proud to be part of the process
that is shoring up our national security while protecting to the
greatest extent possible the liberties of all Americans.
The chairman is correct; we made many changes. We added many
protections--important protections--that the Director of National
Intelligence agreed were necessary additions to provide protections for
Americans, U.S. persons that were not previously in the law. But I
believe we can say today that Americans can feel safe and secure; that
not only is their privacy being protected but their lives are being
protected from terrorist attacks if we pass this bill which will
modernize and extend FISA.
We have an urgent need to proceed to the Senate's consideration of
the FISA amendments of 2007. Just last week, the Senate heard from our
Director of National Intelligence, ADM Mike McConnell, and Attorney
General Mike Mukasey in a closed briefing about the vital importance of
this legislation to our intelligence collection efforts. This
legislation will give the intelligence community the tools it needs
today and in the future to protect our country.
The Protect America Act, passed in August by Congress, allowed the
intelligence community temporarily to close critical intelligence gaps
that were impeding the intelligence community's ability to protect our
troops and to detect terrorist plots against our homeland. That
temporary legislation expires in less than 2 months, and we must not
let those dangerous gaps reopen. Two months may seem like a lot of
time, but when it comes to this bill or when it comes to floor action
in the Congress in both Houses and then a conference, it is a very
short time period. Anybody who has watched this distinguished
deliberative body and its counterpart on the other side work knows that
2 months sometimes can go in the flash of an eye.
The Senate will go out of session this week until mid-January,
leaving only about 2 weeks for us to work out our differences with the
House to get a bicameral bill sent to the President--one that he can
sign into law before the current Protect America Act expires on
February 5. I regret the majority did not let this important bill get
to the floor sooner, particularly when we had the DNI on the Hill last
March urging Congress to modernize FISA, giving us his template of
legislation for FISA modernization in early April. But we are here in
the last week before Christmas, and I hope we will not waste any time
in passing the bill on the way to becoming law.
I sincerely hope we are not going to leave ourselves in the same
uncomfortable position we found ourselves in this past August when the
Senate's consideration of the Protect America Act had to be passed very
quickly. Because the Senate waited from April until August to act, we
found ourselves in a chaotic rush to pass a bill, and there were
genuine fears in the intelligence community that a terrorist attack
against the homeland might be in the works. If we had acted in a more
timely manner, we would not have had some of the hard feelings we do
today that resulted from that rushed process in August. That process
produced a bill that continued FISA as it was originally intended but
did not include the additional protections we have added today.
The good news, however, is that all of that is ancient history now
because the product we have coming before us today is a thoroughly
bipartisan Intelligence Committee bill that was put together in close
coordination with the subject matter experts in the offices of both the
Director of National Intelligence and the Department of Justice. I can
assure my colleagues that all of the good ideas we have had--I have had
and other members of the committee have had--when we have taken them to
these experts, we have found out you have to do it this way if you want
to accomplish the results you want. Some of the things we attempted to
do had impossible burdens that we did not understand until we laid them
out for these experts. They have told us how to accomplish our purposes
and do so in a manner that would be effective in protecting the
interests, and yet not destroy the ability of the intelligence
community to collect the information we need.
[[Page S15714]]
So I implore my colleagues in the Senate to move as quickly as
possible on this bill since its construction has been quite deliberate
so that we do not repeat the history of the hasty manner in which we
had to pass the Protect America Act. But that also means we must pass a
good bill that will not get vetoed. We don't have time for that. It is
always fun to posture and make political statements, but what is more
important, we don't have to do that. The bill coming before the Senate
out of the Intelligence Committee offers the legislation that gives the
intelligence community the flexibility it needs to protect our troops
and those of us in America, while protecting the privacy and civil
liberties of Americans. With two small fixes that Chairman Rockefeller
and I intend to add to the bill in a manager's amendment, I have been
assured that the President will sign that bill.
Now, let me comment a minute on exclusivity. We are working on an
agreement on exclusivity that states to the greatest extent possible
this will be the exclusive legislative means for the President to
collect foreign intelligence. As one who used to be a student of the
Constitution and still remembers a little bit of it, I have been
impressed to read over the years how article 2 of the Constitution has
been interpreted. Article 2 of the Constitution has been interpreted to
say that the President--the President alone--has the power to collect
foreign intelligence.
That power was used by Presidents going back in history. President
Carter and President Clinton have used that bill to collect
information. The FISA Court of Review has said, in the in re: Sealed
Case, that the President's power to collect foreign intelligence
remains. The President has put this bill under the FISA Court. So he
has accepted the jurisdiction of the court in assessing the
appropriateness of the collection means that have been requested.
We cannot erase by legislation a constitutional power. That
constitutional power that the President has was fully laid out in the
opinions and advice given by the Department of Justice and the
intelligence community to any carriers that may have participated in
the collection of information during the pendency of the President's
terror surveillance program.
One other item I will comment on is the sunset. The provision we have
in the bill--the 6-year sunset--is a compromise we reached. I don't
believe a bill such as this should have a sunset. FISA did not have a
sunset. It stayed in effect from 1978 until 2006. We should have
reviewed it before. That is what we are in business for.
The Intelligence Committee of the Senate continues to hold hearings
and have oversight of the intelligence community, and I would expect
that if we see problems in the bill, we will move to correct them when
we see them, not wait to a sunset. General Mukasey strongly opposed
having any sunset on the bill, and I oppose lessening the sunset from 6
years. In fact, I prefer to see that sunset provision out of the bill.
To summarize, S. 2248, the bill passed out of the Intelligence
Committee by a solid bipartisan vote of 13 to 2, on which I hope the
Senate invokes cloture in a few minutes, will be the proper means of
assuring the intelligence community can go forward with the vitally
important collection of signals intelligence, while at the same time
protecting the civil rights and privacy of all Americans and U.S.
persons.
The bill is an extremely delicate arrangement of compromises that
will fall apart if significant changes are made to it. By ``fall
apart,'' what I really mean is it won't become law. We need a bill that
Democrats and Republicans can support, that the DNI says will work for
the intelligence community, and that the President will sign into law.
That means the first principle we need to follow today is that the age-
old advice that doctors and others use: ``do no harm,'' and not
deconstruct what the Intelligence Committee has carefully crafted.
We don't have time for poison pill amendments or any other sort of
political posturing. The Senate Intelligence Committee bill is a good
one and needs to become law without further delay so our intelligence
collectors and troops in harm's way will have the tools they need
before the Protect America Act expires in February.
Mr. President, I urge my colleagues to vote with Chairman Rockefeller
and me to proceed to this bill.
I yield the floor and I reserve the remainder of my time.
What is the time remaining?
The PRESIDING OFFICER (Mr. Cardin). There are 28 minutes.
The Senator from Connecticut is recognized.
Mr. DODD. Mr. President, first, let me say to my two good friends,
Senators Rockefeller and Bond, I appreciate the job they do serving as
chairman and ranking member of the Senate Intelligence Committee. I
commend them for their efforts in this matter.
Having said that, I reluctantly rise to urge my colleagues to vote
against cloture on S. 2248, the FISA Amendment Act, and I will explain
why.
Opposing cloture is essential, because there is no unanimous consent
agreement in place providing for the immediate adoption of the
Judiciary Committee substitute amendment.
As you know, the Judiciary substitute amendment, among other things,
strikes title II of the Intelligence Committee bill--the title which
seeks to provide retroactive immunity to telecommunications companies
who are alleged to have violated their customers' privacy rights by
turning over information to the government without warrants.
I am fully aware that the majority leader has various parliamentary
options at his disposal to move this legislation forward. It is his
right to attempt to invoke cloture.
But I regret that decision, and I hope that my colleagues will join
me in stopping this legislation.
Mr. President, why do I feel so strongly about this matter?
For the last 6 years, our largest telecommunications companies have
been spying on their own American customers.
Secretly and without a warrant, they delivered to the Federal
Government the private, domestic communications records of millions of
Americans--records this administration has compiled into a database of
enormous scale and scope.
That decision betrayed millions of customers' trust. It was
unwarranted--literally.
But was it illegal?
That, Mr. President, I don't know. And if this bill passes in its
current form, we will never know. The President's favored corporations
will be immune.
Their arguments will never be heard in a court of law. The details of
their actions will stay hidden. The truth behind this unprecedented
domestic spying will never see light. And the book on our Government's
actions will be closed, and sealed, and locked, and handed over to the
safekeeping of those few whom George Bush trusts to keep a secret.
The bill that the majority leader will seek to make the pending
business of the Senate later today--the FISA Amendments Act of 2007--
has a long and twisted history behind it. Its origins lie in President
Bush's years of warrantless spying on Americans.
That abuse of power was exposed by the press in late 2005. The New
York Times revealed that:
Under a presidential order signed in 2002, the [National
Security Agency] has monitored the international telephone
calls and international e-mail messages of hundreds, perhaps
thousands, of people inside the United States without
warrants over the past three years.
In fact, we later learned that the President's warrantless spying was
authorized as early as 2001.
Disgraced former Attorney General Alberto Gonzales, in a 2006 white
paper, attempted to justify that spying; his argument rested on the
specious claim that, in authorizing the President to go to war in
Afghanistan, Congress had also somehow authorized him to listen in on
phone calls in America.
