The FISA Amendments Act of 2008

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The Presiding Officer: The Senator from New York.

Mr. Schumer: Mr. President, I will speak later on the floor on the FISA amendment. I want to say that I think the Judiciary Committee amendment is careful and balanced and takes into account both security and liberty. I also note, my colleague from Utah talked about the fact that every citizen would need a warrant in terms of wiretapping. There always has been, and will be in this bill, an emergency exception. So if we have to quickly find someone, there will be an ability to wiretap, and then go get the warrant. We do insist, however--and this is one of the big differences on oversight--to make sure those emergency provisions and the other provisions are being used according to law, and it is not willy-nilly, whatever anybody wants at any time in any place.

Mr. President, I ask unanimous consent to speak as in morning business.

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

(The remarks of Mr. Schumer are printed in today's Record under "Morning Business.")

Mr. Schumer: Mr. President, I yield the floor and suggest the absence of a quorum.

The Presiding Officer: The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. Kennedy: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

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

Mr. Kennedy: Mr. President, I strongly urge my colleagues to support the substitute amendment and pass the FISA bill reported by the Judiciary Committee. Since I introduced the original FISA legislation over 30 years ago, I have worked to amend the FISA law many times and I believe that only the bill reported by the Judiciary Committee is faithful to the traditional balance FISA has struck. FISA remains an essential tool in our battle against America's enemies, and the bills introduced by both the Judiciary Committee and the Intelligence Committee give the executive branch vast authority to conduct electronic surveillance that may involve Americans. But the Intelligence Committee bill lacks safeguards to provide oversight and prevent abuse, and Americans deserve better. The Foreign Intelligence Surveillance Act is one of our landmark statutes. For three decades it has regulated Government surveillance in a way that protects both our national security and our civil liberties and prevents the Government from abusing its powers. It is because FISA enhances both security and liberty that it has won such broad support over the years from Presidents, Members of Congress, and the public alike. It is important to remember that before this administration, no administration had ever resisted FISA, much less systematically violated it.

When the Bush administration finally came to Congress to amend FISA after its warrantless wiretapping program was exposed, it did so not in the spirit of partnership but to bully us into obeying its wishes. The Protect America Act was negotiated in secret at the last minute. The administration issued dire threats that failure to enact a bill before the August recess would lead to disaster. Few, if any, knew what the language would actually do. The result of this flawed process was flawed legislation which virtually everyone now acknowledges must be substantially revised.

I commend the members of the Intelligence Committee for their diligent efforts to put together a new bill. They have taken their duties seriously and they have made notable improvements to the Protect America Act. But their bill is deeply flawed and I am opposed to enacting it in its current form. This bill fails to protect America's constitutional rights and fundamental freedoms. It is not just that the Intelligence Committee bill gives retroactive immunity to telecoms, which I strongly oppose; there are also many problems with title I of the Intelligence Committee bill.

First: It redefines "electronic surveillance," a key term in FISA, in a way that is unnecessary and may have unintended consequences. We have still not heard a single good argument for why this change is needed.

Second: Court review occurs only after the fact with no consequences if the court rejects the Government's targeting of minimization procedures. This is a far cry from the traditional role played by the FISA Court.

Third: It is not as clear as it should be that FISA and the criminal wiretap law are the sole legal means by which the Government may conduct electronic surveillance. This leaves open the possibility that future administrations will claim that they are not bound by FISA.

Fourth: Its sunset provision is December 31, 2013. For legislation as complicated, important, and controversial as this, Congress should evaluate it much sooner. After all, the principal argument in support of reforming FISA is that technology has evolved rapidly and the law must change to take this into account. Because this legislation will make major untested changes to the FISA system and the pace of technology change will only increase, we should evaluate it sooner rather than later.

The bill purports to eliminate the "reverse targeting" of Americans, but does not actually contain language to do so. Reverse targeting can occur if the Government wiretaps someone abroad because it wants to listen to a correspondent in the United States, thereby evading the traditional warrant requirement for domestic surveillance. The Intelligence Committee bill has nothing similar to the House bill's provision on reverse targeting which prohibits use of the authorities if "a significant purpose" is targeting someone in the United States.

Mr. President, this legislation does not fully close the loophole left open by the Protect America Act, allowing warrantless interception of purely domestic communications. The administration has acknowledged that when it knows ahead of time that both the person making the call and the person receiving the call are located inside the United States, it should have to get a court order before it can listen in on that call. But the language of the bill doesn't clearly require it.

It does not require an independent review and report on the administration's domestic warrantless eavesdropping program. Only through such a process will we ever learn what happened and achieve accountability and closure on this episode. It is enormously important, Mr. President, that we find out exactly what happened during this period of our history.

Add it all up, and the sum is clear: This bill is inconsistent with the way FISA was meant to work and with the way FISA has always worked.

Fortunately, the Judiciary Committee's FISA bill shows that there is a better way, one that is faithful to the traditional FISA balance. The Judiciary Committee bill shares the same basic structure, but it addresses all of the problems I listed earlier. The Judiciary Committee bill was negotiated in public, which allowed outside groups and experts to give critical feedback. It was also negotiated later in time than the Intelligence bill, meaning we had the benefit of reviewing their work.

Like the Intelligence Committee's bill, the Judiciary Committee's version also gives the executive branch significantly greater authority to conduct electronic surveillance than it has ever had before. Make no mistake, it, too, grants substantial power to the intelligence community. But unlike the Intelligence Committee's bill, the Judiciary Committee's version sets reasonable limits to protect innocent Americans from being spied on by their Government without justification.

No one should underestimate the importance of title I of FISA. The rules governing electronic surveillance affect every American. They are the only thing that stands between the freedom of Americans to make a phone call, send an e-mail, and search the Internet, and the ability of the Government to listen in on that call, read that e-mail, and review that Internet search.

In our information age, title I of FISA provides Americans essential protections against Government tyranny and abuse. We have a choice. We can adopt the Judiciary Committee's bill and preserve those protections or we can adopt the Intelligence Committee's version of title I and abandon them.

As I have said before, I also strongly oppose title II of the Intelligence Committee bill, which grants retroactive immunity to the phone companies. At the appropriate time, I will come to the floor and explain why we must strike title II.

Mr. Graham: Mr. President, I rise today in support of the bipartisan FISA legislation passed by the Senate Select Committee on Intelligence. This legislation, which was passed by the Intelligence Committee on a 13-2 vote, will give the intelligence community the tools it needs to effectively protect our Nation. It is not a perfect bill, but it is the balanced product of months of hard work by the Intelligence Committee members and their staff.

On the other hand, the substitute amendment proposed by the Judiciary Committee would have substantially weakened the Intelligence Committee legislation and our nation's ability to protect itself. Unlike the bipartisan Intelligence Committee bill, the Judiciary Committee legislation was passed on a series of party-line 10-9 votes. The substitute would have added onerous and unnecessary hurdles to the collection of vital national security intelligence. It would have hamstrung our intelligence community at a very dangerous time in our country's history. I am pleased that the Senate quickly rejected the Judiciary Committee substitute. It would have been foolhardy for the Senate to hinder America's ability to protect itself from terrorists and other threats by gutting the Intelligence Committee bill.

