[Congressional Record: January 24, 2008 (Senate)]
[Page S225-S226]
FISA
Mr. REID. Madam President, as I indicated, we started this debate
again last evening. Both the Senate Intelligence and Judiciary
Committees have jurisdiction over this legislation. Senators
Rockefeller and Bond, Senators Leahy and Specter worked very hard on
their particular aspects of this legislation.
We, under the regular order, in a case of sequential referral--that
is what we have in this matter--the Intelligence Committee text is the
underlying bill, and the Judiciary Committee text is automatically
pending as a complete substitute.
Last night, Chairman Leahy, with the authorization of a majority of
the committee, sent a slightly modified version of the Judiciary
Committee amendment to the desk. We will have a vote on that amendment
sometime today. The Judiciary Committee made what I believe to be some
important improvements in this legislation, adding protections for the
privacy of law-abiding Americans.
This is a strong bill. I will support it. I encourage my colleagues
to do so as well.
In the event the full Judiciary Committee bill is not accepted by the
Senate, I hope we can adopt some of the individual improvements from
the Judiciary bill that is now in the form of an amendment.
[[Page S226]]
Several of my colleagues, many of whom serve on the committees of
jurisdiction; that is, both committees, plan to offer pieces of the
Judiciary Committee bill as separate amendments.
In addition to considering the procedures included in title I of the
bill, we will also debate the question of whether telephone companies
that allegedly facilitated President Bush's warrantless wiretapping
program should be granted retroactive immunity from civil lawsuits.
Senators Dodd and Feingold will seek to strike that immunity title.
They will seek to strike it in its entirety. I personally oppose
immunity and will support that amendment. But, of course, others
disagree. If this amendment is not adopted, there will be other
amendments to limit the immunity provisions in the Intelligence bill.
I hope there will not be extended time on these amendments. We can
work through this. Friday is tomorrow. We have to finish this
legislation, and we have to do it this week. It is an important piece
of legislation. I have requested a 30-day extension. That is not going
to be given. So everyone should understand, we have to go forward with
this legislation.
Senators Specter and Whitehouse have an amendment they plan to offer,
as do Senators Feinstein and Nelson of Florida.
As I have said before, if there are Senators who do not like these
amendments and think they should be subjected to 60-vote thresholds,
these Senators are going to have to engage in an old-fashioned
filibuster. We are not going to automatically have these 60-vote
margins. These amendments are by and large germane. They should be
adopted if a majority of the Senate supports them.
Finally, yesterday, as I have indicated, I sent a letter to the
President asking for a brief extension. I have heard from many sources
that is not going to be granted.
The Senate will work as quickly as we can, but I think it is going to
be very difficult for both Houses to negotiate and pass a final bill
prior to the February 1 expiration date. But that is what we have to
do, so we have no alternative.
Republicans have objected to my requests for a 30-day extension of
the act, as I have mentioned. This matter is too important for us to be
bogged down in procedural matters at this time.
I look forward to working with my colleagues on a bipartisan basis to
provide our intelligence professionals with the tools they need to
combat terrorism, while protecting the privacy of law-abiding American
citizens.
[...]
[Congressional Record: January 24, 2008 (Senate)]
[Page S227-S271]
FISA AMENDMENTS ACT OF 2007
The ACTING PRESIDENT pro tempore. Under the previous order, the
Senate will resume consideration of S. 2248, which the clerk will
report.
The legislative clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modify and streamline the
provisions of that Act, and for other purposes.
The ACTING PRESIDENT pro tempore. The Senator from West Virginia is
recognized.
Mr. ROCKEFELLER. Madam President, the Senate now returns to the
consideration of S. 2248, the FISA Amendments Act.
As I said in December when we debated the motion to proceed to this
bill, I believe this legislation is critical to our Nation's security.
That phrase is thrown around a lot--``our Nation's security.'' It does
have meaning. To protect America from the panoply of threats we face
around the world, we must know what our enemies are planning and what
they are doing. We get that information through our intelligence
agencies, and one of the most useful sources for them is communications
intelligence.
The Foreign Intelligence Surveillance Act, or FISA, gives the
Government the authority, with court approval, to collect
communications intelligence inside the United States. Unfortunately,
the law has not kept pace with the incredible advances in
telecommunications technology of the last 30 years.
As this debate proceeds over these coming days, it is important for
all Members to understand why FISA exists and why it is necessary for
us to update it. The Congress passed FISA to protect Americans inside
the United States from inappropriate eavesdropping by the Government.
The FISA statute created a system that allowed the Government to go to
a special court and show probable cause that someone inside the United
States was an agent of a foreign power. If it agreed, if the court
agreed, the court then issued an order allowing the Government
to collect the intelligence.
Over time, the flow of global communications changed. The nature of
these communications changed. The system of fiber optic cables carrying
international communications grew, and wireless technology began to
dominate our domestic system. This was a marked change from the
communications architecture that existed in 1978, when FISA was
started, when local
[[Page S228]]
calls were transmitted over a wire and international ones usually went
via satellite.
As technology changed and America became the hub for international
communication, our intelligence agencies were presented with collection
opportunities that were never envisioned--never even thought about in
1978. But because of the way that FISA was drafted, they were unable to
take advantage of the new opportunities to collect significant
intelligence inside the United States against targets located overseas.
After September 11, 2001, the President chose to deal with the
problem unilaterally and created a warrantless surveillance program
that relied on, to my mind, questionable legal justification. I think
that was a mistake. I believe the President should have sought, and
would have received from Congress, the necessary changes to FISA to
accommodate the international communications he wished and needed to
target.
The public disclosure of the warrantless program ultimately led the
President to seek approval from the FISA Court and then to seek
additional authority from the Congress, which is where we are.
Our first attempt to address this issue was the Protect America Act
passed last August. That legislation allowed our intelligence community
to undertake the collection needed to monitor terrorist communications,
but the PAA, as we shall call it, is flawed legislation that does not
achieve the balance between protecting security and preserving our
civil liberties, which is so essential. It provided an expanse of new
authority to collect intelligence inside the United States, with little
court involvement or oversight from the Congress.
But we had the foresight to include in the PAA--the Protect America
Act--a 6-month sunset. That 6-month period allowed us the time we
needed to craft a bill that does achieve this important balance:
security and civil liberties. It gives the intelligence community the
authority it needs to keep us safe, and it puts in place the safeguards
needed to protect America's liberties. That is the bill the Senate is
now considering; i.e., S. 2248.
This bill was reported to the Senate last October on a strong
bipartisan vote under Senator Bond and myself, Vice Chairman Bond and
myself, by a vote of 13 to 2. Vice Chairman Bond and I worked hard to
craft a bill that would garnish support from both sides of the aisle
and that would have the support of the administration, leaders of the
intelligence community and, most importantly, would achieve our twin
goals of protecting the security and privacy of Americans. I should say
at this point we went to great lengths to check all our bases in this
process. We didn't do this in a cocoon and we didn't do it in a
partisan way. We reached out to the experts, whether they were inside
the administration or outside the administration. We wanted to do it so
we could make this legislation as effective as possible.
But, as with any legislation, this bill is not perfect. I have
welcomed the input from others as we have moved forward. On this point,
I must particularly acknowledge the work of the Senate Judiciary
Committee. The Judiciary and Intelligence Committees shared
jurisdiction over FISA. The Judiciary Committee also happens to be led
by two individuals with considerable knowledge and experience with
these issues from the perspective of both committees. It may not be
known to all, but Senator Pat Leahy served as vice chairman of the
Intelligence Committee in the mid-1980s, and Senator Specter served as
chairman in the mid-1990s. I appreciate the time and thought they have
put into this legislation.
The Judiciary Committee considered the Intelligence Committee bill on
sequential referral and has reported a proposed amendment to our bill.
That amendment is now the pending amendment. The Intelligence Committee
bill and the Judiciary Committee amendment take a similar approach to
addressing the underlying problems with FISA--not a huge difference.
The Judiciary Committee included several provisions that I think
further improve the already robust protections for privacy contained in
S. 2248. We were enriched by working with them.
I intend to support amendments to incorporate many of these changes
into the underlying bill, which is the Intelligence Committee bill, and
even though I cannot support everything in the Judiciary Committee
substitute amendment, nevertheless, there is very good material there.
Before I discuss possible amendments, let me take a few minutes to
walk through the bill before us today. I apologize, but I think this is
necessary as we begin this debate on what is a highly complicated and
somewhat arcane subject.
In crafting this legislation, the Intelligence Committee set out to
accomplish four main goals.
First, we wanted to ensure that activities authorized by this bill
are only directed at persons outside the United States. The bill
requires the FISA Court to approve targeting procedures designed to
accurately make the determination of whether someone is outside the
United States. For individuals inside the United States, the existing
procedures under FISA continue to apply. Individual court orders, FISA
orders, are still required.
Secondly, our bill improves the protection of information from or
about a U.S. person. Unlike the Protect America Act, this bill provides
for court review of the so-called minimization procedures. These are
procedures used to shield information about Americans who may be
overheard or mentioned in the conversation of foreign targets.
Court review of these procedures is central to the protection
afforded under FISA. But the FISA Court's role was left out of the
Protect America Act.
Third, the bill includes a new protection for U.S. citizens outside
the United States. The Intelligence Committee rejects the proposition
that Americans lose their privacy rights because they travel or work
elsewhere in the world.
Under current law, the intelligence community can target U.S.
citizens outside the U.S. solely on the authority of the Attorney
General. Our bill requires an order of the FISA Court before an
American can be targeted, regardless of the American's location. This
is a concept that both committees endorsed, and it enjoys bipartisan
support. Director of National Intelligence Mike McConnell also endorsed
this in testimony before the Intelligence Committee. This is an area of
law, however, that requires careful attention to avoid, as the Director
described, ``unintended consequences.''
Both the Intelligence Committee and Judiciary Committee approaches
need further refinement. Therefore, I believe we have reached an
agreement on a bipartisan amendment that would reconcile the approaches
of the two committees and resolve the concerns of the administration.
Vice Chairman Bond and I will offer this modification as part of the
managers' amendment.
Finally, the Intelligence Committee bill adds significant new
oversight authority to collect inside the United States against foreign
targets. The new oversight will be conducted by all three branches of
Government.
The bill includes 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
Committee; and FISA Court review and approval of acquisition and
minimization procedures.
Beyond these steps to update FISA, the other major component of the
bill passed by the Intelligence Committee--and, unfortunately, not
included in the Judiciary Committee amendment--is liability relief for
companies that may have helped the Government collect critical
intelligence after the September 11 terrorist attacks.
I understand this is controversial. But everybody should know that
this is an issue the Intelligence Committee has considered very
carefully. We had a number of hearings on this subject. In reviewing
the record of correspondence from the administration to these
companies, I and most members of the committee became convinced that
companies acted in good faith. They relied on the legal conclusion of
the Nation's most senior law enforcement official, and they provided
assistance because they wanted to help stop terrorist attacks.
