The FISA Amendments Act of 2008

FISA AMENDMENTS ACT OF 2007

The Acting President pro tempore: Under the previous order, the Senate will resume consideration of S. 2248, which the clerk will report.

The legislative clerk read as follows:

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

The Acting President pro tempore: The Senator from West Virginia is recognized.

Mr. Rockefeller: Madam President, the Senate now returns to the consideration of S. 2248, the FISA Amendments Act.

As I said in December when we debated the motion to proceed to this bill, I believe this legislation is critical to our Nation's security. That phrase is thrown around a lot--"our Nation's security." It does have meaning. To protect America from the panoply of threats we face around the world, we must know what our enemies are planning and what they are doing. We get that information through our intelligence agencies, and one of the most useful sources for them is communications intelligence.

The Foreign Intelligence Surveillance Act, or FISA, gives the Government the authority, with court approval, to collect communications intelligence inside the United States. Unfortunately, the law has not kept pace with the incredible advances in telecommunications technology of the last 30 years.

As this debate proceeds over these coming days, it is important for all Members to understand why FISA exists and why it is necessary for us to update it. The Congress passed FISA to protect Americans inside the United States from inappropriate eavesdropping by the Government. The FISA statute created a system that allowed the Government to go to a special court and show probable cause that someone inside the United States was an agent of a foreign power. If it agreed, if the court agreed, the court then issued an order allowing the Government to collect the intelligence.

Over time, the flow of global communications changed. The nature of these communications changed. The system of fiber optic cables carrying international communications grew, and wireless technology began to dominate our domestic system. This was a marked change from the communications architecture that existed in 1978, when FISA was started, when local calls were transmitted over a wire and international ones usually went via satellite.

As technology changed and America became the hub for international communication, our intelligence agencies were presented with collection opportunities that were never envisioned--never even thought about in 1978. But because of the way that FISA was drafted, they were unable to take advantage of the new opportunities to collect significant intelligence inside the United States against targets located overseas.

After September 11, 2001, the President chose to deal with the problem unilaterally and created a warrantless surveillance program that relied on, to my mind, questionable legal justification. I think that was a mistake. I believe the President should have sought, and would have received from Congress, the necessary changes to FISA to accommodate the international communications he wished and needed to target.

The public disclosure of the warrantless program ultimately led the President to seek approval from the FISA Court and then to seek additional authority from the Congress, which is where we are.

Our first attempt to address this issue was the Protect America Act passed last August. That legislation allowed our intelligence community to undertake the collection needed to monitor terrorist communications, but the PAA, as we shall call it, is flawed legislation that does not achieve the balance between protecting security and preserving our civil liberties, which is so essential. It provided an expanse of new authority to collect intelligence inside the United States, with little court involvement or oversight from the Congress.

But we had the foresight to include in the PAA--the Protect America Act--a 6-month sunset. That 6-month period allowed us the time we needed to craft a bill that does achieve this important balance: security and civil liberties. It gives the intelligence community the authority it needs to keep us safe, and it puts in place the safeguards needed to protect America's liberties. That is the bill the Senate is now considering; i.e., S. 2248.

This bill was reported to the Senate last October on a strong bipartisan vote under Senator Bond and myself, Vice Chairman Bond and myself, by a vote of 13 to 2. Vice Chairman Bond and I worked hard to craft a bill that would garnish support from both sides of the aisle and that would have the support of the administration, leaders of the intelligence community and, most importantly, would achieve our twin goals of protecting the security and privacy of Americans. I should say at this point we went to great lengths to check all our bases in this process. We didn't do this in a cocoon and we didn't do it in a partisan way. We reached out to the experts, whether they were inside the administration or outside the administration. We wanted to do it so we could make this legislation as effective as possible.

But, as with any legislation, this bill is not perfect. I have welcomed the input from others as we have moved forward. On this point, I must particularly acknowledge the work of the Senate Judiciary Committee. The Judiciary and Intelligence Committees shared jurisdiction over FISA. The Judiciary Committee also happens to be led by two individuals with considerable knowledge and experience with these issues from the perspective of both committees. It may not be known to all, but Senator Pat Leahy served as vice chairman of the Intelligence Committee in the mid-1980s, and Senator Specter served as chairman in the mid-1990s. I appreciate the time and thought they have put into this legislation.

The Judiciary Committee considered the Intelligence Committee bill on sequential referral and has reported a proposed amendment to our bill. That amendment is now the pending amendment. The Intelligence Committee bill and the Judiciary Committee amendment take a similar approach to addressing the underlying problems with FISA--not a huge difference. The Judiciary Committee included several provisions that I think further improve the already robust protections for privacy contained in S. 2248. We were enriched by working with them.

I intend to support amendments to incorporate many of these changes into the underlying bill, which is the Intelligence Committee bill, and even though I cannot support everything in the Judiciary Committee substitute amendment, nevertheless, there is very good material there.

Before I discuss possible amendments, let me take a few minutes to walk through the bill before us today. I apologize, but I think this is necessary as we begin this debate on what is a highly complicated and somewhat arcane subject.

In crafting this legislation, the Intelligence Committee set out to accomplish four main goals.

First, we wanted to ensure that activities authorized by this bill are only directed at persons outside the United States. The bill requires the FISA Court to approve targeting procedures designed to accurately make the determination of whether someone is outside the United States. For individuals inside the United States, the existing procedures under FISA continue to apply. Individual court orders, FISA orders, are still required.

Secondly, our bill improves the protection of information from or about a U.S. person. Unlike the Protect America Act, this bill provides for court review of the so-called minimization procedures. These are procedures used to shield information about Americans who may be overheard or mentioned in the conversation of foreign targets.

Court review of these procedures is central to the protection afforded under FISA. But the FISA Court's role was left out of the Protect America Act.

Third, the bill includes a new protection for U.S. citizens outside the United States. The Intelligence Committee rejects the proposition that Americans lose their privacy rights because they travel or work elsewhere in the world.

Under current law, the intelligence community can target U.S. citizens outside the U.S. solely on the authority of the Attorney General. Our bill requires an order of the FISA Court before an American can be targeted, regardless of the American's location. This is a concept that both committees endorsed, and it enjoys bipartisan support. Director of National Intelligence Mike McConnell also endorsed this in testimony before the Intelligence Committee. This is an area of law, however, that requires careful attention to avoid, as the Director described, "unintended consequences."

Both the Intelligence Committee and Judiciary Committee approaches need further refinement. Therefore, I believe we have reached an agreement on a bipartisan amendment that would reconcile the approaches of the two committees and resolve the concerns of the administration. Vice Chairman Bond and I will offer this modification as part of the managers' amendment.

Finally, the Intelligence Committee bill adds significant new oversight authority to collect inside the United States against foreign targets. The new oversight will be conducted by all three branches of Government.

The bill includes a series of annual reports to Congress on the authorized collection, including instances of noncompliance; inspector general reviews by the Justice Department and the Intelligence Committee; and FISA Court review and approval of acquisition and minimization procedures.

Beyond these steps to update FISA, the other major component of the bill passed by the Intelligence Committee--and, unfortunately, not included in the Judiciary Committee amendment--is liability relief for companies that may have helped the Government collect critical intelligence after the September 11 terrorist attacks.

I understand this is controversial. But everybody should know that this is an issue the Intelligence Committee has considered very carefully. We had a number of hearings on this subject. In reviewing the record of correspondence from the administration to these companies, I and most members of the committee became convinced that companies acted in good faith. They relied on the legal conclusion of the Nation's most senior law enforcement official, and they provided assistance because they wanted to help stop terrorist attacks.

The companies received letters, and I tried very hard to convince Steve Hadley--Director McConnell very much approved of this--to make it possible for every Member of the Senate to have those letters that the companies received from the National Security Agency, so Members could understand that this was not some kind of a game, that this wasn't "wordsmithing." What these letters stated was that the companies' assistance was "required," that the requested assistance was based on an order of the President, and that the Attorney General had certified the legality of the order. And then the NSA Director, as I say, required, compelled these companies--there were various uses of words, but they were all very firm, leaving no wiggle room--to comply. And they did. They did it because they were told to do so by the highest authorities in the land. They did so because--I believe it is possible to say this--there are a lot of big corporations that are very patriotic.

Private companies should be allowed to rely on this assertion from these high officials. They should be allowed to do that. Our longstanding legal structure is specifically designed not to force a private company to second guess the Government in these circumstances. I know many colleagues on the other side believe that the President acted with his constitutional authority when he established this program. I believe the legal foundation for this program was questionable at best and was part of an overarching legal framework that sought to dramatically alter the balance of power between the branches of power in favor of the executive. But that is a dispute that needs to be settled between the President, the Congress, and the courts. We should not allow private companies who simply wanted to come to the aid of their country, or were required or compelled to do so, to be caught in the crossfire of this disagreement.

