[Congressional Record: February 5, 2008 (Senate)]
[Page S624-S626]
UNANIMOUS-CONSENT REQUEST--S. 2248
Mr. REID. Mr. President, one of the things I have the ability to do
is to try to move the process forward, and that is what this vote was
all about. Members came, we have had some conversations, and hopefully
it will help move the process forward.
We are going to file cloture sometime today on the Senate stimulus
package. That is the one reported out of the committee, as we have
talked about the last 24 hours. So we will have a vote on that. Unless
there is an agreement reached beforehand, we will have a vote on that
an hour after we come to work on Thursday. That will be on the Senate
stimulus package as we have brought it here to the floor. Of course,
with consent, we could have it tomorrow. I would rather do it tomorrow
so we can do some other things on Thursday, but it is up to the
minority as to what we do.
I hope we all understand that the vote we just had was, as I have
said before, an effort to try to move the process forward, a wake-up
call, especially for my Republican colleagues, that we need to now
start legislating. There is no reason in the world we should not finish
FISA soon--work today on FISA.
We have other amendments Senators want to offer. We have 6 hours
dealing with title II alone--one by Senators Dodd and Feinstein on
immunity; we have the Whitehouse-Specter dealing with substitution; and
we have one with Feinstein dealing with exclusivity. Two hours on each
one of those, the time equally divided, is 6 hours. There is no reason
we shouldn't do that debate today. I want to vote on the four
amendments already pending on FISA. We have those three I talked about
and then, after that, there are four more with very limited time.
I think it is a little unusual here that we have an insistence we
move forward and work on the stimulus package, yet we have had trouble
doing that; and then we have been told, the latest on last Saturday,
the President is talking about how important it is to do the stimulus
package, and also he has talked incessantly about the need to complete
FISA, but the Republicans have blocked our efforts to do that.
I don't want to always have to stand here and talk about unpleasant
things, such as obstructionism and filibusters, but sometimes that is
all there is to talk about. It is clear to me that once again the
Republican minority seems to be more committed to obstruction than what
it takes to make America stronger. We remain committed to giving our
intelligence professionals the tools they need to make America more
secure. With Republican cooperation, we can start doing that today.
Today.
Mr. President, I ask unanimous consent that the Senate now resume the
FISA legislation and debate all remaining amendments in order; that any
votes in relation to these amendments occur at a time to be determined
by me, after consulting with the Republican leader; that all time
consumed during this debate count postcloture to this matter we are on
now dealing with the House stimulus package.
The PRESIDING OFFICER. Is there objection?
Mr. McCONNELL. Mr. President, reserving the right to object, I think
it is
[[Page S625]]
perfectly apparent to everyone who is observing this process that these
two issues are interconnected in terms of how we fairly go forward, and
I think the point has been well made by the 49 Republican Senators over
the last year or so that our rights are going to be respected; that we
are going to move forward on bipartisan bills, such as both of these,
in a way that is respectful to both sides, and as soon as we have an
understanding about how we are going to go forward on the stimulus
package, then we will be able to make progress on this bill. I am
optimistic we are going to be able to do both.
Ironically, I share the goal of the majority leader, which is to
finish both these issues this week. You would think that was not the
case for all the sparring and finger-pointing that has gone on the past
few days, but I have the same goal he does, to finish FISA and the
stimulus package. Both of them, at the end of the day, are going to
pass on a strong bipartisan basis. But the process for dealing with
them is not irrelevant, and that is what we have been discussing off
and on for the past couple days. Hopefully, we will make some progress
and be able to get going on FISA later today.
For the moment, I object.
The PRESIDING OFFICER. Objection is heard.
The majority leader.
Mr. REID. Mr. President, ``1984'' was a book written by George
Orwell. He wrote the book many years before 1984, but he was trying to
look into the future and talk about what he thought America would be
like in 1984. It was a very interesting, compelling book, a best
seller, and it made George Orwell a famous man for all generations of
time. But the one thing you got out of reading that book is that there
would come a time when people said one thing, and while they were
saying it, they meant something else. That is what we had here just now
with my friend, the Republican leader. We are going to move forward,
get things done, there is no reason we can't finish things this week.
Why in the world can't we do the FISA legislation today? I will tell
you the reason. It is Orwellian talk from the other side. They want to
stall the FISA legislation as long as they can--and they have done a
pretty good job--because they want this legislation to be completed at
the last minute to give the House and Senate conferees little time to
work.
The Record should reflect how hard we have tried to pass the FISA
legislation law, and the Record should reflect there is going to come a
time when the FISA legislation will run out and the President will be
saying things, as he has for 7 years, to scare the American people--the
Democrats don't care; they do not care. Well, Mr. President, we care
every bit as much as any Republican about protecting the American
people. We believe there is a need in this modern world for
eavesdropping on certain conversations, but we have the old-fashioned
idea that it should be done in keeping with our Constitution. That is
what this debate is all about.
I repeat for the third time here in the last few minutes that the
Record should reflect we have been willing to legislate on FISA for
some time now and we have been stymied every time. We need to go back
no further than yesterday. Yesterday we wanted to have amendments
offered. And I appreciated very much Senator Whitehouse, Senator
Feingold, and Senator Cardin coming and offering amendments. We should
have voted on those last night. But, no, the Republicans wouldn't let
us. Can we vote on them this morning? No.
Well, if they are not going to let us vote on the amendments, can we
at least use up some of the time for debate on amendments that are
going to be offered by other Democratic Senators, and we have one
bipartisan amendment that will be offered by Senators Whitehouse and
Specter? Nope, can't do that. We can do two things at one time, we can
do one thing at one time, is all I am asking we do.
It is very clear that the stall we had all last year is now in place
again and we are going to be prevented from doing the work today. We
are not going to be able to vote or offer amendments. We are going to
stand here and look at each other until shortly before midnight tonight
when I will offer to file the cloture motion. I can file it at any
time. I don't have to wait until just before midnight. But that is when
the time runs out. And we will have the vote Thursday, unless we work
something out. But it is a shame, a shame for the Senate and for the
American people, to waste all this time. It is time wasted.
Last year, as I indicated--and other Senators have talked about
this--we had 64 filibusters where cloture had to be filed. For my
friend to say all he wants, that all the Republicans want is to be
treated fairly, we only have to take the block of time in the last 2
days. How much more fairly can they be treated? We say: OK, you are not
going to let us vote; let us at least offer amendments and use up some
of that time. Nope, we can't do that. Can we set a time to vote on the
stimulus package? No. Are we going to have to use all that time
postcloture? Yes, because we have to read the amendment.
The package from the Senate Finance Committee passed out of that
committee a long time ago. We did add something to that. It is a page
and a half long. Certainly 24 hours should be enough to read that one
page or that page and a half. But I understand, we all understand, and
the American people understand that we are living in the Senate in the
realm of ``1984.'' When my friend from Kentucky comes here and says we
want to move forward, all we want to do is be treated fairly, remember
what George Orwell said. It is the direct opposite of what he said.
What he is saying, in ``1984'' language, is we are stalling this as
long as we can. And as long as we can is probably going to run out
sometime tomorrow or Thursday.
The PRESIDING OFFICER. The Republican leader.
Mr. McCONNELL. Mr. President, it is a little like deja vu all over
again, which I suppose was said by Yogi Berra. This is the same
discussion we have had for the last couple of days.
Setting aside all of the finger pointing and the parliamentary
nuances, what we know for sure is that we have a Foreign Intelligence
Surveillance Act measure that came out of the Intelligence Committee
with a vote of 13 to 2--the Rockefeller-Bond bill--which the President
will sign. Certainly it is not within the realm of possibility that
Members of my party don't want to finish this bill soon. It is
supported by a Republican President, Republican Senators, and we tried
to get votes on it Tuesday, Wednesday, and Thursday of last week, to no
avail. In fact, the last vote we had last week was on Monday afternoon,
and then for 3 days it was sparring over that. I don't think anybody
seriously believes the Republican minority does not want the FISA bill
to pass.
With regard to the stimulus package, we have not been given
procedural assurances. The majority leader is in a position to deny the
minority the opportunity to offer anything, to fill up the tree and
file cloture, and we have been given no assurances that we will be able
to offer an alternative. It strikes me that the majority is in the
absurd position of having argued the House bill is inferior. If the
Finance Committee bill, plus additions, was not successful, why would
it not be appropriate to give the minority assurances that an amendment
to adjust the House bill, which the majority has been insisting for a
week is not adequate, would not be appropriate?
These are the discussions we have been having off the floor. It is
probably difficult to follow, for those who are watching it on
television, because there are a whole lot of parliamentary nuances
involved. But stepping back from the parliamentary part of it, we know
for a fact the following: There is overwhelming bipartisan support for
the FISA legislation, and the President will sign it. It was the
President and the Democratic Speaker of the House and the Republican
leader of the House who came together on a bipartisan stimulus package.
We know there was overwhelming bipartisan support for doing a stimulus
package.
I think we are going to get all this resolved and approve both these
measures this week, but we are going to insist on doing it in a way
that is fair to the minority.
That basically sums up my views on where we are at the moment, and we
will keep talking about it off the floor and, hopefully, be able to
have some meaningful votes here later.
Mr. DURBIN. Will the Senator from Kentucky yield for a question?
[[Page S626]]
Mr. McCONNELL. No.
The PRESIDING OFFICER. The assistant majority leader.
Mr. DURBIN. Mr. President, the Senate Intelligence Committee is a
great committee. I served on that committee. I wanted to have a chance
to have a dialog here with the Senator from Kentucky, the leader on the
Republican side. He continues to overlook the obvious. The Foreign
Intelligence Surveillance Act bill is the product of two committees--
not one but two.
He says, well, he likes the Intelligence Committee version, and
certainly it was a version that passed with an overwhelming bipartisan
vote. But the fact is that the Senate Judiciary Committee also passed
their version of the bill relating to specific elements that are
equally important to the Intelligence Committee work, and what Senator
Reid, on the Democratic side, has tried to do is to give us a chance on
the floor to vote on some of the key issues raised by the Senate
Judiciary Committee.
In fact, we reached an agreement on how we were going to do it. It
took us a week or more to craft a unanimous consent request to lay out
the specific amendments we were going to, with understandings about how
much time would be devoted to each and what the vote would be. I can
tell you, I was involved in some preliminary parts of it, Senator Reid
stuck with it to the bitter end, and we did reach an agreement.
So what is stopping us? What is stopping us, for reasons I can't
explain, is that the Republican side, which refused to yield for a
question, wants to blame us for slowing down a bill which they are
stopping us from calling.
That is what it boils down to, in the simplest terms. They want to
blame the Democratic majority for not passing FISA. Yet they refuse to
allow us to bring it to the floor and consider the amendment so that we
can have a vote and bring it to final passage, take it to conference,
and send it to the President. They cannot have it both ways. They
cannot blame us for holding up a bill that they are holding up.
Secondly, let me say a word about the stimulus package. I would like
the Republican leader, who tantalizes us with bits of information when
he comes to the floor, to really spell it out. What is it in the Senate
Finance Committee bill, this bipartisan bill, this Baucus-Grassley
bill, what is it they object to? The so-called Christmas tree argument,
the goodies, the pet projects? Let's be very specific about it.
Do the Republicans, the Senator from Kentucky and others, object to
providing an additional few weeks of unemployment insurance for those
who are out of work? If that is the case, say it. Do the Republicans
object to the idea that we are going to try to deal with the housing
crisis in America and put some provisions in to deal with that in an
honest way? If so, say it. Do they object to Senator Cantwell of
Washington who is pushing for energy tax credits--an innovative,
constructive part of our economy--that will help businesses get started
creating jobs and keep America in the forefront of this research? If
the Republicans object, say it. They are walking and dancing around,
and they just will not come forward and say it.