[[Page S229]]
The companies received letters, and I tried very hard to convince
Steve Hadley--Director McConnell very much approved of this--to make it
possible for every Member of the Senate to have those letters that the
companies received from the National Security Agency, so Members could
understand that this was not some kind of a game, that this wasn't
``wordsmithing.'' What these letters stated was that the companies'
assistance was ``required,'' that the requested assistance was based on
an order of the President, and that the Attorney General had certified
the legality of the order. And then the NSA Director, as I say,
required, compelled these companies--there were various uses of words,
but they were all very firm, leaving no wiggle room--to comply. And
they did. They did it because they were told to do so by the highest
authorities in the land. They did so because--I believe it is possible
to say this--there are a lot of big corporations that are very
patriotic.
Private companies should be allowed to rely on this assertion from
these high officials. They should be allowed to do that. Our
longstanding legal structure is specifically designed not to force a
private company to second guess the Government in these circumstances.
I know many colleagues on the other side believe that the President
acted with his constitutional authority when he established this
program. I believe the legal foundation for this program was
questionable at best and was part of an overarching legal framework
that sought to dramatically alter the balance of power between the
branches of power in favor of the executive. But that is a dispute that
needs to be settled between the President, the Congress, and the
courts. We should not allow private companies who simply wanted to come
to the aid of their country, or were required or compelled to do so, to
be caught in the crossfire of this disagreement.
A bipartisan consensus of the Intelligence Committee supported the
narrowly drawn liability relief included in the bill. We did not
include the open-ended immunity sought by the administration that would
have prevented suits against the Government, or Government officials
who knowingly broke the law.
The committee's liability relief provision applies only to companies
who may have participated in the warrantless surveillance program after
September 11, 2001, until January 2007, when the whole matter was
placed under FISA Court authority. That is why there can be no question
about prospective; it is retrospective.
The question of whether the President had the authority to launch the
warrantless surveillance program leads me to the issue of exclusivity.
This is whether FISA is the exclusive means by which the President may
authorize the surveillance of Americans for foreign intelligence
purposes.
The President's justification for creating the warrantless
surveillance program relied in part on a claim that the legislation
authorizing the use of military force after 9/11 somehow gave him the
authority to ignore the FISA statute. I don't buy this argument.
The President also claims he has the authority, as Commander in
Chief, to approve surveillance even when statutes of this coequal
branch of Government would prohibit him specifically from so doing. No
act of Congress by itself can finally resolve the debate between
Presidential and congressional authority.
We can make it clear, however, which statutes authorize the use of
electronic surveillance. This is not academic. It is important to
clarify this point for the future. When the Nation next faces a
military emergency, we don't want Congress to hesitate while it debates
whether its authorization to use force will have unintended
consequences, such as authorizing the President to spy on Americans.
To avoid this situation, both the Intelligence and Judiciary
Committees included provisions intended to clarify which statutes
constitute the exclusive means for conducting electronic surveillance.
I have worked with Senator Feinstein, who serves on both committees,
and Senator Leahy on an amendment that will bridge the differences
between the two bills and will settle this issue in a way that I think
clarifies the statute.
Another important provision is the sunset. This bill provides a
significant new authority, and it is essential--because it is a
significant new authority in what is still emerging in the collection
of intelligence--that we carefully monitor the implementation of this
authority and revisit it to ensure it is working as we now envision.
The Intelligence Committee bill includes a 6-year sunset. The
Judiciary Committee has a 4-year sunset. I will join with Senator
Cardin and others in support of an amendment to incorporate the
Judiciary Committee 4-year sunset into the underlying bill. Four years
will ensure that the decision on permanency is made during the next
Presidential term.
As we proceed with this debate, every Member should have the same two
goals we had in the Intelligence Committee: providing our intelligence
professionals with the tools they need to keep us safe, and
establishing a system with sufficient safeguards to ensure that
Americans' civil liberties are protected over the long term. I think
the Intelligence Committee bill does that, and with a few changes it
will be even stronger.
I yield the floor.
The PRESIDING OFFICER (Mr. Nelson from Nebraska). The Senator from
Missouri is recognized.
Mr. BOND. Mr. President, again, we rise with a renewed consideration
of the Foreign Intelligence Surveillance Amendments Act, or the FISA
Amendments Act, of 2008.
I thank the chairman for his very powerful and thoughtful statement
on behalf of the original bill presented by the Senate Intelligence
Committee, with the managers' amendments that we will incorporate.
Simply put, this legislation gives the Intelligence Community the
tools it needs right now, and over the next 6 years, to protect our
country. The Protect America Act, passed by Congress in August of this
past year, allowed the intelligence community to close critical
intelligence gaps. I disagree that the Protect America Act was flawed.
It was a temporary measure. It didn't deal with all of the subjects we
needed to deal with, including protections for carriers alleged to
participate. But it did not cut back on any of the basic protections in
FISA, and it served to provide us the means in this 6-month period to
collect vitally needed intelligence on foreign subjects who might be
planning attacks either on our troops abroad or in the United States.
But this vital legislation expires in 1 week, and we must not let those
gaps reopen.
We initially began debate on the FISA Amendments Act in December of
last year. As was their right, several Members of this body decided a
filibuster was a better course for our national security. So we
listened for hours to unfounded allegations about the terrorist
surveillance program and to mischaracterizations about the Intelligence
Committee's FISA bill. Ultimately, this bill was pulled from the floor
and further debate was postponed until now.
Early this week, we returned to the Senate. Now, given that the
Protect America Act expires in a few short days, one would have thought
that FISA would be the first up on the agenda. I don't want to minimize
the importance of Indian health legislation, or any other important
legislation that the Senate should consider, but let's be clear: If the
intelligence community cannot protect this country from terrorist
attacks, then it doesn't matter much what else we debate or pass. We
have to protect the country first and protect our troops and other
personnel abroad in order to have a country, and we must improve upon
other legislation. But here we are, only a few days shy of the PAA's
expiration, and the drumbeat is there already by some stating we need
more time to consider the Intelligence Committee bill; we should just
do a short extension of the PAA. That is a bad idea. Some have called
it flawed.
I believe it is important, but I believe the Intelligence Committee
bill goes much further and does what we absolutely must do to make sure
not only that we have the ability to collect on foreign terrorists who
are planning attacks here or abroad but also to protect the
constitutional rights, the privacy rights of Americans.
The Intelligence Committee spent over 9 months looking at FISA
modernization. We have held hearings. We have gone out to NSA and
watched its
[[Page S230]]
implementation. We have reviewed the terrorist surveillance program. We
have looked at the implementation of the PAA. We have gone to review
all the documents upon which the TSP--the terrorist surveillance
program--was based, and we have come with a solid bipartisan bill. We
are ready to act, and the intelligence community is waiting for us to
act, and so are our allies abroad who have relied very heavily and
continue to rely upon our collection ability to help keep their
countries safe. Every day, we hear about attacks that have been
disrupted by allies across the world. Without being specific in any
areas, I think one can generally assume that our collections have
helped our allies protect themselves against attacks in their
countries.
There is no reason to extend the PAA, much as I liked it. We have a
bill that is responsible, and it is more effective. It addresses
concerns about the PAA. It gives our intelligence operators the tools
they need, and it ensures that our private parties will continue to
cooperate with the Government. I am pleased the majority leader and
minority leader have come to agreement on this fact.
As the majority leader stated appropriately 2 days ago when he
supported moving to this legislation immediately--and I thank the
majority leader for that--we need to act now, and I hope we will be
able to pass a solid FISA bill in short order. Some hope today. I join
with that hope. I am not an incurable optimist, but we can always hope.
We have before us the Senate Intelligence Committee bill, S. 2248,
which was passed out of the committee by a 13-to-2 vote. We need
bipartisan legislation. This is bipartisan. Nothing is ever going to be
unanimous in an area that is this technical and this important, but we
passed it 13 to 2. This bipartisan bill will give the intelligence
community the authority and flexibility it needs to track foreign
terrorists quickly and efficiently.
In November, the Judiciary Committee reported a substitute on a
straight party-line vote. The substitute added numerous provisions that
were not fully vetted with the intelligence community. Regrettably, it
ignores significant concerns expressed by working-level officials in
the Department of Justice and the intelligence community--the very
operators who know how this complex, technical, and overwhelmingly
supervised and reviewed system works. The Judiciary Committee also
ignored the concerns of its own minority members. As a result, this
totally partisan substitute changed the Intelligence Committee bill in
ways that will gut--gut--our intelligence surveillance capabilities.
This substitute amendment is what we will be considering first this
morning.
Last night, at the very last minute, the chairman of the Judiciary
Committee filed a new substitute that modified the original Judiciary
Committee substitute. Regrettably, the Judiciary Committee did not
share this with my staff, and we only received the strikeout version,
one that shows the changes between the substitute that has been at the
desk for 2 months now and this last-minute switch. We received it from
the ranking member's staff late last night.
After a quick review, my staff and I can tell my colleagues that the
core problems remain, and although the DNI and the Department of
Justice also have had little time to digest it, they have told us that
their primary concerns remain. They cannot support this new substitute.
It does not get the job done.
Conversely, the Intelligence Committee's bipartisan bill was drafted
after months and months of studying the collection program. Members of
our committee went out to the National Security Agency--we refer to it
as NSA--to see how the program worked and to inspect the layers of
protection built into their collection methodologies to make sure the
agency stayed within the bounds of law.
Over several months, Chairman Rockefeller and I put together an
agreement with our committee on both sides which adds more protections
to the constitutional rights and the privacy rights of American
citizens. I can be very proud and I think the Members of this body can
be very proud that we have extended and improved protections for
American citizens.
We worked with the intelligence community representatives and the
Department of Justice lawyers to make sure our legislation would work
and would not impede vital collection--more protection but keep the
system working. I think that is where we ought to be, and that is where
we are in the underlying Intelligence Committee bill.
Most importantly, we fashioned a legislative solution that both
Democrats and Republicans could accept. I thank our Intelligence
Committee members and staffs for their efforts, long and hard work, to
come up with this bipartisan bill. Our bill has been publicly available
for scrutiny for over 3 months now, and it remains the most solid
bipartisan way to move forward.
Two provisions of the bill, however, were added to the initial markup
without the input of the intelligence community. As a result, both
provisions in the bill could cause unintended operational consequences,
and they needed to be fixed. Chairman Rockefeller, Senator Whitehouse,
Senator Wyden, and I worked together with the community to come up with
solutions to these problems, and I hope we can have broad support for a
managers' amendment to remedy that situation. One of these provisions
provided important new protections, but it had to be reworked to
protect Americans abroad in a manner which was consistent with our
structure of laws and those of other countries.
The DNI has told us that with the managers' amendment fixing these
two problems, the community will support our bill. That is important
for Chairman Rockefeller and me because we want to pass a bill that
works and will become law. It would do no good to pass a bill that some
may feel good about or may pass for good politics but does not work for
those who protect us in all of our intelligence agencies. So the DNI's
support of this bill, in particular, is critical. Consequently, with
these fixes applied, we will also have a bill the President will sign
into law.
