[Congressional Record: February 8, 2008 (Senate)]
[Page S805-S813]

                      FISA AMENDMENTS ACT OF 2007

  The ACTING PRESIDENT pro tempore. The Senate will resume 
consideration of S. 2248, which the clerk will report.
  The legislative clerk read as follows:

       A Bill (S. 2248) to amend the Foreign Intelligence 
     Surveillance Act of 1978, to modernize and streamline the 
     provisions of that Act, and for other purposes.


       Rockefeller-Bond amendment No. 3911, in the nature of a 
       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.
       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.
       Feinstein amendment No. 3910 (to amendment No. 3911), to 
     provide a statement of the exclusive means by which 
     electronic surveillance and interception of certain 
     communications may be conducted.
       Feinstein amendment No. 3919 (to amendment No. 3911), to 
     provide for the review of certifications by the Foreign 
     Intelligence Surveillance Court.
       Specter-Whitehouse amendment No. 3927 (to amendment No. 
     3911), to provide for the substitution of the United States 
     in certain civil actions.

[[Page S806]]

  Mr. REID. Mr. President, if people wish to come to speak today, they 
should alert the staff. We are not going to have the staff wait around 
all day for somebody who might not come. We have had a busy week. 
Staffs work very long hours. Senators--if they are going to come and 
talk--had better alert the staff or we are going to go out of session.
  I suggest the absence of a quorum.
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BOND. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
  Mr. BOND. Mr. President, we are back on the floor beginning the third 
week of debate on the very important Foreign Intelligence Surveillance 
Act, also known as FISA. We have had a great deal of good debate. We 
have had a few votes.
  Thanks to our leadership--Senator Reid and Senator McConnell--we now 
have a plan to conclude debate and go to the critically important votes 
on Tuesday. I thank all Members for participating. I know there are 
some who have comments they wish to make today and Monday. Chairman 
Rockefeller and I have spent 2\1/2\ weeks so far on the floor, and we 
understand the importance of moving quickly to get this measure 
adopted--gain approval from the House on a measure we can send to the 
President for his signature. I truly hope we can make that.
  I express my thanks to Chairman Rockefeller, his assistant Melvin 
Dubee, all members of the committee, Louis Tucker of my staff, and 
others for bringing us to this position.
  It is important to realize the magnitude of the danger we continue to 
face from radical Islamic terrorists. Probably no place was it better 
outlined than in testimony in open hearing by the leaders of the 
intelligence community. Director McConnell, head of the intelligence 
community, outlined the major areas of concern, backed up by CIA 
Director Michael Hayden; Defense Intelligence Agency Director General 
Maples; FBI Director Mueller, and Under Secretary of State Randy Fort 
for the INR.
  A couple things that came out may have been missed by Members who 
were not fortunate enough to hear the testimony of Admiral McConnell 
and the intelligence community. I thought I would repeat a few of them 
for you. First, Admiral McConnell made it clear that even though our 
intelligence analysts had the availability of collection, which 
indicated there had been a halt in 2003 to the weaponization program 
for nuclear weapons in Iran, the threat that Iran poses remains great. 
Admiral McConnell pointed out that there is no question Iran continues 
to try to enrich uranium, which can be used for nuclear weapon 
production. He also indicated they have the skills and the facilities 
to turn out biological and chemical weapons, and they are working on a 
missile program. The halt in 2003 came, not surprisingly, after the 
United States went in and opposed the dangerous dictator, Saddam 
  It was the capture of Saddam Hussein that led Muammar Qadhafi, leader 
of Libya, to decide he didn't want to be pulled out of a spider hole by 
American forces. He gave up his nuclear weaponization program. 
Personally, I think it is no accident that the same activity in Iraq 
convinced Iran that, for the time being, it was better to shut down 
their weaponization program. The top French Defense Minister indicated 
he was not sure they had not restarted their weaponization program. In 
any event, we need to continue to be concerned about Iran and its 
potential threat not just to our allies in the Middle East, 
particularly Israel, which Iran's elected leader, Ahmadi Nejad, vowed 
to annihilate.
  Specifically, regarding threats to the United States, General Hayden 
outlined for us in open hearing--and more specifically in classified 
information--the number of threats that have been avoided, the plots 
that have been deterred by our resolute action. And what helped us 
deter the threats was, first, the active, aggressive move by the U.S. 
military to disrupt the Taliban and take Afghanistan out from under the 
control of the Taliban.
  Afghanistan was a great threat and much planning was going on by al-
Qaida there. There are some on the news who continue to say Iraq had 
nothing to do with the war on terror. For those others who have looked 
at the information, that is an unbelievably naive point of view. David 
Kay, who went into Iraq to conduct a survey of our inadequate 
intelligence information, said that Iraq was a far more dangerous place 
even than we knew. Terrorists were running wild there, Abu Mus'ab al-
Zarqawi, head of Ansar al Islam was active there, and later became the 
AQI, leader of al-Qaida there. Al-Zarqawi became famous when he 
beheaded victims who didn't agree with him; he cut their heads off on 
television. Iraq has been designated time and time again by leaders of 
al-Qaida, Osama bin Laden and Ayman al-Zawahiri, as the target for 
their headquarters. They want to establish the land between the 
rivers--the Tigris and Euphrates--as their caliphate. They stated that 
is their objective.
  Were we to leave Iraq precipitously, not only would it lead to chaos, 
genocide, and possible Mideast sectarian wars, but also it would ensure 
that al-Qaida would have the opportunity to reestablish their 
headquarters with recruitment, training, and command and control that 
would significantly increase the threats to the United States.
  This is why it is essential to continue our military support in the 
war against terror and also provide the intelligence tools to the 
intelligence community needed to keep our country safe.
  I thought it might be helpful to repeat a few comments that were made 
at that hearing. Director McConnell, along with FBI Director Mueller, 
outlined terrorist threats here at home--most recently, in New Jersey, 
Illinois, and abroad in Spain, Denmark, France, Germany, and the United 
Kingdom. Admiral McConnell also said:

