The Presiding Officer: The Senator from Missouri is recognized.
Mr. Bond: Mr. President, this measure has been considered in the Intelligence Committee. I believed it was not necessary to require additional paperwork, but also I think it is important to note that some of the charges made about the powers given to the intelligence community are way out of bounds.
This measure before us does, in fact, put further constraints on the intelligence community. There are powers that exist in both the intelligence community and in law enforcement agencies which may not be affected here. But to say this offers broad new means of getting into business records and other personal effects of individuals--this is a bill devoted to electronic surveillance. The reason we needed to do the bill on electronic surveillance was the fact that the means of electronic surveillance have changed, and the old FISA law did not permit the kind of collection that previously was permitted when communications outside the United States were by radio rather than by cable.
The whole purpose of this bill is to ensure that there are procedures in place to permit surveillance targeting people reasonably believed to be outside the United States who have connections with terrorist activities, so that they are an agent or an employee or an officer of a foreign power and have legitimate foreign intelligence information. That is the test. That is what this does. Arguments about the nature of foreign intelligence surveillance should be limited to this bill.
Mr. President, I yield the floor.
Mr. Kyl: Mr. President, might I inquire of the Senator from Wisconsin a question. As I read the amendment, it is silent with respect to the ability of the administration to--or the appropriate authorities to redact material in the interests of protecting their sources and methods. Is it assumed in the amendment that the authority to redact would exist?
Mr. Feingold: Not only is it assumed, but I just stated specifically on the floor a few minutes ago that it would exist.
Mr. Kyl: I thought I had heard the Senator indicate that redaction would be permitted, and that is the intent of the amendment; is that correct?
Mr. Feingold: Correct.
Mr. Kyl: Mr. President, 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. Bond: 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 President, I ask unanimous consent that the order for the quorum call be rescinded.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. Bond: Mr. President, I send a second-degree amendment to the desk and ask for its immediate consideration.
The Presiding Officer: The clerk will report.
The legislative clerk read as follows:
The Senator from Missouri [Mr. Bond] proposes an amendment numbered 3916 to amendment No. 3909.
Mr. Bond: Mr. President, I ask unanimous consent that the reading of the amendment be dispensed with.
The Presiding Officer: Without objection, it is so ordered.
The amendment is as follows:
On page 1, line 8, strike all after "subsection (a)" through page 2, line 14, and insert the following: ", with due regard to the protection of the national security of the United States--
(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, not later than 45 days after such decision, order, or opinion is issued; and
(2) a copy of any 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. Bond: Mr. President, as the sponsor of the first-degree amendment has noted, this was debated and it was adopted on I believe a 10-to-5 or 9-to-6 vote in the committee, but we found out there were substantial problems with this amendment to which the intelligence community objected. We modified it to the provisions that are now in the current managers' amendment and the underlying bill.
The major problem with this amendment is the pleadings. Pleadings have historically been protected during any litigation involving FISA. Congress has only received limited access to certain pleadings, certain actions for audit purposes in controlled circumstances.
This amendment I have offered incorporates the national security protection, which the author of the underlying amendment suggested, and it does provide for the 5 years of back opinions from the FISC. This gives the 5 years. We have had semiannual reports from the FISC on all of the opinions handed down in the previous 6 months.
It is somewhat burdensome, but I have been negotiating with the Department of Justice lawyers. They say while it is burdensome, this is not objectionable. They prefer not to have it, but the one thing on which they are standing firm and believe they cannot accept is to require turning over the pleadings.
The pleadings are actually some of the most sensitive intelligence information we have because in those pleadings the Government has to describe the facilities to be used, the targets of the collection, the information, and how the information is going to be collected, who gave them the information, how they got it. This is the ultimate description of sources and methods. Any time the sources and methods or the assets are disclosed, it is possibly a death sentence to someone who is working with us undercover or as an agent. The Department of Justice believes this information is so sensitive that it has to be kept extremely closely held within the court and the people who must see it to issue the order. Without that protection, they believe that our most sensitive assets, our means of collection, where the facilities are, the whole framework of our intelligence system could be brought down. The opinions themselves go into legal reasoning; they give the justifications. They are the end product of the work of the FISC.
What the Department of Justice says the intelligence community is unwilling to give is to lay out and submit to Congress the whole list of information of sources, methods, facilities, targets, the names of assets, or the identification of assets that could result in death for the informant, the agents, or the assets.
We have accepted a portion of the amendment proposed by the Senator from Wisconsin. This accepts another portion, but that final portion is objectionable and is a red line. I urge my colleagues not to support the amendment which turns over the very most secret sources and methods which the intelligence community cannot afford to share.
I yield the floor.
The Presiding Officer: The Senator from Wisconsin.
Mr. Feingold: Mr. President, I rise to oppose the second-degree amendment. This is a classic example of people hiding behind a tragedy in this country to make arguments that have no merit. This argument, that the provision of pleadings, legal arguments by the Government, will somehow compromise sources and methods and bring down the intelligence system, has no merit.
When the Senator from Arizona asked me specifically whether my amendment allows for certain sensitive information to be redacted, my answer was yes, and he didn't respond. In fact, I had already stated that in my opening statement. Everything the Senator from Missouri referred to--confidential information, sensitive information about individuals we are going after, critical intelligence--all of that can be redacted. What the Senator wants to help the administration do is prevent Members of Congress--and by the way, these are kept classified; it is only people who have certain clearances who can see them--from seeing the pleadings provided to an article III court. That is the basis for their arguments.
As I pointed out in my statement, a lot of times the court just refers to the pleadings in its orders. So if we don't have the pleadings, we have no idea what the order is about.
Listen very carefully because this kind of argument is going to be used with regard to every aspect of this bill. Everything is a red line. I want to tell you something, Mr. President, it is not a red line for the duly elected representatives of the people of this country in a classified setting to be able to review documents from a court proceeding. That is a ridiculous notion and disrespectful to the United States Congress that has an oversight role.
I was involved in the debate, as the Senator from Missouri knows, in the Intelligence Committee. We won fair and square on this vote by a majority bipartisan vote when it was first offered to the Intelligence Authorization bill. Because of various issues and pressures relating to other matters, we later had to compromise, and ultimately they said, why don't you do it on the FISA bill, which is exactly what I am doing. But the idea that somehow this endangers America to allow certain Members of Congress and a few staff members who have been cleared to look at the pleadings of the Government in a court proceeding takes this way too far.
There are no substantive arguments against doing this, and I urge Senators to reject the second-degree amendment and adopt the underlying amendment.
Mr. Rockefeller: Mr. President, I suggest the absence of a quorum.
The Presiding Officer: The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. Wyden: 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. Wyden: Mr. President, I ask unanimous consent to speak on the managers' amendment, as offered earlier by the distinguished chairman and vice chairman.
The Presiding Officer: The Senator has that right.
Mr. Wyden: Mr. President, I wish to commend the distinguished chairman of the committee and the distinguished vice chairman because they have worked with me many hours on this issue. It is an extraordinarily important issue as it relates to the rights of Americans in the digital age, and I appreciate the involvement the chairman and vice chairman have had with me on this matter.
What this debate is all about, and I know it is very hard to follow the complicated legal language that is associated with this discussion, is the proposition that Americans ought to have the same rights overseas that they have inside the United States. Now, the chairman and the vice chairman have worked with me through the last few weeks to ensure that we can embed this basic proposition in this FISA legislation and do it in a way that is not going to have any unintended consequences or any impact on our national security.
I have long felt, literally for decades, that the FISA law has represented the ultimate balance between America's need to fight terrorism ferociously and to protect the constitutional rights of our people, and it is a balance that should not be eliminated because an American leaves U.S. soil. It ought to always mean something to be an American, and that ought to apply even outside the United States. Now, under current law, before conducting surveillance on an American citizen within the United States, the Government must establish probable cause before a criminal court for law enforcement cases or before the FISA Court for intelligence cases.
So what this means is the U.S. Government needs a court-approved warrant to deliberately tap the phone conversations of a person living in Medford, OR; or Kansas City, MO; or Arlington, VA; or anywhere else. This protection, however, is not extended to Americans who are outside the United States. So if the U.S. Government wants to deliberately tap the phone conversations of the same Americans on business in India or serving their country in Iraq, the Attorney General can personally approve the surveillance by making his own unilateral determination of probable cause.
During the Senate Intelligence Committee's consideration of legislation that would revise FISA, I offered the amendment that has been discussed by the distinguished chairman and the vice chairman to require the Government to secure a warrant from the FISA Court before targeting an American overseas.
This amendment was cosponsored by our colleagues, the Senator from Wisconsin, Mr. Feingold, and the Senator from Rhode Island, Mr. Whitehouse. It was, as the chairman of the committee has noted, approved on a bipartisan basis. It has largely been incorporated into the Senate Judiciary Committee approach as well.