A bipartisan consensus of the Intelligence Committee supported the narrowly drawn liability relief included in the bill. We did not include the open-ended immunity sought by the administration that would have prevented suits against the Government, or Government officials who knowingly broke the law.

The committee's liability relief provision applies only to companies who may have participated in the warrantless surveillance program after September 11, 2001, until January 2007, when the whole matter was placed under FISA Court authority. That is why there can be no question about prospective; it is retrospective.

The question of whether the President had the authority to launch the warrantless surveillance program leads me to the issue of exclusivity. This is whether FISA is the exclusive means by which the President may authorize the surveillance of Americans for foreign intelligence purposes.

The President's justification for creating the warrantless surveillance program relied in part on a claim that the legislation authorizing the use of military force after 9/11 somehow gave him the authority to ignore the FISA statute. I don't buy this argument.

The President also claims he has the authority, as Commander in Chief, to approve surveillance even when statutes of this coequal branch of Government would prohibit him specifically from so doing. No act of Congress by itself can finally resolve the debate between Presidential and congressional authority.

We can make it clear, however, which statutes authorize the use of electronic surveillance. This is not academic. It is important to clarify this point for the future. When the Nation next faces a military emergency, we don't want Congress to hesitate while it debates whether its authorization to use force will have unintended consequences, such as authorizing the President to spy on Americans.

To avoid this situation, both the Intelligence and Judiciary Committees included provisions intended to clarify which statutes constitute the exclusive means for conducting electronic surveillance. I have worked with Senator Feinstein, who serves on both committees, and Senator Leahy on an amendment that will bridge the differences between the two bills and will settle this issue in a way that I think clarifies the statute.

Another important provision is the sunset. This bill provides a significant new authority, and it is essential--because it is a significant new authority in what is still emerging in the collection of intelligence--that we carefully monitor the implementation of this authority and revisit it to ensure it is working as we now envision.

The Intelligence Committee bill includes a 6-year sunset. The Judiciary Committee has a 4-year sunset. I will join with Senator Cardin and others in support of an amendment to incorporate the Judiciary Committee 4-year sunset into the underlying bill. Four years will ensure that the decision on permanency is made during the next Presidential term.

As we proceed with this debate, every Member should have the same two goals we had in the Intelligence Committee: providing our intelligence professionals with the tools they need to keep us safe, and establishing a system with sufficient safeguards to ensure that Americans' civil liberties are protected over the long term. I think the Intelligence Committee bill does that, and with a few changes it will be even stronger.

I yield the floor.

The Presiding Officer (Mr. Nelson from Nebraska): The Senator from Missouri is recognized.

Mr. Bond: Mr. President, again, we rise with a renewed consideration of the Foreign Intelligence Surveillance Amendments Act, or the FISA Amendments Act, of 2008.

I thank the chairman for his very powerful and thoughtful statement on behalf of the original bill presented by the Senate Intelligence Committee, with the managers' amendments that we will incorporate.

Simply put, this legislation gives the Intelligence Community the tools it needs right now, and over the next 6 years, to protect our country. The Protect America Act, passed by Congress in August of this past year, allowed the intelligence community to close critical intelligence gaps. I disagree that the Protect America Act was flawed. It was a temporary measure. It didn't deal with all of the subjects we needed to deal with, including protections for carriers alleged to participate. But it did not cut back on any of the basic protections in FISA, and it served to provide us the means in this 6-month period to collect vitally needed intelligence on foreign subjects who might be planning attacks either on our troops abroad or in the United States. But this vital legislation expires in 1 week, and we must not let those gaps reopen.

We initially began debate on the FISA Amendments Act in December of last year. As was their right, several Members of this body decided a filibuster was a better course for our national security. So we listened for hours to unfounded allegations about the terrorist surveillance program and to mischaracterizations about the Intelligence Committee's FISA bill. Ultimately, this bill was pulled from the floor and further debate was postponed until now.

Early this week, we returned to the Senate. Now, given that the Protect America Act expires in a few short days, one would have thought that FISA would be the first up on the agenda. I don't want to minimize the importance of Indian health legislation, or any other important legislation that the Senate should consider, but let's be clear: If the intelligence community cannot protect this country from terrorist attacks, then it doesn't matter much what else we debate or pass. We have to protect the country first and protect our troops and other personnel abroad in order to have a country, and we must improve upon other legislation. But here we are, only a few days shy of the PAA's expiration, and the drumbeat is there already by some stating we need more time to consider the Intelligence Committee bill; we should just do a short extension of the PAA. That is a bad idea. Some have called it flawed.

I believe it is important, but I believe the Intelligence Committee bill goes much further and does what we absolutely must do to make sure not only that we have the ability to collect on foreign terrorists who are planning attacks here or abroad but also to protect the constitutional rights, the privacy rights of Americans.

The Intelligence Committee spent over 9 months looking at FISA modernization. We have held hearings. We have gone out to NSA and watched its implementation. We have reviewed the terrorist surveillance program. We have looked at the implementation of the PAA. We have gone to review all the documents upon which the TSP--the terrorist surveillance program--was based, and we have come with a solid bipartisan bill. We are ready to act, and the intelligence community is waiting for us to act, and so are our allies abroad who have relied very heavily and continue to rely upon our collection ability to help keep their countries safe. Every day, we hear about attacks that have been disrupted by allies across the world. Without being specific in any areas, I think one can generally assume that our collections have helped our allies protect themselves against attacks in their countries.

There is no reason to extend the PAA, much as I liked it. We have a bill that is responsible, and it is more effective. It addresses concerns about the PAA. It gives our intelligence operators the tools they need, and it ensures that our private parties will continue to cooperate with the Government. I am pleased the majority leader and minority leader have come to agreement on this fact.

As the majority leader stated appropriately 2 days ago when he supported moving to this legislation immediately--and I thank the majority leader for that--we need to act now, and I hope we will be able to pass a solid FISA bill in short order. Some hope today. I join with that hope. I am not an incurable optimist, but we can always hope.

We have before us the Senate Intelligence Committee bill, S. 2248, which was passed out of the committee by a 13-to-2 vote. We need bipartisan legislation. This is bipartisan. Nothing is ever going to be unanimous in an area that is this technical and this important, but we passed it 13 to 2. This bipartisan bill will give the intelligence community the authority and flexibility it needs to track foreign terrorists quickly and efficiently.

In November, the Judiciary Committee reported a substitute on a straight party-line vote. The substitute added numerous provisions that were not fully vetted with the intelligence community. Regrettably, it ignores significant concerns expressed by working-level officials in the Department of Justice and the intelligence community--the very operators who know how this complex, technical, and overwhelmingly supervised and reviewed system works. The Judiciary Committee also ignored the concerns of its own minority members. As a result, this totally partisan substitute changed the Intelligence Committee bill in ways that will gut--gut--our intelligence surveillance capabilities. This substitute amendment is what we will be considering first this morning.

Last night, at the very last minute, the chairman of the Judiciary Committee filed a new substitute that modified the original Judiciary Committee substitute. Regrettably, the Judiciary Committee did not share this with my staff, and we only received the strikeout version, one that shows the changes between the substitute that has been at the desk for 2 months now and this last-minute switch. We received it from the ranking member's staff late last night.

After a quick review, my staff and I can tell my colleagues that the core problems remain, and although the DNI and the Department of Justice also have had little time to digest it, they have told us that their primary concerns remain. They cannot support this new substitute. It does not get the job done.

Conversely, the Intelligence Committee's bipartisan bill was drafted after months and months of studying the collection program. Members of our committee went out to the National Security Agency--we refer to it as NSA--to see how the program worked and to inspect the layers of protection built into their collection methodologies to make sure the agency stayed within the bounds of law.

Over several months, Chairman Rockefeller and I put together an agreement with our committee on both sides which adds more protections to the constitutional rights and the privacy rights of American citizens. I can be very proud and I think the Members of this body can be very proud that we have extended and improved protections for American citizens.

We worked with the intelligence community representatives and the Department of Justice lawyers to make sure our legislation would work and would not impede vital collection--more protection but keep the system working. I think that is where we ought to be, and that is where we are in the underlying Intelligence Committee bill.

Most importantly, we fashioned a legislative solution that both Democrats and Republicans could accept. I thank our Intelligence Committee members and staffs for their efforts, long and hard work, to come up with this bipartisan bill. Our bill has been publicly available for scrutiny for over 3 months now, and it remains the most solid bipartisan way to move forward.

