[Congressional Record: February 6, 2008 (Senate)]
[Page S686-S688]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr06fe08-144]
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FOREIGN INTELLIGENCE SURVEILLANCE ACT
Amendment No. 3913
Mr. HATCH. Mr. President, I wanted to briefly mention my opposition
to amendment No. 3913 offered by the Senator from Wisconsin. This
amendment relates to reverse targeting, which is a theory that the
Government could target a foreign person abroad when the real intention
is to target a U.S. person, thus circumventing the need to get a
warrant for the U.S. person. Quite simply, reverse targeting is already
considered illegal under FISA. Going even further, the Intelligence
Committee bill has a very explicit prohibition against reverse
targeting. The amendment offered by the Senator from Wisconsin adds
subjective language which completely alters the meaning of the original
bipartisan provision.
I asked Attorney General Mukasey this during a hearing on Wednesday,
and here is our exchange.
HATCH: Now the topic of reverse targeting has been
mentioned often during the FISA reform debate. From an
intelligence perspective, reverse targeting makes no sense.
From an efficiency standpoint, if the government was
interested in targeting an American, it would apply for a
warrant to listen to all of that person's conversations,
wouldn't it? Not just his conversations with terrorists
overseas?
MUKASEY: Correct.
HATCH: Now, I asked General Wainstein about this during the
Judiciary Committee hearing last October, and he reiterated
the government's view that FISA itself makes reverse
targeting illegal. Does the DOJ still consider reverse
targeting illegal under FISA?
MUKASEY: Absolutely.
HATCH: Are you aware of any instances of intelligence
analysts utilizing reverse targeting?
MUKASEY: I am not aware of any such instances.
We are enacting national security legislation, and it is our
responsibility to ensure that this bill does not lead to unintended
consequences which provide protections to terrorists. This amendment is
absolutely unnecessary, and I urge my colleagues to oppose it.
Amendment No. 3920
Mr. President, I wish to say a few remarks with regard to my dear
friend, Senator Whitehouse's amendment to authorize the FISC, the
Foreign Intelligence Surveillance Court, to assess compliance with
minimization techniques. I rise to express my opposition to the
Whitehouse amendment No. 3920.
My opposition to the Whitehouse amendment is related to the totality
of this bill. This is an amendment that greatly expands the Foreign
Intelligence Surveillance Court's jurisdiction. Keeping in mind that
the bill before us already expands FISC jurisdiction of foreign
collection to an unprecedented high historical level, this amendment
tips the balance and could lead to real-life instances of intelligence
analysts' operational decisions being second guessed by the court.
The original approach and goals of this legislation were simple and
twofold. Goal No. 1: Wire communications taking place in 2008 should
receive the same treatment as radio communications taking place in
1978; and goal No. 2: Our intelligence community's sources and methods
should not be subject to exposure by litigation brought about by
hearsay and innuendo.
I am pleased the legislation before us provides more protections to
American citizens than any intelligence bill in my recent memory, and
certainly more than the original FISA law.
Over the last several months, a great deal of attention has been
given to the FISC, the Foreign Intelligence Surveillance Court. The
FISC was created by the original FISA law, and its jurisdiction was
extremely limited by that law. Here is what the FISC was created to do.
Foreign Intelligence Surveillance Court: ``A court which shall have
jurisdiction to hear applications for and grant orders approving
electronic surveillance.''
This jurisdiction is purposefully limited, as the task of reviewing
applications to intercept electronic communications is among the most
important tasks our Government can do to protect our country and its
citizens. Terrorists have to communicate to plan and execute attacks,
and our interception of these communications is paramount to stopping
the next attack.
The jurisdiction of the FISC is greatly expanded by this legislation.
Combined with other provisions in this bill, the new oversight created
is prevalent and comprehensive. Since the breadth of this new oversight
is critical when determining the necessity of the amendment we are
debating, let's look at the oversight created by this legislation.
Let me read these five charts.
No. 1, for the first time the FISC will review and approve
minimization procedures used by the intelligence community.
No. 2, for the first time the FISC will review and approve targeting
procedures used by the intelligence community. The FISC will determine
whether the procedures are reasonably designed to ensure targeting is
limited to persons outside the United States.
No. 3, for the first time, a court order will be required to target
U.S. persons regardless of where they are in the world--for the first
time.
No. 4, for the first time the Attorney General and the Director of
National Intelligence will be required to assess the intelligence
community's compliance with court-approved targeting and minimization
procedures. These assessments must be provided to the FISC and
congressional Intelligence Committees.
No. 5, new congressional oversight--for the first time Congress is
creating statutorily required inspector general--that is the Department
of Justice and intelligence elements--semiannual assessments of
compliance with court-approved targeting and minimization procedures.
These assessments must be provided to congressional Intelligence
Committees.
Now, given the staggering amount of new oversight, we should be very
careful when creating mechanisms which could negatively impact our
intelligence analysts, particularly when these mechanisms provide no
benefit, in this case, to the privacy of American citizens.
The intelligence community has a great deal of experience in the
techniques used to minimize incidental communications, and very
detailed procedures for handling these communications are contained in
the United States Signals Intelligence Directive 18, which has been in
effect for over 28 years.
Remember, the Government is gathering information relating to foreign
intelligence in order to protect national security, not necessarily for
criminal prosecution. That is why different procedures are necessary.
Otherwise, all national security information gathering would be changed
to fit within the procedures of title III criminal wiretaps, which is
impossible.
Minimization techniques deal not just with retention and
dissemination, but with acquisition. Analysts make decisions up front
whether to acquire, keep, or share U.S. person information based on
whether it has foreign intelligence value.
This means if a judge is reviewing compliance with minimization
procedures, this review is much more than a factual check. The judge is
not limited to simply making sure that technical and administrative
guidelines are followed. Rather, this amendment could allow a judge to
question specific decisions by intelligence analysts on why they chose
to acquire, keep, or share certain communications.
Now this begs the question: Are judges better trained in intelligence
collection than the intelligence analysts whose job it is to repeatedly
perform this task? Not only do I think the answer is no, but we should
remember what the FISC said in their recently publicly released
opinion, which is only the third public opinion released in the history
of the Foreign Intelligence Surveillance Court.
Here is what the FISC said:
Although the FISC handles a great deal of classified
material, FISC judges do not make classification decisions
and are not intended to become national security experts.
Furthermore, even if a typical FISC judge had more expertise
in national security matters than a typical district court
judge, that expertise would still not equal that of the
Executive Branch, which is constitutionally entrusted with
protecting the national security.
Enactment of this amendment could result in judges making foreign
intelligence determinations in place of trained intelligence analysts.
Based on this unjustified scrutiny, our intelligence analysts could
become overly cautious when determining whether to
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deem information as having intelligence value in order to avoid
unwarranted judicial scrutiny. This could result in less foreign
intelligence information being accumulated, and thus could mean we may
miss a vital piece of information. Do we want to take this chance? That
is what this amendment would do. Should we risk this type of unintended
result?
In October of 2007, I asked Assistant Attorney General Wainstein if
putting the FISC judges in the position of assessing compliance would
effectively put the judge in the role of an analyst. Here is what he
said in response:
And that is the problem, that it would get the FISC in the
position of being operational to the extent that it's not
when it assesses compliance for, let's say, the minimization
procedures in the typical or traditional FISA context where
you're talking about one order, one person. Here, some of our
orders might well be programmatic, where you're talking about
whole categories of surveillances, and that would be a tall
order for the FISA Court to assess compliance.
The Whitehouse amendment also contains language which lets the FISC
fashion remedies it determines are necessary to enforce compliance.
This is very broad language and gives the court the ability to come up
with whatever methods it chooses to enforce compliance. Does this mean
that the FISC could shut down collection of information from foreign
targets overseas while the Government addresses technical issues which
have little to do with the privacy of American citizens? We do not
know, since this amendment does not answer this question. Remember, we
are talking about targeting foreign terrorists to prevent terrorist
attacks. This is not the same thing as wiretapping a cocaine dealer in
Los Angeles for criminal prosecution. If we approve an amendment which
creates numerous unanswered questions, we are putting Americans at risk
in unprecedented ways.
Given that the Government has adequately utilized minimization
procedures for many years, what is the pressing need for FISC expansion
into this area? There is no need to continue unlimited expansion of the
FISC into unsuitable areas.
If this amendment does not pass, it does not mean that American
citizens are not protected. Incidental communications of Americans will
continue to be minimized, and the minimization procedures will have
been approved by the FISC. But if the Whitehouse amendment passes, we
will be taking a great risk that the unnecessary judicial oversight
will cause very harmful unintended consequences that I have already
mentioned. We are too far along to introduce guesswork into the
carefully crafted compromise bill before us. I will oppose this
amendment, and I urge my colleagues to do the same.
Amendment No. 3930
Now, Mr. President, there is one other amendment I wish to refer to.
In October of last year, the Intelligence Committee passed a bipartisan
compromise bill which would modernize our foreign intelligence
surveillance activities. Unfortunately, this bipartisan bill contained
a 6-year sunset provision which would automatically curtail our ability
to protect our homeland unless Congress acted.
Let me be clear, I am opposed to any sunset in this legislation.
While I believe the inclusion of this sunset provision was not
appropriate, it was a result of the bipartisan negotiations in the
Intelligence Committee. Now this serves as yet another example that not
all of us who support this bill are happy with every provision, and
every Senator will need to make concessions to get this bill passed and
signed into law.
Given my opposition to any sunset, I will oppose the Cardin amendment
No. 3930, which would change the sunset from 6 to 4 years. Proponents
of this amendment have propounded several arguments, none of which
justifies this change. I am going to discuss three of those arguments
today.
The most common argument cited is that this legislation is too
technical and too complex to have a 6-year sunset. This is certainly a
complex bill, but this is not the first time the 110th Congress has
tackled complex issues. We have already waded through several different
and complex bills, such as immigration reform, ethics and lobbying
legislation, and even a vast energy bill.
We are not reinventing the wheel with surveillance law, as this is a
FISA modernization bill. But it is important to note how Congress has
previously legislated in this area. The 1978 FISA law made dramatic
changes to our surveillance laws and oversight mechanisms. While FISA
has been discussed extensively, what has not been stated nearly enough
is that the 1978 FISA had no sunset. Given that FISA had no sunset,
let's look at how Congress has previously legislated FISA amendments
with regard to sunsets.
Sunsets are not common in previous laws amending FISA. Other than the
PATRIOT Act and the PATRIOT Act reauthorization, seven of the eight
public laws amending FISA had no sunsets on FISA provisions, and the
remaining public law had a sunset on only one of those provisions.
Now, this statistic speaks for itself. What is so different about
this bill? I do realize it contains massive new congressional oversight
provisions which could possibly hinder our collection efforts, and that
we may need to revisit it for this reason. However, if this is the
case, we obviously do not need a sunset to do this. We can legislate in
this area whenever we want to.
A second reason I have heard that some support the Cardin amendment
is that this sunset will keep Congress more engaged. One of my
colleagues previously stated that a sunset ``gives Congress the ability
to stay involved.'' Congress should not need sunsets to stay involved.
We do not need legislative alarm clocks to go off in 4 years in order
to address national security. I wake up every day thinking about how we
might protect our fellow Americans. I certainly do not need a
sunsetting bill to remind me about national security and oversight, and
neither should my colleagues.
The final reason I have heard for a 4-year sunset is the idea that
the next administration should be given an opportunity to address this
issue and that a sunset fosters cooperation between Congress and the
White House. Along these lines, one of my colleagues previously stated:
Having a sunset gives us a much better chance to get cooperation . . .
between the Congress and the White House. Once again, the next
President can weigh in on this topic whenever and however he or she
wants to. And regarding the idea that we should include a 4-year sunset
to foster cooperation between two branches of Government--do we need a
statute to influence the separation of powers? I say to my colleagues
that the relationship between the branches of Government should be
fostered by natural restrictions contained in the Constitution of the
United States, not by an artificial sunset provision in an intelligence
bill.