But many of those who voted on the original authorization of force
found this claim to new executive powers to be a laughable invention.
Here's what former Majority Leader Tom Daschle wrote:
As Senate majority leader . . . I helped negotiate that law
with the White House counsel's office over two harried days.
I can state categorically that the subject of warrantless
wiretaps of American citizens never came up . . . I am also
confident that the 98 senators who voted in favor of
authorization of force against al-Qaida did not believe that
they
[[Page S15715]]
were also voting for warrantless domestic surveillance.
Such claims to expanded executive power based on the authorization
for military force have since been struck down by the courts.
In recent months, the administration has changed its argument, now
grounding its warrantless surveillance power in the extremely nebulous
``authority of the President to defend the country'' that they find in
the Constitution.
Of course, that begs the question: Exactly what doesn't fit under
``defending the country''? If we take the President at his word, we
would concede to him nearly unlimited power, as long as he finds a
lawyer willing to stuff his actions into that boundless category.
Rather than concede such power, Congress has worked to bring the
President's surveillance program back where it belongs--under the rule
of law.
At the same time, we have worked to modernize FISA and ease
restrictions on terrorist surveillance. The Protect America Act, a bill
attempting to respond to that two-pronged challenge, passed in August;
but it is set to expire in February.
The bill now before us would create a legal regime for surveillance
under reworked and more reasonable rules. But crucially, President Bush
has demanded that this bill include full retroactive immunity for
corporations complicit in domestic spying. In a speech on September 19,
he stated that ``it's particularly important for Congress to provide
meaningful liability protection to those companies.''
In October, he stiffened his demand, vowing to veto any bill that did
not shield the telecom corporations. And this month, he resorted to
shameful, misleading scare tactics, accusing Congress of failing ``to
keep the American people safe.''
That month, the FISA Amendments Act came before the Senate Select
Committee on Intelligence. Per the President's demand, it included full
retroactive immunity for the telecom corporations. Senator Nelson
introduced an amendment to strip that immunity, and instead allow the
matter to be settled in the courts. It failed by a vote of 3 to 12.
But as it passed out of the Intelligence Committee, by a vote of 13
to 2, the bill still put corporations literally above the law and
ensured that the extent of the President's invasions of privacy would
remain a secret. I found retroactive immunity far beyond the pale, and
I made my objections strongly and publicly.
But the bill also had to pass through the Judiciary Committee. There,
Chairman Pat Leahy succeeded in reporting out a bill without the
egregious immunity provision. Over the years, Pat Leahy has cemented
his reputation as a champion of the rule of law; and I believe the
stand he took last month will be honored for a long time to come.
However, I am still concerned that when Senator Feingold proposed an
amendment to strip immunity for good, it failed by a vote of 7 to 12.
So here we are--facing a final decision on whether the
telecommunications companies will get off the hook for good. The
President's allies are as intent as they ever were on making that
happen. They want immunity back in this bill at all costs.
But what they are truly offering is secrecy in place of openness.
Fiat in place of law.
And in place of the forthright argument and judicial deliberation
that ought to be this country's pride, two simple words from our
President's mouth: ``Trust me.''
I cannot speak for my colleagues--but I would never take that offer,
not even in the best of times, not even from a perfect President. I
would never take that offer because our Constitution tells us that the
President's word is subject to the oversight of the Congress and the
deliberation of the courts; and because I took an oath to defend the
Constitution; and because I stand by my oath.
``Trust me.'' It is the offer to hide ourselves in the waiting arms
of the rule of men. And in these threatened times, that offer has never
seemed more seductive. The rule of law has rarely been so fragile.
``It is a universal truth that the loss of liberty at home is to be
charged to the provisions against danger . . . from abroad.'' James
Madison, the father of our Constitution, made that prediction more than
two centuries ago. With the passage of this bill, his words would be
one step closer to coming true. So it has never been more essential
that we lend our voices to the law, and speak on its behalf.
On its behalf, we say to President Bush that a Nation of truly free
men and women would never take ``trust me'' for an answer, not even
from a perfect President--and certainly not from this one.
In these times--under a President who seems every more day intent on
acting as if he is the law, who grants himself the right to ignore
legislation, who claims the power to spy without a warrant, to imprison
without a hearing, to torture without a scruple--in these times, I
would be a fool to take his offer.
But ``trust me,'' says President Bush. He means it literally. When he
first asked Congress to make the telecoms' actions legally disappear,
Congress had a reasonable question for him: Can we at least know
exactly what we'd be immunizing? Can you at least tell us what we'd be
cleaning up?
And the President refused to answer. Only he, his close advisors, and
a handful of telecom executives know all of the facts. Congress is only
asked to give token oversight. But if we are to do our constitutionally
mandated job, we need more than token oversight; we need full hearings
on the terrorist surveillance program before the Intelligence and
Judiciary Committees.
Without that, we remain in the dark--and in the dark we're expected
to grant the President's wish, because he knows best.
Does that sound familiar to any of my colleagues?
In 2002, we took the President's word and voted to go to war on
faulty intelligence. What if we took his word again--and found, next
year or the year after, that we had blindly legalized grave crimes?
If this disastrous war has taught us anything, it is that the Senate
must never again stack such a momentous decision on such a weak
foundation of fact. The decision we're asked to make today is not, of
course, as immense. But between fact and decision, the disproportion is
just as huge.
So I rise in determined opposition to this unprecedented immunity and
all that it represents. I have served in this body for more than a
quarter century. I have spoken from this desk hundreds and hundreds of
times. I have rarely come to the floor with such anger.
But since I came to Washington, I have seen six Presidents sit in the
White House--and I have never seen a contempt for the rule of law equal
to this. Today, I have reached a breaking point. Today my disgust has
found its limit.
I don't expect every one of my colleagues to share that disgust, or
that limit. I wish they did--but had that been the case, we would never
have come to this point.
I only ask them to believe me when I say if I did not speak today, my
conscience would not let me rest.
The right to conscience is one of the Senate's most treasured
allowances. It is perhaps this body's defining feature. The President
has his dominating bully pulpit. Justice Robert Jackson famously wrote
that ``in drama, magnitude and finality [the President's] decisions so
far overshadow any others that almost alone he fills the public eye and
ear. No other personality in public life can begin to compete with him
in access to the public mind.''
But in this Chamber, a minority--even an impassioned minority of
one--has the right to stand against all the combined weight and
machinery of government and plead: ``Stop!'' Or at least: ``Wait.'' A
minority can't stand forever, as surely as I can't speak forever.
Ultimately, a minority has only one recourse--to make itself a
majority. And I have faith that when the American people understand the
full extent of this President's contempt for the law, they will share
my outrage. This is a trusting and patient nation--and with more than
two centuries of democratic tradition, rightly so. But that trust is
not infinite; that patience is not endless; and after 7 years of this
President, they are worn down to the nub.
If I didn't believe that, I wouldn't be standing here today. If the
rule of law
[[Page S15716]]
were not my ruling passion, I wouldn't be standing here today. But I
do, and it is.
``Law'' is a word we barely hear from the President and his allies.
They offer neither a deliberation about America's difficult choices in
the age of terrorism, nor a shared attempt to set for our times the
excruciating balance between security and liberty.
They merely promise a false debate on a false choice: security or
liberty, but never, ever both.
It speaks volumes about the President's estimation of the American
people that he expects them to accept that choice. I think differently.
I think that America's founding truth is unambiguous: security and
liberty, one and inseparable, and never one without the other.
Secure in that truth, I offer a challenge to the President's allies:
You want to put the President's favored corporations above the law.
Could you please explain how your immunity makes any one of us any
safer by an iota?
If security were truly the issue, this debate wouldn't be happening.
An excellent balance between security and liberty has already been
struck by FISA, a balance that has stood for three decades. In fact,
FISA was written just to prevent a situation like ours from occurring:
to protect Americans without countenancing executive lawbreaking.
In the wake of the Watergate scandal, the U.S. Senate convened the
Church Committee, a panel of distinguished senators determined to shine
light on executive abuses of power. The facts it uncovered were
shocking:
Army spying on the civilian population; Federal dossiers on citizens'
political activities; a CIA and FBI program that had opened hundreds of
thousands of Americans' letters without warning or warrant.
The collective force of these revelations was undeniable: In their
oversight duties, Congress and the courts had failed; they had
unquestioningly accepted the executive's ``trust me''; and as a result,
Americans had sustained a severe blow to their fourth amendment rights
``to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures.''
The Senate could have panicked; it could have ended or drastically
curtailed those searches altogether. But in its wisdom, the Senate
understood that protecting the American people was not the problem; the
problem was simply the Nixonian attitude that ``if the President does
it, it's not illegal.''
The solution was to bring the executive's efforts to protect America
under the watchful eye of Congress and the courts--to restore checks
and balances to surveillance, and to give it the legitimacy it demands
and deserves. America would not be America if such power remained
concentrated in the hands of one man, or one branch of Government.
The Church Committee's final report, ``Intelligence Activities and
the Rights of Americans,'' put the case eloquently:
The critical question before the Committee was to determine
how the fundamental liberties of the people can be maintained
in the course of the Government's effort to protect their
security. The delicate balance between these basic goals of
our system of government is often difficult to strike, but it
can, and must, be achieved.