Since then the administration has raised concerns about this issue. There have been concerns raised by several others. And we have sought to address those through many hours of negotiations so that we can make sure in the digital age, when Americans travel so frequently, we are not seeing their rights go in the trash can when they travel outside U.S. soil.
We have almost reached a final agreement on this important issue, but I wanted to take just a minute. I see the distinguished chairman on the Senate floor and the distinguished vice chairman. I would like to just outline very briefly for them what my remaining concern is because my hope is we can work this out.
I would also like to say that throughout this day the Justice Department, as we have been looking at it, has been talking to our staffs as well. I think they have been very cooperative also.
The issue that is outstanding, I would say to my colleagues, is the managers' amendment does not require the Government to specify what facilities it is targeting, even in situations where the Government has historically been required to do so. So one automatically thinks of a hypothetical kind of situation that goes something like this: Under current law, the Government has to specify, for example, that it is going to do surveillance on an apartment dweller on a military base overseas. That is something that has to be approved with specificity, and that is required under current law.
What I am troubled about is the hypothetical possibility. That is what we are dealing with now, hypothetical possibilities. And if the language is not written carefully with respect to facilities--and my concern is that it has not yet been dealt with adequately--the Government could, in effect, do surveillance on that military base for all of the apartment dwellers in the building or conceivably all of the people on the military base at large.
Now, my friend, the distinguished vice chairman of the committee, clearly does not want to see that happen, nor does the chairman of the full committee. So what I have been trying to do, and had some discussion with the Justice Department about, is to try to persuade the Justice Department to take the precise language they have found acceptable in title I and move it over to the title VII that we have all been working on in a cooperative kind of fashion. It deals with what is called the after acquisition issue, to again make sure we are able to stay on top of the serious threats our country faces but not at the same time overreach and sweep all kinds of individuals like, say, an apartment dweller on a military base oversees into a surveillance program.
So I am going to continue, and I want to make this clear to the vice chairman who is on the Senate floor, and the chairman who has had to leave the floor for a few minutes, that I want to continue to work with them. This is an important issue. In the digital age, it makes no sense for Americans' rights and freedoms to be limited by physical geography. That is what we got bipartisan support for in the Intelligence Committee. Suffice it to say, there is a history of support for this kind of approach. During the initial consideration of the first FISA Act back in 1978, many Members of Congress argued for the inclusion of protections for Americans overseas.
All of the committees that debated the bill noted the significance of the issue. But at that time there was a judgment made that it was best to deal with this matter by separate legislation.
For example, the Senate Intelligence Committee in the 1978 report on FISA stated:
Further legislation may be necessary to protect the rights of Americans abroad from the improper electronic surveillance by their Government.
It seems to me, 30 years later, it is time to take action. So we are going to continue these discussions. I want to express my appreciation to the vice chairman of the Intelligence Committee and his staff. They have put many hours into this matter working with us and clearly have sought to make sure that we can modernize this particular part of the FISA statute, and do it without what all of us have said are the unintended consequences or potential impact on national security.
I think we are there once we deal with this remaining issue. I think it would be very hard for any of us to explain how it is that current law has to specify what facilities are being targeted and then, now, in the name of the so-called reform approach, adopt something that hypothetically--again, I talk only hypothetically about it--might sweep some, for example, soldiers on a military base overseas into a surveillance program. I do not want that. The distinguished vice chairman of our committee, Senator Bond, does not want that.
So we are going to keep working on this matter. I see my friend from Missouri has indicated his desire to speak. As always, I am anxious to hear his thoughts on it and to work with him.
I ask unanimous consent to have a few, perhaps up to 10 additional minutes after the vice chairman has had a chance to address us.
The Presiding Officer (Mrs. McCaskill): Without objection, it is so ordered.
The Senator from Missouri.
Mr. Bond: Madam President, I thank my colleague from Oregon. As usual, he states objectives that he and I agree with. We both have the same desire, to protect American citizens, U.S. persons, certainly military men and women and their families on military bases.
I would say to my friend, under the clear provisions of section 703 and 704, if they are an American military person overseas, the first test would be: Are you an officer or an employee of a foreign government?
Obviously, they are employees of our Government. But you would have to be acting as an agent of a foreign power, and, furthermore, there would have to be intelligence information provided showing that there was reasonable grounds to believe there was intelligence information.
Now, there could be the situation, as there has been in the past--it has happened within the CIA; it has happened within the military--that some person may turn into an agent of a foreign power even though they are wearing our uniform. That is a very rare situation. But in that instance, then, you would be able, if you had intelligence information, to suggest this person was acting as an agent and had the appropriate foreign intelligence.
Absent that, nobody is going to sweep them up, nobody is going to listen in, nobody is going to listen in to their phone calls back home to their families or their families' calls to them.
Now, my colleague mentioned some other questions about collection. And this is a very important discussion, a complicated discussion, but regrettably a classified discussion. So let me suggest to him that we understand. He has talked to the Department of Justice. I believe they have had some confidential discussions. We would be happy to have more with him. I regret we cannot have them on the floor of the Senate because they go into matters which are classified.
But he and I share the same objective. We have slightly different ways of getting there. There are certain items I think have to be discussed off the Senate floor.
I yield the floor.
The Presiding Officer: The Senator from Oregon.
Mr. Wyden: Madam President, I will be very brief in terms of responding to the distinguished vice chair. I also note the person we look to for counsel on these matters, Senator Whitehouse, is here. I want to express my appreciation to him for all of his assistance. If anyone is capable of, once again, stepping in and bringing together all of the parties--Senator Bond, the Bush administration, Senator Rockefeller, myself--Senator Whitehouse is that person. He has done it repeatedly, and we thank him for all of his help.
On the one remaining issue, just to be very brief in terms of responding to the vice chairman, the vice chairman is spot on with respect to the fact that in most respects, the language of our joint efforts does seek to zero in only on the legitimate targets. And that is all to the good.
What we are concerned about, and again, steering clear of anything classified, is some of the technical issues with respect to the definition of "facilities," which lead us to be concerned that others could be swept in. That is what we still need to resolve.
So let's do this. The distinguished Senator from Rhode Island wants to have a chance to speak on this issue. This is not going to be the last word on the subject. But I would say this is an opportunity, after months and months of discussion, to get it right in terms of modernizing the Foreign Intelligence Surveillance Act.
Thirty years ago, it was a big issue. It is an even bigger issue today. I think a business person, for example, in Kansas City, MO, or Portland, OR, or anywhere else, when they travel the globe and are doing business, speaking to loved ones, they have an expectation that their rights are not thrown into the trash can when they leave the soil of the United States.
We have taken steps to ensure, under the efforts of Senator Rockefeller, Senator Bond, myself and others, we have gone a long way to extending the overseas protections for our people that they have here. We are not quite there yet. We have one issue left to deal with, and it is an important issue.
We are going to continue to have these discussions, and they will certainly be good-faith discussions. I hope we can persuade all parties, and particularly those in the administration, to support our efforts to deal with this one remaining matter, which literally is a question--we have staff on the floor--of importing language that the administration says works in other parts of this legislation, into this area which we think is substantially the same.
I yield the floor.
The Presiding Officer: The Senator from Rhode Island is recognized.
Mr. Whitehouse: Madam President, first, let me thank the Senator from Oregon for his very kind words, probably too kind words, but that is one of the glorious conventions of this body.
I salute his leadership in this area because perhaps the most significant thing that has been accomplished so far in this FISA dispute, that has been accomplished in a bipartisan fashion, in a manner in which great credit reflects on Vice Chairman Bond who is here on the Senate floor, is consensus has been reached that when an American travels overseas, the rights they believe they enjoy here in these United States, the rights the Constitution guarantees them here in these United States, travel with them and cannot be overruled at the whim of the very same branch of Government that seeks the surveillance. And the reason that was able to take place is because the Senator from Oregon had the foresight to put together the amendment that he and Senator Feingold and I argued for in the Intelligence Committee. I express my personal appreciation to him for his wisdom in that regard.
I ask unanimous consent that the pending amendment be set aside in order that I might call up amendment No. 3908.
Mr. Bond: Madam President, I must object to that. I do commend the Senator from Rhode Island and the Senator from Oregon for their leadership on the issues which they have addressed. They have made a strong push, and they worked with us through the 20-plus pages of construction to get a workable means of achieving the goal they so eloquently champion. We will continue to work with them on those efforts dealing with the items the Senator from Oregon addressed. However, I must object to setting aside the pending amendment.
The Presiding Officer: Objection is heard.
Mr. Whitehouse: Madam President, I am disappointed to hear that. The Senator, of course, clearly has that right. As everyone in this body knows, we are facing a deadline of February 1 to conclude this legislation. There is considerable other business related to the stimulus package, given our economic concerns in this country, and I would hope now that the FISA bill has been called up, that we are on this bill here on the floor, that amendments to the title I provisions we are working on now could be called up and considered. It would certainly move things along in the process if they could be called up and debated so that when it came time for a vote, we could move more expeditiously through the process. I hope very much this is not a signal that it is anyone's intention to slow down this process.