The very idea of a 4-year sunset understates the importance of
timeline implementation of new legislation. It takes a great deal of
time to ensure that all of our intelligence agencies and personnel are
fully trained in new authorities and restrictions brought about by
congressional action. This is not something that happens overnight. We
cannot wave a magic wand and have our Nation's intelligence personnel
instantaneously cognizant of every administrative alteration imposed by
Congress. Like so many other things in life, adjusting for these new
mechanisms takes time and practice.
While certain modifications are necessary, do we want to make it a
habit of consistently changing the rules? Don't we want our analysts to
spend their time actually tracking terrorists, or is their time better
spent navigating administrative procedures that may be constantly in
flux?
I know my preference is that our analysts be given the time to use
the lawful tools at their disposal to keep our families safe.
I do not want to see them spending all their time burying their heads
in administrative manuals which change from day to day whenever the
political winds blow.
After all of the efforts by many in this body to write a bill that
provides a legal regime to govern contemporary technological
capabilities, I am certainly not alone in my opposition to a sunset
provision. In fact, my views are completely in line with what the
Senate has done in the past when amending FISA. The administration
strongly opposes a sunset, and Attorney General Mukasey confirmed this
opposition during last week's oversight hearing here in the Senate.
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The fact is that this administration will not be here to see this
sunset occur. Why would they care if there is a sunset in the bill or
not? Their opposition demonstrates that those who are in charge of
protecting our country know that a sunset is a bad idea and their
opposition is based in logic and practical application. The
administration knows that they will not be here, but the intelligence
analysts who protect our country will. These analysts are not
politically appointed, and do their job regardless of who the President
is or what party the President represents. They need the stability of
our laws to effectuate long term operations to prevent terrorist
attacks, not guesswork which could hinder intelligence gathering
practices.
We have already had a trial run with the 6-month sunset of the
Protect America Act. Enough of the quick fixes, let's have confidence
in the work product created by the nearly 10 months we have spent on
this issue. A shorter sunset gives us an excuse to not legislate with
conviction, and this is an excuse we should not make.
The 95th Congress had the ability to decipher complex problems and
pass FISA with no sunset, and the 110th Congress can certainly
modernize it without second guessing our capabilities by approving the
Cardin amendment. I will oppose this amendment, and I urge my
colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER. The Senator from Pennsylvania is recognized.
____________________
[Congressional Record: February 6, 2008 (Senate)]
[Page S688-S714]
FISA AMENDMENTS ACT OF 2007
The PRESIDING OFFICER. Under the previous order, the Senate will
resume consideration of S. 2248, which the clerk will report.
The bill 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.
Whitehouse amendment No. 3920 (to amendment No. 3911), to
provide procedures for compliance reviews.
Feingold amendment No. 3979 (to amendment No. 3911), to
provide safeguards for communications involving persons
inside the United States.
Cardin amendment No. 3930 (to amendment No. 3911), to
modify the sunset provision.
Feingold-Dodd amendment No. 3915 (to amendment No. 3911),
to place flexible limits on the use of information obtained
using unlawful procedures.
Feingold amendment No. 3913 (to amendment No. 3911), to
prohibit reverse targeting and protect the rights of
Americans who are communicating with people abroad.
Feingold-Dodd amendment No. 3912 (to amendment No. 3911),
to modify the requirements for certifications made prior to
the initiation of certain acquisitions.
Dodd amendment No. 3907 (to amendment No. 3911), to strike
the provisions providing immunity from civil liability to
electronic communication service providers for certain
assistance provided to the Government.
Bond-Rockefeller modified amendment No. 3938 (to Amendment
No. 3911), to include prohibitions on the international
proliferation of weapons of mass destruction in the Foreign
Intelligence Surveillance Act of 1978.
Bond-Rockefeller modified amendment No. 3941 (to Amendment
No. 3911), to expedite the review of challenges to directives
under the Foreign Intelligence Surveillance Act of 1978.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, I wish to make a few comments on the
amendment of the Senator from Wisconsin and what he referred to as the
``bulk collection'' amendment which he discussed yesterday and which is
amendment No. 3912. I would ask that this time be taken from the
opponents of the amendment, if that is all right with my vice chairman.
The Senator from Wisconsin is offering an amendment that he argues
will prevent what he calls ``bulk collection''. The amendment is
intended, as described by the Senator from Wisconsin, to ensure that
this bill is not used by the Government to collect the contents of all
the international communications between the United States and the rest
of the world. The Senator argues that the amendment will prevent ``bulk
collection'' by requiring the Government to have some foreign
intelligence interest in the overseas party to the communications it is
collecting.
I regret to say I must oppose this amendment strongly. I do not
believe it is necessary. I do believe, as drafted, the amendment will
interfere with legitimate intelligence operations that
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protect the national security of the lives of Americans.
In considering amendments today, we need to consider whether an
amendment would provide additional protections for U.S. persons and
whether it would needlessly inhibit vital foreign intelligence
collection. I do not believe the amendment, as drafted, provides
additional protections. Furthermore, intelligence professionals have
expressed their concern that this amendment would interfere with vital
intelligence operations, and there are important classified reasons
underlying that concern.
Let us review why the amendment is unnecessary. First, bulk
collection resulting in a dragnet of all the international
communications of U.S. persons would probably be unreasonable under the
fourth amendment. No bill passed by the Senate may authorize what the
fourth amendment of the Constitution prohibits. What is more, the
committee bill, in fact, explicitly provides that acquisitions
authorized under the bill are to be conducted in a manner consistent
with that same fourth amendment of the Constitution.
Second, the committee bill stipulates that acquisitions under this
authority cannot intentionally target any person known to be located in
the United States. And to target a U.S. person outside the United
States, the Government must get approval from the FISA Court.
Third, the committee bill increases the role of the FISA Court
overseeing the acquisition activities of the Government. The bill
requires court approval of minimization procedures that protect U.S.
persons' information. It maintains the prior requirement of court
approval of targeting procedures.
In the unlikely event the FISA Court would give its approval to
targeting procedures and minimization procedures that allow the
Government to engage in unconstitutional bulk collection, the committee
bill also strengthens oversight mechanisms in the executive and
legislative branches, such as requiring assessments by the inspectors
general in the Department of Justice and relevant agencies. These
mechanisms are intended to ensure that such activity is detected and
prevented.
The sponsor of the amendment says his amendment only requires the
Government to certify to the FISA Court that it is collecting
communications of targets for whom there is a foreign intelligence
interest. But the committee already requires the Attorney General and
the Director of National Intelligence to certify to the FISA Court that
the acquisition authorized under the bill is targeted at persons
outside the United States in order to obtain foreign intelligence
information. Because the remedy does not improve upon the protections
in the bill for Americans and places new burdens on the surveillance of
foreign targets overseas, I thus oppose this amendment and urge that it
be rejected.
I yield the floor and reserve the remainder of the opponents' time.
The PRESIDING OFFICER. The senior Senator from Missouri is
recognized.
Mr. BOND. Mr. President, I yield myself 6 minutes from the opposition
to the amendment No. 3979, the Feingold-Webb sequestration.
During yesterday's sessions and prior sessions, there have been,
regrettably, a number of inaccurate statements about the amendments we
debated. Several of these amendments go to the very heart and strike at
the very heart of foreign targeting. It is not an understatement to say
that if they are adopted, they could shut down our intelligence
collection and cause irreparable damage to our national security. So I
am compelled to set the record straight. Working with my colleague and
good friend, the chairman of the committee, Senator Rockefeller, we
want our colleagues to know what impact these amendments have.
We have made great progress in the Senate Intelligence Committee on
the FISA Amendments Act of 2008 in providing additional protections,
but we did so working with the intelligence community to make sure the
measures we put in the bill would actually work.
Now, the first amendment we debated was amendment No. 3979, the
sequestration amendment supported by and sponsored by Senators Feingold
and Webb. In explaining this amendment, supporters claimed the Protect
America Act was ``sold repeatedly'' as a way to collect foreign-to-
foreign communications without a court order and this amendment allows
this collection. We saw from the House RESTORE Act, which the DNI has
told us--the Director of National Intelligence, whom I will refer to as
the DNI--and from the debate on the Protect America Act that the focus
on foreign-to-foreign communications is misplaced. The Protect America
Act was intended to allow foreign targeting, just like this bill and
for good reason. We cannot tell if a foreign terrorist is going to be
calling or communicating with another foreign terrorist whether in some
other country or whether some of that communication may occasionally
come to the United States, and there is no way to tell. So it does no
good to give the intelligence community authority to collect only
foreign-to-foreign communication. You can't tell. That means you can't
collect on any without getting a FISA Court or a FISC order. That was
an impossible burden that the FISC judges told us overwhelmed and shut
down their operations and did not protect American citizens. Yet we
were told yesterday this amendment will not damage or slow down
collection.
This amendment will not just slow down collection; it will stop it.
It will stop it. In the words of one intelligence official, it would
``devastate our operations.''
Now, our bipartisan bill gives the intelligence community the ability
to target terrorists, foreign terrorists overseas. That targeting is
not, as has been suggested on the other side, ``dragnet surveillance.''
Rather, the intelligence community will be acquiring communications of
foreign terrorists, spies, and others who seek to do us harm. That is
not a dragnet; that is targeted. But if this amendment were to be
adopted, its unreasonable limitations will prevent the intelligence
community even from beginning the collection.
Now, I argued yesterday this amendment would prevent the intelligence
community from intercepting the communications of Osama bin Laden with
somebody in the United States. The Senator from Wisconsin disagreed,
calling my argument questionable and claiming the amendment in no way
hampers the ability to fight al-Qaida. That is not true. I find it
interesting because that is not what his amendment says. First, the
intelligence community can't even start the collection because there is
no way to know if a terrorist, including bin Laden, is going to call or
be called by a person in the United States. Second, from the amendment,
page 2, lines 10 to 16:
Such communications may be acquired if there is reason to
believe that the communication concerns international
terrorist activities directed against the United States, or
activities in preparation therefor.
That means if bin Laden were planning an attack against the United
Kingdom or against our foreign military bases or our foreign embassies
abroad and calls into the United States to talk with an associate, we
could not capture that call and protect our troops, protect our
citizens, protect our officers overseas, because under the terms of the
amendment, it does not concern activities directed against the United
States. Not only is the limitation dangerous, it is unwise, unhelpful,
and could lead to significant intelligence shortfalls.
Another dangerous aspect of the amendment is that it would foreclose
the collection of foreign intelligence relating to nonterrorist
threats. Our Nation faces daily threats, for example, from the
proliferation of weapons of mass destruction. I have an amendment that
deals with this issue specifically. What about North Korea, Iran, and
Syria? Under this amendment, none of that information could be
collected if the communication was to or from the United States. That
is a limitation that should make all of us uncomfortable. There is no
basis for it, it is unreasonable, and it could lead our country into
severe jeopardy.
The DNI and the Attorney General agree with my reading of the
amendment. Yesterday, we received a letter from them expressing their
views about these amendments. The DNI and Attorney General stated that
if this amendment is part of the bill presented to the President, they
would recommend a veto. They wrote this in their letter:
This amendment would have a devastating impact on foreign
intelligence surveillance
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operations; it is unsound as a matter of policy; its
provisions would be inordinately difficult to implement; and
thus it is unacceptable.
Ironically, this amendment is being advertised as the best way to
protect America's privacy. But a fundamental problem with the amendment
is that we can never know ahead of time what a communication says.
Let's think it through. In order to figure out whether the
communication concerns international terrorism, for example, an analyst
will have to review the content of it. That actually results in more of
an invasion of privacy than would ever occur under the standard
minimization procedures that NSA uses every day. That makes no sense if
we are trying to protect privacy.
Mr. President, it is news to me that the Intelligence Committee bill,
as claimed on the other side, has no judicial involvement and no
judicial oversight. I have said it before. This bill has more judicial
oversight and involvement in foreign intelligence surveillance than
ever before. There is court review and approval of the joint
certification by the Attorney General and the DNI and of the targeting
minimization procedures. If the court finds any deficiency in these
documents, the Government must correct it or cease the acquisition.