We reject the view that the traditional American principles
of justice and fair play have no place in our struggle
against the enemies of freedom. Moreover, our investigation
has established that the targets of intelligence activity
have ranged far beyond persons who could properly be
characterized as enemies of freedom. . . .
We have seen segments of our Government, in their attitudes
and action, adopt tactics unworthy of a democracy, and
occasionally reminiscent of the tactics of totalitarian
regimes.
We have seen a consistent pattern in which programs
initiated with limited goals, such as preventing criminal
violence or identifying foreign spies, were expanded to what
witnesses characterized as ``vacuum cleaners,'' sweeping in
information about lawful activities of American citizens.
The Senators of the Church Commission concluded:
Unless new and tighter controls are established by
legislation, domestic intelligence activities threaten to
undermine our democratic society and fundamentally alter its
nature.
What a strange echo we hear in those words. They could have been
written yesterday. Three decades ago, our predecessors in this Chamber
understood that when domestic spying goes too far, it threatens to kill
just what it promises to protect--an America secure in its liberty.
That lesson was crystal clear 30 years ago. Why is it so clouded now?
And before we entertain the argument that ``everything has changed''
since those words were written, remember: The men who wrote them had
witnessed world war and Cold War, had seen Nazi and Soviet spying, and
were living every day under the cloud of nuclear holocaust. How short
some memories are.
The threats have multiplied and grown in complexity, but the lesson
has been immutable: Warrantless spying threatens to undermine our
democratic society, unless legislation brings it under control. In
other words, the power to invade privacy must be used sparingly,
guarded jealously, and shared equally between the branches of
Government.
Or the case can be made pragmatically. As my friend Harold Koh, the
dean of Yale Law School, recently argued:
The engagement of all three branches tends to yield not
just more thoughtful law, but a more broadly supported public
policy.
Three decades ago, that broadly supported public policy--a prime
outcome of the Church Committee--was the Foreign Intelligence
Surveillance Act, or FISA. FISA confirmed the President's power to
conduct surveillance of international conversations involving anyone in
the United States, provided that the Federal FISA court issued a
warrant--ensuring that wiretapping was aimed at safeguarding our
security, and nothing else. To further protect intelligence gathering,
that court was to work in secret.
Ironically, none other than the President's own Director of National
Intelligence, Mike McConnell, explained the rationale in an interview
this summer: The United States ``did not want to allow [the
intelligence community] to conduct . . . electronic surveillance of
Americans for foreign intelligence unless you had a warrant, so that
was required.''
As originally written in 1978, and as amended nine times since, FISA
has accomplished its mission; it has been a valuable tool for
conducting surveillance of terrorists and those who would harm America.
And every time Presidents have come to Congress openly to ask for more
leeway under FISA, Congress has worked with them; Congress has
compromised; and together, Congress and the President have struck a
balance that safeguards America while doing its utmost to protect
privacy.
This summer, Congress made a technical correction to FISA, enabling
the President to wiretap, without a warrant, conversations between two
foreign targets, even if those conversations are routed through
American computers. Personally, I felt that this summer's legislation
went too far, and I opposed it. But the point is that Congress once
again proved its willingness to work with the President on FISA. Isn't
that enough?
Just this October and November, as we have seen, the Senate
Intelligence and Judiciary Committees worked with the President to
further refine FISA and ensure that, in a true emergency, the FISA
court would do nothing to slow down intelligence gathering. Isn't that
enough?
And as for the FISA court, it has approved the President's
wiretapping requests with impeccable consistency.
Between 1978 and 2004, according to the Washington Post, the FISA
court approved 18,748 warrants and rejected five. The FISA court has
sided with the executive 99.9 percent of the time. Isn't that enough?
Is anything lacking? Isn't the framework already in place? Isn't all
of this enough to keep us safe?
We all know the President's answer. Given this complex, fine-tuned
machinery, crafted over three decades by all three branches, what did
he do? He ignored it.
Given a system primed to bless nearly any eavesdropping he could
conceive--he conducted his own, illegally.
If the shock of that decision has yet to sink in, think of it this
way: President Bush ignored not just a Federal court, but a secret
Federal court; not just a secret Federal court, but a secret Federal
court prepared to sign off on his actions 99.9 percent of the time. A
[[Page S15717]]
more compliant court has never been conceived. And still that wasn't
good enough for our President.
So I will ask the Senate candidly, and candidly it already knows the
answer: Is this about our security or is it about his power?
I ask that question not to change the subject, but because it is the
key to understanding why this administration is pushing so hard for
telecom immunity--that is, for secrecy. Richard Nixon, the same man who
declared that ``if the president does it, it's not illegal,'' raised
secrecy to an art form--because he understood that the surest way to
amass power is to conceal its true extent.
Secrecy can spring from the best motives; but as it grows it begins
to exist only for itself, only for its own sake, only to cover its own
abuses.
The Senators of the Church Committee expressed succinctly the deep
flaw in that form of Government: ``Abuse thrives on secrecy.''
Today, we have seen the executive branch pass to a new master of
secrecy. Vice President Cheney practices a secrecy so baroque that it
could, in a less threatened time, be an object for laughter, instead of
fear.
His unclassified papers? Stamped ``treat as TSSCI,'' one of the
highest levels of state secret. The list of papers he has declassified?
Classified. The members of his energy task force? None of your
business. His location? Undisclosed. The names of his staff?
Confidential. And tellingly, of course, the visitor log for his office?
Shredded by the Secret Service.
When secrecy becomes this divorced from practicality, we are left
with only one conclusion: For this executive branch, secrecy is power.
Of course, I don't mean any offense against our Vice President--as he
reminds us, he is not part of the executive branch.
We see a pattern of secrecy stretching back to the first months of
this administration. Its push for immunity is no different--secrecy is
at its center.
And tellingly, the administration's original immunity proposal
protected not just the telecoms, but everyone involved in the
wiretapping program. In their original proposal, that is, they wanted
to immunize themselves.
Think about that. It speaks to their fear and, perhaps, their guilt:
their guilt that they had broken the law, and their fear that in the
years to come, they would be found liable or convicted. They knew
better than anyone else what they had done--they must have had good
reason to be afraid!
Thankfully, executive immunity is not part of the bill before us. I
am grateful for that. But the origin of immunity tells us a great deal
about what's at stake here: This is, and always has been, a self-
preservation bill.
Otherwise, why not have the trial and get it over with? If the
President's allies believe what they say, the corporations would win in
a walk.
After all, look at things from their perspective: In their telling,
when our biggest telecom corporations helped the President spy without
a warrant, they were doing their patriotic duty. When they listened to
the executive branch and turned over private information, they were
doing their patriotic duty.
When one company gave the NSA a secret eavesdropping room at its own
corporate headquarters, it was simply doing its patriotic duty. The
President asked, the telecoms answered.
Shouldn't that be an easy case to prove, Mr. President? The
corporations only need to show a judge the authority and the assurances
they were given, and they will be in and out of court in 5 minutes. If
the telecoms are as defensible as the President says, why doesn't the
President let them defend themselves? If the case is so easy to make,
why doesn't he let them make it? Why is he standing in the way?
Our Federal court system has dealt for decades with the most delicate
national security matters, building up expertise in protecting
classified information behind closed doors--ex parte, in camera. We can
expect no less in these cases. If we're worried about national security
being threatened as a result, we can simply get the principals a
security clearance.
No intelligence sources need be compromised. No state secrets need be
exposed. And we can say so with increasing confidence, because after
the extensive litigation that has already taken place at both the
district court and circuit court level, no sensitive information has
leaked out.
In fact, Federal District Court Judge Vaughn Walker, a Republican
appointee, has already ruled that the issue can go to trial without
putting state secrets in jeopardy. He reasonably pointed out that the
existence of the President's surveillance program is hardly a secret at
all: The government has already disclosed the general contours of the
``terrorist surveillance program,'' which requires the assistance of a
telecommunications provider.
George Bush wouldn't be the first president to hide righteously
behind the state secrets privilege. In fact, the privilege was tainted
at its birth by a President of my own party, Harry Truman. In 1952, he
successfully invoked the new privilege to prevent public exposure of a
report on a plane crash that killed three Air Force contractors.
When the report was finally declassified--some 50 years later,
decades after anyone in the Truman administration was within its
reach--it contained no state secrets at all. Only facts about repeated
maintenance failures that would have seriously embarrassed some
important people. And so the state secrets privilege began its career
not to protect our nation--but to protect the powerful.
In his opinion, Judge Walker argued that, even when it is reasonably
grounded:
The state secrets privilege [still] has its limits. While
the court recognizes and respects the executive's
constitutional duty to protect the nation from threats, the
court also takes seriously its constitutional duty to
adjudicate the disputes that come before it. To defer to a
blanket assertion of secrecy here would be to abdicate that
duty, particularly because the very subject matter of this
litigation has been so publicly aired.
The compromise between liberty and security remains a
difficult one. But dismissing this case at the outset would
sacrifice liberty for no apparent enhancement of security.
And that ought to be the epitaph for this Presidency: ``sacrificing
liberty for no apparent enhancement of security.'' Worse than selling
our soul--giving it away for free!
The President is equally wrong to claim that failing to grant this
retroactive immunity will make the telecoms less likely to cooperate
with surveillance in the future.