We think the Baucus-Grassley bill, a bipartisan bill, is a good bill.
We want to vote on that bill. We want the Republicans to go on record.
If they believe the homebuilders across America do not deserve some
sort of tax benefits in one of the roughest times they have had to face
in modern memory, then, for goodness' sake, be on the record and say
it. But they come to the floor and tell us: Maybe we do not need a
stimulus package. They argue that unemployment benefits aggravate
unemployment. They do all of those backward arguments. It is no wonder
that Senator Reid continues to reference George Orwell; it really is
impossible to follow their logic on the floor. But I think the American
people know the outcome. The outcome is that we will do little or
nothing today because the Republicans insist that little or nothing be
done today, and then tomorrow they will come to the floor, and they
will complain that nothing was done today.
The PRESIDING OFFICER. The majority leader.
Mr. REID. Mr. President, before my friend leaves the floor, I would
like to direct a question through you to him. I have not had a chance
to speak to the distinguished Democratic assistant leader, the whip,
about this.
Are you aware that this perfect package the President has been
talking about keeping together, the great bipartisan effort with the
House and his people, are you aware that this package which we have
been pushed and pushed to ``take it just as it is,'' are you aware that
the Secretary of the Treasury today testified and made a statement that
he thinks it is a pretty good idea to have seniors and disabled
veterans included? Are you aware of that? So this perfect package may
not be as perfect as they thought it was.
Mr. DURBIN. I would respond to the majority leader by saying that
obviously the notion of a bicameral Congress has been tested and
proven. I am glad Senator Robert C. Byrd is on the floor here to
witness that statement, with which I am sure he will agree.
The fact is, as good as the House package might have been, we are
doing our best to improve it. And now, as I understand it, two so-
called pet projects--helping 20 million seniors and a quarter of a
million disabled veterans--are now becoming pet projects of the
administration. It would be great, and I hope the Republican side will
join us in the rest of our bipartisan package.
Mr. REID. Mr. President, if I could direct another question to my
friend. You are aware that the 49 Republicans--I should say 46 because
3 already voted courageously in the Finance Committee, so 46
Republicans are going to have to make a decision. They are not going to
be able to pick and choose whether seniors are more important than
people with no heat in their homes, more important than people with no
jobs, more important than people who are having their homes foreclosed
upon. The distinguished Democratic whip understands that they are going
to have to vote for the stimulus package out of the Senate Finance
Committee, not pick and choose which is more important, whether senior
Americans are more important than the unemployed or the people with no
heat in their homes or the people losing their homes? Does the
distinguished Senator from Illinois understand that?
Mr. DURBIN. I would respond to the Senator from Nevada, our majority
leader, that I hope the Republicans understand that the package we
bring to the floor is the result of Finance Committee deliberation and
votes and a bipartisan rollcall in support. It is not as if we were
imposing our will here. We are bringing to the floor the measure that
passed the Senate Finance Committee. And when was the last time a bill
came to the floor which you agreed with in all of its different
sections? There are usually one or two things in there I wish were
written differently.
I would say to my friends on the Republican side that if they believe
we should say no to families in Kentucky, to families in States around
the Nation who are struggling with heating bills, then they have to
understand that has been part of the bipartisanship package brought to
the floor, and they will be voting against those people and voting
against the unemployed, and that will be the record they can carry home
from this debate.
____________________
[Congressional Record: February 5, 2008 (Senate)]
[Page S639-S655]
FISA AMENDMENTS ACT OF 2007
The PRESIDING OFFICER (Mr. Casey ). Under the previous order, the
Senate will resume consideration of S. 2248, which the clerk will
report by title.
The assistant legislative clerk read as follows:
A bill (S. 2248) to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that Act, and for other purposes.
Pending:
Rockefeller/Bond amendment No. 3911, in the nature of a
substitute.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the pending
[[Page S640]]
amendment be set aside so that I may call up an amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3913 to Amendment No. 3911
Mr. FEINGOLD. Mr. President, I call up amendment No. 3913.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wisconsin [Mr. Feingold], for himself, Mr.
Menendez, and Mr. Dodd, proposes an amendment numbered 3913.
Mr. FEINGOLD. Mr. President, I ask unanimous consent that the reading
be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To prohibit reverse targeting and protect the rights of
Americans who are communicating with people abroad)
On page 6, line 6, strike ``the purpose'' and all that
follows through line 9 and insert the following: ``a
significant purpose of such acquisition is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States, except in
accordance with title I;''.
On page 7, line 7, strike ``United States.'' and insert the
following: ``United States, and that an application is filed
under title I, if otherwise required, when a significant
purpose of an acquisition authorized under subsection (a) is
to acquire the communications of a particular, known person
reasonably believed to be located in the United States.''.
On page 9, between lines 9 and 10, insert the following:
``(iii) the procedures referred to in clause (i) require
that an application is filed under title I, if otherwise
required, when a significant purpose of an acquisition
authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States;
On page 17, line 2, strike ``United States.'' and insert
the following: ``United States, and are reasonably designed
to ensure that an application is filed under title I, if
otherwise required, when a significant purpose of an
acquisition authorized under subsection (a) is to acquire the
communications of a particular, known person reasonably
believed to be located in the United States.''.
Mr. FEINGOLD. Mr. President, this amendment, approved by the Senate
Judiciary Committee, assures the new authorities contained in this bill
will not be used to engage in what is known as ``reverse targeting of
Americans.'' FISA requires the Government to get a court order when it
is listening in on Americans on American soil. Reverse targeting refers
to the possibility that the Government will try to get around this
requirement by using these new authorities to wiretap someone overseas
when what the Government really wants to do is listen to the American
with whom that foreign person is communicating.
The Director of National Intelligence has testified that reverse
targeting is a violation of the fourth amendment. This amendment merely
codifies that constitutional principle. Specifically, the amendment
says the Government needs an individualized court order when a
significant purpose of the surveillance is to acquire communications of
a person inside the United States. Now, this language is critical if we
are to protect the constitutional rights of Americans because the
underlying bill merely requires a court order if the purpose of the
acquisition is to target the American.
A member of the Intelligence Committee, the Senator from Georgia, has
said the underlying bill only prohibits surveillance when the
Government is targeting a foreigner solely--solely--to listen to the
American with whom that foreigner is communicating. Now, what does this
mean? That means if the Government has any passing interest at all in
the foreigner being wiretapped, it could intentionally conduct ongoing,
long-term surveillance of an American inside the United States without
a warrant. Now, the DNI says that would be unconstitutional, but it
appears to be permissible under the current bill.
Recently declassified exchanges between the administration and
congressional intelligence committees demonstrate why the issue of
reverse targeting is a very real problem.
According to the administration, ``if valid collection of the foreign
intelligence target indicates that the person in the United States is
of intelligence interest,'' NSA would disseminate an intelligence
report to the FBI, which can request the identity of that person and
``which could''--I repeat, could--``seek a FISA court order to conduct
electronic surveillance in the United States.''
Mr. President, I ask unanimous consent to have printed in the Record
the declassified documents to which I am referring.
There being no objection, the material was ordered to be printed in
the Record, as follows:
When NSA is acquiring the communications of a person in the
United States during its targeting of a foreigner overseas,
is it reasonable to impose a time limit on NSA's
determinations of whether to target the person in the United
States or drop that individual? It is not reasonable to
impose time limits on NSA's targeting determinations in this
manner. If frequent contacts occur between the foreign target
overseas and a person in the United States and if there is no
foreign intelligence to be obtained, analysts will------such
that the interception of the communications of the person in
the United States when targeting the foreigner overseas will
not occur. If valid collection of the foreign intelligence
target indicates that the person in the United States is of
intelligence interest, NSA would disseminate an intelligence
report with the identity masked to the FBI, which could seek
a FISA Court order to conduct electronic surveillance in the
United States. If valid foreign intelligence is expected to
be obtained by targeting the foreign selector, any
incidentally collected information about the person in the
United States would be handled in accordance with NSA's
minimization procedures.
How many times has NSA obtained a FISA order to target a
person in the United States where the initial target was a
foreigner overseas and a U.S. communicant became of foreign
intelligence interest? How many cases have there been where
the target remains the foreigner overseas and there have been
multiple communications between that target and a person in
the United States such that NSA considered whether to obtain
a FISA order to conduct electronic surveillance against the
person in the United States? This is difficult to answer
because NSA routinely provides information to the FBI and it
decides whether to follow up by getting a FISA order to
conduct electronic surveillance in the United States. For
example, if an analyst reviews an intercept and finds
evidence that a party to the communication (not the target of
the surveillance) is a U.S. person, he would go through his
foreign intelligence calculus. That is, he determines whether
the communication contains foreign intelligence. If he
determines that it does contain foreign intelligence, he
would disseminate a foreign intelligence report. The report
would mask the U.S. person's identity as ``U.S. person''
under NSA's minimization procedures. Upon receipt, a customer
(here probably the FBI) would likely request that person's
identity. Under NSA's minimization procedures, NSA would
provide it if the requester demonstrates that the request is
within the scope of its mission and knowing the U.S. person's
identity is necessary to understand or assess the foreign
intelligence in the report. In this case, the FBI would
likely meet that test and, upon receipt of the identity, can
decide whether or not to follow up. NSA surveillance against
the foreign target would continue.
Mr. FEINGOLD. Mr. President, this confirms that when the Government
has an interest in an American, it is entirely up to the discretion of
the FBI to decide whether the Government will seek a warrant to listen
to that American's communications. But the FBI may not seek a warrant
for any number of reasons, including lack of resources, insufficient
coordination with other elements of the Government, or simple
incompetence. A recent Justice Department inspector general report
finding that the FBI's court-approved surveillance was disrupted
because the Bureau failed to pay the telecommunications company on time
should give us cause for concern.
In this case, this amendment would actually help us to stop
terrorists by requiring that when a foreign terrorist talks to a person
in the United States and that communication prompts a significant
interest in the American, it can't just plain fall through the cracks.
Now, of course, the FBI might also choose not to seek a warrant
because it doesn't have a real case against the American or because the
Government doesn't want to tell the FISA Court the real reason it is
interested in that American. So if the FBI doesn't seek a court order,
can the NSA just listen in indefinitely to the communications of
Americans so long as they are communicating with a person overseas? I
am afraid to say, Mr. President, the answer appears to be yes.
According to the administration, the FBI, upon receipt of the identity
of the American, ``can decide whether or not to follow up. NSA
surveillance against the foreign target would continue.''
[[Page S641]]
The Government's apparent authority to continue indefinitely its
surveillance of the international communications of Americans is not
limited to terrorism cases where the Government should at least have an
incentive to seek warrants against an American. It applies to all
foreign intelligence. That includes the communications of an American
who is talking to a person overseas who is not a terrorist suspect, is
not suspected of any wrongdoing, and is not even an agent of a foreign
power. Yet, no matter how interested the Government is in what that
innocent American has to say, if the FBI doesn't think it is worth its
while to seek a court order or if the FBI knows it couldn't get the
order, the surveillance continues nonetheless.
This raises serious constitutional concerns, which is why the
Rockefeller-Levin bill, the alternative to the Protect America Act that
the Senate considered back in August, required procedures to seek a
court order if electronic surveillance was ``of the nature or quantity
as to infringe on the reasonable expectations of privacy of persons
within the United States.'' Yet, in a recently released letter, the DNI
complained about this requirement, saying it would take months to make
this determination, that they couldn't determine in advance what such a
procedure would say. In other words, even as the administration sought
and obtained broad new authorities to collect communications of
Americans, the administration refused to even consider when it might be
violating the Constitution.