My intention as a floor manager--and I believe Chairman Rockefeller
stands shoulder to shoulder with me in this--is to pass a bill that the
DNI supports and that the President will sign. I believe we have that
right now with the fixes to be applied.
If we attempt to change key painstakingly constructive provisions or
to add bad provisions, however, we could hinder the intelligence
community's ability to do its job and jeopardize the DNI's support for
this bill and the chances of it becoming law. With the expiration of
the PAA in a few days, I believe this is not the path we should take in
the Senate. Anyone who has read FISA knows that it is very technical
and each word matters. So it is imperative we do not add provisions
without the input of the intelligence community, and we need to listen
to their concerns. They are experts. They operate an incredibly
technical and complicated system that is overlaid with legislation
carefully drafted to recognize their capabilities, their limitations,
and, most importantly, protections for U.S. persons and American
citizens. We saw firsthand how difficult it is to deal with amendments
that are not cleared with the intelligence community to make sure they
work.
Let me just say that the Department of Justice and the Office of the
Director of National Intelligence have been very helpful throughout the
process, but we should not mistake their willingness to provide
technical support to avoid operational problems with support for
certain provisions. So while the DNI may have provided some technical
support, there are several amendments that I believe, if added to our
bill, could cause problems for the intelligence community, lose the
support of the DNI and thus our ability to get this bill signed by the
President.
First, I expect there to be some efforts to undo or modify the civil
liberty provision in the Intelligence Committee's bill. Chairman
Rockefeller has already delivered a very strong and persuasive argument
for this liability protection. It has been said once very well by the
chairman, but this being the Senate, it needs to be said again, and I
will be happy to do so.
This provision is essential to foreign targeting authorities. Without
retroactive and prospective civil liability protection, it becomes much
less likely that our private sector partners will be
[[Page S231]]
able or willing to assist us in the future. That means the intelligence
community would have to spend great time compelling telecommunications
providers in each instance who are reluctant for fears of civil
lawsuits to assist, to work with us to track terrorists.
The committee studied this issue, and we reached a broad bipartisan
consensus that civil liability protection is for providers and not
immunity for Government officials. That was the appropriate action. I
repeat, the civil liability provision in this bill is for private
parties who may have assisted the Government. There is no immunity or
protection for the Government itself.
Additionally, the concept of ``substitution,'' where the Government
is substituted for the private party as a defendant in court, is not an
acceptable alternative. That would allow litigation to continue,
including discovery against the providers, thereby risking the
disclosure of our sensitive intelligence sources and methods.
At his confirmation hearing, I asked General Hayden, the nominee for
the head of the CIA, who had previously been the head of NSA, how badly
the disclosures of our intelligence collection methods had hurt us in
the battle to get the intelligence we need. General Hayden told us
ruefully that we are now applying the Darwinian theory to terrorists:
We are only capturing the dumb ones.
With substitution, we would not only be risking disclosure of sources
and methods, we would also, however, embitter private parties against
us whose cooperation becomes public, thus endangering their personnel,
their facilities, and their business reputation here and abroad, with
grave consequences to those who had participated, as Chairman
Rockefeller said, in compliance with a Government directive from the
highest officials in the land, and we would put taxpayers' dollars at
risk for trial lawyers' coffers. We would also incur great expense in
defending those lawsuits. The orders were issued--and I will discuss
more about this later--under the President's article II constitutional
power and responsibility to conduct foreign affairs.
Let me say a few words about an idea that came up shortly before the
debate in the summer. Some are suggesting that before civil liability
protection is granted, the FISA Court, the Foreign Intelligence
Surveillance Court--and I will refer to it as the FISC--the FISC or
other court must determine that those providers who allegedly assisted
the Government with the terrorist surveillance program acted in good
faith and pursuant to an objectively reasonable belief that the
directives were lawful.
As reflected in the Intelligence Committee report accompanying S.
2248, the committee has already made this determination. We have
studied this issue extensively, and we concluded that civil liability
protection was the best and only solution. Why would Congress want to
turn over its collective judgment to a single judge and pass a law
stating that judge's ruling would be the final word on this issue? We
don't even know what that ruling would be. This does not make much
sense to me. We already went through this problem with the judicial
variance on the FISC before, remember? The President's program was put
under FISA, and then changes within the court, different judges, led to
a problem with the intelligence gaps that spurred the need for short-
term legislation last August. Congress should not roll the dice on this
issue, close our eyes, cross our fingers and say: Whatever judge
happens to be on call the day this issue comes up, well, that will be
the final word on this question. Remember, the FISC's function is to
approve applications for electronic surveillance. It is not set up for
nor has established competence in this area. It makes no sense.
The providers need civil liability protection, and they deserve it
now, not the prospect of further proving their good faith before yet
another court. The longer this litigation drags on, the more likely it
is that our intelligence sources and methods will be disclosed and the
communications providers' businesses will suffer and they, their
facilities, and their personnel will be at risk. It also becomes more
likely and understandable that these companies, on which both the law
enforcement and the Intelligence Committee rely for critical and timely
information, could refuse to assist us in times of our need because of
valid business reasons about the potential for further lawsuits. And I
am not just talking about terrorist threats, I am talking about a
provider refusing to give information voluntarily to help find a
kidnapped child or help to find those who sexually entrap children on
the Internet or proliferation or what have you. Should we be willing to
take this risk? I don't think so.
Now, let me move to some of the issues the Judiciary Committee
modified in our bill to the detriment of the overall product. Let me be
clear, the new substitute that was filed last night is the same old
wolf in different clothing. It does not alleviate any of these
concerns. The Intelligence Committee bill included, as part of our
compromise, a reiteration of the exclusive means provision in the
current law, which states that FISA is the ``exclusive means'' in
statute for conducting electronic surveillance. No statute that
Congress ever passes can trump the President's article II powers.
Numerous courts, and even the FISC itself, have reviewed this and
stated the powers given to the President under the Constitution cannot
be extinguished by a law passed by Congress. Even though we have passed
a law on exclusive means, we have also passed a law called the
Authorization for the Use of Military Force, which has to be read in
conjunction with FISA.
Clearly, even those who believe a statute can somehow impinge on the
article II constitutional powers of the President must recognize the
powers of the President, if they were lessened by FISA, were
reinvigorated by AUMF. Congress is making a statement in ``exclusive
means'' that we want to see surveillance conducted under FISA. We have
seen many attempts to broaden this language, but this is an area that
calls for extreme caution. Exclusivity is more than a policy statement,
it has a real operational component.
As we now know from our own experience in drafting this provision,
the slightest word change can impede vital intelligence collection. I
believe the Intelligence Committee's version addresses Members' views
about exclusivity and further strengthens that statement, while at the
same time preserving the ability to gather intelligence. Conversely,
the majority's Judiciary Committee substitute now requires an act of
Congress after the next attack, potentially before our intelligence
professionals can do what they need to protect us. There is no
exception if the attack comes from al-Qaida or another terrorist
organization.
Now, it doesn't take a rocket scientist to figure out that as we
stand here today, we have no idea where or when the next attack may
come. Are we, each of us, willing to take the risk that Congress may
not be able to act; that for whatever reason Members cannot make it
back to Washington, DC, we cannot get a bill passed and signed by the
President, which would leave our intelligence community without the
authorities it needs to counter the threat or protect this country? I,
for one, don't want to be explaining that back home to my constituents
in Missouri. It is another nice sounding idea politically to some that
makes no sense operationally and shuts down some potential intelligence
collection.
Moreover, the Judiciary Committee's bill, and the latest substitute,
would allow the FISC to assess compliance with the minimization
procedures used for the acquisition of foreign intelligence information
from individuals outside the United States. Minimization procedures are
designed to protect U.S. identities if communications of U.S. persons
are accidentally swept up in a surveillance operation or if a U.S.
person is party to a conversation with a target--a lawful target--but
that U.S. person is not of intelligence interest him or herself. We
minimize, suppress, don't even record the name of that U.S. person. If
there is no intelligence value, then that person is not at risk. To be
at risk, that person would have to be receiving or instituting a call
to a lawful target. That means that if somebody is calling a family
member abroad, a business activity abroad, then there is no reason to
fear that even those conversations would be picked up. But if others
are picked up that are of no intelligence value, they would be
minimized or suppressed.
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Giving the court the ability, supposedly, or the responsibility to
assess compliance may sound like a good idea in the abstract, but when
we talk about foreign targeting, we are outside the FISC's expertise.
The FISC was created solely to issue orders for domestic surveillance
on a particular target. Congress, in 1978, recognized the court's
expertise over domestic matters but specifically left foreign
surveillance activities to the executive branch and the intelligence
community and the oversight of the intelligence committees. By now
requiring judicial review of minimization procedures for a foreign
target, we would take a huge step back from a system that worked well
for almost 30 years. So there is a red line, and I need to draw it.
But that line is already drawn. As a practical matter, when the FISC
assesses compliance with minimization procedures, it would be second-
guessing trained analysts' decisions about which foreign terrorist to
track and how to do that. The FISC knows what to look for when it
issues a warrant to tap someone's phone in Virginia, but when it comes
to analyzing intelligence leads and deciding which foreign terrorists
or spies should be surveilled, the court is simply not competent to
make these judgments. This is what assessing compliance would have them
do. The court knows this. Let me point to the court's own words from
its published opinion on December 11, over a month ago, in the case In
re: Motion for Release of Court Records. There the FISC judges say they
are:
Not expected or designed to become experts in foreign
intelligence activities, and do not make substantive
judgments on the propriety or need for a particular
surveillance. Even if a typical FISA judge had more expertise
in national security matters than a typical district court
judge, that expertise would still not equal that of the
Executive Branch, which is constitutionally entrusted with
protecting the national security.
That is a quote from the court which some want to give this
responsibility which they say they do not have. We need to heed the
words of the FISC and not require them to make judgments they
themselves believe are better left to the executive branch.
Let me repeat for my colleagues to hear clearly. The FISC, the FISA
Court itself, is virtually saying: Congress, don't do this. We are not
the right ones to make this determination. We should be wary to
disregard their own assessment of their own competency in this vital
intelligence collection area.
Additionally, throughout this debate, we must remember we are talking
about foreign terrorists operating in foreign countries intent on
harming us and our interests. Senator Leahy's new substitute slightly
modifies a requirement from the original substitute that the Department
of Justice inspector general conduct a comprehensive review of the
President's Terrorist Surveillance Program. That modification, however,
does not address the underlying concerns with his provision. This
review simply is not necessary and is beyond the expertise of the DOJ
inspector general.
The Intelligence Committee has had numerous briefings and hearings on
the TSP. We have spoken at length with lawyers from the Department of
Justice and with the operators, and we have read document after
document on which this program was based. We have spent more time on
FISA than I ever dreamed possible or that I ever wanted to do. Yet I
have not heard one convincing argument as to why this review must be
conducted. Again, it may look good politically, it may make good sound
bites, but we have reviewed this program to death over the past year.