The truth is that, since the 1970s, FISA has compelled
telecommunications companies to cooperate with surveillance, when it is
warranted--and what's more, it immunizes them. It is done that for more
than 25 years.
So cooperation in warranted wiretapping is not at stake today.
Collusion in warrantless wiretapping is--and the warrant makes all the
difference, because it is precisely the court's blessing that brings
Presidential power under the rule of law.
In sum, we know that giving the telecoms their day in court--giving
the American people their day in court--would not jeopardize an ounce
of our security. And it could only expose one secret: the extent of our
president's lawbreaking, and the extent of his corporations'
complicity. That, our President will go to the mat to defend. That, he
will keep from the light of a courtroom at all costs. That, his
supporters would amend the law to protect.
And that is the choice at stake today: Will George Bush's secrets die
with this Presidency? Or will they be open to the generations to come,
to our successors in this Chamber, so that they can prepare themselves
to defend against future outrages of power and usurpations of law from
future Presidents, of either party?
I am here because I will not see those secrets go quietly into the
good night with Donald Rumsfeld and Alberto Gonzales and Dick Cheney
and George Bush. I am here because the truth is not their private
property--it belongs to every one of us, and it demands to be heard.
``State secrets,'' ``patriotic duty''--those, as weak as they are,
are the arguments the president's allies use when they're feeling high-
minded! When their thoughts turn baser, they make their arguments in
dollar signs.
Here's how Mike McConnell put it:
If you play out the suits at the value they're claimed, it
would bankrupt these companies. So . . . we have to provide
liability protection to these private sector entities.
Mike McConnell is quickly becoming an accidental truth-teller! Notice
how
[[Page S15718]]
the President's own Director of National Intelligence concedes that if
the cases went to trial, the telecoms would lose. I don't know if
that's true, Mr. President--but we can thank Admiral McConnell for
telling us how he really feels.
Of course, it is an exaggeration to claim that these companies would
surely go bankrupt, even if they did lose.
We are talking about some of the wealthiest, most successful
companies in America. Let me quote an article from Dow Jones
MarketWatch. The date is October 23, 2007. The headline reads: ``AT&T's
third-quarter profit rises 41.5 percent.''
AT&T Inc. on Tuesday said third-quarter earnings rose 41.5
percent, boosted by the acquisition of BellSouth and the
addition of 2 million net wireless customers . . . Net income
totaled $3.06 billion . . . compared with $2.17 billion . . .
a year ago.
Note that AT&T has posted these record profits at a time of very
public litigation.
A company with more than $3 billion in profits one quarter--only the
most exorbitant and unlikely judgment could completely wipe it out. To
assume that the telecoms would lose, and that their judges would then
hand down such backbreaking penalties, is already to take several
leaps.
The point, after all, has never been to financially cripple our
telecommunications industry. The point is to bring checks and balances
back to domestic spying. Setting that precedent would hardly require a
crippling judgment.
It is much more troubling, though, that the Director of National
Intelligence even feels the need to pronounce on ``liability protection
for private sector entities.'' Since when were our spies in the
business of economics? Since when did they put protecting AT&T or
Verizon ahead of protecting the American people? Since when did the
amount a defendant stands to lose have any bearing on whether a suit
should go forward? I learned in law school that guilty was guilty--no
matter how rich or how poor.
Lean on this logic, and you'll sink to its venal core: Certain
corporations are too rich to be sued. Forget what they owe; forget
what's just; forget judges setting the penalty. If there's even a
chance of the judgment being high, throw the suit out--it endangers the
Republic!
This administration has equated corporations' bottom lines with our
Nation's security. Follow that reasoning honestly to its end, and you
come to the conclusion: The larger the corporation, the more lawless it
can be. If we accept Mr. McConnell's premises, we could conceive of a
corporation so wealthy, so integral to our economy, that its riches
place it outside the law altogether. And if the administration's
thinking even admits that possibility, we know instinctively how flawed
it is.
The truth is exactly the opposite: The larger the corporation, the
greater the potential for abuse, and the more carefully it must be
watched. Not that success should make a company suspect; companies grow
large, and essential to our economy, because they are excellent at what
they do. I simply mean that size and wealth open the realm of
possibilities for abuse far beyond the scope of the individual.
Consider this. According to the Electronic Frontier Foundation,
Clear, first-hand whistleblower documentary evidence
[states] . . . that for year on end every e-mail, every text
message, and every phone call carried over the massive fiber-
optic links of sixteen separate companies routed through
AT&T's Internet hub in San Francisco--hundreds of millions of
private, domestic communications--have been . . . copied in
their entirety by AT&T and knowingly diverted wholesale by
means of multiple ``splitters'' into a secret room controlled
exclusively by the NSA.
If true, that constitutes one of the most massive violations of
privacy in American history. And it would be inconceivable without the
size and resources of an AT&T behind it--the same size that makes Mike
McConnell fear the corporations' day in court.
If reasonable search and seizure means opening a drug dealer's
apartment, the telecoms' alleged actions would be the equivalent of
strip-searching everyone in the building, ransacking their bedrooms,
and prying up all the floorboards. That is the massive scale we are
talking about--and that massive scale is precisely why no corporation
must be above the law.
On that scale, it is impossible to plead ignorance. As Judge Walker
ruled:
AT&T cannot seriously contend that a reasonable entity in
its position could have believed that the alleged domestic
dragnet was legal.
But the arguments of the President's allies sink even lower. Listen
to the words a House Republican leader spoke on Fox News. They are
shameful:
I believe that they deserve immunity from lawsuits out
there from typical trial lawyers trying to find a way to get
into the pockets of American companies.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. DODD. Mr. President, I ask unanimous consent for 1 more minute.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DODD. Cindy Cohn is one of those ``trial lawyers.'' She is lead
counsel at the Electronic Frontier Foundation, a small public-interest
law firm bringing suit against the telecom corporations. And when she
heard that Fox News claim about typical greedy trial lawyers, she
laughed.
If he still thinks that we're rich plaintiffs' attorneys
after he's visited our little tiny Mission Street offices,
[she said,] then I have a bridge to sell him. Most of the EFF
lawyers worked in those big fancy firms for big fancy
salaries, and took big pay cuts to join us . . .
Young lawyers come to me and say, ``I really want to work
for EFF--you have such great lawyers.''
I say: ``Take your current paycheck, rip it in three
pieces, take any third, and that's about what you'll get
working for EFF.'' The lawyers who work for EFF . . . are
making far less than they could on the open market in
exchange for being able to work in things they believe in
every day.
Consider the hundreds of lawyers retained by the corporations in
question, and their multimillion-dollar legal budgets, and the attempt
to portray them as pitiable Davids is ludicrous. Sprint's lawyers
recently settled an unrelated class-action lawsuit for $30 million.
Three years ago, AT&T handled a settlement with shareholders for $100
million.
With those resources, I think they can give EFF's nine nonprofit
lawyers in their little office on Mission Street a fair fight.
Mr. President, I don't presume to know how that fight will end. I
don't presume to hand out innocence and guilt--that's not my job.
Judges and juries do that. And in their search for the truth, the only
job of this body is to get out of the way.
I am not invested in one verdict or another--only that a verdict is
reached. I don't care who the truth favors--only that it comes out at
all.
State secrets; future cooperation; economic harms; reputational
damage; legal burdens--as we've seen, not a single one of the
President's arguments for this immunity stands. Nothing tells us to
halt the legal process, to bar the courthouse door. Everything tells us
to open it.
Mr. President, perhaps when I leave this floor today, someone will
ask me, ``Why are you so agitated about some telephone records? There's
so much else to be worked up about!''
And I'll only be able to respond: ``Exactly.''
We have seen this administration chip away at the rule of law at a
dozen points. Its relentlessness may be its greatest strength--the
assault becomes numbing, and our healthy outrage grows dull. It was an
outrage when this President set up secret courts outside the law. It
was an outrage when he ignored the courts and tapped our phones. It was
an outrage when he sanctioned torture. But outrage upon outrage upon
outrage--and we wind up in a stupor. We have allowed each abuse with
nothing more than a promise to resist the next one--and the next one,
and the next one.
I am here, in the end, because the line has to be drawn somewhere.
Why not here? Why not today?
So, Mr. President, I urge my colleagues to reject the motion on
cloture. Let them come back, strip this language out on immunity, and
give us a clean FISA bill. That is the only right thing to do. The law
is here to protect all of us. We can have security and liberty.
As Benjamin Franklin said some 200 years ago:
Those who would sacrifice liberty for security deserve
neither security nor liberty.
So I urge my colleagues to reject cloture, and then we can send the
bill forward without that immunity provision.
[[Page S15719]]
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, I yield 13 minutes to the Senator from
Pennsylvania, then 5 minutes to Senator Sessions, 5 minutes to Senator
Chambliss, and 5 minutes to Senator Kyl. That would conclude the time
on our side, and I think that will put us at a vote or it will consume
the time on our side. So I unanimous consent that be the order.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania is recognized.
Mr. SPECTER. I thank the Senator from Missouri for yielding me the
time, and I wish to begin with the comment made by the Senator from
Connecticut raising a question about the grant of retroactivity
immunity. I believe that had that provision not been in the Senate
bill, it would be a great deal easier to deal with, although there are
some substantial problems with the bill as such, even in addition to
the provision on retroactive immunity.