If the administration can't assure us that they respect the
Constitution, Congress needs to step in. For all their promises that
reverse targeting is not occurring, the record is clear there is
nothing to stop it, and the administration has resisted establishing
procedures to protect the rights of Americans. At the same time, it has
sought to remove the FISA Court's ability to protect those rights.
This bill denies the FISA Court any role whatsoever in determining or
monitoring why a person overseas has been wiretapped, which, of course,
would help indicate whether the Government is conducting reverse
targeting of an American. The bill denies the court the ability to
monitor what becomes of the communications of Americans that are
collected.
Mr. President, it is clear this administration won't protect the
constitutional rights of Americans, and unfortunately, in the PAA,
Congress passed legislation denying the courts any oversight role. It
is critical Congress act to remedy this great problem. We have a unique
opportunity to protect the Constitution and stop abuses before they
happen. I hope my colleagues will support this amendment.
Mr. President, it appears there is no opposition to it, but
nonetheless I will retain the remainder of my time.
Mr. President, I ask unanimous consent that the pending amendment be
set aside so that I may call up another amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendment No. 3912 to Amendment No. 3911
Mr. FEINGOLD. Mr. President, I call up amendment No. 3912.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Wisconsin [Mr. Feingold], for himself, and
Mr. Dodd, proposes an amendment numbered 3912.
The amendment is as follows:
(Purpose: To modify the requirements for certifications made prior to
the initiation of certain acquisitions)
On page 10 between lines 5 and 6, insert the following:
``(vii) the acquisition of the contents (as that term is
defined in section 2510(8) of title 18, United States Code))
of any communication is limited to communications to which
any party is an individual target (which shall not be limited
to known or named individuals) who is reasonably believed to
be located outside of the United States, and a significant
purpose of the acquisition of the communications of the
target is to obtain foreign intelligence information; and
Mr. FEINGOLD. Mr. President, this amendment ensures that in
implementing the new authorities provided in this bill, the Government
is acquiring the communications of targets in whom it has some foreign
intelligence interest and is not conducting bulk collection of all
communications between the United States and overseas. This amendment
was also approved by the Judiciary Committee.
This amendment is necessary because of the vast and overbroad
authorities provided by the PAA and this bill. In public testimony, the
DNI stated that the PAA would authorize the bulk collection of all
communications between the United States and overseas. Now, that could
cover every communication between Americans inside the United States
and Europe or South America or the entire world. It could also include
a communication between Americans overseas and their family and friends
back home.
This bill is understood to allow the warrantless targeting of a
terrorist suspect overseas even when that person is communicating with
an American at home. The bill does not simply apply to terrorist
suspects, however. It permits warrantless collection of communications
between law-abiding Americans and people overseas who are not suspected
of doing anything wrong at all. That is a problem that needs to be
addressed. But this bill does not just allow the targeting of
conversations of people who are not suspected of any wrongdoing; this
bill actually allows the Government to capture all international
communications to or from the United States in bulk, for no good
reason. I think it is safe to say no one in this country expects that
all of their international communications can be collected by the
Government. That kind of communications dragnet would offend anyone who
has ever communicated with friends, family, or professional associates
in other countries. It raises serious constitutional questions. It
would completely overwhelm the already inadequate minimization
procedures that are the only bump in the road to completely
uncontrolled dissemination of information about Americans. And there
would be no court oversight whatsoever.
Bulk collection poses yet another serious constitutional danger. By
collecting all international communications, the Government would be
collecting communications between Americans overseas and their friends
and family back home.
Senators Wyden and, Whitehouse and I have fought hard to ensure that
Americans overseas cannot be intentionally targeted without a warrant,
but bulk collection is a backdoor way to conduct the same warrantless
wiretapping. Imagine the number of Americans' communications, not with
foreigners but with other Americans--with other Americans, Mr.
President--that would be acquired by the Government through bulk
collection of, say, communications between the United States and
Britain. That means Americans studying and working abroad, tourists
passing through, and even U.S. troops stationed there.
Nothing--nothing--would prevent their communications from being
collected and retained, and nothing would prevent those communications
from being disseminated so long as the Government decided there was
foreign intelligence value.
I ask my colleagues: At what point do we draw the line? At what point
does the Constitution mean something? I am sure some of my colleagues
will say we should trust the Government not to do this, not to abuse
this. Yet the DNI has testified that while bulk collection is not
needed:
It would certainly be desirable, if it was physically
possible to do so.
This is not a short-term piece of legislation. It is not reassuring
that the intelligence community cannot currently collect all
international communication. This bill does not sunset for years. What
is technically possible in this area changes rapidly. Given the
potential impact on the privacy and constitutional rights of Americans
posed by bulk collection, Congress needs to act now. The DNI has put us
on notice that bulk collection is both authorized and, in his words,
desirable. Legislative silence on this issue is consent. This body must
take a position on this issue. Should the Government be able to sweep
up all international communications involving Americans at home and
abroad? We cannot avoid that question. The bill, combined with the
DNI's comments, places it squarely before us.
The amendment I have offered here is extremely modest. It merely
requires the Government to certify to the court
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that in using these broad new authorities to conduct warrantless
surveillance, it is collecting the communications of foreign targets
from whom it expects to obtain foreign intelligence information. The
Government does not have to explain its foreign intelligence interests
to the Court; it does not even have to identify its target. It merely
has to say that an interest exists, and the court cannot challenge this
certification. Because this amendment is so modest, opponents have
raised an absurd hypothetical argument against it, and this is what it
is: that it would somehow prevent the collection of communications into
or out of an enemy-occupied city that the U.S. military is about to
invade.
This argument is plain silly. My amendment requires that there be a
foreign intelligence purpose for collection. This hypothetical posited
by opponents of the amendment--and all individuals in a city our troops
are about to invade would clearly have foreign intelligence value. That
is what distinguished this case, in which the Government can easily
make the certification required by the amendment and, on the other
hand, the bulk collection of all communications between, say, the
United States and Europe.
The reason absurd scenarios such as this have been raised as
``unforeseen consequences'' is that opponents of this amendment do not
want to address the consequences of not passing it, the consequences of
the Government collecting all communications between the United States
and Canada or Europe or South America, the consequences of millions of
innocent Americans' communications being collected, the consequences of
already inadequate minimization procedures being overwhelmed by the
collection.
These are not even unforeseen consequences. The DNI testified that if
this were physically possible, bulk collection would certainly be
desirable. The DNI envisions a country where the Government, if it were
technologically feasible, would listen in on every international phone
call made by its citizens and read every international e-mail. That is
a police state, not the United States of America.
This amendment will help put to rest another concern that has been
expressed about this legislation. In August, after the enactment of the
PAA, the DNI stated:
Now, there is a sense that we are doing massive data
mining. In fact, what we are doing is surgical. A telephone
number is surgical. So if you know what the number is, you
can select it out.
And the DNI then added:
We have got a lot of territory to make up with people
believing that we are doing things that we are not doing.
The best way to assure Americans that the Government is not doing
massive data mining of their international communications is not to
authorize the massive collection of their international communications.
The DNI cannot have it both ways. He cannot complain that people
believe the Government is doing things it is not doing, and then oppose
amendments to the law that would prohibit the Government from doing
those very same things, especially when he has also said that bulk
collection would be ``desirable'' if it were physically possible.
Finally, my amendment would help resolve a serious constitutional
question surrounding this bill. When Americans are on the line, the
constitutionality of the surveillance depends in part on how it is
conducted. Bulk collection of millions of Americans' communications of
which the Government has no interest in the person on the other end of
the line could very well be unreasonable under the fourth amendment. We
can eliminate this particular constitutional problem with the adoption
of this very modest amendment.
I challenge anyone who opposes this amendment to stand up on this
floor and explain to the American people why the Government should have
the authority to engage in bulk collection of their private
communications. Let's tell the American people the truth for once. Do
not rely on hypothetical, unintended consequences that are easily
answered. Explain why this very modest protection of the privacy of our
citizens cannot be granted.
I believe this amendment brings this bill into line with its actual
intent. It gives Congress a say in how far these vast new authorities
will be taken, and it protects the civil liberties of Americans.
I urge my colleagues to support it.
I yield the floor and I reserve the remainder of my time.
The PRESIDING OFFICER (Mr. Salazar.) The Senator from Missouri.
Mr. BOND. Mr. President, I am sorry I was not here for all of my
colleague's descriptions of his two amendments. But let me make one
thing clear. What he is laying out is a scenario that does not exist.
He is raising all kinds of concerns that are dealt with in the
underlying bill. They are dealt with by the Constitution of the United
States. They were dealt with by the Protect America Act.
I can assure the American public that we are not collecting all of
the communications they send overseas and reading them and listening to
them and using them in some way that violates the fourth amendment or
the provisions of these two measures.
Before we actually have a vote on these measures, we will talk about
them more in detail. I think he raised the reverse targeting amendment
first. Let me be clear and explain that you cannot target a person
inside the United States without a court order. All acquisitions must
comply with the fourth amendment.
Last week we agreed to an amendment offered by Senator Kennedy which
ensures that the authorities in this bill will not be used to acquire
communications where the sender and all intended recipients are known
to be in the United States. That has to be with a FISA Court order if
you are targeting somebody in the United States. This is an explicit,
bright-line prohibition against reverse targeting in the current bill.
If one would look at page 6 of the statute, section 703(b)(2), I will
read it for you. It says:
An acquisition authorized under subsection (a) may not
intentionally target a person reasonably believed to be
located outside the United States if the purpose of such
acquisition is to target a particular known person reasonably
believed to be in the United States except in accordance with
title I or title III.
It does not get much clearer than that. So if the purpose in
targeting someone outside the United States is actually to target a
person inside the United States, you cannot use the authorities under
this bill. It is clear. That is what the DNI stated his purpose was;
that is what the bill provides. You have to get a FISA Court order if
you are targeting somebody. You cannot do it by the back door.
Now, I heard yesterday some far-out explanations that a family whose
child goes overseas to go to school, we would be listening in on those
conversations. That is absolutely nonsense. If that is a United States
person, we could not even target that United States person abroad, and
we certainly do not target someone in the United States without a court
order. We have provisions to assure that the United States person who
goes overseas cannot be targeted without an application to the FISA
Court. Quite simply put, that does not happen.
Now, if somebody is calling a suspected terrorist overseas, one on
whom we have initiated collection because of intelligence sources
certified by the Attorney General and the Director of National
Intelligence, this person has significant terrorist information,
significant intelligence information, foreign intelligence information,
if one were to call that number, then it is possible, it is likely, and
we would expect that they would find out what is in that call.
If it is an innocent call, if it has nothing to do with terrorist
activity, it is immediately suppressed; ``minimized'' is the term. They
do not even record the name of the United States person.
But when calls come from outside the United States into the United
States from a person, a known terrorist abroad, or when they initiate
the call, someone from the United States does, then what we must do is
find out if they are talking about planned terrorist activity in the
United States. That is the most important collection we can make. We
have lots of important information targeting foreign terrorists,
suspected terrorists, foreign intelligence targets overseas that is
useful to our allies in protecting their countries. There are lots of
instances where we have done that or when they
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are--and that does not require minimization, and it should not. But the
information that is used is only that information which applies to a
direct threat, a terrorist threat, or other significant foreign
intelligence value. If a United States person is involved in that, if
there is an involvement of the terror plot in the United States or
elsewhere, then that information would be accepted, and if it is
necessary to collect further against that American citizen or United
States person, then they have to go through the normal procedure.