Yet another review is redundant, unnecessary, and because of that is
wasteful.
Finally, as a part of my agreement with Chairman Rockefeller, we
included a 6-year sunset in the bill. Personally, I think sunsets are a
bad idea when we are talking about national security. The Attorney
General, General Mukasey, has stated repeatedly, ``There are no sunsets
in our enemies' fatwas.'' I understand what he is getting at. The
terrorists' desire to get after us is not limited. We should give our
intelligence operators something they can hang their hat on when they
retool their systems and move forward with intelligence collection.
If there is a debate about sunsets, I am considering saying we ought
to get rid of even the 6-year sunset. I agreed to 6 years to get this
bill moving, but shorter than that I don't believe is acceptable. If we
provide stricter, shorter term sunsets, that would tell the private
entities and our intelligence communities that Congress's view on civil
liability protection is only temporary and the power for our
intelligence collection is only temporary. This new statute gives our
operators confidence in the new statute. It gives our collaborating
allies abroad confidence we will be there.
Let me make one thing clear. Our job in the Senate Intelligence
Committee, and the same on the House side, is to review intelligence
collection methods. We review it on a semiannual or even monthly basis.
If we find there is a problem with this bill, we should not have to
wait until the sunset comes to change it. We see a problem, we need to
fix it. We don't need to wait for 6 years or 4 years to fix it. If
there is a problem, let's start fixing it as soon as we find it.
A sunset does not prevent us from passing new legislation when we see
fit. No sunset at all would put even greater pressure on us to make
sure it is working properly. If in 1 year the bill was shown to be
inadequate, we should act immediately to fix it, not wait until the
sunset. So I don't like sunsets, but the 6 years was a compromise with
the chairman and other members of the committee to produce this bill.
The Judiciary Committee, in this new substitute, seeks to further
shorten the time frame to 4 years. Our intelligence collectors, our
troops on the battlefield, the private parties who depend on this
authorization need certainty, not authorities that change depending on
what year it is. A 4-year sunset would not give them the certainty they
need.
In conclusion, our intelligence collectors, our troops who are in
harm's way, need this legislation, and our country needs this
legislation. But let me talk about the troops. In May, when I visited
Iraq, I talked directly with the commander of our Joint Special
Operations Command, who told me the limitations under the old law,
shutting down of the collection that occurred because of the new
technology, so adequately described by the chairman, prevented him from
collecting key information he needed to protect our troops in the
theater, on the battlefield. My son happened to be one who was there at
the time. That got my attention. It had the attention of the troops and
the commanders. The commander told us he could kill or capture top al-
Qaida leaders, but he was not able to collect signals intelligence on
them. Does that make sense? No.
The bottom line in this story of FISA is terrorists were able to use
technology and our own outdated laws to stay a step ahead of us. We
can't afford to give them that step. The Intelligence Committee's bill
gives our intelligence operators and law enforcement officials the
tools they need to conduct surveillance on foreign terrorists and
foreign countries planning to conduct attacks inside the United States
against our troops and against our allies. It is the balance we need to
protect our civil liberties without handcuffing our intelligence
professionals.
I hope we can do the right thing--pass this bill, with the perfecting
managers' amendment but without any additional changes that will
compromise its functionality and prevent it from becoming law. We need
a bill both Democrats and Republicans support, the DNI supports, that
is good for the intelligence community, and that the President will
sign into law.
That means we need to dispense with the Judiciary substitute that is
immediately before us and proceed with consideration of amendments to
the bipartisan Intelligence Committee bill. I look forward to making
this happen.
I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that following
my remarks, the Senator from Florida, Mr. Nelson, be recognized for his
remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. FEINGOLD. Mr. President, I strongly support Senator Leahy in his
effort to replace the Senate Intelligence Committee bill with the
version passed by the Judiciary Committee. I am a member of both of
these
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committees. As a member of both committees, I have been deeply involved
in the process of having looked at those two products.
Having been involved in helping shape them, I urge my colleagues to
support the Judiciary Committee version of this legislation. Indeed, I
had hoped very much that the Senate would take up that bill to begin
with rather than the flawed Intelligence Committee bill.
In December, I along with 13 other Senators, urged the majority
leader to make the Judiciary Committee bill the base bill on the Senate
floor. Unfortunately, our request was denied. So it is very
disappointing that we are now forced to fight an uphill battle of
offering the Judiciary bill as an amendment.
I would like to lay out the reasons the Senate should support the
Judiciary Committee bill rather than the Intelligence Committee bill.
One obvious reason is the Judiciary Committee bill, unlike the
Intelligence Committee bill, does not contain unjustified retroactive
immunity for companies alleged to have participated in an illegal
wiretapping program.
I do not want to spend a lot of time on this today because there will
be an opportunity to debate this issue as the Senate's consideration of
this legislation moves forward. But I will say that having spent the
last year and a half studying what happened at the NSA from 2001 to
2006, I strongly oppose immunity.
Under current law, telecom companies already get immunity as long as
they follow certain requirements that are clearly spelled out in the
law. I see no reason for Congress to change the rules this late in the
game.
Today, I would like to focus on the other significant parts of these
bills, the part contained in title I of each bill that contains
sweeping new changes to the FISA law for years to come. Let me start
off by pointing out that there are a number of similarities between
title I of the Intelligence Committee bill and title I of the Judiciary
Committee bill. Their basic structure is the same.
Title I of both bills authorize the Government to conduct
surveillance of individuals reasonably believed to be overseas without
court approval for individualized warrants. Both bills authorize the
Government to develop and implement procedures to govern that type of
surveillance and provide the procedures to the FISA Court for review
after they have gone into effect.
Now, let's be clear. These are extraordinary powers that both bills
give to the executive branch. And there is no difference between these
two bills in terms of the intelligence they permit the Government to
acquire. No difference between the bills as regards to the effort to go
after those who may be trying to do us harm in this respect. Rather,
the differences between these two bills comes in the form of critically
important checks and balances on those powers.
The Judiciary bill contains a number of important changes to improve
court oversight of these broad new executive branch authorities and to
protect the privacy of law-abiding Americans--the privacy of law-
abiding Americans. The Intelligence Committee bill, on the other hand,
leaves it up to the executive branch to police itself, an approach that
has all too often proven to be a bad idea throughout American history.
I would say particularly under this administration.
Let me state as clearly as I can the differences between these two
bills have nothing--nothing--to do with our ability to combat
terrorism. They have everything to do with ensuring that the executive
branch follows the rule of law and does not unnecessarily listen in on
the private communications of Americans who are doing absolutely
nothing wrong.
This debate is about whether the court should have an independent
oversight role and what protections should apply to the communications
of Americans that somehow get swept up in these broad new surveillance
powers. If you believe the courts should have a meaningful oversight
role with regard to Government surveillance, then you should support
the Judiciary bill.
If you believe that Congress should safeguard the communications of
Americans at home that could be swept up in a broad new surveillance
program that is supposed to be focused on foreigners overseas, then you
should support the Judiciary bill. It is as simple as that.
That said, the Judiciary Committee bill is not perfect. More still
needs to be done to protect the privacy of Americans. That is why it
should be an easy decision to support the Judiciary Committee bill as
our starting point on the floor of the Senate as we work on this
legislation.
Let me also remind my colleagues that the process by which the
Judiciary Committee considered, drafted, and 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, the
result of this open process should be accorded great weight, especially
in light of the Judiciary Committee's unique role and expertise in
protecting those rights.
I also point out that several of the administration's criticisms of
the Judiciary Committee bill have been based on technical drafting
concerns. But in the version that Chairman Leahy has brought to the
Senate floor, he has made the changes necessary to address those
technical concerns. So I hope we do not hear any arguments in this
floor debate about these issues that have already been addressed.
Exactly what are the differences between these two bills? First, the
Judiciary bill gives the secret FISA Court more authority to operate as
an independent check to the executive branch. For example, one
provision in the Judiciary bill fixes an enormous problem with the
Intelligence Committee bill; that is, the complete lack of incentives
for the Government to target people overseas rather than to target
people in the United States.
The Judiciary bill solves this problem by giving the FISA Court the
discretion to limit the use of information concerning Americans when
that information is obtained through procedures that the FISA Court
ultimately finds are not--are not--reasonably designed to target
persons overseas.
Another provision of the Judiciary bill ensures that the FISA Court
has the authority to oversee compliance with what are called
minimization procedures. Minimization procedures have been held up as
the primary protection in the Intelligence Committee bill for the
privacy of Americans whose communications get swept up in this new
surveillance authority.
Now, I do not think current minimization procedures are strong enough
to do the job. But to the extent that minimization can help protect
Americans' privacy, its implementation surely needs to be overseen by
the court. So that means giving the court the authority to review
whether the Government is complying with the minimization rules and to
ask for the information it needs to make that assessment.
Now, without this provision from the Judiciary bill, the Government's
dissemination and use of information on innocent law-abiding Americans
will occur without any checks and balances whatsoever, no checks and
balances at all.
Once again, ``trust us'' will have to do. Now, I believe in this
case, as in so many others, ``trust us'' is not enough. The Judiciary
bill offers other types of oversight, as well. For one thing, it
requires relevant inspectors general to conduct a complete review of
the President's illegal wiretapping program, which, frankly, is long
overdue.
It improves congressional access to FISA Court orders. The
Intelligence Committee bill required the Congress to be provided with
orders, decisions, and opinions of the FISA Court--that includes
significant interpretations of the law--within 45 days after they are
issued.
Now, that is good as far as it goes. But the Judiciary Committee bill
adds that Congress should be provided with the pleadings, the pleadings
filed with the court associated with the opinions that contain
significant interpretations of law.
At times, the court's opinions merely reference and approve arguments
made in the Government's pleadings. In that case, the pleadings may be
critical to understanding the reasoning behind any particular decision.
It is not enough just to have the cursory court opinion.
It also requires that significant interpretations of law not
previously provided to Congress over the past 5 years
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be provided. Congress needs to have the full story of how the law has
been interpreted in the past in order to make the right decisions on
what changes in the law should be made in the future.
The Judiciary bill also does a better job of protecting Americans
from widespread warrantless wiretapping. First, it provides real
protection against what is called reverse targeting. It ensures that if
the Government is wiretapping a foreigner overseas in order to collect
the communications of the American with whom that foreign target is
communicating, it gets a court order on the American. Specifically, the
Judiciary Committee bill says the Government needs an individualized
court order when a significant purpose of its surveillance is, in fact,
listening to an American at home.
The Director of National Intelligence himself said reverse targeting
violates the fourth amendment. All this provision that I am raising
does is simply codify that principle. The administration continues to
oppose this provision.
I have a simple question: Why? Why is it opposed to a provision that
prohibits a practice that its own Director of National Intelligence
says is unconstitutional?