Perhaps the biggest failure of the Judiciary substitute is its lack of a retroactive immunity provision for electronic communication service providers who are alleged to have assisted the government with intelligence activities in the aftermath of September 11. The telecommunications companies that lawfully responded to written requests from their government to help protect the nation need and deserve immunity from frivolous lawsuits that seek hundreds of billions of dollars in damages.

The Intelligence Committee bill includes a responsible retroactive immunity provision to protect the telecommunications companies that aided the government in the wake of the September 11 attacks. However, it leaves legal actions against the government and government officials untouched. The Judiciary Committee substitute does not address the critical need for retroactive immunity for cooperating companies and would risk a future where companies refuse to cooperate with vital government intelligence operations, lest they risk massive legal liability. Without immunity, our Nation faces a substantial decrease in future intelligence. Such a decrease would endanger American lives and is simply unacceptable.

Again, while not a perfect bill, the Intelligence Committee legislation would appropriately balance national security and individual civil liberties. Our intelligence community must be able to gather the information necessary to effectively protect the country. The Intelligence Committee bill is a bipartisan compromise with effective safeguards. The Senate should quickly pass this legislation to give the intelligence community the tools it needs to protect America.

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

Mr. Bond: Mr. President, I ask unanimous consent that I be given the full 15 minutes that was allotted to us before the 2 o'clock vote. I have some remarks, and I believe Senator Rockefeller, if we need that, would like the full 15 minutes.

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

Mr. Bond: Mr. President, last night, as I was preparing to leave my office, I learned, with surprise, that Senator Leahy had made significant modifications to the pending Judiciary Committee substitute.

Our study during the night of these modifications revealed that the partisan, Democratic-only Judiciary Committee substitute remains deeply flawed.

While some aspects of the modified substitute have been cleaned up-- and, in fact, appear to borrow language that Senator Rockefeller and I have been negotiating over the past several months as part of our perfecting managers' amendment--the substitute contains many problematic provisions that I cannot support.

In contrast to the underlying Intelligence Committee bill, I doubt that the problematic provisions in the modified substitute were vetted with the Republican Judiciary Committee members, the intelligence community, or the Department of Justice.

It should be no surprise, then, that the DNI and the Department of Justice continue to oppose the modified substitute.

Let me clarify some matters that were brought up by the distinguished senior Senator from Massachusetts. First, the Protect America Act, which expires on February 1, was not negotiated in secret. The DNI asked the Intelligence Committee in April to consider a bill he set up. He came before our committee and testified openly in May. He came before the Senate in a classified meeting in S-407 in June. When we had not been able to get a markup in the Senate Select Committee on Intelligence and time was running short, he offered a stripped-down version that would allow intelligence collection to continue. We were unable to get a markup, so we filed with Leader McConnell the bill on Wednesday. That bill sat on the floor Wednesday, Thursday, and Friday.

There were secret negotiations, but those were on the majority side. The chairmen of several committees worked without informing the members of the Intelligence Committee or, to my knowledge, any Republicans on any of the committees, and they finally presented that to us less than an hour before we went to the floor. So that was negotiated in secret. It was unacceptable, and it did not allow intelligence collection to continue. I am glad to say, on a bipartisan basis, we rejected the secretly negotiated bill and passed the Protect America Act.

The Protect America Act did not expand on the authorities of FISA, other than to clarify the means of collection, which previously were by radio. Most communications overseas are by radio. Many communications were going through America. This bill before us today, the Intelligence Committee bill, does not, as my friend said, expand on the powers of the intelligence community to collect. In fact, they impose more restrictions to guarantee the privacy rights and the constitutional rights of Americans. Those are in the bill. Those were negotiated. We pushed the DNI and the Department of Justice lawyers as far as we could to build in additional protections. Those are in the bill.

Now, if one reads the bill, you would see that reverse targeting is prohibited in section 703(b), subparagraphs 2 and 3. It does strengthen the privacy protections. That is why the Senate Intelligence Committee bill is the bill that we should pass.

Moving back to the Judiciary Committee substitute, there is no provision for retroactive or prospective immunity for communications providers or for preemption of State investigations into providers' alleged assistance to the Government in relation to the terrorist surveillance program.

The distinguished chairman of the committee, Senator Rockefeller, laid out at length, and very forcefully, why this protection is needed. This protection is needed to assure that we can have the continued assistance of carriers who might be called on not only in terrorist matters but on many domestic crimes to provide assistance. Furthermore, if we don't have that protection, if these lawsuits continue, it is quite likely that the court proceedings will get into details further on how the collection of electronic information and communications is accomplished. Every time we talk about that and lay out more, we give more information and more guidance to the terrorists themselves on how to avoid our surveillance. We don't want to be in that position.

The next problem with the substitute from the Judiciary Committee is that, unlike the managers' amendment that Senator Rockefeller and I intend to offer for the Senate's consideration, the new substitute doesn't fix the reporting problems of the Wyden amendment, which had a great objective--and I agreed with the objective--but it is unworkable. We are going to make it workable in our bill.

Furthermore, it requires the intelligence community to perform the impossible task of estimating and recording U.S. person communications in its possession. Anybody who wants to know why that is so, we would be happy to meet with them in a closed meeting and explain why that is not workable. It would be an impossible burden, one we cannot undertake on the committee.

Next, the substitute modifies the exclusive means provision from the original substitute, but it is still problematic and requires an express statutory authorization. That presumes that after the next attack Congress will be in a position to act quickly to pass necessary authorizations. I don't think we want to impose that provision.

The underlying Intelligence Committee bill provides the same exclusive means, directions, and limitations that were in the FISA bill initially.

Another problem with the Judiciary Committee bill is that it places a provision in the Intelligence Committee bill that would have allowed collection to continue until the FISA Court of review has--if they had gotten an unfavorable ruling from one judge, it allows collection to continue until the court of review rules on it. This is a real problem if there is one unfavorable opinion that might put us deaf to collections that are necessary.

The Intelligence Committee determined that anything except an automatic stay through the FISA Court of review could jeopardize our intelligence collection. This was already a compromise from the full automatic stay that was in the Protect America Act.

Next, the substitute would impose unreasonable new restrictions on the use of foreign intelligence information, including information not concerning U.S. persons, obtained or derived from acquisitions using targeting procedures that the FISA Court found to be deficient in some manner, throwing out vital terrorist information because we didn't protect the constitutional rights or there were some procedural flaws in targeting a foreign terrorist in a foreign land.

It creates a superexclusionary rule in the foreign intelligence arena that is at odds with the 9/11 Commission's mandate for the intelligence community to find and link disparate pieces of foreign intelligence information.

Read what they said. It was important. They said we are not sharing information, and we need to share information within the community if we are going to have a chance to prevent the next 9/11.