       Al-Qaida remains the preeminent terror threat against the 
     United States, both at home and abroad. Despite our successes 
     over the years, the group has retained or regenerated key 
     elements of its capability, including its top leadership, 
     operation lieutenants, and de facto safe haven . . . in the 
     Pakistani border area with Afghanistan known as the Federally 
     Administered Tribal Areas or FATA.

  To expand on that further, I will explain that people who think we 
are not doing enough to capture Osama bin Laden and al-Zawihiri, I 
cannot tell you how it is happening, but it is happening in 
collaboration with our allies. But we have regularly captured or killed 
the operational head of al-Qaida, the No. 3 man. Most recently, Abu 
Laith al-Libby, the operational head, was killed in some kind of bomb 
or missile strike. At the time, of course, he had a U.S. citizen with 
him, apparently, Adam Gadahn, who had been cooperating actively with 
the al-Qaida leadership. Now, it is a fact that Gadahn was a top 
terrorist target. But do you know something. Without having a FISA 
Court order, we were able to go in and kill him--inadvertently, of 
course, but we would not have been, without the FISA law--particularly 
as we have updated it--able to listen in on his conversations. That is 
the one great shortcoming we learned in Iraq when we met with the head 
of our Joint Special Operations Command, GEN Stan McCrystal. He said 
the greatest threat to our troops on the battlefield was not being able 
to listen in on their electronic communications and see what directions 
they were giving to the terrorist groups threatening our troops in 
Iraq. That is why the outmoded, old FISA law we changed with the 
Protect America Act had to be revised.

  In addition to the terrorist threat, there is no question that rogue 
nations around the world continue to seek dangerous weapons that 
threaten America's security. Admiral McConnell also said:

       The ongoing efforts of nation-states and terrorists to 
     develop and acquire dangerous weapons, and the ability to 
     deliver those weapons, constitute the second major threat to 
     our safety. After conducting missile tests and its first 
     nuclear detonation in 2006, North Korea returned to the 
     negotiating table last year.