But I support the motion to invoke cloture because I believe it is
necessary to deal with the fight against terrorism, and I think the
Government has made a case for some expanded powers, although I think
we have to weigh them very carefully--to fight terrorism but still
protect civil liberties in this country.
I have a strong objection to the provision in the bill relating to
retroactive immunity, and my objection goes to the point that the
administration did not follow the provisions of law in notifying the
Intelligence Committees of the House and Senate or the chairman and
ranking member of the Judiciary Committees about this program. To come
at a later date and seek retroactive immunity I think is inappropriate.
I found out about it when I was chairman of the Judiciary Committee
last year, and I moved to subpoena the records of the telephone
company, and then I moved to go into a closed session. While that was
in process, Vice President Cheney went to the members of the Judiciary
Committee on the Republican side, without notifying me--which I thought
was inappropriate--and thwarted the efforts I was making to find out
what this program was all about.
I ask unanimous consent to have my letter to Vice President Cheney
dated June 7, and his reply to me dated June 8, printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Committee on the Judiciary,
Washington, DC, June 7, 2006.
Hon. Richard B. Cheney,
The Vice President,
Washington, DC.
Dear Mr. Vice President: I am taking this unusual step in
writing to you to establish a public record. It is neither
pleasant nor easy to raise these issues with the
Administration of my own party, but I do so because of their
importance,
No one has been more supportive of a strong national
defense and tough action against terrorism than I. However,
the Administration's continuing position on the NSA
electronic surveillance program rejects the historical
constitutional practice of judicial approval of warrants
before wiretapping and denigrates the constitutional
authority and responsibility of the Congress and specifically
the Judiciary Committee to conduct oversight on
constitutional issues.
On March 16, 2006, I introduced legislation to authorize
the Foreign Intelligence Surveillance Court to rule on the
constitutionality of the Administration's electronic
surveillance program. Expert witnesses, including four former
judges of the FISA Court, supported the legislation as an
effective way to preserve the secrecy of the program and
protect civil rights. The FISA Court has an unblemished
record for keeping secrets and it has the obvious expertise
to rule on the issue. The FISA Court judges and other experts
concluded that the legislation satisfied the case-in-
controversy requirement and was not a prohibited advisory
opinion. Notwithstanding my repeated efforts to get the
Administration's position on this legislation, I have been
unable to get any response, including a ``no''.
The Administration's obligation to provide sufficient
information to the Judiciary Committee to allow the Committee
to perform its constitutional oversight is not satisfied by
the briefings to the Congressional Intelligence Committees.
On that subject, it should be noted that this Administration,
as well as previous Administrations, has failed to comply
with the requirements of the National Security Act of 1947 to
keep the House and Senate Intelligence Committees fully
informed. That statute has been ignored for decades when
Presidents have only informed the so-called ``Gang of
Eight,'' the Leaders of both Houses and the Chairmen and
Ranking on the Intelligence Committees. From my experience as
a member of the ``Gang of Eight'' when I chaired the
Intelligence Committee of the 104th Congress, even that group
gets very little information. It was only in the face of
pressure from the Senate Judiciary Committee that the
Administration reluctantly informed subcommittees of the
House and Senate Intelligence Committees and then agreed to
inform the full Intelligence Committee members in order to
get General Hayden confirmed.
When there were public disclosures about the telephone
companies turning over millions of customer records involving
allegedly billions of telephone calls, the Judiciary
Committee scheduled a hearing of the chief executive officers
of the four telephone companies involved. When some of the
companies requested subpoenas so they would not be
volunteers, we responded that we would honor that request.
Later, the companies indicated that if the hearing were
closed to the public, they would not need subpoenas.
I then sought Committee approval, which is necessary under
our rules, to have a closed session to protect the
confidentiality of any classified information and scheduled a
Judiciary Committee Executive Session for 2:30 P.M. yesterday
to get that approval.
I was advised yesterday that you had called Republican
members of the Judiciary Committee lobbying them to oppose
any Judiciary Committee hearing, even a closed one, with the
telephone companies. I was further advised that you told
those Republican members that the telephone companies had
been instructed not to provide any information to the
Committee as they were prohibited from disclosing classified
information.
I was surprised, to say the least, that you sought to
influence, really determine, the action of the Committee
without calling me first, or at least calling me at some
point. This was especially perplexing since we both attended
the Republican Senators caucus lunch yesterday and I walked
directly in front of you on at least two occasions enroute
from the buffet to my table.
At the request of Republican Committee members, I scheduled
a Republican members meeting at 2:00 P.M. yesterday in
advance of the 2:30 P.M. full Committee meeting. At that
time, I announced my plan to proceed with the hearing and to
invite the chief executive officers of the telephone
companies who would not be subject to the embarrassment of
being subpoenaed because that was no longer needed. I
emphasized my preference to have a closed hearing providing a
majority of the Committee agreed.
Senator Hatch then urged me to defer action on the
telephone companies hearing, saying that he would get
Administration support for my bill which he had long
supported. In the context of the doubt as to whether there
were the votes necessary for a closed hearing or to proceed
in any manner as to the telephone companies, I agreed to
Senator Hatch's proposal for a brief delay on the telephone
companies hearing to give him an opportunity to secure the
Administration's approval of the bill which he thought could
be done. When I announced this course of action at the full
Committee Executive Session, there was a very contentious
discussion which is available on the public record.
It has been my hope that there could be an accommodation
between Congress's Article I authority on oversight and the
President's constitutional authority under Article II. There
is no doubt that the NSA program violates the Foreign
Intelligence Surveillance Act which sets forth the exclusive
procedure for domestic wiretaps which requires the approval
of the FISA Court. It may be that the President has inherent
authority under Article II to trump that statute but the
President does not have a blank check and the determination
on whether the President has such Article II power calls for
a balancing test which requires knowing what the surveillance
program constitutes.
If an accommodation cannot be reached with the
Administration, the Judiciary Committee will consider
confronting the issue with subpoenas and enforcement of that
compulsory process if it appears that a majority vote will be
forthcoming. The Committee would obviously have a much easier
time making our case for enforcement of subpoenas against the
telephone companies which do not have the plea of executive
privilege. That may ultimately be the course of least
resistance.
We press this issue in the context of repeated stances by
the Administration on expansion of Article II power,
frequently at the expense of Congress's Article I authority.
There are the Presidential signing statements where the
President seeks to cherry-pick which parts of the statute he
will follow. There has been the refusal of the Department of
Justice to provide the necessary clearances to permit its
Office of Professional Responsibility to determine the
propriety of the legal advice given by the Department of
Justice on the electronic surveillance program. There is the
recent Executive Branch search and seizure of Congressman
Jefferson's office. There are recent and repeated assertions
by the Department of Justice that it has the authority to
criminally prosecute newspapers and reporters under highly
questionable criminal statutes.
All of this is occurring in the context where the
Administration is continuing
[[Page S15720]]
warrantless wiretaps in violation of the Foreign Intelligence
Surveillance Act and is preventing the Senate Judiciary
Committee from carrying out its constitutional responsibility
for Congressional oversight on constitutional issues. I am
available to try to work this out with the Administration
without the necessity of a constitutional confrontation
between Congress and the President.
Sincerely,
Arlen Specter.
____
The Vice President,
Washington, June 8, 2006.
Hon. Arlen Specter,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Dear Mr. Chairman: This is in response to your letter of
June 7, 2006 concerning the Terrorist Surveillance Program
(TSP) the Administration has described. The commitment in
your letter to work with the Administration in a non-
confrontational manner is most welcome and will, of course,
be reciprocated.
As recently as Tuesday of this week, I reiterated that, as
the Administration has said before, while there is no need
for any legislation to carry out the Terrorist Surveillance
Program, the Administration will listen to the ideas of
legislators about terrorist surveillance legislation and work
with them in good faith. Needless to say, that includes you,
Senator DeWine and others who have ideas for such
legislation. The President ultimately will have to make a
decision whether any particular legislation would strengthen
the ability of the Government to protect Americans against
terrorists, while protecting the rights of Americans, but we
believe the Congress and the Administration working together
can produce legislation to achieve that objective, if that is
the will of the Congress.
Having served in the executive branch as chief of staff for
one President and as Secretary of Defense for another, having
served in the legislative branch as a Representative from
Wyoming for a decade, and serving now in a unique position
under the Constitution with both executive functions and
legislative functions, I fully understand and respect the
separate constitutional roles of the Congress and the
Presidency. Under our constitutional separation between the
legislative powers granted to Congress and the executive
power vested exclusively in the Presidency, differences of
view may occur from time to time between the branches, but
the Government generally functions best when the legislative
branch and the executive branch work together. And I believe
that both branches agree that they should work together as
Congress decides whether and how to pursue further terrorist
surveillance legislation
Your letter addressed four basic subjects: (1) the legal
basis for the TSP; (2) the Administration position on
legislation prepared by you relating to the TSP; (3)
provision of information to Congress about the TSP; and (4)
communications with Senators on the Judiciary Committee about
the TSP.