We saw in August how unfortunate the result can be when this body's time to give a major issue such as this significant attention is compressed. Indeed, I refer to that unfortunate August situation as "the August stampede." I don't think we reflected great credit on this institution when we did what we did back then.
The effort we are undertaking now is an effort, in fact, to remedy some of those concerns. There has been significant bipartisan effort to get us to this point. While there are clearly remaining points of disagreement, I would think it would be in everyone's interest to work through those issues and to give these different amendments a chance to be voted on. For instance, the amendment I had hoped to call up is one that is supported not only by myself but Chairman Rockefeller, the distinguished chairman of the Intelligence Committee. It is supported by Chairman Leahy, the distinguished chairman of the Judiciary Committee. It is supported by Senator Schumer, the distinguished Senator from New York. It is supported by Senator Feingold, the distinguished Senator from Wisconsin who serves, like myself, on both the Intelligence and Judiciary Committees. It addresses a very important issue to this body which is the terms on which we will allow this administration to spy on Americans.
It is an amendment that a lot of work has gone into. It reflects a convergence of ideas that was developed by Senator Schumer and Senator Feingold in the Judiciary Committee, that we developed in the Intelligence Committee, again, through an often bipartisan process. Senator Feingold played a critical role in both committees in advancing this issue. We have worked very carefully with the Department of Justice to incorporate changes that they have recommended as technical assistance. It is a meaningful, worthy, well-thought-out amendment that merits consideration and discussion on the floor. It relates to an issue that is a fairly simple one but in order to understand it, you have to have a basic understanding, at least, of wiretap surveillance.
As United States Attorney and as Rhode Island's Attorney General, I oversaw wiretap and surveillance investigations, and I am familiar with the procedures. With any electronic surveillance, whether it is in a domestic law enforcement context or intelligence gathering on international terrorism, what you find is that information about Americans is intercepted incidentally. You have, as all the prosecutors in this body well know, including the distinguished Presiding Officer, the target of your investigation. The target has certain rights; a warrant requirement under the Constitution, for instance. But what you find is that once you have surveillance up on your target, they obviously talk to other people. Those other people who are incidentally intercepted in the surveillance also have rights as well.
In domestic law enforcement, there are clear and established procedures for what is called minimizing the interception of the conversations to the extent that they touch on the incidentally intercepted person who is not the target of the surveillance. The minimization procedures govern the collection and the retention of this information to ensure that the privacy of innocent Americans is protected. These are sensible measures. I have been in the trailers with the FBI agents as they are switching on and off to honor the minimization procedures. But one of the key elements of these minimization procedures is the knowledge on the part of the surveilling agency that they are subject to court oversight. That is natural in the domestic law enforcement context. You are operating under a court order to begin with. In the domestic context, it happens as a simple consequence of there being a court order in the first place.
When you are dealing with Americans abroad and when they are swept up in international surveillance for national security purposes, the situation can be different. We have had to provide for these minimization procedures. Under the Senate Intelligence bill, the court, the Foreign Intelligence Surveillance Court, is now being given the authority to approve the minimization procedures when an American is listened to incidentally in surveillance that targets another individual. The court has the authority to approve the procedures. But what was missing is that the court did not have the authority to determine whether the procedures it has approved are actually being followed. You would think that would be obvious. If you are going to set it up so that the court can approve minimization procedures, should it not follow as a matter of simple logic that the court should have the authority to see whether the procedures the court approved are in fact being followed?
We have worked very carefully with Vice Chairman Bond, with Chairman Rockefeller, with the technical folks at the Director of National Intelligence Office, and at the Department of Justice. At present, we have a situation in which it has been agreed that the court will have the power to determine whether its rules are being followed if the target of the surveillance is an American in the United States. We have also reached agreement that the Foreign Intelligence Surveillance Court will have the authority to determine whether its rules are being followed if the target is an American overseas. The issue that remains involves those cases in which the target is a foreign person but they are in touch with a U.S. person, an American, who is being incidentally intercepted because they are in touch with a foreign target--because the foreign target has called them, because the foreign target is discussing them, because they have called the foreign target, whatever.
I cannot for the life of me understand why this is a difference that we are obliged to come to the Senate floor to decide. It would seem to me that when the purpose of the exercise is enforcing minimization procedures that benefit the U.S. person who is incidentally intercepted, it should not matter whether the target is an American in the United States or an American overseas or a foreign person. The person we are trying to protect is the U.S. person incidentally swept into the surveillance. So the purpose of this amendment, if I were to be permitted to call it up, would be to see to it that the court, which has the authority to determine the minimization procedures when there is a foreign target who talks to a United States person, should have what would seem to me obviously consequent authority to determine whether those rules it has approved are being followed.
It may even be that it is so inherent in the nature of a court that subsequent litigation would determine that in fact the court does have that right. It comes, in its very nature as an article III court, to have the authority to determine whether its rules and whether its orders are being followed. But rather than force it to that point, it would be better if we simply cleared up the matter here.
Again, I regret that merely calling up the amendment at this point is being objected to. I hope this is not a signal that we are trying to recreate, to put it mildly, the hectic atmosphere of the August stampede. I would like as quickly as possible to work through the amendments that relate to title I. There are a number of them. I expect we will be staying rather late if we can't start working through them now. But when the time comes, I will come back to the floor and again seek permission to call up this amendment; I hope at that time with more success.
I yield the floor.
The Presiding Officer: The Senator from Missouri.
Mr. Bond: Madam President, we too want to move through this bill. This amendment, sponsored by the Senator from Rhode Island, was included in the Judiciary Committee substitute for the Intelligence Committee bill. We defeated that.
The chairman of the Judiciary Committee has said we are going to come back and vote on all of these amendments one by one. At this point I think it is appropriate that the leaders are discussing or will discuss how we are going to proceed. In the meantime, we are not going to set aside amendments until we have some direction from the leadership on how they wish to handle these amendments.
On the substance of the amendment, earlier today in discussing the Judiciary Committee substitute, I pointed out that the FISA Court, or the FISC as it is called, has said: We are not going to get into this area. We don't want to get into the business of trying to oversee how foreign intelligence is collected. That means whether it is collected or whether there is incidental collection, those challenges are significantly different from the challenges that the FBI would face in carrying out their court order.
But it should be noted, as I believe the Senator from Rhode Island has, that the FISA court order, the FISC, will set out the requirement that minimization procedures be followed. There will be significant review and oversight of those because the person conducting the surveillance has a supervisor who will look over their shoulder. That supervisor knows there will be a representative of the inspector general who is watching, who is looking for any problems. That inspector general knows there will be a lawyer from the Department of Justice overseeing it to assure there is compliance.
We have an Intelligence Committee with a very able staff, some of whom understand very well how the NSA programs work, whether it is under the FISC or under the previous time. It is our job, under our challenge, our charter, as an oversight committee of the intelligence community, to make sure these laws are followed. So I will say that when the FISC was challenged to take on a broader role in handling foreign intelligence, they stated in the December 17 released opinion, In re Motion for Release of Court Records, at the very bottom of page 19, footnote 31, the appellant claimed that the court could conduct a review because it is a "specialized body with considerable expertise in the area of national security." The FISC itself said that this overstates the FISC's expertise:
Although the FISC handles a great deal of classified material, FISC judges do not make classification decisions and are not intended to become national security experts… (FISC judges are not expected or desired to become experts in foreign policy matters or foreign intelligence activities, and do not make substantive judgments on the propriety or need for a particular surveillance). Furthermore, even if a typical FISC judge had more expertise in national security matters than a typical district court judge, that expertise would still not equal that of the Executive Branch, which is constitutionally entrusted with protecting the national security.
They cite a case, which says:
… ("a reviewing court must recognize that the Executive departments responsible for national defense and foreign policy matters have unique insights" into national security harms that might follow from disclosure)… .
At the end it says:
For these reasons, the more searching review requested by the [appellant in that case] would be inappropriate.
So while there are court orders that the minimization procedures be followed, there is an existing framework for significant oversight, and there is the oversight not only by the executive branch but by the legislative branch, and the FISC says that is not the business they are to get into.
We will have an opportunity to revisit this when the matter is brought up. But I wanted to advise my good friend, a diligent worker on the Intelligence Committee, why we had argued against that provision in the amendment or the substitute that the Judiciary Committee proposed.
I thank the Chair and yield the floor.
The Presiding Officer (Mr. Sanders): The Senator from Rhode Island.
Mr. Whitehouse: Mr. President, I thank the very distinguished vice chairman of the committee for his description of his views on this matter. I know they are honestly held and founded in his beliefs.
I do take some issue with his recollection of the travel of this in the Intelligence Committee. I thought I heard the distinguished vice chairman say this amendment had been voted down in the Intelligence Committee. It is my recollection that I withdrew it because there were technical concerns that were described by some of the officials from the Office of National Intelligence and from the Department of Justice who were present.
