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9 July 2008

Senate roll call vote: http://cryptome.info/0001/hr6304-sen-vote.htm


[Congressional Record: July 7, 2008 (Senate)]
[Page S6366]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr07jy08-53]                         



 
                           TEXT OF AMENDMENTS

  SA 5066. Mr. BINGAMAN (for himself and Mr. Casey, and Mr. Specter) 
submitted an amendment intended to be proposed by him to the bill H.R. 
6304, to amend the Foreign Intelligence Surveillance Act of 1978 to 
establish a procedure for authorizing certain acquisitions of foreign 
intelligence, and for other purposes; which was ordered to lie on the 
table; as follows:

       Beginning on page 88, strike line 23 and all that follows 
     through page 90, line 15, and insert the following:
       ``(a) Requirement for Certification.--
       ``(1)  In general.--Notwithstanding any other provision of 
     law other than paragraph (2), a civil action may not lie or 
     be maintained in a Federal or State court against any person 
     for providing assistance to an element of the intelligence 
     community, and shall be promptly dismissed, if the Attorney 
     General certifies to the district court of the United States 
     in which such action is pending that--
       ``(A) any assistance by that person was provided pursuant 
     to an order of the court established under section 103(a) 
     directing such assistance;
       ``(B) any assistance by that person was provided pursuant 
     to a certification in writing under section 2511(2)(a)(ii)(B) 
     or 2709(b) of title 18, United States Code;
       ``(C) any assistance by that person was provided pursuant 
     to a directive under section 102(a)(4), 105B(e), as added by 
     section 2 of the Protect America Act of 2007 (Public Law 110-
     55; 121 Stat. 553), or 702(h) directing such assistance;
       ``(D) in the case of a covered civil action, the assistance 
     alleged to have been provided by the electronic communication 
     service provider was--
       ``(i) in connection with an intelligence activity involving 
     communications that was--

       ``(I) authorized by the President during the period 
     beginning on September 11, 2001, and ending on January 17, 
     2007; and
       ``(II) designed to detect or prevent a terrorist attack, or 
     activities in preparation for a terrorist attack, against the 
     United States; and

       ``(ii) the subject of a written request or directive, or a 
     series of written requests or directives, from the Attorney 
     General or the head of an element of the intelligence 
     community (or the deputy of such person) to the electronic 
     communication service provider indicating that the activity 
     was--

       ``(I) authorized by the President; and
       ``(II) determined to be lawful; or

       ``(E) the person did not provide the alleged assistance.
       ``(2) Limitation on implementation.--
       ``(A) In general.--The Attorney General may not make a 
     certification for any civil action described in paragraph 
     (1)(D) until after the date described in subparagraph (C).
       ``(B) Stay of civil actions.--During the period beginning 
     on the date of the enactment of the FISA Amendments Act of 
     2008 and ending on the date described in subparagraph (C), a 
     civil action described in paragraph (1)(D) shall be stayed by 
     the court in which the civil action is pending.
       ``(C) Date described.--The date described in this 
     subparagraph is the date that is 90 days after the final 
     report described in section 301(c)(2) of the FISA Amendments 
     Act of 2008 is submitted to the appropriate committees of 
     Congress, as required by such section.''.

                          ____________________



[Congressional Record: July 8, 2008 (Senate)] [Page S6379-S6381] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr08jy08-156] FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008 Mr. CARDIN. Mr. President, I rise today in opposition to final page of this legislation, H.R. 6304, the Foreign Intelligence Surveillance Act of 1978, FISA, Amendments Act of 2008, if it is not amended to change the retroactive immunity provisions. The President must have the necessary authority to track terrorists, intercept their communications, and disrupt their plots. Our Nation still faces individuals and groups that are determined to do harm to Americans, as well as our interests throughout the world. I have spent many hours at the National Security Agency, which is located in Fort Meade, MD. The men and women of our intelligence agencies are dedicated public servants who are doing a great job on behalf of their country. They are trying to do their jobs correctly, and comply with all applicable laws and regulations. As a member of the Judiciary Committee, I have received classified briefings about the advice and requests that were given to the telecommunications companies by the U.S. Government. I have seen the opinions of counsel on this issue. I have attended numerous hearings on this issue. Congress must indeed make needed changes to FISA to account for changes in technology and rulings from the FISA Court involving purely international communications that pass through telecommunications routes in the United States. While we have a solemn obligation to protect the American people, we must simultaneously uphold the Constitution and protect our civil liberties. After learning about executive branch abuses in the 1960s and 1970s, Congress passed very specific laws which authorize electronic surveillance. Congress has regularly updated these measures over the years to provide the executive branch the tools it needs to investigate terrorists, while preserving essential oversight mechanisms for the courts and the Congress. FISA requires the Government to seek an order or warrant from the FISA Court before conducting electronic surveillance that may involve U.S. persons. The act also provides for postsurveillance notice to the FISA Court by the Attorney General in an emergency. I am very concerned that the FISA law was disregarded by the administration, and want to ensure that we put an end to this type of abuse. We are a nation of laws and no one is above the law, including the President and Attorney General. The President deliberately bypassed the FISA Court for years with his warrantless wiretapping program--long after any emergency period directly following the 9/11 terrorist attacks--and did not ask Congress to change the FISA statute. In fact, President Bush refused to fully brief Congress on the Terrorist Surveillance Program, TSP, the existence of which was only exposed through a New York Times story. After the story broke, the administration reluctantly agreed to place this program under the supervision of the FISA Court. I do believe that many of the telecommunications companies cooperated with the Government in good faith, and may be entitled to relief. But the FISA statute of 1978 already lays out procedures for the Government to seek a court order and present this order to the telecommunications companies and require their assistance. The 1978 FISA statute also provides certain immunities to telecommunications companies that provide this type of assistance to the Government. The President chose to ignore the FISA statute. If the President did not want to use the FISA statute or wanted to change it, he had the responsibility to come to Congress and ask for that change. He cannot change the law by fiat, or by issuing a Presidential signing statement. Congress must change the law, and the courts must interpret the law. Congress and the courts have the power, and often the responsibility, to disagree with the President, and these co-equal branches have the constitutional checks to override his veto, disapprove of a request for a warrant, or strike down an action as unconstitutional. I will vote against retroactive immunity for the telecommunications companies. The current bill only authorizes the district court to review whether the companies received written requests from the U.S. Government stating that the activity was authorized by the President and determined to be lawful by the executive branch. The Court would have to simply accept the executive branch's conclusion that the warrantless wiretapping outside of the FISA statute and without FISA Court approval was legal, which means the executive branch--not the judiciary--gets to decide whether the law was broken. I want the courts to be able to look at what the executive branch is doing. I want the court to protect individual rights. Granting this type of immunity would violate the basic separation of powers. It would also create a dangerous precedent for future administrations and private actors to violate the law, and then seek relief in Congress or from the President through an after-the-fact amnesty or pardon. There was a way to provide the telecommunications companies with appropriate relief. Senator Feinstein's amendment would have allowed the courts to grant relief to the telecommunications companies if they acted reasonably under the reasonable assumption that the Government's requests were lawful. This amendment would have preserved the independent judgment of the judiciary, and preserved the necessary check and balance in our system of government. Unfortunately, the negotiators for this legislation rejected this compromise. [[Page S6380]] I also want to note the improvements made to title I of this legislation, compared to current law and the Senate-passed Intelligence Committee version. I thank the Members of the House and Senate who worked hard on improvements to this legislation, particularly House majority leader Steny Hoyer. Title I is not perfect, but it is does bring the President's program under the FISA statute and FISA Court, and provides for oversight by Congress and the courts. Title I contains a sunset of December 2012 for this legislation. I feel strongly that the next administration should be required to come back and justify these new authorities to Congress. As a member of the Judiciary Committee, I believe the only meaningful cooperation we received from the executive branch on this issue occurred when they were facing a sunset and a potential lapsing of their authorities and powers under the statute. Congress will then have time to evaluate how the new law has been implemented, and debate whether further changes are needed. This legislation also requires the inspector general to review compliance with: (1) Targeting and minimization procedures; (2) reverse targeting guidelines; (3) guidelines for dissemination of U.S. person identities; and (4) guidelines for acquisition of targets who turned out to be in the United States. The inspector general review will be provided to the Attorney General, Director of National Intelligence, and the Judiciary and Intelligence Committees of the Senate and House. The public would also be given an unclassified version of these reviews, reports, and recommendations. These reviews will help Congress evaluate the new authorities under the FISA statute, and how the executive branch and the FISA Court are using these new authorities, before the legislation sunsets. Congress can then decide how best to reauthorize this program. The bill strengthens the exclusivity language of FISA and the criminal wiretap laws. Congress is making very clear that these statutes are the exclusive means by which electronic surveillance can be legally conducted by the U.S. Government. The bill also removes a troubling attempt to unduly broaden the definition of ``electronic surveillance.'' Supreme Court Justice Anthony Kennedy, in his opinion in the recent Boumediene case on the Guantanamo detainees, stated: ``The laws and Constitution are designed to survive, and remain in force, in extraordinary times. Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law.'' I believe title I should have been strengthened by more effective court review. However, absent the retroactive immunity provisions in title II, I would support the compromise legislation, because it is important for the intelligence community to have the tools it needs. However, I regret that if the retroactive immunity provision remains unchanged in the final legislation, I will vote against the legislation, because of the fundamental problem with that provision. In conclusion Mr. President, shortly we will be considering the amendments to the Foreign Intelligence Surveillance Act, the FISA act. I must tell you, I think it is important that our intelligence community have the tools they need to obtain information from foreign sources. That is what this legislation is about. We need to modernize the FISA law. Communication methods have changed, and we need to give the tools to the intelligence community to meet their modern needs of communication. I serve on the Judiciary Committee. I was privy to many hearings we had, some of which were classified, to find out the information as to what we could do. We brought forward legislation that I think was the right legislation that would have given the necessary tools to the intelligence agencies to get information from foreign sources without being burdened by unnecessary court approval and protect the civil liberties of the people of this Nation. Unfortunately, that compromise was rejected. We are in this situation today where we have had major disagreements on how to amend the FISA statutes because of the action of the Bush administration. It is absolutely clear to me that the President went beyond the legal or constitutional authority that he has in doing wiretaps without court approval. I want to make it clear, the men and women who work at our intelligence agencies, many of whom are in Maryland at NSA, are doing a great job. They are trying to do everything that is correct to protect our Nation and do it in the correct manner. It was the Bush administration that went beyond the law. It was the Bush administration that went beyond the Constitution. It is important for us to balance the needs of our community to get information to protect us but also protect the civil liberties with the proper checks and balances in our system. That brings me to H.R. 6304, the legislation that will shortly be before us. Title I is a much better bill than the bill that left the Senate earlier this year. I think this bill has been worked on in a very constructive environment. I compliment not only Senator Rockefeller, who is on the Senate floor, for his hard work on this legislation, I also compliment my colleague from Maryland, Congressman Hoyer, the majority leader of the House of Representatives, for the work he did in bringing us together on a bill that I think is a better bill than the bill that left the Senate. This bill provides for a sunset in 2012. That is important because I find we do not get the attention from the administration on this issue unless they are faced with a deadline from Congress. This will force the next administration to take a look at this legislation and come back to the Congress with modifications or justifications for the continuation of the legislation. I think that is an important improvement. The legislation provides for the inspector general to review the targeting and minimization provisions. The targeting is when a U.S. citizen, perhaps indirectly, is targeted. And the minimization procedures deal with when the intelligence community gets information about an American without court approval, to minimize the use of that information or to seek court approval. Both of those provisions will be reviewed by the inspector general and reports issued back to the Congress with unclassified versions available for public inspection. The FISA Court is strengthened through the compromise that has been reached. Let me make it clear, I would have liked to have seen the Judiciary Committee's bill passed and enacted into law. I think we can still improve title I. But I believe in the legislative process, and I think there has been a fair compromise reached on title I. If title I were before us as an individual action, I would support the compromise because I think it is time to move forward. But there is title II, and title II is the retroactive immunity. It gives retroactive immunity to our telecommunications companies, our telephone companies. They are entitled to some relief. They acted under the urgency of the attacks on our country on September 11 and with the request of the President of the United States. They are entitled for some relief. But this provision goes way too far. It authorizes the executive branch to determine the legality of their actions. In other words, the agency, the President who asked for the information, will determine whether the telephone companies acted properly. It should be the courts. This takes too much away from the judicial branch. It, in my view, compromises the checks and balances that are so important in our constitutional system. We didn't have to be here. I thought Senator Feinstein offered a fair compromise, and I am surprised it was not taken by the negotiators. Senator Feinstein said: Why don't we let the FISA Court make a decision as to whether the telephone companies acted legally? That is a compromise I could have supported. I think it would have been a fair compromise. Unfortunately, that was rejected. Title II is a fundamental flaw in the separation of powers, in the proper protection of civil liberties of the people of this Nation, and a dangerous precedent for future action by this Congress. I will vote to remove or modify title II by the amendments that will be presented later today. I prefer to modify it. As I suggested, I think we have compromises that can work, but I will vote [[Page S6381]] to remove it if there are no other options presented. If we do not modify title II, reluctantly I will not be able to support the compromise legislation that has been presented. I urge my colleagues to try to get this done right. This is an important bill. Unfortunately, it is fatally flawed with the legislation that is before us. I yield the floor. ____________________
[Congressional Record: July 8, 2008 (Senate)] [Page S6381-S6386] From the Congressional Record Online via GPO Access [wais.access.gpo.gov] [DOCID:cr08jy08-158] FISA AMENDMENTS ACT OF 2008 The ACTING PRESIDENT pro tempore. Under the previous order, the Senate will resume consideration of H.R. 6304, which the clerk will report. The legislative clerk read as follows: A bill (H.R. 6304) to amend the Foreign Intelligence Surveillance Act of 1978 to establish a procedure for authorizing certain acquisitions of foreign intelligence, and for other purposes. The ACTING PRESIDENT pro tempore. Under the previous order, the motion to proceed is agreed to and the motion to reconsider is made and laid on the table. The Senator from Wisconsin. Mr. FEINGOLD. Mr. President, I ask unanimous consent that the time I consume be allocated to the Dodd amendment. The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. Mr. FEINGOLD. Mr. President, I strongly support Senator Dodd's amendment to strike the immunity provision from this bill, and I especially thank the Senator from Connecticut for his leadership on this issue. Both earlier this year, when the Senate first considered FISA legislation, and again this time around, he has demonstrated tremendous resolve on this issue, and I have been proud to work with him. Some have tried to suggest that the bill before us will leave it up to the courts to decide whether to give retroactive immunity to companies that allegedly participated in the President's illegal wiretapping program. But make no mistake, this bill will result in immunity being granted--it will--because it sets up a rigged process with only one possible outcome. Under the terms of this bill, a Federal district court would evaluate whether there is substantial evidence that a company received . . . a written request or directive from the Attorney General or the head of an element of the intelligence community indicating that the activity was authorized by the President and determined to be lawful. We already know, from the report of the Senate Intelligence Committee that was issued last fall, that the companies received exactly such a request or directive. This is already public information. So under the terms of this proposal, the court's decision would actually be predetermined. As a practical matter, that means that regardless of how much information the court is permitted to review, what standard of review is employed, how open the proceedings are, and what role the plaintiffs are permitted to play, it won't matter. The court will essentially be required to grant immunity under this bill. Now, our proponents will argue that the plaintiffs in the lawsuits against the companies can participate in briefing to the court, and this is true. But they are not allowed any access to any classified information. Talk about fighting with both hands tied behind your back. The administration has restricted information about this illegal wiretapping program so much that roughly 70 Members of this Chamber don't even have access to the basic facts about what happened. Do you believe that? So let's not pretend that the plaintiffs will be able to participate in any meaningful way in these proceedings in which Congress has made sure their claims will be dismissed. This result is extremely disappointing. It is entirely unnecessary and unjustified, and it will profoundly undermine the rule of law in this country. I cannot comprehend why Congress would take this action in the waning months of an administration that has consistently shown contempt for the rule of law--perhaps most notably in the illegal warrantless wiretapping program it set up in secret. We hear people argue that the telecom companies should not be penalized for allegedly taking part in this illegal program. What you don't hear, though, is that current law already provides immunity from lawsuits for companies that cooperate with the Government's request for assistance, as long as they receive either a court order or a certification from the Attorney General that no court order is needed and the request meets all statutory requirements. But if requests are not properly documented, the Foreign Intelligence Surveillance Act instructs the telephone company to refuse the Government's request, and it subjects them to liability if they instead decide to cooperate. When Congress passed FISA three decades ago, in the wake of the extensive, well-documented wiretapping abuses of the 1960s and 1970s, it decided that in the future, telephone companies should not simply assume that any Government request for assistance to conduct electronic surveillance was appropriate. It was clear some checks needed to be in place to prevent future abuses of this incredibly intrusive power; that is, the power to listen in on people's personal conversations. At the same time, however, Congress did not want to saddle telephone companies with the responsibility of determining whether the Government's request for assistance was legitimate. So Congress devised a good system. It devised a system that would take the guesswork out of it completely. Under that system, which is still in place today, the company's legal obligations and liability depend entirely on whether the Government has presented the company with a court order or a certification stating that certain basic requirements have been met. If the proper documentation is submitted, the company must cooperate with the request and it is, in fact, immune from liability. If the proper documentation, however, has not been submitted, the company must refuse the Government's request or be subject to possible liability in the courts. This framework, which has been in place for 30 years, protects companies that comply with legitimate Government requests while also protecting the privacy of Americans' communications from illegitimate snooping. Granting companies that allegedly cooperated with an illegal program this new form of retroactive immunity in this bill undermines the law that has been on the books for decades--a law that was designed to prevent exactly the type of abuse that allegedly occurred here. Even worse, granting retroactive immunity under these circumstances will undermine any new laws we pass regarding Government surveillance. If we want companies to obey the law in the future, doesn't it send a terrible message, doesn't it set a terrible precedent, to give them a ``get out of jail free'' card for allegedly ignoring the law in the past? Last week, a key court decision on FISA undercut one of the most popular arguments in support of immunity; that is, that we need to let the companies off the hook because the State secrets privilege prevents them from defending themselves in court. A Federal Court has now held that the State secrets privilege does not apply to claims brought under FISA. Rather, more specific evidentiary rules in FISA govern in situations such as that. Shouldn't we at least let these cases proceed to see how they play out, rather than trying to solve a problem that may not even exist? That is not all. This immunity provision doesn't just allow telephone companies off the hook; it will also make it that much harder to get at the core issue I have been raising since December 2005, which is that the President broke the law and should be held accountable. When these lawsuits are dismissed, we will be that much further away from an independent judicial review of this illegal program. On top of all this, we are considering granting immunity when roughly 70 Members of the Senate still have not been briefed on the President's wiretapping program. The vast majority of this body still does not even know what we are being asked to grant immunity for. Frankly, I have a hard [[Page S6382]] time understanding how any Senator can vote against this amendment without this information. I urge my colleagues to support the amendment to strike the immunity provision from the bill. I yield the floor. The ACTING PRESIDENT pro tempore. The Senator from Pennsylvania. Mr. SPECTER. Mr. President, would the distinguished Senator from Wisconsin yield for a question? Mr. FEINGOLD. I will. Mr. SPECTER. As the Senator from Wisconsin doubtless knows, there was a very extensive analysis of these issues by Chief Judge Walker of the San Francisco District Court handed down last Wednesday, and I think it was no coincidence that the decision preceded just a few days--after everybody knew, including Chief Judge Walker--of the Senate taking up this question. In that opinion, Chief Judge Walker finds the Terrorist Surveillance Program unconstitutional. He says, flatly, that the language of the Foreign Intelligence Surveillance Act of 1978 means what it says on the exclusive remedy for warrants, and that the President exceeded his article II powers as Commander in Chief. As we all know, the Detroit District Court came to the same conclusion, was reversed by the Sixth Circuit in a 2-to-1 opinion on standing, and then the Supreme Court of the United States handily ducked the question by the noncert. That is the principal constitutional confrontation of our era, on article I powers by Congress and article II powers of the President as Commander in Chief. They denied cert. And on the standing issue, as disclosed by the Senate opinion in the Sixth Circuit, the Supreme Court could easily have taken the case to resolve this big issue. But now Judge Walker has decided, and it is very significant, because Judge Walker has these more than 40 cases pending on the effort to grant retroactive immunity. The case he decided it on is the Oregon case where State secrets are involved, with the inadvertent disclosure by the Federal agents. It is hard for me to see how you have a State secret which is no longer secret. And you have a document, just electronic surveillance, which was disclosed, so it is no longer a secret. That remains to be decided under the opinion of Chief Judge Walker, but he says there is a ``rich lode'' of material on the standing issue. These questions involve extraordinarily complex matters. The Senator from Wisconsin knows that. He has been deeply involved in it. And the distinguished chairman knows that, because he has been deeply involved in these matters. My question to the Senator from Wisconsin is twofold: One, what do you see as the immediate ramifications of Chief Judge Walker's opinion handed down a few days before we are to decide it? And a related question: What do you think of the likelihood that Members of the Senate have had or could have an adequate opportunity to review that 59-page opinion with all of its detailed ramifications? Mr. FEINGOLD. Mr. President, I thank the Senator for asking the question. Yes, I referred to this decision in my brief comments about this amendment. I think it is obviously a significant decision. As I indicated, it deals with the State secrets issue. It says that FISA is in fact the exclusive means and that the evidentiary rules regarding FISA should control, rather than State secrets. That is an important finding. But even more important is what the Senator from Pennsylvania is alluding to, which is the broader issue that the judge didn't decide, but clearly he indicated where he would head on the question of whether the President's TSP program was illegal--and I have long believed that it was illegal. In fact, the Senator and I were the first Members to comment on the revelation of this program in December of 2005 on the floor of the Senate. I have examined it closely myself, as a member of the Intelligence Committee and the Judiciary Committee, and I feel even more strongly today than I did then that this program was illegal and there needs to be accountability for that illegality. That accountability can come in part from litigation of the kind that involved this district court decision, and it can come from other cases that are pending. But my concern, of course, is that if we jam this bill through, it may have an impact on the ability to pursue that underlying legal issue because of the effective granting of immunity to telephone companies. So this decision has significance, but I can't tell you that I know all the ramifications. Obviously, Members of the Senate, to answer your question, should review the opinion and have a chance to find out more about the opinion. But there are 70 Members of the Senate who haven't even had the benefit of what you and I have had, which is the briefing on the actual TSP and what happened from 2001 to 2007 with regard to wiretapping. I thank the Senator for making this important point about Senators being ready to grant this immunity without reviewing the litigation. Mr. SPECTER. Mr. President, if the Senator from Wisconsin will yield for just one more question? And that is, in the context, is the Senator--I asked him to yield for one more question, and I will use a microphone so perhaps he can hear me, perhaps some people on C-SPAN2 will hear me, perhaps some Senators will hear me, because we need to be heard on this subject because of its complexity. The question relates to what the Senator from Wisconsin has said. He puts it at some 70 Members of the Senate have not been briefed on the program. I have heard from House leadership that most of the Members of the House have not been briefed on the program. There has been no official determination. The language is picked up from the allegations of the complaint as to what is alleged. The question is, How can the Congress intelligently decide--maybe that is too high a standard. But how can the Congress, especially the world's greatest deliberative body, the U.S. Senate--how can the decision be made on electronic surveillance, granting retroactive immunity, when we don't know what we are granting retroactive immunity to? The second part is, How can we fly in the face of the decision by the judge who is ruling on these cases--we are sending them all to him-- when he, speaking for the court: The law of the case is that the terrorist surveillance program is unconstitutional, that it exceeds the authority. The Foreign Intelligence Surveillance Act also covers the pen register and related items, so--not specifying what is involved here-- whatever is involved, sending it to the judge who has already said it is unconstitutional. How can we deal in an intelligent manner given those two critical factors? Mr. FEINGOLD. Mr. President, I again thank the Senator from Pennsylvania for his comments and question. Really, the only appropriate answer is to say ``amen'' to everything he just said. Think about this: To vote on anything when 70 Members of the Senate haven't been briefed on it seems unbelievable, and then you add to it that it has to do with the most critical issue of our time: How can we best protect our country from those who attacked us while also observing the rule of law? That would be bad enough. But then you add to it, as the Senator from Pennsylvania has indicated, that this goes to the very core issue of the structure of the Constitution. Is it really true, as the administration puts forward in defense of the TSP program, that article II of the Constitution somehow allows the executive and Commander in Chief power to override an absolutely clear, exclusive authority adopted by Congress pursuant to Justice Jackson's third tier of the test set out in his Youngstown opinion? All of these levels are implicated by this. The Senator could not be more correct. This is an amazingly inappropriate use of legislative interference, pushed by this administration, and Senators should take a very hard look at whether they want to be associated with such an attack on the rule of law in this country. I yield the floor. The ACTING PRESIDENT pro tempore. Who yields time? The Senator from West Virginia. Mr. ROCKEFELLER. Mr. President, I am opposing the amendment. So I would be taking time from Senator Bond. I ask for approximately 20 minutes. The ACTING PRESIDENT pro tempore. Duly noted. [[Page S6383]] Mr. ROCKEFELLER. Mr. President, my colleagues have submitted two amendments seeking to accomplish somewhat the same goal before, and in a sense now down to one. Senators Dodd and Feingold have an amendment to strike title II of the FISA bill. It is very plain and simple, and they are very clear about that. The amendments have the same effect-- eliminating the title that provides a mechanism for a U.S. district court to decide whether pending suits against telecommunications companies should be dismissed. Two other amendments with respect to title II, to be offered by Senator Specter and Senator Bingaman, will follow. While I address those amendments in separate statements, I would like to say now with respect to the amendments that I oppose each of them and I urge that the Senate pass H.R. 6304 without amendment so that the delicate compromise which serves as best it can to protect both national security and privacy and civil liberties can, in fact, become law. Six and a half years ago, instead of consulting with Congress about changes that might be needed to FISA, the President made the very misguided decision to create a secret surveillance program that circumvented the judicial review process and authorization required by FISA and was kept from the full congressional oversight committees. That is calling it running around the end altogether. We are right to be angry about the President's actions, but our responsibility today is to look forward. That is what this bill is about, to make sure we have adequately dealt with the numerous issues that have arisen from the President's very poor decision, bad decision. The bill in front of us today accomplishes three important goals with respect to the President's warrantless program. First, the bill establishes a sure and realistic method of learning the truth about the President's program--I repeat, learning the truth about the President's program. It requires the relevant inspectors general--that is a term of art. What I mean by that is the inspectors general of the CIA, DOD, NSA, et cetera, people who oversee and know what is in this program altogether--to submit an unclassified report about the program to the Congress. This report will ensure that both Congress and, by the way, therefore, obviously, the public will have as complete a picture of the President's warrantless surveillance program as possible or as messy as it may be for them to ingest. Second, the bill tightens the exclusivity of the FISA law, making it improbable for any future President to argue that acting outside of FISA is lawful. That is huge. That means the President can never again, ever use what he has used--his all-purpose powers--and say he can just walk right around the end of FISA. He has to have a statutory authority, it has to come from us, and he cannot bypass FISA as he did altogether. Third, the bill addresses the problems the President's decision has caused for the telecommunications companies that were told their cooperation was both legal and necessary to prevent another terrorist attack. They were not told a lot, but they were certainly told that. The bill does not provide those companies with a free pass. It requires meaningful district court review of whether statutory standards for protection from liability have been met for the companies having relied on the Government's written representations of legality. You remember there was a period when we were using the FISA Court to make these kinds of judgments, and we bent to the better wisdom of the House with respect to the district court, which is a more public court. So they have that responsibility. All of these pieces fit together, and not just because they are part of a larger compromise on this bill. Private companies that cooperated with the Government in good faith, as the facts before the congressional intelligence committees demonstrate they did, should not be held accountable for the President's bad policy decisions. But if the court ultimately dismisses the litigation against those companies, it is important that there be a mechanism for public disclosure about the President's program, and it is precisely, therefore, in this bill that the inspectors general report, which has to be provided to us within a year, provide that public accountability. Likewise, we can only put past actions behind us if we can be reassured that this will not happen again, and therefore the strength in the exclusivity language in the FISA bill addresses that concern. That it does. Together, the three components of the bill provide accountability for the mistakes of the past as well as a way to move forward. Although title II in the bill before us today differs in important ways from the title II we passed out of the Senate this past February, the two bills address the same underlying problems faced by the telecommunications companies. Because the majority of the information in the cases is classified, there has been no substantial progress in the cases against the telecommunications companies--several of them have been going on for years. Classified information, they can't have it; state secrets, can't have it. The Government has not even allowed the telecommunications companies in the many pending lawsuits to disclose publicly whether they assisted the Government. These companies, therefore, have not been permitted to invoke the defense to which they are entitled. But sued they are. The companies cannot reveal, for example, whether they did not participate in the program. That would be a false accusation against some company, but they cannot say that they didn't participate or that they only participated pursuant to a court order--they can't talk about that--or participated in reliance on written Government representation of legality--cannot talk about that. The bill before us today allows these defenses to be presented to the district court, the public court--not the FISA Court, which is kind of a secret court, but to the district court, which is not a secret court. It is a public court. The Attorney General is authorized to certify to the court that particular statutory requirements have been met without requiring public acknowledgment of whether particular providers assisted the Government. The bill then requires the district court to determine whether the Attorney General's certification is supported by ``substantial evidence.'' That is a higher, tougher standard than the ``abuse of discretion'' test we had in the Senate bill. In making this assessment, the district court is specifically authorized to review the underlying documents on which the Attorney General's certification is based. The court can, therefore, ``review any court orders, statutory directives or certifications authorizing providers' cooperation.'' Importantly, the court may also review the highly classified documents provided to the companies indicating that the President had authorized the program and that it had been determined to be lawful. Explicitly allowing the court to base its decision on whether companies are entitled to liability protection on relevant underlying documents is an important improvement to the bill, and I am happy it is in it. Because such documents would be classified, any review of those documents in the litigation prior to this bill would have been limited to a court assessment of whether the documents were privileged. The court could not have relied on what the Government's communications to the providers actually said in making its assessment about whether the cases should be dismissed. The court could not have relied on what those Government communications said--it is different. This bill before the Senate, therefore, gives the district court both an important role in determining whether statutory requirements for liability protection have been met and the tools to make that assessment. The FISA bill also provides a more explicit role for the parties to the litigation--this is new and better--to ensure that they will have their day in court open--sort of, and so to speak--but they will have their day in court. But they will have their day in court. They are provided the opportunity to brief the legal and constitutional issues before the court and may submit documents to the court for review. Whatever it is they want to submit, they can submit. [[Page S6384]] A few of my colleagues have argued that including any sort of mechanism that would allow the district court to resolve these cases will prevent the public from hearing the details about the President's program. But even if the litigation were to continue indefinitely, it would never tell the full story. Lawsuits have now been pending for, as I indicated, over 2 years. The fight during all that time, and the likely fight in the future, has been about whether the plaintiffs will have access to any classified information about the program. The plaintiffs in the litigation, they have never been and will never be provided with wide-ranging information about the President's classified program that would enable them to put together a comprehensive picture of what happened. This capability is reserved for those who have complete access to information about the program. And that again is why I come back to the importance of the inspectors general aspect of this oversight. You can say: inspectors general, them and their reports. Well, inspectors general can take apart their agencies, and they are sort of in there to do that. That is why we have asked the inspectors general of these relevant intelligence agencies, including the DOD, who do, in fact, have complete access to information about the program, to conduct a comprehensive review of that same program, the whole thing. The FISA bill requires a report of the review be submitted to the Congress in a year and requires that the report, apart from any classified annex, be submitted in an unclassified form that can be made available to the public. That is not a dodge, that is simply a fact. You cannot release classified information to the public. So this is an appropriate way to obtain answers to questions about the President's program and ensure the public's accountability. Critics have also claimed that granting immunity will suggest to the telecommunications companies that that compliance with the law is optional or that Congress believes that the President's program was legal. An examination of the bill that is before us in the Senate would make it impossible for anyone to come to either conclusion. The administration made very strained arguments to circumvent existing laws in carrying out the President's warrantless surveillance program: a claim, for example, that the 2001 authorization for use of military force was a statutory authorization for electronic surveillance outside FISA, even though that authorization did not mention electronic surveillance. What role did we expect telecommunications companies to play in those assessments of legality? To answer that question, we must consider the legal regime under which these companies were operating. Numerous statutes over the years have stressed the importance of cooperation between the telephone companies and the Federal Government, particularly in times of emergency. This has a fairly long history. FISA itself allows the Attorney General to authorize electronic surveillance for short periods of time in emergencies prior to the submission of an application for an order. The law, as it existed in 2001 and as it exists today, grants immunity to telecommunications companies, based solely on a certification from the Attorney General that no warrant or court order is required by law, that the statutory requirements have been met, and that the specified assistance is required. Given the need for speedy cooperation in times of emergency, Congress has never asked companies to question the Government's legal analysis that their cooperation is legal and necessary. Thus, although the telecommunications companies have always been and will always be expected to comply with the law, Congress has told them, prior to 2001, that they were entitled to rely on representations from the highest levels of Government as to what conduct was legal. That is the way it worked. In the case of the President's surveillance program, representations of legality were made to providers from the very highest levels of Government. The FISA bill before the Senate, therefore, eliminates any possible loopholes in existing law, ensuring that neither the telecommunications companies nor any future Presidents have any doubt about what is required to comply with the law. It strengthens the exclusivity language of FISA--I have mentioned that, I do again--making it absolutely clear that the Congress does not intend general statutes to be an exception to FISA's exclusivity requirements. In other words, no future President can therefore claim that an authorization for use of military force allows the Government to circumvent FISA. Even more importantly for the telecommunications companies, the bill before us makes it a criminal offense to conduct electronic surveillance outside of specifically listed statutes. Unlike existing criminal and civil penalties which exempt electronic surveillance that is authorized by statute, the bill puts telecommunications companies on notice that any electronic surveillance outside FISA or specifically listed criminal intercept provisions, in the future, is a criminal offense that is subject to civil penalties for claims brought by individuals who are free to do so. This clear language provides no room for any future President or Attorney General to argue that criminal and civil penalties should not attach for any circumvention of FISA. Now, the improvements to this bill address many of the concerns raised with the possibility that the court might dismiss the lawsuits against the telecommunications companies. The bill before us makes clear that Congress expects compliance with the laws, and it assures that public accountability is on the Government, where it belongs, and not on the companies that acted in good faith in cooperating with the Government. It is important to say that whatever the inspectors general come up with in their analysis of this, and believe me, they will be under the gun to do it right, that they have to report that, both unclassified and classified, to the Intelligence Committees and the Judiciary Committees in both Houses. So the oversight factor again comes in. I think it is time to pass this bill and move forward. I urge my colleagues to oppose the Dodd-Feingold amendment. Mr. SPECTER. Mr. President, would the Senator yield for a question; two questions, very briefly? Mr. ROCKEFELLER. Of course. Mr. SPECTER. The first question relates to the fact, as represented, that some 70 Members of the Senate will not have been briefed on the program. I have been advised by the leadership in the House that most of the Members of the House have not been briefed on the program. The chairman, in detail, went over what the telephone companies cannot do because they cannot make any public disclosures. And my question is: How can we intelligently grant retroactive immunity on a program that most Members of Congress do not know what we are granting retroactive immunity on? Mr. ROCKEFELLER. First of all, I should point out to the distinguished Senator from Pennsylvania that there was a period when members of the Intelligence Committee, members of the Judiciary Committee, were not even able to go to the Executive Office Building to look at any of the orders that came down, President to Attorney General to National Security Advisor, then a letter to the companies. We were not allowed to do that. The chairman and the vice chairman were allowed to do that. Nobody else was. That changed. And it changed because this Senator and a number of others put tremendous pressure, because it was such a ridiculous situation that I could not even talk to my committee members about it. And so they expanded that to include not only committee members but also some staff from both the Intelligence and Judiciary Committees. So I would say to the good Senator that intelligence is difficult, and it is difficult to legislate it on the floor of the Senate. Let me phrase it this way. There is a common view held by many that members of the Intelligence Committee and then, to some extent, the Judiciary Committee, in fact, have the intelligence, they control the intelligence, it is all theirs. I wish to debunk that right now. We control no intelligence. It is entirely controlled, meted out or not, by the executive branch. This executive branch [[Page S6385]] has been extremely cautious, stingy, I would say undemocratic, in doing this. The good Senator from Missouri who is coming in now, the vice chairman of the Intelligence Committee and I have fought like bears to expand the number of people who can have access to these programs. But I cannot argue that the Senator--his point is worthy of thought. I think then one has to consider, are the people on the Judiciary Committee and the people on the Intelligence Committee representative of good faith, people of reasonable intellect, people who know their business, and people who exercise fair judgment? I have been handed a note to say something I have already said, that the public reporting accompanying the Senate Intelligence Committee bill, detailed, with a great deal of specificity, what the companies received from the Federal Government. That still does not allow me to argue the Senator's point. It is a peculiar and difficult nature of legislating intelligence legislation on the floor of the Senate. But it is not weakened by so doing because of what I have indicated, because of what the inspectors general, granted, not in time for this, will come up with, and, secondly, what I would call the very high standard of people who serve on both the Republican and the Democratic side of the Senate and House Judiciary Committee and Intelligence Committee. Mr. SPECTER. Mr. President, my second question is, very briefly---- Mr. BOND. Mr. President, I would like to reclaim my time. The ACTING PRESIDENT pro tempore. There are 34 minutes remaining in opposition. The Senator from West Virginia has the floor. Mr. SPECTER. Mr. President, very briefly on the second question, and I will be very brief--the chairman has gone over the ineffectiveness of Congress in dealing with the statutory requirement for notice to the Intelligence Committees which wasn't followed. We have gone over the ineffectiveness of the courts in dealing with enforcing the Foreign Intelligence Surveillance Act, where the Supreme Court, as I detailed earlier, had ducked the question. So given the ineffectiveness of Congress--and I know, I chaired the Intelligence Committee in the 104th Congress and could find out hardly anything; I found the Director of the CIA knew so little about what was going on--and then the signing statements, the only recourse we have now is to the courts and to Chief Judge Walker. So my question to you is, if we are to maintain separation of powers and determination of constitutionality, article I versus article II powers, how in the world can we act to divest Chief Judge Walker of his jurisdiction in the case, especially in light of the opinion he handed down last Wednesday? Mr. ROCKEFELLER. I respond to the Senator from Pennsylvania by saying he indicated that Judge Walker said this was not a constitutional effort between 2001 and 2007, and it was not constitutional. But when the Senator offers his own amendment this afternoon, I will make the point I make now, that even if it is determined that the program is unconstitutional--and that, for reasons I will explain after lunch when we do the amendment, will not be possible--the immunity fact is not compromised. It is not changed. You are talking about the constitutionality of the White House's action. This bill talks about title I and then title II and a couple of other titles which referred to protecting basic rights, reverse targeting, all kinds of things such as that, which, in fact, came from Senator Feingold, and it is not involved in the constitutionality. It is not involved in that. Even if the judge ruled it unconstitutional, it would make no difference whatsoever on title II. Mr. SPECTER. I respect Senator Bond's time, and I will pursue this with the chairman when my amendment is called up later today. I thank my colleagues. Mrs. BOXER. I have a parliamentary inquiry. The ACTING PRESIDENT pro tempore. The Senator will state it. Mrs. BOXER. Senator Dodd has yielded me 10 minutes of his time to speak in favor of his amendment to strike the immunity clause. I am wondering how I may get recognition here and how much time does Senator Dodd have left in this debate? The ACTING PRESIDENT pro tempore. There is 43 minutes remaining for the Senator from Connecticut. Mrs. BOXER. I wonder if Senator Bond would allow me to take 10 minutes of the 43 minutes Senator Dodd has remaining? Mr. BOND. Mr. President, I am happy to accommodate the Senator from California. With respect to the comments by the Senator from Pennsylvania, I had asked that those be reserved for the arguments in favor of the amendment. How much time remains on the chairman and my side of the aisle? The ACTING PRESIDENT pro tempore. There is 30 minutes. Mr. BOND. We will reserve that and accommodate the Senator from California. I thank the Chair and my colleagues. The ACTING PRESIDENT pro tempore. Without objection, the Senator from California is recognized for 10 minutes. Mrs. BOXER. Mr. President, I rise today to speak in strong support of the amendment offered by Senator Dodd to strike the provision from the bill providing immunity to the telecom companies who assisted President Bush with his warrantless surveillance program; in essence, breaking the law they were supposed to live by. I also note that not every telecom company went along with this. There was at least one, Qwest, that refused to go along because they said it would break the law if they did so. I thank Senators Dodd, Feingold, Leahy, and others for their leadership. I know these are difficult debates to have because people could say: My goodness, they are offering an amendment to the intelligence bill and, ipso facto, that must be a bad thing because they are slowing things down. I have to say, when you are standing up to fight for liberty and justice and the truth, you should never be afraid to slow something down. As a matter of fact, it is our job to do so. I do thank my colleagues for their leadership. I am proud to be a cosponsor of this amendment. In my support of this amendment to strike the immunity to the telecom companies who went along with the President's secret and, I believe, illegal program, I wish to say I am not seeking punishment for them. As a matter of fact, I have stated a long time ago that I support indemnification for the telecom companies. I believe Senator Whitehouse took the lead on that. Senator Specter, at one point, I think, was involved in that and others. I thank them for their leadership on that issue. I understand the predicament of a company that is facing the White House and the White House is saying: You need to spy on your customers because we are asking you to do it for the safety of the people. I understand their predicament. But I do believe, at this point in time, to give retroactive immunity kind of makes a mockery of the fact that we are supposed to be a government of laws, not people. We are a government of laws. Do we then come back and say: By the way, there are three laws over here we don't like so we are going to say to the people who broke them, it is OK, because we have looked at it and we think it is OK? This is America. We are a country of laws. So this issue is so important. I can't overstate how deeply I feel about it. We cannot place the interests of the companies and, frankly, of this administration, that doesn't want the truth to come out, ahead of the constitutional rights of our citizens who seek justice in our courts. This administration is so desperate to have this immunity because they have no interest in the American people finding out the truth. In another subject area, I had a press conference today with a wonderful man who stood up and quit the Environmental Protection Agency because they were thwarting him every step of the way as he tried to tell the truth about the real dangers, as a matter of fact, the endangerment posed by global warming. He sent the White House an e- mail, and it was entitled ``Endangerment Finding.'' The White House called and said: Take it back. We don't want to open it. And he said: It is too late. So that e-mail is floating around in cyberspace because the [[Page S6386]] White House knows, if they open it, it becomes public domain. So secrecy is what this administration lives by. This is a blatant example of where they want to keep secret an illegal program. I don't think we should be complicit. I don't think we should enable them to avoid the constitutional scrutiny of our Federal courts. We can't sacrifice--we can't--the truth for convenient expediency. It is not American. We have a system of government that is built not only on our Constitution but on the notion of checks and balances. The Federal courts are doing their job by checking this administration's broad exercise of Executive power. That is why I will be supporting other amendments that will be coming up that deal with this matter. Last week, Chief Judge Walker, of the Northern District of California, issued an opinion rejecting this administration's claim to have ``inherent authority'' to eavesdrop on Americans outside of statutory law. What does this Senate want to do? A lot of the leaders you hear speaking on this want to make it possible to give retroactively to this administration the inherent authority to eavesdrop on Americans outside the law. In the future, we are fixing it. Good, I am glad. I am happy. But you can't then say, but we are going to look back and change the law. It is not right. Listen to what Judge Walker wrote: Congress appears clearly to have intended to establish the exclusive means for foreign intelligence activities to be conducted. Whatever power the executive might otherwise have had in this regard, FISA limits the power of the executive branch to conduct such activities and it limits the executive branch's authority to assert the State secrets privilege in response to challenges to the legality of its foreign intelligence surveillance activities. So we, Congress, limited the power of the executive. We said: You can't assert the state secrets privilege in response to challenges to the legality of its foreign intelligence activities. And here we are rolling over with bravado to say to this administration--and by the way, I would feel the same way whoever was the President, this administration or any administration--oh, you are the absolute ruler, the King. You can do whatever you want. You can roll over. You can do all of that. We need to protect this country from terrorists. We must. I voted to go to war against bin Laden, and I will not rest until he is gone and we break the back of al-Qaida. Unfortunately, that has gone awry. I will be very willing to have our Government listen in on conversations of the bad actors out there, but I don't want good people being spied on. That was the whole reason FISA came into being in the first place. People seem to forget the original FISA was to protect the people from being spied on, ordinary people. Suddenly, it has been turned on its head. I believe the current process works. Our system of government works. The Federal courts are exercising their constitutional duty to review Executive power. So why in this bill are we seeking to stop that process? Why are we attempting to tie the capable hands of the Federal courts and deny our citizens their day in court? Covering up the truth is not the way to gain or regain the trust of the American people. The truth is the basis of the American ideal. I always marveled, as a little girl and as a young woman, growing up, watching as the truth came out about America. I remember my dad, who loved this country so much, saying to me: Honey, you just watch this country. We are not afraid to admit a mistake. We are not fearful of giving people rights. We will stand up and tell the truth, even when we make the biggest mistakes. Covering up the truth is not the way to gain the trust of the American people. Since learning, in late 2005, that the President violated the trust of our people by spying on our citizens, Congress and the American people have struggled to find out what happened. Last week, we celebrated the day we adopted the Declaration of Independence, Independence Day, July 4. In that historic document is the following phrase: To secure these rights, governments are instituted among men deriving their just powers from the consent of the governed. ``The consent of the governed,'' that means the law has to be behind you when you undertake to do something such as this administration did. They didn't care about the consent of the governed. They didn't care about the law that was in place. Truth is the centerpiece of justice. I don't see how we ever get to the truth if we grant this immunity. I don't. It is not, to me, about the punishment. As I said, I will be happy to have substitution, to have the Government step in. That is not the issue. We need to get to the truth, and we all know how that happens in our country. The immunity provision in this bill sweeps the warrantless program under the carpet. It hides the truth. The people deserve better from us. I will close with a quote by former Supreme Court Justice Sandra Day O'Connor: It is during our most challenging and uncertain moments that our nation's commitment to due process is severely tested. It is in those times we must preserve our commitment at home to the principles for which we fight abroad. I hope we will support the Dodd amendment to strike the immunity provision. I thank the Chair. The ACTING PRESIDENT pro tempore. The Senator from Missouri. Mr. BOND. Mr. President, I understand we are coming up on a hard break, as they say in television, for the party lunches. The ACTING PRESIDENT pro tempore. That is correct. Mr. BOND. Mr. President, I note only before we go into that break that the Senator from Pennsylvania has made a number of comments on time for the supporters of the bill that actually deserve a response. One clear point that needs to be made in response to the Senator from Pennsylvania and the Senator from California is that Judge Walker's actions will not be dismissed if retroactive liability protection is accorded carriers. It is a case against the United States, not a case against the telephone companies. Furthermore, I would say that the dictum in Judge Walker's opinion is contrary to higher, more authoritative courts. So Judge Walker was not correct, and I believe should his case go up on appeal, he will be found not to be accurate. But that does not go, as my colleague from West Virginia has said, to the issue of whether carriers deserve retroactive liability protection. So I will reserve my comments, and I will ask to be recognized when--when will the Senate return to session? The ACTING PRESIDENT pro tempore. At 2:15 p.m. Mr. BOND. Mr. President, I ask unanimous consent that I be recognized for what remains of time on this side. The ACTING PRESIDENT pro tempore. Without objection, it is so ordered. ____________________
[Congressional Record: July 8, 2008 (Senate)]
[Page S6386-S6429]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
[DOCID:cr08jy08-160]                         