Probably the FBI would get their normal search warrant and go after
that person and determine what role, if any, he or she has in carrying
out terrorist activity. So in addition to the bright-line test, there
is clear oversight authority. There is oversight exercised by the
supervisors at NSA, by the inspector general, by the Department of
Justice, whose lawyers oversee it, and by our Intelligence Committee to
make sure that the prohibitions on reverse targeting are being
observed.
If this proposal were to be accepted, the uncertainty, the
operational uncertainty of determining what a purpose is in reverse
targeting would make this an impossible situation for an analyst to
observe and to make that determination. There is a clear prohibition
against reverse targeting.
The other amendment which he brought up, 3912, is on bulk collection.
The bipartisan Intelligence bill contains numerous provisions to ensure
that acquisitions targeting foreign terrorists overseas--that is
foreign terrorists overseas--comply with the fourth amendment and
follow court-approved targeting. It gives clear protection, as I said
earlier, against reverse targeting.
The amendment that has been proposed under 3912 has some very
negative consequences for protecting our troops abroad. This amendment,
for example, would prevent the intelligence community from targeting a
particular group of buildings or geographic area where, for example,
terrorist activity is known to be occurring, and preventing them from
collecting signals intelligence prior to operations by our Armed
Forces.
If there is an area which has significant terrorist activity, to say
we cannot collect all of the communications coming out of that area to
identify who the terrorists might be, whether there are innocent
persons involved before our military goes in, does not make any sense,
because if we send our military in, they are going in and probably
going to be using significant lethal force. Had this bulk collection
provision been in place, it would have prevented our troops from
conducting surveillance in Fallujah, for example, prior to their
military operations.
The details on this are classified. We can provide more information
in a secure setting. But this amendment, according to the Director of
National Intelligence and the Attorney General, ``could have serious
consequences on our ability to collect necessary foreign intelligence
information, including information vital to conducting military
operations abroad and protecting the lives of our servicemembers, and
it is unacceptable.'' I agree with them because I have had the
opportunity to learn how the system operates. My colleague from
Wisconsin has. I believe it is very clear from the information we have
received and the knowledge we have about it that the evils which he
purports to address are evils that do not exist. I strongly urge my
colleagues to oppose both amendments.
I reserve my time.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. It is sort of odd that we are debating these two
amendments together. But there is one advantage. Under our system of
government, the way we make sure that abuses don't occur is by passing
laws to make it absolutely clear that abuses aren't occurring and can't
occur. We are supposed to accept the say-so of one Senator who says we
are not doing these things. We are not conducting bulk collection. We
are not doing reverse targeting so don't worry. Yet he resists two
amendments that simply make it clear you can't do these things. What is
the objection on the merits to these two amendments? They would apply
to an administration that initiated an illegal wiretapping program in
disregard of the statutes. We have reason to believe that maybe they
would do things we don't know about and don't like and don't think are
legal, but we are supposed to simply take the word of one Senator
instead of passing a law to clearly protect the American people.
With regard to reverse targeting, the Senator asserts that somehow
having a provision that says ``the'' purpose would have to be targeting
an American before a court order is required is going to protect us.
But that doesn't protect us. That language would mean that any
incidental reason for targeting a foreign person when the government
wants to listen to the American would be a sufficient basis for ongoing
warrantless surveillance of the American. In fact, the Senator from
Georgia has indicated that what this means is that the sole purpose of
the collection would have to be to obtain information on the American
before a court order is required. If that is true, then it would be
very easy for the government to bootstrap any incidental interest in a
foreign target so that they can listen in on an American.
The DNI has said that reverse targeting is unconstitutional. What is
the legitimate objection to making it absolutely clear that this can't
be done in this statute? There is no substantive objection. The same
thing goes for bulk collection. Again, one Senator assures the American
people that the government is not doing bulk collection. That might be
right. We may not be doing it now. But the DNI has said it would be
desirable. He would love to do it. Yet the Senator will not permit a
simple amendment that says that something that the DNI has also said is
not actually needed but would raise serious constitutional problems,
should be prohibited.
This is an amazing moment. Instead of legislating, we are supposed to
trust. With regard to all of our international communication, we are
supposed to simply trust one Senator's assurance that there is nothing
to worry about. I suggest the American people deserve better than that.
To show the complete lack of content to these arguments, I addressed
what the Senator, who was not out here at the time, has called the
Fallujah example. He keeps saying that under this provision, you
couldn't get information about what was going on in Fallujah when we
were attacking al-Qaida and others there. That is absolutely false. I
laid it out. As long as the Government says there is a foreign
intelligence information purpose, of course they can do it. If there is
a terrorist hotbed, they can do it. They just have to assert that. This
argument that somehow this would interfere with that collection flies
directly in the face of the bill and the amendment. There is no truth
to that argument at all. The amendment is absolutely clear in cases of
conflict, where the government merely needs to assert that it has a
foreign intelligence purpose for conducting surveillance in that area.
In that situation, the purpose is clear.
Because of the floor situation, the arguments related to these two
amendments have merged, but it sort of works in a way because both of
them are such straightforward, simple protections that a majority of
the Judiciary Committee agreed had to be included in this bill to
protect the rights of the American people.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Missouri.
Mr. BOND. Mr. President, there are quite a few things I disagree with
that my colleague from Wisconsin has brought up. No. 1, he said the
administration instituted an illegal wiretapping program. That is not
true. That is wrong. I reviewed the documents on which they based it--
article II, and the authorization for use of military force. That was
not an illegal effort. But that is a debate for another time. The
administration did advise the leaders of Congress what they were going
to do. The big eight were advised, and they did not deem any
legislation advisable at the time.
Secondly, he gives me too much credit in saying it is only the word
of one Senator that his amendments are unworkable and unnecessary. This
was brought up and debated in the Intelligence Committee. We spend our
time overseeing intelligence collection. It was not adopted there. It
was withdrawn.
If my colleague has any evidence that there are any violations in
reverse
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targeting or bulk collection of the fourth amendment of the
Constitution or other violation of privacy rights, then I suggest he
bring them up in our Intelligence Committee in closed session where we
can debate all the activities that are going on. I assume he has been
out to NSA to see how it operates. He has been in and had the
opportunity to question leaders of the intelligence community. He says
there is a total lack of substance. I have to say there is a total lack
of substance to the allegations he makes. There are legitimate concerns
which we address in this bill by specifically prohibiting reverse
targeting. It is specifically prohibited in this bill. I have to say
the people who run the program are the ones who have told us the
additional bells and whistles he wants to put on for no reason or even
reasonable prospect of violations would make it impossible to carry out
the business of collection on foreign terrorists with potential
activities in the United States.
Again, there will be others who will discuss this. But it is not the
word of one Senator. It is the word of a majority of the Intelligence
Committee, and it is the word of the intelligence community itself,
backed up by the Attorney General, that this is unwise, unnecessary,
that these amendments would significantly hamper the ability of the
intelligence community to conduct its operations.
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Briefly, Mr. President, it is important to put in the
Record that the Judiciary Committee, after carefully considering this
not just in the context of intelligence--and I do serve on the
Intelligence Committee as well--but in the context of the relationship
between intelligence and civil liberties, came to the opposite
conclusion on both reverse targeting and bulk collection and voted by a
majority to adopt the very sort of amendments I am proposing. With
regard to the vice chairman's assertion that I had not put forward any
concerns about the impact of these authorities on the civil liberties
of Americans, I, in fact, sent a classified letter to the DNI in
December expressing serious concerns about the implementation of the
Protect America Act and its effect on the rights of Americans. I can't
discuss classified specifics here. But the fact is, these aren't merely
theoretical concerns.
One final point: The thrust of our concern about reverse targeting
and bulk collection doesn't have to do necessarily with what has
already occurred but what could occur, what abuses could occur if we do
not clarify in the law that they should not be done. This is especially
important in light of the fact that, as I have indicated, the Director
of National Intelligence has said it would be desirable to do this bulk
collection. If the DNI says that, wouldn't that be a reason to be a
little concerned and to make sure it is clearly prohibited?
I reserve the remainder of my time.
The PRESIDING OFFICER. The Senator from Connecticut.
Amendment No. 3907
Mr. DODD. Mr. President, I want to inquire as to how we are to
proceed. I was asked to offer my amendment on behalf of myself and
Senator Feingold regarding striking the language dealing with immunity
in the bill. I don't want to interrupt the debate. I don't know how we
ought to proceed. Is this debate concluded? I will check with the
author.
Mr. President, I ask unanimous consent to set aside the pending
amendment so I may offer the Dodd-Feingold amendment dealing with
retroactive immunity.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DODD. Let me inform my colleagues that what I intend to do is not
to speak at length. I know under the previous time agreement, there are
2 hours allocated to this amendment. My intention this evening is to
use probably 10 or 15 minutes of debate on this amendment. I see my
colleague from Washington. I don't know if she has an intention to
address the Senate on this matter or something else. I am going to take
10 or 15 minutes to talk about the amendment and then reserve the
remainder of my time for tomorrow. There are other Members who would
like to be heard on this amendment. I don't want to consume too much of
the time to deny others the opportunity to be heard. I presume my
colleague from Wisconsin tomorrow may want some time. I will take a
brief amount of time this evening and then reserve the balance until
later. Then my colleague from Washington can certainly be heard or
anyone else for that matter.
I send to the desk an amendment offered by myself and Senator
Feingold, and Senators Leahy, Kennedy, Harkin, Wyden, Sanders, Obama,
Biden, and Clinton and ask for its consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:
The Senator from Connecticut [Mr. Dodd], for himself, Mr.
Feingold, Mr. Leahy, Mr. Kennedy, Mr. Harkin, Mr. Wyden, Mr.
Sanders, Mr. Obama, Mr. Biden, and Mrs. Clinton, proposes an
amendment numbered 3907.
Mr. DODD. I ask unanimous consent that reading of the amendment be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To strike the provisions providing immunity from civil
liability to electronic communication service providers for certain
assistance provided to the Government)
Strike title II.
Mr. DODD. Mr. President, this amendment we have talked about at
length over the last number of weeks going back into December. This is
a striking amendment to strike the language in the bill out of the
Intelligence Committee that would provide for retroactive immunity to
the telecom industry. It has been debated at length. This amendment
strikes that language in the bill, conforms it to what has been adopted
by the other body in its legislation dealing with the Foreign
Intelligence Surveillance Act suggestions and recommendations, and
conforms it to what has been included in the Senate Judiciary Committee
bill. So while there have been three different committees that have
reported their suggestions to the Congress on this issue, the
committees in the House of Representatives and one committee here have
reached different conclusions than that of the Intelligence Committee,
where they have recommended that retroactive immunity be granted to the
telecom industry for having kept over the last 5 years sort of a
vacuum-cleaner approach to telephone conversations, faxes, e-mails that
have been engaged in by Americans across the board.
This goes back immediately to after 9/11. As I said, had this been a
temporary deviation from the norm, particularly in the wake of 9/11, I
would not be standing here asking that retroactive immunity not be
granted. But this program went on for 5 years. It only came to an end
because of a revelation by whistleblowers and others that the program
stop. This was 5 years of collecting data and information on U.S.
citizens without a court order.
The FISA Court was established back in 1978 specifically to provide
for warrants and court orders when such information was being solicited
and needed to provide for the security of our country. I think these
amendments that we need to update the FISA legislation are critically
important, and I certainly want to see them adopted. But I believe it
is going way beyond the pale in the midst of all this to extend
retroactive immunity back to a group of companies that decided this was
an appropriate request and they were going to comply with it. I would
point out to my colleagues that not all companies did. If every single
company complied with this, you might make the case that there was
something going on that required, or certainly warranted, their
decision to agree to this invasion of privacy without a court order.