Two provisions of the bill, however, were added to the initial markup without the input of the intelligence community. As a result, both provisions in the bill could cause unintended operational consequences, and they needed to be fixed. Chairman Rockefeller, Senator Whitehouse, Senator Wyden, and I worked together with the community to come up with solutions to these problems, and I hope we can have broad support for a managers' amendment to remedy that situation. One of these provisions provided important new protections, but it had to be reworked to protect Americans abroad in a manner which was consistent with our structure of laws and those of other countries.

The DNI has told us that with the managers' amendment fixing these two problems, the community will support our bill. That is important for Chairman Rockefeller and me because we want to pass a bill that works and will become law. It would do no good to pass a bill that some may feel good about or may pass for good politics but does not work for those who protect us in all of our intelligence agencies. So the DNI's support of this bill, in particular, is critical. Consequently, with these fixes applied, we will also have a bill the President will sign into law.

My intention as a floor manager--and I believe Chairman Rockefeller stands shoulder to shoulder with me in this--is to pass a bill that the DNI supports and that the President will sign. I believe we have that right now with the fixes to be applied.

If we attempt to change key painstakingly constructive provisions or to add bad provisions, however, we could hinder the intelligence community's ability to do its job and jeopardize the DNI's support for this bill and the chances of it becoming law. With the expiration of the PAA in a few days, I believe this is not the path we should take in the Senate. Anyone who has read FISA knows that it is very technical and each word matters. So it is imperative we do not add provisions without the input of the intelligence community, and we need to listen to their concerns. They are experts. They operate an incredibly technical and complicated system that is overlaid with legislation carefully drafted to recognize their capabilities, their limitations, and, most importantly, protections for U.S. persons and American citizens. We saw firsthand how difficult it is to deal with amendments that are not cleared with the intelligence community to make sure they work.

Let me just say that the Department of Justice and the Office of the Director of National Intelligence have been very helpful throughout the process, but we should not mistake their willingness to provide technical support to avoid operational problems with support for certain provisions. So while the DNI may have provided some technical support, there are several amendments that I believe, if added to our bill, could cause problems for the intelligence community, lose the support of the DNI and thus our ability to get this bill signed by the President.

First, I expect there to be some efforts to undo or modify the civil liberty provision in the Intelligence Committee's bill. Chairman Rockefeller has already delivered a very strong and persuasive argument for this liability protection. It has been said once very well by the chairman, but this being the Senate, it needs to be said again, and I will be happy to do so.

This provision is essential to foreign targeting authorities. Without retroactive and prospective civil liability protection, it becomes much less likely that our private sector partners will be able or willing to assist us in the future. That means the intelligence community would have to spend great time compelling telecommunications providers in each instance who are reluctant for fears of civil lawsuits to assist, to work with us to track terrorists.

The committee studied this issue, and we reached a broad bipartisan consensus that civil liability protection is for providers and not immunity for Government officials. That was the appropriate action. I repeat, the civil liability provision in this bill is for private parties who may have assisted the Government. There is no immunity or protection for the Government itself.

Additionally, the concept of "substitution," where the Government is substituted for the private party as a defendant in court, is not an acceptable alternative. That would allow litigation to continue, including discovery against the providers, thereby risking the disclosure of our sensitive intelligence sources and methods.

At his confirmation hearing, I asked General Hayden, the nominee for the head of the CIA, who had previously been the head of NSA, how badly the disclosures of our intelligence collection methods had hurt us in the battle to get the intelligence we need. General Hayden told us ruefully that we are now applying the Darwinian theory to terrorists: We are only capturing the dumb ones.

With substitution, we would not only be risking disclosure of sources and methods, we would also, however, embitter private parties against us whose cooperation becomes public, thus endangering their personnel, their facilities, and their business reputation here and abroad, with grave consequences to those who had participated, as Chairman Rockefeller said, in compliance with a Government directive from the highest officials in the land, and we would put taxpayers' dollars at risk for trial lawyers' coffers. We would also incur great expense in defending those lawsuits. The orders were issued--and I will discuss more about this later--under the President's article II constitutional power and responsibility to conduct foreign affairs.

Let me say a few words about an idea that came up shortly before the debate in the summer. Some are suggesting that before civil liability protection is granted, the FISA Court, the Foreign Intelligence Surveillance Court--and I will refer to it as the FISC--the FISC or other court must determine that those providers who allegedly assisted the Government with the terrorist surveillance program acted in good faith and pursuant to an objectively reasonable belief that the directives were lawful.

As reflected in the Intelligence Committee report accompanying S. 2248, the committee has already made this determination. We have studied this issue extensively, and we concluded that civil liability protection was the best and only solution. Why would Congress want to turn over its collective judgment to a single judge and pass a law stating that judge's ruling would be the final word on this issue? We don't even know what that ruling would be. This does not make much sense to me. We already went through this problem with the judicial variance on the FISC before, remember? The President's program was put under FISA, and then changes within the court, different judges, led to a problem with the intelligence gaps that spurred the need for short- term legislation last August. Congress should not roll the dice on this issue, close our eyes, cross our fingers and say: Whatever judge happens to be on call the day this issue comes up, well, that will be the final word on this question. Remember, the FISC's function is to approve applications for electronic surveillance. It is not set up for nor has established competence in this area. It makes no sense.

The providers need civil liability protection, and they deserve it now, not the prospect of further proving their good faith before yet another court. The longer this litigation drags on, the more likely it is that our intelligence sources and methods will be disclosed and the communications providers' businesses will suffer and they, their facilities, and their personnel will be at risk. It also becomes more likely and understandable that these companies, on which both the law enforcement and the Intelligence Committee rely for critical and timely information, could refuse to assist us in times of our need because of valid business reasons about the potential for further lawsuits. And I am not just talking about terrorist threats, I am talking about a provider refusing to give information voluntarily to help find a kidnapped child or help to find those who sexually entrap children on the Internet or proliferation or what have you. Should we be willing to take this risk? I don't think so.

Now, let me move to some of the issues the Judiciary Committee modified in our bill to the detriment of the overall product. Let me be clear, the new substitute that was filed last night is the same old wolf in different clothing. It does not alleviate any of these concerns. The Intelligence Committee bill included, as part of our compromise, a reiteration of the exclusive means provision in the current law, which states that FISA is the "exclusive means" in statute for conducting electronic surveillance. No statute that Congress ever passes can trump the President's article II powers. Numerous courts, and even the FISC itself, have reviewed this and stated the powers given to the President under the Constitution cannot be extinguished by a law passed by Congress. Even though we have passed a law on exclusive means, we have also passed a law called the Authorization for the Use of Military Force, which has to be read in conjunction with FISA.

Clearly, even those who believe a statute can somehow impinge on the article II constitutional powers of the President must recognize the powers of the President, if they were lessened by FISA, were reinvigorated by AUMF. Congress is making a statement in "exclusive means" that we want to see surveillance conducted under FISA. We have seen many attempts to broaden this language, but this is an area that calls for extreme caution. Exclusivity is more than a policy statement, it has a real operational component.

As we now know from our own experience in drafting this provision, the slightest word change can impede vital intelligence collection. I believe the Intelligence Committee's version addresses Members' views about exclusivity and further strengthens that statement, while at the same time preserving the ability to gather intelligence. Conversely, the majority's Judiciary Committee substitute now requires an act of Congress after the next attack, potentially before our intelligence professionals can do what they need to protect us. There is no exception if the attack comes from al-Qaida or another terrorist organization.

Now, it doesn't take a rocket scientist to figure out that as we stand here today, we have no idea where or when the next attack may come. Are we, each of us, willing to take the risk that Congress may not be able to act; that for whatever reason Members cannot make it back to Washington, DC, we cannot get a bill passed and signed by the President, which would leave our intelligence community without the authorities it needs to counter the threat or protect this country? I, for one, don't want to be explaining that back home to my constituents in Missouri. It is another nice sounding idea politically to some that makes no sense operationally and shuts down some potential intelligence collection.

Moreover, the Judiciary Committee's bill, and the latest substitute, would allow the FISC to assess compliance with the minimization procedures used for the acquisition of foreign intelligence information from individuals outside the United States. Minimization procedures are designed to protect U.S. identities if communications of U.S. persons are accidentally swept up in a surveillance operation or if a U.S. person is party to a conversation with a target--a lawful target--but that U.S. person is not of intelligence interest him or herself. We minimize, suppress, don't even record the name of that U.S. person. If there is no intelligence value, then that person is not at risk. To be at risk, that person would have to be receiving or instituting a call to a lawful target. That means that if somebody is calling a family member abroad, a business activity abroad, then there is no reason to fear that even those conversations would be picked up. But if others are picked up that are of no intelligence value, they would be minimized or suppressed.