That is not an empty oversight.
The Intelligence Committee bill doesn't stop there. We took
tremendous care to make sure there were specific protections for
Americans' privacy in the bill. I suggest all Members look closely at
these protections: express prohibitions against reverse targeting,
against targeting persons inside the United States without a court
order, against conducting any acquisition that doesn't comply with the
fourth amendment. This bill goes further than ever before in ensuring
that there are protections for Americans in the area of foreign
targeting.
We heard the tired accusation that this bill will allow the
intelligence community to intercept communications of anyone; that it
gives ``unrestrained access to communications of every American.'' That
is just plain wrong. Communications of U.S. persons will be intercepted
only if those persons are talking to foreign terrorists or spies. And
because of the minimization procedures, only those specific
communications will be intercepted, and if they don't contain foreign
intelligence value, then they will be minimized or suppressed.
According to the Senator from Wisconsin, this amendment is necessary
because the minimization procedures in FISA are ``quite weak'' and
inadequate. I am sure the FISA Court judges who have reviewed and
approved these procedures would appreciate the implication that they
are doing a bad job of protecting the privacy of Americans. Ironically,
it is that same court that, under the Senator's amendment, will control
the Government's access and use of incidental communications.
Mr. President, I reserve the remainder of our time and yield the
floor.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, I will use some of my time on a couple
of these amendments. I know it must be difficult for the Chair to
figure out which time to apply to which amendments, but I will try to
identify them.
First, I will speak with regard to Feingold-Webb-Tester amendment No.
3979, which the Senator from Missouri was addressing. He referred to
our concern that the rights and privacy of Americans could be affected
by this bill as a ``tired accusation.'' I object to that
characterization. I think this is clearly the kind of thing we should
be worried about. I will tell you what is a tired accusation: the
notion that somehow our amendment would affect the ability of the
Government to listen in on Osama bin Laden. That is a tired and false
accusation. The Senator has said that if bin Laden or his No. 3 man--
whoever that is today, because we killed the last No. 3 man--calls
somebody in the United States, we cannot listen in to that
communication unless we have an independent means of verifying that it
had some impact on threats to our security from a terrorist threat.
That is what he claims, that we would not be able to listen in on that
conversation. That is false.
The Feingold-Webb-Tester amendment specifically does not require a
FISA Court warrant to acquire and disseminate the communications of any
foreigner overseas who is suspected of terrorism. Mr. President, there
is no separate threat requirement. The amendment merely requires that
the Government label terrorism-related communications that have one end
in the United States so they are traceable for subsequent oversight.
And it simply requires that when the Government accesses and
disseminates terrorist-related communications that it has already
acquired that the court just be informed with the brief certification.
I don't know where the Senator gets this bizarre idea that somehow you
cannot listen in on a conversation of Osama bin Laden. I don't think it
is credible to anybody that that would be the case.
Finally, he raises the concern that somehow we are insulting the FISA
Court, saying they are not doing a good job. To the contrary, we are
trying to give them the power to enforce their will. We are trying to
give them the ability to say: Wait a minute. You guys are not doing
what you said you were going to do. That is not an insult. That is
essential for the court to be able to do its job. Let's worry less
about the alleged and, frankly, false notions about the feelings of a
secret court and worry more about the rights and privacy of perfectly
innocent Americans.
Mr. President, I turn now to amendment No. 3915, another amendment I
offered known as the use limits amendment. As I explained earlier this
week, my amendment simply gives the FISA Court the option of limiting
the Government's use of information about information about U.S.
persons that is collected under procedures the FISA Court later
determines to be illegal. That is about as minimal a safeguard as you
can get.
It is unfortunate that some of those who oppose my amendment are
mischaracterizing what it does. The Attorney General and the DNI sent
the majority leader a letter yesterday in which they expressed their
objections to this amendment. Twice in the letter, they stated that
this amendment would place limits on the use of information that
doesn't concern U.S. persons. That is flat-out false, Mr. President.
The use limits proposed in this amendment specifically apply to
``information concerning any United States person.'' That is what it
says. Use limits in this amendment apply only under those
circumstances. There is nothing ambiguous about this language. These
patently false claims that the amendment applies to information about
non-U.S. persons just show the lengths to which opponents of the
amendment will go to generate opposition to this or any other
reasonable amendment.
We have also heard that the amendment would create a massive
operational burden. Mr. President, that also just isn't true. The
Government already does what is necessary to implement the use limits
in the amendment.
First, declassified Government responses to oversight questions of
the Congressional Intelligence Committees reveal that the Government is
already labeling communications obtained under the so-called Protect
America Act. So the Government already tracks which communications are
acquired under these particular authorities, which would be the first
step here.
Second, the Government already has to comply with minimization
requirements that are supposed to protect information about U.S.
persons. These requirements kick in whenever the Government wants to
disseminate any acquired communications that include information about
U.S. persons. That means intelligence analysts already have to
determine, before any communications collected under these authorities
can be used in any of the contexts we are talking about here, whether
they contain any information about U.S. persons. Indeed, the
administration constantly reminds us of this fact when claiming that
minimization requirements do enough to protect Americans.
Mr. President, given that the Government is already required and
equipped to examine any communications it proposes to use in order to
determine whether U.S. person information is present, the argument that
the amendment somehow imposes a massive new burden is very difficult to
understand.
Perhaps the explanation lies in the administration's repeated
statements
[[Page S691]]
that the amendment would put limits on the use of information about
non-U.S. persons. If this were true, then it is conceivable that my
amendment would create an additional operational burden. But those
statements are completely and utterly false, as I have explained. The
amendment explicitly states that the use limits apply to ``information
concerning any United States person''--information that is already
subject to minimization requirements.
I want to also address the argument the chairman of the Intelligence
Committee made that this amendment is somehow different than the
existing use limits for emergency surveillance. The chairman argued
that the amendment, unlike the emergency use limits, could affect
``thousands'' of communications. As I pointed out yesterday, the
amendment addresses that concern by creating a huge exception to the
use limitations, an exception that is not present in the emergency use
limits provision. Under the amendment, the FISA Court can allow the
Government to use even information about U.S. persons that is obtained
by unlawful procedures, as long as the Government fixes the problem
with the procedures. So, in fact, this amendment is far less
restrictive than the use limits for emergency surveillance, despite the
claim of the chairman otherwise.
Even more important, we have to remember what these thousands of
communications are. The only information that would be subject to use
limits is information about U.S. persons collected under illegal
procedures--procedures that failed to reasonably target people
overseas. The underlying bill prohibits the Government from collecting
this information in the first place. My amendment gives this
prohibition some teeth by limiting the use of information that has been
illegally collected.
The opponents of this amendment may argue that the government has no
intention of doing anything that would be unreasonable under the law.
My response is, if it does, there ought to be some enforcement. There
ought to be a way to make sure that doesn't happen, not just the
assurance of the chairman and vice chairman.
Moreover, if the Government has collected thousands of communications
illegally, isn't that all the more reason to try to contain the damage
and limit the impact on innocent Americans? That is not hamstringing
the Government; it is just requiring the Government to comply with the
law that we are actually passing.
My amendment simply provides an incentive for the administration to
follow the law as it is written. If we pass a law that has no
meaningful consequence for noncompliance with the law, I think we are
taking a real gamble as to whether the administration will choose to
comply. I am not personally willing to accept the odds on that one.
Once again, I urge my colleagues to support this amendment, and I
reserve the remainder of my time and yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia is recognized.
Mr. ROCKEFELLER. Mr. President, I ask my esteemed vice chairman if I
might have 6 minutes to oppose Senator Feingold's reverse targeting
amendment No. 3913.
Mr. BOND. I am happy to yield that time to the chairman.
Mr. ROCKEFELLER. The Senator from Wisconsin has an amendment that
requires a FISA Court order if the Government is conducting
surveillance of a person overseas, but a significant purpose of the
surveillance is to collect the communications of a person inside the
United States with whom the target is communicating.
I share the Senator's goal in protecting the privacy interests of
Americans, but I am afraid this amendment, as drafted, is unworkable
and unnecessary.
The amendment is described as a way to prevent reverse targeting--
circumstances in which the Government would target persons overseas
when its actual target is a person within the United States with whom
the overseas person is communicating.
The fact is, reverse targeting is prohibited under FISA today. I
repeat, it is prohibited under FISA today. If the person in the United
States is the actual foreign intelligence target, the Government must
seek a FISA order, and, in fact, the Government would have to have
every incentive to do so in order to conduct comprehensive surveillance
of such a person.
What is more, the base bill, S. 2248, makes the prohibition on
reverse targeting explicit. The Government cannot use the authorities
in this legislation to target a person outside the United States if the
purpose of such acquisition is to target for surveillance a person
within the United States.
In addition, the base bill, the Intelligence Committee bill, also
strengthens the protection of U.S. person information that is collected
in the targeting of foreign targets overseas by requiring that the FISA
Court approve the minimization procedures that apply to this collection
activity.
The Feingold reverse targeting amendment, however, goes too far. The
amendment would prohibit the Government from using the authorities of
this act ``if a significant purpose'' of the acquisition is to
``acquire the communications'' of a particular known person within the
United States. In order to acquire such communications, the Government
would be required to seek a regular FISA Court order.
The problem is that we are revising the Foreign Intelligence
Surveillance Act today in large measure precisely because we want the
intelligence community to have the ability to detect and acquire the
communications of terrorists who call into the United States. In other
words, in order to detect and prevent terrorist attacks, finding out if
a foreign terrorist overseas is in contact with associates in the
United States is actually a significant purpose of this legislation,
and it will always be a significant purpose of any targeting of a
foreign terrorist target overseas by the intelligence community.
As the Statement of Administration Policy--that is objections usually
that come over from the White House--points out:
A significant purpose of the intelligence community
activities is to detect communications that may provide
warning of homeland attacks and that may include
communication between a terrorist overseas who places a call
to associates within the United States. A provision that bars
the intelligence community from collecting those
communications is unacceptable.
Who is to say that person from overseas is not a terrorist and he is
contacting a person in the United States to discuss something which is
not in the national interest or which has intelligence implications?
You cannot in good conscience bar the intelligence community from
collecting these communications. That is unacceptable.
Again, reverse targeting is prohibited under current law. I think
that is the third time I have said that. Reverse targeting is
prohibited by the committee bill. The amendment is not needed to
achieve its stated goals. It will harm vital intelligence collection. I
urge the amendment be defeated.
I reserve the remainder of our time.
The PRESIDING OFFICER (Mr. Casey). Who yields time?
The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I will speak with regard to amendment
No. 3913, the one about which the chairman just spoke, the so-called
reverse targeting amendment I have offered. Reverse targeting is what
happens when the Government wiretaps persons overseas when what they
are really interested in is the Americans with whom these foreigners
are talking. I think most of my colleagues would agree that this bill
should not open up a backdoor to get around the requirement in FISA for
a warrant to listen in on Americans at home.
The lack of any substantive arguments against my amendment is made
clear by the letter the DNI sent on Tuesday. The arguments just offered
by the chairman were almost identical to the arguments offered by the
DNI and by the Attorney General. In fact, that letter, which severely
mischaracterizes the amendment, actually underscores why the amendment
is good both for civil liberties and for national security.
First, the letter confirms that reverse targeting is not, in fact,
prohibited by the underlying bill. We keep hearing the chairman and
vice chairman say it is already prohibited. It is not. The DNI writes
that the Intelligence Committee bill only prohibits warrantless
collection when the American is ``the actual target.'' That cannot be
read as a prohibition on reverse
[[Page S692]]
targeting. That is just a prohibition on direct targeting of an
American at home, and it does nothing to protect Americans from what
the DNI himself has said is unconstitutional.
Second, the letter cites ``operational uncertainties and problems,''
but it does not bother to identify what those are. Yes, my amendment
would require a new procedure, just like everything else in this bill,
but the Government should already have procedures to protect the
constitutional rights of Americans. If it does not, that is all the
more reason to adopt the amendment.