 
  FOREIGN INTELLIGENCE SURVEILLANCE AMENDMENTS ACT OF 2008--Continued

  The PRESIDING OFFICER. Under the previous order, the Senator from 
Missouri is recognized for 29 minutes.
  Mr. BOND. Thank you, Mr. President. I appreciate the recognition.
  To begin, to clarify for the floor and our colleagues the arrangement 
the chairman and I have on this bill, I ask unanimous consent that 
Senator Rockefeller manage the time in opposition to the Specter 
amendment and that I manage the time in opposition to the Dodd and 
Bingaman amendments.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. BOND. Mr. President, as I mentioned earlier today, the Senate is 
poised to wrap up consideration of the Foreign Intelligence 
Surveillance Amendments Act of 2008 in the form of H.R. 6304. Now, most 
of my colleagues know this legislation has had a way of hanging around 
for quite awhile, being caught up in the congressional process. Many, 
including myself, believe we should have passed it well before now, but 
it appears that we are on about the

[[Page S6387]]

5 yard line and ready to move it across into the end zone. As one who 
believes this badly needed update to FISA will enhance our Nation's 
security and advance and protect America's civil liberties and privacy 
rights, I certainly hope a strong majority of the Senate will pass this 
legislation unamended tomorrow.
  Some of my colleagues have been intent on using Senate procedures to 
slow this legislation to a snail's pace. They have succeeded in doing 
so, first by choosing to ignore the Director of National Intelligence--
and I will call him the DNI from now on--the DNI's pleas for 
modernization of the Foreign Intelligence Surveillance Act, or FISA, as 
we will call it, in April 2007, for over 3 months, until August of 
2007, and back in December of 2007 when a Democratic Member 
filibustered us past the end of the year and into the recess, into 
2008. It came to the floor in February when it took us several weeks to 
work out a way to move forward; then, once again, over the past few 
weeks, with another Democratic Member filibuster of sorts that pushed 
us past last week's recess. Up until now, we have been delayed, but one 
thing is sure in the Senate. Just as they say in military and basic 
training: No matter what you do, you can't stop the clock. Now that 
some of my colleagues are out of time in delaying any further, the 
Senate will move ahead this week, despite all of these delays.
  I am very proud of the comprehensive compromise legislation before us 
today which passed out of the House with a strong bipartisan vote of 
293 to 129. That was almost 3 weeks ago. As with the Senate's original 
FISA bill that passed several months ago, the compromise that is before 
us required a little give from all sides but, in essence, what we have 
before us today is basically the Senate bill all over again. Everyone 
who studied the language recognizes that. I have here a detailed 
legislative history that I will ask unanimous consent to be printed in 
the Record that explains the provisions of the bill. Chairman 
Rockefeller submitted his own legislative history before the recess, 
and while we largely agree on the description of the legislation, we do 
have a few key differences. So as Vice Chairman of the Intelligence 
Committee, I believe it is important to make my views and those of 
several other Senators a part of the legislative history of this bill 
by including it in the Record. I therefore ask unanimous consent to 
have this legislative description printed in the Record as part of my 
remarks.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 H.R. 6304, FISA AMENDMENTS ACT OF 2008

              Section-by-Section Analysis and Explanation

       This section-by-section analysis is based almost entirely 
     upon the good work of Senator John D. Rockefeller IV, 
     Chairman of the Select Committee on Intelligence. Time did 
     not permit us to reach an agreement on text that may have 
     been mutually agreeable to both of us, so I have modified his 
     section-by-section analysis to reflect my own perspective as 
     a co-manager on this important legislation. A careful 
     comparison of these two versions will reveal that there are 
     fewer areas in which our analyses diverge than in which they 
     agree.
       The consideration of legislation to amend the Foreign 
     Intelligence Surveillance Act of 1978 (``FISA'') in the 110th 
     Congress began with the submission by the Director of 
     National Intelligence (``DNI'') on April 12, 2007 of a 
     proposed Foreign Intelligence Surveillance Modernization Act 
     of 2007, as Title IV of the Administration's proposed 
     Intelligence Authorization Act for Fiscal Year 2008. The 
     DNI's proposal was the subject of an open hearing on May 1, 
     2007 and subsequent closed hearings by the Senate Select 
     Committee on Intelligence, but was not formally introduced. 
     It is available on the Committee's website: http://
     intelligence.senate
     .gov/070501/bill.pdf.
       In May 2007, a decision by the Foreign Intelligence 
     Surveillance Court (FISA Court) led to the creation of 
     significant gaps in our foreign intelligence collection. As a 
     result of this decision, throughout the summer of 2007, the 
     DNI asked Congress to consider his FISA modernization 
     legislation. In response to the DNI's concerns, Congress 
     passed the Protect America Act of 2007, Pub. L. 110-55 
     (August 5, 2007) (``Protect America Act''). As a result of 
     the Protect America Act, the Intelligence Community was able 
     to close immediately the intelligence gaps that had been 
     created by the court's decision. While the Protect America 
     Act provided important authorities for the collection of 
     foreign intelligence, it did not contain any retroactive 
     civil liability protections for those electronic 
     communication service providers who had assisted with the 
     President's Terrorist Surveillance Program following the 
     September 11th terrorist attacks on our nation.
       The Protect America Act included a sunset of February 1, 
     2008. After the passage of the Protect America Act, the 
     Chairman and Vice Chairman began to draft permanent FISA 
     legislation. S. 2248 was reported by the Select Committee on 
     Intelligence on October 26, 2007 (S. Rep. No. 110-209 
     (2007)), and then sequentially reported by the Committee on 
     the Judiciary on November 16, 2007 (S. Rep. No. 110-258 
     (2008)). In the House, the original legislative vehicle was 
     H.R. 3773. It was reported by the Committee on the Judiciary 
     and the Permanent Select Committee on Intelligence on October 
     12, 2007 (H. Rep. No. 110-373 (Parts 1 and 2) (2007)). H.R. 
     3773 passed the House on November 15, 2007. S. 2248 passed 
     the Senate on February 12, 2008, and was sent to the House as 
     an amendment to H.R. 3773. On March 14, 2008, the House 
     returned H.R. 3773 to the Senate with an amendment.
       No formal conference was convened to resolve the 
     differences between the two Houses on H.R. 3773. Instead, 
     following an agreement reached without a formal conference, 
     the House passed a new bill, H.R. 6304, which contains a 
     complete compromise of the differences on H.R. 3773.
       H.R. 6304 is a direct descendant of the Protect America Act 
     and S. 2248, which became the basis for the Senate amendment 
     to H.R. 3373 (February 12, 2008) and influenced the House 
     amendment to H.R. 3373 (March 18, 2008). The Protect America 
     Act, H.R. 3773, as well as the original Senate bill, S. 2248, 
     and the legislative history of those measures constitutes the 
     legislative history of H.R. 6304.
       The section-by-section analysis and explanation set forth 
     below is based on the analysis and explanation in the report 
     of the Select Committee on Intelligence on S. 2248, at S. 
     Rep. No. 110-209, pp. 12-25, as expanded and edited to 
     reflect the floor amendments to S. 2248 and the negotiations 
     that produced H.R. 6304.


                      Overall Organization of Act

       The FISA Amendments Act of 2008 (``FISA Amendments Act'') 
     contains four titles.
       Title I includes, in Section 101, a new Title VII of FISA 
     entitled ``Additional Procedures Regarding Certain Persons 
     Outside the United States.'' This new title of FISA (which 
     will sunset in four and a half years) is a successor to the 
     Protect America Act, with amendments. Sections 102 through 
     110 of the Act contain a number of amendments to FISA apart 
     from the collection issues addressed in the new Title VII of 
     FISA. These include a provision that FISA is the exclusive 
     statutory means for electronic surveillance, important 
     streamlining provisions, and a change in the definitions 
     section of FISA (in Section 110 of the bill) to facilitate 
     foreign intelligence collection against proliferators of 
     weapons of mass destruction.
       Title II establishes a new Title VIII of FISA, entitled 
     ``Protection of Persons Assisting the Government.'' This new 
     title establishes a long-term procedure, in new FISA Section 
     802, for the Government to implement statutory defenses and 
     obtain the dismissal of civil cases against persons, 
     principally electronic communication service providers, who 
     assist elements of the intelligence community in accordance 
     with defined legal documents, namely, orders of the FISA 
     Court or certifications or directives provided for and 
     defined by statute. Section 802 also incorporates a procedure 
     with precise boundaries for civil liability relief for 
     electronic communication service providers who are or may be 
     defendants in civil cases involving an intelligence 
     activity authorized by the President between September 11, 
     2001, and January 17, 2007. In addition, Title II provides 
     for the protection, by way of preemption, of the federal 
     government's ability to conduct intelligence activities 
     without interference by state investigations.
       Title III directs the Inspectors General of the Department 
     of Justice, the Department of Defense, the Office of National 
     Intelligence, the National Security Agency, and any other 
     element of the intelligence community that participated in 
     the President's Surveillance Program authorized by the 
     President between September 11, 2001, and January 17, 2007, 
     to conduct a comprehensive review of the program. The 
     Inspectors General are required to submit a report to the 
     appropriate committees of Congress, within one year, that 
     addresses, among other things, all of the facts necessary to 
     describe the establishment, implementation, product, and use 
     of the product of the President's Surveillance Program, 
     including the participation of individuals and entities in 
     the private sector related to the program.
       Title IV contains important procedures for the transition 
     from the Protect America Act to the new Title VII of FISA. 
     Section 404(a)(7) directs the Attorney General and the DNI, 
     if they seek to replace an authorization under the Protect 
     America Act, to submit the certification and procedures 
     required in accordance with the new Section 702 to the FISA 
     Court at least 30 days before the expiration of such 
     authorizations, to the extent practicable. Title IV 
     explicitly provides for the continued effect of orders, 
     authorizations, and directives issued under the Protect 
     America Act, and of the provisions pertaining to protection 
     from liability, FISA Court jurisdiction, the use of 
     information acquired, and Executive branch reporting 
     requirements, past the statutory sunset of that act. Title IV 
     also contains provisions on the

[[Page S6388]]

     continuation of authorizations, directives, and orders under 
     Title VII that are in effect at the time of the December 31, 
     2012, sunset, until their expiration within the year 
     following the sunset.


               TITLE I. FOREIGN INTELLIGENCE SURVEILLANCE

     Section 101. Targeting the Communications of Persons Outside 
         the United States
       Section 101(a) of the FISA Amendments Act establishes a new 
     Title VII of FISA. Entitled ``Additional Procedures Regarding 
     Certain Persons Outside the United States,'' the new title 
     includes, with important modifications, an authority similar 
     to that granted by the Protect America Act as temporary 
     sections 105A, 105B, and 105C of FISA. Those Protect America 
     Act provisions had been placed within FISA's Title I on 
     electronic surveillance. Moving the amended authority to a 
     title of its own is appropriate because the authority 
     involves not only the acquisition of communications as they 
     are being carried but also while they are stored by 
     electronic communication service providers.
     Section 701. Definitions
       Section 701 incorporates into Title VII the definition of 
     nine terms that are defined in Title I of FISA and used in 
     Title VII: ``agent of a foreign power,'' ``Attorney 
     General,'' ``contents,'' ``electronic surveillance,'' 
     ``foreign intelligence information,'' ``foreign power,'' 
     ``person,'' ``United States,'' and ``United States person.'' 
     It defines the congressional intelligence committees for the 
     purposes of Title VII. Section 701 defines the two courts 
     established in Title I that are assigned responsibilities 
     under Title VII: the FISA Court and the Foreign Intelligence 
     Surveillance Court of Review. Section 701 also defines 
     ``intelligence community'' as found in the National Security 
     Act of 1947. Finally, Section 701 defines a term, not 
     previously defined in FISA, which has an important role in 
     setting the parameters of Title VII: ``electronic 
     communication service provider.'' This definition is 
     connected to the objective that the acquisition of foreign 
     intelligence pursuant to this title is meant to encompass the 
     acquisition of stored electronic communications and related 
     data.
     Section 702. Procedures for Targeting Certain Persons Outside 
         the United States Other than United States Persons
       Section 702(a) sets forth the basic authorization in Title 
     VII, replacing Section 105B of FISA, as added by the Protect 
     America Act. Unlike the Protect America Act, the collection 
     authority in Section 702(a) cannot be exercised until the 
     FISA Court has conducted its review in accordance with 
     subsection (i)(3), or the Attorney General and the DNI, 
     acting jointly, have made a determination that exigent 
     circumstances exist, as defined in Section 702(c)(2). 
     Following such determination and subsequent submission of a 
     certification and related procedures, the Court is required 
     to conduct its review expeditiously. Authorizations must 
     contain an effective date and may be valid for a period of up 
     to one year from that date.
       Subsequent provisions of the Act implement the prior order 
     and effective date provisions of Section 702(a): in addition 
     to Section 702(c)(2) which defines exigent circumstances, 
     Section 702(i)(1)(B) provides that the court shall complete 
     its review of certifications and procedures within 30 days 
     (unless extended under Section 702(j)(2)); Section 
     702(i)(5)(A) provides for the submission of certifications 
     and procedures to the FISA Court at least 30 days before the 
     expiration of authorizations that are being replaced, to the 
     extent practicable; and Section 702(i)(5)(B) provides for the 
     continued effectiveness of expiring certifications and 
     procedures until the court issues an order concerning their 
     replacements.
       Section 105B and Section 702(a) differ in other important 
     respects. Section 105B authorized the acquisition of foreign 
     intelligence information ``concerning'' persons reasonably 
     believed to be outside the United States. To make clear that 
     all collection under Title VII must be targeted at persons 
     who are reasonably believed to be outside the United States, 
     Section 702(a) eliminates the word ``concerning'' and instead 
     authorizes ``the targeting of persons reasonably believed to 
     be located outside the United States to collect foreign 
     intelligence information.''
       Section 702(b) establishes five related limitations on the 
     authorization in Section 702(a). Overall, the limitations 
     ensure that the new authority is not used for surveillance 
     directed at persons within the United States or at United 
     States persons. The first is a specific prohibition on using 
     the new authority to target intentionally any person within 
     the United States. The second provides that the authority may 
     not be used to conduct ``reverse targeting,'' the intentional 
     targeting of a person reasonably believed to be outside the 
     United States if the purpose of the acquisition is to target 
     a person reasonably believed to be in the United States. If 
     the purpose is to target a person reasonably believed to be 
     in the United States, then the electronic surveillance should 
     be conducted in accordance with FISA or the criminal wiretap 
     statutes. The third bars the intentional targeting of a 
     United States person reasonably believed to be outside the 
     United States. In order to target such United States person, 
     acquisition must be conducted under three subsequent sections 
     of Title VII, which require individual FISA court orders for 
     United States persons: Sections 703, 704, and 705. The fourth 
     limitation goes beyond targeting (the object of the first 
     three limitations) and prohibits the intentional acquisition 
     of any communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States. The fifth is an overarching 
     mandate that an acquisition authorized in Section 702(a) 
     shall be conducted in a manner consistent with the Fourth 
     Amendment to the U.S. Constitution, which provides for ``the 
     right of the people to be secure in their persons, houses, 
     papers, and effects, against unreasonable searches and 
     seizures.''
       Section 702(c) governs the conduct of acquisitions. 
     Pursuant to Section 702(c)(1), acquisitions authorized under 
     Section 702(a) may be conducted only in accordance with 
     targeting and minimization procedures approved at least 
     annually by the FISA Court and a certification of the 
     Attorney General and the DNI, upon its submission in 
     accordance with Section 702(g). Section 702(c)(2) describes 
     the ``exigent circumstances'' in which the Attorney General 
     and Director of National Intelligence may authorize targeting 
     for a limited time without a prior court order for purposes 
     of subsection (a). Section 702(c)(2) provides that the 
     Attorney General and the DNI may make a determination that 
     exigent circumstances exist because, without immediate 
     implementation of an authorization under Section 702(a), 
     intelligence important to the national security of the United 
     States may be lost or not timely acquired and time does not 
     permit the issuance of an order pursuant to Section 702(i)(3) 
     prior to the implementation of such authorization. Section 
     702(c)(3) provides that the Attorney General and the DNI may 
     make such a determination before the submission of a 
     certification or by amending a certification at any time 
     during which judicial review of such certification is pending 
     before the FISA Court.
       Section 702(c)(4) addresses the concern, reflected in 
     Section 105A of FISA as added by the Protect America Act, 
     that the definition of electronic surveillance in Title I 
     might prevent use of the new procedures. To address this 
     concern, Section 105A redefined the term ``electronic 
     surveillance'' to exclude ``surveillance directed at a person 
     reasonably believed to be located outside of the United 
     States.'' In contrast, Section 702(c)(4) does not change the 
     definition of electronic surveillance, but clarifies the 
     intent of Congress to allow the targeting of foreign targets 
     outside the United States in accordance with Section 702 
     without an application for a court order under Title I of 
     FISA. The addition of this construction paragraph, as well as 
     the language in Section 702(a) that an authorization may 
     occur ``notwithstanding any other law,'' makes clear that 
     nothing in Title I of FISA shall be construed to require a 
     court order under that title for an acquisition that is 
     targeted in accordance with Section 702 at a foreign person 
     outside the United States.
       Section 702(d) provides, in a manner essentially identical 
     to the Protect America Act, for the adoption by the Attorney 
     General, in consultation with the DNI, of targeting 
     procedures that are reasonably designed to ensure that 
     collection is limited to targeting persons reasonably 
     believed to be outside the United States. As provided in the 
     Protect America Act, the targeting procedures are subject to 
     judicial review and approval. In addition to the requirements 
     of the Protect America Act, however, Section 702(d) provides 
     that the targeting procedures also must be reasonably 
     designed to prevent the intentional acquisition of any 
     communication as to which the sender and all intended 
     recipients are known at the time of the acquisition to be 
     located in the United States. Section 702(d)(2) subjects 
     these targeting procedures to judicial review and approval.
       Section 702(e) provides that the Attorney General, in 
     consultation with the DNI, shall adopt, for acquisitions 
     authorized by Section 702(a), minimization procedures that 
     are consistent with Section 101(h) or 301(4) of FISA, which 
     establish FISA's minimization requirements for electronic 
     surveillance and physical searches. Unlike the Protect 
     America Act, Section 702(e)(2) provides that the minimization 
     procedures, which are essential to the protection of United 
     States persons, shall be subject to judicial review and 
     approval.
       Section 702(f) provides that the Attorney General, in 
     consultation with the DNI, shall adopt guidelines to ensure 
     compliance with the limitations in Section 702(b), including 
     prohibitions on the acquisition of purely domestic 
     communications, targeting persons within the United States, 
     targeting United States persons located outside the United 
     States, and reverse targeting. Such guidelines shall also 
     ensure that an application for a court order is filed as 
     required by FISA. It is intended that these guidelines will 
     provide clear requirements and procedures governing the 
     appropriate implementation of the authority under this title 
     of FISA. The Attorney General is to provide these guidelines 
     to the congressional intelligence committees, the judiciary 
     committees of the House of Representatives and the Senate, 
     and the FISA Court. Subsequent provisions implement the 
     guidelines requirement. See Section 702(g)(2)(A)(iii) 
     (certification requirements); Section 702(l)(1) and 702(l)(2) 
     (Attorney General and DNI assessment of compliance with 
     guidelines); and Section 707(b)(1)(G)(ii) (reporting on 
     noncompliance with guidelines).
       Section 702(g) requires that the Attorney General and the 
     DNI provide to the FISA Court, prior to implementation of an 
     authorization under subsection (a), a written certification, 
     with any supporting affidavits. In

[[Page S6389]]

     exigent circumstances, the Attorney General and DNI may make 
     a determination that, without immediate implementation, 
     intelligence important to the national security may be lost 
     or not timely acquired prior to the implementation of an 
     authorization. It is expected that the Attorney General and 
     the DNI will utilize this ``exigent circumstances'' exception 
     as often as necessary to ensure the protection of our 
     national security. For this reason, the standard to use this 
     authority is much lower than in traditional emergency 
     situations under FISA. In exigent circumstances, if time does 
     not permit the submission of a certification prior to the 
     implementation of an authorization, the certification must be 
     submitted to the FISA Court no later than seven days after 
     the determination is made. The seven-day time period for 
     submission of a certification in the case of exigent 
     circumstances is identical to the time period by which the 
     Attorney General must apply for a court order after 
     authorizing an emergency surveillance under other provisions 
     of FISA, as amended by this Act.
       Section 702(g)(2) sets forth the requirements that must be 
     contained in the written certification. The required elements 
     are: (1) the targeting and minimization procedures have been 
     approved by the FISA Court or will be submitted to the court 
     with the certification; (2) guidelines have been adopted to 
     ensure compliance with the limitations of subsection (b); (3) 
     those procedures and guidelines are consistent with the 
     Fourth Amendment; (4) the acquisition is targeted at persons 
     reasonably believed to be outside the United States; (5) a 
     significant purpose of the acquisition is to obtain foreign 
     intelligence information; and (6) an effective date for the 
     authorization that in most cases is at least 30 days after 
     the submission of the written certification. Additionally, as 
     an overall limitation on the method of acquisition permitted 
     under Section 702, the certification must attest that the 
     acquisition involves obtaining foreign intelligence 
     information from or with the assistance of an electronic 
     communication service provider.
       Requiring an effective date in the certification serves to 
     identify the beginning of the period of authorization (which 
     is likely to be a year) for collection and to alert the FISA 
     Court of when the Attorney General and DNI are seeking to 
     begin collection. Section 702(g)(3) permits the Attorney 
     General and DNI to change the effective date in the 
     certification by amending the certification.
       As with the Protect America Act, the certification under 
     Section 702(g)(4) is not required to identify the specific 
     facilities, places, premises, or property at which the 
     acquisition under Section 702(a) will be directed or 
     conducted. The certification shall be subject to review by 
     the FISA Court.
       Section 702(h) authorizes the Attorney General and the DNI 
     to direct, in writing, an electronic communication service 
     provider to furnish the Government with all information, 
     facilities, or assistance necessary to accomplish the 
     acquisition authorized under Section 702(a). It is important 
     to note that such directives may be issued only in exigent 
     circumstances pursuant to Section 702(c)(2) or after the FISA 
     Court has conducted its review of the certification and the 
     targeting and minimization procedures and issued an order 
     pursuant to Section 702(i)(3). Section 702(h) requires 
     compensation for this assistance and provides that no cause 
     of action shall lie in any court against an electronic 
     communication service provider for its assistance in 
     accordance with a directive. It also establishes expedited 
     procedures in the FISA Court for a provider to challenge the 
     legality of a directive or the Government to enforce it. In 
     either case, the question for the court is whether the 
     directive meets the requirements of Section 702 and is 
     otherwise lawful. Whether the proceeding begins as a provider 
     challenge or a Government enforcement petition, if the court 
     upholds the directive as issued or modified, the court shall 
     order the provider to comply. Failure to comply may be 
     punished as a contempt of court. The proceedings shall be 
     expedited and decided within 30 days, unless that time is 
     extended under Section 702(j)(2).
       Section 702(i) provides for judicial review of any 
     certification required by Section 702(g) and the targeting 
     and minimization procedures adopted pursuant to Sections 
     702(d) and 702(e). In accordance with Section 702(i)(5), if 
     the Attorney General and the DNI seek to reauthorize or 
     replace an authorization in effect under the Act, they shall 
     submit, to the extent practicable, the certification and 
     procedures at least 30 days prior to the expiration of such 
     authorization.
       The court shall review certifications to determine whether 
     they contain all the required elements. It shall review 
     targeting procedures to assess whether they are reasonably 
     designed to ensure that the acquisition activity is limited 
     to the targeting of persons reasonably believed to be located 
     outside the United States and prevent the intentional 
     acquisition of any communication whose sender and intended 
     recipients are known at the time of acquisition to be located 
     in the United States. The Protect America Act had limited the 
     review of targeting procedures to a ``clearly erroneous'' 
     standard; Section 702(i) omits that limitation. For 
     minimization procedures, Section 702(i) provides that the 
     court shall review them to assess whether they meet the 
     statutory requirements. The court is to review the 
     certifications and procedures and issue its order within 30 
     days after they were submitted unless that time is extended 
     under Section 702(j)(2). The Attorney General and the DNI may 
     also amend the certification or procedures at any time under 
     Section 702(i)(1)(C), but those amended certifications or 
     procedures must be submitted to the court in no more than 7 
     days after amendment. The amended procedures may be used 
     pending the court's review.
       If the FISA Court finds that the certification contains all 
     the required elements and that the targeting and minimization 
     procedures are consistent with the requirements of 
     subsections (d) and (e) and with the Fourth Amendment, the 
     court shall enter an order approving their use or continued 
     use for the acquisition authorized by Section 702(a). If 
     it does not so find, the court shall order the Government, 
     at its election, to correct any deficiencies or cease, or 
     not begin, the acquisition. If acquisitions have begun, 
     they may continue during any rehearing en banc of an order 
     requiring the correction of deficiencies. If the 
     Government appeals to the Foreign Intelligence 
     Surveillance Court of Review, any collection that has 
     begun may continue at least until that court enters an 
     order, not later than 60 days after filing of the petition 
     for review, which determines whether all or any part of 
     the correction order shall be implemented during the 
     appeal.
       Section 702(j)(1) provides that judicial proceedings are to 
     be conducted as expeditiously as possible. Section 702(j)(2) 
     provides that the time limits for judicial review in Section 
     702 (for judicial review of certifications and procedures or 
     in challenges or enforcement proceedings concerning 
     directives) shall apply unless extended, by written order, as 
     necessary for good cause in a manner consistent with national 
     security.
       Section 702(k) requires that records of proceedings under 
     Section 702 shall be maintained by the FISA Court under 
     security measures adopted by the Chief Justice in 
     consultation with the Attorney General and the DNI. In 
     addition, all petitions are to be filed under seal and the 
     FISA Court, upon the request of the Government, shall 
     consider ex parte and in camera any Government submission or 
     portions of a submission that may include classified 
     information. The Attorney General and the DNI are to retain 
     directives made or orders granted for not less than 10 years.
       Section 702(l) provides for oversight of the implementation 
     of Title VII. It has three parts. First, the Attorney General 
     and the DNI shall assess semiannually under subsection (l)(1) 
     compliance with the targeting and minimization procedures, 
     and the Attorney General guidelines for compliance with 
     limitations under Section 702(b), and submit the assessment 
     to the FISA Court and to the congressional intelligence and 
     judiciary committees, consistent with congressional rules.
       Second, under subsection (l)(2)(A), the Inspector General 
     of the Department of Justice and the Inspector General 
     (``IG'') of any intelligence community element authorized to 
     acquire foreign intelligence under Section 702(a) are 
     authorized to review compliance of their agency or element 
     with the targeting and minimization procedures adopted in 
     accordance with subsections (d) and (e) and the guidelines 
     adopted in accordance with subsection (f). Subsections 
     (l)(2)(B) and (l)(2)(C) mandate several statistics that the 
     IGs shall review with respect to United States persons, 
     including the number of disseminated intelligence reports 
     that contain references to particular known U.S. persons, the 
     number of U.S. persons whose identities were disseminated in 
     response to particular requests, and the number of targets 
     later determined to be located in the United States. Their 
     reports shall be submitted to the Attorney General, the DNI, 
     and the appropriate congressional committees. Section 
     702(l)(2) provides no statutory schedule for the completion 
     of these IG reviews; the IGs should coordinate with the heads 
     of their agencies about the timing for completion of the IG 
     reviews so that they are done at a time that would be useful 
     for the agency heads to complete their semiannual reviews.
       Third, under subsection (l)(3), the head of an intelligence 
     community element that conducts an acquisition under Section 
     702 shall review annually whether there is reason to believe 
     that foreign intelligence information has been or will be 
     obtained from the acquisition and provide an accounting of 
     information pertaining to United States persons similar to 
     that included in the IG report. Subsection (l)(3) also 
     encourages the head of the element to develop procedures to 
     assess the extent to which the new authority acquires the 
     communications of U.S. persons, and to report the results of 
     such assessment. The review is to be used by the head of the 
     element to evaluate the adequacy of minimization procedures. 
     The annual review is to be submitted to the FISA Court, the 
     Attorney General and the DNI, and to the appropriate 
     congressional committees.
     Section 703. Certain Acquisition Inside the United States 
         Targeting United States Persons Outside the United States
       Section 703 governs the targeting of United States persons 
     who are reasonably believed to be outside the United States 
     when the acquisition of foreign intelligence is conducted 
     inside the United States. The authority and procedures of 
     Section 703 apply when the acquisition either constitutes 
     electronic surveillance, as defined in Title I of FISA, or is 
     of stored electronic communications or stored electronic 
     data. If the United States person returns to the United 
     States, acquisition under Section 703 must cease. The 
     Government may always, however, obtain an

[[Page S6390]]

     order or authorization under another title of FISA.
       The application procedures and provisions for a FISA Court 
     order in Sections 703(b) and 703(c) are drawn from Titles I 
     and III of FISA. Key among them is the requirement that the 
     FISA Court determine that there is probable cause to believe 
     that, for the United States person who is the target of the 
     surveillance, the person is reasonably believed to be located 
     outside the United States and is a foreign power or an agent, 
     officer, or employee of a foreign power. The inclusion of 
     United States persons who are officers or employees of a 
     foreign power, as well as those who are agents of a foreign 
     power as that term is used in FISA, is intended to permit the 
     type of collection against United States persons outside the 
     United States that has been allowed under Executive Order 
     12333 and existing Executive branch guidelines. The FISA 
     Court shall also review and approve minimization procedures 
     that will be applicable to the acquisition, and shall order 
     compliance with such procedures.
       As with FISA orders against persons in the United States, 
     FISA orders against United States persons outside of the 
     United States under Section 703 may not exceed 90 days and 
     may be renewed for additional 90-day periods upon the 
     submission of renewal applications. Emergency authorizations 
     under Section 703 are consistent with the requirements for 
     emergency authorizations in FISA against persons in the 
     United States, as amended by this Act; the Attorney 
     General may authorize an emergency acquisition if an 
     application is submitted to the FISA Court in not more 
     than seven days.
       Section 703(g) is a construction provision that clarifies 
     that, if the Government obtains an order and targets a 
     particular United States person in accordance with Section 
     703, FISA does not require the Government to seek a court 
     order under any other provision of FISA to target that United 
     States person while that person is reasonably believed to be 
     located outside the United States.
     Section 704. Other Acquisitions Targeting United States 
         Persons Outside the United States
       Section 704 governs other acquisitions that target United 
     States persons who are outside the United States. Sections 
     702 and 703 address acquisitions that constitute electronic 
     surveillance or the acquisition of stored electronic 
     communications. In contrast, Section 704 addresses any 
     targeting of a United States person outside of the United 
     States under circumstances in which that person has a 
     reasonable expectation of privacy and a warrant would be 
     required if the acquisition occurred within the United 
     States. It thus covers not only communications intelligence, 
     but, if it were to occur, the physical search for foreign 
     intelligence purposes of a home, office, or business of a 
     United States person by an element of the United States 
     intelligence community, outside of the United States.
       Pursuant to Section 704(a)(3), if the targeted United 
     States person is reasonably believed to be in the United 
     States while an order under Section 704 is in effect, the 
     acquisition against that person shall cease unless authority 
     is obtained under another applicable provision of FISA. The 
     Government may not use Section 704 to authorize an 
     acquisition of foreign intelligence inside the United States.
       Section 704(b) describes the application to the FISA Court 
     that is required. For an order under Section 704(c), the FISA 
     Court must determine that there is probable cause to believe 
     that the United States person who is the target of the 
     acquisition is reasonably believed to be located outside the 
     United States and is a foreign power, or an agent, officer, 
     or employee of a foreign power. An order is valid for a 
     period not to exceed 90 days, and may be renewed for 
     additional 90-day periods upon submission of renewal 
     applications meeting application requirements.
       Because an acquisition under Section 704 is conducted 
     outside the United States, or is otherwise not covered by 
     FISA, the FISA Court is expressly not given jurisdiction to 
     review the means by which an acquisition under this section 
     may be conducted. Although the FISA Court's review is limited 
     to determinations of probable cause, Section 704 anticipates 
     that any acquisition conducted pursuant to a Section 704 
     order will in all other respects be conducted in compliance 
     with relevant regulations and Executive Orders governing the 
     acquisition of foreign intelligence outside the United 
     States, including Executive Order 12333 or any successor 
     order.
     Section 705. Joint Applications and Concurrent Authorizations
       Section 705 provides that if an acquisition targeting a 
     United States person under Section 703 or 704 is proposed to 
     be conducted both inside and outside the United States, a 
     judge of the FISA Court may issue simultaneously, upon the 
     request of the Government in a joint application meeting the 
     requirements of Sections 703 and 704, orders under both 
     sections as appropriate. If an order authorizing electronic 
     surveillance or physical search has been obtained under 
     Section 105 or 304, and that order is still in effect, the 
     Attorney General may authorize, without an order under 
     Section 703 or 704, the targeting of that United States 
     person for the purpose of acquiring foreign intelligence 
     information while such person is reasonably believed to be 
     located outside the United States.
     Section 706. Use of Information Acquired Under Title VII
       Section 706 fills a void that has existed under the Protect 
     America Act which had contained no provision governing the 
     use of acquired intelligence. Section 706(a) provides that 
     information acquired from an acquisition conducted under 
     Section 702 shall be deemed to be information acquired from 
     an electronic surveillance pursuant to Title I of FISA for 
     the purposes of Section 106 of FISA, which is the provision 
     of Title I of FISA that governs public disclosure or use in 
     criminal proceedings. The one exception is for subsection (j) 
     of Section 106, as the notice provision in that subsection, 
     while manageable in individual Title I proceedings, would 
     present a difficult national security question when applied 
     to a Title VII acquisition. Section 706(b) also provides that 
     information acquired from an acquisition conducted under 
     Section 703 shall be deemed to be information acquired from 
     an electronic surveillance pursuant to Title I of FISA for 
     the purposes of Section 106 of FISA; however, the notice 
     provision of subsection (j) applies. Section 706 ensures a 
     uniform standard for the types of information acquired under 
     the new title.
     Section 707. Congressional Oversight
       Section 707 provides for additional congressional oversight 
     of the implementation of Title VII. The Attorney General is 
     to fully inform ``in a manner consistent with national 
     security'' the congressional intelligence and judiciary 
     committees about implementation of the Act at least 
     semiannually. Each report is to include any certifications 
     made under Section 702, the reasons for any determinations 
     made under Section 702(c)(2), any directives issued during 
     the reporting period, a description of the judicial review 
     during the reporting period to include a copy of any order or 
     pleading that contains a significant legal interpretation of 
     Section 702, incidents of noncompliance and procedures to 
     implement the section. With respect to Sections 703 and 704, 
     the report must contain the number of applications made for 
     orders under each section and the number of such orders 
     granted, modified and denied, as well as the number of 
     emergency authorizations made pursuant to each section and 
     the subsequent orders approving or denying the relevant 
     application.
     Section 708. Savings Provision
       Section 708 provides that nothing in Title VII shall be 
     construed to limit the authority of the Government to seek an 
     order or authorization under, or otherwise engage in any 
     activity that is authorized under, any other title of FISA. 
     This language is designed to ensure that Title VII cannot be 
     interpreted to prevent the Government from submitting 
     applications and seeking orders under other titles of FISA.
     Section 101(b). Table of Contents
       Section 101(b) of the bill amends the table of contents in 
     the first section of FISA.
     Subsection 101(c). Technical and Conforming Amendments
       Section 101(c) of the bill provides for technical and 
     conforming amendments in Title 18 of the United States Code 
     and in FISA.
     Section 102. Statement of Exclusive Means by which Electronic 
         Surveillance and Interception of Certain Communications 
         May Be Conducted
       Section 102(a) amends Title I of FISA by adding a new 
     Section 112 of FISA. Under the heading of ``Statement of 
     Exclusive Means by which Electronic Surveillance and 
     Interception of Certain Communications May Be Conducted,'' 
     the new Section 112(a) states: ``Except as provided in 
     subsection (b), the procedures of chapters 119, 121 and 126 
     of Title 18, United States Code, and this Act shall be the 
     exclusive means by which electronic surveillance and the 
     interception of domestic wire, oral, or electronic 
     communication may be conducted.'' New Section 112(b) of FISA 
     provides that only an express statutory authorization for 
     electronic surveillance or the interception of domestic wire, 
     oral, or electronic communications, other than as an 
     amendment to FISA or chapters 119, 121, or 206 of Title 18 
     shall constitute an additional exclusive means for the 
     purpose of subsection (a). The new Section 112 is based on a 
     provision which Congress enacted in 1978 as part of the 
     original FISA that is codified in Section 2511(2)(f) of Title 
     18, United States Code, and which will remain in the U.S. 
     Code.
       Section 102(a) strengthens the statutory provisions 
     pertaining to electronic surveillance and interception of 
     certain communications to clarify the express intent of 
     Congress that these statutory provisions are the exclusive 
     means for conducting electronic surveillance and interception 
     of certain communications. This section makes it clear that 
     any existing statute cannot be used in the future as the 
     statutory basis for circumventing FISA. Section 102(a) is 
     intended to ensure that additional exclusive means for 
     surveillance or interceptions shall be express statutory 
     authorizations.
       In accord with Section 102(b) of the bill, Section 109 of 
     FISA that provides for criminal penalties for violations of 
     FISA, is amended to implement the exclusivity requirement 
     added in Section 112 by making clear that the safe harbor to 
     FISA's criminal offense provision is limited to statutory 
     authorizations for electronic surveillance or the 
     interception of domestic wire, oral, or electronic 
     communications which are pursuant to a provision of FISA, one 
     of the enumerated chapters of the criminal code, or a

[[Page S6391]]

     statutory authorization that expressly provides an additional 
     exclusive means for conducting the electronic surveillance. 
     By virtue of the cross-reference in Section 110 of FISA to 
     Section 109, that limitation on the safe harbor in Section 
     109 applies equally to Section 110 on civil liability for 
     conducting unlawful electronic surveillance.
       Section 102(c) requires that, if a certification for 
     assistance to obtain foreign intelligence is based on 
     statutory authority, the certification provided to an 
     electronic communication service provider is to include the 
     specific statutory authorization for the request for 
     assistance and certify that the statutory requirements have 
     been met. This provision is designed to assist electronic 
     communication service providers in understanding the legal 
     basis for any government request for assistance.
       In the section-by-section analysis of S. 2248, the report 
     of the Select Committee on Intelligence (S. Rep. No. 110-209, 
     at 18) described and incorporated the discussion of 
     exclusivity in the 1978 conference report on the original 
     Foreign Intelligence Surveillance Act, in particular the 
     conferees' description of the analysis in Youngstown Sheet 
     and Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) and the 
     application of the principles described there to the current 
     legislation. That full discussion should be deemed 
     incorporated in this section-by-section analysis.
       Section 102 of the bill will not--and cannot--preclude the 
     President from exercising his Article II constitutional 
     authority to conduct warrantless foreign intelligence 
     surveillance. At most, this exclusive means provision only 
     places the President at his ``lowest ebb'' under the third 
     prong of the Youngstown case analysis. That is exactly where 
     the President was when FISA was passed back in 1978 and the 
     ``revised'' exclusive means provision in this bill does not 
     change this fact. Even at his lowest ebb, the President's 
     authority with respect to intercepting enemy communications 
     is still quite strong, especially when compared to the non-
     existent capability of Congress to engage in similar 
     interception activities.
       Further, Section 102(c) actually reinforces the President's 
     Article II authority, stating that ``if a certification . . . 
     for assistance to obtain foreign intelligence information is 
     based on statutory authority, the certification shall 
     identify the specific statutory provision and shall certify 
     that the statutory requirements have been met.'' The 
     implication from such language is that if a certification is 
     not based on statutory authority, then citing statutory 
     authority would be unnecessary. This language thus 
     acknowledges that certifications may be based on something 
     other than statutory authority, namely the President's 
     inherent constitutional authority.
     Section 103. Submittal to Congress of Certain Court Orders 
         under the Foreign Intelligence Surveillance Act of 1978
       Section 6002 of the Intelligence Reform Act and Terrorism 
     Prevention Act of 2004 (Pub. L. 108-458), added a Title VI to 
     FISA that augments the semiannual reporting obligations of 
     the Attorney General to the intelligence and judiciary 
     committees of the Senate and House of Representatives. Under 
     Section 6002, the Attorney General shall report a summary of 
     significant legal interpretations of FISA in matters before 
     the FISA Court or Foreign Intelligence Surveillance Court of 
     Review. The requirement extends to interpretations presented 
     in applications or pleadings filed with either court by the 
     Department of Justice. In addition to the semiannual summary, 
     the Department of Justice is required to provide copies of 
     court decisions, but not orders, which include significant 
     interpretations of FISA. The importance of the reporting 
     requirement is that, because the two courts conduct their 
     business in secret, Congress needs the reports to know how 
     the law it has enacted is being interpreted.
       Section 103 adds to the Title VI reporting requirements in 
     three ways. First, as significant legal interpretations may 
     be included in orders as well as opinions, Section 103 
     requires that orders also be provided to the committees. 
     Second, as the semiannual report often takes many months 
     after the end of the semiannual period to prepare, Section 
     103 accelerates provision of information about significant 
     legal interpretations by requiring the submission of such 
     decisions, orders, or opinions within 45 days. Finally, 
     Section 103 requires that the Attorney General shall submit a 
     copy of any such decision, order, or opinion, and any 
     pleadings, applications, or memoranda of law associated with 
     such decision, order, or opinion, from the period five years 
     preceding enactment of the bill that has not previously been 
     submitted to the congressional intelligence and judiciary 
     committees. The Attorney General, in consultation with the 
     Director of National Intelligence, may authorize redactions 
     of documents submitted in accordance with subsection 103(c) 
     as necessary to protect national security.