The Judiciary Committee bill also prohibits something called bulk
collection. Now, that is this sweeping up of all communications between
the United States and overseas. The DNI said in public testimony that
this type of massive bulk collection would be--would be--permitted by
the Protect America Act that is currently in effect. But he has also
said that what the Government is seeking to do with these authorities
is something very different.
It is, he said:
Surgical. A telephone number is surgical. So, if you know
that number, you can select it out.
So if the DNI has said he does not need broader authorities, there
should be no objection to this modest provision which, again, simply
holds the DNI to his word.
The prohibition against bulk collection ensures that the Government
has some--some--foreign intelligence interest in the communications
that it is collecting and not just vacuuming up every last
communication between Americans and their friends and business
colleagues overseas.
Targets do not need to be known or named individuals; they can be
phone numbers, which is how the DNI has described how the Government
collects. And the Government does not have to identify or explain its
interest in the targets to the FISA Court. It merely has to make a
general certification that individual targets exist.
As was already alluded to on the Senate floor, the Judiciary
Committee bill also has a sunset of 4 years rather than 6 years,
ensuring that Congress will reevaluate this law at least once before
the end of the next Presidential term. And, critically, it contains a
strong statement that Congress intends for FISA to be the exclusive
means by which foreign intelligence surveillance is conducted. It also
closes purported statutory loopholes that the Justice Department relied
on to make its torture arguments that the congressional authorization
for the use of force in Afghanistan authorized the President's illegal
wiretapping program. The Judiciary bill makes clear, once and for all,
that the President must follow the law.
For all of these reasons, the Senate should support the Judiciary
Committee's product. Let me repeat what I said at the outset. The
differences between these two bills have nothing to do with our ability
to combat terrorism. Nothing. They have everything to do with ensuring
that the executive branch adheres to the rule of law and does not
necessarily listen in on the private communications of Americans. The
fact that the administration is so strongly resisting these commonsense
protections really says a lot. It ought to give pause to those who are
considering opposing it.
It is time for Congress to stop being an enabler when it comes to
this administration's indifference to the rule of law and, instead,
start being a protector of the rights and freedoms of our citizens.
I urge my colleagues to support the Judiciary Committee bill.
I yield the floor.
The PRESIDING OFFICER. The senior Senator from Florida.
Mr. NELSON of Florida. Mr. President, I, as the Senator from
Wisconsin, my colleague, have had difficulty as we sit side by side in
the Intelligence Committee with the issue of immunity.
First of all, I want to say that I think the intelligence community,
headed by Admiral McConnell, is doing an excellent job. They are
correcting colossal mistakes. We had a colossal mistake on intelligence
on September 11. We had another colossal mistake of intelligence
leading up to the Iraq war. And in order for us to protect ourselves,
we, in fact, have to have information in order to disrupt the plans to
attack us, to harm the Nation.
So I give credit to Admiral McConnell, the Director of National
Intelligence. I give credit to General Hayden, the head of the CIA, to
Steve Kappes, the Deputy Director of the CIA. I think they are doing a
terrific job.
I compliment the chairman and the vice chairman of our committee, and
they are within earshot, and I want them to hear how much this Senator
appreciates their cooperation between each other to work in a
bipartisan fashion. They are talking right now, so I am not sure they
are hearing me. I want them to know my personal appreciation for how
they have taken a bipartisan approach. It is important that we thank
people for the work they are doing.
This legislation is an attempt to be crafted so that these folks can
better perform their job but at the same time protecting the precious
civil liberties Americans have that make us unique from any other
society on planet Earth. We want to protect those rights of privacy. I
believe there are protections in this bill that will extend to
Americans, regardless of their physical location. One of the things we
amended in the Intelligence Committee was that it doesn't make any
difference, if an American is here in the United States or if they are
abroad, if you are going after an American as a target, they ought to
have to go to the FISA Court to get a court order called a warrant,
regardless of where that American is, if they are a target of
surveillance. That is important. It is important to support our
constitutional protections of privacy and that the Government can't
come and intrude in our lives. I think we have started off in the right
direction.
As the Senator from Wisconsin has said, I have a problem with the
blanket immunity as well. I agree with Admiral McConnell. At the end of
the day, we have to have the cooperation of the 10 communications
companies, and they should not have the threat of a spurious lawsuit
hanging over their heads, thinking they are going to be dragged out in
public court over time as a means of trying to extract a pound of flesh
from them. There should be every opportunity and encouragement for the
telecommunications companies to cooperate with the U.S. Government
intelligence community for the protection of the country. The bill
before us does, in fact, give that immunity for any of the surveillance
that did not have a warrant from the FISA Court from the period of
September 11, 2001, to January 17, 2007.
The problem I have with that is, I am not sure the telecommunications
companies were attending to their knitting, as to whether they were
getting legal orders from the United States Government, not in the
first year after September 11, not in the second year, perhaps not even
in the third year after the attack on New York City and the Pentagon
and the attempt on other facilities in Washington. I am talking about
this went on for a fourth year and a fifth year. I am not sure that, in
fact, they had the legal basis to say that the Government, in fact, was
complying with the law. Of course, I make that judgment, and my
judgment is based on something I can't say here on the Senate floor,
because it is not only highly classified; it is highly compartmented. I
have read the documents. I have a problem with that.
At the end of the day, if it means we have to pass the bill and it
has immunity in it, I am going to vote for the bill, because it is much
more important that we go ahead and have a procedure set out by which
we can try to protect ourselves from the bad guys and at the same time
protect the civil rights, the right of privacy of our citizens. That is
contained within the committee bill, and that is the way I voted in
committee. I voted against the immunity,
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but that amendment only got three votes. When it came to passage of the
final bill, I voted for it, because that is in the interest of the
country. If that is what I am confronted with here, that is the way I
am going to vote and support the chairman and vice chairman of our
committee.
Maybe it doesn't have to be as stark as Senator Feingold has said,
that it is either immunity or no immunity. Maybe what the issue
ultimately ought to be is somewhere in between. That is the Feinstein-
Nelson amendment that will be offered later in which it will put a
review of the telecommunications carriers' actions squarely under the
jurisdiction of the special Federal court set up to handle these top-
secret matters called the FISA Court. The court would review all
aspects of the telecommunications carriers' involvement and make a
decision on immunity based on three criteria. No. 1, if the court
decided that the telecommunications carrier did not provide the
assistance as alleged, then, of course, the court would dismiss the
lawsuit against the company. No. 2, if the assistance was provided, the
court then would determine whether the documentation sent by the U.S.
Government to the companies met the requirements of the law and was
adequate. This law that would have to be met states that a
telecommunications carrier needs a court order or a written
certification from the Attorney General that no court order is
required. It further has to state that all statutory requirements have
been met. So then this FISA Court, in other words, would, in fact,
judge that. If the conditions of the statute had been met, then the
companies would be shielded from the lawsuit and the lawsuit would be
dismissed.
Or the third criteria the court would look at: If the special Federal
court, the FISA Court, found there was no certification given to the
telecommunications company, then the court would examine whether the
company acted in good faith and with an objectively reasonable belief
that it was legal. If the court determined that, then the
immunity would be provided.
That seems to be a way in which the companies would be protected, and
at the same time we can get to this issue of this third year, fourth
year, and fifth year that the United States Government is saying this
is legal without a court order, when, in fact, it seems to me that the
CEOs of those companies and the general counsels of those companies
ought to have been jumping up and down saying: Wait a minute. We want
additional information. The amendment to be offered by the Senator from
California and me creates a series of three requirements that must be
met in order for the telecommunications companies to receive immunity.
It is going to preserve the rights of private citizens to make their
case in front of a judge without jeopardizing these highly sensitive
kinds of not only top-secret but compartmented material that need to be
classified for the protection of the country.
Practically speaking, what is going to happen? We can't pass anything
around here unless you get 60 votes. That is a huge threshold. As this
comes before the Senate, I doubt the Feingold amendment is going to get
60 votes to cut off debate. I doubt the Feinstein amendment is going to
get 60 votes. That brings us right back to the Intelligence Committee
bill which is before us right now, in which case, on final passage, I
am certainly going to vote for that. But there is another opportunity
to address this specific issue. It is unlikely that the House of
Representatives is going to pass this legislation with the immunity for
the companies. Therefore, there will be a huge difference between the
Senate bill and the House bill, as the clock continues to tick down
toward the deadline in which agreement is going to have to be reached.
It seems to me the Feinstein-Nelson approach is a reasonable compromise
at that point.
I hope in time we are going to be able to pass this, that we will
pass it before the deadline which, to my knowledge, is in a week or so,
maybe a week and a half. The majority leader says he is going to keep
us in all weekend in order to get this passed. If I were he, I would do
the same. It is so critically important to our country that we pass
this legislation.
So on we go. Let the legislative process work itself out. Hopefully
we will get this thing passed.
I yield the floor.
The PRESIDING OFFICER (Mr. Brown). The senior Senator from Texas is
recognized.
Mr. BOND. Mr. President, may I ask the distinguished Senator from
Texas to yield for a unanimous consent request and then she will be
recognized after that.
Mrs. HUTCHISON. Yes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ROCKEFELLER. Would the distinguished vice chairman be willing to
yield for a parliamentary matter?
Mr. BOND. Please.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. ROCKEFELLER. Mr. President, I ask unanimous consent that the time
until 2 p.m. today be for debate prior to the vote in relation to the
Judiciary Committee amendment, as modified, with no amendment in order
to the amendment prior to the vote, with all time equally divided and
controlled between Senators Leahy and Bond or their designees, with the
30 minutes prior to the vote divided as provided above, with Senator
Leahy controlling the final 15 minutes and the vote will be at 2.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Missouri.
Mr. BOND. Mr. President, since we have had two speakers on the
majority side, I ask unanimous consent that Senator Hutchison and then
Senator Brownback be recognized on our side.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
Mr. BOND. I thank the Chair.
The PRESIDING OFFICER. The senior Senator from Texas is recognized.
Mrs. HUTCHISON. Thank you, Mr. President.
First, Mr. President, let me say, while the distinguished chairman
and ranking member of the Intelligence Committee are both on the floor,
that I believe the Intelligence Committee has done a fine job on this
very important legislation, the Foreign Intelligence Surveillance
Amendments Act, that will modernize and allow our law enforcement
officials to have the tools they need to protect our country.
The Intelligence Committee voted the bill out on a bipartisan basis.
It was certainly debated and balanced within the committee. I think
this Senate should support the Intelligence Committee and all the work
they have done to prepare this very important legislation. So to
Senator Rockefeller and Senator Bond, I say thank you for doing a great
job.
I do rise today to support this bill. It is essential that we do so
to protect our country. I was proud to join my colleagues last August
in passing the Protect America Act. It will expire in 8 days--in 8
days. The majority leader has said we are going to pass this
legislation this week out of the Senate. That is a good thing. The
House needs a week to look at it and determine if they will pass it. I
hope they will pass the same legislation that is before us from the
Intelligence Committee and send it to the President without amendment.