Third, the letter actually makes one of the strongest arguments in
favor of my amendment when it warns of insufficient attention to the
American end of an international terrorist communication. If a foreign
terrorist is talking to an American inside the United States, the
intelligence community should get a FISA warrant on that American so it
can listen in on all his communications, and it certainly would have no
problem getting that warrant. Without that warrant, the Government will
never get the full picture of what that American is doing or plotting.
Yet the DNI's letter seems to argue that the Government would not want
to get a FISA Court warrant to listen in on all the communications,
including the domestic communications, of a terrorist inside the United
States. I do not believe this is a serious argument, but if it were, it
would suggest that our Government is not doing everything it can do to
track down terrorists.
Finally, the letter seriously mischaracterizes the amendment. The
amendment does not bar acquisition of communications between terrorists
overseas and their associates in the United States. It does not in any
way affect the Government's ability to discover and collect those
communications. It does not apply to incidental collection of
communications into the United States, and it does not even apply when
the Government has identified a known individual with whom the foreign
terrorist is communicating. Only when a significant purpose of the
surveillance is to get information on a person inside the United States
does the Government need to get a court warrant. That is not just
required by the Constitution of the United States, it is how the
Government can most efficiently and effectively protect us.
I hope my colleagues will support this modest proposal to prevent
these new powers from opening a huge loophole to the requirement in
FISA that the Government get a court order to target Americans in the
United States.
Mr. President, I reserve the remainder of my time on this amendment,
and I yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Missouri.
Mr. BOND. Mr. President, I yield myself 3 minutes on amendment No.
3913.
It is interesting to hear that the proponent of this amendment thinks
the letter laying out the reasons against the amendment are reasons for
it. That is a trick I have not learned, to say that when somebody says
that the reverse targeting amendment would make it impossible when that
person and those people really represent the agency responsible and the
oversight body of the Department of Justice somehow makes their case.
I also call the attention of my colleagues to a statement from the
Civil Liberties and Privacy Office of the Office of the Director of
National Intelligence. In that statement, the Civil Liberties and
Privacy Office says:
Concerns have been raised that the PAA could result in the
interception of U.S. person communications. As explained in
the Department of Justice September 14 letter, and in a
letter by the DNI's Civil Liberties Protection Officer dated
September 17, 2007, U.S. persons' privacy interests are
protected through ``minimization procedures,'' which must
meet FISA's statutory definition. In addition, ``reverse
targeting'' is implicitly prohibited under existing law.
As a side note, Mr. President, this measure explicitly prohibits
reverse targeting, but the Privacy Office goes on to say:
The SSCI bill in addition requires review of minimization
procedures and explicitly prohibits reverse targeting. In
addition, the bill provides the FISA court with ongoing
access to compliance reports and information about U.S.
person disseminations and communications, and the explicit
authority to correct deficiencies in procedures. The bill
also requires annual reviews of U.S. person disseminations
and communications and extensive reports to Congress.
This is a clear statutory framework. As a practical matter, if there
was a desire to target someone in the United States, if that person was
thought to have foreign intelligence information and acting as an agent
of a foreign power, an officer, or employee, a FISA Court order is the
simplest way to do it. Nobody has explained how you can target a
foreign terrorist to get collections on a particular U.S. person unless
that person is engaged in a terrorist activity, and you have to target
an overseas person who has foreign intelligence information, and that
is the legitimate reason for making the collection against the foreign
target. No terrorist information. The information is minimized and not
used.
I yield the floor and reserve the remainder of the time.
The PRESIDING OFFICER. Who yields time?
Mr. BOND. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Pending Nominees
Mr. REID. Mr. President, I have a friend. I have known him for a long
time. His name is Steve Walther. Steve Walther was a very prominent
Nevada lawyer, a senior partner in a law firm, with qualifications that
are unsurpassed. I have always liked Steve very much. And he made a
comfortable living. I called him once and said: Steve, have you ever
considered doing something different?
A wonderful story about Steve, to show what a tremendously good guy
he is. He has a little boy named Wyatt. Steve married a woman and he
raised their children. They were his children once married, but he had
never had his own child. His wife went to the doctor, and she was
nearing 50 years old and was sick, and found out she was having a baby.
So late in life they had this baby, and I will never forget what she
said. She said: When I had my first two babies, time went by so slowly.
But she said: Now I am older and understand, and I want everything to
be fine, so I can't take enough time to make sure the baby is fine. And
the baby is fine.
Anyway, I said to Steve: You could afford to come back here. How
would you like to be a member of the Federal Election Commission? He is
not a Democrat; he is an Independent. He has done things for decades
with the American Bar Association, held all kinds of prominent
positions with the American Bar Association nationally. He said: OK, I
think it would be a good idea. Wyatt can come back and spend some time
in Washington. So he served for nearly two years on the Federal
Election Commission. Everybody said he was outstanding, as I knew he
would be.
Also on that Federal Election Commission, prior to the first of the
year, was another Democrat by the name of Bob Lenhard. He had served on
the FEC with Steve. He and Steve worked well together. They worked well
together with everybody on the Commission, and he and Steve did a good
job.
The Federal Election Commission is critically important because it
enforces our Nation's campaign finance laws. Both these nominees lost
their jobs at the end of last year because the Republicans refused to
permit a vote on their nominations to the FEC. They said they would not
allow an up-or-down vote on these nominations of Lenhard and Walther.
Nothing about their qualifications. They were both outstanding members
of the Federal Election Commission. The reason they would not allow a
vote on them is they would not allow a vote on their own nominee, a man
by the name of Hans von Spakovsky. They are filibustering their own
nominee.
I said: Let's vote on all of the FEC nominees, any order you want. We
will vote on ours first, last, we don't care. Let's just have a vote on
them. No. Unless we would guarantee von Spakovsky would pass, no. I
don't know if Mr. Spakovsky would pass. I suspect the Republicans don't
think so. But it seems fair to me that we should have votes on these
nominees.
[[Page S693]]
The record over the years is full of remarks by my Republican
colleagues characterizing the up-or-down vote as the gold standard of
reasonableness in Senate process. That is apparently not the view when
it comes to one of their nominees, who would actually stand a chance of
losing a vote. Republicans won't allow a vote on our Democrats unless
we approve this person. That doesn't make sense.
The reason these FEC nominees, including Steve Walther, have not been
approved rests squarely with the White House and the Republicans.
Mr. President, I ask unanimous consent to have printed in the Record
two editorials.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From the New York Times, Jan. 31, 2008]
While the Election Watchdog Wanders
The presidential campaign's heated fund-raising sweepstakes
finds lobbyists hurriedly ``bundling''--amassing additional
hundreds of thousands from donors to re-stake surviving
contenders for the next primary rounds. (Lobbyists reportedly
bundled $300,000 for Senator John McCain in one night in
Washington after his stock revived on the campaign trail.)
In packaging political influence by superlarge chunks,
money bundlers are at least as crucial to understanding where
candidates stand as their campaign vows. Fortunately for
voters, a new election law mandates the disclosure of the
names of lobbyists and other bundlers working the high-roller
realm of donations of $15,000 or more. Unfortunately for the
same voters, this vital law cannot yet be implemented.
A partisan standoff blocks the Senate from filling four
existing vacancies on the Federal Election Commission. The
six-member panel is powerless to form a quorum and write the
regulations needed to shed sunlight on bundling. Senator
Mitch McConnell, the Republican minority leader, is refusing
to allow individual up-or-down majority votes on nominees for
the commission. Mr. McConnell threatens a filibuster unless
they are voted on as a single package--an obstructionist
tactic to protect a highly unqualified Republican nominee,
Hans von Spakovsky, from rejection in a fair vote.
Mr. von Spakovsky is a notorious partisan who previously
served the Bush administration as an aggressive party hack at
the Justice Department. There, he defended G.O.P. stratagems
to boost Republican redistricting and mandate photo ID's in
Georgia--a device to crimp the power of minorities and the
poor who might favor Democrats at the ballot.
President Bush refuses to withdraw the von Spakovsky
nomination, while the Democrats demand he be considered on
his individual record, not yoked to three less controversial
nominees. We urge the Senate majority leader, Harry Reid, to
highlight this blot on democracy by moving the von Spakovsky
nomination as a separate measure and demanding a cloture
vote. Force the Republicans to either filibuster against
their own unqualified partisan or dare to vote for him in
broad daylight.
____
[From the Washington Post, Jan. 28, 2008]
Up or Down
``We need to get him to the floor for an up-or-down vote as
soon as possible,'' Sen. Mitch McConnell (R-Ky.) said of
Michael B. Mukasey, then the nominee for attorney general.
John R. Bolton ``deserves an up-or-down vote so that he can
continue to protect our national interests at the U.N.,'' Mr.
McConnell said of the nominee to be United Nations
ambassador. ``Let's get back to the way the Senate operated
for over 200 years, up-or-down votes on the president's
nominee, no matter who the president is, no matter who's in
control of the Senate,'' he said during the dispute over
judicial filibusters.
Mr. McConnell's devotion to the principle of up-or-down
votes for nominees, it turns out, has limits: Apparently
fearing defeat if a simple majority vote were allowed, the
minority leader has refused to accept Senate Democrats' offer
for such a vote on President Bush's choice for a Republican
seat on the Federal Election Commission. The consequence is
that, as the country begins an election year, the agency
entrusted with overseeing enforcement of the federal election
laws is all but paralyzed: Only two commissioners are in
place, meaning that the agency, six members when it is at
full strength, cannot initiate enforcement actions,
promulgate rules or issue advisory opinions.
The standoff involves Hans A. von Spakovsky, a former
official in the Justice Department's civil rights division
who had been serving as an FEC commissioner until his recess
appointment expired last month. Democrats and civil rights
groups argue, with some justification, that Mr. von
Spakovsky's tenure at Justice was so troubling that he does
not deserve confirmation to the FEC post. Some Democrats had
threatened to filibuster the nomination, but Senate Majority
Leader Harry M. Reid (D-Nev.) managed to offer an up-or-down
vote on each of the four pending nominations to the agency,
two Republicans and two Democrats. But Mr. McConnell and
fellow Republicans have insisted that the nominees must be
dealt with as a package, with no separate votes allowed. To
be fair to Mr. McConnell, the practice has been to vote on
FEC nominees as a package to ensure that the politically
sensitive agency remains evenly divided between the two
parties. But that has not been an absolute rule; indeed, the
last nominee who generated this much controversy, Republican
Bradley A. Smith, had a separate roll call vote and was
confirmed 64 to 35 in 2000. But Senate Democrats could commit
to a quick vote on a replacement nominee, if they were able
to muster the votes to defeat Mr. von Spakovsky.
We have suggested previously that it is more important to
have a functioning FEC than to keep Mr. von Spakovsky from
being confirmed. But Mr. McConnell ought to explain why the
up-or-down vote he deemed so critical in the case of Mr.
Mukasey, Mr. Bolton or appellate court nominee Miguel A.
Estrada is so unacceptable when it comes to Mr. von
Spakovsky.
Mr. REID. Mr. President, I can gather one thing from the President's
unwillingness to resolve the Federal Election Commission problem. That
is that they would rather have no election watchdog in place during an
election year.
The background on the FEC makes the call from Mr. Walther
particularly remarkable. Listen to this, now. It even gets better.
Steve Walther called to tell me he had been invited to the White
House by the President to push for his nomination. I got calls from
other people whom I had placed in the works to get approved by the
Senate. They were all invited to the White House tomorrow morning. All
nominees that the President has pending were invited to the White
House, Democrats and all. Why? To complain about the Democrats not
approving them.
This leads me to tell you a little experience I have had, and we have
all had, with this President. The President is in fact hoping to have
breakfast with all the nominees, Democrats and Republicans, now pending
in the Senate, in an effort to force the Senate to confirm all these
people. They must live in some alternative universe. I talked yesterday
about the Orwellian nature of this White House, and this is it. He has
invited people to the White House to complain about our not approving
them when they--the President and the White House--are the reason we
are not approving many of them.