Indeed, it was that withdrawal and willingness to work to try to find a better amendment that resulted in the very commendable process by which the distinguished vice chairman agreed to allow the court to oversee compliance with its own rule in those two circumstances I mentioned earlier: where the target is an American, either overseas or at home.
Other than that, the only other point I would add is that I think it is probably a situation unique in the annals of American law that an American court would be provided the authority to approve a rule or make an order but denied the authority to determine whether it was complied with. I can certainly think of no situation in our law or in our history where that has ever been the case.
I know the distinguished Senator from Maryland seeks the floor. I yield the floor, and I thank the Presiding Officer.
The Presiding Officer: The Senator from Maryland.
Mr. Cardin: Thank you, Mr. President.
Mr. President, I ask unanimous consent that the pending amendment be set aside so I can offer amendment No. 3859.
Mr. Bond: I object, Mr. President.
The Presiding Officer: Objection is heard.
Mr. Bond: Mr. President, if I may respond to the Senator from Rhode Island--I apologize to the Senator from Maryland--I say to the Senator from Rhode Island, what I said was his provision was in the Judiciary substitute that we defeated. We did not deal with his amendment in the Intelligence Committee. We discussed it. He offered it, and it was accepted in the Judiciary substitute. That amendment was defeated.
What I raised was the concern that our leadership has about going back and revisiting all the elements of the Judiciary substitute.
I thank the Chair, and my apologies and thanks to my colleague from Maryland.
The Presiding Officer: The Senator from Maryland.
Mr. Cardin: Mr. President, let me point out to the cochair of the Intelligence Committee and the distinguished Republican whip on the floor why I asked for this amendment to be called up. I hope there will be a time when we will have a chance to vote on this amendment. It is one I hope would gain some broad support in this body.
What this amendment would do is to change the automatic termination date that is in the statute, the bill now--which is at 6 years--to 4 years. I know there are some Members of this body who are opposed to any termination date. The administration is opposed to a termination date.
I applaud the Intelligence Committee for including a termination date, a sunset in the legislation, recognizing it is our responsibility to make sure we are included in the appropriate oversight with the executive branch. Knowing the history of this legislation, knowing how quickly technology changes, it is important that Congress be intimately involved in reviewing the operations of this statute, the changing technology, and that we have the full attention and cooperation not only of the intelligence community but also the White House and the executive branch of Government.
The reason why I believe the 4 years is much more preferable than 6-- I urge my colleagues to please follow this debate--with a 4-year sunset, it will be a requirement of the next administration to be involved in this FISA statute. They are not going to be able to sit back for their entire term and say: Gee, we have this authority; there is no need to make the information readily available to Congress.
Let me remind my colleagues, it was not easy to get information from the executive branch on the use of their authority, of which for some we recently found out the full extent of the use of their authority. So if we keep a 6-year sunset, there will be no legal need for the next administration to work with Congress to make sure there is broad support for what the administration is doing, to make sure we do not have another situation where there was the use of power by the executive branch that, quite frankly, we did not know about, and that we will at least know whether the technology is the right technology. We will have much better attention.
So for the purposes of our oversight, our responsibility as the legislative branch of Government, we should make it clear to the next administration: Sure, you have plenty of time under this authority. You do not have to worry about this authority terminating. You have almost your entire term in office. But we want you to focus on it, and make sure we are not only protecting the rights of Americans, that we are not only making sure the intelligence community has the tools it needs, but we are making sure that as technology changes during the next years--and technology is changing very quickly--we are all engaged in the subject.
We are ready to take action as the legislative branch of Government to make sure we are working with the executive branch to give the intelligence community the tools it needs to gather the information on foreign targets, and that they are also doing it in ways, as the chairman and vice chairman of the committee and the committee have said, that respect the rights of Americans and the civil liberties of the people of our Nation.
It is for that reason that I urge we find a time to take this up. I took this few moments now in the hopes that when we come back to this amendment we will not quite need as much time. I do hope the Members will understand this is being offered so we in the Congress can carry out our responsibility.
It is interesting that there were several debates on the floor of this body when the original PATRIOT Act was passed and the Protect America Act was passed to make sure there were sunsets in it. We are now amending the bill today. The chairman and vice chairman of the Intelligence Committee just brought forward a set of amendments, and as I listened to the chairman and vice chairman talk, they said: We want to make sure we get it right.
There were a lot of technical changes made as of today. I do not think anyone here feels totally comfortable that we got it right. We are going to have to stay engaged on this subject. I think it is critically important we have the attention of the next administration to make sure we can do the right thing for the people of this Nation to keep them safe and to protect their civil liberties.
So that is the reason I intend to offer this amendment. It was in the Judiciary Committee substitute. We debated it in the committee. We had a good debate in the Judiciary Committee. Senator Kennedy had offered a 2-year sunset. We talked about that also. There are others who have been interested in this. I am not alone in this request. I know I am joined by Senator Mikulski as a cosponsor of this amendment, who serves on the Intelligence Committee, and was part of getting that bill together. I know Senator Rockefeller is sympathetic and supportive of this issue, as is Senator Leahy.
I urge my colleagues on both sides of the aisle to take a careful look at this amendment when we come back to it. Hopefully, I will have your support.
With that, Mr. President, I yield the floor.
The Presiding Officer: The Senator from Oklahoma.
Mr. Inhofe: Mr. President, I ask unanimous consent that I be recognized for up to 15 minutes as in morning business.
Mrs. Feinstein: Mr. President, reserving the right to object, if I may, I ask unanimous consent that I be recognized following the remarks of Senator Inhofe.
The Presiding Officer: Is there objection?
Without objection, it is so ordered.
The Senator from Oklahoma.
Mr. Inhofe: Thank you very much, Mr. President.
(The remarks of Mr. Inhofe pertaining to the introduction of S. 2551 are printed in today's Record under "Statements on Introduced Bills and Joint Resolutions.")
Mr. Leahy: Mr. President, Senator Kennedy and I have offered an important amendment to ensure that there will be some measure of accountability for the unlawful actions of this administration in the years following 9/11. Regrettably, those opposing this commonsense review have so far succeeded in stopping the full Senate from even considering its merits.
It is a sad day for the American public when its elected officials stonewall a measure designed to shed light on the Government's efforts to unlawfully spy on its own citizens. I urge Senators across the aisle to allow this amendment to be called up, debated, and given an up-or- down vote.
As we all now know from press accounts, in the years after 9/11, the Government secretly conducted surveillance on its own citizens on a massive scale through what has become known as the Terrorist Surveillance Program, TSP. It was done completely outside of FISA, the law specifically drafted to regulate such conduct. And it was done without the consent or even the knowledge of the Congress. It is crucial that Congress and the American people understand why and how these decisions were made, both in the months after 9/11, and in the several years following that difficult time. This inspector general review amendment will provide that accountability.
This review would be conducted jointly by the Offices of Inspectors General of each component of the intelligence community that may have played any role in the TSP, including the inspector general of the Department of Justice. It will examine the circumstances that led to the approval of the TSP, as well as any procedural irregularities that may have taken place within the Department of Justice Office of Legal Counsel--the part of the Justice Department that is supposed to give unvarnished legal advice to the President. It will result in a final report to be submitted to the Intelligence and Judiciary Committees in the House and Senate within 180 days, containing recommendations and a classified annex. There has been no such comprehensive review to date.
This amendment is particularly important because the administration and some of its allies in Congress are relentlessly arguing for retroactive immunity for the 40 or so lawsuits against those telecommunications companies that may have assisted in conducting this secret surveillance. They are trying to shut down avenues for investigating and determining whether their actions were lawful. This amendment will ensure that there will be an objective assessment of the lawfulness of the secret spying program and the manner in which the Government approved and carried out the program.
Critics of the amendment claim that Congress has already conducted sufficient oversight of the TSP, and that no further review is warranted. That is simply not true. Only a small number of Senators and Representatives have been granted access to classified documents related to the TSP. Those of us who have been granted access can provide a measure of oversight by reading through documents to try to piece together how the Government decided to spy on its own citizens, for years, and how the Justice Department came to bless this unlawful conduct. But the documents don't tell the full story. As we learned from Jack Goldsmith, the former head of the Office of Legal Counsel, the President's program was a "legal mess" when he took over. It is crucial to understand how this "legal mess" got approved in the first place. Who was responsible? Were the normal procedures followed at the Office of Legal Counsel? And, perhaps most importantly, how can we stop something like this from ever happening again?
This amendment is one of the many improvements to the Senate Intelligence bill that were adopted by the Judiciary Committee and included in the Judiciary Committee's substitute amendment. Regrettably, that substitute was tabled by the Senate earlier today. I urge Senators to reconsider their votes with respect to this simple but critically important accountability measure.
If the critics succeed in quashing not only the outstanding lawsuits seeking accountability, but also congressional efforts to arrive at the truth through a comprehensive review of the TSP, the American public will never forgive us. This administration is hoping it will end its time in office without any meaningful review of its more than 5 years of illegal surveillance. We must not let this happen. I urge all Senators to support this commonsense amendment to ensure accountability.