On reverse targeting, the substitute changes the bright-line reverse targeting provision in S. 2248 to a new rule that changes "the purpose" to "a significant purpose." This change is a significant concern to the DNI and DOJ. They told us it creates so much uncertainty in the appropriate legal standard for collection, and it may confuse analysts trying to follow the standards. This could inadvertently lead to less robust intelligence collection.

Under the bulk collection, while the new substitute modifies the bulk collection prohibition in the original Judiciary Committee substitute, it doesn't solve the problem. This provision could have significant unintended operational consequences, and it is unnecessary given restrictions in S. 2248 about intentionally targeting persons in the United States.

As I said, for example, if a general is about to order troops into Fallujah, this prohibition could impede the ability of the intelligence community to listen to calls coming into and out of that city without a court order.

The FISA Court would be commanded, under the Judiciary Committee's substitute, to assess compliance with minimization procedures used for the acquisition of foreign intelligence information from individuals outside the United States. As I reported earlier in my floor speech, there is a FISA Court opinion, In Re: Motion For Release, December 11, stating:

The Court recognizes the executive branch has the expertise in national security, and the Court should not be making judgments as to which particular surveillance unit should be conducted.

Finally, it replaces a 6-year sunset with a 4-year sunset. As the Senator from Massachusetts said, this bill ought to be reviewed continually. Exactly. That is what the intelligence community should do. We should not have a provision that would sunset the authority for our collection of vital information. But we should have continuing oversight which the Intelligence Committees have provided and will continue to provide to make sure that collection is proceeding in a manner consistent with the Constitution, with the laws, and the regulations overseeing it.

We provide a robust oversight of the NSA collection. That collection must be done in a manner consistent with the guidelines that Congress has laid down, the Constitution has laid down, and the administration has laid down. If there is any problem with that, then it is up to the Intelligence Committees of both Houses to bring before the Congress, if we cannot correct it by interceding with the people in the agency, a bill to change it.

I see my chairman, Senator Rockefeller, is here. I will be glad to yield the remaining 3 minutes of my time to the distinguished chairman of the committee.

Mr. Leahy: Mr. President, what is the parliamentary situation?

The Presiding Officer: The Senator from Missouri controls 2½ minutes. The Senator from Vermont controls 14 minutes.

The Senator from West Virginia.

Mr. Rockefeller: Mr. President, I wish to take a few minutes to describe to the Senate my views on the amendment reported by the Judiciary Committee, and why I will be opposing the amendment when we vote at 2.

First, I wish to repeat a few comments I made in my opening remarks when we debated the motion to proceed to S. 2248 in December.

From the beginning of the Senate's consideration of foreign intelligence surveillance legislation in 1976, the resulting law--the Foreign Intelligence Surveillance Act of 1978--has been the joint responsibility of both the Intelligence and Judiciary Committees. FISA is, after all, a law that concerns both intelligence collection and judicial proceedings.

The bill now before the Senate, S. 2248, was reported to the Senate by the Intelligence Committee last October, and then sequentially reported to the Senate by the Judiciary Committee in November.

As a parliamentary matter, the measure as reported by the Judiciary Committee is the pending amendment to the bill reported by the Intelligence Committee.

I agree with a number of the recommendations of the Judiciary Committee. I have been pleased to work with members of the Judiciary Committee on modifications that address particular concerns that had been raised by the administration.

I will accordingly support individual amendments to add those recommendations, as modified when necessary, to S. 2248. These include a strengthened exclusivity provision, a 4-year sunset, court review of compliance with minimization procedures, and an inspectors general report on the President's warrantless surveillance program in order to ensure there is a comprehensive historical record of that experience.

While I support many aspects of the Judiciary amendment, I cannot agree with recommendations of the Judiciary Committee that may have an adverse impact on U.S. intelligence collection or collection analysis, and that are not warranted by a realistic concern about U.S. privacy interests.

If any of those provisions are offered as individual amendments, I will, of course, study them, but must reserve the right to oppose them.

I will illustrate my concern by describing two provisions of the Judiciary amendment.

The Judiciary Committee substitute contains a "significant purpose" requirement. This has been described as a way to prevent reverse targeting--that is, conducting surveillance of a person overseas when the real target of the surveillance is a person within the United States.

The Intelligence Committee bill already explicitly codifies the existing prohibition on reverse targeting. What the Judiciary Committee substitute actually does is turn the reverse targeting prohibition on its head. I fear it would impose a new affirmative requirement that the government must seek a FISA Court order when in the course of targeting a foreign person outside the United States the government incidentally collects the communications of U.S. persons.

This is unworkable and would create untenable gaps in our intelligence coverage without significantly enhancing the privacy of Americans. Incidental communications with or about Americans should be handled properly, through minimization--a process that is strengthened in our bill. But the fact that there may also be a foreign intelligence interest when a foreign target is in contact with the United States should not be the cause of making it more difficult to undertake the surveillance of the foreign target.

The Judiciary Amendment also includes a provision altering the consequences of a FISA Court determination that there is a deficiency in the Government's targeting or minimization procedures under the new foreign targeting authority that will be enacted in S. 2248. Upon such a court determination, the Intelligence Committee bill would require the Government to either correct the deficiency or cease new acquisition.

The Judiciary Committee provision goes beyond the requirement that deficiencies be corrected or new acquisitions ceased. It would take the further step of preventing all use of information already acquired under the new procedure that concerns U.S. persons, unless the Attorney General determines that the information indicates a threat of death or serious bodily harm.

The provision is impractical. And it creates risks that we will lose valuable intelligence.

The Judiciary Committee provision would require intelligence analysts to go through all of the intelligence that had been collected under the new process--presumably a very large collection of materials--to identify information that might be subject to the restriction and make sure that it had been not used in disseminated intelligence.

Even for minor deficiencies in procedures, this provision would therefore require the Intelligence Community to discard information that might constitute significant intelligence, and to focus its analytical resources on satisfying this provision rather than collecting and analyzing new intelligence. In my view, this allocation of resources makes no sense.

At the end of our debate this morning, the Senate will be asked to vote on the pending Judiciary Committee amendment as a whole, either by way of a tabling motion or directly on the amendment.

Although, as I have indicated, there are parts of the Judiciary amendment that I look forward to supporting, there are two reasons, with all respect to the members of the Judiciary Committee, why I cannot support the pending substitute amendment as a whole.

The first is that the form, and consequently the effect of the amendment, goes beyond what the members of the Judiciary Committee decided during their deliberations, and guts key parts of S. 2248 beyond any reasons agreed to by a majority of the Judiciary Committee.

S. 2248 has two substantive titles, in addition to a third title on transition procedures.

The first title addresses intelligence collection; it is the direct replacement of the Protect America Act.

The second title addresses the many lawsuits against telephone and internet companies for their alleged cooperation with the Government.

At its markup, the Judiciary Committee rejected, by a clear 7-to-12 vote, an amendment to strike title II on liability protection. Previously, the Intelligence Committee had voted against striking title II by a 3-to-12 vote. In short, while there may be good ideas, that certainly merit debate, about improving title II, there has not been majority support in the Senate for striking it.