There were companies that said: No, we will not comply with that
request absent a court order. That court order was never forthcoming
and those companies did not engage, to the best of our knowledge, in
the collection of this data and information.
Now I am not drawing the conclusion--but I have my opinions about
this--as to whether what the companies did was legal or illegal. That
is not a matter for 51 of us here by a majority vote to decide. That is
a matter for which the courts exist in this country. It is not a matter
for the executive branch to decide. It is why we have three coequal
branches of Government.
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When matters such as this arise, raising the legality of certain
actions, then that matter ought to be appropriately decided by that
third coequal branch of Government, as the Framers intended, in exactly
these kinds of cases; that is, the matter to determine whether those
who are suggesting that these telephone companies did exactly what they
should have done under the circumstances. There are many here and
elsewhere who believe otherwise, and while short of reaching a
determination as to legality, believe that the courts ought to make
that determination.
There are some 40 cases now pending before the courts on this very
matter. If we take the action adopted by the Intelligence Committee, we
will never, ever know whether these actions were legal, whether the
privacy of millions and millions of Americans were invaded. Once we
have set the precedent of allowing this retroactive immunity to go
forward, why not then in other areas outside of the case of
telecommunications? What about medical records? What about financial
records? The Congress will have voted that it is all right to grant
retroactive immunity. The next time an American President asks these
companies or other companies to engage in similar activities, why not
use the precedent established by the telecommunications industry to
comply with that request absent a court order?
These are critical moments involving the rule of law--the rule of
law--not the whim of a President, any President. Given the pattern of
behavior of this administration over the last 6 or 7 years, in example
after example where there has been a disregard, in my view, of the rule
of law and the Constitution of the United States, what more does this
body need to understand in this matter than to once again grant this
administration a pass and in effect say to those companies: It doesn't
make any difference. We don't know whether what you did was legal, but
you get a pass on this right now. I think nothing could be more
dangerous than to allow that precedent to go forward without us
insisting that the courts be allowed to exercise their judgment in
these matters.
There are arguments that have been raised on why we shouldn't let
this happen. One: It might hurt these companies financially. That
argument is so offensive I hesitate to make it even on behalf of those
who would argue it. The idea that some financial injury is far more
important than the rule of law ought to be offensive to every American,
whether you agree or disagree with whether these companies did the
right thing, or somehow that these companies had no idea what they were
doing; they went along with this because an American President asked
for it.
I would point out that in 1978, during the drafting of the FISA
legislation, many of these companies were directly involved in the
drafting of that legislation. They knew exactly what the law is in this
area. I would further point out that it has been reported to the press
that there have been more than 18,000 requests of FISA Courts over the
last 30 years when it has come to these kinds of inquiries. In all but
5 cases, out of the more than 18,000 requests, the FISA Courts have
complied with executive branch requests for warrants to invade or to
engage in surveillance activities. Only in 5 cases were they rejected,
out of more than 18,000 requests. That is better than 99.9 percent of
the cases. Why not in this one? Why were the courts not solicited to
provide the kind of approval for the court orders that would have
allowed for this surveillance to go forward? It is not a minor point.
It is a huge point.
I would further point out that the administration, of course,
originally requested that immunity be granted not only to the
telecommunications industry but everyone involved in this matter.
Thanks to the wisdom of Senator Rockefeller and Senator Bond, that
broad request was rejected, and I thank them for it. But it is
important that our colleagues understand that that is what they wanted
to do; They wanted total immunity for everyone involved in this 5-year
plan. But the committee wisely rejected that request and narrowed the
immunity only to the telecommunications industry. But nonetheless, I
think all of us understand the net effect. If we grant retroactive
immunity as requested by this legislation, then we will never get to
the bottom of what occurred here, and once again, opening the door to
possible future violations.
It is being suggested by some: Well, this is just a bunch of
Democrats going after a Republican administration. I will tell my
colleagues that if this were a Democratic administration, I would be
standing here with as much passion as I am today. This is not about
Republicans or Democrats, liberals or conservatives; it is about the
rule of law. It is about the Constitution of the United States. All of
us here, regardless of political ideology or what party we affiliate
with, this is a matter that transcends all of that. We ought to--as we
have sworn to do when we raised our right hand in the well of this
body, as each one of us has here as Members of this institution--
protect and defend the Constitution of the United States. Nothing less
than that is being asked of us when we vote on this matter: to strike
this provision and allow the courts to do their work; to determine
whether, as those who are advocating for retroactive immunity assert,
that this was an appropriate and proper response by these companies, or
to draw the different conclusion that it was not and that it was
inappropriate, illegal, and improper for them to do what they have
done; and that all other bodies in this country, private or otherwise,
need to understand when this administration or any administration makes
a similar request in the future, the Congress has spoken on this
matter, so that they do so only when they receive those kinds of court
orders and then provide that kind of immunity which, in every single
case in the past, they have when the court order has been approved by
the FISA Courts. That is the sum and substance of this debate.
There are various other arguments for immunity, including the
argument that somehow you can't protect private information. As one
Federal judge has already pointed out--I might point out a Republican
appointee to the bench--what are we all hiding from? We all know this
went on. This is not some secret. We all know that for 5 years or more,
this information was being vacuumed up. That is no longer a secret.
What is potentially a secret is how this was done--methods and means--
and I appreciate those who want to make sure that we don't allow for
the revelation of that kind of information. But there are ample
examples of how the Federal courts have handled these matters in the
past, acting in a way that protects this kind of information. The
suggestion that this is too dangerous to allow these matters to go
forward I don't think is a valid argument, particularly when you are
going to sweep across retroactive immunity. There are plenty of
examples. In fact, I would note that the Presiding Officer--I don't
know this, but I presume in his previous life as an attorney general--
faced matters in his own State where certain private information had to
be kept private and secret and there were matters before the courts
before which he operated where that was exactly the case. I have
listened to other attorneys general cite examples where there was
privacy and other information that did not belong in the public domain
and was protected. So the argument that somehow we can't run the risk
of allowing the Federal courts to handle these matters given the
revelation of information that otherwise shouldn't be in the public
domain--I don't buy that argument either. But those are the arguments
for having retroactive immunity on this legislation.
I have spoken at great length about this in the past and I appreciate
the indulgence of the chairman and others to listen to me over and over
again on this subject matter. But this is a matter I care deeply about
and I know others do too. This is not a Democrat standing up here
trying to cause trouble for a Republican administration. That is an
offensive argument. I think we know each other well enough to respect
and understand that these are serious debates and serious arguments.
The tension that has existed for the life of our great Republic is this
debate today, how do we protect the rights and liberties of our
American citizens and simultaneously protect our people from those who
would do us great harm and injury. It is not an easy debate; I
understand that. But it is one that is as old as our Republic, to make
sure
[[Page S646]]
that we maintain those rights and liberties while simultaneously
fulfilling that obligation to protect our citizens from those who would
do us great harm. I believe the tension is such that I don't believe we
want to give up these rights, these important systems we put in place.
In fact, the very FISA Courts as they exist were designed to
specifically address that balance more than 30 years ago, and I believe
on some 30 different occasions over the years we have amended the FISA
legislation to allow us to stay current with technologies that could be
used against us as well as allowing those technologies that allow us
greater opportunity to learn about those who would do us harm. So over
the years we have made those recommendations. Almost unanimously--and I
believe I am correct in that assessment--previous Congresses have
adopted those recommendations and suggestions. To suggest, as was done
here, that because of Senator Feingold's amendments dealing with
reverse targeting and bulk collections, that somehow we are violating
that history, I think is wrong. I think those suggestions are
worthwhile and warranted, and it can improve not only what we are doing
technologically in this bill, but also fulfilling the second part of
that obligation, and that is to protect the rights of our citizenry.
It is truly a false dichotomy to suggest that we can only become more
secure by giving up rights. I think that is a very dangerous argument
to make. Too many in this country are subscribing to it today. That is
exactly the opposite of what the case ought to be: that we become more
secure when we insist upon those rights and liberties. That has been
the history of our great country. In every single example I can think
of when we have allowed our rights to be shortchanged to the argument
of security, we look back historically and regret those moments. When
we think about the internment of Japanese Americans during World War II
and other examples, I think all of us look back and regret those
moments, if we did anything but give our country more security. We have
had great moments when we stood up for the rights and liberties of our
fellow citizens in the face of arguments that our security was in
jeopardy if we didn't somehow tailor those rights and liberties to give
us additional security. I think that is the same argument today. I
think we will be a proud body by rejecting this piece of the bill
before us, allowing the courts to do their job as the Framers intended
them to do, to determine the legality of the actions taken by these
companies at the request of this administration, to allow them to make
that decision, not by some vote in this body that would allow these
matters to be swept aside for all of history without ever knowing
whether we did great damage to the rights and liberties of our fellow
citizens.
I will make additional arguments here tomorrow, but I want to reserve
time because here we are on Super Tuesday and a lot of people are not
here who want to engage in this debate. So I will reserve the remainder
of my time so that others can be heard on this matter when it comes up
either tomorrow or whenever the matter comes back to the floor. But I
appreciate the managers of this legislation giving me a few minutes to
make my case on this issue. I have said so many times before, and I
will say again, Jay Rockefeller and Kit Bond are very good friends of
mine. I have great admiration for these men. We have served a long time
together here. They don't have an easy job. This is a very difficult
committee to have to work on, given the difficult matters they are
faced with. I am sure they understand that my objections are not about
our friendship or my respect for the work they do, but about a
fundamental disagreement. I admire what they are trying to do, I
respect the job they have been asked to do, and I thank them for it.
The PRESIDING OFFICER. The Senator from Missouri is recognized.
Mr. BOND. Mr. President, I thank my good friend from Connecticut for
the kind words. We are delighted to have him back, although some would
wish that he were otherwise occupied tonight. But we welcome him back
and welcome him to the debate. I express my appreciation for the kind
words he said about me in Iowa. It didn't do much good in Iowa, but I
always appreciate them.
On this debate, however, I respectfully say that my good friend, with
whom I have worked on many measures and intend to work with on many
more, is dead wrong. He is correct that the FISA law was passed in
1978, but the problem is it has been superseded by technological
changes. The technology of transmission of signals changed
significantly. He probably was not here when I mentioned it earlier,
but when the terrorists struck on 9/11, there was a question of how we
could prevent further attacks that were planned and some of them were
under way. The appropriate intelligence community officials recommended
electronic surveillance and noted that since the laws had not changed,
but technology had changed, it was quite likely that FISA, as it
existed from 1978, even with minor tweaks, would not accommodate the
collection that was needed. The intelligence community leaders and the
administration leaders addressed this with the Gang of 8, the leaders
of both parties, both Houses, and both sides of leadership on the
Intelligence Committees, and they concluded that there was not time to
change the law, so the President went ahead, using his article II
powers as enhanced by the authorization for the use of military force.
The President issued orders and, for the most part, the Attorney
General signed off on it when he was available. The Director of
National Intelligence issued them, and companies, understanding the
urgency of providing collection against foreign terrorists--this was
directed against foreign terrorists calling into the United States--
complied.
Now, the fact that one or two may not have complied speaks no praise
for those companies, because if they failed to comply with what I have
reviewed and believe to be valid orders of the Federal Government, and
as a result, communications that might have tipped off an imminent
attack on the United States of America were missed, then it would be a
great shame for those companies.