The Presiding Officer: The majority leader is recognized.
Mr. Reid: I note the absence of a quorum.
The Presiding Officer: The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. Reid: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The Presiding Officer: Without objection, it is so ordered.
Mr. Reid: Mr. President, is one of the managers on the floor? Yes. I have been in contact with the distinguished Republican leader. I ask unanimous consent that Senator Kennedy be recognized for 5 minutes for purposes of offering an amendment, and following his 5 minutes, that Senator Feinstein be recognized for 5 minutes, and following their statements and their attempt to offer amendments, that I then be recognized.
The Presiding Officer: Is there objection?
Mr. Kyl: I didn't hear the last half.
Mr. Reid: Following their 5-minute statements, I be recognized.
Mr. Kyl: Mr. President, as propounded, I object to the request, but I have no objection to Members each asking consent to which there would be no objection and certainly not to their speaking for whatever length of time or whatever order the leader would desire.
Mr. Reid: So you have no objection to Senator Kennedy being recognized for 5 minutes and Senator Feinstein being recognized for 5 minutes?
Mr. Kyl: Absolutely no objection to that.
Mr. Reid: And then following their statement, that I be recognized?
Mr. Kyl: I have no objection to that.
The Presiding Officer: Without objection, it is so ordered.
The Senator from Massachusetts is recognized.
Mr. Kennedy: Mr. President, at the appropriate time, I hope the Senate will permit us to take action on an amendment I will offer on behalf of myself and Senator Leahy and others. This amendment we have prepared is very simple, but it is absolutely critical to this bill.
The amendment would require the inspectors general of the Department of Justice and the National Security Agency and other relevant offices to work together to review the Bush administration's warrantless wiretapping program. The inspectors general will analyze this program and then issue a report on what they find. Members of Congress will receive a classified version of the report. The public will receive an unclassified version of the report.
Simply put, there is no other way to put this episode behind us. Court cases looking into the administration's warrantless wiretapping have been stymied by concerns about standing, mootness, and the state secrets privilege. If Congress grants retroactive immunity, some of these cases will be eliminated altogether.
But either way, court cases are no substitute for an inspector general review when it comes to finding and reporting the facts. Traditional rulings will tell us whether any laws were broken and which ones. The inspector general review will tell us why and how this happened, and it will help us avoid a similar lapse in the future.
The administration has decided to share documents with the Senate Judiciary Committee but not with the House Intelligence Committee, or the Judiciary Committee whose FISA bill it doesn't like. It has refused to share any documents with other Members of the House and Senate who are now expected to vote on this legislation. So where are we now?
We know that for 5 years the Bush administration conducted a massive program of warrantless surveillance that may have violated the rights of literally millions of innocent Americans. What we do not know is how this program was started, why it was started, what it covered, how many Americans were spied on, or what happened to the information it collected. We are being kept in the dark about one of the most significant and outrageous constitutional violations by the executive branch in modern history.
An inspector general review is the only way to shed light on this abuse, the only way to document and assess the administration's warrantless surveillance activities over the past 6 years. The review will help bring clarity, closure, and accountability to this episode. It will help us draw lessons and move on from it.
Millions of Americans have been secretly spied on for years. They at least deserve to know the reason. The Senate also deserves to know. Senators who vote to pass this amendment will be not only honoring their constituents' right to learn what was done to them, they will also be enabling themselves to serve their constituents better in the future.
The inspector general report will produce information that will assist us in our legislative duties. When Congress takes up FISA in the future, the results of this report will be enormously valuable in helping us to enact legislation to meet the genuine national security and civil liberty needs of the Nation.
It is revealing in how quiet the White House has been in opposing the inspector general review. Make no mistake, they have been clear they don't want any kind of investigation into what they did. But their arguments against the inspector general review have been very quiet, indeed, perhaps because they know how transparently weak and self- serving their arguments are. They said we should not have an inspector general review because it might reveal classified information or help our enemies. This argument is nothing more than a scare tactic.
The inspectors general public report will contain only unclassified material. Any classified material will go into a classified appendix. It has been said an inspector generals' review might fuel a partisan witch hunt. Senator Leahy and I have drafted this amendment to be tightly limited to the warrantless wiretapping program. The inspectors general will have a very specific mandate, and they will do their work without any political influence whatever.
Understanding what happened to the rights of Americans over the past 6 years is not a partisan effort. All Members of Congress should want to learn about the activities in which the administration has engaged. The American people are concerned about what their Government has been up to. They need an independent review to restore trust in the Government and to feel confident that both their security and their liberty are being protected.
Finally, I have heard it said the inspectors general are not the appropriate entity to conduct this review. The question is, if not the inspectors general, then who? The inspectors general are experienced and independent; they are trusted by Congress and the American people. They frequently conduct confidential investigations and have procedures in place to protect classified information. It is precisely for situations such as this that we created the inspector general.
It has been reported that the Justice Department recently reopened the Office of Professional Responsibility's investigation into the warrantless surveillance program. That is a positive step, but it is not relevant to this amendment. The scope of the OPR investigation is severely limited. It deals with attorney misconduct, and it is confined to the Justice Department. By contrast, the inspector general review will cover all of the relevant agencies, including the National Security Agency, and it will examine the use of warrantless surveillance much more fully.
Moreover, the inspectors general are more independent than OPR, and for investigating a warrantless surveillance program authorized by the President, independence is of critical importance.
Inspectors general also have a proven track record that gives them unique credibility. For example, the inspector general report on national security letters showed widespread abuse by the FBI, and it helped Congress understand what needs to be done.
There is one reason, and only one reason, to oppose this amendment, and that is to cover up the administration's actions. A vote against the inspector general review is a vote for silence and secrecy, for stonewalling and denial. It is a vote to erase the past.
Many of the issues we have been debating on FISA are difficult and complicated, and there is room for reasonable people to disagree. But there is no such room on this amendment. It is simple and straightforward. Its potential benefits are great, and its costs are negligible.
No matter where one stands on the issues of retroactive immunity for the phone companies, this amendment should be a no-brainer. In fact, for my colleagues who want to eliminate the court cases against the phone companies, this should be even more critical because it will at least preserve some measure of accountability. It will give the Senate critical information to fulfill its constitutional duty to protect the rights of Americans, the separation of powers, and our national security.
Many Senators who have been defending retroactive immunity have done so by emphasizing that the phone companies were just following White House orders. If you believe that argument, you should be especially in favor of this amendment because it places the inquiry exclusively on the White House. Here is what the amendment says:
The unclassified report shall not disclose the name or identity of any individual or entity of the private sector that participated in the program or with whom there was communication about the program.
Even though we oppose retroactive immunity, Senator Leahy and I included that provision because we want to make this amendment as uncontroversial as possible. We want to make it crystal clear that all Senators who take their constitutional duties seriously, whether they are Democrats or Republicans, need to support this amendment.
I urge all of my colleagues to pass this amendment and take a vital step toward restoring honesty and the rule of law in America's surveillance policy.
I yield the floor.
The Presiding Officer: The Senator from California is recognized.
Mrs. Feinstein: Mr. President, I wish to speak for a short period of time on an amendment that I would like to offer, in the event I am given the opportunity to do so.
The Terrorist Surveillance Program began in mid-October of 2001, and it operated until January of 2007. It operated outside of the jurisdiction of the FISA Court during that period of time. That is 5 years and 2 months, when a program operated with no court review or no court approval.
Now, I must regretfully say the United States--long before this President and the prior President, but for decades--has had a rather sordid history of misusing foreign intelligence for domestic political purposes. This was well outlined in the Church Committee's report, which led to the development of the Foreign Intelligence Surveillance Act--which is the bill we are talking about--in 1978.
If you go back and read the record, you will see that President Carter signed the bill. In his signing statement, as well as the record of the deliberations of the Congress at that time, he tried to overcome this sordid history by making the Foreign Intelligence Surveillance Act--this bill--the exclusive authority for electronic surveillance of Americans for the purpose of foreign intelligence. That was the bottom line, so that never again could foreign intelligence be used politically against American citizens domestically.
FISA has continued over the decades, and I think it has served this Nation well.
What we have seen develop now is a Presidency and a President who believes very strongly in his executive authority and has tried, through many different ways, to enhance that executive authority. One of those ways has been signing statements--more signing statements by this President, saying what part of the law he would follow and what part he would not follow; the concept of the unitary Executive, which has been espoused, whereby all commissions, even the FCC, would be subject to the will of the Presidency and by his use of article II authority--asserting that authority under the Constitution as supreme to any statute.