    Overview of Sections 104 through Section 109; FISA Streamlining

       Sections 104 through 109 amend various sections of FISA for 
     such purposes as reducing a paperwork requirement, modifying 
     time requirements, or providing additional flexibility in 
     terms of the range of Government officials who may authorize 
     FISA actions. Collectively, these amendments are described as 
     streamlining amendments. In general, they are intended to 
     increase the efficiency of the FISA process without depriving 
     the FISA Court of the information it needs to make findings 
     required under FISA.
     Section 104. Applications for Court Orders
       Section 104 of the bill strikes two of the eleven 
     paragraphs on standard information in an application for a 
     surveillance order under Section 104 of FISA, either because 
     the information is provided elsewhere in the application 
     process or is not needed.
       In various places, FISA has required the submission of 
     ``detailed'' information, as in Section 104 of FISA, ``a 
     detailed description of the nature of the information sought 
     and the type of communications or activities to be subjected 
     to the surveillance.'' The DNI requested legislation that 
     asked that ``summary'' be substituted for ``detailed'' for 
     this and other application requirements, in order to reduce 
     the length of FISA applications. In general, the bill 
     approaches this by eliminating the mandate for ``detailed'' 
     descriptions, leaving it to the FISA Court and the Government 
     to work out the level of specificity needed by the FISA Court 
     to perform its statutory responsibilities. With respect to 
     one item of information, ``a statement of the means by which 
     the surveillance will be effected,'' the bill modifies the 
     requirement by allowing for ``a summary statement.''
       In aid of flexibility, Section 104 increases the number of 
     individuals who may make FISA applications by allowing the 
     President to designate the Deputy Director of the Federal 
     Bureau of Investigation (``FBI'') as one of those 
     individuals. This should enable the Government to move more 
     expeditiously to obtain certifications when the Director of 
     the FBI is away from Washington or otherwise unavailable.
       Subsection (b) of Section 104 of FISA is eliminated as 
     obsolete in light of current applications. The Director of 
     the Central Intelligence Agency is added to the list of 
     officials who may make a written request to the Attorney 
     General to personally review a FISA application as the head 
     of the CIA had this authority prior to the establishment of 
     the Office of the Director of National Intelligence.
     Section 105. Issuance of an Order
       Section 105 strikes from Section 105 of FISA several 
     unnecessary or obsolete provisions. Section 105 strikes 
     subsection (c)(1)(F) of Section 105 of FISA which requires 
     minimization procedures applicable to each surveillance 
     device employed because Section 105(c)(2)(A) requires each 
     order approving electronic surveillance to direct the 
     minimization procedures to be followed.
       Subsection (a)(6) reorganizes, in more readable form, the 
     emergency surveillance provision of Section 105(f), now 
     redesignated Section 105(e), with a substantive change of 
     extending from 3 to 7 days the time by which the Attorney 
     General must apply for and obtain a court order after 
     authorizing an emergency surveillance. The purpose of the 
     change is to ease the administrative burdens upon the 
     Department of Justice, the Intelligence Community, and the 
     FISA Court currently imposed by the three-day requirement.
       Subsection (a)(7) adds a new paragraph to Section 105 of 
     FISA to require the FISA Court, on the Government's request, 
     when granting an application for electronic surveillance, to 
     authorize at the same time the installation and use of pen 
     registers and trap and trace devices. This change recognizes 
     that when the Intelligence Community seeks to use electronic 
     surveillance, pen register and trap and trace information is 
     often essential to conducting complete surveillance, and the 
     Government should not need to file two separate applications.
     Section 106. Use of Information
       Section 106 amends Section 106(i) of FISA with regard to 
     the limitations on the use of unintentionally acquired 
     information. Currently, Section 106(i) of FISA provides that 
     unintentionally acquired radio communication between persons 
     located in the United States must be destroyed unless the 
     Attorney General determines that the contents of the 
     communications indicates a threat of death or serious bodily 
     harm to any person. Section 106 of the bill amends subsection 
     106(i) of FISA by making it technology neutral on the 
     principle that the same rule for the use of information 
     indicating threats of death or serious harm should apply no 
     matter how the communication is transmitted.
     Section 107. Amendments for Physical Searches
       Section 107 makes changes to Title III of FISA: changing 
     applications and orders for physical searches to correspond 
     to changes in Sections 104 and 105 on reduction of some 
     application paperwork; providing the FBI with administrative 
     flexibility in enabling its Deputy Director to be a 
     certifying officer; and extending the time, from 3 days to 7 
     days, for applying for and obtaining a court order after 
     authorization of an emergency search.
       Section 303(a)(4)(C), which will be redesignated Section 
     303(a)(3)(C), requires that each application for physical 
     search authority state the applicant's belief that the 
     property is ``owned, used, possessed by, or is in transmit to 
     or from'' a foreign power or an agent of a foreign power. In 
     order to provide needed flexibility and to make the provision 
     consistent with electronic surveillance provisions, Section 
     107(a)(1)(D) of the bill allows the FBI to apply for 
     authority to search property that also is ``about to be'' 
     owned, used, or possessed by a foreign power or agent of a 
     foreign power, or in transit to or from one.

[[Page S6392]]

     Section 108. Amendments for Emergency Pen Registers and Trap 
         and Trace Devices
       Section 108 amends Section 403 of FISA to extend from 2 
     days to 7 days the time for applying for and obtaining a 
     court order after an emergency installation of a pen register 
     or trap and trace device. This change harmonizes among FISA's 
     provisions for electronic surveillance, search, and pen 
     register/trap and trace authority the time requirements that 
     follow the Attorney General's decision to take emergency 
     action.
     Section 109. Foreign Intelligence Surveillance Court
       Section 109 contains four amendments to Section 103 of 
     FISA, which establishes the FISA Court and the Foreign 
     Intelligence Surveillance Court of Review.
       Section 109(a) amends Section 103 to provide that judges on 
     the FISA Court shall be drawn from ``at least seven'' of the 
     United States judicial circuits. The current requirement--
     that the eleven judges be drawn from seven judicial circuits 
     (with the number appearing to be a ceiling rather than a 
     floor) has proven unnecessarily restrictive or complicated 
     for the designation of the judges to the FISA Court.
       Section 109(b) amends Section 103 to allow the FISA Court 
     to hold a hearing or rehearing of a matter en banc, which is 
     by all the judges who constitute the FISA Court sitting 
     together. The Court may determine to do this on its own 
     initiative, at the request of the Government in any 
     proceeding under FISA, or at the request of a party in the 
     few proceedings in which a private entity or person may be a 
     party, i.e., challenges to document production orders under 
     Title V, or proceedings on the legality or enforcement of 
     directives to electronic communication service providers 
     under Title VII.
       Under Section 109(b), en banc review may be ordered by a 
     majority of the judges who constitute the FISA Court upon a 
     determination that it is necessary to secure or maintain 
     uniformity of the court's decisions or that a particular 
     proceeding involves a question of exceptional importance. En 
     banc proceedings should be rare and in the interest of the 
     general objective of fostering expeditious consideration of 
     matters before the FISA Court.
       Section 109(c) provides authority for the entry of stays, 
     or the entry of orders modifying orders entered by the FISA 
     Court or the Foreign Intelligence Surveillance Court of 
     Review, pending appeal or review in the Supreme Court. This 
     authority is supplemental to, and does not supersede, the 
     specific provision in Section 702(i)(4)(B) that acquisitions 
     under Title VII may continue during the pendency of any 
     rehearing en banc and appeal to the Court of Review subject 
     to the requirement for a determination within 60 days under 
     Section 702(i)(4)(C).
       Section 109(d) provides that nothing in FISA shall be 
     construed to reduce or contravene the inherent authority of 
     the FISA Court to determine or enforce compliance with an 
     order or a rule of that court or with a procedure approved by 
     it. The recognition in subsection (d) of the FISA Court's 
     inherent authority to determine or enforce compliance with a 
     court order, rule, or procedure does not authorize the Court 
     to assess compliance with the minimization procedures used in 
     the foreign targeting context. This conclusion is based upon 
     three observations.
       First, Section 702 contains no explicit statutory provision 
     that authorizes the FISA Court to assess compliance with the 
     minimization procedures in the foreign targeting context. If 
     it had so desired, Congress could have included a specific 
     statutory authorization like those included in Sections 
     105(d)(3), 304(d)(3), and 703(c)(7). In fact, there were 
     several unsuccessful efforts during the legislative process 
     to include a specific statutory authorization in this bill.
       Second, the Court's inherent authority to review and 
     approve minimization procedures in the context of domestic 
     electronic surveillance or physical searches is different 
     from its inherent authority to review and approve 
     minimization procedures in the foreign targeting context. In 
     the domestic context, the Court must direct that the 
     minimization procedures be followed. See Sections 
     105(c)(2)(A), 304(c)(2)(A), and 703(c)(5)(A). There is no 
     such requirement in the foreign targeting context. Instead, 
     the Court's judicial review is limited to assessing whether 
     the procedures meet the definition of minimization procedures 
     under FISA. See Section 702(i)(2)(C). When the Court issues 
     an order under Section 702, it merely enters an order 
     approving the use of the minimization procedures for the 
     acquisition. See 702(i)(3)(A). This limitation on the scope 
     of the Court's order in the foreign targeting context should 
     be interpreted as not providing the Court with any inherent 
     authority to assess compliance with the approved minimization 
     procedures in the foreign targeting context.
       Finally, assessing compliance with minimization procedures 
     in the foreign targeting context has historically been a 
     responsibility performed by the Executive branch. This bill 
     preserves that responsibility by requiring the Attorney 
     General and the Director of National Intelligence to assess 
     compliance with the minimization procedures on a semi-annual 
     basis. See Section 702(l)(1). Inspectors General of each 
     element of the Intelligence Community are authorized to 
     review compliance with the adopted minimization procedures. 
     See Section 702(l)(2). Also, the heads of each element of the 
     Intelligence Community are required to conduct an annual 
     review to evaluate the adequacy of the minimization 
     procedures used by their element in conducting a particular 
     acquisition. See Section 702(l)(3). Conversely, the FISA 
     Court has little, if any, historical experience with 
     assessing compliance with minimization in the context of 
     foreign targeting. There are significant differences between 
     the scope, purpose, and means by which the acquisition of 
     foreign intelligence is conducted in the domestic and foreign 
     targeting contexts. While the FISA Court is well-suited to 
     assess compliance with minimization procedures in the 
     domestic context, such assessment is better left to the 
     Executive branch in the foreign targeting context.
     Section 110. Weapons of Mass Destruction
       Section 110 amends the definitions in FISA of foreign power 
     and agent of a foreign power to include individuals who are 
     not United States persons and entities not substantially 
     composed of United States persons that are engaged in the 
     international proliferation of weapons of mass destruction. 
     Section 110 also adds a definition of weapon of mass 
     destruction to the Act that defines weapons of mass 
     destruction to cover explosive, incendiary, or poison gas 
     devices that are designed, intended to, or have the 
     capability to cause a mass casualty incident or death, and 
     biological, chemical and nuclear weapons that are designed, 
     intended to, or have the capability to cause illness or 
     serious bodily injury to a significant number of persons. 
     Section 110 also makes corresponding technical and conforming 
     changes to FISA.


  TITLE II. PROTECTIONS FOR ELECTRONIC COMMUNICATION SERVICE PROVIDERS

       This title establishes a new Title VIII of FISA. The title 
     addresses liability relief for electronic communication 
     service providers who have been alleged in various civil 
     actions to have assisted the U.S. Government between 
     September 11, 2001, and January 17, 2007, when the Attorney 
     General announced the termination of the Terrorist 
     Surveillance Program. In addition, Title VIII contains 
     provisions of law intended to implement statutory defenses 
     for electronic communication service providers and others who 
     assist the Government in accordance with precise, existing 
     legal requirements, and provides for federal preemption of 
     state investigations. The liability protection provisions of 
     Title VIII are not subject to sunset.
     Section 801. Definitions
       Section 801 establishes definitions for Title VIII. Several 
     are of particular importance.
       The term ``assistance'' is defined to mean the provision 
     of, or the provision of access to, information, facilities, 
     or another form of assistance. The word ``information'' is 
     itself described in a parenthetical to include communication 
     contents, communication records, or other information 
     relating to a customer or communications. ``Contents'' is 
     defined by reference to its meaning in Title I of FISA. By 
     that reference, it includes any information concerning the 
     identity of the parties to a communication or the existence, 
     substance, purport, or meaning of it.
       The term ``civil action'' is defined to include a ``covered 
     civil action.'' Thus, ``covered civil actions'' are a subset 
     of civil actions, and everything in new Title VIII that is 
     applicable generally to civil actions is also applicable to 
     ``covered civil actions.'' A ``covered civil action'' has two 
     key elements. It is defined as a civil action filed in a 
     federal or state court which (1) alleges that an electronic 
     communication service provider (a defined term) furnished 
     assistance to an element of the intelligence community and 
     (2) seeks monetary or other relief from the electronic 
     communication service provider related to the provision of 
     the assistance. Both elements must be present for the lawsuit 
     to be a covered civil action.
       The term ``person'' (the full universe of those protected 
     by Section 802) is necessarily broader than the definition of 
     electronic communication service provider. The aspects of 
     Title VIII that apply to those who assist the Government in 
     accordance with precise, existing legal requirements apply to 
     all who may be ordered to provide assistance under FISA, such 
     as custodians of records who may be directed to produce 
     records by the FISA Court under Title V of FISA or 
     landlords who may be required to provide access under 
     Title I or III of FISA, not just to electronic 
     communication service providers.
     Section 802. Procedures for Implementing Statutory Defenses
       Section 802 establishes procedures for implementing 
     statutory defenses. Notwithstanding any other provision of 
     law, no civil action may lie or be maintained in a federal or 
     state court against any person for providing assistance to an 
     element of the intelligence community, and shall be promptly 
     dismissed, if the Attorney General makes a certification to 
     the district court in which the action is pending. (If an 
     action had been commenced in state court, it would have to be 
     removed, pursuant to Section 802(g) to a district court, 
     where a certification under Section 802 could be filed.) The 
     certification must state either that the assistance was not 
     provided (Section 802(a)(5)) or, if furnished, that it was 
     provided pursuant to specific statutory requirements 
     (Sections 802(a)(1-4)). Three of these underlying 
     requirements, which are specifically described in Section 802 
     (Sections 802(a)(1-3)), come from existing law. They include: 
     an order of the FISA Court directing assistance, a 
     certification in writing under Sections 2511(2)(a)(ii)(B) or 
     2709(b) of Title 18, or directives to electronic

[[Page S6393]]

     communication service providers under particular sections of 
     FISA or the Protect America Act.
       The Attorney General may only make a certification under 
     the fourth statutory requirement, Section 802(a)(4), if the 
     civil action is a covered civil action (as defined in Section 
     801(5)). To satisfy the requirements of Section 802(a)(4), 
     the Attorney General must certify first that the assistance 
     alleged to have been provided by the electronic communication 
     service provider was in connection with an intelligence 
     activity involving communications that was (1) authorized by 
     the President between September 11, 2001 and January 17, 2007 
     and (2) designed to detect or prevent a terrorist attack or 
     preparations for one against the United States. In addition, 
     the Attorney General must also certify that the assistance 
     was the subject of a written request or directive, or a 
     series of written requests or directives, from the Attorney 
     General or the head (or deputy to the head) of an element of 
     the intelligence community to the electronic communication 
     service provider indicating that the activity was (1) 
     authorized by the President and (2) determined to be lawful. 
     The report of the Select Committee on Intelligence contained 
     a description of the relevant correspondence provided to 
     electronic communication service providers (S. Rep. No. 110-
     209, at 9).
       The district court must give effect to the Attorney 
     General's certification unless the court finds it is not 
     supported by substantial evidence provided to the court 
     pursuant to this section. In its review, the court may 
     examine any relevant court order, certification, written 
     request or directive submitted by the Attorney General 
     pursuant to subsection (b)(2) or by the parties pursuant to 
     subsection (d).
       If the Attorney General files a declaration that disclosure 
     of a certification or supplemental materials would harm 
     national security, the court shall review the certification 
     and supplemental materials in camera and ex parte, which 
     means with only the Government present. A public order 
     following that review shall be limited to a statement as to 
     whether the case is dismissed and a description of the legal 
     standards that govern the order, without disclosing the basis 
     for the certification of the Attorney General. The purpose of 
     this requirement is to protect the classified national 
     security information involved in the identification of 
     providers who assist the Government. A public order shall not 
     disclose whether the certification was based on an order, 
     certification, or directive, or on the ground that the 
     electronic communication service provider furnished no 
     assistance. Because the district court must find that the 
     certification--including a certification that states that a 
     party did not provide the alleged assistance--is supported by 
     substantial evidence in order to dismiss a case, an order 
     failing to dismiss a case is only a conclusion that the 
     substantial evidence test has not been met. It does not 
     indicate whether a particular provider assisted the 
     government.
       Subsection (d) makes clear that any plaintiff or defendant 
     in a civil action may submit any relevant court order, 
     certification, written request, or directive to the district 
     court for review and be permitted to participate in the 
     briefing or argument of any legal issue in a judicial 
     proceeding conducted pursuant to this section, to the extent 
     that such participation does not require the disclosure of 
     classified information to such party. The authorities of the 
     Attorney General under Section 802 are to be performed only 
     by the Attorney General, the Acting Attorney General, or the 
     Deputy Attorney General.
       In adopting the portions of Section 802 that allow for 
     liability protection for those electronic communication 
     service providers who may have participated in the program of 
     intelligence activity involving communications authorized by 
     the President between September 11, 2001, and January 17, 
     2007, the Congress makes no statement on the legality of the 
     program. The extension of immunity in Section 802 also 
     reflects the Congress's determination that the electronic 
     communication service providers acted on a good faith belief 
     that the President's program, and their assistance, was 
     lawful. Both of these assertions are in accord with the 
     statements in the report of the Senate Intelligence 
     Committee. S. Rep. No. 110-209, at 9.
     Section 803. Preemption of State Investigations
       Section 803 addresses actions taken by a number of state 
     regulatory commissions to force disclosure of information 
     concerning cooperation by state regulated electronic 
     communication service providers with U.S. intelligence 
     agencies. Section 803 preempts these state actions and 
     authorizes the United States to bring suit to enforce the 
     prohibition.
     Section 804. Reporting
       Section 804 provides for oversight of the implementation of 
     Title VIII. On a semiannual basis, the Attorney General is to 
     provide to the appropriate congressional committees a report 
     on any certifications made under Section 802, a description 
     of the judicial review of the certifications made under 
     Section 802, and any actions taken to enforce the provisions 
     of Section 803.
     Section 202. Technical Amendments
       Section 202 amends the table of contents of the first 
     section of FISA.


                 TITLE III. REVIEW OF PREVIOUS ACTIONS

       Title III directs the Inspectors General of the Department 
     of Justice, the Office of the Director of National 
     Intelligence, the Department of Defense, the National 
     Security Agency, and any other element of the intelligence 
     community that participated in the President's surveillance 
     program, defined in the title to mean the intelligence 
     activity involving communications that was authorized by the 
     President during the period beginning on September 11, 2001, 
     and ending on January 17, 2007, to complete a comprehensive 
     review of the program with respect to the oversight authority 
     and responsibility of each Inspector General.
       The review is to include: (1) all of the facts necessary to 
     describe the establishment, implementation, product, and use 
     of the product of the program; (2) access to legal reviews of 
     the program and information about the program; (3) 
     communications with, and participation of, individuals and 
     entities in the private sector related to the program; (4) 
     interaction with the FISA Court and transition to court 
     orders related to the program; and (5) any other matters 
     identified by any such Inspector General that would enable 
     that inspector general to complete a review of the program 
     with respect to the Inspector General's department or 
     element. While other versions of this Inspector General audit 
     provision may have included the requirement that the 
     Inspectors General review the ``substance'' of the legal 
     reviews or opinions regarding the President's Terrorist 
     Surveillance Program, this bill expressly excludes that 
     language. Thus, it is not intended for the Inspectors General 
     to determine or consider the legality of the Terrorist 
     Surveillance Program.
       The Inspectors General are directed to work in conjunction, 
     to the extent practicable, with other Inspectors General 
     required to conduct a review, and not unnecessarily duplicate 
     or delay any reviews or audits that have already been 
     completed or are being undertaken with respect to the 
     program. In addition, the Counsel of the Office of 
     Professional Responsibility of the Department of Justice is 
     directed to provide the report of any investigation of that 
     office relating to the program, including any investigation 
     of the process through which the legal reviews of the program 
     were conducted and the substance of such reviews, to the 
     Inspector General of the Department of Justice, who shall 
     integrate the factual findings and conclusions of such 
     investigation into its review.
       The Inspectors General shall designate one of the Senate 
     confirmed Inspectors General required to conduct a review to 
     coordinate the conduct of the reviews and the preparation of 
     the reports. The Inspectors General are to submit an interim 
     report within sixty days to the appropriate congressional 
     committees on their planned scope of review. The final report 
     is to be completed no later than one year after enactment and 
     shall be submitted in unclassified form, but may include a 
     classified annex.


                       TITLE IV. OTHER PROVISIONS

     Section 401. Severability
       Section 401 provides that if any provision of this bill or 
     its application is held invalid, the validity of the 
     remainder of the Act and its application to other persons or 
     circumstances is unaffected.
     Section 402. Effective Date
       Section 402 provides that except as provided in the 
     transition procedures (Section 404 of the title), the 
     amendments made by the bill shall take effect immediately.
     Section 403. Repeals
       Section 403(a) provides for the repeal of those sections of 
     FISA enacted as amendments to FISA by the Protect America 
     Act, except as provided otherwise in the transition 
     procedures of Section 404, and makes technical and conforming 
     amendments.
       Section 403(b) provides for the sunset of the FISA 
     Amendments Act on December 31, 2012, except as provided in 
     Section 404 of the bill. This date ensures that the 
     amendments by the Act will be reviewed during the next 
     presidential administration. The subsection also makes 
     technical and conforming amendments.
     Section 404. Transition Procedures
       Section 404 establishes transition procedures for the 
     Protect America Act and the Foreign Intelligence Surveillance 
     Act Amendments of 2008.
       Subsection (a)(1) continues in effect orders, 
     authorizations, and directives issued under FISA, as amended 
     by Section 2 of the Protect America Act, until the expiration 
     of such order, authorization or directive.
       Subsection (a)(2) sets forth the provisions of FISA and the 
     Protect America Act that continue to apply to any acquisition 
     conducted under such Protect America Act order, authorization 
     or directive. In addition, subsection (a) clarifies the 
     following provisions of the Protect America Act: the 
     protection from liability provision of subsection (l) of 
     Section 105B of FISA as added by Section 2 of the Protect 
     America Act; jurisdiction of the FISA Court with respect to a 
     directive issued pursuant to the Protect America Act, and the 
     Protect America Act reporting requirements of the Attorney 
     General and the DNI. Subsection (a) is made effective as of 
     the date of enactment of the Protect America Act (August 5, 
     2007). The purpose of these clarifications and the effective 
     date for them is to ensure that there are no gaps in the 
     legal protections contained in that act, including for 
     authorized collection following the sunset of the Protect 
     America Act, notwithstanding that its sunset provision was 
     only extended once until February

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     16, 2008. Additionally, subsection (a)(3) fills a void in the 
     Protect America Act and applies the use provisions of Section 
     106 of FISA to collection under the Protect America Act, in 
     the same manner that Section 706 does for collection under 
     Title VII.
       In addition, subsection (a)(7) makes clear that if the 
     Attorney General and the DNI seek to replace an authorization 
     made pursuant to the Protect America Act with an 
     authorization made under Section 702, as added by this bill, 
     they are, to the extent practicable, to submit a 
     certification to the FISA Court at least 30 days in advance 
     of the expiration of such authorization. The authorizations, 
     and any directives issued pursuant to the authorization, are 
     to remain in effect until the FISA Court issues an order with 
     respect to that certification.
       Subsection (b) provides similar treatment for any order of 
     the FISA Court issued under Title VII of this bill in effect 
     on December 31, 2012.
       Subsection (c) provides transition procedures for the 
     authorizations in effect under Section 2.5 of Executive Order 
     12333. Those authorizations shall continue in effect until 
     the earlier of the date that authorization expires or the 
     date that is 90 days after the enactment of this Act. This 
     transition provision is particularly applicable to the 
     transition to FISA Court orders that will occur as a result 
     of Sections 703 and 704 of FISA, as added by this bill.

  Mr. BOND. Mr. President, before the recess I mentioned how the press 
picked up on the similarities between this bill and the Senate bill and 
how they kept asking me to help find out the big changes in the bill 
that no one could find. Well, they stopped asking me that question 
because they realized there is not much that is significantly 
different, save some cosmetic fixes that satisfied the House Democratic 
leadership. Since we started with a bipartisan product here in the 
Senate, that means we still have a very strong bipartisan bill before 
us.
  I am very pleased that the strong liability protections the Senate 
bill offered are still in place and our vital intelligence sources and 
intelligence methods will be safeguarded. I am pleased this compromise 
preserves the ability of the intelligence community to collect foreign 
intelligence quickly and in exigent circumstances without any prior 
court review. I am also pleased that the 2012 sunset--3 years longer 
than any sunset previously offered in any House bill--will give our 
intelligence collectors the certainty they need and the tools they use 
to keep us safe. I am confident that the few changes we made to the 
Senate bill in H.R. 6304 will not diminish the intelligence community's 
ability to target terrorists overseas, and the Director of National 
Intelligence--the DNI--and the Attorney General agree.
  I will highlight for my colleagues five of the six main tweaks to the 
Senate bill that we find in the bill before us, as nuanced as they may 
be. I say ``five'' because one of these tweaks I explained in detail 
before the recess. I trust all of my colleagues remember that 
discussion very clearly. It was that the civil liability protection 
provision was slightly modified but still ensures that the companies 
who may, in good faith, have assisted the Government in the terrorist 
surveillance program, or TSP, will receive relief. Another way to 
describe it is that we have essentially provided the district court 
with an appellate standard review just as we did in the Senate bill. 
Congress affirms in this legislation that the lawsuits will be 
dismissed unless the district court judge determines that the Attorney 
General's certification was not supported by substantial evidence based 
on the information the Attorney General provides to the court. The 
intent of Congress is clear. The Intelligence Committee found that the 
companies deserve liability protection. They were asked by legitimate 
Government authorities to assist them in a program to keep our country 
safe. They did it, and now they are being thanked by lawsuits designed 
not only to destroy their reputation but to destroy the program.
  There are several misconceptions that were brought up in the 
discussions today. Several have said that we don't know what we are 
granting immunity for; we shouldn't grant it without reviewing the 
litigation; and there were 70 Members of the Senate who haven't even 
been briefed on the program. Well, the reason the Senate Select 
Committee on Intelligence was set up was to review some of the most 
important and highly classified intelligence-gathering activities of 
the intelligence community. It was agreed, as we all believe very 
strongly, that these are very important tools. No. 1, they must be 
overseen carefully to make sure that the constitutional rights, the 
privacy rights of American citizens, are protected, and at the same 
time, within the constitutional framework, the ability of the limited 
authority of the intelligence community to collect the intelligence is 
not inhibited. That is what the Senate Intelligence Committee has done 
in reporting out this bill on a 13-to-2 vote. I am very pleased that 
our colleagues showed confidence in us by passing this, essentially the 
same measure, 68 to 29 in February.
  There are some who say we don't even know whom we are granting 
immunity to or what we are granting it to. Very simply, the people--the 
carriers, the good citizens--who responded to the request to protect 
our country from terrorist acts are now being sued, and some of them 
who didn't even participate may be sued. They can't say whether they 
participated. We are only saying if the Attorney General provides 
information to be judged on an appellate standard that is not without 
substantial supporting evidence, then these companies should be 
dismissed, either because they didn't participate or they participated 
in good faith.
  It does not, as I pointed out, say the Government cannot be sued. 
There are some who believe--and I think they are wrong--that the 
President's TSP was unlawful. That can be litigated in the court 
system. It is being litigated. I will discuss further Judge Walker's 
opinion and why I think it is wrong and it will not stand up, but that 
doesn't change the fact that at the time the Attorney General told 
these American companies, these good citizens, that it was lawful for 
them to participate and they needed that help, they provided that help, 
and helped to keep our country safe. We should not thank them by 
slapping them with lawsuits that would not only destroy their 
reputation, endanger their personnel here and abroad, but potentially 
disclose even more of the operations of our very sensitive electronic 
surveillance program. The more the terrorists who wish to do us harm 
learn about it, the better able they are to defend against it.
  These three amendments all seek to destroy that protection provided 
by good corporate citizens, patriotic Americans who are responding to a 
directive of the President, approved by the Attorney General.
  Moving on to the first of the five items I haven't discussed, the 
first item is the concept of prior court review that was included in 
this language. It is important for all of us to understand that prior 
court review is not prior court approval. Prior court approval occurs 
when the court approves the actual acquisition of electronic 
surveillance as it does in the domestic FISA context. Prior court 
review, on the other hand, is limited to the court's review of the 
Government's certification and the targeting and minimization 
procedures. The prior court review contained in this bill is 
essentially the same as it was under the bipartisan Senate bill. 
However, the timing has been changed to allow the court to conduct its 
review before the Attorney General and the DNI authorize actual 
acquisition.
  The bottom line here is that what many of us feared in prior court 
approval scenarios has been avoided. To ensure that will always remain 
the case, we have included a generous ``exigent circumstances'' 
provision offered by House Majority Leader Hoyer that allows the 
Attorney General and the DNI to act immediately if intelligence may be 
lost or not timely acquired. I thank Leader Hoyer for that suggestion. 
Thus, a finding of exigent circumstances requires a much lower 
threshold than an emergency under traditional FISA.
  One of our nonnegotiables in reaching this agreement is that the 
continued intelligence collection would be assured and uninterrupted by 
court procedures and delays. It is only because this broad ``exigent 
circumstances'' exemption allows for continuous collection that I can 
wholeheartedly support this nuanced version of prior court review of 
the DNI and the AG authorizations.
  Second, we agreed to language insisted upon by House Speaker Pelosi 
regarding an ``exclusive means'' provision. I am confident that the 
exclusive means provision we have agreed to will not--and indeed 
cannot--preclude the

[[Page S6395]]

President from exercising his constitutional authority to conduct 
warrantless foreign intelligence surveillance. That is the President's 
article II constitutional power that no statute can remove, and case 
law, including recent statements in opinions by the FISA Court itself, 
reaffirmed this.
  I am aware, as several people have discussed, of the district court's 
ruling last week in California where, in a suit against the Government, 
the judge stated in dicta that:

       Congress appears clearly to have intended to--and did--
     establish the exclusive means for foreign intelligence 
     surveillance activities to be conducted.
  Interestingly, Judge Walker ignored legislative history which 
acknowledged the President's inherent constitutional authority. Even 
though it may have been placed at the lowest ebb, if you agree with 
that interpretation of the constitutional limitations cited in the 
Senate Intelligence Committee report on the Senate FISA bill, he still 
has that authority.
  For a variety of reasons, I strongly believe Judge Walker's decision 
will not stand on appeal. As to the court's comments on exclusive 
means, there is a fair amount of dictum standing in opposition to his 
opinion. I happen to think it is right.
  For example, the FISA Court in 2002 ruled In re: Sealed Case--a very 
important decision which I urge everybody to read, if they have time--
noted with approval the U.S. Fourth Circuit's holding in the Truong 
case that the President does have ``inherent authority to conduct 
warrantless searches to obtain foreign intelligence information.''
  The Truong case involved a U.S. person in the United States, and the 
surveillance was ordered by the Carter administration without getting a 
warrant. The Fourth Circuit upheld that action in the criminal 
prosecution of Truong.
  These decisions, along with others like them, were ignored by the 
analysis of the district court judge last week. At most, this exclusive 
means provision only places the President at his lowest ebb under the 
third prong of the steel seizure case analysis, which I do not accept 
as being valid. But if you use that test, it still exists.
  That is exactly where the President was when FISA was passed in 1978, 
and the revised exclusive means provision in this bill does not change 
that fact.
  We should remember, however, even at its lowest ebb, the President's 
authority with respect to intercepting enemy communications is still 
quite strong, especially when compared to the nonexistent capability of 
Congress to engage in similar interception activities.
  It has been said that the President initiated this without any 
congressional notice. I was not among them at the time, but I 
understand the Gang of 8 was thoroughly briefed before they started 
this program. The Gang of 8, for those who may be listening and may not 
be aware, consists of the Republican and Democratic leaders and second 
leaders in this body and the other body and the Democratic and 
Republican leaders of the House and the Senate Intelligence Committees. 
I believe these people were briefed on this program, and I understand 
that advice was given in that meeting that we could not change the FISA 
statute to enable the collection of vital information in any timely 
fashion; that we could not wait to start listening in on foreign 
terrorists abroad, possibly plotting against this country, until we 
passed it.
  I think they were right. It has been 15 months since we were told 
that we needed to revise FISA. Outside of one 6-month, 15-day patch 
that we elected to adopt last August, we have not been able to change 
it. I hope a mere 15 months will allow us to change it. But the fact 
is, had we not had the concurrence of the Gang of 8 in the TSP, it is 
likely we would not be talking with shock and horror about 9/11, but we 
would be talking about other similar incidents occurring in the United 
States.
  I believe with respect to the Speaker's own language, conditional 
language that she offered to us, it actually reinforces the President's 
article II authority. That bill language we accepted states:

       If a certification . . . for assistance to obtain foreign 
     intelligence information is based on statutory authority, the 
     certification shall identify the specific statutory provision 
     and shall certify that the statutory requirements have been 
     met.

  The obvious implication from this language is if a certification is 
not based on statutory authority, then citing statutory authority would 
be unnecessary. This language acknowledges that certifications may be 
based on something other than statutory authority; namely, the 
President's inherent constitutional authority. Furthermore, the DNI and 
Attorney General have assured me there will not be any operational 
impediments due to this provision. From a constitutional perspective, 
this language actually improved upon what we were looking at before in 
the Senate.
  What Congress is clearly saying in this language is FISA is the 
exclusive statutory means for conducting electronic surveillance for 
intelligence purposes.
  I am well aware that some will argue that there is no nonstatutory or 
constitutional means, but I can remember a long time ago when I was in 
a basic constitutional law course in law school that the Constitution 
trumps statutes. What the Constitution gives in rights or powers or 
authority cannot be exterminated, eliminated, or taken out by statute.
  The courts have clearly said the President has that constitutional 
authority. I mentioned the Carter administration and the Truong case, 
but on a historical note, it is interesting to note that when President 
Clinton ordered a warrantless physical search, not electronic 
eavesdropping but a more intrusive, actual physical search of Aldrich 
Ames' residence in 1993, Congress responded by seeking to bolster the 
President's authority by updating FISA to include physical searches.
  Aldrich Ames is a U.S. citizen, probably still in prison. Let's pause 
and think about that: President Clinton ordered a warrantless physical 
search of an American citizen inside the United States, and what did 
Congress do? Congress sought to assist the President instead of accuse 
him of illegal activity. It sought to help him. I would hope some of my 
colleagues would take a similar approach as we did with President 
Clinton before.
  Third, as a part of our compromise with the House Democrats, we 
agreed to replace our version of what we call a carve-out from the 
definition of electronic surveillance with their definition of a carve-
out which they call construction. Operationally, there is no difference 
between the two approaches, but we think our approach is more 
forthright with the American people because we put our carve-out right 
up front instead of burying it several chapters later in title VII of 
FISA as they wanted to do.
  Why did they do this? I am sure this is not of great moment to 
anybody here, but let me say that it was clear from negotiations the 
other side wanted to be able to come out of the negotiations and say: 
We wrestled the Republicans back to the original definition of 
``electronic surveillance'' in the 1978 FISA Act, but they failed to 
mention they buried their carve-out deep in this legislation, and it 
has the same effect.
  They also failed to remind folks it was the original language of the 
1978 FISA Act that, due to technology changes, got us into this mess in 
the first place.
  Last year, when the DNI first asked us to modernize FISA, he 
requested we create a technology-neutral definition of ``electronic 
surveillance.'' I believed then and I still believe we should redefine 
``electronic surveillance.'' FISA is complicated enough, and we should 
be forthright with the American people.
  But some other leaders prefer for political reasons to bury 
construction provisions deep within the bill instead of presenting an 
upfront, crystal-clear carve-out. One consequence of their approach is 
that the same acquisition activities the Government uses to target non-
U.S. persons overseas will trigger both the definition of electronic 
surveillance in title I of FISA and the construction provision in 
section 7.
  Essentially, we have agreed to build an unnecessary internal 
inconsistency in statute as a political compromise. I reluctantly 
agreed to do this because the DNI and the Attorney General assured us 
that going for the carve-out

[[Page S6396]]

now would not create any operational problems for the intelligence 
community, but we should fix this in the future during less politically 
charged times.
  For historical note, it should be remembered that the American 
Government was able to intercept radio communications long before we 
got into this stage of the intercepts without getting court orders. 
They were intercepting overseas communications which might have been 
coming into the United States, and they followed the same procedure 
that we do now. That was called the procedure of minimization for 
innocent conversations. Just like the case back when the radio 
interceptions were going forward, there is not, as I have said before, 
any evidence that we have seen that innocent Americans were being 
listened in on.

  The bugaboo that this gives the intelligence community the right to 
listen in on ordinary citizens' conversations willy-nilly, without any 
limitations, is absolutely false. That is why we built in the 
protections in the law. That is why we have the layers of supervision 
to make sure it does not happen.
  Fourth, we included a provision for coordinated inspector general 
audits of the TSP. However, the IGs will not review the substance of 
the legal reviews related to the President's TSP. In other words, they 
will not review whether the program was lawful.
  I know some colleagues are saying the opposite in the media, but I 
encourage them to read the language because it is accurate. It is 
accurate that the IGs will not review whether the program was lawful.
  The Senate Intelligence Committee already conducted an exhaustive 
review of the TSP and found no legal or unlawful conduct. There is no 
need for an IG audit to second-guess the bipartisan determination. 
Numerous IGs have already conducted reviews, and several reviews are 
ongoing. I cannot imagine the IG finding out anything different than 
they already have or that the Intelligence Committee has found for that 
matter. But it does make for good politics in an election year to say 
Congress mandated these reviews even if, in some cases, they will 
simply be doing reviews that have already been done. To reach 
agreement, we reluctantly agreed to a more redundant review on the 
overly taxed intelligence community.
  I offer to those who want to challenge the lawfulness of the 
President's Terrorist Surveillance Program that this bill does not 
block plaintiff suits against the Government or Government officials. 
We only offer civil liability protection for providers in the bill. The 
court case I mentioned earlier against the Government will be able to 
proceed unaffected by this legislation.
  Fifth, and finally, we agreed to a 5-year sunset instead of 6 years. 
I don't like sunsets. As intelligence community leaders have told us, 
there are no sunsets in fatwahs against the United States issued by al-
Qaida leaders. I only agreed to a 6-year sunset in the Senate bill as a 
bipartisan compromise. But even with a 5-year sunset, Congress is 
unlikely to take up FISA reform again in the fall of a Presidential 
election year, and I trust they will have the good wisdom to push the 
sunset out longer so they don't find themselves in an election year 
going through the same drill. Regardless, there is little operational 
impact.
  Remember, it is the job of the House and Senate Intelligence 
Committees to conduct ongoing, continuing oversight of electronic 
surveillance, as well as the rest of the intelligence community's 
programs. If we see the need to make changes before sunset, we will. A 
sunset does not change that.
  In the end, I am proud to say we accomplished our collective goals of 
making sure we have a bill with clear authorities for foreign 
targeting, with strong protections for U.S. persons, and with civil 
liability protection for those providers who allegedly assisted with 
the President's TSP. We are in a better position today than we were a 
few months ago legislatively because we not only have the Senate bill 
before us in essence all over again--and one that received 68 votes the 
last time--but we have it before us already having passed the House. We 
know we have a bill we can send straight to the President that the 
Attorney General and DNI would support and the President can sign into 
law.
  Should we fail to do so, there is a real danger we could fall back 
into the trap we were in last summer when because of the existing 
underlying outmoded FISA bill, we put the intelligence community out of 
business of collecting much vital intelligence during a brief period, 
far too long, but brief nevertheless.
  Why is having essentially the Senate bill with minor tweaks before us 
all over again a major bipartisan victory? I answer: Because the Senate 
bill we passed a few months ago was the delicate bipartisan compromise 
that took months to produce. We had the bipartisan product that 
increased civil liability protections more than ever before and gave 
our intelligence operators the tools they needed to keep us safe. I am 
proud of that bipartisan bill, proud to have negotiated with the House 
to bring it back to the Senate with essentially the same position in a 
major bipartisan victory for all sides.