Our enemies are not going to expire in 8 days. Al-Qaida, we know,
uses cell phones and wireless Internet networks and countless other
technologies that were not in place when the original FISA passed 30
years ago. Thirty years ago, we did not have cell phones. Thirty years
ago, you would go to a court and say: We want to tap the phone line of
this number. Today, a cell phone can be thrown away before you can go
to get a court order.
So in the act we passed last year, we determined that you could get a
court order to intercept the communications between suspected
terrorists and you can go to the person rather than to a phone number,
which would be unusable by the time you could get a court order. So
that is one way we have begun to upgrade the technology to match the
threat. Because our enemy is very technologically capable. We must be
able to meet that with law enforcement. Delays could mean the
difference between life and death.
Unless we take action, this protection of our ability to intercept
potential plots against our country will go out of existence. We
cannot, in good conscience, let that happen.
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Let's talk about the litigation aspects because that is going to be
the first amendment we vote on. The first amendment we vote on is going
to be out of the Judiciary Committee. There will be other amendments, I
know, that have already been discussed on the floor regarding
litigation against telecom companies.
After 9/11, the Federal Government requested that America's telecom
companies share proprietary information to help prevent future
terrorist attacks. After the existence of the national security program
was illegally leaked 2 years ago, America's telecom companies began to
get hit with dozens of class action lawsuits that could expose them to
catastrophic liabilities.
Originally, the telecom companies had nothing to fear from those
lawsuits because they had evidence that what they did was at the
request of our law enforcement officials. But due to the sensitive
nature of the Government's request of these companies, the law
enforcement officials barred the telecom companies from the release of
certain documents that they needed for their trials. So we have created
a situation in which companies have cooperated with law enforcement to
keep our country safe, and then, when the lawsuits arose, they were not
allowed to defend themselves. Now, some of my colleagues say: Well,
that is tough. They should have known better.
We are talking about the security of our country. The people who are
in the business of telecommunications were asked to be patriotic
Americans. And they said yes. So if we do not give them protection for
these actions, as well as those going forward, we are going to put our
businesses in an untenable situation. Either they can help law
enforcement, be sued and hampered in their legal defense because they
are not able to introduce certain types of evidence because of security
reasons, or they can say no to law enforcement and put our country in
jeopardy.
Now, I will tell you that I have talked to the CEO of one of our
major telecommunications companies. He has said: Senator, I am going to
do what is right for America. That is my first responsibility as a
citizen of this country. But, Senator, I don't think I should be put in
jeopardy for my shareholders and my consumers while being a patriotic
American.
The Senate must act responsibly. We must be able to go to a company
and say: help our country. Because in the past a terrorist could
communicate between two countries overseas, and we would have the right
to intercept those messages. I wish I could say we have no enemies
inside our country who would communicate with a terrorist outside our
country, but we all know that is not the case. We all know there are
people in our country today plotting to kill innocent Americans. We
know because plots have been uncovered. And we know because that is
what happened on 9/11. There were people inside our country who were
aiding and abetting, living in our country, and planning to kill
innocent Americans.
So we must have the capability to give protection to a
telecommunications company that would cooperate with our Federal law
enforcement officials to intercept messages between al-Qaida in
Pakistan or Afghanistan or anywhere in the world communicating with a
terrorist sympathizer in our own country. It is our responsibility to
do this for the safety and security of Americans.
We must pass this bill. We must pass it in the form that the
Intelligence Committee did on a bipartisan basis. We must respect the
work that has been done by those who have heard hours and hours and
hours of testimony and seen classified information about the threats to
our country. We must do our part, along with the President, with the
Members of the House of Representatives, and with our law enforcement
officials to ensure that no stone is left unturned to uncover a plot
against innocent Americans.
If that is not the duty of the U.S. Senate, Mr. President, I ask you,
what is? That is our responsibility. That is why we were elected: to
protect our country. I hope this body, of which I am so proud to be a
Member, will do the right thing and extend this act and give our law
enforcement the tools they need to do the job we are asking them to do
to protect America.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The senior Senator from Kansas is recognized.
Mr. BROWNBACK. Thank you very much, Mr. President.
I join my colleagues, particularly my colleague from Texas and my
colleague from Missouri, in supporting this bill and in opposition to
the Leahy amendment.
My colleague from Texas identified a number of the issues that are in
the amendment. I serve on the Judiciary Committee. It is a great
committee. Senator Leahy does an excellent job leading the committee.
But on this particular issue it is my belief, as a Judiciary Committee
member, that we should recede to what the Intelligence Committee has
put forward on a bipartisan basis and move forward with this bipartisan
bill we have rather than going with, essentially, the substitute that
the Judiciary Committee came up with, which was put forward on a
partisan basis.
My colleague from Texas noted we have 9 days until this legislation
expires. If we go with the Leahy substitute--as much as I respect
Senator Leahy--the President is going to veto this bill and we are
going to be in a nonfunctional position for a period of time while we
get things put back together. There is no reason to do that. We have a
bipartisan bill.
The Intelligence Committee bill passed with only two dissenting
votes. The Judiciary Committee substitute, in essence, that is being
put forward--it has been modified and changed, but, in essence, it is
what came forward from the Judiciary Committee--came out on a strictly
partisan party-line basis.
Why wouldn't we go with the bipartisan bill that passed, I believe,
13 to 2 rather than go with the partisan bill that will be vetoed and
then we will just be back here? We are not going to have the votes for
a veto override. We would then go without this needed law provision so
we can provide for the security of the country, as well as protect the
civil liberties and rights of individuals within America.
I want to note in particular on this issue of telecommunications
companies and the information they provide, I think we need to provide
some level of immunity for companies to participate and work with the
Federal Government on information that the Federal Government has
legitimately requested.
In case people think, ``Well, OK, you are just giving a pass to the
telecommunications companies,'' I want to read what the requirements
are within the Intelligence Committee bill toward the
telecommunications companies. The telecommunications carriers face a
series of threats and lawsuits presently over their complying with what
the Federal Government required. But the Senate Intelligence Committee
immunity provisions do not just simply dismiss the cases outright.
Instead, the bill sets forth a process for the Attorney General to
submit a certification to the court that the telecom carriers either,
one, did not provide the Government the alleged assistance in the first
place, or, two, provided assistance pursuant to a valid request,
directive, or order indicating that the activity was authorized by the
President and determined to be lawful. The court would then separately
review the Attorney General's certification for an abuse of discretion.
This multilevel certification and review process will ensure an
underlying assessment by the Government and the courts of the genesis
of the carriers' role, if any.
The immunity provisions would not apply to the Government or
Government officials. Cases against the Government regarding the
alleged programs would continue. And the provisions would apply only to
civil and not criminal cases.
All in all, I think the Intelligence Committee bill strikes the right
balance between intelligence gathering and protections for civil
liberties.
My point in bringing this out is that this is not some blanket waiver
toward telecommunications companies. It goes through a multilevel court
and administrative review procedure that has to pass through both in
order for the telecommunications company to be able to get this
immunity from liability exposure. It is not just the Attorney General;
it is also the court that is involved with this as well.
I would hope my colleagues who have concerns about civil liberties
would
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look at that and say: Well, this is going to be reviewed in both
places. This should be sufficient to require them--the
telecommunications companies--to participate in this program, and to
give them the immunity from liability, if they do this according to the
law as determined by both the Attorney General and as determined by the
court.
That seems to me to be a good level and a good balance of our
intelligence needs, which are significant, and our civil liberties
guarantees and requirements, which are required--that we guarantee
civil liberties for the individual and that I want to see protected.
But at the same time I want to see our citizens protected as well. And
we have to be able to have some access to information of these
communications--with intelligence, with terrorist organizations,
individuals--that may be taking place.
All in all, I think the Intelligence Committee has done an excellent
job of striking that balance between providing for our security needs
and guaranteeing civil liberties of the individual. It has provided a
multilayered process for this immunity to be able to be granted by
different entities within the Government. It has done so in a balanced
fashion. It has done so in a bipartisan fashion. I don't know why, for
the life of me, we would want to go with something on a partisan basis
that is not going to get through the process, when we need the bill now
and we have a good bill put forward by the Intelligence Committee.
So as a member of the Judiciary Committee, I would urge us to support
the Intelligence Committee and not support the Leahy substitute. As
much respect as I have for the chairman, I do not think that is the way
for us to go in bringing this bill forward to closure for the good of
the country.
I yield the floor.
The PRESIDING OFFICER. The assistant majority leader is recognized.
Mr. DURBIN. Mr. President, I will support the Judiciary Committee
substitute to the FISA Amendments Act.
As a member of the committee, I wish to commend Chairman Leahy for
his leadership. I think we have struck the right balance to give the
Government the power they need to keep us safe but to protect our
privacy, which we cherish so much as Americans.
I wish to commend the majority leader, Harry Reid, for bringing the
FISA Amendments Act to the floor as one of our first items of business
this year. I wish to thank my colleague and friend from the Senate
Intelligence Committee, Senator Rockefeller. Though we may disagree on
some aspects of this bill, he has been a real leader on an issue of
great complexity.
Last August, Congress responded to the administration's request to
approve foreign surveillance legislation on an expedited basis.
Remember, we didn't come to this issue because the administration felt
they needed to deal us into the picture. We came to this issue because
the New York Times finally published an article and told us about this
warrantless surveillance that was going on all across America for
years, surveillance that was not approved by Congress and was clearly
not allowed by law but continued by this administration with impunity
until they were caught with their hands in the cookie jar by the New
York Times. Then they came to Congress and said: Well, why don't you
write a law. Can we help you write a law?
After 9/11, I can remember Senator Rockefeller, Senator Leahy,
Senator Specter, and so many others who rose to the occasion and said:
We will come together on a bipartisan basis to keep our country safe.
We lost 3,000 innocent people. We don't want that to ever happen again.
We passed the PATRIOT Act. It wasn't perfect, but it was bipartisan. It
had a sunset built into it. We tried to give this Government the tools
to keep America safe. There wasn't a lot of grandstanding and
speechifying. We did our job.
Then what happened? The Bush administration decided, in so many
different aspects of this war on terrorism, to deal Congress and the
American people out of the picture from that point forward. We heard
rumors about secret programs, and a handful of Members were briefed, I
guess; I wasn't one of them. Then, it wasn't until the New York Times
told the whole story that we were kind of drawn into this situation,
where we are trying to write a law to approve a course of conduct which
the administration was undertaking, at least to some degree, without
even consulting or conferring with Congress in its constitutional
capacity.
The Senate Intelligence Committee and the Senate Judiciary Committee
have held a lot of hearings. They have debated how to write this law
and voted on a lot of amendments. We are now facing the reality that
the Protect America Act, which was passed a short time ago, will expire
next Friday, February 1.