The battle over FISA going back to 1978--was to give FISA statutory authority that would be supreme in this one particular area. The President strove to do it at the time, and the Congress strove to do it at the time. The Judiciary Committee bill has this strong statement of exclusivity in it, which I will propose in an amendment to this bill. The amendment is cosponsored by the chairmen of both committees, Intelligence and Judiciary, Senators Rockefeller and Leahy; Senator Nelson, who serves on the Intelligence Committee; Senator Whitehouse, who serves on both committees along with myself; Senator Wyden from the Intelligence Committee; Senator Hagel from Intelligence; Senator Menendez; Senator Snowe from the Intelligence Committee; and Senator Specter, the ranking member of the Judiciary Committee.
All of us together believe there should be strong exclusivity language that reinforces the intent of the Congress, that the Foreign Intelligence Surveillance Act be the exclusive authority for the wiretapping of Americans for the purpose of foreign intelligence. It makes sense and should be the case.
Finally, the administration said in January of last year: OK, we will try to put the program under the FISA Court. In fact, the program today is under the FISA Court through the Protect America Act. So there is a court review and, where warranted, court warrants are granted for the collection of content. That is the way it should be. As we move to this bill, minimization strictures will be spelled out, approved by the court prior, and that is the way it should be.
We would like to add to this bill the exclusivity language contained in the Judiciary Committee bill. All of us are in agreement, whether we are Intelligence Committee members or Judiciary Committee members, that FISA should become the exclusive authority, and we should try to reinforce it so that in 2 years, 10 years, or 20 years we will not be right back to where we are today.
Let me quickly describe the amendment, and shortly I will try to send a modification of the amendment that is at the desk now, which has some technical corrections in it.
Let me describe this amendment briefly. We add language to reinforce the existing FISA exclusivity language in title 18 by making it part of the FISA language, which is codified in title 50.
The second provision addresses the so-called AUMF loophole. The administration has also argued that the authorization for the use of military force against al-Qaida implicitly authorized warrantless electronic surveillance.
The amendment we would offer states that only an express statutory authorization for electronic surveillance in future legislation shall constitute an additional authority outside of FISA. This makes clear that only a specific future law that provides an exception to FISA can supersede FISA. Only another statute specific can supersede FISA.
Third, the amendment makes a similar change to the penalty section of FISA. Currently, FISA says it is a criminal penalty to conduct electronic surveillance, except as authorized by statute. The amendment replaces that general language with a prohibition on any electronic surveillance except as authorized by FISA, by the corresponding parts of title 18 that govern domestic criminal wiretapping, or any future express statutory authorization for surveillance.
Finally, the amendment requires more clarity in any certification that the Government provides to a company--in this case, a telecom company--when it requests assistance for surveillance and there is no court order.
The FISA law provides only two ways to do electronic surveillance. One of the ways is a court order. That is clear, that is distinct, that is understandable.
The second way provides that if assistance is based on statutory authorization, a certification is sent to the company, in writing, requesting assistance and saying that all statutory requirements have been met.
Under this amendment, the certification must specify what provision in law provides that authority and that the conditions of that provision have been met. This adds specificity to the certification process which today is called for by the FISA law. I believe this is something that is necessary to have in law.
In good conscience, I could not vote for any law that did not make the test case that we need to make, which is our legislative intent that FISA is intended to be the exclusive authority for the collection of electronic surveillance, foreign intelligence involving a U.S. person.
It should be subject to FISA law. I don't think any one of us would want to vote to prevent that from happening.
I believe this amendment could be adopted given a chance. We have vetted it. It will not interfere with the collection of intelligence. We have vetted it with the Department of Justice and with the intelligence agencies. As I say, it is bipartisan.
What I would like to do at this time is call up the amendment. It is No. 3857, and I ask unanimous consent to send a modification to the desk to that amendment.
The Presiding Officer: Is there objection to setting aside the pending amendments?
Mr. Kyl: For the reasons Senator Bond explained earlier, I object.
The Presiding Officer: Objection is heard.
The majority leader.
Mr. Reid: Mr. President, yesterday our Vice President gave a speech at the Heritage Foundation talking about the need to pass the Foreign Intelligence Surveillance Act. Today, the President gave a statement; it was a brief statement. The President gave a statement following up on the Vice President's speech yesterday. The Vice President gave a speech; the President gave a statement today.
Among other things, he said:
If Congress does not act quickly, our national security professionals will not be able to count on critical tools they need to protect our nation, and our ability to respond to new threats and circumstances will be weakened. That means it will be harder to figure out what our enemies are doing to recruit terrorists and infiltrate them into our country…
So I ask congressional leaders to follow the course set by their colleagues in the Senate Intelligence Committee, bring this legislation to a prompt vote in both houses…
Congress' action--or lack of action--on this important issue will directly affect our ability to keep Americans safe.
Let the record be spread with the fact that all 51 Democrats joined with 49 Republicans in that we want to do everything we can to make our homeland safe. We want, if necessary, within the confines of the law, to do wiretapping of these bad people. But having said that, we want to do it within the confines of the law and our Constitution. We want to make sure this wiretapping does not include innocent Americans who happen to be part of what they are collecting. That is what the American people expect us to do.
So I again say, no one can question our patriotism, our willingness to keep our homeland safe. We have tried to move forward on this legislation. We have tried in many different ways. What we have been doing today and yesterday is moving forward on this legislation. As the distinguished Senator from California said, there are amendments that will make this legislation better. That is in the eye of the beholder, and we all understand that. But shouldn't the Senate have the ability to vote on those amendments because no matter what we do as a Senate, it has to have a conference with the House. They have already passed their legislation. We have been stalled every step of the way--every step of the way.
The Feingold amendment, for example, was offered. It certainly is germane. But we are being told he cannot get a vote on this amendment because it concerns FISA's court orders. His amendment was discussed at length previously. Half of it was accepted on a bipartisan basis, the other half was not. But certainly he is entitled to a vote.
Senator Feingold and I do not mean to embarrass him--is a legal scholar. He is a graduate of one of our finest law schools in the world. He is a Rhodes Scholar. Senator Whitehouse has been attorney general of the State of Rhode Island and is certainly known all over the country as someone who understands the law. He has been a tremendously good person as a Member of the Senate. He serves on both committees, the Intelligence Committee and on the Judiciary Committee, and he is a thoughtful person.
He thought the legislation that came out of the Intelligence Committee should be improved, and as a member of the Judiciary Committee, he worked to have it improved. He sought to offer a germane amendment a short time ago concerning minimization. What does that mean? That means if you pick up by mistake an American, that you drop it. You push that out of the way, that isn't going to be made public in any manner. We want to vote on that amendment. It seems everyone would vote for it. I certainly hope so. But there is an objection to even having a vote on that amendment.
Senator Cardin, a long-time Member of Congress, a relatively new Member of the Senate, but a long-time, experienced Member of the Congress of the United States sought to offer a germane amendment shortening the sunset provision. The bill that is before us that came out of the Intelligence Committee is for 6 years. Things are changing rapidly in our country and in the world as it relates to electronics. We don't know what is going to take place in regard to terrorism, violence or what is going to take place with our ability to do a better job electronically to uncover some of what we believe should be uncovered. He wants this legislation to be for not 6 years but 4 years. That is a pretty simple amendment. I support it. I think it is a good amendment. But he has been unable to offer that simple amendment.
Senator Feinstein has given a very fine statement seeking consent to offer a germane amendment on exclusivity, meaning that FISA is the only basis for the President's eavesdropping. There have been editorials written virtually in every State of the Union in the newspapers saying that should be the law, but she has not been able to offer that amendment.
Senator Kennedy wanted to offer an amendment that is so rational, so important. He says: Let's have the inspector general do an investigation about the whole wiretapping program to find out what has taken place, who has been involved in it, and report back to Congress, not tomorrow; he sets a reasonable time that be done. But guess what. We cannot even vote on that amendment. He cannot even offer the amendment.
I say to my friends it does not matter what we try to do, we cannot do it. It appears the President and the Republicans want failure. They don't want a bill. So that is why they are jamming this forward.
I am going to vote against cloture. It is not fair that we have a major piece of legislation such as this and we are not allowed to offer an amendment as to whether the bill should be 4 years or 6 years, and we are not allowed to offer an amendment as to minimization, that is whether Americans picked up by mistake are going to be brought out in the public eye, or Senator Feingold's germane amendment dealing with how court orders are issued, a real good amendment, an important amendment.
If there were ever a Catch-22, this is it because what we are being asked to do is irrational, irresponsible, and wrong. From where does this "Catch-22" come? We all know it was a bestseller. Joseph Heller wrote this book. He was a pilot during World War II. Joseph Heller thought he was crazy. He was a bomber pilot. We all know how difficult it was to fly those big airplanes in World War II. The casualty rate was high. If you were crazy and you said so, you would be grounded from flying these big bombers. But the officials of the military would say: We are not going to let you not fly airplanes because you have to be crazy to fly one of these in the first place. That is what Joseph Heller was stuck with because it was crazy to fly bomber missions, and they would immediately make you fly more bomber missions.
That is what we have today. We are trying everything we can do, but no matter what we do, we step on each other in the process.