He invited Mr. Walther, Mr. Lenhard and other Democratic nominees to
the White House, along with all his Republican nominees, to get them to
be a backstop, a picture, so he can come out and give one of his
Orwellian speeches that these people are not being approved because of
the terrible Democrats in the Senate. Actually, we are waiting for him
to allow us to have votes on a number of these nominees.
The President's breakfast only needed one attendee. Only one. That is
because only one nominee matters to this President. It should be an
intimate breakfast between President Bush and a man by the name of
Steven Bradbury. Why do I say that? I say that because of all the
nominees the President will profess to care about at this breakfast,
Steven Bradbury stands head and shoulders above all the others in the
President's esteem. I am not guessing; I was told so by the White
House.
Right before the Christmas recess, I called the President's Chief of
Staff, Mr. Bolten. A wonderful man; I like him; easy to talk to and
easy to deal with. I said: I tell you what, Josh. We are going to go
into recess, and why don't we have an agreement on who the President
wants to have recess appointed and, in fact, I will give you some
suggestions. You can have a member of the Federal Reserve Board of
Governors, you can have a Federal Aviation Agency, and you can have a
couple of other Chemical Safety Board members. I said: Not only that,
there are 84 other Republican nominees we will approve. There are 8
Democrats, 84 Republicans. Pretty good deal. He said: Let me check.
He called me back and he said: Well, what we want is to have a recess
appointment of Steven Bradbury. I said: Josh, I didn't recall the name.
Let me check. I checked with Chairman Leahy, I checked with Senator
Durbin, who is a member of that committee, I checked with Senator
Schumer, who is on that committee, and they and others said: You have
to be kidding. This is a man who has written memos approving torture,
and that is only the beginning.
[[Page S694]]
Senator Durbin--I don't know if he has time today--will lay that out
in more detail.
I called Josh back and I said: Josh, that man will never get
approved. He has no credibility. He said: Well, let me check with the
President. He called back and said: It is Bradbury or nobody. I said:
You are willing to not allow 84 of your people to get approved because
of this guy? He said: Yes, that is what the President wants.
Now there are 84 nominees, and among them somebody Secretary Chertoff
wanted badly. Secretary Chertoff called me personally on someone and he
said: You have to give us this person. We have important things to do
here. If I don't get her, they will send me somebody from OMB, and that
will be a person who doesn't know anything from anything. You have to
help me with this.
The head of Alcohol, Tobacco and Firearms, four Department of Defense
assistant secretaries, the Deputy Director of the National Drug Control
Policy, the Director of the Violence Against Women's Office, Assistant
Attorney General, Under Secretary of Commerce for International Trade,
Director of the Census, Solicitor for the Department of Labor--these
are only a handful of the jobs of the 84.
Now, these jobs, all Republicans, all names given up to us by the
President, are jobs these people have sought for their whole lives.
Head of the Census, head of the National Drug Control Policy, Director
of Violence Against Women's Office, Solicitor for the Department of
Labor. Nope, they are not going to have a job.
I thought about that. That was a decision the President made, willing
to throw 84 people under the bus, run over them, for one person he knew
he couldn't get. That is 84 plus the 4 he could recess appoint. So what
we did, we stayed in session during the entire holiday recess. But
before we went out, I thought to myself, I don't know these 84 people.
Some of them I have met, but these are jobs that are important to our
country, jobs that are important to these individuals and their
families. I made the decision that because the President is willing to
do what I think is so unfair, so unreasonable, that doesn't mean I am
going to be unfair and unreasonable. So I called Secretary Chertoff and
others and said: Just because your boss is unreasonable and unfair, I
am not going to be that way. So I am going to walk out on the floor and
approve every one of them, which we did. So for him to have that
meeting tomorrow takes about as much gall as I can even imagine, to
have a meeting where he brings in all the people who have not been
approved. And had I not been, in my own words, generous, he would have
had 84 more people he would have had to invite down there.
I can't imagine how he could invite Democrats down to the White
House. Several of them are being blocked in this body by Republicans.
Same goes for a number of Republican nominees. Democrats are willing to
approve them and Republicans stand in the way. Why would he invite them
down there also? But he did, because there is an Orwellian thought
process that goes on down there saying Democrats aren't allowing these
people to get approved, which is the direct opposite of the truth.
All for one person it appears, Mr. Bradbury. Whatever the White House
wants, Bradbury would give it to them in a legal opinion. We are not
going to accept that. What the President is trying to do with this show
tomorrow is so unreasonable, so unfair, and so out of step with
reality--as is the budget he gave us on Monday--that I hope the
American people understand what is going on in this country.
It is too bad we have a situation where the President of the United
States would have a meeting in the White House and invite everybody to
say: I am sorry you are not going to be approved, it is their fault,
when the truth is, it is his fault.
Now, here are the people we confirmed. They are right here. Everybody
can see them. We confirmed all of them. And had it been up to the
President, not a single one would have been confirmed.
The PRESIDING OFFICER. The assistant majority leader.
Mr. DURBIN. Mr. President, I am glad the majority leader has come to
speak about this issue. It is hard to imagine what is going through the
mind of the President that he believes he can make an argument tomorrow
with the meeting at the White House, that we have been unreasonable in
dealing with his nominations.
Senator Reid spelled out what happened. We tried, in many ways, to
get some balance in nominations. That is done all the time so
Republicans and Democrats will be appointed. It is done by both
parties. I have seen it in the years I have been around the Senate.
When Senator Reid made that offer in December, the White House said:
No, they would not do it unless they could have this one nomination,
Mr. Bradbury. And I will have to say I think Senator Reid went that
extra mile, an extra 84 miles, as a matter of fact, and he basically
said 84 of those Bush nominees would be confirmed.
The majority leader recounted several phone calls he received this
week from Democratic nominees to bipartisan commissions. I heard from
my friend, Tom Carper, not the Senator from Delaware but a friend of
mine from McComb, IL, who has been nominated to serve on the board of
directors of Amtrak.
Tom has been working on passenger rail issues for 20 years, 12 years
as mayor of the city of McComb, IL, which is served by Amtrak. As
mayor, he served as the chairman of the Amtrak Mayor's Advisory
Council. He received national recognition for his leadership on Amtrak
issues.
He saw firsthand the enormous potential that passenger rail service
can have for towns, such as McComb, small towns that might be
overlooked otherwise. He helped to make the potential of Amtrak service
a reality. We have such a success story of Amtrak in Illinois in the
last year or two, with dramatic increases in ridership. Tom saw this
coming and was a real leader. He convinced the State of Illinois to
double its State investment in Amtrak. He worked with a broad coalition
of passenger, business, labor groups, and elected officials to increase
Amtrak service across our State.
We are experiencing a renaissance in terms of passenger rail in our
State in a short period of time. Senator Reid was given an opportunity
to fill a vacancy on the Amtrak board. I asked him to consider former
Mayor Tom Carper of McComb, IL. He was kind enough to recommend him.
There are seven voting members on the Amtrak bipartisan board--three
Republicans, three Democrats, and the Secretary of Transportation.
Currently, there are four vacancies on the board, which means the board
does not have enough members for a quorum, and it forces the board to
conduct business via an ``Executive committee.''
On our last day of session in December, Senator Reid, I think through
great effort and courtesy, rose above the President's refusal to
cooperate on nominations and worked to confirm more than 80 nominations
in a single day. But we could have--and should have--confirmed at least
two more. Senator Reid and I worked together and offered to confirm two
nominees to the Amtrak board--one Democrat, Tom Carper, and one
Republican, both of whom had been favorably reported by the Commerce
Committee.
The Republicans objected. They insisted that we confirm one Democrat
and two Republicans or none at all. Now, this ``all-or-nothing''
approach is not new. We have seen this before when it comes to
nominations.
As the majority leader described, I think the most glaring example of
this is the nomination of Steven Bradbury to be Assistant Attorney
General. The majority leader was willing to allow additional
confirmations--and even recess appointments--for a number of
nominations.
I can tell you, having dealt with Senator Reid, he bends over
backward to be balanced in this approach. That is the way it has to be
in the Senate. That is the way the institution operates. But the White
House turned down his offer. They turned down his offer because of one
nomination, the nomination of Steven Bradbury.
It was clear this request, Mr. Bradbury, was going to be rejected.
Mr. Bradbury's nomination has been returned to the White House four
times since he was first nominated for the job in June 2005. What part
of ``no'' does the White House fail to understand?
Why does the President care so much about this one nominee that he is
willing to sacrifice all these other nominees? He is going to fill the
White
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House with people who are going to have this fine White House china in
front of them, sipping coffee and tea and eating little cookies and
complaining that somehow or another the Democrats in the Senate are
ignoring their need to serve our Government.
We are not ignoring it. Senator Reid has offered repeatedly to
confirm these nominees on a balanced basis, even giving the President
84 nominees without this balance. They have said: No deal unless we get
Steven Bradbury. He is the only appointment, clearly, who is important
to this administration. Why? What is it about this man? What would
possibly be in his background or his potential for future service that
would be so important?
Well, this is worth talking about for a minute. Steven Bradbury is
the head of the Office of Legal Counsel, also known as OLC. OLC is a
small office and most people have never heard of it, but it has a great
deal of power, especially in this administration. The Office of Legal
Counsel issues legal opinions that are binding on the executive branch
of Government.
In the Bush administration, OLC has become a rubberstamp for torture
policies that are inconsistent with American values and laws. In August
of 2002, the Office of Legal Counsel issued the infamous torture memo.
This memo sought to redefine torture, narrowing it to a limited
situation of abuse that causes pain equivalent to organ failure or
death. These words meant the United States was preparing to abandon
generations of commitment to outlawing and prohibiting torture. This
memo also concluded the President has the right to ignore the torture
statute, which makes torture a crime. This memo was official Bush
administration policy for years, until it was finally leaked to the
media, and the administration was forced to repudiate it.
Jay Bybee, who was then the head of the Office of Legal Counsel,
signed that memo. Unfortunately, Mr. Bybee was confirmed to a lifetime
appointment on the Federal bench in the Ninth Circuit before Congress
and the American people learned about his complicity in the creation of
this infamous torture memo, a memo that was repudiated by the Bush
administration once it became public.
Jack Goldsmith succeeded Jay Bybee as head of the Office of Legal
Counsel. Mr. Goldsmith is a very conservative Republican, but even he
was disturbed when he heard what was happening at the Office of Legal
Counsel.
As head of that office, he revoked the misguided OLC opinions dealing
with warrantless surveillance and torture. He decided those opinions
went too far.
Deputy Attorney General Jim Comey supported Mr. Goldsmith's actions.
Let me say a word about Mr. Comey. My colleague and friend for years,
Senator Schumer, first told me about Jim Comey when he was chosen to be
the Deputy Attorney General under Attorney General Ashcroft. Senator
Schumer told me Jim Comey was a straight shooter, an honest man who
would not compromise his principles in public service. He said I could
trust Jim Comey. During the period Jim Comey served in our Government,
Chuck Schumer was right. Jim Comey enjoys that reputation because he
earned it.
We now know what happened because it has come to light that there was
an infamous showdown at the bedside of Attorney General John Ashcroft,
who was hospitalized in an intensive care unit, where White House Chief
of Staff Andrew Card and former Attorney General Alberto Gonzales tried
to pressure a then-ailing John Ashcroft into overruling Jack Goldsmith
and his acts in the Office of Legal Counsel. It is hard to imagine that
they would go into a hospital wing, with the acting Attorney General
and with the President's Chief of Staff, to a man in an intensive care
unit and try to persuade him to sign a document to overrule Jack
Goldsmith.
Fortunately, Attorney General John Ashcroft, to his credit, refused.
When Jack Goldsmith finally left the Justice Department, the
administration realized they did not need any more trouble from the
Office of Legal Counsel, they needed someone in that office who would
not rock the boat, would not question their opinions, someone who would
rubberstamp their policies.