Giving the court the ability, supposedly, or the responsibility to assess compliance may sound like a good idea in the abstract, but when we talk about foreign targeting, we are outside the FISC's expertise. The FISC was created solely to issue orders for domestic surveillance on a particular target. Congress, in 1978, recognized the court's expertise over domestic matters but specifically left foreign surveillance activities to the executive branch and the intelligence community and the oversight of the intelligence committees. By now requiring judicial review of minimization procedures for a foreign target, we would take a huge step back from a system that worked well for almost 30 years. So there is a red line, and I need to draw it.

But that line is already drawn. As a practical matter, when the FISC assesses compliance with minimization procedures, it would be second- guessing trained analysts' decisions about which foreign terrorist to track and how to do that. The FISC knows what to look for when it issues a warrant to tap someone's phone in Virginia, but when it comes to analyzing intelligence leads and deciding which foreign terrorists or spies should be surveilled, the court is simply not competent to make these judgments. This is what assessing compliance would have them do. The court knows this. Let me point to the court's own words from its published opinion on December 11, over a month ago, in the case In re: Motion for Release of Court Records. There the FISC judges say they are:

Not expected or designed to become experts in foreign intelligence activities, and do not make substantive judgments on the propriety or need for a particular surveillance. Even if a typical FISA judge had more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security.

That is a quote from the court which some want to give this responsibility which they say they do not have. We need to heed the words of the FISC and not require them to make judgments they themselves believe are better left to the executive branch.

Let me repeat for my colleagues to hear clearly. The FISC, the FISA Court itself, is virtually saying: Congress, don't do this. We are not the right ones to make this determination. We should be wary to disregard their own assessment of their own competency in this vital intelligence collection area.

Additionally, throughout this debate, we must remember we are talking about foreign terrorists operating in foreign countries intent on harming us and our interests. Senator Leahy's new substitute slightly modifies a requirement from the original substitute that the Department of Justice inspector general conduct a comprehensive review of the President's Terrorist Surveillance Program. That modification, however, does not address the underlying concerns with his provision. This review simply is not necessary and is beyond the expertise of the DOJ inspector general.

The Intelligence Committee has had numerous briefings and hearings on the TSP. We have spoken at length with lawyers from the Department of Justice and with the operators, and we have read document after document on which this program was based. We have spent more time on FISA than I ever dreamed possible or that I ever wanted to do. Yet I have not heard one convincing argument as to why this review must be conducted. Again, it may look good politically, it may make good sound bites, but we have reviewed this program to death over the past year. Yet another review is redundant, unnecessary, and because of that is wasteful.

Finally, as a part of my agreement with Chairman Rockefeller, we included a 6-year sunset in the bill. Personally, I think sunsets are a bad idea when we are talking about national security. The Attorney General, General Mukasey, has stated repeatedly, "There are no sunsets in our enemies' fatwas." I understand what he is getting at. The terrorists' desire to get after us is not limited. We should give our intelligence operators something they can hang their hat on when they retool their systems and move forward with intelligence collection.

If there is a debate about sunsets, I am considering saying we ought to get rid of even the 6-year sunset. I agreed to 6 years to get this bill moving, but shorter than that I don't believe is acceptable. If we provide stricter, shorter term sunsets, that would tell the private entities and our intelligence communities that Congress's view on civil liability protection is only temporary and the power for our intelligence collection is only temporary. This new statute gives our operators confidence in the new statute. It gives our collaborating allies abroad confidence we will be there.

Let me make one thing clear. Our job in the Senate Intelligence Committee, and the same on the House side, is to review intelligence collection methods. We review it on a semiannual or even monthly basis. If we find there is a problem with this bill, we should not have to wait until the sunset comes to change it. We see a problem, we need to fix it. We don't need to wait for 6 years or 4 years to fix it. If there is a problem, let's start fixing it as soon as we find it.

A sunset does not prevent us from passing new legislation when we see fit. No sunset at all would put even greater pressure on us to make sure it is working properly. If in 1 year the bill was shown to be inadequate, we should act immediately to fix it, not wait until the sunset. So I don't like sunsets, but the 6 years was a compromise with the chairman and other members of the committee to produce this bill.

The Judiciary Committee, in this new substitute, seeks to further shorten the time frame to 4 years. Our intelligence collectors, our troops on the battlefield, the private parties who depend on this authorization need certainty, not authorities that change depending on what year it is. A 4-year sunset would not give them the certainty they need.

In conclusion, our intelligence collectors, our troops who are in harm's way, need this legislation, and our country needs this legislation. But let me talk about the troops. In May, when I visited Iraq, I talked directly with the commander of our Joint Special Operations Command, who told me the limitations under the old law, shutting down of the collection that occurred because of the new technology, so adequately described by the chairman, prevented him from collecting key information he needed to protect our troops in the theater, on the battlefield. My son happened to be one who was there at the time. That got my attention. It had the attention of the troops and the commanders. The commander told us he could kill or capture top al- Qaida leaders, but he was not able to collect signals intelligence on them. Does that make sense? No.

The bottom line in this story of FISA is terrorists were able to use technology and our own outdated laws to stay a step ahead of us. We can't afford to give them that step. The Intelligence Committee's bill gives our intelligence operators and law enforcement officials the tools they need to conduct surveillance on foreign terrorists and foreign countries planning to conduct attacks inside the United States against our troops and against our allies. It is the balance we need to protect our civil liberties without handcuffing our intelligence professionals.

I hope we can do the right thing--pass this bill, with the perfecting managers' amendment but without any additional changes that will compromise its functionality and prevent it from becoming law. We need a bill both Democrats and Republicans support, the DNI supports, that is good for the intelligence community, and that the President will sign into law.

That means we need to dispense with the Judiciary substitute that is immediately before us and proceed with consideration of amendments to the bipartisan Intelligence Committee bill. I look forward to making this happen.

I yield the floor.

The Presiding Officer: The Senator from Wisconsin.

Mr. Feingold: Mr. President, I ask unanimous consent that following my remarks, the Senator from Florida, Mr. Nelson, be recognized for his remarks.

The Presiding Officer: Without objection, it is so ordered.

Mr. Feingold: Mr. President, I strongly support Senator Leahy in his effort to replace the Senate Intelligence Committee bill with the version passed by the Judiciary Committee. I am a member of both of these committees. As a member of both committees, I have been deeply involved in the process of having looked at those two products.

Having been involved in helping shape them, I urge my colleagues to support the Judiciary Committee version of this legislation. Indeed, I had hoped very much that the Senate would take up that bill to begin with rather than the flawed Intelligence Committee bill.

In December, I along with 13 other Senators, urged the majority leader to make the Judiciary Committee bill the base bill on the Senate floor. Unfortunately, our request was denied. So it is very disappointing that we are now forced to fight an uphill battle of offering the Judiciary bill as an amendment.

I would like to lay out the reasons the Senate should support the Judiciary Committee bill rather than the Intelligence Committee bill. One obvious reason is the Judiciary Committee bill, unlike the Intelligence Committee bill, does not contain unjustified retroactive immunity for companies alleged to have participated in an illegal wiretapping program.

I do not want to spend a lot of time on this today because there will be an opportunity to debate this issue as the Senate's consideration of this legislation moves forward. But I will say that having spent the last year and a half studying what happened at the NSA from 2001 to 2006, I strongly oppose immunity.

Under current law, telecom companies already get immunity as long as they follow certain requirements that are clearly spelled out in the law. I see no reason for Congress to change the rules this late in the game.

Today, I would like to focus on the other significant parts of these bills, the part contained in title I of each bill that contains sweeping new changes to the FISA law for years to come. Let me start off by pointing out that there are a number of similarities between title I of the Intelligence Committee bill and title I of the Judiciary Committee bill. Their basic structure is the same.

Title I of both bills authorize the Government to conduct surveillance of individuals reasonably believed to be overseas without court approval for individualized warrants. Both bills authorize the Government to develop and implement procedures to govern that type of surveillance and provide the procedures to the FISA Court for review after they have gone into effect.

Now, let's be clear. These are extraordinary powers that both bills give to the executive branch. And there is no difference between these two bills in terms of the intelligence they permit the Government to acquire. No difference between the bills as regards to the effort to go after those who may be trying to do us harm in this respect. Rather, the differences between these two bills comes in the form of critically important checks and balances on those powers.

The Judiciary bill contains a number of important changes to improve court oversight of these broad new executive branch authorities and to protect the privacy of law-abiding Americans--the privacy of law- abiding Americans. The Intelligence Committee bill, on the other hand, leaves it up to the executive branch to police itself, an approach that has all too often proven to be a bad idea throughout American history. I would say particularly under this administration.

Let me state as clearly as I can the differences between these two bills have nothing--nothing--to do with our ability to combat terrorism. They have everything to do with ensuring that the executive branch follows the rule of law and does not unnecessarily listen in on the private communications of Americans who are doing absolutely nothing wrong.