  We see that North Korea has signed on to the six-party agreement, 
supposedly getting themselves out of the nuclear business, but some of 
us have grave doubts whether he will follow through. We need good 
information on

[[Page S807]]

not only the intentions of terrorist groups, such as al-Qaida, but 
potentially on nations with nuclear weapons that have developed 
missiles and the ability and the potential of delivering by missiles 
the nuclear weapons against U.S. targets.
  I close on the discussion of the threats by quoting from General 
Hayden, the Director of CIA, who said:

       We face an enemy that is clearly ruthless, but it's also 
     one that's very adaptive, one who shuns traditional 
     hierarchical structures, who learns from mistakes and 
     therefore demands that we be no less resilient and creative.

  Suffice it to say that all of the members of the Intelligence 
Committee said we must have the FISA bill Senator Rockefeller and I 
negotiated and passed out of the Senate Intelligence Committee 13 to 2 
on a strong bipartisan vote. That is what we are here to pass, I hope, 
this coming week and send to the President by the end of the week.
  Admiral McConnell said:

       The authorities granted by the amendments to FISA, the 
     Protect America Act, which temporarily closed some gaps in 
     our ability to conduct foreign intelligence, are critical to 
     our intelligence efforts to protect the nation from current 
     threats. Briefly, some of those important benefits in the 
     bill that was signed last August include: better 
     understanding of international al Qaeda networks, more 
     extensive knowledge of individual networks, including 
     personnel and planning for suicide bombers; and most 
     importantly, greater insight into terrorist planning that has 
     allowed us to disrupt attacks that intended to target U.S. 

  He also put in a very strong pitch for the Rockefeller-Bond 
bipartisan bill to extend the FISA through the FISA Amendments Act of 
2008. He thanked us and all the members of the committee for the 
leadership and hard work, and he said:

        . . . and I would emphasize ``over many months''--in 
     drafting and passing draft legislation that governs and 
     enables this community. Your bill--draft bill provides the 
     needed updates to the Foreign Intelligence Surveillance Act.

  He also went on to warn against dismantling that bill. He said:

       Over the past several weeks, proposals to modify your draft 
     bill have been discussed. At the request of members, the 
     attorney general and I have submitted a detail letter that 
     addresses each of those issues, and it will be delivered to 
     you this morning. I would ask members to consider the impacts 
     of such proposals on our ability to warn of threats to the 
     homeland security and on our interests abroad.

  We have received that letter. We have quoted from that letter and 
will continue to quote from that letter on amendments which have been 
proposed that the intelligence community believes would hamstring their 
  As a sidenote, we were able, working on a bipartisan basis, to 
provide significant new protections for Americans at home and Americans 
abroad who might be engaged in terrorist activities and are working for 
foreign powers as agents or officers or employees. These threats from 
American citizens are sometimes as deadly, as dangerous as threats from 
terrorists abroad. We need to be able to listen in on them.
  Finally, speaking about the civil liability protection for carriers 
which we included, he said:

       Well, I would say, in protecting the homeland it's 
     absolutely essential. In this--it's absolutely essential that 
     we have the support, willing support of communications 
     carriers. In this day and age, our ability to gain 
     intelligence on the plans, the plots of those who wish to 
     attack us is dependent upon us obtaining information relating 
     to cell phones, the Internet, e-mail, wire transfers, all of 
     these areas. My concern is that if we do not have this 
     immunity, we will not have that willing support of the 
     communications carriers.

  That quote was from Robert Mueller, Director of the Federal Bureau of 
Investigation, at a hearing.
  General Hayden went on to say:

       These are very fragile relationships. We lost industrial 
     cooperation, at CIA, with partners on the mere revelation of 
     the SWIFT program in public discourse. Not because they were 
     doing anything related to the program whatsoever but just the 
     fear that the vulnerability they would have to their smooth 
     functioning of their business had caused people, who are 
     otherwise patriotic and committed, to back away from their 
     totally lawful cooperation with our agency.