So, in June 2005, President Bush nominated Steven Bradbury to succeed
Jack Goldsmith--Steven Bradbury, the person who has now become the
centerpiece of the entire appointment agenda of the Bush
administration. Although Mr. Bradbury has never been confirmed in this
position, he has effectively been head of OLC for 2\1/2\ years.
In 2005, Mr. Bradbury reportedly signed two OLC legal opinions
approving the legality of abusive interrogation techniques. One
opinion, on so-called ``combined effects,'' authorized the CIA to use
multiple abusive interrogation techniques in combination.
According to the New York Times, then-Attorney General Alberto
Gonzales approved this opinion of Mr. Bradbury over the objections of
then Deputy Attorney General Jim Comey, who said the Justice Department
would be ashamed if the memo became public.
Mr. Bradbury also authored and Alberto Gonzales approved another
Office of Legal Counsel opinion, concluding that abusive interrogation
techniques, such as waterboarding, do not constitute cruel, inhumane or
degrading treatment. This opinion was apparently designed to circumvent
the McCain torture amendment. I was proud to cosponsor John McCain's
torture amendment. We are in the midst of a Presidential campaign, and
I suppose you have to be careful as a Democrat saying anything positive
about a man who may be the Republican nominee.
But I could not think of another Senator who could speak with more
authority on interrogation and torture than John McCain, who spent over
5 years in a Vietnam prison camp. He came to this floor and made an
impassioned plea for us to make it clear that torture would not be part
of American policy.
In the end, he won that amendment by a vote of 90 to 9, an amendment
which absolutely prohibits cruel, inhumane or degrading treatment.
Steven Bradbury, now infamous for his role in memo after memo relating
to torture, felt he found a way, through an opinion, for the
administration to avoid the impact of the law the President signed, the
McCain torture amendment.
That is what this is about. This is not a casual situation where I
find Mr. Bradbury personally offensive. We are going to the heart of a
question as to whether this man can serve this country in this critical
position in the White House based on what we have seen over and over
again: his complicity in some of the most embarrassing chapters in this
administration, including some that have been publicly repudiated.
Last fall, while the Senate was considering the nomination of Judge
Michael Mukasey to be Attorney General, the judge pledged to me in
writing that he would personally review all of the Office of Legal
Counsel's opinions dealing with torture. He said he would determine
whether each of these opinions can be provided to Congress and whether
he agreed with the legal conclusions of each of these opinions. This
promise made by Attorney General Mukasey to me, to the Judiciary
Committee, and to the Senate is a matter of public record.
Last week, Attorney General Mukasey appeared before the same
Judiciary Committee for the first time since he was confirmed. I asked
him point-blank whether, as he had promised, he had reviewed all of the
OLC torture opinions. I specifically asked him about Steven Bradbury's
``combined effects'' opinion, which Jim Comey said would shame the
Justice Department if it became public. Sadly, the Attorney General
said he had not reviewed those opinions. He realized that he had made a
promise to me that he would, and we left it at that. He did acknowledge
in the course of his testimony how much he respected Jim Comey, how he
had turned to him for advice and believed he was an honorable man. I
feel the same. I trust that Attorney General Mukasey is also an
honorable man who will keep his word.
In the meantime, while all of this continues, Steven Bradbury remains
as the effective head of the Office of Legal Counsel, even though it
has been 2\1/2\ years since he was nominated and he has never been
confirmed. Legislation known as the Vacancies Reform Act prohibits a
nominee from serving for this long without confirmation. It makes a
mockery of the confirmation process that Mr. Bradbury assumes a role he
has never been given under the law. Apparently, he is so important to
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the Bush administration, they are willing to violate this law to keep
him in his position, and they are prepared to toss overboard scores of
nominations which could be approved by this bipartisan Senate if they
would only relent on this nominee, who is obviously not going to be
approved. The fact that Mr. Bradbury continues to serve as the
effective head of the Office of Legal Counsel appears to be an attempt
to circumvent the confirmation process in order to install this
controversial nominee in a key Justice Department post in the closing
days of this administration.
Ironically, the Vacancies Reform Act to which I referred was passed
by the Republican-controlled Congress in 1998 to limit the ability of
then-President Clinton's nominees to continue to serve in an acting
capacity. The legislation was specifically targeted at Bill Lann Lee,
the first-ever Asian-American head of the Civil Rights Division.
Apparently, the Bush administration is ignoring the very law which a
Republican Congress passed to make it clear that the President does not
have the authority to appoint people like Steven Bradbury in an acting
capacity without confirmation.
Why has Mr. Bradbury not been confirmed? For years, the Justice
Department has refused to provide Congress with copies of the opinions
Mr. Bradbury authored on torture. Mr. Bradbury has refused to answer
straightforward questions from myself and other members the Judiciary
Committee regarding his role in this.
Here is what I said in November 2005 about Mr. Bradbury's nomination:
Since the Justice Department refuses to provide us with OLC
opinions on interrogation techniques, we do not know enough
about where Mr. Bradbury stands on the issue of torture. What
we do know is troubling. Mr. Bradbury refuses to repudiate
un-American and inhumane tactics such as waterboarding.
As I have said before, I believe that at the end of the day, when the
history is written of this era, there will be chapters that will not be
friendly to this administration.
In past wars, Presidents of both political parties have been guilty
of excessive conduct, in their own view, as part of national security.
One can remember the suspension of habeas corpus by President Lincoln
during the Civil War, the Alien and Sedition Act of World War I, and
the Japanese internment camps of World War II. All of these examples,
as we reflect on them in history, do not reflect well on this country.
Decisions were made which many wish could be undone. The same is likely
to be true when it comes to the issue of torture and the war on
terrorism under the Bush administration; this issue of warrantless
surveillance, where for years, literally, this administration went
beyond the law and attempted to intercept communications when they
could have come to Congress and received bipartisan support for an
approach which would have kept America and our Constitution safe.
Yesterday, we learned why Steven Bradbury is so important to the
White House. We also learned why he refuses to condemn waterboarding.
It was Super Tuesday, so a lot of political minds were focused on other
places and other things. Unfortunately, it didn't get a lot of
attention, but every American should know what happened yesterday on
Capitol Hill.
In testimony before the Senate Select Intelligence Committee, CIA
Director Michael Hayden acknowledged that the United States of America
has used waterboarding, a form of torture, on three detainees.
Waterboarding, or simulated drowning, is a torture technique that has
been used since at least the Spanish Inquisition. It has been used by
repressive regimes around the world.
Every year, the State Department issues a report card on human rights
in which we are critical of other countries that engage in what we
consider to be basic violations of human rights. Included in those
basic violations is torture of prisoners. Included in that torture is
waterboarding. So once a year we stand in judgment of the world and
condemn them for engaging in waterboarding and torture techniques on
their prisoners. Yet it is clear from the testimony yesterday of
General Hayden that we have engaged in some of those techniques.
Following World War II, the United States prosecuted Japanese
military personnel as war criminals for waterboarding American
servicemen. The Judge Advocate Generals, the highest ranking military
lawyers in each of the U.S. military's four branches, have stated
publicly and unequivocally that waterboarding is illegal.
Now the United States of America has acknowledged engaging in conduct
that we once prosecuted as a war crime. This is unacceptable.
Yesterday, I sent the Attorney General a letter. I wanted to spell
out clearly for him, so there is no misunderstanding, why it is
important that he respond to several requests which I have made for
information. At the heart of it is a good man, a judge named Mark
Filip, who serves in the Northern District of Illinois, a man whom I
supported for his confirmation as a Federal judge and who has received
positive reviews for his service on the bench.
Attorney General Mukasey would like Judge Filip to be his Deputy
Attorney General. That is a good choice. But I have said to the
Attorney General, there is only one thing between my enthusiastic vote
for Mark Filip and his remaining on the calendar: The Attorney General
has to respond to inquiries I have made, some of which were made months
ago, on this critical issue of torture. I wanted to make certain that
there was real clarity in my request. So I sent a letter to the
Attorney General yesterday and said: Here is exactly what I am looking
for, the letters we have sent, the questions we have asked, and I want
you to respond to them. I hope I receive that response by the end of
the day. If I receive that response and it is a good-faith response,
even if I disagree with it, if it is a good-faith response, then Judge
Filip can move forward. I hope he will. It is now in the hands of
Attorney General Mukasey.
Let me highlight two of the questions I am asking: First, does
Attorney General Mukasey agree with the legal conclusions of the Office
of Legal Counsel torture memos written by Steven Bradbury, that Jim
Comey believes the Justice Department would be ashamed of if they were
made public? Second, will the Justice Department investigate the
administration's use of waterboarding to determine whether any laws
were violated? I didn't call for prosecution but simply for an honest
investigation.
I recognize the Bush administration wants to confirm Steven Bradbury,
to ensure they have a firewall to protect their torture policies. But
what is at stake here is more important than this one nominee. This is
about who we are as a country. This is about the United States, our
values, our standards of conduct. This is about whether the United
States can, with a straight face, be critical of regimes and countries
around the world that engage in abusive interrogation techniques. This
is about whether we protect American soldiers and American citizens
from torture by unequivocally condemning those forms of interrogation.
The United States cannot be a country that defends a practice which the
civilized world has considered torture for over five centuries.
Democrats are willing to work with the President, in a bipartisan
manner, to confirm nominations. But the President's response to the
majority leader's work in confirming more than 80 nominations in
December by renominating Steven Bradbury last month is not encouraging.
If the President truly wants to confirm his nominations, he should not
be pouring coffee and tea at the White House.
He ought to have his Chief of Staff, Mr. Bolten, pick up the phone
and say: Let's get down to business. There are important Democrats and
Republicans who can be appointed tomorrow if the President will
understand that the entire fate and future of his administration should
not hang on this one nominee, Steven Bradbury, who has been implicated
in some of the most questionable practices of this administration. I
hope the President and his Chief of Staff, after they have had their
coffee with these potential nominees, will pick up the phone and work
with us for the right result.
I yield the floor.
The PRESIDING OFFICER (Mr. Menendez). The Senator from Alabama.
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Mr. SESSIONS. Mr. President, I would like to share some thoughts on
the FISA legislation. It is critically important, and we need to pass
the Intelligence Committee bill.
I will first say, in response to my able colleague from Illinois,
that General Hayden's comments in which he indicated three people had
been subjected to waterboard torture are something we ought to think
about. First, I am glad, as he said and has been repeated,
waterboarding was only used three times early on after 9/11 against
some of the most dangerous people we have ever dealt with.
As a result of the debate and discussion about that, we had an
amendment on the floor of the Senate, which Senator Kennedy offered to
the Military Commissions Act in 2006, to prohibit waterboarding. It
failed 46 to 53. We have a statute that does prohibit torture--Congress
passed it overwhelmingly and it was supported by Senators Kennedy,
Leahy, Biden, and others--that defined torture as infliction of severe
physical or mental pain or suffering. I am glad we are no longer
utilizing waterboarding. I hope we never have to do it again.
I just want to say to my colleagues, be careful how you portray the
United States around the world.
Mr. Goldsmith, who has been quoted here and previously testified
before our committee, has written a book. He said this war on terror
has been the most lawyered war in the history of the Republic. Lawyers
have been involved in everything. Great care has been given to ensure
the law was followed. To compare waterboarding of 3 individuals to what
was done to American prisoners by the Japanese in World War II is just
unthinkable. To date, not a single prisoner whom we have captured in
the War on Terror has died, to my knowledge, in American custody--maybe
or one or two from some disease, but certainly not from abuse.
I just finished reading the book ``Hells Guest'' by Mr. Glenn Frazier
from Alabama, a Bataan Death March survivor. About 90 percent of those
prisoners died. They starved to death. They were beaten on a regular
basis and abused in the most horrible way.
To even compare what was done to American soldiers wearing a uniform
lawfully being a combatant to what has been done to a few people
without any physical or permanent injuries is not fair. It is part of a
rhetoric designed for political consumption at home that has
embarrassed our country around the world and led decent people around
the world to believe our military is out of control and we are
systematically abusing and torturing prisoners when it is not so. We
ought to be ashamed of ourselves to go on again and again about it.