Yet, notwithstanding the lack of support in either the Judiciary or Intelligence Committee for striking title II, the form in which the Judiciary Committee reported its amendment would do just that.

We will welcome a debate about improving title II, but on behalf of the Intelligence Committee--which voted overwhelmingly for title II--I must defend keeping title II in the base text before the Senate. For that reason alone, I must oppose the Judiciary amendment, even as I support individual elements of it.

Second, as I have previously mentioned, even with respect to title I, there are portions of the Judiciary amendment that I must oppose on the ground that they will have an adverse impact on intelligence collection or the use of intelligence that is not warranted by a realistic concern about U.S. privacy interests.

Accordingly, with great respect for my colleagues on the Judiciary Committee, I will vote against the Judiciary amendment. I also look forward to joining them in urging the adoption of specific amendments to improve the Intelligence Committee bill.

The Presiding Officer: The Senator's time has expired.

The Senator from Vermont.

Mr. Leahy: Mr. President, obviously I disagree with the description of the Senate Judiciary Committee's amendment. I spoke on this yesterday, but I am going to take a few minutes to describe what is in the Judiciary Committee's bill.

I support the Judiciary Committee amendment to the FISA Amendments Act of 2007. The Judiciary Committee amendment would make important improvements to the Intelligence Committee bill, at the same time maintaining its structure and its authority.

The so-called Protect America Act was rushed through the Senate last summer in an atmosphere of fear and intimidation. We even saw a key member of the administration make commitments to numerous Senators, Republicans and Democrats, on that bill and then break his word, first to us and then on national television.

It was a bad bill that has provided sweeping new powers to the Government. It imposes no checks on the Government and provides no oversight or protection for Americans' privacy.

The Intelligence Committee did important work last fall in crafting a bill that begins to walk back from the excesses of the Protect America Act. I commend both Senator Rockefeller and Senator Bond for that. But two committees in the Senate have jurisdiction over FISA the Intelligence Committee and the Judiciary Committee.

The Intelligence Committee acted first to establish a good structure for conducting critical overseas surveillance. The Judiciary Committee's amendment maintains that structure and the authority for surveillance. But in my view and in the view of many Senators, the Intelligence Committee bill does not do enough to protect the rights of Americans. Indeed, many members of the Intelligence Committee voted for that bill knowing that the Judiciary Committee would have an opportunity to improve it, and they expected us to do that.

FISA is among the most important pieces of legislation this Congress has passed. It is there to provide a mechanism to conduct surveillance, it is critical to our security, but also protect the privacy and civil liberties of all Americans.

Let's be clear, this new authority expands FISA to allow more flexibility to conduct surveillance. If we are going to expand surveillance, we have to take great care to protect American civil liberties, and that is what the Judiciary Committee adds.

I praise the members who serve on both the Judiciary and Intelligence Committees--Senators Feinstein, Feingold, and Whitehouse, who contributed so much to the Judiciary Committee's efforts to improve this legislation. These Senators and others on the Judiciary Committee worked hard to craft amendments that preserve the basic structure and authority in the bill reported by the Select Committee on Intelligence, while adding crucial protections for Americans.

The Judiciary Committee bill makes about 12 changes to the Intelligence Committee bill. Let me address a few of them.

First, the Judiciary Committee bill contains a very strong exclusivity provision. This provision makes clear that the Government cannot claim authority to operate outside the law--outside of FISA-- from measures that were never intended to provide such exceptional authority.

This administration argues that the Authorization for the Use of Military Force, passed after September 11, provided the justification for conducting warrantless surveillance of Americans for more than five years. No, what it did was authorize going into Afghanistan to get Osama bin Laden--the man who masterminded the attacks on 9/11. Not only did the administration fail to do that, it took our troops out of Afghanistan--when they had bin Laden cornered--to invade Iraq.

When we authorized going after Osama bin Laden, we did not authorize explicitly or implicitly the warrantless wiretapping of Americans. Yet this administration still clings to this phony legal argument. The Judiciary Committee bill would prevent that dangerous contention with strong language reaffirming that FISA is the exclusive means for conducting electronic surveillance for foreign intelligence purposes. The Senate Intelligence Committee's bill would do nothing to preclude the AUMF argument in the future.

We also provide a more meaningful role for the FISA Court in this new surveillance. This court is a critical independent check on Government excess in the sensitive area of electronic surveillance.

The fundamental purpose of many of the Judiciary Committee changes is to ensure that this important independent check remains meaningful, while maintaining the flexibility of "blanket" orders, which we all agree are necessary. The Intelligence Committee bill would give the FISA Court only a very limited role in overseeing surveillance.

The Judiciary Committee bill would give the FISA Court the authority it needs to assess the Government's compliance with minimization procedures. It would allow the Court to request additional information from the Government, and allow the Court to enforce compliance with its orders. The amendment would also give the court discretion to impose restrictions on the use and dissemination of Americans' information if it is collected unlawfully.

The Judiciary bill would make other important changes. It reduces the sunset for this new law from 6 years to 4 years. This was Senator Cardin's amendment. There is too much here that is new and untested to allow the authorities go longer than even the next President's term before requiring a thorough review. It clarifies that the bill does not allow bulk collection that would simply sweep up all calls into and out of the United States. It also clarifies that the Government may not use this new authority to target Americans indirectly if they are not allowed to do it directly. The administration says it would never do this. They have no credibility. The Judiciary Committee's bill would make sure they keep their word.

Finally, the Judiciary Committee bill includes a requirement that inspectors general, including the Department of Justice inspector general, conduct a thorough review of the so-called Terrorist Surveillance Program and report back to the Congress and, to the extent it can in an unclassified version, to the American people.

The Department of Justice inspector general will have the responsibility to look at, among other things, the process at the Department of Justice that limited knowledge and review of important legal decisions to a tiny group of like-minded individuals, at great cost to the rule of law and American values. This is a key measure that would finally require accountability for this administration. We have not yet had anything close to a comprehensive examination of what happened and how it happened. We cannot expect to learn from mistakes if we refuse to allow them to be examined.

I strongly oppose a provision in the Intelligence Committee bill that would grant blanket retroactive immunity to telecommunications carriers for their warrantless surveillance activities from 2001 through earlier this year. That provision goes even beyond the so-called Protect America Act. It would insulate this administration from accountability for its lawbreaking. The Judiciary Committee bill does not have that provision. I know that will be a separate debate on this floor.

With the authority of a majority of the Judiciary Committee members, I made a few changes to the amendment as we reported it in November. There are no major additions or deletions. The original 12 changes are still there. The revised version makes some changes to address technical issues and concerns the administration raised about our substitute. We have considered the Statement of Administration Policy from last December and we have talked with the administration. We have listened and made changes that we think address some legitimate concerns.

For example, we have revised the exclusivity provision. The provision in the earlier version of the Judiciary Committee amendment could have been read to extend the scope of FISA in a way that was not intended. We corrected that.