Under any circumstances, it would be difficult for the Senate to pass
a bill of this complexity, reconcile our differences with the House,
and get it all wrapped up in a week. But the President has made it
clear he is not going to sign this bill unless it includes an amnesty
for telephone companies that cooperated with the administration's
warrantless surveillance program. This is a difficult, controversial
issue many Members feel very strongly about. I am one of them. The
President insists that an amnesty provision for telephone companies be
included, and I think that is going to make it impossible for us to
meet the February 1 deadline.
Senator Reid, the majority leader, has asked for a 30-day extension
of the Protect America Act. Let's continue the current law for 30 days.
Let's try to work out our differences. Let's do this in a responsible
way. Senator McConnell on the Republican side objected--objected to
carrying on the current law for 30 days while we tried to work out our
differences. That objection speaks volumes. Even though he opposed the
Protect America Act, the majority leader I think was acting in good
faith and taking the sensible course of action: Let's try to work these
things out and not punish anybody in the process. The current law would
stay in effect for another 30 days. The Republican Senate leadership,
Mitch McConnell, said no.
Well, that is unfortunate. The spokesperson for the White House said
on Tuesday:
The Protect America Act expires in just 10 days, yet after
nearly 6 months of delay, Congress still has not taken the
necessary action to keep our Nation safe. For the sake of our
national security, Congress must act now.
So said the White House 2 days ago.
I can't follow this logic. On the one hand, the White House claims we
face grave national security threats if this program expires, and on
the other hand, when Senator Reid tries to extend the program for 30
days, the Republican leadership objects. I am sorry, but that doesn't
follow.
It is worth recalling what brought us to this point. It is difficult
to believe it has been over 6 years since the terrorists struck our
country on 9/11. I will never forget that terrible day, and most
Americans will not either. And we will never forget what happened
afterwards when Congress came together and tried to respond and make
our country safe. Sadly, today Osama bin Laden is still on the loose,
and al-Qaida is still around and may be growing in size.
I wish the administration had continued the spirit of bipartisanship
of the PATRIOT Act. They would have had the full support of Congress
and the American people. We showed that with the passage of the PATRIOT
Act. But even as we were debating that important law, the
administration was secretly implementing torture and surveillance
policies totally inconsistent with the values of our Nation. They
didn't ask Congress to approve the warrantless wiretapping of innocent
Americans or torture techniques such as waterboarding. Instead, they
based their policies on the extreme view of some in the administration
that the President, as Commander in Chief, was not bound by the law.
They discarded the Geneva Conventions after decades of America saying
that was a significant underpinning of our relationship with the
civilized world. They rejected it. They called it obsolete, the Geneva
Conventions. They opened Guantanamo, which has become an international
embarrassment. Former Secretary of State Colin Powell has joined so
many others in saying: Close this embarrassment. Yet they continue.
The Justice Department's infamous torture memo narrowly redefined
torture as limited only to pain equivalent to organ failure or death.
Senator John
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McCain, a man who was a prisoner of war during Vietnam for years and
years, spoke out and led a bipartisan fight to establish standards when
it comes to the treatment of prisoners. I was happy to join him on a
bill that had more than 90 votes, a strong bipartisan sentiment, a bill
which sadly was watered down by a signing statement from this
President, and I am afraid--though we may never know--I am afraid it
has been ignored at many levels by this administration.
We still fight the Taliban and al-Qaida in Afghanistan, and while we
are doing it, the administration has launched a misleading propaganda
campaign leading perhaps to the greatest foreign policy blunder in
American history: the war in Iraq.
It is worth noting that in a new report issued this week, the Center
for Public Integrity concluded:
President George W. Bush and seven of his administration's
top officials, including Vice President Cheney, National
Security Adviser Condoleezza Rice, and Defense Secretary
Rumsfeld, made at least 935 false statements in the two years
following September 11, 2001, about the national security
threat posed by Saddam Hussein's Iraq. An exhaustive
examination of the record shows that the statements were part
of an orchestrated campaign that effectively galvanized
public opinion and in the process led the Nation to war under
decidedly false pretenses.
Is there any more grievous sin in a democracy than for leaders at the
highest level to mislead the people of a Democratic Nation into a war
with such tragic consequences? Almost 4,000 of our best and bravest--
innocent, hard-working, dedicated, and patriotic soldiers--have given
their lives. Countless thousands have been injured because we were
misled into a war by this administration.
The administration brooked no dissent from their misleading campaign
for war or their misguided counterterrorism policies. If anyone raised
an objection, they were branded as soft on terrorism. Who can forget
John Ashcroft, our former Attorney General, blaming critics of the
administration for spreading ``phantoms of lost liberty'' and warning
``your tactics only aid terrorists''?
Time and again, the administration and their allies pressured
Congress to consider controversial proposals immediately before
elections. Oh, that is when all the warning bells went off and the
threat level colors were changed. We were told there was a threat on
the way, and how were we to come to any other conclusion if we didn't
see the evidence? What a coincidence that most of those warnings came
right before an election. It was Karl Rove's playbook and the
administration ran that play over and over and over again.
In 2002, the administration insisted Congress must vote to authorize
the war in Iraq before the election or our security would be at risk.
Why? White House Chief of Staff Andrew Card explained that ``from a
marketing point of view'' that was the right time to ``introduce new
products.''
In 2004, the administration and its Republican allies in Congress
claimed it was imperative to reauthorize the PATRIOT Act before the
election or our security would be at risk. This despite the fact it
didn't expire until December 31, 2005. Congress chose this date for the
express purpose of depoliticizing this debate.
For years, the administration insisted the President had unilateral
authority to detain enemy combatants and try them in military
commissions. Again and again our Supreme Court rejected the
administration's arguments. Suddenly, shortly before the 2006 election,
the administration changed course, insisting that Congress must vote to
authorize military commissions or our security would be at risk. In
fact, the administration's bill included amnesty for administration
officials who had authorized illegal torture techniques. How will
history judge us, granting amnesty to those who engaged in torture?
It is more than a year since Congress passed the Military Commissions
Act. Despite their claims of urgency, the administration has failed to
bring a single terrorist to trial.
In the 2006 election, the American people took a stand and rejected
the politics and policies of fear and they rejected this
administration's scare tactics. One would hope the administration would
have learned a lesson. But in 2008, another election year has arrived
and, unfortunately, here we go again with an administration continuing
to stake out divisive positions on terrorism.
The administration claimed Attorney General Mukasey would turn a new
page at the Department of Justice, but he has refused to say even now
whether torture techniques known as waterboarding are illegal. During
his confirmation hearing, Judge Mukasey promised to review the
administration's classified interrogation techniques and assess their
legality. It has been 2 months since then and yesterday I wrote to the
Attorney General to remind him about that commitment. He has had ample
time to study this issue.
Yesterday, the administration announced they were going to renominate
Steven Bradbury to be head of the Office of Legal Counsel. This is the
office that issues binding legal opinions for the executive branch,
including having issued the infamous torture memo. I have repeatedly
urged President Bush to withdraw this nomination of Mr. Bradbury
because of his involvement in authorizing the administration's
controversial interrogation and surveillance policies.
Now, the administration claims our security is at risk in this
election year because Congress is allowing the Protect America Act to
expire, even though Senator Reid 2 days ago tried to extend it for a
month, and the Republican leadership objected. Well, no surprise.
Yesterday, Vice President Cheney weighed in. He gave a speech
praising the administration's counterterrorism efforts. He ignored the
lessons of the last 6 years. He praised Guantanamo Bay, even though his
President has called for closing it, and he praised what he called the
CIA's ``tougher interrogation program.'' Well, there is a phrase that
is loaded. He claimed the CIA's interrogation techniques comply with
our treaty obligations, although the military's top lawyers and others
say they violate the Geneva Convention. He said Khalid Sheikh Mohammed,
the alleged mastermind of 9/11, had been subjected to the CIA's
``tougher'' techniques. But the Vice President neglected to mention
that 6 years after 9/11, Khalid Sheikh Mohammed and the other 9/11
planners still have not been put to trial. Some experts say it will be
impossible to convict him because he was subjected to waterboarding and
other torture techniques.
The Vice President urged Congress to pass FISA legislation. Quoting
President Bush, he said:
The lessons of September 11 have become dimmer and dimmer
in some people's minds.
Mr. Vice President, the American people haven't forgotten 9/11, and
we never will.
We also have not forgotten that Osama bin Laden is still free and the
resources needed to track him down were diverted to a war in Iraq.
We have not forgotten that the war in Iraq has cost our Nation
billions and, tragically, the lives of almost 4,000.
We have not forgotten that instead of working with Congress to
prosecute the war on terrorism in a bipartisan fashion that respects
American values, this administration chose to go it alone.
We will never, ever forget the blood, sweat, and tears shed by
countless American heroes, who fight even as we speak to defend what
makes America unique in the world. They fight not to defend any race,
religion, or ethnic group; they fight to defend a value--the value upon
which our country was founded. We are a nation of laws, not men--not
this President, not any President.
In his speech yesterday, the Vice President noted:
The terrorists waging war against this country don't fight
according to the rules of warfare, or international law, or
moral standards, or basic humanity.
That is true, but America is a lot better than the terrorists.
Ironically, the Vice President also noted:
This cause is bigger than the quarrels of party and agendas
of politicians.
Well, that is true as well. I only wish the Vice President and the
administration would have heeded his own words and stopped politicizing
so many national security issues.
I urge my colleagues to reject the politics of fear and reject the
scare tactics of this administration. Support the
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Judiciary Committee substitute, support the majority leader's request
for a 1-month extension in the Protect America Act. We can give the
Government the power it needs to protect us, and we can still uphold
the rule of law and protect the precious liberties of the American
people.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
Mr. SPECTER. Mr. President, I have sought recognition to comment
about the pending legislation on the Foreign Intelligence Surveillance
Act and the so-called Leahy substitute. We are engaged here in the
continuation of a historic debate. Confronted by terrorism on 9/11, the
response has been made to legislate on the PATRIOT Act and the Protect
America Act, in order to deal effectively with the terrorists. At the
same time, there is great concern that there be an appropriate balance.
While it is indisputable that our first duty is to protect America, it
is also equally fundamental that the constitutional protections have to
be kept in mind at all times, and it requires a balance.
The beauty of the Constitution is the doctrine of separation of
powers, so that no one branch has too much. This has been a classic
confrontation of the executive asserting its authority under article
II, and disregarding statutes, such as the Foreign Intelligence
Surveillance Act, disregarding the statutory requirement that the
Members of the House and Senate Intelligence Committees be informed of
activities like electronic surveillance, with the President asserting
that authority under article II, saying that it supercedes a statute.
Congress has been ineffective on congressional oversight. The courts
have filled the void, undertaking very significant action. A key part
of what we are considering here today is whether there will be
jurisdiction stricken on the pendency of many cases in the Federal
courts challenging what the telephone companies have allegedly done or
whether there will be continued access to the courts. It is my view,
for reasons which I will amplify in the course of this floor statement,
that there can be an accommodation to keep the courts open and to allow
the electronic surveillance to continue. That can be accomplished by an
amendment Senator Whitehouse and I intend to offer later today or
perhaps tomorrow--at the first opportunity we have--where the
litigation against the telephone companies would proceed, but the U.S.