Now, I cannot speak for the other body. I do say that the Judiciary
Committee, which has broad jurisdiction over many important things--and
I respect the leadership of that Committee--doesn't spend the time that
we in the Intelligence Committee do on intelligence matters--going out
to NSA, having people come before us, being briefed, going through
laboriously technical operations that allow these searches and
surveillance, and going through and listening and observing the means
of assuring that these functions are carried out in compliance not only
with constitutional directions but the regulations and the statutes of
the United States is very important. We have seen the oversight. There
is the supervisor and the inspector general who act as an independent
check; the Department of Justice lawyers who come and review it from
their standpoint; but also the Intelligence Committees in both Houses,
which have not only the right but the responsibility to oversee this.
Based on that, our committee determined and reported out a measure
saying it was absolutely essential for the continued security of this
country to eliminate lawsuits that had been filed against a number of
carriers alleging that they may have participated in this activity.
Now, why is that a problem? Well, today, we had open hearings
involving the DNI, the Director of the FBI, the Director of the CIA,
the Director of the Defense Intelligence Agency, and the Deputy
Secretary of State for the INR Division. We asked all of them why it
was essential that they provide retroactive liability protection.
The first and most important concern raised was that allowing these
lawsuits to continue against the company--my colleague from Connecticut
is right. We permit cases to go forward against the Government or
Government officials. We are just protecting private companies. It is
the pleadings, the discovery, and the testimony that would inevitably
tell us, and the terrorists, much more about the operations of the
program than the terrorists ought to know. In May of 2006, after the
disclosures of this terrorist surveillance, GEN Mike Hayden came before
our committee for confirmation. I asked him: What impact has the
disclosure of our terrorist surveillance
[[Page S647]]
program had on the collection of intelligence from foreign terrorists
and suspected terrorists? He smiled and said, ruefully: We are applying
the Darwinian theory to terrorists. We are only collecting the dumb
ones.
I can assure you the people we want to listen in to are the very
clever, very witty, very diabolical, murderous heads of al-Qaida and
other terrorist organizations who want to do great bodily harm to the
United States. They think, what we can do to tell them more about it,
which would tell them how to evade even the means of collection that we
have left available, that would leave our intelligence community deaf
and blind to threats not only to this country, which is most important
to all of us but to our allies and our troops overseas.
All the heads of the intelligence agencies I mentioned said one of
the most important things we can do is provide this retroactive
liability protection because, without it, then the private carriers--
the telecom companies--will no longer participate voluntarily to
requests from Government entities. We have many areas where the
telecommunications companies work with the Federal Government--whether
it is tracking a missing child, tracking down a sex offender or, on
another level, breaking up a drug cartel or, on another level,
protecting against cyber attacks from other countries. If litigation is
allowed to proceed against these companies, not only will it likely
describe in detail the means that our intelligence community uses to
collect information, it will put the companies in such dire straits in
terms of business reputation here and abroad that it will be a very
serious blow to the shareholders, to the pension funds that own the
companies, and it will lead the counsel for those companies to say:
never participate with the Federal Government again.
This could be a disaster for effective collection. I believe it was
the consensus of those present at our hearing today--the Director of
the FBI, the Director of CIA, the general in charge of the Defense
Intelligence Agency, Under Secretary in charge of INR, and Admiral
McConnell, the DNI--that retroactive liability protection for any
carriers that may have participated, as well as carriers that are
getting sued that didn't participate, that cannot exercise the state
secrets to protect them, it will ensure that we don't get protection,
don't get the cooperation from these telecommunications carriers when
we need it.
We have worked hard on this measure. After reviewing all the
information available to us, including opinions and authorizations that
we reviewed in the executive office, the committee determined, on a
strong bipartisan basis, that the providers acted in good faith
pursuant to representations from the highest level of the Government,
that the TSP was lawful.
We worked hard to fashion a limited liability protection provision
that serves the dual purpose of ending the litigation against the
providers while allowing the cases against the Government to continue.
Go ahead and attack the Government. There is no shortage of that in
this body. I have heard it previously earlier today. That is part of
our role on a partisan basis. We exchange criticism of the other party
and particularly the administration when it is of the other party. We
can make our best arguments. But we need to stop investigations, for
example, by State public utility commissions of the providers' conduct
under the TSP.
These investigations involve very sensitive, classified information
that no public service commission or public utility commission is
competent to handle, maintaining the secrecy, the confidentiality we
need of our collection methods. We know this program has inflicted no
harm on our citizenry and has protected us from harm.
I invite my colleagues, once again, to go to the fourth floor
confidential classified hearing room or come to the Intelligence
Committee's offices in Hart, if they want to see, from the Director of
National Intelligence, a list of things that have been accomplished
under the Protect America Act because collecting this electronic
information is vitally important. It is right up there with
interviewing detainees--high-value detainees--in providing us our most
valuable information. To strike this provision of retroactive liability
protection from the bill would significantly lessen our ability to
collect intelligence and will make our country much less safe.
I ask that my colleagues vote against it. I will shortly yield time
to my colleague and the chairman of the committee. At this point, I ask
unanimous consent that the pending amendment be temporarily set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.
Amendments Nos. 3938 and 3941, as modified
Mr. BOND. Mr. President, I call up amendments numbers 3938 and 3941
and ask unanimous consent that they both be modified with the changes
at the desk.
The PRESIDING OFFICER. Is there objection?
Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:
The Senator from Missouri [Mr. Bond] proposes amendments
numbered 3938 and 3941, en bloc.
Mr. BOND. I ask unanimous consent that reading of the amendments be
dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendments are as follows:
Amendment No. 3938, As Modified, to Amendment No. 3911
On page 70, strike line 1 and insert the following:
SEC. 110. WEAPONS OF MASS DESTRUCTION.
(a) Definitions.--
(1) Foreign power.--Subsection (a)(4) of section 101 of the
Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1801(a)(4)) is amended by inserting ``, the international
proliferation of weapons of mass destruction,'' after
``international terrorism''.
(2) Agent of a foreign power.--Subsection (b)(1) of such
section 101 is amended--
(A) in subparagraph (B), by striking ``or'' at the end
(B) in subparagraph (C), by striking ``or'' at the end; and
(C) by adding at the end the following new subparagraphs:
``(D) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor;
or
``(E) engages in the international proliferation of weapons
of mass destruction, or activities in preparation therefor,
for or on behalf of a foreign power; or''.
(3) Foreign intelligence information.--Subsection (e)(1)(B)
of such section 101 is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(4) Weapon of mass destruction.--Such section 101 is
amended by inserting after subsection (o) the following:
``(p) `Weapon of mass destruction' means--
``(1) any destructive device described in section
921(a)(4)(A) of title 18, United States Code, that is
intended or has the capability to cause death or serious
bodily injury to a significant number of people;
``(2) any weapon that is designed or intended to cause
death or serious bodily injury through the release,
dissemination, or impact of toxic or poisonous chemicals or
their precursors;
``(3) any weapon involving a biological agent, toxin, or
vector (as such terms are defined in section 178 of title 18,
United States Code); or
``(4) any weapon that is designed to release radiation or
radioactivity at a level dangerous to human life.''.
(b) Use of Information.--
(1) In general.--Section 106(k)(1)(B) of the Foreign
Intelligence Surveillance Act of 1978 (50 U.S.C.
1806(k)(1)(B)) is amended by striking ``sabotage or
international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(2) Physical searches.--Section 305(k)(1)(B) of such Act
(50 U.S.C. 1825(k)(1)(B)) is amended by striking ``sabotage
or international terrorism'' and inserting ``sabotage,
international terrorism, or the international proliferation
of weapons of mass destruction''.
(c) Technical and Conforming Amendment.--Section 301(1) of
the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
1821(1)) is amended by inserting `` `weapon of mass
destruction','' after `` `person',''.
SEC. 111. TECHNICAL AND CONFORMING AMENDMENTS.
On page 84, line 12, strike ``and 109'' and insert ``109,
and 110''.
On page 87, line 12, strike ``and 109'' and insert ``109,
and 110''.
On page 87, line 21, strike ``and 109'' and insert ``109,
and 110''.
On page 88, line 10, strike ``and 109'' and insert ``109,
and 110''.
Amendment No. 3941, As Modified, to amendment No. 3911
On page 13, strike lines 3 through 13, and insert the
following:
``(C) Standards for review.--A judge considering a petition
to modify or set aside a directive may grant such petition
only if the judge finds that the directive does not meet the
requirements of this section, or is otherwise unlawful.
[[Page S648]]
``(D) Procedures for initial review.--A judge shall conduct
an initial review not later than 5 days after being assigned
a petition described in subparagraph (C). If the judge
determines that the petition consists of claims, defenses, or
other legal contentions that are not warranted by existing
law or by a nonfrivolous argument for extending, modifying,
or reversing existing law or for establishing new law, the
judge shall immediately deny the petition and affirm the
directive or any part of the directive that is the subject of
the petition and order the recipient to comply with the
directive or any part of it. Upon making such a determination
or promptly thereafter, the judge shall provide a written
statement for the record of the reasons for a determination
under this subparagraph.
``(E) Procedures for plenary review.--If a judge determines
that a petition described in subparagraph (C) requires
plenary review, the judge shall affirm, modify, or set aside
the directive that is the subject of that petition not later
than 30 days after being assigned the petition, unless the
judge, by order for reasons stated, extends that time as
necessary to comport with the due process clause of the fifth
amendment to the Constitution of the United States. Unless
the judge sets aside the directive, the judge shall
immediately affirm or affirm with modifications the
directive, and order the recipient to comply with the
directive in its entirety or as modified. The judge shall
provide a written statement for the records of the reasons
for a determination under this subparagraph.
On page 13, line 14, strike ``(D)'' and insert ``(F)''.
On page 13, line 17, strike ``(E)'' and insert ``(G)''.
On page 14, strike lines 10 through 19, and insert the
following:
``(C) Standards for review.--A judge considering a petition
filed under subparagraph (A) shall issue an order requiring
the electronic communication service provider to comply with
the directive or any part of it, as issued or as modified, if
the judge finds that the directive meets the requirements of
this section, and is otherwise lawful.
``(D) Procedures for review.--The judge shall render a
determination not later than 30 days after being assigned a
petition filed under subparagraph (A), unless the judge, by
order for reasons stated, extends that time if necessary to
comport with the due process clause of the fifth amendment to
the Constitution of the United States. The judge shall
provide a written statement for the record of the reasons for
a determination under this paragraph.
On page 14, line 20, strike ``(D)'' and insert ``(E)''.
On page 14, line 24, strike ``(E)'' and insert ``(F)''.
Mr. ROCKEFELLER. If the Senator will yield, it is very important for
a particular person on this floor to be able to, within the next 15
minutes--and for a particular reason--say some things that are very
important to her, not on either of our pending amendments, the two
amendments you and I are about to offer. The Senator has already
approached the Parliamentarian in this matter. I ask if the Senator
from Missouri would be willing to allow the Senator from Washington to
speak on a different subject for 15 minutes for a very good reason.
Mr. BOND. Mr. President, I have no intention of continuing this
discussion.
These are amendments, I hope, will be accepted. Chairman Rockefeller
and I will describe them later. I ask that our time be reserved, and I
defer to Members on the other side who may wish to go into morning
business.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, understanding whatever it is that the
Senator from Arizona decides he wants to do, there is a particular
reason and a particular time constraint that the Senator from
Washington has to speak now. That is why I asked that she be allowed to
speak in morning business. She will make that request, and I hope there
will be no objection to it.
Mr. KYL. Mr. President, I have no objection to that. But I would like
to add that when the Senator from Washington has concluded her remarks,
I be recognized for my remarks.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Washington is recognized.
Ms. CANTWELL. Mr. President, I ask unanimous consent to speak as in
morning business for up to 15 minutes and that the time not be counted
against the debate on the FISA legislation.
The PRESIDING OFFICER. Without objection, it is so ordered.