The executive branch has conducted the TSP, from its
inception on October 4, 2001 to the present, with great care
to operate within the law, with approval as to legality of
Presidential authorizations every 45 days or so by senior
Government attorneys. The Department of Justice has set forth
in detail in writing the constitutional and statutory bases,
and related judicial precedents, for warrantless electronic
surveillance under the TSP to protect against terrorism, and
that information has been made available to your Committee
and to the public.
Your letter indicated that you have repeatedly requested an
Administration position on legislation prepared by you
relating to the TSP program. If you would like a formal
Administration position on draft legislation, you may at any
time submit it to the Attorney General, the Director of
National Intelligence, or the Director of the Office of
Management and Budget (OMB) for processing, which will
produce a formal Administration position. Before you do so,
however, it might be more productive for executive branch
experts to meet with you, and perhaps Senator DeWine or other
Senators as appropriate, to review the various bills that
have been introduced and to share the Administration's
thoughts on terrorist surveillance legislation. Attorney
General Alberto R. Gonzales and Acting Assistant Attorney
General for the Office of Legal Counsel Steven G. Bradbury
are key experts upon whom the executive branch would rely for
this purpose. I will ask them to contact you promptly so that
the cooperative effort can proceed apace.
Since the earliest days of the TSP, the executive branch
has ensured that, consistent with the protection of the
sensitive intelligence sources, methods and activities
involved, appropriate members of Congress were briefed
periodically on the program. The executive branch kept
principally the chairman and ranking members of the
congressional intelligence committees informed and later
included the congressional leadership. Today, the full
membership of both the House Permanent Select Committee on
Intelligence and the Senate Select Committee on Intelligence
(including four Senators on that Committee who also serve on
your Judiciary Committee) are fully briefed on the program.
As a matter of inter-branch comity and good executive-
legislative practice, and recognizing the vital importance of
protecting U.S. intelligence sources, methods and activities,
we believe that the country as a whole, and the Senate and
the House respectively, are best served by concentrating the
congressional handling of intelligence matters within the
intelligence committees of the Congress. The internal
organization of the two Houses is, of course, a matter for
the respective Houses. Recognizing the wisdom of the
concentration within the intelligence committees, the rules
of the Senate (S. Res. 400 of the 94th Congress) and the
House (Rule X, cl. 11) creating the intelligence committees
mandated that the intelligence committees have cross-over
members who also serve on the judiciary, foreign/
international relations, armed services, and appropriations
committees.
Both in performing the legislative functions of the Vice
Presidency as President of the Senate and in performing
executive functions in support of the President, I have
frequent contact with Senators, both at their initiative and
mine. We have found such contacts helpful in maintaining good
relations between the executive and legislative branch es and
in advancing legislation that serves the interests of the
American people. The respectful and candid exchange of views
is something to be encouraged rather than avoided. Indeed,
recognizing the importance of such communication, the first
step the Administration took, when it learned that you might
pursue use of compulsory process in an attempt to force
testimony that may involve extremely sensitive classified
information, was to have one of the Administration's most
senior officials, the Chief of Staff to the President of the
United States, contact you to discuss the matter. Thereafter,
I spoke with a number of other Members of the Senate
Leadership and the Judiciary Committee. These communications
are not unusual--they are the Government at work.
While there may continue to be areas of disagreement from
time to time, we should proceed in a practical way to build
on the areas of agreement. I believe that other Senators and
you, working with the executive branch, can find the way
forward to enactment of legislation that would strengthen the
ability of the Government to protect Americans against
terrorists, while continuing to protect the rights of
Americans, if it is the judgment of Congress that such
legislation should be enacted. We look forward to working
with you, knowing of the good faith on all sides.
Sincerely,
Dick Cheney.
Mr. SPECTER. The telephone companies, I do believe, have acted as
good citizens. I would not want to see them pay damages because they
were responding to a governmental request. So my idea, in order to
strike a balance between the Senate bill which grants retroactive
immunity and the House bill which leaves it out, would be instead to
provide for the Government to be substituted as a party for telephone
companies.
Toward that end, I have introduced S. 2402, which was considered by
the Judiciary Committee last week and did not pass, on a vote of 13 to
5. Since that time, I have heard from other Senators that they think it
is a good idea. I believe it has to be explored and will be explored
because I will offer it as an amendment to this bill as soon as I have
an opportunity to do so.
What my idea does, essentially, is to substitute the Federal
Government as the party defendant for the telephone companies in the
cases which have been initiated. The Government would stand in the
shoes of the telephone companies, with no more and no less defenses
available. For example, governmental immunity would not be available as
a defense to the Government because obviously the telephone companies
do not have governmental immunity.
The telephone companies, I think, or the defendants in these cases
are highly unlikely to pay damages. But I believe it is very important
that the courts not be foreclosed from making a judicial determination
on the issues which are involved. Part of the concern I have is that
the Government is now coming forward to try to have retroactive
immunity, to absolve them from any potential wrongdoing in the past. I
do not know whether there is wrongdoing, but I do not believe that it
is appropriate for the Federal Government to act secretly,
surreptitiously, not tell the intelligence committees as required by
law, not tell the chairman and ranking member of the Judiciary
Committee, and then come back at a later date and say: Please exonerate
us. If we give that kind of a blank check, carte blanche to the
executive officials, it would be a terrible, devastating precedent for
the future.
I believe it is necessary for the judicial actions to run their
course. Again, let me say I think it is highly questionable that any of
the plaintiffs will succeed. The defense of state secrets has been
interposed in the cases against
[[Page S15721]]
the telephone companies. Similarly, the Government would have that
defense if it were substituted in their stead.
But the fact is that the Congress has not been successful in
conducting oversight of the Federal Government. The terrorist
surveillance program was in existence from October of 2001 until
December of 2005, before the Congress ever found out about it. Then we
didn't find out about it as a result of our oversight activities; we
found out about it because it was disclosed in a New York Times story.
I remember the morning well. I was managing the PATRIOT Act re-
authorization, to try the give the U.S. Government adequate powers to
fight terrorism. Right in the middle of the final day of our
consideration, the story broke about the secret terrorist surveillance
program, and the comment was made on the floor of the Senate by one
Senator that he was prepared to vote for the PATRIOT Act but not after
he found out about the terrorist surveillance program.
The Federal Government did not notify the Intelligence Committees as
required by law until well after the New York Times article. Then they
notified the Intelligence Committees only because they felt compelled
to do so in order to get General Hayden confirmed.
There is a long list of efforts by congressional oversight which have
been insufficient: the signing statements in which the President has
cherry-picked, taking provisions he likes and excluding provisions he
doesn't like. Senator McCain and the President personally negotiated
the question of interrogation in the Detainee Treatment Act. There was
language put in, on a 90-to-9 vote, limiting interrogation practices.
Then, when the President signed the bill, he made an exclusion, saying
that his constitutional authority under article II would enable him to
ignore some of those provisions.
Similarly, on the PATRIOT Act re-authorization, we negotiated certain
oversight, and then the President issued a signing statement again
saying there were some items which he would feel free to disregard on
the oversight provisions.
On habeas corpus and detention, the Congress has been totally
ineffective at any oversight; it is only the Supreme Court of the
United States in Rasul and in a case now pending, Boumediene, argued
recently in the Supreme Court. So the judicial oversight on checks and
balances and on separation of powers, I believe, is indispensable.
We have within the past few days another instance of executive
resistance to congressional oversight. Senator Leahy and I wrote to the
Attorney General recently--a week ago today--inquiring about the
destruction of the tapes by the CIA. The Attorney General responded
last week, on December 14, denying our request for information.
I ask unanimous consent to have the Attorney General's letter printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
Office of the Attorney General,
Washington, DC., December 14, 2007.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary, U.S. Senate,
Washington, DC.
Hon. Arlen Specter,
Ranking Member, Committee on the Judiciary U.S. Senate,
Washington, DC.
Dear Mr. Chairman and Senator Specter: Thank you for your
letter of December 10, 2007, regarding your concerns about
the reported destruction by the Central Intelligence Agency
(CIA) of videotapes showing interrogations of detainees and
the Department's review of this matter.
As you note, the Department's National Security Division is
conducting a preliminary inquiry in conjunction with the
CIA's Office of Inspector General. Enclosed please find a
letter from Assistant Attorney General Kenneth L. Wainstein
to CIA Acting General Counsel John A. Rizzo, which provides
some further detail regarding this inquiry, and which was
released to the public on December 8.
As to your remaining questions, the Department has a
longstanding policy of declining to provide non-public
information about pending matters. This policy is based in
part on our interest in avoiding any perception that our law
enforcement decisions are subject to political influence.
Accordingly, I will not at this time provide further
information in response to your letter, but appreciate the
Committee's interests in this matter. At my confirmation
hearing, I testified that I would act independently, resist
political pressure and ensure that politics plays no role in
cases brought by the Department of Justice. Consistent with
that testimony, the facts will be followed wherever they lead
in this inquiry, and the relevant law applied.
Finally, with regard to the suggestion that I appoint a
special counsel, I am aware of no facts at present to suggest
that Department attorneys cannot conduct this inquiry in an
impartial manner. If I become aware of information that leads
me to a different conclusion, I will act on it.
I hope that this information is helpful.
Sincerely,
Michael B. Mukasey,
Attorney General.
____
Department of Justice,
National Security Division,
Washington, DC., December 8, 2007.