Another concern we addressed was about the issue of staying FISA Court decisions pending appeal. The Intelligence Committee bill would automatically stay FISA Court decisions, thereby requiring possibly illegal surveillance to continue throughout a lengthy appeal process. The original Judiciary Committee amendment left the decision about a stay to the discretion of the FISA Court judges--which is how it is typically done in courts. The administration was concerned that this left too much power to stop surveillance in the hands of a lone judge. We listened and made a change that would permit the stay decision to be made--promptly--by a panel of the FISA Court of Review.

Another change we made to address an administration concern was the important IG audit provision. That provision now makes it clear that no department inspector general has the authority to conduct a review of another department.

These revisions make the Judiciary Committee's product stronger. I think overall the Judiciary Committee's bill dramatically improves the Intelligence Committee bill. As the distinguished chairman of the Intelligence Committee said, we included a number of items he supports. If this gets voted down, these are changes that Senators will have to offer piece by piece, and will. Most of it will be germane after cloture. If we really want to conclude this FISA debate quickly, adopting this amendment will save the Senate countless hours of debate. I urge my colleagues to support this amendment. Now, Mr. President, what is the parliamentary situation?

The Presiding Officer: The Senator from Vermont has 2 minutes 40 seconds.

Mr. Leahy: Mr. President, let me just talk about this a little bit.

Incidentally, I ask for the yeas and nays on my amendment.

The Presiding Officer: Is there a sufficient second?

Mr. Bond: I am going to offer a motion to table, but yes.

The Presiding Officer: There appears to be a sufficient second.

The yeas and nays were ordered.

Mr. Leahy: Mr. President, we all want to be able to collect intelligence on terrorists. When I came here, during the Cold War, we wanted to be sure we could collect on our adversaries. We still want to be sure we can do that. That is why I have voted for dozens of changes to FISA over the years, requested by both Republican and Democratic administrations. I voted for them because the administrations made a clear and convincing case each time that we needed a change to keep up with the technology or to keep up with a changing threat.

But let's not be so frightened by terrorists that we go back to the situation we had during the Watergate era, when we found our Government was spying on people who disagreed with it. The government spied on people who had legitimate concerns about, for example, the war in Vietnam or the excesses of J. Edgar Hoover. The government could do that back then because there were no checks and there was no oversight. We do not want to go back to that time. We can do our intelligence gathering and protect Americans at the same time.

Now, Mr. President, has my time expired?

The Presiding Officer: The Senator from Vermont has 30 seconds.

Mr. Leahy: Is that the only time anybody has?

The Presiding Officer: The Senator is correct.

Mr. Leahy: I yield back all time.

The Presiding Officer: The Senator from Missouri.

Mr. Bond: Mr. President, I move to table, and I ask for the yeas and nays.

The Presiding Officer: Is there a sufficient second?

There appears to be a sufficient second.

The question is on agreeing to the motion to table the Judiciary Committee substitute, as modified. The clerk will call the roll.

The legislative clerk proceeded to call the roll.

Mr. Durbin: I announce that the Senator from New York (Mrs. Clinton) and the Senator from Illinois (Mr. Obama) are necessarily absent.

Mr. Kyl: The following Senators are necessarily absent: the Senator from South Carolina (Mr. Graham) and the Senator from Arizona (Mr. McCain).

The Presiding Officer (Mr. Webb): Are there any other Senators in the Chamber desiring to vote?

The result was announced--yeas 60, nays 36, as follows:

Rollcall Vote No. 2 Leg. - Motion to Table Judiciary Committee Substitute Amendment, as Modified, to S.2248
YEAS--60
Alexander	Allard	Barrasso	Bayh	Bennett
Bond	Brownback	Bunning	Burr	Carper
Chambliss	Coburn	Cochran	Coleman	Collins
Corker	Cornyn	Craig	Crapo	DeMint
Dole	Domenici	Ensign	Enzi	Grassley
Gregg	Hagel	Hatch	Hutchison	Inhofe
Inouye	Isakson	Johnson	Kyl	Landrieu
Lieberman	Lugar	Martinez	McCaskill	McConnell
Mikulski	Murkowski	Nelson (FL)	Nelson (NE)	Pryor
Roberts	Rockefeller	Salazar	Sessions	Shelby
Smith	Snowe	Specter	Stevens	Sununu
Thune	Vitter	Voinovich	Warner	Wicker
NAYS--36
Akaka	Baucus	Biden	Bingaman	Boxer
Brown	Byrd	Cantwell	Cardin	Casey
Conrad	Dodd	Dorgan	Durbin	Feingold
Feinstein	Harkin	Kennedy	Kerry	Klobuchar
Kohl	Lautenberg	Leahy	Levin	Lincoln
Menendez	Murray	Reed	Reid	Sanders
Schumer	Stabenow	Tester	Webb	Whitehouse
Wyden
NOT VOTING--4
Clinton	Graham	McCain	Obama

The motion was agreed to.

Mr. Bond: I move to reconsider the vote and to lay that on the table.

The motion to lay on the table was agreed to.

The Presiding Officer: The majority leader.

Mr. Reid: Mr. President, there will be an amendment offered by Senators Rockefeller and Bond. It is a substitute that will be pending for a while. What we are going to try to do over here, I have spoken to a number of Members who want to offer amendments relating to title I. We are working out an order in which they will be offered. What we would like to do is have a number of them offered, debated, and have a time this afternoon that we can vote on all of them in succession. We will try to finish all the title I amendments, and then we will move to title II. We hope there isn't a lot of time spent on each amendment, but Members have a right to take whatever time they want. In an effort to make this more understandable, rather than jumping back and forth, title I and title II, on this side we will try to offer amendments as they relate to title I.

We understand there is no requirement to do this. But if there are amendments the minority wants to offer, we will certainly be cooperative and make sure we have the ability to go back and forth.

The Presiding Officer: The Senator from Wisconsin.

Mr. Feingold: Mr. President, I ask unanimous consent that the pending amendment be set aside and I call up amendment----

Mr. Reid: Mr. President, the Senator from Wisconsin has been very patient. As soon as Senators Rockefeller and Bond finish offering their substitute, I ask unanimous consent that Senator Feingold have the floor.

The Presiding Officer: Is there objection?

Mr. McConnell: I will object momentarily. I wish to discuss the matter with the majority leader. Let's have Senator Rockefeller and Senator Bond go ahead.

The Presiding Officer: Objection is heard.

Mrs. Murray: I suggest the absence of a quorum.

The Presiding Officer: The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

Mr. Reid: I ask unanimous consent that the order for the quorum call be rescinded.

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

The Senator from West Virginia is recognized.

Amendment No. 3911

Mr. Rockefeller: Mr. President, I send an amendment to the desk on behalf of myself and Senator Bond and ask for its immediate consideration.

The Presiding Officer: The clerk will report.

The assistant legislative clerk read as follows:

The Senator from West Virginia [Mr. Rockefeller], for himself and Mr. Bond, proposes an amendment numbered 3911.

Mr. Rockefeller: I ask unanimous consent that reading of the amendment be dispensed with.