  One other point. When there is talk about substituting the United 
States as a party in litigation brought against carriers alleged to 
have participated, we ought to take into account some very compelling 
comments made yesterday by the distinguished deputy majority leader, 
Senator Durbin of Illinois. He pointed out that the release of a 
supposedly confidential letter from the Department of Justice to the 
Treasury about the operation of one of the major exchanges in Chicago 
had caused a $6 billion drop in the market value of that exchange. That 
means that people holding stock, many of them through pension funds or 
individual accounts, lost a large share of money.
  As I pointed out yesterday, having the substitution of the Government 
for carriers, while it may remove them from the possibility of 
financial liability in a lawsuit, does not prevent significant damage 
to their business relationships here and abroad. The hit on any 
carriers sued under a substitution agreement, even though it is 
supposed to be reviewed in classified session by the CIA--everybody 
around here knows that if carriers are brought before the FISA Court, 
somebody will be talking about it, it will become news. They will 
suffer great harm to their business interests and potentially expose 
their employees and facilities here and abroad to violent attacks by 
terrorists or other radicals who wish to do them harm. As a result, 
those carriers that have cooperated in the past or considered 
cooperating in the past are going to be advised by their general 
counsels that they cannot do so willingly because they would be 
subjecting their employees and their shareholders to great loss. I 
think this is unacceptable. This is why I believe we have a good FISA 
Amendments Act before us, and we need to pass it.
  We look forward to the debates today and Monday and voting on the 
amendments and, I hope, passing the bill on Tuesday so the House will 
have an opportunity to act. It is critical to the defense not only of 
our interests abroad but for the protection of American citizens at 
home that, with the protections we have added in the bill that came out 
of the Senate Intelligence Committee, we also have the ability of the 
intelligence community to collect vitally needed intelligence 
  We have learned that tremendously valuable information has been 
collected by high-valued detainees, less than 100 of them that the CIA 
has captured. Less than a third of that 100 have been subjected to 
enhanced interrogation techniques. Three of them, as General Hayden 
outlined, were weatherboarded, and they provided in a cooperative 
spirit the most important information. Beyond that, electronic 
surveillance is the best weapon we have to defend ourselves, to defend 
major population centers, tourist attractions, sporting events, and 
outdoor events from a terrorist attack. I hope all Members will keep 
that in mind as they consider the amendments which will be brought 
before this body on Tuesday for a final vote.
  Mr. President, I yield the floor, and I suggest the absence of a 
  The ACTING PRESIDENT pro tempore. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 



  Mr. SESSIONS. Madam President, I would like to take a moment to try 
to clarify an issue that has caused a lot of concern for years now. It 
has now come to a conclusion, and I am glad it has. I am glad to learn 
waterboarding has not been used but three times by our country and has 
not been used in almost 5 years. From the reports and statements made 
by Members of Congress and extreme groups around the world, one would 
think we have had a systematic effort to waterboard people and 
otherwise torture and abuse them. Only one prisoner has died since they 
have been in U.S. custody since the beginning of the war on terror. We 
treat them very well. I have been to Guantanamo Bay on more than one 
occasion. I have seen how interviews are conducted. So have large 
numbers of our body.
  As I indicated in earlier remarks, we wish the world were safer than 
it is. Unfortunately, it is not as safe as we would like. Those of us 
sitting comfortably at home forget the real threats out there. We tend 
to forget there are determined groups who want

[[Page S813]]

to attack the United States as they did on 9/11 and kill our people. 
This is an unpleasant task. When confronted on the battlefield, in 
Iraq, in Afghanistan, we shoot them and we kill them and we drop bombs 
on them and we kill them because these are life-and-death matters that 
Congress has authorized. I wish that were not necessary. I know it is a 
failure of us in some form or fashion. But as a practical person, we 
know no other alternative than to defend ourselves. We are required to 
do that.
  I was reading an article from the Mr. R. Emmett Tyrrell, Jr., in the 
Washington Times today. He talks about what Admiral McConnell, the 
Director of National Intelligence, said a few days ago in 
hearings. Director McConnell said:

       The number of terrorist attacks and deaths were greater 
     than in the past six years combined.

  He was talking about the battle for Pakistan and its survival.
  The article states:

       Another [statement] from Mr. McConnell . . . is that al 
     Qaeda plans more attacks against the United States and was 
     working on a plan for attacking the White House as recently 
     as 2006. Homegrown al Qaeda cells here have been primitive, 
     but Mr. McConnell registered his concern that new, more 
     sophisticated cells might threaten us domestically in the 
     years ahead.