This debate is about whether the court should have an independent oversight role and what protections should apply to the communications of Americans that somehow get swept up in these broad new surveillance powers. If you believe the courts should have a meaningful oversight role with regard to Government surveillance, then you should support the Judiciary bill.

If you believe that Congress should safeguard the communications of Americans at home that could be swept up in a broad new surveillance program that is supposed to be focused on foreigners overseas, then you should support the Judiciary bill. It is as simple as that.

That said, the Judiciary Committee bill is not perfect. More still needs to be done to protect the privacy of Americans. That is why it should be an easy decision to support the Judiciary Committee bill as our starting point on the floor of the Senate as we work on this legislation.

Let me also remind my colleagues that the process by which the Judiciary Committee considered, drafted, and amended and reported out its bill was an open one, allowing outside experts and the public at large the opportunity to review and comment. With regard to legislation so directly connected to the constitutional rights of Americans, the result of this open process should be accorded great weight, especially in light of the Judiciary Committee's unique role and expertise in protecting those rights.

I also point out that several of the administration's criticisms of the Judiciary Committee bill have been based on technical drafting concerns. But in the version that Chairman Leahy has brought to the Senate floor, he has made the changes necessary to address those technical concerns. So I hope we do not hear any arguments in this floor debate about these issues that have already been addressed.

Exactly what are the differences between these two bills? First, the Judiciary bill gives the secret FISA Court more authority to operate as an independent check to the executive branch. For example, one provision in the Judiciary bill fixes an enormous problem with the Intelligence Committee bill; that is, the complete lack of incentives for the Government to target people overseas rather than to target people in the United States.

The Judiciary bill solves this problem by giving the FISA Court the discretion to limit the use of information concerning Americans when that information is obtained through procedures that the FISA Court ultimately finds are not--are not--reasonably designed to target persons overseas.

Another provision of the Judiciary bill ensures that the FISA Court has the authority to oversee compliance with what are called minimization procedures. Minimization procedures have been held up as the primary protection in the Intelligence Committee bill for the privacy of Americans whose communications get swept up in this new surveillance authority.

Now, I do not think current minimization procedures are strong enough to do the job. But to the extent that minimization can help protect Americans' privacy, its implementation surely needs to be overseen by the court. So that means giving the court the authority to review whether the Government is complying with the minimization rules and to ask for the information it needs to make that assessment.

Now, without this provision from the Judiciary bill, the Government's dissemination and use of information on innocent law-abiding Americans will occur without any checks and balances whatsoever, no checks and balances at all.

Once again, "trust us" will have to do. Now, I believe in this case, as in so many others, "trust us" is not enough. The Judiciary bill offers other types of oversight, as well. For one thing, it requires relevant inspectors general to conduct a complete review of the President's illegal wiretapping program, which, frankly, is long overdue.

It improves congressional access to FISA Court orders. The Intelligence Committee bill required the Congress to be provided with orders, decisions, and opinions of the FISA Court--that includes significant interpretations of the law--within 45 days after they are issued.

Now, that is good as far as it goes. But the Judiciary Committee bill adds that Congress should be provided with the pleadings, the pleadings filed with the court associated with the opinions that contain significant interpretations of law.

At times, the court's opinions merely reference and approve arguments made in the Government's pleadings. In that case, the pleadings may be critical to understanding the reasoning behind any particular decision. It is not enough just to have the cursory court opinion.

It also requires that significant interpretations of law not previously provided to Congress over the past 5 years be provided. Congress needs to have the full story of how the law has been interpreted in the past in order to make the right decisions on what changes in the law should be made in the future.

The Judiciary bill also does a better job of protecting Americans from widespread warrantless wiretapping. First, it provides real protection against what is called reverse targeting. It ensures that if the Government is wiretapping a foreigner overseas in order to collect the communications of the American with whom that foreign target is communicating, it gets a court order on the American. Specifically, the Judiciary Committee bill says the Government needs an individualized court order when a significant purpose of its surveillance is, in fact, listening to an American at home.

The Director of National Intelligence himself said reverse targeting violates the fourth amendment. All this provision that I am raising does is simply codify that principle. The administration continues to oppose this provision.

I have a simple question: Why? Why is it opposed to a provision that prohibits a practice that its own Director of National Intelligence says is unconstitutional?

The Judiciary Committee bill also prohibits something called bulk collection. Now, that is this sweeping up of all communications between the United States and overseas. The DNI said in public testimony that this type of massive bulk collection would be--would be--permitted by the Protect America Act that is currently in effect. But he has also said that what the Government is seeking to do with these authorities is something very different.

It is, he said:

Surgical. A telephone number is surgical. So, if you know that number, you can select it out.

So if the DNI has said he does not need broader authorities, there should be no objection to this modest provision which, again, simply holds the DNI to his word.

The prohibition against bulk collection ensures that the Government has some--some--foreign intelligence interest in the communications that it is collecting and not just vacuuming up every last communication between Americans and their friends and business colleagues overseas.

Targets do not need to be known or named individuals; they can be phone numbers, which is how the DNI has described how the Government collects. And the Government does not have to identify or explain its interest in the targets to the FISA Court. It merely has to make a general certification that individual targets exist.

As was already alluded to on the Senate floor, the Judiciary Committee bill also has a sunset of 4 years rather than 6 years, ensuring that Congress will reevaluate this law at least once before the end of the next Presidential term. And, critically, it contains a strong statement that Congress intends for FISA to be the exclusive means by which foreign intelligence surveillance is conducted. It also closes purported statutory loopholes that the Justice Department relied on to make its torture arguments that the congressional authorization for the use of force in Afghanistan authorized the President's illegal wiretapping program. The Judiciary bill makes clear, once and for all, that the President must follow the law.

For all of these reasons, the Senate should support the Judiciary Committee's product. Let me repeat what I said at the outset. The differences between these two bills have nothing to do with our ability to combat terrorism. Nothing. They have everything to do with ensuring that the executive branch adheres to the rule of law and does not necessarily listen in on the private communications of Americans. The fact that the administration is so strongly resisting these commonsense protections really says a lot. It ought to give pause to those who are considering opposing it.

It is time for Congress to stop being an enabler when it comes to this administration's indifference to the rule of law and, instead, start being a protector of the rights and freedoms of our citizens.

I urge my colleagues to support the Judiciary Committee bill.

I yield the floor.

The Presiding Officer: The senior Senator from Florida.

Mr. Nelson (FL): Mr. President, I, as the Senator from Wisconsin, my colleague, have had difficulty as we sit side by side in the Intelligence Committee with the issue of immunity.

First of all, I want to say that I think the intelligence community, headed by Admiral McConnell, is doing an excellent job. They are correcting colossal mistakes. We had a colossal mistake on intelligence on September 11. We had another colossal mistake of intelligence leading up to the Iraq war. And in order for us to protect ourselves, we, in fact, have to have information in order to disrupt the plans to attack us, to harm the Nation.

So I give credit to Admiral McConnell, the Director of National Intelligence. I give credit to General Hayden, the head of the CIA, to Steve Kappes, the Deputy Director of the CIA. I think they are doing a terrific job.

I compliment the chairman and the vice chairman of our committee, and they are within earshot, and I want them to hear how much this Senator appreciates their cooperation between each other to work in a bipartisan fashion. They are talking right now, so I am not sure they are hearing me. I want them to know my personal appreciation for how they have taken a bipartisan approach. It is important that we thank people for the work they are doing.

This legislation is an attempt to be crafted so that these folks can better perform their job but at the same time protecting the precious civil liberties Americans have that make us unique from any other society on planet Earth. We want to protect those rights of privacy. I believe there are protections in this bill that will extend to Americans, regardless of their physical location. One of the things we amended in the Intelligence Committee was that it doesn't make any difference, if an American is here in the United States or if they are abroad, if you are going after an American as a target, they ought to have to go to the FISA Court to get a court order called a warrant, regardless of where that American is, if they are a target of surveillance. That is important. It is important to support our constitutional protections of privacy and that the Government can't come and intrude in our lives. I think we have started off in the right direction.

As the Senator from Wisconsin has said, I have a problem with the blanket immunity as well. I agree with Admiral McConnell. At the end of the day, we have to have the cooperation of the 10 communications companies, and they should not have the threat of a spurious lawsuit hanging over their heads, thinking they are going to be dragged out in public court over time as a means of trying to extract a pound of flesh from them. There should be every opportunity and encouragement for the telecommunications companies to cooperate with the U.S. Government intelligence community for the protection of the country. The bill before us does, in fact, give that immunity for any of the surveillance that did not have a warrant from the FISA Court from the period of September 11, 2001, to January 17, 2007.