Government would be substituted as the party defendant.
There is no doubt that the telephone companies have been good
citizens in whatever it is they have done. Yet there is nothing on the
record as to what really happened. Whatever it is they have done, the
indicators are that they have been good citizens, although, in the
course of having the Federal Government substituted for the telephone
companies, there will have to be evidence of compliance with the
governmental request, a compliance in good faith.
The likelihood of verdicts being rendered, I think, in my legal
judgment, is very remote. But that doesn't eliminate the requirement
and the practice of keeping the courts open to make that determination.
The Specter-Whitehouse substitution amendment will place the
Government in the shoes of the telephone companies to have the same
defenses--no more and no less. For example, the doctrine of
governmental immunity would not be available to the Government. There
have been those who have criticized the Specter-Whitehouse amendment,
who have ignored the very basic proposition that the suits cannot be
dismissed because of governmental immunity.
On the other hand, by the same token, the state secrets defense will
be available. In the lawsuits that are being prosecuted now against the
telephone companies, the government has intervened to assert the state
secrets doctrine. In fact, the Government has precluded the telephone
companies from saying very much under that doctrine. When the
Government is substituted for the telephone companies, the Government
will retain the defense of the state secrets doctrine.
Before going into the body of the argument in support of the Specter-
Whitehouse substitute approach, I wish to comment briefly on the
substitute offered by the Judiciary Committee and by our distinguished
chairman, Senator Leahy, as the pending business.
I begin by commending Senator Leahy for his work on the committee.
For many years, we have worked together. His work as chairman has been
exemplary, and there have been improvements that have been made by the
modified Leahy substitute. Improvements have been made in that it
clarifies that when surveillance occurs overseas, the FISA Court's role
is limited to assessing probable cause and not the means of collection.
It has further been improved by extending the length of emergency
surveillance to conform to the Intelligence Committee bill's 7 days
instead of 3 days. It has been improved by eliminating certain language
criticized by the administration--and I think justifiably--as being
overly broad. But it does retain the basic concept that the Foreign
Intelligence Surveillance Act is the exclusive statutory procedure. So
you preempt the Government argument that the Authorization for the Use
of Military Force preempts and supersedes FISA. That argument has been
made by the administration. I think it is a vacuous argument. In any
event, this legislation would restate the proposition that the AUMF, or
legislation like that, would not supersede FISA.
The substitute offered by the distinguished chairman also has a
change which allows the continuation of surveillance pending en banc
review by the Foreign Intelligence Surveillance Court. It also improves
a provision calling for an inspector general review of the terrorist
surveillance program.
I think, in essence, the substitute provision Senator Leahy has
offered is an improvement over the prior bill. I regret that I cannot
support it because it leaves out the provision with respect to
immunity. While I do not like the provision with respect to immunity
and think we can improve upon it, as I have said, by the approach of
substituting the Federal Government for the telephone companies, I
believe it is important to keep protecting the telephone companies in
the picture and to benefit from the activities which they are
undertaking. Therefore, I will not be able to support the substitute
offered by Senator Leahy.
It is my hope that the Specter-Whitehouse amendment will be adopted,
substituting the Government. If that fails, then with reluctance I will
support retroactive immunity. To repeat, I think that is not the
preferable course.
In dealing with the fundamental proposition of keeping the courts
open, we have had an extended history in the past 2 or 3 years of the
ineffectiveness of dealing with the expanded executive authority with
congressional oversight. The PATRIOT Act reauthorization came out of
the Judiciary Committee in 2005. I chaired it and was managing the bill
on the floor of the Senate back in mid-December of 2005. I was very
surprised that morning to read in the New York Times that the Federal
Government had been undertaking the terrorist surveillance program
without notifying the Intelligence Committees, as required by the
National Security Act of 1947, and without notifying the chairman or
ranking member of the Judiciary Committee. That was more than a
surprise; it was a shock.
We were nearing the end of the consideration of the PATRIOT Act
reauthorization, and all of the indicators were that we would get it
passed. Some appeared on the floor of the Senate that day to say that
they had intended to support the PATRIOT Act reauthorization, but no
longer, in light of the fact that there had been the terrorist
surveillance program, unknown to Congress, in violation of the Foreign
Intelligence Surveillance Act and in violation of the National Security
Act of 1947.
Now, it may be that the President was correct in asserting that he
had article II power under the Constitution. If the President did have
power under article II as Commander in Chief, then such power could not
be reduced by legislation. That is a basic constitutional principle.
But the determination of that really doesn't reside with the President
alone.
I then introduced legislation to bring the terrorist surveillance
program under the Foreign Intelligence Surveillance Court. I will not
take the time
[[Page S240]]
now to go through the lengthy efforts made in that regard. Suffice it
to say that congressional oversight was not satisfactory. Where there
has been a conflict between the Congress and the White House, the tools
available to the White House have rendered the congressional oversight
ineffective. When the Judiciary Committee has issued subpoenas, the
subpoenas have been ignored by the White House, and the enforcement
procedures are insufficient, really nugatory.
In the first place, if litigated, they take at least 2 years to have
a judicial decision. The law requires the U.S. attorney for the
District of Columbia to bring the action. The U.S. attorney for the
District of Columbia is part of the executive branch, and some in the
Department of Justice have said forget about having the action brought.
It is theoretically possible to have a contempt citation on the floor
of the Senate, but it is a practical impossibility. So the efforts at
enforcement of congressional oversight through the subpoena process has
been to no avail.
On the other hand, the courts have been effective. When the issue has
arisen as to the detention at Guantanamo, the Supreme Court of the
United States said in Hamdan that the Geneva Conventions applied, and
in Rasul that habeas corpus was in effect, notwithstanding the fact
Guantanamo was outside the territorial limit of the United States
because the U.S. Government controlled Guantanamo.
Where the Congress has responded with legislation, the issue is now
before the Supreme Court of the United States again in the Boumediene
case. The courts have been effective in asserting a balance, in
asserting constitutional governance. A whole series of court cases have
shown the effectiveness of the courts. For instance, in the Hepting
case that is pending on the terrorist surveillance program, the
district court rejected a blanket application of the state secrets
doctrine. In the Padilla case, the Supreme Court's decision to take up
the case led the government to file criminal charges. A New York case
involving the national security letters, Doe v. Gonzalez, found that
certain NSL gag orders were unconstitutional in light of the First
Amendment.
The Hamdan case involved a detainee by the U.S. Government. There the
Supreme Court held that the President does not have a blank check to
deal with detainees and that Congress had a role to play.
In the Al-Haramain case, the Terrorist Surveillance Program was
litigated by an Islamic charity that allegedly had a TSP derived
transcript. The case Ninth Circuit decision upheld the government's
assertion of the state secrets doctrine in that case.
I do not go into great length on these judicial decisions but to note
that when the court issues a order and insists on witnesses being
presented on pain of having the case dismissed or on pain of having
adverse action taken against the party who doesn't follow the court
order, the courts have been effective. That is why, on a constitutional
balance, I think it is very important not to foreclose action by the
courts, not to, in effect, strip the Federal courts of jurisdiction of
the many pending cases which have been brought against the telephone
companies, and it can be done in a practical way, preserving the
importance of law enforcement activities for whatever it is the
telephone companies are doing by substituting the Federal Government as
the party defendant.
I am especially concerned about this issue in the context of what
occurred back in June of 2006, when the Judiciary Committee, while I
was chairing it, was trying to exercise congressional oversight, assert
a constitutional balance with the executive branch, and we were
unsuccessful for a variety of reasons. Where the Federal Government had
the defense of executive privilege, it was impossible to move
effectively on congressional oversight. But when it became known about
the alleged activities of the telephone companies, I sought, as
chairman, to have subpoenas issued. The Vice President then contacted
Republican members of the Judiciary Committee, in effect, behind my
back--the protocol is to call the chairman first; if not to call the
chairman first, to call the chairman sometime--leading me to write a
letter, dated June 7, 2006.
I ask unanimous consent to have printed in the Record at the
conclusion of my remarks this letter, dated June 7, 2006.
The PRESIDING OFFICER (Mr. Tester). Without objection, it is so
ordered.
(See exhibit 1.)
Mr. SPECTER. Mr. President, I did not like sending the Vice President
a lawyer's letter, three pages, single spaced. It starts off--and I
will read a short paragraph:
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.
And then I go into the issues of the expansion of executive authority
in many directions, the refusal of the executive branch to accommodate
legitimate congressional oversight, and complain about the Vice
President's activities in contacting Republican members of the
Judiciary Committee.
To have the record complete, Mr. President, I ask unanimous consent
to have printed in the Record at the conclusion of my remarks the Vice
President's response to me, dated June 8, 2006.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See exhibit 2.)
Mr. SPECTER. Mr. President, with that background, there is a
particular sensitivity on my part to having retroactive immunity which
I think would be an open invitation in the future for the executive
branch to continue to ignore the statutes as the executive branch
apparently ignored the Foreign Intelligence Surveillance Act that sets
the exclusive way of getting wiretapping, a statement of probable cause
to a judge, to ignore the National Security Act of 1947 in failing to
notify the Intelligence Committees of the House and Senate as mandated,
positively required, under that statute, to ignore that under the
assertion of article II power. But the judicial branch of Government is
the ultimate arbiter. To move to close the courts is a very serious and
unwise step, especially when the objective can be retained of the law
enforcement tools and having the litigation continue, of having the
U.S. Government as the party defendant. I don't believe there will be
verdicts against the Government, but if there are, it is part of the
cost of doing business, part of the cost of fighting terrorism, and it
ought to be borne by the U.S. Government, as opposed to being borne by
the telephone companies which presumably have been good citizens,
something they have to establish under the Specter-Whitehouse amendment
to have the Government step in as a substitute.
Where we stand at the present time is on the substitute offered by
the distinguished chairman. Again, I compliment him for the work he is
doing generally and specifically about our Judiciary Committee
activities on the Foreign Intelligence Surveillance Act. I have noted a
number of particulars where I think Senator Leahy's revised substitute
has made improvements. To repeat, I regret I cannot support it because
it leaves out the immunity provision. Again, I do not like the immunity
provision and think we can improve it with the Specter-Whitehouse
amendment. But if I am unsuccessful on that, then I will have to, at
least speaking for myself, swallow the retroactive immunity provision
on a balance of my own judgment as to the importance of having that
kind of electronic surveillance, whatever it is, go forward, even with
the retroactive immunity.
It is my hope, when we consider the ramifications, that we can
command the majority in this body, work through the legislation with
the House of Representatives, and find a way to allow the Government to
have the advantages of the electronic surveillance but not foreclose
the courts by the remedy of having the Government substituted as the
party defendant.
I yield the floor.
Exhibit 1
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
[[Page S241]]
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 Members 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 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.
____
Exhibit 2
The Vice President,
Washington, DC, 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 th