Stimulus Package
Ms. CANTWELL. Mr. President, I rise today to speak about clean energy
production tax credits, investment tax credits, and the energy
efficiency provisions in the pending stimulus package, which I think
are critical to restoring economic growth in America and continuing
what is a burgeoning industry that is helping us create jobs and
economic stimulus across our country. We are talking about tax credits
that are a proven stimulus and business investment. They give
consumers, in this case, energy efficiency credits of up to $500 to
make energy efficiency improvements to their homes, which could save
homeowners as much as $800 per year in avoided energy costs. We are
talking about $20 billion of stimulus and 116,000 jobs that could be
impacted.
The bottom line is the renewable energy industry generated over $40
billion of revenue in 2006 and accounted for 450,000 direct and
indirect jobs last year. So we know that clean energy is one of the
fastest growing sectors of our economy. But by failing to act when we
didn't pass these critical tax incentives last year, we caused
turbulence in what is a very new and growing industry. And if the
Senate rejects these incentives now, we could put this industry in a
tailspin by not giving them predictability on their tax credits. That
is why it is so important we pass the stimulus package tomorrow.
Let's talk about what we are hearing from some of those in the
industry who know this sector very well. The Alliance to Save Energy, a
group of business, government, and consumer leaders, committed to
seeing this country take advantage of cost savings from efficiency have
said:
Energy efficiency tax incentives put money into the economy
by encouraging the purchase of energy efficient products and
services.
This group has representatives of this body as part of that alliance.
Their job is to advocate for policies to help this industry grow. What
are we hearing from particular industries? I like this chart
particularly because so many of my colleagues--I do it, and so many on
the other side, and even the President of the United States speaks at
these various clean energy industry plant sites and advocate and are
excited about the jobs they create. But sometimes it stops there and
after the ribbon cutting they fail to support the necessary
policies. That is why recently a particular solar company CEO made this
statement:
The Senate can ensure that we keep the economic engine
moving forward and extend the solar tax credits as part of
the economic stimulus bill.
That is directly from the solar industry that we politicians like to
stand in front of and talk about jobs being created. Here is somebody
who was the prop behind one of these events in the last week, and they
are telling us to pass this tax credit in the stimulus package.
What are we hearing from a consortium of those in the industry? We
are hearing from one consolidated report of the renewable industry that
said:
Over 116,000 U.S. jobs, and nearly $19 billion--
This is just on solar, wind, and other renewable electricity
sources--
nearly $19 billion in U.S. investment could be lost in one
year if renewable energy tax credits are not renewed by
Congress.
That report came out earlier this week.
The reason why people are so concerned about this is because what we
have seen traditionally--and we can see on this chart that in 2000,
2002, and 2004 where we did not give predictability to this industry by
saying we are going to continue the tax credit policy--what happened is
a 93-percent drop in investment; in 2000. In 2002, a 73-percent drop in
investment; and again in 2003, another 77-percent drop in investment.
Here is where this industry is now in 2007. It is a growing industry.
As I said, in 2006, it was $40 billion in revenue and over 450,000
direct and indirect jobs. And we are about to kill this level of
investment and put it into a tailspin by not continuing this tax
policy.
In fact, that is exactly what this solar industry CEO, who had the
pleasure of standing there with Governor Schwarzenegger and others,
said. He said Federal tax credits for solar energy are about to expire.
They are about to expire and it will send the solar industry into a
tailspin.
It doesn't have to get any clearer than that: CEOs of companies that
are the backdrop of great press events telling us we are about to send
their industries into a tailspin. I suggest we instead pass these tax
incentives and get
[[Page S649]]
on with what could be certainty in tax policy.
What I like about wind is the fact that it is happening in lots of
places across this country, but it is also giving farmers a second
crop. Almost 200 members of the American Wind Energy Association have
sent us a letter saying that ``companies in our industry are already
reporting a decrease in investment as a result of the uncertainty
surrounding tax policy.'' They are saying they are already seeing
people starting to cancel projects.
We want to help our economy grow, and there is stimulus in these tax
incentives, but I ask my colleagues to consider what is going to happen
when they do not renew them. They are actually going to cause more
damage to the economy because people are going to start canceling
projects.
Let me explain. This same report by Navigant came out earlier this
week and got very specific as to which States had significant
investment by renewable companies and exactly what was going to happen
both in the loss of opportunity for new jobs and in actually having
jobs cut when there is not predictability.
Texas, one of the biggest investors from a wind production side,
could lose a future opportunity and existing jobs of upwards of 23,000;
Colorado, 10,000; Illinois, 8,000; Oregon, 7,000; Minnesota, 6,000
plus; Washington State, nearly 5,000 jobs are at stake. The list goes
on to other States that have made incredible progress in renewable
energies that are creating jobs, and all these jobs are at stake for
the future and some of them represent jobs where people are getting a
paycheck today. Instead, they will take our rebate check, if we pass
the House bill, and they will receive a pink slip because their jobs
are not going to be there anymore. That is why we have to pass this
package.
In fact, I want to give examples of two specifics where people will
actually lose jobs.
Noble Environmental Power is developing projects for wind in New York
and Texas, and they plan to construct two parks in New York State and
two in Texas. If the production tax credit is not extended, these
projects will not be built which will eliminate 1,200 full-time
construction jobs. That is 600 jobs in each State.
In addition, the company in its head count will be cut from 220 to
120 because they will also cut other jobs related to planning. In fact,
if we do not give them this predictability this year, in 2008, $200
million in orders for equipment will be canceled. That is stimulus, $20
million that will not be made because they do not have certainty and
they are going to cancel their plans for equipment.
Additionally, $18 million in engineering services are going to be
canceled because they do not have predictability in this Tax Code.
Again, if the production tax credit is not extended, 600 full-time
construction jobs will be eliminated in each State, New York and Texas.
Another example. Safeway, which is a major grocery store chain, is
planning on retrofitting additional stores with solar panels. Why are
they doing that? Because they know they can get offset rising energy
costs out of those solar panels. They are looking at 15 additional
stores with solar panels and injecting an additional $30 million into
the economy if the solar investment credit is extended. If it is not
extended, these jobs are going to be in jeopardy.
Here are companies trying to help us stimulate the economy, create
jobs, lower energy costs, and I am sure that helps with the bottom line
of food costs in America, and yet we are not giving them
predictability.
We also saw in my home State of Washington a company, Wellons, a
leader in wood-fired energy systems, say they are going to mothball up
to 20 projects unless they get the production tax credit. That means
that some of the 500 people in this particular company will be laid
off.
I think the Arizona Republic said it best. In fact, they had an
editorial this week that said:
The economic stimulus package from Congress . . . should
include an extension of tax credits for renewable energy
sources. For Arizona--
And I think this is similar for many other States, but Arizona is a
leader in this area--
the continued development of our solar industry is at
stake.
That is why we need these credits. We had today the Los Angeles Times
say:
Investors won't pump money into clean power if there is a
danger of losing their tax incentives . . . green technology
is an extremely promising growth industry that could help
make up for the loss of manufacturing jobs.
That is another editorial from today.
We know this, and yet we somehow want to pretend that the elimination
of these tax credits does not matter. I know it matters to Governors
because we have heard from the Governors of Iowa, Illinois, Indiana,
Kansas, Michigan, Minnesota, Missouri, Nebraska, North Dakota, South
Dakota, and Wisconsin:
We know that uncertainty of the future of a wind production
tax credit must be avoided if this burgeoning industry is
going to thrive in the years ahead.
So we are hearing from our Governors who are on the ground wanting to
approve these projects knowing how much they mean to their local
economies, and yet we are ignoring that.
We also heard from a growing industry partner, the American Corn
Growers Association. They said:
If President Bush will agree with the inclusion of the
production tax credit in the stimulus package, he will be
adding numerous jobs to our economy.
Why is that? Because this industry sees that this is a good partner.
It is actually helping them with additional revenue, and it is helping
those Midwest economies continue to grow.
What about the National Farmers Union, another organization, which
said:
Encourage your support including important renewable energy
tax incentives in the economic stimulus package currently
being considered by Congress.
The Farmers Union obviously knows this means jobs in their local
economy. But for them, it also means that instead of paying the high
prices of natural gas and not having any product compete with it, that
having renewable energy generate an additional 6,000 megawatts of power
can actually get alternative sources of electricity in the market and
lower the demand on natural gas and thereby lowering the price. That
helps lower the cost of fertilizer. It is critically important.
This past week, we had 41 Senators sign a letter, including 14 of my
colleagues on the other side of the aisle, who agree that:
Extending these expiring clean energy tax credits will help
ensure a stronger, more stable environment for new
investments and ensure continued robust growth in a bright
spot in an otherwise slowing economy.
I ask unanimous consent to have printed in the Record this letter of
bipartisan support.
There being no objection, the material was ordered to be printed in
the Record, as follows:
U.S. Senate,
Washington, DC, January 25, 2008.
Hon. Harry Reid,
Senate Majority Leader,
Washington, DC.
Hon. Max Baucus,
Chairman, Senate Committee on Finance, Washington, DC.
Hon. Mitch McConnell,
Senate Republican Leader,
Washington, DC.
Hon. Charles Grassley,
Ranking Member, Senate Committee on Finance, Washington, DC.
Dear Senators Reid, McConnell, Baucus, and Grassley: We
strongly support current bipartisan efforts to mitigate an
economic downturn by providing direct financial relief to
American families. At the same time, we believe that we must
be cognizant that energy prices have been a leading cause of
our current economic environment. Accordingly, we strongly
believe that we must provide a timely long-term extension of
clean energy and energy efficiency tax incentives that expire
at the end of this year. Given record energy prices and
growing demand, postponing action on these critical energy
incentives will only exacerbate the problems afflicting our
economy. In fact, these renewable energy and energy
efficiency investments have a verifiable record of
stimulating capital outlays and promoting job growth. We must
ensure that this impressive record is maintained in 2008 and
extend these tax credits expeditiously.
Over one hundred thousand Americans could be put to work in
2008 if clean energy production tax credits were extended in
the first quarter of this year according to industry
estimates. However, because the incentives are set to expire
this year. renewable energy companies are already reporting a
precipitous decrease in investment due to uncertainly.
Projects currently underway
[[Page S650]]
may soon he mothballed. Clean energy incentives for energy
efficient buildings. appliances and other technologies, as
well as additional funding for weatherizing homes. would
similarly serve to stimulate 2008 economic consumption, lower
residential energy costs, and generate new manufacturing and
construction jobs.
Failing to act on these crucial incentives could choke off
promising business investment in 2008 and miss an opportunity
to address high energy costs. a critical contributor to
sinking consumer confidence and our nation's long-term
economic challenges. Extending these expiring clean energy
tax credits will help ensure a stronger, more stable
environment for new investments and ensure continued robust
growth in a bright spot in an otherwise slowing economy. To
that end we look forward to working with you to extend these
critical tax incentives in context of encouraging economic
growth and vitality.
Sincerely,
Maria Cantwell; Olympia Snowe; Ron Wyden; Gordon Smith;
Amy Klobuchar; John F. Kerry; Ken Salazar; Debbie
Stabenow; Elizabeth Dole; Bernard Sanders; John E.
Sununu; Barbara Boxer; Wayne Allard; Robert Menendez;
Susan M. Collins; Tim Johnson; Byron L. Dorgan; Sam
Brownback; Russell Feingold; Arlen Specter; Barbara A.
Mikulski; Evan Bayh; Barack Obama; Patty Murray;
Hillary Rodham Clinton; Carl Levin; John Cornyn;
Sherrod Brown; Chris Dodd; Dianne Feinstein; Lisa
Murkowski; Norm Coleman; Chuck Schumer; Ted Stevens;
Frank R. Lautenberg; Patrick Leahy; Herb Kohl; Daniel
K. Akaka; Pat Roberts; Richard Burr; Ben Cardin.
Ms. CANTWELL. Mr. President, we also received letters from 13
different organizations that also support the inclusion of these
provisions in the tax package.