The problem I have with that is, I am not sure the telecommunications companies were attending to their knitting, as to whether they were getting legal orders from the United States Government, not in the first year after September 11, not in the second year, perhaps not even in the third year after the attack on New York City and the Pentagon and the attempt on other facilities in Washington. I am talking about this went on for a fourth year and a fifth year. I am not sure that, in fact, they had the legal basis to say that the Government, in fact, was complying with the law. Of course, I make that judgment, and my judgment is based on something I can't say here on the Senate floor, because it is not only highly classified; it is highly compartmented. I have read the documents. I have a problem with that.

At the end of the day, if it means we have to pass the bill and it has immunity in it, I am going to vote for the bill, because it is much more important that we go ahead and have a procedure set out by which we can try to protect ourselves from the bad guys and at the same time protect the civil rights, the right of privacy of our citizens. That is contained within the committee bill, and that is the way I voted in committee. I voted against the immunity, but that amendment only got three votes. When it came to passage of the final bill, I voted for it, because that is in the interest of the country. If that is what I am confronted with here, that is the way I am going to vote and support the chairman and vice chairman of our committee.

Maybe it doesn't have to be as stark as Senator Feingold has said, that it is either immunity or no immunity. Maybe what the issue ultimately ought to be is somewhere in between. That is the Feinstein- Nelson amendment that will be offered later in which it will put a review of the telecommunications carriers' actions squarely under the jurisdiction of the special Federal court set up to handle these top- secret matters called the FISA Court. The court would review all aspects of the telecommunications carriers' involvement and make a decision on immunity based on three criteria. No. 1, if the court decided that the telecommunications carrier did not provide the assistance as alleged, then, of course, the court would dismiss the lawsuit against the company. No. 2, if the assistance was provided, the court then would determine whether the documentation sent by the U.S. Government to the companies met the requirements of the law and was adequate. This law that would have to be met states that a telecommunications carrier needs a court order or a written certification from the Attorney General that no court order is required. It further has to state that all statutory requirements have been met. So then this FISA Court, in other words, would, in fact, judge that. If the conditions of the statute had been met, then the companies would be shielded from the lawsuit and the lawsuit would be dismissed.

Or the third criteria the court would look at: If the special Federal court, the FISA Court, found there was no certification given to the telecommunications company, then the court would examine whether the company acted in good faith and with an objectively reasonable belief that it was legal. If the court determined that, then the immunity would be provided.

That seems to be a way in which the companies would be protected, and at the same time we can get to this issue of this third year, fourth year, and fifth year that the United States Government is saying this is legal without a court order, when, in fact, it seems to me that the CEOs of those companies and the general counsels of those companies ought to have been jumping up and down saying: Wait a minute. We want additional information. The amendment to be offered by the Senator from California and me creates a series of three requirements that must be met in order for the telecommunications companies to receive immunity. It is going to preserve the rights of private citizens to make their case in front of a judge without jeopardizing these highly sensitive kinds of not only top-secret but compartmented material that need to be classified for the protection of the country.

Practically speaking, what is going to happen? We can't pass anything around here unless you get 60 votes. That is a huge threshold. As this comes before the Senate, I doubt the Feingold amendment is going to get 60 votes to cut off debate. I doubt the Feinstein amendment is going to get 60 votes. That brings us right back to the Intelligence Committee bill which is before us right now, in which case, on final passage, I am certainly going to vote for that. But there is another opportunity to address this specific issue. It is unlikely that the House of Representatives is going to pass this legislation with the immunity for the companies. Therefore, there will be a huge difference between the Senate bill and the House bill, as the clock continues to tick down toward the deadline in which agreement is going to have to be reached. It seems to me the Feinstein-Nelson approach is a reasonable compromise at that point.

I hope in time we are going to be able to pass this, that we will pass it before the deadline which, to my knowledge, is in a week or so, maybe a week and a half. The majority leader says he is going to keep us in all weekend in order to get this passed. If I were he, I would do the same. It is so critically important to our country that we pass this legislation.

So on we go. Let the legislative process work itself out. Hopefully we will get this thing passed.

I yield the floor.

The Presiding Officer (Mr. Brown): The senior Senator from Texas is recognized.

Mr. Bond: Mr. President, may I ask the distinguished Senator from Texas to yield for a unanimous consent request and then she will be recognized after that.

Mrs. Hutchison: Yes.

The Presiding Officer: Without objection, it is so ordered.

Mr. Rockefeller: Would the distinguished vice chairman be willing to yield for a parliamentary matter?

Mr. Bond: Please.

The Presiding Officer: The Senator from West Virginia.

Mr. Rockefeller: Mr. President, I ask unanimous consent that the time until 2 p.m. today be for debate prior to the vote in relation to the Judiciary Committee amendment, as modified, with no amendment in order to the amendment prior to the vote, with all time equally divided and controlled between Senators Leahy and Bond or their designees, with the 30 minutes prior to the vote divided as provided above, with Senator Leahy controlling the final 15 minutes and the vote will be at 2.

The Presiding Officer: Without objection, it is so ordered.

The Senator from Missouri.

Mr. Bond: Mr. President, since we have had two speakers on the majority side, I ask unanimous consent that Senator Hutchison and then Senator Brownback be recognized on our side.

The Presiding Officer: Is there objection?

Without objection, it is so ordered.

Mr. Bond: I thank the Chair.

The Presiding Officer: The senior Senator from Texas is recognized.

Mrs. Hutchison: Thank you, Mr. President.

First, Mr. President, let me say, while the distinguished chairman and ranking member of the Intelligence Committee are both on the floor, that I believe the Intelligence Committee has done a fine job on this very important legislation, the Foreign Intelligence Surveillance Amendments Act, that will modernize and allow our law enforcement officials to have the tools they need to protect our country.

The Intelligence Committee voted the bill out on a bipartisan basis. It was certainly debated and balanced within the committee. I think this Senate should support the Intelligence Committee and all the work they have done to prepare this very important legislation. So to Senator Rockefeller and Senator Bond, I say thank you for doing a great job.

I do rise today to support this bill. It is essential that we do so to protect our country. I was proud to join my colleagues last August in passing the Protect America Act. It will expire in 8 days--in 8 days. The majority leader has said we are going to pass this legislation this week out of the Senate. That is a good thing. The House needs a week to look at it and determine if they will pass it. I hope they will pass the same legislation that is before us from the Intelligence Committee and send it to the President without amendment.

Our enemies are not going to expire in 8 days. Al-Qaida, we know, uses cell phones and wireless Internet networks and countless other technologies that were not in place when the original FISA passed 30 years ago. Thirty years ago, we did not have cell phones. Thirty years ago, you would go to a court and say: We want to tap the phone line of this number. Today, a cell phone can be thrown away before you can go to get a court order.

So in the act we passed last year, we determined that you could get a court order to intercept the communications between suspected terrorists and you can go to the person rather than to a phone number, which would be unusable by the time you could get a court order. So that is one way we have begun to upgrade the technology to match the threat. Because our enemy is very technologically capable. We must be able to meet that with law enforcement. Delays could mean the difference between life and death.

Unless we take action, this protection of our ability to intercept potential plots against our country will go out of existence. We cannot, in good conscience, let that happen.

Let's talk about the litigation aspects because that is going to be the first amendment we vote on. The first amendment we vote on is going to be out of the Judiciary Committee. There will be other amendments, I know, that have already been discussed on the floor regarding litigation against telecom companies.

After 9/11, the Federal Government requested that America's telecom companies share proprietary information to help prevent future terrorist attacks. After the existence of the national security program was illegally leaked 2 years ago, America's telecom companies began to get hit with dozens of class action lawsuits that could expose them to catastrophic liabilities.

Originally, the telecom companies had nothing to fear from those lawsuits because they had evidence that what they did was at the request of our law enforcement officials. But due to the sensitive nature of the Government's request of these companies, the law enforcement officials barred the telecom companies from the release of certain documents that they needed for their trials. So we have created a situation in which companies have cooperated with law enforcement to keep our country safe, and then, when the lawsuits arose, they were not allowed to defend themselves. Now, some of my colleagues say: Well, that is tough. They should have known better.

We are talking about the security of our country. The people who are in the business of telecommunications were asked to be patriotic Americans. And they said yes. So if we do not give them protection for these actions, as well as those going forward, we are going to put our businesses in an untenable situation. Either they can help law enforcement, be sued and hampered in their legal defense because they are not able to introduce certain types of evidence because of security reasons, or they can say no to law enforcement and put our country in jeopardy.

Now, I will tell you that I have talked to the CEO of one of our major telecommunications companies. He has said: Senator, I am going to do what is right for America. That is my first responsibility as a citizen of this country. But, Senator, I don't think I should be put in jeopardy for my shareholders and my consumers while being a patriotic American.