I suggest we were doing this the right way. We were looking at title I, which deals with procedures of this FISA legislation, and then we were going to come later and offer amendments to title II. For example, one of the difficult issues is whether there should be retroactive immunity for the phone companies. Senators Dodd and Feingold want to offer an amendment to strike from the provisions of the bill retroactive immunity. That is something on which we should be able to vote.
Senator Levin came up with the idea, and there are others--I believe Senator Whitehouse also wanted to offer an amendment dealing with substitution, saying: OK, if there is going to be retroactive immunity, have the Government pay for it, not the phone companies, because if, in fact, they were entitled to immunity, that means they were forced into something they shouldn't have been forced into. That is something I think is reasonable and logical to vote on, but we will not be able to vote on it.
I asked unanimous consent that we extend this matter for 30 days because it is very apparent, unless cloture is invoked--and I say to my Democratic colleagues I think this is an example of something on which we should not invoke cloture--if cloture is not invoked, this bill is not going to be finished by February 1 and this program will expire.
So we say to the President, who gave this statement today saying he wants the program to continue, he needs to talk with his Republicans in the Senate and say: OK, let's get an extension; let's see if we can work something out. Two weeks, a month, we are willing, if the President wants, to continue this awful program for a year, 15 months, wait until the next President comes along. We are willing to do that, and he will still have his authority.
We know one of his counsel, Mr. Yu, says he doesn't need this anyway; he can do what he wants without this legislation. But we are willing to do whatever is within the realm of possibility.
I said we will take a 30-day extension. We will take a 2-week extension. We will take a 12-month extension. We will take an 18-month extension. I tell all my friends, I have been told--and I appreciate very much my distinguished counterpart, Senator McConnell, who has told me he has a cloture motion, it is all signed, and he is going to file it as soon as I yield the floor to him--I say to all my friends, under the regular order, we will have this vote Monday. If, in fact, cloture is invoked, we will have to have the vote early Monday because the 30 hours begins running, and we will have to finish it because we have so much to do before the final week. I explained all this to the distinguished Republican leader.
If cloture is going to be filed, and I know it is going to be, and if cloture is invoked, we have to have a vote no later than 1 p.m. on Monday, so the 30 hours runs out at a reasonable time on Tuesday so we can do other things. If cloture is not invoked--and I am not going to vote for cloture--unless the President agrees to some extension of time, the program will fail. I don't know any way out of that. But I, in good conscience, cannot support this legislation, at least unless we have a vote on retroactivity of immunity. I can't vote for cloture unless some of the very basic amendments that people want to offer are allowed. They all have asked for very short time limits. No one is questioning spending a lot of time. We Democrats are not in any way trying to stall this bill. We have been trying to expedite it for a long time now.
For purposes of making the record clear, and for my distinguished counterpart, I ask unanimous consent that the Judiciary Committee be discharged from further consideration of S. 2541, which is a 30-day extension of FISA, and that the Senate then proceed to its consideration; that the bill be considered read a third time, passed, and the motion to reconsider be laid on the table.
The Presiding Officer (Mr. Whitehouse): Is there objection?
Mr. McConnell: Reserving the right to object, I ask unanimous consent to modify the request so that instead of passing the House bill, we will now pass the bill we know the President will sign. So, therefore, I would ask the pending amendments to the substitute be withdrawn and the substitute offered by Senator Rockefeller and Senator Bond be agreed to; that the bill be read a third time, and passed.
Mr. Reid: Mr. President, we have, Republicans and Democrats--I acknowledge more Democrats than Republicans--who believe this Intelligence Committee bill can be improved upon, and I so appreciate the Judiciary Committee working in good faith with the Intelligence Committee. We think there are some tuneups that can be done to this bill to make it much better, and it is not fair, I say respectfully to my friend from Kentucky, it is really not fair that we be asked to just accept this without the ability to have a vote on a single amendment.
So I respectfully object to my colleague's request to modify the unanimous consent request.
The Presiding Officer: Objection is heard. Is there objection to the majority leader's request?
Mr. McConnell: I object.
The Presiding Officer: Objection is heard.
Mr. Reid: Mr. President, I am now going to ask unanimous consent to pass the House bill, which was passed by the House last November.
I ask unanimous consent that the Senate proceed to the immediate consideration of Calendar No. 517, H.R. 3773, which is the House-passed FISA bill; that the bill be read three times, passed, and the motion to reconsider be laid upon the table.
The Presiding Officer: Is there objection?
Mr. McConnell: Mr. President, I object.
The Presiding Officer: Objection is heard. The Republican leader.
Mr. McConnell: Mr. President, I am sure those watching C-SPAN 2 are probably thoroughly confused with all of the parliamentary discussion back and forth and the parliamentary nuances attached thereto. Obviously, there are two sides to every story.
In fact, in April of 2007, the DNI--the Director of National Intelligence--asked for this FISA bill to be passed. Our good friends on the other side of the aisle delayed it. In June and July of 2007, the DNI actually pleaded--pleaded--for help. Our friends on the other side delayed right up until the August recess, at which time we did pass the Protect America Act, which was a 6-month authorization.
Now, during September and October, the Permanent Select Committee on Intelligence, in a bipartisan way, produced the Bond-Rockefeller compromise, which is the pending proposal before the Senate. It was, I gather, a painful series of compromises that brought the two sides together 13 to 2 on this extraordinarily important piece of legislation to protect our homeland. And that is the pending issue before us.
Now, we all know on an issue as important as protecting the homeland we don't get the job done unless we get a Presidential signature, and we do know the President of the United States will sign the Rockefeller-Bond proposal that is before us. So my strong recommendation to our colleagues is that we avail ourselves of the opportunity to pass this measure, which is already the product of substantial bipartisan compromise between the chairman and vice chairman of the Permanent Select Committee on Intelligence and also the members, who approved it 13 to 2.
A way to do that, obviously, would be to invoke cloture on that proposal, indicating that 60 or more Members of the Senate believed this bipartisan compromise, which we know will get a signature by the President of the United States and go into effect, would be a good bipartisan accomplishment for the Senate, and ultimately for the House and for America.
Bearing that in mind, Mr. President, I send a cloture motion on the substitute amendment; that is, the Rockefeller-Bond proposal, to the desk.
The Presiding Officer: The cloture motion having been presented under rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows:
Cloture Motion
We, the undersigned Senators, in accordance with the provisions of rule XXII of the Standing Rules of the Senate, do hereby move to bring to a close debate on the pending substitute amendment to S. 2248, Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2007.
Mitch McConnell, Christopher S. Bond, Kay Bailey Hutchison, Wayne Allard, Jon Kyl, Robert F. Bennett, Sam Brownback, John Thune, Pat Roberts, John Barrasso, Chuck Grassley, Johnny Isakson, Lamar Alexander, Gordon H. Smith, Tom Coburn, Jim DeMint, Richard Burr.
The Presiding Officer: The majority leader.
Mr. Reid: Mr. President, I suggest the absence of a quorum.
The Presiding Officer: The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. Reid: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The Presiding Officer: Without objection, it is so ordered.
Mr. Reid: Mr. President, I am, of course, disappointed we are where we are, but that is where we are. I have had a conference just now with the distinguished Republican leader, and what we are going to do is to vote on this cloture motion at 4:30 on Monday. I have gotten agreement, and we will formalize that in just a bit. I have agreement that the vote will be as if it occurred at noon that day, so if in fact cloture is invoked, we can start something at 6 o'clock on Tuesday because we have a lot to do.
So having said that, Mr. President, we have one call to make, which I think will be fine, and I will make the request at a later time when we do have agreement of what we want to do. I will formalize that as soon as we make a phone call.
Mr. President, I suggest the absence of a quorum.
The Presiding Officer: The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Ms. Cantwell: Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The Presiding Officer: Without objection, it is so ordered.
Ms. Cantwell: Mr. President, as my colleagues are trying to sort out issues related to scheduling votes, and I certainly do care about the pending issue and making sure that we come to a resolution that will protect a variety of interests, I rise now to speak specifically about the economic stimulus package which the Senate is going to take up next week.
We all know there has been a downturn in the economy caused by persistent high energy costs and an ongoing mortgage crisis, and we know we are seeing damages to both individual households and to businesses. We know that layoffs are accelerating, gas and home heating prices are skyrocketing, making us face some of the biggest economic challenges we have seen in years. So I think it is very important, Mr. President, that we continue on this rapid pace to get a stimulus package. And that is the good news; that in a bipartisan effort we have been working diligently along with the White House to immediately get some stimulus into the economy and help working people and businesses that are struggling.
I think our goal should be that we identify measures that are timely, targeted, and, when possible, address the underlying causes of our economic problems--that is getting money in people's pockets, I believe, must be a key component of this package. I have been following what the other side of the Capitol has been doing, the House of Representatives is working on a formidable package, and I know we are discussing a variety of issues here. But I believe any package should take the opportunity to invest in critical business stimulus measures that can alleviate some of the underlying problems that are causing Americans economic heartburn.