We continue to be confused. Our country faces very real dangers.
Terrorists are determined to damage this country. It is not just talk.
We know it is true. They have done it before. They have attacked us
around the world. They attacked us repeatedly before 9/11, and they
desire to destroy our country.
Our administration made a decision after 9/11 that we could not treat
these kinds of military attacks, designed to destroy our country by
organized foreign forces, as normal law enforcement. I was a former
Federal prosecutor. In a criminal prosecution, you try to catch people
after they have committed the crime. But these acts are so horrible
that the nature of them is such that they are acts of warfare and not
crimes, and they need to be treated in that fashion. We remain somewhat
confused about it. So the old policy meant you would investigate after
the crime was committed. It was basically a stated or implicit policy
of the Clinton administration. We cannot return to that kind of
strategy.
One of the most important legal powers and authorities we have to
defend America is the Foreign Intelligence Surveillance Act. It has
played a key role in preventing subsequent attacks on U.S. soil for the
last 6 years. We are dealing with very real, very imminent threats, and
we must continue to assist the fabulous military and intelligence
personnel who are working this very moment long hours to protect our
Nation.
I have visited our National Security Agency and met with the people
who gather the intelligence under this act. They love America. These
are not people who are trying to harm our country and deny us our
liberties. They are sterling individuals who carefully follow the rules
we give them. They follow the rules. They say they cannot continue
effectively to do their job unless we pass this legislation. They
cannot continue to do what they need to do.
The terrorists waging war against our country do not fight according
to the rules of warfare, international law, moral standards, or basic
humanity. They have even, in recent days, apparently used mentally ill
women as suicide bombers, setting off bombs that have resulted in the
deaths of other people, as well as the poor people who had the bombs
strapped to them.
So, historically, we have provided the protections of the Geneva
Conventions only to those whose conduct falls within the rules of war,
those who fight under a flag of a nation, who wear uniforms against
other organized military units. However, under a twisted rationale,
predicated on the belief by some that we are not fighting a real war,
we have given more rights to these individuals, who flatly reject any
rule of war, than we have provided to legitimate prisoners of war who
have followed the rules of war. We have done that in a number of
different instances--it is sort of amazing to me--including providing
them with habeas corpus relief to go to Federal court. These are not
traditional prisoners of war, but prisoners who are unlawful enemy
combatants. So we have endangered, sometimes I really believe, not only
our troops, who put themselves in harm's way--and are in harm's way
right now--to carry out the policies we gave them, but innocent
Americans here at home.
We have to keep this threat in the forefront of our minds. These are
individuals dead set on the destruction of our country at any cost.
There is nothing they will not do.
Let me state that the FISA law should be made permanent. It should
not merely be extended with another sunset provision. It is a
fallacious argument to claim we cannot revisit a law unless there is
some sunset when it ends. As Members of this Congress, it is incumbent
upon us to continually review legislation we pass to ensure that the
laws are accomplishing the goals set forth and that no unintended
consequences occur. There is no sound reason to pass critical
legislation such as the Protect America Act and slap an expiration date
on it.
Fighting the war on terror is a long-term enterprise that requires
long-term institutional changes. As the Vice President said in a recent
speech:
The challenge to the country has not expired over the last
six months. It won't expire any time soon, and we should not
write laws that pretend otherwise.
The Intelligence Committee bill is a collaborative, bipartisan
compromise that was crafted in consultation with members of the
Intelligence Committee, the Director of National Intelligence, the
Department of Justice, and the intelligence community after months of
negotiation and review of highly sensitive information, most of which
was classified, secret, about the current surveillance procedures and
how they were being used by the Government to obtain critical national
security information. We cannot overstress that the committee most
intimately involved with this process and the electronic measures being
utilized voted their bill out by an overwhelmingly bipartisan 13-to-2
vote.
Remember, it has been over 6 years 4 months since the terrible
attacks of September 11, and we may be most thankful that not one
attack has been carried out on our soil since that day. As we move
further from that dreadful day, I fear our memories have begun to fade.
Otherwise, there is no sound justification for doing anything other
than reauthorizing the Protect America Act, which would allow the
intelligence community to simply continue, uninterrupted, their work
which has been protecting this Nation and can continue to protect it in
the future.
After the intelligence Committee passed a bill, the Senate Judiciary
Committee, of which I am a member, got involved and produced a partisan
bill. We already voted to table the partisan Judiciary substitute, and
we debating the bipartisan Intelligence Committee bill. Let me point
out, however, something that happened in the Judiciary Committee. The
bill produced by
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the committee was given very little process during one committee
meeting where 10 Democratic amendments were accepted along a strict
party-line vote, and the bill itself, ultimately, was voted out with
only Democratic support. No Republican voted for it. It was a purely
partisan bill.
Strikingly, the one vote that garnered bipartisan consideration was
against an amendment that was offered by Senator Feingold to strip the
retroactive liability protections found in section 2 of the
Intelligence bill.
We had a discussion and vote on whether the liability protections to
keep the companies that helped us and responded to Government
requests--whether they should be sued for doing so--should be stripped
from the bill. We voted in the Judiciary Committee, 12 to 7, to follow
the recommendation of the Intelligence Committee bill that they passed
13 to 2, and keep the limited liability protections. So it was a 12-to-
7 vote to defeat the Feingold amendment that would have removed those
liability protections.
Directly after that vote, however--it was curious how it all
happened--but directly after that vote, Chairman Leahy moved to report
only Title I of the Judiciary substitute bill out of Committee. When
that passed, that effectively stripped the liability protection
provisions the committee had just voted to keep.
The point is that the Democratic-controlled Judiciary Committee, when
voting directly on removing retroactive liability, voted 12 to 7 to
keep it. But by the time we passed out the Judiciary Committee's
version of the bill, we had taken it out. I'm not sure people fully
understand how that occurred, but it certainly was an odd thing that it
passed out of committee without liability protection, when we
specifically voted to keep that language in the overall bill.
Now, the main area of disagreement is over this important question
that will be coming up, I understand, in the amendment offered by
Senator Dodd, amendment No. 3907--and a Specter-Whitehouse amendment
that will allow substitution--which will, in effect, allow litigation
to continue against telecom companies that responded to the requests of
the Attorney General of the United States, certified by the President.
So our disagreement is whether we should provide these good corporate
citizens who cooperated with a formal written request by the Attorney
General of the United States, certified by the duly-elected President
of the United States, to provide information for a surveillance program
implemented shortly after the attacks on September 11--and at that
point in time, we did not know how many terrorist cells there were in
the country and what plans they may have had.
Now, the nature of the program is highly classified, but after an
uproar of complaints, the procedures were studied carefully by
Congress, and we reacted by giving approval to the program in passing
the Protect America Act overwhelmingly last August. I did not want to
be too lighthearted about it, but I remember all the brouhaha that this
program was somehow wrong and had to be eliminated, and people made all
these unsubstantiated allegations. But after we went in great depth, we
found, as Mr. Goldsmith said, that the lawyers have been on top of this
since day one. It was a carefully constructed program. A court opinion
issues last spring caused us to not be able to continue the way it was
being done, and the Intelligence community asked us for legislation so
it could continue. The Congress passed the Protect America Act this
summer, but it was a short-term bill that lasted only 6 months.
All I would want to say is, nobody apologized to President Bush or
the Attorney General of the United States or the people at the National
Security Agency for all the bad things they said about them. After
having studied what they did, we concluded it is constitutional and
legal and proper and necessary, and we actually passed a law to
authorize it to continue.
But still, there have been over 30 lawsuits now filed against telecom
providers for their alleged participation in the terrorist surveillance
program--30 lawsuits. Analysis of these lawsuits leads only to the
conclusion that the plaintiffs are substituting speculation and a
fevered brow for fact and are ignoring the dangerous consequences these
lawsuits can have on our national security.
I do not know who is actually filing these lawsuits. I will just say
this, parenthetically: Last October, before the last election, Lancet
magazine produced a report--a medical magazine in England--that said
500,000 to 700,000 Iraqis were killed by the American military in Iraq.
And ABC, CBS, and our Democratic colleagues all raised cane that,
unbelievably, we would kill this many people. After the election was
over--and by the way, the guy who wrote the report said he wanted to be
sure it came out before the election--we learned some things about it.
In a fabulous article in the National Journal, an unbiased magazine,
they detailed the fraudulence of that article, and pointed out that
even an antiwar group said, at most, it was 50,000, not 500,000 or
700,000. And where did they find out the money for the Lancet article
came from? George Soros, and the MoveOn.Org crowd. The ``blame America
first'' crowd. Well, I don't know who is actually funding these
lawsuits. We ought to ask some questions about it. Certainly there is
no indication that anybody's liberties have been impacted adversely.
If these suits are allowed to continue, we face a number of problems.
The sources and methods relied on by our intelligence community to
conduct surveillance are highly classified, and if these lawsuits are
allowed to proceed, even allowing for the Government to be substituted
for the telecom companies, we run the risk of exposing the things our
enemies really want: classified national security information. Make no
mistake, if forced to defend themselves against lawsuits brought about
because they cooperated with a government request certified to be
legal, companies will certainly hesitate or refuse outright to
cooperate in the future. Even where substitution by the Government is
an option, we would be putting national security decisions in the hands
of corporate counsels in the future whose duties--and their first
responsibilities--extend to the stockholders of their company, and not
the national security.
If we ask a company to help us, do we want all the lawyers in that
company to say: Wait a minute. The last time we worked with you
government we got sued, and we are going to review all of this because
some court may hold this--or George Soros may fund some lawsuit and tie
us up in court. We don't think we want to help. I think they would
naturally take that tack in the future to resist cooperation.
During floor debate in December, the distinguished chairman of the
Intelligence Committee, our Democratic colleague Senator Rockefeller,
said this. This is what he said about the matter:
Our collective judgment--
and he is talking about the Intel Committee members--
Our collective judgment on the Intelligence Committee is
that the burden of the debate about the President's authority
should not fall on the telecommunications companies--
In other words, the debate about whether the President had authority
to do this shouldn't fall on the telecommunications counsels--
because they responded to the representations by Government
officials at the highest levels that the program had been
authorized by the President and determined to be lawful and
received requests, compulsions to carry it out. Companies
participated at great risk of exposure and financial ruin for
one reason, and one reason only: in order to help identify
terrorists and prevent follow-on terrorist attacks. They
should not be penalized for their willingness to heed the
call during a time of national emergency.
Senator Rockefeller said that.
The ranking member of the Judiciary Committee who favors substitution
has stated this, flat out:
The telephone companies have acted as good citizens.
Certainly they have. In many instances, the Government must seek
assistance from the private sector and private individuals to help
protect our national security and even local security in our
communities. In order for this practice to continue, we must allow them
to rely on assurances that the assistance they provide is not only
legal but essential to protect our national security without fear that
they will have their names dragged through
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the mud by protracted litigation initiated by the ``blame America
first'' crowd which subscribes to wild theories about Government
conspiracies to deny people their liberty. They are forgetting the
safety of America, and they are ignoring sound legal precedent.
Some in this body sincerely believe that liability protection is not
needed if these companies did nothing wrong, they say. Well, this is
faulty reasoning since either allowing the lawsuits to proceed or
substituting the Government will still force them to be a party to
lawsuits that run the risk of exposing national security information or
doing irreversible financial and reputational damage to companies
innocent of any wrongdoing. We are putting these companies in harm's
way when they, bound by a sense of patriotism and civic responsibility,
participate in a government program that was certified to be legal by
the Attorney General of the United States and the President of the
United States.
If the Government is substituted--in accordance with one of the
theories that has been offered--in the place of a particular company,
it will most certainly assert the state secrets privilege, leaving, in
effect, the company virtually impotent when it comes to mounting a
defense and showing what their legitimate actions were. Due to the
nature of this state secrets privilege, a company will be forbidden
from making their case and will be left without the ability to even
confirm or deny their participation in the program. We should applaud
the actions of these citizens, not stab them in the back by suing them
for their actions.