  And that is a fair summary, I think, of Admiral McConnell's comments.
  Since we have now openly talked about the waterboarding question, and 
Members of Congress and the public have now gotten the information, I 
think we need to make sure we know exactly how those three occurrences 
  The first thing we know is it worked. I hate to say, it worked. No. 
2, the Agency--only the CIA used water-
boarding; never the U.S. military, never the Department of Defense; not 
in Iraq, not in Afghanistan--it was never utilized by our military, but 
the Central Intelligence Agency on three occasions since September 11.
  As the article says, they utilized it only on those:

       [T]error leaders who have posed the utmost threat to our 
     [national] security, Abd al-Rahim al-Nashiri, [who was the] 
     mastermind of [the] attack on our warship the USS Cole in a 
     neutral port.

  We had hearings in the Armed Services Committee, of which I am a 
member, about that dastardly attack. And I remember about a year after 
the Cole was attacked--where we had 18 American sailors killed by this 
vicious attack; and it could have been a lot more--the Navy 
commissioned a ship down at Norfolk, VA; and as we walked out of the 
ceremony, a young sailor hollered out--and it still makes my hair stand 
up--``Remember the Cole.''
  Well, we got the perpetrator, and justice was done.

       Abu Zubaydah, [who was] the brains behind the thwarted 
     millennium attacks--

  That we were able to block--

     and Khalid Sheikh Mohammed, who directed September 11. . . .

  The attacks on September 11. KSM, that is his name now for the 
professionals, Khalid Sheikh Mohammed.
  So I believe the Attorney General of the United States, after 
researching this matter carefully, and after our intelligence agencies 
gave it thoughtful review, concluded we do not need to have 
waterboarding now, that these three instances were justified.
  Attorney General Mukasey, a former Federal judge--approved 
overwhelmingly by the Senate--was asked to make an opinion on 
waterboarding. He said he believed those actions were justified under 
those circumstances, and he would not say we would never ever do it 
again in the future. He said circumstances would determine how you 
handle those kinds of situations.
  Let me note, again, for a lot of people, these are not honest and 
legitimate soldiers of a nation state. The people who are subjected to 
this procedure are persons who are unlawful combatants. They are 
persons who do not fight according to the rules of war, and they do not 
wear uniforms. They deliberately attack civilian personnel. They do it 
through subterfuge and violence, and their goals are outside all rules 
of warfare. Until some recent cases, they were clearly considered not 
to be provided any protections under the Geneva Conventions.
  So I will say, Madam President, we hate to talk about these things. 
We wish we did not face the kind of threats from the diabolical 
terrorists that we do. We wish we did not have to go to war and shoot 
and kill many of them. But we, as a nation--the Congress; both 
parties--have authorized that activity. We fund that activity. Our 
soldiers are out there putting their lives on the line at this very 
moment to execute that policy, placing themselves in harm's way.
  I am glad the Attorney General has reviewed it carefully. I am glad 
he is able to say waterboarding was utilized only three times, that it 
had not been used in 5 years. But I am glad he also said he would not 
say it would never be done again. This would be unwise advice to the 
enemy we face.
  I thank the Chair and yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. REID. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                             Cloture Motion

  Mr. REID. Madam President, I send a cloture motion to the desk 
pursuant to the order relative to S. 2248.
  The PRESIDING OFFICER. The cloture motion having been presented 
pursuant to rule XXII, the Chair directs the clerk to read the motion.
  The bill clerk read as follows:

                             Cloture Motion

       We, the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on S. 2248, the 
     FISA bill.
         Harry Reid, Charles E. Schumer, Sherrod Brown, Daniel K. 
           Akaka, Jeff Bingaman, Thomas R. Carper, Ken Salazar, 
           Sheldon Whitehouse, John D. Rockefeller IV, Richard 
           Durbin, Bill Nelson, Debbie Stabenow, Robert P. Casey, 
           Jr., E. Benjamin Nelson, Evan Bayh, Daniel K. Inouye.

  Mr. REID. Madam President, I ask unanimous consent that 
notwithstanding rule XXII, the cloture vote occur upon disposition of 
the remaining amendments pursuant to the previous order and that the 
mandatory quorum be waived.
  The PRESIDING OFFICER. Without objection, it is so ordered.