John A. Rizzo,
Acting General Counsel, Central Intelligence Agency,
Washington, DC.
Dear Mr. Rizzo: I am writing this letter to confirm our
discussions over the past several days regarding the
destruction of videotapes of interrogations conducted by the
Central Intelligence Agency (CIA). Consistent with these
discussions, the Department of Justice will conduct a
preliminary inquiry into the facts to determine whether
further investigation is warranted. I understand that you
have undertaken to preserve any records or other
documentation that would facilitate this inquiry. The
Department will conduct this inquiry in conjunction with the
CIA's Office of Inspector General (OIG).
My colleagues and I would like to meet with your Office and
OIG early next week regarding this inquiry. Based on our
recent discussions, I understand that your Office has already
reviewed the circumstances surrounding the destruction of the
videotapes, as well as the existence of any pending relevant
investigations or other preservation obligations at the time
the destruction occurred. As a first step in our inquiry, I
ask that you provide us the substance of that review at the
meeting.
Thank you for your cooperation with the Department in this
matter. Please feel free to contact me if you have any
questions.
Sincerely,
Kenneth L. Wainstein,
Assistant Attorney General,
National Security Division.
Mr. SPECTER. It surprised me that the Attorney General would say that
in light of his very recent statements made during the confirmation
hearings. ``If confirmed, I will review Department of Justice policies
with a goal of ensuring that Congress is able to carry out meaningful
oversight.''
When I talked to Judge Mukasey in advance of the confirmation
hearings and gave him a copy of the letter which I had sent to Attorney
General Gonzales, Judge Mukasey agreed with the standards established
by the Congressional Research Service, saying that these are within the
bounds of congressional authority on oversight.
[A] review of congressional investigations that have
implicated DOJ, or DOJ investigations over the past 70 years,
from the Palmer Raids and Teapot Dome to Watergate, and
through Iran Contra and Rocky Flats, demonstrates that the
Department of Justice has consistently been obliged to submit
to congressional oversight. . . .
Including:
. . . testimony of subordinate DOJ employees, such as line
attorneys and FBI field agents, was taken. . . .
Again:
In all instances, investigating committees were provided
with documents respecting open or closed cases.
So here is another example of congressional oversight being thwarted,
so that when you have a challenge to what has been done by the
telephone companies here and you have litigation in progress, I believe
it to be most inappropriate for the Congress to intercede and grant
immunity retroactively.
I believe our Federal investigative agencies need very substantial
powers in the fight against terrorism. I have discussed the issue with
Director of National Intelligence McConnell about granting the
Government authority to acquire the cooperation of the telephone
companies prospectively. I am waiting for a briefing on the issue, to
understand the full import of what it is that the Director of National
Intelligence wants. I am open to granting those powers prospectively,
but I do not believe, in the context of what has happened here, that it
would be advisable to retroactively give these officials a blank check
when they kept these matters secret from the oversight committees, and
when the Judiciary Committee sought to have subpoenas to find out about
it, and we were thwarted in that effort, as disclosed by the exchange
of letters between the Vice President and myself, made a part of the
record.
[[Page S15722]]
I note my time has expired. I thank the Chair and yield the floor.
The PRESIDING OFFICER. Who yields time? The Senator from Alabama.
Mr. SESSIONS. Mr. President, Senator Feingold may have been next, and
I see he has returned. I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I thank the Senator from Alabama for his
courtesy.
Mr. President, I oppose cloture on the motion to proceed to S. 2248,
as reported by the Senate Intelligence Committee. This bill is deeply
flawed, and I am very disappointed by the decision to take it up on the
Senate floor rather than the better bill reported by the Judiciary
Committee.
Before leaving town for the August recess, Congress bowed to pressure
from the administration, and vastly expanded the Government's ability
to eavesdrop without a court-approved warrant. That legislation, the
so-called Protect America Act, was rushed through this Chamber in a
climate of fear--fear of terrorist attacks, and fear of not appearing
sufficiently strong on national security. There was very little
understanding of what the legislation actually did.
But there was one silver lining: The bill had a 6-month sunset to
force Congress to do its homework and reconsider the approach it took.
The Senate should be taking this opportunity to fix its mistakes and
pass a new bill that gives the Government all the tools it needs to spy
on suspected terrorists but also protects Americans' basic freedoms.
This time around, the Senate should stand up to an Administration that
time and again has employed fear-mongering and misleading statements to
intimidate Congress.
The fact is, the Intelligence Committee bill doesn't fix those
mistakes, and it is not the bill we should be considering on the Senate
floor.
I do agree with the administration on one point--Congress should make
clear that when foreign terrorists are communicating with each other
overseas, the U.S. Government doesn't need a warrant to listen in, even
if the collection activity ends up taking place in this country because
of the way modern communications are routed. Unfortunately, both the
Protect America Act and the bill approved by the Senate Intelligence
Committee go far beyond fixing that problem and also authorize
widespread surveillance involving Americans--at home and abroad.
The bill we should be considering is the Judiciary Committee bill,
which 14 Senators urged the majority leader to take up, in a letter
last week.
The Judiciary Committee bill made critical improvements to ensure
independent judicial oversight of these sweeping new powers and to
better protect innocent Americans. The Judiciary bill does not contain
a new form of retroactive immunity for companies that allegedly
cooperated with an illegal wiretapping program that lasted for more
than 5 years. And, while the Intelligence Committee bill was drafted
and debated behind closed doors and in close consultation with the
administration, the Judiciary bill was the product of an open process
with the input of experts from a variety of perspectives.
The Judiciary Committee bill is not perfect. It needs further
improvement. But it would be a vastly better starting point for Senate
consideration than the bill that the majority leader has brought to the
floor, which simply gives the administration everything it was
demanding, no questions asked.
The stakes are high. I want my colleagues to understand the impact
that the Protect America Act and the Intelligence Committee bill could
have on the privacy of Americans. These bills do not just authorize the
6 unfettered surveillance of people outside the United States
communicating with each other. They also permit the Government to
acquire those foreigners' communications with Americans inside the
United States, regardless of whether anyone involved in the
communication is under any suspicion of wrongdoing.
There is no requirement that the foreign targets of this surveillance
be terrorists, spies or other types of criminals. The only requirements
are that the foreigners are outside the country, and that the purpose
is to obtain foreign intelligence information, a term that has an
extremely broad definition.
There is no requirement that the foreign targets of this surveillance
be terrorists, spies, or any other kind of criminal. The only
requirements are that foreigners are outside the country, that the
purpose is to obtain foreign intelligence information, a term that has
an extremely broad definition.
No court reviews these targets individually. Only the executive
branch decides who fits these criteria. The result is that many law-
abiding Americans who communicate with completely innocent people
overseas will be swept up in this new form of surveillance, with
virtually no judicial involvement.
Even the administration's illegal warrantless wiretapping program, as
described when it was publicly confirmed in 2005, at least focused on
particular terrorists. What we are talking about now is a huge dragnet
that will sweep up innocent Americans.
In America, we understand that if we happen to be talking to a
criminal or terrorist suspect, our conversations might be heard by the
Government. But I do not think many Americans expect the Government to
be able to listen into every single one of their international
communications with people about whom there are no suspicions
whatsoever.
These incredibly broad authorities are particularly troubling because
we live in a world in which international communications are
increasingly commonplace. Thirty years ago, it was very expensive, and
not common, for many Americans to make an overseas call. But now,
particularly with e-mail, such communications are commonplace. Millions
of ordinary, and innocent, Americans communicate with people overseas
for entirely legitimate personal and business reasons.
Parents of children call family members overseas. Students e-mail
friends they have met while studying abroad. Businesspeople communicate
with colleagues or clients overseas. Technological advancements
combined with the ever interconnected world economy have led to an
explosion of international contacts.
We often hear from those who want to give the Government new powers
that we just have to bring FISA up to date with new technology. But
changes in technology should also cause us to take a look at the
greater need for the privacy of our citizens.
We are going to give the Government broad new powers that will lead
to the collection of much more information on innocent Americans. We
have a duty to protect their privacy as much as we possibly can, and we
can do that. We can do that, as the Senator from Connecticut said,
without sacrificing our ability to collect information that will
protect our national security.
To take one example, a critical difference between the Intelligence
and Judiciary bills is the role of the court. The Judiciary bill gives
the secret FISA Court new authority to operate as an independent check
on the executive branch.
It gives the court authority to assess the Government's compliance to
wiretapping procedures, to place limits on the use of information that
was acquired through unlawful procedures, and then gives the court, as
most courts should have, the ability to enforce its own orders.
The Judiciary bill also does a better job of protecting Americans
from widespread warrantless wiretapping. It prohibits so-called bulk
collection. What is that? Vacuuming up basically all the communications
between the United States and overseas, which the DNI admitted is legal
under the PAA. And it ensures that if the Government is wiretapping a
foreigner overseas in order to really collect the communications of the
American with whom that foreign target is communicating, what is called
reverse targeting, well, in that case it has to get a court order on
that American. Well, none of these changes hinders the Government's
ability to protect national security.
The process by which the Judiciary Committee considered, drafted,
amended, and reported out its bill was an open one, allowing outside
experts and the public at large the opportunity to review and comment.
With regard to legislation so directly connected to the constitutional
rights of Americans, I think the result of this open process
[[Page S15723]]
should be accorded great weight, especially in light of the Judiciary
Committee's unique role and expertise in protecting those rights.