This is truly an opportunity for us to continue to stimulate the
economy in a key growth area, but my colleagues should not be fooled.
This is probably the only opportunity to do extend these credits before
they expire. We have had a dispute between the House and the White
House and Members of the Senate about how to move forward on these tax
credits. Some want them paid for while taking money from oil revenues.
Others, such as the White House, don't want them paid for at all.
This is an opportunity for us if we are going to do $150 billion
worth of investment in what we think is an economic opportunity to get
one of the best returns on investment in this stimulus package; that
is, to invest about $5 billion and see over $20 billion in new energy
investment in this country.
I hope my colleagues will consider this tomorrow and consider how
much we truly need these budding clean energy industries to grow and
thrive in our home States. Anyone who supports this industry has to
vote for the Senate Finance bill or we could very well miss a key
opportunity to stimulate our economy.
I yield the floor.
The PRESIDING OFFICER (Mr. Whitehouse). The Senator from Arizona.
Mr. KYL. Mr. President, I wish to speak to the amendment offered by
the Senator from Connecticut to the FISA bill, the Foreign Intelligence
Surveillance Act, the amendment that would strike provisions from the
bill that provide liability protection to those telecommunications
companies that were asked by our Government to assist us in a dire time
of need.
I begin by asking unanimous consent to have printed in the Record at
the conclusion of my remarks a letter to Senator Reid, dated February
5, 2008, and signed by Attorney General Mukasey and Director of
National Intelligence Admiral McConnell.
(See exhibit 1.)
Mr. KYL. Mr. President, next, I would like to quote a few passages
from this letter that relate specifically to this issue of liability
protection. They begin by noting:
Liability protection is the just result for companies who
answered their Government's call for assistance. Further, it
will ensure that the Government can continue to rely upon the
assistance of the private sector that is so necessary to
protect the Nation and enforce its laws.
The point of beginning with this reference is to note the fact that
what happened was that the U.S. Government, in the aftermath of 9/11,
went to certain kinds of telecommunications and asked for their
assistance in tracking down foreign terrorists, in providing
intelligence-gathering services to the U.S. Government. These companies
did not have a legal obligation to provide that support, but they
certainly, as good citizens of the United States, undertook to provide
the support, some of them in that capacity. The question is whether,
having done that in good faith, they should now be protected from
private lawsuits that have been filed against them or whether, as is
the historic tradition in such circumstances, they would be immune from
such lawsuits for volunteering to help the Government.
Here is a little bit of what Attorney General Mukasey and Admiral
McConnell wrote in the letter.
In its report on S. 2248, the Intelligence Committee
recognized that ``without retroactive immunity, the private
sector might be unwilling to cooperate with lawful government
requests in the future without unnecessary court involvement
and protracted litigation. The possible reduction in
intelligence that might result from this delay is simply
unacceptable for our Nation.''
The letter goes on to say:
The committee's measured judgment reflects the principle
that private citizens who respond in good faith to a request
for assistance by public officials should not be held liable
for their actions.
And that, in fact, has always been the common law rule in the United
States of America. The concern is not only to protect those who were
good enough to assist the Government in the past but also to ensure
that in the future companies can rely upon this type of protection
because of all of the situations in which they find themselves. It is
very difficult for people to do business with them if they believe they
might be hauled into court and all of the resultant effects of
litigation would extend to them.
In the letter that Attorney General Mukasey and Admiral McConnell
wrote to our leadership, they point out their objection to several
amendments and one of those amendments is specifically the one offered
by the Senator from Connecticut, striking the immunity provisions, No.
3907. They begin by discussing it in this way:
Extending liability protection to such companies is
imperative; failure to do so could limit future cooperation
by such companies and put critical intelligence operations at
risk. Moreover, litigation against companies believed to have
assisted the government risks the disclosure of highly
classified information regarding extremely sensitive
intelligence sources and methods. If any of these
amendments--
And they specifically refer to this amendment--
. . . are part of the bill . . . we, as well as the
President's other senior advisors, will recommend that he
veto the bill.
We know we need a bill to become law. We know what the President will
accept, and we know it would be unacceptable to strike the immunity
provisions as amendment No. 3907 would do. But let me continue to quote
from this letter, because the authors note something in addition to the
problem I identified, and I will state from it precisely:
This amendment also would strike the important provisions
in the bill that would establish procedures for implementing
existing statutory defenses in the future and that would
preempt State investigations of assistance provided by any
electronic communication service provider to an element of
the intelligence community. Those provisions are important to
ensuring that electronic communication service providers can
take full advantage of existing immunity provisions and to
protecting highly classified information.
In other words, this amendment doesn't simply strike the immunity
provisions but would also have this deleterious effect.
I want to quote from three other paragraphs of the bill, but I don't
want to exceed 10 minutes. Therefore, I would ask how much time I have
consumed.
The PRESIDING OFFICER. Five minutes has been consumed.
Mr. KYL. I thank the Chair.
Let me quote from three other paragraphs of the letter relating to
this amendment. The authors are referring to the Intelligence
Committee's extensive work on this particular aspect of the problem,
and they say:
After reviewing the relevant documents, the Intelligence
Committee determined that providers had acted in response to
written requests or directives stating that the activities
had been authorized by the President and had been determined
to be lawful.
The letter goes on to note:
In its Conference Report, the committee ``concluded that
the providers had a good faith basis'' for responding to the
requests
[[Page S651]]
for assistance they received. The Senate Intelligence
Committee ultimately agreed to necessary immunity protections
on a nearly unanimous bipartisan 13-2 vote. Twelve members of
the committee subsequently rejected a motion to strike this
provision.
The authors go on to note:
The immunity offered in S. 2248 applies only in a narrow
set of circumstances.
They note, for example:
A court must review this certification before an action may
be dismissed. This immunity provision does not extend to the
government or government officials.
In other words, they can still be sued.
And it does not immunize any criminal conduct.
This is critical to understand what the amendment does not do.
Let me quote from the final paragraph relating to this particular
amendment. Attorney General Mukasey and Admiral McConnell say:
Providing this liability protection is critical to the
national security. As the Intelligence Committee recognized,
``the intelligence community cannot obtain the intelligence
it needs without assistance from these companies.'' That
committee also recognized that companies in the future may be
less willing to assist the government if they face the threat
of private lawsuits each time they are alleged to have
provided assistance. The committee concluded that: ``The
possible reduction in intelligence that might result from
this delay is simply unacceptable for the safety of our
Nation.''
The authors then conclude:
Allowing continued litigation also risks the disclosure of
highly classified information regarding intelligence sources
and methods. In addition to providing an advantage to our
adversaries, the potential disclosure of classified
information puts the facilities and personnel of electronic
communication service providers at risk. For these reasons,
we, as well as the President's other senior advisers, will
recommend that he veto any bill that does not afford
liability protection to these companies.
This is, I guess one could say, the definitive word of what the
President is recommending and is willing to accept from the Congress.
It comes from the two individuals in our Government who have the chief
responsibility for our safety with respect to not only the protection
of American civil liberties but also the gathering of foreign
intelligence, and it extensively quotes from the report of the
committee itself, the Intelligence Committee, which it notes acted in a
bipartisan 13-to-2 vote to provide for this liability protection.
That is why it is so critical that when we have an opportunity to
vote, I gather tomorrow or whenever we have an opportunity to vote on
the amendment of the Senator from Connecticut, we reject that amendment
on the grounds that it is contrary to the Intelligence Committee's
actions, to the recommendations of the Attorney General and the
Director of National Intelligence, and to the President with respect to
the liability protection for these entities.
There is much we cannot discuss, because so much of this program is
of a classified nature. But I think everybody understands the
fundamental principle involved here, and that is: When citizens of the
United States are asked by their Government to assist, and they agree
to do that in good faith for the protection of citizens of the United
States of America, they should be protected from lawsuits that have
been filed. That is what the amendment of the Senator from Connecticut
would do is to eliminate that protection, and it is why the amendment
should be defeated.
I hope my colleagues are recognizing the seriousness of what these
two authors of this letter have said when they recognize the
seriousness of the potential consequences from failing to provide this
kind of liability protection and that we will support the Intelligence
Committee, we will support the intelligence community, and we will
reject the amendment of the Senator from Connecticut.
Exhibit 1
February 5, 2008.
Hon. Harry Reid,
Majority Leader, U.S. Senate, Washington, DC.
Dear Senator Reid: This letter presents the views of the
Administration on various amendments to the Foreign
Intelligence Surveillance Act of 1978 (FISA) Amendments Act
of 2008 (S. 2248), a bill ``to amend the Foreign Intelligence
Surveillance Act of 1978, to modernize and streamline the
provisions of that act, and for other purposes.'' The letter
also addresses why it is critical that the authorities
contained in the Protect America Act not be allowed to
expire. We have appreciated the willingness of Congress to
address the need to modernize FISA and to work with the
Administration to allow the intelligence community to collect
the foreign intelligence information necessary to protect the
Nation while protecting the civil liberties of Americans. We
commend Congress for the comprehensive approach that it has
taken in considering these authorities and are grateful for
the opportunity to engage with Congress as it conducts an in-
depth analysis of the relevant issues.
In August, Congress took an important step toward
modernizing FISA by enacting the Protect America Act of 2007.
That Act has allowed us temporarily to close intelligence
gaps by enabling our intelligence professionals to collect,
without a court order, foreign intelligence information from
targets overseas. The intelligence community has implemented
the Protect America Act in a responsible way, subject to
extensive executive branch, congressional, and judicial
oversight, to meet the country's foreign intelligence needs
while protecting civil liberties. Indeed, the Foreign
Intelligence Surveillance Court (FISA Court) recently
approved the procedures used by the Government under the
Protect America Act to determine that targets are located
overseas, not in the United States.
The Protect America Act was scheduled to expire on February
1, 2008, but Congress has extended that Act for fifteen days,
through February 16, 2008. In the face of the continued
threats to our Nation from terrorists and other foreign
intelligence targets, it is vital that Congress not allow the
core authorities of the Protect America Act to expire, but
instead pass long-term FISA modernization legislation that
both includes the collection authority conferred by the
Protect America Act and provides protection from private
lawsuits against companies that are believed to have assisted
the Government in the aftermath of the September 11th
terrorist attacks on America. Liability protection is the
just result for companies who answered their Government's
call for assistance. Further, it will ensure that the
Government can continue to rely upon the assistance of the
private sector that is so necessary to protect the Nation and
enforce its laws.
S. 2248, reported by the Senate Select Committee on
Intelligence, would satisfy both of these imperatives. That
bill was reported out of committee on a nearly unanimous 13-2
vote. Although it is not perfect, it contains many important
provisions, and was developed through a thoughtful process
that resulted in a bill that helps ensure that both the lives
and the civil liberties of Americans will be safeguarded.
First, it would establish a firm, long-term foundation for
our intelligence community's efforts to track terrorists and
other foreign intelligence targets located overseas. Second,
S. 2248 would afford retroactive liability protection to
communication service providers that are believed to have
assisted the Government with intelligence activities in the
aftermath of September 11th. In its report on S. 2248, the
Intelligence Committee recognized that ``without retroactive
immunity, the private sector might be unwilling to cooperate
with lawful Government requests in the future without
unnecessary court involvement and protracted litigation. The
possible reduction in intelligence that might result from
this delay is simply unacceptable for the safety of our
Nation.'' The committee's measured judgment reflects the
principle tha