The Senate must act responsibly. We must be able to go to a company and say: help our country. Because in the past a terrorist could communicate between two countries overseas, and we would have the right to intercept those messages. I wish I could say we have no enemies inside our country who would communicate with a terrorist outside our country, but we all know that is not the case. We all know there are people in our country today plotting to kill innocent Americans. We know because plots have been uncovered. And we know because that is what happened on 9/11. There were people inside our country who were aiding and abetting, living in our country, and planning to kill innocent Americans.

So we must have the capability to give protection to a telecommunications company that would cooperate with our Federal law enforcement officials to intercept messages between al-Qaida in Pakistan or Afghanistan or anywhere in the world communicating with a terrorist sympathizer in our own country. It is our responsibility to do this for the safety and security of Americans.

We must pass this bill. We must pass it in the form that the Intelligence Committee did on a bipartisan basis. We must respect the work that has been done by those who have heard hours and hours and hours of testimony and seen classified information about the threats to our country. We must do our part, along with the President, with the Members of the House of Representatives, and with our law enforcement officials to ensure that no stone is left unturned to uncover a plot against innocent Americans.

If that is not the duty of the U.S. Senate, Mr. President, I ask you, what is? That is our responsibility. That is why we were elected: to protect our country. I hope this body, of which I am so proud to be a Member, will do the right thing and extend this act and give our law enforcement the tools they need to do the job we are asking them to do to protect America.

Mr. President, I yield the floor.

The Presiding Officer: The senior Senator from Kansas is recognized.

Mr. Brownback: Thank you very much, Mr. President.

I join my colleagues, particularly my colleague from Texas and my colleague from Missouri, in supporting this bill and in opposition to the Leahy amendment.

My colleague from Texas identified a number of the issues that are in the amendment. I serve on the Judiciary Committee. It is a great committee. Senator Leahy does an excellent job leading the committee. But on this particular issue it is my belief, as a Judiciary Committee member, that we should recede to what the Intelligence Committee has put forward on a bipartisan basis and move forward with this bipartisan bill we have rather than going with, essentially, the substitute that the Judiciary Committee came up with, which was put forward on a partisan basis.

My colleague from Texas noted we have 9 days until this legislation expires. If we go with the Leahy substitute--as much as I respect Senator Leahy--the President is going to veto this bill and we are going to be in a nonfunctional position for a period of time while we get things put back together. There is no reason to do that. We have a bipartisan bill.

The Intelligence Committee bill passed with only two dissenting votes. The Judiciary Committee substitute, in essence, that is being put forward--it has been modified and changed, but, in essence, it is what came forward from the Judiciary Committee--came out on a strictly partisan party-line basis.

Why wouldn't we go with the bipartisan bill that passed, I believe, 13 to 2 rather than go with the partisan bill that will be vetoed and then we will just be back here? We are not going to have the votes for a veto override. We would then go without this needed law provision so we can provide for the security of the country, as well as protect the civil liberties and rights of individuals within America.

I want to note in particular on this issue of telecommunications companies and the information they provide, I think we need to provide some level of immunity for companies to participate and work with the Federal Government on information that the Federal Government has legitimately requested.

In case people think, "Well, OK, you are just giving a pass to the telecommunications companies," I want to read what the requirements are within the Intelligence Committee bill toward the telecommunications companies. The telecommunications carriers face a series of threats and lawsuits presently over their complying with what the Federal Government required. But the Senate Intelligence Committee immunity provisions do not just simply dismiss the cases outright. Instead, the bill sets forth a process for the Attorney General to submit a certification to the court that the telecom carriers either, one, did not provide the Government the alleged assistance in the first place, or, two, provided assistance pursuant to a valid request, directive, or order indicating that the activity was authorized by the President and determined to be lawful. The court would then separately review the Attorney General's certification for an abuse of discretion. This multilevel certification and review process will ensure an underlying assessment by the Government and the courts of the genesis of the carriers' role, if any.

The immunity provisions would not apply to the Government or Government officials. Cases against the Government regarding the alleged programs would continue. And the provisions would apply only to civil and not criminal cases.

All in all, I think the Intelligence Committee bill strikes the right balance between intelligence gathering and protections for civil liberties.

My point in bringing this out is that this is not some blanket waiver toward telecommunications companies. It goes through a multilevel court and administrative review procedure that has to pass through both in order for the telecommunications company to be able to get this immunity from liability exposure. It is not just the Attorney General; it is also the court that is involved with this as well.

I would hope my colleagues who have concerns about civil liberties would look at that and say: Well, this is going to be reviewed in both places. This should be sufficient to require them--the telecommunications companies--to participate in this program, and to give them the immunity from liability, if they do this according to the law as determined by both the Attorney General and as determined by the court.

That seems to me to be a good level and a good balance of our intelligence needs, which are significant, and our civil liberties guarantees and requirements, which are required--that we guarantee civil liberties for the individual and that I want to see protected. But at the same time I want to see our citizens protected as well. And we have to be able to have some access to information of these communications--with intelligence, with terrorist organizations, individuals--that may be taking place.

All in all, I think the Intelligence Committee has done an excellent job of striking that balance between providing for our security needs and guaranteeing civil liberties of the individual. It has provided a multilayered process for this immunity to be able to be granted by different entities within the Government. It has done so in a balanced fashion. It has done so in a bipartisan fashion. I don't know why, for the life of me, we would want to go with something on a partisan basis that is not going to get through the process, when we need the bill now and we have a good bill put forward by the Intelligence Committee.

So as a member of the Judiciary Committee, I would urge us to support the Intelligence Committee and not support the Leahy substitute. As much respect as I have for the chairman, I do not think that is the way for us to go in bringing this bill forward to closure for the good of the country.

I yield the floor.

The Presiding Officer: The assistant majority leader is recognized.

Mr. Durbin: Mr. President, I will support the Judiciary Committee substitute to the FISA Amendments Act.

As a member of the committee, I wish to commend Chairman Leahy for his leadership. I think we have struck the right balance to give the Government the power they need to keep us safe but to protect our privacy, which we cherish so much as Americans.

I wish to commend the majority leader, Harry Reid, for bringing the FISA Amendments Act to the floor as one of our first items of business this year. I wish to thank my colleague and friend from the Senate Intelligence Committee, Senator Rockefeller. Though we may disagree on some aspects of this bill, he has been a real leader on an issue of great complexity.

Last August, Congress responded to the administration's request to approve foreign surveillance legislation on an expedited basis. Remember, we didn't come to this issue because the administration felt they needed to deal us into the picture. We came to this issue because the New York Times finally published an article and told us about this warrantless surveillance that was going on all across America for years, surveillance that was not approved by Congress and was clearly not allowed by law but continued by this administration with impunity until they were caught with their hands in the cookie jar by the New York Times. Then they came to Congress and said: Well, why don't you write a law. Can we help you write a law?

After 9/11, I can remember Senator Rockefeller, Senator Leahy, Senator Specter, and so many others who rose to the occasion and said: We will come together on a bipartisan basis to keep our country safe. We lost 3,000 innocent people. We don't want that to ever happen again. We passed the PATRIOT Act. It wasn't perfect, but it was bipartisan. It had a sunset built into it. We tried to give this Government the tools to keep America safe. There wasn't a lot of grandstanding and speechifying. We did our job.

Then what happened? The Bush administration decided, in so many different aspects of this war on terrorism, to deal Congress and the American people out of the picture from that point forward. We heard rumors about secret programs, and a handful of Members were briefed, I guess; I wasn't one of them. Then, it wasn't until the New York Times told the whole story that we were kind of drawn into this situation, where we are trying to write a law to approve a course of conduct which the administration was undertaking, at least to some degree, without even consulting or conferring with Congress in its constitutional capacity.

The Senate Intelligence Committee and the Senate Judiciary Committee have held a lot of hearings. They have debated how to write this law and voted on a lot of amendments. We are now facing the reality that the Protect America Act, which was passed a short time ago, will expire next Friday, February 1.

Under any circumstances, it would be difficult for the Senate to pass a bill of this complexity, reconcile our differences with the House, and get it all wrapped up in a week. But the President has made it clear he is not going to sign this bill unless it includes an amnesty for telephone companies that cooperated with the administration's warrantless surveillance program. This is a difficult, controversial issue many Members feel very strongly about. I am one of them. The President insists that an amnesty provision for telephone companies be included, and I think that is going to make it impossible for us to meet the February 1 deadline.