We are seeing oil prices in recent weeks hovering around $100 a barrel and natural gas prices remaining at exceedingly historic highs, which I think is adding great impact to what Americans are doing in trying to deal with this economy. In fact, a Los Angeles Times article in December cited economists' fear that high energy costs could ignite inflation. This would just aggravate our economic problems further.
High energy costs make it much more difficult for our manufacturing and agricultural sectors to make ends meet. Today the National Farmers Union came out in favor of a proposal that I think we should put into our stimulus package, and one that I am about to describe. It is an opportunity to include in the stimulus package incentives that both dramatically boost economic activity in 2008 and take an important step toward reducing energy costs.
I believe we should consider an extension of the clean energy tax incentives in the stimulus package. They meet the definition of short- term stimulus, targeted and timely. They have the benefit of getting immediate short-term results--that is, significant economic activity and new jobs in 2008. And they also result in long-term benefits which will help us deal with the underlying problem that is causing so much havoc with our economy, and that is high energy costs.
Mr. President, the American Wind Energy Association estimates that extending the production tax credit will result in as many as 75,000 new jobs in 2008 and $7 billion of capital spending over the next 12 months. All by Congress making the right decisions about tax incentives for the wind industry.
I think that would be a big boost to our economy. Wind generation alone has accounted for over 30 percent of our new generation placed in service last year. This industry is well beyond what some might consider a pilot phase and has significant sources of job diversity for the United States.
Likewise, the solar industry estimates that up to 40,000 new jobs could actually be lost in the next 12 months if we do not extend the investment tax credit. That is right; not only do those tax credits add stimulus to the economy, we should understand that by not doing them, by not passing them, we are actually taking away economic opportunity and investment plans that people would be making this year.
Included in this package are also four energy efficiency incentives for consumers. As a Deutsche Bank report released last November said:
Gains in efficiency will have the effect of muting the effect of expensive oil.
If we want to get consumers to go shopping, why not encourage them to buy items that will reduce their energy costs? Everybody wins when this happens. Consumers get lower bills, retailers get more economic activity, and it reduces the upward pressure on prices by mitigating demand. All of which helps the overall economy rebound faster.
This is the kind of economic stimulus we need. It helps with jobs, it helps diversify the energy industry. The clean energy industry is one of the few bright spots in an otherwise slumping economy. Unless those incentives are extended in this quarter, we are taking a risk at an even steeper downturn in an industry that saw remarkable results in 2007.
Mr. President, that's why we need to make sure we extend these critical clean energy tax incentives. I will remind my colleagues that the three times Congress let the clean energy tax incentives lapse, the wind industry saw a 75- to 93-percent decline the following year, because we were not giving them the predictability in tax incentives. So while I am very happy to make sure the public is getting the incentives in the form of rebate checks, I also want to say to my constituents that we are also putting a variety of solutions on the table, that we are trying to deal with problems that will help them not just in the near term, but also to solve the underlying problem of high energy costs that is a drag on our economy.
I know some of my colleagues will probably talk about lots of different ways we can stimulate infrastructure development, but I will say that this is about a business tax investment strategy. These clean energy incentives will stimulate billions of dollars of capital outlay now in the next 12 months, and be a huge source of new job creation.
An immediate cash infusion into the economy is necessary, but we should not lose sight of the fact that this has the additional benefit of helping us with our long-term problem.
I look forward to working with my colleagues on an extension of these clean energy incentives as part of the stimulus package, and to demonstrate the leadership and foresight that we have here in the Senate to make the right decisions about a package that will simultaneously provide us near term economic boost, prevent job loss, and help solve high energy costs.
The Presiding Officer: The majority leader.
Mr. Reid: Mr. President, I ask unanimous consent that the vote on the cloture motion just filed occur on Monday, January 28, at 4:30 p.m.; that the requirements of rule XXII be waived; that if cloture is invoked, all postcloture time during a recess or adjournment would be counted.
The Presiding Officer: Is there objection?
Mr. Reid: Also, Mr. President, when we get the vote, the vote be deemed as having occurred at 12 noon on Monday, January 28.
The Presiding Officer: Without objection, it is so ordered.
The Presiding Officer: The assistant majority leader.
Mr. Durbin: Mr. President, at the direction of the majority leader, I announce there will be no further votes today. The next vote is scheduled for 4:30 on Monday. It will be a cloture motion filed by Senator McConnell relative to the bill on the Foreign Intelligence Surveillance Act.
The Senate will be in session tomorrow at 9:30 for morning business and debate. Members who care to may come to the floor to discuss issues of their choosing. I would say on behalf of the majority leader as well our frustration that we have reached this point. We have a deadline of February 1 to enact this new FISA act. The President has argued he needs this to keep America safe. We have offered to the Republican side an extension of the current law so that the President would be able to continue this policy and program uninterrupted for a month, several months, as long as a year and a half, and we have been rejected. The Republican leadership on the floor has argued they do not want to extend this program as we try to work out differences on the issue of the liability of telephone companies that provided information to the Federal Government. That is unfortunate.
It is also unfortunate that we had Members of the Senate come to the floor in good faith to offer amendments to this bill. I can tell you, having spoken to those on our side of the aisle, each of the amendments was prepared and offered to the Republican side for their review, no surprises. We understood that they would offer their own amendments in response. That is certainly proper. It would engage the Senate in debate on some very important issues relative to national security. But it was the decision of the Republican leadership they wanted no amendments, they wanted no debate. They wanted the President's version of this bill, take it or leave it. They would rather run the risk of closing down this program of surveillance of terrorists than perhaps give us a chance for a few amendments to be debated and voted on in the next 24 hours. That is an unfortunate start to the 2008 Senate session.
In the last year of the Senate, the Republicans were responsible for some 62 efforts to stop debate on the floor, 62 efforts at filibusters, which is a modern record; in fact, it is an all-time record for the Senate; 62 different occasions the Republicans engaged in filibusters to stop debate.
We were hopeful as we talked about the stimulus package and bipartisanship, working together, that things had changed. And then within a matter of hours, the Republican leadership came to the floor to stop us from having any amendments, any debate in a timely fashion on this important bill, and also to stop us from extending this bill, this law, so the President can use this program, and that America would never have its security at risk.
I think the Republicans have taken an untenable, indefensible position. They do not want the law extended so the President can use it. They do not want us to enact any revision to the law or even debate it on the off chance that there might be a change. They have taken the position it is their way or the highway.
Well, we will have a vote on Monday, an unfortunate vote that would have been avoided with a modicum of cooperation here in the Senate.
So there will be no further votes today; the first vote will be at 4:30 on Monday.
| Congressional Records S.2248: FISA - 2008 | ||||||||||||||||||||||||||||||||||||||||||
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| January | ||||||||||||||||||||||||||||||||||||||||||
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| January 24, 2008 | ||||||||||||||||||||||||||||||||||||||||||
| Senate | ||||||||||||||||||||||||||||||||||||||||||
| Senators Reid and McConnell | ||||||||||||||||||||||||||||||||||||||||||
| FISA Amendments Act part 1 | ||||||||||||||||||||||||||||||||||||||||||
| FISA Amendments Act part 2 | ||||||||||||||||||||||||||||||||||||||||||
| FISA Amendments Act part 3 | ||||||||||||||||||||||||||||||||||||||||||
| FISA Amendments Act part 4 | ||||||||||||||||||||||||||||||||||||||||||
| Bond Amend 3916 | ||||||||||||||||||||||||||||||||||||||||||
| Feingold Opposes A 3916 | ||||||||||||||||||||||||||||||||||||||||||
| Sen Wyden | ||||||||||||||||||||||||||||||||||||||||||
| Bond responds to Wyden | ||||||||||||||||||||||||||||||||||||||||||
| Wyden responds to Bond | ||||||||||||||||||||||||||||||||||||||||||
| Sen Whitehouse | ||||||||||||||||||||||||||||||||||||||||||
| Bond defends A 3916 | ||||||||||||||||||||||||||||||||||||||||||
| Whitehouse replies to Bond | ||||||||||||||||||||||||||||||||||||||||||
| Sen Cardin | ||||||||||||||||||||||||||||||||||||||||||
| Sen Inhofe | ||||||||||||||||||||||||||||||||||||||||||
| Sen Leahy | ||||||||||||||||||||||||||||||||||||||||||
| Sen Kennedy | ||||||||||||||||||||||||||||||||||||||||||
| Sen Feinstein | ||||||||||||||||||||||||||||||||||||||||||
| Sen Reid | ||||||||||||||||||||||||||||||||||||||||||
| McConnell/Reid | ||||||||||||||||||||||||||||||||||||||||||
| Cloture Motion | ||||||||||||||||||||||||||||||||||||||||||
| Cantwell: Stimulus Pack | ||||||||||||||||||||||||||||||||||||||||||
| Sen Durbin | ||||||||||||||||||||||||||||||||||||||||||
| Reid: GOP Stalling |