To refresh everyone's memory, the Intelligence Committee, after
months of negotiation in highly classified settings, rejected an
amendment to strip liability protection from the bill for these
companies by a vote of 12 to 3. It then passed the bill out in toto by
a bipartisan vote of 13 to 2, protecting these companies from lawsuits.
The Judiciary Committee, on the other hand, had one markup after less
than 2 weeks of reviewing the Intelligence Committee's legislation, and
rejected an amendment specifically that would have denied liability
protection by a vote of 12 to 7. So we voted not to allow them to be
sued either. Furthermore, the Judiciary Committee rejected an amendment
to allow the Government to be substituted for the plaintiffs by a vote
of 13 to 5. We rejected substitution too, although the liability
protections were ultimately removed from the bill the Judiciary
Committee passed.
Even if the Government is substituted, plaintiffs in litigation will
seek discovery, they will file depositions and ask for interrogatories
and motions to produce. They will seek trade secrets and highly
classified technologies. Companies would still face many litigation
burdens. They would be--we would be subjecting them to harm, not only
from consumer backlash, but their international business partners will
be pressured around the world.
Under the limited liability protections incorporated in the Intel
bill, plaintiffs seeking to question the Government will have their day
in court as it only protects good corporate citizens from civil suit.
So the liability protections in this bill do not preclude lawsuits
against the Federal Government from going forward. In fact, there are
at least seven lawsuits currently pending against the Government that
will proceed against the Government or Government officials. This was
accepted by the Intelligence Committee. Some wanted to say you couldn't
sue the Government for these activities also, but the Intel Committee
reached an agreement, an overwhelmingly bipartisan agreement, that
would allow those lawsuits to proceed.
The companies that helped the Government did so to help protect us
from further attack, and valuable information has been gathered with
their help. I have been out to the National Security Agency. I have
talked with the people. I know they scrupulously follow the rules we
give them, and I know they have gained great, valuable information
through this program, and I know they lost very valuable information
when the program had to be stopped. This information has saved
undoubtedly countless American lives by enabling our intelligence
community to thwart attacks.
Some have said this amounts to amnesty, but that couldn't be further
from the truth. Amnesty is an act of forgiveness for criminal offenses,
such as granting citizenship to people who broke the law to come into
our country illegally. The companies were operating under a
certification of legality in a time of national danger doing what they
could as Americans to follow the law and prevent future attacks. At no
point during their participation were their actions illegal. For
Heaven's sake. To grant liability protection is to adhere to that great
Anglo-American legal tradition for hundreds of years that when called
upon by a law officer, with apparent legal authority, wearing a
uniform, out on the street, a citizen is not to be held legally liable
if, in responding to the officer, the officer was wrong. That is all we
are talking about. That is a fundamental, historical, legal principle.
The only question--the legal question has always been simply this:
whether the citizen was responding to a legitimate request by a
government law officer, a police officer to chase a bad guy. Was the
citizen acting reasonably in believing this was a legitimate law
enforcement request and he was helping by being a good citizen. That is
the test. If he participated knowingly with somebody acting illegally,
then that citizen could be liable. Certainly certification by the
Attorney General and the President of the United States in written
documents suffices as a legitimate request.
The bottom line is, we do not need to pass legislation that panders
to the extreme interest groups in America who find fault in everything
our people do, our law enforcement and intelligence officers, and that
fosters a fundamental mistrust of those officials who are working daily
to serve all of us. The burden should not fall on the shoulders of good
corporate citizens who are acting patriotically to help save lives and
protect our country.
I urge my colleagues to vote to support the Intel Committee bill, a
carefully crafted, carefully studied, bipartisan bill. I also urge my
colleagues to support the liability protections in the Intelligence
Committee legislation and a vote against any amendments that attempt to
strip these provisions or in any way alter the carefully structured,
limited provisions of the bill.
I thank the Chair and yield the floor.
The PRESIDING OFFICER. Who yields time?
The Senator from Georgia is recognized.
Mr. CHAMBLISS. Mr. President, I rise today to discuss Senate
amendment No. 3907 offered by Senators Dodd and Feingold to the
Intelligence Committee's FISA legislation. I compliment my friend from
Alabama for some very strong, very pointed remarks on this issue as
well as the other issues he addressed.
I am pleased the leaders of the Intelligence Committee were able to
come up with an agreement on how to proceed on this important
legislation. I look forward to the debate on many of these amendments.
A couple of the amendments have been offered relating to title II of
the bill which provides immunity to those telecommunication carriers
that currently face lawsuits for their alleged assistance to the
Government after September 11 and their participation in what is known
as the terrorist surveillance program, or TSP. Senators Dodd and
Feingold have offered an amendment striking this section. Senators
Specter and Whitehouse have offered an amendment which would substitute
the Government as a defendant for the telecommunication providers
currently being sued for their alleged support to the President's TSP
program. I do not support either of these amendments.
As a member of the Select Committee on Intelligence, I had access to
classified documents, intelligence, and legal memoranda, and heard
testimony related to the President's TSP program. After careful review,
as stated in the committee report accompanying this legislation, the
committee determined:
That electronic communication service providers acted on a
good faith belief that the President's program, and their
assistance, was lawful.
The committee reviewed the correspondence sent to the electronic
communications service providers stating that the activities requested
were authorized by the President and determined by the Attorney General
to be
[[Page S700]]
lawful, with the exception of one letter covering a period of less than
60 days in which the counsel to the President certified the program's
lawfulness. The committee concluded that granting liability relief to
the telecommunications providers was not only warranted but required to
maintain the regular assistance our intelligence and law enforcement
professionals seek from them.
Although I believe the President's program was lawful and necessary,
this bill makes no such determination. This is not a review or
commentary on the President's program; rather, it is a statement about
how important this assistance by the electronic communication providers
is to our Government.
I cannot understate the importance of this assistance--not only for
intelligence purposes but for law enforcement purposes also. The
Director of National Intelligence and the Attorney General stated:
Extending liability protection to such companies is
imperative; failure to do so could limit future cooperation
by such companies and put critical intelligence operations at
risk. Moreover, litigation against companies believed to have
assisted the Government risks the disclosure of highly
classified information regarding extremely sensitive
intelligence sources and methods.
There is too much at stake for us to strike title II and substitution
is not an acceptable alternative. This week, we have been alternating
between legislation geared to helping our taxpayers and FISA. Yet
substituting the Government in these lawsuits will force the American
taxpayer to front the heavy legal bills associated with this
legislation.
Substitution would allow these trials to continue and could risk
exposure of classified sources and methods through the discovery
process in the litigation. As a defendant in these frivolous lawsuits,
the Government may be required to expose some of our most sensitive
intelligence sources and methods. Let me emphasize the committee
already found that these communication providers acted in good faith
under assertions from the highest levels of our Government that the
program was lawful. If an individual alleges he or she has a claim due
to this program, that claim can be brought against the Government and
should not be brought against the providers. The Intelligence Committee
bill left open the option for Americans to sue the Government. An
aggrieved individual may sue the Government and attempt to prove
standing and a cause of action. However, substituting the Government
doesn't shield our American business partners from these cases, nor
does it relieve them of the liability to their stockholders they may
unjustly face and which may be borne out in our economy. Substitution
only increases the risk of leaks, and these potential revelations only
make our enemies better informed on the tools we have to conduct
electronic surveillance.
Some of my colleagues have complained about access to the documents
regarding the President's program. It is true many Members of Congress
have not had access, nor have they had an opportunity to review these
documents. There is a good reason for that. These documents are highly
classified and represent details about intelligence sources and
methods. I worry that expanding the number of people who have access to
these documents will increase the likelihood that intelligence will get
leaked into the public. It is more appropriate that the oversight
committee review and report back to the Senate on the various
intelligence activities of the United States. That is why the Senate
has an Intelligence Committee. As a member, I am familiar with handling
classified material and receiving classified briefings. I have made
commitments to safeguard the information I learn behind closed doors
within the Intelligence Committee. Given the wide array of information
I have heard on the Intelligence Committee, I question the benefits a
Member would gain from such a limited, yet specific, review of the
operations of our intelligence community. Rather, I urge my colleagues
to support the determination of the Intelligence Committee, which is
charged with regularly reviewing the intelligence activities of the
United States and oppose the amendments offered by Senator Dodd and
Senator Feingold. Providing our telecommunications carriers with
liability relief is the necessary and responsible action for Congress
to take. The Government often needs assistance from the private sector
in order to protect our national security and, in return, they should
be able to rely on the Government's assurances that the assistance they
provide is lawful and necessary for our national security. As a result
of this assistance, America's telecommunications carriers should not be
subjected to costly legal battles.
With that, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. ISAKSON. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. ISAKSON. Mr. President, I ask unanimous consent that I be allowed
to address the Senate as in morning business.
The PRESIDING OFFICER. Without objection, it is so ordered.
ECONOMIC STIMULUS
Mr. ISAKSON. Mr. President, we are on a very important piece of
legislation, and I thank Senator Bond for all his hard work, and other
members of the Intelligence Committee. I hope we can very soon pass a
good FISA bill on the floor.
I want to deviate from that debate for a second to talk about a
headline many of my colleagues read yesterday, and that we are all
reading repeatedly around the United States, and that is the rapid
increase in the number of houses going into foreclosure. I want to
address that in the context of the economic stimulus package and in the
context of a possible recessionary tendency in the economy, and also
from a historical perspective, in that we have been down this road
before, and suggest there is an action the Senate and the Congress
could take, and the White House could endorse, that could avoid an
awful lot of foreclosures, improve the housing market, reverse the
tendencies toward recession, and be a private sector solution to a
problem that is going to be a tremendous burden if we don't act.
I understand the short-term surgical benefits of the stimulus that
was passed by the House, the other benefits that the Finance Committee
passed. We will work ourselves through that in the next few weeks, and
shortly thereafter the American people will more than likely be
receiving a check of $300 or more with which to infuse some energy into
the economy. But while that is going on, these numbers of a 200-percent
and 300-percent increase of houses going into foreclosures are going to
materialize into houses in foreclosure.
When we get into the second quarter of this year and the middle of
the summer, we are going to find ourselves in a difficult situation
where the following has happened: a tremendous number of houses
foreclosed on, the banks and lenders taking back inventory--and there
is a term called REO, real estate owned--and the regulators coming in,
looking at their books and telling them to get rid of that inventory.
The lenders are going to then write them down, take them to the
marketplace with deep discounts, and sell them.
Now what that is going to do to your homeowners Jim Weichert sells to
in New Jersey, mine in Georgia Harry Norman sells to, and those from
all around the country, is those people who are in houses making
payments and they are in good shape, their value is going to plummet
because of the number of foreclosures that is flooding the market. What
happens is the equity, the difference between their existing mortgage
and the value of the house, decreases because the value of the house
goes down. If they are like 87 percent of the American people who have
an equity line of credit, where they use the equity in their house as a
line of credit, if you will, their available credit is going to be
squeezed.
You know what is going to happen then? They are going to stop
spending. When that happens, we will have the full pressure of the
economy in a downward spiral, and it begins to feed upon itself. That
is precisely what happened in 1975.
In 1973 and early 1974, there was a great housing boom in the United
States, like we have had over most of
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the last decade. And like what happened over most of the last decade
with subprime loans and underwriting, back in 1974, money got awfully
loose. Banks made loans with very little underwriting criteria, and we
had a plethora of new homes built all over the United States by
newfound homebuilders who had a hammer, a pickup truck, and easy
credit. We found ourselves at the beginning of 1975 with a 3-year
supply of vacant housing on the market in the United States. A viable
real estate market is a 6-month supply. So you had six times the volume
of houses that would be considered a balanced market, and we went into
a deep recessionary spiral.
A Democratic Congress and a Republican President passed a $6,000 tax
credit available to any family who purchased a standing vacant house in
inventory, and that allowed