  Mr. President, I will reserve the rest of my comments in appreciation 
of my colleagues. I thank the Chair, and I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I ask if the Senator from Missouri will 
yield for two questions?
  The PRESIDING OFFICER. The Senator from Missouri has used his time.
  Mr. SPECTER. Will the Chair repeat that?
  The PRESIDING OFFICER. The Senator from Missouri has used his entire 
29 minutes allocated under the previous order.
  Mr. SPECTER. Mr. President, I will yield myself 5 minutes from my 
time on the amendment which is scheduled later this afternoon.
  The PRESIDING OFFICER. Does the Senator from Missouri consent to 
being questioned by the Senator from Pennsylvania?
  Mr. BOND. Of course. I would be honored.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. The first question I have relates to the Senator's 
contention that the action by the Intelligence Committee is sufficient.
  We know from the representations made earlier today that some 70 
Members of the Senate have not been briefed on this subject, and the 
House leadership has said that the majority of the House Members have 
not been briefed on this subject. There is no question that a Member's 
constitutional authority cannot be delegated to another Member. Under 
the procedures of the Senate and the House but focusing on the Senate, 
which is where we are, the committees hear the matters, they file 
reports, they make disclosure to the full body, and the full body then 
acts.
  The question I have for the Senator from Missouri is: How can some 70 
Members of the Senate be expected to cast an intelligent vote granting 
retroactive immunity to a program that the Senators have not been 
briefed on and don't know about, in light of the clear-cut rule that we 
cannot delegate our constitutional responsibilities?
  Mr. BOND. Well, to reply to my friend--who served in the past on the 
Intelligence Committee, I believe--that committee was set up to handle 
matters that involved the most critical classified information. The 
committee was set up, long before I came to the Senate, to provide a 
forum, a bipartisan group of Senators with a very able staff, to go 
over everything that was done in the intelligence community, to oversee 
it, to make sure it was proper, to make sure it stayed within the 
guidelines and to provide support and change it where necessary.
  Now, I have fought very strongly, alongside my colleague, the 
chairman, to get the full committee briefed on all these programs. As I 
have said before, the terrorist surveillance program was not briefed to 
the full committee, it was briefed and then oversight held with eight 
people. This, to me, was a mistake. I believe it should have been 
briefed to the entire committee, but the members of that group of eight 
did know about it and were briefed about it.
  Now, I might say to my good friend, the Senator from Pennsylvania, 
that we have many important committees putting out legislation on the 
floor. No person can participate in all the committee work. No person 
can be involved

[[Page S6397]]

in every committee. So we have to take the reports, and usually on a 
bipartisan agreement or disagreement, based on what our colleagues in 
those committees have studied, have reviewed, and have found to be the 
case. In this case, an overwhelmingly bipartisan majority of 13 to 2, 
after studying the bill and the question for 6 months and engaging in 
about 2 solid months of hard work, found out it was appropriate to give 
retroactive liability protection to these companies that had acted in 
good faith.
  We were shown the certifications and the authorizations that went to 
them, and I believe, based on my legal background, that those were 
adequate and sufficient for these companies to participate. Let us 
remember, these were critical times. We had just experienced an attack. 
We were being threatened with more attacks. The Government went to some 
of these--not all of them but some--companies and said: Please help us. 
You must help us. We believe in the committee that their actions should 
not be punished but should be rewarded by preventing them from being 
harassed by lawsuits.
  The legality of the program, if it is to be judged, was not one for a 
judgment for those companies to make, but it will be played out in 
Judge Walker's and other courtrooms.
  Mr. SPECTER. Mr. President, on my time, which we are on, may I say, 
before moving to the second brief question, that I admire what the 
Senator from Missouri has done as vice chairman. I see his diligent 
work, and I know what the Intelligence Committee is involved with 
because I served on it for 8 years and chaired it in the 104th 
Congress. But when the Senator from Missouri delineates even the fewer 
members within the Intelligence Committee who were briefed, it 
underscores my point, and that is that most Senators haven't been 
briefed.
  While it is true every Senator does not know what is in every 
committee report, at least every Senator has access to it, and it is 
not a matter where there are secret facts and there has been no 
briefing of them, or where there has been no disclosure and they are 
called upon to vote. Significantly, the Senator does not deny that no 
Senator can delegate his constitutional authority, and that is exactly 
what 70 Senators will be doing.
  Let me move within my 5-minute time limit because time is fleeting 
and there is a great deal to argue.
  The PRESIDING OFFICER. The Senator has used 6 minutes. There is 4 
minutes remaining.
  Mr. SPECTER. We have here litigation which has been ongoing in the 
Federal court in San Francisco for several years, and a very extended 
opinion was filed on July 20 of 2006 by Chief Judge Walker on the 
telephone case on the state secrets doctrine, and that case is now on 
appeal to the Court of Appeals for the Ninth Circuit.
  Here we have a context where the Congress has been totally 
ineffective in limiting executive authority, where the Executive has 
violated the specific mandate of the National Security Act of 1947 to 
brief all members of the Intelligence Committee. It hasn't been done. 
The Congress has been ineffective on the Foreign Intelligence 
Surveillance Act, where the Supreme Court denied cert, as I said 
earlier today, and ducked the decision. Although from the dissenting 
opinion in the Sixth Circuit, they could have found the requisite 
standing. Now we have Chief Judge Walker coming down with a 56-page 
opinion last Wednesday, which does bear on the telephone case. I 
concede, as the Senator from Missouri has said, that the telephone 
companies have been good citizens. But there is a way to save them 
harmless with the amendment I offered in February to substitute the 
Government in the shoes of the telephone companies.
  Have they had problems with their reputation? Well, perhaps so, but 
they can withstand that. Have they had legal expenses? Well, those can 
be compensated by indemnity from the Government. We are all called upon 
to make sacrifices. My father, who served in World War I, was wounded 
in action. My brother served in World War II. I served 2 years in the 
Korean war, stateside. I don't think the telephone companies, given 
their positions, as regulated companies, have been asked for too much. 
I think it is highly unlikely they would ever have to pay a dime, but 
that could all be handled by substitution, so we look at a situation 
where we can both have this electronic surveillance program continue 
and not give up court jurisdiction through court stripping.
  So that brings me to my question: Does the Senator from Missouri now 
know of any case--there have been jurisdictional issues of a variety of 
sorts--but any case involving constitutional rights, which has been 
pending for more than 3 years and is in midstream on appeal to the 
Court of Appeals for the Ninth Circuit--from a very learned opinion 
handed down by Chief Judge Walker in 2006--when the Congress has 
stepped in and taken the case away from the courts, in a context where 
there is no other way to get a judicial determination on the 
constitutionality of this conduct?
  Mr. BOND. Mr. President, I am happy to answer my colleague. He has 
stated that the Executive has violated the laws. Not under the 
constitutional authority that I have outlined. The FISA Court itself 
recognized what he fails to understand; that it is not a question of 
the carriers being held liable for any amount of money. Because I agree 
with him, they are not going to find anybody liable. But what they 
would do, by continuing having this out in open hearing, is to disclose 
the most secretive methods and procedures used by our intelligence 
community, giving the terrorists and those who seek to do us harm a 
roadmap for getting around it and avoiding those intercepts.
  Now, what it would also do is expose those companies to tremendous 
public scorn and possibly even to injury to their property or to their 
personnel. Where they operate overseas, they might be attacked. When we 
started this debate, my colleague, the senior Senator from Illinois, 
was talking about how an unwarranted disclosure of a question about one 
of the vitally important exchanges operating in Chicago had cost 
billions of dollars to that exchange.
  When you leak out something that is classified, when you leak out 
something that is secret, you can have a tremendous impact, and every 
shareholder of that exchange and every shareholder, whether it be in 
your pension fund or anyone else, of one of the carriers that might be 
drawn out and drawn into court in one of these actions, would lose 
significantly.
  Now, to answer the question put specifically by the Senator from 
Pennsylvania, the cases against the Government are not blocked. The 
cases against the Government are not blocked. If we are looking for a 
means of determining the constitutionality, which I believe exists--he 
obviously doesn't believe exists. OK, we have a disagreement. He is a 
learned lawyer, and I studied constitutional law a long time ago. We 
have different views. I can line up a bunch of constitutional law 
professors on my side. I am sure he can do the same. But that court can 
go forward because a suit really is a suit against the government.
  I think he is right when he is saying he doesn't want to hurt the 
companies. I don't believe any significant number of Members of this 
body want to hurt the employees or their shareholders of the companies 
that may have participated because they were true American heroes. But 
if he wants to solve the problem that he has--getting court review--
then there is no bar in this legislation to a suit against the 
Government, a Government officer, or a Government agent.
  Mr. SPECTER. Mr. President, on my time.
  The PRESIDING OFFICER. The Senator from Pennsylvania is advised he 
has used all his time--13 minutes.
  Mr. SPECTER. I yield myself 3 more minutes.
  The PRESIDING OFFICER. The Senator has 3 minutes.
  Mr. SPECTER. On my time, Mr. President.
  When the Senator from Missouri talks about being exposed to risks or 
physical harm, that is happening to American soldiers every day around 
the world, as we know. It happened to my father serving in World War I. 
There are certain risks, physical or otherwise, which have to be 
sustained in a democracy doing our duty. We talk about money, about 
costs. Dollars and cents don't amount to a hill of beans when you are 
talking about constitutional rights.
  When the Senator from Missouri talks about the case can continue

[[Page S6398]]

against the Government, that is a fallacious argument. The Government 
has the defense of governmental immunity. The telephone companies do 
not have that.
  I offered the amendment in February to have the Government step into 
the shoes of the telephone companies with no different defenses. They 
would have state secrets but no governmental immunity. That was turned 
down. It is a very different matter to drop suits as to the telephone 
companies. They do not have governmental immunity. It is very 
different. Significantly, when challenged for any case which has been 
going on for years, with these kinds of opinions by the Chief Judge in 
San Francisco and on appeal to the Court of Appeals for the Ninth 
Circuit, for the Congress to step in and take away jurisdiction is an 
anathema. In the context of congressional ineffectiveness on oversight 
on separation of powers and in the context of the Supreme Court of the 
United States, which, as I elaborated earlier today, has ducked it, the 
only way to get this decision is to let the courts proceed. Congress is 
ineffective on curtailing executive authority. That is why I think it 
is so important that we can both keep this surveillance program and at 
the same time protect constitutional rights.

  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has consumed 15 minutes, so he has 
45 minutes remaining on his amendment.
  Mr. SPECTER. I yield the floor.
  The PRESIDING OFFICER. The Senator from New Mexico is recognized.
  Mr. BINGAMAN. Mr. President, could the Presiding Officer please 
indicate what the order of sequence of events is at this point?
  The PRESIDING OFFICER. The Senator from New Mexico is authorized to 
offer his amendment with 1 hour of debate equally divided.
  Mr. BINGAMAN. Let me defer to my friend from Michigan. Let me 
indicate I will plan to use the first 15 minutes of the 30 minutes 
allocated to me to make a statement now, and then Senator Casey from 
Pennsylvania will take 5 minutes, and then Senator Levin from Michigan 
will have the remaining 10 minutes. That is my plan.
  I believe the Senator from Michigan wanted to state a question.
  Mr. LEVIN. Mr. President, parliamentary inquiry. I thank my friend 
from New Mexico.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Mr. LEVIN. Under the plan that was just stated, if 10 minutes is 
yielded to this Senator, can the 10 minutes be used at any time this 
afternoon or must it follow immediately in sequence to either Senator 
Casey or Senator Bingaman?
  The PRESIDING OFFICER. The 10 minutes would have to be used sometime 
this afternoon.
  Mr. LEVIN. At any time this afternoon. I thank the Presiding Officer.


                           Amendment No. 5066

  Mr. BINGAMAN. Mr. President, I ask to call up amendment No. 5066.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Mexico [Mr. Bingaman], for himself, 
     Mr. Casey, and Mr. Specter, proposes an amendment numbered 
     5066.

  Mr. BINGAMAN. I ask unanimous consent that the reading of the 
amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

  (Purpose: To stay pending cases against certain telecommunications 
  companies and provide that such companies may not seek retroactive 
     immunity until 90 days after the date the final report of the 
Inspectors General on the President's Surveillance Program is submitted 
                              to Congress)

       Beginning on page 88, strike line 23 and all that follows 
     through page 90, line 15, and insert the following:
       ``(a) Requirement for Certification.--
       ``(1)  In general.--Notwithstanding any other provision of 
     law other than paragraph (2), a civil action may not lie or 
     be maintained in a Federal or State court against any person 
     for providing assistance to an element of the intelligence 
     community, and shall be promptly dismissed, if the Attorney 
     General certifies to the district court of the United States 
     in which such action is pending that--
       ``(A) any assistance by that person was provided pursuant 
     to an order of the court established under section 103(a) 
     directing such assistance;
       ``(B) any assistance by that person was provided pursuant 
     to a certification in writing under section 2511(2)(a)(ii)(B) 
     or 2709(b) of title 18, United States Code;
       ``(C) any assistance by that person was provided pursuant 
     to a directive under section 102(a)(4), 105B(e), as added by 
     section 2 of the Protect America Act of 2007 (Public Law 110-
     55; 121 Stat. 553), or 702(h) directing such assistance;
       ``(D) in the case of a covered civil action, the assistance 
     alleged to have been provided by the electronic communication 
     service provider was--
       ``(i) in connection with an intelligence activity involving 
     communications that was--

       ``(I) authorized by the President during the period 
     beginning on September 11, 2001, and ending on January 17, 
     2007; and
       ``(II) designed to detect or prevent a terrorist attack, or 
     activities in preparation for a terrorist attack, against the 
     United States; and

       ``(ii) the subject of a written request or directive, or a 
     series of written requests or directives, from the Attorney 
     General or the head of an element of the intelligence 
     community (or the deputy of such person) to the electronic 
     communication service provider indicating that the activity 
     was--

       ``(I) authorized by the President; and
       ``(II) determined to be lawful; or

       ``(E) the person did not provide the alleged assistance.
       ``(2) Limitation on implementation.--
       ``(A) In general.--The Attorney General may not make a 
     certification for any civil action described in paragraph 
     (1)(D) until after the date described in subparagraph (C).
       ``(B) Stay of civil actions.--During the period beginning 
     on the date of the enactment of the FISA Amendments Act of 
     2008 and ending on the date described in subparagraph (C), a 
     civil action described in paragraph (1)(D) shall be stayed by 
     the court in which the civil action is pending.
       ``(C) Date described.--The date described in this 
     subparagraph is the date that is 90 days after the final 
     report described in section 301(c)(2) of the FISA Amendments 
     Act of 2008 is submitted to the appropriate committees of 
     Congress, as required by such section.''.

  Mr. BINGAMAN. Mr. President, this is an amendment cosponsored by 
Senators Casey and Specter. The main thrust of this amendment is to 
make a point that this legislation which is currently before us puts 
the cart before the horse. As soon as we enact the legislation, it 
essentially grants telecommunications companies retroactive immunity 
for their past actions, but then after the fact, after they have been 
granted that retroactive immunity, it requires that an in-depth 
investigation occur regarding what those activities actually were.
  The purpose of the amendment I am offering is simply to put the horse 
and the cart in the right order. I believe this chart makes the case 
very well. Let me just allude to this chart.
  First, let's look at the process for dismissing lawsuits under the 
current bill, the way the bill now pends. That is the top line here. 
You can see the first step would be to enact provisions that would set 
up a procedure for the telecom companies to seek the retroactive 
immunity.
  Second, in the middle here, in accordance with the underlying 
provisions, the pending civil cases would almost certainly be promptly 
dismissed as soon as the Attorney General makes the necessary 
certifications.
  Then the last step, over here at the right--it is very difficult to 
read from any distance, but the last step says, ``IG's investigation 
and report to Congress.'' The last step would be investigation about 
whether the companies' participation in the President's warrantless 
wiretapping program was lawful and whether the relevant inspectors 
general can report back to Congress with their findings within a year. 
That is a requirement in the bill, that they do that report within 1 
year.
  Basically, the current bill's approach is to grant the immunity first 
and investigate later, after the companies have already been provided 
with legal liability protection for whatever it is later determined 
they have been engaged in. The amendment I am offering would change 
this by modifying the timing of the process that enables these telecom 
companies to seek immunity, and it changes it so that the investigation 
of what has occurred would occur first. Only after that investigation 
has been completed would we allow the immunity to be granted.
  Under the amendment--this is the bottom part of this chart--the first 
step would still be to enact the legislation establishing the 
procedures for companies to seek immunity. At the same time, the 
amendment would stay all of the pending court cases against the telecom 
companies, thereby putting all those cases on hold. The second

[[Page S6399]]

step would be to allow the inspectors general--that is, from each of 
these Federal agencies that are designated in the statute--allow the 
inspectors general to conduct their investigation and to inform 
Congress about what they found. The amendment would then give Congress 
90 days to review those findings, after which time the companies could 
go ahead and seek dismissal of their lawsuits. So the dismissal of the 
lawsuits would be the last step and not the first step and could only 
occur after the investigation was complete and after Congress had an 
opportunity to review their report that has been done.
  The bill does recognize that it is important to understand all the 
facts surrounding the President's warrantless program. I am glad the 
legislation requires that the relevant inspectors general come to 
Congress with a report on the subject. This review will cover the 
establishment and implementation and use of the surveillance program, 
as well as the participation of private telecom companies.
  However, as I have discussed, the bill also allows the same telecom 
companies to immediately seek and to obtain retroactive immunity for 
their participation in the program as soon as the bill becomes law. And 
that is a mistake, in my view. I find it troubling that Congress would 
confer immunity before the full extent of the companies' participation 
in the program is known. Maybe these companies acted in good faith, as 
some of my colleagues have argued. Maybe they did not. I don't know, 
myself, what the facts are, but, like most Members of Congress who do 
not sit on the Intelligence Committee or the Judiciary Committee, I 
received very little information regarding what actually did occur. I 
do know, however, that their participation in an unlawful, warrantless 
surveillance program is a serious issue. It deserves the in-depth 
review we call for in this legislation, but it deserves that review 
before we grant those companies blanket protection for their past 
actions. If we go down this path without first conducting the thorough 
review, we may very well look back with great regret.
  To me, a much more sensible approach would be to have the 
comprehensive IG report submitted to Congress before companies are 
allowed to seek dismissal of their suits. The amendment would stay all 
of the civil cases against the telecom companies. It would allow time 
for the inspectors general to investigate the circumstances surrounding 
the President's warrantless surveillance program. It would give 
Congress the 90 days to review what is found in the IG's report.
  While retaining the overall substance and structure of the bill, this 
would give Congress an opportunity, even though it is a brief 
opportunity, to at least review the inspectors general report before 
the companies would be permitted to apply for immunity. If Congress 
does not affirmatively pass legislation within 90 days of getting the 
report from the inspectors general, then the companies would be free to 
seek relief from the court.
  I would also like to take just a minute to discuss what the amendment 
would not do. The amendment is not a deal breaker. The amendment would 
not remove or alter the substantive provisions in the immunity title of 
the bill. With passage of this amendment, those provisions would remain 
intact. Personally, I am opposed to retroactive immunity, but the 
amendment I am offering does not change the substance of those 
provisions.
  Additionally, by staying the pending lawsuits, the companies would 
not be subject to the costs of litigation during the development of the 
IG report or while Congress reviews the report's findings. Proceedings 
in these cases would be suspended until the called-for report is 
delivered to Congress and the 90 days have passed.
  Some of my colleagues have expressed concerns that unless we 
immediately grant the telecom companies retroactive immunity, they will 
refuse to provide assistance in the future. I think that is unfounded. 
Clearly they are under an obligation to do so under the language of 
this bill.
  Regardless of whether Senators generally favor the legislation or are 
adamantly opposed to it; that is, the underlying legislation, I hope my 
colleagues will agree that this amendment is a reasonable modification 
which would, in fact, improve the bill.
  Let me point out one other red herring that has come up. In a letter 
to Senate leadership dated yesterday, July 7, the administration urged 
that my amendment:

        . . . fails to address the risk that on-going litigation 
     will result in the release of sensitive national security 
     information, a risk that, if realized, could cause grave harm 
     to the national security.

  I suggest the Attorney General and the Director of National 
Intelligence need to read the amendment I am offering. As I stated, the 
amendment puts all of the cases on hold. There would be no ongoing 
activity during the time that proceedings in these cases were stayed, 
so there is no activity that could create a risk of releasing sensitive 
information.
  This is a good amendment. It would improve this bill. It would make 
it more logical and certainly improve our ability to understand what it 
is we are being asked to grant immunity for. I urge my colleagues to 
support it.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Sanders). The Senator from Missouri is 
recognized.
  Mr. BOND. Mr. President, I yield myself 10 minutes in opposition.
  When the inspector general audit provisions were first discussed in 
the House and Senate, there was a great concern that these audits would 
be used to delay or deny essential civil liability protections. 
Unfortunately, this amendment shows that these concerns were justified.
  When negotiating this compromise legislation with House Majority 
Leader Hoyer, I agreed in good faith to a limited inspector general 
review of the President's terrorist surveillance program even though 
this program has been reviewed up and down on a bipartisan basis by the 
Senate Intelligence Committee and no abuse or wrongdoing had been 
found.
  Now, in what I could only assume is a political move to undermine the 
critical civil liability protections in this bill, this amendment 
delays any liability protection until 90 days after the inspector 
general review of the bill is completed. What is supposed to happen 
after that is anything but clear, but I can only assume that will be 
followed by yet another effort to delay liability relief. That is 
extraordinarily and unacceptably unfair to those providers that 
assisted the Government in the aftermath of the September 11 terrorist 
attacks. We owe them our thanks, not our continued partisan 
maneuvering.
  Earlier, we heard a justification for exposing these providers to 
public light, having participated in a classified program. The 
assertion was made: It is like our troops who go abroad and go under 
fire. Mr. President, as the father of a son who spent 20 months in the 
last 3 years as a marine sniper in Iraq, I can tell you that they go 
under tremendous threat and tremendous danger. But they are extremely 
well trained, they are extremely well supported, and they are extremely 
well armed.
  To say with a straight face that we can subject private companies to 
that, private companies with American citizens working for them, and 
that we don't care if they are attacked when they don't have any 
protection, they don't have any weapons, they don't have any training, 
I think goes way too far.
  That is not reasonable. Let's not hear any more of that stuff, that 
they should be put in the same position as our trained military men and 
women who go into battle accepting the risks of battle. These people, 
these good American citizens, did not expect to be under physical 
attack.
  How often are we going to tell those patriotic Americans we have to 
delay further any halt to the lawsuits so we can ``review'' the 
terrorist surveillance program? Enough is enough. Inspectors general 
have very clear roles in our Government. They determine if there is 
waste, fraud, or abuse. Their review under title IV of this bill is 
essentially for these purposes. They will not determine whether the TSP 
was lawful. They will not determine whether the providers acted in good 
faith. That is for the court to do.
  So exactly what purpose does it serve to delay liability relief to 
these companies? The only purpose I can think of is to appease these 
liberal activists who

[[Page S6400]]

have tried repeatedly throughout this FISA debate to tie the hands of 
the intelligence community and punish these companies with frivolous 
lawsuits.
  What message are we sending to all of those private partners who help 
our intelligence community, our military, our law enforcement community 
on a daily basis far beyond the FISA context: Help us now, but we 
cannot guarantee that years later you will not be taken to the cleaners 
because you did. Is that an incentive? Is that the way we want to deal 
with fellow Americans whose help we need?
  I appreciate there is serious debate about whether the President has 
article II authority to conduct surveillance. But this is a debate that 
should not impact whether these providers, who trusted their 
Government, who in good faith, on the word of the Attorney General, 
helped to ensure our homeland did not suffer another terrorist attack. 
And we think they should be treated fairly and protected.
  We need to remember the Senate Intelligence Committee conducted an 
exhaustive review of the TSP. It found no evidence of illegal or 
unlawful conduct either by the providers or the Government. We agreed 
on a bipartisan basis, ratified by the Senate, that the providers acted 
in good faith. So I do not see how waiting to give them the fair and 
just relief they deserve advances any goals. It is more likely, the 
longer these lawsuits, these frivolous lawsuits go on, that our most 
sensitive sources and methods will be revealed. It becomes much more 
likely that the providers who helped us will refuse to do so unless we 
go through a lengthy process to compel them.
  We went without cooperation for some time when the act expired, and 
it was only on the assurance of prompt action that they were able to 
withstand shareholder pressure and the advice of lawyers not to worry.
  The Attorney General and the DNI sent a letter on July 7. It says:

       Any FISA modernization bill must contain effective legal 
     protection for those companies sued because they're believed 
     to have helped the Government prevent terrorist attacks. 
     Liability protection, a fair and just result, is necessary to 
     ensure the continued assistance of the private sector.
       H.R. 6304 contains such protection, but the amendment 
     addressed in this letter

  Essentially the Bingaman amendment--

     would unnecessarily delay implementation of the protections 
     with the purpose of deferring any decision on this issue for 
     more than a year.
       Accordingly, we as well as the President's other senior 
     advisors will recommend that the President veto any bill that 
     includes such an amendment. The Intelligence Committee has 
     recognized the intelligence community cannot obtain 
     intelligence it needs without assistance from these 
     companies. We recognize that the companies in the future may 
     be less willing to assist the Government if they face the 
     threat of lawsuits, and we know that a delay could result in 
     the very degradation and the cooperation that this bill was 
     designed to provide. Continued delay in protecting those who 
     provided assistance will be invariably noted by those who may 
     some day be called upon to help us again.
       Finally, by raising the prospect that the litigation at 
     issue could eventually proceed, this amendment fails to 
     address the risks that ongoing litigation will result in 
     release of national security sensitive information, a risk 
     that if realized could cause grave harm to national security.

  I reserve the remainder of my time on this side. I ask unanimous 
consent that after the Senator from Pennsylvania is recognized, the 
chairman of the committee be recognized for 10 minutes.
  I ask unanimous consent that this letter addressed to Leader Reid 
from the DNI and the Attorney General be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                     July 7, 2008.
     Hon. Harry Reid,
     Majority Leader, U.S. Senate, Hart Senate Office Building, 
         Washington, DC.
       Dear Mr. Leader: This letter presents the views of the 
     Administration on an amendment to the Foreign Intelligence 
     Surveillance Act of 1978 (``FISA'') Amendments Act of 2008 
     (H.R. 6304) that was not covered in our letter of June 26, 
     2008. As we stated in that letter, we strongly support 
     enactment of H.R. 6304, which would represent an historic 
     modernization of FISA to reflect dramatic changes in 
     communications technology over the last 30 years. This bill, 
     which passed the House of Representatives by a wide margin of 
     293-129, is the result of a bipartisan effort that will place 
     the Nation's foreign intelligence effort in this area on a 
     firm, long-term foundation. The bill provides our 
     intelligence professionals the tools they need to protect the 
     country and protects companies whose assistance is vital to 
     this effort from lawsuits for past and future cooperation 
     with the Government.
       As we have previously noted, any FISA modernization bill 
     must contain effective legal protections for those companies 
     sued because they are believed to have helped the government 
     prevent terrorist attacks in the aftermath of September 11, 
     2001. Liability protection is the fair and just result and is 
     necessary to ensure the continued assistance of the private 
     sector. H.R. 6304 contains such protection, but the amendment 
     addressed in this letter would unnecessarily delay 
     implementation of the protections with the purpose of 
     deferring any decision on this issue for more than a year. 
     This amendment would reportedly foreclose an electronic 
     communication service provider from receiving retroactive 
     liability protection until 90 days after the Inspectors 
     General of various departments, as required by section 301 of 
     H.R. 6304, complete a comprehensive review of, and submit a 
     final report on, communications intelligence activities 
     authorized by the President between September 11, 2001, and 
     January 17, 2007. The final report is not due for a year 
     after the enactment of the bill. Any amendment that would 
     delay implementation of the liability protections in this 
     manner is unacceptable. Providing prompt liability protection 
     is critical to the national security. Accordingly, we, as 
     well as the President's other senior advisors, will recommend 
     that the President veto any bill that includes such an 
     amendment.
       Continuing to deny appropriate protection to private 
     parties that cooperated in good faith with the Government in 
     the aftermath of the attacks of September 11 has negative 
     consequences for our national security. The Senate 
     Intelligence Committee recognized that ``the intelligence 
     community cannot obtain the intelligence it needs without 
     assistance from these companies.'' That committee also 
     recognized that companies in the future may be less 
     willing to assist the Government if they face the threat 
     of private lawsuits each time they are alleged to have 
     provided assistance, and that the ``possible reduction 
     intelligence that might result from this delay is simply 
     unacceptable for the safety of our Nation.'' These cases 
     have already been pending for years, and delaying 
     implementation of appropriate liability protection as 
     proposed by the amendment would mean that the companies 
     would still face the prospect of defending against multi-
     billion-dollar claims and would continue to suffer from 
     the uncertainty of pending litigation. Indeed, the 
     apparent purpose of the amendment is to postpone a 
     decision on whether to provide liability protection at 
     all. Such a result would defeat the point of the carefully 
     considered and bipartisan retroactive liability 
     protections in H.R. 6304--to provide for the expeditious 
     dismissal of the relevant cases in those circumstances in 
     which the Attorney General makes, and the district court 
     reviews, the necessary certifications--and could result in 
     the very degradation in private cooperation that the bill 
     was designed to prevent. The intelligence community, as 
     well as law enforcement and homeland security agencies, 
     continue to rely ont he voluntary cooperation and 
     assistance of private parties in other areas. Continued 
     delay in protecting those who provided assistance after 
     September 11 will invariably be noted by those who may 
     someday be called upon again to help the Nation. Finally, 
     by raising the prospect that the litigation at issue could 
     eventually proceed, this amendment fails to address the 
     risk that on-going litigation will result in the release 
     of sensitive national security information, a risk that, 
     if realized, could cause grave harm to the national 
     security.
       Deferring a final decision on retroactive liability 
     protection for 15 months while the Inspectors General 
     complete the review required by H.R. 6304 is also 
     unnecessary. The Senate Intelligence Committee conducted an 
     extensive study of the issue, which included the review of 
     the relevant classified documents, numerous hearings, and 
     testimony. after completing this comprehensive review, the 
     Committee determined that providers had acted in response to 
     written requests or directives stating that the activities 
     had been authorized by the President and had been determined 
     to be lawful, and that the providers ``had a good faith 
     basis'' for responding to the requests for assistance they 
     received. Accordingly, the Committee agreed to the necessary 
     legal protections on a 13-2 vote. Similarly, the Intelligence 
     Committee of the House of Representatives has been 
     extensively briefed and has exercised thorough oversight in 
     regard to these intelligence matters. We also have made 
     extraordinarily sensitive information available to the 
     Judiciary Committees of both the Senate and House.
       The Senate passed a prior version (S. 2248) of the current 
     pending bill, which included retroactive liability 
     protection, by a vote of 68-29. Both Houses of Congress, by 
     wide bipartisan margins, have now made the judgment that 
     retroactive liability protection is the appropriate and fair 
     result. The Congress has been considering this issue for over 
     two years and conducted extensive oversight in this area. 
     During this period, we have emphasized the critical nature of 
     private sector cooperation in protecting our national 
     security and the difficulties of obtaining such cooperation 
     while issues of liability protection remained unresolved. 
     Further delay will damage our intelligence capabilities.

[[Page S6401]]

       Thank you for the opportunity to present our views on this 
     crucial bill. We reiterate our sincere appreciation to the 
     Congress for working with us on H.R. 6304, a long-term FISA 
     modernization bill that will strengthen the Nation's 
     intelligence capabilities while protecting the liberties of 
     Americans. We strongly support its prompt passage.
           Sincerely,
     Michael B. Mukasey,
       Attorney General.
     J.M. McConnell,
       Director of National Intelligence.

  The PRESIDING OFFICER. The Senator from New Mexico.
  Mr. BINGAMAN. Mr. President, is there any time remaining on the 15 
minutes that I had set aside?
  The PRESIDING OFFICER. The Senator has 6 minutes remaining.
  Mr. BINGAMAN. I ask the Senator from Pennsylvania that I use two of 
those to respond to this latest statement. Then I will defer to him for 
his statement.
  Mr. President, I want to respond to the statement by the Senator from 
Missouri about what all of the reports from the inspectors general 
would essentially deal with. I believe he said waste, fraud, and abuse, 
which is sort of the general purview of inspectors general.
  That is not my understanding. I understand the inspectors general 
have been asked to essentially do a review of this.

       The Inspectors General of the Department of Justice, the 
     Office of the Director of National Intelligence, the National 
     Security Agency, the Department of Defense, and any other 
     elements of the intelligence community that participated in 
     the President's surveillance program--

  Shall all work together to do a report which will look into--

     all of the facts necessary to describe the establishment, 
     implementation, product, and use of the product of the 
     Program;
       access to legal reviews of the Program and access to 
     information about the Program;
       communications with, and participation of, individuals and 
     entities in the private sector related to the Program;
       interaction with the Foreign Intelligence Surveillance 
     Court and transition to court orders related to the Program; 
     and
       any other matters identified by any such Inspector General 
     that would enable that Inspector General to complete a review 
     of the Program with respect to such Department of element.

  I believe the review we are talking about here, and that we are 
legislating or proposing to legislate, is intended to tell the Congress 
and tell anybody who reads the report what this program consisted of. 
That is information we do not have today. And it is entirely 
appropriate that we get that report before we grant immunity.
  That is the thrust of my amendment, I hope all of my colleagues will 
support it. I appreciate my colleague from Pennsylvania yielding me 
additional time to speak in response.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. CASEY. Mr. President, I have limited time, and I know my 
colleague from New Mexico, Senator Bingaman, did an excellent job of 
outlining his amendment. I will skip much of what I was going to read 
in my statement.
  Basically, what we are talking about is a time out. We are giving the 
Congress the opportunity to review the inspectors general report before 
the Congress chooses to authorize limited immunity for the telecom 
firms.
  It is actually very simple. Basically, what we are saying is, the 
amendment simply allows the Congress to say: Wait a minute. Hold on. We 
should take a deep breath before we decide to authorize a Federal 
district court to grant telecom firms legal immunity for their actions 
related to the administration's warrantless surveillance program.
  Let's figure out what this program entailed. Let's figure out what 
happened. Let's figure out what the telecom firms actually did, what 
they actually did when it came to wiretapping and surveillance.
  So under this amendment, the pending lawsuits would remain stayed 
while the inspectors general complete their report. If the firms did 
nothing wrong, as they have proclaimed, they will be vindicated by the 
final inspectors general report. Then the Congress will have the 
confidence to grant these firms the immunity for which they ask.
  So I think many Members of this body would have buyer's remorse if 
they voted for limited immunity without the understanding of what the 
President's surveillance program did and did not do. This amendment 
would prevent that buyer's remorse by allowing the Congress to better 
understand the conduct of the telecommunications firms before we decide 
to grant sweeping legal immunity for such conduct.
  I encourage my colleagues, all Members of the Senate, to vote for 
this amendment. It strikes the right balance. It is about 
accountability. It is also about the rule of law. It is a reasonable 
balance to strike on very important issues, the issues of security and 
how we are going to implement any kind of program which involves 
wiretapping and surveillance.
  The PRESIDING OFFICER. The Senator from West Virginia is recognized.
  Mr. ROCKEFELLER. Mr. President, I ask Senator Bond, the vice chairman 
of the committee, to yield me 10 or 11, potentially even 12 minutes.
  Mr. BOND. I make a very generous allotment of 12 minutes. If he needs 
more, I am anxious to hear what he has to say.
  Mr. ROCKEFELLER. I appreciate my colleague yielding me time.
  Mr. President, Senator Bingaman, who I greatly respect in all ways, 
has offered an amendment altering the liability protections of title 
II. That is it. His amendment would postpone the implementation of the 
liability provisions of the bill until 90 days after the submission of 
the final report of the inspectors general required under title II.
  Now, I appreciate the Senator's desire to have more information out 
there. But I want the Senator to contemplate, and the Senate as a whole 
to contemplate, what we are asking. We are talking about a year for the 
inspectors general to complete their reports.
  Does it really work that way? Is it really a flat year? Are we going 
to send out Federal marshals to have them all do their reports on the 
exact day? Probably it will stretch a little bit. Maybe it will not; 
maybe it will.
  But you cannot assume it will not. Then you have to add on 90 days. 
Then you can get to the question of the immunity. I am really baffled 
by that because what it, in effect, says is, we are almost certainly 
going to be going through a period of something, which I have not heard 
discussed today during this entire debate, and that is the actual 
collection of intelligence that involves highly classified material of 
a foreboding nature for a long period of time until the Senator from 
New Mexico and/or the Senate can be convinced that it is worthwhile to 
give immunity or to understand this program.
  Now, I want to make an even more basic point: By inserting this 
amendment, requesting this amendment be passed, I hope the good Senator 
does understand that he is undoing a very carefully calibrated 
compromise between the Senate-passed bill and the House-passed bill 
that is on title II, taking months and months of negotiations to get to 
the point where Speaker Pelosi, for example, who was violently against 
the bill, and title II in particular, and Steney Hoyer, who was very 
much against title II, the immunity portion of the bill, where they 
could say, on the floor of the House: We think sufficient progress has 
been made in the negotiations that we will vote for this bill, which 
the House did by about 70 percent.
  Now, that is going from the House not even considering title II. I 
mean, they considered and rejected it. It was a sea change.
  It was a sea change, and one has to have been there to see how the 
change took place, the good faith bargaining on the part of Vice 
Chairman Bond, myself, our mutual staffs, working with the DNI and 
others, long hours and long days with which we have arrived at 
something which, if we pass this today, will go to the President to be 
signed. If we accept this amendment or, for that matter, accept the 
Specter amendment that follows, it will have to go back to the House, 
which will not take it up, which will not consider it, which will undo 
everything, and there will be no bill.
  Is that important? Yes, it is. Why is it important? Because the 
chance of not being able to collect on extremely foreboding matters 
around this world will come to a halt, either because the PATRIOT Act 
terms have expired or because the companies will withdraw in disgust. 
In any event, the bill would be vetoed, as the vice chairman said.

[[Page S6402]]

So it would be the end of the bill. Therefore, I oppose this amendment.
  As I will say about each of these amendments--well, I just did--it 
undoes everything that has been done for the purpose of making a 
perfecting amendment to satisfy a particular need of a particular 
Senator. I also must oppose this amendment because there is no reason 
for delaying the liability protection provisions. There is not a 
sufficient reason. It is true the Select Committee struggled to get 
access to details about the President's surveillance program for many 
months, but in the end we succeeded. We went from maybe eight, more 
likely four, sometimes six, to all four committees in the House and the 
Senate, Judiciary and Intelligence. We heard the necessary testimony. 
We went to the EOP. We read all the documents, and our chiefs of staff 
were allowed to do the same thing. We read the legal reasoning used to 
justify within the executive branch and the role of the private sector. 
We did all of that, not only our committee but also the House 
Intelligence Committee, and both Judiciary Committees spent 
considerable time looking at this issue. I am satisfied we have a basis 
for taking action now.
  On national security grounds, we have to, in my judgment. We haven't 
talked about that today. We have talked about refined points of 
constitutional niceties and all the rest of it. I don't denigrate that, 
but there is something called the protection of the Nation. I take that 
very seriously. I take that very, very seriously. So a form of 
liability protection has passed the Senate and the House of 
Representatives a total of three times, once in the Senate and twice in 
the House. We should not now reverse these actions by passing the 
provisions of suspension.
  Let me be clear. I strongly support the requirement in this bill for 
a comprehensive review of the President's surveillance program by the 
inspectors general. They will be very tough and very thorough and 
embarrass a lot of people. A report on their general review is one of 
the best ways to inform the American people about the facts. Litigation 
is an imperfect mechanism to bring facts to the public, rather a 
terrible mechanism, because of something called the State secrets 
privilege which is involved, which means the people can't know 
anything, that a lot of people dealing with the court can't know 
anything, that the companies can't know anything. It is a closedown. 
People have to understand that. It is not an open court. You are not 
getting a traffic ticket. It is a highly complex, nuanced matter which 
is rigidly guarded by rules. You could argue the rules, but there they 
are. Unfortunately, if this amendment passes, the fact that litigation 
is still pending may have the effect of limiting the amount of 
information that will be released to the public in the report of the 
inspectors general, the opposite of what the distinguished Senator 
wants. Certain facts that might be releasable if the litigation were 
resolved might be held back, if the Government anticipated a continuing 
need to assert the State secrets privilege in litigation, which it 
would.
  It is also important to note that this amendment, if it were to pass, 
the liability protection provisions that the Senator is trying to get 
at would not go away. In other words, if his amendment passed and we 
took this long delay, nothing would affect the progress of the 
liability legislation and that possibility. So it is an amendment which 
doesn't accomplish anything. The provisions would still go into effect 
after 90 days, unless new legislation is passed. Let's hope that 
doesn't happen. The new Congress, thus, might be launched into a 
contentious debate next summer, instead of working with the new 
President on a new agenda. That is the point of the Cardin amendment, 
that the date was changed to December 2012, so that the next President, 
whoever it might be--it is very close--will have a chance to review and 
perhaps act upon what we have done here in the next term, which is 
good. I urge defeat of the amendment.
  I have one more thing to say, with the indulgence of my colleague. 
The senior Senator from Pennsylvania and I were engaged in earlier 
debate over the access Senators have had, both with myself and with the 
vice chairman, to the Government letter sent to the telecommunications 
companies requesting their cooperation during the period of 9/11 to 
January of 2007. The Senator from Pennsylvania lamented the fact that 
these documents were kept to only the members of the Intelligence and 
Judiciary Committees and not shared with the full Senate.
  I share the view of the Senator that these documents should be viewed 
by all Senators, and I have advocated this very position to senior 
officials of the Bush administration for many months. But recognizing 
the administration's unwillingness to extend this access, the Senate 
Intelligence Committee did the next best thing. We were able to get 
declassified the relevant facts upon which the committee and, 
ultimately, the full Senate reached the judgment that a narrowly drawn 
immunity bill remedy might be appropriate.
  For the record, our committee report, 110-209, accompanying S. 2248, 
the FISA amendments----
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. ROCKEFELLER. I ask unanimous consent for 1 additional minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. And dated October 26, 2007, includes a lengthy 
declassified explanation of the committee's review and conclusions as 
well as a description of the representations made by the Government in 
the letters sent to the companies during the period of time covered by 
the bill. So for the past 8 months, this public report has been 
available not only to all Senators--here it is, I have labeled it, 
pages 8 through 12, right here--but to the general public as well.
  I ask unanimous consent that that portion be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

              Title II of the FISA Amendments Act of 2007

       Title II of this bill reflects the Committee's belief that 
     there is a strong national interest in addressing the extent 
     to which the burden of litigation over the legality of 
     surveillance should fall on private parties. Based on a 
     review of both current immunity provisions and historical 
     information on the President's program, the Committee 
     identified three issues relating to the exposure of 
     electronic communication service providers to liability that 
     needed to be addressed in this bill.
       First, the Committee considered the exposure to liability 
     of providers who allegedly participated in the President's 
     surveillance program. Second, the Committee considered the 
     absence, in current law, of a procedural mechanism that would 
     give courts an appropriate role in assessing statutory 
     immunity provisions that would otherwise be subject to the 
     state secrets privilege. Third, the Committee sought to 
     clarify the role of state public utility commissions in 
     regulating electronic communication service providers' 
     relationships with the intelligence community. The Committee 
     addressed these three issues, respectively, in sections 202, 
     203, and 204 of the bill.


                          RETROACTIVE IMMUNITY

       Sections 201 and 202 of the bill provide focused 
     retroactive immunity for electronic communication service 
     providers that were alleged to have cooperated with the 
     intelligence community in implementing the President's 
     surveillance program. Only civil lawsuits against electronic 
     communication service providers alleged to have assisted the 
     Government are covered under the provision. The Committee 
     does not intend for this section to apply to, or in any way 
     affect, pending or future suits against the Government as to 
     the legality of the President's program.
       Section 202 was narrowly drafted to apply only to a 
     specific intelligence program. Section 202 therefore provides 
     immunity for an intelligence activity involving 
     communications that was designed to detect or prevent a 
     terrorist attack, or activities in preparation for a 
     terrorist attack, that was authorized in the period 
     between September 11, 2001 and January 17, 2007, and that 
     was described in written requests to the electronic 
     communication service provider as authorized by the 
     President and determined to be lawful.
       The extension of immunity in section 202 reflects the 
     Committee's determination that electronic communication 
     service providers acted on a good faith belief that the 
     President's program, and their assistance, was lawful. The 
     Committee's decision to include liability relief for 
     providers was based in significant part on its examination of 
     the written communications from U.S. Government officials to 
     certain providers. The Committee also considered the 
     testimony of relevant participants in the program.
       The details of the President's program are highly 
     classified. As with other intelligence matters, the 
     identities of persons or entities who provide assistance to 
     the U.S. Government are protected as vital sources and 
     methods of intelligence. But it reveals no secrets to say--as 
     the Foreign Intelligence Surveillance Act, this bill, and 
     Title 18 of the U.S. Code all make clear--that electronic

[[Page S6403]]

     surveillance for law enforcement and intelligence purposes 
     depends in great part on the cooperation of the private 
     companies that operate the Nation's telecommunication system.
       It would be inappropriate to disclose the names of the 
     electronic communication service providers from which 
     assistance was sought, the activities in which the Government 
     was engaged or in which providers assisted, or the details 
     regarding any such assistance. The Committee can say, 
     however, that beginning soon after September 11, 2001, the 
     Executive branch provided written requests or directives to 
     U.S. electronic communication service providers to obtain 
     their assistance with communications intelligence activities 
     that had been authorized by the President.
       The Committee has reviewed all of the relevant 
     correspondence. The letters were provided to electronic 
     communication service providers at regular intervals. All of 
     the letters stated that the activities had been authorized by 
     the President. All of the letters also stated that the 
     activities had been determined to be lawful by the Attorney 
     General, except for one letter that covered a period of less 
     than sixty days. That letter, which like all the others 
     stated that the activities had been authorized by the 
     President, stated that the activities had been determined to 
     be lawful by the Counsel to the President.
       The historical context of requests or directives for 
     assistance was also relevant to the Committee's determination 
     that electronic communication service providers acted in good 
     faith. The Committee considered both the extraordinary nature 
     of the time period following the terrorist attacks of 
     September 11, 2001, and the fact that the expressed purpose 
     of the program was to ``detect and prevent the next terrorist 
     attack'' in making its assessment.
       On the basis of the representations in the communications 
     to providers, the Committee concluded that the providers, in 
     the unique historical circumstances of the aftermath of 
     September 11, 2001, had a good faith basis for responding to 
     the requests for assistance they received. Section 202 makes 
     no assessment about the legality of the President's program. 
     It simply recognizes that, in the specific historical 
     circumstances here, if the private sector relied on written 
     representations that high-level Government officials had 
     assessed the program to be legal, they acted in good faith 
     and should be entitled to protection from civil suit.
       The requirements of section 202 reflect the Committee's 
     determination that cases should only be dismissed when 
     providers acted in good faith. Section 202 applies only to 
     assistance provided by electronics communication service 
     providers pursuant to a ``written request or directive from 
     the Attorney General or the head of an element of the 
     intelligence community. . . that the program was authorized 
     by the President and determined to be lawful.''
       Section 202 also preserves an important role for the 
     courts. Although the bill reflects the Committee's 
     determination that, if the requirements of section 202 are 
     met, the provider acted in good faith, the section allows 
     judicial review of whether the Attorney General has abused 
     the discretion provided by statute in certifying that a 
     provider either furnished no assistance or cooperated with 
     the Government under the terms referenced in the section.
       In determining whether to provide retroactive immunity, the 
     Committee weighed the incentives such immunity would provide. 
     As described above, electronic communication service 
     providers play an important role in assisting intelligence 
     officials in national security activities. Indeed, the 
     intelligence community cannot obtain the intelligence it 
     needs without assistance from these companies. Given the 
     scope of the civil damages suits, and the current spotlight 
     associated with providing any assistance to the intelligence 
     community, the Committee was concerned that, without 
     retroactive immunity, the private sector might be unwilling 
     to cooperate with lawful Government requests in the future 
     without unnecessary court involvement and protracted 
     litigation. The possible reduction in intelligence that might 
     result from this delay is simply unacceptable for the safety 
     of out Nation.
       At the same time, the Committee recognized that providers 
     play an essential role in ensuring that the Government 
     complies with statutory requirements before collecting 
     information that may impact the privacy interests of U.S. 
     citizens. Because the Government necessarily seeks access to 
     communications through the private sector, providers have the 
     unparalleled ability to insist on receiving appropriate 
     statutory documentation before agreeing to provide any 
     assistance to the Government.
       The Committee sought to maintain the balance between these 
     factors by providing retroactive immunity that is limited in 
     scope. The provision of retroactive immunity was intended to 
     encourage electronic communication service providers who 
     acted in good faith in the particular set of circumstances at 
     issue to cooperate with the Government when provided with 
     lawful requests in the future. Restricting that immunity to 
     discrete past activities avoids disrupting the balance of 
     incentives for electronic communication service providers to 
     require compliance with statutory requirements in the future. 
     Under this bill and existing statutory provisions, providers 
     will only be entitled to protection from suit for their 
     future activities if they ensure that their assistance is 
     conducted in accordance with statutory requirements.
       The Committee believes that adherence to precise, existing 
     statutory forms is greatly preferred. This preference is 
     reflected in section 203 of the bill, which establishes 
     procedures by which civil actions against those who assist 
     the Government shall be dismissed upon a certification by 
     the Attorney General that any assistance had been provided 
     pursuant to a court order or a statutorily-prescribed 
     certification or directive. The action the Committee 
     proposes for claims arising out of the President's program 
     should be understood by the Executive branch and providers 
     as a one-time response to an unparalleled national 
     experience in the midst of which representations were made 
     that assistance to the Government was authorized and 
     lawful.