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

(The amendment is printed in today's Record under "Text of Amendments.")

Mr. Rockefeller: Mr. President, the distinguished vice chairman, Senator Bond, and I have joined in a bipartisan amendment to S. 2248, the FISA Amendments Act of 2008. The Rockefeller-Bond amendment perfects various details of the underlying bill but its main purpose is to provide explicit statutory protection, for the first time in the 30 years of FISA, for Americans who are outside the United States.

The amendment stands for the simple proposition that Americans, whether they are working, studying, traveling or serving in our Armed Forces outside the United States, do not lose their rights as Americans when it comes to the actions of their own Government. In 1791, when the Bill of Rights was ratified, including, of course, the fourth amendment, which protects our people from unreasonable search and seizure, there were 4 million Americans. That was it. Now that very number of Americans, 4 million, lives outside the United States and, of course, many millions more travel each year outside the United States.

Because this amendment is so important and because it has gone through so much development to reach the point at which we have now arrived, I would like to take, frankly, a few minutes to describe its origin and evolution, with the forbearance of my colleagues.

The protection of Americans outside the United States may have been the single most important piece of business left undone by the original FISA statute created in 1978. To fill that void, President Reagan issued an executive order, Executive Order 12333, that addresses the use of intelligence techniques such as electronic surveillance or unconsented searches against Americans abroad.

Executive Order 12333 requires that intelligence agencies have procedures and that those procedures protect the constitutional rights of Americans overseas. It also requires the Attorney General to determine that there is probable cause to conclude that the American overseas is an agent of a foreign power before the U.S. Government undertakes electronic surveillance or conducts searches abroad against that person. That was good but insufficient. In our country of laws, we do not usually leave it, outside of an emergency, to any Attorney General to decide alone whether there is probable cause for a search. That is a decision which we entrust to neutral judges.

Our bipartisan amendment--Senator Bond's and mine--makes sure Americans do not lose that important protection by setting foot outside the United States.

Vice Chairman Bond and I took the first step when we included, in our October Intelligence Committee mark, a provision concerning acquisition by the intelligence community of the communications of U.S. persons abroad.

We focused our proposal on the circumstance when the Government is seeking those communications from electronic communication providers within the United States. We did not address the targeting of U.S. persons overseas by intelligence community collection methods that are employed outside the United States.

The provision before the Intelligence Committee in its October markup would have allowed the Attorney General to determine that a U.S. person outside the United States was a foreign power, agent of a foreign power, or an officer or employee of a foreign power, and then target that person for collection. Under our proposal, the Attorney General would then have been required to submit that probable cause determination to the FISA Court for review.

But as the chairmen and ranking members of committees sometimes learn from their full membership of their committees, important ideas may require broad solutions.

During our committee markup, Senator Wyden offered an amendment on targeting U.S. persons abroad that substituted two new sections in place of the language described above on targeting U.S. persons abroad.

First, the Wyden amendment required the Government to obtain a standard FISA order for electronic surveillance--known as a title I order--before the Government could target U.S. persons outside the United States by seeking their communications from providers in the United States.

Thus, rather than the new procedure described in our chairman and vice chairman mark, the amendment required a title I FISA application and order whenever the collection against an American abroad occurred with the assistance of a provider in the United States.

Second, the Wyden amendment required that the Government, when acting outside the United States, obtain a FISA Court order before targeting the communications of U.S. persons located outside the United States.

Specifically, it required a FISA Court order that there was probable cause to believe that the U.S. person who was the target of surveillance was, in fact, a foreign power or an agent of a foreign power before the Government employed surveillance techniques outside the United States. This second part of the Wyden amendment implemented an entirely new concept of law.

A court order has never before been required for foreign intelligence collection that is conducted entirely outside the United States, even if that collection involves U.S. persons. But while new, it quickly became evident it was an idea whose time had come. The Wyden amendment passed the committee with a vote of 9 to 6.

Yet, as often is the case for an initial amendment of such magnitude, it was also immediately clear that further work needed to be done before the proposal became law to make sure it worked well in practice.

During the markup, Senator Whitehouse, who is a member of the Judiciary Committee--and in his first year in this body has already emerged as a leading legal voice among us--stated he would be willing to work on the language of the amendment in the Judiciary Committee, on which he also serves, during the sequential referral process to ensure that it achieved its desired goal and did not result in unintended decreases in collection.

Senator Whitehouse, working with the Department of Justice, was largely responsible for the changes made to the provision on U.S. persons outside the United States that is included in the Judiciary Committee substitute amendment. It is a good amendment.

He focused his efforts to changes on the second part of the section, the portion relating to collection of electronic communications outside the United States. The provision requiring a traditional FISA electronic surveillance application for collection inside the United States remained mostly unchanged in the Judiciary Committee markup.

The Judiciary Committee amendment makes some necessary technical fixes to the section on collection outside the United States. It stressed that the FISA Court would only be permitted to assess the question of probable cause for collection outside the United States, not the methods of acquisition of the information, as any such inquiry might delve into very sensitive intelligence matters.

The Judiciary Committee section on collection outside the United States also made three other important changes:

First, the addition of emergency procedures, similar to those included in other parts of FISA, that would allow the Attorney General to acquire the information as long as a subsequent order is obtained; second, a more explicit, individualized review of minimization procedures; and, third, the addition of procedures to transition current acquisitions under Executive Order 12333 over to the new procedure.

The managers' amendment, offered by Senator Bond and myself, now seeks to complete this process by fully integrating the new procedure into the overall reforms contained in the FISA Amendments Act of 2008 and does so in a manner that maintains an effective system of intelligence collection.

In the course of doing that, we have sought to resolve, in conjunction with the Department of Justice and the intelligence community, several problems identified with the Judiciary Committee substitute.

The most significant changes in the managers' amendment have been made to the first part of the Wyden amendment: the requirement that the Government obtain standard electronic surveillance--title I--orders for the targeting of U.S. persons abroad that occurs within the United States.

That provision, as of this moment, remains a part of our base bill and will remain so until an amendment is adopted. As I will discuss in more detail, our proposed changes are required because the language of this provision, as reported out of both the Intelligence and Judiciary Committees, would prevent certain types of important foreign intelligence collection.

First, the definition "agent of a foreign power" in FISA, which requires a U.S. person to have engaged in certain types of wrongdoing, is different than the definition of "agent of a foreign power" that has traditionally been used in overseas collection against Americans.

The Director of National Intelligence has therefore proposed, and we agree, that collection against a U.S. person abroad should be expanded beyond "agent of a foreign power" to "an officer or employee of a foreign power," to cover the types of collection that have traditionally been allowed against U.S. persons overseas.

For example, the notorious Charles Taylor, the former President of Liberia, who is now charged with crimes against humanity, is an American who was an officer of a foreign power.

Second, the Judiciary Committee provision did not deal with the issue of stored electronic communications or stored electronic data, the collection of which is dealt with under title III rather than title I of FISA and which are an important part of the acquisition system that is established by the new title VII that S. 2248 will add to FISA.