Senator Reid, the majority leader, has asked for a 30-day extension of the Protect America Act. Let's continue the current law for 30 days. Let's try to work out our differences. Let's do this in a responsible way. Senator McConnell on the Republican side objected--objected to carrying on the current law for 30 days while we tried to work out our differences. That objection speaks volumes. Even though he opposed the Protect America Act, the majority leader I think was acting in good faith and taking the sensible course of action: Let's try to work these things out and not punish anybody in the process. The current law would stay in effect for another 30 days. The Republican Senate leadership, Mitch McConnell, said no.

Well, that is unfortunate. The spokesperson for the White House said on Tuesday:

The Protect America Act expires in just 10 days, yet after nearly 6 months of delay, Congress still has not taken the necessary action to keep our Nation safe. For the sake of our national security, Congress must act now.

So said the White House 2 days ago.

I can't follow this logic. On the one hand, the White House claims we face grave national security threats if this program expires, and on the other hand, when Senator Reid tries to extend the program for 30 days, the Republican leadership objects. I am sorry, but that doesn't follow.

It is worth recalling what brought us to this point. It is difficult to believe it has been over 6 years since the terrorists struck our country on 9/11. I will never forget that terrible day, and most Americans will not either. And we will never forget what happened afterwards when Congress came together and tried to respond and make our country safe. Sadly, today Osama bin Laden is still on the loose, and al-Qaida is still around and may be growing in size.

I wish the administration had continued the spirit of bipartisanship of the PATRIOT Act. They would have had the full support of Congress and the American people. We showed that with the passage of the PATRIOT Act. But even as we were debating that important law, the administration was secretly implementing torture and surveillance policies totally inconsistent with the values of our Nation. They didn't ask Congress to approve the warrantless wiretapping of innocent Americans or torture techniques such as waterboarding. Instead, they based their policies on the extreme view of some in the administration that the President, as Commander in Chief, was not bound by the law.

They discarded the Geneva Conventions after decades of America saying that was a significant underpinning of our relationship with the civilized world. They rejected it. They called it obsolete, the Geneva Conventions. They opened Guantanamo, which has become an international embarrassment. Former Secretary of State Colin Powell has joined so many others in saying: Close this embarrassment. Yet they continue.

The Justice Department's infamous torture memo narrowly redefined torture as limited only to pain equivalent to organ failure or death. Senator John McCain, a man who was a prisoner of war during Vietnam for years and years, spoke out and led a bipartisan fight to establish standards when it comes to the treatment of prisoners. I was happy to join him on a bill that had more than 90 votes, a strong bipartisan sentiment, a bill which sadly was watered down by a signing statement from this President, and I am afraid--though we may never know--I am afraid it has been ignored at many levels by this administration.

We still fight the Taliban and al-Qaida in Afghanistan, and while we are doing it, the administration has launched a misleading propaganda campaign leading perhaps to the greatest foreign policy blunder in American history: the war in Iraq.

It is worth noting that in a new report issued this week, the Center for Public Integrity concluded:

President George W. Bush and seven of his administration's top officials, including Vice President Cheney, National Security Adviser Condoleezza Rice, and Defense Secretary Rumsfeld, made at least 935 false statements in the two years following September 11, 2001, about the national security threat posed by Saddam Hussein's Iraq. An exhaustive examination of the record shows that the statements were part of an orchestrated campaign that effectively galvanized public opinion and in the process led the Nation to war under decidedly false pretenses.

Is there any more grievous sin in a democracy than for leaders at the highest level to mislead the people of a Democratic Nation into a war with such tragic consequences? Almost 4,000 of our best and bravest-- innocent, hard-working, dedicated, and patriotic soldiers--have given their lives. Countless thousands have been injured because we were misled into a war by this administration.

The administration brooked no dissent from their misleading campaign for war or their misguided counterterrorism policies. If anyone raised an objection, they were branded as soft on terrorism. Who can forget John Ashcroft, our former Attorney General, blaming critics of the administration for spreading "phantoms of lost liberty" and warning "your tactics only aid terrorists"?

Time and again, the administration and their allies pressured Congress to consider controversial proposals immediately before elections. Oh, that is when all the warning bells went off and the threat level colors were changed. We were told there was a threat on the way, and how were we to come to any other conclusion if we didn't see the evidence? What a coincidence that most of those warnings came right before an election. It was Karl Rove's playbook and the administration ran that play over and over and over again.

In 2002, the administration insisted Congress must vote to authorize the war in Iraq before the election or our security would be at risk. Why? White House Chief of Staff Andrew Card explained that "from a marketing point of view" that was the right time to "introduce new products."

In 2004, the administration and its Republican allies in Congress claimed it was imperative to reauthorize the PATRIOT Act before the election or our security would be at risk. This despite the fact it didn't expire until December 31, 2005. Congress chose this date for the express purpose of depoliticizing this debate.

For years, the administration insisted the President had unilateral authority to detain enemy combatants and try them in military commissions. Again and again our Supreme Court rejected the administration's arguments. Suddenly, shortly before the 2006 election, the administration changed course, insisting that Congress must vote to authorize military commissions or our security would be at risk. In fact, the administration's bill included amnesty for administration officials who had authorized illegal torture techniques. How will history judge us, granting amnesty to those who engaged in torture?

It is more than a year since Congress passed the Military Commissions Act. Despite their claims of urgency, the administration has failed to bring a single terrorist to trial.

In the 2006 election, the American people took a stand and rejected the politics and policies of fear and they rejected this administration's scare tactics. One would hope the administration would have learned a lesson. But in 2008, another election year has arrived and, unfortunately, here we go again with an administration continuing to stake out divisive positions on terrorism.

The administration claimed Attorney General Mukasey would turn a new page at the Department of Justice, but he has refused to say even now whether torture techniques known as waterboarding are illegal. During his confirmation hearing, Judge Mukasey promised to review the administration's classified interrogation techniques and assess their legality. It has been 2 months since then and yesterday I wrote to the Attorney General to remind him about that commitment. He has had ample time to study this issue.

Yesterday, the administration announced they were going to renominate Steven Bradbury to be head of the Office of Legal Counsel. This is the office that issues binding legal opinions for the executive branch, including having issued the infamous torture memo. I have repeatedly urged President Bush to withdraw this nomination of Mr. Bradbury because of his involvement in authorizing the administration's controversial interrogation and surveillance policies.

Now, the administration claims our security is at risk in this election year because Congress is allowing the Protect America Act to expire, even though Senator Reid 2 days ago tried to extend it for a month, and the Republican leadership objected. Well, no surprise.

Yesterday, Vice President Cheney weighed in. He gave a speech praising the administration's counterterrorism efforts. He ignored the lessons of the last 6 years. He praised Guantanamo Bay, even though his President has called for closing it, and he praised what he called the CIA's "tougher interrogation program." Well, there is a phrase that is loaded. He claimed the CIA's interrogation techniques comply with our treaty obligations, although the military's top lawyers and others say they violate the Geneva Convention. He said Khalid Sheikh Mohammed, the alleged mastermind of 9/11, had been subjected to the CIA's "tougher" techniques. But the Vice President neglected to mention that 6 years after 9/11, Khalid Sheikh Mohammed and the other 9/11 planners still have not been put to trial. Some experts say it will be impossible to convict him because he was subjected to waterboarding and other torture techniques.

The Vice President urged Congress to pass FISA legislation. Quoting President Bush, he said:

The lessons of September 11 have become dimmer and dimmer in some people's minds.

Mr. Vice President, the American people haven't forgotten 9/11, and we never will.

We also have not forgotten that Osama bin Laden is still free and the resources needed to track him down were diverted to a war in Iraq.

We have not forgotten that the war in Iraq has cost our Nation billions and, tragically, the lives of almost 4,000.

We have not forgotten that instead of working with Congress to prosecute the war on terrorism in a bipartisan fashion that respects American values, this administration chose to go it alone.

We will never, ever forget the blood, sweat, and tears shed by countless American heroes, who fight even as we speak to defend what makes America unique in the world. They fight not to defend any race, religion, or ethnic group; they fight to defend a value--the value upon which our country was founded. We are a nation of laws, not men--not this President, not any President.

In his speech yesterday, the Vice President noted:

The terrorists waging war against this country don't fight according to the rules of warfare, or international law, or moral standards, or basic humanity.

That is true, but America is a lot better than the terrorists.

Ironically, the Vice President also noted:

This cause is bigger than the quarrels of party and agendas of politicians.

Well, that is true as well. I only wish the Vice President and the administration would have heeded his own words and stopped politicizing so many national security issues.

I urge my colleagues to reject the politics of fear and reject the scare tactics of this administration. Support the Judiciary Committee substitute, support the majority leader's request for a 1-month extension in the Protect America Act. We can give the Government the power it needs to protect us, and we can still uphold the rule of law and protect the precious liberties of the American people.

I yield the floor.