             PROCEDURES FOR IMPLEMENTING STATUTORY DEFENSES

       Section 203 of this bill provides a procedure that can be 
     used in the future to seek dismissal of a suit when a 
     defendant either provided assistance pursuant to a lawful 
     statutory requirement, or did not provide assistance. This 
     section, a new section 802 of FISA, reflects the Committee's 
     recognition that the identities of persons or entities who 
     provide assistance to the intelligence community are properly 
     protected as sources and methods of intelligence.
       Under the existing statutory scheme, wire or electronic 
     communication providers are authorized to provide information 
     and assistance to persons with authority to conduct 
     electronic surveillance if the providers have been provided 
     with (1) a court order directing the assistance, or (2) a 
     certification in writing signed by the Attorney General or 
     certain other officers that ``no warrant or court order is 
     required by law, that all statutory requirements have been 
     met, and that the specific assistance is required.'' See 18 
     U.S.C. 2511(2)(a)(ii). Current law therefore envisions that 
     wire and electronic communication service providers will play 
     a lawful role in the Government's conduct of electronic 
     surveillance.
       Section 2511(2)(a)(ii) protects these providers from suit 
     as long as their actions are consistent with statutory 
     authorizations. Once electronic communication service 
     providers have a court order or certification, ``no cause of 
     action shall lie in any court against any provider of wire or 
     electronic communication service . . . for providing 
     information, facilities, or assistance in accordance with the 
     terms of a court order, statutory authorization, or 
     certification under this chapter.'' Id. The Protect America 
     Act and Title I of this bill provide similar protections from 
     suit for providing information or assistance in accordance 
     with statutory directives. All of these immunity provisions 
     are designed to ensure that wire and electronic communication 
     service providers assist the Government with electronic 
     surveillance activities when necessary, and recognize the 
     good faith of those providers who assist the Government in 
     accordance with the statutory scheme.
       To the extent that any existing immunity provisions are 
     applicable, however, providers have not been able to benefit 
     from the provisions in the civil cases that are currently 
     pending. Because the Government has claimed the state secrets 
     privilege over the question of whether any particular 
     provider furnished assistance to the Government, an 
     electronic communication service provider who cooperated with 
     the Government pursuant to a valid court order or 
     certification cannot prove it is entitled to immunity under 
     section 2511(2)(a)(ii) without disclosing the information 
     deemed privileged by the Executive branch. Thus, electronic 
     communication providers are prohibited from seeking immunity 
     under section 2511(2)(a)(ii) for any assistance they may have 
     provided to the intelligence community, with the approval 
     of the FISA Court, after January 17, 2007. Providers who 
     did not assist the Government are similarly unable to 
     extract themselves from ongoing litigation, because the 
     assertion of the state secrets privilege makes it 
     impossible for them to demonstrate their lack of 
     involvement.
       By addressing the situation in which an entity is 
     prohibited from taking advantage of existing immunity 
     provisions because of Government restrictions on disclosure 
     of the information, Section 203 seeks to ensure that existing 
     immunity provisions have their intended effect. The Committee 
     also intends to reassure providers that as long as their 
     assistance to the Government is conducted in accordance with 
     statutory requirements, they will be protected from civil 
     liability and the burden of further litigation.
       The procedure in section 203 allows a court to review a 
     certification as to whether an individual either assisted the 
     Government pursuant to a lawful statutory requirement or did 
     not assist the Government, even when public disclosure of 
     such facts would harm the national security. Because an 
     assertion of state secrets over the same facts would likely 
     prevent all judicial review over whether, and under what 
     authorities, an individual assisted the Government, this 
     provision serves to expand judicial review to an area that 
     may have been previously non-justiciable. In addition, the 
     statute explicitly allows the court to review for abuse of 
     discretion the Attorney General's certification that a person 
     either did not assist the Government or cooperated with the 
     Government pursuant, to statutory requirements.

[[Page S6404]]

                               PREEMPTION

       Section 204 of the bill preempts state investigations or 
     required disclosure of information about the relationship 
     between individual electronic communication service providers 
     and the intelligence community. The provision reflects the 
     Committee's view that, although states play an important role 
     in regulating electronic communication service providers, 
     they should not be involved in regulating the relationship 
     between electronic communication service providers and the 
     intelligence community.

  Mr. ROCKEFELLER. I hope very much that the Senator's amendment will 
be defeated. I thank the Chair.
  Mr. BOND. I suggest the absence of a quorum and ask unanimous consent 
that the time be charged equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. ROCKEFELLER. I ask unanimous consent that the order for the 
quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. ROCKEFELLER. Mr. President, with the goodwill of the vice 
chairman, he has granted me a couple of moments to enter a couple 
documents in the Record. We have had several good days of debate or 
good hours of debate on the FISA bill going back to before the recess. 
I guess that would be several months. In the course of a discussion of 
a bill as lengthy and complex as this, several arguments have been made 
that warrant response, but there isn't always time to give the 
response. In the interest of establishing an accurate legislative 
history to accompany the bill, as manager of the bill, I ask unanimous 
consent to print in the Record a statement providing such 
clarifications and corrections.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

 H.R. 6304, FISA Amendments Act of 2008, Response to Various Points in 
                    Pre-Recess Debate, July 8, 2008

       Mr. President, prior to the recess, we had several good 
     days of debate on the FISA bill. Inevitably, in the course of 
     discussion of a bill as lengthy and detailed as this, several 
     arguments have been made that warrant a response in the 
     interest of an accurate legislative history. As a manager of 
     the bill, I would like to take a few moments to clear up 
     several matters.


                              Exclusivity

       Sections 102(a) and (b) are the bill's main exclusivity 
     provisions. Section 102(a) strengthens present exclusivity 
     law by providing, in a new section 112 of FISA, that only an 
     express statutory authorization for electronic surveillance 
     or the interception of domestic communications shall 
     constitute an exclusive means in addition to specifically 
     listed statutes. Section 102(b) amends section 109 of FISA, 
     the Act's key criminal offense provision, so that the 
     criminal offense and the exclusivity provision dovetail 
     exactly.
       These main parts of section 102 are well understood. There 
     has been some confusion, however, about a conforming 
     amendment in section 102(c), which performs a useful but 
     distinctly minor role in the overall exclusivity section.
       Section 102(c) adds a detail to the section of the U.S. 
     criminal code (18 USC 2511), which gives immunity from suit 
     to companies who have received a certification from the 
     Attorney General. It requires the Government to identify in 
     the certification the specific statutory provision that 
     authorizes the company's assistance ``if a certification . . 
     . for assistance to obtain foreign intelligence information 
     is based on statutory authority.''
       Several colleagues have suggested, or at least strongly 
     intimated, that this language acknowledges the President's 
     constitutional authority to conduct warrantless surveillance 
     of the kind involved in the President's Terrorism 
     Surveillance Program. Any such argument is inconsistent with 
     both the language of the provision and the intent of its 
     drafters.
       To understand the purpose of section 102(c), we need to 
     look at the course of negotiations about it. In its proposed 
     amendment to our Intelligence Committee bill, the Senate 
     Judiciary Committee recommended the following language: ``A 
     certification . . . for assistance to obtain foreign 
     intelligence information shall identify the specific 
     provision of the Foreign Intelligence Surveillance Act of 
     1978 . . . that provides an exception from providing a court 
     order, and shall certify that the statutory requirements of 
     such provision have been met.''
       As the Judiciary Committee pointed out in its report, this 
     language responded to the need of providers to have clarity 
     regarding the legality of their actions and entitlement to 
     immunity.
       After the Judiciary Committee sequentially reported our 
     bill, there were extensive discussions with the 
     administration about this language. In the course of those 
     discussions, the Department of Justice noted that FISA, as 
     drafted in 1978, was only intended to regulate particular 
     activities, those that constitute ``electronic 
     surveillance,'' a term that is carefully defined in FISA. 
     Indeed, the nuance in FISA's definition of electronic 
     surveillance, as well as its very detailed parameters, led us 
     to decide not to alter the definition of electronic 
     surveillance in FISA in this compromise bill. Activities that 
     do not constitute electronic surveillance within the meaning 
     of FISA, or the interception of domestic wire, oral or 
     electronic communications, were not restricted by FISA's 
     original exclusivity provision and the same will be true 
     under this bill. Thus, theoretically there may be activities 
     that fall outside of the statute's restrictions but are not 
     subject to an explicit statutory ``exception from providing a 
     court order,'' as that term was used in the Judiciary 
     Committee amendment.
       These discussions led to the language in the current bill, 
     which was included as part of Senator Feinstein's exclusive 
     means amendment in the original Senate debate in February. 
     The amendment was intended to ensure that the provider has as 
     much information as possible, while still recognizing that, 
     going back to the birth of FISA, activities may be conducted 
     side-by-side with FISA, although not under the authority of 
     FISA, if they do not fall within FISA's definition of 
     electronic surveillance.
       Section 102(c) was not intended to permit, and its language 
     would not permit, any activities that would violate the main 
     parts of the exclusive means provision, whatever the legal 
     justification. Any suggestion that Congress would take away 
     in a conforming amendment the central achievement of the 
     overall exclusivity section makes no sense.
       Indeed, the bill makes it painstakingly clear: any person 
     who engages in electronic surveillance outside of FISA or the 
     U.S. criminal code is committing a criminal offense. Given 
     this statutory requirement, the Attorney General cannot 
     lawfully certify that electronic surveillance outside of FISA 
     satisfies ``all statutory requirements,'' as is required and 
     will continue to be required for a certification in section 
     2511 of title 18.
       Whether or not the President has constitutional authority 
     to conduct surveillance--and there is widespread disagreement 
     here on that point--the language of section 102(c) simply 
     cannot be read to recognize any authority to conduct 
     electronic surveillance that is inconsistent with FISA.


                        Assessment of Compliance

       In debate on the bill, the question has been raised whether 
     the decision not to include in the final compromise a 
     provision specifically addressing the authority of the FISA 
     court to assess compliance with minimization procedures in 
     section 702 represents a determination that the court should 
     not have that authority.
       Minimization procedures are specific procedures that are 
     reasonably designed to minimize acquisition and retention, 
     and prohibit dissemination, of nonpublic information 
     concerning United States persons consistent with the need to 
     obtain, produce, and disseminate foreign intelligence 
     information. Compliance with them is central to the 
     protection of the privacy of Americans. The Protect America 
     Act failed to provide for court review and approval of 
     minimization procedures. This bill corrects that omission. 
     The PAA also failed to provide for rules on the use of 
     information acquired under it. This bill corrects that 
     omission by making section 106 of FISA applicable to 
     collection under its foreign targeting provisions. That 
     section explicitly mandates that federal employees may only 
     use or disclose information concerning U.S. persons in 
     accordance with required minimization procedures.
       Although section 702 does not have a provision that 
     mandates compliance reviews, as the original House bill 
     contained, the bill before us today recognizes the authority 
     of the FISA court to assess compliance with the procedures 
     that it has approved. The courts of the United States are not 
     advisory bodies. All of them, including the FISA court, have 
     the inherent authority of any other court that exercises the 
     judicial power of the United States to ensure that the 
     parties before them are complying with their orders and the 
     procedures they approve.
       An amendment to the original bill that was offered by 
     Senator Whitehouse, who had strongly advocated on the Senate 
     floor in support of judicial review of compliance with 
     minimization procedures, makes the Congress's recognition of 
     this inherent court authority clear. That language, which the 
     Senate adopted by unanimous consent and which is section 
     109(d) in the final bill, specifically states that no 
     provision of FISA will be construed to reduce or contravene 
     the inherent authority of the FISA court ``to determine or 
     enforce compliance with an order or rule of such court, or 
     with a procedure approved by such court.''
       The decision in negotiating the compromise of this bill not 
     to include in section 702 a separate provision for 
     minimization compliance reviews by the court, should be 
     understood, as we understood in the Senate when considering 
     Senator Whitehouse's amendment, to represent satisfaction 
     that the amendment adequately recognizes the authority of the 
     FISA court to assess compliance.


                         Exigent Circumstances

       The next issue that deserves clarification is the exigent 
     circumstances exception to prior court approval. The bill 
     requires the

[[Page S6405]]

     Government to obtain prior court approval of targeting and 
     minimization procedures before beginning collection under the 
     new procedures. There is one exception to this requirement: 
     in exigent circumstances, the Attorney General and Director 
     of National Intelligence may authorize collection to begin 
     immediately.
       In section 702(c)(2), the bill describes an exigent 
     circumstances determination to be ``a determination by the 
     Attorney General and the Director of National Intelligence 
     that exigent circumstances exist because, without immediate 
     implementation of an authorization under subsection (a) [of 
     section 702], intelligence important to the national security 
     may be lost or not timely acquired and time does not permit 
     the issuance of an order pursuant to subsection (i)(3) prior 
     to the implementation of such authorization.''
       In both Houses, there has been some discussion about the 
     meaning of the phrase ``exigent circumstances'' and the 
     expectations of Members about the use of this authority. 
     While the bill does not define the phrase ``exigent 
     circumstances'' standing alone, it does describe the limits 
     of the appropriate use of the authority: a determination by 
     the Nation's highest law enforcement official, the Attorney 
     General, and highest intelligence official, the DNI, that (a) 
     without immediate implementation ``intelligence important to 
     the national security may be lost or not timely acquired'' 
     and (b) time does not permit the issuance of a FISA court 
     approval order prior to implementation.
       To the extent that auxiliary aids are needed to assist in 
     defining ``exigent circumstances,'' at least three are 
     available.
       First, section 702 as a whole demonstrates the clear intent 
     of Congress that prior judicial approval is strongly 
     preferred. To the extent practicable, the Government's 
     submissions of certifications and procedures to the FISA 
     court with regard to annual authorizations shall precede the 
     effective date of those authorizations by at least 30 days. 
     On receiving Government submissions, the FISA court is to 
     complete action on them within 30 days unless the court 
     exercises its limited extension authority.
       Those provisions, working together, implement the design of 
     the Congress to ensure that judicial review will ordinarily 
     precede implementation. The benefit of doing so is obvious. 
     The intelligence community, telecommunication providers who 
     are asked to implement Government directives, and the 
     American public will be assured that the procedures and 
     certifications that ensure the lawfulness of collection have 
     been approved before collection begins. In light of the 
     centrality of prior review in section 702, and the 
     significant benefits flowing from it, exceptions should be 
     rare.
       Second, if more is needed to define ``exigent 
     circumstances,'' the dictionary definition of ``exigent'' is 
     a tool of first resort outside the text and structure of the 
     Act. For example, the Random House College Dictionary defines 
     ``exigent'' as ``requiring immediate action or aid; urgent, 
     pressing.'' ``Urgent'' in turn is defined as ``pressing, 
     compelling or requiring immediate action or attention; 
     imperative.''
       Third, the interpretation of the bill by agencies charged 
     with its administration is an acknowledged guide, 
     particularly, as here, where that interpretation has been 
     offered to the Congress in the course of the legislative 
     process. In writing to the Speaker on June 19, the Attorney 
     General and the DNI explained: ``The exigent circumstances 
     exception is critical to allowing the Intelligence Community 
     to respond swiftly to changing circumstances when the 
     Attorney General and the Director of National Intelligence 
     determine that intelligence may be lost or not timely 
     acquired. Such exigent circumstances could arise in certain 
     circumstances where an unexpected gap has opened in our 
     intelligence collection efforts.''
       The recognition that the ``exigent circumstances'' 
     provision is an ``exception'' to prior court approval that it 
     is applicable to ``changing circumstances'' and ``unexpected 
     gaps,'' when considered in the light of the text and 
     structure of section 702 and the ordinary meaning of 
     ``exigent,'' all convey, as I believe, that this authority 
     should be used only rarely, when urgent and unexpected action 
     is truly required.
       We intend to monitor the use of this authority carefully, 
     so that we can address any abuses at the time of the sunset, 
     if necessary.

    Title II--Documentary Support for Attorney General Certification

       During the pre-recess debate, a suggestion was made that 
     the bill establishes clear limits on what documents the 
     district court may review in determining whether substantial 
     evidence supports a certification by the Attorney General on 
     a provider's entitlement to immunity.
       The burden is on the Attorney General to provide to the 
     court the equivalent of an administrative record that 
     satisfies the substantial evidence test. While I agree that 
     the parties cannot seek discovery to provide the court with 
     information as to whether the substantial evidence test is 
     met, the bill does not limit what the Attorney General may 
     submit, in his or her discretion, to provide substantial 
     evidence to support the certification.
       A certification under section 802 shall be given effect 
     unless the court, in accordance with subsection (b), finds 
     that it is not supported by substantial evidence ``provided 
     to the court pursuant to this section.'' The phrase ``this 
     section'' covers the entire section. Thus, the scope of the 
     evidence that the Attorney General may submit to sustain the 
     substantial evidence burden is not dependent on any 
     particular subsection of section 802 but is drawn from the 
     entirety of the section including, importantly, all of the 
     substantive requirements for the implementation of liability 
     protection.
       Section 802(b)(2) provides that in reviewing a 
     certification under section 802 the court may examine the 
     court order, certification, written request, or directive 
     described in the substantive provisions of section 802. This 
     authority ensures that the court will be able to examine 
     those documents. But it does not limit the Attorney General 
     to those documents in supporting a certification under 
     section 802. For example, the Attorney General may determine 
     that providing substantial evidence to support a 
     certification that a person did not provide assistance 
     requires evidence that is not included in communications with 
     that person. Section 802 therefore should not be read as a 
     limit on what may be submitted to the court by the Attorney 
     General. As for the method by which additional information 
     may be provided, section 802 imposes no limit on what the 
     Attorney General may include within a certification or 
     annexed to it.

  Mr. ROCKEFELLER. I also point out, there was an op-ed piece in 
support of the FISA bill in today's New York Times which I call to the 
attention of my colleagues. It was written by Mr. Morton Halperin and 
entitled ``Listening to Compromise.'' Mr. Halperin, in addition to 
being executive director of the Open Society Policy Center, has a 
lengthy career of public service in both Democratic and Republican 
administrations.
  Mr. President, I ask unanimous consent to have printed in the Record 
Mr. Halperin's op-ed in support of the bill as it appeared in today's 
New York Times.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                [From the New York Times, July 8, 2008]

                        Listening to Compromise

                        (By Morton H. Halperin)

       Two years ago, I stated my belief that the Bush 
     administration's warrantless wiretapping program and 
     disregard for domestic and international law poses a direct 
     challenge to our constitutional order, and ``constitutes a 
     far greater threat than the lawlessness of Richard Nixon.''
       That was not a casual comparison. When I was on the staff 
     of the National Security Council, my home phone was tapped by 
     the Nixon administration--without a warrant--beginning in 
     1969. The wiretap stayed on for 21 months. The reason? My 
     boss, Henry Kissinger, and the director of the F.B.I., J. 
     Edgar Hoover, believed that I might have leaked information 
     to this newspaper. Even after I left government, and went to 
     work on Edmund Muskie's presidential campaign, the F.B.I. 
     continued to listen in and made periodic reports to the 
     president.
       I was No. 8 on Richard Nixon's ``enemies list''--a strange 
     assemblage of 20 people who had incurred the White House's 
     wrath because they had disagreed with administration policy. 
     As the presidential counsel John Dean explained it in 1971, 
     the list was part of a plan to ``use the available federal 
     machinery to screw our political enemies.'' My guess is that 
     I earned this dubious distinction because of my opposition to 
     the Vietnam War, though no one ever said for sure.
       Because I rejected the Nixon administration's use of 
     national security as a pretext for broad assertions of 
     unchecked executive power, I became engaged with the Foreign 
     Intelligence Surveillance Act when it was proposed in the 
     early 1970s. And because I reject the Bush administration's 
     equally extreme assertions of executive power at the expense 
     of civil liberties, I have been engaged in trying to improve 
     the current legislation.
       The compromise legislation that will come to the Senate 
     floor this week is not the legislation that I would have 
     liked to see, but I disagree with those who suggest that 
     senators are giving in by backing this bill.
       The fact is that the alternative to Congress passing this 
     bill is Congress enacting far worse legislation that the 
     Senate had already passed by a filibuster-proof margin, and 
     which a majority of House members were on record as 
     supporting.
       What's more, this bill provides important safeguards for 
     civil liberties. It includes effective mechanisms for 
     oversight of the new surveillance authorities by the FISA 
     court, the House and Senate Intelligence Committees and now 
     the Judiciary Committees. It mandates reports by inspectors 
     general of the Justice Department, the Pentagon and 
     intelligence agencies that will provide the committees with 
     the information they need to conduct this oversight. (The 
     reports by the inspectors general will also provide 
     accountability for the potential unlawful misconduct that 
     occurred during the Bush administration.) Finally, the bill 
     for the first time requires FISA court warrants for 
     surveillance of Americans overseas.
       As someone whose civil liberties were violated by the 
     government, I understand this legislation isn't perfect. But 
     I also believe--and here I am speaking only for myself--that 
     it represents our best chance to protect I

[[Page S6406]]

     both our national security and our civil liberties. For that 
     reason, it has my personal support.

  Mr. ROCKEFELLER. Mr. President, I thank the Presiding Officer and 
yield the floor.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I would like to speak for a little while 
about one part of the bill, and I will have more to say tomorrow. I 
strongly oppose the blanket grant of immunity that is contained in this 
bill. I would hope Senators would reject what is an ill-advised 
legislative effort to engineer specific outcomes in ongoing Federal 
judicial proceedings. Basically, we are telling another branch of 
Government: Here is the way you have to come out in your decisions.
  There is a way to cure that problem. Instead of the Congress telling 
the courts how they have to rule, we could adopt the Dodd-Feingold-
Leahy amendment to strike title II from the bill. This would strike the 
retroactive immunity provisions, and it would allow for accountability 
for those who violated Americans' rights and violated the law. It would 
send a strong message that no one stands above the law in the United 
States.
  I am not out to get the telephone companies. I just want us to know 
who it was in the administration who said: You may break the law. The 
American people ought to know who in the White House said, ``You may 
break the law,'' who it was who made the decision that somehow this 
President stands above the law.
  The administration circumvented the law by conducting warrantless 
surveillance of Americans for more than 5 years. They were breaking the 
law, and then they got caught. The press reported this illegal conduct 
in late 2005. The Republican-controlled Congress did not ask the 
questions to find it out. The press found it out. Had they not done so, 
I have to assume this unlawful surveillance would still be going on 
today.
  When the public found out that the Government had been spying on the 
American people outside of FISA for years, the Government and the 
providers were sued by citizens who believed their privacy rights were 
violated. They said: You are violating our privacy. We want you to be 
held accountable. But, of course, that is why the Founders created a 
system of Federal courts through the Constitution--so people can assert 
their rights before a fair and neutral tribunal without interference 
from the other branches of Government, so they have some way to say: I 
am not a Democrat. I am not a Republican. I am not rich. I am not poor. 
I am an American. I am seeking to have my rights upheld.
  Title II of this bill would effectively terminate these lawsuits and 
those rights. It seeks to reduce the role of the court to a rubber 
stamp. So long as the Attorney General certifies that the Government 
requested the surveillance and indicated that it had been ``determined 
to be lawful,'' the cases will be dismissed and everybody is off the 
hook. It is not the court that says whether you followed the law. No, 
this bill allows the government to say: Oh, you are looking at us? Ah, 
we certify we followed the law. So, therefore, you courts have to let 
us off the hook because, after all, we said, whether we broke the law 
or not, we are following the law, so we are home free.
  That is not a meaningful judicial inquiry. Thinking back to my days 
as a prosecutor in Vermont, that would be as if the police caught 
someone in a burglary, I charged them, and the defendant then told the 
judge: But I have determined that for me, your Honor, the burglary laws 
do not apply, so you have to let me go. I can't be prosecuted. I can't 
be held accountable. Nobody would take that seriously. We should not 
take this seriously. We should not do something that does not give the 
plaintiffs their day in court. It is not just a heavy thumb on the 
scales of justice; it is a whole hand and an arm on the scales of 
justice, and I cannot support it.
  If we look at the publicly available information about the 
President's program, it becomes clear that title II is designed to tank 
these lawsuits, pure and simple, but then to allow the administration 
to avoid any accountability for their actions. The Senate Intelligence 
Committee said in a report last fall that the providers received 
letters from the Attorney General stating that the activities had been 
``authorized by the President'' and ``determined to be lawful.''
  Guess what. These are precisely the ``magic'' words that will 
retroactively immunize the providers under title II of this bill. Mr. 
President, the fix is in. The bill is rigged, based on what we already 
know, to ensure that the providers get immunity and the cases get 
dismissed.
  What it says is, if you are in charge, you can just go out and break 
the law, and then when they look at you, send a letter to the court 
saying: I have determined that when I broke the law, I did not really 
break the law, so you have to let me off the hook.
  Lewis Carroll once wrote a book about that. I think it was called 
``Alice in Wonderland.'' So what if Americans' rights were violated. So 
what if statutes were violated. So what if those privacy-protecting 
statutes provide for damages. This bill makes our courts the 
handmaidens to a coverup, and it is wrong. It tells the courts--the 
U.S. Federal courts--it tells them: Take part in a coverup. I cannot 
support something that does that. It is wrong.
  Make no mistake, if title II becomes law, there will be no 
accountability for this administration's actions in a court of law. We 
would take away the only viable avenue for Americans to seek redress 
for harms to their privacy and liberties.
  Those who claim that American citizens can still pursue their privacy 
claims against the Government know that sovereign immunity is a 
roadblock. They know that cases against the Government have already 
been dismissed for lack of standing. They know about the Government's 
ability to assert the state secrets doctrine and various other legal 
defenses and protections for Government officials. They know these 
suits will go nowhere. They know, and it is wrong for them to suggest 
otherwise. This is a red herring if there ever was one.

  The report of the Select Committee on Intelligence in connection with 
its earlier version of the bill that also included retroactive immunity 
is telling. The Select Committee on Intelligence wrote:

       The Committee does not intend for this section to apply to, 
     or in any way affect, pending or future suits against the 
     Government as to the legality of the President's program.

  And later wrote:

       Section 202 makes no assessment about the legality of the 
     President's program.

  But neither that bill nor this one makes any allowance for such suits 
against the Government to proceed to a decision on its merits. That is 
precisely what is lacking in this measure: an avenue to obtain judicial 
review and accountability.
  Now, those who support retroactive immunity for the 
telecommunications carriers and dismissal of the suits against them 
without providing an effective avenue to challenge the program or 
obtain judicial review of its legality--well, what they are doing is 
supporting unaccountability, pure and simple. They are saying: 
Everybody is off the hook. I am not out to get the telephone companies. 
All I want to know is, who in our Government said: You may break the 
law. And this bill is going to make sure we never find out.
  In fact, the case that did proceed to decision in the Federal court 
in Michigan was appealed by the Government, was vacated and dismissed 
for lack of ``standing.'' So the judicial decision on the merits that 
the President's program of warrantless wiretapping of Americans was a 
violation of law and the Constitution was effectively wiped from the 
books.
  I note again that the proponents of this retroactive immunity have 
not and cannot say that the administration acted lawfully. They do not 
say the administration acted lawfully because they know the 
administration did not act lawfully.
  Even if one believes the telephone companies merit protection, there 
is simply no good reason why Congress must act now to deal with the 
issue of the ongoing lawsuits against providers. The claim that these 
lawsuits will somehow ``bankrupt'' the providers is belied by the 
record demonstrating the financial health of these companies today 
despite the ongoing litigation.
  Even the most alarmist critics of the lawsuits acknowledge it would 
be years

[[Page S6407]]

and probably at least two trips to the U.S. Supreme Court before we 
have any enforceable final judgments.
  If there is such a risk, well, what does that say? It says there were 
violations and that people's rights were violated. Now, I have said 
before that I would support the Government stepping into the shoes of 
these defendants, of these telephone companies, if we want to protect 
them. It is simple. If you are that concerned about the telephone 
companies, exclude them. Substitute the U.S. Government. But we should 
not protect them if the cost of protecting them is all accountability 
and the cost of never getting a judicial determination on the merits of 
the cases whether the Government violated the law.
  Americans have a right to know.
  The PRESIDING OFFICER. The Senator's 10 minutes have expired.
  Mr. LEAHY. Mr. President, I ask unanimous consent for an additional 
30 seconds.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LEAHY. I believe the rule of law is important. I trust our courts 
to handle even the most difficult and sensitive disputes. That is the 
courts' role in our constitutional scheme, not ours. Title II of this 
bill would have Congress decide these cases by legislative fiat.
  We do not want to diminish our Federal judiciary and risk selling out 
large numbers of Americans whose fundamental rights may have been 
violated. We should not pass this bill unamended. I urge my colleagues 
to cast a vote for accountability and support the Dodd-Feingold-Leahy 
amendment.
  I strongly oppose the immunity provisions contained in this bill, and 
I have supported every effort to strike them. But if we cannot 
eliminate these ill-advised provisions, then I agree that Senator 
Bingaman's amendment to delay a decision on immunity until after the 
inspectors general have conducted their review of the warrantless 
surveillance program makes good sense.
  I worked hard to include the inspectors general amendment as a part 
of this FISA bill. For that provision to have its full effect, we 
should delay any grant of retroactive immunity until we know what the 
final report says.
  Senator Bingaman's amendment would stay all pending cases against the 
telecom companies related to the warrantless surveillance program and 
delay the effective date of the immunity provisions in title II of the 
bill until 90 days after Congress receives the inspectors general 
reports.
  I have maintained throughout this debate that it makes little sense 
for Senators--many who have never been given the opportunity to view 
key documents relevant to the warrantless surveillance program--to cast 
an uninformed vote on retroactive immunity. That is buying a pig in a 
poke. To mix farm metaphors, the Bingaman amendment puts the horse back 
in front of the cart.
  First, let's get the facts. And then, only after reviewing the 
relevant facts that the administration claims support granting 
retroactive immunity, determine whether Congress should attempt to 
legislatively determine the result of the 40 or so Federal cases 
alleging violations of fundamental rights of Americans.
  Again, I believe the retroactive immunity provisions in this bill 
should be stripped entirely. But if that cannot be accomplished, then I 
support Senator Bingaman's amendment as a commonsense way to ensure 
that the Senate makes a fully informed decision on retroactive 
immunity.
  I yield the floor.
  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. SPECTER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                           Amendment No. 5059

  Mr. SPECTER. Mr. President, I now call up my amendment No. 5059.
  The PRESIDING OFFICER. Without objection, the pending amendment is 
set aside.
  The clerk will report.
  The legislative clerk read as follows:

       The Senator from Pennsylvania [Mr. Specter] proposes an 
     amendment numbered 5059.

  Mr. SPECTER. Mr. President, I ask unanimous consent that the reading 
of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To limit retroactive immunity for providing assistance to the 
  United States to instances in which a Federal court determines the 
  assistance was provided in connection with an intelligence activity 
                        that was constitutional)

       On page 90, strike lines 17 through 21 and insert the 
     following:
       ``(1) Review of certifications.--
       ``(A) In general.--Except as provided in subparagraph (B), 
     a certification under subsection (a) shall be given effect 
     unless the court finds that such certification is not 
     supported by substantial evidence provided to the court 
     pursuant to this section.
       ``(B) Covered civil actions.--In a covered civil action 
     relating to assistance alleged to have been provided in 
     connection with an intelligence activity involving 
     communications that was authorized by the President during 
     the period beginning on September 11, 2001, and ending on 
     January 17, 2007, a certification under subsection (a) shall 
     be given effect unless the court--
       ``(i) finds that such certification is not supported by 
     substantial evidence provided to the court pursuant to this 
     section; or
       ``(ii) determines that the assistance provided by the 
     applicable electronic communication service provider was 
     provided in connection with an intelligence activity that 
     violated the Constitution of the United States.

  Mr. SPECTER. Mr. President, I believe that history will look back at 
the period of time between 9/11 and the present as the greatest 
expansion of the executive authority in the history of this country. We 
have seen the unauthorized military commissions. We have seen the 
extraordinary rendition to the frequent invocation of state secrets, 
privilege, and the misuse of so-called signing statements.
  The signing statements represent a fundamental failure of the 
Congress to utilize its constitutional authority. When the Constitution 
provides that there is a presentment by both Houses, the President 
either signs it or vetoes it, and the widespread practice has now come 
into play where the President signs and issues a signing statement 
undercutting key provisions of the legislation. I introduced a bill to 
give Congress standing to challenge that in court. It has gone nowhere 
because of the impossibility of overriding a veto and because of the 
considerations of case in controversy.
  We have seen, in the context of the evolving issues, the total ill-
effectiveness of Congress to provide the oversight of the Intelligence 
Committees. The National Security Act of 1947 expressly provides that 
matters such as the terrorist surveillance program should be submitted 
to the Intelligence Committees, but that has not been done. Only a 
portion of the Intelligence Committees have been briefed. Most of the 
limited briefing was done only when the administration needed some 
support for the confirmation of General Hayden as CIA Director. We have 
seen the provisions of the Foreign Intelligence Surveillance Act of 
1978 bypassed by the executive branch on a claim of constitutional 
authority under article II, power as Commander in Chief, contrasted 
with the congressional authority under article I.
  A Detroit Federal court declared the terrorist surveillance program 
unconstitutional. The Court of Appeals for the Sixth Circuit reversed, 
in a 2-to-1 decision on the ground of the lack of standing, with the 
dissenter filing an opinion showing ample basis for standing. The 
Supreme Court of the United States refused to review the case. They 
called it a denial of certiorari. That is the major constitutional 
confrontation of our era, between the President asserting article II 
powers as Commander in Chief and the explicit statutory provision 
enacted by Congress in 1978 providing for the exclusive means of having 
wiretapping. Instead, we have warrantless wiretapping.
  The legislation pending now would provide retroactive immunity. I 
suggest retroactive immunity in a context that we could both preserve 
the electronic surveillance and leave the court with jurisdiction in 
one of two ways. One, by substituting the Federal Government as the 
party defendant of the telephone companies, in the shoes of the 
telephone companies with no more, no less rights; or secondly, 
requiring, as my amendment does, that the Federal district court would 
decide constitutionality. No one is denying the

[[Page S6408]]

telephone companies have been good citizens.
  The argument has been made that, well, there may be money damages or 
there is a matter of public image which is involved. Well, monetary 
damages and public image, in my judgment, don't measure up to the right 
of privacy. Just as Oliver Wendell Holmes, in a 1928 case almost a 
century ago, said that wiretapping was ``dirty business''--and it 
remains dirty business--it may be necessary on national security 
grounds, but it has to be done within the confines of the law. That can 
be decided only by the courts, especially in the atmosphere that we 
have where the Congress has been so ineffective and where the Supreme 
Court of the United States ducked the issue on the case coming out of 
the Sixth Circuit, where there was ample grounds for finding standing 
to proceed with that case.
  Within the past 6 days, there has been a major development on this 
issue as a result of a judgment handed down by Chief Judge Vaughn 
Walker of the U.S. district court in San Francisco. Judge Walker is the 
same judge who has the telephone company cases which were consolidated 
and sent to him under Federal rules on a multidistrict panel. Judge 
Walker found flatly that the President exceeded his constitutional 
authority when he ignored the Foreign Intelligence Surveillance Act. 
This is the exact language in the 56-page opinion:

       Congress appears clearly to have intended to--and did--
     establish the exclusive means for foreign intelligence 
     surveillance activities to be conducted. Whatever power the 
     executive may otherwise have had in this regard, FISA--

  The Foreign Intelligence Surveillance Act--

     limits the power of the executive branch to conduct such 
     activities.

  So now we have the judge who is hearing these telephone cases having 
said that such surveillance is unconstitutional. FISA covers not only 
the traditional wiretaps but explicitly covers pen registers and trap-
and-trace devices which could include whatever it is the telephone 
companies were allegedly doing. On that subject, we do not know the 
full extent of what the telephone companies are doing. All we have are 
the allegations and the legal papers. Here, Congress is being asked to 
pass upon a program on which most Members have not been briefed. As 
stated earlier on the floor today, 70 Members of the Senate would be 
called upon to vote on a program when they don't even know what it is. 
The House leadership has pointed out that most of the Members of the 
House of Representatives have not been briefed.
  In an exchange with the Senator from Missouri today, I raised the 
fundamental constitutional point that Members' constitutional 
responsibilities cannot be delegated. You can't delegate them to a 
minority of the Senate, but that is what we are being asked to do. It 
is a pig in a poke. The old expression describes it very well. We don't 
even know what the program is, and we are being asked to ratify it.
  The issue was put to the Senator from Missouri, the chief defender of 
this bill, of any precedent where you have a case pending before Judge 
Walker, an extended opinion in July of 2006 on appeal to the Court of 
Appeals for the Ninth Circuit. If this act is passed, it will be 
unceremoniously jerked out from under the court. I asked him if there 
is any case in history, and I would repeat that challenge to the 
distinguished chairman of the committee.
  What we have left is judicial review. Without judicial review, there 
is no way to effectuate the constitutional doctrine of separation of 
powers, which is so fundamental in our society. Even when the 
proponents of the bill talk about money and business reputation--no one 
is challenging the good citizenship of the telephone companies, and the 
likelihood of monetary damages is extremely remote. But if the 
Government were to be substituted as the party defendant, that is a 
matter of dollars and cents which hardly comports to the fundamental 
issues which are involved in civil liberties.
  It is understandable that Congress continues to support law 
enforcement powers because of the continuing terrorist threat. No one 
wants to be blamed for another 9/11. My own briefings on the telephone 
companies' cooperation with the Government have convinced me of the 
program's value so that I voted for it, even though my amendment to 
substitute the Government for the telephone companies was defeated in 
the Senate's February vote. Similarly, I am prepared to support it 
again as a last resort, even if it cannot be improved by providing for 
judicial review, the pending amendment. However, since Congress has 
been so ineffective in providing a check and balance, I will fight 
hard--and I am fighting hard--to secure passage of this amendment to 
keep the courts open. It is our last refuge, our last big stand when 
the stakes are high, and they invariably are. When Congress addresses 
civil liberties and national security, Members frequently must choose 
between the issues of two imperfect options. Unfortunately, we too 
often back ourselves into these corners by deferring legislation until 
there is a looming deadline. Perhaps that is why so many of my 
colleagues have resigned themselves to accepting the current bill 
without seeking to improve it further.

  Although I am prepared to stomach this bill if I must, I am not yet 
ready to concede that the debate is over. Contrary to the conventional 
wisdom, I do not believe it is too late to make this bill better. 
Perhaps the Fourth of July holiday will inspire the Senate to exercise 
its independence from the executive branch, now that we are back in 
Washington.
  How much time do I have remaining, Madam President?
  The PRESIDING OFFICER (Mrs. McCaskill). There are 32 minutes 
remaining.
  Mr. SPECTER. I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Who yields time to the Senator from Rhode Island?
  Mr. ROCKEFELLER. I yield as much time as the Senator requires.
  Mr. WHITEHOUSE. Madam President, I appreciate very much the courtesy 
of my chairman in allowing me some time. I should not take more than 10 
minutes.
  Once more we find ourselves debating President Bush's warrantless 
wiretapping program, a self-inflicted wound that this administration 
has visited upon our Government.
  The way this Senator sees it at least, the Bush administration broke 
faith with the American people with its warrantless surveillance 
program, and now we in Congress are meant to clean up the 
administration's mess. Unfortunately, we are doing so with a 
legislative fix that in one critical area--immunity for the phone 
companies--misapplies the substantial evidence standard, trespasses 
constitutional boundaries, and breaks dangerous new ground in American 
law.
  We would not be in this position if the Bush administration had 
sought and received a court order in the first place, as it easily 
could have. There would be no debate over granting immunity since a 
company following a court order is protected. Or the Bush 
administration could have used FISA procedures to seek and receive 
lawful assistance from telecommunications companies. But the 
administration chose to go outside the law. I suspect the 
administration wanted to prove a point about the President's article II 
authority, so it deliberately avoided these well-established 
mechanisms. If so, the Bush administration deliberately walked these 
telecommunications companies into this problem and this litigation to 
vindicate ideological ambitions. But the problem is now before us.
  I have worked diligently and across the aisle to try to develop 
thoughtful solutions to the problem. In February, with the 
distinguished Senator from Pennsylvania, Senator Arlen Specter, the 
learned ranking member of the Judiciary Committee, I offered a 
bipartisan amendment that would have substituted the U.S. Government 
for the telecommunications companies if it was determined they acted in 
good faith and with the reasonable belief that compliance was lawful.
  Similarly, I supported an amendment offered by Senators Dianne 
Feinstein and Bill Nelson, drawn from the Specter-Whitehouse amendment, 
that offered immunity to those companies that acted, again, in good 
faith and with the reasonable belief that compliance was lawful.
  Good faith is the proper standard here. It is the standard repeatedly 
referenced by respected Members in this

[[Page S6409]]

Chamber who have asserted that any telecommunications company that 
assisted the Government acted in good faith.
  My friend, Senator Martinez, said:

       The fact is that these companies acted in good faith, and 
     they acted in good faith when they were called upon to assist 
     our intelligence professionals.

  My friend on the Judiciary Committee, Senator Kyl, noted:

       [t]he general rule that private citizens acting in good 
     faith to assist law enforcement are immune from suit.

  Senator Chambliss, my colleague on the Intelligence Committee, argued 
that America's telecommunications carriers ``should not be subjected to 
costly legal battles and potentially frivolous cases . . . merely for 
their good faith-assistance to the Government.''
  Senator Allard said that ``the U.S. Government owes these patriotic 
companies and their executives protections based on the good-faith 
effort they made in working with our intelligence community.''
  Senator Bond, vice chairman of the Intelligence Committee, noted that 
``the intelligence community advised us . . . that these companies 
acted in good faith, and we in the committee agreed with them.''
  We seem to have agreement amongst Members in this body that good 
faith is the proper standard. So we should let a court, which has 
available to it the procedural mechanisms necessary to get to the 
bottom of this in a confidential manner, make the determination, the 
fundamental determination: Did these companies, if they received 
Government requests, act in good faith? We may in this body assume it 
to be true, but it is not our role as Members of Congress to decide on 
the good faith of an individual litigant in a matter that is before a 
court.
  Many Senators have not even been read into the classified materials 
that would allow us to reach an informed conclusion about good faith. 
We as a body are incapable of making an informed conclusion because as 
a body, we have not had access to the necessary materials. So we should 
provide a fair mechanism for a finding of good faith by a proper 
judicial body with the proper provisions for confidentiality.
  This simple determination can be made with limited proceedings based 
largely on the record of any documents provided to the companies. We 
ask so little--a proper hearing, applying a proper standard. 
Unfortunately, the Bush administration opposed this option, and I have 
not had the chance to offer this amendment. For all its talk, the Bush 
administration was evidently and tellingly not confident that a good-
faith threshold could be met.