To address this issue, the managers' amendment that Senator Bond and I are proposing, after extensive technical consultations with the intelligence community and the Department of Justice, adds two sections to the new title VII in our committee's bill, and, in so doing, addresses the intelligence collection concerns identified by the Director of National Intelligence.

By placing all the relevant detail for collection against U.S. persons overseas in the same new title of FISA--title VII--that includes all other procedures for persons outside the United States, the managers' amendment provides a comprehensive, consolidated roadmap for all those in the intelligence community, the Department of Justice, and the FISA Court who will have the responsibility to implement our amendment.

In conclusion, I would like to underscore some major points.

As is evident from everything I have described, it is important to thank two members of our committee for their work on this issue of targeting Americans overseas.

Senator Wyden, obviously, is one of those. I wish to recognize his leadership at all times in this area. He recognized the importance of the issue and successfully offered an amendment at the Intelligence Committee mark-up that broadened the protections contained in our bill.

Senator Whitehouse has been indispensable contributor to the effort on this provision as well, quietly working out problems and making things work better. His work goes a long way toward ensuring that the provision can be successfully implemented by the intelligence community, which is key.

By adopting this amendment on a bipartisan basis, the Intelligence Committee--and now the vice chairman and myself in our managers' amendment--seek to ensure that Americans are protected from unwarranted surveillance, whether they are inside or outside the United States.

This is a significant new protection for U.S. persons. When the United States conducts foreign intelligence collection overseas on a U.S. person located outside the United States, currently only the Attorney General, not a court, makes a probable cause determination. I have said that. U.S. citizens have never before been entitled by statute to court protection in this area. Now, hopefully, they will be.

Our bipartisan goal is clear: A court must be involved when U.S. persons are targeted for surveillance, no matter where those persons are located or how they are targeted.

We are also in agreement that our original committee provision and the work of the Judiciary Committee needed refinement to ensure it did not have unintended consequences that might limit the collection of foreign intelligence information. The purpose of our amendment is to make sure we do not reduce the scope of any current intelligence collection.

Our managers' amendment accomplishes this goal. Under the managers' amendment, if a U.S. person is targeted overseas by using a communications provider within the United States, FISA will now require that the Government submit an application to the FISA Court and obtain a FISA Court order. Although the process to obtain the order is tailored to address some of the operational concerns relevant to the issue of collection on U.S. persons located outside the United States, and consolidated in a new title of FISA, the procedures are as robust and protective of the privacy rights of U.S. persons as existing FISA procedures.

If the acquisition occurs outside the United States, FISA will now require that the FISA Court issue an order finding that there is probable cause to believe the U.S. person who is the target of the acquisition is an agent, officer or employee of a foreign power, without involving the FISA Court in the methods of overseas collection.

Those methods of overseas collection will continue to be governed by applicable executive branch directives, such as Executive Order 12333, which impose limits on intelligence agencies in order to protect the constitutional rights and other legal rights of Americans.

Mr. President, I urge the adoption of this amendment.

The Presiding Officer: The Senator from Missouri.

Mr. Bond: Mr. President, I thank the chairman for his extensive discussion of this measure. This is one of the significant additions we are making to the preexisting FISA law. It is something that was brought up and discussed in the committee. There was general agreement that an American or a U.S. person who goes abroad ought to be provided some form of protection. We discussed it at length.

The objective was provided in a very brief statement in the amendment that appeared before the committee. I was very concerned about it because I knew just enough about the FISA law to be thoroughly confused about how it would work. I voted against it but expressed my desire and willingness to work with the sponsor of this amendment and the other members of the committee because it was a good idea.

Well, we found out how complicated it is to amend and to change the FISA law because of the many working parts, not only within the law but within the actual means of interception.

Well, we worked for better than a month on a bipartisan basis with the proponents of this measure--and I consider myself a proponent of this measure--with the intelligence community, lawyers for the Department of Justice, and we came up with a simple little 25-page statutory provision. It is now included in the managers' amendment.

Should anyone think it is simple to amend FISA, I suggest you begin reading at page 5 of the measure before us, and read through page 29, I believe it is, to show how it is accomplished. Nevertheless, this puts in a new layer of protection for U.S. persons. Obviously, we are concerned. Those are American citizens who are abroad.

There were questions raised: Well, if I go abroad, can the intelligence community tap my phone without a court order? Well, first of all, the intelligence community is not going to be tapping anybody's phone or trying to listen in on any--intercept any conversations unless they have good, solid information that that phone is in a terrorist's hands. They have to have intel before they even look at that conversation. That intel could come in many forms which I won't describe here, but that--first of all, if you are abroad, you would not have been targeted unless you had certain reasonable connections with a terrorist activity or a terrorist who would give the Attorney General and the intelligence community the basis for asserting that there was a terrorist content to the phone conversation.

Now, why do they do this? Because they have more communications than they can handle. They have more terrorist communications almost than it is possible to keep up with. The last thing they want to do is target a conversation of a U.S. person or an American abroad who doesn't have any connection to terrorist activities. So previously, only if there was one of the connections that would give reasonable grounds to lead the Attorney General to say that there was valuable foreign intelligence collection would you collect on it. But now, if that is an American citizen or, more broadly, a U.S. person, they have to go to the intelligence court, the FISC, to get an order--two different kinds of orders depending upon how the collection is going to occur--and get an order finding that there is probable cause to believe, as the chairman has said, that this person is an agent, officer, employee of a foreign power and has foreign intelligence information that may be communicated.

So this is a protection that I hope those concerned about the use of electronic surveillance will understand is a significant step we have taken toward protecting the rights of American citizens. But I point out the fact that it took us a month and about 24 or 25 pages to accomplish it. But with that being said, I urge my colleagues on both sides of the aisle to support it. This is a major new expansion of protection for American citizens, U.S. persons, and this is one of the privacy constitutional right protections added by this bill that was never there before. I urge my colleagues to support it.

Mr. President, I yield the floor.

The Presiding Officer: The Senator from Wisconsin is recognized.

Amendment No. 3909 to No. 3911

Mr. Feingold: Mr. President, I call up amendment No. 3909.

The Presiding Officer: The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Wisconsin [Mr. Feingold] proposes an amendment numbered 3909 to amendment No. 3911.

The amendment is as follows:

(Purpose: To require that certain records be submitted to Congress)

Strike subsection (b) of section 103, and insert the following:

(b) Reports by Attorney General on Certain Other Orders.-- Such section 601 is further amended by adding at the end the following new subsection:

(c) Submissions to Congress.--The Attorney General shall submit to the committees of Congress referred to in subsection (a)--

(1) a copy of any decision, order, or opinion issued by the Foreign Intelligence Surveillance Court or the Foreign Intelligence Surveillance Court of Review that includes significant construction or interpretation of any provision of this Act, and any pleadings associated with such decision, order, or opinion, not later than 45 days after such decision, order, or opinion is issued; and

(2) a copy of any such decision, order, or opinion, and the pleadings associated with such decision, order, or opinion, that was issued during the 5-year period ending on the date of the enactment of the FISA Amendments Act of 2008 and not previously submitted in a report under subsection (a).".