Now, I am certain that over the course of this week we will hear a
number of arguments about why the Judiciary bill will hamper the fight
against terrorism. Well, let me say now to my colleagues: Do not
believe everything you hear. Last week I sat with many of you in the
secure room in the Capitol and listened to arguments made by the
Director of National Intelligence and by our Attorney General.
I can tell you with absolute certainty that several of the examples
they gave were simply wrong, simply false. I am happy to have a
classified meeting with anyone in this body who wishes to discuss that.
This is not about whether we will be effective in combating terrorism.
Both bills allow that. This is about whether the court should have an
independent oversight role and whether Americans deserve more privacy
protections than foreigners overseas. All of this should sound familiar
to those who followed previous debates about fighting terrorism while
protecting American's civil liberties in the post-9/11 world.
The administration says--and again, following on what the Senator
from Connecticut said--the administration basically says: Trust us. We
do not need judicial oversight. The court will just get in our way. You
never know when they might tell us what we are doing is
unconstitutional. We would prefer to make that decision on our own.
Time and again, that has proved to be a foolish and counterproductive
attitude, and sadly, despite the objections of many of us in this
Chamber, too many times, Congress has just gone along. We do not have
to make that same mistake again. In this case we have a factual record
to help us evaluate whether we should simply trust the administration
or whether we should write protections into the law.
The Protect America Act has only been in effect for 4\1/2\ months,
and we are still missing key information about it. The Intelligence
Committee has recently been provided some basic information about its
implementation. Based on what I have learned, I have very serious
questions about the way the administration is interpreting and
implementing the Protect America Act, including its effect on the
privacy of Americans.
I will shortly be sending the Director of National Intelligence a
classified letter detailing my concerns which are directly relevant to
the legislation we are considering. I regret this information is
classified, so I cannot discuss it here. I regret that more of my
colleagues have not been privy to this information prior to this floor
debate, but I would be happy to share a copy of my letter in an
appropriate classified setting with any Senator who wishes to review
it.
I have been speaking for some time now about my strong opposition to
the Intelligence Committee bill, and I have not even addressed one of
the more outrageous elements of the bill: the granting of retroactive
immunity to companies that allegedly participated in an illegal
wiretapping program that lasted for more than 5 years.
This grant of automatic immunity is simply unjustified. There is
already an immunity provision in current law that has been there since
FISA was negotiated in the late 1970s, with the participation of the
telecommunications industry.
The law is clear. Companies already have immunity from civil
liability when they cooperate with a Government request for assistance,
as long as they receive a court order or the Attorney General certifies
that a court order is not required and all statutory requirements have
been met.
So this is not about whether the companies had good intentions or
acted in good faith; it is about whether they complied with this
statutory immunity provision, which has applied for 30 years. If the
companies follow that law, they should get immunity. If they did not
follow that law, they should not get immunity. A court should make that
decision, not Congress. It is that simple.
Congress passed a law laying out when telecom companies get immunity
and when they do not for a reason. Those companies have access to our
most private communications, so Congress has correctly subjected them
to very precise rules about when they can provide that information to
the Government. If the companies did not follow the law Congress
passed, they should not be granted a ``get out of jail free'' card
after the fact.
We have heard a lot of arguments about needing technical cooperation
of carriers in the future. We do need that cooperation, but we also
need to make sure carriers do not cooperate with illegitimate requests.
We already have a law that tells companies when they should and when
they should not cooperate, so they are not placed in the position of
having to somehow independently evaluate whether the Government's
request for help is legitimate.
The PRESIDING OFFICER. The Senator's time has expired.
Mr. FEINGOLD. Mr. President, I ask unanimous consent for 3 additional
minutes.
Mr. SESSIONS. Mr. President, reserving the right to object, is the
Senator's request for 3 additional minutes on each side?
Mr. FEINGOLD. I would not object to that.
The PRESIDING OFFICER. Without objection, 3 minutes will be added to
each side.
Mr. FEINGOLD. Instead of allowing the courts to apply that law to the
facts, instead of allowing judges to decide whether the companies
deserve immunity for acting appropriately, the Intelligence Committee
bill sends the message that companies need not worry, they do not have
to worry about complying with questionable Government requests in the
future, because they will be bailed out. This is outrageous. Even more
outrageous is the fact that if these lawsuits are dismissed, the courts
may never rule on the NSA wiretapping program.
So what this is is an ideal outcome for an administration that
believes it should be able to interpret laws on its own without
worrying about how Congress wrote them or what a judge thinks. For
those of us who believe in three independent and coequal branches of
Government, this is a disaster.
For all of these reasons, I oppose closure on the motion to proceed
to the Intelligence Committee bill. I fear we are about to make the
same mistake we made with the PATRIOT Act. We passed that law without
taking the time to consider its implications, and we did not do enough
during the reauthorization process to fix it. As a result, three
Federal courts have struck down provisions of the PATRIOT Act as
unconstitutional, and that is right back where we are going to end up
if we do not do our jobs now and fix the Protect America Act.
I urge my colleagues to vote no on cloture.
I yield the floor and reserve the remainder of our time.
The PRESIDING OFFICER. Who yields time?
Mr. SESSIONS. Mr. President, I believe the last unanimous consent
agreement was that there would be 5 minutes for Senators Kyl,
Chambliss, and myself. We have added 3 minutes to that. I ask unanimous
consent that we each have 6 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SESSIONS. Mr. President, I appreciate my colleague, Senator
Feingold, and his passionate argument, but I am going to tell my
colleagues that this Congress and this Government of the United States
are capable of overreacting. We are capable of getting excited about an
issue and taking theoretical positions that end up, as a practical
matter, leaving our country at greater risk. This is not just an item
of discussion; it is very real.
I would point out to my colleagues that we have made two dramatic
errors some years ago in a situation just like this, on emotion driven
by our civil libertarian friends, such that a wall was put up between
the FBI and the CIA which barred the sharing of information between
those two critical agencies.
We also mandated that the Central Intelligence Agency officers could
not obtain information from people deemed to be dangerous. Bad people.
How do you get information in the world and protect America and our
legitimate national interests without sources? Those became laws.
[[Page S15724]]
And what happened after we were attacked on 9/11? Both those rules
that we imposed on our military intelligence agencies were deemed to be
bogus, wrong, and mistaken, colossally so. Many Members of this body
were warned when they were made the law of the United States, they were
warned then that if we did these things it was not wise. But, oh no,
the others loved the Constitution more, they loved liberty more, so
these unwise laws were passed. And what happened afterwards, after 9/
11? Well, we properly removed both of those silly rules. We have taken
them off the books, in a bipartisan, unanimous way. They were never
required by the Constitution. They were never sensible from the
beginning. But we passed them on emotion not reason. Some ideas being
promoted now are not sensible either and can leave our country in
dangerous straits. So this is an important matter. These things are
life and death issues.
Last year, a Federal court ruled, based on changes in technology,
that those laws we passed effectively limited the collection of
critical communications of foreign intelligence. It was not the
intention of Congress when we passed it, I am sure, that the law would,
in effect, end up gutting perhaps the most important surveillance
program we have against international terrorists, but that was the
effect of it.
Admiral McConnell was flabbergasted. He came to us and pleaded with
us to give him relief. So what happened? Well, he said this to us.
Listen to these words. Basically this is what he said: The United
States was unable to conduct critical surveillance of . . . foreign
terrorists planning to conduct attacks inside our country.
That is basically--that is what he said to us. That is a dramatic
thing.
So what happened? Congress went through an intense study, and we
passed the Protect America Act this past summer. Some people said: This
is a rush, though we spent weeks on it. Congress spent a lot of time
working on it. But we said: OK, it will come back up for
reauthorization in February. As of this date, there has been no example
of abuse of that act.
Senator Feingold says these intelligence procedures were illegal
wiretapping. I think that is really not a fair thing to say. A court
ruled that these procedures we had been using for some time, must,
according to statutes we passed, go through a certain number of
procedural hoops that, as a practical matter, would have eliminated the
possibility of us continuing these surveillance techniques. That is
what they ruled. I don't think we ever intended this to be the effect,
but the court probably ruled fairly on the law. I am not sure. We are
stuck with the ruling regardless.
I don't think it is fair to say the program was illegal. But
certainly the procedures were not unconstitutional because this summer,
when we passed the Protect America Act, we effectively concluded the
program was good and constitutional. We affirmed the program.
I want to say, if we have any humor left on this subject, perhaps we
ought to write President Bush a letter and tell him: Thank you. We are
sorry we accused you of violating our Constitution and basic civil
liberties. After the Congress spent weeks studying this, we passed a
law that basically allowed the program to continue as it was.
I urge that we do the right thing on this legislation and move
forward to the Intelligence bill, not the Judiciary bill.
The PRESIDING OFFICER. The Senator from Georgia is recognized.
Mr. CHAMBLISS. I rise in support of the motion to proceed to the
Foreign Intelligence Surveillance Act Amendments Act of 2007. It is
important to underscore just how critical this legislation is and how
the bill which was voted out of the Senate Select Committee on
Intelligence by a vote of 13 to 2 is a comprehensive and bipartisan
bill.
Some of my colleagues on