  So instead of requiring a finding of good faith, the bill states that 
immunity will be granted if the Attorney General's certification is 
``supported by substantial evidence.'' It is worth drilling down to 
some lawyering for a moment to reflect on what ``substantial evidence'' 
means in this context.
  The first point is that ``substantial evidence'' standard is 
essentially a meaningless standard, given the minimal showing necessary 
to be granted immunity. The elements as to which substantial evidence 
must exist are these: The intelligence activity was ``authorized by the 
President''; ``designed to detect or prevent a terrorist attack''; and 
``the subject of a written request or directive . . . indicating that 
the activity was (I) authorized by the President; and (ii) determined 
to be lawful.''
  That is it. That is achieved by simply putting into evidence the 
piece of paper containing the Attorney General's certification.
  But the substantial evidence standard implies more than that, and it 
is out of place here. This standard is typically applied in what is 
called a ``sufficiency challenge''--a judicial inquiry into whether 
there is substantial evidence to support a jury verdict. I cannot tell 
you how many sufficiency challenges I have withstood as an attorney 
general and U.S. attorney. It is standard fare in criminal cases.
  The substantial evidence standard is also frequently used for 
judicial review of an administrative agency's adjudication or 
rulemaking.
  So the substantial evidence standard is used to review the results of 
adversarial proceedings where the parties had a chance to make their 
case and build their record, and the court then reviews to determine 
whether there is substantial evidence to support the agency's or jury's 
determination.
  The substantial evidence standard is a standard used to weigh the 
result of an adversarial process. Not so here. Here the court will 
apply the substantial evidence standard to an Attorney General's 
unilateral certification. That is bad lawyering. That is discouraging, 
when it would have been so easy to get this right.
  Let me close with a few words about the constitutionality of title 
II. It is a core principle of our system of separated powers that no 
branch of Government may exercise powers allocated to another branch. 
The United States Supreme Court has said that the Framers of the 
Federal Constitution felt in drafting our Constitution ``the sense of a 
sharp necessity to separate the legislative from the judicial power.'' 
This sense of sharp necessity, the Court said, was ``prompted by the 
crescendo''--the words the Court used--``the crescendo of legislative 
interference with private judgment of the courts.''
  If you wish to see a case of legislative interference with private 
judgment of the courts, look no further than what we are doing today.
  Plaintiffs in the telecom litigation have brought causes of action 
alleging that their core constitutional rights were violated. By 
providing immunity, Congress is telling the judicial branch: You cannot 
hear an entire category of constitutional claims. Congress is intruding 
upon a core function of the judicial power--the resolution of 
constitutional disputes.
  The U.S. Supreme Court has warned on more than one occasion, most 
recently in the 1988 case of Webster v. Doe, that ``a serious 
constitutional question would arise if a federal statute were construed 
to deny any judicial forum for a colorable constitutional claim.''
  This statute has as its very purpose to deny a judicial forum to 
these colorable constitutional claims.
  I further note that Congress stepping in to pick winners and losers 
in ongoing litigation on constitutional rights not only raises 
separation of powers concerns but it veers near running afoul of the 
due process and takings clauses. Article II of this bill is the most 
extreme measure Congress, as best as I can find, has ever taken to 
interfere in ongoing litigation. Congress usually provides at least a 
figleaf of an alternative remedy when it takes away the judicial one. 
For example, in the National Childhood Vaccine Injury Act, Congress put 
a stop to Federal court actions but provided an alternative path for 
claims to be heard. The Public Readiness and Emergency Preparedness Act 
eliminated liability for people who take certain countermeasures during 
or after a pandemic outbreak. But a special fund for victims was 
established by Congress.
  Today's effort is a naked intrusion into ongoing litigation. Where 
will that stop? Will Congress be able to rove at will through 
litigation anywhere in the judicial branch, picking winners and losers 
as we like? We don't just trespass on the separation of powers; we 
trespass onto dangerous ground.
  If I were a litigant, I would challenge the constitutionality of the 
immunity provisions of this statute, and I would expect a good chance 
of winning.

  I spoke before the Independence Day recess about article I of this 
bill, how proud I am of the work that went into it and the exemplary 
results we have achieved. Chairman Rockefeller, in particular, but many 
others as well, deserves commendation, first for resisting the Bush 
administration's unseemly efforts to create a legislative stampede and, 
second, for thoughtfully crafting an improved and modernized FISA Act 
that contains many new important protections for Americans. I will 
incorporate my reference of my previous remarks on that subject, but 
suffice it to say as an attorney general and a U.S. attorney who has 
run wiretap vehicles, article I is a fine piece of legislation which 
makes it all the more disappointing that the Bush administration will 
not tolerate an amendment to article II that allows for a proper 
hearing before the proper court set to the proper standard. It would be 
so easy to get article II right. So close and yet so far.

[[Page S6410]]

  I close by reiterating my deep anger that the Bush administration 
unnecessarily created this mess in the first place, my frustration with 
the solution that Congress has established to the immunity question, 
and my hope that our great judicial branch will vindicate the error we 
in the legislative branch make today.
  Mr. SPECTER. Madam President, I had hoped to ask a couple questions 
of the distinguished Senator from Rhode Island. I consulted with the 
chairman, who wants to be recognized next. It would be my request, if I 
may have Senator Whitehouse's attention, that he stay on the floor to 
engage in a discussion, a colloquy with me when the chairman has 
concluded.
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. ROCKEFELLER. Madam President, Senator Specter has offered an 
amendment altering the liability protections of title II. His amendment 
would require the district court to assess the constitutionality of the 
President's warrantless wiretapping program before it could dismiss 
cases against telecommunications companies that met statutory 
requirements for liability protection.
  Although I appreciate the Senator's desire to ask the court to 
address the constitutionality of the President's program once and for 
all, he has picked the wrong mechanism to ask the court to answer his 
question.
  First, Senator Specter's amendment would completely undermine, as I 
said before, the delicate compromise in front of us today. People say: 
Well, we are freshly back in town, newly minted, widely open. I am 
sorry, this was a bill which just got through on a thread, and it will 
probably get close to 70 votes, a compromise already accepted by the 
House with 70 percent of their votes, and I think that balances the 
protection of liberties and also does something I have stated I think 
is rather important; that is, it allows the collection of intelligence 
to continue in order to protect the United States of America.

  Senator Specter's amendment also would require the court to consider 
a difficult constitutional question that otherwise would not be at 
issue in the cases.
  Title II does not cover cases against Government actors. This 
exclusion was intentional. Cases against the Government for any 
unlawful or unconstitutional actions Government actors may have 
undertaken should be allowed to proceed. Arguments over the 
constitutionality of the President's actions can and should be 
litigated in those proceedings.
  The amendment, however, injects this complicated constitutional 
question about the interplay of the fourth amendment and separation of 
powers into cases requesting civil damages from private companies. The 
amendment does not require that there be a relationship between the 
companies and this constitutional question. It does not ask whether the 
companies were aware of the scope of the President's program, nor does 
it ask whether the companies' actions were done in good faith or even 
whether they were legal. Indeed, if the court finds that the 
President's program violated the Constitution, the cases against the 
company will not be dismissed even if that company had no involvement 
in the unconstitutional components of the President's program.
  Madam President, this is simply unfair. A company should not be 
subjected to liability solely because the Government acted 
unconstitutionally. A company should not be subjected to liability 
solely because the Government acted unconstitutionally. Any 
accountability and liability should be based on actions of the company, 
which is what title II is about.
  Imposing this barrier to liability protection is also inconsistent 
with our expectation about the role companies are expected to play when 
they receive Government requests for information. Our existing 
statutory approach is based on the idea that the Government requires 
prompt cooperation from the telecommunications companies. Although we 
expect those companies to seek documentation from the highest levels of 
Government, they are not expected to assess the constitutionality of 
particular requests on which they lack, to say the least, complete 
information.
  The ongoing litigation is complicated by classified information 
issues that make it virtually impossible for the cases to move forward. 
But if the cases could proceed without regard to the classified 
information at issue, the court would not consider the question of 
whether the President's program was constitutional. Instead, it would 
ask whether the companies were entitled to immunity based on existing 
law.
  In addition, a case against any particular company is necessarily 
limited to the facts relevant to that company. The court would, 
therefore, not be provided a comprehensive look at the President's 
program in any of those cases.
  We should not ask the district court to assess whether the 
President's program is constitutional when the answer to that question 
is unnecessary to resolve the underlying litigation between the 
plaintiffs and the carriers, and the court does not have sufficient 
facts to address that far-reaching question of constitutionality. We 
are talking about apples and oranges, but it is apples here that we are 
concerned with.
  I urge my colleagues to oppose this amendment.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Madam President, I do wish to engage in a colloquy with 
the Senator from Rhode Island, but first, with the chairman having just 
completed, I would like to respond to some of his contentions and 
engage in a question or two with the chairman.
  When the Senator from West Virginia argues that my amendment would 
undermine the delicate compromise which the Intelligence Committees 
have reached, that is what the full Senate is supposed to do. The 
committees deliberate, the House and the Senate come to a conference 
report, they bring the matter to the Senate, and then it is up to the 
full body to make a determination. So there is nothing unusual about 
disagreeing with the compromise, however delicate.
  The chairman argues that it would require the courts to consider 
difficult constitutional issues. That is exactly what the courts are 
supposed to do. The full impact of Chief Judge Vaughn Walker's decision 
and how far-reaching it goes has not been felt, understood, or analyzed 
in the course of only 6 days--an opinion which runs more than 50 pages. 
We are dealing with court-stripping in the middle of litigation that 
has been going on for years. Judge Walker's opinion concerning the 
telecom companies was in July 2006, with the telephone companies now on 
appeal.
  It really goes back to the fundamental principle of Marbury v. 
Madison, when Chief Justice Marshall made the determination that it is 
up to the courts to decide what the Constitution means, and we would be 
undercutting that judicial process in midstream.
  Earlier, I posed a question to the Senator from Missouri, which if 
the chairman wishes to answer would be fine. I know and I admire what 
Senator Rockefeller has done. I have worked with him since he was 
elected in 1984, and we worked together on the Veterans' Committee and 
on intelligence matters and on many major matters. When the history is 
written, there will be a famous handwritten letter disclosed by Senator 
Rockefeller to the administration about how deeply he feels and how 
deeply he cares about these matters. But I questioned the Senator from 
Missouri, who is a member of the bar and quite a scholar on 
constitutional law, if there had been any case known to him picked up 
in midstream after years of work in the district court and pending on 
appeal. It really goes right to the heart of Marbury vs. Madison.

  You have Chief Judge Walker having flatly decided that the terrorist 
surveillance program is unconstitutional, and you have Chief Judge 
Walker leaving aside the issues of standing but saying:

       Plaintiff amici hint at the proper showing when they refer 
     to ``independent evidence disclosing that plaintiffs have 
     been surveilled'' and a ``rich lode of disclosure to support 
     their claims.''

  Going to the standing issue. Although not decided, why not let the 
courts finish it? You have these decisions. Why not keep the current 
program in effect and not interrupt the courts and have the judicial 
decision?

[[Page S6411]]

  So when the chairman raises the point that it would require the 
courts to consider difficult constitutional questions, I agree with 
him, but that is what the Federal courts are supposed to do, and it 
really is untoward for the Congress to step into the middle of it. I 
know of no case like it. And here we are being asked to strip the court 
of jurisdiction when they are in midstream, where they may well find 
some important facts to some important matters in the course of the 
judicial decisions which would influence Congress.
  We have the amendment offered by the distinguished Senator from New 
Mexico, Mr. Bingaman, which would call upon the inspector general to 
find out what the facts are on immunity since, as I say, we are being 
asked to pass on this when we don't know the full import. And I support 
the Bingaman amendment. I am an original cosponsor of it. Well, 
similarly, what Chief Judge Walker may find here may be very important.
  But let me raise the first of two questions with the chairman.
  Mr. ROCKEFELLER. May I respond to the Senator's observation?
  Mr. SPECTER. Certainly. I will yield.
  Mr. ROCKEFELLER. I would say to my distinguished friend from 
Pennsylvania that Judge Walker's case is not, under any circumstance, 
going to be stopped by whatever happens here. It will not happen, and 
it will, therefore, continue. The bill only addresses cases against 
carriers, is the point I was trying to make. Judge Walker--his case is 
a case against the Government. This bill is not against the Government. 
It is against what happens to the carriers, or in this particular case 
whether they get liability. The Government is not the point. The 
carriers are the point. The case continues, and we have not intervened 
in a malicious or malevolent way.
  Mr. SPECTER. Well, Madam President, by way of reply, I understand 
that this provision only concerns the telephone companies, and I 
understand the chairman's argument about good faith. But good faith is 
not determinative in and of itself. If the conduct violates the 
Constitution, there is a constitutional violation no matter how good 
the faith may be. It would be a good reason to indemnify, to 
substitute, to hold them harmless, but not to exonerate them for a 
constitutional violation.
  The chairman says companies should not be held liable if the 
Government acted unconstitutionally. That is not correct as a matter of 
law. Where the telephone companies are aiders and abetters and 
accessories before and after the fact and really act jointly with the 
Government, they can be liable.
  Mr. ROCKEFELLER. That is quite an assumption to make, I say to the 
Senator.
  Mr. SPECTER. Let me finish the reply, and I will be glad to yield 
again.
  When the argument is made that only the case against the telephone 
companies is involved, that is not quite accurate. It is being 
dismissed. It is no coincidence that Chief Judge Walker handed this 
opinion down a few days--6 days--before it was publicly known that the 
Senate would be taking up this issue. And he went out of his way to 
raise the issue about standing and the rich lode of disclosure. So if 
this act is passed and retroactive immunity is granted, it will remove 
the telephone companies, true, and there will be another case standing, 
but there will be no judicial determination of the constitutionality of 
what the telephone companies did.
  Chief Judge Walker has those cases against the telephone companies 
too, and he has pretty well given a roadmap as to what he is going to 
do because he said the terrorist surveillance program is 
unconstitutional and the Foreign Intelligence Surveillance Act covers 
pen registers and trap-and-trace devices, covering whatever it is the 
telephone companies did here; although, again, we do not know for sure. 
So where he said the terrorist surveillance program is unconstitutional 
and the statute covers pen registers and trap-and-trace devices, to 
remove the case from him at this stage will eliminate a determination 
of the constitutionality of whatever it is the telephone companies did 
and really flies in the face of the historic role of the courts since 
1803 in Marbury vs. Madison.
  Now I am glad to yield to the chairman.
  Mr. ROCKEFELLER. I will just reply very briefly with three points, 
and when you are finished, I would like to yield to--or hopefully the 
vice chairman will yield to the senior Senator from Virginia.
  The one point is that this is not a bill we are addressing here about 
the Government. We are doing it about carriers, and particularly in 
title II.
  Secondly, I am interested in what the ranking member of the Judiciary 
Committee feels might be the result if we went the Judge Walker route 
regardless of its inapplicability, in my view, to this situation when 
it went through the appeal process.
  I am not a lawyer. Right now I wish I were, but I am not. Usually, I 
am glad I am not. But it seems to me that you would be looking at a 
period of appeals going right on up to the Supreme Court that might 
last 3 or 4 years. I am not experienced in how long these things take. 
But this is a matter that might take that kind of time and that causes 
me to raise again the question I have raised several times with the 
vice chairman this afternoon: The only thing that we appear to be 
discussing in the Senate is rights and liberties. I think I have yet to 
hear almost any word about the security of the Nation and what the 
purpose of the Intelligence Committee is, what the purpose of 
intelligence is, what the purpose of collection is, how the collection 
is done, who does it, how important is it to how we gauge our situation 
in the world, where we need to deploy, where we need to be watching.
  This is extraordinarily serious stuff but not a word does it get in 
the Senate, which is two-thirds made up of lawyers--and I honor every 
one of them. But we are picking at ``would the Constitution allow'' 
this or that. I am looking at something which to me is very clear. This 
is all about carriers, this particular bill. My name isn't Judge 
Walker. I haven't issued the opinion. If my name were Judge Walker, and 
it was an opinion, it would be about constitutionality. We are not 
addressing that in this bill.
  The Senator earlier said: Look, we are here. Why not duke it out and 
get all the substitutes and arrangements and compromises back on the 
table again. I know that does work in some fashion. But I think the 
vice chairman and I and our staffs could say that what was achieved 
over the last month or so could probably never be achieved again, which 
is to get the House to agree. John Conyers is chairman of the Judiciary 
Committee, who was gracious and polite but unfriendly to this bill. 
There is the question of the Blue Dogs. You can say always these are 
questions--on farm bills, on steel bills, on automobile bills, on 
whatever bills.
  This is a particular type of emergency based upon the fact that we 
are still, under my definition, under attack. Not that we have not been 
attacked, but we have been able to interdict, because of intelligence, 
some of those attacks--or all of those attacks. This is a very 
different matter than running an ordinary piece of legislation through 
the Senate.
  If 20 or whatever Judiciary plus Intelligence is in the Senate--35, 
whatever that is. No, because there are some cross-memberships. Let's 
say 20. Understand, the others have not been read in. I have said they 
could have found out the information that has been available for a full 
year. Any Senator has the ability to go and read intelligence, if they 
wish to do that. It sort of implies that the Senate, as a matter of 
habit, comes to full agreement and full understanding that 80 out of 
100, as opposed to 20 or 25 out of a 100, fully understand what is at 
stake in the amendments to a bill and then to the final passage of a 
bill.
  I think the Senator knows that is not the way it works. I think the 
Senator, although he says we should not delegate, knows we delegate all 
the time.
  Mr. SPECTER. Will the Senator yield?
  Mr. ROCKEFELLER. I will. That takes various forms. Sometimes it will 
be that I am very much on the edge of how I am going to vote on 
something, and I go to a particular Senator--it might be the Senator 
from Pennsylvania--and say: I have this feeling and I have that 
feeling, I am right on the cusp of which way I should vote.
  Mr. SPECTER. Will the Senator yield?

[[Page S6412]]

  Mr. ROCKEFELLER. I will.
  Mr. SPECTER. For the first time, I take sharp distinction with the 
chairman when he says there has been no recognition about the 
importance of intelligence or the workings of the Intelligence 
Committee or of special expertise.
  Mr. ROCKEFELLER. I wasn't talking about special expertise--I was 
talking about: We have not talked about the threat.
  Mr. SPECTER. If I may continue?
  Mr. ROCKEFELLER. Yes.
  Mr. SPECTER. If I may continue, no recognition of the work of the 
Intelligence Committee--let me limit it to that--which was certainly 
said.
  I take sharp exception because I served 8 years on the committee and 
served as chairman for 2 years. I think I know what the Intelligence 
Committee does and what its work is.
  I take sharp exception to the suggestion that there is not a full 
awareness on the part of this Senator as to the terrorism threat. I 
made that explicit. When I said that if I have to take this bill, I 
will, because of the threat of terrorism, just as I voted for the bill 
earlier when my substitution amendment was not adopted.
  But when the chairman says that this has gone through a laborious 
process with the House and is a delicate compromise--that happens all 
the time. It happens all the time. You are right in the middle of it, 
you have seen it, and I know, too, because I have been there. I have 
been here 28 years, and I know exactly what goes on.
  When you say this ought to be accepted, I disagree. This bill can be 
made better.
  When you say you deal with the intelligence function and not the 
constitutional function--again, I sharply disagree. We have to 
legislate on what is constitutional. We may have a different opinion 
than Chief Judge Walker, but we cannot ignore the question of 
constitutionality. If it takes 3 or 4 more years, we are talking about 
civil rights and constitutional rights.
  Mr. ROCKEFELLER. My point.
  Mr. SPECTER. This program has been continued on a temporary basis. It 
has been extended. The intelligence chiefs have been satisfied with 
that.
  I don't like to extend it. I would like to resolve it now. But if it 
takes the courts longer--the Supreme Court ducked the Detroit case. If 
it takes them years to decide this, that is the price of constitutional 
rights.
  If you take a look at the history of this country, if you take just 
one case, Plessy v. Ferguson, in 1896, I believe, to Brown v. Board in 
1954, to eliminate separate but equal, you come to a constitutional 
doctrine.
  I am prepared to take my time, if I can find the requisite number of 
votes in this body.
  Madam President, how much time remains on each side?
  The PRESIDING OFFICER. The Senator from Pennsylvania has 20 minutes 
remaining. The Senator from West Virginia has 34 minutes remaining.
  Mr. SPECTER. Madam President, this is as good a time as any to move 
forward with a question or two, which I would like to have in a 
colloquy with Senator Whitehouse. This issue has been raised before, 
but I would like your views on it, Senator Whitehouse. You have a 
distinguished record as an attorney, U.S. attorney, attorney general, 
serving with distinction on the Judiciary Committee for the past year 
and a half.
  I raised the issue earlier about the constitutional authority of a 
Member to delegate his authority, recognizing that there are many 
matters where we accept committee reports, but at least Senators have 
access to material. When I was chairman of the Judiciary Committee--the 
tradition is to tell the chairman and the ranking member about a 
program such as the terrorist surveillance program. I was blindsided by 
it, in mid-December of 2005. We were on a Friday, the final day of the 
argument on the PATRIOT Act. We were about to go to final passage, when 
the New York Times published its paper. That morning Senators said they 
had been prepared to vote for it but no longer were. As chairman of the 
committee, I could not be briefed on the program.

  Since that time, there has been a change of heart to an extent but, 
as stated on the floor of the Senate earlier, some 70 Members of this 
body will be voting on retroactive immunity for a program they do not 
know or understand. The majority of the House, according to House 
leadership, has not been briefed on the program.
  Do you have any doubt that we may not constitutionally delegate our 
authorities to vote?
  Mr. WHITEHOUSE. Does the distinguished Senator yield me time to 
reply?
  Mr. SPECTER. I would like a reply as to whether it is your view, as a 
constitutional matter, Members of Congress can delegate their authority 
to vote.
  Mr. ROCKEFELLER. If the Senator from Rhode Island would give me 30 
seconds, I would be grateful.
  Mr. WHITEHOUSE. I have no objection, of course.
  Mr. ROCKEFELLER. The fact of the matter, I say to the senior Senator 
from Pennsylvania, is that there are 37 Members of the Senate who have 
been briefed on this matter--not 20 but 37. We decided to do a little 
bit of homework: Fifteen on the Senate Intelligence Committee, 19 on 
the Senate Judiciary Committee, that is 34--minus 4 crossover members; 
2 leadership on each side, Senator Roberts and the Appropriations 
Committee chairman and, I suspect, vice chairman, plus Senator Levin 
and Senator McCain, who are ex officio.
  That is not bad.
  Mr. SPECTER. Madam President, the statistics I have are, out of the 
House there have been 21 House Intelligence Committee members briefed 
and as many as 40 Judiciary Committee members; in the Senate, 15 on the 
Intelligence Committee and 19 on the Judiciary Committee for a 
bicameral total of 95, which is 17.75 percent of the entire Congress. 
But if you take the chairman's figures, you still have a majority of 
Members of Congress who have not been briefed, who are, in effect, 
delegating their authority to vote on a matter where they don't know 
what they are granting immunity for.
  But I refer, again, to the Senator from Rhode Island, if he cares to 
answer the question.
  Mr. WHITEHOUSE. Of course, I did say in my remarks that I believed 
that this body is incapable of making a determination as to the good 
faith of the telecommunications companies for the reason the 
distinguished Senator from Pennsylvania has indicated, to wit, very few 
of us, less than a majority and certainly not all of us, have been 
briefed as to what the actual facts are, what was provided, if 
anything, to the telecommunications companies that would support our 
finding of good faith.
  As I said in my remarks, I think essentially every Senator who has 
spoken to this question has implicitly referred to good faith, directly 
referred to good faith as the implicit standard.
  I view it, although I defer to the far greater experience and 
learning of my colleague from Pennsylvania--I see it less as a 
constitutional issue of deference than one of legislative prudence. I 
think it is not prudent for us as a Senate to take it upon ourselves to 
make the good-faith determination. I think that is a determination that 
should be made by a judicial tribunal, it should be made with 
appropriate provision for confidentiality, and it should be made by the 
judicial agency that customarily makes good-faith determinations.
  It isn't our legislative role to do that. So I agree with the concern 
of the distinguished Senator about this. I see it less as a 
constitutional limitation on my ability as a Senator to cast my vote, 
which I think is untrammeled. I can cast my vote about things I know 
nothing about, have not studied on, am totally uninformed, if I wish. 
It would be bad and imprudent for me to do it, but I do not believe the 
Constitution prevents me from doing it, so I see it more as a matter of 
legislative prudence.
  Mr. SPECTER. Madam President, one final question. Does the Senator 
from Rhode Island know of any case which has been pending in the 
Federal courts for at least 3 years, as the telephone company case has, 
with the opinion by Chief Justice Walker in July of 2006 and now 
pending on appeal in the Ninth Circuit, where the Congress stepped in 
to take away the jurisdiction by a grant of immunity as proposed in 
this legislation?

[[Page S6413]]

  Mr. WHITEHOUSE. I am aware of none. I cannot guarantee that our 
research has been complete and exhaustive. But, certainly, the recent 
efforts that Congress has done where an immunity from liability has 
been an issue, either responding to pandemics or responding to 
vaccines, what Congress has done there is to create an alternative 
remedy.
  I am aware of no precedent for the Congress of the United States 
stepping into ongoing litigation, choosing a winner and a loser, 
allowing no alternative remedy. And I believe the constitutional 
problem with doing that as a separation of powers matter is 
particularly acute where the cause of action that is being litigated in 
the judicial branch is a constitutional claim. And Judge Vaughan is 
listening to constitutional claims. That is the subject matter of the 
litigation.
  So I believe it will be determined by a court that ultimately this 
section of the legislation is unconstitutional, in violation of the 
separation of powers, because we may not, as a Congress, take away the 
access of the people of this country to constitutional determinations 
heard by the courts of this country.
  Mr. SPECTER. Judge Walker is certainly listening to constitutional 
claims. He may even be listening to the Senate. Somebody may be 
listening on C-SPAN 2.
  I thank the distinguished Senator from Rhode Island for his candid 
answers.
  How much time is remaining?
  The PRESIDING OFFICER (Mr. Lautenberg.) The Senator has 13 and a half 
minutes remaining.
  Mr. SPECTER. Mr. President, I reserve the remainder of my time.
  Mr. LEAHY. Mr. President, I strongly oppose a blanket grant of 
immunity. I also urge Senators to reject this ill-advised legislative 
effort to engineer a specific outcome in ongoing Federal judicial 
proceedings. No one should stand above the law in the United States.
  The administration circumvented the law by conducting warrantless 
surveillance of Americans for more than 5 years. They got caught. The 
press reported this illegal conduct in late 2005. Had the media not 
done so, this unlawful surveillance may still be going on today.
  When the public found out that the Government had been spying on the 
American people outside of FISA for years, the Government and the 
providers were sued by citizens who believed that their privacy rights 
were violated. That is why we have Federal courts--so people can 
vindicate their rights before a fair and neutral tribunal, without 
interference from the other branches of government.
  Title II of this bill is apparently designed to terminate these 
lawsuits. It seems to reduce the role of the court to a rubber stamp. 
So long as the Attorney General will certify that the Government 
requested the surveillance and indicated that it had been ``determined 
to be lawful,'' the cases are to be dismissed and everybody is off the 
hook. That is not a meaningful judicial inquiry. That doesn't give the 
plaintiffs their day in court. It is not just a heavy thumb but a whole 
hand and arm on the scales of justice, and I cannot support it.
  Here is what the report of the Select Committee on Intelligence said 
in connection with reporting its earlier version of retroactive 
immunity:

       The Committee has reviewed all of the relevant 
     correspondence. The letters were provided to electronic 
     communications service providers at regular intervals. All of 
     the letters stated that the activities had been authorized by 
     the President. All of the letters also stated that the 
     activities had been determined to be lawful by the Attorney 
     General, except for one letter that covered a period of less 
     than sixty days. That letter, which like all the others 
     stated that the activities had been authorized by the 
     President, stated that the activities had been determined to 
     be lawful by the Counsel to the President.

  So if anyone had any doubt where the criteria in the bill come from, 
there it is. Do those words seem familiar? Do the criteria carefully 
worded for inclusion in the bill now make sense?
  I expect that the American people remember the testimony before the 
Judiciary Committee of James Comey and FBI Director Mueller about the 
period of time when Attorney General Ashcroft was in the hospital, 
senior advisers at the Justice Department had advised against extending 
approval for the warrantless wiretapping program and the Counsel to the 
President, Alberto Gonzales, went to John Ashcroft's hospital room 
seeking to get Attorney General Ashcroft to override the acting 
Attorney General's concerns. Some time thereafter, the program was 
apparently adjusted in some way, but only after FBI Director Mueller 
spoke to the President and several high-ranking officers threatened to 
quit the administration. That period could account for the Select 
Committee on Intelligence's reference to a letter and period of less 
than 60 days when it was the Counsel to the President who had 
``determined'' the activities ``to be lawful.''
  Senator Specter has long said that he supported judicial review of 
the legality of the President's warrantless wiretapping program. During 
the last Congress, when he chaired the Judiciary Committee, he 
introduced a bill that would have allowed the courts to review the 
legality of the administration's warrantless surveillance program. 
Unfortunately, he later modified the bill in his discussions with the 
White House that made it unacceptable and ineffective in my view and it 
was never passed. I have always supported allowing the courts the 
opportunity to review the legality of those activities.
  I believe that independent judicial review will reject the 
administration's claims to authority from the Authorization for the Use 
of Military Force that overrides FISA. I believe that the President's 
claim to an inherent power, a Commander-in-Chief override, derived 
somewhere from the interstices or penumbra of the Constitution's 
article II will not prevail over the express provisions of FISA.
  Indeed, Chairman Rockefeller seemed to concede as much this morning 
when he asserted that nothing in his bill should be taken to mean 
``that Congress believes that the President's program was legal.'' He 
characterized the administration as having made ``very strained 
arguments to circumvent existing law in carrying out the President's 
warrantless surveillance program.'' At various points Senator 
Rockefeller alluded to the administration's argument that the 
Authorization for the Use of Military Force was some sort of statutory 
override authority and the administration's claim that the President 
has what Senator Rockefeller called ``his all-purpose powers,'' which I 
understand to be the administration's argument that inherent authority 
from article II of the Constitution creates a Commander-in-Chief 
override, and said that these are not justifications for having 
circumvented FISA.
  Consistent with Justice Jackson's now well-accepted analysis in the 
Youngstown Sheet & Tube case, when the President seeks to act in an 
area in which Congress has acted and exercised its authority, the 
President's power is at its ``lowest ebb.'' So I believe that the 
President's program of warrantless wiretapping contrary to and in 
circumvention of FISA will not be upheld based on his claim of some 
overriding article II power. I do not believe the President is above 
the law.
  What is most revealing is that the administration has worked so 
feverishly to subvert any such independent judicial review. That sends 
a strong signal that the administration has no confidence in its 
supposed legal analysis or its purported claims to legal authority. If 
it were confident, the administration would not be raising all manner 
of technical legal defenses but would work with Congress and the courts 
to allow a legal test of its contentions and the legality or illegality 
of its actions.
  This amendment now offered by Senator Specter is more limited than I 
would have liked. It says its purpose is to allow the courts to review 
the constitutionality of the assistance provided by the electronic 
communication services in connection with the program. Exactly how the 
courts get to such a review is not clear. Although I do not believe 
that this expressly allows the court to conduct the kind of 
comprehensive judicial review required to make a real determination 
about the legality of this program, and a fair decision about the merit 
of these lawsuits, it nevertheless seeks in spirit to provide judicial 
review. In the hope that it might provide an avenue to accountability 
for the illegal actions of this administration, I will support it.

[[Page S6414]]

  In so doing I should note that I do not believe that Congress can 
take away the authority of the Federal courts to consider 
unconstitutionality or illegality in the course of meaningful judicial 
review. Senator Rockefeller emphasized this morning that the parties to 
the ongoing cases are to be ensured ``their day in court'' and that 
they are ``provided the opportunity to brief the legal and 
constitutional issues before the court.'' These statements do not have 
meaning unless the legal issues and constitutional issues presented by 
these cases can be considered. The value of the Specter amendment lies 
in making the issue of constitutionality explicit.
  The PRESIDING OFFICER. The Senator from South Dakota.
  Mr. THUNE. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                                 Energy

  Mr. THUNE. Mr. President, like so many of my colleagues, I spent the 
week of the Fourth of July traveling my State of South Dakota. I met 
with members of the general public at an energy forum, met with small 
businesses, folks in the tourism industry. Everywhere I went it was the 
same story: High gas prices are crippling the American economy.
  I remember stopping in the small town of Parkston and visiting with 
someone who manages a small cafe there, and visiting with them about 
the impact that high gas prices are having on their business.
  She said: Well, it is not really the weekend travelers, the RV 
owners, the people who camp, but it is those people who are commuting 
to work every single day who now do not have the money to eat out 
nearly as often.
  Of course, Parkston is a small town. It is about 20 miles, give or 
take, from Mitchell, SD. There are a number of people who commute back 
and forth. It is those commuters who are feeling the most economic 
hardship as a result of high energy prices.
  I attended my parents' 65th wedding anniversary in my hometown of 
Murdo. In my hometown, tourism, the visitor industry, is the very 
lifeblood of that community. I grew up in that business, worked in 
restaurants, motels, that sort of thing. And I even had a forum, as 
well, with members of the tourism industry in South Dakota in Rapid 
City when I was home just to gauge the impact of high fuel prices on 
their individual businesses.
  The Rapid City mayor, who owns a campground, said: I think we are 
going to reach a tipping point where the very foundations of the travel 
industry could be shaken.
  Bill Honerkamp, president of the Black Hills, Badlands and Lakes 
Association said tourism fell about 7 percent in the region in May, and 
numbers for the rest of the summer are barely holding steady.
  Teddy Hustead, president of the popular South Dakota tourist stop 
Wall Drug, said tourist stops were down 1 percent in June. But he went 
on to say that Wall Drug needs to be up 4 to 5 percent to be a healthy, 
growing, viable concern, and it is hard to grow a business when gas is 
increasing by 10, 20, and 25 percent every single year.
  Sean Casey, the vice president of another popular South Dakota 
tourist destination, Bear Country USA, noted that visitation is down 7 
percent for the year 2008. And he went on to say: Energy is pinching 
us. I always joke that we are going to a model like the space shuttle--
two visitors at $10 million each.
  Jo Casky of the Spearfish Convention and Visitors Bureau noted that 
convention is dropping because of high gas prices. One particular 
convention was booked with a prediction of 1,200 to 1,400 attendees. 
That is unlikely now because of the rising pump prices.
  Casky said: We are now at about 800. As soon as gas started getting 
to the $4 mark, we started to see reservations back off.
  High gas prices are having a dramatic impact on families, small 
businesses, the tourism industry, the airline industry, the 
agricultural industry, and virtually every sector of the American 
economy.
  I toured a UPS facility in Sioux Falls, SD. Many of my colleagues may 
have heard what they are doing in terms of dealing with the price of 
fuel. They actually now, as they diagram routes for their drivers, 
diagram routes that only allow them to make right turns so they do not 
sit in a left-turn lane and idle thereby using more energy.
  My point is that people are taking extraordinary steps to deal with 
the high cost of energy. Higher costs for companies such as UPS, 
transportation companies, get passed on to consumers in the form of 
higher prices for everything they buy. They are looking for leadership 
in Washington, DC. But instead of leadership, they have seen a decade 
of inaction, as arguably the most important issue of impacting the 
American economy has been left unattended.
  We have done nothing to affect the basic law of supply and demand. 
Some argue, and perhaps rightly so, that high energy costs are partly a 
function of the weak dollar. They would be, as I said, accurate to say 
that because oil is denominated in dollars. When it takes $1.57 to 
purchase a Euro, it is going to make anything denominated in dollars 
more expensive.
  There are those who think speculators are driving up the cost of 
energy in this country, and it is true that trading in energy 
commodities has increased dramatically over the past 30 years since the 
exchanges were created. I, for one, happen to believe we need to look 
for ways to define the degree to which speculation is impacting energy 
prices in this country and also look at what we can do to address that 
issue in a way that makes matters better and not worse.
  Trading since 2004 on the NYMEX Exchange has nearly tripled. So we 
need to make sure our farmers, our ranchers, our airlines, our trucking 
companies, have the opportunity and ability that they need to manage 
risk. That is what those markets were created for. We also need 
transparent markets where all traders are subjected to the same sets of 
rules.
  I believe we need more cops on the beat. We need to make sure the 
CFTC has the funding it needs to do its job and to enforce our laws. I 
think we can do some things, such as codifying CFTC position limits and 
transparency for foreign boards of trade. I guess my point is that 
there are a number of things we can do to address the impact that 
speculators may be having on the price of energy in this country. And, 
frankly, I think that is a role and responsibility that Congress should 
fill.
  But if you take the weak dollar, and you take speculators out of the 
equation, we still have a major problem and a major crisis in this 
country. That problem is that we have greater demand for energy than we 
have supply. We use about 86, 85 to 86 million barrels of oil every 
single day worldwide. Of that amount, the United States uses about 20 
million barrels or about 24 percent of the total. Of that amount of 20 
million barrels that the United States uses every single day, about 12 
million barrels are imported.
  In other words, 60 percent of the oil that we use every single day in 
America comes from outside the United States. We are transporting and 
shipping and transferring about a half trillion dollars every single 
year of American wealth outside of the United States to petro dictators 
who are being enriched by that American wealth and using it in ways 
that I think most of us would disagree with; in fact, in many ways to 
support terrorist organizations in places around the world.
  Now, we cannot solve our dangerous dependance upon foreign sources of 
energy absent affecting that basic law and rule of supply and demand. 
We have to find more energy in this country. We should be taking steps 
now to add supply and to reduce our demand.
  One of the things we need to continue to support and intensify, in my 
view, is our commitment toward renewable energy. I want to read 
something that Tom Friedman said in an op-ed on June 29. The op-ed was 
titled ``Anxious in America.''
  But he said:

       My fellow Americans. We are a country in debt and in 
     decline, not terminal, not irreversible, but in decline. Our 
     political system seems incapable of producing long-range 
     answers to big problems or big opportunities. We are the ones 
     who need a better functioning democracy. More than the Iraqis 
     and Afghans, we are the ones in need of nationbuilding as it 
     is our political system that is not working.

  He goes on to say:


[[Page S6415]]


       I continue to be appalled at the gap between what is 
     clearly going to be the next great global industry, renewable 
     energy and clean power, and the inability of Congress and the 
     administration to put in place the bold policies we need to 
     ensure that America leads that industry.

  Well, one of the things that we did, and it was a moonshot in terms 
of renewable energy and making an investment in our future, is the 
renewable fuels standard. Last December there were 80 Senators who 
voted to increase the renewable fuels standard to 36 billion gallons by 
the year 2022. That was a policy that was put in place less than a year 
ago, and yet already we have people, Members of the Senate, politicians 
in Washington, who are talking about rolling that back. That could be 
the absolute worst thing that we do.

  We do not need less energy in this country, we need more energy in 
this country. We need more renewable fuels. The 8 or 9 billion gallons 
of renewable energy that we produce in this country every single year 
today is taking pressure off gasoline and oil prices by, according to a 
study conducted by Merrill-Lynch, up to about 15 percent.
  In the current market economy that is about 50 to 60 cents per gallon 
of gasoline. Someone has said it is ethanol and corn prices that are 
driving up the cost of everything we buy in this country, and 
particularly with regard to this whole food-versus-fuel debate. But the 
American Truckers Association recently did a study which found that in 
late 2004 it cost about 16 cents per box of cereal to transport that 
box of cereal to the marketplace. Today it costs about 36 cents per box 
of cereal. So we have seen a 20-cent increase in the transportation 
cost for a box of cereal. Couple that with the fact that the amount of 
corn in a box of Corn Flakes is about 10 cents per box, and you can see 
what is driving up the cost of everything in our economy. It is the 
increasing price per barrel of oil, increasing price of energy in this 
country.
  We need to speed cellulosic ethanol to the marketplace. We need to 
increase the blends of ethanol. We need not fewer gallons of renewable 
energy in this country, we need more gallons of renewable energy. I 
hope those in Washington, in the administration and Congress, who are 
talking about considering rolling back the renewable fuels standard 
would reconsider that and think about the importance of renewable 
energy and what it can do for America's future and our dangerous 
dependence on foreign sources of energy.
  The second thing, of course, we have to do is we have to increase our 
domestic supply. That means the Outer Continental Shelf. That means the 
oil shale in places in the Western States. It means ANWR. It means coal 
to liquid. It means nuclear. It means wind. We have all of these 
domestic energy supplies in this country, and we have heard people say 
it would take 5 to 100 years to develop some of these energy supplies. 
Well, that is what they were saying 5 or 10 years ago about many of 
these same things.
  We did not do it then, and now we are paying a price for it. Is it 
not our job as policymakers to be looking down the road to future 
generations to make decisions that are in the best interests of 
America's future. There is not any issue, I would argue, that is more 
important to America's future than energy security because it ties 
directly into and correlates directly into our national security.
  We have to have more domestic supply, and the last thing we have to 
do is we have to use less. We have to find more sources of energy, more 
domestic sources of energy, so we do not continue to get 60 percent of 
that energy from outside the United States. And we have to figure out 
ways in this country to use less energy.
  I have a bill that I have introduced. I am on a bill that Senator 
McConnell, the Republican leader, has introduced which has 43 
cosponsors. I have introduced a bill of my own to deal with this energy 
situation. I am working with a group of both Republicans and Democrats. 
We need to put the politics aside, the partisanship aside, and work on 
getting a solution for the American people.
  In the bill that I introduced, one of the things I include is a 
provision that requires that of additional Government lands that are 
leased for energy production--whether they be offshore, whether they be 
oil shale in the Western States, whether it be ANWR, the lease revenue, 
half of the lease revenue that comes into the Federal Government be 
plowed back into research and development and new technologies, in 
renewables, alternative sources of energy, things like plug-in hybrid 
cars, cellulosic advanced biofuels, hydrogen fuel cells.
  Those are the types of things we also need to be investing in to make 
sure that not only are we increasing the supply of energy in this 
country, the amount that we have, but also that we are using less.
  We can do this. We can put aside the finger-pointing and the blame 
game and do something for our energy future. I believe when people come 
together, and when they decide that this is an important priority for 
America's future, we can get this done.
  But we can't do it by saying no to every proposal put on the table. 
My colleagues on the other side--many of them; not all, but many--have 
said no to offshore production, no to oil shale, no to nuclear, no to 
coal to liquid, no to additional refinery capacity. We can't solve this 
problem by saying no. We have to start saying yes to more domestic 
production and to more measures that would allow us to conserve and 
reduce the amount of energy we use. We have to get serious about this 
issue. It starts with addressing that fundamental law and rule of 
supply and demand. We can do all these other things, the dollar can 
start firming up, we can address the role of speculation in the 
marketplace. But at the end of the day, we don't solve the problem 
unless we get serious about increasing our domestic supply of energy 
and reducing and using less energy. When we do that, we will see the 
price per barrel start to come down, the price per gallon of gasoline 
start to come down, and we will see the American economy, in places 
such as South Dakota, where tourism and agriculture are so critically 
important, start to rebound and start to draw more visitors to the 
tourism industry and to make sure our farmers continue to produce food 
and fiber in a way that allows them to maximize their return on 
investment and not get choked with high input costs coming from higher 
energy costs.
  I hope before we adjourn for the August recess, we will come together 
behind an energy proposal and plan that is good for America's future, 
that emphasizes renewables, more domestic supply and production, and 
addresses the important issue of conservation. But we can't do that by 
continuing to say no. I ask my colleagues on both sides to quit saying 
no and to start saying yes to America's energy independence. Say no to 
our dangerous dependence upon foreign energy but yes to making America 
energy independent and making this country more prosperous for 
America's future.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Virginia.
  Mr. WARNER. Mr. President, on behalf of the leadership and the floor 
managers, I have been asked to propound a unanimous-consent request 
that the following Senators be recognized, assuming they are here on 
the floor in time to be recognized: I will speak now for about 15 
minutes, to be followed by Senator Carper for 10 minutes. I see my 
distinguished friend, the Senator from Mississippi; if he could 
indicate how much time he would like.
  Mr. COCHRAN. About 8 minutes.
  Mr. WARNER. He is to be joined by Senator Wicker.
  Mr. COCHRAN. Yes, he is in the Chamber as well.
  Mr. WARNER. All right.
  Mr. WICKER. About 8 minutes also.
  Mr. WARNER. All right. And Senator Stabenow, I do not see her, but 
let's put her down for 10, and Senator Cornyn.
  Mr. CORNYN. I would need 15 minutes. If I can yield back some time, 
that would be great.
  Mr. WARNER. With that in mind--I do not see any other Senators 
seeking recognition--I ask it in the form of a unanimous consent.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from Virginia.
  Mr. WARNER. Mr. President, I rise, along with the distinguished 
chairman and ranking member of the Intelligence Committee on which I am 
privileged to serve. I commend my chairman and ranking member for the 
extraordinary capability with which they have handled this 
controversial issue of

[[Page S6416]]

the FISA legislation and the bipartisanship they have shown. Our 
committee voted 13 to 2 on this measure which is now before the Senate. 
Currently, we have the Bingaman and Specter amendments. I join my 
chairman and ranking member in opposing these two amendments. They seek 
in one way or another to remove or render useless one of the most 
important sections of the FISA Amendments Act which is liability 
protection for the telecommunication carriers that assisted our 
Government with the President's terrorist surveillance program or TSP. 
Without the title II liability protection, the other sections of the 
FISA Amendments Act would become irrelevant because the carriers would 
not cooperate in the authorized programs.
  This would be unfortunate, because the FISA Amendments Act is a 
critical piece of legislation for America's present and future security 
that achieves an important balance between protecting civil liberties 
and ensuring that our dedicated intelligence professionals have the 
capabilities they need to protect the Nation. The bill ensures that the 
intelligence capabilities provided by the Protect America Act, enacted 
in August 2007, remain sealed in statute.
  Reforming FISA has not been an easy process. I would like to thank 
Chairman Rockefeller and Vice Chairman Bond for the work they have done 
to garner bipartisan support for the FISA Amendments Act. It would be 
unfortunate if that work were undone by one of these amendments.
  If passed, the Specter amendment would prohibit the dismissal of the 
lawsuits against the telecommunications carriers if the President's 
Terrorist Surveillance Program were found to be unconstitutional by the 
courts. With all due respect to my colleague from Pennsylvania, I 
believe that whether the President acted within his constitutional 
authorities should be treated separately from the issue of whether the 
carriers acted in good faith.
  The extensive evidence made available to the Intelligence Committee 
shows that carriers who participated in this program relied upon our 
Government's assurances that their actions were legal and in the best 
interest of the security of America.
  Mr. President, I would like to call the Senate's attention to the 
report which accompanied the version of the FISA Amendments Act passed 
by the Senate Intelligence Committee by a vote of 13-2. Based on the 
committee's extensive examination of the President's TSP, the report 
noted that the executive branch provided written directives to the 
carriers to obtain their assistance with the program. After its review 
of all of the relevant correspondence, the committee concluded that the 
letters ``stated that the activities had been authorized by the 
President [and] had been determined to be lawful'' The committee report 
added the following:

     On the basis of the representations in the communications to 
     providers, the Committee concluded that the providers, in the 
     unique historical circumstances of the aftermath of September 
     11, 2001, had a good faith basis for responding to the 
     requests for assistance they received. Section 202 makes no 
     assessment about the legality of the President's program. It 
     simply recognizes that, in the specific historical 
     circumstances here, if the private sector relied on written 
     representations that high-level Government officials had 
     assessed the program to be legal, they acted in good faith 
     and should be entitled to protection from civil suit.