Mr. Feingold: Mr. President, I ask unanimous consent that Senator Dodd be added as a cosponsor.

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

Mr. Feingold: Mr. President, this amendment is a straightforward reporting requirement that is critical if Congress is to understand how the foreign intelligence surveillance laws it passes, including this one, are being interpreted and applied. The issue is very simple. If the FISA Court makes a significant interpretation of the law, I think Congress should know about it. Congress can't conduct oversight of intelligence unless it knows what the court is and is not permitting the administration to do. Congress can't pass new legislation without knowing how the court has interpreted current law.

This issue is absolutely fundamental to our constitutional system. Congress has a responsibility to understand the impact of the laws it is passing. The courts should have the assurance that when they interpret the law, those interpretations will be communicated to the legislature. This isn't some unusual idea; this is how our system of government has operated from its inception.

Specifically, this amendment does two things. First, it requires that when the court issues an opinion that includes a significant legal interpretation, the Government must provide the Government's pleadings associated with that decision to Congress. Now, these pleadings are often critical to understanding the legal interpretations of the court. This is in part because at times the court's opinions merely reference and approve the Government's arguments made in those pleadings. So it is really necessary to be able to review the pleadings themselves if you are going to understand the court's decision. They are also necessary to understand how the Government interprets and seeks to implement the law.

Neither Congress's oversight of the intelligence community nor any responsible legislating in the area of foreign intelligence surveillance can be effective without these documents. Yet, even today, as Congress considers this FISA legislation, the administration continues to refuse to provide Congress with important FISA Court pleadings.

The other reason is this: The amendment requires that the Government provide Congress with FISA Court orders that include significant interpretations of law over the last 5 years. Now, this is necessary because there was an enormous loophole in previous statutory reporting requirements that would be closed for the first time by this Intelligence Committee bill.

The Government didn't previously have to provide Congress with significant interpretations of law if they were included in court orders rather than court decisions or opinions. But we know from the administration's public announcement in January about the President's wiretapping program that such legal interpretations are, in fact, found in orders. For Congress to have any sense of how the court has interpreted the FISA statute, therefore, it is critical to understand recent jurisprudence. Congress needs to have access to FISA Court orders not just going forward but for the past 5 years as well.

This is not theoretical. The administration has refused to provide to Congress orders containing significant interpretations of law, and that is just what we know of. Without this amendment, we might never know what other important legal interpretations are out there.

To be clear, I first offered an amendment to require that FISA Court orders and other documents be provided to Congress through the intelligence authorization bill. It was approved on a bipartisan basis. It was later removed from the authorization bill, and only a watered- down version was included in the Intelligence Committee FISA bill. What my amendment today does is merely put the language back that has already been given the support of a bipartisan majority of the Intelligence Committee.

The most appropriate arrangement for Congress to obtain information related to the FISA Court would be for the court to provide it directly, without the involvement of the executive branch. So granting the executive branch any role in an exchange between the two other branches of Government, which is what my amendment actually allows, is, in fact, already a compromise.

But this amendment is a direct response to the administration's assertion that it can withhold FISA Court opinions and documents that include significant interpretations of law from Congress--not letting us read these things. Imagine if the administration tried to keep Supreme Court decisions from Congress. Even worse, imagine if the administration tried to keep from Congress a decision like Hamdan v. Rumsfeld, which rejected the administration's military commissions, just as Congress was considering the Military Commissions Act. Congress wouldn't stand for it. Yet that is exactly what is happening in the world of intelligence.

There are really no serious, substantive reasons to oppose this amendment. Orders and pleadings will be provided to the Intelligence Committee in a classified and, if necessary, redacted manner, just as FISA Court decisions are now. This is the furthest thing from an onerous reporting requirement. If there are FISA Court orders that include significant interpretations of law, Government lawyers certainly know what they are and where to find them.

It is sometimes said that intelligence in technical terms "belongs" to the executive branch. I disagree. But in any case, such an argument simply doesn't apply here. This amendment relates to the documents of an article III court. Just last month, that court confirmed in a rare public opinion that it has "inherent power" over its own records--in other words, they do not belong to the executive branch.

Finally, let me stress the scope of the information Congress needs before it can conduct effective oversight and legislative responsibility.

While the public is understandably focused on the FISA Court's involvement with regard to the President's warrantless wiretapping program, the FISA Court is actually responsible for interpreting all of the FISA statutes. Now, that includes the electronic surveillance issues we are considering here today but also physical searches of Americans' homes and the collection of sensitive business records, including library and medical records. Just as Congress should know how the Protect America Act and this FISA bill will be interpreted, it should have similar information with regard to the FISA provisions related to the PATRIOT Act and any other legislation that governs surveillance and affects the rights of Americans.

This simple reporting requirement is critical to congressional oversight, and I urge my colleagues to support it.

Mr. Leahy: Mr. President, I support Senator Feingold's amendment to provide Congress with additional materials from the FISA Court to enable Congress to conduct more effective oversight. This amendment is one of the many improvements to the Senate Intelligence bill adopted by the Judiciary Committee and included in the Judiciary Committee's substitute amendment. Regrettably, that substitute was tabled by the full Senate earlier today. But I urge Senators to reconsider their votes with respect to this simple but critically important reporting requirement.

Under current law, semi-annual reporting requirements allow the government to wait up to a year before informing the Congress about important interpretations of law made by the FISA Court. The Senate Intelligence bill took a step in the right direction by requiring that Congress be provided with the orders, decisions and opinions of the FISA Court that include significant interpretation of law within 45 days after they are issued.

Senator Feingold's amendment would go a step further to ensure sound oversight by Congress of the activities of the FISA Court. It would require that, when the FISA Court issues an opinion containing a significant legal interpretation, the government must provide Congress with the government's pleadings related to the case. This is critically important because, where the FISA Court simply adopts the government's reasoning in one of its decision, Congress will have no way of knowing the true basis for the court's ruling without access to the government's pleadings.

The Feingold amendment would also require that Congress now be provided with any significant interpretations of law by the FISA Court that were not provided to Congress over the past 5 years. Access to past jurisprudence, as well as current decisions, is critical to Congress's understanding of how FISA is being interpreted and implemented.

Opponents of this amendment say that it may create additional "paperwork." But if Congress can be better informed about the workings of the FISA Court--a court Congress created--and can more effectively oversee the government's advocacy in that Court, then any incremental additional paperwork is clearly in the best interests of the American public. Opponents also say that the pleadings may reveal sources and methods, and therefore cannot be turned over to the Congress. This is a red herring. As Senator Feingold has stated repeatedly, this amendment is not intended to compel disclosure of this kind of information, and nothing in the amendment could be construed to change the time-tested practice of redacting information that could reveal sources and methods.

I urge all Senators to support the Feingold amendment, and to reject any attempts to water down this important reporting requirement by way of second-degree amendments.

I yield the floor.