  The Senate Intelligence Committee believed, by a vote of 13-2, that 
the companies acted in good faith and that they deserve to be 
protected. I agree and I believe that the TSP was legal, essential, and 
contributed to preventing further terrorist attacks against our 
homeland.
  But, even if one were to disagree that the President acted within his 
article II powers, I cannot see the wisdom in seeking to punish the 
carriers and their shareholders for something the Government called on 
the carriers to do with the assurance that the action was legal.
  The Specter amendment would put the companies, and their millions of 
shareholders, in legal limbo, waiting while the Government litigates 
unrelated constitutional claims. Historically, the Supreme Court has 
been reluctant to adjudicate constitutional disputes between the 
political branches of our Government, suggesting that a constitutional 
question could take years to resolve, if it can be resolved. Lawsuits 
against the companies would likely continue in the interim which would: 
Have negative ramifications on our intelligence sources and methods; 
likely harm the business reputations of these companies; and cause the 
companies to reconsider their participation--or worse--cause them to 
terminate their cooperation in the future.
  I believe it would be unfair to use private companies as a substitute 
to adjudicate constitutional claims properly directed against the 
Government. My colleagues should keep in mind that individuals who 
believe that the Government violated their civil liberties can pursue 
legal action against the Government, and the FISA Amendments Act does 
nothing to limit that legal recourse. As noted by my colleague from 
West Virginia, the case that was before Judge Walker--which addresses a 
constitutional challenge against the government--can proceed.
  Bottom line, companies who participate in this program do so 
voluntarily to help America preserve its freedom and the safety--
individually and collectively--of its citizens. I have long supported 
the idea of a ``volunteer force'' for our military and I believe a 
``volunteer force'' of citizens and businesses who do their part to 
protect our great Nation from harm is equally important. I fear that if 
we are forced to draft companies into compliance when our Nation calls 
them to duty, ultimately our security will suffer. Without this 
retroactive liability provision, I believe companies will no longer 
voluntarily participate. This will result in a degradation of America's 
ability to protect its citizens.
  It is for these reasons that I urge my colleagues to oppose the 
Specter amendment and any other amendment that would change the FISA 
Amendments Act.
  I yield the floor.
  I wish to conclude by saying that as I view this situation, I liken 
the private sector that has responded to the request of the Federal 
Government, which has been given assurances by the Federal Government, 
to the all-volunteer military force we have today. It is imperative 
that within the private sector there be elements, primarily these 
corporations and companies which have come forward to provide the 
technical assistance and also the facilities by which to implement the 
FISA program. They have done it by and large voluntarily. The program 
could not succeed without their participation. Therefore, they ask no 
more than what is justly owed to them, and that is protection from the 
lawsuits. I hope we can turn back these two amendments and proceed to 
final passage and that the Senate will go on record as supporting the 
essential nature of the FISA program.


                             Energy Crisis

  Mr. WARNER. Mr. President, I rise to turn to the question that 
confronts America today; namely, the energy crisis. I use the word 
``crisis'' advisedly, because today no less than a third of Americans 
are absolutely struggling night and day to find the funds necessary to 
meet ever increasing food prices and ever increasing energy prices. It 
is for that reason I have taken a step. I wish to repeat that. I have 
simply taken a step to write the Secretary of Energy and to write the 
Comptroller General, the head of the GAO, to determine what are the 
facts relating to the 1973-1974 energy crisis, how America addressed 
that crisis, and the actions taken by the President and the Congress in 
1973-1974. Again, Congress acted unanimously to back the President in 
imposing a national speed limit, that speed limit for the purpose of 
lessening the demand for gasoline and hopefully to have consequent 
savings at the gas pump.
  That is a chapter in American history. I remember it quite well. I 
was privileged at that time to be Secretary of the Navy. Indeed, the 
Department of Defense, although at war in Vietnam, came forward and 
participated to try and help America work its way through that energy 
crisis. The national speed limit was the centerpiece of that program.
  I ask unanimous consent now to print in the Record the letters I sent 
to the Secretary of Energy and the Comptroller General at the 
conclusion of my remarks.

[[Page S6417]]

  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. WARNER. I thank the Presiding Officer.
  Again, I am not taking a position that at this time we should invoke 
a new initiative in the Congress to pass legislation calling for a 
national speed limit because I simply do not have the facts. I am on a 
fact-finding mission. But if those facts come forward, as I believe 
they will, and show that this will help alleviate and lessen the demand 
at the pump and the cost to the American citizen, then I am quite 
likely to try--more than that, I am quite probably going to try--and 
garner support on both sides of the aisle to push forward with this 
legislation. I say so because I come back again to about a third of 
America at this point in time is frantically trying to make ends meet. 
We have to come up with a solution. We have to lead in the Congress, 
and hopefully the President will join. We have that duty.
  Therefore, these two letters going to, certainly, the GAO, an 
impartial arbiter of the facts and finder of the facts, will provide 
this Chamber with the information necessary to make an informed 
judgment as to whether to go forth with legislation. I deem that the 
Secretary of Energy will reflect, quite understandably, the policy of 
an administration toward such a measure to bring about alleviation of 
the pressures at the gas pump today and on families.
  Again, this step is in the category of conservation of energy. My 
colleagues--and I have participated with them--are looking at, in my 
opinion, three areas of addressing this problem: short-term, which is 
conservation, that is the only way to bring about some immediate 
measure of relief; secondly, intermediate steps, which I outlined in my 
speech here; and lastly, the long term. Much has been said about long-
term steps. I take pride and push aside any sense of humility because 
for several years I have stood on this floor and urged offshore 
drilling, even put forth a measure here in this body which was defeated 
which called for the right of my State, Virginia, and such other States 
that might wish to join, through the Governor and the State 
legislature's participation, agreeing to drilling offshore of Virginia 
for gas. I am not suggesting I brought about a change of thinking in 
the administration, but the President now supports that concept. 
Indeed, a number of my colleagues now support that concept. I opine 
that I believe in due course the Congress will provide the President 
with legislation to take those important steps. But that offshore 
drilling will not lessen the price today at the pump.
  It will not help a case which was the final straw to decide that I 
would embark on this course, when I read an article about the meals on 
wheels program where the shut-ins at home, who for economic reasons and 
physical reasons and other reasons can't go out and get their meals. 
They rely upon a system of volunteers to bring the meals to their 
homes. But that program is beginning to founder because the volunteers 
simply cannot afford the additional cost of gasoline. I don't know 
about my colleagues, but this causes me severe heart palpitations and 
concern. The reporter said to me, when he interviewed me on this an 
hour or so ago, a national reporter: All right, Senator, are you 
willing to drive at a slower rate? What sort of car are you driving?
  I told him what type of car I drive. I said: There are occasions when 
I drive over 55 miles an hour, 60 miles an hour, sometimes 65. But I am 
willing to give up whatever advantage to me to drive at those speeds 
with the fervent hope that that modest sacrifice on my part will help 
those people across this land tonight and tomorrow and in the 
indefinite future dealing with this financial crisis.
  I point out also that in 1973-1974, these were automobiles, how well 
I remember, without growth of the quick production lines that started 
after World War II. America was flourishing. Then all of a sudden, the 
Arabs put an oil embargo on this country and took away our ability to 
get fuel. The President reacted quickly. The Congress reacted quickly. 
We put in that limit. In due course, the pressure on the pump declined 
and gas fell to about $2 a gallon. In 1995, 20 years after the 
enactment of this legislation by the Congress and the President, the 55 
miles was lifted. Mind you, it wasn't one President; it was a series of 
Presidents who endorsed this program of conservation in terms of the 
reduction of speed. I don't know. At one time I used to be a pretty 
good mechanic on automobiles, but they have now gotten a degree of 
complexity that is beyond my grasp. I rely on my son, who has devoted 
much of his life to auto racing.
  He is a wonderful mechanic and an engineer on cars. He said the 
carburetion system--he argued with me about this when I spent the past 
weekend with him--shook his fist at me: I don't want this 55-mile-per-
hour limit. And that is good advice. But he said the carburetion 
systems in cars today are better than they were in 1973 and 1974, and I 
judge that to be the case.
  So I asked in my letters: Analyze the technical capabilities of the 
cars today, and could we anticipate bringing about a savings at the gas 
pump by virtue of a national speed limit? So we have to get the facts 
and put them together.
  But I ask my colleagues, as they proceed to work on this issue--and I 
am all for the renewables, but that is long term. Offshore drilling: 
long term. We have to focus now on what measures we can take to help 
people now, if not long term.
  I know colleagues are getting the same calls and the same letters I 
am receiving from those people who, frankly, feel very oppressed by 
this rapid development. Although it has increased basically a dollar a 
gallon in the last year, so much of it has come on in the last 120 
days, unanticipated in speed and causing great hardship here at home.
  I yield the floor.

                               Exhibit 1


                                                  U.S. Senate,

                                     Washington, DC, July 3, 2008.
     Hon. Samuel W. Bodman,
     Secretary of Energy,
     Washington, DC.
       Dear Secretary Bodman: I write today with respect to the 
     high cost of gasoline. Today, the average cost of a gallon of 
     regular gasoline is more than $4.10. This is an increase of 
     well over a dollar a gallon from a year ago.
       As you know, each and every day, Americans struggle to cope 
     with this rapid, record increase in fuel costs. Across the 
     United States, individual Americans are taking their own 
     initiatives to find ways to reduce gas consumption through 
     driving less, altering daily routines, and even changing or 
     cancelling family vacation plans.
       To date, as far as I can determine, the federal government 
     has taken few, if any, initiatives to join in this national 
     effort to help address this ever increasing crisis.
       I believe it is essential that we continue to modernize our 
     energy infrastructure and develop a reliable, commonsense 
     American energy strategy--one that includes new supplies from 
     domestic exploration and extraction, encourages conservation, 
     and promotes the use and advancement of clean, renewable 
     energies.
       I am among a group of many senators today who are working 
     in a bipartisan fashion to find a solution. For the past 
     several years, I have supported permitting the Commonwealth 
     of Virginia to explore and extract energy offshore if its 
     Governor and General Assembly so desire. This concept has 
     just recently gained the support of the administration and a 
     growing number of colleagues in Congress.
       However, the truth is that new technologies and new sources 
     of energy will not provide meaningful relief for years to 
     come as new technologies are developed and as new sources of 
     energy are discovered and extracted. We must be straight with 
     the American public and not raise hopes that these efforts 
     will provide immediate solutions and possible relief.
       There are ways to give some immediate relief. In my view: 
     new conservation efforts are the quickest way to see an 
     immediate reduction in the price of gas at the pump. The 
     American public is already doing its part through individual 
     means of cutting back.
       On a federal level, on May 22, 2008, Senator Bingaman and I 
     introduced, and the Senate unanimously passed by voice vote, 
     a sense-of-the-Senate resolution (S. Res. 577) that urged the 
     President to initiate, among all federal departments and 
     agencies of the executive branch, a reduction of their daily 
     consumption of gasoline--if only by a small percentage.
       To my knowledge, the administration has not responded to 
     the Senate's action. In the absence of pending administration 
     action, Congress should join with the public and make the 
     concepts in the sense-of-the-Senate resolution a mandatory 
     law.
       Turning to another concept, I call to your attention action 
     taken by the Congress and the executive branch during a 
     similar petroleum shortage that occurred in 1973 and 1974. In 
     January 1974, the President signed into

[[Page S6418]]

     law ``The Emergency Highway Energy Conservation Act'' (public 
     Law 93-239), which passed both the House and Senate 
     unanimously. This law was enacted in an effort to conserve 
     fuel.
       Specifically, the law put forth inducements for states to 
     reduce speed limits to 55 miles per hour (mph) on all major 
     highways. Failure to do so would jeopardize the ability of 
     states to secure federal highway funds. The law was 
     originally intended to be temporary, ceasing to be in effect 
     if the President declared that there was no longer a fuel 
     shortage or on or after June 30, 1975, whichever occurred 
     first.
       According to a Congressional Research Service report, the 
     law resulted in reduced consumption of 167,000 barrels of 
     petroleum a day, a roughly 2 percent reduction in the 
     nation's highway fuel consumption. In addition, the National 
     Academy of Sciences found that the law saved up to 4,000 
     lives per year from highway accidents. Given the significant 
     increase in the number of vehicles on America's highway 
     system from 1974 to 2008, one could assume that the amount of 
     fuel that could be conserved today is far greater.
       Given the fuel savings of the act, and the resulting 
     significant decrease in highway fatalities attributable to 
     the national speed limit, Congress made the national speed 
     limit permanent in December 1974. In 1995, the law was 
     repealed.
       The purpose of this letter is to ask you to study this era 
     of conservation, as I have, to determine whether the 
     administration, with the support of Congress; should take 
     similar action today.
       According to the U.S. Department of Energy Web site, 
     engineering data shows that fuel efficiency decreases rapidly 
     above 60 mph. Specifically, for every 5 mph an individual 
     drives over 60 mph, that individual essentially is paying an 
     extra 30 cents per gallon in fuel costs.
       As Congress continues to look for ways to ease this 
     national problem, I put to you the following questions. I 
     will share your responses with my colleagues.
       (1) Given the significant technological improvements since 
     1974, at what speed is the typical vehicle traveling on 
     America's highways today most fuel efficient?
       (2) If a national speed limit was enacted similar to the 
     1974 law, but the speed limit under that law was consistent 
     with most fuel efficient speed for the typical vehicle 
     traveling on America's highways, what would be a reasonable 
     projection for total fuel savings? And, what would be the 
     savings for the average citizen who owns and operates a 
     vehicle?
       (3) If a new national speed limit was enacted consistent 
     with the two questions listed above, how many fewer barrels 
     of petroleum a day would Americans consume? Is it reasonable 
     to believe that there would be a reduction in price at the 
     pump? And, if so, what are the ranges you could project for 
     cost reductions?
       (4) If the federal government took the initiative to reduce 
     its oil consumption, consistent the concepts of the sense-of-
     the-Senate resolution (S. Res. 577) how many fewer barrels of 
     petroleum a day would be saved by the federal government?
       Given that Congress, upon its return next week, will be 
     vigorously considering all options, your response to this 
     request could be of great help to my colleagues and me. 
     Again, years ago, the Emergency Highway Energy Conservation 
     Act worked. The administration's advice, after examining this 
     era and these concepts, would be helpful.
       With kind regards, I am
           Sincerely,
     John Warner.
                                  ____



                                                  U.S. Senate,

                                     Washington, DC, July 8, 2008.
     Hon. Gene Dodaro,
     Acting Comptroller General of the United States, Government 
         Accountability Office, Washington, DC.
       Dear Mr. Dodaro: I write today with respect to the high 
     cost of gasoline. Today, the average cost of a gallon of 
     regular gasoline is more than $4.10. This is an increase of 
     well over a dollar a gallon from a year ago.
       As you know, each and every day, Americans struggle to cope 
     with this rapid, record increase in fuel costs. Across the 
     United States, individual Americans are taking their own 
     initiatives to find ways to reduce gas consumption through 
     driving less, altering daily routines, and even changing or 
     cancelling family vacation plans.
       To date, as far as I can determine, the federal government 
     has taken few, if any, initiatives to join in this national 
     effort to help address this ever increasing crisis.
       I believe it is essential that we continue to modernize our 
     energy infrastructure and develop a reliable, commonsense 
     American energy strategy--one that includes new supplies from 
     domestic exploration and extraction, encourages conservation, 
     and promotes the use and advancement of clean, renewable 
     energies.
       However, the truth is that new technologies and new sources 
     of energy will not provide meaningful relief for years to 
     come as new technologies are developed and as new sources of 
     energy are discovered and extracted. We must be straight with 
     the American public and not raise hopes that these efforts 
     will provide immediate solutions and possible relief.
       There are ways to give some immediate relief. In my view, 
     new conservation efforts are the quickest way to see an 
     immediate reduction in the price of gas at the pump. The 
     American public is already doing its part through individual 
     means of cutting back.
       On a federal level, on May 2, 2008, Senator Bingaman and I 
     introduced, and the Senate unanimously passed by voice vote, 
     a sense-of-the-Senate resolution (S. Res. 577) that urged the 
     President to initiate, among all federal departments and 
     agencies of the executive branch, a reduction of their daily 
     consumption of gasoline--if only by a small percentage.
       To my knowledge, the administration has not responded to 
     the Senate's action. In the absence of pending administration 
     action, Congress should join with the public and make the 
     concepts in the sense-of-the-Senate resolution a mandatory 
     law.
       Turning to another concept, I call to your attention action 
     taken by the Congress and the executive branch during a 
     similar petroleum shortage that occurred in 1973 and 1974. In 
     January 1974, the President signed into law ``The Emergency 
     Highway Energy Conservation Act'' (Public Law 93-239), which 
     passed both the House and Senate unanimously. This law was 
     enacted in an effort to conserve fuel.
       Specifically, the law put forth inducements for states to 
     reduce speed limits to 55 miles per hour (mph) on all major 
     highways. Failure to do so would jeopardize the ability of 
     states to secure federal highway funds. The law was 
     originally intended to be temporary, ceasing to be in effect 
     if the President declared that there was no longer a fuel 
     shortage or on or after June 30, 1975, whichever occurred 
     first.
       According to a Congressional Research Service report, the 
     law resulted in reduced consumption of 167,000 barrels of 
     petroleum a day, a roughly 2 percent reduction in the 
     nation's highway fuel consumption. In addition, the National 
     Academy of Sciences found that the law saved up to 4,000 
     lives per year from highway accidents. Given the significant 
     increase in the number of vehicles on America's Highway 
     system from 1974 to 2008, one could assume that the amount of 
     fuel that could be conserved today is far greater.
       Given the fuel savings of the act, and the resulting 
     significant decrease in highway fatalities attributable to 
     the national speed limit, Congress made the national speed 
     limit permanent in December 1974. In 1995, the law was 
     repealed.
       The purpose of this letter is to ask you to study this era 
     of conservation, as I have, to determine whether the 
     administration, with the support of Congress, should take 
     similar action today.
       According to the U.S. Department of Energy, engineering 
     data shows that fuel efficiency decreases rapidly above 60 
     mph. Specifically, for every 5 mph an individual drives over 
     60 mph, that individual essentially is paying an extra 30 
     cents per gallon in fuel costs.
       As Congress continues to look for ways to ease this 
     national problem, I ask you to examine the following 
     questions:
       (1) Given the significant technological improvements in 
     automobile design and function since 1974, at what speed is 
     the typical vehicle traveling on America's highways today 
     most fuel efficient?
       (2) If a national speed limit was enacted similar to the 
     1974 law, but the speed limit under that law was consistent 
     with most fuel efficient speed for the typical vehicle 
     traveling on America's highways, what would be a reasonable 
     projection for total fuel savings? And, what would be the 
     savings for the average citizen who owns and operates a 
     vehicle?
       (3) If a new national speed limit was enacted consistent 
     with the two questions listed above, how many fewer barrels 
     of petroleum a day would Americans consume? Is it reasonable 
     to believe that there would be a reduction in price at the 
     pump? And, if so, what are the ranges you could project for 
     cost reductions?
       (4) If the federal government took the initiative to reduce 
     its oil consumption, consistent the concepts of the sense-of-
     the-Senate resolution (S. Res. 577) how many fewer barrels of 
     petroleum a day would be saved by the federal government?
       Given that Congress is vigorously considering all options, 
     your response to this request could be of great help to my 
     colleagues and me.
       With kind regards, I am
           Sincerely,
                                                      John Warner.

  Mr. SPECTER addressed the Chair.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, the pending business on the Foreign 
Intelligence Surveillance Act is an amendment which I have pending, No. 
5059. We started at 4 o'clock, and we are due for 2 hours. I stepped 
off the floor for just a few minutes for necessaries and have come back 
to find a unanimous consent proposal for some six speakers. I have 
talked to a number of Senators on the floor, and they are in morning 
business.
  It seems to me the orderly procedure would be to allow us to finish 
our bill. I understand any Senator can come out and ask for unanimous 
consent. But, candidly, my good friend from Virginia, I wish you had 
given me notice.
  Mr. WARNER. Mr. President, I felt I was acting at the personal 
request of

[[Page S6419]]

Chairman Rockefeller and the ranking member when I did this. I inquired 
on the floor as to the desires of other Senators. I regret, my dear 
friend, I would not have done this in any way to deter your ability to 
do what you feel you have to do on this bill.
  So at this point in time, certainly the floor is open to additional 
unanimous consent. But I do bring to your attention the Senators who 
are currently in the Chamber are here as a consequence of the UC that I 
proposed at the request of the two managers.
  Mr. SPECTER. Well, with all due respect to my good friend from 
Virginia, I was on the floor all afternoon, you sitting there and me 
sitting here. But that is water over the dam.
  My request, Mr. President, is that--the only Senator on this list who 
I have ascertained is going to speak to the bill is Senator Carper; he 
is on the list now for 10 minutes--we conclude the bill, or the 
alternative: to move ahead with the balance of the times reserved until 
tomorrow morning.
  Mr. WARNER. Mr. President, again, Senators on the floor can certainly 
speak for themselves, but I point out I think the Chair advised the 
managers as to the time remaining on both sides of the bill.
  Am I not correct, I ask the Presiding Officer? Could you inform the 
Senate as to the times remaining under the UC to which my good friend 
from Pennsylvania refers?
  The PRESIDING OFFICER. The Senator from Pennsylvania has 10 minutes 
remaining. The Senator from West Virginia has 33 minutes remaining. The 
Senator from New Mexico has 14 minutes. The Senator from Missouri has 5 
minutes. The Senator from Connecticut has 21 minutes.
  Mr. WARNER. Mr. President, I leave it to the Chair to address that. I 
think the Senator from Pennsylvania should be recognized for the 
purpose of his 10 minutes, but I am not sure we are in a position to 
foreclose other Senators who have been waiting here patiently to 
address the Senate on other matters.
  It seems to me the Senator from Pennsylvania should revise the 
request to enable him to have his 10 minutes and Senator Carper his 10 
minutes and then allow the Chamber to proceed with other matters. It 
seems to me that is a fair resolution to this problem.
  Again, I apologize if I was acting--as I was so asked to do--contrary 
to the Senator's wishes.
  Mr. SPECTER. Mr. President, with respect to waiting, I have been here 
since 11 o'clock this morning on this bill.
  Mr. President, I ask unanimous consent that Senator Carper be 
recognized, as he is, for 10 minutes, and that the other Senators 
subject to the unanimous consent request be accorded the time given to 
them, and that the remainder of the time reserved be scheduled for 
tomorrow at the discretion of the majority leader.
  Mr. WARNER. Mr. President, I will not object. I wish to thank my 
colleague for what I think is a very fair resolution to this situation.
  Mr. CARPER. Mr. President, may I be recognized?
  The PRESIDING OFFICER. Is there objection?
  Mr. CARPER. Mr. President, reserving the right to object, I am told 
we cannot shift the time until tomorrow. I am told we need to use the 
time that has been allocated today. That is my understanding.
  Mr. SPECTER. Mr. President, will the Senator repeat his reservation, 
please.
  Mr. CARPER. Mr. President, I understand--and I look to the 
Parliamentarian and to the Presiding Officer--I am told the Senate is 
required to use the time that has been allocated for the discussion of 
these amendments today, and there is additional time for it tomorrow in 
tomorrow's debate before we begin voting. But we need to use up the 
time that is allocated for this afternoon and this evening.
  I would inquire of the Presiding Officer, is that your understanding 
as well?
  Mr. SPECTER. Mr. President, parliamentary inquiry: I heard the Chair 
say there is 10 minutes remaining of my time.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. SPECTER. Well, that time is yielded to Senator Carper, so that 
would take all the time allotted to this Senator.
  The PRESIDING OFFICER. Does the Senator withdraw his unanimous 
consent request?
  Mr. SPECTER. Well, there has been an objection to it, as I 
understand.
  The PRESIDING OFFICER. Is there objection?
  Mr. CARPER. Reluctantly, I must object.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Delaware.
  Mr. CARPER. Mr. President, I believe under the unanimous consent 
agreement entered earlier, I am recognized for 10 minutes, and I ask 
unanimous consent that my time be counted against time controlled by 
Senator Rockefeller.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. Mr. President, I rise today to speak in support of the 
FISA compromise legislation that is before us this week. I believe 
reasonable people can disagree about this measure, and I certainly 
respect the views of those who oppose it. But I wish to take a moment 
this afternoon to explain, first, why I am supporting this bipartisan 
compromise and, second, to encourage my colleagues and others to do so 
as well.

  All of us know we live in a dangerous world today. We face serious 
threats to our safety and to our security. At the same time, we face a 
difficult balancing act between, on the one hand, the need to protect 
our country and the safety of our citizens and, on the other hand, the 
need to preserve our civil liberties.
  All too often, the Bush administration's approach has been, at least 
in my judgment, misguided. Many opponents of the FISA legislation 
before us are rightly concerned that civil liberties have been ignored 
and in some cases violated.
  I believe that is why, to some extent, many critics of this bill have 
focused so heavily--almost exclusively, in fact--on the legislation's 
retroactive immunity provisions. I regret the majority of my colleagues 
in the House and the Senate do not see eye to eye with those critics 
regarding immunity. However, I wish to take a few minutes to explain 
why most of us who support this bill in its amended form believe that 
granting immunity is fair.
  During the extraordinary national emergency that followed the 
September 11 attacks upon our Nation, the Federal Government reached 
out--
  Mr. SPECTER. Mr. President, will the Senator from Delaware yield for 
a moment?
  Mr. CARPER. Mr. President, I am happy to yield to the Senator from 
Pennsylvania.
  Mr. SPECTER. Mr. President, I understand the Senator from Delaware is 
using time from Senator Rockefeller.
  Mr. CARPER. That is correct.
  Mr. SPECTER. So my time would remain. I had thought there was 13 
minutes remaining. Is there only 10?
  The PRESIDING OFFICER. Ten minutes is all that remains.
  Mr. SPECTER. I thank the Chair, and I reserve the remainder of my 
time, however the scheduling may work out.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CARPER. Reclaiming my time, if I may, Mr. President, during the 
extraordinary national emergency that followed the September 11 attacks 
upon our Nation, the Federal Government reached out to some of 
America's major telephone carriers. We asked them to help intercept 
communications between sources in our country and terrorists located 
overseas.
  A number of our phone companies responded in good faith and agreed to 
help. They did so, however, only after receiving written directives 
from our Government's senior national security and law enforcement 
officials that their cooperation--the cooperation of the 
telecommunications companies--was both lawful and constitutionally 
sound.
  It does not seem fair, at least to me, that these companies now 
should be made victims of their own good-faith cooperation and 
assistance in the ongoing fight against terrorism. That is why I 
support immunity for phone companies that can demonstrate in Federal 
court that their participation in the program was found to be lawful by 
the Bush administration.

[[Page S6420]]

  With that said, however, I believe the issue of immunity has taken on 
a significance that goes beyond its actual importance. This is not to 
suggest that immunity is unimportant, but the more critical aspects of 
this FISA bill seem to have been overlooked. In my view, those portions 
of the bill matter more--much more.
  Rather than looking backward, at immunity, our real focus should be 
on what this FISA bill does going forward. I believe this legislation 
strikes the right balance in providing our intelligence networks with 
the tools they need to protect our country without diminishing our 
civil liberties. The administration has overreached on this front 
before. The FISA legislation before us, though, is a significant 
improvement over current law and will help to ensure that neither this 
administration nor the next administration will overreach again.
  Now, how does it do that? First of all, this compromise bill makes it 
crystal clear that FISA is the exclusive means to conduct surveillance, 
ensuring that neither this President nor our next President can go 
around the law.
  Second, the bill mandates reports by the inspectors general of the 
Justice Department, the Department of Defense, and our intelligence 
agencies that will provide the relevant congressional committees here 
and in the House with the information we need to conduct needed 
oversight.
  Third, the compromise bill--this compromise bill--establishes a 
shorter sunset period of 4\1/2\ years instead of what had been proposed 
earlier, 6 years. In addition, this compromise bill--for the first 
time--requires FISA Court warrants for surveillance of Americans 
overseas.
  I applaud both Senator Rockefeller and Senator Bond, as well as my 
friend, Congressman Steny Hoyer of Maryland, for their collective work 
in negotiating this compromise. They know, as I do, that this 
compromise is not ideal. It is not perfect. But, in my view, it is the 
best bill we can agree on at this time. It represents the best chance 
we have today to protect both our national security and our civil 
liberties.
  For all these reasons, I am supporting this legislation. I hope my 
colleagues--Democratic and Republican--will join me in supporting the 
efforts of those who have crafted it.
  Mr. President, if I could, I wish to end today with a pledge: Should 
this bill pass and be signed into law--and I hope it will--I will work 
with my colleagues in the next Congress and with the next President and 
his administration to make additional improvements that our country and 
our citizens may need and deserve.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Mississippi.
  Mr. COCHRAN. Mr. President, I think under the order there is time for 
me to speak at this point.
  The PRESIDING OFFICER. The Senator has 10 minutes remaining.


                                Medicare

  Mr. COCHRAN. Mr. President, I think the Senate should support an 18-
month extension of current Medicare law with the inclusion of a 1.1-
percent increase in physician reimbursements. We should also make an 
effort to identify long-term improvements that will strengthen a system 
that is badly in need of repair.
  New legislation is important and urgent because of the expiration on 
June 30, 2008, of the Medicare, Medicaid, and SCHIP Extension Act. This 
extension, which was signed on December 29, 2007, delayed cuts to 
payments under the physician fee schedule from taking effect until July 
1, 2008.
  Unfortunately, despite the knowledge that bipartisan negotiations 
were ongoing and could have achieved passage in time to prevent these 
cuts, the majority leadership chose to force a vote on H.R. 6331, a 
bill which the administration had promised to veto. My vote against the 
immediate passage of H.R. 6331 was a vote to protect the beneficiaries 
of Medicare and ensure their access to affordable and high-quality 
health care in the future. The fact is that providing health care to 
the constituents we represent must remain one of our top priorities. It 
is a priority that should transcend party politics.
  In its current form, H.R. 6331 includes over $17 billion in new 
spending that comes at the expense of some of Medicare's more 
vulnerable participants, and it restricts seniors' private coverage 
through cuts to Medicare Advantage plans. Medicare Advantage is an 
important and widely used program that offers seniors quality health 
care at a low cost. This bill would result in a $13.6 billion cut from 
Medicare Advantage over the next 5 years and a $50 billion cut within 
10 years. Specifically, over 2 million seniors would lose access to 
their private fee-for-service plans, reducing benefits to a one-size-
fits-all plan and reversing what the program was intended to do in the 
first place.
  This issue is particularly relevant in my State. Seventy-nine percent 
of the people in my State who are enrolled in Medicare Advantage plans 
are also enrolled in private fee-for-service plans. I cannot in good 
conscience vote for a bill that would put their access to health care 
in jeopardy.
  The Senate should work to develop a bill that will accurately reflect 
the cost of providing quality care. If we don't, we risk a disruption 
in physician services to those who need care the most and we risk 
increasing the cost of health care. We must mitigate the negative 
impact of expiring provisions on providers and benefits.
  The first step is to extend the current Medicare law until a 
compromise can be reached. We all understand that temporary fixes can 
only carry us so far. We need a long-term solution that fixes the 
sustainable growth rate to control costs, a long-term solution that 
recognizes the importance of increasing Medicare reimbursements, and a 
long-term solution based on bipartisan compromise. Anything less is not 
sustainable.


                   Unanimous Consent Request--S. 3118

  Mr. COCHRAN. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of Calendar No. 776, S. 3118, a 
bill to preserve Medicare beneficiary access to care. I further ask 
unanimous consent that the bill be read a third time and passed and the 
motion to reconsider be laid upon the table.
  The PRESIDING OFFICER. Is there objection?
  Ms. STABENOW. Reserving the right to object.
  The PRESIDING OFFICER. The Senator from Michigan is recognized.
  Ms. STABENOW. Mr. President, reserving the right to object, I would 
first indicate to my friend, the Senator from Mississippi, that, in 
fact, we have a bill in front of us that had 355 votes--a huge 
bipartisan majority--that addresses strengthening Medicare for our 
seniors. We are only 1 vote--1 Republican vote--shy of passing it here 
in the Senate.
  My colleague also raises the concern about cutting Medicare 
Advantage. There are no Medicare Advantage cuts in the rates in this 
bill at all. There is a small change that doesn't even start until 
2011.
  So as a result of the fact that we have in front of us a bill to 
immediately address the concerns about access that my colleague has 
raised, I would object to his unanimous consent request.
  The PRESIDING OFFICER. Objection is heard.
  The Senator from Mississippi is recognized.
  Mr. WICKER. Mr. President, I am disappointed that the Senator from 
Michigan has objected to the unanimous consent request. I certainly 
hope, though, that we can have a conversation about this issue and move 
eventually to the consideration of S. 3118 as Senator Cochran 
suggested.
  The American Medical Association has requested an 18-month fix--an 
18-month extension--to give the medical community and Congress time to 
enact a permanent fix to the sustainable growth rate formula. This 
legislation--the Grassley bill--would provide for this 18-month 
extension. It would also provide an 18-month extension with a one-half 
percent increase in 2008 and a 1.1-percent increase in 2009 in 
physician reimbursement. This, I might add, is identical to the 
provision in the Stabenow bill, S. 2785, the Save Medicare Act, which 
was, in fact, a bipartisan bill and a bill I was happy to cosponsor.
  The bill Senator Cochran just asked for unanimous consent to consider 
also increases Medicare payments for ground ambulance services, it 
extends the authorization for the Medicare

[[Page S6421]]

Rural Hospital Flexibility Program grants, and it provides important 
provisions for community hospitals and for rural home health care.
  The bill does make certain noncontroversial changes to the Medicare 
Advantage Program. It also extends critical programs involving 
Medicare, and it eliminates the double IME windfall to Medicare 
Advantage Programs. But it doesn't contain the controversial provider 
offsets that the legislation which was offered by the majority leader 
would have done and which the President promised to veto.
  The legislation Senator Cochran just asked unanimous consent to 
consider could be passed tonight, sent to the President for his 
signature tomorrow, and the Members of the majority party in this 
Congress could claim a victory, and a bipartisan victory at that.
  I believe it is important for people to understand the history of 
this legislation.
  The Senate and House have been legislating to prevent these provider 
cuts from going into effect since the year 2002. For the past 6 years, 
as a Member of the House of Representatives, I have voted numerous 
times to prevent these physician cuts from going into effect, and each 
time, these cuts have been prevented. That has been done on a 
nonpartisan, bipartisan basis without political wrangling.
  Indeed, this year, just a few days ago, before the Fourth of July 
recess, Chairman Baucus and Ranking Member Grassley were on the verge 
of presenting a bipartisan package which would have prevented these 
cuts from going into effect and prevented this entire controversy. They 
were moments away before the rug was pulled out from under them by the 
leadership in this body.
  Why is it different this year? Why have we been able to do this on a 
nonpartisan basis, prevent these cuts from going into effect to the 
providers, to the physicians, and the harm that would ensue to the 
Medicare recipients in the past? Why is it different this year? It is 
clear to me that members of the Democratic leadership in this body and 
in the other body have decided to turn this so-called ``doc fix'' into 
a political issue.
  I was struck by the exchange between the minority and the majority 
leader on the night of June 26 when Senator McConnell requested of the 
majority leader, after the cloture had not been invoked, that we have a 
simple 30-day extension in order to continue to work on this issue. In 
objecting to that unanimous consent request for a simple 30-day 
extension so we could continue to work on this, it became obvious to me 
what a political issue this is becoming. The majority leader, in 
objecting, mentioned elections this year for three House seats in which 
the Democrats won. He went on to say that this time next year, there 
would be 59 Democrats in the Senate at least. He mentioned the 
President's approval rating--and this is all in the Congressional 
Record, page S6233 of the Congressional Record, if Members would like 
to follow along--he mentioned the President's approval rating. He 
mentioned numbers of people in the Senate who are up for reelection 
this year, and he even mentioned polling before suggesting that his 
Republican friends did not truly want to prevent these cuts from taking 
effect.
  There is not a single Member of the Senate who wants these cuts to 
take effect. There is not a single Member of the House of 
Representatives who wants these cuts to take effect. But the majority 
leader said that night: The only way out of this is to accept this 
legislation; it is this legislation or nothing, in effect. I will say 
this much for the distinguished Democratic leader of the Senate: He was 
open and frank about what is really at issue here. This is very much 
about this year's elections and less about preventing the cuts to 
doctors.
  Now, what are we wrangling about here? We are wrangling about the 
offsets to prevent the cuts from going into effect, particularly what 
it would have done to Medicare Advantage, a program that some 22,000 
Mississippians depend upon and a program I would like to protect for 
them.
  Now, we have a disagreement. The Senator from Michigan sees this 
differently than I do. There are people who would tell you that the 
bill offered to us that night would have gutted the Medicare Advantage 
Program. Medicare Advantage offers seniors a choice between regular 
Medicare and traditional insurance in the form of Medicare Advantage. 
These insurers offer the same services as traditional Medicare, but in 
addition, they offer options Medicare does not. In Mississippi, this 
means seniors may choose to have increased coverage of things such as 
diabetes management, increased cancer screening, or lower cost-sharing 
in the form of lower premiums and copays.
  Admittedly, Medicare Advantage is not a perfect program. I believe 
there is a certain bipartisan consensus that we should take a look at 
the plan's enrollment and billing practices. Physicians back home in my 
State of Mississippi tell me this, and I want to work with them. The 
amount of payments to these plans is also an issue that needs to be 
looked at. But the Medicare bill that the majority leader would have 
forced upon us on that Thursday night of June 26, 2008, would have 
included provisions that did not enjoy bipartisan support. If that bill 
had passed, American seniors and Mississippi seniors would have lost 
their choices. They would have been told: Take it or leave it.

  Fewer choices and less competition are not good for America's seniors 
and certainly not good for our health care system. If Medicare 
Advantage needs adjusting, we should consider stand-alone Medicare 
Advantage legislation.
  The PRESIDING OFFICER. The junior Senator from Mississippi must know 
that his time has expired.
  Mr. WICKER. I wonder if I may have an additional 2 minutes, Mr. 
President. I don't see anyone here at this moment. I wonder if I may 
have an additional 2 minutes to wrap up.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WICKER. I thank the Chair.
  There is overwhelming support for fixing the sustainable growth rate. 
Doctors deserve better than to be involuntarily paired with a poison 
pill provision that cannot pass this Congress on its own merits. I 
repeat, there is not a single Member of this Senate who wants these 
cuts to go into effect.
  The issue of Medicare Advantage is so important because of the 
competition. If we are ever going to solve the future of funding on the 
issue of Medicare as a whole, if we are going to have that goal that 
the AMA wants of 18 months to look at a permanent fix to this issue, if 
we are going to prevent the train wreck that looms a few short years 
from now on the funding of Medicare as a whole, then we are going to 
have to inject competition. But let's not use it as a political 
football. Let's not adopt offsets on which there have been no hearings. 
Let's not change basic Medicare policy in the form of a pay-for for a 
temporary fix.
  What we are looking at is two vastly different approaches to health 
care reform: the traditional Medicare, one size fits all, take it or 
leave it, that would lead us to a Canadian-style, single-payer type 
plan for the entire United States of America, or injecting this little 
bit of competition to see if we can help control the cost of the 
Medicare Program. That is what we are making this stand about, and that 
is why I hope eventually we will adopt the unanimous consent request 
Senator Cochran has made and move to a bipartisan plan we can all 
support and prevent these doctor cuts from going into effect.
  I yield the floor. I thank the Chair for indulging me on the time.
  The PRESIDING OFFICER (Mr. Menendez). The Senator from Michigan.
  Ms. STABENOW. Mr. President, I ask unanimous consent that following 
the remarks of Senator Cornyn, who I understand will be speaking after 
myself, Senator Levin be recognized as under the previous order, and 
Senator Chambliss be recognized to speak for up to 10 minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Michigan is recognized.
  Ms. STABENOW. Mr. President, it is important to understand what the 
choices in front of us are. Always we have a choice in terms of 
priorities, of how to proceed. As the person who has coauthored the 
bill in the last several sessions that would change completely the way 
we provide physician payments, I certainly support long-term

[[Page S6422]]

solutions, something called the SGR, sustainable growth rate. I believe 
the way it is set up, it is wrong, and we need to fundamentally change 
and stop this process of trying to make sure we don't see cuts happen 
in Medicare every single year. I certainly agree with that position.
  What we have in front of us is a choice--a choice between a bill that 
has 355 votes in the House on a bipartisan basis--there are not a whole 
lot of times we see 355 people coming together on an issue such as this 
in the House, and 59 Members of the Senate. We had a majority. We had 
59 votes. We have seen an effort to continue to filibuster the process 
from moving forward, and we are tomorrow going to see whether we will 
have one more additional Republican who stands with us, stands with the 
AARP, the American Medical Association, who stands with, most 
importantly, our seniors, who stands with the disability community, who 
stands with those who are concerned about access to Medicare in this 
country. We only need one vote. That is where we are right now.
  I find it interesting, when we look at the motion that was made 
before about the bill my Republican colleagues wish to bring to the 
floor, in that bill, we see cuts in oxygen services, in speciality 
wheelchairs, large cuts in graduate medical education in order to pay 
for the bill. That is one choice. Or we have the choice in front of us 
that passed with 355 votes in the House and has 59 votes right now in 
the Senate which would take some smaller cuts out of graduate medical 
education and would do something very small and in the future to 
Medicare Advantage.
  What is Medicare Advantage? In my mind, Medicare Advantage is part of 
the effort to privatize Medicare. We all remember former Speaker Newt 
Gingrich saying we cannot directly stop Medicare, so we are going to 
make sure it withers on the vine. Part of that withering has been to 
divert more and more dollars away from physicians and away from 
community care into private for-profit companies, private fee-for-
service companies.
  The argument was in the beginning that competition from the private 
sector, more choice will bring down costs and that they would be able 
to take 97 percent of the normal Medicare rate because it would cost 
less to bring down prices because of competition.
  What has happened? What have we heard from the Congressional Budget 
Office? What have we heard from those who only analyze this issue? In 
fact, the exact opposite is happening. More and more rate increases 
have occurred. We now have a group that was getting 97 percent of the 
full rates, supposedly lowering costs, now on average getting 113 
percent, and the Congressional Budget Office told us if we cap the rate 
to these private businesses at 150 percent of regular Medicare, we 
would still save money.
  Because of the strong feeling of the Republicans and the President 
indicating he wants to protect them at all costs, in this particular 
bill we are not addressing the rates. There is no inability for people 
to get a choice through private care. There is none of that. There is 
no rate reduction, even though, in my mind, we ought to be doing that.
  All that is done in this bill is a process that does not even take 
effect until 2011--not next year, not the year after, but the year 
after that--which is a process called deeming. I will not go into all 
of it now except to say it addresses how the private companies interact 
with those that are not part of their group or part of their network. 
That is all this addresses in Medicare Advantage. One would think the 
sky is falling based on what we have heard.
  The reality is, AARP--a pretty good barometer of what seniors are 
thinking in this country--and a wide variety of organizations have come 
together very strongly in support of the bill in front of us that only 
needs one vote. Why? Because that is the bill that will strengthen 
Medicare for the future.
  We need to act now. We are past time to act on this issue because, in 
fact, there are consequences already, even though the physician cut has 
not taken effect.
  I received a letter this week and I wish to read it. I received a 
letter recently from a constituent named Kay about her father. Her 
father needs his physical therapy as part of his treatment for 
Parkinson's. I know what that is like. My grandmother died of 
Parkinson's. It is a very tough disease. He lives at home confined to a 
wheelchair most of the time due to Parkinson's. Despite rising gas 
prices, Kay and her sister drive her father three times a week--about 
80 miles round trip--for his therapy. But last week, they were informed 
that Medicare would not pay for his therapy because the Medicare 
exemption process for physical therapy had expired.

  We only need one more vote. If we had one more vote, Kay would not be 
worried about whether her father with Parkinson's can get the physical 
therapy he needs.
  Kay wrote me:

       I will go down swinging to help my dad. Can you go back in 
     and fight for us? We need these services extended. Please 
     fight for us . . . go back onto the floor and reopen this.

  And vote again.
  Our leader, I am proud to say, understands all of the stories, not 
only of Kay but of all the seniors across the country who are so 
desperately worried about what is going to happen with Medicare. Our 
leader has come to the floor and said we are going to vote ``yes'' 
again. We are only one vote short, only one vote.
  The practical reality is, in my home State alone, it affects 1.4 
million seniors and people with disabilities and over 90,000 veterans 
who are TRICARE beneficiaries, people who have served in our military. 
Military health care, TRICARE, is tied to Medicare. So if the Medicare 
cuts take effect, our veterans also will be affected and there will be 
a cut.
  This is serious. We are past time, at this point, to be debating this 
issue. We need to vote, we need to pass it, and we need to send it to 
the President.
  There are so many positive provisions in this bill for the future. It 
addresses assets for low-income seniors; preventive services; rural 
services which are so important to so many parts of Michigan; also the 
effort to move ahead and modernize the system with e-prescribing, so we 
can actually read the physician's handwriting, so we can actually have 
an electronic system that speaks to the future; and also telehealth 
which in so many parts of our country--again, Michigan is a real 
example of focusing on telehealth and the way to expand services to 
rural communities; expanding mental health services. There are so many 
important pieces to this bill.
  Fundamentally, the difference between what was suggested by my 
Republican friend from Mississippi and from what is in front of us is 
whether we are going to have any kind of accountability at all for this 
effort that has begun to privatize Medicare.
  We know from the testimony we received from the Congressional Budget 
Office that for 85 percent of the seniors in traditional Medicare, they 
actually pay more in premiums because of the overpayments on Medicare 
Advantage. Again, that is not even in this bill. That is not even in 
this bill. We still need to address that point. There is a small change 
that does not take effect until 2011, but because of that, colleagues 
on the other side of the aisle are willing to let this whole bill go 
down and a dramatic cut in physicians' services take effect. They are 
willing to let us lose the help for rural America, the effort to 
modernize Medicare with electronic e-prescribing, with telehealth, to 
focus on seniors who need mental health services. They are willing to 
let the whole thing go down and, in fact, have proposed, as I said 
earlier, an alternative plan, that rather than touch the for-profit 
folks in the health care system right now that are, in my mind, too 
many times undermining what is happening in traditional Medicare--not 
always; there are some positive aspects, but too many times. Instead of 
that, they bring forward an alternative that focuses on oxygen services 
and specialty wheelchairs and other areas in which to receive their 
cuts.

  Mr. President, I ask unanimous consent for 2 additional minutes, as 
my colleague from Mississippi did prior to me.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Ms. STABENOW. I thank the Chair.
  I feel so strongly about this, Mr. President. We spent a lot of time 
and effort and a lot of goodwill. A lot of people have worked together 
on both sides of the aisle, with good decisions

[[Page S6423]]

and good ideas that have come together on how to strengthen Medicare 
through this bill. It is obviously something that has wide bipartisan 
support because, again, we are talking about a huge overwhelming vote 
in the House of Representatives--355 people. Now we have the 
opportunity in front of us tomorrow, with all of our physician 
community, health care providers, senior organizations, AARP, 
disability groups, those who serve the Parkinson's patients and other 
patients who are suffering from particular diseases, consumer groups 
all across America coming together and saying this makes sense.
  We need to make sure Medicare is available for our seniors. These are 
Draconian cuts and we want to stop them and we are willing to do it in 
a very balanced way. I thank our chairman of the Finance Committee for 
his leadership on something that is reasonable and balanced. We know 
him to be a reasonable person who does things in a balanced way. This 
doesn't gut Medicare or Medicare Advantage. It doesn't even touch the 
rates. It doesn't touch the companies, other than to address one part 
of the way they deal with those who are out of State or out of service 
through the process called ``deeming,'' that doesn't take effect until 
2011.
  Frankly, if that is the only part people disagree with, these cuts 
are now. These physical therapy cuts started last week. I would urge my 
colleagues, step up and be the one vote. We have until 2011 to change 
that part of the bill they do not like. But the therapy cuts started 
last week, and the physician cuts are going to start in a couple of 
weeks. That is the sense of urgency we should feel if we are concerned 
about the seniors in this country--about Medicare beneficiaries. Now is 
the time. It is real simple. It is real simple.
  Tomorrow afternoon we will have the opportunity to vote yes on 
something overwhelmingly supported by the people of this country, and I 
urge my colleagues to step up. We only need, Mr. President, one more 
vote.
  The PRESIDING OFFICER. The Senator from Texas.
  Mr. CORNYN. Mr. President, Medicare provides important health care 
benefits for our Nation's seniors. Since 1965, the Federal Government 
has promised that those over the age of 65 years, or those afflicted 
with certain disabilities, will have access to health care. 
Unfortunately, Congress has had a checkered history of keeping that 
promise.
  The vote we had 2 weeks ago, to which the distinguished Senator from 
Michigan just alluded, and one we will apparently have tomorrow 
afternoon, should be an embarrassment to Congress but not for the 
reasons that she and others have suggested. We should be looking to 
solve the looming problems with Medicare permanently, not just with 
temporary patches or fixes. We need a permanent solution. We should 
keep our promise to seniors that they can rely on Medicare and provide 
fair compensation for the physicians to make sure our seniors will 
actually have access to that coverage.
  I have repeatedly heard from seniors in Texas who depend on Medicare 
that they find it hard to even find a physician who will accept below-
market Medicare reimbursement rates. Even if we pass an 18-month 
extension now, I am not optimistic Congress will seriously consider 
permanent reform before the next round of scheduled cuts. And I shudder 
to think whether we can prevent the 20-percent cut that will occur 18 
months from now.
  This, of course, should not be about partisan politics, which it has 
become, because this is about people's lives. The Medicare Program, 
simply put, is in a nosedive headed for bankruptcy. As this chart 
demonstrates, without a long-term solution, the future is bleak indeed 
for Medicare providers.
  This chart depicts how the practice costs of physicians continue to 
go up year after year. Yet because of a law Congress passed in 1997, 
Medicare reimbursement rates continue to be projecting downward. You 
can see the gap here. No wonder many physicians are no longer able to 
accept Medicare patients.
  In Texas recently, a survey of physicians indicated that only 58.1 
percent of physicians currently accept new Medicare patients because 
reimbursement rates are so low that they are below market and 
physicians cannot afford to accept those patients and those low 
Medicare reimbursement rates.
  Congress needs to step up with a permanent solution, not the kind of 
shameful temporary patches and fixes that require physicians and other 
health care providers to come hat in hand to Congress every 6 months or 
12 months or 18 months and that leave Medicare beneficiaries in doubt--
our seniors--about whether, in fact, Congress will do its duty.
  No one gets to conduct their business this way, other than the 
Congress. If you were in the private sector, a small or large business, 
you would be out of business or behind bars if you tried to operate 
your business the same way Congress has dealt with Medicare 
reimbursement rates.
  The Medicare trustees expect future costs to increase at a faster 
pace than both workers' earnings and the economy overall. As a matter 
of fact, the Medicare Hospital Insurance Fund will be exhausted by 
2019, and Part B premiums will have to increase rapidly to match 
expected expenditure growth. The Medicare trustees have warned Congress 
more than once to act, cautioning that the sooner the solutions are 
enacted, the more flexible and gradual they can be.
  Mr. President, Medicare is a ticking time bomb. Today, Congress 
should be all about debating and preserving Medicare. Instead, we have 
been presented a bill that turns a blind eye to this smoldering powder 
keg of long-term Medicare problems and the terribly flawed physician 
payment system. Rather than real reform, the majority party--the 
Democratically controlled Senate--has presented us with a bill that 
prolongs damaging and rigid price controls, sets up increased premiums 
and increased taxes, abandons some private sector options, and keeps 
Medicare on the path toward more health care rationing.
  Why would anyone be proud of this? The distinguished Senator from 
Michigan was saying that all they needed is one more vote to pass this 
partisan bill. Why would anyone be proud of this temporary fix, these 
price controls, along with submarket reimbursement rates, so that while 
we make the promise of Medicare coverage, the actuality of access is 
diminishing with each day?
  This partisan bill bypassed not only the minority in the Senate, it 
bypassed the Senate Finance Committee as well. Now we are told by the 
majority leader that he will refuse the opportunity to offer any 
amendments when the bill comes to the floor. The Democratic-controlled 
majority has not held one hearing or introduced one piece of 
legislation in the last 6 months that begins to address the long-term 
problems.
  Mr. President, I intend to offer a bill that will begin the process 
of reform and permanently eliminate the periodic cuts that are almost 
never allowed to go into effect. I think seniors and physicians and the 
American people deserve explanations and answers, and ultimately 
solutions, rather than more posturing and just kicking the can down the 
road.

  It is worth taking a few minutes to recall how we got here in the 
first place.
  In 1997, Congress was struggling with rising costs under Medicare and 
passed the Balanced Budget Act, which established something called the 
sustainable growth rate, or a formula which was intended to serve as a 
restraint on Medicare spending. Thus, the Federal Government instituted 
arbitrary price controls in an effort to reduce Medicare spending. What 
was the result? Well, the SGR--the sustainable growth rate--formula and 
arbitrary price controls have reduced access to quality care for 
beneficiaries.
  While the first 2 years after implementation the SGR resulted in 
positive updates for physician payments, decreases in payments have 
been required every year since 2002. But what has been the experience 
of Congress? This chart indicates that except for the first year, in 
2002, Congress has acted to reverse the cuts that have come with a 
temporary patch, and temporary fix after temporary fix. In fact, I 
think one could be forgiven for wondering whether Congress ever 
intended these cuts to take effect in the first place.
  Thank goodness we haven't because continuing to cut into the muscle 
and

[[Page S6424]]

then into the bone of the Medicare system means that the promise of 
Medicare coverage is a hollow one indeed for patients, for seniors, who 
are increasingly having a very difficult time finding physicians who 
can accept Medicare rates because they are so low.
  As you can see from this chart, not only has Congress, except for 
2002, not allowed these cuts to go into effect based on temporary 
patches, it has actually provided a very modest update in most years, 
except for 2007, when it just got back to zero. But the fact is, 
Congress never really intended or was never prepared to allow these 
cuts to go into effect. Most of the time, if you look for how Congress 
has attempted to ``pay for'' or find revenue to offset this reversal of 
these cuts, all it amounts to is budgetary gimmicks and games.
  As the American Medical Association has noted, ``every temporary 
intervention has increased the cost of a permanent solution.'' Thus, 
seniors and physicians find themselves coming back to Congress every 6 
months or every 18 months hat in hand seeking to prevent these cuts 
with the kind of histrionics that we see on the Senate floor today and 
that we saw by the majority leader just 2 weeks ago after the failed 
cloture vote--not a serious discussion of public policy but, rather, a 
political action designed to gain partisan advantage.
  At this point, to repeal the SGR formula created by Congress will 
cost an estimated $250 billion or more. That is a big number, and a 
major reason Congress has been unable to pass, or more likely unwilling 
to even debate, a long-term solution. While many of my colleagues have 
spoken at great length about their grandiose plans to reform the 
entirety of America's health care system, they seem to whistle past the 
Medicare graveyard.
  We can and we must do better. What good is Medicare if there is no 
access to coverage? Even with reversing the Draconian cuts in 
reimbursement, as I said, many doctors refuse to even see patients with 
Medicare because the payments are so low. Yet Congress is seen patting 
itself on the back saying: Didn't we do a good job? Only to have more 
and more seniors unable to find doctors willing to accept Medicare 
payments.
  Physician reimbursement cuts have been looming over the heads of 
seniors and physicians for years. Yet Congress repeatedly puts off 
until tomorrow what desperately needs to be done today.
  What does the bill before use to pay for reversing these cuts for 18 
months? Well, it undermines the one private sector alternative to 
traditional Medicare--Medicare Advantage--currently subscribed to by 
about 450,000 Texas seniors, leading to less choices, fewer services, 
and, yes, more government control.
  We have a choice. Do we pass the hot potato once again, praying that 
we are not the ones who get burned, or do we stand up, do the 
responsible thing, and actually take decisive action by reforming the 
broken SGR formula for Medicare reimbursement?
  While some in Congress seem determined to have the Government control 
all health care decisions, competition in the private sector holds real 
promise for the future of health care, and we do not have to look very 
far to find the proof. All we have to do is look at Medicare Part D, 
the prescription drug program that we passed a few short years ago.
  The Congressional Budget Office recently released a report showing 
how effective Part D has been in lowering drug prices for seniors. This 
year, Part D expenses will be almost half that of the original 
projections 2 years ago. Competition by private companies that provide 
benefits for seniors under Medicare Part D has actually created about 
$40 billion in savings this year. What's more, Part D will be returning 
roughly $4 billion this year in unused funds due to cheaper than 
expected drug purchases.
  Still, with the resounding success of Medicare Part D and the 
competition we should look to as a model, not one to be discarded or 
gutted or cannibalized in an effort to pay for this temporary patch, 
many of my colleagues want to give up on the private sector 
alternatives to traditional Medicare. Competition created by programs 
such as Medicare Advantage has the potential to save more money in the 
long run and to provide more choices and better quality services to 
Medicare beneficiaries.
  I would be the first one to say that Medicare Advantage is far from 
perfect. As a matter of fact, I have heard from many of my constituent 
physicians who have complaints about the way Medicare Advantage is run. 
But it would be a terrible mistake to gut it. We ought to fix it, not 
gut it.
  Rather than abandoning the principles of the benefits of competition 
in health care, we should work to make it better. With the results of 
Medicare Part D as an example, we should work to increase the role of 
nongovernment entities in lowering costs and increasing access and 
affordability of health care.
  These are only a few of the reasons why, over 3 months ago, in 
anticipation of the looming physician payment cuts set for July 1, I 
introduced legislation that solves this problem permanently. This 
legislation I called Ensuring the Future Physician Workforce Act of 
2008. It provides positive reimbursement updates for providers, it 
eliminates the ineffectual expenditure cap, and increases incentives 
for physician data reporting. At the same time, this bill facilitates 
adoption of health information technology by addressing costs and 
legislative barriers; it educates and empowers physicians and 
beneficiaries of Medicare spending and benefits usage, and studies ways 
to realign the way that Medicare pays for health care.
  My bill does not mandate whether physician payments should be based 
on utilization, performance, care coordination or any other 
methodology, but it does start to lay down a new path toward reform, 
innovation, and restoration of the eroded physician-patient 
relationship. It does say the providers and beneficiaries should not be 
the ones to be punished by Congress's failure to act. We have to decide 
now.
  Mr. President, I ask unanimous consent for 3 additional minutes to 
speak.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CORNYN. Mr. President, we have to decide now whether Medicare is 
worth protecting or whether political gamesmanship and partisan 
politics are going to take over. While it is costly to fix Medicare and 
the SGR, stalling will be far more expensive. So while some of my 
colleagues on the other side of the aisle may be content with another 
shortsighted, short-term fix, I suggest we debate and pass a bipartisan 
solution that will keep the promise of Medicare for seniors but also 
make sure there will be access to that coverage by providing fair 
compensation for physicians. Why should we, and why should they, settle 
for less?
  I yield the remainder of my time.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Mr. President, title II of the bill before us, which 
amends the Foreign Surveillance Intelligence Act, would authorize 
retroactive immunity for telecommunications companies that collected 
intelligence information inside the United States in defiance of the 
clear requirements of the Foreign Surveillance Intelligence Act as it 
was then on the books.
  The argument has been made that we must provide such immunity because 
these telecommunications companies responded to requests from the 
Government in a time of great uncertainty, after the events of 
September 11, 2001. I have some sympathy for their situation, but I 
also have sympathy for innocent Americans who may have had their 
privacy rights violated as a result of illegal actions taken by 
telecommunications companies at the behest of an administration that 
has all too frequently tried to place itself above the law.
  The bill before us makes no effort to reconcile these competing 
interests. Instead, it requires the dismissal of all civil suits 
against telecommunications companies that may have illegally disclosed 
confidential communications of their customers at the behest of U.S. 
Government officials. Dismissal would also be required even if the 
disclosure violated the constitutional rights of innocent U.S. citizens 
whose confidential communications were illegally disclosed.
  The so-called judicial review authorized in this bill is totally 
unsatisfactory. Under title II of the bill, the FISA Court would be 
permitted to review these cases only to determine

[[Page S6425]]

whether the Attorney General or the head of an element of the 
intelligence community told telecommunications companies that the 
Government request had been authorized by the President and 
``determined to be lawful,''--presumably determined by anybody--even if 
nobody could reasonably have believed that the request actually was 
lawful. A judicial review that is limited to determining whether the 
administration claimed that its actions were legal is a sham review 
that provides no justice at all. Of course the administration claimed 
its actions were legal. Indeed, the Intelligence Committee report on 
this bill specifically states that the administration's letters 
requesting assistance from telecommunications companies made the claims 
that they were legal.
  I do not believe this congressional grant of retroactive immunity is 
fair. I do not believe it is wise. And I do not believe it is 
necessary.
  Retroactive immunity is not fair because it leaves innocent American 
citizens who may have been harmed by the unlawful or unconstitutional 
conduct of telecommunications companies at the behest of the 
administration without any legal remedy. It is hard to understand how 
the Attorney General can claim, as he does in a letter dated July 7, 
2008, that this is a ``fair and just result.''
  Those who have been harmed are not likely to have any recourse 
against the Government officials who asked telecommunications companies 
to disclose the private information of their customers because the 
Government officials enjoy qualified immunity for actions taken in 
their official capacity. These officials do not even have the burden of 
demonstrating that their actions were legal and constitutional to be 
immune from suit.
  Nor is retroactive immunity wise, because it sets a dangerous 
precedent of retroactively eliminating rights of U.S. citizens and 
precludes any judicial review of their claim. If we act here to 
immunize private parties who cooperated with executive branch officials 
in a program that appears to have been illegal on its face, our laws 
and their prohibitions will be less of a deterrent to illegal 
activities in the future. This would be a terrible precedent if a 
future administration is as inclined as the current one to place itself 
above the law.
  Finally, retroactive immunity is not necessary for the intelligence 
community to collect intelligence against terrorists using newly 
available technology. They have the right to use newly available 
technology--``they'' being the intelligence community--under title I of 
this bill. Title I provides that the Attorney General and the Director 
of National Intelligence direct telecommunications companies to assist 
in collection programs, and these directives are enforceable by court 
order as has been the case since the Protect America Act was adopted 
last August.
  We are collecting needed intelligence information today pursuant to 
that act, without any retroactive immunity for telecommunications 
companies, and there is no reason why we cannot continue to do so in 
the future under title I of the bill without the retroactive immunity 
provided in title II.
  The administration argues that if we do not provide retroactive 
immunity to telecommunications providers, ``companies in the future may 
be less willing to assist the Government.''
  But let's be clear what we are talking about here. Telecommunications 
companies have prospective immunity if they assist the Government in a 
manner that is authorized by this bill. Moreover, they can be compelled 
to do so under the bill, as has also been the case since the enactment 
of the Protect America Act. What companies might be less willing to do 
is to assist the Government in intelligence gathering efforts that are 
illegal. And what is wrong with that? Do we want to encourage companies 
to assist a future administration in unlawful intelligence-gathering 
efforts?
  Nor is retroactive immunity necessary to protect telecommunications 
companies that acted in good-faith reliance on representations from 
administration officials. There are other ways in which we can 
recognize their equity without insulating misconduct from judicial 
review and without denying any relief to innocent U.S. citizens who may 
have been harmed.
  For example, we can safeguard these interests by substituting the 
United States as the defendant in cases against telecommunications 
companies, or by requiring that the United States indemnify 
telecommunications companies for any damages in such cases. In either 
case, we could cap damages to make sure that the taxpayers are not 
required to pay an unreasonable burden as a result of unlawful 
decisions by the administration. We could also provide a measure of 
protection to American citizens whose rights have been violated by 
limiting the immunity provided to those cases where the 
telecommunications companies demonstrate that they had a reasonable 
basis for a good-faith belief that the assistance they were providing 
was lawful, a requirement that is notably absent from the bill before 
us.
  The Bingaman amendment is a very modest proposal which does not 
decide the retroactive immunity question or remove the retroactive 
immunity provision from the bill. It leaves the retroactive immunity 
provision in the bill but postpones the effective date of that immunity 
until 90 days after Congress receives the comprehensive inspector 
general report required by the bill.
  This amendment, the Bingaman amendment, does not have any effect at 
all on title I of the bill, which allows the intelligence community to 
collect information using newly available technology. The Bingaman 
amendment allows title I to go into law without change and without 
delay. The inspector general report may give us important information 
that helps us understand the extent to which the administration's 
actions were illegal or unconstitutional, and the extent to which 
innocent U.S. citizens may have been damaged by these actions. The 
delayed effective date in the Bingaman amendment would give us the 
opportunity to consider this information, not just assurances of 
administration officials, before retroactive immunity goes into effect 
and cases are dismissed. That information required to be provided to us 
by the inspector general is surely relevant to this issue.
  If we adopt the Bingaman amendment, we will have highly relevant 
information about the extent to which illegal or unconstitutional 
actions were taken against innocent American citizens and the extent to 
which those citizens were harmed by those actions. The Bingaman 
amendment gives us the opportunity to take this additional information 
into account before retroactive immunity takes effect, while at the 
same time preventing any harm to telecommunications companies by 
staying any litigation against them until the information becomes 
available.
  We can pass this bill and we can ensure that the intelligence 
community continues to have the authority to collect information on 
suspected terrorists without surrendering the rights of Americans whose 
privacy may have been violated.
  I support the Bingaman amendment as a way to introduce a bit of 
balance into the process of protecting the privacy of innocent 
Americans while recognizing some equity in the position of the 
telecommunications companies.
  I yield the floor and yield back my time.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.
  Mr. CHAMBLISS. Mr. President, I rise today to discuss H.R. 6304, the 
FISA Amendments Act. I am disappointed that after so many months of 
negotiations, after the Senate passed similar legislation in February, 
and after the House passed this bill by 293-129, the Senate is stalling 
enactment of necessary changes to FISA by debating amendments which 
would gut this bill of a valuable provision liability relief for our 
telecommunications carriers.
  The three amendments we debate today would singularly undermine 
months of hard work by the Senate Intelligence Committee and the House 
to reach an agreement on this bill. In particular, Senators Dodd and 
Feingold have offered an amendment striking title II of the bill which 
provides liability relief to those telecommunication carriers who 
currently face lawsuits for their alleged assistance to the Government 
after September 11. Senator Specter has offered an amendment that would 
require the courts to determine the constitutional merits of the

[[Page S6426]]

President's terrorist surveillance program, TSP in cases against 
private parties. And, Senator Bingaman has offered an amendment which 
would needlessly delay liability relief for a review of the President's 
TSP to be completed, which Members of this body have already done. I do 
not support any of these amendments.
  Over 40 lawsuits have been filed against our communications providers 
alleging statutory and constitutional violations, seeking billions of 
dollars in damages. These suits are not intended to bring justice to 
any individual; rather, they are a fishing expedition. The lawyers who 
brought these cases hope to use our court system to discover some claim 
or discover some standing for their clients; yet none of the plaintiffs 
in any of these lawsuits have any evidence to illustrate that they were 
subjects of the President's TSP or that they suffered any harm. As a 
result, I wonder how a court could uphold that any of these individuals 
even have a claim to raise. The President has stated repeatedly that in 
the wake of 9/11, the TSP intercepted communications of suspected 
terrorists, including those communicating with individuals inside the 
U.S. or whose communications pass through the U.S. To date, this 
program has been reviewed by numerous Inspectors General, the 
Department of Justice, our intelligence community and Congress. Do we 
need to add the courts to the list? The Foreign Intelligence 
Surveillance Court is already on that list.
  As a member of the Select Committee on Intelligence, I had access to 
the classified documents, intelligence, and legal memorandum, and heard 
testimony, related to the President's TSP program. After careful 
review, as stated in the committee report accompanying the Senate's 
FISA 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 correspondence sent to the electronic communication service 
providers stating that the activities requested were authorized by the 
President and determined by the Attorney General to be lawful. The 
committee concluded that granting civil 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 and others in the private sector. It was 
clear in discussions within the committee that most of us were 
concerned about the harm the Government could face if it cannot rely on 
the private sector. Without this provision, the harm faced by the 
Government will become a reality.
  I cannot understate the importance of this assistance, not only for 
intelligence purposes but for law enforcement too. 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 deny those 
who assist the Government the liability relief they need, and deserve, 
or to delay its implementation.
  Senator Specter's amendment asks the courts to review and determine 
the constitutionality of the President's TSP before dismissing any 
lawsuit against the telecommunication carriers. This amendment not only 
severely undermines the findings of this body, but also calls into 
question the activities of the other political branch in our 
Government, the executive. The courts would be granted access to highly 
sensitive, executive branch intelligence activities, which they are not 
experienced in, and be required to make a legal determination on the 
constitutional authorities of the President. The courts usually avoid 
these types of decisions, and rightfully so. Moreover, the courts 
should not issue mere advisory opinions, yet this amendment requires 
the court to determine the constitutionality of a Presidential program 
when the government is not a party to these actions. Even with the 
passage of this bill the government or a Government official can still 
be sued for a TSP violation. If a plaintiff brought an action against 
the Government, the courts could then determine the constitutionality 
of the program; however, Congress should not hold America's private 
companies hostage until the courts review what Congress and others 
already have found. Further, regardless of the Government's program, 
our companies should not be held liable for assistance that they were 
assured was lawful. Let the Government carry the burden for its own 
actions.
  Similarly, Senator Bingaman's amendment would stay all of the 
lawsuits brought against the communications carriers until the 
inspectors general conducted a review of the TSP. Various inspectors 
general have reviewed already the President's program. The review 
called for by the FISA Amendments Act is nothing new. I see no reason 
to delay liability relief like this. The scope of the IGs' review 
included by this legislation is not intended to be a legal 
determination of the TSP. Instead, the FISA Amendments Act calls for 
the IGs to review each respective agency's access to the legal reviews 
of the program and grants the IGs access to communications with the 
private sector related to the program. Any review conducted pursuant to 
this legislation will have no impact on the lawsuits brought against 
private corporations. The only thing this amendment does is hold the 
cases up in court for over a year while the reviews are completed. This 
is purely political and Congress should not play games with our 
national security, or even when U.S. companies and their customers' 
money are involved.
  Finally, Senators Dodd and Feingold offer the same amendment that 
they did in February, to completely strike Title II of the bill which 
provides this liability relief. This same amendment failed to pass the 
Senate in February by 31-67. As I have stated, I support Title II, and 
believe the Senate has already shown its lack of support for this 
amendment.
  Mr. President, I oppose all three amendments offered to the FISA 
Amendments Act and urge my colleagues to do the same. It is time for 
the Senate to stop delaying enactment of a FISA bill and to reject 
these amendments which would gut the bill of much needed relief for our 
telecommunications providers.
  The PRESIDING OFFICER. The majority leader.
  Mr. REID. Mr. President, I will use leader time for my presentation.
  The PRESIDING OFFICER. The leader is recognized.
  Mr. REID. Mr. President, the Senate will soon vote on the FISA bill, 
which represents a final result of negotiations among the White House 
and Democrats and Republicans in Congress.
  I opposed the version originally passed by the Senate. Although 
improvements have been made in the version now before this body, the 
legislation continues to contain provisions that will lead to immunity 
to the telecommunications companies that cooperated with the Bush 
administration's warrantless wiretapping program. For that reason, I 
have no choice but to vote no.
  Having said that, I am pleased that President Bush and the 
congressional Republicans finally agreed to negotiate a better bill. 
For months, the President insisted it was his way or the highway. The 
White House refused to come to the negotiating table, repeatedly 
demanding that the House simply pass the Senate's bill. I commend our 
Democratic colleagues in the House for standing up to insist on more 
protections for the privacy of innocent Americans.
  This debate has shown once again that protecting the American people 
is not a Democratic or Republican issue. Democrats want to provide our 
intelligence professionals all the tools they need to fight terrorism. 
We must also protect the privacy of law-abiding Americans and protect 
against abuses of our Constitution.
  We all know that in the darkest corners of the Earth lie evil people 
who seek to harm our country and our people. We all agree on the need 
to monitor the communications of terrorists in order to protect the 
American people. But despite what the President insists, America is 
strengthened by our

[[Page S6427]]

reverence for our law and our Constitution.
  I am grateful for the efforts of congressional leaders who have 
worked tirelessly, and at times it may have seemed endlessly, to craft 
this compromise bill. Senators Feingold and Dodd deserve special 
recognition for reminding us that our Constitution must always come 
first. I have to compliment Senator Rockefeller--a very difficult 
assignment he has, being the chairman of this most important committee, 
but he does it with great dignity.
  This version of this legislation is better than the bill the Senate 
passed in February and better than the flawed Protect America Act 
signed by the President last summer.
  This legislation now includes Senator Feinstein's amendment to 
reaffirm FISA as the exclusive means by which the executive branch may 
collect surveillance. This provision is Congress's direct response to 
the strained argument of President Bush's lawyers that Congress meant 
to repeal the very clear and specific requirements of FISA when 
Congress passed the authorization for the use of military force in 
Afghanistan. Congress flatly rejects that argument as having no basis 
in fact or in law.
  This bill includes Senator Leahy's important amendment requiring a 
comprehensive IG review of the President's program as well as greater 
judicial supervision.
  This bill requires the U.S. Attorney General to develop guidelines to 
ensure compliance with the fourth amendment and prevent reverse 
targeting; that is, targeting someone abroad when the real purpose is 
to acquire the communications of a person here in the United States.
  This bill provides for increased congressional oversight, requiring 
extensive reporting to the Judiciary Committee and Intelligence 
Committees about the implementation of the new provisions and their 
impact on U.S. persons.
  This bill rejects changes to the definition of electronic 
surveillance, a change sought by the administration that could have had 
unforeseen and far-reaching consequences for FISA's protections for the 
privacy of law-abiding Americans.
  This bill ensures that the law expires in 4 years, requiring the next 
President and Congress to evaluate its effectiveness.
  Let me in passing say that Senator Leahy, the chairman of the 
Judiciary Committee, worked hard on this. As you know, there was a 
joint referral. Again, Senator Leahy worked, as he does on all pieces 
of legislation, tirelessly and for the good of this country.
  These changes I have mentioned add checks on the expansive executive 
powers contained in the original bill. But, as I said, despite these 
improvements, this legislation certainly needs more work. That is why I 
oppose it and why I am committed to working with the new President to 
improve it.
  Congress should not wait until the 2012 expiration to improve this 
legislation. I will work to ensure that Congress revisits FISA well 
before 2012, informed by the oversight that will be conducted in the 
coming months by the Judiciary Committee and the Intelligence 
Committees and by the reports of the inspectors general. Next year, for 
example, Congress will be required to revisit a number of provisions of 
the PATRIOT Act. That may provide a suitable occasion to review the 
related issues in this FISA legislation.
  While the bill before us does include some improvements to title I's 
intelligence collection procedures, I oppose totally title II. I think 
it is just way out of line.
  Title II establishes a process where the likely outcome is immunity 
to the telecommunications carriers that participated in the President's 
illegal warrantless wiretapping program. That is what it was. The bill 
does not provide any protection for the Government officials who 
designed and authorized the program. That is good. It also, of course, 
does not preclude a challenge to the constitutionality of the 
legislation in Federal district court.
  Nobody should read title II of this bill as a judgment on the 
legality of the President's warrantless wiretapping program because it 
is not. Nobody should expect that a grant of immunity is anything other 
than a one-time action. This was made clear in the Senate Intelligence 
Committee report that accompanied an earlier version of this 
legislation. Service providers should clearly understand that no grant 
of immunity will be forthcoming if they cooperate with future 
Government requests that do not comply with the procedures outlined in 
this legislation.
  The current lawsuits against the telecom companies seek 
accountability.
  These lawsuits could have been a vehicle to achieve a public 
accounting of the President's illegal warrantless wiretapping program. 
That is why it is important that the Democratic negotiators forced the 
President to submit his program to a comprehensive inspectors general 
review. That review should finally provide a full airing of this entire 
sorry episode. The bill requires the inspectors general of the relevant 
agencies to complete a comprehensive review of the President's 
surveillance program within a year. By the time that report is issued, 
President Bush will have left office. Although his term will have come 
to an end, the work of uncovering this administration's abuses of power 
is just beginning. Future Presidents, future Congresses, and the 
American people will learn from President Bush's abuses of power in a 
positive fashion.
  The debate on this FISA legislation may be nearing an end, but the 
history books are yet to be written. Throughout this fight, a small 
number of lonely voices insisted that there is no contradiction between 
liberty and security. As new facts have become known, their numbers 
have swelled, and the voices have grown louder. I am confident that 
when it is all known, the condemnation of President Bush's blatant 
disregard for the Constitution will be deafening. I hope that because 
those voices refused to be silenced, the next President and all future 
Presidents will not waiver from a path that protects the American 
people without compromising our core American values based upon our 
Constitution.
  The PRESIDING OFFICER. The Senator from Connecticut.


                           Amendment No. 5064

                     (Purpose: To strike title II)

  Mr. DODD. Mr. President, before the Majority Leader leaves the floor, 
I thank him personally but also collectively for his leadership on this 
issue. This is an act of courage on his behalf, given the arguments 
made by the other side, and his leadership on this created the 
possibility for us to offer this amendment to strike title II. I share 
his thoughts. He expressed them very well. I wish to identify myself 
with them. This is not at all about questioning the need for security. 
We all understand that. This is a simple question. Should the telecom 
industry be granted immunity, without us being able to determine 
whether their actions are legal? It may come out that the courts 
determine they were legal. If so, we move forward. All we are asking is 
that the opportunity be given to determine the legality of their 
actions.
  The majority leader has made it clear why it is important. This is 
about the Constitution and the rule of law. It seems to me a very 
simple request and, as such, I ask unanimous consent to lay the pending 
amendment aside and call up amendment No. 5064.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from Connecticut [Mr. Dodd], for himself, Mr. 
     Feingold, Mr. Leahy, Mr. Reid, Mr. Harkin, Mrs. Boxer, Mr. 
     Sanders, Mr. Wyden, Mr. Kennedy, and Mr. Durbin, proposes an 
     amendment numbered 5064.

       Strike title II.

  Mr. DODD. Mr. President, it is very simple. Strike that section of 
the bill that grants immunity to a number of telecommunications 
companies that, for a period of roughly 5 or 6 years, literally 
vacuumed up phone conversations, faxes, e-mails, photographs, on a 
wholesale basis, of virtually every American citizen. The only reason 
it has come to a halt is because there was a whistleblower who 
identified the program. Otherwise the program would be ongoing. Again, 
none of us argue, at least I don't argue at all, about the importance 
of having the ability to get the cooperation of an industry that could 
help us identify those who would do us harm. That is not the debate.

[[Page S6428]]

  The debate is whether there is an appropriate means by which those 
warrants are sought before these telecom companies would begin to turn 
over the private conversations, e-mails, and communications of American 
citizens. That is what this debate is about. It is a simple debate on 
whether we keep this section of the bill or strike it out and allow the 
judicial branch, a coequal branch of Government, to determine whether 
the acts by the executive branch were constitutional and if they were 
they legal.
  If this amendment is not adopted, it will be a vote by the 
legislative body that determines whether they were legal. We are not 
competent or the appropriate constitutionally delegated body to perform 
that function. That is why we have three coequal branches of 
Government. The executive branch made this decision. We in the 
legislative branch have an obligation to insist that the judicial 
branch determine the legality of the actions taken.
  I wish to thank as well my colleague, Senator Feingold of Wisconsin, 
my lead cosponsor, but also to mention, if I may, Senator Leahy, who 
has been a stalwart on this effort and always a great crusader against 
those who would do harm to the rule of law. I also want to thank 
Senator Reid, the Majority Leader, and Senators Harkin, Boxer, Sanders, 
Wyden, Kennedy, Durbin, Kerry, and Clinton for their support for this 
amendment. I also thank, if I may, Jay Rockefeller, who chairs this 
committee. While I am highly critical of title II of the bill, I have 
great respect for him and the work he has tried to do in leading the 
Intelligence Committee on this difficult issue. While I still have 
major reservations about title I of this bill, the fact that title II 
still exists in this bill makes it impossible to be supportive of this 
legislation, if that is retained in the bill that we vote on tomorrow.
  For many Americans, the issue may seem a very difficult one to 
follow. It may seem like another squabble over a corporate lawsuit. But 
in reality, it is so much more than that. This is about choosing 
between the rule of law and the rule of men. You heard our colleague, 
Senator Levin, and the Majority Leader eloquently describe the 
situation as it presently exists.
  For more than 7 years, President Bush has demonstrated time and time 
again, unfortunately, that he neither respects the role of Congress nor 
does he apparently respect the rule of law on these matters. Today, we 
are considering legislation which will grant retroactive immunity to 
the telecommunications companies that are alleged to have handed over 
to this administration the personal information of virtually every 
American, every phone call, every e-mail, every fax, and every text 
message, and all without warrant.
  Some may argue that, in fact, the companies received documentation 
from the administration stating that the President authorized the 
wiretapping program and that, therefore, it is automatically legal. 
These advocates will argue that the mere existence of documentation 
justifies retroactive immunity; that because a document was received, 
companies should be retroactively exonerated from any wrongdoing. But 
as the Intelligence Committee has already made clear, we already know 
that the companies received some form of documentation with some sort 
of legal determination.
  But that logic is deeply flawed. Because the question is not whether 
the companies received a document from the White House. The question 
is, were those actions legal?
  It is a rather straightforward and surprisingly uncomplicated 
question. Did the companies break the law? Why did the administration 
not go to the FISA Court as they were required to do under the Foreign 
Intelligence Surveillance Act?
  Since 1978, that court has handled 18,748 warrants, and they have 
rejected 5 since 1978, in almost 30 years, according to a recent 
published report in the Washington Post. So the issue raised for me is, 
why didn't these companies go before that court to determine whether a 
warrant was justified? Why did they decide merely to rely on some 
letter or some documentation, none of which has ever been established 
as a legal justification for their actions?
  Either the companies complied with the law as it was at the time or 
they didn't. Either the companies and the President acted outside the 
rule of law or they followed it. Either the underlying program was 
legal or it was not. If we pass retroactive immunity, not a single one 
of these questions will ever be answered--ever. Because of this so-
called compromise, Federal judges' hands will be tied and the outcome 
of these cases will be predetermined. Retroactive immunity will be 
granted.
  So this is about finding out what exactly happened between these 
companies and the administration. It is about holding this 
administration to account for violating the rule of law and our 
Constitution. It is about reminding this administration that where law 
ends, tyranny begins. Those aren't my words, where the law ends, 
tyranny begins. Those words were spoken by the former British Prime 
Minister, Margaret Thatcher.
  It is time we say no more, no more trampling on our Constitution, no 
more excusing those who violate the rule of law. These are our 
principles. They have been around since the Magna Carta, even predating 
the Constitution. They are enduring. What they are not is temporary. 
And what we should not do at a time when our country is at risk is 
abandon them. That is what is at stake this evening and tomorrow when 
the vote occurs.

  Allowing retroactive immunity to go forward is, by its very nature, 
an abandonment of those principles. Similar to generations of American 
leaders before us, we too are confronted with a choice. Does America 
stand for all that is right with our world or do we retreat in fear? Do 
we stand for justice that secures America or do we act out of vengeance 
that weakens us?
  Whatever our political party, Republican or Democratic, we are all 
elected to ensure that this Nation adheres to the rule of law. That is 
our most fundamental obligation as Members of this great body, to 
uphold the rule of law--not as partisans but as patriots serving our 
Nation. The rule of law is not the province of any one political party 
or any particular Member of the Senate but is, rather, the province of 
every American who has been safer because of it.
  President Bush is right about one thing. The debate is about 
security. But not in the way he imagines. He believes we have to give 
up certain rights in order to be safer. This false dichotomy, this 
false choice that to be more secure, you must give up rights is a 
fundamentally flawed idea. In fact, the opposite is true. To be more 
secure, you must defend your rights.
  I believe the choice between moral authority and security is a false 
choice. I believe it is precisely when you stand up and protect your 
rights that you become stronger, not weaker. The damage done to our 
country on 9/11 was both tragic and stunning, but when you start 
diminishing the rights of your people, you compound that tragedy. You 
cannot protect America in the long run if you fail to protect the 
Constitution of the United States. It is that simple.
  As Dwight Eisenhower, who served our country as both President and as 
the leader of our Allied forces in Europe during World War II, said:

       The clearest way to show what the rule of law means to us 
     in everyday life is to recall what has happened when there is 
     no rule of law.

  That is why I believe history will judge this administration harshly 
for their disregard for our most cherished principles. If we do not 
change course and stand for our Constitution at this hour, for what is 
best for our country, for what we know is just and right, then history, 
I am confident, will most certainly decide that it was those of us in 
this body who bear equal responsibility for the President's decisions--
for it was we who looked the other way, time and time again.
  This is the moment. At long last, let us rise to it. Support the 
amendment I am offering on behalf of myself and the other Members I 
mentioned earlier. We must put a stop to this idea of retroactive 
immunity. It is time we stood for the rule of law. That is what is at 
stake. The FISA Courts were created specifically to strike the balance 
between a secure nation and a nation defending its rights. That is why 
the law has done so well for these past 30 years, amended many times, 
to keep pace with the changes of those who would do us great harm.

[[Page S6429]]

  At this very hour, in the wake of 9/11, to say we no longer care 
about that, that we will decide by a simple majority vote to grant 
retroactive immunity to companies who decided that a letter alone was 
enough legal authority for them to do what they did is wrong.
  I have pointed out before in lengthy debate, not every phone company 
participated in the President's warrantless wiretapping program. Not 
everyone did. There were those who stood up to the administration and 
said, without a warrant, without proper legal authority, we will not 
engage in the vacuuming up of the private information of American 
citizens. They should be recognized and celebrated for standing for the 
rule of law.
  For those who decided they were going to go the other way, let the 
courts decide whether that letter, that so-called documentation, was 
the legal authority that allowed them to do what they did for more than 
5 long years.
  Tomorrow we will vote around 11 o'clock on this amendment. I commend 
Senator Bingaman and Senator Specter. They have offered amendments as 
well dealing with other parts of this legislation for which I commend 
them. But I hope my colleagues, both Democrats and Republicans, would 
think long and hard about this moment. Senator Carl Levin of Michigan 
said something very important toward the conclusion of his remarks: 
That this in itself becomes a precedent, that some future 
administration, fearing they would not get permission from a FISA Court 
to engage in an activity that violated the privacy of our fellow 
citizens will no doubt use the vote tomorrow, if, in fact, those who 
are for retroactive immunity prevail. They will cite that act by this 
body as a legal justification for some future administration 
circumventing the FISA Courts in order to do exactly what was done in 
this case. It becomes a legal precedent.

  So there is a great deal at risk and at stake with this vote 
tomorrow. It is about the rule of law. It is not about whether you care 
about the security of our Nation. Every one of us cares deeply about 
that, and we want to do everything we can to thwart those who would do 
us great harm. This is about the simple issue of whether a court of law 
ought to determine whether these companies violated the Constitution. 
Did they or didn't they? If they did not, so be it. If they did, then 
those to whom they did harm ought to be compensated at what marginal or 
minimal level one would decide. But let the court decide this. Let's 
not decide it by a simple vote here and set the precedent that I think 
we would regret for years and years to come.
  With that, Mr. President, I yield the floor.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. BROWN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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